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0a dÿc5d`f Patane Gumberg Avila, LLP
_b ``bÿ5rr `__f 4 Rossi Circle, Suite 231
abof Salinas _b5b`fCA saÿ r`f 93907
b`g`q c`ÿc f (831) 755-1461 05tÿc f(831) 755-1477
`d5agÿ5rr `__f aavila@pglawfirm.com
5bb c`oÿ0 ÿumMvwxf Plaintiff
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_b ``bÿ5rr `__f 1200 Aguajito Road
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g5acba00}`babac` f Robert T. Elliott
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z{| Defendant Mechanics Bank's Notice of Motion and Motion for Summary Judgment April 21, 2023
z| Defendant Mechanics Bank's Evidentiary Exhibits in Support of its Motion for Summary April 21, 2023
Judgment
z3| Defendant Mechanics Bank's Separate Statement of Undisputed Material Facts in Support
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April 21, 2023
z| Plaintiff Robert T. Elliott's Opposition to Defendant Mechanics Bank's Motion for July 7, 2023
Summary Judgment
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8ÿ9 Elliott v. Mechanics Bank, et al. 6789ÿ 9
21CV003944
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Document Title and Description Date Filed
(12) Plaintiff Robert T. Elliott's Response to Defendant Mechanics Bank's Separate Statement of Undisputed July 11, 2023
Material Facts in Support of its Motion for Summary Judgment
(13) Declaration of Robert T. Elliott in Support of Opposition to Defendant Mechanics Bank's Motion for July 11, 2023
for Summary Judgment
(14) Declaration of Andrea C. Avila in Support of Opposition to Defendant Mechanics Bank's Motion for July 11, 2023
for Summary Judgment
(15) Tentative Ruling July 20, 2023
(16) Defendant Mechanics Bank's Supplemental Brief Re the Bank's Motion for Summary Judgment September 5, 2023
(17) Plaintiff Robert T. Elliott's Further Briefing in Opposition to Defendant Mechanics Bank's Motion for September 15, 2023
Summary Judgment
(18) Defendant Mechanics Bank's Supplemental Reply Brief Re the Bank's Motion for Summary Judgment September 20, 2023
(19) Defendant Mechanics Bank's Objections to Plaintiff Robert T. Elliott's Evidence in Opposition to the September 20, 2023
Banks's Motion for Summary Judgment
(20) Plaintiff Robert T. Elliott's Response to Defendant Mechanics Bank's Objections to Plaintiff 's Evidence in September 27, 2023
Opposition to the Bank's Motion for Summary Judgment
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Attachment 2b(1)(d)
Hearing
ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF MONTEREY
3
4 DEPARTMENT 14 HON. CARRIE M. PANETTA, JUDGE
5 --o0o---
6
ROBERT ELLIOTT, )
7 )
)
8 Plaintiff, )
)
9 vs. ) Case No. 21CV003944
)
10 MECHANICS BANK, a California )
corporation, as the )
11 Successor-In-Interest to Rabobank, )
N.A., a California corporation, )
12 et al., )
)
13 Defendants. )
____________________________________)
14
15
16
17 TRANSCRIPT OF PROCEEDINGS
18 TUESDAY, OCTOBER 3, 2023
19
20
21
22
23
24 REPORTED BY: Jenna Osborn, Certified Shorthand
25 Reporter No. 8681
(831) 649-3110 www.absolutecourtreporters.com
ABSOLUTE COURT REPORTERS Page: 1
Hearing
ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 APPEARANCES
2
3 For the Plaintiff:
4 PATANE GUMBERG & AVILA, LLP
5 Attorneys At Law
6 4 Rossi Circle
7 Suite 231
8 Salinas, CA 93907
9 (831) 755-1461
10 aavila@pglaw.com
11 BY: ANDREA AVILA, ESQ.
12
13 For the Defendants:
14 LAW OFFICES OF MATTHEW KENNEDY
15 Attorneys At Law
16 772 Santa Rosa Street
17 San Luis Obispo, CA 93401
18 (805) 544-5002
19 msk@kennedylawrealty.com
20 BY: MATTHEW S. KENNEDY, ESQ.
21
22
23
24
25
(831) 649-3110 www.absolutecourtreporters.com
ABSOLUTE COURT REPORTERS Page: 2
Hearing
ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 MONTEREY, CALIFORNIA
2 TUESDAY, OCTOBER 3, 2023, 10:00 A.M.
3 --o0o--
4
5 JUDGE PANETTA: We'll go to the motion for summary
6 judgment, Elliott versus Mechanics Bank. 21CV003944. Thanks
7 for your patience everyone.
8 Okay. Counsel, please state your appearances.
9 MS. AVILA: Good morning, Your Honor, Andrea Avila
10 appearing for Plaintiff Robert Elliott.
11 JUDGE PANETTA: Good morning.
12 MR. KENNEDY: Good morning, Your Honor, Matthew
13 Kennedy appearing on behalf of Defendant Mechanics Bank
14 successor by merger to Rabobank.
15 JUDGE PANETTA: Okay. Good morning to you too.
16 Again, thank you both for your patience.
17 And thank you also for the supplemental briefing.
18 The Court had requested supplemental briefing on an issue --
19 really I guess on two issues but everyone I thought addressed
20 those in terms of the Court's ruling on the motion for summary
21 judgment. So I am prepared to give me indicated and then if
22 anyone wants to argue anything, that might be the most
23 efficient way of proceeding.
24 Okay. First the Court is going to rule on the
25 material objections made by Defendant and overrule his
(831) 649-3110 www.absolutecourtreporters.com
ABSOLUTE COURT REPORTERS Page: 3
Hearing
ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 objection numbers 6 and 4.
