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1 JEFFER MANGELS BUTLER & MITCHELL LLP
RICHARD A. ROGAN (Bar No. 67310) E-FILED
2 rrogan@jmbm.com 11/3/2020 4:31 PM
JOSHUA HAEVERNICK (Bar No. 308380) Superior Court of California
3 Two Embarcadero Center, Fifth Floor County of Fresno
San Francisco, California 94111-3813 By: C. York, Deputy
4 Telephone: (415) 398-8080
Facsimile: (415) 398-5584
5
DOWLING AARON INCORPORATED
6 G. ANDREW SLATER (Bar No. 238126)
aslater@dowlingaaron.com
7 8080 North Palm Avenue, Third Floor
P.O. Box 28902
8 Fresno, California 93729-8902
Telephone: (559) 432-4500
9 Facsimile: (559) 432-4590
10 Attorneys for City National Bank
11
12 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
13 COUNTY OF FRESNO
14 SURGIT BAGGA, CASE NO. 16CECG03336
15 Plaintiff,
DEFENDANT CITY NATIONAL BANK'S
16 v. SEPARATE STATEMENT OF
UNDISPUTED MATERIAL FACTS IN
17 CITY NATIONAL BANK, a national banking SUPPORT OF MOTION FOR SUMMARY
association, et al., JUDGMENT, OR IN THE ALTERNATIVE,
18 MOTION FOR SUMMARY
Defendants. ADJUDICATION
19
Date: January 21, 2021
20 Time: 3:30 p.m.
Dept.: 403
21 Judge: Hon. Kristi Culver Kapetan
22
Action Filed: October 14, 2016
23 Trial Date: February 22, 2021
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25
26
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 Defendant City National Bank ("Bank"), submits the following as the Separate Statement of
2 Undisputed Material Facts in Support of Motion for Summary Judgment, or In the Alternative, for
3
Summary Adjudication against Plaintiff Surgit Bagga ("Motion") pursuant to California Code of
4
Civil Procedure § 437c(b) and California Rule of Court 3.1350.
5
DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
6
7 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
8
1. The Court dismissed the First, Second and
9
Fourth Causes of Action of the SAC against
10
CNB for Wrongful Foreclosure, Negligence and
11
12 Negligent Misrepresentation at the December 20,
13 2019 hearing of Defendant's Motion for
14 Summary Judgment or, in the Alternative,
15
Summary Adjudication
16
17 Request for Judicial Notice ("RJN") at ¶2, Ex. 2.
18
2. The SAC admits the Promissory Note specifies
19
20 monthly loan payments are due on the first day
21 of each month.
22
SAC (see RJN at ¶1, Ex. 1), ¶¶21, 108 and 118;
23
Ex. A, Promissory Note, ¶2.4(b).
24
25
3. The SAC admits that the Promissory Note
26
provides that if a payment is not made within 10
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3
4 days, it will incur a late charge.
5
SAC, ¶¶22, 108 and 118; Ex. A, Promissory
6
Note, ¶5. Declaration of Michael D. Rosenheck
7
8 in Support of Motion for Summary Judgment, or
9 in the Alternative, Motion for Summary
10 Adjudication ("Rosenheck Dec."), ¶¶5-6, Exhibit
11 1.
12
13 4. The SAC attaches "a true and correct copy of a
14 summary of payments generated by City
15 National Bank showing all mortgage payments
16
made by Mrs. Bagga from 2009 through
17
09/15/2014...."
18
19 SAC, ¶¶25, 108 and 118, Ex. C.
20
21 5. Each payment was credited on the day it was
22 received by the Bank.
23
Rosenheck Dec., ¶7.
24
25
6. Exhibit C is a report from the same database that
26
was used to generate the monthly loan
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3
4 statements sent to Plaintiff.
5
Rosenheck Dec., ¶10.
6
7 7. Exhibit C, the "true and correct" loan summary,
8
establishes the dates on which Plaintiff's
9
payments were received by the Bank and how
10
the payments were applied.
11
12 Rosenheck Dec., ¶10.
13
14 8. CNB did not misrepresent the facts as to when a
15 late charge would be incurred nor did CNB
16 misrepresent the date it received payments and
17
how they were applied.
