This case was last updated from Los Angeles County Superior Courts on 09/12/2019 at 00:39:19 (UTC).

KEVIN J. SMITH VS SWEETY HIGH, INC.

Case Summary

On 09/04/2018 KEVIN J SMITH filed an Other lawsuit against SWEETY HIGH, INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RICK BROWN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5275

  • Filing Date:

    09/04/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • County, State:

    Los Angeles, California

Judge Details

Judge

RICK BROWN

 

Party Details

Plaintiff

SMITH KEVIN J.

Defendant

SWEETY HIGH INC.

Attorney/Law Firm Details

Plaintiff Attorney

SMITH KEVIN JAMES

Defendant Attorney

MUSSIG ROBERT EUGENE

 

Court Documents

Declaration (name extension) - Declaration of Kevin J. Smith in support of Plaintiff's Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

2/27/2019: Declaration (name extension) - Declaration of Kevin J. Smith in support of Plaintiff's Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Proof of Service by Mail - Proof of Service by Mail

2/27/2019: Proof of Service by Mail - Proof of Service by Mail

Notice of Motion - Notice of Motion for Summary Judgment, or in the Alternative, Summary Adjudication

2/27/2019: Notice of Motion - Notice of Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Motion for Summary Judgment - Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication

2/27/2019: Motion for Summary Judgment - Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Separate Statement - Separate Statement of Undisputed Material facts in Support of Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication

2/27/2019: Separate Statement - Separate Statement of Undisputed Material facts in Support of Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Memorandum of Points & Authorities - Memorandum of Points & Authorities

5/7/2019: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Response (name extension) - Response Defendant's Response to Plaintiff's Separate Statement of Undisputed Material Facts and Defendant's Additional Undisputed Facts

5/7/2019: Response (name extension) - Response Defendant's Response to Plaintiff's Separate Statement of Undisputed Material Facts and Defendant's Additional Undisputed Facts

Proof of Service by Mail - Proof of Service by Mail

5/7/2019: Proof of Service by Mail - Proof of Service by Mail

Declaration (name extension) - Declaration Declaration of Frank Simonetti Supporting Defendant's Opposition to Plaintiff's Motion for Summary Judgment

5/7/2019: Declaration (name extension) - Declaration Declaration of Frank Simonetti Supporting Defendant's Opposition to Plaintiff's Motion for Summary Judgment

Objection (name extension) - Plaintiff's Objections To Defendant's Evidence

5/15/2019: Objection (name extension) - Plaintiff's Objections To Defendant's Evidence

Proof of Service by Mail - Proof of Service by Mail

5/15/2019: Proof of Service by Mail - Proof of Service by Mail

Reply (name extension) - Plaintiff's Reply To Defendant's Opposition To Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication

5/15/2019: Reply (name extension) - Plaintiff's Reply To Defendant's Opposition To Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Declaration (name extension) - Declaration of Kevin J. Smith in Support of Plaintiff's Reply

5/15/2019: Declaration (name extension) - Declaration of Kevin J. Smith in Support of Plaintiff's Reply

Minute Order - Minute Order (Court Order Transferring Case to a Non-Collection Hub)

5/20/2019: Minute Order - Minute Order (Court Order Transferring Case to a Non-Collection Hub)

Order (name extension) - Order Designation-Transfer of Non-Collection Hub Case

5/20/2019: Order (name extension) - Order Designation-Transfer of Non-Collection Hub Case

Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order Transferring Case to a Non-Collection Hub) of 05/20/2019

5/20/2019: Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order Transferring Case to a Non-Collection Hub) of 05/20/2019

Notice of Case Reassignment/Vacate Hearings - Notice of Case Reassignment/Vacate Hearings

5/22/2019: Notice of Case Reassignment/Vacate Hearings - Notice of Case Reassignment/Vacate Hearings

Proof of Service by Mail - Proof of Service by Mail

6/10/2019: Proof of Service by Mail - Proof of Service by Mail

14 More Documents Available

 

Docket Entries

  • 06/10/2019
  • DocketProof of Service by Mail; Filed by: KEVIN J. SMITH (Plaintiff); As to: SWEETY HIGH, INC. (Defendant)

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  • 05/22/2019
  • DocketNotice of Case Reassignment/Vacate Hearings; Filed by: Clerk

