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1 Chi N. Dinh, Esq. (SBN 273631)
LAW OFFICE OF CHI N. DINH
2 28251 Capitola Street ELECTRONICALLY
3 Hayward, CA 94545 F I L E D
Telephone Number: (510) 512-6606 Superior Court of California,
County of San Francisco
4 Email Address: chidinh010@gmail.com
05/20/2020
5 Attorney for Defendant Clerk of the Court
BY: EDNALEEN ALEGRE
VISHNU SHANKAR Deputy Clerk
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SAN FRANCISCO
9
COLLECT ACCESS LLC, a California Case No. CGC-19-577708
10 Limited Liability Company, (Unlimited Civil Case)
11 Plaintiff, DEFENDANT'S SEPARATE STATEMENT
IN OPPOSITION TO PLAINTIFF'S
12
AND MOTION FOR SUMMARY JUDGMENT,
13 OR IN THE ALTERNATIVE, SUMMARY
VISHNU SHANKAR, an individual; DOES ADJUDICATION
14 Ito 10, Inclusive
[Code of Civil Procedure § 437c(b); Rule
15
Defendants. 3.1350, California Rules of Court]
16
Hearing Date: June 4, 2020
17 Hearing Time: 9:30 a.m.
Hearing Dept.: 302
18
Hearing Location: 400 McAllister Street
19 San Francisco, CA 94102
20 Complaint Filed: August 8,2019
Trial Date: July 13, 2020
21
Res. No.: 012120604-04
22
TO ALL PARTIES AND THEIR ATTORNEY OF RECORD:
23
Pursuant to California Code of Civil Procedure § 437c(b)(3), Defendant Vishnu Shankar
24
25 (- Shankar"), by and through his counsel of record, the Law Office of Chi N. Dinh, hereby submits the
26 following separate statement in opposition to the motion for summary judgment, or in the alternative,
27 for summary adjudication, filed by Plaintiff Collect Access LLC ("Collect Access"). Shankar notes that
28
- 1 -
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
1 those statements that are identified as "Undisputed- are only undisputed for purposes of this motion for
2 summary judgment or summary adjudication and do not constitute admissions of such facts.
3
SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS
4
5 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE AND
6 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE
7 EVIDENCE
8 1. On or about July 10, 2015, Defendant Shankar Undisputed.
9 entered into an Equipment Finance Agreement
with Financial Pacific Leasing, Inc. (- FPL")
10
for the finance of dental equipment for
11
Shankar's dental practice.
12
Declaration of Moe Essa ("Dec. of Essa')15,
13
Exhibit A - Equipment Finance Agreement and
14 Guarantee
15
2. The lease term for the dental equipment was Undisputed.
16 for 60 months
17 Dec. of Essa 115, Exhibit A- Equipment
18 Finance Agreement and Guarantee
19 3. The Equipment Finance Agreement start date Undisputed.
20 was July 10, 2015.
21 Dec. of Essa 17, Exhibit A — Equipment
22 Finance Agreement and Guarantee
23 4. On July 10, 2015, Shankar signed the FPL Undisputed.
24 Equipment Finance Agreement and Guarantee
25 Guarantee in which Shankar unconditionally
guaranteed to Secured Party the prompt
26
payment when due of all Customers's
27
obligations to the Secured Party.
28
-2
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
1 Dec. of Essa ¶7, Exhibit A - Equipment
2 Finance Agreement and Guarantee
3 5. The Equipment Finance Agreement recited: Undisputed.
4 "17. DEFAULT & REMEDIES: If (a)
5 Customer fails to make any payment required
6 pursuant to this Agreement when due, (b)
Customer fails to perform any obligation in
7
this Agreement or any other agreement with
8
Secured Party or its assignees, (c) any
9
representation or warranty by the Customer
10
contained herein is false, (d) as solely
II
determined by the Secured Party, an adverse
12 change occurs in the Customer's fi nancial
13 condition or Secured Party believes the
14 prospect of payment or performance is
15 impaired or (e) Customer attemps or actually
repudiates or revokes this Agreement or any
16
other agreement with Secured Party or its
17
assignees, then Customer will be in default.
18
Dec. Of Essa ¶5, Exhibit A- Equipment
19
Finance Agreement and Guarantee
20
5. The Equipment Finance Agreement recited: Undisputed, except that it is a duplicate.
21
"17. DEFAULT & REMEDIES: If (a)
22 Customer fails to make any payment required
23 pursuant to this Agreement when due, (b)
24 Customer fails to perform any obligation in
25 this Agreement or any other agreement with
26 Secured Party or its assignees, (c) any
representation or warranty by the Customer
27
contained herein is false. (d) as solely
28
3
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
I determined by the Secured Party, an adverse
2 change occurs in the Customer's financial
3 condition or Secured Party believes the
4 prospect of payment or performance is
impaired or (e) Customer attemps or actually
5
repudiates or revokes this Agreement or any
6
other agreement with Secured Party or its
7
assignees, then Customer will be in default.
8
Dec. of Essa 1115, Exhibit A- Equipment
9 Finance Agreement and Guarantee.
10
6. The Equipment Finance Agreement recited: If Disputed. California and Washington laws do not
11 Customer is in default, Secured Party, with or permit pre-default waiver.
12 without notice to Customer, shall have the Supporting Evidence:
13 right to exercise any one or more of the RCW 62A.9A-624(a); People Bank v.Bluewater
14 following remedies, concurrently or Cruising LLC, 2014WL202105, at * 6 (W.D.
separately, and without any election of Wash. Jan. 17, 2014); Cerritos Valley Bank v.
15
remedies being deemed to have been made. Stirling, 81 Cal .App.4th 1108, 1 14 (2d
16
Secured party may... (c) sue for and recover Dist.2000): Cal. Com. Code 9501, 9504 (barring
17
from Customer any and all amounts due under pre-default waiver of notice).
18
this Agreement. . . (h) refer this Agreement to
19 for collection; or (i) pursue any
an attorney
20 other remedy available to the Secured Party
21 under any agreement or applicable law.
