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Kevin P. Whiteford, CSBN: 142916
k~
WHITEFORD LAW
900 I-lowe Ave., Suite 250
Sacramento, CA 95825
Telephone: (916) 446-0790
Attorneys for Plaintif'f
BANC OF AMERICA LEASING &
CAPITAL, LLC
SUPERIOR COURT OF TI-IE S'I ATE OF CALIFORNIA
FOR THE COUNTY OF KERN
BANC OF AMERICA LEASING &) CASE NO. BCV-23-103301
CAPITAL, LLC, ) Unlimited Civil
)
Plaintiff, ) PLAINTIFF'S BRIEF IN SUPPORT OF ITS
12 ) REQUEST FOR ENTRY OF DEFAULT
vs. ) JUDGMENT
)
H S BROTIIERS EXPRESS INC,; HARJIT )
SINGH; and DOES 1 through, 50 inclusive, )
)
Defendants. )
)
Plaintiff Banc of America Leasing & Capital, LLC ("BALC") respectfully submits the
18 following points and authorities in support of its request for default judgment against Defendants H
19 S Brothers Express Inc. and Harjit Singh.
DEFENDANTS ARF. LIABLE FOR FAILURE TO PAY THE NOTE
21 On April 30, 2021, Defendant I-I S Brothers Express Inc. (hereinafter "EIS") entered into
22 Secured Promissory Note for Customer No. 7738354 (hereinafter the "Note" ) with Volvo Financial
Services, a division of VFS US I.LC ("VFS"). Pursuant to the Note, VFS funded HS's purchase of
equipment for its business. On April 30, 2021, Defendant I Iarj it Singh signed a Continuing Guaranty
(hereinafter the "Guaranty" ) of. HS's obligations under the Note. On April 30, 2021, I-IS also
confirmed in writing that it had received and accepted the Equipment as satisfactory under the
2t Contract. On July 29, 2021, VI'S assigned its rights and title under the Note and the Guaranty to
28 BALC for good and valuable consideration received.
PLAINTIFF'S BRIEF SUPPORTING ITS Banc ofdmerica Leasing, etc. vs. JJ S Brothers, etc., et al.
REQUEST FOR DEFAULT JUDGMENT 1. Case Number BCV-23-103301
HS was required by the Note to repay BALC by making 48 consecutive monthly installment
payments of $ 8,157.37 each beginning June 14, 2021. On February 14, 2023, HS breached the Note
by failing to pay the monthly installment payment then due.
On September 25, 2023, BALC's counsel demanded thc accelerated balance due under the
Note and Guaranty. As set forth in detail in the accompanying declaration of Irene D. Garza, the
accelerated balance due is $ 65,404.95. Mrs. Garza's declaration provides detailed damages
calculations.
The Note also requires the HS to pay a default rate of interest of 18% annually on the balance
due. On the $ 65,404.95 accelerated Note balance, interest accrues at the rate of $ 32.35 per day
10 ($ 65,404.95 x 0.18 = $ 11,772.89; $ 11,772.89/365 = $ 32.35). As discussed in the Garza Dec., BALC
was able to recover and sell its collateral securing the Note, receiving payment of the sale proceeds
12 on July 25, 2023. Interest has accrued on the remaining balance due from and after July 25, 2023.
I'or the 218 days from July 25, 2023 through February 28, 2024, the total accrued pre-judgmcnt
interest is $ 7,052.30 ($ 32,35 x 218 days = $ 7, 052,30).
The "Rights and Remedies ofl.ender" provision on page 3 of the Note requires the I-IS to pay
BALC's attorneys'ees in any action to enforce the Note. ".1'he fifth paragraph of the Guaranty,
likewise, requires the guarantor to pay BALC's attorney's fees in any action to enforce BALC's
18 rights under that agreement. Plaintiffs counsel has concurrently submitted a declaration providing
the calculation of the permitted default attorney fees recoverable under local rules on the judgment
20 in the principal amount of $ 65,404.95 sought in this action, which comes to $ 6,770.25.
