Judge: Deborah C. Servino, Case: 30-2020-01141771, Date: 2022-09-02 Tentative Ruling
DISCOVERY MOTIONS
Plaintiff Balboa Capital Corporation’s motions to compel responses to its first sets of form interrogatories, special interrogatories and inspection demands, and for an order establishing admissions propounded on Defendant Michael Akpeke (“Dr. Akpeke”), are moot, except for sanctions.
Plaintiff acknowledges that Dr. Akpeke served responses after these motions were filed. (Reply, at p. 2.) Dr. Akpeke contends his failure to timely serve responses was the mistake of his former counsel in Florida. This mistake is imputable to Defendant, and does not change the fact that Plaintiff was forced to bring these motions in order to obtain compliance.
As such, Plaintiff is awarded sanctions against Dr. Akpeke. Within 30 days of the notice of ruling, Dr. Akpeke shall pay monetary sanctions for the discovery motions in a total amount of $1,125 to Balboa Capital Corporation. (Code Civ. Proc., § 2023.030, subd. (a); Cal. Rules of Court, rule 3.1348(a).)
MOTION FOR SUMMARY ADJUDICATION
Plaintiff’s motion for summary adjudication is denied.
Evidentiary Objections
Plaintiff’s evidentiary objection no. 12 is overruled. The court declines to rule on the remainder of the objections because they are not material to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)
Summary Judgment/Adjudication Standard
In both summary judgment and summary adjudication proceedings, the pleadings determine the scope of the relevant issues. (Port Medical Wellness, Inc. v. Connecticut General Life Ins. Co. (2018) 24 Cal.App.5th 153, 169; FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
The standard governing motions for summary judgment and summary adjudication is settled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)
Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. (Code Civ. Proc., § 437c, subd. (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) It is not plaintiff’s initial burden to disprove affirmative defenses and cross-complaints asserted by defendant. (Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 565.) If plaintiff meets this burden, the burden then shifts to the defendant “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).)
The court shall grant a motion for summary adjudication “only if it completely disposes” of “a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)
Merits
Plaintiff moves for summary adjudication on its first cause of action for breach of the Equipment Financing Agreement against Defendant Michael Akpeke, MD, PL dba Delta Internal Medicine Center, the third cause of action for breach of guaranty against Dr. Akpeke, and the fourth cause of action for indebtedness against all defendants.
“A cause of action for breach of contract requires [1] pleading of a contract, [2] plaintiff’s performance or excuse for failure to perform, [3] defendant's breach, and [4] damage to plaintiff resulting therefrom.” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655.)
The elements for a breach of guaranty are generally the same. (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 819.) The elements for a breach of guaranty cause of action are (1) the guarantor guaranteed payment of a third party’s indebtedness; (2) the third party defaulted; (3) the guarantor was notified of the default and payment was demanded; and (4) the guarantor did not make payment. (Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546-1547.)
“The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ [Citation.]” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)
Here, Plaintiff met its initial burden of producing admissible evidence on the elements of its claims. (Ngo Decl., at ¶¶ 3, 7, 11, 21, 25; Exh. 1.) However, Defendants have shown that there is a triable issue of material fact as to their seventh affirmative defense for failure to mitigate damages. (Ans., at p. 3.) Under the doctrine of mitigation of damages, a plaintiff who suffers damages as a result of a breach of contract has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided. Whether a plaintiff acted reasonably to mitigate damages is a factual matter to be determined by the trier of fact. (Agam v. Gavra (2015) 236 Cal.App.4th 91, 111.)
Plaintiff claimed damages of $296,342.05 as a result of Defendants’ breaches. (Ngo Decl., at ¶ 25.) The record reflects that the Equipment Financing Agreement required a principal sum of $210,691.25 for the subject medical equipment/device. After repossessing the device, it was sold for $2,500. Dr. Akpeke testifies in his declaration that the device “was still brand new and never used,” and that it “remained in the exact brand-new condition” when someone he understood to be “affiliated with Cynosure came to pick up the machine.” (Akpeke Decl., at ¶¶ 12-13.)
On reply, Plaintiff details the efforts it made to “remarket and sell” the device through Omni Capital Corporation, an “independent, third party, nationally recognized expert in the field of repossession, advertising resale, and the auction of used equipment and inventory.” (Whitehouse Reply Decl., at ¶¶ 1-2.) Omni Capital’s officer manager, Michele Whitehouse, avers that she “handled and oversaw the sale of the Equipment” and that, pursuant to Plaintiff’s instruction, “Omni Capital recovered the Equipment at its warehouse for testing and marketing.” Ms. Whitehouse further attests that, “[u]nfortunately, the Equipment was showing an error message when powered up” and that the “Equipment’s re-sale purchase price was also affected by the error message which would be costly to repair.” (Whitehouse Reply, Decl., at ¶ 4.) “As such, Omni Capital did not receive and did not expect to receive any higher offers for the Equipment.” (Whitehouse Reply Decl., at ¶ 8.) Thus, there is a triable issue of material fact as to whether Plaintiff mitigated its damages.
Because Plaintiff is not entitled to summary adjudication on its breach of contract and breach of guaranty claims, it also is not entitled to summary adjudication on its common count for “indebtedness.” (See McBride v. Boughton (2004) 123 Cal.App.4th 379, 395 [where a common count “is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts,” the common count for money had and received “must stand or fall with his first cause of action” for unjust enrichment].) Accordingly, the motion for summary adjudication is denied.
Plaintiff shall give notice of the ruling.