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  • 05/22/2019
  • Docket** Type of Action changed from Other Promissory Note/Collections Case to Other Complaint (non-tort/non-complex)

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  • 05/20/2019
  • DocketOrder Designation-Transfer of Non-Collection Hub Case; Filed by: Clerk

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  • 05/20/2019
  • DocketCase reassigned to Stanley Mosk Courthouse in Department 94 - Hon. Wendy Chang; Reason: Transfer for Reassignment

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  • 05/20/2019
  • DocketHearing on Motion for Summary Judgment scheduled for 05/21/2019 at 08:30 AM in Chatsworth Courthouse at Department F43 Not Held - Vacated by Court on 05/20/2019

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  • 05/20/2019
  • DocketNon-Jury Trial scheduled for 09/10/2019 at 08:30 AM in Chatsworth Courthouse at Department F43 Not Held - Vacated by Court on 05/20/2019

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  • 05/20/2019
  • DocketMinute Order (Court Order Transferring Case to a Non-Collection Hub)

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  • 05/20/2019
  • DocketCertificate of Mailing for Minute Order (Court Order Transferring Case to a Non-Collection Hub) of 05/20/2019; Filed by: Clerk

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  • 05/16/2019
  • DocketCase reassigned to Chatsworth Courthouse in Department F43 - Hon. Robert Schuit; Reason: Inventory Transfer

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17 More Docket Entries
  • 10/19/2018
  • DocketUpdated -- Event scheduled for 09/10/2019 at 08:30 AM in Chatsworth Courthouse at Department F43 Type changed from Order to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 to Non-Jury Trial

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  • 09/14/2018
  • DocketProof of Service by Substituted Service; Filed by: KEVIN J. SMITH (Plaintiff); As to: SWEETY HIGH, INC. (Defendant); Proof of Mailing Date: 09/10/2018; Service Cost: 69.50; Service Cost Waived: No

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  • 09/04/2018
  • DocketComplaint; Filed by: KEVIN J. SMITH (Plaintiff); As to: SWEETY HIGH, INC. (Defendant)

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  • 09/04/2018
  • DocketCivil Case Cover Sheet; Filed by: KEVIN J. SMITH (Plaintiff)

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  • 09/04/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 09/04/2018
  • DocketOrder to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740); Filed by: Clerk

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  • 09/04/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 09/04/2018
  • DocketCase assigned to Hon. Rick Brown in Department F43 Chatsworth Courthouse

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  • 09/04/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 scheduled for 09/10/2019 at 08:30 AM in Chatsworth Courthouse at Department F43

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  • 09/04/2018
  • DocketThe case is placed in special status of: Collections Case (CCP 3.740)

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Tentative Rulings

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Case Number: 18CHLC25275 Hearing Date: October 7, 2021 Dept: 26

PROCEEDINGS: MOTION FOR SUMMARY\r\nJUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

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MOVING\r\nPARTY: Plaintiff Kevin J. Smith

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RESP.\r\nPARTY: Defendant Sweety High,\r\nInc.

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MOTION\r\nFOR SUMMARY JUDGMENT OR ADJUDICATION

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(CCP §\r\n437c)

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TENTATIVE RULING:

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Plaintiff Kevin J. Smith’s\r\nMotion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED.

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SERVICE:

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[X]\r\nProof of Service Timely Filed (CRC 3.1300) OK

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[X]\r\nCorrect Address (CCP 1013, 1013a) OK

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[X]\r\n75/80 Day Lapse (CCP 12c and 1005 (b)) OK

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SUMMARY\r\nOF COMPLAINT: Action for breach of promissory\r\nnote.

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REQUEST FOR RELIEF: Grant Plaintiff summary judgment on the grounds\r\nthat there are no disputed facts as to Defendant’s liability for breach of the promissory\r\nnote. Defendant’s partial payments were first made towards interest, leaving\r\nunpaid principal and prejudgment interest accruing from the date of the breach.\r\n

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OPPOSITION: The motion\r\nshould be denied because the promissory note subjects Defendant to usurious\r\ninterest of 120 percent per annum. When a loan is subject to usurious interest,\r\nthe lender is only entitled to be repaid principal. Defendant has repaid the full\r\nprincipal amount of the loan.

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REPLY: Usury is an affirmative defense, which was\r\nnot pled in Defendant’s Answer. Therefore, it cannot be raised in opposition to\r\nthe Motion.

