Motion for Summary Judgment and/or SAI

Tentative Ruling: Plaintiff’s Motion for Summary Judgment, or in the alternative, summary adjudication of issues, is GRANTED. Plaintiff has submitted admissible evidence sufficient to meet its initial burden on summary judgment. (See UMF Nos. 1-17; Dack Decl., ¶¶ 2-18, and App. Exs. 1-3.) The burden thus shifts to Defendant to show by admissible evidence that a triable issue of material fact exists as to a claim or a defense thereto. (Code Civ. Proc., § 437c(p)(1).) Defendant has failed to meet that burden: as she failed to file any opposition to the instant motion, she has not identified any triable issue of fact as to any claim asserted in the Complaint. Plaintiff is thus entitled to judgment in this action. Plaintiff is to prepare, file and serve a proposed order and proposed judgment consistent with this ruling. Plaintiff is to give notice of this ruling.

MSJ Standard: The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and he is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Moving party also bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries that burden, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Id.)

A plaintiff seeking summary judgment has the initial burden of producing admissible evidence on each element of its claim, including both the fact of and amount of damages, but does not have an initial burden of disproving affirmative defenses or cross-claims asserted by defendant. (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014)), §10:235; Code Civ. Proc., § 437c(p)(1), Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468; Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal. App. 4th 1093, 1106.) Where the plaintiff would bear the burden of proof by a preponderance of evidence at trial, it must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not: otherwise, it would not be entitled to judgment as a matter of law. (In re Peterson (2007) 156 Cal.App.4th 676, 687; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851; Code Civ. Proc., § 437c(p)(1).)

If the plaintiff meets its initial burden, the burden then shifts to the defendant to show by admissible evidence that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc., § 437c(p)(1).) However, until the plaintiff meets its burden, defendant has no burden to oppose. (Id.; Consumer Cause, Inc. v. SmileCare, supra, 91 Cal.App.4th at 468.)

“Because of the drastic nature of the summary judgment procedure and the importance of safeguarding the adverse party’s right to a trial, the moving party must make a strong showing. His affidavits are strictly construed and the opposing party’s are liberally construed.” (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1038.) All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) Thus, evidence that is equivocal or from which conflicting inferences may be drawn is insufficient to meet the movant’s burden. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 297.)

This action is based upon an alleged breach of contract. The elements of a breach of contract claim are: (1) existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damage to plaintiff. (See, e.g., Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243.) Here, Plaintiff has presented admissible evidence to establish each of these elements.

For the first element, Plaintiff has submitted the fee agreement (Exh. 2 to the Appendix, authenticated in the Dack Decl., at ¶ 4). The remaining elements are met because Plaintiff also attests it provided services in accordance with the agreement’s terms, Defendant breached by failing to pay Plaintiff for fees and costs incurred on her behalf, and Plaintiff has thus been damaged in the amount of $28,533.76 in unpaid attorney fees and costs, plus interest in the amount of $8,108.68. (UMF Nos. 1-17; Dack Decl., ¶¶ 2-18, and App. Exhs. 1-3.) Plaintiff has thus met its initial burden on summary judgment. The burden thus shifts to Defendant to show by admissible evidence that a triable issue of material fact exists as to the claim or defense thereto. (Code Civ. Proc., § 437c(p)(1).) Here, however, she has failed to meet that burden, as she has not filed any Opposition whatsoever to this motion.

Plaintiff is thus entitled to judgment on its breach of contract claim. The other causes of action stated (for Account Stated, Open Book Account, and Reasonable Value of Services Rendered) are all based on the same factual claims and seek the same relief. Summary judgment is granted in favor of Plaintiff, and the request for summary adjudication of issues is deemed moot.