Motion For Summary AdjudicationMotionCal. Super. - 1st Dist.July 20, 2018D . . La w »c 10 01 La ur el St . St e, C, Sa n Ca rl os , CA 94 07 0 © 0 J O N Un BA W N = ND N N N N N N N N mm e m e m e m e m e m e m e m c o NN O N Wn Rr W N D = O 0 0 S R E W I N D --= Oo Electronically by Supenor Court of California, County of San Mateo ON 6/1/2020 By Is/ Marcela Enriquez FAUSTO LAW, P.C. Deputy Clerk Mario Fausto (SBN: 205258) 1001 Laurel Street, Suite C San Carlos, CA 94070 Tel: (650) 948-6114 Fax: (650) 947-0770 Email: mfausto @fausto-law.com Attorney for Mariana Valencia SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO UNLIMITED CIVIL MARIANA VALENCIA, AN Case No.: 18CIV03787 INDIVIDUAL oo NOTICE OF MOTION & Plaintiff, MOTION FOR SUMMARY w ADJUDICATION Date: August 14, 2020 ROGELIO GUIZAR, AN INDIVIDUAL, FRIDA'S COLIBRI RESTAURANT AND BAR, LLC, ET AL. Time: 1:30 p.m. Dept: Law and Motion Defendant(s). Trial Date: September 14, 2020 N N N N N e N e N N N e N N N r TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on August 14, 2020, at 1:30 p.m. in the Law and Motion Department of the County of San Mateo Superior Court of the State of California located at 400 County Center, Redwood City, CA 94063, Plaintiff Mariana Valencia will and hereby does, move this court pursuant to California Code of Civil Procedure 473c for an order granting Summary Adjudication in favor of Plaintiff on the 5" Cause of Action in her First Amended Complaint against Defendant Frida’s Colibri Restaurant and Bar, LLC, a California limited liability company ( “Frida’s”). 1 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al. 10 01 La ur el St . St e, C, Sa n Ca rl os , CA 94 07 0 D . . La w »c © 0 J O N Un BA W N = ND N N N N N N N N mm e m e m e m e m e m e m e m c o NN O N Wn Rr W N D = O 0 0 S R E W I N D --= Oo This motion is made pursuant to California Code of Civil Procedure Section 437c on the ground that there is not triable issue of material fact in determining Frida’s in breach of its oral contract with Plaintiff. Plaintiff is entitled to judgment as a matter of law because the following cause of action can and should be decided by the Court in favor of Plaintiff, thereby establishing that Frida’s is liable to Plaintiff. As explained herein, there was a valid and enforceable contract whereby Frida’s offered to pay Plaintiff $80,000.00 to purchase her 15% membership interest in Frida’s, subject only to the condition precedent of Frida’s first receiving a SBA loan. That SBA loan did fund, and thus Frida’s was obligated to perform under the contract. Plaintiff was ready, willing and able to tender her 15% interest in exchange for the $80,000 payment, but Frida’s has refused to honor the parties’ contract. As there is no genuine issue of material fact that would preclude summary adjudication, this Court should grant Plaintiff’s motion and enter judgment in favor of Plaintiff’s Fifth Cause of Action for Breach of Contract and against Frida’s. This Motion is based on this Notice, the Memorandum of Points and Authorities in support of this motion; the Declarations of Mariana Valencia and Mario Fausto, including the evidence authenticated thereby, the Court’s file in this matter and on such oral and documentary evidence and/or argument as may be presented at the hearing on this Motion. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This case could not be more straightforward. The evidence establishes conclusively that there was a valid and enforceable contract whereby Frida’s, through its authorized agent, agreed to pay Plaintiff $80,000.00 in exchange for her 15% membership interest in Frida’s, subject only to 2 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al. 10 01 La ur el St . St e, C, Sa n Ca rl os , CA 94 07 0 D . . La w »c © 0 J O N Un BA W N = ND N N N N N N N N mm e m e m e m e m e m e m e m c o NN O N Wn Rr W N D = O 0 0 S R E W I N D --= Oo the condition precedent of Frida’s first receiving a SBA loan. As the SBA loan did fund, Frida’s was obligated to perform under the parties’ contract. However, it has refused to purchase Plaintiff’s membership interest for $80,000, as the parties had agreed. Given the clear breach of contract, this motion should be granted. Frida’s owns and operates a Mexican food restaurant known as Frida’s Mexican Cuisine which is located in Redwood City, CA. [Declaration of Mario Fausto (“Fausto Decl.”), 42, Exhibit A, 2, Page 1]. Defendant Alma Guizar is the duly appointed manager of Frida’s and owns 70% of the membership interest in Frida’s. [Fausto Decl., 2, Exhibit A, {q2, 4, Pages 1-2]. Defendant Alma Guizar delegated and assigned the management authority to act on behalf of Frida’s to Defendant Rogelio Guizar as of July 1, 2016. [Fausto Decl., 2, Exhibit A, {4, Page 2; Exhibit B, 1-2, Pages 1-2]. As of July 1, 2016, Defendant Rogelio Guizar acted as an authorized agent of Frida’s with the authority to act on behalf of Frida’s, including to enter into contracts, maintain custody and control of Frida’s bank and merchant accounts and manage the day-to-day restaurant operations. [Fausto Decl. 2, Exhibit A, {4, Page 2]. On October 27, 2017, Defendant Rogelio Guizar agreed to pay $80,000.00 for Plaintift’s 15% membership interest, subject only to the condition precedent of Frida’s first receiving a SBA loan. [Declaration Mariana Valencia (“Plaintiff Decl.””) 4; Fausto Decl., 5, Exhibit D, RFA No. 18-19]. On November 20, 2017, Defendant Rogelio informed Plaintiff that Frida’s SBA Loan had been declined and would not purchase Plaintiff’s 15% membership interest. [Plaintiff Decl., 6, Page 2; Fausto Decl., {5, Exhibit D, RFA No. 20]. 3 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al. D . . La w »c 10 01 La ur el St . St e, C, Sa n Ca rl os , CA 94 07 0 © 0 J O N Un BA W N = ND N N N N N N N N mm e m e m e m e m e m e m e m c o NN O N Wn Rr W N D = O 0 0 S R E W I N D --= Oo Plaintiff was willing and ready to relinquish her 15% membership interest upon receipt of the $80,000.00. [Plaintiff Decl., 5, Page 2]. Frida’s, however, did receive the SBA Loan on August 8, 2018. [Fausto Decl., 4, Exhibit C, Pages 7-9; {7, Exhibit E, RFA No. 34; Fausto Decl., {[7, Exhibit F, RFA No. 34; Fausto Decl., To]. Plaintiff requests that the Court grant summary judgment on Plaintiff’s 5" Cause of Action against Frida’s and thereby establishing that Frida’s is liable for the full extent of Plaintiff’s damages and attorney’s fees. I. STATEMENT OF UNDISPUTED FACTS Frida’s is California limited liability company that runs a Mexican restaurant in Redwood City, CA. [Fausto Decl., 2, Exhibit A, q2, Page 1]. Plaintiff is a member of the LLC holding a 15% membership interest. [Plaintiff Decl., 3]. On October 27, 2017, Frida’s, through Defendants Rogelio Guizar and Alma Guizar, as members, officers and managers, offered to purchase Plaintiff’s 15% membership interest for $80,000.00, subject only to the condition precedent of Frida’s first receiving a SBA loan. [Plaintiff’s Separate Statement of Undisputed Facts #1-4, (“PSSUDF”)] Plaintiff relied on this promise. [Plaintiff Decl., {5, Page 2]. On November 20, 2017, Defendant Rogelio Guizar told Plaintiff that Frida’s SBA Loan application had been denied. [PSSUDF #8]. This was a material false statement. Plaintiff sought discovery in this action. On August 21, 2019, copies of Frida’s Bank