2 MR. KENNEDY: Just one second, Your Honor.
3 JUDGE PANETTA: Sure.
4 MR. KENNEDY: Overruled?
5 JUDGE PANETTA: Numbers 6 and 4. I didn't think the
6 other ones were material. Now the Court does believe that the
7 issues of the existence of a contract and the statute of
8 frauds are both triable issues. A triable issue of material
9 fact exists as to whether the e-mail from Mr. Oliver was
10 acceptance of Plaintiff's settlement offer. The language of
11 the e-mail regarding quote, "willingness," end quote, and the
12 warning are not so clear as to rule out the admission of parol
13 evidence to make the determination as to whether that writing
14 was intended as a final expression of the agreement pursuant
15 to CCP Section 1856. Defendant's fact number 6 and 10 state
16 the bank communications with Plaintiff included a discussion
17 that since the judgment was made up of three separate loans
18 any resolution process with the SBA, the Cal. Coastal RDC and
19 the bank would require any Settlement Agreement to be subject
20 to a rather extensive review process with the SBA and the bank
21 would need to be confirmed in a written agreement and
22 Plaintiff would be required to provide extensive financial
23 information to support the offer and compromise to the SBA and
24 bank committees and that Mr. Oliver had no authority to accept
25 the proposal to settle. Plaintiff's declaration, paragraphs
(831) 649-3110 www.absolutecourtreporters.com
ABSOLUTE COURT REPORTERS Page: 4
Hearing
ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 10, 12, 16 and 22 provides his statement that he was not
2 advised as stated. In the reply Defendant points to the
3 Plaintiff's deposition testimony where he admitted that he
4 didn't ask certain questions about what was meant by certain
5 language in the e-mail, but this testimony merely supports the
6 triable issue as to what was exactly communicated to Plaintiff
7 regarding the bank's ability to accept and the process to
8 obtain a signed written agreement.
9 Further, a triable issue of material fact exists as
10 to what the essential terms of the Settlement Agreement are
11 due to the factual dispute over what the bank communicated.
12 So the statute of frauds defense cannot be determined as a
13 matter of law at this time.
14 All that being said, the Court does believe that the
15 Statute of Limitations in this case, which everyone knows is
16 four years for breach of contract, which is the sole cause of
17 action, provides a complete defense to the action.
18 Plaintiff's complaint alleged that the breach occurred in
19 April to October 2018, when Defendant failed and continued to
20 fail to provide Plaintiff a manner and method of payment and
21 denied the alleged agreement formed by Mr. Oliver's alleged
22 acceptance on January 23rd, 2014, of the sum of $140,000 as
23 payment to release the Rabobank lien. It is undisputed that
24 the alleged agreement contained no time limits for Defendant
25 to provide Plaintiff a manner and method of payment. Civil
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 Code Section 1657 provides that if no time is specified for
2 performance, a reasonable time is allowed. And again, I
3 appreciate both of your briefs on this issue. It is true that
4 typically the question of what constitutes a reasonable time
5 is a question of fact, however, as with other fact-based
6 determinations it can become a question of law. A court can
7 decide the limits of a reasonable time based on material
8 undisputed facts. And the Court cites to the Jolley case, the
9 Romano case, both cited in the papers. The Court also cites
10 to Wells Fargo Bank versus Kincaid, a 1968 case, 260
11 Cal.App.2d 120 at page 123. Based upon undisputed material
12 facts 17, 18, 19, 20, 23 and 24 and Plaintiff's additional
13 facts 38, 39, 40, 42, 43 and 44, reasonable minds can only
14 come to one conclusion that the Defendant's time for
15 performance and breach accrued at a time in excess of the
16 four-year Statute of Limitations, even while calculated with a
17 tolling from Emergency Rule 9.
18 Now Defendant contends that its time for performance
19 was reasonably equivalent to the time Plaintiff offered to
20 make installment payments, which I believe was about 18
21 months, through September 15th of 2015. Accepting Plaintiff's
22 argument that time was not of the essence and that the parties
23 contemplated a multi-year process for Defendant's internal
24 processes due to I guess overload, even if the Court found a
25 reasonable time to be twice the settlement payment time
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 period, which would be three years for performance, the
2 complaint was still filed too late. I mean, I just don't
3 think a reasonable time would extend past double the time that
4 was being discussed or Plaintiff offered to make all the
5 payments in full.
6 Additionally, equitable estoppel does not apply here
7 because there were no acts by Defendant which induced
8 Plaintiff to forego suing. The Court points to Plaintiff's
9 Exhibit K, which is his last e-mail sent on April 1st, 2014 to
10 Mr. Bates and to Mr. Oliver, where he wrote quote, "Was
11 wondering if we can confirm the settlement and if I should
12 deposit into an escrow account. Please let me know so we may
13 continue forward," end quote. Plaintiff received no response
14 to the e-mail. Plaintiff waited until February of 2018 to
15 telephone Mr. Oliver to inquire about the status. The Court
16 points to Plaintiff's additional fact numbers 44 and 45. But
17 there is no evidence that the Defendant's act or omission
18 actually and reasonably induced the Plaintiff to wait so long.
19 Especially to file suit. Also in this context the requisite
20 act or omission must involve a misrepresentation or
21 non-disclosure of a material fact, bearing on the necessity of
22 bringing a timely suit. The Courts cites to Vu, V-u, versus
23 Prudential Property and Casualty Insurance Company, a 2001
24 case, 26 Cal.4th 1142 at 1149 to 1152, and there was no
25 misrepresentation or non-disclosure here.
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 So the motion for summary judgment the Court intends
2 to grant based on the Statute of Limitations.
3 I just went through the other analysis first just
4 for -- because it was part of the original briefing that I
5 wanted to at least address it. But I really think the Statute
6 of Limitations here is what precludes the action.
7 So I'm guessing Ms. Avila, you may want to be heard
8 on the Court's indicated?
