Case Name: Faridnia v. Yip, et al.
Case No.: 18CV329368

After full consideration of the evidence submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:

According to the allegations of the second amended complaint (“SAC”), on September 6, 2017, plaintiff Jahan Faridnia (“Plaintiff”) is a licensed contractor who entered into a construction agreement with defendant Gina Yip (“Yip” or “Defendant”) to construct a two bedroom unit and a detached three car garage for $270,000. (See SAC, ¶¶ 3, 19-20.) On May 8, 2018, Defendant breached the contract by unilaterally voiding the contract and demanding that Plaintiff accept a new contract with different and unconscionable terms. (See SAC, ¶ 21.) Defendant refused to provide any payment despite completion of the work performed. (See SAC, ¶¶ 22-23.) Plaintiff asserts that he has been damaged in excess of $135,000. (See SAC, ¶ 24.) On January 23, 2019, Plaintiff filed the SAC against Defendant, asserting causes of action for breach of contract and quantum meruit.

Plaintiff moves for summary judgment.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff’s burden on summary judgment

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact—one sufficient to support the position of the party in question that no more is called for. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question has been proved, and hence that there is no defense thereto. (Cal. Code Civ. Proc. § 437c.) Plaintiffs, who bear the burden of proof at trial by preponderance of evidence, therefore “must present evidence that would require a reasonable trier of fact to find the underlying material fact more likely than not—otherwise he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar, supra, 25 Cal.4th at p.851.)

Plaintiff fails to provide separate statement in violation of Code of Civil Procedure section 437c, subdivision (b)(1) and Rule of Court 3.1350

Code of Civil Procedure section 437c, subdivision (b)(1) states that a motion for summary judgment “shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.” (Code Civ. Proc. § 437c, subd.(b)(1).) “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Id.) Rule of Court 3.1350, subdivision (c) likewise states that “the motion must contain and be supported by… [a] separate statement of undisputed material facts in support of [moving party’s] motion for summary judgment….” (Rule of Court 3.1350, subd. (c).)

Here, Plaintiff fails to provide a separate statement. Accordingly, Plaintiff’s motion for summary judgment is DENIED on this basis.

Plaintiff also fails to meet his initial burden.

Even if the Court were to overlook Plaintiff’s failure to provide a separate statement, Plaintiff also fails to provide any admissible evidence. Plaintiff attaches a number of documents; however, there is no declaration and Defendant objects to the evidence on the grounds of hearsay, lack of foundation and lack of authentication. Defendant’s objections are SUSTAINED as to all of the documents. Again, section 437c states that “[t]he motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” Plaintiff has not requested that any matters be judicially noticed and has not supported his motion with any other such documents. Even if the Court were to consider Plaintiff’s documents, Plaintiff fails to establish any amount of damages, much less an amount in excess of $135,000. (See Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913 (stating that damages is an element for a breach of contract cause of action).) Accordingly, Plaintiff’s motion for summary judgment is also DENIED on this basis.

The Court shall prepare the Order.