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 Matthew 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.
[PROPOSED]
14 MECHANICS BANK, a California ORDER DENYING PLAINTIFF ROBERT T.
corporation, as the Successor-in-Interest to ELLIOTT’S MOTION FOR SUMMARY
15 Rabobank, N.A., a California corporation; JUDGMENT
RABOBANK, N.A., a California
16 corporation; and DOES 1 - 40, inclusive,
17 Defendants. Complaint filed: December 20, 2021
Trial Date: None Assigned
18
19
20 Plaintiff Robert T. Elliott’s Motion for Summary Judgment came for hearing in
21 Department 14 of this Court on December 2, 2022 before the Honorable Carrie M. Panetta
22 presiding. Andrea C. Avila of Patane Gumberg Avila, LLP appeared on behalf of Plaintiff Robert
23 T. Elliott; Matthew S. Kennedy of Matthew S. Kennedy A Professional Law Corporation
24 appeared on behalf of Defendant Mechanics Bank, successor by merger to Rabobank, N.A.
25 After full consideration of the evidence, and the written and oral submissions by the
26 parties, the Court finds that the Motion must be denied in its entirety as follows:
27 1) Pursuant to Civil Code section 1585, the Court determines there is no legal
28 acceptance of Plaintiff Elliott’s settlement offer and, therefore, Plaintiff fails to
-1-
[PROPOSED] ORDER DENYING PLAINTIFF ROBERT T. ELLIOTT’S MOTION FOR SUMMARY JUDGMENT
1 meet his burden on summary judgment of establishing an enforceable contract on
2 his claim for breach of contract.
3 2) The Court finds that Plaintiff Elliott failed to meet his burden to establish his
4 ability to perform under the alleged contract such that Plaintiff fails to meet his
5 burden on summary judgment of establishing an enforceable contract on his claim
6 for breach of contract.
7 3) The Court further finds that even if Plaintiff Elliott had met his burden to show
8 the existence of a contract via an unequivocal acceptance by Defendant, the
9 burden shifted to Defendant Mechanics Bank and Defendant Mechanics Bank has
10 shown the existence of a triable issue of material fact.
11 The Court’s rulings on Defendant Mechanics Bank’s objections to evidence submitted in
12 support of Plaintiff Elliott’s Motion for Summary Judgment are as follows: the Court sustains
13 Defendant’s Objection Nos. 1 through 3 and overrules Objection No. 4.
14 THEREFORE, IT IS ORDERED that Plaintiff Robert T. Elliott’s Motion for Summary
15 Judgment is DENIED.
16
17 Dated: ________________________________
18 HON. CARRIE M. PANETTA
Judge of the Superior Court
19
20
21
22
23
24
25
26
27
28
-2-
[PROPOSED] ORDER DENYING PLAINTIFF ROBERT T. ELLIOTT’S MOTION FOR SUMMARY JUDGMENT
1 PROOF OF SERVICE
2 Elliott v. Mechanics Bank, etc., et al.
MCSC Case No. 21 CV 003944
3
4 STATE OF CALIFORNIA, COUNTY OF MONTEREY
5 I am employed in the County of San Luis Obispo, State of California. I am over the age
of 18 and not a party to the within action; my business address is Post Office Box 1031, San Luis
6 Obispo, California 93406-1031.My electronic service address is msk@KennedyLawRealty.com.
7 On December 13, 2022, I served the foregoing document described as “[PROPOSED]
ORDER DENYING PLAINTIFF ROBERT T. ELLIOTT’S MOTION FOR SUMMARY
8 JUDGMENT” on the interested parties in this action addressed as follows:
9 Nina M. Patane Attorneys for Plaintiff Robert T. Elliott
Andrea C. Avila
10 Patane Gumberg Avila, LLP
4 Rossi Circle, Ste 231
11 Salinas, CA 93907
Tel: 831.755.1461
12 Email: npatane@pglawfirm.com
aavila@pglawfirm.com
13
14 The following is the procedure in which service of this document was effected:
15 BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S. Postal
16 Service on that same day with postage thereon fully prepaid at Carlsbad, California, in the
ordinary course of business. I am aware that on motion of the party served, service is
17 presumed invalid if postal cancellation date or postage meter date is more than one day
after date of deposit for mailing in affidavit.
18
BY OVERNIGHT DELIVERY: I deposited such envelope, with delivery fees paid or
19 provided for, in a box or other facility regularly maintained by UPS/Federal Express, or
delivered to a driver or courier authorized by UPS/Federal Express to receive documents.
20
BY E-MAIL: Pursuant to Code of Civil Procedure section 1010.6 and California
21 Rules of Court, rule 2.251, I caused this document to be transmitted via e-mail to the
e-mail address(es) listed for the addressee(s). No electronic message or other indication
22 that the transmission was unsuccessful was received within a reasonable time after the
transmission.
