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1 NINA M. PATANE (SBN 157079)
ANDREA C. AVILA (SBN 193982)
2 PATANE • GUMBERG • AVILA, LLP
Attorneys at Law
3 4 Rossi Circle, Suite 231
Salinas, CA 93907
4 Mailing: P.O. Box 3770, Salinas, CA 93912
Telephone: (831) 755-1461
5 Facsimile: (831) 755-1477
Email: npatane@pglawfirm.com
6 aavila@pglawfirm.com
7 Attorneys for Plaintiff,
ROBERT T. ELLIOTT
8
9 SUPERIOR COURT OF CALIFORNIA – COUNTY OF MONTEREY
10 UNLIMITED JURISDICTION
11 ROBERT T. ELLIOTT, ) CASE NO. 21CV003944
)
12 ) PLAINTIFF ROBERT T. ELLIOTT’S
Plaintiff, )
vs. RESPONSE TO DEFENDANT
13 )
) MECHANICS BANK’S OBJECTIONS TO
14 MECHANICS BANK, a California ) PLAINTIFF’S EVIDENCE IN
corporation, as the Successor-in-Interest to ) OPPOSITION TO THE BANK’S
15 Rabobank, N.A.; and DOES 1 – 40, inclusive, ) MOTION FOR SUMMARY JUDGMENT
)
16 ) Date: September 29, 2023
Defendants. ) Time: 8:30 a.m.
17 )
) Dept.: 14
18 ) Judge: Hon. Carrie M. Panetta
)
19 ) Complaint Filed: December 21, 2021
Trial Date: Not Set
20
21
Plaintiff ROBERT T. ELLIOTT (“Elliott”), submits the following Response to Defendant
22
MECHANICS BANK’s (“MECHANICS BANK”) Objections to Plaintiff’s Evidence in
23
Opposition to the Bank’s Motion for Summary Judgment.
24
25
DECLARATION OF PLAINTIFF ROBERT T. ELLIOTT, dated July 6, 2023
26
Obj. Plaintiff’s Evidence Argument Plaintiff’s Response
27 No.
1. 3. It was not until this The Bank objects to and There is no inconsistency
28
litigation that I learned moves to strike the italicized between Plaintiff’s sworn
-1-
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 proffered evidence on the
that the loans consisted of testimony and the italicized
grounds it is not relevant,
[#190012401] issued on text. Plaintiff admits he signed
2 lacks probative value, and
November 25, 2005 in the the three loans.
lacks foundation on the
sum of $750,000; loan
3 factual and legal issues in the
[#78186840-09] issued on
Bank’s Motion for Summary
October 12, 2004 in the
4
Judgment. (See Evid. Code
sum of $1,900,000; and
5 §§ 210, 350, 403.)
loan [#160064291] issued
The italicized proffered
6 on October 13, 2004 in
evidence controverts Plaintiff
the sum of $1,000,000.
Elliott’s sworn testimony and
7 Myself, and other the law. Plaintiff Elliott
Premium Fresh owners,
testified at his deposition that
8
personally guaranteed the
he signed all documents for
9 (1) Loan No. PLP 78186840-
second and third loans.
09, in the principal sum of
(Collectively, the first,
10 $1,900,000.00, and was
second and third loans are
“the Loans”.) Beyondguaranteed through the U.S.
11 Small Business
this, I am unfamiliar with
12 Administration (“SBA”); (2)
the details of the loan
Loan No. 160064291, in the
documents.
13 principal sum of
$1,000,000.00, through
14 Community Bank of Central
California; and (3) Loan No.
15 190012401, in principal sum
16 of $750,000.00. [The Bank’s
Ex. R, Deposition of Robert
17 T. Elliott, dated September 9,
2022 (“Elliott Depo.”),
18 15:18-22, 17:4-9, 19:2-24,
20:15-21:5. 91:10-12.] The
19 California Supreme Court
20 ruled that “a signature on a
written contract is an
21 objective manifestation of
assent to the terms set forth
22 there”. (Monster Energy Co.
v. Schecter (2019) 7 Cal.5th
23
781, 789 [emphasis added].)
24 Consequently, whether
Plaintiff Elliott did not learn
25 what “the loans consisted of”
“until this litigation”, or that
26 he was “unfamiliar with the
details of the loan
27
documents”, is not relevant.
28 Plaintiff Elliott’s actual
intent, for purposes of
-2-
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 contract law, is that he
manifested and agreed to the
2 terms by signing the loan
documents. (Rodriquez v.
3 Oto (2013) 212 Cal.App.4th
1020, 1027.)
4
The Bank further objects
5 to and moves to strike the
italicized proffered evidence
6 on the grounds that in light of
7 Plaintiff’s prior sworn
statements this proffered
8 evidence is purely self-
serving. As a general rule, a
9
self-serving declaration lacks
10 trustworthiness; particularly
when controverted by prior
11 sworn testimony and/or the
opposing party. (People v.
12
Duarte (2000) 24 Cal.4th
13 603, 611; Trujillo v. First
American Registry (2007)
14 157 Cal.App.4th 628, 636.)
15 2. 7. Several Debtors filed The Bank objects to and Elliott’s statement is probative
16 bankruptcy causing the moves to strike the italicized to Elliott’s motive and
Rabobank Judgment and proffered evidence on the intention in commencing
17 Liens to be discharged as grounds it is not relevant to discussions with the Special
to those individuals and the matters at issue, lacks Assets Department, i.e., to
18
entities. I did not file probative value, and is self- settle his judgment and lien.
19 bankruptcy. Instead, I serving. (See Evid. Code §§
Elliott’s statement does not
elected to negotiate and 210, 350.) As a general rule,
20 controvert Elliott’s prior sworn
resolve my liability on the a self-serving declaration
testimony.
