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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 ) SEPARATE STATEMENT OF
Plaintiff, ) UNDISPUTED MATERIAL FACTS IN
13 vs. ) SUPPORT OF MOTION BY PLAINTIFF
) ROBERT T. ELLIOTT FOR SUMMARY
14 MECHANICS BANK, a California ) JUDGMENT
corporation, as the Successor-in-Interest to )
15 Rabobank, N.A.; and DOES 1 – 40, inclusive, ) Date: September 30, 2022
) Time: 8:30 a.m.
16 ) Dept.: 14
Defendants. ) Judge: Hon. Carrie M. Panetta
17 )
) Complaint Filed: December 21, 2021
18 ) Trial Date: Not Set
)
19 )
)
20
21 Pursuant to Code of Civil Procedure §437c(b) and C.R.C. Rule 3.1350, Plaintiff ROBERT
22 T. ELLIOTT (“Plaintiff”) hereby submits the following Separate Statement of Undisputed
23 Material Facts in Support of Plaintiff’s Motion for Summary Judgment, in favor of Plaintiff and
24 against Defendant MECHANICS BANK, a California corporation, (“MECHANICS BANK”)
25 successor-by merger to RABOBANK, N.A. (“RABOBANK”), (MECHANICS BANK,
26 RABOBANK and DOES 1 – 40, inclusive are collectively referred to as “Defendants”).
27 ///
28 ///
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
ISSUE NO. 1: There is no triable issue of material fact concerning the parties’ contract to settle
1 Plaintiff’s Judgment and Lien.
2 ISSUE NO. 2: There is no triable issue that Plaintiff was excused from performing the
Settlement based on Rabobank’s acts.
3
ISSUE NO. 3: There is no triable issue concerning Rabobank’s breach of the Settlement.
4
ISSUE NO. 4: There is no triable issue concerning Plaintiff’s damages resulting from of
5 Defendant’s breach.
6
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND
No. MATERIAL FACTS AND SUPPORTING EVIDENCE
7
SUPPORTING EVIDENCE
8 1. MR. ELLIOTT is one of approximately
twelve former owners of Premium Fresh.
9 (“Premium Fresh”).
10 Declaration of Robert Elliott, “Elliott
Decl.” ¶ 2.
11
12 2. Premium Fresh obtained three loans from
Community Bank to fund its business
13 operations. On or about February 1, 2006,
RABOBANK became the successor-in-
14 interest by merger to Community Bank.
15 On or about August 31, 2019,
MECHANICS BANK, became the
16 successor-in-interest by merger to
RABOBANK. (Collectively, the first,
17 second and third loans are “the Loans”.)
18 Elliott Decl., ¶ 3.
19
3. The first loan [#190012401] was issued on
20 November 5, 2002 in the sum of $750,000.
Premium Fresh, MR. ELLIOTT and the
21 remaining owners were listed as co-
borrowers on this loan. The second loan [#
22
78186840-09] was an SBA loan issued on
23 October 12, 2004 in the sum of $1,900,000.
The third loan [#160064291] was issued on
24 October 13, 2004 in the sum of $1,000,000.
MR. ELLIOTT and other Premium Fresh
25 owners personally guaranteed the second
and third loans. (Collectively, the first,
26
second and third loans are “the Loans”.)
27
Elliott Decl., ¶ 4.
28
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1
4. Premium Fresh defaulted on each of the
2 Loans.
3 Elliott Decl., ¶ 5.
4 5. On January 5, 2007, RABOBANK filed a
Complaint related to the defaulted Loans
5 against Premium Fresh and the
guarantors/borrowers including MR.
6
ELLIOTT (collectively, the “Debtors”)
7
Elliott Decl., ¶ 6.
8
6. On December 14, 2007, a Notice of
9 Attachment was recorded against the
Debtors including MR. ELLIOTT imposing
10
a lien against their real property.
11
Elliott Decl., ¶ 7 and Exhibit 1 attached
12 thereto.
13 7. On July 8, 2008, a Stipulation for Entry of
14 Judgment (“Stipulation for Judgment”) was
entered between RABOBANK and the
15 Debtors. The Stipulation provided that MR.
ELLIOTT and certain other Debtors were
16 jointly and severally liable for the principal
sum of $2,983,552.72; interest of
17 $315,087.69; late charges of $29,107.30
18 and costs of $26,623.62
19 Elliott Decl., ¶ 8 and Exhibit 2 attached
thereto.
20
8. MR. ELLIOTT further stipulated to
21
transfer certain collateral owned by
22 Premium Fresh to RABOBANK.
23 Elliott Decl., ¶ 8 and Exhibit2 attached
thereto..
24
9. On July 8, 2008, a Judgment consistent
25
with the Stipulation for Judgment was
26 entered in favor of RABOBANK and
against the Debtors.
27
Elliott Decl., ¶ 9 and Exhibit 3 attached
28 thereto.
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1
2 10. The Judgment was recorded in Monterey
County on July 17, 2008.