18
19 SAC, ¶¶21, 108 and 118; Exs. A and C;
20 Rosenheck Dec., ¶¶5-10, Exs. 1 and 2.
21
22 9. CNB sent detailed loan statements to Plaintiff
23 each month that accurately set forth the principal
24 balance, interest due, late charges, interest rate,
25
the amount of each payment and how it would
26
be allocated.
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3
4 Rosenheck Dec., ¶8.
5
10. The loan statements are generated monthly from
6
the same computer database, printed on
7
8 stationery with the Bank's logo and sent to
9 customers.
10
Rosenheck Dec., ¶8.
11
12
11. The monthly statements accurately represented
13
activity in the loan account and did not contain a
14
false representation.
15
16 Rosenheck Dec., ¶9.
17
18 12. Plaintiff admits that the Promissory Note
19 specifically provides that payments are applied
20 only when good funds are received by the
21
lender, not when the check is dropped in a
22
mailbox.
23
24 SAC, Ex. C; Promissory Note, ¶3.
25
26 13. Loan payments are credited on the day they are
27 delivered to the Bank, and that the loan summary
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3
4 accurately recorded each such payment.
5
Rosenheck Dec., ¶¶7-10.
6
7 14. Every month, Plaintiff received a loan statement
8
that disclosed exactly when the previous
9
payment was credited and how it was credited.
10
11 Rosenheck Dec., ¶9.
12
13 15. Each statement set forth the date on which the
14 previous payment was credited against the loan
15 and the amount of late charge, if any, that was
16 assessed.
17
18 Rosenheck Dec., ¶9.
19
16. Plaintiff signed the Promissory Note and also
20
initialed each page of the Promissory Note.
21
22
SAC, Ex. 1; Promissory Note, ¶16(1) and (2), at
23
6.
24
25 17. In the Promissory Note, Plaintiff acknowledged
26
that she "has carefully read and understands the
27
terms of the loan documents" and that she "has
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3
4 executed the loan documents freely and
5 voluntarily after having consulted with
6 [Plaintiff's] legal counsel and after having had all
7
of the terms of the loan documents explained" to
8
her by counsel or "having had a full and
9
adequate opportunity to consult" with her
10
counsel.
11
12
SAC, Ex. 1; Promissory Note, ¶16(1) and (2), at
13
6.
14
15 18. Plaintiff is the borrower on a commercial real
16
estate loan secured by a deed of trust on a "55-
17
room [sic] luxury apartment complex" in Fresno
18
that she owned and rented to tenants.
19
20
SAC, ¶¶15, 18, 38, 43, 44, 92 and 128; Ex. B.
21
22 19. Plaintiff hired Fresno Management Company "to
23 provide apartment building management services
24
to Plaintiff with respect to the Property."
25
26 SAC, ¶¶38 and 128.
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3
4 20. Plaintiff is "an individual."
5
SAC, ¶¶1, 128.
6
7 21. Plaintiff is not in the business of making
8
commercial real estate loans secured by
9
apartment buildings in competition with CNB,
10
nor can Plaintiff prove otherwise because
11
Plaintiff is not licensed to make loans in the
12
13 State of California.
14
Declaration of Joshua K. Haevernick in Support
15
of Motion for Summary Judgment, or in the
16
17 Alternative, Motion for Summary Adjudication
18 ("Haevernick Decl.") at ¶¶2-3, Exs. 1-2.
19
22. The Court previously dismissed Plaintiff's
20
21 allegations of negligent misrepresentation and
22 wrongful foreclosure.
23
RJN, Exhibit 2.
24
25
23. CNB did not conspire with anyone regarding the
26
administration of this loan, including Fresno
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3
4 Management Company, Kruse and Hutchens.
5
Rosenheck Dec., ¶11.
6
7 24. CNB alone engaged Partner Engineering and
8
Science, Inc., a national property condition
9
assessment consulting firm ("Partner"), to
10
prepare a Property Condition Report.
11
12 Rosenheck Dec., ¶12.
13
14 25. On June 11, 2013, Partner issued its Property
15 Condition Report showing only $180,000 in
16 Immediate Repairs were needed.
17
18 Rosenheck Dec., ¶13 Ex. 3, at Table 1.
19
26. The Property Condition Report recites that
20
"Partner was engaged by City National Bank to
21
22 perform the assessment."