21 Rabobank Judgment and lacks trustworthiness;
Liens. particularly when
22 controverted by prior sworn
testimony and/or the
23
opposing party. Plaintiff
24 Elliott’s statement that he did
not file bankruptcy but
25 “elected to negotiate and
resolve [his] liability” is not
26
material to the issues on the
27 Bank’s Motion for Summary
Judgment, i.e., whether there
28 is a valid agreement/contract
-3-
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 between Plaintiff and the
Bank or application of the
2 statute of limitations. The
statement is simply a
3
background fact that is self-
4 serving. (People v. Duarte
(2000) 24 Cal.4th 603, 611;
5 Trujillo v. First American
6 Registry (2007) 157
Cal.App.4th 628, 636.)
7
3. 9. Sometime before The Bank objects to and There is no inconsistency
8 August 8, 2013, … I met moves to strike the italicized between Elliott’s sworn
with Bennett in his office proffered evidence on the testimony or verified discovery
9 grounds it is a statement
and presented responses. Paragraph 11 of
preliminary information inconsistent with Plaintiff Elliott’s declaration in support
10
to him about my then Elliott’s prior sworn of his opposition to Motion for
11 deposition testimony and
financial status including: Summary Judgment dated July
verified answers to written
the 4 to 5 Perishable 2, 2023 (“Declaration”) states
12 discovery. (Evid. Code, §
Agricultural Commodities 791.) Consequently, the that he “recently researched his
13 Act judgments against proffered evidence lacks files” and located materials he
Premium Fresh, the probative value, and is self- took to Bennett’s office.
14 status of my property Elliott’s discovery responses
serving. As a general rule, a
15 holdings, financial status self-serving declaration lacks specifically reserve Elliott’s
of my businesses, my trustworthiness; particularly right to continue his
16 liabilities and other when controverted by prior investigation for documents
financial information. sworn testimony and/or the responsive to the requests. The
17 opposing party. (People v. statement should not be
Duarte (2000) 24 Cal.4th stricken.
18
603, 611; Trujillo v. First
19 American Registry (2007)
157 Cal.App.4th 628, 636.)
20 D’Amico v. Board of Med.
Examiners (1974) 11 Cal.3d
21 1, 21-22, bars testimony that
22 contradicts a prior sworn
admission made during
23 discovery. Where a party’s
self-serving declaration
24 contradicts prior discovery
admissions and responses,
25 aiming to impeach that
26 party’s own prior sworn
testimony, such declarations
27 should be disregarded. In the
summary judgment context, a
28 declaration contradicting a
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______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 prior sword admission does
not raise substantial evidence
2 of a triable issue of fact to
defeat a summary judgment
3 motion. (Archdale v.
American Internat. Specialty
4
Ins. Co. (2007) 154
5 Cal.App.4th 449, 473;
Collins v. Hertz Corp. (2006)
6 144 Cal.App.4th 64, 75 n. 5,
79 (a declaration
7 contradicting deposition
testimony is insufficient to
8
defeat summary judgment
9 when objection to evidence
raised).)
10 In Plaintiff Elliott’s
responses to Special
11 Interrogatories and Requests
12 for Production of
Documents, verified June 17,
13 2022, he did not identify or
produce any financial
14 statements provided to
Defendant the Bank. At his
15 sworn deposition on
16 September 9, 2022, when
asked what financials
17 Plaintiff Elliott provided to
Bennett, he answered “don’t
18 recall”. [The Bank’s Ex. R,
Elliott Depo., 23:4-8.] Even
19 in his declaration last year in
20 support of his own summary
judgment motion on the same
21 set of facts, Plaintiff Elliott
did not and could not identify
22 the financial documents he
purportedly provided to the
23
Bank – he could only state
24 that on “information and
belief” he provided
25 something. [The Bank’s Ex.
S, Elliott Dec., 3:12-14, 3:15-
26 16.]
Now, in July 2023,
27
Plaintiff Elliott has moved
28 beyond his “information and
-5-
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 belief” in his 2022
Declaration (Ex. S) or “don’t
2 know” deposition testimony
(Ex. R) to an itemized lists of
3
financial documents he
4 purportedly provided to the
Bank.
5
4. 11. On August 21, 2013, I The Bank objects to and There is no inconsistency
6 met again with Bennett in moves to strike the italicized between Elliott’s sworn
Rabobank's Fresno proffered evidence on the testimony or verified discovery
7
offices to continue my grounds it is a statement responses. Paragraph 11 of
8 settlement negotiations inconsistent with Plaintiff Elliott’s Declaration dated July
and to review and discuss Elliott’s prior sworn 2, 2023 states that he
9 deposition testimony and
my financial status in “recently researched his files”
verified answers to written
10 more detail. I recently and located materials he took
discovery. (Evid. Code, §
researched my files for 791.) Consequently, the to Bennett’s office. Elliott’s
11 documents that I took to discovery responses
proffered evidence lacks
Bennett’s office in probative value, and is self- specifically reserve Elliott’s
12
anticipation of this serving. As a general rule, a right to continue his
13 meeting. The documents self-serving declaration lacks investigation for documents
included: a 2-inch thick trustworthiness; particularly responsive to the requests. The
14 binder prepared by my when controverted by prior statement should not be
then bookkeeper which sworn testimony and/or the stricken.
15
included information on opposing party. (People v.
16 my assets and liabilities Duarte (2000) 24 Cal.4th
prior to the Judgment as 603, 611; Trujillo v. First
17 American Registry (2007)
compared to my assets
157 Cal.App.4th 628, 636.)
18 and liabilities in 2013. D’Amico v. Board of Med.
This binder contains Examiners (1974) 11 Cal.3d
19 canceled checks paid by 1, 21-22, bars testimony that
20 me or my companies in contradicts a prior sworn
satisfaction of Premium admission made during
21 Fresh’s debt totaling discovery. Where a party’s
$2,413,048.32, services self-serving declaration
22 contradicts prior discovery
performed by me or my
23 companies on behalf of admissions and responses,
Premium Fresh to satisfy aiming to impeach that
24 Premium Fresh party’s own prior sworn
testimony, such declarations
25 obligations, information
should be disregarded. In the
on properties that I lost
summary judgment context, a
26 via foreclosure valued at declaration contradicting a
approximately prior sword admission does
27
$2,000,000.00, not raise substantial evidence
28 spreadsheets of a triable issue of fact to
-6-
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 demonstrating the value defeat a summary judgment
of my companies, among motion. (Archdale v.