21 PLAINTIFF IS ENTITLED TO ENTRY OF A DEFAULT JUDGMENT
22 Code of Civil Procedure )585(b) provides, inter alia, that the Court, after the entry of default,
23 "shall hear the evidence offered by the plaintiff, and shall render judgment in his or her favor for such
sum (not exceeding the amount stated in the complaint...), as appears by such evidence to be just."
25 By reason of the default the Defendants'efaults, all material allegations contained in the complaint
have been admitted and established. Jolmson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362. In
Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 408-409, the court explained:
28
PLAINTIFF'S BRIEF SUPPORTING ITS Banc ofAmerica Leasing, etc. vs. //S Brothers, etc., et aL
REQUEST FOR DEFAULT JUDGMENT 2. Case Number BCV-23-] 03301
Generally speaking, the party who makes default thereby confesses the material
allegations of the complaint, It is also true that where a cause of action is stated in the
complaint and evidence is introduced to establish a prima facie case the trial court may
not disregard the same, but must hear the evidence offered by the plaintiff and must
render judgment in his favor for such sum, not exceeding the amount stated in the
complaint, or for such relief, not exceeding that demanded in the complaint, as appears
from the evidence to be just.
(Citations omitted; italics in original.)
Code of Civil Procedure $ 585(d) permits the Court to accept evidence via written
declarations, in lieu of personal testimony, in support of an application for entry of default judgment.
In thc instant matter, Irene D. Garza, BALC's Senior Vice President, Leasing Credit Manager, has
submitted a declaration specifying the written instruments sued upon, the Defendants'efaults
10 thereunder, and the accounting for amounts remaining due and unpaid by Defendants to BALC under
the Note and Guaranty. BALC's counsel, Kevin P. Whiteford, has also submitted a declaration
regarding BALC's demand for the accelerated balance due under the Note and Guaranty, as well as
the calculation of prejudgment interest and permitted attorney's fees. Thus, Plaintiff has easily
satisfied its evidentiary burden for demonstrating it is entitled to the damages award requested in the
complaint.
Under Civil Code section 3300, BALC is entitled to recover the benefit of the bargain under
17 the Notes. "The basic object of damages is compensation, and in the law of contracts the theory is
18 that the party injured by breach should receive as nearly as possible the equivalent of the benefits of
performance." 1 Witkin Summar of California Law (10th ed. 2005) Contracts )869, p. 956 (citing
Christensen v. Slawter (1959) 173 Cal.App.2d 325, 330 and other authorities). Therefore, BALC is
21 entitled to recover the accelerated balance due under the Note, plus prejudgment interest, costs and
legal fees incurred in this action, as set forth above and in the accompanying declarations.
23 CONCLUSION
For all the above-stated reasons, BALC is entitled to entry of the requested default judgment
against the Defendants on the breach of contract of action. BALC should be awarded judgment for
28
PLAINTIFF'S BRIEF SUPPORTING ITS Banc ofAmerica Leasing, etc. vs. H S Brot/Iers, etc., et aL
REQUEST FOR DEFAULT JUDGMENT 3. Case Number BCV-23-103301
1 damages of $ 65,404.95, plus prejudgment interest of $ 7,052.30, attorney's fees of $ 6,770.25, and
2 costs of suit.