9 MS. AVILA: Yes, thank you, Your Honor. I disagree
10 with the Court on the Statute of Limitations barring the
11 instant matter. I think Defendant's -- well, first of all,
12 the Court pointed out time was not of the essence. As I've
13 indicated in the brief, there was no time specified for the
14 bank's performance. The bank -- so where no time was
15 specified then we have to look at what is reasonable under the
16 circumstances. And in this case there is substantial evidence
17 that the bank was overloaded, overwhelmed, Mr. Elliott's file
18 was bounced from one special assets officer to another. And I
19 would remind the Court that in the acceptance e-mail from
20 Rabobank they specifically told Mr. Elliott this is going
21 to -- you need to put money aside, start your savings while we
22 perform this additional work and while we look for an
23 additional officer to work on this matter. And that's what
24 Mr. Elliott did. And so it was then the performance shifted
25 to the bank to do that additional work. And all indications
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 were that the bank was backlogged, with files dating back six
2 years. And so yes, it is a long time for Mr. Elliott to be
3 delayed but he was delayed, he reasonably relied on the bank
4 and their instructions, and there was no repudiation until
5 April of 2018. And that's when the statute starts running.
6 And so the breach -- the statute starts running from the
7 breach. And the breach occurred in April of 2018. And so --
8 and delayed almost for four years, yes, but he's still timely.
9 The breach is what triggers the running of the statute.
10 JUDGE PANETTA: Okay. And that was in your papers,
11 everything you argued, but I appreciate you summarizing it
12 here. We are making a record.
13 I don't know if you want to respond in terms of one,
14 was this backlog or overload, as it's stated I think, that the
15 bank had, is that a factor the Court could consider in its
16 analysis of what a reasonable time is, because it is kind of
17 particular to the facts of the case what the reasonable time
18 is, right, there's no set limit here where there was no time
19 period to perform. And as to I guess anything else regarding
20 the reasonableness -- I mean, I think you briefed what you --
21 what the Defendant, you know, doesn't believe the breach
22 happened obviously in April of 18, which is what Plaintiff's
23 alleging, but I'll let you make a record too. Especially as
24 to this backlog and whether that impacts the Court's
25 determination that it's undisputed that it wasn't a reasonable
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 amount of time here.
2 MR. KENNEDY: Well, thank you, Your Honor. The
3 backlog has nothing to do with this allegation of method and
4 manner. There's nothing in the agreement, the proposed
5 agreement, of the two e-mails from January 22nd and January 23
6 of 2014, that makes any reference to method and manner. That
7 is something that the Defendant came up with in this lawsuit
8 that doesn't exist in the evidence in this case. So it really
9 just doesn't have any relevance to this discussion. The bank,
10 of course, has never wavered from its position that no
11 agreement ever existed. And when we talk about, you know,
12 affirmative defenses in the alternative, given our staunch
13 contention that no agreement ever was created, you know, we're
14 talking in the vapours here. And when we look at the sole
15 cause of action that the bank breached its agreement to
16 provide a manner and method when those terms didn't even
17 appear in the two e-mails that the Plaintiff bases their
18 entire complaint on, it's really just outside the realms of
19 reality. And so --
20 JUDGE PANETTA: Okay. Well, I do think there is a
21 triable issue as to whether there actually was a contract
22 formed between the parties. But --
23 MR. KENNEDY: Okay.
24 JUDGE PANETTA: But I understand you disagree with
25 that.
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 MR. KENNEDY: So let me -- I'll go more to the point
2 then on reasonableness. I think the Court is correct that as
3 a matter of law the Court can make a determination of what is
4 a reasonable time. And, you know, the Court's, you know,
5 correctly cited Civil Code Section 1657 regarding time and
6 the -- and tried to use the Jones case with I think to the
7 time element, of course we don't believe the Jones case is
8 relevant to conditions precedent because there isn't one. But
9 I think the Court, as a matter of law, has the discretion to
10 decide what is reasonable, and it's not a question for the
11 jury. So it's the Court's determination that if you double
12 the time from when the last payment was due, they still come
13 up short in the Statute of Limitations. I think that's more
14 than reasonable. We think September 1, 2015 is when it
15 starts, and -- because that was the last date that the payment
16 was to be made and no communication ever came from the bank,
17 and no communication ever came from Mr. Elliott. And since it
18 was his payment terms, it wasn't ours, he's the one that said
19 I'm going to pay on April 1st, '14, September 1st, '14, April
20 1st, '15, September 1st, '15. So those were his terms. He
21 never performed. And if the bank was supposed to give him
22 direction, you know, I think that the breach of contract is
23 probably April 1st and then it breached again on September
24 1st, '14, April 1st, '15, September 1st, '15. There was
25 multiple breaches according to the Plaintiff's position that
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 they were supposed to tell me how and when I was to make this
2 payment. Or how I was to make this payment.
3 So looking at the most extreme date, which is
4 September 1st, our position is that you got four years.
5 You've been more generous, you doubled it, and it still comes
6 up short. So we agree with the Court's position that the case
7 is barred by the Statute of Limitations.
8 JUDGE PANETTA: Ms. Avila, any last words or
9 arguments?
10 MS. AVILA: Yes. I still think this goes back to --
11 well, first of all, I want to I guess highlight that the
12 Marshall case, which was quoted in our brief, that that
13 reasonable time to perform a contract is always a question of
14 fact. And here I think reasonable minds can differ. I don't
15 think it's so clear, and I think we've set forth elaborate
16 circumstances which makes this case unique. And yes,
17 Mr. Elliott did propose dates to the bank when he submitted
18 his offer, but the bank is the one that responded and said
19 hold on, we have additional work to do, you, if you continue
20 reading the acceptance e-mail, should start saving money in
21 your bank account, indicating to him that it was going to take
22 some time. They were working on files dating back to 2008.
23 That was a six-year gap. So it was reasonable under the
24 circumstances for Mr. Elliott to believe that this was going
25 to take some time. And if the Court doesn't -- if, you know,
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 Plaintiff -- or Defendant, you know, naturally doesn't agree
2 but reasonable minds can differ on that issue. And I strongly
3 believe that this is a matter for the jury.
4 JUDGE PANETTA: You know, I'm going to tell you, even
5 the triable issue as to whether there was a contract was a
6 very close call. I mean, ultimately I have to really rule on
7 it because I'm finding the motion granted on other grounds,
8 but there's an uphill battle even showing that there was
9 mutual agreement. I mean, there just is. Was there enough
10 there from what your client said in his declarations?