2 other items. I also American Internat. Specialty
brought recent tax filings, Ins. Co. (2007) 154
3 Cal.App.4th 449, 473;
information concerning
my property holdings, Collins v. Hertz Corp. (2006)
4
144 Cal.App.4th 64, 75 n. 5,
current profit and loss
5 79 (a declaration
statements of my
contradicting deposition
6 businesses, outstanding testimony is insufficient to
loans for which I was defeat summary judgment
7 obligated, judgments, when objection to evidence
including 4-5 PACA raised).)
8
judgments. Again, in Plaintiff
9 Elliott’s responses to Special
Interrogatories and Requests
10 for Production of
11 Documents, verified June 17,
2022, he did not identify or
12 produce any financial
statements he provided to
13
Defendant the Bank. At his
14 sworn deposition on
September 9, 2022, when
15 asked what financials
16 Plaintiff Elliott provided to
Bennett, he answered “don’t
17 recall”. [The Bank’s Ex. R,
Elliott Depo., 23:4-8.] Even
18 in his July 2022 declaration
19 in support of his own
summary judgment motion
20 on the same set of facts,
Plaintiff Elliott did not and
21
could not identify the
22 financial documents he
purportedly provided to
23 Bennett and the Bank in
24 August 2013. [The Bank’s
Ex. S, Elliott Dec., 3:12-14,
25 3:15-16.]
Now, in 2023 and solely
26
to oppose the Bank’s
27 summary judgment motion,
Plaintiff Elliott “recently
28 reviewed” his files and has
-7-
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 moved beyond his
“information and belief”
2 attestation or “don’t know”
sworn deposition testimony
3
to a voluminous, itemized list
4 of financial documents he
purportedly provided to the
5 Bank.
6 5. 11. During our meeting The Bank objects to and Inferences are defined by the
[August 21, 2013], moves to strike the italicized Evidence Code as “a deduction
7
Bennett left the office with proffered evidence on the of fact that may logically and
8 select materials that I grounds it is not relevant to reasonably be drawn from
presented, and it was my the matters at issue, lacks another fact or group of facts
9 foundation, lacks personal found or otherwise established
understanding that he
knowledge, is speculative, is in the action.” (Evid. Code, §
10 made copies of those
conjecture, and lacks 600.) Inferences are
documents.
11 probative value. (See Evid. treated with as much force and
Code §§ 210, 350, 702, 800.) validity as evidence. A
12 Plaintiff Elliott has no reasonable inference drawn
personal knowledge of the from circumstantial evidence
13 facts and actions of what may properly support a
Bennett did when Bennett finding, despite direct evidence
14 left the meeting with Plaintiff to the contrary. (Mason v.
15 – as such it is sheer Rolando Lumber Co. (1952)
speculation. Further, the use 111 Cal.App.2d 79.) A party
16 of the word “understanding” may rely upon reasonable
establishes that this passage inferences from the evidence
17 is based on conjecture, not to support its position. (Ajaxo
personal knowledge. There is Inc. v. E*Trade Group,
18 a general rule that Inc. (2005) 135 Cal.App.4th
19 witnesses/declarants must 21.) Elliott was present at the
testify to facts and not to meeting with Bennett. Elliott
20 their opinions or conclusions. therefore had the requisite
(Newton v. Los Angeles personal knowledge to make
21 Transit Lines (1951) 107 reasonable inferences based on
Cal.App.2d 624, 626.) A what he observed.
22
declaration that sets forth
23 conclusions, opinions, or The italics statement is
inferences is not sufficient. probative to the issue of
24 (Kramer v. Barnes (1963) Rabobank’s acceptance as it
212 Cal.App.2d 440, 446.) demonstrates the extent of the
25 The Bank further objects materials provided by Elliott
to and moves to strike the for Rabobank’s consideration
26 prior to January 2014.
italicized proffered evidence
27 on the grounds it is not
relevant, lacks probative The italics statement is relevant
28 value, and lacks foundation because it bears directly on
-8-
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 on the factual and legal Bennett’s/Rabobank’s state of
issues in the Bank’s Motion mind when considering Elliott’s
2 for Summary Judgment. (See offer in January 2014.
Evid. Code §§ 210, 350,
3 403.)
6. 12. This meeting with The Bank objects to and Elliott was present at the
4
Bennett lasted between moves to strike the italicized meeting with Bennett. Elliott
5 forty-five minutes to one proffered evidence on the therefore had the requisite
hour and involved me grounds that it lacks personal knowledge to confirm
6 explaining my financial foundation, is speculative, what was discussed at the
status by and through the and constitutes hearsay, meeting. Proper foundation
7 thereby lacking probative exists.
supporting
8 value. (Evid. Code §§ 210,
documentation. Bennett
350, 403, 1200, 1400.) The evidence is not
informed me that Plaintiff Elliott fails to inadmissible hearsay because
9
Rabobank was dealing establish a sufficient it demonstrates Bennett’s state
10 with huge loads of debtor foundation for his hearsay of mind (i.e., that the bank/he
files from the 2008 statements of what Bennett was backlogged with work).
11 market crash. Bennett purportedly informed him. The evidence is further offered
12 suggested that he had Further, the statements to prove or explain acts or
bigger files to deal with, constitute inadmissible conduct of the declarant. Cal.
13 with values much larger hearsay as it is offered by Evid. Code§ 1252. The
than mine. Bennett Plaintiff Elliott for the truth evidence is offered to explain
14
indicated he may have to of the matters depicted. why Bennett did transferred
delegate my file to (Evid. Code § 1200.) Elliott’s file to a further
15 The Bank further objects Special Assets officer.
another Special Assets
16 to and moves to strike the
agent. italicized proffered evidence The evidence is probative to
17 on the grounds it is not Bennett’s state of mind and
relevant, lacks probative Bennett’s credibility.
18 value, and lacks foundation
on the factual and legal
19
issues in the Bank’s Motion
20 for Summary Judgment. (See
Evid. Code §§ 210, 350,
21 403.)
