Motion for Summary Judgment in Robert Elliott vs. Mechanics Bank, a California corporation, as the Successor-in-Interest to Rabobank, N.A., a California corporation, et al.| Trellis.Law

On December 20, 2021 a Motion-Secondary was filed involving a dispute between Robert T. Elliott, and Mechanics Bank, A California Corporation, As The Successor-In-Interest To Rabobank, N.A., A California Corporation, Mechanics Bank, A California Corporation, Successor By Merger To Rabobank, N.A., Mechanics Bank, Successor-In-Interest By Merger To Rabobank, N.A., Rabobank, N.A., A California Corporation, for Breach of Contract/Warranty Unlimited (06) in the District Court of Monterey County.

Preview
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 ) MEMORANDUM OF POINTS AND
Plaintiff, ) AUTHORITIES IN SUPPORT OF
13 vs. ) MOTION BY PLAINTIFF ROBERT T.
) ELLIOTT FOR SUMMARY JUDGMENT
14 MECHANICS BANK, a California )
corporation, as the Successor-in-Interest to ) Date: September 30, 2022
15 Rabobank, N.A.; and DOES 1 – 40, inclusive, ) Time: 8:30 a.m.
) Dept.: 14
16 ) Judge: Hon. Carrie M. Panetta
Defendants. )
17 ) Complaint Filed: December 21, 2021
) Trial Date: Not Set
18 )
)
19 )
)
20

21 Plaintiff ROBERT T. ELLIOTT (“PLAINTIFF” or “MR. ELLIOTT”) hereby submits this
22 Motion for Summary Judgment (“Motion”) against Defendant MECHANICS BANK, a California
23 corporation, (“MECHANICS BANK”) successor-by merger to RABOBANK, N.A.
24 (“RABOBANK”), (MECHANICS BANK, RABOBANK and DOES 1 – 40, inclusive are
25 collectively referred to as “Defendants”).
26 ///
27 ///
28 ///

______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1
TABLE OF CONTENTS
2
I. INTRODUCTION………………………………………………………………………………...….1
3

4 II. STATEMENT OF FACTS…………………………………………………………………………..2
5 A. THE SUBJECT LOANS, JUDGMENTS AND LIEN AGAINST MR. ELLIOTT
AND HIS ASSETS…………………………………………………………………………......2
6
B. MR. ELLIOTT’S GOOD FAITH EFFORTS TO RESOVE THE JUDGMENT
7 AND LIEN AGAINST HIM AND HIS ASSETS……………………………………………4
8 C. MR. ELLIOTT AND RABOBANK REACH AGREEMENT TO SETTLE
THE JUDGMENT AND LIEN……………………………….……………………………….5
9

10 III. STANDARD OF REVIEW…………….……………………………………………………………8
A. SUMMARY JUDGMENT IS PROPER BECAUSE THERE IS NO TRIABLE
11
ISSUE OF MATERIAL FACT CONCERNING RABOBANK’S BREACH
12 OF THE SETTLEMENT ……………………………………………………………………..8
13
IV. LEGAL ARGUMENT………….……………………………………………………………………9
14
A. THERE IS NO TRIABLE ISSUE OF MATERIAL FACT CONCERNING THE
15 PARTIES’ CONTRACT TO SETTLE PLAINTIFF’S JUDGMENT AND
ASSOCIATED LIEN..……………………………………………………………………..…….9
16
1. MR. ELLIOTT made a clear and definite offer, there was an absolute
17 unconditional acceptance and there was mutual assent on the consideration…….…….10

18 a. MR. ELLIOTT’s explicit offer to settle the Judgment and Lien…………….………10

19 b. RABOBANK’s unconditional acceptance of MR. ELLIOTT’s offer………………...10

20 c. The consideration was clearly articulated……………………………………………..12

21 B. THERE IS NO TRIABLE ISSUE CONCERNING RABOBANK’S BREACH
OF THE SETTLEMENT CONTRACT……………………………………………………….12
22
1. There was a Contract to settle MR. ELLIOTT’S Judgment and Lien……..………...….12
23
2. MR. ELLIOTT was Excused from Performing Because RABOBANK failed to
24 provide a means for performance despite its obligation to do so…………………..……..13

25 3. Defendant Breached the Agreement by Repudiating the Agreement……………………13

26 4. Plaintiff is Damaged Because the Pending Judgment and Lien Continue to
Encumber Him and His Assets…………………………………………………….………13
27
C. THERE IS NO TRIABLE ISSUE REGARDING MR. ELLIOTT’S ABILITY
28 TO PERFORM IN ACCORDANCE WITH THE SETTLEMENT………………………….14
-i-
___________________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 TABLE OF CONTENTS
(Continued)
2

