Preview
1 ttMatthew S. Kennedy – CSB No. 125620
MATTHEW S. KENNEDY, A Professional Law Corporation
2 Post Office Box 1031
San Luis Obispo, California 93406-1031
3 (805) 544-5002 / (805) 544-5003
E-Mail: msk@KennedyLawRealty.com
4
Attorneys for Defendant Mechanics Bank,
5 a California corporation, successor by merger
to Rabobank, N.A.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF MONTEREY
10
11 ROBERT T. ELLIOTT, CASE NO. 21 CV 003944
Assigned to: Hon. Carrie M. Panetta
12 Plaintiff,
13 vs. DEFENDANT MECHANICS BANK’S
SEPARATE STATEMENT OF DISPUTED
14 MECHANICS BANK, a California AND ADDITIONAL MATERIAL FACTS IN
corporation, as the Successor-in-Interest to OPPOSITION TO THE MOTION FOR
15 Rabobank, N.A., a California corporation; SUMMARY JUDGMENT OF PLAINTIFF
RABOBANK, N.A., a California ROBERT T. ELLIOTT
16 corporation; and DOES 1 - 40, inclusive,
[Defendant’s Points and Authorities in Opposition,
17 Defendants. Exhibits in Opposition, and Evidentiary Objections filed
concurrently.]
18
DATE: December 2, 2022
19 TIME: 8:30 a.m.
DEPT: 14
20
21 Complaint filed: December 20, 2021
Trial Date: None Assigned
22
23
24 Pursuant to Code of Civil Procedure section 437c(b) and California Rules of Court, rule
25 1350(e) and (h), Defendant Mechanics Bank, successor by merger to Rabobank, N.A., submits
26 this Separate Statement of Disputed and Additional Material Facts, together with references to
27 supporting evidence, in response and opposition to the Separate Statement of Undisputed
28 Material Facts of Plaintiff Robert T. Elliott.
-1-
DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT
1 PLAINTIFF ROBERT T. ELLIOTT’S DEFENDANT MECHANICS BANK’S
UNDISPUTED MATERIAL FACTS RESPONSE WITH
2 AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3 ISSUE NO. 1: There is no triable issue of material fact concerning the parties’ contract to
settle Plaintiff’s Judgment and Lien.
4
ISSUE NO. 2: There is no triable issue that Plaintiff was excused from performing the
5 Settlement based on Rabobank’s acts.
6 ISSUE NO. 3: There is no triable issue concerning Rabobank’s breach of the Settlement.
7 ISSUE NO. 4: There is no triable issue concerning Plaintiff’s damages resulting from of
Defendant’s breach.
8
1. MR. ELLIOTT is one of approximately 1. Objection. The Bank objects to this
9 twelve former owners of Premium Fresh. “fact” as this type of statement is defective
(“Premium Fresh”). and in violation of the requirements of the
10 Code of Civil Procedure. (Reeves v. Safeway
- Declaration of Robert Elliott, “Elliott Stores (2004) 121 Cal.App.4th 95, 105-106;
11 Decl.” ¶ 2. Code Civ. Proc., § 473c.) Specifically, this
statement of fact is not a material fact, but
12 instead is evidence. i.e., it neither proves nor
disproves the matters at issue. Additionally,
13 this evidence does not even support a
material fact; rather, it is simply background
14 information. As such, there is no material
fact to dispute.
15
2. Premium Fresh obtained three loans 2. Objection. The Bank objects to this
16 from Community Bank to fund its business “fact” as this type of statement is defective
operations. On or about February 1, 2006, and in violation of the requirements of the
17 RABOBANK became the successor-in- Code of Civil Procedure. (Reeves v. Safeway
interest by merger to Community Bank. On or Stores (2004) 121 Cal.App.4th 95, 105-106;
18 about August 31, 2019, MECHANICS Code Civ. Proc., § 473c.) Specifically, this
BANK, became the successor-in-interest by statement of fact is not a material fact, but
19 merger to RABOBANK. (Collectively, the instead is evidence. i.e., it neither proves nor
first, second and third loans are “the Loans”.) disproves the matters at issue. Additionally,
20 this evidence does not even support a
- Elliott Decl., ¶ 3. material fact; rather, it is simply background
21 information. As such, there is no material
fact to dispute.
22
However, this background statement,
23 supported by Plaintiff’s Declaration (dtd Jul
12, 2022), confirms that Plaintiff Elliott
24 knew his indebtedness is comprised of three
loans and that the Judgment is comprised of
25 three loans, although Plaintiff testified he did
not know he signed for three loans until
26 approximately a year ago.
27 • Ex. “P”, Deposition of Robert T.
Elliott, dtd Sep. 9, 2022 (“Elliott
28 Depo.”), 15:18-17:1.
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DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT
1 3. The first loan [#190012401] was issued 3. Objection. The Bank objects to this
on November 5, 2002 in the sum of $750,000. “fact” as this type of statement is defective
2 Premium Fresh, MR. ELLIOTT and the and in violation of the requirements of the
remaining owners were listed as co-borrowers Code of Civil Procedure. (Reeves v. Safeway
3 on this loan. The second loan [# 78186840- Stores (2004) 121 Cal.App.4th 95, 105-106;
09] was an SBA loan issued on October 12, Code Civ. Proc., § 473c.) Specifically, this
4 2004 in the sum of $1,900,000. The third loan statement of fact is not a material fact, but
[#160064291] was issued on October 13, instead is evidence. i.e., it neither proves nor
5 2004 in the sum of $1,000,000. MR. disproves the matters at issue. Additionally,
ELLIOTT and other Premium Fresh owners this evidence does not even support a
6 personally guaranteed the second and third material fact; rather, it is simply background
loans. (Collectively, the first, second and third information. As such, there is no material
7 loans are “the Loans”.) fact to dispute.
