2011-00101039-CU-PN

Mark Fields vs. John C Miller

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

Filed By: Haro, Summer D.

*** If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the 12 Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the
moving cross-defendants and/or the Additional Material Facts offered by cross-
complainant will be addressed at the hearing and the parties should be prepared
to point to specific evidence which is claimed to show the existence or non-
existence of a triable issue of material fact. ***

Plaintiffs/Cross-Defendants Mark Fields and Adelyn Fields’ (“Fields”) motion for
summary judgment, or in the alternative, summary adjudication of Defendant/Cross-
Complainant John C. Miller, Jr. and Law Offices of John Miller’s (“Miller”) Cross-
Complaint is ruled upon as follows.

The Field’s request for judicial notice is granted. In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
th
(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4 543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

This is a legal malpractice lawsuit in which the Fields allege that Miller represented
them in an underlying construction defect action. The Fields allege that in the course of
the underlying action, Miller concealed information from them, including, the reason a
sanctions motion was filed against them, that certain claims were not cognizable, and
that necessary parties were not named. Miller thereafter filed a cross-complaint
against the Fields for breach of contract, fraud: intentional misrepresentation, and
fraud: promise without intent to perform.

The Fields’ objections to evidence are ruled upon as follows:

Overruled: 1, 2, 3, 4 (contents of lost documents may be proven by secondary
evidence. See Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal. 4th
1059), 5, 6, 7, 8, 9, 10

Breach of Contract

The Fields moves for summary adjudication of the breach of contract cause of action
on the grounds that it is barred by the two-year statute of limitations for breach of oral
contract. The Fields argue that although the cross-complaint alleges a written
contract, Miller has been unable to produce a copy of the written contract. The Field’s
Separate Statement states that they “did not write, sign or deliver any document to
Miller containing the statements or provisions alleged in paragraphs 11, 16 and 23 of
the Cross-Complaint.” (The Fields’ Separate Statement, UMF, 9.) Thus, according to
the Fields, Miller’s cause of action can only be based on an oral contract.

In opposition to the motion, Miller concedes that he has been unable to locate a copy
of the contract, but argues that the actual written contract is not necessary because he
has presented evidence that a contract existed. Miller states that prior to the
commencement of his legal representation of the Fields, the Fields agreed that Miller
would represent them on an hourly basis. (Declaration of John C. Miller Jr. (“Miller
Decl.”), ¶ 3, see Miller’s Separate Statement in Opposition, UMF 9.) Miller presented
the Fields with an hourly fee agreement contract, which the Fields signed. (Id.) The
contract included the terms identified in paragraphs 11, 16, and 23 of the Cross-
Complaint. (Id. ¶ 6.) After the contract was signed, Miller signed the contract. (Id. ¶
4.) Miller also attaches a December 29, 2006 letter to the Fields confirming receipt of the fully executed contract and a June 8, 2011 letter demanding arbitration pursuant to
the arbitration provision in the contract. (Id. ¶¶5, 15, Exs. A, D.)

“[W]hether a certain or undisputed state of facts establishes a contract is one of law for
the court…. On the other hand, where the existence and not the validity or construction
of a contract or the terms thereof is the point in issue, and the evidence is conflicting or
admits of more than one inference, it is for the jury
or other trier of the facts to determine whether the contract did in fact
exist,….’ [Citation.]” (Robinson & Wilson, Inc. v. Stone (1973) 35 Cal. App. 3d 396, 407;
Alexander v. Codemasters Group Limited (2002) 104 Cal. App. 4th 129, 141.) “If there
is a conflict in the evidence and inferences drawn from that evidence, then we must
view that evidence and inferences in the light most favorable to [non-moving party].” (
th
Alexander, supra , 104 Cal.App.4 142.)

Here, Miller has demonstrated a triable issue of material fact as to whether a written
contract existed and whether the Fields signed the contract which included the terms
identified in paragraphs 11, 16, and 23 of the Cross-Complaint. Moreover, even if the
four year statute of limitations for written breach of contract applies, the action would
not be barred. Here, the Fields argue that as of September 2008 Miller knew that his
fees and costs were not being paid and that there was a breach of contract. Miller,
however, filed his cross-complaint on July 18, 2012 – less than four years later.

Accordingly, the motion for summary adjudication is DENIED.

Fraud: Intentional Misrepresentation and Promise Made without Intent to Perform

The Fields move for summary adjudication on these two causes of action on the
grounds that : (1) they are barred by the applicable three year statute of limitations,(2)
there is an absence of misrepresentation because there is no written contract, and (3)
lack of causation. Adelyn separately moves for summary adjudication on these two
causes of action on the grounds that she did not make any representations to Miller.

The Field’s separate statement for each of the above arguments includes UMF No. 9
which states that they “did not write, sign or deliver any document to Miller containing
the statements or provisions alleged in paragraphs 11, 16 and 23 of the Cross-
Complaint.” However, as noted above, Miller has demonstrated a triable issue of
material fact as to UMF No. 9.

Accordingly, the motion for summary adjudication is DENIED.

Having denied the motions for summary adjudication, the motion for summary
judgment is also DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.