4 D. THERE IS NO TRIABLE ISSUE CONCERING THE DAMAGES SUFFERED
BY PLAINTIFF AS A RESULT OF DEFENDANT’S BREACH………………………....14
5
V. CONCLUSION………………………………………………………………………………...……14
6

28
- ii -
___________________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1
TABLE OF AUTHORITIES
2

4 California Supreme Court

5 City of Moorpark v. Moorpark Unified School Dist. (1991) 54 Cal.3d 921…………………………….10

6 King v. Stanley (1948) 32 Cal. 2d 584…………………………………………………………………..10

7 Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176……………………………………8, 9

8 Patel v. Liebermensch (2008) 45 Cal. 4th 344…………………………………………………………..10

9 Reichert v. General Ins. Co. (1968) 68 Cal. 2d 822……………………………………………………..12

10 Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432……………………………………….9

11 Wong v. Di Grazia (1963) 60 Cal. 2d 525……………………………………………………………….11

13 California Appellate Court

14 Ahmanson Bank & Trust Co. v. Tepper (1969) 269 Cal.App.2d 333………………………………...…. 9

15 Campanano v. Medical Center (1995) 38 Cal. App. 4th 1322……………………….…………………...8

16 Findleton v. Taylor (1962), 208 Cal. App. 2d 651……………………………………………………….10

17 Flojo Internat., Inc. v. Lassleben (1992) 4 Cal. App. 4th 713…………………………………………...12

18 Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299……………………………………….11

19 HM DG, Inc. v. Amini (2013) 219 Cal.App.4th 1100……………………………………………………..9

20 Kritzer v. Citron (1950) 101 Cal. App. 2d 33……………………………………………………………12

21 Ladas v. California State Automobile Assn. (1993) 19 Cal.App.4th 761……………………………….10

22 Okun v. Morton (1988) 203 Cal. App. 3d 805…………………………………………………………..11

23 San Diego Unified Port Dist. V. Gallagher (1998) 62 Cal. App. 4th 501………………………………...8

24 Schreiber v. Hooker (1952) 114 Cal. App. 2d 634………………………………………………………10

25 Weddington Productions, Inc. v. Flick (1998) 60 Cal. App. 4th 793…………………………………….10

28
- iii -
___________________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1
TABLE OF AUTHORITIES
2 (Continued)

4
California Statutes
5
Civil Code §1511………………………………………………………………………………………..13
6
Civil Code § 1550……………………………………………………………………………………...…9
7
Civil Code § 1585……………………………………………………………………………………….10
8
Civil Code § 1605……………………………………………………………………………………….12
9
Code of Civil Procedure § 437c(c)………………………………………………………………………..8
10
Code of Civil Prodedure § 437c(p)(1) ………………………………………………………….………..8
11