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ANALYSIS:

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Plaintiff Kevin J. Smith (“Plaintiff”) filed the instant\r\naction for breach of promissory note against Defendant Sweety High, Inc.\r\n(“Defendant”) on September 4, 2018 in the Chatsworth Courthouse.

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On February 27, 2019, Plaintiff filed the instant Motion for\r\nSummary Judgment, or in the alternative, Summary Adjudication. Defendant filed\r\nan opposition on May 7, 2019 and Plaintiff replied on May 15, 2019.

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On May 20, 2019, the action was transferred to the limited\r\njurisdiction court. The hearing date on the instant Motion and trial have now\r\nbeen re-set in this department.

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Legal Standard

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On a motion for summary judgment or adjudication of a\r\nparticular cause of action, a moving plaintiff must show that there is no\r\ndefense by proving each element of the cause of action entitling the party to\r\njudgment on that cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Then\r\nthe burden shifts to the defendant to show that a triable issue of one or more\r\nmaterial facts exists as to that cause of action or a defense. (Code Civ.\r\nProc., § 437c, subd. (p)(1).) Additionally, in ruling on the Motion, the Court\r\nmust view the “evidence [citations] and such inferences [citations], in the\r\nlight most favorable to the opposing party.” (Intrieri v. Superior Court\r\n(2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co.\r\n(2001) 25 Cal.4th 826, 843].)

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Evidentiary Objections

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Plaintiff’s evidentiary objections to the declaration of\r\nDefendant Simonetti in support of the opposition are overruled.

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Allegations in the Complaint

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The Complaint alleges a single cause of action for breach of\r\npromissory note. The elements of a cause of action for\r\nbreach of contract are (1) existence of contract; (2) plaintiff’s performance\r\nor excuse for nonperformance; (3) defendant’s breach (or anticipatory breach);\r\nand (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co.\r\n(2008) 164 Cal.App.4th 1171, 1178.) Plaintiff alleges that in February\r\n2015, the parties negotiated a short-term loan to Defendant that would mature\r\nin 30 days with $10,000.00 interest. (Compl., ¶¶7-9 and Exh. A.) Pursuant to\r\nthe Promissory Note, Plaintiff wired Defendant $100,000.00 on or about February\r\n6, 2015. (Id. at ¶10.) The Promissory Note became due on or about March\r\n11, 2015, but Defendant did not repay any of the monies by that date. (Id.\r\nat ¶11.) Instead, Defendant paid $10,000.00 on April 9, 2015, $10,000.00 on\r\nFebruary 16, 2016, $50,000.00 on May 23, 2016, $15,000.00 on August 8, 2016,\r\n$10,000.00 on November 21, 2016, $10,000.00 on January 19, 2017, and $2,500.00\r\non June 28, 2017. (Id. at ¶12.) By June 28, 2017, after which no more\r\npayments were made, Defendant paid a total of $107,500.00 to Plaintiff. (Ibid.)\r\nThe Complaint seeks the remainder of the $110,000.00 owed under the Promissory\r\nNote, plus prejudgment interest, for total damages of $20,156.64 as of filing\r\ndate of the Complaint. (Id. at ¶13.)

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Plaintiff’s Initial\r\nBurden of Proof

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Plaintiff brings the instant Motion for Summary Judgment, or\r\nin the alternative, Summary Adjudication for breach of the Promissory Note\r\nbased facts alleged in the Complaint. Those facts are supported by Plaintiff’s\r\nown declaration, as follows. The parties negotiated a short-term loan to\r\nDefendant in February 2015. (Motion, Separate Statement of Facts, Nos. 1-2;\r\nSmith Decl., ¶2.) The loan amount was for $100,000.00 plus $10,000.00 interest\r\nand would become due in 30 days. (Motion, Separate Statement of Facts, Nos.\r\n3-6; Smith Decl., ¶¶3-4 and Exh. A, p. 1.) The parties executed the Promissory\r\nNote on February 6, 2015 and Plaintiff performed his obligations by wiring\r\n$100,000.00 to Defendant on or about February 9, 2015. (Motion, Separate\r\nStatement of Facts, No. 7; Smith Decl., ¶¶4-5 and Exh. A, p. 1.) Defendant did\r\nnot repay the loan amount by the March 11, 2015 due date. (Motion, Separate\r\nStatement of Facts, Nos. 8, 10; Smith Decl., ¶6 and Exh. C.) Instead, Defendant\r\nmade partial payments from April 9, 2015 until June 28, 2017, for a total of\r\n$107,500.00. (Motion, Separate Statement of Facts, Nos. 11-18; Smith Decl., ¶7\r\nand Exh. D.) Based on the how the payments were assigned—first to interest,\r\nthen to principal—Defendant still owes Plaintiff $21,456.28. (Motion, Separate\r\nStatement of Facts, No. 21; Smith Decl., ¶¶8-11 and Exh. D.)

