MOTION FOR SUMMARY JUDGMENT

Calendar: 7
Case: EC060726
Date: 2/28/14

Moving Party: Plaintiff, Bank of America
Responding Party: Defendant, Mohamad Shoostarian dba Quality Tea Company

RELIEF REQUESTED:
Summary Judgment

SUMMARY OF COMPLAINT:
The Defendant, Mohamad Shoostarian, breached an agreement to repay a business line of credit and an agreement to repay a business loan. Further, Defendant, Mohamad Shoostarian, breached a personal guaranty agreement under which he agreed to guaranty his own performance of his contract with the Plaintiff.

CAUSES OF ACTION FROM COMPLAINT:
1) Breach of Written Agreement
2) Breach of Personal Guaranty
3) Account Stated
4) Unjust Enrichment

DISCUSSION:
Trial set for April 1, 2014.

Under CCP section 437c, a plaintiff may move for summary judgment if that party contends that there is no defense to the plaintiff¿s causes of action or that an affirmative defense has no merit. The Plaintiff¿s complaint contains four causes of action. Since the Plaintiff argues that there is no defense to its causes of action, the Plaintiff¿s burden of proof is to prove each element of its four causes of action.

An initial defect in the Plaintiff’s motion is that it is not accompanied by a separate statement of facts. Under CCP section 437c(b), a motion for summary judgment must include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. CRC rule 3.1350(c) requires a motion for summary judgment to be supported by a separate statement. The American Heritage Dictionary, 5th Ed., defines the adjective “separate” to mean not touching or detached.
The Plaintiff did not file a separate document that constitutes a separate statement. Instead, the Plaintiff bound all of its papers together into a single document. A search of the document reveals that the memorandum includes the undisputed facts on pages 21 to 23. There is no tab indicating that this is a separate statement.

This does not comply with the express requirements of CCP section 437c(b) or CRC rule 3.1350(c) because it is not a separate statement, i.e., a document that is not touched or detached from the motion for summary judgment. If the Legislature and the Judicial Council had intended for the list of undisputed facts to be a document attached as an untabbed exhibit, then they would have drafted the statute and the rules of court to indicate this requirement. However, the plain language of the statute and the rule indicate that the list of undisputed facts must be in a separate statement.
Further, it does not comport with the customary manner in which attorneys prepare and file motions for summary judgment. See generally Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2013), chapter 10, “Summary Judgment and Summary Adjudication”.

In his opposition, the Defendant requests a continuance under CCP section 437c(h). Section 437c(h) permits the Court to continue the hearing on a showing with facts in a declaration that essential evidence may exist but cannot then be presented.
A summary judgment is a drastic measure which deprives the losing party of trial on the merits. Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395. To mitigate this harshness, the drafters of CCP section 437c included a provision making continuances virtually mandated. Id. Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented timely, the Court must either deny summary judgment or grant a continuance. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal. App. 4th 30, 34-35.
The following analysis of the motion indicates that the Plaintiff¿s motion will be denied because the Plaintiff did not meet its burden of proof. Accordingly, the Defendant¿s request for a continuance is moot.

1. First and Second Cause of Action for Breach of Contract
The first cause of action is based on the business line of credit. The second cause of action is duplicative because it is based on the breach of a personal guaranty agreement in which the Defendant agreed to guaranty his own performance of the business line of credit, i.e. to perform his duties under the business line of credit. Both causes of action contains the following elements:

1) the contract,
2) plaintiff’s performance or excuse for nonperformance,
3) defendant’s breach, and
4) the resulting damages to plaintiff.
Reichert v. General Ins. Co. (1968) 68 Cal. 2d 822, 830.

The Plaintiff provided the following evidence to establish each of these elements in the causes of action:

1) the Defendant entered into a business line of credit agreement with the Plaintiff (see separate statement of facts 1);
2) the Plaintiff performed all obligations under the agreement (see separate statement of facts, number 8);
3) the Defendant breached the agreement by failing to make the payments due from April 27, 2012 onwards (see separate statement of facts 10); and

4) the resulting damages to the Plaintiff are $99,978.69 (see separate statement of facts 12).