28
- iv -
___________________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 I. INTRODUCTION
2 MR. ELLIOTT is one of approximately twelve former owners of Premium Fresh Farms,
3 LLC (“Premium Fresh”). Premium Fresh defaulted on three loans extended by Community Bank
4 of Central California (“Community Bank”). As more fully explained below, Community Bank
5 subsequently merged with RABOBANK, who later merged with MECHANICS BANK. Mr.
6 ELLIOTT was a guarantor on two of the loans and an owner/borrower on one of the loans. As a
7 result, MR. ELLIOTT had an adverse judgment in the sum of $3,354,371.33 entered against him
8 and in favor of RABOBANK on July 8, 2008 (“Judgment”). RABOBANK recorded the Judgment
9 and a Notice of Attachment (collectively, the “Lien”) 1 in the Monterey County Recorder’s Office.
10 The aforementioned recordings encumbered MR. ELLIOTT’S real property and adversely
11 impacted MR. ELLIOTT’S credit.
12 In summer 2013, MR. ELLIOTT contacted RABOBANK to discuss settlement of his
13 Judgment and Lien. In the following months, MR. ELLIOTT attended several in-person meetings
14 with RABOBANK’S Senior Vice-Presidents/Special Asset Management officers, exchanged
15 emails and phone conferences with those individuals, and provided financials to the bank. On
16 January 22, 2014, MR. ELLIOTT submitted a detailed written offer to RABOBANK’S senior
17 officer, Frank Oliver. The offer specifically articulated material terms including: 1) the payment
18 amount - $140,000; 2) the payment date - four installment payments on specified dates; 3) the
19 collateral to secure the installment payments; and 4) the consideration - that in exchange, the
20 Judgment/Lien against MR. ELLIOTT and his assets would be settled and released.
21 Upon receiving MR. ELLIOTT’s offer, Mr. Oliver conferred with another senior bank
22 officer at RABOBANK, Bob Bennett, who was familiar with MR. ELLIOTT and the
23 Judgment/Lien. The two officers discussed the financial ramifications of accepting $140,000 to
24 RABOBANK and the other involved lenders, the SBA and Central Coast CDA. Ultimately, Mr.
25 Bennett emailed Mr. Oliver opining that MR. ELLIOTT’S $140,000 offer should be accepted.
26 Based on Mr. Bennett’s recommendation, Mr. Oliver replied to MR. ELLIOTT’s offer with an
27 absolute and unqualified acceptance noting only that the bank would need to determine to whom
28 ///
1
No Abstract of Judgment was recorded.
- 1-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 MR. ELLIOTT’s payments would be made. 2 An enforceable contract affirming the mutual intent
2 of the parties was created (“Settlement”). Mr. Oliver thereafter transferred MR. ELLIOTT’s
3 Settlement to another RABOBANK senior officer, Kendall Bates, so he [Mr. Oliver] could work
4 on matters of “higher priority.”
5 MR. ELLIOTT requested payee information from Mr. Bates who claimed to have no
6 knowledge of Plaintiff’s Settlement. Mr. Bates’ uncertainty prevented MR. ELLIOTT’s timely
7 performance of the Settlement notwithstanding that he confirmed his desire and ability to perform.
8 Over the next few years, RABOBANK shuffled MR. ELLIOTT from one bank representative to
9 the next without fulfilling its obligation to provide payee information and leaving MR. ELLIOTT
10 without a means to perform. On April 13, 2018, RABOBANK ultimately repudiated the
11 Settlement via correspondence from its then counsel Matthew S. Kennedy, denying that a contract
12 existed and requesting new negotiatons commence if a settlement is desired. RABOBANK’S
13 breach damaged MR. ELLIOTT by encumbering his property and negatively impacting his credit,
14 thereby foreclosing MR. ELLIOTT’s ability to participate in other lucrative financial
15 opportunities.
16 There are no triable issues concerning the Settlement 3, RABOBANK’s breach of the
17 Settlement, MR. ELLIOTT’S ability to perform the terms of the Settlement, MR. ELLIOTT’S
18 prevention from performing due to RABOBANK’S acts and MR. ELLIOTT’s resulting damages.
19 Accordingly, summary judgment as to the Breach of Contract cause of action is proper. MR.
20 ELLIOTT should be granted declaratory relief as pled.
21 II. STATEMENT OF FACTS
22 A. THE SUBJECT LOANS, JUDGMENT AND LIEN AGAINST MR. ELLIOTT AND HIS
ASSETS
23
MR. ELLIOTT is one of approximately twelve former owners of Premium Fresh.
24
Declaration of Robert Elliott, “Elliott Decl.” ¶ 2. Premium Fresh obtained three loans from
25
Community Bank to fund its business operations. Elliott Decl., ¶ 3. On or about February 1, 2006,
26
RABOBANK became the successor-in-interest by merger to Community Bank. On or about
27