11 Probably just barely. So it's an uphill battle anyway, but
12 notwithstanding that, that's not why I'm ruling as to the
13 statute of limitations, that's a completely separate ground.
14 So I just add that for whatever it's worth. But the Court's
15 indicated is going to remain the Court's ruling on Defendant's
16 motion for summary judgment.
17 Is prevailing party fine preparing the order after
18 hearing?
19 MR. KENNEDY: Yes, Your Honor.
20 JUDGE PANETTA: Okay. Thank you both then.
21 MR. KENNEDY: Thank you, Your Honor.
22 JUDGE PANETTA: And it looks like we did have a CMC
23 set for October 31st. We'll vacate that.
24 MR. KENNEDY: Thank you.
25 JUDGE PANETTA: Okay. Thanks everyone, and thanks
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 for your additional briefing. It did help.
2 MR. KENNEDY: Thank you, Your Honor.
3 MS. AVILA: Thank you, Your Honor.
4 (Whereupon, the proceedings adjourned at 10:40 a.m.)
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ROBERT ELLIOTT v MECHANICS BANK, ET AL
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF MONTEREY
3 DEPARTMENT 14 HON. CARRIE M. PANETTA, JUDGE
4 --o0o---
5 ROBERT ELLIOTT, )
)
6 )
Plaintiff, )
7 )
vs. ) Case No. 21CV003944
8 )
MECHANICS BANK, a California )
9 corporation, as the )
Successor-In-Interest to Rabobank, )
10 N.A., a California corporation, )
et al., )
11 )
Defendants. )
12 ____________________________________)
13 STATE OF CALIFORNIA )
14 COUNTY OF MONTEREY ) ss.
15 I, JENNA OSBORN, CSR No. 8681, Official Reporter
16 for the above-captioned court, do hereby certify that:
17 The foregoing pages comprise a transcript of a
18 true and correct transcription of the proceedings had in the
19 above-entitled matter, to the best of my ability.
20 Dated this 4th day of October, 2023.
21
22
23
24 JENNA OSBORN, CSR NO. 8681
Official Reporter
25
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ABSOLUTE COURT REPORTERS Page: 15
1
PROOF OF SERVICE
2
STATE OF CALIFORNIA, COUNTY OF MONTEREY
3
I declare that I am employed in the County of Monterey, State of California, am over the age
4
of eighteen years and not a party to the within cause, and my business address is PATANE •
5
GUMBERG • AVILA, LLP, 4 Rossi Circle, Suite 231, Salinas, California 93907.
6
On November 2, 2023, I served the foregoing document(s) described as:
7
8 APPELLANT’S NOTICE DESIGNATING RECORD ON APPEAL
9
(X) BY ELECTRONIC SERVICE – Based on a court order or an agreement of the parties to
10
accept service by electronic transmission, I caused the documents to be sent to the persons
11 at the electronic notification addresses listed below.
12 Matthew S. Kennedy, Esq.
Matthew S. Kennedy, A PLC
13
P.O. Box 1031
14 San Luis Obispo, CA 93406-1031
Email: msk@kennedylawrealty.com
15
I declare under penalty of perjury under the laws of the State of California that the foregoing
16
is true and correct. Executed on November 2, 2023, at Salinas, California.
17
18
19 __________________________________________
CHRISTINA MICCOLI
20
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-1-
______________________________________________________________________________
Proof of Service Case No. 21CV003944
Preview
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Mechanics Bank, et al. &$ $ÿ! &$ÿ! ÿ&?@$A 21CV003944 B !ÿ" ##ÿ!$C ÿ$ !$ D --)+)4'/(ÿ-4EF*,'+0GÿHIJÿLMNÿOPQRÿPQLÿSMTNUVQRWÿJXMUÿRYVÿWNZVX[MXÿTMNXRÿZXMTVVS[Q\ÿ[QÿPSS[R[MQÿRMÿRYVÿ[RVUWÿ][WRVSÿ[Qÿ^P_ÿ P`MaVÿRMÿ̀Vÿ[QT]NSVSÿ[QÿRYVÿT]VXbcWÿRXPQWTX[ZRdÿLMNÿUNWRÿ[SVQR[JLÿRYMWVÿSMTNUVQRWÿYVXV_e x f ÿ8g8hiÿij iÿij8ÿkl8mÿnklo8ÿnÿij8ÿi hknpiÿij8ÿqrllrsntÿorku8 ihÿij iÿs88ÿqnl8oÿnÿij8ÿhp8nrÿkriÿprk88ontÿ HvMNÿUNWRÿ[SVQR[JLÿVPTYÿSMTNUVQRÿLMNÿOPQRÿ[QT]NSVSÿ̀Lÿ[RWÿR[R]VÿPQSÿZXMa[SVÿRYVÿSPRVÿ[RÿOPWÿJ[]VSÿMXdÿ[JÿRYPRÿ[WÿQMRÿ PaP[]P`]VdÿRYVÿSPRVÿRYVÿSMTNUVQRÿOPWÿW[\QVS_e "4EF*,'+ÿ)+(,ÿ/'-ÿ",0Ew)x+)4' "/+,ÿ45ÿy)()'2 z{| Defendant Mechanics Bank's Notice of Motion and Motion for Summary Judgment April 21, 2023 z| Defendant Mechanics Bank's Evidentiary Exhibits in Support of its Motion for Summary April 21, 2023 Judgment z3| Defendant Mechanics Bank's Separate Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment April 21, 2023 z| Plaintiff Robert T. 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Mechanics Bank, et al. &$ $ÿ! &$ÿ! ÿ&?@$A 21CV003944 B C D4E,,-)'20 Fÿ8G8HIÿIJ IÿIJ8ÿKLMMLNOPÿQLR88SOPHÿOÿIJ8ÿHQ8OLÿRLIÿC8ÿORMS8SÿOÿIJ8ÿ8QLI8THÿI HROQIÿUVWXÿZX[\ÿ]^_`\]abÿ_cdeÿ fgWd__^]`hÿbWXÿic`\ÿ]`djX^_^ÿkbÿ]\[ÿ^c\_lÿ\e_ÿ^_fcg\Z_`\ÿ]`ÿie]deÿ]\ÿ\WWmÿfjcd_lÿcÿ^_[dg]f\]W`ÿWaÿ\e_ÿfgWd__^]`h[ÿUaWgÿ_ncZfj_lÿ \e_ÿ_ncZ]`c\]W`ÿWaÿoXgWg[lÿZW\]W`[ÿk_aWg_ÿ\g]cjlÿ\e_ÿ\cm]`hÿWaÿ\_[\]ZW`blÿWgÿ\e_ÿh]p]`hÿWaÿoXgbÿ]`[\gXd\]W`[qlÿ\e_ÿ̀cZ_ÿWaÿ\e_ÿdWXg\ÿ g_fWg\_gÿieWÿg_dWg^_^ÿ\e_ÿfgWd__^]`h[ÿU]aÿm`Wi`qlÿc`^ÿie_\e_gÿcÿd_g\]a]_^ÿ\gc`[dg]f\ÿWaÿ\e_ÿ^_[]h`c\_^ÿfgWd__^]`hÿic[ÿ fg_p]WX[jbÿfg_fcg_^rq "/+, ",s/D+*,'+tu((v/D+)/(ÿ"/w ",0ED)s+)4' $,s4D+,D 0ÿ/*, D,.xÿsD,s/D,-y z{ÿOct. ÿ 2, 2023 14 Partial Day Hearing on Motion for Summary Jenna Osborn x |8H ÿÿ 8MLN ÿÿH8Q I8ÿQ P8ÿMC8M8Sÿ0IIRJ8 Iÿ I8> November 2, 2023 Andrea C. Avila z|1;ÿ7ÿ17F<ÿ<0=;{ z:F<07;ÿÿ011;0<ÿ7ÿ07<;|{ 0112334ÿ6789ÿ ÿÿ3 ÿ !ÿ" ##ÿ$! $"ÿ ÿÿ /2,ÿ3ÿ45ÿ3 ¨ ÿ© ªÿ«¥¬ÿ£ÿ«¤£¬©®ÿ«§¥£¥ÿ«¥ÿ¥ÿ¦§¥£ÿ %&'()*)+,-ÿ!).)(ÿ!/0,1 ¯ÿ̈ ¡ÿ°ªÿ£¥ÿ© ªÿ£¤¥ÿ«¥ÿ¥ÿ¡± ÿÿ¡ ¢£¤¥ÿÿ¡ ¦§¥£ÿÿ¡ 012345 8ÿ9 Elliott v. Mechanics Bank, et al. 6789ÿ 9 21CV003944 1 0 ÿ"#$%&'()* 4b "+,-.