Case Number: BC617838 Hearing Date: June 04, 2019 Dept: 2

Motion for Summary Adjudication by Defendant, Cross Defendant, Leor Shabtai, filed on 2/1/19 is DENIED. Cross Defendant has not established that he is entitled to judgment in his favor of the allegations of the Cross Complaint for breach of contract. Cal. Code Civil Procedure § 437c(p)(2).

Cross Defendant moves for “summary adjudication,” but in effect, seeks judgment in his favor of the entire Cross Complaint for breach of contract, contending that Cross Complainant cannot establish the essential elements of breach of contract. Motion, 2:4-6.

Cross-Defendant’s burden on summary judgment is to challenge all theories of liability raised by the Cross Complainant, and “must define all of the theories alleged in the [cross-complaint] and challenge each factually.” Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714

In analyzing a motion for summary judgment, the court applies a 3-step analysis that requires identification of the issues framed by the pleading. The motion must respond to these allegations.

Identify the issues framed by the pleading.

Has the moving party established facts which negate the opponents’ claim

Has the opposing party controverted those facts. Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.

The Cross Complaint filed by Richard Nalbandian against Leor Shabtai alleges that the parties “entered into an oral agreement to settle this lawsuit in or about August 2016. The material terms of the settlement agreement were that Cross Defendant, Leor Shabtai would execute a Release resolving all claims of Cross Complaint, Leor Shabtai arising out of the accident of September 16, 2015, in exchange for $250,000.” Cross Complaint, ¶ 17.

The Cross Complaint further alleges that Mr. Shabtai breached the settlement agreement by failing to perform under the settlement agreement, by failing and refusing to execute a Release, by continuing to assert claims against Mr. Nalbandian for injuries arising out of the 9/16/15 accident, and by asserting a claim of negligent entrustment against Mr. Nalbandian, and by claiming Mr. Nalbandian should pay Mr. Shabtai amounts greater than $250,000. Cross Complaint, ¶ 19.

The motion is defective in that it does not negate the existence of an oral agreement as alleged in the Cross Complaint.

Cross Defendant’s separate statement does not clearly negate any element of a claim for breach of an oral contract as alleged by Cross Complainant. The separate statement must identify each cause of action, claim, issue of duty, or affirmative defense sought to be adjudicated. Cal. Rules of Court, Rule 3.1350(d).

Cross Defendant claims that the release or settlement document tendered by Allstate was not signed. Fact 12. This avoids the clear allegations of the Cross Complaint, which alleges the breach of an oral agreement.

In support of Fact 13, Cross Defendant claims, based on his sole declaration, that he did not authorize his counsel to settle his claims for negligent entrustment against Richard for the $250,000 policy limits. Nor did Mr. Shabtai agree to settle his claims for $250,000 policy limits.

The court strictly construes the moving party’s facts and liberally construes the opposing party’s facts. All doubts are resolved in favor of the opposing party. Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal. 2d 412, 417.

The motion may be denied in the discretion of the court “if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” Cal. Code Civil Procedure § 437c (e).

Accordingly, the court exercises its discretion under Cal. Code Civil Procedure § 437c(e) to deny the motion, as a material fact to the existence of an agreement, whether written or oral, is Cross Defendant’s consent thereto, which he denies based solely on his declaration.

Even if the court accepted Cross Defendant’s sole declaration, Cross Complainant submits admissible evidence of an oral agreement to settle by DeLynn M. Gill, an Agent for Allstate Insurance, who was involved in negotiating the settlement with Mr. Yamin, Cross Defendant’s prior counsel. DeLynn Gill ¶ 2.

She provides the material terms of the agreement, Cross Complainant’s compliance thereto, and her contention that Mr. Yamin had the authority to settle Mr. Shabtai’s claim. See Declaration of DeLynn Gill. Cross Defendant’s objections thereto are OVERRULED.

Accordingly, Fact 13 is disputed.

Nalbandian’s evidentiary objections to Shabtai’s evidence are meritorious and also warrant denial of the motion.

Pursuant to Cal. Code Civil Procedure § 437c(q), when the court grants or denies a motion for summary judgment or summary adjudication, it need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion are preserved for appellate review.

Cross Defendant has not provided foundation or authentication for the documentary evidence consisting of correspondence between Steven Yamin (settlement demands) and a representative of Allstate Insurance.

Objections #3-7 are sustained.

Accordingly, Facts 7-11 are not established by admissible evidence.

Shabtai has not established that his subsequent settlement with Jason Shabtai operated as a novation, to extinguish an agreement between him and Richard Nalbandian, assuming one existed. However, a “novation requires an express release by the party entitled to enforce a promise.” Vallely Investments, L.P. v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 832.

The material facts do not establish an express release by Richard Nalbandian to enforce a promise.

A “novation” is “the substitution of a new obligation for an existing one.” Cal. Civil Code § 1530. It is made by the substitution of a new obligation between the same parties with intent to extinguish the old obligation. Cal. Civil Code § 1531.

Every mode of novation involves an intent to extinguish or release the old obligation or to transfer the rights of a new creditor in place of the old one. Cal. Civil Code § 1531.

Cross Defendant’s material facts to not establish the required intent.

Moving party is ordered to give notice.