Case Name: Flexer v. Do, et al.
Case No.: 17CV308660

This is an action for breach of contract. In mid-2000, defendants Trang Do aka Trang Meixner (“Do”) and Douglas Matsumoto (“Matsumoto”), approached plaintiff and Do’s sister, Dominique Flexer (“Plaintiff”), for a loan. (See Defs.’ separate statement of undisputed material facts in opposition to Pl.’s motion for summary judgment, undisputed material fact no. 1.) Plaintiff then lent Do a total of $450,000: $150,000 on October 25, 2000 and $300,000 on December 20, 2000. (See Defs.’ separate statement of undisputed material facts in opposition to Pl.’s motion for summary judgment, undisputed material fact nos. 4-7.) Do made payments on the loan between October 2002 and February 2004, sending approximately $11,500. (See Defs.’ separate statement of undisputed material facts in opposition to Pl.’s motion for summary judgment, undisputed material fact nos. 9-11.) Do also provided payments to Plaintiff in October and December 2016. (See Defs.’ separate statement of undisputed material facts in opposition to Pl.’s motion for summary judgment, undisputed material fact nos.12-14.)

Defendants move for summary judgment, or, in the alternative, for summary adjudication of each cause of action. Plaintiffs also move for summary judgment.

MOTIONS FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION

Defendants’ burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Plaintiff’s burden of proof for 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.)

There is a triable issue as to whether the causes of action against Defendants are barred by the statute of limitations.

Defendants assert that “the two-year statute of limitations for breach of oral contract commenced from the time of the loans between October and December 2000…the cause of action accrued with the inception of the obligations in October 2000 and December 2000. The two year statute of limitations for breach of oral contract expired in December 2002.” (Defs.’ memorandum in support of Defs.’ motion for summary judgment (“Defs.’ memo”), p.6:8-20.) Here, Defendants present evidence that demonstrate that Do made certain payments in October 2016 and December 2016. (Defs.’ separate statement in support of Defs.’ motion for summary judgment, undisputed material facts nos. 19, 21(second).) However, Defendants (and Plaintiff) also present evidence demonstrating that there is a triable issue of material fact as to whether Do acknowledged to owing a debt to Plaintiff as on January 9, 2017, she stated that they “agreed that [Defendants] would owe you total of $300,000.” (Do decl., exh. F; see also Kim decl., exh. G, pp. 34:4-12, 64:13-25, 66:15-17, 78:22-25, 80:1-10; Winters decl., exh. B, p.15:10.)

It is well established that acknowledgement of a debt barred by the statute of limitations vitalizes the debt for another statutory period and thus an action based on such debt is not barred by the statute of limitations. (See Southern Pacific Co. v. Prosser (1898) 122 Cal. 413, 416; see also Farrell v. Palmer (1868) 36 Cal. 187, 192; see also Easton v. Ash (1941) 18 Cal.2d 530, 535-536; see also Eilke v. Rice (1955) 45 Cal.2d 66, 73 (stating that “[t]be acknowledgment of a debt already barred by the statute gives rise to a new contract and a new cause of action dating from the acknowledgment”).) Moreover, there is additionally a triable issue as to whether the payments made in October and December 2016 constituted part payment. (See Kim decl., exh. G, pp. 34:4-12, 64:13-25, 66:15-17, 78:22-25, 80:1-10.) (See Young v. Sorenson (1975) 47 Cal.App.3d 911, 914 (stating that “part payment of a debt or obligation is sufficient to extend the bar of the statute”); see also Martindell v. Bodrero (1967) 256 Cal.App.2d 56, 59 (stating that “[a]s a general rule, part payment of a debt or obligation is sufficient to extend the bar of the statute”).) Accordingly, both Plaintiff’s and Defendants’ motions for summary judgment are DENIED.

Defendants’ motion for summary adjudication of the second cause of action

Defendants additionally assert that Plaintiff’s second cause of action for account stated lacks merit because there was no agreement between parties that the items of the account were true. (See Defs.’ memo, p.7:9-26.) However, the evidence is fairly clear that the parties initially agreed that Defendants would pay Plaintiff back for monies lent. Defendants appear to argue that the parties did not agree on the amount owed in 2016. However, this failure to agree as to this amount is not necessarily fatal to Plaintiff’s second cause of action. (See California Mill. Corp. v. White (1964) 229 Cal.App.2d 469, 478 (cause of action for account stated merely involves an agreement that an amount is due plaintiff).) Defendants cite to Leighton v. Forster (2017) 8 Cal.App.5th 467, 493 for the assertion that Plaintiff cannot demonstrate a cause of action for account stated because “[t]he incidental keeping of accounts pursuant to a contract cannot be used to extend the statute of limitations beyond the time it would otherwise run on the contractual obligation.” (Defs.’ memo, p.7:17-19.) However, for reasons already articulated, there is a triable issue as to the applicability of the statute of limitations. Accordingly, Defendants’ motion for summary adjudication of the second cause of action is also DENIED.

The Court did not take judicial notice of the Plaintiff’s requested documents as they do not affect the Court’s ruling.

The Court shall prepare the Order