3
Elliott Decl., ¶ 9 and Exhibit 3 attached
4
thereto..
5
11. Several Debtors filed bankruptcy and the
6 Judgment debt was discharged as to those
individuals and entities.
7
8 Elliott Decl., ¶ 9.
9 12. RABOBANK thereafter seized collateral
used to secure the Loans (“Collateral”).
10 The Collateral appraised on August 20,
2004 at a value of $2,083,050 with an
11 estimated liquidation value of $1,353,983.
12 On March 4, 2009, the Collateral was
liquidated at auction for the sum of
13 $121,318.75.
14 Elliott Decl., ¶ 10 and Exhibit 4 attached
thereto.
15
16 13. On April 2, 2018, RABOBANK filed a
Renewal of the Judgment (“Renewed
17 Judgment”).
18 Elliott Decl., ¶ 11 and Exhibit 5 attached
thereto.
19
20 14. On May 14, 2018, RABOBANK recorded
an Abstract of Judgment against the
21 Debtors including MR. ELLIOTT.
22 Elliott Decl., ¶ 12 and Exhibit 6 attached
23 thereto.
24 15. MR. ELLIOTT commenced efforts to settle
his debt with RABOBANK by contacting
25 local bank representatives at the Salinas
branch. In early summer of 2013, MR.
26
ELLIOTT learned that RABOBANK’s
27 Special Assets Department was located in
Fresno, California.
28
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1 Elliott Decl., ¶ 13.
2 16. MR. ELLIOTT conducted research to
locate a senior Special Assets
3 representative.
4
Elliott Decl., ¶ 14.
5
17. MR. ELLIOTT’S research yielded
6 RABOBANK’s Senior Vice-President and
Director of Special Assets, Robert Bennett.
7
8 Elliott Decl., ¶ 14.
9 18. Sometime before August 8, 2013, MR.
ELLIOTT met with Mr. Bennett in Fresno,
10 California to discuss resolution of his debt.
11 Elliott Decl., ¶ 15.
12
19. On information and belief, MR. ELLIOTT
13 provided his first set of financials during
this meeting.
14
Elliott Decl., ¶ 15.
15
16 20. On August 21, 2013, MR. ELLIOTT sent
an email to Mr. Bennett attaching his
17 financials and stating he would be “there
about 3:30 today.”
18
19 Elliott Decl., ¶ 16 and Exhibit7 attached
thereto.
20
21. MR. ELLIOTT met with Mr. Bennett in
21 RABOBANK’s Fresno offices and
expressed a desire to amicably resolve his
22 (MR. ELLIOTT’s) Judgment and Lien.
23
Elliott Decl., ¶ 16.
24
22. In late August or early September 2013,
25 MR. ELLIOTT followed up with Mr.
Bennett and was referred to
26
RABOBANK’s Vice President and Senior
27 Special Assets Officer, Frank Oliver to
continue settlement discussions.
28
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1 Elliott Decl., ¶ 17.
2 23. Mr. Oliver was also located in Defendant’s
Fresno offices.
3
Elliott Decl., ¶ 17.
4
5 24. Between mid-September and September
27, 2013, MR. ELLIOTT hand carried a
6 written offer to settle his Judgment and lien
to Mr. Oliver.
7
8 Elliott Decl., ¶ 18.
9 25. Mr. Oliver did not accept his proposal.
10 Elliott Decl., ¶ 18.
11
26. On September 27, 2013, MR. ELLIOTT
12 sent an updated financial statement to Mr.
Oliver which was immediately
13 acknowledged via email.
14 Elliott Decl., ¶ 19 and Exhibit 8 attached
thereto.
15
16 27. On January 22, 2014 at 11:41 a.m., MR.
ELLIOTT sent an email to Mr. Oliver and
17 Mr. Bennett regarding the “Premium Fresh
Judgment.” MR. ELLIOTT attached a
18 separate letter articulating a written
19 settlement proposal. MR. ELLIOTT’S
letter stated that he was “reaching out again
20 to try to settle the judgment against me and
my assets.” Specifically, he proposed: “I
21 will pay $140,000.00 dollars. ” He stated
that he would “need 18 months to pay the
22 total amount” and that installments would
23 be made as follows: $30,000.00 on April 1st
2014; $40,000.00 on September 1st 2014;
24 $30,000.00 on April 1st 2015; and
$40,000.00 on September 1st 2015. MR.
25 ELLIOTT also offered commercial field
trucks as collateral to secure his payment
26 obligation (collectively, the “Settlement
27 Offer”).
28 Elliott Decl., ¶ 20 and Exhibit 9 attached
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1 thereto.
2 28. MR. ELLIOTT’S Settlement Offer was
discussed internally by email between
3 RABOBANK’S senior officers, Mr.
Bennett and Mr. Oliver. Four minutes after
4
receiving the Settlement Offer, Mr. Bennett
5 emailed Mr. Oliver with the simple
question, “Your thoughts?” Mr. Oliver
6 replied that “$140k is better than the 50k”,
MR. ELLIOTT’S previous offer. Mr.
