17-CLJ-00637 KC FUNDING, LLC VS. BITA IMANI, ET AL.

KC FUNDING, LLC BITA IMANI
JOHN W. HOWARD PRO/PER

KC FUNDING, LLC‘S MOTION FOR SUMMARY ADJUDICATION TENTATIVE RULING:

The Motion of Plaintiff KC Funding, LLC (“Plaintiff”) for Summary Adjudication to the First Cause of Action for Breach of Contract, is CONTINUED to October 30, 2019 at 9:00 a.m. in the Law and Motion Department.

For purposes of summary adjudication, a plaintiff has met its burden of showing that there is no defense to a cause of action if that party has proved each element of a cause of action to entitle the party to judgment on the cause of action. (C.C.P. § 437c(p)(1).) Once the plaintiff has met its 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. (Ibid.)

Plaintiff presents evidence to establish all of the elements of the First Cause of Action for Breach of Contract. (See Plaintiff’s Undisputed Material Facts nos. 1-20, 25.) As such, Plaintiff has met its burden of showing that there is no defense to this cause of action. (See C.C.P. § 437c(p)(1).)

Thus, the burden shifts to Defendant Bita Imani (“Defendant”) to show that a triable issue of one or more material facts exists as to the cause of action or an affirmative defense thereto. Plaintiff points out that Defendant has failed to file a separate statement in response to Plaintiff’s Separate Statement, and asks the court to grant the motion on this ground. (See C.C.P. §437c(b)(3) [“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed.”].) Failure to comply with this separate statement requirement may constitute a sufficient ground, in the court’s discretion, for granting the motion. (Ibid.) Instead of granting Plaintiff’s motion based on failure to comply with this requirement though, the court instead CONTINUES the motion for Defendant to file and serve a separate statement that responds to each of the material facts in Plaintiff’s Separate Statement. (See Cal. Rules of Court Rule 3.1350(h), Format for separate statements.)

Furthermore, it appears that evidence to oppose this motion may exist, but has not been presented. Defendant has asserted mitigation of damages as an affirmative defense. (See Plaintiff’s Request for Judicial Notice, Exh. 3.) Defendant indicates that she wants to take Ms. Burke’s and Ms. Barbie’s depositions to see if Plaintiff held the spot for Defendant’s child open and therefore was harmed financially. As such, it appears that Defendant may be able to obtain evidence to raise a triable issue of material fact as to her mitigation of damages defense. Although Plaintiff asserts that mitigation of damages is not a defense based on Payne v. Pathe Studios (1935) 6 Cal.App.2d 136, Payne is distinguishable because it involved a contract for hire that did not require all of the actress’ time and therefore did not preclude the actress from being employed elsewhere. Accordingly, this motion is also CONTINUED to allow Defendant to conduct discovery on this issue through such depositions. Defendant should note that she must comply with the Code of Civil Procedure in noticing their depositions.

Defendant is to file and serve her separate statement, and any evidence obtained to oppose this motion, by October 15, 2019. Defendant is directed to review Code of Civil Procedure sections 437c and 2015.5, and Cal. Rules of Court Rule 3.1350, before filing and serving any further papers.

Plaintiff may file and serve any reply by October 24, 2019.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.