28 2
The identity of the payee was not a material term of the settlement and RABOBANK made no mention of MR.
ELLIOTT having any further obligations in this regard.
3
The agreement/contract that is the subject of the breach is referred to herein as the “Settlement”.
- 2-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 August 31, 2019, MECHANICS BANK, became the successor-in-interest by merger to
2 RABOBANK. Elliott Decl., ¶ 3.
3 The first loan [#190012401] was issued on November 5, 2002 in the sum of $750,000.
4 Premium Fresh, MR. ELLIOTT and the remaining owners were listed as co-borrowers on this
5 loan. The second loan [# 78186840-09] was an SBA loan issued on October 12, 2004 in the sum
6 of $1,900,000. The third loan [#160064291] was issued on October 13, 2004 in the sum of
7 $1,000,000. MR. ELLIOTT and other Premium Fresh owners personally guaranteed the second
8 and third loans. (Collectively, the first, second and third loans are “the Loans”.) Elliott Decl., ¶ 4.
9 Premium Fresh defaulted on each of the Loans. Elliott Decl., ¶ 5. On January 5, 2007,
10 RABOBANK filed a Complaint related to the defaulted Loans against Premium Fresh and the
11 guarantors/borrowers including MR. ELLIOTT (collectively, the “Debtors”) 4. Elliott Decl., ¶ 6.
12 On December 14, 2007, a Notice of Attachment was recorded against the Debtors including MR.
13 ELLIOTT imposing a lien against their real property 5. Elliott Decl., ¶ 7, Ex. 1. On July 8, 2008, a
14 Stipulation for Entry of Judgment (“Stipulation for Judgment”) was entered between RABOBANK
15 and the 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 $315,087.69; late
17 charges of $29,107.30 and costs of $26,623.62. Elliott Decl., ¶ 8, Ex. 2. MR. ELLIOTT further
18 stipulated to transfer certain collateral owned by Premium Fresh to RABOBANK. 6 Elliott Decl., ¶
19 8, Ex. 2.
20 On July 8, 2008, a Judgment consistent with the Stipulation for Judgment was entered in
21 favor of RABOBANK and against the Debtors. Elliott Decl., ¶ 9, Ex. 3. The Judgment was
22 recorded in Monterey County on July 17, 2008. Elliott Decl., ¶ 9, Ex. 3. Several Debtors filed
23 bankruptcy and the Judgment debt was discharged as to those individuals and entities. Elliott
24 Decl., ¶ 9.
25 ///
26 4
RABOBANK was the owner of the Loans at the time via its merger with Community Bank.
5
The lien against MR. ELLIOTT’s is recorded against property located at 26490 Encinal Road, Salinas, CA 93908.
27 6
The Stipulation for Entry of Judgment further states that certain Judgment Debtors, not including MR. ELLIOTT
would be jointly and severally liable for the following sums: Principal of $3,587,776.62, Interest of $325,087.69, Late
28 Charges of $29,107.30 and Attorney’s Fees and Costs of $26,623.62. The Stipulation and Judgment fails to identify
the stated obligations by loan number and therefore it is uncertain whether MR. ELLIOTT’s indebtedness relates to
one or all of the Loans.
- 3-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 RABOBANK thereafter seized collateral used to secure the Loans (“Collateral”). The
2 Collateral appraised on August 20, 2004 at a value of $2,083,050 with an estimated liquidation
3 value of $1,353,983. On March 4, 2009, the Collateral was liquidated at auction for the sum of
4 $121,318.75. Elliott Decl., ¶ 10, Ex. 4.
5 On April 2, 2018, RABOBANK filed a Renewal of the Judgment (“Renewed Judgment”).
6 Elliott Decl., ¶ 11, Ex. 5. On May 14, 2018, RABOBANK recorded an Abstract of Judgment
7 against the Debtors including MR. ELLIOTT. Elliott Decl., ¶ 12, Ex. 6.
8
B. MR. ELLIOTT’S GOOD FAITH EFFORTS TO RESOLVE THE JUDGMENT AND
9 LIEN AGAINST HIM AND HIS ASSETS

10 MR. ELLIOTT commenced efforts to settle his debt with RABOBANK by contacting local

11 bank representatives at the Salinas branch. In early summer of 2013, MR. ELLIOTT learned that

12 RABOBANK’s Special Assets Department was located in Fresno, California. Elliott Decl., ¶ 13.

13 MR. ELLIOTT conducted research to locate a senior Special Assets representative. Elliott Decl., ¶

14 14. MR. ELLIOTT’S research yielded RABOBANK’s Senior Vice-President and Director of

15 Special Assets, Robert Bennett. Elliott Decl., ¶ 14. Sometime before August 8, 2013, MR.

16 ELLIOTT met with Mr. Bennett in Fresno, California to discuss resolution of his debt. Elliott

17 Decl., ¶ 15. On information and belief, MR. ELLIOTT provided his first set of financials during

18 this meeting. Elliott Decl., ¶ 15.

19 On August 21, 2013, MR. ELLIOTT sent an email to Mr. Bennett attaching his financials

20 and stating he would be “there about 3:30 today.” Elliott Decl., ¶ 16, Ex. 7. MR. ELLIOTT met

21 with Mr. Bennett in RABOBANK’s Fresno offices and expressed a desire to amicably resolve his

22 Judgment and Lien. Elliott Decl., ¶ 16. In late August or early September 2013, MR. ELLIOTT

23 followed up with Mr. Bennett and was referred to RABOBANK’s Vice President and Senior

24 Special Assets Officer, Frank Oliver to continue settlement discussions. Elliott Decl., ¶ 17. Mr.

25 Oliver was also located in Defendant’s Fresno offices. Elliott Decl., ¶ 17. Between mid-

26 September and September 27, 2013, MR. ELLIOTT hand carried a written offer to settle his

27 Judgment and Lien to Mr. Oliver. Elliott Decl., ¶ 18. Mr. Oliver did not accept his proposal.

28 Elliott Decl., ¶ 18.

- 4-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 On September 27, 2013, MR. ELLIOTT sent an updated financial statement to Mr. Oliver
2 which was immediately acknowledged via email. 7 Elliott Decl., ¶ 19, Ex. 8.
3 C. MR. ELLIOTT AND RABOBANK REACH AGREEMENT TO SETTLE THE
JUDGMENT AND LIEN
4

