2016-00197145-CL-CL

Continental Credit Control vs. Viktor Andrejev Zukova

Nature of Proceeding: Motion for Summary Judgment

Filed By: Tarasenko, Kirill B.

Defendant Yekaterina Andrejeva Zukova’s (“Defendant”) motion for summary judgment is DENIED.

Factual and Procedural Background

Plaintiff Continental Credit Control (“Plaintiff”), a collection agency, filed a Complaint on July 11, 2016, against Defendant and her husband, Viktor Zukova, alleging they were responsible for paying for an MRI that was performed on Mrs. Zukova’s minor daughter in March of 2013. Plaintiff alleged causes of action for breach of contract and a common count for open book account.

Plaintiff dismissed Mr. Zukova as a defendant on April 27, 2017.

On September 28, 2017, the Court issued an order granting Defendant’s unopposed motion to deem matters admitted and deeming Defendant’s requests for admissions admitted.

Based on those admissions, Defendant moves for summary judgment on the grounds that Plaintiff has admitted a contract must either be written or oral to be binding, there was no signed contract or written agreement for the services sued upon by Plaintiff, and the statute of limitations for any oral contract for the services alleged to have been performed has run.

Summary Judgment Standard

In evaluating a motion for summary judgment or summary adjudication the Court

engages in a three step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, at 853-855.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (C.C.P. § 437c(p); see, generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.)

Discussion

Plaintiff has alleged two causes of action: breach of contract and common count for open book account.

Defendant moves for summary judgment only and, in support, presents eight UMFs. Specifically, Defendant presents evidence that Plaintiff, by virtue of failing to respond to Defendant’s RFAs, has admitted the following:

The statute of limitations for any oral contract for the alleged services performed on March 13, 2013, has run;

A contract must either be written or oral to be binding;

Plaintiff does not have a contract signed by Defendant or anyone for the alleged services performed on March 13, 2013;

Plaintiff does not have lien signed by Defendant for the alleged services; and

Plaintiff is seeking to make Defendant a surety for another person’s obligation and attempting to force Defendant to act as a surety without a written agreement is contrary to the Statute of Frauds. (UMFs 1-8.)

Although Defendant also references in her argument additional RFAs that were deemed admitted, Defendant has failed to present those in her separate statement of material facts. Accordingly, the only evidence before the Court constitutes the eight admissions Defendant has presented in her separate statement as UMFs 1-8.

Defendant contends the foregoing warrants judgment in her favor because it establishes the breach of contract claim is barred by the statute of limitations. Due to the format in which Defendant presented her motion, the Court is unable to grant summary judgment. Defendant only moves for summary judgment, rather than summary adjudication of each cause of action, yet Defendant has failed to address Plaintiff’s cause of action for common count for open book account, whatsoever.

To establish this common count claim, plaintiff must plead and ultimately prove all of the following: (1) that plaintiff and defendant had (a) financial transaction(s); (2) that plaintiff kept an account of the debits and credits involved in the transaction(s); (3) that defendant owes plaintiff money on the account; and (4) the amount of money that defendant owes plaintiff. (CACI 372; Code Civ. Proc. § 337a.)

Defendant has not addressed any of the elements of Plaintiff’s second cause of action or how Plaintiff does not possess and cannot reasonably obtain evidence necessary to establish an element of her claim. Accordingly, as Plaintiff has only moved for summary judgment, Plaintiff has failed to meet her burden and the burden never shifted to Defendant to create a triable issue of material fact.

To further explain this rationale, a court may not grant summary adjudication when the

only motion noticed for hearing is one for summary judgment. (Gonzales v. Superior
Court (1987) 189 C.A.3d 1542; Maryland Cas. Co. v. Reeder (1990) 221 C.A.3d 961,
974, footnote 4). The notice of motion must state in writing the “grounds upon which it
will be made.” (Code Civ. Proc., § 1010) Only the grounds specified in the notice of

motion may be considered by the trial court. (Taliaferro v. Riddle (1959) 167
Cal.App.2d 567, 570; Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.) As noted in
Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (1986) §§ 10:21,
10:43, “If a party desires adjudication of particular issues or subissues, that party must
make its intentions clear in the motion. . . .” (Homestead Savings v. Superior Court,
(1986), 179 Cal.App.3d 494, 498.) There is a sound reason for this rule: “. . . the
opposing party may have decided to raise only one triable issue of fact in order to
defeat the motion, without intending to concede the other issues. It would be unfair to
grant a summary adjudication order unless the opposing party was on notice that an
issue-by-issue adjudication might be ordered if summary judgment was denied.” (Weil
& Brown, supra, at § 10:44.)

When the notice of motion seeks only summary judgment, the presence of any triable issue requires denial of the motion. The Court may not summarily adjudicate claims or defenses as to which no triable issue was raised unless requested in the notice of motion. (Weil & Brown, supra, at § 10:88.)

Conclusion

Defendant’s motion for summary judgment is, therefore, DENIED.