Filed 10/7/20 Ascentium Capital v. Reprime CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ASCENTIUM CAPITAL, LLC,

Plaintiff and Respondent,

v.

REPRIME LLC et al.,

Defendants and Appellants.

G058286

(Super. Ct. No. 30-2018-01017850)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard Y. Lee, Judge. Affirmed.

Michael R. Sayer for Defendants and Appellants.

Frandzel Robins Bloom & Csato, Andrew K. Alper and Hal D. Goldflam for Plaintiff and Respondent.

* * *

An office furniture lessee, Reprime LLC (Reprime), and its guarantors, DYC Group LLC (DYC) and Gideon Gratsiani (collectively, Reprime, defendants, or appellants), appeal from the trial court’s entry of judgment in favor of the lease’s assignee, Ascentium Capital LLC (Ascentium, plaintiff, or respondent). The court entered judgment after granting summary judgment on Ascentium’s claims for breach of contract, breach of guaranty, and a cause of action for “claim and delivery,” which entitled Ascentium to immediate possession of the leased furniture. Appellants contend Gratsiani’s declaration in opposition to summary judgment established triable issues of material fact precluding summary judgment. Appellants argue the trial court erred by, in essence, resolving those issues of fact summarily when it characterized the declaration as “self-serving” and therefore implicitly unworthy of belief, which should have been left to the jury to decide. The trial court, however, did not evaluate the evidentiary value of the declaration. Rather, it sustained Ascentium’s objections to the declaration, rendering it inadmissible, which appellants do not contest.

The records shows Ascentium presented evidence to meet its prima facie burden as the moving party to demonstrate that it and its assignor performed their obligations under the lease agreement, and there was no contrary admissible evidence. The court therefore properly granted Ascentium summary judgment. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2017, Providence Capital Funding, Inc. (Providence or Assignor) agreed to lease roughly 90 items of office furniture to Reprime. The lease terms called for Reprime to make 48 monthly payments of $4,268, with an initial deposit of $8,536 to be applied to the first and last months of the lease. Reprime signed a “Commencement Agreement” on June 7, 2017, expressly agreeing that date constituted the beginning of the lease term, though one or more furniture deliveries may have been outstanding. DYC and Gratsiani executed corporate and individual lease guaranties, respectively.

Providence sold and assigned its interest in the lease to Ascentium, and Reprime apparently made payments for almost a year, but failed to do so in June 2018 and every month thereafter. Ascentium unsuccessfully demanded payment from Reprime, DYC, and Gratsiani. Ascentium then declared the lease to be in default, rendering the entire unpaid balance due, which totaled by Ascentium’s calculations in March 2019 almost $170,000, including applicable discounts, taxes, and late fees. Ascentium sought that amount and other relief, including immediate repossession of the furniture, in its complaint alleging causes of action for breach of contract, breach of guaranty, and claim and delivery.

Defendants answered the complaint, and Ascentium eventually moved for summary judgment or, in the alternative, summary adjudication. Ascentium included in its moving papers the declaration of its vice president and portfolio manager Jerry Noon who declared under oath that Ascentium and Providence performed their obligations in all necessary respects to satisfy the underlying lease and guaranty agreements.

In their separate statement identifying disputed and undisputed material facts filed in opposition to Ascentium’s summary judgment motion, defendants marked as “Disputed” Ascentium’s contention, based on Noon’s declaration, that it and Providence had performed their lease obligations. Defendants did not identify in their separate statement any evidence to support their contention that Ascentium or Providence failed to perform. (Code Civ. Proc., § 437c, subd. (b)(3).)

In their briefing, defendants asserted generally that “the declaration of Gideon Gratsiani clearly establishes triable issues of fact.” Defendants “concede[d]” in the memo “that not all the monies due under the contract were paid,” but argued, “as much as Plaintiff seems to rely on that fact, that is not enough to establish that no triable issue of fact exists.” Defendants argued that, “as set forth in the declaration of Gideon Gratsiani, triable issue[s] of fact exist as to the quality of the goods, the terms of the contracts, and [further] that a triable issue of fact exists as to the amount of money damages Plaintiff is claiming.” Accordingly, defendants argued “the court should deny the motion for summary judgment and allow the matter to proceed on its merits.”

Following a hearing on the motion, the trial court issued a detailed ruling granting summary judgment in favor of Ascentium. The court ruled that “Plaintiff’s Evidentiary Objections to the Declaration of Gideon Gratsiani in Opposition to Plaintiff’s Motion for Summary Judgment Nos. 1-10 are SUSTAINED.”

The court also reviewed the elements of each of the causes of action Ascentium asserted, found Ascentium presented evidence on each element establishing a prima facie case for judgment in its favor—therefore shifting the burden to defendants to present contrary evidence showing a triable issue or issues of fact—and found that defendants failed to meet their burden. The court granted the summary judgment motion, subsequently entered judgment, and defendants now appeal.