This evidence shows that the Plaintiff can establish each of the four elements of its first and second causes of action for breach of the contract and that Plaintiff¿s damages are $99,978.69.
Under CCP section 437c, this shifts the burden of showing a dispute of fact to the Defendant.
The Defendants offer no facts that create a material dispute of fact. Contentions are not facts.

Therefore, the undisputed facts show that there is no defense to the Plaintiff¿s first cause of action.

3. Third and Fourth Causes of Action
The Plaintiff¿s third cause of action seek to recover the damages on a theory of common counts. The Plaintiff’s fourth cause of action for unjust enrichment is not a cause of action under California law. See Melchior v. New Line Productions, Inc. (2003) 106 Cal. App. 4th 779, 794 (finding that the phrase ¿unjust enrichment¿ does not describe a theory of recovery, but a general principle underlying various legal doctrines and remedies).
The third cause of action in common count has the following elements:

1) the statement of indebtedness in a certain sum,
2) the consideration, i.e., goods sold, work done, money loaned, and
3) nonpayment.
Allen v. Powell (1967) 248 Cal. App. 2d 502, 510.

The Plaintiff fails to meet its burden because it does not offer evidence that it kept a statement of indebtedness in a certain sum for the Defendant’s account. Instead, the Plaintiff argues on pages 7 and 8 of its motion that the “Defendant has never objected to the amount owed to Plaintiff” and that “the circumstances imply that an account has been stated in a sum certain”. The fact that the Defendant has never object to an amount is irrelevant to establish that there was a statement of indebtedness. Further, the Plaintiff directs the Court to no facts that constitute the “circumstances” that imply the conclusion, i.e., the Plaintiff does not direct the Court to any evidence from which it would be reasonable to draw an inference that there is an account stated in a sum certain. Generally, a party meets this burden by identifying facts in the separate statement that indicate the manner by which the Plaintiff kept track of the amount owed by the Defendant and directing the Court to copies of the bills that were mailed to the Defendant.
Accordingly, the Plaintiff has failed to meet its burden of proof with regards to the third and fourth causes of action.

Therefore, the Plaintiff is not entitled to summary judgment because it did not meet its burden of proof on each cause of action in its Complaint.

4. Summary Adjudication
In the alternative, the Plaintiff requested summary adjudication. However, the notice of motion and the untabbed “separate statement” are defective. Under CRC rule 3.1350(b) when summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action and the specific affirmative defense must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.
The Plaintiff’s notice seeks “Summary Adjudication” as to one or more causes of action of Plaintiff’s Complaint and to one or more alleged affirmative defenses”. This does not specify a cause of action or an affirmative defense.
Further, the Plaintiff’s untabbed “separate statement” does not state the specific cause of action. CRC rule 3.1350(h) provides an exemplar and requires that the separate statement in a motion for summary adjudication use this format:

ISSUE 1-THE FIRST CAUSE OF ACTION FOR
NEGLIGENCE IS BARRED BECAUSE PLAINTIFF
EXPRESSLY ASSUMED THE RISK OF INJURY

Moving Party’s Undisputed Material Opposing Party’s Response and Supporting
Facts and Supporting Evidence: Evidence:
1. Plaintiff was injured while
mountain climbing on a trip with
Any Company USA.
Plaintiff’s deposition, 12:3-4.

2. Before leaving on the mountain
climbing trip, plaintiff signed a
waiver of liability for acts of
negligence.
Smith declaration, 5:4-5;
waiver of liability, Ex. A to Smith declaration.

The Plaintiff’s untabbed “separate statement” does not follow this required format for each cause of action.
Therefore, the Court will deny the Plaintiff’s request for summary adjudication in the alternative.

RULING:
DENY motion for summary judgment.
DENY motion for summary adjudication.