7 Oliver expressed concern that acceptance
8 of the Settlement Offer would require
additional paperwork and RABOBANK
9 “does not receive much if any of the
settlement proceeds.” Mr. Oliver also
10 expressed concern that “the SBA and
Central Coast CDA would share in our
11 [RABOBANK’S] loss.” However, Mr.
12 Oliver stated that assuming there was a
settlement, he expected MR. ELLIOTT to
13 bring other judgment debtors to the
settlement table to “make this recovery
14 much more substantial.” Mr. Bennett
responded to Mr. Oliver minutes later
15 stating, “I agree [with] your points, but am
16 willing to go with the $140K.”
17 Declaration of Andrea C. Avila, ¶ 3 and
Exhibit 1 attached hereto.
18
29. The next day, Mr. Oliver replied to MR.
19
ELLIOTT’s email accepting the offer and
20 stating:
21 We are willing to accept the $140,000 as
payment to release the Rabobank Lien. I
22 would suggest that you begin building a
savings account… I have numerous other
23
credit files that have a higher priority. This
24 is going to require some additional review
and work with both the SBA and Central
25 Coast SBDC to determine who we will give
your payment to. In the interim I will see if
26 there is another SAM Officer that may have
27 the time to work on this. [Emphasis added.]
28 Elliott Decl., ¶ 21 and Exhibit 10 attached
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1 thereto.
2 30. On January 24, 2014, MR. ELLIOTT
emailed Mr. Oliver requesting follow up
3 instructions and thanking Mr. Oliver for
“acceptance of my Premium Fresh
4
[Settlement] proposal and lean (sic)
5 release.” MR. ELLIOTT copied his
bookkeeper, Martha Sisneros, to ensure she
6 was apprised of anticipated payment
instructions.
7
8 Elliott Decl.,¶ 22 and Exhibit 11 attached
thereto.
9
31. ELLIOTT had over $150,000 in accessible
10 cash to commence his payments.
11 Elliott Decl., ¶ 22.
12
32. MR. ELLIOTT telephoned Mr. Oliver on
13 several occasions between January and
March 25, 2014 to request the contact
14 information of his new Special Assets
Officer.
15
16 Elliott Decl., ¶ 23.
17 33. On or about March 25, 2014, Mr. Oliver
and MR. ELLIOTT had a telephone call
18 during which Mr. Oliver provided MR.
ELLIOTT his new contact, Vice President
19
– Senior Special Assets Officer, Kendall
20 Bates.
21 Elliott Decl., ¶ 24.
22 34. On March 26, 2014, and using the subject
23 line “Settlement”, MR. ELLIOTT sent an
email to Mr. Oliver requesting Mr. Bates’
24 contact information “in reference to the
Premium Settlement.”
25
Elliott Decl., ¶ 25 and Exhibit 12 attached
26 thereto.
27
35. Mr. Oliver forwarded the aforementioned
28 email to Mr. Bates later that same day
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1 instructing Mr. Bates to respond to MR.
ELLIOTT.
2
Elliott Decl., ¶ 25 and Exhibit 12 attached
3 thereto.
4
36. The next day, Mr. Bates sent an email to
5 MR. ELLIOTT acknowledging MR.
ELLIOTT’s desire to reach him [Mr. Bates]
6 regarding the “Premium Settlement”. Mr.
Bates stated he may not be of much help
7 because he did not recognize the reference
8 of [“Premium Settlement”]. Mr. Bates
nevertheless extended his contact
9 information.
10 Elliott Decl., ¶ 26 and Exhibit 13 attached
thereto.
11
12 37. On March 28, 2014, MR. ELLIOTT sent an
email to Mr. Bates regarding the “Premium
13 Fresh Judgment.” MR. ELLIOTT stated
that he would send another email with the
14 Settlement information referred to by Mr.
Oliver.
15
16 Elliott Decl., ¶ 27 and Exhibit 14 attached
thereto.
17
38. MR. ELLIOTT confirmed that he had the
18 first Settlement payment in the bank and
was prepared to perform.
19
20 Elliott Decl., ¶ 27 and Exhibit 14 attached
thereto.
21
39. Later that day, Mr. Bates replied to MR.
22 ELLIOTT’s email stating that Mr. Oliver
23 was out of the office and was expected to
return on Monday. Mr. Bates asked if it
24 would be okay to wait to confer with Mr.
Oliver before sending a responsive email.
25
Elliott Decl., ¶ 28 and Exhibit 15 attached
26 thereto.
27 40. The following Monday, Mr. Bates provided
28 no further instructions for payment or any
response whatsoever notwithstanding his
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1 representation he would do so.
2 Elliott Decl., ¶ 29.
3 41. After receiving no response, MR.
ELLIOTT sent a follow up email to Mr.
4
Bates on April 1, 2014.