5 On January 22, 2014 at 11:41 a.m., MR. ELLIOTT sent an email to Mr. Oliver and Mr.

6 Bennett regarding the “Premium Fresh Judgment.” MR. ELLIOTT attached a separate letter

7 articulating a written settlement proposal. MR. ELLIOTT’S letter stated that he was “reaching out

8 again to try to settle the judgment against me and my assets.” Specifically, he proposed: “I will

9 pay $140,000.00 dollars. ” He stated that he would “need 18 months to pay the total amount” and

10 that installments would be made as follows: $30,000.00 on April 1st 2014; $40,000.00 on

11 September 1st 2014; $30,000.00 on April 1st 2015; and $40,000.00 on September 1st 2015. MR.

12 ELLIOTT also offered commercial field trucks as collateral to secure his payment obligation

13 (collectively, the “Settlement Offer”). Elliott Decl., ¶ 20, Ex. 9.

14 MR. ELLIOTT’S Settlement Offer was discussed internally by email between

15 RABOBANK’S senior officers, Mr. Bennett and Mr. Oliver. Four minutes after receiving the

16 Settlement Offer, Mr. Bennett emailed Mr. Oliver with the simple question, “Your thoughts?” Mr.

17 Oliver replied that “$140k is better than the 50k”, MR. ELLIOTT’S previous offer. Mr. Oliver

18 expressed concern that acceptance of the Settlement Offer would require additional paperwork and

19 RABOBANK “does not receive much if any of the settlement proceeds.” Mr. Oliver also

20 expressed concern that “the SBA and Central Coast CDA would share in our [RABOBANK’S]

21 loss.” However, Mr. Oliver stated that assuming there was a settlement, he expected MR.

22 ELLIOTT to bring other judgment debtors to the settlement table to “make this recovery much

23 more substantial.” Mr. Bennett responded to Mr. Oliver minutes later stating, “I agree [with] your

24 points, but am willing to go with the $140K.” Declaration of Andrea C. Avila, ¶ 3, Ex. 1.

25 The next day, Mr. Oliver replied to MR. ELLIOTT’s email accepting the offer and stating:

26 We are willing to accept the $140,000 as payment to release the Rabobank
Lien. I would suggest that you begin building a savings account… I have
27 numerous other credit files that have a higher priority. This is going to require
some additional review and work with both the SBA and Central Coast SBDC
28
7
Frank Oliver’s email address is James.Oliver@rabobank.com. On information and belief, Frank is sometimes
referred to as “James”.
- 5-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 to determine who we will give your payment to. In the interim I will see if
there is another SAM Officer that may have the time to work on this.
2 [Emphasis added.] Elliott Decl., ¶ 21, Ex. 10.

3 On January 24, 2014, MR. ELLIOTT emailed Mr. Oliver requesting follow up instructions
4 and thanking Mr. Oliver for “acceptance of my Premium Fresh [Settlement] proposal and lean (sic)
5 release.” Elliott Decl., ¶ 22, Ex. 11. MR. ELLIOTT copied his bookkeeper, Martha Sisneros, to
6 ensure she was apprised of anticipated payment instructions. Elliott Decl., ¶ 22, Ex. 11. MR.
7 ELLIOTT had over $150,000 in accessible cash to commence his payments. Elliott Decl., ¶ 22.
8 MR. ELLIOTT telephoned Mr. Oliver on several occasions between January and March
9 25, 2014 to request the contact information of his new Special Assets Officer. Elliott Decl., ¶ 23.
10 On or about March 25, 2014, Mr. Oliver and MR. ELLIOTT had a telephone call during which
11 Mr. Oliver provided MR. ELLIOTT his new contact, Vice President – Senior Special Assets
12 Officer, Kendall Bates. Elliott Decl., ¶ 24. On March 26, 2014, and using the subject line
13 “Settlement”, MR. ELLIOTT sent an email to Mr. Oliver requesting Mr. Bates’ contact
14 information “in reference to the Premium Settlement.” Elliott Decl., ¶ 25, Ex. 12. Mr. Oliver
15 forwarded the aforementioned email to Mr. Bates later that same day instructing Mr. Bates to
16 respond to MR. ELLIOTT. Elliott Decl., ¶ 25, Ex. 12.
17 The next day, Mr. Bates sent an email to MR. ELLIOTT acknowledging MR. ELLIOTT’s
18 desire to reach him [Mr. Bates] regarding the “Premium Settlement”. Elliott Decl., ¶ 26, Ex. 13.
19 Mr. Bates stated he may not be of much help because he did not recognize the reference of
20 [“Premium Settlement”]. Mr. Bates nevertheless extended his contact information. Elliott Decl., ¶
21 26, Ex. 13.
22 On March 28, 2014, MR. ELLIOTT sent an email to Mr. Bates regarding the “Premium
23 Fresh Judgment.” Elliott Decl., ¶ 27, Ex. 14. MR. ELLIOTT stated that he would send another
24 email with the Settlement information referred to by Mr. Oliver. Elliott Decl., ¶ 28, Ex. 14. MR.
25 ELLIOTT confirmed that he had the first Settlement payment in the bank and was prepared to
26 perform. Elliott Decl., ¶ 27, Ex. 14. Later that day, Mr. Bates replied to MR. ELLIOTT’s email
27 stating that Mr. Oliver was out of the office and was expected to return on Monday. Elliott Decl., ¶
28 28, Ex. 15. Mr. Bates asked if it would be okay to wait to confer with Mr. Oliver before sending a