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In opposition, Defendant argues that the interest charged on\r\nthe Promissory Note is usurious and Plaintiff cannot recover any interest\r\ndamages whatsoever. The elements of usury are (1) the transaction must be a\r\nloan or forbearance; (2) the interest to be paid must exceed the statutory\r\nmaximum; (3) the loan and interest must be absolutely repayable by the\r\nborrower; and (4) the lender must have a

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willful intent to enter into a usurious transaction.” (Bisno\r\nv. Kahn (2014) 225 Cal.App.4th 1087, 1109.) To Plaintiff’s argument in\r\nreply that usury is not alleged as an affirmative defense and cannot be raised\r\nto oppose the Motion, the law is in Defendant’s favor. The California Supreme\r\nCourt has repeatedly ruled that “usury as a defense need not be pleaded; the\r\ncourt will, as in other cases of illegality, deny the recovery of usurious\r\ninterest on its own motion.” (Terry Trading Corp. v. Barsky (1930) 210\r\nCal. 428, 434 [citing Wallace v. Zinman (1927) 200 Cal. 585, 589]; Curtis\r\nv. Thaxter (1928) 204 Cal. 439, 440 [“It is not even necessary to plead\r\nusury where the contract shows on its face its usurious character. Under such\r\ncircumstances it is the duty of the court sua sponte to deny any interest.”].)

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Here, the face of the Promissory Note demonstrates a usurious\r\ninterest rate of 120 percent per annum ($10,000.00 being 10 percent of the\r\n$100,000.00 principal and due within one month). Plaintiff, therefore, must\r\ndemonstrate that the elements of usury are not met in order to carry his\r\ninitial burden of proof for summary judgment or adjudication of the breach of\r\npromissory note cause of action. The Motion, however, does not address the legality\r\nof the interest rate. Plaintiff, therefore, has not carried his initial burden\r\nof proof regarding the legality of the damages sought for breach of promissory\r\nnote.

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Defendant’s Burden to\r\nDemonstrate the Existence of a Triable Issue of Material Fact

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Even if the Court were to find that the issue of usury is\r\nnot a matter of initial proof by Plaintiff, Defendant’s evidence is sufficient\r\nto demonstrate the existence of a triable issue of material fact. It is\r\nundisputed that the Promissory Note was for a loan that absolutely required\r\nDefendant to repay the principal and interest, and that the contract facially\r\nprovides for Plaintiff to recover a usurious interest rate. The only element in\r\ndispute is whether the interest to be paid exceeds the statutory maximum. An\r\nannual rate of 120 percent exceeds the rates allowed under the California\r\nConstitution and Civil Code. (See Cal. Const., Art. 15, § 1; Civ. Code, §§\r\n1916-2, 1916-2.) However, there is an exception to the constitutional usury\r\nprovision for a corporation that “has total assets of at least two million\r\ndollars ($2,000,000) according to its then most recent financial statements.”\r\n(Cal. Corp. Code, § 25118, subd. (a).)

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While Defendant’s evidence does not meet the specific\r\ncriteria of Corporations Code section 25118, subdivision (a) for a financial\r\nstatement, the declaration of its co-founder regarding its financial assets is\r\nsufficient to create a triable issue of material fact regarding application of\r\nthe constitutional usury provisions to the Promissory Note. Furthermore,\r\nPlaintiff has not shown that there is any exception to the statutory usury\r\nprovision, a breach of which still satisfies the elements of an usury claim.

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Conclusion

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Based on the foregoing, Plaintiff\r\nKevin J. Smith’s Motion for Summary Judgment, or in the alternative, Summary\r\nAdjudication is DENIED.

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Defendant to give notice.

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