The Bank further objects
22 to and moves to strike the
italicized proffered evidence
23
on the grounds that Plaintiff
24 Elliott’s inferences are self-
serving. As a general rule, a
25 self-serving declaration lacks
trustworthiness; particularly
26 when controverted by prior
sworn testimony, see the
27
Bank’s Ex. S, Elliott Dec.,
28 3:15-18. (People v. Duarte
(2000) 24 Cal.4th 603, 611;
-9-
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 Trujillo v. First American
Registry (2007) 157
2 Cal.App.4th 628, 636.)
7. 14. In approximately The Bank objects to and Elliott was present at the
3 early September 2013, I moves to strike the italicized meeting with Oliver. Elliott
once again had my proffered evidence on the therefore had the requisite
4
daughter drive me to grounds it is a statement personal knowledge to provide
5 Fresno to meet with Mr. inconsistent with Plaintiff information on what was
Oliver in person at or Elliott’s prior sworn discussed at the meeting.
6 deposition testimony and Proper foundation exists.
near this same time. To
verified answers to written
7 the best of my
discovery. (Evid. Code, § The evidence is not
recollection, Mr. Oliver 791.) Consequently, the inadmissible hearsay because
8 had materials forwarded proffered evidence lacks it demonstrates Oliver’s state
9 to him by Bennett. I probative value, and is self- of mind (i.e., that Oliver
brought all of the above- serving. As a general rule, a needed to follow bank
10 referenced backup self-serving declaration lacks protocols via a formal
materials and reviewed trustworthiness; particularly settlement proposal to finalize
11
them with Mr. Oliver. He when controverted by prior a settlement). The evidence is
12 did not ask me for further sworn testimony and/or the offered to prove or explain acts
supportive documents at opposing party. [See the or conduct of the declarant.
13 that time. Instead, he Bank’s Ex. S, Elliott Dec., Cal. Evid. Code§ 1252. [that
asked me to submit a 3:23-28 (no mention of Oliver could not review
14 meeting bringing “backup informal materials and instead
formal settlement
materials” or “review” with required a formal proposal]
15 proposal for Rabobank's Mr. Oliver), and the Bank’s
consideration. Oliver did Ex. C, Oliver Dec., 4:17-
16 not request any further 5:15.] (People v. Duarte
17 information/documentatio (2000) 24 Cal.4th 603, 611;
n from me. Trujillo v. First American
18 Registry (2007) 157
Cal.App.4th 628, 636.)
19
D’Amico v. Board of Med.
20 Examiners (1974) 11 Cal.3d
1, 21-22, bars testimony that
21 contradicts a prior sworn
admission made during
22 discovery. Where a party’s
self-serving declaration
23
contradicts prior discovery
24 admissions and responses,
aiming to impeach that
25 party’s own prior sworn
testimony, such declarations
26 should be disregarded. In the
summary judgment context, a
27
declaration contradicting a
28 prior sword admission does
not raise substantial evidence
- 10 -
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 of a triable issue of fact to
defeat a summary judgment
2 motion. (Archdale v.
American Internat. Specialty
3 Ins. Co. (2007) 154
Cal.App.4th 449, 473;
4
Collins v. Hertz Corp. (2006)
5 144 Cal.App.4th 64, 75 n. 5,
79 (a declaration
6 contradicting deposition
testimony is insufficient to
7 defeat summary judgment
when objection to evidence
8
raised).)
9 In Plaintiff Elliott’s
responses to Special
10 Interrogatories and Requests
for Production of
11 Documents, verified June 17,
12 2022, he did not identify or
produce any financial
13 statements he provided to
Defendant the Bank. At his
14 sworn deposition on
September 9, 2022, when
15 asked what financials
16 Plaintiff Elliott provided to
Bennett, he answered “don’t
17 recall”. [The Bank’s Ex. R,
Elliott Depo., 23:4-8.] Even
18 in his declaration last year in
support of his own summary
19 judgment motion on the same
20 set of facts, Plaintiff Elliott
did not and could not identify
21 the financial documents he
purportedly provided to
22 Bennett and the Bank. [The
Bank’s Ex. S, Elliott Dec.,
23
3:12-14, 3:15-16.]
24 The Bank further objects
to and moves to strike the
25 italicized proffered evidence
on the grounds it is not
26 relevant to the matters at
issue, lacks foundation, lacks
27
personal knowledge, is
28 speculative, is conjecture,
and lacks probative value.
- 11 -
______________________________________________________________________________
Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in
Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944
1 (See Evid. Code §§ 210, 350,
702, 800.) Plaintiff Elliott
2 has no personal knowledge
whether “Mr. Oliver had
3 materials forwarded to him
by Bennett”. Further, the use
4
of the phrase “to the best of
5 my recollection” establishes
that this passage is based on
6 conjecture, not personal
knowledge. There is a
7 general rule that
witnesses/declarants must
8
testify to facts and not to
9 their opinions or conclusions.
(Newton v. Los Angeles
10 Transit Lines (1951) 107
Cal.App.2d 624, 626.) A
11 declaration that sets forth
12 conclusions, opinions, or
inferences is not sufficient.
13 (Kramer v. Barnes (1963)
