Case Number: 16K04848 Hearing Date: June 06, 2018 Dept: 94

Plaintiff Rosenberg Mendlin & Rosen, LLP’s Motion for Summary Adjudication of its breach of contract and common counts claims is GRANTED.

Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. CCP § 437c(c); Vesely v. Sager (1971) 5 Cal.3d 153. The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. Villa v. McFerren (1995) 35 Cal.App.4th 733.

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. CCP § 437c(p)(2). When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. CCP § 437c(p)(1). The Plaintiff/Cross-Complainant is not required to disprove any affirmative defenses to discharge this burden. Weil & Brown, Civ.Pro.Before Trial, Chap. 10–Summary Judgment, 10:235.

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832. Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. CCP § 437c(p). The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. Sangster v. Paetkau (1998) 68 Cal.App.4th 151. As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. “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.” CCP § 437c(f)(1).

Either party in a civil action may file a Motion for Summary Judgment when the Complaint, Cross-Complaint or Answer as a whole has no merit as a matter of law (CCP § 437c(a)). A Motion for Summary Judgment must be supported by evidence establishing the moving party’s right to the relief sought. Such evidence includes affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken. CCP § 437c(b).

Whether a triable issue of fact exists is determined by the supporting papers, not the pleadings. Martins v. Winder (1961) 191 Ca2d 143. Such supporting papers must be evidentiary, and not ultimate facts or conclusions of law, and must be based upon the affined’s personal knowledge. Estate of Nelson (1964) 227 Ca2d 42.

As a general rule, in reviewing the evidence presented on summary judgment, the moving party’s evidence is strictly construed and the opposing party’s evidence is liberally construed. See e.g., Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, and Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832. The court is to consider all evidence submitted by the parties, direct and circumstantial, except that to which a proper objection has been sustained. CCP §437c(c). The court must also consider all reasonable inferences drawn therefrom. CCP § 437c(c). The court’s function on summary judgment is issue-finding, not issue-determination. Weil & Brown, supra, 10:270-272.10. The court is not to consider the weight or credibility of the evidence. It should only determine if a triable issue of material fact exists which requires the weighing procedures of trial. Id.

Discussion

Plaintiff Rosenberg Mendlin & Rosen, LLP filed the instant action for breach of contract, common counts and fraud against Defendants Ronald Brown (“Defendant Brown”), Calcor Space Facility, Inc. (“Defendant Calcor”), and Ram’s Manufacturing, Inc. (Defendant Ram’s”) The action arises out of Defendants’ alleged failure to pay Plaintiff for legal services rendered in Penza v. Brown, LASC Case No. BC582115 (“the underlying action”). Plaintiff now moves for summary adjudication of its breach of contract and common counts claims against Defendants.

In support of its motion, Plaintiff presents the following undisputed facts. On June 12, 2015, Defendant Brown discussed the initiation of the underlying action with Joyce Mendlin. (UMF 1.) Brown and Mendlin discussed Plaintiff’s hourly rates and it was agreed that Mendlin would send Brown a written fee agreement. (UMF 2.) Mendlin sent Brown the original fee agreement on June 12, 2015, and a revised fee agreement on June 22, 2015. (UMF 3.) Brown signed the agreement on behalf of himself and Defendants Calcor and Ram’s. (UMF 4.) Following the undertaking of legal services on Defendants’ behalf, Plaintiff issued its first invoice of $3,405.25 on July 16, 2015. (UMF 5-6.) Defendants did not pay the invoice, and Plaintiff continued to work on the underlying action. (UMF 7-9.) Upon issuance of its third invoice on December 16, 2015 and Defendants’ failure to pay the outstanding amount of $7,686.37. Plaintiff moved to withdraw its representation. (UMF 10-12.) Plaintiff’s motion to withdraw as counsel in the underlying action was granted on January 20, 2016. (UMF 13.) The principal amount Defendants owe Plaintiff is $7,608.71. (UMF 15.)

In order to prevail on a claim for breach of contract, Plaintiff must demonstrate the contract, Plaintiff’s performance or excuse for non-performance, defendant’s breach, and damage to Plaintiff therefrom. (Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913.) Plaintiff’s undisputed facts demonstrates that it is entitled to summary judgment on its claims for breach of contract and common counts. The evidence demonstrates the existence of a written contract between the parties, namely, the retainer agreement dated June 22, 2015. It also demonstrates that Plaintiff performed its obligations under the agreement by providing Defendants with legal representation in the underlying action, and that Defendants breached their duties under the agreement to compensate Plaintiff for its work. Similarly, this proves Plaintiff’s claim for common counts, which is proper to claim a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services rendered. (See Utility Audit Co. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958.)

As Plaintiff’s undisputed facts have carried its initial burden of proof with regard to the claims for which it seeks summary adjudication, the burden now shifts to Defendants to demonstrate the existence of a triable issue of material fact for those claims. Defendants, however, have failed to oppose the instant motion. Accordingly, the motion for summary adjudication is granted.

Moving party to give notice.