- 6-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 responsive email. Elliott Decl., ¶ 28, Ex. 15. The following Monday, Mr. Bates provided no
2 further instructions for payment or any response whatsoever notwithstanding his representation he
3 would do so. Elliott Decl., ¶ 29.
4 After receiving no response, MR. ELLIOTT sent a follow up email to Mr. Bates on April 1,
5 2014. Elliott Decl., ¶ 30, Ex. 16. The email contained the subject line “Settlement”. Elliott Decl., ¶
6 30, Ex. 16. MR. ELLIOTT expressed concern that his first Settlement payment was due to be
7 deposited. MR. ELLIOTT stated he wanted to “make sure that I stay in terms with Rabo.” Elliott
8 Decl., ¶ 30, Ex. 16. MR. ELLIOTT assured Mr. Bates that he [MR. ELLIOTT] had the “cash” to
9 pay his first payment and wanted to know where it should be deposited. Elliott Decl., ¶ 30, Ex. 16.
10 MR. ELLIOTT offered to deposit the payment into an escrow account to avoid default of the
11 Settlement. MR. ELLIOTT stated, “Please let me know so we may continue forward.” Elliott
12 Decl., ¶ 30, Ex. 16. No response was received. Elliott Decl., ¶ 30.
13 In approximately February 2018, MR. ELLIOTT telephoned Mr. Oliver to inquire about
14 the status of his Settlement. Elliott Decl., ¶ 31. Mr. Oliver responded by directing MR. ELLIOTT
15 to contact President/Manager Commercial Special Assets Nicola Merrifield Olivia, Senior Vice
16 President along with her contact information. Elliott Decl., ¶ 31. Mr. Oliver did not dispute MR.
17 ELLIOTT’s reference to a “Settlement”. Elliott Decl., ¶ 31. On March 16, 2018, MR. ELLIOTT
18 emailed Ms. Olivia using the subject line “Rabobank Agreement”. MR. ELLIOTT stated, “Frank
19 Oliver told me to pass this agreement on to you.” Elliott Decl., ¶ 32., Ex. 17. Later that same day,
20 Ms. Olivia replied stating that MR. ELLIOTT’s contact with regard to his Settlement inquiry was
21 Adriana Sejera. Elliott Decl., ¶ 32, Ex. 17. Ms. Olivia did not inform MR. ELLIOTT that he had
22 no “agreement.” Elliott Decl., ¶ 32, Ex. 17.
23 On March 19, 2018, Matthew S. Kennedy, counsel to RABOBANK, emailed MR.
24 ELLIOTT in response to the emails sent to Ms. Olivia and Ms. Sejera. 8 Elliott Decl., ¶ 33, Ex. 18.
25 Mr. Kennedy asked what MR. ELLIOTT wanted to discuss. Elliott Decl., ¶ 33, Ex. 18. On April
26 6, 2018, using the subject line “[Premium Fresh] Settlement agreement payoff schedule”, MR.
27 ELLIOTT replied to Mr. Kennedy via email reiterating the history of the Settlement. Elliott Decl.,
28
8
Mr. Kennedy attached the Application for Renewal of Judgment and related Memorandum of Costs related to the
Premium Fresh, LLC matter/Judgment. Elliott Decl., ¶ 26, Ex. 12.
- 7-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 ¶ 34, Ex. 19. MR. ELLIOTT stated that he wanted information on how and when to remit
2 payments on the Settlement and have the Lien removed. Elliott Decl., ¶ 34, Ex. 19.
3 On April 13, 2018, Mr. Kennedy sent an email communicating that MR. ELLIOTT had no
4 Settlement with Rabobank. Elliott Decl., ¶ 35, Ex. 20. Mr. Kennedy set forth new conditions for a
5 potential settlement to be reached, i.e., that MR. ELLIOTT would be required to provide financials
6 in support of an offer in compromise and that “any settlement … would have to be reduced to a
7 formal written agreement with the concurrent approval of both the SBA and Central Coast SBDC.”
8 Elliott Decl., ¶ 35, Ex. 20.
9 On December 20, 2021, MR. ELLIOTT filed a Complaint against MECHANICS BANK,
10 successor by merger to RABOBANK, asserting a Breach of Contract cause of action and seeking
11 declaratory relief. Elliott Decl., ¶ 36. Specifically, MR. ELLIOTT seeks directives for Defendant
12 to provide payment instructions to him and, to file appropriate documentation with the Court,
13 County Recorder’s offices and any other entities acknowledging full satisfaction of his obligations
14 on the Judgment and removing all related liens on his assets. Elliott Decl., ¶ 36.
15 III. STANDARD OF REVIEW
16 A. SUMMARY JUDGMENT IS PROPER BECAUSE THERE IS NO TRIABLE
ISSUE OF MATERIAL FACT CONCERNING RABOBANK’S BREACH OF
17
THE SETTLEMENT
18
A motion for summary judgment must be granted when there is no triable issue of material
19
fact and the moving party is entitled to a judgment as a matter of law. Cal. Code of Civil Procedure
20
(“CCP”) § 437c(c). When moving party is a plaintiff, he has the burden of proving each element
21
of the cause of action entitling him to judgment of the cause of action. CCP § 437c(p)(1); see San
22
Diego Unified Port Dist. V. Gallagher (1998) 62 Cal. App. 4th 501, 503. The policies underlying
23
motions for summary judgment and summary adjudication of issues are to promote and protect the
24
administration of justice and to expedite litigation by the elimination of needless trials.
25
Campanano v. Medical Center (1995) 38 Cal. App. 4th 1322.
26
The issue to be determined by the trial court on a motion for summary judgment is whether
27
facts have been presented which give rise to a triable factual issue. Parker v. Twentieth Century-
28
Fox Film Corp. (1970) 3 Cal.3d 176, 181. Summary judgment is proper if the affidavits or