Statements were produced in response to a subpoena issued in this action. [Fausto Decl., 4, Exhibit C]. The bank statements demonstrate that on August 8, 2018 the amount of $238,397.74 was deposited by First Home Bank, a Small Business Administration lender. In fact, Frida’s bank 4 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al. D . . La w »c 10 01 La ur el St . St e, C, Sa n Ca rl os , CA 94 07 0 © 0 J O N Un BA W N = ND N N N N N N N N mm e m e m e m e m e m e m e m c o NN O N Wn Rr W N D = O 0 0 S R E W I N D --= Oo statements included entries showing payment to First Home Bank as: “Business to Business ACH Debit - First Home Bank Sba Ln Pmt Frida’s C Frida’s Colibri Rest.” [Fausto Decl., 4, Exhibit C, Pages 7-9; Fausto Decl., 6, Exhibit E, RFA No. 34; Fausto Decl., {7, Exhibit F, RFA No. 34; PSSUDF #9]. On May 5, 2019, Defendant Rogelio Guizar, acting manager and proxy for Defendant Alma Guizar, manager and 70% member of Frida’s, in responding to Plaintiff’s First Set of Request for Admissions, admitted: (1) That on October 27, 2017, Frida’s promised to pay Plaintiff $80,000.00 subject only to the condition precedent of Frida’s first receiving a SBA loan; [PSSUDF #4] (2) that Frida’s and its members applied for the SBA Loan; [PSSUDF #6] and (3) that on November 20, 2017, he informed Plaintiff that Frida’s had been denied the SBA Loan. [PSSUDF #8]. On January 2, 2019, Defendant Alma Guizar responded to Plaintiff’s First Set of Request for Admissions admitting that Frida’s had been approved and received the SBA Loan. [PSSUDF #10; Fausto Decl., 6, Exhibit E, RFA No. 34; Fausto Decl., {[7, Exhibit F, RFA No. 34]. II. ARGUMENT A. SUMMARY JUDGMENT IS APPROPRIATE WHEN NO GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO PARTICULAR FACTS AND/OR ISSUES A motion for summary adjudication is governed by §437c(f) and (t). Summary adjudication under CCP §437c(f)(1) provides that the court should grant the motion if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Paramount Petroleum Corp. v Superior Court (2014) 227 CA4th 226, 240) (the legislature intended subsection (f) to mirror subsection (a) and authorize summary adjudication 5 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al. 10 01 La ur el St . St e, C, Sa n Ca rl os , CA 94 07 0 D . . La w »c © 0 J O N Un BA W N = ND N N N N N N N N mm e m e m e m e m e m e m e m c o NN O N Wn Rr W N D = O 0 0 S R E W I N D --= Oo when plaintiff proves there is no defense to a cause of action by establishing every element of that cause of action. A motion for summary judgment must be granted if all the papers submitted show that there is "no triable issue as to any material fact." The decision is not discretionary; if no triable issue of material fact exists, the court must grant the motion. CCP §437c(c). See, e.g., Fireman's Fund Ins. Co. v Fireboard Corp. (1986) 182 CA3d 462 (motions for summary judgment granted in favor of excess insurance carriers when no triable issue as to material fact existed; asbestos- related injury exclusion clauses were clear and unambiguous). Summary adjudication under CCP §437c(f) is available to completely dispose of any one or more causes of action, affirmative defenses, punitive damage claims, or issues of legal duty. There is a triable issue of material fact if, and only if, the admissible evidence allows a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Aguilar v Atlantic Richfield Co., supra. To determine whether the moving papers show that there is no triable issue as to any material fact, the court must consider (CCP §437¢(c)) If the plaintiff satisfies its initial burden, the burden shifts to the defendant to show the existence