Bmw Financial Services Na, LLC vs. Heather Lynn Theisen

Motion for Summary Judgment/Adjudication

Cal. Super. - 4th Dist.June 19, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rebecca A. Caley, Bar No. 131997 Christopher M. Domin, Bar No. 273951 CALEY & ASSOCIATES A Professional Corporation 265 S. Randolph Avenue, Suite 270 Brea, California 92821-5777 714/529-1400 - Office 714/529-1515 - Facsimile rcaley@caleylaw.com File No. 2010-351 Attorneys for Plaintiff, BMW Financial Services SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER BMW FINANCIAL SERVICES NA, LLC, a Delaware limited liability company, as administered byitsROLLS ROYCE MOTOR CARS FINANCIAL, CASE NO. 30-2017-00926986-CU-BC-CJC Hon. Richard Lee Department C32 SERVICES Division, PLAINTIFF'S AMENDED MOTION Plaintiff, FOR SUMMARY JUDGMENT: OR. IN THE ALTERNATIVE. SUMMARY VS. ADJUDICATION OF ISSUES ON THE COMPLAINT HEATHER LYNN THEISEN aka DATE: February 7, 2019 HEATHER L. THEISEN aka TIME: 1:30 p.m. HEATHER THEISEN an individual DEPT: C32 and DOES 1 through 20, Inclusive, Reservation No.: 72753551 Defendants. Complaint Filed: 3/18/19 Trial Date: 7/9/18 INTRODUCTION. In June 2014, Defendant Heather Lynn Theisen (“Defendant”) purchased a Bentley Flying Spur (“Bentley”). Pursuant to the terms of the subject Retail Installment Contract (“Contract”), Defendant promised to make 60 consecutive monthly of $1,549.75 until the Contract was paid in full. The Contract was assigned to Plaintiff BMW Financial Services NA, LLC (“Plaintiff”). A little over two yearsafter entering FADOCS'SCTRY\2010351\MSJ 2-7-19\Amended MSN\Amended.Motion.wpd Amended Motion for Summary Judgment . 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 into the Contract, Defendant defaulted byfailing to make payment. In opposition to this Motion, Defendant will likely set forth her interactions with shady individuals regarding medical marijuana businesses and a promisedreality television show that collapsed after she purchased the Bentley. While the alleged details of Defendant’s dealings with these apparent individuals may appear to be disturbing, they are irrelevantto the legal question of whether Plaintiff is entitled to judgment on the straight forward causes of action against Defendant. As argued herein, Defendant has no defenses to Plaintiff's causes of action for Breach of Contact and Common Count and no triable issues to any material facts exist. REASON FOR AMENDED MOTION Plaintiff originally served its MSJ on March 21, 2018 and subsequently filed the MSJ with the Court. On April 16, 2018, Plaintiff’s counsel was notified by defense counselthat the Bentley had been recovered by the Clearwater Florida Police Department. Asa result of the recovery, the parties entered into a Stipulation to Continue the MSJ hearing, Mandatory Settlement Conference, and Trial so that the Bentley could sold and the parties be allowed time to discuss resolution. The MSJ hearing was continued from June 7, 2018 to February 7, 2019. Dueto the Bentley’s recovery and sale, Plaintiff will dismiss its third and fourth causes of action for Claim & Delivery & Conversion. However, although the Bentley has been sold, the parties have not come to a resolution of this matter. Asa result, Plaintiff hereby submits is Amended MS]for the Court’s consideration. INTRODUCTORY FACTS. A. Defendant Purchases the Bentley Flying Spur. The undisputed facts are as follows: On or about June 12, 2014,in St. Petersburg, Florida, Defendant, pursuant to a written Motor Vehicle Retail Installment Contract (“Contract”), purchased a 2008 Bentley Continental Flying Spur motor vehicle, Serial No. SCBBR93W98C052176. Despite representing on the face of the Contract that the Bentley was for personal use and not for hire, Defendant has since admitted to law FADOCS'SCTRY\2010\35 \MISJ 2-7-19\Amended MSMAmended.Motion.wpd Amended Motion for Summary Judgment . 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enforcement that she purchased the Bentley for use in a reality television show that failed to materialize. Pursuant to the terms of the Contract, Defendant agreed to pay for the purchase of the Bentley, the total sum of $92,985.00, payable in 60 consecutive monthly installment payments of $1,549.75 each, commencing July 27, 2014, until paid in full. Interest on the Agreement was payable at the rate of 9.59% per annum and Defendantidentified that the Bentley would be for her personal use. By executing the Contract, Defendant further agreed not to abandon the Bentley orsell it without Plaintiff’s permission. [See Undisputed Fact Nos. 1-7.] Plaintiff thereafter received by assignment from the Dealer, the Agreement, and pursuant to the terms of the Agreement, Plaintiff's lienholderinterest was perfected with the Florida Department of Motor Vehicles. [See Undisputed Fact No. 11.] B. Defendant Defaults Under the Contract. In March 2017,priorto the filing ofthis lawsuit, Defendant’s previous counsel sent Plaintiff a copy of a Police Case Report Summary from the Pinellas Park Police Department located in Pinellas Park, Florida. The Police Case Report Summary reflects Plaintiff’s admissions in March and April 2015 that she executed the Contract to purchase the Bentley. Defendant also informed officers for the Pinellas