212 Cal.App.2d 440, 446.)
14 8. 15. Between mid- The Bank objects to and There is no inconsistency
September and September moves to strike the italicized between Elliott’s sworn
15 proffered evidence on the
27, 2013, per Oliver's testimony or verified discovery
16 request, I submitted a grounds it is a statement responses. Paragraph 11 of
written proposal of inconsistent with Plaintiff Elliott’s Declaration dated July
17 $50,000 to settle Elliott’s prior sworn 2, 2023 states that he
deposition testimony and
18 Rabobank's Judgment “recently researched his files”
verified answers to written
and Liens. This settlement and located materials he took
discovery. (Evid. Code, §
19 proposal was hand to Bennett’s office. Elliott’s
791.) Consequently, the
delivered to Oliver in proffered evidence lacks discovery responses
20
Fresno. At the meeting probative value, and is self- specifically reserve Elliott’s
21 with Oliver, I brought all serving. As a general rule, a right to continue his
of the same financial self-serving declaration lacks investigation for documents
22 documents that I had trustworthiness; particularly responsive to the requests. The
previously presented to when controverted by prior statement should not be
23
both Bennett
Preview
1 NINA M. PATANE (SBN 157079) ANDREA C. AVILA (SBN 193982) 2 PATANE • GUMBERG • AVILA, LLP Attorneys at Law 3 4 Rossi Circle, Suite 231 Salinas, CA 93907 4 Mailing: P.O. Box 3770, Salinas, CA 93912 Telephone: (831) 755-1461 5 Facsimile: (831) 755-1477 Email: npatane@pglawfirm.com 6 aavila@pglawfirm.com 7 Attorneys for Plaintiff, ROBERT T. ELLIOTT 8 9 SUPERIOR COURT OF CALIFORNIA – COUNTY OF MONTEREY 10 UNLIMITED JURISDICTION 11 ROBERT T. ELLIOTT, ) CASE NO. 21CV003944 ) 12 ) PLAINTIFF ROBERT T. ELLIOTT’S Plaintiff, ) vs. RESPONSE TO DEFENDANT 13 ) ) MECHANICS BANK’S OBJECTIONS TO 14 MECHANICS BANK, a California ) PLAINTIFF’S EVIDENCE IN corporation, as the Successor-in-Interest to ) OPPOSITION TO THE BANK’S 15 Rabobank, N.A.; and DOES 1 – 40, inclusive, ) MOTION FOR SUMMARY JUDGMENT ) 16 ) Date: September 29, 2023 Defendants. ) Time: 8:30 a.m. 17 ) ) Dept.: 14 18 ) Judge: Hon. Carrie M. Panetta ) 19 ) Complaint Filed: December 21, 2021 Trial Date: Not Set 20 21 Plaintiff ROBERT T. ELLIOTT (“Elliott”), submits the following Response to Defendant 22 MECHANICS BANK’s (“MECHANICS BANK”) Objections to Plaintiff’s Evidence in 23 Opposition to the Bank’s Motion for Summary Judgment. 24 25 DECLARATION OF PLAINTIFF ROBERT T. ELLIOTT, dated July 6, 2023 26 Obj. Plaintiff’s Evidence Argument Plaintiff’s Response 27 No. 1. 3. It was not until this The Bank objects to and There is no inconsistency 28 litigation that I learned moves to strike the italicized between Plaintiff’s sworn -1- ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 proffered evidence on the that the loans consisted of testimony and the italicized grounds it is not relevant, [#190012401] issued on text. Plaintiff admits he signed 2 lacks probative value, and November 25, 2005 in the the three loans. lacks foundation on the sum of $750,000; loan 3 factual and legal issues in the [#78186840-09] issued on Bank’s Motion for Summary October 12, 2004 in the 4 Judgment. (See Evid. Code sum of $1,900,000; and 5 §§ 210, 350, 403.) loan [#160064291] issued The italicized proffered 6 on October 13, 2004 in evidence controverts Plaintiff the sum of $1,000,000. Elliott’s sworn testimony and 7 Myself, and other the law. Plaintiff Elliott Premium Fresh owners, testified at his deposition that 8 personally guaranteed the he signed all documents for 9 (1) Loan No. PLP 78186840- second and third loans. 09, in the principal sum of (Collectively, the first, 10 $1,900,000.00, and was second and third loans are “the Loans”.) Beyondguaranteed through the U.S. 11 Small Business this, I am unfamiliar with 12 Administration (“SBA”); (2) the details of the loan Loan No. 160064291, in the documents. 13 principal sum of $1,000,000.00, through 14 Community Bank of Central California; and (3) Loan No. 15 190012401, in principal sum 16 of $750,000.00. [The Bank’s Ex. R, Deposition of Robert 17 T. Elliott, dated September 9, 2022 (“Elliott Depo.”), 18 15:18-22, 17:4-9, 19:2-24, 20:15-21:5. 91:10-12.] The 19 California Supreme Court 20 ruled that “a signature on a written contract is an 21 objective manifestation of assent to the terms set forth 22 there”. (Monster Energy Co. v. Schecter (2019) 7 Cal.5th 23 781, 789 [emphasis added].) 24 Consequently, whether Plaintiff Elliott did not learn 25 what “the loans consisted of” “until this litigation”, or that 26 he was “unfamiliar with the details of the loan 27 documents”, is not relevant. 28 Plaintiff Elliott’s actual intent, for purposes of -2- ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 contract law, is that he manifested and agreed to the 2 terms by signing the loan documents. (Rodriquez v. 3 Oto (2013) 212 Cal.App.4th 1020, 1027.) 4 The Bank further objects 5 to and moves to strike the italicized proffered evidence 6 on the grounds that in light of 7 Plaintiff’s prior sworn statements this proffered 8 evidence is purely self- serving. As a general rule, a 9 self-serving declaration lacks 10 trustworthiness; particularly when controverted by prior 11 sworn testimony and/or the opposing party. (People v. 12 Duarte (2000) 24 Cal.4th 13 603, 611; Trujillo v. First American Registry (2007) 14 157 Cal.App.4th 628, 636.) 15 2. 7. Several Debtors filed The Bank objects to and Elliott’s statement is probative 16 bankruptcy causing the moves to strike the italicized to Elliott’s motive and Rabobank Judgment and proffered evidence on the intention in commencing 17 Liens to be discharged as grounds it is not relevant to discussions with the Special to those individuals and the matters at issue, lacks Assets Department, i.e., to 18 entities. I did not file probative value, and is self- settle his judgment and lien. 19 bankruptcy. Instead, I serving. (See Evid. Code §§ Elliott’s statement does not elected to negotiate and 210, 350.) As a general rule, 20 controvert Elliott’s prior sworn resolve my liability on the a self-serving declaration testimony. 