EVERBANK COMMERCIAL FINANCE, INC. VS. LOVE FREIGHTWAYS, INC.

Tentative Rulings

Case Number: VC065860 Hearing Date: July 27, 2021 Dept: C

EVERBANK\r\nCOMMERCIAL FINANCE, INC. v. LOVE FREIGHTWAYS, INC., et al.

CASE NO.: VC065860

HEARING: 7/27/21 @ 9:30 AM

#2

TENTATIVE ORDER

Cross-Defendants\r\nNavistar, Inc., Navistar International Corporation, and Navistar Financial\r\nCorporation’s unopposed motion to dismiss/demurrer to Cross-Plaintiffs’ second\r\namended cross-complaint is GRANTED.

Moving Parties\r\nto give NOTICE.

Cross-Defendants Navistar, Inc., Navistar\r\nInternational Corporation, and Navistar Financial Corporation moves to dismiss the\r\ncomplaint on grounds of res judicata and release.

In the SACC, Cross-Plaintiffs complain that the\r\nEGR system is “defective” and that such defects necessitated repeated repairs\r\nto the Trucks and their MaxxForce engines, resulting in downtime, lost revenue,\r\nand other damages.

In California, “[r]es judicata applies if (1)\r\nthe decision in the prior proceeding is final and on the merits; (2) the\r\npresent proceeding is on the same cause of action as the prior proceeding; and\r\n(3) the parties in the present proceeding or parties in privity with them were\r\nparties to the prior proceeding.” (Fed'n\r\nof Hillside & Canyon Ass'ns v. City of Los Angeles (2004) 126 Cal. App.\r\n4th 1180, 1202.) \r\n\r\n

Here, the Final Judgment contains a broad\r\nrelease of all Class Members’ claims. Further, all of Cross-Plaintiffs’ claims\r\ninvolve Class Vehicles, and all of Cross-Plaintiffs’ claims relate to or are\r\nconnected with the allegations in the Class Action, namely alleged defects in\r\nthe design of the EGR-only MaxxForce \r\nengine that caused breakdowns and interrupted business\r\noperation. Finally, the parties are in privity. \r\nCross-Plaintiffs’ purchased their Class\r\nVehicles in California in 2013 and did not timely opt out of the settlement. Thus, Cross-Plaintiffs’ are Class Members. Additionally, Navistar and NIC are also parties here and in the Class\r\nAction.

The court finds that Movants has established\r\nthat res judicata applies.

Cross-Complainants did\r\nnot file any opposition. Accordingly,\r\nthe motion is GRANTED.

Case Number: VC065860    Hearing Date: March 12, 2020    Dept: SEC

EVERBANK COMMERCIAL FINANCE, INC. v. LOVE FREIGHTWAYS, INC.

CASE NO.: VC065860

HEARING: 03/12/2020

JUDGE: OLIVIA ROSALES

#6

TENTATIVE ORDER

Plaintiff EVERBANK COMMERCIAL FINANCE, INC.’s motion for summary judgment or alternatively summary adjudication is GRANTED. CCP § 437c.

Moving Party to give Notice.

No Opposition has been filed as of March 10, 2020. The Court notes, however, that it has received and considered Defendant’s “Response to Plaintiff’s Separate Statement” and the Declaration of Nemanja Lovre in Support of Opposition to Plaintiff’s Motion for Summary Judgment.

This action for breach of contract was filed by Plaintiff on October 12, 2016. In its Complaint, Plaintiff alleges, in pertinent part, “On or about October 18, 2013, Defendant LOVE FREIGHTWAYS, INC….entered into a written Loan and Security Agreement (hereinafter the ‘Agreement’) with Plaintiff’s predecessor in interest, GE CAPITAL COMMERCIAL, INC. to finance the purchase of three (3) 2012 International Prostar Tractor Trucks.” (Complaint ¶8.) “On or about June 12, 2014, GE CAPITAL COMMERCIAL, INC. sold and assigned all of its rights, title and interest in the Agreement and the Trucks to Plaintiff….” (Complaint ¶11.) “On or about January 10, 2016, and continuing thereafter, Defendants breached the terms of the Agreement by failing to make the monthly payment then due and owing. In addition, Defendants failed and refused and continue to fail and refuse to make any further payments coming due thereunder. [¶] Plaintiff subsequently recovered the Truck with VIN ending in 5296 and sold it in a commercially reasonable manner and recovered net proceeds in the amount of $9,722.50, which ahs been credited to the amounts owing herein. Plaintiff is informed and believes, and thereon alleges, that the Trucks with VIN ending in 5303 and 5330 were subsequently sold at a Mechanic’s Lien Sale, without Plaintiff’s consent or knowledge, and through no fault of Plaintiff, thus rendering said collateral of Plaintiff’s worthless. [¶] Pursuant to the terms of the Agreement, upon Defendants’ default, Plaintiff elected to accelerate the balance due thereunder…. [¶] No party of said sum has been made….” (Complaint ¶¶ 13-16.)

Plaintiff’s Complaint asserts the following causes of action: (1) Breach of Written Agreement; (2) Account Stated; (3) Unjust Enrichment (4) Open Book Account; and (5) Breach of Guaranty.

Although not articulated in a substantive Opposition Brief, it appears as though Defendant is arguing that there can be no breach of contract because the trucks were defective—therefore, Plaintiff/Plaintiff’s assignor has failed to fully perform under the Agreement, and Defendant should owe Plaintiff nothing.

Defendant’s argument lacks merit. As argued in Reply, page one of the Loan and Security Agreement states, in all upper-case print: “LENDER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE QUALITY, WORKMANSHIP, DESIGN, MERCHANTABILITY, SUITABILITY, OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS O IMPLIED.” (McGovern Decl., Ex. 1.)

The following facts are undisputed: Plaintiff’s assignor and Defendant entered into the Loan and Security Agreement for the purchase of three trucks; the Loan and Security Agreement was assigned to Plaintiff; Defendant received and accepted the three trucks; and Defendant made monthly payments until the time of default.

The Motion for Summary Judgment is GRANTED.