23
Rosenheck Dec., ¶13 Ex. 3, at ¶1.2, p. 1.
24
25 27. The Property Condition Report specifically notes
26
that "[t]his report and the information therein,
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3
4 are for the exclusive use of City National Bank."
5
Rosenheck Dec., ¶13 Ex. 3, at ¶1.2, p. 1.
6
7 28. Plaintiff dismissed Fresno Management
8
Company, Jim Kruse and Ray Hutchins from
9
this action.
10
11 RJN at ¶3 Ex. 3.
12
13 29. Exhibit C to the SAC is "[a] true and correct
14 copy of a summary of payments generated by
15 City National Bank showing all mortgage
16 payments made by Mrs. Bagga from 2009
17
through 09/15/2014."
18
19 SAC,¶¶25 and 142; Rosenheck Dec., ¶10.
20
30. Exhibit C is a "true and correct" summary of the
21
22 payments made by Plaintiff and how each
23 payment was applied.
24
Rosenheck Dec., ¶10.
25
26
31. There are no errors in the accounting, which was
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND
2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3
4 kept by CNB in its ordinary course of business.
5
Rosenheck Dec., ¶10.
6
7 32. No notices are required to be given under the
8
Promissory Note.
9
10 SAC, Ex. A.
11
33. The Loan Summary, and the loan statements sent
12
13 to Plaintiff each month, show that late charges
14 were repeatedly disclosed when they were
15 incurred and that each payment was applied
16 appropriately upon receipt of "immediately
17
available funds."
18
19 SAC, Ex. C, Rosenheck Dec. ¶8, Ex. 2.
20
21 DATED: November 3, 2020 JEFFER MANGELS BUTLER & MITCHELL LLP
RICHARD A. ROGAN
22 JOSHUA HAEVERNICK
23 DOWLING AARON INCORPORATED
G. ANDREW SLATER
24
25
By:
26 RICHARD A. ROGAN
Attorneys for Defendant
27 CITY NATIONAL BANK
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SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
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1 JEFFER MANGELS BUTLER & MITCHELL LLP RICHARD A. ROGAN (Bar No. 67310) E-FILED 2 rrogan@jmbm.com 11/3/2020 4:31 PM JOSHUA HAEVERNICK (Bar No. 308380) Superior Court of California 3 Two Embarcadero Center, Fifth Floor County of Fresno San Francisco, California 94111-3813 By: C. York, Deputy 4 Telephone: (415) 398-8080 Facsimile: (415) 398-5584 5 DOWLING AARON INCORPORATED 6 G. ANDREW SLATER (Bar No. 238126) aslater@dowlingaaron.com 7 8080 North Palm Avenue, Third Floor P.O. Box 28902 8 Fresno, California 93729-8902 Telephone: (559) 432-4500 9 Facsimile: (559) 432-4590 10 Attorneys for City National Bank 11 12 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 13 COUNTY OF FRESNO 14 SURGIT BAGGA, CASE NO. 16CECG03336 15 Plaintiff, DEFENDANT CITY NATIONAL BANK'S 16 v. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN 17 CITY NATIONAL BANK, a national banking SUPPORT OF MOTION FOR SUMMARY association, et al., JUDGMENT, OR IN THE ALTERNATIVE, 18 MOTION FOR SUMMARY Defendants. ADJUDICATION 19 Date: January 21, 2021 20 Time: 3:30 p.m. Dept.: 403 21 Judge: Hon. Kristi Culver Kapetan 22 Action Filed: October 14, 2016 23 Trial Date: February 22, 2021 24 25 26 27 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 1 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 Defendant City National Bank ("Bank"), submits the following as the Separate Statement of 2 Undisputed Material Facts in Support of Motion for Summary Judgment, or In the Alternative, for 3 Summary Adjudication against Plaintiff Surgit Bagga ("Motion") pursuant to California Code of 4 Civil Procedure § 437c(b) and California Rule of Court 3.1350. 5 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 6 7 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 8 1. The Court dismissed the First, Second and 9 Fourth Causes of Action of the SAC against 10 CNB for Wrongful Foreclosure, Negligence and 11 12 Negligent Misrepresentation at the December 20, 13 2019 hearing of Defendant's Motion for 14 Summary Judgment or, in the Alternative, 15 Summary Adjudication 16 17 Request for Judicial Notice ("RJN") at ¶2, Ex. 2. 