Park Police Department that she purchased the Bentley for use in a reality television show. When the television show failed to materialize, Defendant asked a third party to sell the Bentley for her. [See Undisputed Fact Nos. 12-16.] These two facts alleged by Defendant suggest that she misrepresented her financial condition at the time of purchasing the Bentley. On or about October 27, 2016, Defendant defaulted under the terms ofthe Contract by failing to makethe payment then due and owing. The Contract provided, among other things, that should Defendant default in any payment when due, Plaintiff shall have the right to take possession ofthe Bentley and to sell it ata private or public sale after legal notice requirements are satisfied. During this litigation, the Bentley was recovered by law enforcement and sold in a commercially reasonable manner, with the FADOCS\SCTRY\2010135 \MSJ 2-7-19\Amended MS)Amended.Motion.wpd Amended Motion for Summary Judgment. 10 11 12 i3 14 15 16 17 18 1° 20 21 22 23 24 25 26 27 28 auction sale proceeds being credited to Defendant’s Account. Plaintiff has performed all of the conditions, covenants and promises required under the terms ofthe Agreement. [See Undisputed Fact Nos. 19-28.] MEMORANDUM OF POINTS AND AUTHORITIES I. A Motion for Summary Judgment or Summary Adjudication is Appropriate When There are No Undisputed Facts. California Code ofCivil Procedure §437c authorizes entry of summaryjudgment “if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The Courts have held that this entitles the Court to summarily adjudicate any issue in a case that can be established beyond controversy, whether factual or legal. BeechAircraft Corp.v. Superior Court (1976) 61 Cal. App. 3d 501, 516. The materiality of an issue of fact is determined by the pleadings presented bythe parties. Anderson v. Hart Federal Savings and Loan Ass’n (1989) 208 Cal. App. 3d 202, 210. The Court has no discretion to refuse summaryjudgment where the evidence before the Court discloses no triable issues as to any material fact, and that the moving party is entitled to judgment as a matter of law. Krasley v. Superior Court (1980) 101 Cal. App. 3d 425, 432. A party may also move for summary adjudication as to one or more affirmative defenses, if that party contends that there is no affirmative defense thereto. [Code ofCivil Proc. §437c(f)(1).] This motion may be made by itself or as an alternative to a motion for summaryjudgment. [Code ofCivil Proc. §437¢()(2).] California Code of Civil Procedure §437¢c(p)(1) provides that for purposes of motions for summaryjudgment, a plaintiff has met his burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Thus, California Code of Civil Procedure §437c makesit clear that once a plaintiffhas met that burden,the burden shifts to the defendant to show thata triable issue of one or more material facts exists as to that cause ofaction or a defense thereto. The defendant may notrely upon the mere allegations FADOCS\SCTRY\2010\35 1WMSJ 27-19‘Amended MSRAmended.Motion.wpd Amended Motion for Summary Judgment . 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or denials ofits pleadings to show that a triable issue of material fact exists, but, instead, shall set forth the specific facts showing that a triable issue ofmaterial fact exists as to that cause of action or a defense thereto. By this motion and the accompanying Statement of Undisputed Facts, Plaintiff has established that no defenses to the causes of action and no triable issues to any material facts exist. II. Plaintiff is Entitled to Judgment As a Matter of Law on the First Cause of Action for Breach of Contract. Theessential elements of a cause of action for breach of contract are (1) the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant’s breach; (4) the resulting damage. (Reichert v. General Ins. Co. (1968) 68 Cal. 2d 822, 830.) This matter is straightforward. On June 12,2014, Defendant entered into the Contract for the purchase of the Bentley. Pursuant to the terms of the Contract, Defendant agreed to pay for the purchase ofthe Bentley,the total sum of $92,985.00, payable in 60 consecutive monthly installment payments of $1,549.75 each, commencing July 27, 2014, until paid in full. Pursuant to paragraph 16 of the Contract, if Defendant failed to make payment under the Contract, Plaintiffcould accelerate the Contract and demand that she pay all amounts under at once and pursue any and all of Plaintiff's remedies available under the law. Plaintiff thereafter received by assignment from the Dealer, the Agreement, and pursuant to the terms of the Agreement, Plaintiff's lienholder interest was perfected with the Florida Department of Motor Vehicles. [See Undisputed Fact Nos. 1-11.] On or about October 27, 2016, Defendant defaulted under the terms of the Agreement by failing to make the payment then due and owing. Plaintiff demanded payment and return of the Bentley from Defendant, but she failed and refused to pay the balance owing under the Contract or voluntarily return the Bentley. Defendant admitted to law enforcement that she alloweda third party to possess and attempt to sell the Bentley after a planned reality show failed to materialize. Due to Defendant’s default in payment, Plaintiff elected to accelerate all amounts owed and declare the entire unpaid balance FADOCS\SCTRY\2010351\MSJ 2-7-19\Amended MSJMmended.Motion.wpd Amended Motion for Summary Judgment . 