ÿ01123,%'41ÿ%25ÿ&'ÿ$.'6ÿ7-1,ÿ245ÿ8$6-3-29ÿ:;$43-9ÿ<;(%=) Document Title and Description Date Filed (12) Plaintiff Robert T. Elliott's Response to Defendant Mechanics Bank's Separate Statement of Undisputed July 11, 2023 Material Facts in Support of its Motion for Summary Judgment (13) Declaration of Robert T. Elliott in Support of Opposition to Defendant Mechanics Bank's Motion for July 11, 2023 for Summary Judgment (14) Declaration of Andrea C. Avila in Support of Opposition to Defendant Mechanics Bank's Motion for July 11, 2023 for Summary Judgment (15) Tentative Ruling July 20, 2023 (16) Defendant Mechanics Bank's Supplemental Brief Re the Bank's Motion for Summary Judgment September 5, 2023 (17) Plaintiff Robert T. Elliott's Further Briefing in Opposition to Defendant Mechanics Bank's Motion for September 15, 2023 Summary Judgment (18) Defendant Mechanics Bank's Supplemental Reply Brief Re the Bank's Motion for Summary Judgment September 20, 2023 (19) Defendant Mechanics Bank's Objections to Plaintiff Robert T. Elliott's Evidence in Opposition to the September 20, 2023 Banks's Motion for Summary Judgment (20) Plaintiff Robert T. Elliott's Response to Defendant Mechanics Bank's Objections to Plaintiff 's Evidence in September 27, 2023 Opposition to the Bank's Motion for Summary Judgment "A<ÿ1,'ÿ-1'%ÿ1,21ÿ1,-.ÿ01123,%'41ÿ3;43'(4.ÿ-.ÿ%26'ÿ$46'(ÿ>'42915ÿ;<ÿ>'(B$(5Cÿ299ÿ.121'%'41.ÿ-4ÿ1,-.ÿ 01123,%'41ÿ2('ÿ%26'ÿ$46'(ÿ>'42915ÿ;<ÿ>'(B$(5=) "066ÿ>2?'.ÿ2.ÿ('@$-('6) DEFGÿ7HHFEIJKÿLEFÿHMNEOPQÿRJÿÿÿÿÿ STKNUNPQÿ6ETOUNQÿELÿ6PQNLEFONPÿÿÿÿÿÿÿÿÿ 1 0 777=3;$(1-4<;=32=?;a 6VWXYÿZJI[ÿSTQ\ÿ]^ÿXWW_` bÿcdefgfhÿ1digfhÿjkl Attachment 2b(1)(d) Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF MONTEREY 3 4 DEPARTMENT 14 HON. CARRIE M. PANETTA, JUDGE 5 --o0o--- 6 ROBERT ELLIOTT, ) 7 ) ) 8 Plaintiff, ) ) 9 vs. ) Case No. 21CV003944 ) 10 MECHANICS BANK, a California ) corporation, as the ) 11 Successor-In-Interest to Rabobank, ) N.A., a California corporation, ) 12 et al., ) ) 13 Defendants. ) ____________________________________) 14 15 16 17 TRANSCRIPT OF PROCEEDINGS 18 TUESDAY, OCTOBER 3, 2023 19 20 21 22 23 24 REPORTED BY: Jenna Osborn, Certified Shorthand 25 Reporter No. 8681 (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 1 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 APPEARANCES 2 3 For the Plaintiff: 4 PATANE GUMBERG & AVILA, LLP 5 Attorneys At Law 6 4 Rossi Circle 7 Suite 231 8 Salinas, CA 93907 9 (831) 755-1461 10 aavila@pglaw.com 11 BY: ANDREA AVILA, ESQ. 12 13 For the Defendants: 14 LAW OFFICES OF MATTHEW KENNEDY 15 Attorneys At Law 16 772 Santa Rosa Street 17 San Luis Obispo, CA 93401 18 (805) 544-5002 19 msk@kennedylawrealty.com 20 BY: MATTHEW S. KENNEDY, ESQ. 21 22 23 24 25 (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 2 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 MONTEREY, CALIFORNIA 2 TUESDAY, OCTOBER 3, 2023, 10:00 A.M. 3 --o0o-- 4 5 JUDGE PANETTA: We'll go to the motion for summary 6 judgment, Elliott versus Mechanics Bank. 21CV003944. Thanks 7 for your patience everyone. 8 Okay. Counsel, please state your appearances. 9 MS. AVILA: Good morning, Your Honor, Andrea Avila 10 appearing for Plaintiff Robert Elliott. 11 JUDGE PANETTA: Good morning. 12 MR. KENNEDY: Good morning, Your Honor, Matthew 13 Kennedy appearing on behalf of Defendant Mechanics Bank 14 successor by merger to Rabobank. 15 JUDGE PANETTA: Okay. Good morning to you too. 16 Again, thank you both for your patience. 17 And thank you also for the supplemental briefing. 18 The Court had requested supplemental briefing on an issue -- 19 really I guess on two issues but everyone I thought addressed 20 those in terms of the Court's ruling on the motion for summary 21 judgment. So I am prepared to give me indicated and then if 22 anyone wants to argue anything, that might be the most 23 efficient way of proceeding. 24 Okay. First the Court is going to rule on the 25 material objections made by Defendant and overrule his (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 3 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 objection numbers 6 and 4. 2 MR. KENNEDY: Just one second, Your Honor. 3 JUDGE PANETTA: Sure. 4 MR. KENNEDY: Overruled? 5 JUDGE PANETTA: Numbers 6 and 4. I didn't think the 6 other ones were material. Now the Court does believe that the 7 issues of the existence of a contract and the statute of 8 frauds are both triable issues. A triable issue of material 9 fact exists as to whether the e-mail from Mr. Oliver was 10 acceptance of Plaintiff's settlement offer. The language of 11 the e-mail regarding quote, "willingness," end quote, and the 12 warning are not so clear as to rule out the admission of parol 13 evidence to make the determination as to whether that writing 14 was intended as a final expression of the agreement pursuant 15 to CCP Section 1856. Defendant's fact number 6 and 10 state 16 the bank communications with Plaintiff included a discussion 17 that since the judgment was made up of three separate loans 18 any resolution process with the SBA, the Cal. Coastal RDC and 19 the bank would require any Settlement Agreement to be subject 20 to a rather extensive review process with the SBA and the bank 21 would need to be confirmed in a written agreement and 22 Plaintiff would be required to provide extensive financial 23 information to support the offer and compromise to the SBA and 24 bank committees and that Mr. Oliver had no authority to accept 25 the proposal to settle. Plaintiff's declaration, paragraphs (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 4 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 10, 12, 16 and 22 provides his statement that he was not 2 advised as stated. In the reply Defendant points to the 3 Plaintiff's deposition testimony where he admitted that he 4 didn't ask certain questions about what was meant by certain 5 language in the e-mail, but this testimony merely supports the 6 triable issue as to what was exactly communicated to Plaintiff 7 regarding the bank's ability to accept and the process to 8 obtain a signed written agreement. 