- 8-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 declarations in support of the moving party would be sufficient to sustain a judgment in his favor
2 and his opponent does not by affidavit show facts sufficient to present a triable issue of fact. Id.
3 Further, a party can rely on his adversary's pleadings to establish facts not contained in his own
4 affidavits. Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 436-437.
5 Additionally, the court may consider facts stipulated to by the parties and facts which are properly
6 the subject of judicial notice. Ahmanson Bank & Trust Co. v. Tepper (1969) 269 Cal.App.2d 333,
7 342.
8 As will be demonstrated below, MR. ELLIOTT is entitled to judgment as a matter of law
9 on his Breach of Contract claim. The undisputed facts unequivocally affirm that: 1) there was a
10 contract to settle MR. ELLIOTT’S Judgment and Lien; 2) RABOBANK breached the contract
11 when it repudiated the contract; 3) MR. ELLIOTT had the desire and ability to perform but was
12 prevented from doing so based on RABOBANK’S acts; and 4) RABOBANK’S breach caused
13 MR. ELLIOTT damages. Accordingly, summary judgment should be granted.
14 IV. LEGAL ARGUMENT
15
A. THERE IS NO TRIABLE ISSUE OF MATERIAL FACT CONCERNING THE
16 PARTIES’ CONTRACT TO SETTLE PLAINTIFF’S JUDGMENT AND
ASSOCIATED LIEN
17
Cal. Civ. Code § 1550 provides, the existence of a contract requires: 1) parties capable of
18
contracting; 2) their consent; 3) a lawful object; and, 4) sufficient consideration. Contract
19
formation requires mutual consent, which cannot exist unless the parties agree upon the same thing
20
in the same sense. Mutual assent is determined under an objective standard applied to the outward
21
manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts,
22
and not their unexpressed intentions or understandings. Where the existence of a contract is at
23
issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact
24
to determine whether the contract actually existed. But if the material facts are certain or
25
undisputed, the existence of a contract is a question for the court to decide. The question whether
26
the contract is sufficiently definite and certain in its essential terms to give rise to a legal obligation
27
is a question of law. HM DG, Inc. v. Amini (2013) 219 Cal.App.4th 1100, 1101.
28

- 9-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 Positive intention to create legal obligation is not necessary as an element of contract, since
2 words which would be understood by a reasonable person as importing promise may establish a
3 contract despite the subjective intent of the party using them. Findleton v. Taylor (1962), 208 Cal.
4 App. 2d 651.
5
1. MR. ELLIOTT made a clear and definite offer, there was an absolute and
6 unconditional acceptance and there was mutual assent on the consideration

7 a. MR. ELLIOTT’s explicit offer to settle the Judgment and Lien

8 “An offer is the manifestation of willingness to enter into a bargain, so made as to justify
9 another person in understanding that his assent to that bargain is invited and will conclude it.” City
10 of Moorpark v. Moorpark Unified School Dist. (1991) 54 Cal.3d 921, 930. Under basic contract
11 law “ ‘[a]n offer must be sufficiently definite, or must call for such definite terms in the acceptance
12 that the performance promised is reasonably certain.’ ” Ladas v. California State Automobile Assn.

