Greenberg v. First Bank, Inc. (2026)

Case details
Country
United States
Jurisdiction
California (CA)
Court
California Supreme Court
Decided
2026
Disposition
Motion Denied
Greenberg v. First Bank, Inc., 2026 WL 638479 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 638479 (Cal.Super.) (Trial Order)Superior Court of California,Civil Division,South District, Governor George Deukmejian Courthouse, Department S27.Los Angeles CountyJack GREENBERG, et al.,v.FIRST BANK, INC., Successor of Queen City Bank.No. 25PSCV02072.February 17, 2026.*1 8:30 AMJudicial Assistant: B. ViolaCourtroom Assistant: B. JonesCSR: NoneERM: NoneDeputy Sheriff: NoneEditor's Note: This document contains discussion of unverified citations, likely generatedby AI tools used by a party or counsel. These citations are not attributable to the Court. Theunverified citations have been preserved as part of the official record, but links are unavailable.OrderMichael J. Hemming (Telephonic), for plaintiff(s).Jeffrey B Kirschenbaum (Telephonic), for defendant(s).Honorable Mark C. Kim, Judge.NATURE OF PROCEEDINGS: Hearing on Motion for Summary JudgmentMatter is called for hearing.The Court reads and considers all papers and hears oral argument.Tentative ruling is adopted as follows:Defendant First Bank, Inc. moves for summary judgment. Defendant argues that its evidence establishes that the certificates ofdeposit Plaintiffs claim it owes were repaid not less than seven years ago. Defendant argues that its records show that Plaintiffsdo not have an open account and records and that the records are sufficient to show Plaintiffs' deposits were repaid. Plaintiffsoppose the motion, arguing that Defendant's argument that it has no records of the CDs does not prove that the CDs were repaid.1. Background Facts
Greenberg v. First Bank, Inc., 2026 WL 638479 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Plaintiffs Jack and Barbara Greenberg filed their Complaint against Defendant First Bank, Inc. as successor of Queen City Bankon June 5, 2025. The Complaint alleges that Plaintiffs purchased certificates of deposit (“CDs”) which Defendant refused topay when the certificates matured on March 1, 2024. Plaintiffs allege the principal and interest Defendant owes on the fiveCDs is $510,817.09.2. Motion for Summary Judgmenta. Burdens on Summary JudgmentSummary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and thatthe moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summaryjudgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded,cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfythis burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element ofthe claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burdenshifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defensethereto.” (Ibid.)The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of materialfact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must showeither (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to thatcause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of therequired facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of theplaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiffdoes not possess and cannot reasonably obtain needed evidence....” (Aguilar, supra, 25 Cal.4th at 865-66.)*2 [A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing thatthe plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmativelydisproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presentingevidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, presentevidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence thatthe plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff followingextensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra,at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony ofthe plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or inresponse to requests for admission that he or she has not discovered anything that supports an essential element of the cause ofaction.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does notpossess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discoveryresponses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999)69 Cal.App.4th 64, 83.)Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “Thedefendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establishan essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried andtrue technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42Cal.App.4th 1591, 1598; Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with anyevidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may
Greenberg v. First Bank, Inc., 2026 WL 638479 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause ofaction. (Code Civ Proc. §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictlyconstrued and those of his opponent liberally construed and doubts as to the propriety of summary judgment should be resolvedagainst granting the motion. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) Additionally, a defendant'smotion for summary judgment or summary adjudication “necessarily includes a test of the sufficiency of the complaint” andits legal effect is the same as a demurrer or motion for judgment on the pleadings. (American Airlines, Inc. v. County of SanMateo (1996) 12 C4th 1110, 1118). When a motion for summary judgment is used to test whether the complaint states a cause ofaction, the court must accept the allegations of the complaint as true. It cannot consider facts alleged in opposing declarations.(Id.) b. Parties' PositionsDefendant moves for summary judgment on the grounds that Plaintiffs cannot meet their burden of proving nonpayment.Defendant argues that it conducted searches of its core data to determine whether Plaintiffs had an account with First Bankthat was still open. First Bank acquired Queen City Bank, the bank that originally issued the CDs, and its liabilities. Defendantargues that under relevant banking regulations, both the Queen City Bank and Defendant would have been required to maintainaccount records for seven years after an account closed before the records would have been destroyed. Defendant argues thatPlaintiffs are unable to carry their burden that a triable issue of material fact remains over whether Defendant failed to paythe CDs. Defendant also argues that the circumstantial evidence supports a finding that the first four CDs had already beenpaid because each certificate was intended to replace the prior certificates. Defendant finally argues that Plaintiff cannot raisea triable issue of material fact remains as to Defendant's laches defense because Plaintiffs unreasonably delayed redeeming theCDs by waiting 38 years to redeem the CDs.*3 In opposition, Plaintiffs argue that because they still possess all five original, uncancelled CDs, a presumption ofnonpayment automatically applies under Comm. Code § 3104(j) and Evid. Code § 635. Plaintiffs also argue that triable issuesof material fact remain over whether the CDs were ever paid, surrendered, cancelled, or rolled over. Plaintiffs further arguethat banks in the 1980s wrote non-negotiable on CDs to mean that the interest rate was fixed, not that there was a contractualobligation to repay.In reply, Defendant argues that Plaintiffs fail to establish that the certificates are admissible because they failed to lay anevidentiary foundation. Additionally, Defendant alleges Plaintiffs cited a non-existent, AI-generated case, Mitchell v. Bank ofAmerica (1928) 89 Cal.App. 467, 471-472, to prove that an essential feature of a CD is the requirement of surrender at maturity.Defendant further alleges that Plaintiffs' counsel cited cases that do exist but do not stand for the propositions for which theyare cited, including People v. Wharton (1991) 53 Cal.3d 522 and AARTS Productions, Inc. v. Crocker Nat'l Bank(1986) 179Cal.App.3d 1061. Defendant argues that Plaintiffs admitted to rolling over their initial deposit into successive certificates ofdeposit. Defendant also argues that its evidence shows that it does not owe money to Plaintiffs. Finally, Defendant argues thatPlaintiff's argument about 1980s banking practices is unsupported in fact and law.c. Evidentiary ObjectionsPlaintiffs object to the declaration of Mandi Willis. Objections 1-5 are OVERRULED. Plaintiffs object to the declaration ofJeffrey Kirshenbaum. Objections 1-8 are OVERRULED.d. DiscussionDefendants argue that Plaintiffs cannot meet their burden of proving each element of their cause of action for breach of contractbecause they cannot meet their burden of proving nonpayment. “[T]he elements of a cause of action for breach of contract are(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) theresulting damages to the plaintiff.” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.)