9 Further, a triable issue of material fact exists as 10 to what the essential terms of the Settlement Agreement are 11 due to the factual dispute over what the bank communicated. 12 So the statute of frauds defense cannot be determined as a 13 matter of law at this time. 14 All that being said, the Court does believe that the 15 Statute of Limitations in this case, which everyone knows is 16 four years for breach of contract, which is the sole cause of 17 action, provides a complete defense to the action. 18 Plaintiff's complaint alleged that the breach occurred in 19 April to October 2018, when Defendant failed and continued to 20 fail to provide Plaintiff a manner and method of payment and 21 denied the alleged agreement formed by Mr. Oliver's alleged 22 acceptance on January 23rd, 2014, of the sum of $140,000 as 23 payment to release the Rabobank lien. It is undisputed that 24 the alleged agreement contained no time limits for Defendant 25 to provide Plaintiff a manner and method of payment. Civil (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 5 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 Code Section 1657 provides that if no time is specified for 2 performance, a reasonable time is allowed. And again, I 3 appreciate both of your briefs on this issue. It is true that 4 typically the question of what constitutes a reasonable time 5 is a question of fact, however, as with other fact-based 6 determinations it can become a question of law. A court can 7 decide the limits of a reasonable time based on material 8 undisputed facts. And the Court cites to the Jolley case, the 9 Romano case, both cited in the papers. The Court also cites 10 to Wells Fargo Bank versus Kincaid, a 1968 case, 260 11 Cal.App.2d 120 at page 123. Based upon undisputed material 12 facts 17, 18, 19, 20, 23 and 24 and Plaintiff's additional 13 facts 38, 39, 40, 42, 43 and 44, reasonable minds can only 14 come to one conclusion that the Defendant's time for 15 performance and breach accrued at a time in excess of the 16 four-year Statute of Limitations, even while calculated with a 17 tolling from Emergency Rule 9. 18 Now Defendant contends that its time for performance 19 was reasonably equivalent to the time Plaintiff offered to 20 make installment payments, which I believe was about 18 21 months, through September 15th of 2015. Accepting Plaintiff's 22 argument that time was not of the essence and that the parties 23 contemplated a multi-year process for Defendant's internal 24 processes due to I guess overload, even if the Court found a 25 reasonable time to be twice the settlement payment time (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 6 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 period, which would be three years for performance, the 2 complaint was still filed too late. I mean, I just don't 3 think a reasonable time would extend past double the time that 4 was being discussed or Plaintiff offered to make all the 5 payments in full. 6 Additionally, equitable estoppel does not apply here 7 because there were no acts by Defendant which induced 8 Plaintiff to forego suing. The Court points to Plaintiff's 9 Exhibit K, which is his last e-mail sent on April 1st, 2014 to 10 Mr. Bates and to Mr. Oliver, where he wrote quote, "Was 11 wondering if we can confirm the settlement and if I should 12 deposit into an escrow account. Please let me know so we may 13 continue forward," end quote. Plaintiff received no response 14 to the e-mail. Plaintiff waited until February of 2018 to 15 telephone Mr. Oliver to inquire about the status. The Court 16 points to Plaintiff's additional fact numbers 44 and 45. But 17 there is no evidence that the Defendant's act or omission 18 actually and reasonably induced the Plaintiff to wait so long. 19 Especially to file suit. Also in this context the requisite 20 act or omission must involve a misrepresentation or 21 non-disclosure of a material fact, bearing on the necessity of 22 bringing a timely suit. The Courts cites to Vu, V-u, versus 23 Prudential Property and Casualty Insurance Company, a 2001 24 case, 26 Cal.4th 1142 at 1149 to 1152, and there was no 25 misrepresentation or non-disclosure here. (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 7 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 So the motion for summary judgment the Court intends 2 to grant based on the Statute of Limitations. 3 I just went through the other analysis first just 4 for -- because it was part of the original briefing that I 5 wanted to at least address it. But I really think the Statute 6 of Limitations here is what precludes the action. 7 So I'm guessing Ms. Avila, you may want to be heard 8 on the Court's indicated? 