Judge: Teresa A. Beaudet, Case: 22STCV17093, Date: 2023-02-14 Tentative Ruling

Case Number: 22STCV17093    Hearing Date: February 14, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Wells Fargo Bank, National Association (“Plaintiff”) filed this action on May 24, 2022 against Defendants On It Pro LLC (“On It Pro”) and Erik Nordskog, aka Eric R. Nordskog, aka Erik R. Nordskog (“Nordskog”) (jointly, “Defendants”). The Complaint asserts causes of action for (1) breach of contract, (2) account stated, (3) money lent, (4) breach of guaranty, (5) breach of contract, (6) account stated, (7) money lent, and (8) breach of guaranty. The first, second, third, fifth, sixth, and seventh causes of action are alleged against On It Pro. The fourth and eighth causes of action are alleged against Nordskog.

            Plaintiff now moves for summary judgment or in the alternative, summary adjudication, in its favor against Nordskog.[1] The motion is unopposed.

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in¿Civil Code section 3294, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc.,                         § 437c(f)(1).)¿“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)¿

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

For purposes of motions for summary judgment and summary adjudication, a plaintiff “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).)

Discussion

A.    Allegations of the Complaint

In the Complaint, Plaintiff alleges that on or about July 8, 2016, it granted a business line of credit under the present account number XXXX-XXXX-XXXX-2151 (“Business Line of

Credit”) to On It Pro, which On It Pro agreed in writing to repay. (Compl., ¶ 8.) On It Pro failed to make the monthly payments due and is thus in default under the Business Line of Credit. (Compl., ¶ 11.) There is now due and owing from On It Pro to Plaintiff the principal sum of $50,314.73 under the Business Line of Credit,. (Compl., ¶ 14.)

Plaintiff also alleges that to induce Plaintiff to extend credit to On It Pro under the Business Line of Credit, Nordskog agreed in writing to pay Plaintiff the amount equal to all funds advanced by Plaintiff to On It Pro under the Business Line of Credit. (Compl., ¶ 23.) Plaintiff has made a demand on Nordskog for payment of the obligation sued upon in the Complaint, but Nordskog has not repaid any part of this obligation. (Compl., ¶ 26.)

Plaintiff further alleges that on or about July 7, 2016, Plaintiff granted a business credit card under the present account number XXXX-XXXX-XXXX-9294 (“Business Credit Card”) to On It Pro, which On It Pro agreed in writing to repay. (Compl., ¶ 28.) On It Pro is in default under the Business Credit Card, in that On It Pro has failed to make the monthly payments due. (Compl., ¶ 31.) There is now due and owing to Plaintiff from On It Pro, under the Business Credit Card, the principal sum of $28,713.15. (Compl., ¶ 34.) 

Plaintiff alleges that to induce Plaintiff to extend credit to On It Pro under the Business Credit Card, Nordskog agreed in writing to pay Plaintiff the amount equal to all funds advanced by Plaintiff to On It Pro under the Business Credit Card. (Compl., ¶ 43.) Plaintiff has made demand on Nordskog for payment of the obligation sued upon in the Complaint, but Nordskog has not repaid any part of this obligation. (Compl., ¶ 46.)

B.    Fourth and Eighth Causes of Action

The fourth and eighth causes of action alleged against Nordskog are for breach of guaranty. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

As to the first element, Plaintiff provides evidence that on or about July 8, 2016, Plaintiff entered into a business line of credit agreement with On It Pro under the present account number ending in 2151, and a Visa business credit card with On It Pro under the present account number ending in 9294. (Felix Decl., ¶ 5, Exs. 1-2.) Plaintiff also provides evidence that “to induce [Plaintiff] to extend credit to ON IT PRO, NORDSKOG personally agreed in writing to pay [Plaintiff] amount due under the Line of Credit and Business Card.” (Felix Decl., ¶ 6, Ex. 1.)

As to the second element, Plaintiff indicates that “[p]ursuant to the terms of the Business Line of Credit and Business Credit Card, Wells Fargo extended credit to Defendants, which Defendants agreed to repay.” (Felix Decl., ¶ 7.)

As to the third and fourth elements, Plaintiff indicates that “Defendants are in default under the Business Line of Credit and Business Credit Card, in that Defendants failed to make the monthly payment amounts due.” (Felix Decl., ¶ 8.) Plaintiff indicates that “[t]he last payment received from Defendants on the Line of Credit was February 2, 2021…The current amount due on the Line of Credit is $50,314.73.” (Felix Decl., ¶ 9, Ex. 4.) In addition, “[t]he last payment received from Defendants on the Business Card was April 8, 2021…[t]he current amount due on the Business Card is $28,713.15.” (Felix Decl., ¶ 10, Ex. 5.)

            Based on the foregoing, the Court finds that Plaintiff has met its burden of proving each element of its fourth and eight causes of action for breach of guaranty against Nordskog, and that Defendants have failed to raise a triable issue of fact thereto.

            Lastly, Plaintiff asserts that “[a]n award of attorney fees may be made as part of the summary judgment in any case where such fees are recoverable by law, as where authorized by contracts,” citing to Hoover Cmty. Hotel Dev. Corp. v. Thomson (1985) 167 Cal.App.3d 1130. 1143 in support of this assertion.  The Court finds that page 2 of the guaranty provides for the recovery of attorney fees and costs. As set forth in the Declaration of Yvonne Ramirez-Browning, Plaintiff has requested only the fees as provided in Local Rule 3.214 (i.e., $4,431.12), plus costs of $837.10. The Court finds that Plaintiff has established that it is entitled to an award of attorney fees in the amount of $4,431.12 and costs in the amount of $837.10.

            Conclusion                                                                         

Based on the foregoing, Plaintiff’s motion for summary judgment is granted. Plaintiff is awarded $79,027.88, plus attorney fees in the amount of $4,431.12 and costs in the amount of $837.10 for a total judgment of $84,296.10.  Plaintiff is ordered to file and serve a proposed judgment within 10 days of the date of this Order.

Plaintiff is ordered to give notice of this Order. 

DATED:  February 14, 2023                          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court