Case Name:   Selma Martinez v. Gina Lukas, et al.

Case No.:       1-13-CV-246913

Selma Martinez (“Plaintiff”) moves for summary judgment on the ground that there is no triable issue as to any material fact in this action.  In the alternative, Plaintiff moves for summary adjudication of (1) her claim for common count of account stated and (2) her claim for breach of contract.

Plaintiff’s request for judicial notice is GRANTED.  (Evid. Code, § 451, subd. (e).)

On summary judgment, Plaintiff has the burden to submit evidence supporting the amount of damages she seeks in this action.  (See Pajaro Valley Water Mgt. Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1106 [to prevail on a motion for summary judgment where damages are an element of the plaintiff’s action, the plaintiff must meet its initial burden of production not only with respect to the fact of damages, but also with respect to the amount of damages]; Dept. of Indus. Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1097 [summary judgment inappropriate where issues of the calculation of damages remain to be determined].)  Here, Plaintiff’s complaint states that she seeks damages in the amount of $22,939.02 plus 10% interest (see Complaint, p. 3, ¶ BC-4, p. 4, ¶ CC-2), while her motion for summary judgment requests judgment in the amount of $25,277.02, including $22,277.02 attributable to the balance on Plaintiff’s account (see Mot., pp. 8-9).  However, it is entirely unclear where either of these figures is derived from.  Plaintiff alleges a debt of $24,277.02.  Her declaration attaches a March 13, 2013 email to Defendant, which in turn attaches a spreadsheet assertedly showing “an accounting of the monies owed, and still owing.”  (Martinez Decl., ¶ 13, Ex. 3.)  The spreadsheet shows a series of payments and charges between September 2012 and March 2013, with an ending balance of $22,948.56.  (Id.)  In addition, Plaintiff declares that she has received “$1,008.00 in restitution for the money loaned, and account stated” “[t]o date.”  (Martinez Decl., ¶ 19.)  This is inconsistent with the $2,062 in payments reflected on the spreadsheet, and neither amount is consistent with the balance of $22,277.02 asserted by Plaintiff in her summary judgment motion, which is an even $2,000 less than the initial alleged balance.

Consequently, Plaintiff has failed to meet her burden with respect to the amount of damages that she claims.  Accordingly, Plaintiff’s motion for summary judgment or, alternatively, summary adjudication is DENIED.

Even if Plaintiff could resolve the issue with her damages calculation, Defendant has established triable issues of material fact with respect to both of Plaintiff’s claims.  Defendant’s statements that she did not see or reply to Plaintiff’s email or agree that she owed Plaintiff the amount stated therein (Defendant’s UMF Nos. 3-6; Lukas Decl., ¶ 10), which are consistent with her discovery responses (see Lukas Decl., ¶¶ 11-13, Exs. E-J), combined with the fact that it is not clear from the record that the email account from which the reply was sent was Defendant’s, are adequate to establish triable issues of material fact concerning Defendant’s agreement to the account stated and contract alleged by Plaintiff.

Plaintiff’s objections to evidence submitted with her reply brief are OVERRULED given that they do not comply with California Rules of Court, rule 3.1352.

Plaintiff’s request for judicial notice submitted with her reply brief is DENIED given that Plaintiff does not explain the relevance of the subject documents.