DISCUSSION

Appellants challenge the trial court’s summary judgment ruling. “A motion for summary judgment should be granted if the submitted papers show that ‘there is no triable issue as to any material fact,’ and that the moving party is entitled to judgment as a matter of law.” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1409.) In other words, “‘“the evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment.”’” (Sandell v. Taylor Listug, Inc. (2010) 188 Cal.App.4th 297, 308.)

Our review is de novo. “In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing h[is] evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) “To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.) We do not consider evidence “to which objections have been made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)

“On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court.” (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.) Our review is limited to the points raised and supported in the appellant’s brief. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 (Reyes); accord, Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 41.) In all other respects, the general appellate rule applies that we presume the ruling was correct because “error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).)

Reprime asserts that Ascentium’s summary judgment motion rested on the fact that Reprime did not assert affirmative defenses in its third amended answer. Reprime correctly observes that the absence of an affirmative defense is not by itself sufficient reason to grant a plaintiff summary judgment. (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 240.) “[E]stablishing that there is no affirmative defense to a cause of action does not establish the merits of that cause of action.” (Ibid.) But as Reprime concedes, the trial court’s ruling never mentioned affirmative defenses. We have no reason to suppose the court’s ruling granting Ascentium summary judgment was based on the lack of any affirmative defense to its claims.

To the contrary, the trial court’s ruling reflects that it followed standard summary judgment procedure in which, once it determined Ascentium presented prima facie evidence to support judgment in its favor on its claims, it then evaluated whether defendants presented contrary evidence creating a triable issue of fact. Specifically, a plaintiff moving for summary judgment meets its initial burden “if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff . . . has met that burden, the burden 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).) If the plaintiff meets its burden, the defendant must set forth specific facts showing a triable issue of material facts exist. (Id., subd. (o)(1); People v. Schlimbach (2011) 193 Cal.App.4th 1132, 1141.)

In their reply brief, and at least inferentially during oral argument, appellants suggest Ascentium presented no evidence in its summary judgment moving papers “that the original shipper [of the office furniture, at the direction of the lessor] or the original assignor (i.e. Providence Capital Funding, Inc. [as the lessor]) performed under the lease.” Appellants are correct that a plaintiff’s performance of its obligations under a contract is generally an essential element it must establish to prevail on a breach of contract cause of action. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) Ascentium asserts that appellants, in agreeing to their respective guarantee contracts, waived any defenses to payment. But we need not decide if that is what the evidence showed of summary judgment. It is enough that appellants are factually incorrect in asserting Ascentium presented no evidence that it or its predecessor performed their lease obligations. Noon’s declaration expressly stated, “Ascentium and Assignor have performed all conditions, covenants and promises required on their part required to be performed pursuant to the terms of the Lease, the Lease Guaranty, the Corporate Guaranty and any [sic] all other related documents and instruments.”

It thereafter fell to defendants to establish a triable issue of material fact to avoid entry of summary judgment against them. Defendants pointed to, as they do again on appeal, Gratsiani’s declaration. Appellants cite Gratsiani’s allegations of nonperformance or incomplete performance, including, among others, “cubicle workstations that do not provide enough room for an adult to sit and work in a professional manner” and delivery of computer printers that “were supposed to be WIFI capable and yet none of them have it.”

Appellants contend the trial court erred in finding Gratsiani’s declaration failed to establish a triable issue of fact as to Ascentium or its assignor’s performance of the underlying lease. Appellants assert the court erred in observing in its ruling that their summary judgment opposition “instruct[ed] the Court to read the self-serving Declaration of Gratsiani to infer what the triable issues of fact are in this matter.” The court’s observation may have been appropriate, given that defendants’ opposition summarily stated that Gratsiani’s declaration “clearly” established triable issues of fact and referred the court generally to “several material facts in the declaration” without specifying what they were. But there was more to the court’s ruling than this. In fact, it struck all of defendants’ evidence, which they do not dispute.

Ascentium objected to the material statements in Gratsiani’s declaration under numerous Evidence Code provisions, including sections 140, 210, 402 and 403, 412, 1200, and 1520. Ascentium also objected to the admissibility of the declaration as a whole under Code of Civil Procedure section 2015.5. The trial court sustained Ascentium’s objections and struck the declaration. Appellants do not argue the court erred in doing so.

We see no error in the trial court’s ruling. “[A] party ‘cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.’” (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145, italics added; Code Civ. Proc., § 437c, subd. (p)(2).)

“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the[m] waived.” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) Evidentiary rulings are committed to the trial court’s sound discretion, and in the absence of any reason to conclude otherwise, we presume the court’s ruling was correct. (Denham, supra, 2 Cal.3d at p. 564; Reyes, supra, 65 Cal.App.4th at p. 466, fn. 6.) Here, since Ascentium presented evidence showing it was entitled to judgment as a matter of law, and the court had before it no contrary evidence, the court did not err in granting Ascentium’s motion.

DISPOSITION

The judgment is affirmed. Respondent is entitled to its costs on appeal.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.