18 2. The SAC admits the Promissory Note specifies 19 20 monthly loan payments are due on the first day 21 of each month. 22 SAC (see RJN at ¶1, Ex. 1), ¶¶21, 108 and 118; 23 Ex. A, Promissory Note, ¶2.4(b). 24 25 3. The SAC admits that the Promissory Note 26 provides that if a payment is not made within 10 27 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 4 days, it will incur a late charge. 5 SAC, ¶¶22, 108 and 118; Ex. A, Promissory 6 Note, ¶5. Declaration of Michael D. Rosenheck 7 8 in Support of Motion for Summary Judgment, or 9 in the Alternative, Motion for Summary 10 Adjudication ("Rosenheck Dec."), ¶¶5-6, Exhibit 11 1. 12 13 4. The SAC attaches "a true and correct copy of a 14 summary of payments generated by City 15 National Bank showing all mortgage payments 16 made by Mrs. Bagga from 2009 through 17 09/15/2014...." 18 19 SAC, ¶¶25, 108 and 118, Ex. C. 20 21 5. Each payment was credited on the day it was 22 received by the Bank. 23 Rosenheck Dec., ¶7. 24 25 6. Exhibit C is a report from the same database that 26 was used to generate the monthly loan 27 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 4 statements sent to Plaintiff. 5 Rosenheck Dec., ¶10. 6 7 7. Exhibit C, the "true and correct" loan summary, 8 establishes the dates on which Plaintiff's 9 payments were received by the Bank and how 10 the payments were applied. 11 12 Rosenheck Dec., ¶10. 13 14 8. CNB did not misrepresent the facts as to when a 15 late charge would be incurred nor did CNB 16 misrepresent the date it received payments and 17 how they were applied. 18 19 SAC, ¶¶21, 108 and 118; Exs. A and C; 20 Rosenheck Dec., ¶¶5-10, Exs. 1 and 2. 21 22 9. CNB sent detailed loan statements to Plaintiff 23 each month that accurately set forth the principal 24 balance, interest due, late charges, interest rate, 25 the amount of each payment and how it would 26 be allocated. 27 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 4 Rosenheck Dec., ¶8. 5 10. The loan statements are generated monthly from 6 the same computer database, printed on 7 8 stationery with the Bank's logo and sent to 9 customers. 10 Rosenheck Dec., ¶8. 11 12 11. The monthly statements accurately represented 13 activity in the loan account and did not contain a 14 false representation. 15 16 Rosenheck Dec., ¶9. 17 18 12. Plaintiff admits that the Promissory Note 19 specifically provides that payments are applied 20 only when good funds are received by the 21 lender, not when the check is dropped in a 22 mailbox. 23 24 SAC, Ex. C; Promissory Note, ¶3. 25 26 13. Loan payments are credited on the day they are 27 delivered to the Bank, and that the loan summary 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 4 accurately recorded each such payment. 5 Rosenheck Dec., ¶¶7-10. 6 7 14. Every month, Plaintiff received a loan statement 8 that disclosed exactly when the previous 9 payment was credited and how it was credited. 10 11 Rosenheck Dec., ¶9. 12 13 15. Each statement set forth the date on which the 14 previous payment was credited against the loan 15 and the amount of late charge, if any, that was 16 assessed. 17 18 Rosenheck Dec., ¶9. 19 16. Plaintiff signed the Promissory Note and also 20 initialed each page of the Promissory Note. 21 22 SAC, Ex. 1; Promissory Note, ¶16(1) and (2), at 23 6. 24 25 17. In the Promissory Note, Plaintiff acknowledged 26 that she "has carefully read and understands the 27 terms of the loan documents" and that she "has 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 6 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 4 executed the loan documents freely and 5 voluntarily after having consulted with 6 [Plaintiff's] legal counsel and after having had all 7 of the terms of the loan documents explained" to 8 her by counsel or "having had a full and 9 adequate opportunity to consult" with her 10 counsel. 11 12 SAC, Ex. 1; Promissory Note, ¶16(1) and (2), at 13 6. 