Case Number: BC655676 Hearing Date: October 16, 2018 Dept: 47

Daniels, Fine, Israel, Schonbuch & Lebovits, LLP v. Larry Rabineau, et al.

MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY: Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP

RESPONDING PARTY(S): Plaintiff Jose Vasquez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges it agreed with Defendants to share the costs of litigation regarding representation of a client in a personal injury lawsuit. Defendants have allegedly failed to pay their share of costs as agreed.

Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP moves for summary adjudication.

TENTATIVE RULING:

Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP’s motion for summary adjudication is DENIED as to Issue No. 1 re: the first cause of action.

DISCUSSION:

Motion For Summary Adjudication

Plaintiff Daniels, Fine, Israel, Schonbuch & Lebovits, LLP moves for summary adjudication. Plaintiff need not disprove any affirmative defenses in order to meet its initial burden:

Plaintiff’s initial burden of proof in moving for summary judgment, however, did not include disproving any affirmative defenses asserted by defendants. As discussed ante, Code of Civil Procedure section 437c, subdivision (p)(1) provides a plaintiff meets the burden of showing there is no defense to a cause of action “if that party has proved each element of the cause of action.” Upon meeting that burden, the burden shifts to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c subd. (p)(1), italics added; see also Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853 [“summary judgment law in this state no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own cause of action. … All that the plaintiff need do is to ‘prove[] each element of the cause of action.’”]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 10:235, p. 10-89 (rev. # 1, 2006) [when plaintiff moves for summary judgment “[u]nlike former law, it is not plaintiff’s initial burden to disprove affirmative defenses and cross-complaints asserted by defendant”].) Hamburg v. Wal-Mart Stores, Inc., supra, 116 Cal.App.4th 497, 503, in which the defendants moved for summary judgment, does not hold otherwise.

Therefore, plaintiff met its initial burden of proof in moving for summary judgment against Lumbermens by carrying its burden of producing evidence establishing the elements of its claim for recovery on the payment bond without regard to potential affirmative defenses.

Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 564-65.

1. Issue No. 1: “There is no triable issue of fact as to Plaintiff’s First Cause of Action which alleges breach of oral contract.””

This is the only issue presented in the separate statement, and thus, is the only issue which will be considered by the Court.

CRC Rule 3.1350(b) provides:

If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.

(Bold emphasis and underlining added.)

CRC Rule 3.1350(d) provides:

The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

(Bold emphasis and underlining added.)

The first cause of action alleges that Plaintiff and Defendants entered into an oral contract pursuant to which Plaintiff agreed to assist Defendants in the litigation of the underlying personal injury case (the “Alcala case”) up to and including trial, and Plaintiff and Defendant agreed to each pay half the costs of the litigation. Complaint, ¶ 17. Plaintiff alleges that it performed each and every one of its obligations under the contract, but since March 17, 2016, Defendants have refused to pay their share o the costs advanced by Plaintiff and/or the outstanding invoices for trial costs. ¶ 18.

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388 [272 Cal.Rptr. 387], italics added.)

Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.

In April of 2014, Defendant Larry Rabineau contacted Plaintiff law firm, DFISL, to assist him in litigating the personal injury lawsuit filed in Maria Alcala v. Gerardo Jacquez Murga, et al., LASC Case No. PC054102. UF No. 4; Lebovits Decl., ¶ 5. Rabineau and Plaintiff entered into an agreement where each party would have equal responsibilities and the respective firms would equally split the costs and benefits of the litigation. UF No. 5; Lebovits Decl., ¶¶ 3, 5. Defendants admit they entered into a contract with Plaintiff. UF No. 7; Def’s Exh. 3 (Response to RFA No. 1).

Over 19 months, Plaintiff’s attorneys and Defendant Rabineau worked together on the prosecution of the Alcala case. UF No. 9; Lebovits Decl., ¶ 7. On numerous occasions, Defendant Rabineau confirmed his understanding that the costs were to be equally divided between the firms and that he would pay half the costs. UF No. 11; Lebovits Decl., ¶ 8. After an 18 day trial, a defense verdict was reached on March 17, 2016. UF Nos. 12, 13; Lebovits Decl., ¶ 9.

Plaintiff forwarded invoices from vendors and expert witnesses to Rabineau as they were received. UF No. 15; Lebovits Decl., ¶ 10. To date, Rabineau refuses to pay his share of the litigation expenses. UF No. 17; Lebovits Decl., ¶ 10. Defendants admit they did not perform their obligations under the contract and that they refuse to pay the amounts owed. UF No. 18; Lebovits Decl., ¶ 5; Def’s Exh. 3 (Responses to RFA Nos. 3 and 8). At no time did Rabineau question any of the billings or the retention of the experts. UF No. 19; Lebovits Decl., ¶ 8.

Including all late fees, financing and other charges, Defendants allegedly owe Plaintiff $130,748.95 exclusive of pre-judgment interest. UF No. 14; Lebovits Decl., ¶ 9.

The foregoing evidence is sufficient to demonstrate that Defendants have breached the alleged oral contract. The burden shifts to Defendant to raise a triable issue of material fact.

Here, Defendant cites evidence sufficient to raise a triable issue of material fact as to the terms of the oral agreement, i.e., whether Plaintiff, acting through Moses Lebovits, had the authority to hire experts without first obtaining Rabineau’s approval. Opp. Facts Nos. 10, 11, 15, 16, 17, 19; Rabineau Decl., ¶¶ 5, 6, 7.

It is axiomatic that contract interpretation is governed by the contracting parties’ intent. “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636; accord, Foley v. Interactive Data Corp., supra, 47 Cal. 3d 654, 677; Rest.2d Contracts, § 201, com. c, p. 84.) If the terms of the contract are ambiguous or uncertain, as is often true of implied contracts, determining the contract’s terms is a question of fact for the trier of fact (here the jury), based on “all credible evidence concerning the parties’ intentions . . . .” (Winet v. Price (1992) 4 Cal. App. 4th 1159, 1165 [6 Cal. Rptr. 2d 554]; accord, WYDA Associates v. Merner (1996) 42 Cal. App. 4th 1702, 1710 [50 Cal. Rptr. 2d 323]; see also BAJI No. 10.75 (8th ed. 1994).) Contract law provides an extensive set of rules to guide the jury in using the available evidence to construe the agreement. (See, e.g., Civ. Code, § 1635- 1657; 1 Witkin, Summary of Cal. Law, supra, Contracts, § 684-698, pp. 617-632.)

Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 112 (bold emphasis added).

Accordingly, the motion for summary adjudication as to Issue No. 1 re: the first cause of action is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: October 16, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court