of any triable issues of material fact or establish a defense to the cause of action. Cal. Civ. Proc. Code § 437¢c(p)(1). “The defendant . . . shall not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or defense thereto.” Id. B. JUDGMENT SHOULD BE ENTERED IN FAVOR OF PLAINTIFF ON THE BREACH OF ORAL AGREEMENT FOR THE PAYMENT OF $80,000.00 UPON THE RECEIPT OF THE SBA LOAN. 6 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al. D . . La w »c 10 01 La ur el St . St e, C, Sa n Ca rl os , CA 94 07 0 OO o o 39 a Ln BA W D = ND N N N N N N N N mm e m e m e m e m e m e m e m c o NN O N Wn Rr W N D = O 0 0 S R E W I N D --= Oo Plaintiff is entitled to a judgment on its breach of oral contract where the undisputed evidence establishes that: (1) the plaintiff and defendant entered into a contract (written or oral); (2) the plaintiff did all, or substantially all, of the significant things that the contract required her to do or relied on acts of the defendant; (3) that the defendant failed to do something that the contract required it to do or a condition precedent was satisfied; (4) that the plaintiff was harmed; (6) that the defendant breach of contract was a substantial factor in causing plaintiff’s harm. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388; Acoustics, supra, 14 Cal. App.4th at p. 913.) A contract may be written or oral. Here, the parties entered into a valid oral contract. On October 27, 2017, Frida’s promised to purchase Plaintiff’s 15% membership interest for $80,000.00, subject only to the condition precedent of Frida’s first receiving a SBA loan. Plaintiff relied on the promise and was ready and willing to relinquish her membership interest. [Plaintiff Decl., {5, Page 2; PSSUDF #5] On November 20, 2017, Defendant Rogelio Guizar told Plaintiff that Frida’s SBA Loan had been denied. [Plaintiff Decl., 46, Page 2; PSSUDF #8]. On May 5, 2019, Defendant Rogelio Guizar in response to Plaintiff’s First Set of Request for Admission (“RFA Rogelio”) admitted that Frida’s applied for the SBA Loan but had been denied. In RFA Rogelio No. 17, he admitted that he made a promise. [PSSUDF #4] 14 | REQUEST FOR ADMISSION No. 17 15 || Admit that on October 27, 2017 YOU agreed to pay Plaintiff $80,000.00 for the repurchase 16 || of Plaintiffs membership interest in the Company. 17 {| RESPONSE TO REQUEST FOR ADMISSION No. 17: Admit in part. On October 27, 18 || 2017, this responding Defendant offered to pay Plaintiff $80,000.00 for the repurchase of 19 || Plaintiffs membership interest in the Company. Except as expressly so admitted, this 20 (| Request is denied. 7 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al. OO o o 39 a Ln BA W D = E e e e e e Ln RA W N = O 10 01 La ur el St . St e, C, Sa n Ca rl os , CA 94 07 0 Fa us to La w N O R D R N N D R m m em o o ~ J AN wh IA N Ww N o p- {a \ O c o ~ J AN In RFA Rogelio No. 18, he admitted that Frida’s and its members applied for the SBA Loan. [PSSUDF #6] 21 || REQUEST FOR ADMISSION No. 18 22 || Admit that on November 20, 2017 YOU stated to Plaintiff that the Company and its members 23 || applied for a small business administration loan. 24 | RESPONSE TO REQUEST FOR ADMISSION No. 18: Admit in part. This responding 25 || Defendant stated to Plaintiff on November 20, 2017 that the Company’s application for a 26 || small business administration loan had been denied. Except as expressly so admitted, this 27 || Request is denied. 