3 DATED: February 28, 2024 WHITEFORD LA W
K VIN P. ITEFO D
Attorneys for Plaintiff
BANC OF AMERICA LEASING &
CAPITAL, LLC
10
1 3 S:IActivc Files',bmtc of americatlt s brothers cxpresstcourt docstdefault.brtcf.wpd
18
20
21
22
23
PLAINTIFF'S BRIEF SUPPORTING ITS Banc ofAmerica Leasing, etc. vs. HS Brothers, etc., et aL
REQUEST FOR DEFAULT JUDGMENT Case Number BCV-23-103301
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Kevin P. Whiteford, CSBN: 142916 k~ WHITEFORD LAW 900 I-lowe Ave., Suite 250 Sacramento, CA 95825 Telephone: (916) 446-0790 Attorneys for Plaintif'f BANC OF AMERICA LEASING & CAPITAL, LLC SUPERIOR COURT OF TI-IE S'I ATE OF CALIFORNIA FOR THE COUNTY OF KERN BANC OF AMERICA LEASING &) CASE NO. BCV-23-103301 CAPITAL, LLC, ) Unlimited Civil ) Plaintiff, ) PLAINTIFF'S BRIEF IN SUPPORT OF ITS 12 ) REQUEST FOR ENTRY OF DEFAULT vs. ) JUDGMENT ) H S BROTIIERS EXPRESS INC,; HARJIT ) SINGH; and DOES 1 through, 50 inclusive, ) ) Defendants. ) ) Plaintiff Banc of America Leasing & Capital, LLC ("BALC") respectfully submits the 18 following points and authorities in support of its request for default judgment against Defendants H 19 S Brothers Express Inc. and Harjit Singh. DEFENDANTS ARF. LIABLE FOR FAILURE TO PAY THE NOTE 21 On April 30, 2021, Defendant I-I S Brothers Express Inc. (hereinafter "EIS") entered into 22 Secured Promissory Note for Customer No. 7738354 (hereinafter the "Note" ) with Volvo Financial Services, a division of VFS US I.LC ("VFS"). Pursuant to the Note, VFS funded HS's purchase of equipment for its business. On April 30, 2021, Defendant I Iarj it Singh signed a Continuing Guaranty (hereinafter the "Guaranty" ) of. HS's obligations under the Note. On April 30, 2021, I-IS also confirmed in writing that it had received and accepted the Equipment as satisfactory under the 2t Contract. On July 29, 2021, VI'S assigned its rights and title under the Note and the Guaranty to 28 BALC for good and valuable consideration received. PLAINTIFF'S BRIEF SUPPORTING ITS Banc ofdmerica Leasing, etc. vs. JJ S Brothers, etc., et al. REQUEST FOR DEFAULT JUDGMENT 1. Case Number BCV-23-103301 HS was required by the Note to repay BALC by making 48 consecutive monthly installment payments of $ 8,157.37 each beginning June 14, 2021. On February 14, 2023, HS breached the Note by failing to pay the monthly installment payment then due. On September 25, 2023, BALC's counsel demanded thc accelerated balance due under the Note and Guaranty. As set forth in detail in the accompanying declaration of Irene D. Garza, the accelerated balance due is $ 65,404.95. Mrs. Garza's declaration provides detailed damages calculations. The Note also requires the HS to pay a default rate of interest of 18% annually on the balance due. On the $ 65,404.95 accelerated Note balance, interest accrues at the rate of $ 32.35 per day 10 ($ 65,404.95 x 0.18 = $ 11,772.89; $ 11,772.89/365 = $ 32.35). As discussed in the Garza Dec., BALC was able to recover and sell its collateral securing the Note, receiving payment of the sale proceeds 12 on July 25, 2023. Interest has accrued on the remaining balance due from and after July 25, 2023. I'or the 218 days from July 25, 2023 through February 28, 2024, the total accrued pre-judgmcnt interest is $ 7,052.30 ($ 32,35 x 218 days = $ 7, 052,30). The "Rights and Remedies ofl.ender" provision on page 3 of the Note requires the I-IS to pay BALC's attorneys'ees in any action to enforce the Note. ".1'he fifth paragraph of the Guaranty, likewise, requires the guarantor to pay BALC's attorney's fees in any action to enforce BALC's 18 rights under that agreement. Plaintiffs counsel has concurrently submitted a declaration providing the calculation of the permitted default attorney fees recoverable under local rules on the judgment 20 in the principal amount of $ 65,404.95 sought in this action, which comes to $ 6,770.25. 