Motion,Ex Parte: Robert Elliott vs. Mechanics Bank, a California corporation, as the Successor-in-Interest to Rabobank, N.A., a California corporation, et al.

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                                1     NINA M. PATANE (SBN 157059)
                  ANDREA C. AVILA (SBN 193982)
            2     PATANE • GUMBERG • AVILA, LLP
                  Attorneys at Law
            3     4 Rossi Circle, Suite 231
                  Salinas, CA 93907
            4     Mailing: P.O. Box 3770, Salinas, CA 93912
                  Telephone: (831) 755-1461
            5     Facsimile: (831) 755-1477
                  Email: npatane@pglawfirm.com
            6             aavila@pglawfirm.com

            7     Attorneys for Plaintiff,
                  ROBERT T. ELLIOTT
            8

            9                     SUPERIOR COURT OF CALIFORNIA – COUNTY OF MONTEREY

           10                                              UNLIMITED JURISDICTION

           11      ROBERT T. ELLIOTT,                                        )   CASE NO. 21CV003944
                                                                             )
           12                                                                )    NOTICE OF MOTION AND MOTION BY
                                     Plaintiff,                              )    PLAINTIFF ROBERT T. ELLIOTT FOR
           13      vs.                                                       )    SUMMARY JUDGMENT
                                                                             )
           14                                                                )   Date:    September 30, 2022
                                     Defendants.                             )   Time:    8:30 a.m.
           15                                                                )   Dept.:   14
                                                                             )   Judge: Hon. Carrie M. Panetta
           16                                                                )
                                                                             )    Complaint Filed: December 21, 2021
           17                                                                )    Trial Date: Not Set
                                                                             )
           18                                                                )
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           21              TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF
           22     RECORD:
           23              PLEASE TAKE NOTICE that on September 30, 2022, at 8:30 a.m., or as soon thereafter
           24     as the matter may be heard, in Department 14 of the above-captioned Court, located at 1200 Aguajito
           25     Road, Monterey, CA 93940, Plaintiff ROBERT T. ELLIOTT (hereinafter referred to as “Plaintiff”)
           26     will, and hereby does, move the Court for an order granting summary judgment as to his first cause of
           27     action for Breach of Contract in favor of Plaintiff and against Defendant MECHANICS BANK, a
           28     California corporation, successor by merger to Rabobank, N.A. pursuant to California Code of Civil


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                  Notice of Motion and Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944
            1     Procedure sections 437c(f)(1), (n)(1) and (p)(1) and 1060.           This Motion for Summary Judgment
            2     (“Motion”) is made on the grounds that there is no triable issue of material fact on the issues of: 1)
            3     whether there is a contract to settle Plaintiff’s Judgment and Lien (“Settlement”); 2) whether Plaintiff
            4     had the ability to perform the Settlement but was excused from performing because of Defendant’s
            5     acts; 3) whether Defendant breached the Settlement by repudiating the contract before its
            6     performance; and 4) whether Plaintiff suffered damages because of Defendant’s breach.
            7              Because Plaintiff has established each element of the cause of action for Breach of
            8     Contract, there is no defense to said Cause of Action and there are no triable issues of material
            9     fact, Plaintiff is entitled to a judgment as a matter of law.
           10              The Motion is based upon this Notice, the attached Memorandum of Points and Authorities

           11     in support thereof, the Separate Statement of Undisputed Material Facts, the Declarations of

           12     Robert T. Elliott and Andrea C. Avila, and the files and records filed in this action, and any such

           13     documents and/or testimony the Court may properly receive at or before the hearing.

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           15                                                           Respectfully Submitted,
                  Dated: July 13, 2022                                  PATANE • GUMBERG • AVILA, LLP
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                                                               By:
           19                                                           ANDREA C. AVILA
                                                                        Attorney for Plaintiff
           20                                                           ROBERT T. ELLIOTT

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                  ______________________________________________________________________________
                  Notice of Motion and Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944