9 MS. AVILA: Yes, thank you, Your Honor. I disagree 10 with the Court on the Statute of Limitations barring the 11 instant matter. I think Defendant's -- well, first of all, 12 the Court pointed out time was not of the essence. As I've 13 indicated in the brief, there was no time specified for the 14 bank's performance. The bank -- so where no time was 15 specified then we have to look at what is reasonable under the 16 circumstances. And in this case there is substantial evidence 17 that the bank was overloaded, overwhelmed, Mr. Elliott's file 18 was bounced from one special assets officer to another. And I 19 would remind the Court that in the acceptance e-mail from 20 Rabobank they specifically told Mr. Elliott this is going 21 to -- you need to put money aside, start your savings while we 22 perform this additional work and while we look for an 23 additional officer to work on this matter. And that's what 24 Mr. Elliott did. And so it was then the performance shifted 25 to the bank to do that additional work. And all indications (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 8 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 were that the bank was backlogged, with files dating back six 2 years. And so yes, it is a long time for Mr. Elliott to be 3 delayed but he was delayed, he reasonably relied on the bank 4 and their instructions, and there was no repudiation until 5 April of 2018. And that's when the statute starts running. 6 And so the breach -- the statute starts running from the 7 breach. And the breach occurred in April of 2018. And so -- 8 and delayed almost for four years, yes, but he's still timely. 9 The breach is what triggers the running of the statute. 10 JUDGE PANETTA: Okay. And that was in your papers, 11 everything you argued, but I appreciate you summarizing it 12 here. We are making a record. 13 I don't know if you want to respond in terms of one, 14 was this backlog or overload, as it's stated I think, that the 15 bank had, is that a factor the Court could consider in its 16 analysis of what a reasonable time is, because it is kind of 17 particular to the facts of the case what the reasonable time 18 is, right, there's no set limit here where there was no time 19 period to perform. And as to I guess anything else regarding 20 the reasonableness -- I mean, I think you briefed what you -- 21 what the Defendant, you know, doesn't believe the breach 22 happened obviously in April of 18, which is what Plaintiff's 23 alleging, but I'll let you make a record too. Especially as 24 to this backlog and whether that impacts the Court's 25 determination that it's undisputed that it wasn't a reasonable (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 9 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 amount of time here. 2 MR. KENNEDY: Well, thank you, Your Honor. The 3 backlog has nothing to do with this allegation of method and 4 manner. There's nothing in the agreement, the proposed 5 agreement, of the two e-mails from January 22nd and January 23 6 of 2014, that makes any reference to method and manner. That 7 is something that the Defendant came up with in this lawsuit 8 that doesn't exist in the evidence in this case. So it really 9 just doesn't have any relevance to this discussion. The bank, 10 of course, has never wavered from its position that no 11 agreement ever existed. And when we talk about, you know, 12 affirmative defenses in the alternative, given our staunch 13 contention that no agreement ever was created, you know, we're 14 talking in the vapours here. And when we look at the sole 15 cause of action that the bank breached its agreement to 16 provide a manner and method when those terms didn't even 17 appear in the two e-mails that the Plaintiff bases their 18 entire complaint on, it's really just outside the realms of 19 reality. And so -- 20 JUDGE PANETTA: Okay. Well, I do think there is a 21 triable issue as to whether there actually was a contract 22 formed between the parties. But -- 23 MR. KENNEDY: Okay. 24 JUDGE PANETTA: But I understand you disagree with 25 that. (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 10 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 MR. KENNEDY: So let me -- I'll go more to the point 2 then on reasonableness. I think the Court is correct that as 3 a matter of law the Court can make a determination of what is 4 a reasonable time. And, you know, the Court's, you know, 5 correctly cited Civil Code Section 1657 regarding time and 6 the -- and tried to use the Jones case with I think to the 7 time element, of course we don't believe the Jones case is 8 relevant to conditions precedent because there isn't one. But 9 I think the Court, as a matter of law, has the discretion to 10 decide what is reasonable, and it's not a question for the 11 jury. So it's the Court's determination that if you double 12 the time from when the last payment was due, they still come 13 up short in the Statute of Limitations. I think that's more 14 than reasonable. We think September 1, 2015 is when it 15 starts, and -- because that was the last date that the payment 16 was to be made and no communication ever came from the bank, 17 and no communication ever came from Mr. Elliott. And since it 18 was his payment terms, it wasn't ours, he's the one that said 19 I'm going to pay on April 1st, '14, September 1st, '14, April 20 1st, '15, September 1st, '15. So those were his terms. He 21 never performed. And if the bank was supposed to give him 22 direction, you know, I think that the breach of contract is 23 probably April 1st and then it breached again on September 24 1st, '14, April 1st, '15, September 1st, '15. There was 25 multiple breaches according to the Plaintiff's position that (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 11 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 they were supposed to tell me how and when I was to make this 2 payment. Or how I was to make this payment. 