5
Elliott Decl., ¶ 30 and Exhibit 16 attached
6 thereto.
7 42. The email contained the subject line
8 “Settlement”
9 Elliott Decl., ¶ 30 and Exhibit 16 attached
thereto.
10
43. MR. ELLIOTT expressed concern that his
11 first Settlement payment was due to be
12 deposited. MR. ELLIOTT stated he
wanted to “make sure that I stay in terms
13 with Rabo.”
14 Elliott Decl., ¶ 30 and Exhibit 16 attached
thereto.
15
16 44. MR. ELLIOTT assured Mr. Bates that he
[MR. ELLIOTT] had the “cash” to pay his
17 first payment and wanted to know where it
should be deposited.
18
Elliott Decl., ¶ 30 and Exhibit 16 attached
19
thereto.
20
45. MR. ELLIOTT offered to deposit the
21 payment into an escrow account to avoid
default of the Settlement. MR. ELLIOTT
22 stated, “Please let me know so we may
23 continue forward.”
24 Elliott Decl., ¶ 30 and Exhibit 16 attached
thereto.
25
46. No response was received.
26
27 Elliott Decl., ¶ 30.
28
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1 47. In approximately February 2018, MR.
ELLIOTT telephoned Mr. Oliver to inquire
2 about the status of his Settlement.
3 Elliott Decl., ¶ 31.
4
48. Mr. Oliver responded by directing MR.
5 ELLIOTT to contact President/Manager
Commercial Special Assets Nicola
6 Merrifield Olivia, Senior Vice President
along with her contact information.
7
8 Elliott Decl., ¶ 31.
9 49. Mr. Oliver did not dispute MR.
ELLIOTT’s reference to a “Settlement”.
10
Elliott Decl., ¶ 31.
11
12 50. On March 16, 2018, MR. ELLIOTT
emailed Ms. Olivia using the subject line
13 “Rabobank Agreement”. MR. ELLIOTT
stated, “Frank Oliver told me to pass this
14 agreement on to you.”
15
Elliott Decl., ¶ 32 and Exhibit 17 attached
16 thereto.
17 51. Later that same day, Ms. Olivia replied
stating that MR. ELLIOTT’s contact with
18 regard to his Settlement inquiry was
Adriana Sejera.
19
20 Elliott Decl., ¶ 32 and Exhibit 17 attached
thereto.
21
52. Ms. Olivia did not inform MR. ELLIOTT
22 that he had no “agreement.”
23
Elliott Decl., ¶ 32 and Exhibit 17 attached
24 thereto.
25 53. On March 19, 2018, Matthew S. Kennedy,
counsel to RABOBANK, emailed MR.
26
ELLIOTT in response to the emails sent to
27 Ms. Olivia and Ms. Sejera.
28 Elliott Decl., ¶ 33 and Exhibit 18 attached
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1 thereto.
2 54. Mr. Kennedy asked what MR. ELLIOTT
wanted to discuss.
3
Elliott Decl., ¶ 33 and Exhibit 18 attached
4
thereto.
5
55. On April 6, 2018, using the subject line
6 “[Premium Fresh] Settlement agreement
payoff schedule”, MR. ELLIOTT replied to
7 Mr. Kennedy via email reiterating the
8 history of the Settlement.
9 Elliott Decl., ¶ 34 and Exhibit 19 attached
thereto.
10
56. MR. ELLIOTT stated that he wanted
11 information on how and when to remit
12 payments on the Settlement and have the
Lien removed.
13
Elliott Decl., ¶ 34 and Exhibit 19 attached
14 thereto.
15
57. On April 13, 2018, Mr. Kennedy sent an
16 email communicating that MR. ELLIOTT
had no Settlement with Rabobank. Mr.
17 Kennedy set forth new conditions for a
potential settlement to be reached, i.e., that
18 MR. ELLIOTT would be required to
provide financials in support of an offer in
19
compromise and that “any settlement …
20 would have to be reduced to a formal
written agreement with the concurrent
21 approval of both the SBA and Central
Coast SBDC.”
22
23 Elliott Decl., ¶ 35 and Exhibit 20 attached
thereto.
24
58. On December 20, 2021, MR. ELLIOTT
25 filed a Complaint against MECHANICS
BANK, successor by merger to
26 RABOBANK, asserting a Breach of
27 Contract cause of action and seeking
declaratory relief.
28
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
1 Elliott Decl., ¶ 36.
2 59. Specifically, MR. ELLIOTT seeks
directives for Defendant to provide
3 payment instructions to him and, to file
appropriate documentation with the Court,
4
County Recorder’s offices and any other
5 entities acknowledging full satisfaction of
his obligations on the Judgment and
6 removing all related liens on his assets.