Greenberg v. First Bank, Inc., 2026 WL 638479 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4Here, Defendants argue that the evidence supports a finding that it did not breach the contracts at issue by failing to pay theCDs. Defendant relies on the declaration of its Director of Operations, Mandi Willis, who declares the Defendant's deposits andwithdrawals are recorded on a cre data system through a central processing system that tracks transaction in real time. (WillisDecl., ¶4.) When Defendant acquired Queen City Bank, the entity that allegedly issued the CDs, the records of deposits forthat institution were merged into First Bank's core data. (Id., ¶¶5-6.) Willis performed searches of the core data to determinewhether Plaintiffs have an account with First Bank that is still open and found no records. (Id., ¶7.) If Plaintiffs had an accountthat closed within the last seven years, Willis would have discovered those records through the search she performed. (Id., ¶8.)Defendant also provides a declaration from its counsel, who declares that there is no record that any funds owned by Plaintiffswere remitted to the Controller's Office by Queen City Bank or Defendant. (Kirschenbaum Decl., ¶16.)Defendant essentially asks the Court to grant summary judgment because Plaintiffs cannot prove that it failed to pay the CD.Defendant's argument is based on the fact that its core data does not show that Plaintiffs had an open account. However,“pointing out the absence of evidence to support a plaintiff's claim is insufficient to meet the moving defendant's initial burden ofproduction.” (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) “The defendant must also produce evidence that the plaintiffcannot reasonably obtain evidence to support his or her claim.” (Id.) Here, pointing to Defendant's own records alone is notsufficient to show that Plaintiff cannot prove that Defendant failed to pay the CDs. It would not be reasonable to infer from thesearch of Defendant's core data alone that Plaintiffs cannot reasonably obtain evidence to support their claim.*4 Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, which both parties discuss at length, is instructive. There,a widow discovered a certificate of deposit purchased in 1988 by her late husband which stated it was not transferable ornegotiable and that presentation of the certificate was not required to withdraw funds. (Gabriel, supra, 188 Cal.App. 4th atp. 551.) The bank moved for summary judgment, presenting evidence that there were no records that the CD account or thesavings account where the money from the CD was to be deposited were still open or how much money was in them when theywere open. (Id., at p. 553.) Additionally, there were no records that any unclaimed funds from either account were transferredto the State Controller's office as unclaimed property. (Id.) The Bank further produced evidence that it issued a federal tax formto its customers each year listing all interest earned for each tax year. (Id.) The bank had no records for the savings accountor CD account. (Id.) The bank also presented the widow's deposition testimony wherein she testified that her husband wassolely responsible for their finances, that she did not discuss financial matters, that she had no personal knowledge of the CDs,that she did not know of the accounts' existence until after the husband's death, and that she disposed of their banking recordswithout looking at them. (Id., at p.552.) Here, Defendant relies solely on the absence of records in its core database and the factthat no funds have been transferred to the State Controller's Office to show that Plaintiffs cannot prove nonpayment. Unlikein Gabriel, where the plaintiff was a widow who had no knowledge of the CDs and no records to prove whether or not herdeceased husband had withdrawn the funds, Plaintiffs themselves obtained the CDs and thus have personal knowledge to testifywhether or not they withdrew those funds. Additionally, unlike in Gabriel, where Wells Fargo was the only bank that issuedthe CDs there throughout their existence, here, the records were transferred from Queen City Bank to Defendant. There is noevidence of whether or not Plaintiffs' account with Queen City Bank was open or whether that data was included with the coredata that merged with Defendant's core data at the time Defendant acquired Queen City Bank in 1996. It is not reasonable toinfer from Defendant's search of its own records alone that Plaintiffs cannot find other evidence that the records exist elsewhere.Therefore, Defendant fails to meet its burden on summary judgment of proving Plaintiffs cannot prove an element of their claimfor breach of contract. The Court need not reach the parties' remaining arguments pertaining to Evidence Code § 635.3. ConclusionDefendant's motion for summary judgment is DENIED.The Motion for Summary Judgment filed by First Bank, Inc., successor of Queen City Bank on 11/12/2025 is Denied.Hearing on Motion for Sanctions re imposition of sanctions against Plaintiffs' counsel and referral to state bar for disciplinaryaction is scheduled for 04/28/26 at 08:30 AM in Department S27 at Governor George Deukmejian Courthouse.
Greenberg v. First Bank, Inc., 2026 WL 638479 (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.5Defense is to submit Motion for Sanctions by February 27, 2026. Opposition is to be filed by March 20, 2026. Reply is to befiled by April 3. 2026.Defense is to give notice.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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