14 15 18. Plaintiff is the borrower on a commercial real 16 estate loan secured by a deed of trust on a "55- 17 room [sic] luxury apartment complex" in Fresno 18 that she owned and rented to tenants. 19 20 SAC, ¶¶15, 18, 38, 43, 44, 92 and 128; Ex. B. 21 22 19. Plaintiff hired Fresno Management Company "to 23 provide apartment building management services 24 to Plaintiff with respect to the Property." 25 26 SAC, ¶¶38 and 128. 27 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 7 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 4 20. Plaintiff is "an individual." 5 SAC, ¶¶1, 128. 6 7 21. Plaintiff is not in the business of making 8 commercial real estate loans secured by 9 apartment buildings in competition with CNB, 10 nor can Plaintiff prove otherwise because 11 Plaintiff is not licensed to make loans in the 12 13 State of California. 14 Declaration of Joshua K. Haevernick in Support 15 of Motion for Summary Judgment, or in the 16 17 Alternative, Motion for Summary Adjudication 18 ("Haevernick Decl.") at ¶¶2-3, Exs. 1-2. 19 22. The Court previously dismissed Plaintiff's 20 21 allegations of negligent misrepresentation and 22 wrongful foreclosure. 23 RJN, Exhibit 2. 24 25 23. CNB did not conspire with anyone regarding the 26 administration of this loan, including Fresno 27 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 4 Management Company, Kruse and Hutchens. 5 Rosenheck Dec., ¶11. 6 7 24. CNB alone engaged Partner Engineering and 8 Science, Inc., a national property condition 9 assessment consulting firm ("Partner"), to 10 prepare a Property Condition Report. 11 12 Rosenheck Dec., ¶12. 13 14 25. On June 11, 2013, Partner issued its Property 15 Condition Report showing only $180,000 in 16 Immediate Repairs were needed. 17 18 Rosenheck Dec., ¶13 Ex. 3, at Table 1. 19 26. The Property Condition Report recites that 20 "Partner was engaged by City National Bank to 21 22 perform the assessment." 23 Rosenheck Dec., ¶13 Ex. 3, at ¶1.2, p. 1. 24 25 27. The Property Condition Report specifically notes 26 that "[t]his report and the information therein, 27 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 9 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 4 are for the exclusive use of City National Bank." 5 Rosenheck Dec., ¶13 Ex. 3, at ¶1.2, p. 1. 6 7 28. Plaintiff dismissed Fresno Management 8 Company, Jim Kruse and Ray Hutchins from 9 this action. 10 11 RJN at ¶3 Ex. 3. 12 13 29. Exhibit C to the SAC is "[a] true and correct 14 copy of a summary of payments generated by 15 City National Bank showing all mortgage 16 payments made by Mrs. Bagga from 2009 17 through 09/15/2014." 18 19 SAC,¶¶25 and 142; Rosenheck Dec., ¶10. 20 30. Exhibit C is a "true and correct" summary of the 21 22 payments made by Plaintiff and how each 23 payment was applied. 24 Rosenheck Dec., ¶10. 25 26 31. There are no errors in the accounting, which was 27 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 10 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 DEFENDANT'S UNDISPUTED MATERIAL PLAINTIFF'S RESPONSE AND 2 FACTS AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 3 4 kept by CNB in its ordinary course of business. 5 Rosenheck Dec., ¶10. 6 7 32. No notices are required to be given under the 8 Promissory Note. 9 10 SAC, Ex. A. 11 33. The Loan Summary, and the loan statements sent 12 13 to Plaintiff each month, show that late charges 14 were repeatedly disclosed when they were 15 incurred and that each payment was applied 16 appropriately upon receipt of "immediately 17 available funds." 18 19 SAC, Ex. C, Rosenheck Dec. ¶8, Ex. 2. 20 21 DATED: November 3, 2020 JEFFER MANGELS BUTLER & MITCHELL LLP RICHARD A. ROGAN 22 JOSHUA HAEVERNICK 23 DOWLING AARON INCORPORATED G. ANDREW SLATER 24 25 By: 26 RICHARD A. ROGAN Attorneys for Defendant 27 CITY NATIONAL BANK 28 PRINTED ON 68417284v1 29 RECYCLED PAPER 11 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION