Judge: Craig Griffin, Case: "Ascentium Capital LLC v. Mitchell Street Dental Group PC, et al.", Date: 2022-09-19 Tentative Ruling

Plaintiff/Cross-Defendant, Ascentium Capital LLC’s (“Plaintiff”) Motion for Summary Judgment as to its First Amended Complaint is GRANTED. (C.C.P. § 437c(p)(1).)

Plaintiff’s Motion for Summary Adjudication of the Fifth, Sixth, Seventh, Eighth and Ninth Causes of Action asserted against Plaintiff in Defendants/Cross-Complainants, Mitchell Street Dental Group, PC (“Mitchell”) and Kenneth Higgins (“Higgins”) (collectively, “Defendants”) Fourth Amended Cross-Complaint is GRANTED. (C.C.P. § 437c(p)(2).)

Regarding the First Amended Complaint, Plaintiff met its initial burden to show each element of its causes of action for breach of financing agreement, breach of guaranty, and money lent. (See Code Civ. Proc., § 437c, subd. (p)(1) [burden]; Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124 [same]; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements of breach of contract]; Gray1 CPB, LLC v. Kolokotronis (2011) 202 Cal.App.4th 480, 486 [elements of breach of guaranty]; Farmers Ins. Exchange v. Zerin, (1997) 53 Cal. App. 4th 445, 460 [elements of indebtedness]; see, Plaintiff’s SSUF Nos. 1-2, 6-21.)

Defendants failed to meet their shifted burden to show triable issues of material fact. (See Code Civ. Proc., § 437c, subd. (p)(1); Food Safety Net Services, supra, 209 Cal.App.4th at 1124.)

Regarding the Fourth Amended Cross-Complaint, Plaintiff met its initial burden to show that one or more elements of Defendants’ causes of action cannot be established. (See Code Civ. Proc., § 437c(p)(2); Civ. Code § 1689(b)(1) [recission based on fraud/mistake]; Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1374; Bus. & Prof. §17200 [unfair competition]; Bus. & Prof. §17500 [false advertising]; Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1156 [declaratory relief]; see, Plaintiff’s SSUF Nos. 23, 25-27, 32-34, 37-43, 45-50.)

Defendants failed to meet their shifted burden to show triable issues of material fact. (See Code Civ. Proc., § 437c(p)(2); Food Safety Net Services, supra, 209 Cal.App.4th at 1124.)

Defendants raise several issues in their opposition, none of which raise a triable issue of material fact.

First, Defendants failed to explain how the fact that the Equipment was purchased by Mitchell Street Salon Suites, as opposed to Mitchell, is relevant to the Equipment Financing Agreement (“EFA”) between Plaintiff and Mitchell or to any of the causes of action at issue in Plaintiff’s motion. Defendants do not dispute that Mitchell signed the EFA. Defendants failed to offer any evidence or authority to show how this factor is relevant to Plaintiff’s motion.

Second, Defendants failed to explain how whether Plaintiff had a security interest in the Equipment is relevant to breach of the EFA and Guaranty. Defendants failed to offer any evidence or authority to show how this factor is relevant to Plaintiff’s motion.

Third, Defendants offered no evidence to dispute the amount of damages claimed by Plaintiff. Higgins merely states that he does not know if the amount claimed by Plaintiff is the correct amount. (Higgins Decl., ¶ 36.) He does not state the claimed amount is incorrect or offer any evidence that would dispute the amount of damages. Thus, Defendants’ evidence is insufficient to raise a triable issue of fact as to the amount of damages.

Fourth, the Court finds Defendants’ objection to Plaintiff’s evidence as to damages not well-taken. (See ROA 342.) The Court finds Plaintiff’s evidence sufficient to support the claimed amounts. (See Noon Decl., ¶¶ 12-17; Plaintiff’s Exhibits in Support of Motion, Exhibits A-G, ROA 294.)

Fifth, Plaintiff’s evidence is sufficient to establish that Plaintiff is licensed as a California finance lender. (See Noon Decl. ¶¶ 1-2, 16.) Defendants also failed to offer any explanation or authority as to how this issue is relevant to breach of the EFA and Guaranty or to any of the causes of action at issue in the motion.

Sixth, Defendants’ evidence does not raise a triable issue as to agency. “An agency is either actual or ostensible.” (Civ. Code § 2298.) “An agency is actual when the agent is really employed by the principal.” (Civ. Code, § 2299.) “Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.” (Civ. Code, § 2316.) On the other hand, “[a]n agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Civ. Code, § 2300.)

Here, Defendants have not proffered any evidence of actual or ostensible authority. Defendants do not offer any evidence to show that Zeltiq was Plaintiff’s actual agent (or vice versa) or that Plaintiff engaged in any conduct that would cause a third person to believe that Zeltiq was its agent. Further, Defendants failed to provide any documentation to support Higgins’ assertion that he discovered certain facts “during the ensuing litigation.” Thus, Defendant failed to establish a triable issue of fact regarding whether Plaintiff and Zeltiq are agents.

Accordingly, the motion is GRANTED.

Plaintiff’s request for judicial notice is GRANTED. (Ev. Code §452(d).)

Defendants’ evidentiary objections (ROA 342) are OVERRULED.

Moving Party to give notice.