22 Dec. of Essa¶5, Exhibit A- Equipment Finance
23 Agreement and Guarantee
24 7. The Agreement recited "21 . SECURED Disputed. California and Washington laws do not
25 PARTY'S ASSIGNMENT. Secured Party permit waiver of certain rights. Waiver of
may assign all or any of Secured Party's other defenses that violate public policy is void. Pre-
26
rights hereunder. After such assignment, default waiver of notice is void. Waiver of usury
27
Customer waives any right Customer may defense is void. Moreover, the law does not
28
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DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
1 have to claim or assert any defenses, setoffs or permit debtor or guarantor to waive the
2 counterclaims against assignee of Secured commercial reasonableness requirement.
3 Party . . . Following such assignment, solely Supporting Evidence:
4 for the purpose of determining assignee's RCW 62A.9A-624(a); People Bank v.Bluewater
rights hereunder, the term - Secured Party" hall Cruising LLC, 2014WL202105. at * 6 (W.D.
5
be deemed to include or refer to Secured Wash. Jan. 17, 2014); Cerritos Valley Bank v.
6
Party's assignee." Stirling, 81 Cal.App.4th 1 108, 1 14 (2d
7
Dec. of Essa ¶5, Exhibit A- Equipment Finance Dist.2000); Cal. Com. Code 9501, 9504 (barring
8
Agreement and Guarantee pre-default waiver of notice); RCW 62A.9-
9 501(3)(b); RCW 62A.9-504(3); Security State
10 Bank v. Burk, 100 Wash.App. 94, 99-100 (2000);
11 Cal. Com code 9626; Bank of America v. Lallana,
12 19 Ca1.4th 203, 224 (Cal. 1998); RCW 62A.9A-
403; Cal. Com. Code § 9403; WRI Opportunity
13
Loans III, LLC v. Cooper, 154 Cal.App.4th 525,
14
544-45 (2d Dist. 2007) (waiver of usury defense
15
void).
16
8. Defendant is operating a business under the Undisputed, except that it is irrelevant.
17
name DR. VISHNU SHANKAR and/or
18
VISHNU SHANKAR, D.D.S. The Guarantee
19
recites: "To induce Secured party to enter into
20 an Agreement with otherwise extend financial
21 accommodations to VISHNU SHANKAR
22 DBA SOUTH VALLEY DENTISTS
23 (- Customer"), the undersigned Guarantor
unconditionally guarantees to Secured Party
24
the prompt payment when due of all
25
Customer's obligations to Secured Party.
26
Secured Party shall not be required to proceed
27
against the Customer or the Equipment or
28
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DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
1 enforce any other remedy before proceeding
2 against the undersigned ...Guarantor waives
3 any right to require Secured Party to apply
4 payments in a certain manner and
acknowledges that Secured Party may apply
5
payments received in the fashion most
6
advantageous to Secured Party... This
7
continuing Guarantee shall bind the heirs,
8
administrators, representatives, successors, and
9 assigns of the undersigned and may be
10 enforced by or for the benefit of any assignee
11 or successor of Secured Party.-
12 Dec. of Essa¶5, Exhibit A- Equipment Finance
13 Agreement and Guarantee
14 9. Shankar understood that, in signing the Undisputed.
15 personal guarantee, he was guaranteeing
repayment of the obligations to FPL.
16
Dec. of Essa¶5, Exhibit A- Equipment Finance
17
Agreement and Guarantee
18
10. Pursuant to the terms of the written agreement Disputed. Based on the calculation in the
19
as between Defendant and FPL, Defendant agreement, the sum was $107,838.80.
20
agreed to pay the sum of $1 10,589.04. Supporting Evidence:
21
Dec. of Essa ¶5, Exhibit A- Equipment Finance Declaration of Vishnu Shankar in Support of
22 Agreement and Guarantee opposition to Collect Access LLC's Motion for
23 Summary Judgment, or in the alternative,
24 Summary Adjudication ("Shankar Decl.") Till 7,
25 15.
26 11. On August 23, 2016, Shankar signed an Undisputed.
27 Addendum to Contract for Contract # 1-
28 1125509-301.
6
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
1 Dec. of Essa 119, Exhibit B- Addendum
2
12. The Addendum changed the contract schedule Undisputed.
3 to "Monthly payments of $ 1,762.34 plus any
4 applicable taxes beginning Sep. 15, 2016 and
5 ending Nov. 15, 2020."
6 Dec of Essa 119, Exhibit B- Addendum
7 13. The Addendum further recited "All other Undisputed.
8 terms and conditions of the Contract
Agreement and Guarantee(s) remain in full
9
force and effect."
10
Dec. of Essa ¶9, Exhibit B- Addendum
11
14. On or around May 22, 2017, FPI, sent Vishnu Disputed. Shankar did not receive the demand
12
Shankar a letter demanding that he pay the letter. California and Washington laws require
13
sum of $91,528.83 on or before 6/1/2017. The that notice of disposition be provided to debtor or
14
amount is composed of the accelerated balance guarantor. Also. Shankar disputes the amount
15
of payments remaining, the residual, any owed. First, the deficiency amount is significantly
16 applicable taxes, and any late or miscellaneous less than the amount allegedly owed because the
17 charges. dental equipment was not sold in a commercially
18 Dec. of Essa Exhibit C- Letter dated reasonable manner. Second, Exhibit E, the Leased
19 5/22/17 Contract — Payment History Inquiry does not
20 match the amount that is allegedly is owed.
Supporting Evidence:
21
Shankar Decl. ¶J 13-15, 17-22, Exhibit A; Cal.
22
Com. Code § 9613; RCW 62A.9A-611; Cal.
23
Corn. Code § 9626; RCW 62A.9A-610.
24
15. FPL further advised Shankar that the Disputed. Shankar did not receive the demand
25
equipment will be sold by private sale to be letter. California and Washington laws require
26
held on or after 6/1/2017. that notice of disposition be provided to debtor or
27 Dec. of Essa '1110, Exhibit C- Letter dated guarantor.
28
7
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
1 5/22/17 Supporting Evidence:
2 Shankar Decl. 11¶ 13-15, Cal. Corn. Code § 9613;
3 RCW 62A.9A-611.
4 16. Shankar did not pay the outstanding balance Disputed. Shankar disputes the amount owed.
5 by 6/1/2017. Exhibit E, the Leased Contract — Payment History
6 Dec. of Essa 1110, Exhibit C- Letter dated Inquiry does not match the amount allegedly
5/22/17 owed.
7
Supporting Evidence:
8
Shankar Decl. ¶ 16.
9
17. On June 6, 2017, FPL sent another letter to Disputed. Shankar did not receive the demand
10
Shankar giving notice that FPL has taken letter. California and Washington laws require
11
possession of the equipment under contract that notice of disposition be provided to debtor or
12
number 1125509301. guarantor. Also, Shankar disputes the amount
13 Exhibit D- Letter dated owed. First, the deficiency amount is significantly
Dec. of Essa '111 1,
14 6/6/17 less the alleged because the dental equipment was
15 not sold in a commercially reasonable manner.
16 Second, Exhibit E, the Leased Contract —
17 Payment History Inquiry does not match the
amount allegedly owed.
18
Supporting Evidence:
19
Shankar Decl. ¶J 13-15, 17-22, Exhibit A; Cal.
20
Corn. Code § 9613; RCW 62A.9A-611; Cal.
21
Corn. Code § 9626; RCW 62A.9A-610.
22
18. FPL further demanded that he pay the sum of Disputed. Shankar did not receive the demand
23
$91,528.83 on or before 6/16/2017. letter. California and Washington laws require
24 D- Letter dated that notice of disposition be provided to debtor or
Dec. of Essa ¶11, Exhibit
25 6/6/17 guarantor. Also, Shankar disputes the amount
26 owed. First, the deficiency amount is significantly
27 less than the amount allegedly owed because the
dental equipment was not sold in a commercially
28
8
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
reasonable manner. Second, Exhibit E, the Leased
2 Contract — Payment History Inquiry does not
3 match the amount that is allegedly owed.
4 Supporting Evidence:
Shankar Decl. ¶ 13-15, 17-22, Exhibit A; Cal.
5
Com. Code § 9613; RCW 62A.9A-61 1 ; Cal.
6
Com. Code § 9626; RCW 62A.9A-610.
7
19. Shankar did not pay the outstanding balance Disputed. Shankar disputes the amount owed.
8
by 6/16/2017. First, the deficiency amount is significantly less
9
Dec. of Essa 111 1, Exhibit D- Letter dated because the dental equipment was not sold in a
10
6/6/17 commercially reasonable manner. Second,
11 Exhibit E, the Leased Contract — Payment History
12 Inquiry, does not match the amount that that is
13 allegedly owed.
14 Supporting Evidence:
15 Shankar Decl. ¶J 17-22, Exhibit A; Cal. Com.
Code § 9613; RCW 62A.9A-611; Cal. Com.
16
Code § 9626; RCW 62A.9A-610.
17
20. On October 25, 2017, Defendant breached the Disputed. Shankar called to return the dental
18
agreement by failing to make payment as equipment, which Henry Schein picked up in
19
agreed and the account was elevated to full May 2017. Therefore. Shankar did not breach on
20
default. October 25, 2017.
21
Dec. of Essa 1 2. Supporting Evidence:
22 Shankar Decl. ¶ 10.
23
21. Shankar has refused and continues to refuse to Disputed. Shankar called and returned the dental
24 terms of the Equipment equipment. which Henry Schein picked up in
comply with the
25 Finance Agreement and Guarantee. May 2017.
26 Dec. of Essa ¶12.
27 Supporting Evidence:
28 Shankar Decl. ¶ 10.
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DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
1 22. At the time of Defendant's breach of the Disputed. Shankar disputes the amount owed.
2 agreement, the amount due by Defendant First, the deficiency amount, which Collect
3 totaled $79,697.00. Access failed to provide, is significantly less than
4 Dec. of Essa¶14. the amount that is allegedly owed because the
dental equipment was not sold in a commercially
5
reasonable manner. Second, Exhibit E, the Leased
6
Contract — Payment History Inquiry does not
7
match the amount that is allegedly owed.
8
Supporting Evidence:
9 Shankar Decl. TT 13-15, 17-22, Exhibit A; Cal.
10 Corn. Code § 9613; RCW 62A.9A-611; Cal.
11 Com. Code § 9626; RCW 62A.9A-610.
12 23. Pursuant California Civil Code Section 3287 Disputed. The interest rate violates California and
13 and pursuant to the terms of the written Washington usury laws.
14 agreement alleged herein, interest upon the
15 balance outstanding accrues at the rate of Supporting Evidence:
18.00%. RCW 62A.9A-201; California Const. Art. XV
16
Dec. of Essa 115, Exhibit A- Equipment Finance §1; Cal. Corn. Code §§ 9201-9208; WRI
17
Agreement and Guarantee Opportunity Loans III, LLC v. Cooper, 154
18
Cal.App.4th 525, 544-45 (2d Dist. 2007).
19
24. Vishu Shankar does business as South Valley Disputed and irrelevant. Shankar stopped
20
Dentists at 6950 Santa Teresa Blvd., Suite C, operating South Bay Dentists on or about
21
San Jose, CA 951 19. November 30, 2016.
22 Dec. of Essa 115 , Exhibit A- Equipment Finance Supporting Evidence:
23 Agreement and Guarantee Shankar Decl. ¶ 8.
24 November 16, 2018, Original Disputed. Financial Pacific Leasing, Inc., did not
25. On or around
25 Creditor, Financial Pacific Leasing, Inc., assign Shankar's account to Cherrywood
26 assigned all right and claims for the above Enterprises, LLC. The Bill of Sale, which is
27 referenced Equipment Finance Agreement to attached as Exhibit E, does not reference the
28 Plaintiffs Assignor, Cherrywood Enterprises, Equipment Finance Agreement, Shankar 's name,
- 10 -
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
I LLC, in this matter. his account number, or the account balance. As a
2 Dec. of Essa 1118, Exhibit E- Bill of Sale result, Shankar's account has not been assigned to
3 Collect Access.
4 Supporting Evidence:
Dec. of Essa 1118, Exhibit E- Bill of Sale; Mission
5
Valley East, Inc. v. County of Kern, 120
6
Cal.App.3d 89, 97 (5th Dist. 1981) (An
7
assignment agreement "must describe the subject
8
matter of the assignment with sufficient
9 particularity to identify the rights assigned."); In
10 re Stephens, 443 B.R. 225, 229-30 (Bankr. M.D.
11 Georgia 2020), disapproved on difference ground
12 in In re Pursley, 451 B.R. 213 (Bankr. M.D. Ga.
2011) (There was no evidence of assignment
13
since there were - no documents identifying the
14
account holder, the account number, and the
15
account balance.")
16
26. On or around December 4, 2018, Plaintiff's Disputed. Cherrywood Enterprises, LLC, did not
17
Assignor, Cherrywood Enterprises, LLC, assign Shankar's account to Collect Access. The
18
assigned all right and claims for the above Bill of Sale attached as Exhibit F does not
19
referenced Equipment Finance Agreement to reference the Equipment Finance Agreement,
20 Plaintiff, Collect Access, LLC, in this matter. Shankar's name, his account number, or the
21 Dec. of Essa 1119, Exhibit F- Bill of Sale account balance. As a result, Shankar's account
22 has not been assigned to Collect Access.
23 Supporting Evidence:
Dec. of Essa ¶18, Exhibit E- Bill of Sale: Dec. of
24
Essa 1119, Exhibit F- Bill of Sale; Mission Valley
25
East, Inc. v. County of Kern, 120 Cal.App.3d 89,
26
97 (5th Dist. 1981) (An assignment agreement
27
"must describe the subject matter of the
28
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
assignment with sufficient particularity to identify
2 the rights assigned."); In re Stephens, 443 B.R.
3 225, 229-30 (Bankr. M.D. Georgia 2020),
4 disapproved on difference ground in In re
Fursley, 451 B.R. 213 (Bankr. M.D. Ga. 2011)
5
(There was no evidence of assignment since there
6
were no documents identifying the account
7
holder, the account number, and the account
8
balance.").
9
27. Plaintiff has performed all conditions, Disputed. The two bills of sale, attached as
10
covenants and promises required by it on its Exhibits E and F, do not reference the Equipment
11 part to be performed in accordance with the Finance Agreement, Shankar's name, his account
12 terms and conditions of the Agreement. number, or the account balance. As a result,
13 Dec. of Essa ¶14 Shankar's account has not been assigned to
14 Collect Access, and it is not the assignee of
15 Shankar's account.
Supporting Evidence:
16
Dec. of ESSCI 1118, Exhibit E- Bill of Sale; Dec. of
17
Essa 1119, Exhibit F- Bill of Sale; Mission Valley
18
East, Inc. v. County of Kern, 120 Cal.App.3d 89,
19 Dist. 1981) (An assignment agreement
97 (5th
20 "must describe the subject matter of the
21 assignment with sufficient particularity to identify
22 the rights assigned.- ); In re Stephens, 443 B.R.
23 225, 229-30 (Bankr. M.D. Georgia 2020),
disapproved on difference ground in In re
24
Pursley, 451 B.R. 213 (Bankr. M.D. Ga. 2011)
25
(There was no evidence of assignment since there
26
were no documents identifying the account
27
holder, the account number, and the account
28
- 12 -
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
1 balance.").
2
28. Shankar is a guarantor, who irrevocably Disputed. Shankar did not "irrevocably
3 promised to answer for the debt or perform promised" to answer for the debt or perform his
4 Shankar's obligations in the event that Vishnu obligation.
5 Shankar dba South Valley Dentists, ultimately Supporting Evidence:
6 failed to pay or perform. Dec. of Essa 115, Exhibit A, Equipment Finance
Dec. of Essa 115, Exhibit A- Equipment Agreement and Guarantee
7
Finance Agreement and Guarantee
8
9 29. On or about October 11, 2019, Collect Access Undisputed.
served Discovery Requests, including
10
Requests for Admissions, Set No. One, on
11
Shankar.
12
Dec. of Barrientos ¶3, Exhibit I — Plaintiff
13
Collect Access LLC Requests for Admissions
14 to Defendant Vishnu Shankar (Set One)
15
30. On or about December 9, 2019, Collect Access Undisputed as to the signature, but disputed as to
16 received Shankar's responses to the Requests signing the document labeled - Equipment
17 for Admissions. In his Verified Responses to Financial Agreement and Guarantee."
18 the Requests for Admission. Shankar admitted Dec. of Essa 115, Exhibit A- Equipment Finance
19 that it was his signature on the document Agreement and Guarantee
20 labeled Equipment Finance Agreement and
Guarantee.
21
Dec. of Barrientos 114, Exhibit 2 — Defendant
22
Vishnu Shankar's Responses to Plaintiff's
23
Requests for Admission (Set One)
24
31. Plaintiff has not received any payments from Disputed. The two bills of sale, attached as
25
Shankar after the Equipment Finance Exhibits E and F, do not reference the Equipment
26 name, his account
Agreement was assigned to Plaintiff. Finance Agreement, Shankar's
27 Dec. of Essa .1117; Dec. of Barrientos 115 number, or the account balance. As a result,
28
- I3 -
DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708
1 Shankar's account has not been assigned to
2 Collect Access.
3 Supporting Evidence:
4 Dec. of Essa 1119, Exhibit F- Bill of Sale; Mission
Valley East, Inc. v. County of Kern, 120
5
Cal.App.3d 89, 97 (5th Dist. 1981) (An
6
assignment agreement - must describe the subject
7
matter of the assignment with sufficient
8 particularity to identify the rights assigned.- ); In
9
Preview
1 Chi N. Dinh, Esq. (SBN 273631) LAW OFFICE OF CHI N. DINH 2 28251 Capitola Street ELECTRONICALLY 3 Hayward, CA 94545 F I L E D Telephone Number: (510) 512-6606 Superior Court of California, County of San Francisco 4 Email Address: chidinh010@gmail.com 05/20/2020 5 Attorney for Defendant Clerk of the Court BY: EDNALEEN ALEGRE VISHNU SHANKAR Deputy Clerk 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN FRANCISCO 9 COLLECT ACCESS LLC, a California Case No. CGC-19-577708 10 Limited Liability Company, (Unlimited Civil Case) 11 Plaintiff, DEFENDANT'S SEPARATE STATEMENT IN OPPOSITION TO PLAINTIFF'S 12 AND MOTION FOR SUMMARY JUDGMENT, 13 OR IN THE ALTERNATIVE, SUMMARY VISHNU SHANKAR, an individual; DOES ADJUDICATION 14 Ito 10, Inclusive [Code of Civil Procedure § 437c(b); Rule 15 Defendants. 3.1350, California Rules of Court] 16 Hearing Date: June 4, 2020 17 Hearing Time: 9:30 a.m. Hearing Dept.: 302 18 Hearing Location: 400 McAllister Street 19 San Francisco, CA 94102 20 Complaint Filed: August 8,2019 Trial Date: July 13, 2020 21 Res. No.: 012120604-04 22 TO ALL PARTIES AND THEIR ATTORNEY OF RECORD: 23 Pursuant to California Code of Civil Procedure § 437c(b)(3), Defendant Vishnu Shankar 24 25 (- Shankar"), by and through his counsel of record, the Law Office of Chi N. Dinh, hereby submits the 26 following separate statement in opposition to the motion for summary judgment, or in the alternative, 27 for summary adjudication, filed by Plaintiff Collect Access LLC ("Collect Access"). Shankar notes that 28 - 1 - DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 1 those statements that are identified as "Undisputed- are only undisputed for purposes of this motion for 2 summary judgment or summary adjudication and do not constitute admissions of such facts. 3 SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS 4 5 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE AND 6 MATERIAL FACTS AND SUPPORTING SUPPORTING EVIDENCE 7 EVIDENCE 8 1. On or about July 10, 2015, Defendant Shankar Undisputed. 9 entered into an Equipment Finance Agreement with Financial Pacific Leasing, Inc. (- FPL") 10 for the finance of dental equipment for 11 Shankar's dental practice. 12 Declaration of Moe Essa ("Dec. of Essa')15, 13 Exhibit A - Equipment Finance Agreement and 14 Guarantee 15 2. The lease term for the dental equipment was Undisputed. 16 for 60 months 17 Dec. of Essa 115, Exhibit A- Equipment 18 Finance Agreement and Guarantee 19 3. The Equipment Finance Agreement start date Undisputed. 20 was July 10, 2015. 21 Dec. of Essa 17, Exhibit A — Equipment 22 Finance Agreement and Guarantee 23 4. On July 10, 2015, Shankar signed the FPL Undisputed. 24 Equipment Finance Agreement and Guarantee 25 Guarantee in which Shankar unconditionally guaranteed to Secured Party the prompt 26 payment when due of all Customers's 27 obligations to the Secured Party. 28 -2 DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 1 Dec. of Essa ¶7, Exhibit A - Equipment 2 Finance Agreement and Guarantee 3 5. The Equipment Finance Agreement recited: Undisputed. 4 "17. DEFAULT & REMEDIES: If (a) 5 Customer fails to make any payment required 6 pursuant to this Agreement when due, (b) Customer fails to perform any obligation in 7 this Agreement or any other agreement with 8 Secured Party or its assignees, (c) any 9 representation or warranty by the Customer 10 contained herein is false, (d) as solely II determined by the Secured Party, an adverse 12 change occurs in the Customer's fi nancial 13 condition or Secured Party believes the 14 prospect of payment or performance is 15 impaired or (e) Customer attemps or actually repudiates or revokes this Agreement or any 16 other agreement with Secured Party or its 17 assignees, then Customer will be in default. 18 Dec. Of Essa ¶5, Exhibit A- Equipment 19 Finance Agreement and Guarantee 20 5. The Equipment Finance Agreement recited: Undisputed, except that it is a duplicate. 21 "17. DEFAULT & REMEDIES: If (a) 22 Customer fails to make any payment required 23 pursuant to this Agreement when due, (b) 24 Customer fails to perform any obligation in 25 this Agreement or any other agreement with 26 Secured Party or its assignees, (c) any representation or warranty by the Customer 27 contained herein is false. (d) as solely 28 3 DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 I determined by the Secured Party, an adverse 2 change occurs in the Customer's financial 3 condition or Secured Party believes the 4 prospect of payment or performance is impaired or (e) Customer attemps or actually 5 repudiates or revokes this Agreement or any 6 other agreement with Secured Party or its 7 assignees, then Customer will be in default. 8 Dec. of Essa 1115, Exhibit A- Equipment 9 Finance Agreement and Guarantee. 10 6. The Equipment Finance Agreement recited: If Disputed. California and Washington laws do not 11 Customer is in default, Secured Party, with or permit pre-default waiver. 12 without notice to Customer, shall have the Supporting Evidence: 13 right to exercise any one or more of the RCW 62A.9A-624(a); People Bank v.Bluewater 14 following remedies, concurrently or Cruising LLC, 2014WL202105, at * 6 (W.D. separately, and without any election of Wash. Jan. 17, 2014); Cerritos Valley Bank v. 15 remedies being deemed to have been made. Stirling, 81 Cal .App.4th 1108, 1 14 (2d 16 Secured party may... (c) sue for and recover Dist.2000): Cal. Com. Code 9501, 9504 (barring 17 from Customer any and all amounts due under pre-default waiver of notice). 18 this Agreement. . . (h) refer this Agreement to 19 for collection; or (i) pursue any an attorney 20 other remedy available to the Secured Party 21 under any agreement or applicable law. 22 Dec. of Essa¶5, Exhibit A- Equipment Finance 23 Agreement and Guarantee 24 7. The Agreement recited "21 . SECURED Disputed. California and Washington laws do not 25 PARTY'S ASSIGNMENT. Secured Party permit waiver of certain rights. Waiver of may assign all or any of Secured Party's other defenses that violate public policy is void. Pre- 26 rights hereunder. After such assignment, default waiver of notice is void. Waiver of usury 27 Customer waives any right Customer may defense is void. Moreover, the law does not 28 -4- DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 1 have to claim or assert any defenses, setoffs or permit debtor or guarantor to waive the 2 counterclaims against assignee of Secured commercial reasonableness requirement. 3 Party . . . Following such assignment, solely Supporting Evidence: 4 for the purpose of determining assignee's RCW 62A.9A-624(a); People Bank v.Bluewater rights hereunder, the term - Secured Party" hall Cruising LLC, 2014WL202105. at * 6 (W.D. 5 be deemed to include or refer to Secured Wash. Jan. 17, 2014); Cerritos Valley Bank v. 6 Party's assignee." Stirling, 81 Cal.App.4th 1 108, 1 14 (2d 7 Dec. of Essa ¶5, Exhibit A- Equipment Finance Dist.2000); Cal. Com. Code 9501, 9504 (barring 8 Agreement and Guarantee pre-default waiver of notice); RCW 62A.9- 9 501(3)(b); RCW 62A.9-504(3); Security State 10 Bank v. Burk, 100 Wash.App. 94, 99-100 (2000); 11 Cal. Com code 9626; Bank of America v. Lallana, 12 19 Ca1.4th 203, 224 (Cal. 1998); RCW 62A.9A- 403; Cal. Com. Code § 9403; WRI Opportunity 13 Loans III, LLC v. Cooper, 154 Cal.App.4th 525, 14 544-45 (2d Dist. 2007) (waiver of usury defense 15 void). 16 8. Defendant is operating a business under the Undisputed, except that it is irrelevant. 17 name DR. VISHNU SHANKAR and/or 18 VISHNU SHANKAR, D.D.S. The Guarantee 19 recites: "To induce Secured party to enter into 20 an Agreement with otherwise extend financial 21 accommodations to VISHNU SHANKAR 22 DBA SOUTH VALLEY DENTISTS 23 (- Customer"), the undersigned Guarantor unconditionally guarantees to Secured Party 24 the prompt payment when due of all 25 Customer's obligations to Secured Party. 26 Secured Party shall not be required to proceed 27 against the Customer or the Equipment or 28 -5- DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 1 enforce any other remedy before proceeding 2 against the undersigned ...Guarantor waives 3 any right to require Secured Party to apply 4 payments in a certain manner and acknowledges that Secured Party may apply 5 payments received in the fashion most 6 advantageous to Secured Party... This 7 continuing Guarantee shall bind the heirs, 8 administrators, representatives, successors, and 9 assigns of the undersigned and may be 10 enforced by or for the benefit of any assignee 11 or successor of Secured Party.- 12 Dec. of Essa¶5, Exhibit A- Equipment Finance 13 Agreement and Guarantee 14 9. Shankar understood that, in signing the Undisputed. 15 personal guarantee, he was guaranteeing repayment of the obligations to FPL. 16 Dec. of Essa¶5, Exhibit A- Equipment Finance 17 Agreement and Guarantee 18 10. Pursuant to the terms of the written agreement Disputed. Based on the calculation in the 19 as between Defendant and FPL, Defendant agreement, the sum was $107,838.80. 20 agreed to pay the sum of $1 10,589.04. Supporting Evidence: 21 Dec. of Essa ¶5, Exhibit A- Equipment Finance Declaration of Vishnu Shankar in Support of 22 Agreement and Guarantee opposition to Collect Access LLC's Motion for 23 Summary Judgment, or in the alternative, 24 Summary Adjudication ("Shankar Decl.") Till 7, 25 15. 26 11. On August 23, 2016, Shankar signed an Undisputed. 27 Addendum to Contract for Contract # 1- 28 1125509-301. 6 DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 1 Dec. of Essa 119, Exhibit B- Addendum 2 12. The Addendum changed the contract schedule Undisputed. 3 to "Monthly payments of $ 1,762.34 plus any 4 applicable taxes beginning Sep. 15, 2016 and 5 ending Nov. 15, 2020." 6 Dec of Essa 119, Exhibit B- Addendum 7 13. The Addendum further recited "All other Undisputed. 8 terms and conditions of the Contract Agreement and Guarantee(s) remain in full 9 force and effect." 10 Dec. of Essa ¶9, Exhibit B- Addendum 11 14. On or around May 22, 2017, FPI, sent Vishnu Disputed. Shankar did not receive the demand 12 Shankar a letter demanding that he pay the letter. California and Washington laws require 13 sum of $91,528.83 on or before 6/1/2017. The that notice of disposition be provided to debtor or 14 amount is composed of the accelerated balance guarantor. Also. Shankar disputes the amount 15 of payments remaining, the residual, any owed. First, the deficiency amount is significantly 16 applicable taxes, and any late or miscellaneous less than the amount allegedly owed because the 17 charges. dental equipment was not sold in a commercially 18 Dec. of Essa Exhibit C- Letter dated reasonable manner. Second, Exhibit E, the Leased 19 5/22/17 Contract — Payment History Inquiry does not 20 match the amount that is allegedly is owed. Supporting Evidence: 21 Shankar Decl. ¶J 13-15, 17-22, Exhibit A; Cal. 22 Com. Code § 9613; RCW 62A.9A-611; Cal. 23 Corn. Code § 9626; RCW 62A.9A-610. 24 15. FPL further advised Shankar that the Disputed. Shankar did not receive the demand 25 equipment will be sold by private sale to be letter. California and Washington laws require 26 held on or after 6/1/2017. that notice of disposition be provided to debtor or 27 Dec. of Essa '1110, Exhibit C- Letter dated guarantor. 28 7 DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 1 5/22/17 Supporting Evidence: 2 Shankar Decl. 11¶ 13-15, Cal. Corn. Code § 9613; 3 RCW 62A.9A-611. 4 16. Shankar did not pay the outstanding balance Disputed. Shankar disputes the amount owed. 5 by 6/1/2017. Exhibit E, the Leased Contract — Payment History 6 Dec. of Essa 1110, Exhibit C- Letter dated Inquiry does not match the amount allegedly 5/22/17 owed. 7 Supporting Evidence: 8 Shankar Decl. ¶ 16. 9 17. On June 6, 2017, FPL sent another letter to Disputed. Shankar did not receive the demand 10 Shankar giving notice that FPL has taken letter. California and Washington laws require 11 possession of the equipment under contract that notice of disposition be provided to debtor or 12 number 1125509301. guarantor. Also, Shankar disputes the amount 13 Exhibit D- Letter dated owed. First, the deficiency amount is significantly Dec. of Essa '111 1, 14 6/6/17 less the alleged because the dental equipment was 15 not sold in a commercially reasonable manner. 16 Second, Exhibit E, the Leased Contract — 17 Payment History Inquiry does not match the amount allegedly owed. 18 Supporting Evidence: 19 Shankar Decl. ¶J 13-15, 17-22, Exhibit A; Cal. 20 Corn. Code § 9613; RCW 62A.9A-611; Cal. 21 Corn. Code § 9626; RCW 62A.9A-610. 22 18. FPL further demanded that he pay the sum of Disputed. Shankar did not receive the demand 23 $91,528.83 on or before 6/16/2017. letter. California and Washington laws require 24 D- Letter dated that notice of disposition be provided to debtor or Dec. of Essa ¶11, Exhibit 25 6/6/17 guarantor. Also, Shankar disputes the amount 26 owed. First, the deficiency amount is significantly 27 less than the amount allegedly owed because the dental equipment was not sold in a commercially 28 8 DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 reasonable manner. Second, Exhibit E, the Leased 2 Contract — Payment History Inquiry does not 3 match the amount that is allegedly owed. 4 Supporting Evidence: Shankar Decl. ¶ 13-15, 17-22, Exhibit A; Cal. 5 Com. Code § 9613; RCW 62A.9A-61 1 ; Cal. 6 Com. Code § 9626; RCW 62A.9A-610. 7 19. Shankar did not pay the outstanding balance Disputed. Shankar disputes the amount owed. 8 by 6/16/2017. First, the deficiency amount is significantly less 9 Dec. of Essa 111 1, Exhibit D- Letter dated because the dental equipment was not sold in a 10 6/6/17 commercially reasonable manner. Second, 11 Exhibit E, the Leased Contract — Payment History 12 Inquiry, does not match the amount that that is 13 allegedly owed. 14 Supporting Evidence: 15 Shankar Decl. ¶J 17-22, Exhibit A; Cal. Com. Code § 9613; RCW 62A.9A-611; Cal. Com. 16 Code § 9626; RCW 62A.9A-610. 17 20. On October 25, 2017, Defendant breached the Disputed. Shankar called to return the dental 18 agreement by failing to make payment as equipment, which Henry Schein picked up in 19 agreed and the account was elevated to full May 2017. Therefore. Shankar did not breach on 20 default. October 25, 2017. 21 Dec. of Essa 1 2. Supporting Evidence: 22 Shankar Decl. ¶ 10. 23 21. Shankar has refused and continues to refuse to Disputed. Shankar called and returned the dental 24 terms of the Equipment equipment. which Henry Schein picked up in comply with the 25 Finance Agreement and Guarantee. May 2017. 26 Dec. of Essa ¶12. 27 Supporting Evidence: 28 Shankar Decl. ¶ 10. -9- DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 1 22. At the time of Defendant's breach of the Disputed. Shankar disputes the amount owed. 2 agreement, the amount due by Defendant First, the deficiency amount, which Collect 3 totaled $79,697.00. Access failed to provide, is significantly less than 4 Dec. of Essa¶14. the amount that is allegedly owed because the dental equipment was not sold in a commercially 5 reasonable manner. Second, Exhibit E, the Leased 6 Contract — Payment History Inquiry does not 7 match the amount that is allegedly owed. 8 Supporting Evidence: 9 Shankar Decl. TT 13-15, 17-22, Exhibit A; Cal. 10 Corn. Code § 9613; RCW 62A.9A-611; Cal. 11 Com. Code § 9626; RCW 62A.9A-610. 12 23. Pursuant California Civil Code Section 3287 Disputed. The interest rate violates California and 13 and pursuant to the terms of the written Washington usury laws. 14 agreement alleged herein, interest upon the 15 balance outstanding accrues at the rate of Supporting Evidence: 18.00%. RCW 62A.9A-201; California Const. Art. XV 16 Dec. of Essa 115, Exhibit A- Equipment Finance §1; Cal. Corn. Code §§ 9201-9208; WRI 17 Agreement and Guarantee Opportunity Loans III, LLC v. Cooper, 154 18 Cal.App.4th 525, 544-45 (2d Dist. 2007). 19 24. Vishu Shankar does business as South Valley Disputed and irrelevant. Shankar stopped 20 Dentists at 6950 Santa Teresa Blvd., Suite C, operating South Bay Dentists on or about 21 San Jose, CA 951 19. November 30, 2016. 22 Dec. of Essa 115 , Exhibit A- Equipment Finance Supporting Evidence: 23 Agreement and Guarantee Shankar Decl. ¶ 8. 