21 Rabobank Judgment and lacks trustworthiness; Liens. particularly when 22 controverted by prior sworn testimony and/or the 23 opposing party. Plaintiff 24 Elliott’s statement that he did not file bankruptcy but 25 “elected to negotiate and resolve [his] liability” is not 26 material to the issues on the 27 Bank’s Motion for Summary Judgment, i.e., whether there 28 is a valid agreement/contract -3- ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 between Plaintiff and the Bank or application of the 2 statute of limitations. The statement is simply a 3 background fact that is self- 4 serving. (People v. Duarte (2000) 24 Cal.4th 603, 611; 5 Trujillo v. First American 6 Registry (2007) 157 Cal.App.4th 628, 636.) 7 3. 9. Sometime before The Bank objects to and There is no inconsistency 8 August 8, 2013, … I met moves to strike the italicized between Elliott’s sworn with Bennett in his office proffered evidence on the testimony or verified discovery 9 grounds it is a statement and presented responses. Paragraph 11 of preliminary information inconsistent with Plaintiff Elliott’s declaration in support 10 to him about my then Elliott’s prior sworn of his opposition to Motion for 11 deposition testimony and financial status including: Summary Judgment dated July verified answers to written the 4 to 5 Perishable 2, 2023 (“Declaration”) states 12 discovery. (Evid. Code, § Agricultural Commodities 791.) Consequently, the that he “recently researched his 13 Act judgments against proffered evidence lacks files” and located materials he Premium Fresh, the probative value, and is self- took to Bennett’s office. 14 status of my property Elliott’s discovery responses serving. As a general rule, a 15 holdings, financial status self-serving declaration lacks specifically reserve Elliott’s of my businesses, my trustworthiness; particularly right to continue his 16 liabilities and other when controverted by prior investigation for documents financial information. sworn testimony and/or the responsive to the requests. The 17 opposing party. (People v. statement should not be Duarte (2000) 24 Cal.4th stricken. 18 603, 611; Trujillo v. First 19 American Registry (2007) 157 Cal.App.4th 628, 636.) 20 D’Amico v. Board of Med. Examiners (1974) 11 Cal.3d 21 1, 21-22, bars testimony that 22 contradicts a prior sworn admission made during 23 discovery. Where a party’s self-serving declaration 24 contradicts prior discovery admissions and responses, 25 aiming to impeach that 26 party’s own prior sworn testimony, such declarations 27 should be disregarded. In the summary judgment context, a 28 declaration contradicting a -4- ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 prior sword admission does not raise substantial evidence 2 of a triable issue of fact to defeat a summary judgment 3 motion. (Archdale v. American Internat. Specialty 4 Ins. Co. (2007) 154 5 Cal.App.4th 449, 473; Collins v. Hertz Corp. (2006) 6 144 Cal.App.4th 64, 75 n. 5, 79 (a declaration 7 contradicting deposition testimony is insufficient to 8 defeat summary judgment 9 when objection to evidence raised).) 10 In Plaintiff Elliott’s responses to Special 11 Interrogatories and Requests 12 for Production of Documents, verified June 17, 13 2022, he did not identify or produce any financial 14 statements provided to Defendant the Bank. At his 15 sworn deposition on 16 September 9, 2022, when asked what financials 17 Plaintiff Elliott provided to Bennett, he answered “don’t 18 recall”. [The Bank’s Ex. R, Elliott Depo., 23:4-8.] Even 19 in his declaration last year in 20 support of his own summary judgment motion on the same 21 set of facts, Plaintiff Elliott did not and could not identify 22 the financial documents he purportedly provided to the 23 Bank – he could only state 24 that on “information and belief” he provided 25 something. [The Bank’s Ex. S, Elliott Dec., 3:12-14, 3:15- 26 16.] Now, in July 2023, 27 Plaintiff Elliott has moved 28 beyond his “information and -5- ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 belief” in his 2022 Declaration (Ex. S) or “don’t 2 know” deposition testimony (Ex. R) to an itemized lists of 3 financial documents he 4 purportedly provided to the Bank. 5 4. 11. On August 21, 2013, I The Bank objects to and There is no inconsistency 6 met again with Bennett in moves to strike the italicized between Elliott’s sworn Rabobank's Fresno proffered evidence on the testimony or verified discovery 7 offices to continue my grounds it is a statement responses. Paragraph 11 of 8 settlement negotiations inconsistent with Plaintiff Elliott’s Declaration dated July and to review and discuss Elliott’s prior sworn 2, 2023 states that he 9 deposition testimony and my financial status in “recently researched his files” verified answers to written 10 more detail. I recently and located materials he took discovery. (Evid. Code, § researched my files for 791.) Consequently, the to Bennett’s office. Elliott’s 11 documents that I took to discovery responses proffered evidence lacks Bennett’s office in probative value, and is self- specifically reserve Elliott’s 12 anticipation of this serving. As a general rule, a right to continue his 13 meeting. The documents self-serving declaration lacks investigation for documents included: a 2-inch thick trustworthiness; particularly responsive to the requests. The 14 binder prepared by my when controverted by prior statement should not be then bookkeeper which sworn testimony and/or the stricken. 15 included information on opposing party. (People v. 16 my assets and liabilities Duarte (2000) 24 Cal.4th prior to the Judgment as 603, 611; Trujillo v. First 17 American Registry (2007) compared to my assets 157 Cal.App.4th 628, 636.) 18 and liabilities in 2013. D’Amico v. Board of Med. This binder contains Examiners (1974) 11 Cal.3d 19 canceled checks paid by 1, 21-22, bars testimony that 20 me or my companies in contradicts a prior sworn satisfaction of Premium admission made during 21 Fresh’s debt totaling discovery. Where a party’s $2,413,048.32, services self-serving declaration 22 contradicts prior discovery performed by me or my 23 companies on behalf of admissions and responses, Premium Fresh to satisfy aiming to impeach that 24 Premium Fresh party’s own prior sworn testimony, such declarations 25 obligations, information should be disregarded. In the on properties that I lost summary judgment context, a 26 via foreclosure valued at declaration contradicting a approximately prior sword admission does 27 $2,000,000.00, not raise substantial evidence 28 spreadsheets of a triable issue of fact to -6- ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 demonstrating the value defeat a summary judgment of my companies, among motion. (Archdale v. 2 other items. I also American Internat. Specialty brought recent tax filings, Ins. Co. (2007) 154 3 Cal.App.4th 449, 473; information concerning my property holdings, Collins v. Hertz Corp. (2006) 4 144 Cal.App.4th 64, 75 n. 5, current profit and loss 5 79 (a declaration statements of my contradicting deposition 6 businesses, outstanding testimony is insufficient to loans for which I was defeat summary judgment 7 obligated, judgments, when objection to evidence including 4-5 PACA raised).) 