8 - Elliott Decl., ¶ 4. DISPUTED:
The first loan originated with
9 Community Bank of Central California on
October 12, 2004, Loan No. PLP 78186840-
10 09, in the principal sum of $1,900,000.00,
and was guaranteed through SBA. Premium
11 Fresh Farms, LLC was the borrower, and
Plaintiff Elliott and his business associates
12 each executed a personal Guaranty.
The second loan originated with
13 Community Bank on October 13, 2004, Loan
No. 160064291, in the principal sum of
14 $1,000,000.00. This second loan was not
subject to any agency guaranty. Premium
15 Fresh Farms, LLC was the borrower, and
Plaintiff Elliott and his business associates
16 again each executed a personal Guaranty.
The third loan originated with
17 Community Bank of Central California on
November 25, 2005, Loan No. 190012401, in
18 principal sum of $750,000.00, and was
guaranteed through California Coastal Rural
19 Development Corporation (“Cal Coastal”).
Premium Fresh Farms, LLC and Plaintiff
20 Elliott and his business associates were listed
as co-borrowers.
21
• Ex. “B”, Declaration of Kyle M.
22 Cook, dtd Nov. 16, 2022 (“Cook
Dec.”), ¶ 5;
23 • Ex. “C”, Declaration of Frank
Oliver, dtd Nov. 15, 2022
24 (“Oliver Dec.”), ¶ 5;
• Ex. “D”, Declaration of Kendall
25 Bates, dtd Nov. 16, 2022 (“Bates
Dec.”), ¶ 6.
26
4. Premium Fresh defaulted on each of the 4. Objection. The Bank objects to this
27 Loans. “fact” as this type of statement is defective
and in violation of the requirements of the
28 - Elliott Decl., ¶ 5. Code of Civil Procedure. (Reeves v. Safeway
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DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT
1 Stores (2004) 121 Cal.App.4th 95, 105-106;
Code Civ. Proc., § 473c.) Specifically, this
2 statement of fact is not a material fact, but
instead is evidence. i.e., it neither proves nor
3 disproves the matters at issue. Additionally,
this evidence does not even support a
4 material fact; rather, it is simply background
information. As such, there is no material
5 fact to dispute.
6 5. On January 5, 2007, RABOBANK filed 5. Objection. The Bank objects to this
a Complaint related to the defaulted Loans “fact” as this type of statement is defective
7 against Premium Fresh and the and in violation of the requirements of the
guarantors/borrowers including MR. Code of Civil Procedure. (Reeves v. Safeway
8 ELLIOTT (collectively, the “Debtors”) Stores (2004) 121 Cal.App.4th 95, 105-106;
Code Civ. Proc., § 473c.) Specifically, this
9 - Elliott Decl., ¶ 6. statement of fact is not a material fact, but
instead is evidence. i.e., it neither proves nor
10 disproves the matters at issue. Additionally,
this evidence does not even support a
11 material fact; rather, it is simply background
information. As such, there is no material
12 fact to dispute.
13 6. On December 14, 2007, a Notice of 6. Objection. The Bank objects to this
Attachment was recorded against the Debtors “fact” as this type of statement is defective
14 including MR. ELLIOTT imposing a lien and in violation of the requirements of the
against their real property. Code of Civil Procedure. (Reeves v. Safeway
15 Stores (2004) 121 Cal.App.4th 95, 105-106;
- Elliott Decl., ¶ 7 and Exhibit 1 Code Civ. Proc., § 473c.) Specifically, this
16 attached thereto. statement of fact is not a material fact, but
instead is evidence. i.e., it neither proves nor
17 disproves the matters at issue. Additionally,
this evidence does not even support a
18 material fact; rather, it is simply background
information. As such, there is no material
19 fact to dispute.
20 7. On July 8, 2008, a Stipulation for Entry 7. Objection. The Bank objects to this
of Judgment (“Stipulation for Judgment”) “fact” as this type of statement is defective
21 was entered between RABOBANK and the and in violation of the requirements of the
Debtors. The Stipulation provided that MR. Code of Civil Procedure. (Reeves v. Safeway
22 ELLIOTT and certain other Debtors were Stores (2004) 121 Cal.App.4th 95, 105-106;
jointly and severally liable for the principal Code Civ. Proc., § 473c.) Specifically, this
23 sum of $2,983,552.72; interest of statement of fact is not a material fact, but
$315,087.69; late charges of $29,107.30 and instead is evidence. i.e., it neither proves nor
24 costs of $26,623.62 disproves the matters at issue. Additionally,
this evidence does not even support a
25 - Elliott Decl., ¶ 8 and Exhibit 2 material fact; rather, it is simply background
attached thereto. information. As such, there is no material
26 fact to dispute.
27 8. MR. ELLIOTT further stipulated to 8. Objection. The Bank objects to this
transfer certain collateral owned by Premium “fact” as this type of statement is defective
28 Fresh to RABOBANK. and in violation of the requirements of the
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DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT
1 Code of Civil Procedure. (Reeves v. Safeway
- Elliott Decl., ¶ 8 and Exhibit2 Stores (2004) 121 Cal.App.4th 95, 105-106;
2 attached thereto. Code Civ. Proc., § 473c.) Specifically, this
statement of fact is not a material fact, but
3 instead is evidence. i.e., it neither proves nor
disproves the matters at issue. Additionally,
4 this evidence does not even support a
material fact; rather, it is simply background
5 information. As such, there is no material
fact to dispute.
6
9. On July 8, 2008, a Judgment consistent 9. Objection. The Bank objects to this
7 with the Stipulation for Judgment was entered “fact” as this type of statement is defective
in favor of RABOBANK and against the and in violation of the requirements of the
8 Debtors. Code of Civil Procedure. (Reeves v. Safeway
Stores (2004) 121 Cal.App.4th 95, 105-106;
9 - Elliott Decl., ¶ 9 and Exhibit 3 Code Civ. Proc., § 473c.) Specifically, this
attached thereto. statement of fact is not a material fact, but
10 instead is evidence. i.e., it neither proves nor
disproves the matters at issue. Additionally,
11 this evidence does not even support a
material fact; rather, it is simply background
12 information. As such, there is no material
fact to dispute.
13
10. The Judgment was recorded in 10. Undisputed.
14 Monterey County on July 17, 2008.
15 - Elliott Decl., ¶ 9 and Exhibit 3
attached thereto.
16
11. Several Debtors filed bankruptcy and 11. Objection. The Bank objects to this
17 the Judgment debt was discharged as to those “fact” as this type of statement is defective
individuals and entities. and in violation of the requirements of the
18 Code of Civil Procedure. (Reeves v. Safeway
- Elliott Decl., ¶ 9. Stores (2004) 121 Cal.App.4th 95, 105-106;
19 Code Civ. Proc., § 473c.) Specifically, this
statement of fact is not a material fact, but
20 instead is evidence. i.e., it neither proves nor
disproves the matters at issue. Additionally,
21 this evidence does not even support a
material fact; rather, it is simply background
22 information. As such, there is no material
fact to dispute.
23
12. RABOBANK thereafter seized 12. Objection. The Bank objects to this
24 collateral used to secure the Loans “fact” as this type of statement is defective
(“Collateral”). The Collateral appraised on and in violation of the requirements of the
25 August 20, 2004 at a value of $2,083,050 with Code of Civil Procedure. (Reeves v. Safeway
an estimated liquidation value of $1,353,983. Stores (2004) 121 Cal.App.4th 95, 105-106;
26 On March 4, 2009, the Collateral was Code Civ. Proc., § 473c.) Specifically, this
liquidated at auction for the sum of statement of fact is not a material fact, but
27 $121,318.75. instead is evidence. i.e., it neither proves nor
disproves the matters at issue. Additionally,
28 this evidence does not even support a
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DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT
1 - Elliott Decl., ¶ 10 and Exhibit 4 material fact; rather, it is simply background
attached thereto. information. As such, there is no material
2 fact to dispute.
3 13. On April 2, 2018, RABOBANK filed a 13. Undisputed.
Renewal of the Judgment (“Renewed
4 Judgment”).
5 - Elliott Decl., ¶ 11 and Exhibit 5
attached thereto.
6
14. On May 14, 2018, RABOBANK 14. Objection. The Bank objects to this
7 recorded an Abstract of Judgment against the “fact” as this type of statement is defective
Debtors including MR. ELLIOTT. and in violation of the requirements of the
8 Code of Civil Procedure. (Reeves v. Safeway
- Elliott Decl., ¶ 12 and Exhibit 6 Stores (2004) 121 Cal.App.4th 95, 105-106;
9 attached thereto. Code Civ. Proc., § 473c.) Specifically, this
statement of fact is not a material fact, but
10 instead is evidence. i.e., it neither proves nor
disproves the matters at issue. Additionally,
11 this evidence does not even support a
material fact; rather, it is simply background
12 information. As such, there is no material
fact to dispute.
13
15. MR. ELLIOTT commenced efforts to 15. Objection. The Bank objects to this
14 settle his debt with RABOBANK by “fact” as this type of statement is defective
contacting local bank representatives at the and in violation of the requirements of the
15 Salinas branch. In early summer of 2013, MR. Code of Civil Procedure. (Reeves v. Safeway
ELLIOTT learned that RABOBANK’s Stores (2004) 121 Cal.App.4th 95, 105-106;
16 Special Assets Department was located in Code Civ. Proc., § 473c.) Specifically, this
Fresno, California. statement of fact is not a material fact, but
17 instead is evidence. i.e., it neither proves nor
- Elliott Decl., ¶ 13. disproves the matters at issue. Additionally,
18 this evidence does not even support a
material fact; rather, it is simply background
19 information. As such, there is no material
fact to dispute.
20
16. MR. ELLIOTT conducted research to 16. Objection. The Bank objects to this
21 locate a senior Special Assets representative. “fact” as this type of statement is defective
and in violation of the requirements of the
22 - Elliott Decl., ¶ 14. Code of Civil Procedure. (Reeves v. Safeway
Stores (2004) 121 Cal.App.4th 95, 105-106;
23 Code Civ. Proc., § 473c.) Specifically, this
statement of fact is not a material fact, but
24 instead is evidence. i.e., it neither proves nor
disproves the matters at issue. Additionally,
25 this evidence does not even support a
material fact; rather, it is simply background
26 information. As such, there is no material
fact to dispute.