7 Elliott Decl., ¶ 36.
8
9
10
Respectfully Submitted,
11 Dated: July 13, 2022 PATANE • GUMBERG • AVILA, LLP
12
13
14 By:
ANDREA C. AVILA
15 Attorney for Plaintiff
ROBERT T. ELLIOTT
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______________________________________________________________________________
Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary
Judgment; Case No. 21CV003944
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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 ) SEPARATE STATEMENT OF Plaintiff, ) UNDISPUTED MATERIAL FACTS IN 13 vs. ) SUPPORT OF MOTION BY PLAINTIFF ) ROBERT T. ELLIOTT FOR SUMMARY 14 MECHANICS BANK, a California ) JUDGMENT corporation, as the Successor-in-Interest to ) 15 Rabobank, N.A.; and DOES 1 – 40, inclusive, ) Date: September 30, 2022 ) Time: 8:30 a.m. 16 ) Dept.: 14 Defendants. ) Judge: Hon. Carrie M. Panetta 17 ) ) Complaint Filed: December 21, 2021 18 ) Trial Date: Not Set ) 19 ) ) 20 21 Pursuant to Code of Civil Procedure §437c(b) and C.R.C. Rule 3.1350, Plaintiff ROBERT 22 T. ELLIOTT (“Plaintiff”) hereby submits the following Separate Statement of Undisputed 23 Material Facts in Support of Plaintiff’s Motion for Summary Judgment, in favor of Plaintiff and 24 against Defendant MECHANICS BANK, a California corporation, (“MECHANICS BANK”) 25 successor-by merger to RABOBANK, N.A. (“RABOBANK”), (MECHANICS BANK, 26 RABOBANK and DOES 1 – 40, inclusive are collectively referred to as “Defendants”). 27 /// 28 /// -1- ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 ISSUE NO. 1: There is no triable issue of material fact concerning the parties’ contract to settle 1 Plaintiff’s Judgment and Lien. 2 ISSUE NO. 2: There is no triable issue that Plaintiff was excused from performing the Settlement based on Rabobank’s acts. 3 ISSUE NO. 3: There is no triable issue concerning Rabobank’s breach of the Settlement. 4 ISSUE NO. 4: There is no triable issue concerning Plaintiff’s damages resulting from of 5 Defendant’s breach. 6 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE AND No. MATERIAL FACTS AND SUPPORTING EVIDENCE 7 SUPPORTING EVIDENCE 8 1. MR. ELLIOTT is one of approximately twelve former owners of Premium Fresh. 9 (“Premium Fresh”). 10 Declaration of Robert Elliott, “Elliott Decl.” ¶ 2. 11 12 2. Premium Fresh obtained three loans from Community Bank to fund its business 13 operations. On or about February 1, 2006, RABOBANK became the successor-in- 14 interest by merger to Community Bank. 15 On or about August 31, 2019, MECHANICS BANK, became the 16 successor-in-interest by merger to RABOBANK. (Collectively, the first, 17 second and third loans are “the Loans”.) 18 Elliott Decl., ¶ 3. 19 3. The first loan [#190012401] was issued on 20 November 5, 2002 in the sum of $750,000. Premium Fresh, MR. ELLIOTT and the 21 remaining owners were listed as co- borrowers on this loan. The second loan [# 22 78186840-09] was an SBA loan issued on 23 October 12, 2004 in the sum of $1,900,000. The third loan [#160064291] was issued on 24 October 13, 2004 in the sum of $1,000,000. MR. ELLIOTT and other Premium Fresh 25 owners personally guaranteed the second and third loans. (Collectively, the first, 26 second and third loans are “the Loans”.) 27 Elliott Decl., ¶ 4. 28 -2- ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 4. Premium Fresh defaulted on each of the 2 Loans. 3 Elliott Decl., ¶ 5. 4 5. On January 5, 2007, RABOBANK filed a Complaint related to the defaulted Loans 5 against Premium Fresh and the guarantors/borrowers including MR. 6 ELLIOTT (collectively, the “Debtors”) 7 Elliott Decl., ¶ 6. 8 6. On December 14, 2007, a Notice of 9 Attachment was recorded against the Debtors including MR. ELLIOTT imposing 10 a lien against their real property. 11 Elliott Decl., ¶ 7 and Exhibit 1 attached 12 thereto. 13 7. On July 8, 2008, a Stipulation for Entry of 14 Judgment (“Stipulation for Judgment”) was entered between RABOBANK and the 15 Debtors. The Stipulation provided that MR. ELLIOTT and certain other Debtors were 16 jointly and severally liable for the principal sum of $2,983,552.72; interest of 17 $315,087.69; late charges of $29,107.30 18 and costs of $26,623.62 19 Elliott Decl., ¶ 8 and Exhibit 2 attached thereto. 20 8. MR. ELLIOTT further stipulated to 21 transfer certain collateral owned by 22 Premium Fresh to RABOBANK. 23 Elliott Decl., ¶ 8 and Exhibit2 attached thereto.. 