8 judgments. Again, in Plaintiff 9 Elliott’s responses to Special Interrogatories and Requests 10 for Production of 11 Documents, verified June 17, 2022, he did not identify or 12 produce any financial statements he provided to 13 Defendant the Bank. At his 14 sworn deposition on September 9, 2022, when 15 asked what financials 16 Plaintiff Elliott provided to Bennett, he answered “don’t 17 recall”. [The Bank’s Ex. R, Elliott Depo., 23:4-8.] Even 18 in his July 2022 declaration 19 in support of his own summary judgment motion 20 on the same set of facts, Plaintiff Elliott did not and 21 could not identify the 22 financial documents he purportedly provided to 23 Bennett and the Bank in 24 August 2013. [The Bank’s Ex. S, Elliott Dec., 3:12-14, 25 3:15-16.] Now, in 2023 and solely 26 to oppose the Bank’s 27 summary judgment motion, Plaintiff Elliott “recently 28 reviewed” his files and has -7- ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 moved beyond his “information and belief” 2 attestation or “don’t know” sworn deposition testimony 3 to a voluminous, itemized list 4 of financial documents he purportedly provided to the 5 Bank. 6 5. 11. During our meeting The Bank objects to and Inferences are defined by the [August 21, 2013], moves to strike the italicized Evidence Code as “a deduction 7 Bennett left the office with proffered evidence on the of fact that may logically and 8 select materials that I grounds it is not relevant to reasonably be drawn from presented, and it was my the matters at issue, lacks another fact or group of facts 9 foundation, lacks personal found or otherwise established understanding that he knowledge, is speculative, is in the action.” (Evid. Code, § 10 made copies of those conjecture, and lacks 600.) Inferences are documents. 11 probative value. (See Evid. treated with as much force and Code §§ 210, 350, 702, 800.) validity as evidence. A 12 Plaintiff Elliott has no reasonable inference drawn personal knowledge of the from circumstantial evidence 13 facts and actions of what may properly support a Bennett did when Bennett finding, despite direct evidence 14 left the meeting with Plaintiff to the contrary. (Mason v. 15 – as such it is sheer Rolando Lumber Co. (1952) speculation. Further, the use 111 Cal.App.2d 79.) A party 16 of the word “understanding” may rely upon reasonable establishes that this passage inferences from the evidence 17 is based on conjecture, not to support its position. (Ajaxo personal knowledge. There is Inc. v. E*Trade Group, 18 a general rule that Inc. (2005) 135 Cal.App.4th 19 witnesses/declarants must 21.) Elliott was present at the testify to facts and not to meeting with Bennett. Elliott 20 their opinions or conclusions. therefore had the requisite (Newton v. Los Angeles personal knowledge to make 21 Transit Lines (1951) 107 reasonable inferences based on Cal.App.2d 624, 626.) A what he observed. 22 declaration that sets forth 23 conclusions, opinions, or The italics statement is inferences is not sufficient. probative to the issue of 24 (Kramer v. Barnes (1963) Rabobank’s acceptance as it 212 Cal.App.2d 440, 446.) demonstrates the extent of the 25 The Bank further objects materials provided by Elliott to and moves to strike the for Rabobank’s consideration 26 prior to January 2014. italicized proffered evidence 27 on the grounds it is not relevant, lacks probative The italics statement is relevant 28 value, and lacks foundation because it bears directly on -8- ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 on the factual and legal Bennett’s/Rabobank’s state of issues in the Bank’s Motion mind when considering Elliott’s 2 for Summary Judgment. (See offer in January 2014. Evid. Code §§ 210, 350, 3 403.) 6. 12. This meeting with The Bank objects to and Elliott was present at the 4 Bennett lasted between moves to strike the italicized meeting with Bennett. Elliott 5 forty-five minutes to one proffered evidence on the therefore had the requisite hour and involved me grounds that it lacks personal knowledge to confirm 6 explaining my financial foundation, is speculative, what was discussed at the status by and through the and constitutes hearsay, meeting. Proper foundation 7 thereby lacking probative exists. supporting 8 value. (Evid. Code §§ 210, documentation. Bennett 350, 403, 1200, 1400.) The evidence is not informed me that Plaintiff Elliott fails to inadmissible hearsay because 9 Rabobank was dealing establish a sufficient it demonstrates Bennett’s state 10 with huge loads of debtor foundation for his hearsay of mind (i.e., that the bank/he files from the 2008 statements of what Bennett was backlogged with work). 11 market crash. Bennett purportedly informed him. The evidence is further offered 12 suggested that he had Further, the statements to prove or explain acts or bigger files to deal with, constitute inadmissible conduct of the declarant. Cal. 13 with values much larger hearsay as it is offered by Evid. Code§ 1252. The than mine. Bennett Plaintiff Elliott for the truth evidence is offered to explain 14 indicated he may have to of the matters depicted. why Bennett did transferred delegate my file to (Evid. Code § 1200.) Elliott’s file to a further 15 The Bank further objects Special Assets officer. another Special Assets 16 to and moves to strike the agent. italicized proffered evidence The evidence is probative to 17 on the grounds it is not Bennett’s state of mind and relevant, lacks probative Bennett’s credibility. 