28 In RFA Rogelio No. 19, he admitted that Frida’s intended to buy Plaintiff’s 15% membership interest, subject only to the condition precedent of Frida’s first receiving a SBA loan. [PSSUDF #4] 1 || REQUEST FOR ADMISSION No. 19 Admit that YOU informed Plaintiff that YOU intended to use the loan proceeds to pay Plaintiff the $80,000.00 YOU promised. RESPONSE TO REQUEST FOR ADMISSION No. 19. Admit in part. This responding Defendant informed Plaintiff of the intention to pay Plaintiff the promised $80,000.00 out of the proceeds of the SBA loan if and when the SBA loan was approved. ~~ O N nn BA W N Except as expressly so admitted, this Request is denied. Finally, in response to RFA Rogelio No. 20, he admitted that Frida’s SBA Loan had been denied. [PSSUDF #8]. On August 21, 2019, in response to a Deposition Subpoena for Production of Business Records served on Frida’s Wells Fargo Bank, Plaintiff confirmed that Frida’s received the SBA Loan on August 8, 2018. In fact, the payments made by Frida’s to the First Home Bank were reported on Frida’s bank statements as: “Business to Business ACH Debit - First Home Bank Sba Ln Pmt Frida’s C Frida’s Colibri Rest.” [Fausto Decl., {4, Exhibit C, Pages 7-9; PSSUDF #9 and #10]. 8 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al. 10 01 La ur el St . St e, C, Sa n Ca rl os , CA 94 07 0 D . . La w »c OO o o 39 a Ln BA W D = ND N N N N N N N N mm e m e m e m e m e m e m e m c o NN O N Wn Rr W N D = O 0 0 S R E W I N D --= Oo On July 25, 2019, during the deposition of Plaintiff, Mariana Valencia, Frida’s legal counsel, Mr. Michael Adams, confirmed that Frida’s was denied and had not received the SBA Loan. [Fausto Decl., {8; Plaintiff Decl., 10]. On or about December 2019, Frida’s legal counsel, Mr. Adams admitted that Frida’s had received the SBA Loan. [Fausto Decl., 9]. On January 2, 2020, Defendant Alma Guizar responded to Plaintiffs Request for Admissions (“RFA Alma”) admitting that Frida’s SBA Loan had been approved and funded. [PSSUDF #10]. In RFA Alma No. 34, she admits that the SBA Loan was approved and received, responding: 27 || REQUEST FOR ADMISSION No. 34 28 1 Admit that YOU were approved and received the SBA Loan. | 1 | RESPONSE TO REQUEST FOR ADMISSION NO. 34: Admit. [Fausto Decl., 6, Exhibit E, RFA No. 34!; Fausto Decl., 7, Exhibit F, RFA No. 34; PSSUDF #10]. Frida’s breached its contract after it failed to fulfill its obligations once the condition precedent was met. Frida’s has no excuse why it failed to perform. This shifts the burden on the summary judgment motion to Frida’s to demonstrate a triable material issue as to a valid legal defense. ! Defendant Alma Guizar in her responses to Plaintiff’s Request for Admissions did not include the corresponding requested admission as required under the California Civil Discovery Act. A copy of Plaintiff’s First Set of Request for Admissions propounded on Defendant Alma Guizar is attached to Fausto Decl., 7, Exhibit F. 9 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al. 1 Frida’s and its representatives actions give rise to the Fifth Cause of Action in the 2 Complaint and there is no triable issue of material fact that Frida’s offered and entered into an oral 3 contract with Plaintiff, subject only to the condition precedent of Frida’s first receiving a SBA ) loan, which was satisfied when the SBA Loan was funded, but subsequently, after each of the 6 Defendants Rogelio Guizar and Alma Guizar, acting on behalf of Frida’s, admitted that Frida’s 7 [I SBA Loan was approved and funded, Frida’s continues to refuse to perform. 8 IIL. CONCLUSION ? For the foregoing reasons, Plaintiff respectfully request that the Court grant this motion for , summary judgment and enter judgment in favor of Plaintiff and against Frida’s. 3 12 Dated: June/ , 2020 3 £ 13 53 2816 17 18 19 20 21 22 23 24 25 26 27 28 10 Plaintiff’s Motion for Summary Adjudication Valencia vs. Rogelio Guizar et. al.