27
28
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DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT
1 17. MR. ELLIOTT’S research yielded 17. Objection. The Bank objects to this
RABOBANK’s Senior Vice-President and “fact” as this type of statement is defective
2 Director of Special Assets, Robert Bennett. and in violation of the requirements of the
Code of Civil Procedure. (Reeves v. Safeway
3 - Elliott Decl., ¶ 14. Stores (2004) 121 Cal.App.4th 95, 105-106;
Code Civ. Proc., § 473c.) Specifically, this
4 statement of fact is not a material fact, but
instead is evidence. i.e., it neither proves nor
5 disproves the matters at issue. Additionally,
this evidence does not even support a
6 material fact; rather, it is simply background
information. As such, there is no material
7 fact to dispute.
8 18. Sometime before August 8, 2013, MR. 18. Objection. The Bank objects to this
ELLIOTT met with Mr. Bennett in Fresno, “fact” as this type of statement is defective
9 California to discuss resolution of his debt. and in violation of the requirements of the
Code of Civil Procedure. (Reeves v. Safeway
10 - Elliott Decl., ¶ 15. Stores (2004) 121 Cal.App.4th 95, 105-106;
Code Civ. Proc., § 473c.) Specifically, this
11 statement of fact is not a material fact, but
instead is evidence. i.e., it neither proves nor
12 disproves the matters at issue. Additionally,
this evidence does not even support a
13 material fact; rather, it is simply background
information. As such, there is no material
14 fact to dispute.
15 19. On information and belief, MR. 19. Objection. The Bank objects to this
ELLIOTT provided his first set of financials “fact” as this type of statement is defective
16 during this meeting. and in violation of the requirements of the
Code of Civil Procedure. (Reeves v. Safeway
17 - Elliott Decl., ¶ 15. Stores (2004) 121 Cal.App.4th 95, 105-106;
Code Civ. Proc., § 473c.) Specifically, this
18 statement of fact is not a material fact, but
instead is evidence. i.e., it neither proves nor
19 disproves the matters at issue. Additionally,
this evidence does not even support a
20 material fact; rather, it is simply background
information. As such, there is no material
21 fact to dispute.
22 The Bank further objects on the
ground this statement is inadmissible
23 speculation requiring an inference or
presumption. (Evid. Code, §§ 400, 403, 410
24 (“‘direct evidence' ... directly proves a fact,
without an inference or presumption”), 803.
25
20. On August 21, 2013, MR. ELLIOTT 20. Objection. The Bank objects to this
26 sent an email to Mr. Bennett attaching his “fact” as this type of statement is defective
financials and stating he would be “there and in violation of the requirements of the
27 about 3:30 today.” Code of Civil Procedure. (Reeves v. Safeway
Stores (2004) 121 Cal.App.4th 95, 105-106;
28 Code Civ. Proc., § 473c.) Specifically, this
-7-
DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT
1 - Elliott Decl., ¶ 16 and Exhibit7 statement of fact is not a material fact, but
attached thereto. instead is evidence. i.e., it neither proves nor
2 disproves the matters at issue. Additionally,
this evidence does not even support a
3 material fact; rather, it is simply background
information. As such, there is no material
4 fact to dispute.
5 21. MR. ELLIOTT met with Mr. Bennett in 21. Objection. The Bank objects to this
RABOBANK’s Fresno offices and expressed “fact” as this type of statement is defective
6 a desire to amicably resolve his (MR. and in violation of the requirements of the
ELLIOTT’s) Judgment and Lien. Code of Civil Procedure. (Reeves v. Safeway
7 Stores (2004) 121 Cal.App.4th 95, 105-106;
- Elliott Decl., ¶ 16. Code Civ. Proc., § 473c.) Specifically, this
8 statement of fact is not a material fact, but
instead is evidence. i.e., it neither proves nor
9 disproves the matters at issue. Additionally,
this evidence does not even support a
10 material fact; rather, it is simply background
information. As such, there is no material
11 fact to dispute.
12 22. In late August or early September 2013, 22. Objection. The Bank objects to this
MR. ELLIOTT followed up with Mr. Bennett “fact” as this type of statement is defective
13 and was referred to RABOBANK’s Vice and in violation of the requirements of the
President and Senior Special Assets Officer, Code of Civil Procedure. (Reeves v. Safeway
14 Frank Oliver to continue settlement Stores (2004) 121 Cal.App.4th 95, 105-106;
discussions. Code Civ. Proc., § 473c.) Specifically, this
15 statement of fact is not a material fact, but
- Elliott Decl., ¶ 17. instead is evidence. i.e., it neither proves nor
16 disproves the matters at issue. Additionally,
this evidence does not even support a
17 material fact; rather, it is simply background
information. As such, there is no material
18 fact to dispute.
19 23. Mr. Oliver was also located in 23. Objection. The Bank objects to this
Defendant’s Fresno offices. “fact” as this type of statement is defective
20 and in violation of the requirements of the
- Elliott Decl., ¶ 17. Code of Civil Procedure. (Reeves v. Safeway
21 Stores (2004) 121 Cal.App.4th 95, 105-106;
Code Civ. Proc., § 473c.) Specifically, this
22 statement of fact is not a material fact, but
instead is evidence. i.e., it neither proves nor
23 disproves the matters at issue. Additionally,
this evidence does not even support a
24 material fact; rather, it is simply background
information. As such, there is no material
25 fact to dispute.