24 9. On July 8, 2008, a Judgment consistent 25 with the Stipulation for Judgment was 26 entered in favor of RABOBANK and against the Debtors. 27 Elliott Decl., ¶ 9 and Exhibit 3 attached 28 thereto. -3- ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 2 10. The Judgment was recorded in Monterey County on July 17, 2008. 3 Elliott Decl., ¶ 9 and Exhibit 3 attached 4 thereto.. 5 11. Several Debtors filed bankruptcy and the 6 Judgment debt was discharged as to those individuals and entities. 7 8 Elliott Decl., ¶ 9. 9 12. RABOBANK thereafter seized collateral used to secure the Loans (“Collateral”). 10 The Collateral appraised on August 20, 2004 at a value of $2,083,050 with an 11 estimated liquidation value of $1,353,983. 12 On March 4, 2009, the Collateral was liquidated at auction for the sum of 13 $121,318.75. 14 Elliott Decl., ¶ 10 and Exhibit 4 attached thereto. 15 16 13. On April 2, 2018, RABOBANK filed a Renewal of the Judgment (“Renewed 17 Judgment”). 18 Elliott Decl., ¶ 11 and Exhibit 5 attached thereto. 19 20 14. On May 14, 2018, RABOBANK recorded an Abstract of Judgment against the 21 Debtors including MR. ELLIOTT. 22 Elliott Decl., ¶ 12 and Exhibit 6 attached 23 thereto. 24 15. MR. ELLIOTT commenced efforts to settle his debt with RABOBANK by contacting 25 local bank representatives at the Salinas branch. In early summer of 2013, MR. 26 ELLIOTT learned that RABOBANK’s 27 Special Assets Department was located in Fresno, California. 28 -4- ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 Elliott Decl., ¶ 13. 2 16. MR. ELLIOTT conducted research to locate a senior Special Assets 3 representative. 4 Elliott Decl., ¶ 14. 5 17. MR. ELLIOTT’S research yielded 6 RABOBANK’s Senior Vice-President and Director of Special Assets, Robert Bennett. 7 8 Elliott Decl., ¶ 14. 9 18. Sometime before August 8, 2013, MR. ELLIOTT met with Mr. Bennett in Fresno, 10 California to discuss resolution of his debt. 11 Elliott Decl., ¶ 15. 12 19. On information and belief, MR. ELLIOTT 13 provided his first set of financials during this meeting. 14 Elliott Decl., ¶ 15. 15 16 20. On August 21, 2013, MR. ELLIOTT sent an email to Mr. Bennett attaching his 17 financials and stating he would be “there about 3:30 today.” 18 19 Elliott Decl., ¶ 16 and Exhibit7 attached thereto. 20 21. MR. ELLIOTT met with Mr. Bennett in 21 RABOBANK’s Fresno offices and expressed a desire to amicably resolve his 22 (MR. ELLIOTT’s) Judgment and Lien. 23 Elliott Decl., ¶ 16. 24 22. In late August or early September 2013, 25 MR. ELLIOTT followed up with Mr. Bennett and was referred to 26 RABOBANK’s Vice President and Senior 27 Special Assets Officer, Frank Oliver to continue settlement discussions. 28 -5- ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 Elliott Decl., ¶ 17. 2 23. Mr. Oliver was also located in Defendant’s Fresno offices. 3 Elliott Decl., ¶ 17. 4 5 24. Between mid-September and September 27, 2013, MR. ELLIOTT hand carried a 6 written offer to settle his Judgment and lien to Mr. Oliver. 7 8 Elliott Decl., ¶ 18. 9 25. Mr. Oliver did not accept his proposal. 10 Elliott Decl., ¶ 18. 11 26. On September 27, 2013, MR. ELLIOTT 12 sent an updated financial statement to Mr. Oliver which was immediately 13 acknowledged via email. 14 Elliott Decl., ¶ 19 and Exhibit 8 attached thereto. 15 16 27. On January 22, 2014 at 11:41 a.m., MR. ELLIOTT sent an email to Mr. Oliver and 17 Mr. Bennett regarding the “Premium Fresh Judgment.” MR. ELLIOTT attached a 18 separate letter articulating a written 19 settlement proposal. MR. ELLIOTT’S letter stated that he was “reaching out again 20 to try to settle the judgment against me and my assets.” Specifically, he proposed: “I 21 will pay $140,000.00 dollars. ” He stated that he would “need 18 months to pay the 22 total amount” and that installments would 23 be made as follows: $30,000.00 on April 1st 2014; $40,000.00 on September 1st 2014; 24 $30,000.00 on April 1st 2015; and $40,000.00 on September 1st 2015. MR. 25 ELLIOTT also offered commercial field trucks as collateral to secure his payment 26 obligation (collectively, the “Settlement 27 Offer”). 28 Elliott Decl., ¶ 20 and Exhibit 9 attached -6- ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 thereto. 