23
24 Executed on December 13, 2022, at San Luis Obispo, California.
25 I declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Digitally signed by Matthew
26 Scott Kennedy, Esq.
Date: 2022.12.13 16:34:51
-08'00'
27 By: Matthew S. Kennedy /s/ Matthew S. Kennedy (C.R.C. 2.257)
28
-3-
[PROPOSED] ORDER DENYING PLAINTIFF ROBERT T. ELLIOTT’S MOTION FOR SUMMARY JUDGMENT
Preview
1 Matthew 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. [PROPOSED] 14 MECHANICS BANK, a California ORDER DENYING PLAINTIFF ROBERT T. corporation, as the Successor-in-Interest to ELLIOTT’S MOTION FOR SUMMARY 15 Rabobank, N.A., a California corporation; JUDGMENT RABOBANK, N.A., a California 16 corporation; and DOES 1 - 40, inclusive, 17 Defendants. Complaint filed: December 20, 2021 Trial Date: None Assigned 18 19 20 Plaintiff Robert T. Elliott’s Motion for Summary Judgment came for hearing in 21 Department 14 of this Court on December 2, 2022 before the Honorable Carrie M. Panetta 22 presiding. Andrea C. Avila of Patane Gumberg Avila, LLP appeared on behalf of Plaintiff Robert 23 T. Elliott; Matthew S. Kennedy of Matthew S. Kennedy A Professional Law Corporation 24 appeared on behalf of Defendant Mechanics Bank, successor by merger to Rabobank, N.A. 25 After full consideration of the evidence, and the written and oral submissions by the 26 parties, the Court finds that the Motion must be denied in its entirety as follows: 27 1) Pursuant to Civil Code section 1585, the Court determines there is no legal 28 acceptance of Plaintiff Elliott’s settlement offer and, therefore, Plaintiff fails to -1- [PROPOSED] ORDER DENYING PLAINTIFF ROBERT T. ELLIOTT’S MOTION FOR SUMMARY JUDGMENT 1 meet his burden on summary judgment of establishing an enforceable contract on 2 his claim for breach of contract. 3 2) The Court finds that Plaintiff Elliott failed to meet his burden to establish his 4 ability to perform under the alleged contract such that Plaintiff fails to meet his 5 burden on summary judgment of establishing an enforceable contract on his claim 6 for breach of contract. 7 3) The Court further finds that even if Plaintiff Elliott had met his burden to show 8 the existence of a contract via an unequivocal acceptance by Defendant, the 9 burden shifted to Defendant Mechanics Bank and Defendant Mechanics Bank has 10 shown the existence of a triable issue of material fact. 11 The Court’s rulings on Defendant Mechanics Bank’s objections to evidence submitted in 12 support of Plaintiff Elliott’s Motion for Summary Judgment are as follows: the Court sustains 13 Defendant’s Objection Nos. 1 through 3 and overrules Objection No. 4. 14 THEREFORE, IT IS ORDERED that Plaintiff Robert T. Elliott’s Motion for Summary 15 Judgment is DENIED. 16 17 Dated: ________________________________ 18 HON. CARRIE M. PANETTA Judge of the Superior Court 19 20 21 22 23 24 25 26 27 28 -2- [PROPOSED] ORDER DENYING PLAINTIFF ROBERT T. ELLIOTT’S MOTION FOR SUMMARY JUDGMENT 1 PROOF OF SERVICE 2 Elliott v. Mechanics Bank, etc., et al. MCSC Case No. 21 CV 003944 3 4 STATE OF CALIFORNIA, COUNTY OF MONTEREY 5 I am employed in the County of San Luis Obispo, State of California. I am over the age of 18 and not a party to the within action; my business address is Post Office Box 1031, San Luis 6 Obispo, California 93406-1031.My electronic service address is msk@KennedyLawRealty.com. 7 On December 13, 2022, I served the foregoing document described as “[PROPOSED] ORDER DENYING PLAINTIFF ROBERT T. ELLIOTT’S MOTION FOR SUMMARY 8 JUDGMENT” on the interested parties in this action addressed as follows: 9 Nina M. Patane Attorneys for Plaintiff Robert T. Elliott Andrea C. Avila 10 Patane Gumberg Avila, LLP 4 Rossi Circle, Ste 231 11 Salinas, CA 93907 Tel: 831.755.1461 12 Email: npatane@pglawfirm.com aavila@pglawfirm.com 13 14 The following is the procedure in which service of this document was effected: 15 BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal 16 Service on that same day with postage thereon fully prepaid at Carlsbad, California, in the ordinary course of business. I am aware that on motion of the party served, service is 17 presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 18 BY OVERNIGHT DELIVERY: I deposited such envelope, with delivery fees paid or 19 provided for, in a box or other facility regularly maintained by UPS/Federal Express, or delivered to a driver or courier authorized by UPS/Federal Express to receive documents. 20 BY E-MAIL: Pursuant to Code of Civil Procedure section 1010.6 and California 21 Rules of Court, rule 2.251, I caused this document to be transmitted via e-mail to the e-mail address(es) listed for the addressee(s). No electronic message or other indication 22 that the transmission was unsuccessful was received within a reasonable time after the transmission. 23 24 Executed on December 13, 2022, at San Luis Obispo, California. 25 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Digitally signed by Matthew 26 Scott Kennedy, Esq. Date: 2022.12.13 16:34:51 -08'00' 27 By: Matthew S. Kennedy /s/ Matthew S. Kennedy (C.R.C. 2.257) 28 -3- [PROPOSED] ORDER DENYING PLAINTIFF ROBERT T. ELLIOTT’S MOTION FOR SUMMARY JUDGMENT