3 So looking at the most extreme date, which is 4 September 1st, our position is that you got four years. 5 You've been more generous, you doubled it, and it still comes 6 up short. So we agree with the Court's position that the case 7 is barred by the Statute of Limitations. 8 JUDGE PANETTA: Ms. Avila, any last words or 9 arguments? 10 MS. AVILA: Yes. I still think this goes back to -- 11 well, first of all, I want to I guess highlight that the 12 Marshall case, which was quoted in our brief, that that 13 reasonable time to perform a contract is always a question of 14 fact. And here I think reasonable minds can differ. I don't 15 think it's so clear, and I think we've set forth elaborate 16 circumstances which makes this case unique. And yes, 17 Mr. Elliott did propose dates to the bank when he submitted 18 his offer, but the bank is the one that responded and said 19 hold on, we have additional work to do, you, if you continue 20 reading the acceptance e-mail, should start saving money in 21 your bank account, indicating to him that it was going to take 22 some time. They were working on files dating back to 2008. 23 That was a six-year gap. So it was reasonable under the 24 circumstances for Mr. Elliott to believe that this was going 25 to take some time. And if the Court doesn't -- if, you know, (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 12 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 Plaintiff -- or Defendant, you know, naturally doesn't agree 2 but reasonable minds can differ on that issue. And I strongly 3 believe that this is a matter for the jury. 4 JUDGE PANETTA: You know, I'm going to tell you, even 5 the triable issue as to whether there was a contract was a 6 very close call. I mean, ultimately I have to really rule on 7 it because I'm finding the motion granted on other grounds, 8 but there's an uphill battle even showing that there was 9 mutual agreement. I mean, there just is. Was there enough 10 there from what your client said in his declarations? 11 Probably just barely. So it's an uphill battle anyway, but 12 notwithstanding that, that's not why I'm ruling as to the 13 statute of limitations, that's a completely separate ground. 14 So I just add that for whatever it's worth. But the Court's 15 indicated is going to remain the Court's ruling on Defendant's 16 motion for summary judgment. 17 Is prevailing party fine preparing the order after 18 hearing? 19 MR. KENNEDY: Yes, Your Honor. 20 JUDGE PANETTA: Okay. Thank you both then. 21 MR. KENNEDY: Thank you, Your Honor. 22 JUDGE PANETTA: And it looks like we did have a CMC 23 set for October 31st. We'll vacate that. 24 MR. KENNEDY: Thank you. 25 JUDGE PANETTA: Okay. Thanks everyone, and thanks (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 13 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 for your additional briefing. It did help. 2 MR. KENNEDY: Thank you, Your Honor. 3 MS. AVILA: Thank you, Your Honor. 4 (Whereupon, the proceedings adjourned at 10:40 a.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 14 Hearing ROBERT ELLIOTT v MECHANICS BANK, ET AL 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF MONTEREY 3 DEPARTMENT 14 HON. CARRIE M. PANETTA, JUDGE 4 --o0o--- 5 ROBERT ELLIOTT, ) ) 6 ) Plaintiff, ) 7 ) vs. ) Case No. 21CV003944 8 ) MECHANICS BANK, a California ) 9 corporation, as the ) Successor-In-Interest to Rabobank, ) 10 N.A., a California corporation, ) et al., ) 11 ) Defendants. ) 12 ____________________________________) 13 STATE OF CALIFORNIA ) 14 COUNTY OF MONTEREY ) ss. 15 I, JENNA OSBORN, CSR No. 8681, Official Reporter 16 for the above-captioned court, do hereby certify that: 17 The foregoing pages comprise a transcript of a 18 true and correct transcription of the proceedings had in the 19 above-entitled matter, to the best of my ability. 20 Dated this 4th day of October, 2023. 21 22 23 24 JENNA OSBORN, CSR NO. 8681 Official Reporter 25 (831) 649-3110 www.absolutecourtreporters.com ABSOLUTE COURT REPORTERS Page: 15 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF MONTEREY 3 I declare that I am employed in the County of Monterey, State of California, am over the age 4 of eighteen years and not a party to the within cause, and my business address is PATANE • 5 GUMBERG • AVILA, LLP, 4 Rossi Circle, Suite 231, Salinas, California 93907. 6 On November 2, 2023, I served the foregoing document(s) described as: 7 8 APPELLANT’S NOTICE DESIGNATING RECORD ON APPEAL 9 (X) BY ELECTRONIC SERVICE – Based on a court order or an agreement of the parties to 10 accept service by electronic transmission, I caused the documents to be sent to the persons 11 at the electronic notification addresses listed below. 12 Matthew S. Kennedy, Esq. Matthew S. Kennedy, A PLC 13 P.O. Box 1031 14 San Luis Obispo, CA 93406-1031 Email: msk@kennedylawrealty.com 15 I declare under penalty of perjury under the laws of the State of California that the foregoing 16 is true and correct. Executed on November 2, 2023, at Salinas, California. 17 18 19 __________________________________________ CHRISTINA MICCOLI 20 21 22 23 24 25 26 27 28 -1- ______________________________________________________________________________ Proof of Service Case No. 21CV003944