2 28. MR. ELLIOTT’S Settlement Offer was discussed internally by email between 3 RABOBANK’S senior officers, Mr. Bennett and Mr. Oliver. Four minutes after 4 receiving the Settlement Offer, Mr. Bennett 5 emailed Mr. Oliver with the simple question, “Your thoughts?” Mr. Oliver 6 replied that “$140k is better than the 50k”, MR. ELLIOTT’S previous offer. Mr. 7 Oliver expressed concern that acceptance 8 of the Settlement Offer would require additional paperwork and RABOBANK 9 “does not receive much if any of the settlement proceeds.” Mr. Oliver also 10 expressed concern that “the SBA and Central Coast CDA would share in our 11 [RABOBANK’S] loss.” However, Mr. 12 Oliver stated that assuming there was a settlement, he expected MR. ELLIOTT to 13 bring other judgment debtors to the settlement table to “make this recovery 14 much more substantial.” Mr. Bennett responded to Mr. Oliver minutes later 15 stating, “I agree [with] your points, but am 16 willing to go with the $140K.” 17 Declaration of Andrea C. Avila, ¶ 3 and Exhibit 1 attached hereto. 18 29. The next day, Mr. Oliver replied to MR. 19 ELLIOTT’s email accepting the offer and 20 stating: 21 We are willing to accept the $140,000 as payment to release the Rabobank Lien. I 22 would suggest that you begin building a savings account… I have numerous other 23 credit files that have a higher priority. This 24 is going to require some additional review and work with both the SBA and Central 25 Coast SBDC to determine who we will give your payment to. In the interim I will see if 26 there is another SAM Officer that may have 27 the time to work on this. [Emphasis added.] 28 Elliott Decl., ¶ 21 and Exhibit 10 attached -7- ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 thereto. 2 30. On January 24, 2014, MR. ELLIOTT emailed Mr. Oliver requesting follow up 3 instructions and thanking Mr. Oliver for “acceptance of my Premium Fresh 4 [Settlement] proposal and lean (sic) 5 release.” MR. ELLIOTT copied his bookkeeper, Martha Sisneros, to ensure she 6 was apprised of anticipated payment instructions. 7 8 Elliott Decl.,¶ 22 and Exhibit 11 attached thereto. 9 31. ELLIOTT had over $150,000 in accessible 10 cash to commence his payments. 11 Elliott Decl., ¶ 22. 12 32. MR. ELLIOTT telephoned Mr. Oliver on 13 several occasions between January and March 25, 2014 to request the contact 14 information of his new Special Assets Officer. 15 16 Elliott Decl., ¶ 23. 17 33. On or about March 25, 2014, Mr. Oliver and MR. ELLIOTT had a telephone call 18 during which Mr. Oliver provided MR. ELLIOTT his new contact, Vice President 19 – Senior Special Assets Officer, Kendall 20 Bates. 21 Elliott Decl., ¶ 24. 22 34. On March 26, 2014, and using the subject 23 line “Settlement”, MR. ELLIOTT sent an email to Mr. Oliver requesting Mr. Bates’ 24 contact information “in reference to the Premium Settlement.” 25 Elliott Decl., ¶ 25 and Exhibit 12 attached 26 thereto. 27 35. Mr. Oliver forwarded the aforementioned 28 email to Mr. Bates later that same day -8- ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 instructing Mr. Bates to respond to MR. ELLIOTT. 2 Elliott Decl., ¶ 25 and Exhibit 12 attached 3 thereto. 4 36. The next day, Mr. Bates sent an email to 5 MR. ELLIOTT acknowledging MR. ELLIOTT’s desire to reach him [Mr. Bates] 6 regarding the “Premium Settlement”. Mr. Bates stated he may not be of much help 7 because he did not recognize the reference 8 of [“Premium Settlement”]. Mr. Bates nevertheless extended his contact 9 information. 10 Elliott Decl., ¶ 26 and Exhibit 13 attached thereto. 11 12 37. On March 28, 2014, MR. ELLIOTT sent an email to Mr. Bates regarding the “Premium 13 Fresh Judgment.” MR. ELLIOTT stated that he would send another email with the 14 Settlement information referred to by Mr. Oliver. 15 16 Elliott Decl., ¶ 27 and Exhibit 14 attached thereto. 17 38. MR. ELLIOTT confirmed that he had the 18 first Settlement payment in the bank and was prepared to perform. 19 20 Elliott Decl., ¶ 27 and Exhibit 14 attached thereto. 21 39. Later that day, Mr. Bates replied to MR. 22 ELLIOTT’s email stating that Mr. Oliver 23 was out of the office and was expected to return on Monday. Mr. Bates asked if it 24 would be okay to wait to confer with Mr. Oliver before sending a responsive email. 25 Elliott Decl., ¶ 28 and Exhibit 15 attached 26 thereto. 27 40. The following Monday, Mr. Bates provided 28 no further instructions for payment or any response whatsoever notwithstanding his -9- ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 representation he would do so. 2 Elliott Decl., ¶ 29. 3 41. After receiving no response, MR. ELLIOTT sent a follow up email to Mr. 4 Bates on April 1, 2014. 