Zuckerman v. Pacific Savings Bank, B015774

Decision Date17 December 1986
Docket NumberNo. B015774,B015774
Citation187 Cal.App.3d 1394,232 Cal.Rptr. 458
PartiesJames ZUCKERMAN and Kathleen MacLennan, Plaintiffs and Appellants, v. PACIFIC SAVINGS BANK, a corporation, and Mar Vista Financial, Inc., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals

Reid & Hellyer and Daryl D. Hansen, for defendants and respondents.

LILLIE, Presiding Justice.

Plaintiffs appeal from summary judgment entered against them and in favor of defendants Pacific Savings Bank and Mar Vista Financial, Inc.


In 1980 plaintiff Zuckerman purchased improved real property and signed and delivered a promissory note for $199,600 and On July 5, 1983, Zuckerman tendered a check for $3,785.74 to Pacific, which Pacific stamped with its endorsement, but which was not cashed and was returned to Zuckerman on July 7, 1983, with a letter stating that additional amounts were due. On August 16, 1983, Zuckerman contacted Pacific to see if he could make up the delinquencies by paying one and one-half times the normal monthly payments; he was told the entire amount would have to be paid. Pacific purchased the property at the trustee's sale on September 1, 1983. Zuckerman appeared and protested the sale, but did not tender any amount.

deed of trust to the property in favor of Santa Fe Federal Savings and Loan Association (subsequently known as Pacific Federal Savings and Loan Association and then Pacific Savings Bank, hereinafter "Pacific"). The promissory note required monthly payments of $2,523.83 plus late charges of $126.19 for payments more [187 Cal.App.3d 1399] than 15 days late. Plaintiff MacLennan entered into exclusive possession of the property pursuant to a lease with Zuckerman. Zuckerman defaulted his payments on and after October 1, 1982, and on April 3, 1983, a notice of default was recorded with a delinquency of $17,460.49. On June 22, 1983, when the amount of the delinquency was about $24,212.18, a payment statement was sent to Zuckerman indicating a payment of $2,523.84 was due for October 1, 1982, plus late charges of $1,261.90, for a total of $3,785.74.

On September 21, 1983, Zuckerman filed a complaint against defendants to set aside the foreclosure sale, as well as for damages, alleging the language of the notice of trustee's sale was in violation of Civil Code section 2924h, subdivision (b). Defendants answered the complaint in May 1984. Thereafter, Zuckerman filed a first amended complaint and then a second amended complaint, which were virtually identical, except that Kathleen MacLennan was joined as a plaintiff to the second amended complaint, Zuckerman having relinquished to her his interests in the property. The second amended complaint sought money damages and equitable relief based on the allegation that the promissory note, trust deed, June 1983 notice of payment and cashier's check for $3,785.74 together constituted a written contract for an accord and satisfaction.

Defendants moved for summary judgment, claiming that the June 1983 notice of payment was generated as a result of a computer error and that the facts do not show a binding contract for an accord and satisfaction. Plaintiffs opposed the motion. The court granted the motion and thereafter entered summary judgment against plaintiffs and in favor of defendants. 1 Plaintiffs appeal from the summary judgment.


A summary judgment proceeding permits a party to show that material factual claims arising from the pleadings are not in dispute, and thus need not be tried. (Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 366, 212 P.2d 395.) "If a defendant's declaration in support of its motion for summary judgment establishes a complete defense to a plaintiff's action or demonstrates the absence of an essential element of the plaintiff's case, and if the plaintiff's declaration in reply does not show that a triable issue of fact exists with respect to that defense or that essential element, no amount of factual conflicts upon other aspects of the case will affect the result and the motion for summary judgment should be granted." (Rincon v. Burbank Unified School Dist. (1986) 178 Cal.App.3d 949, 954, 224 Cal.Rptr. 88.) "In determining whether the papers show that there is no triable issue as to any material "Personal knowledge and competency must be shown in the supporting and opposing affidavits and declarations. [Citations.] [p] The affidavits must cite evidentiary facts, not legal conclusions or 'ultimate' facts. [Citation.] [p] Matters which would be excluded under the rules of evidence if proferred by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits. [Citation.] However, evidentiary objections not made either in writing or orally shall be deemed waived. (Code Civ.Proc., § 437c, subd. (b).)" (Hayman v. Block (1986) 176 Cal.App.3d 629, 638-639, 222 Cal.Rptr. 293.)

fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Code Civ.Proc., § 437c, subd. (c).)

Because the determination of the trial court is one of law based upon the papers submitted, the appellate court must make its own independent determination of their construction and effect. (Taylor v. Fields (1986) 178 Cal.App.3d 653, 659, 224 Cal.Rptr. 186.) We apply the same three-step analysis required of the trial court: "First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond.... [p] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor.... [p] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (AARTS Productions, Inc. v. Crocker Nat. Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203.)


Plaintiff's first cause of action, labeled breach of written agreement constituting accord and satisfaction, alleges that on about June 15, 1983, Pacific sent a written notice to Zuckerman; that the notice indicated Pacific would accept the sum of $3,785.74 as payment in full required to cure the default under the promissory note; that on July 5, 1983, Zuckerman tendered to Pacific a cashier's check for $3,785.74; the back of the check bears the stamped endorsement of Pacific to indicate unconditional acceptance of the payment; taken together, the promissory note, trust deed, notice of payment due, and cashier's check constitute not only an accord and satisfaction, but also a written contract, effective July 5, 1983; that written accord was timely and completely satisfied by the tender of payment followed by Pacific's unconditional acceptance of that payment; that pursuant to such accord and satisfaction, the obligations of Zuckerman to make any further payments to Pacific until the payment of $3,785.74 was applied to his account were extinguished as of July 5, 1983; also extinguished were the rights, if any, of defendants to proceed with the trustee's sale of the property. The second cause of action, for breach of the implied covenants of good faith and fair dealing, incorporates the allegations of the first cause of action and alleges the acts of defendants were a material, substantial, and intentional breach of the covenants implied in the written contract effective July 5, 1983. The third cause of action, to set aside trustee's sale, simply incorporates prior allegations and seeks to have the court set aside the sale as void and without force and effect. The fourth cause of action, to quiet title in Zuckerman and to quiet leasehold interest in MacLennan, alleges that plaintiffs seek to quiet their respective interests in the property as of the date when Pacific accepted the tender of payment in full from Zuckerman. While plaintiffs attached as All four causes of action are clearly predicated on the existence of an accord and satisfaction; no other basis for relief was pleaded or asserted in opposition to the summary judgment motion. We therefore find to be without merit appellants' contention that no evidence was presented by respondents addressing the second, third, and fourth causes of action. If respondents' showing is sufficient to sustain a determination that the evidence is without dispute in failing to establish an accord and satisfaction, then such determination is sufficient to defeat all four causes of action. We thus proceed to discuss the evidence and appellants' contentions with respect thereto as applicable to all causes of action.

exhibits to the complaint copies of the promissory note, trust deed and cashier's check, no copy of the June 1983 payment notice was attached.


Appellants contend summary judgment was improperly granted because the supporting declaration of Evan Gibbons is conclusory and incompetent and therefore, insufficient evidence was presented to establish that the transaction involving the June 1983 payment notice was a mistake arising from a computer error rather than a contract of accord and satisfaction.

Evan Gibbons declared that he is a Collections and Foreclosure Manager in Pacific's Loan Service Department; the October 1, 1982, and later payments under the promissory note were not timely made; between October 1, 1982, and late January 1983,...

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