18 value, and lacks foundation on the factual and legal 19 issues in the Bank’s Motion 20 for Summary Judgment. (See Evid. Code §§ 210, 350, 21 403.) The Bank further objects 22 to and moves to strike the italicized proffered evidence 23 on the grounds that Plaintiff 24 Elliott’s inferences are self- serving. As a general rule, a 25 self-serving declaration lacks trustworthiness; particularly 26 when controverted by prior sworn testimony, see the 27 Bank’s Ex. S, Elliott Dec., 28 3:15-18. (People v. Duarte (2000) 24 Cal.4th 603, 611; -9- ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 Trujillo v. First American Registry (2007) 157 2 Cal.App.4th 628, 636.) 7. 14. In approximately The Bank objects to and Elliott was present at the 3 early September 2013, I moves to strike the italicized meeting with Oliver. Elliott once again had my proffered evidence on the therefore had the requisite 4 daughter drive me to grounds it is a statement personal knowledge to provide 5 Fresno to meet with Mr. inconsistent with Plaintiff information on what was Oliver in person at or Elliott’s prior sworn discussed at the meeting. 6 deposition testimony and Proper foundation exists. near this same time. To verified answers to written 7 the best of my discovery. (Evid. Code, § The evidence is not recollection, Mr. Oliver 791.) Consequently, the inadmissible hearsay because 8 had materials forwarded proffered evidence lacks it demonstrates Oliver’s state 9 to him by Bennett. I probative value, and is self- of mind (i.e., that Oliver brought all of the above- serving. As a general rule, a needed to follow bank 10 referenced backup self-serving declaration lacks protocols via a formal materials and reviewed trustworthiness; particularly settlement proposal to finalize 11 them with Mr. Oliver. He when controverted by prior a settlement). The evidence is 12 did not ask me for further sworn testimony and/or the offered to prove or explain acts supportive documents at opposing party. [See the or conduct of the declarant. 13 that time. Instead, he Bank’s Ex. S, Elliott Dec., Cal. Evid. Code§ 1252. [that asked me to submit a 3:23-28 (no mention of Oliver could not review 14 meeting bringing “backup informal materials and instead formal settlement materials” or “review” with required a formal proposal] 15 proposal for Rabobank's Mr. Oliver), and the Bank’s consideration. Oliver did Ex. C, Oliver Dec., 4:17- 16 not request any further 5:15.] (People v. Duarte 17 information/documentatio (2000) 24 Cal.4th 603, 611; n from me. Trujillo v. First American 18 Registry (2007) 157 Cal.App.4th 628, 636.) 19 D’Amico v. Board of Med. 20 Examiners (1974) 11 Cal.3d 1, 21-22, bars testimony that 21 contradicts a prior sworn admission made during 22 discovery. Where a party’s self-serving declaration 23 contradicts prior discovery 24 admissions and responses, aiming to impeach that 25 party’s own prior sworn testimony, such declarations 26 should be disregarded. In the summary judgment context, a 27 declaration contradicting a 28 prior sword admission does not raise substantial evidence - 10 - ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 of a triable issue of fact to defeat a summary judgment 2 motion. (Archdale v. American Internat. Specialty 3 Ins. Co. (2007) 154 Cal.App.4th 449, 473; 4 Collins v. Hertz Corp. (2006) 5 144 Cal.App.4th 64, 75 n. 5, 79 (a declaration 6 contradicting deposition testimony is insufficient to 7 defeat summary judgment when objection to evidence 8 raised).) 9 In Plaintiff Elliott’s responses to Special 10 Interrogatories and Requests for Production of 11 Documents, verified June 17, 12 2022, he did not identify or produce any financial 13 statements he provided to Defendant the Bank. At his 14 sworn deposition on September 9, 2022, when 15 asked what financials 16 Plaintiff Elliott provided to Bennett, he answered “don’t 17 recall”. [The Bank’s Ex. R, Elliott Depo., 23:4-8.] Even 18 in his declaration last year in support of his own summary 19 judgment motion on the same 20 set of facts, Plaintiff Elliott did not and could not identify 21 the financial documents he purportedly provided to 22 Bennett and the Bank. [The Bank’s Ex. S, Elliott Dec., 23 3:12-14, 3:15-16.] 24 The Bank further objects to and moves to strike the 25 italicized proffered evidence on the grounds it is not 26 relevant to the matters at issue, lacks foundation, lacks 27 personal knowledge, is 28 speculative, is conjecture, and lacks probative value. - 11 - ______________________________________________________________________________ Plaintiff Robert T. Elliott’s Response to Defendant Mechanics Bank’s Objections to Plaintiff’s Evidence in Opposition to the Bank’s Motion for Summary Judgment; Case No. 21CV003944 1 (See Evid. Code §§ 210, 350, 702, 800.) Plaintiff Elliott 2 has no personal knowledge whether “Mr. Oliver had 3 materials forwarded to him by Bennett”. Further, the use 4 of the phrase “to the best of 5 my recollection” establishes that this passage is based on 6 conjecture, not personal knowledge. There is a 7 general rule that witnesses/declarants must 8 testify to facts and not to 9 their opinions or conclusions. (Newton v. Los Angeles 10 Transit Lines (1951) 107 Cal.App.2d 624, 626.) A 11 declaration that sets forth 12 conclusions, opinions, or inferences is not sufficient. 13 (Kramer v. Barnes (1963) 212 Cal.App.2d 440, 446.) 14 8. 15. Between mid- The Bank objects to and There is no inconsistency September and September moves to strike the italicized between Elliott’s sworn 15 proffered evidence on the 27, 2013, per Oliver's testimony or verified discovery 16 request, I submitted a grounds it is a statement responses. Paragraph 11 of written proposal of inconsistent with Plaintiff Elliott’s Declaration dated July 17 $50,000 to settle Elliott’s prior sworn 2, 2023 states that he deposition testimony and 18 Rabobank's Judgment “recently researched his files” verified answers to written and Liens. This settlement and located materials he took discovery. (Evid. Code, § 19 proposal was hand to Bennett’s office. Elliott’s 791.) Consequently, the delivered to Oliver in proffered evidence lacks discovery responses 20 Fresno. At the meeting probative value, and is self- specifically reserve Elliott’s 21 with Oliver, I brought all serving. As a general rule, a right to continue his of the same financial self-serving declaration lacks investigation for documents 22 documents that I had trustworthiness; particularly responsive to the requests. The previously presented to when controverted by prior statement should not be 23 both Bennett