26 24. Between mid-September and September 24. Objection. The Bank objects to this
27, 2013, MR. ELLIOTT hand carried a “fact” as this type of statement is defective
27 written offer to settle his Judgment and lien to and in violation of the requirements of the
Mr. Oliver. Code of Civil Procedure. (Reeves v. Safeway
28 Stores (2004) 121 Cal.App.4th 95, 105-106;
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DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT
1 - Elliott Decl., ¶ 18. Code Civ. Proc., § 473c.) Specifically, this
statement of fact is not a material fact, but
2 instead is evidence. i.e., it neither proves nor
disproves the matters at issue. Additionally,
3 this evidence does not even support a
material fact; rather, it is simply background
4 information. As such, there is no material
Preview
1 ttMatthew S. Kennedy – CSB No. 125620 MATTHEW S. KENNEDY, A Professional Law Corporation 2 Post Office Box 1031 San Luis Obispo, California 93406-1031 3 (805) 544-5002 / (805) 544-5003 E-Mail: msk@KennedyLawRealty.com 4 Attorneys for Defendant Mechanics Bank, 5 a California corporation, successor by merger to Rabobank, N.A. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF MONTEREY 10 11 ROBERT T. ELLIOTT, CASE NO. 21 CV 003944 Assigned to: Hon. Carrie M. Panetta 12 Plaintiff, 13 vs. DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED 14 MECHANICS BANK, a California AND ADDITIONAL MATERIAL FACTS IN corporation, as the Successor-in-Interest to OPPOSITION TO THE MOTION FOR 15 Rabobank, N.A., a California corporation; SUMMARY JUDGMENT OF PLAINTIFF RABOBANK, N.A., a California ROBERT T. ELLIOTT 16 corporation; and DOES 1 - 40, inclusive, [Defendant’s Points and Authorities in Opposition, 17 Defendants. Exhibits in Opposition, and Evidentiary Objections filed concurrently.] 18 DATE: December 2, 2022 19 TIME: 8:30 a.m. DEPT: 14 20 21 Complaint filed: December 20, 2021 Trial Date: None Assigned 22 23 24 Pursuant to Code of Civil Procedure section 437c(b) and California Rules of Court, rule 25 1350(e) and (h), Defendant Mechanics Bank, successor by merger to Rabobank, N.A., submits 26 this Separate Statement of Disputed and Additional Material Facts, together with references to 27 supporting evidence, in response and opposition to the Separate Statement of Undisputed 28 Material Facts of Plaintiff Robert T. Elliott. -1- DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT 1 PLAINTIFF ROBERT T. ELLIOTT’S DEFENDANT MECHANICS BANK’S UNDISPUTED MATERIAL FACTS RESPONSE WITH 2 AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 ISSUE NO. 1: There is no triable issue of material fact concerning the parties’ contract to settle Plaintiff’s Judgment and Lien. 4 ISSUE NO. 2: There is no triable issue that Plaintiff was excused from performing the 5 Settlement based on Rabobank’s acts. 6 ISSUE NO. 3: There is no triable issue concerning Rabobank’s breach of the Settlement. 7 ISSUE NO. 4: There is no triable issue concerning Plaintiff’s damages resulting from of Defendant’s breach. 8 1. MR. ELLIOTT is one of approximately 1. Objection. The Bank objects to this 9 twelve former owners of Premium Fresh. “fact” as this type of statement is defective (“Premium Fresh”). and in violation of the requirements of the 10 Code of Civil Procedure. (Reeves v. Safeway - Declaration of Robert Elliott, “Elliott Stores (2004) 121 Cal.App.4th 95, 105-106; 11 Decl.” ¶ 2. Code Civ. Proc., § 473c.) Specifically, this statement of fact is not a material fact, but 12 instead is evidence. i.e., it neither proves nor disproves the matters at issue. Additionally, 13 this evidence does not even support a material fact; rather, it is simply background 14 information. As such, there is no material fact to dispute. 15 2. Premium Fresh obtained three loans 2. Objection. The Bank objects to this 16 from Community Bank to fund its business “fact” as this type of statement is defective operations. On or about February 1, 2006, and in violation of the requirements of the 17 RABOBANK became the successor-in- Code of Civil Procedure. (Reeves v. Safeway interest by merger to Community Bank. On or Stores (2004) 121 Cal.App.4th 95, 105-106; 18 about August 31, 2019, MECHANICS Code Civ. Proc., § 473c.) Specifically, this BANK, became the successor-in-interest by statement of fact is not a material fact, but 19 merger to RABOBANK. (Collectively, the instead is evidence. i.e., it neither proves nor first, second and third loans are “the Loans”.) disproves the matters at issue. Additionally, 20 this evidence does not even support a - Elliott Decl., ¶ 3. material fact; rather, it is simply background 21 information. As such, there is no material fact to dispute. 22 However, this background statement, 23 supported by Plaintiff’s Declaration (dtd Jul 12, 2022), confirms that Plaintiff Elliott 24 knew his indebtedness is comprised of three loans and that the Judgment is comprised of 25 three loans, although Plaintiff testified he did not know he signed for three loans until 26 approximately a year ago. 27 • Ex. “P”, Deposition of Robert T. Elliott, dtd Sep. 9, 2022 (“Elliott 28 Depo.”), 15:18-17:1. -2- DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT 1 3. The first loan [#190012401] was issued 3. Objection. The Bank objects to this on November 5, 2002 in the sum of $750,000. “fact” as this type of statement is defective 2 Premium Fresh, MR. ELLIOTT and the and in violation of the requirements of the remaining owners were listed as co-borrowers Code of Civil Procedure. (Reeves v. Safeway 3 on this loan. The second loan [# 78186840- Stores (2004) 121 Cal.App.4th 95, 105-106; 09] was an SBA loan issued on October 12, Code Civ. Proc., § 473c.) Specifically, this 4 2004 in the sum of $1,900,000. The third loan statement of fact is not a material fact, but [#160064291] was issued on October 13, instead is evidence. i.e., it neither proves nor 5 2004 in the sum of $1,000,000. MR. disproves the matters at issue. Additionally, ELLIOTT and other Premium Fresh owners this evidence does not even support a 6 personally guaranteed the second and third material fact; rather, it is simply background loans. (Collectively, the first, second and third information. As such, there is no material 7 loans are “the Loans”.) fact to dispute. 8 - Elliott Decl., ¶ 4. DISPUTED: The first loan originated with 9 Community Bank of Central California on October 12, 2004, Loan No. PLP 78186840- 10 09, in the principal sum of $1,900,000.00, and was guaranteed through SBA. Premium 11 Fresh Farms, LLC was the borrower, and Plaintiff Elliott and his business associates 12 each executed a personal Guaranty. The second loan originated with 13 Community Bank on October 13, 2004, Loan No. 160064291, in the principal sum of 14 $1,000,000.00. This second loan was not subject to any agency guaranty. Premium 15 Fresh Farms, LLC was the borrower, and Plaintiff Elliott and his business associates 16 again each executed a personal Guaranty. The third loan originated with 17 Community Bank of Central California on November 25, 2005, Loan No. 190012401, in 18 principal sum of $750,000.00, and was guaranteed through California Coastal Rural 19 Development Corporation (“Cal Coastal”). Premium Fresh Farms, LLC and Plaintiff 20 Elliott and his business associates were listed as co-borrowers. 21 • Ex. “B”, Declaration of Kyle M. 22 Cook, dtd Nov. 16, 2022 (“Cook Dec.”), ¶ 5; 23 • Ex. “C”, Declaration of Frank Oliver, dtd Nov. 15, 2022 24 (“Oliver Dec.”), ¶ 5; • Ex. “D”, Declaration of Kendall 25 Bates, dtd Nov. 16, 2022 (“Bates Dec.”), ¶ 6. 26 4. Premium Fresh defaulted on each of the 4. Objection. The Bank objects to this 27 Loans. “fact” as this type of statement is defective and in violation of the requirements of the 28 - Elliott Decl., ¶ 5. Code of Civil Procedure. (Reeves v. Safeway -3- DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT 1 Stores (2004) 121 Cal.App.4th 95, 105-106; Code Civ. Proc., § 473c.) Specifically, this 2 statement of fact is not a material fact, but instead is evidence. i.e., it neither proves nor 3 disproves the matters at issue. Additionally, this evidence does not even support a 4 material fact; rather, it is simply background information. As such, there is no material 5 fact to dispute. 6 5. On January 5, 2007, RABOBANK filed 5. Objection. The Bank objects to this a Complaint related to the defaulted Loans “fact” as this type of statement is defective 7 against Premium Fresh and the and in violation of the requirements of the guarantors/borrowers including MR. Code of Civil Procedure. (Reeves v. Safeway 8 ELLIOTT (collectively, the “Debtors”) Stores (2004) 121 Cal.App.4th 95, 105-106; Code Civ. Proc., § 473c.) Specifically, this 9 - Elliott Decl., ¶ 6. statement of fact is not a material fact, but instead is evidence. i.e., it neither proves nor 10 disproves the matters at issue. Additionally, this evidence does not even support a 11 material fact; rather, it is simply background information. As such, there is no material 12 fact to dispute. 13 6. On December 14, 2007, a Notice of 6. Objection. The Bank objects to this Attachment was recorded against the Debtors “fact” as this type of statement is defective 14 including MR. ELLIOTT imposing a lien and in violation of the requirements of the against their real property. Code of Civil Procedure. (Reeves v. Safeway 15 Stores (2004) 121 Cal.App.4th 95, 105-106; - Elliott Decl., ¶ 7 and Exhibit 1 Code Civ. Proc., § 473c.) Specifically, this 16 attached thereto. statement of fact is not a material fact, but instead is evidence. i.e., it neither proves nor 17 disproves the matters at issue. Additionally, this evidence does not even support a 18 material fact; rather, it is simply background information. As such, there is no material 19 fact to dispute. 20 7. On July 8, 2008, a Stipulation for Entry 7. Objection. The Bank objects to this of Judgment (“Stipulation for Judgment”) “fact” as this type of statement is defective 21 was entered between RABOBANK and the and in violation of the requirements of the Debtors. The Stipulation provided that MR. Code of Civil Procedure. (Reeves v. Safeway 22 ELLIOTT and certain other Debtors were Stores (2004) 121 Cal.App.4th 95, 105-106; jointly and severally liable for the principal Code Civ. Proc., § 473c.) Specifically, this 23 sum of $2,983,552.72; interest of statement of fact is not a material fact, but $315,087.69; late charges of $29,107.30 and instead is evidence. i.e., it neither proves nor 24 costs of $26,623.62 disproves the matters at issue. Additionally, this evidence does not even support a 25 - Elliott Decl., ¶ 8 and Exhibit 2 material fact; rather, it is simply background attached thereto. information. As such, there is no material 26 fact to dispute. 27 8. MR. ELLIOTT further stipulated to 8. Objection. The Bank objects to this transfer certain collateral owned by Premium “fact” as this type of statement is defective 28 Fresh to RABOBANK. and in violation of the requirements of the -4- DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT 1 Code of Civil Procedure. (Reeves v. Safeway - Elliott Decl., ¶ 8 and Exhibit2 Stores (2004) 121 Cal.App.4th 95, 105-106; 2 attached thereto. Code Civ. Proc., § 473c.) Specifically, this statement of fact is not a material fact, but 3 instead is evidence. i.e., it neither proves nor disproves the matters at issue. Additionally, 4 this evidence does not even support a material fact; rather, it is simply background 5 information. As such, there is no material fact to dispute. 6 9. On July 8, 2008, a Judgment consistent 9. Objection. The Bank objects to this 7 with the Stipulation for Judgment was entered “fact” as this type of statement is defective in favor of RABOBANK and against the and in violation of the requirements of the 8 Debtors. Code of Civil Procedure. (Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95, 105-106; 9 - Elliott Decl., ¶ 9 and Exhibit 3 Code Civ. Proc., § 473c.) Specifically, this attached thereto. statement of fact is not a material fact, but 10 instead is evidence. i.e., it neither proves nor disproves the matters at issue. Additionally, 11 this evidence does not even support a material fact; rather, it is simply background 12 information. As such, there is no material fact to dispute. 13 10. The Judgment was recorded in 10. Undisputed. 14 Monterey County on July 17, 2008. 15 - Elliott Decl., ¶ 9 and Exhibit 3 attached thereto. 16 11. Several Debtors filed bankruptcy and 11. Objection. The Bank objects to this 17 the Judgment debt was discharged as to those “fact” as this type of statement is defective individuals and entities. and in violation of the requirements of the 18 Code of Civil Procedure. (Reeves v. Safeway - Elliott Decl., ¶ 9. Stores (2004) 121 Cal.App.4th 95, 105-106; 19 Code Civ. Proc., § 473c.) Specifically, this statement of fact is not a material fact, but 20 instead is evidence. i.e., it neither proves nor disproves the matters at issue. Additionally, 21 this evidence does not even support a material fact; rather, it is simply background 22 information. As such, there is no material fact to dispute. 23 12. RABOBANK thereafter seized 12. Objection. The Bank objects to this 24 collateral used to secure the Loans “fact” as this type of statement is defective (“Collateral”). The Collateral appraised on and in violation of the requirements of the 25 August 20, 2004 at a value of $2,083,050 with Code of Civil Procedure. (Reeves v. Safeway an estimated liquidation value of $1,353,983. Stores (2004) 121 Cal.App.4th 95, 105-106; 26 On March 4, 2009, the Collateral was Code Civ. Proc., § 473c.) Specifically, this liquidated at auction for the sum of statement of fact is not a material fact, but 27 $121,318.75. instead is evidence. i.e., it neither proves nor disproves the matters at issue. Additionally, 28 this evidence does not even support a -5- DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT 1 - Elliott Decl., ¶ 10 and Exhibit 4 material fact; rather, it is simply background attached thereto. information. As such, there is no material 2 fact to dispute. 3 13. On April 2, 2018, RABOBANK filed a 13. Undisputed. Renewal of the Judgment (“Renewed 4 Judgment”). 5 - Elliott Decl., ¶ 11 and Exhibit 5 attached thereto. 6 14. On May 14, 2018, RABOBANK 14. Objection. The Bank objects to this 7 recorded an Abstract of Judgment against the “fact” as this type of statement is defective Debtors including MR. ELLIOTT. and in violation of the requirements of the 8 Code of Civil Procedure. (Reeves v. Safeway - Elliott Decl., ¶ 12 and Exhibit 6 Stores (2004) 121 Cal.App.4th 95, 105-106; 9 attached thereto. Code Civ. Proc., § 473c.) Specifically, this statement of fact is not a material fact, but 10 instead is evidence. i.e., it neither proves nor disproves the matters at issue. Additionally, 11 this evidence does not even support a material fact; rather, it is simply background 12 information. As such, there is no material fact to dispute. 13 15. MR. ELLIOTT commenced efforts to 15. Objection. The Bank objects to this 14 settle his debt with RABOBANK by “fact” as this type of statement is defective contacting local bank representatives at the and in violation of the requirements of the 15 Salinas branch. In early summer of 2013, MR. Code of Civil Procedure. (Reeves v. Safeway ELLIOTT learned that RABOBANK’s Stores (2004) 121 Cal.App.4th 95, 105-106; 16 Special Assets Department was located in Code Civ. Proc., § 473c.) Specifically, this Fresno, California. statement of fact is not a material fact, but 17 instead is evidence. i.e., it neither proves nor - Elliott Decl., ¶ 13. disproves the matters at issue. Additionally, 18 this evidence does not even support a material fact; rather, it is simply background 19 information. As such, there is no material fact to dispute. 20 16. MR. ELLIOTT conducted research to 16. Objection. The Bank objects to this 21 locate a senior Special Assets representative. “fact” as this type of statement is defective and in violation of the requirements of the 22 - Elliott Decl., ¶ 14. Code of Civil Procedure. (Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95, 105-106; 23 Code Civ. Proc., § 473c.) Specifically, this statement of fact is not a material fact, but 24 instead is evidence. i.e., it neither proves nor disproves the matters at issue. Additionally, 25 this evidence does not even support a material fact; rather, it is simply background 26 information. As such, there is no material fact to dispute. 27 28 -6- DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT 1 17. MR. ELLIOTT’S research yielded 17. Objection. The Bank objects to this RABOBANK’s Senior Vice-President and “fact” as this type of statement is defective 2 Director of Special Assets, Robert Bennett. and in violation of the requirements of the Code of Civil Procedure. (Reeves v. Safeway 3 - Elliott Decl., ¶ 14. Stores (2004) 121 Cal.App.4th 95, 105-106; Code Civ. Proc., § 473c.) Specifically, this 4 statement of fact is not a material fact, but instead is evidence. i.e., it neither proves nor 5 disproves the matters at issue. Additionally, this evidence does not even support a 6 material fact; rather, it is simply background information. As such, there is no material 7 fact to dispute. 8 18. Sometime before August 8, 2013, MR. 18. Objection. The Bank objects to this ELLIOTT met with Mr. Bennett in Fresno, “fact” as this type of statement is defective 9 California to discuss resolution of his debt. and in violation of the requirements of the Code of Civil Procedure. (Reeves v. Safeway 10 - Elliott Decl., ¶ 15. Stores (2004) 121 Cal.App.4th 95, 105-106; Code Civ. Proc., § 473c.) Specifically, this 11 statement of fact is not a material fact, but instead is evidence. i.e., it neither proves nor 12 disproves the matters at issue. Additionally, this evidence does not even support a 13 material fact; rather, it is simply background information. As such, there is no material 14 fact to dispute. 15 19. On information and belief, MR. 19. Objection. The Bank objects to this ELLIOTT provided his first set of financials “fact” as this type of statement is defective 16 during this meeting. and in violation of the requirements of the Code of Civil Procedure. (Reeves v. Safeway 17 - Elliott Decl., ¶ 15. Stores (2004) 121 Cal.App.4th 95, 105-106; Code Civ. Proc., § 473c.) Specifically, this 18 statement of fact is not a material fact, but instead is evidence. i.e., it neither proves nor 19 disproves the matters at issue. Additionally, this evidence does not even support a 20 material fact; rather, it is simply background information. As such, there is no material 21 fact to dispute. 22 The Bank further objects on the ground this statement is inadmissible 23 speculation requiring an inference or presumption. (Evid. Code, §§ 400, 403, 410 24 (“‘direct evidence' ... directly proves a fact, without an inference or presumption”), 803. 25 20. On August 21, 2013, MR. ELLIOTT 20. Objection. The Bank objects to this 26 sent an email to Mr. Bennett attaching his “fact” as this type of statement is defective financials and stating he would be “there and in violation of the requirements of the 27 about 3:30 today.” Code of Civil Procedure. (Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95, 105-106; 28 Code Civ. Proc., § 473c.) Specifically, this -7- DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT 1 - Elliott Decl., ¶ 16 and Exhibit7 statement of fact is not a material fact, but attached thereto. instead is evidence. i.e., it neither proves nor 2 disproves the matters at issue. Additionally, this evidence does not even support a 3 material fact; rather, it is simply background information. As such, there is no material 4 fact to dispute. 5 21. MR. ELLIOTT met with Mr. Bennett in 21. Objection. The Bank objects to this RABOBANK’s Fresno offices and expressed “fact” as this type of statement is defective 6 a desire to amicably resolve his (MR. and in violation of the requirements of the ELLIOTT’s) Judgment and Lien. Code of Civil Procedure. (Reeves v. Safeway 7 Stores (2004) 121 Cal.App.4th 95, 105-106; - Elliott Decl., ¶ 16. Code Civ. Proc., § 473c.) Specifically, this 8 statement of fact is not a material fact, but instead is evidence. i.e., it neither proves nor 9 disproves the matters at issue. Additionally, this evidence does not even support a 10 material fact; rather, it is simply background information. As such, there is no material 11 fact to dispute. 12 22. In late August or early September 2013, 22. Objection. The Bank objects to this MR. ELLIOTT followed up with Mr. Bennett “fact” as this type of statement is defective 13 and was referred to RABOBANK’s Vice and in violation of the requirements of the President and Senior Special Assets Officer, Code of Civil Procedure. (Reeves v. Safeway 14 Frank Oliver to continue settlement Stores (2004) 121 Cal.App.4th 95, 105-106; discussions. Code Civ. Proc., § 473c.) Specifically, this 15 statement of fact is not a material fact, but - Elliott Decl., ¶ 17. instead is evidence. i.e., it neither proves nor 16 disproves the matters at issue. Additionally, this evidence does not even support a 17 material fact; rather, it is simply background information. As such, there is no material 18 fact to dispute. 19 23. Mr. Oliver was also located in 23. Objection. The Bank objects to this Defendant’s Fresno offices. “fact” as this type of statement is defective 20 and in violation of the requirements of the - Elliott Decl., ¶ 17. Code of Civil Procedure. (Reeves v. Safeway 21 Stores (2004) 121 Cal.App.4th 95, 105-106; Code Civ. Proc., § 473c.) Specifically, this 22 statement of fact is not a material fact, but instead is evidence. i.e., it neither proves nor 23 disproves the matters at issue. Additionally, this evidence does not even support a 24 material fact; rather, it is simply background information. As such, there is no material 25 fact to dispute. 26 24. Between mid-September and September 24. Objection. The Bank objects to this 27, 2013, MR. ELLIOTT hand carried a “fact” as this type of statement is defective 27 written offer to settle his Judgment and lien to and in violation of the requirements of the Mr. Oliver. Code of Civil Procedure. (Reeves v. Safeway 28 Stores (2004) 121 Cal.App.4th 95, 105-106; -8- DEFENDANT MECHANICS BANK’S SEPARATE STATEMENT OF DISPUTED AND ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF ROBERT T. ELLIOTT 1 - Elliott Decl., ¶ 18. Code Civ. Proc., § 473c.) Specifically, this statement of fact is not a material fact, but 2 instead is evidence. i.e., it neither proves nor disproves the matters at issue. Additionally, 3 this evidence does not even support a material fact; rather, it is simply background 4 information. As such, there is no material