5 Elliott Decl., ¶ 30 and Exhibit 16 attached 6 thereto. 7 42. The email contained the subject line 8 “Settlement” 9 Elliott Decl., ¶ 30 and Exhibit 16 attached thereto. 10 43. MR. ELLIOTT expressed concern that his 11 first Settlement payment was due to be 12 deposited. MR. ELLIOTT stated he wanted to “make sure that I stay in terms 13 with Rabo.” 14 Elliott Decl., ¶ 30 and Exhibit 16 attached thereto. 15 16 44. MR. ELLIOTT assured Mr. Bates that he [MR. ELLIOTT] had the “cash” to pay his 17 first payment and wanted to know where it should be deposited. 18 Elliott Decl., ¶ 30 and Exhibit 16 attached 19 thereto. 20 45. MR. ELLIOTT offered to deposit the 21 payment into an escrow account to avoid default of the Settlement. MR. ELLIOTT 22 stated, “Please let me know so we may 23 continue forward.” 24 Elliott Decl., ¶ 30 and Exhibit 16 attached thereto. 25 46. No response was received. 26 27 Elliott Decl., ¶ 30. 28 - 10 - ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 47. In approximately February 2018, MR. ELLIOTT telephoned Mr. Oliver to inquire 2 about the status of his Settlement. 3 Elliott Decl., ¶ 31. 4 48. Mr. Oliver responded by directing MR. 5 ELLIOTT to contact President/Manager Commercial Special Assets Nicola 6 Merrifield Olivia, Senior Vice President along with her contact information. 7 8 Elliott Decl., ¶ 31. 9 49. Mr. Oliver did not dispute MR. ELLIOTT’s reference to a “Settlement”. 10 Elliott Decl., ¶ 31. 11 12 50. On March 16, 2018, MR. ELLIOTT emailed Ms. Olivia using the subject line 13 “Rabobank Agreement”. MR. ELLIOTT stated, “Frank Oliver told me to pass this 14 agreement on to you.” 15 Elliott Decl., ¶ 32 and Exhibit 17 attached 16 thereto. 17 51. Later that same day, Ms. Olivia replied stating that MR. ELLIOTT’s contact with 18 regard to his Settlement inquiry was Adriana Sejera. 19 20 Elliott Decl., ¶ 32 and Exhibit 17 attached thereto. 21 52. Ms. Olivia did not inform MR. ELLIOTT 22 that he had no “agreement.” 23 Elliott Decl., ¶ 32 and Exhibit 17 attached 24 thereto. 25 53. On March 19, 2018, Matthew S. Kennedy, counsel to RABOBANK, emailed MR. 26 ELLIOTT in response to the emails sent to 27 Ms. Olivia and Ms. Sejera. 28 Elliott Decl., ¶ 33 and Exhibit 18 attached - 11 - ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 thereto. 2 54. Mr. Kennedy asked what MR. ELLIOTT wanted to discuss. 3 Elliott Decl., ¶ 33 and Exhibit 18 attached 4 thereto. 5 55. On April 6, 2018, using the subject line 6 “[Premium Fresh] Settlement agreement payoff schedule”, MR. ELLIOTT replied to 7 Mr. Kennedy via email reiterating the 8 history of the Settlement. 9 Elliott Decl., ¶ 34 and Exhibit 19 attached thereto. 10 56. MR. ELLIOTT stated that he wanted 11 information on how and when to remit 12 payments on the Settlement and have the Lien removed. 13 Elliott Decl., ¶ 34 and Exhibit 19 attached 14 thereto. 15 57. On April 13, 2018, Mr. Kennedy sent an 16 email communicating that MR. ELLIOTT had no Settlement with Rabobank. Mr. 17 Kennedy set forth new conditions for a potential settlement to be reached, i.e., that 18 MR. ELLIOTT would be required to provide financials in support of an offer in 19 compromise and that “any settlement … 20 would have to be reduced to a formal written agreement with the concurrent 21 approval of both the SBA and Central Coast SBDC.” 22 23 Elliott Decl., ¶ 35 and Exhibit 20 attached thereto. 24 58. On December 20, 2021, MR. ELLIOTT 25 filed a Complaint against MECHANICS BANK, successor by merger to 26 RABOBANK, asserting a Breach of 27 Contract cause of action and seeking declaratory relief. 28 - 12 - ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 Elliott Decl., ¶ 36. 2 59. Specifically, MR. ELLIOTT seeks directives for Defendant to provide 3 payment instructions to him and, to file appropriate documentation with the Court, 4 County Recorder’s offices and any other 5 entities acknowledging full satisfaction of his obligations on the Judgment and 6 removing all related liens on his assets. 7 Elliott Decl., ¶ 36. 8 9 10 Respectfully Submitted, 11 Dated: July 13, 2022 PATANE • GUMBERG • AVILA, LLP 12 13 14 By: ANDREA C. AVILA 15 Attorney for Plaintiff ROBERT T. ELLIOTT 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - ______________________________________________________________________________ Separate Statement of Undisputed Material Facts in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944