21 PLAINTIFF IS ENTITLED TO ENTRY OF A DEFAULT JUDGMENT 22 Code of Civil Procedure )585(b) provides, inter alia, that the Court, after the entry of default, 23 "shall hear the evidence offered by the plaintiff, and shall render judgment in his or her favor for such sum (not exceeding the amount stated in the complaint...), as appears by such evidence to be just." 25 By reason of the default the Defendants'efaults, all material allegations contained in the complaint have been admitted and established. Jolmson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362. In Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 408-409, the court explained: 28 PLAINTIFF'S BRIEF SUPPORTING ITS Banc ofAmerica Leasing, etc. vs. //S Brothers, etc., et aL REQUEST FOR DEFAULT JUDGMENT 2. Case Number BCV-23-] 03301 Generally speaking, the party who makes default thereby confesses the material allegations of the complaint, It is also true that where a cause of action is stated in the complaint and evidence is introduced to establish a prima facie case the trial court may not disregard the same, but must hear the evidence offered by the plaintiff and must render judgment in his favor for such sum, not exceeding the amount stated in the complaint, or for such relief, not exceeding that demanded in the complaint, as appears from the evidence to be just. (Citations omitted; italics in original.) Code of Civil Procedure $ 585(d) permits the Court to accept evidence via written declarations, in lieu of personal testimony, in support of an application for entry of default judgment. In thc instant matter, Irene D. Garza, BALC's Senior Vice President, Leasing Credit Manager, has submitted a declaration specifying the written instruments sued upon, the Defendants'efaults 10 thereunder, and the accounting for amounts remaining due and unpaid by Defendants to BALC under the Note and Guaranty. BALC's counsel, Kevin P. Whiteford, has also submitted a declaration regarding BALC's demand for the accelerated balance due under the Note and Guaranty, as well as the calculation of prejudgment interest and permitted attorney's fees. Thus, Plaintiff has easily satisfied its evidentiary burden for demonstrating it is entitled to the damages award requested in the complaint. Under Civil Code section 3300, BALC is entitled to recover the benefit of the bargain under 17 the Notes. "The basic object of damages is compensation, and in the law of contracts the theory is 18 that the party injured by breach should receive as nearly as possible the equivalent of the benefits of performance." 1 Witkin Summar of California Law (10th ed. 2005) Contracts )869, p. 956 (citing Christensen v. Slawter (1959) 173 Cal.App.2d 325, 330 and other authorities). Therefore, BALC is 21 entitled to recover the accelerated balance due under the Note, plus prejudgment interest, costs and legal fees incurred in this action, as set forth above and in the accompanying declarations. 23 CONCLUSION For all the above-stated reasons, BALC is entitled to entry of the requested default judgment against the Defendants on the breach of contract of action. BALC should be awarded judgment for 28 PLAINTIFF'S BRIEF SUPPORTING ITS Banc ofAmerica Leasing, etc. vs. H S Brot/Iers, etc., et aL REQUEST FOR DEFAULT JUDGMENT 3. Case Number BCV-23-103301 1 damages of $ 65,404.95, plus prejudgment interest of $ 7,052.30, attorney's fees of $ 6,770.25, and 2 costs of suit. 3 DATED: February 28, 2024 WHITEFORD LA W K VIN P. ITEFO D Attorneys for Plaintiff BANC OF AMERICA LEASING & CAPITAL, LLC 10 1 3 S:IActivc Files',bmtc of americatlt s brothers cxpresstcourt docstdefault.brtcf.wpd 18 20 21 22 23 PLAINTIFF'S BRIEF SUPPORTING ITS Banc ofAmerica Leasing, etc. vs. HS Brothers, etc., et aL REQUEST FOR DEFAULT JUDGMENT Case Number BCV-23-103301