2012-00132121-CU-CL

Investment Retrievers Inc vs. Joseph Deaser

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Fletterick, Jeffrey

Plaintiff Investment Retriever, Inc.’s (“IRI”) motion for summary judgment against
Defendant Joseph Deaser, IV (“Deaser”) is UNOPPOSED but is DENIED. Treating
the motion as one for summary adjudication in the alternative, the motion is GRANTED
in part and DENIED in part.

This case arises from Deaser’s alleged breach of a credit card agreement with IRI’s
predecessor in interest. IRI has pleaded causes of action for breach of contract,
account stated, open book account and breach of guaranty.

The court previously made a tentative ruling denying IRI’s motion. The tentative denial
was based on IRI’s failure to produce evidence that, after the court granted IRI’s
motion to deem admitted certain requests for admission, Deaser failed to serve
substantially compliant responses prior to hearing. At oral argument, the court granted
IRI’s counsel’s request to submit a declaration establishing this fact. IRI filed such a
declaration on October 30, 2013, and the court has considered the declaration in
making the instant ruling.

Breach of Contract

Summary adjudication is GRANTED.

The elements of breach of contract are “(1) the existence of the contract, (2) plaintiff’s
performance or excuse for nonperformance, (3) defendant’s breach, and (4) the
resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51
Cal.4th 811, 821 [citation omitted].) IRI has produced evidence demonstrating the
nonexistence of any triable issue of material fact as to each of these elements. (See
Undisputed Material Facts (“UMF”) 1-9; Supp. Fletterick Decl., ¶ 5.) Thus, the burden
of production shifts to Deaser.

Because Deaser has not submitted any evidence, and has not otherwise opposed the
motion, he has not met his responsive burden. Hence, IRI is entitled to adjudication as
a matter of law.

Account Stated

Summary adjudication is GRANTED.

The elements of account stated are “(1) previous transactions between the parties
establishing the relationship of debtor and creditor; (2) an agreement between the
parties, express or implied, on the amount due from the debtor to the creditor; (3) a
promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1962) 271 Cal.App.2d 597, 600.) IRI has produced demonstrating the
nonexistence of any triable issue of material fact as to each of these elements. (See
UMF 1-9; Supp. Fletterick Decl., ¶ 5.) Thus, the burden of production shifts to Deaser.

Because Deaser has not submitted any evidence, and has not otherwise opposed the
motion, he has not met his responsive burden. Hence, IRI is entitled to adjudication as
a matter of law.

Open Book Account

Summary adjudication is GRANTED.

The elements of open book account are that (1) That the parties had financial
transaction(s); (2) the plaintiff kept an account of the debits and credits involved in the
transaction(s); (3) the defendant owes the plaintiff money on the account; and (4) the
amount of money that the defendant owes. (See CACI Instr. No. 372 [collecting
cases].) IRI has produced demonstrating the nonexistence of any triable issue of
material fact as to each of these elements. (See UMF 1-9; Supp. Fletterick Decl., ¶ 5.)
Thus, the burden of production shifts to Deaser.

Because Deaser has not submitted any evidence, and has not otherwise opposed the
motion, he has not met his responsive burden. Hence, IRI is entitled to adjudication as
a matter of law.

Breach of Guaranty

Summary adjudication is DENIED.

In advancing its motion for summary judgment, IRI appears to have overlooked its
breach of guaranty cause of action. There is no mention of this cause of action in the
moving memorandum of points and authorities, and the separate statement does not
contain a fact establishing that Deaser made or breached a guaranty. Because IRI
has not demonstrated the nonexistence of any triable issue of material fact, it has not
met its initial burden of production, and summary adjudication is denied.

Judicial Notice

IRI’s request for judicial notice of court documents is GRANTED.

Conclusion

Summary adjudication of the first through third causes of action is granted. Summary
adjudication of the fourth cause of action is denied. Summary judgment is denied.

Pursuant to CRC 3.1312, IRI is directed to submit a revised formal order for the court’s
signature.