13 (1993) 19 Cal.App.4th 761, 770.

14 MR. ELLIOTT’s Settlement Offer was communicated in writing to RABOBANK’s Vice-

15 President and Senior Special Assets Officer, Frank Oliver. As noted above, the offer specified: a

16 total payment of $140,000, payable in four installments, the timeline for the installments, with the

17 payment obligation to be secured with certain collateral. MR. ELLIOTT explicitly stated that the
offer was intended to “settle the judgment against me and my assets.” MR. ELLIOTT clarified that
18
he intended his offer to be in exchange for a full and final release, i.e., “I hope you seriously
19
review this as I do want to put this [judgment and liens] behind me.” There can be no question that
20
MR. ELLIOTT’S offer manifested a willingness to settle on specific terms. Additionally, the offer
21
was sufficiently definite rendering the performance promised reasonably certain. Weddington
22
Productions, Inc. v. Flick (1998) 60 Cal. App. 4th 793, 811–812.
23
b. RABOBANK’s unconditional acceptance of MR. ELLIOTT’s offer
24
The acceptance must be absolute and unqualified. Civ. Code § 1585; King v. Stanley (1948)
25
32 Cal. 2d 584, 588, disapproved on other grounds, Patel v. Liebermensch (2008) 45 Cal. 4th 344,
26
351 n.4. An acceptance, to be effective, must comply with the terms of the offer in every respect,
27
but it is not essential that the acceptance repeat the identical language. Schreiber v. Hooker (1952)
28
114 Cal. App. 2d 634, 639.

- 10-
_______________________________________________________________________________
Memorandum of Points and Authorities in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 A minor possible ground of disagreement in an otherwise complete agreement
will not render the agreement uncertain. If the matters left for future agreement
2 are unessential, each party will be forced to accept a reasonable determination of
the unsettled point, or, if possible, the unsettled point may be left unperformed
3 and the remainder of the contract enforced. The law does not favor the
destruction of contracts because of uncertainty. Courts will construe
4
agreements to carry into effect the reasonable intentions of the parties if they
5 can be ascertained and are feasible. Wong v. Di Grazia (1963) 60 Cal. 2d 525,
539. A promise to agree in the future is unenforceable only when the uncertainty
6 or incompleteness prevents the court from knowing, with the aid of extrinsic
evidence if necessary, what to enforce. Okun v. Morton (1988) 203 Cal. App. 3d
7 805, 817, 819. [Emphasis added.]
8
Further, when the parties definitely agree on all of the essential terms of an agreement in a
9
writing, there is a contract even though the parties intend that a formal writing will be executed
10
later. Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 306–309.
11
RABOBANK’S intentions to accept MR. ELLIOTT’S offer are evidenced by Mr. Oliver’s
12
absolute and unqualified writing. As RABOBANK’s Vice President and Senior Special Assets
13
Officer, Mr. Oliver had the authority to bind the bank. Mr. Oliver did not equivocate in this
14
regard. Rather, in direct response to the Settlement Offer, using the same email string with the
15
same subject line, “Premium Fresh Judgment”, Mr. Oliver replied, “We [RABOBANK] are
16
willing to accept the $140,000 as payment to release the RABOBANK Lien. I would suggest that
17
you begin building a savings account.” Mr. Oliver encouraged MR. ELLIOTT to build his savings
18
account to ensure final resolution of the Judgment and Lien as contemplated by MR. ELLIOTT.
19
Mr. Oliver sent the acceptance email a

Case Info

Case No.

(Subscribe to View)

Document Filed Date

July 14, 2022

Case Filing Date

December 20, 2021

County

Parties

Andrea Cruz Avila Attorney for the Plaintiff
Matthew Scott Kennedy Attorney for the Defendant
Mechanics Bank, a California corporation, as the Successor-in-Interest to Rabobank, N.A., a California corporation Defendant
MECHANICS BANK, a California corporation, successor by merger to Rabobank, N.A. Defendant
Mechanics Bank, successor-in-interest by merger to Rabobank, N.A. (Rabobank, N.A. erroneously also named) Defendant
Nina Michele Patane Attorney for the Plaintiff
Rabobank, N.A., a California corporation Defendant
Robert T. Elliott Plaintiff
Scott Kennedy Attorneys for Defendants
MATTHEW SHELTON Attorneys for Defendants
Paul Moncrief Attorney
David Shapiro Attorney
Robert Tapscott Attorney
Michael Sosnowski Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

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

Preview

Related Topics

Case Info

Parties