Motion for Summary Judgment/Adjudication
actual hours worked. The only source of damages that Jetema alleges are related to attorney’s fees to review an employment agreement and to ensure immigration compliance. To the extent those damages are recoverable (and Jetema provides no allegations to suggest that the American Rule does not apply here), at most, those damages are foreseeable contract damages, but not tort damages that arise from independent duties or circumstances. Jetema’s attempt to cure these defaults by the first amended complaint merely repackages the same underlying theory. The court finds that granting further leave to amend would be futile.
The demurrer to the first amended cross-complaint is, therefore, SUSTAINED without leave to amend.
Moving Cross-Defendant Kim to give notice.
2. Anti-SLAPP Motion
Given the above ruling, Cross-Defendant Kim’s anti-SLAPP motion is DENIED without prejudice as MOOT.
The court declines to rule on Cross-Defendant Kim’s evidentiary objections as unnecessary to the court’s ruling.
Moving Cross-Defendant Kim to give notice.
13 National Funding, Motion for Summary Judgment/Adjudication Inc. vs. Rise Ocean Chef Lee Inc. The court GRANTS Plaintiff NATIONAL FUNDING, INC.’s (“Plaintiff”) motion for summary judgment of Plaintiff’s Complaint against Defendant XIAODONG ZHU (“Zhu”).
Zhu’s Evidentiary Objections: OVERRULED
The Complaint contains two causes of action. Only the second cause of action for breach of guaranty is asserted against Zhu.
“[T]he elements of a cause of action for breach of contract are: (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
Plaintiff proffers evidence showing the existence of the Loan Agreement between Plaintiff and Defendant RISE OCEAN CHEF LEE INC. dba CHEF LEE’S PEKING RESTAURANT (“Rise Ocean”), Plaintiff’s performance of the terms required by Loan Agreement, Rise Ocean’s failure to comply with the Loan Agreement’s repayment terms under, and Plaintiff’s resulting damages. (Otero Decl. ¶¶ 4, 6-9, Exhs. 1-2.) Plaintiff also proffers evidence of the existence of a guaranty in connection with Loan Agreement by Zhu, Plaintiff’s demand to Zhu after Rise Ocean’s default, and Zhu’s failure to pay. (Id. at ¶¶ 5, 7.)
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The court finds that Plaintiff meets its burden on summary judgment.
In response, Zhu first argues there exists a triable issue of material fact related to Zhu’s fifteenth affirmative defense that there was no agreement by the parties to conduct the transaction by electronic means.
As an initial matter, in moving for summary judgment, a plaintiff is not required to disprove affirmative defenses. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 [“summary judgment law in this state no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own cause of action.”].) Nevertheless, Plaintiff provided evidence that Rise Ocean electronically executed and entered into a written business loan agreement with Plaintiff and that Zhu unconditionally agreed to guaranty in writing all of the obligations and duties of Rise Ocean under the Loan Agreement. (Otero Decl. ¶¶ 4-5.) The Loan Agreement states
“For purposes of the execution of this Agreement, electronic signatures and fax signatures shall be treated in all respects as original signatures. An electronic
signature may be used to execute this Agreement and any other related documents. For purposes of the execution of this Agreement and documents, Borrower’s electronic signature may be obtained through an automated transaction, computer program or other electronic process to show the electronic signature is attributable to Borrower and Borrower’s intent to sign such Agreements and documents. Borrower agrees that an electronic signature obtained through any such automated transaction, computer program or other electronic process has the same legal and morale effect as if Borrower signed such Agreements and documents in ink and will be deemed valid, authentic, enforceable and binding and that such electronically signed documents shall be deemed originals.”
(Otero Decl. ¶ 4, Exh. 1.) The evidence proffered shows that by signing the Loan Agreement and the Guaranty, Defendants agreed to conduct the transaction electronically.
Zhu next argues that Plaintiff has not met its burden to establish Zhu signed the Guaranty because Sandra Otero did not declare that she witnessed or has personal knowledge of Zhu executing the Loan Agreement or Guaranty. Sandra Otero provided the declaration in support of this motion. Otero is Plaintiff’s Chief Credit Officer and has been employed there since 2001. (Otero Decl., ¶ 2.)
Under California law, “[a]n electronic record or electronic signature is attributable to a person if it was the act of the person.” (Civ. Code, § 1633.9(a).) “The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” (Id.) Here, Otero attests that Plaintiff’s current policies and procedures regarding loan documents are to generally keep them in electronic form only. (Otero Decl. ¶ 3.) The loan agreements are created, signed, and kept electronically using the AdobeSign software. (Id.) Plaintiff verifies the identity of the signatory on behalf of the business and/or the guarantor using several methods. (Id.) These methods include requesting
and reviewing a current driver’s license, U.S. passport or some other form of government issued ID for all potential signors of the loan agreement and guarantor, verifying the date of birth, home residential address, and social security numbers provided by the potential signors, and conducting phone calls to confirm identifying information and/or requesting “selfie” pictures from the potential signors to match up with the government issued ID provided. (Id.) When Plaintiff has verified the identities of the loan applicant and guarantor, the loan agreement is electronically sent via AdobeSign to the email address provided by the loan applicant and guarantor. (Id.)
The AdobeSign software tracks when and from what e-mail address each party has been sent, viewed, and executed the loan agreement and provides a final audit report as the final page of the loan agreement with such information. (Id.) The fully executed loan agreement is stored on the AdobeSign server. (Id.) Otero reviewed the loan agreement at issue here and can confirm Plaintiff followed its policies and procedures in confirming the identity of the signatory. (Id.) Printed, photographic copies of the loan agreements and the associated pay histories are made and preserved as part of Plaintiff’s business records in the regular course of business, and by one bound by an employment obligation to so provide. (Id.)
Otero declares on or about 11/18/24, Rise Ocean electronically executed and entered into a written business loan agreement with Plaintiff via AdobeSign. (Otero Decl. ¶ 4.) Also on 11/18/24, Otero electronically executed the Loan Agreement on behalf of Plaintiff via AdobeSign, and Zhu agreed to guarantee in writing all the obligations and duties of Rise Ocean under the Loan Agreement. (Id., Exh. 1.)
Otero further declares that the loan documents and records are prepared by Plaintiff’s personnel in the ordinary course of its business of financing loan transactions. (Evid. Code, § 1271.) The records are made at or near the time of the acts, conditions, or events indicated in the records. (Otero Decl., ¶¶ 2-3.) Working for Plaintiff since 2001, Otero has become personally familiar with the manner in which Plaintiff’s records are prepared and
maintained. She relies on the records daily and has found them trustworthy. (Otero Decl., ¶2.)
Plaintiff proffered sufficient evidence to meet its initial burden to prove each element in its cause of action for breach of guaranty.
In response to Plaintiff’s evidence, Zhu offers no contrary evidence sufficient to create a material dispute. Accordingly, Zhu did not meet her shifted burden to show a triable issue of material fact.
Plaintiff’s motion for summary judgment is therefore GRANTED as to Defendant Xiaodong Zhu.
Plaintiff to give notice.
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