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 immediately due and payable. [See Undisputed Fact Nos. 12-28] On April 16,2018,Plaintiff's counsel was informed by Defendant’s counsel that the Vehicle was recently recovered by the Clearwater Florida Police Department. Plaintiff subsequently regained possession of the Vehicle and it was sold in a commercially reasonable manner at a nationwide automotive auction for the sum of $37,000. [See Undisputed Fact Nos. 22-27.] Following the sale of the Vehicle, there is now due, owing and unpaid from Defendantthe principal sum of $13,333.41, plusinterest at the contractual rate of 9.59% from and after May 31, 2018,late fees is the sum of$1,000.37, repossession fees in the sum of $475.00, and storage fees in the sum of $180, plus accruing attorneys fees and costs. Additionally, by the terms ofthe Agreement, Defendant agreed to pay reasonableattorneys’ fees and court costs incurred in collecting any amount due under the Agreement. Plaintiff has retained the law offices ofCaley & Associates,licensed and practicing attorneysin the State ofCalifornia, for the purposesofinstituting and prosecuting this action and therefore, is entitled to recoverits reasonable attorneys’ fees and costs. [See Undisputed Fact Nos. 27- 30.] III. THE UNDISPUTED FACTS SUPPORT JUDGMENT IN PLAINTIFE’S FAVOR ON THE SECOND CAUSE OF ACTION FOR COMMON COUNT. A cause ofaction is stated for money had and received if the Defendant indebted to the Plaintiffin a certain sum “for money had and received by the Defendant for the use ofthe plaintiff.” See Pike v. Zadig (1915) 171 C. 273, 275. In the present matter, Defendant purchased a Bentley for the total sum of $92,985.00, payable in 60 consecutive monthly installment payments of $1,549.75 each, commencing July 27, 2014, until paid in full. As a result of Defendant entering into this Contract, Defendant became indebted to Plaintiffin the sum of$92,985.00 for money expended for the use and benefit ofDefendant by Plaintiff at Defendant’s instance and request. [See Undisputed Fact Nos. 30-42.] On or about October 27, 2016, Defendant defaulted under the terms of the FADOCS\SCTRY\2010351WSJ 2-7-19\Amended MSMmendedMotion.wpd 6 Amended Motion for Summary Judgment. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Agreement by failing to make the payment then due and owing. Following the recovery and sale ofthe Vehicle, there is now due, owing and unpaid from Defendantthe principal sum of $13,333.41, plus interest at the contractual rate of 9.59% from and after May 31, 2018,late fees is the sum of $1,000.37, repossession fees in the sum of $475.00, and storage fees in the sum of $180, plus accruing attorneys fees and costs. [See Undisputed Fact Nos. 43-61.] Plaintiff respectfully requests that this Court grant its Motion for Summary Judgment, or in the alternative, Summary Adjudication,as to its Common Count cause of action. VI. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Court grantits Motion for Summary Judgmentasto its causes of action in its Complaint for Breach of Contract and Common Count; or, in the alternative, that summary adjudication be entered in favor of Plaintiff against Defendant. DATED: November ZO, 2018 CALEY & ASSOCIATES ALeCorpo30) A Rebecca A Caley Christopher M. Domin Attorneys for Plaintiff FADOCS'SCTRY\2010\35 [\MSJ 2-7-19'imended MSN\AmendedMotionwpd Amended Motion for Summary Judgment. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOQF OF SERVICE I, Carolyn Byrne, declare as follows: 1. I'am employed in the County of Orange, State of California and am over the age of 18 and not a party to the within action. My business address is: 265 S. Randolph Ave, Ste. 270, Brea, CA 92821. 2. On__ ///20 , 2018, I served the foregoing document described as: PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT; OR. IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES ON THE COMPLAINT on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Attorney for Defendant, Heather Lynn Theisen: Stuart J. Wald, Esq. 36154 Coffee Tree Place Murrieta, CA 92562 (310) 429-3354 stuart.wald@gmail.com BY MAIL Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with U.S. Postal Service on that same day with postage thereon fully prepared at Brea, California in the ordinarycourse ofbusiness. Iam aware that on motion ofthe party served, service is presumed invalid if postal cancellation date orpostage meter date is more than one day after date of deposit for mailing in affidavit. X BY OVERNIGHT MAIL I caused such documents to be served via overnight mail to the office of the addressee. BYFAX I caused such documents to be served via facsimile transmitting to heoffice of the addressee. BY PERSONAL SERVICE I caused such envelope to be delivered by hand to the office of the addressee. XX STATE FEDERAL I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct and if called upon, I could and would competently testify thereto. Executedon 7/7/20 , 2018, at Brea, California. (Lozwe Carolyn Bye 8 FADOCS\SCTRY\2010\351\MS) 2-7-19\Amended MSPOS-Amended MSJ-gjb wpd PROOF OF SERVICE