24 November 16, 2018, Original Disputed. Financial Pacific Leasing, Inc., did not 25. On or around 25 Creditor, Financial Pacific Leasing, Inc., assign Shankar's account to Cherrywood 26 assigned all right and claims for the above Enterprises, LLC. The Bill of Sale, which is 27 referenced Equipment Finance Agreement to attached as Exhibit E, does not reference the 28 Plaintiffs Assignor, Cherrywood Enterprises, Equipment Finance Agreement, Shankar 's name, - 10 - DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 I LLC, in this matter. his account number, or the account balance. As a 2 Dec. of Essa 1118, Exhibit E- Bill of Sale result, Shankar's account has not been assigned to 3 Collect Access. 4 Supporting Evidence: Dec. of Essa 1118, Exhibit E- Bill of Sale; Mission 5 Valley East, Inc. v. County of Kern, 120 6 Cal.App.3d 89, 97 (5th Dist. 1981) (An 7 assignment agreement "must describe the subject 8 matter of the assignment with sufficient 9 particularity to identify the rights assigned."); In 10 re Stephens, 443 B.R. 225, 229-30 (Bankr. M.D. 11 Georgia 2020), disapproved on difference ground 12 in In re Pursley, 451 B.R. 213 (Bankr. M.D. Ga. 2011) (There was no evidence of assignment 13 since there were - no documents identifying the 14 account holder, the account number, and the 15 account balance.") 16 26. On or around December 4, 2018, Plaintiff's Disputed. Cherrywood Enterprises, LLC, did not 17 Assignor, Cherrywood Enterprises, LLC, assign Shankar's account to Collect Access. The 18 assigned all right and claims for the above Bill of Sale attached as Exhibit F does not 19 referenced Equipment Finance Agreement to reference the Equipment Finance Agreement, 20 Plaintiff, Collect Access, LLC, in this matter. Shankar's name, his account number, or the 21 Dec. of Essa 1119, Exhibit F- Bill of Sale account balance. As a result, Shankar's account 22 has not been assigned to Collect Access. 23 Supporting Evidence: Dec. of Essa ¶18, Exhibit E- Bill of Sale: Dec. of 24 Essa 1119, Exhibit F- Bill of Sale; Mission Valley 25 East, Inc. v. County of Kern, 120 Cal.App.3d 89, 26 97 (5th Dist. 1981) (An assignment agreement 27 "must describe the subject matter of the 28 DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 assignment with sufficient particularity to identify 2 the rights assigned."); In re Stephens, 443 B.R. 3 225, 229-30 (Bankr. M.D. Georgia 2020), 4 disapproved on difference ground in In re Fursley, 451 B.R. 213 (Bankr. M.D. Ga. 2011) 5 (There was no evidence of assignment since there 6 were no documents identifying the account 7 holder, the account number, and the account 8 balance."). 9 27. Plaintiff has performed all conditions, Disputed. The two bills of sale, attached as 10 covenants and promises required by it on its Exhibits E and F, do not reference the Equipment 11 part to be performed in accordance with the Finance Agreement, Shankar's name, his account 12 terms and conditions of the Agreement. number, or the account balance. As a result, 13 Dec. of Essa ¶14 Shankar's account has not been assigned to 14 Collect Access, and it is not the assignee of 15 Shankar's account. Supporting Evidence: 16 Dec. of ESSCI 1118, Exhibit E- Bill of Sale; Dec. of 17 Essa 1119, Exhibit F- Bill of Sale; Mission Valley 18 East, Inc. v. County of Kern, 120 Cal.App.3d 89, 19 Dist. 1981) (An assignment agreement 97 (5th 20 "must describe the subject matter of the 21 assignment with sufficient particularity to identify 22 the rights assigned.- ); In re Stephens, 443 B.R. 23 225, 229-30 (Bankr. M.D. Georgia 2020), disapproved on difference ground in In re 24 Pursley, 451 B.R. 213 (Bankr. M.D. Ga. 2011) 25 (There was no evidence of assignment since there 26 were no documents identifying the account 27 holder, the account number, and the account 28 - 12 - DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 1 balance."). 2 28. Shankar is a guarantor, who irrevocably Disputed. Shankar did not "irrevocably 3 promised to answer for the debt or perform promised" to answer for the debt or perform his 4 Shankar's obligations in the event that Vishnu obligation. 5 Shankar dba South Valley Dentists, ultimately Supporting Evidence: 6 failed to pay or perform. Dec. of Essa 115, Exhibit A, Equipment Finance Dec. of Essa 115, Exhibit A- Equipment Agreement and Guarantee 7 Finance Agreement and Guarantee 8 9 29. On or about October 11, 2019, Collect Access Undisputed. served Discovery Requests, including 10 Requests for Admissions, Set No. One, on 11 Shankar. 12 Dec. of Barrientos ¶3, Exhibit I — Plaintiff 13 Collect Access LLC Requests for Admissions 14 to Defendant Vishnu Shankar (Set One) 15 30. On or about December 9, 2019, Collect Access Undisputed as to the signature, but disputed as to 16 received Shankar's responses to the Requests signing the document labeled - Equipment 17 for Admissions. In his Verified Responses to Financial Agreement and Guarantee." 18 the Requests for Admission. Shankar admitted Dec. of Essa 115, Exhibit A- Equipment Finance 19 that it was his signature on the document Agreement and Guarantee 20 labeled Equipment Finance Agreement and Guarantee. 21 Dec. of Barrientos 114, Exhibit 2 — Defendant 22 Vishnu Shankar's Responses to Plaintiff's 23 Requests for Admission (Set One) 24 31. Plaintiff has not received any payments from Disputed. The two bills of sale, attached as 25 Shankar after the Equipment Finance Exhibits E and F, do not reference the Equipment 26 name, his account Agreement was assigned to Plaintiff. Finance Agreement, Shankar's 27 Dec. of Essa .1117; Dec. of Barrientos 115 number, or the account balance. As a result, 28 - I3 - DEFENDANT'S SEPARATE STATEMENT Case No. CGC-19-577708 1 Shankar's account has not been assigned to 2 Collect Access. 3 Supporting Evidence: 4 Dec. of Essa 1119, Exhibit F- Bill of Sale; Mission Valley East, Inc. v. County of Kern, 120 5 Cal.App.3d 89, 97 (5th Dist. 1981) (An 6 assignment agreement - must describe the subject 7 matter of the assignment with sufficient 8 particularity to identify the rights assigned.- ); In 9