Judge: Curtis A. Kin, Case: 21STCV24789, Date: 2022-12-13 Tentative Ruling

Case Number: 21STCV24789    Hearing Date: December 13, 2022    Dept: 72

MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

Date:              12/13/22 (9:30 AM)               

Case:              Physician Assistant, RTAL Inc. v. United Lab Serv. Inc. (21STCV24789)

TENTATIVE RULING:

Plaintiffs Physician Assistant, RTAL Inc and John Nicholas Bartolozzi’s Motion for Summary Judgment or, Alternatively, Summary Adjudication is GRANTED IN PART.

Plaintiffs Physician Assistant, RTAL Inc and John Nicholas Bartolozzi’s requests to take judicial notice of the Complaint and General Denial (Exhibits 1 and 2) are GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)  Plaintiffs’ requests to take judicial notice of the requests for admission propounded on defendants Anabelle Myers and United Lab Services Inc. and defendants’ unverified response to the requests for admission (Exhibits 3-5) are GRANTED, pursuant to Evidence Code § 452(h).  Plaintiffs’ request to take judicial notice of the order granting plaintiffs’ motions to deem matters admitted as to the requests for admission propounded on defendants (Exhibit 6) is GRANTED, pursuant to Evidence Code § 452(d).

The Court finds that plaintiffs are not entitled to summary judgment. “If a cause of action is not shown to be barred in its entirety, no order for summary judgment…can be entered.” (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975; see also CCP § 437c(c) [“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”].)  Here, plaintiffs’ motion fails to address the second cause of action for Breach of the Implied Covenant of Good Faith and Fair Dealing and the fifth cause of action for Unethical Business Practices in Violation of California Business & Professions Code § 17200. The notice of motion states that plaintiffs “waive” the second and fifth causes of action “for purposes of this Motion only.” (Mtn. at 2:11-14.) Because granting plaintiffs’ motion would not resolve the entire action, the motion for summary judgment is DENIED.

Plaintiffs contend they are entitled to summary adjudication with respect to the first cause of action for Breach of Contract, the third cause of action for Open Book Account, and the fourth cause of action for Account Stated.

With respect to the fourth cause of action for Account Stated, plaintiffs fail to cite the elements for this cause of action. (Cf. Mtn. at 3, fn. 2 [citing jury instruction for third cause of action for Open Book Account].) “A plaintiff…has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (CCP § 437c(p)(1).) Contentions unsupported by citation of authority will be disregarded. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368; Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.)  Because plaintiffs fail to cite the elements of an account stated cause of action, plaintiffs fail to prove each element of the fourth cause of action. Consequently, plaintiffs’ motion for summary adjudication with respect to the fourth cause of action for Account Stated is DENIED.

With respect to the first cause of action, the elements of a Breach of Contract cause of action are: (1) plaintiff and defendant entered into a contract; (2) plaintiff did all, or substantially all, of the things required under the contract; (3) all conditions required for defendant’s performance occurred; (4) defendant failed to perform under the contract; (5) plaintiff was harmed; and (6) defendant’s breach was a substantial factor in causing plaintiff harm. (CACI 303.)

Plaintiffs Physician Assistant, RTAL Inc and John Nicholas Bartolozzi establish that, in July 2020, they entered into an oral agreement with defendants United Lab Services Inc. and Defendant Anabelle Myers, whereby plaintiffs would administer COVID-19 tests in exchange for agreed upon payment. (UMF 2-4; Bartolozzi Decl. ¶¶ 5-7.) Plaintiffs performed under the agreement by providing clients with COVID-19 tests. (UMF 3; Bartolozzi Decl. ¶ 6.)  From July 31, 2020, to June 4, 2021, plaintiffs invoiced defendants a total of $293,559.18, pursuant to the oral agreement. (UMF 6-10, 12, 17, 20, 21; Bartolozzi Decl. ¶¶ 9-13, 15, 20, 23, 24.) Between November 25, 2020, and June 4, 2021, defendants paid plaintiffs a total of $216,910.60 for services rendered pursuant to the oral agreement. (UMF 11, 13-16, 18, 19, 22, 23; Bartolozzi Decl. ¶¶ 14, 16-19, 21, 22, 25, 26.) A total of $76,648.55, the difference between the total invoices and the total payments, remains unpaid. (UMF 25; Bartolozzi Decl. ¶ 29.)  Based on the foregoing, plaintiffs establish that defendants failed to pay plaintiffs $76,648.55 owed under the contract.

The burden thus shifts to defendants to demonstrate a triable issue of material fact. Despite proper service, defendants did not file any opposition demonstrating any triable issue of material fact as to plaintiff’s claim for breach of contract. Accordingly, plaintiffs are entitled to summary adjudication in their favor with respect to the first cause of action for Breach of Contract.

With respect to the third cause of action, the elements of an Open Book Account cause of action are: (1) plaintiff and defendant had financial transactions with each other; (2) in the regular course of business, plaintiff kept a written or electronic account of the debits and credits involved in the transactions; (3) defendant owes plaintiff money on the account; and (4) the amount of money defendant owes plaintiff. (CACI 372.)

Plaintiffs establish that from July 31, 2020, to June 4, 2021, they engaged in a series of financial transactions with defendants, whereby they invoiced defendants and defendants made payments toward those invoices. (UMF 6-23; Bartolozzi Decl. ¶¶ 9-26.) Plaintiffs also establish that defendants owe them $76,648.55 on the account. (UMF 25; Bartolozzi Decl. ¶ 29.)

However, plaintiffs fail to show that they kept a written or electronic account of the debits and credits involved in the transactions in the regular course of business. Plaintiffs present invoices issued to defendants (Bartolozzi Decl. Exs. 8-16), but they fail to present any evidence that they kept a written or electronic account of defendants’ payments in the regular course of business. While defendants present a table of invoices and payments (UMF 24; Bartolozzi Decl. ¶ 27), plaintiffs present no evidence regarding when the table was prepared. Plaintiffs’ points and authorities and separate statement do not address any written or electronic account of debits and credits.

Due to failure to address each element of an Open Book Account cause of action, plaintiffs are not entitled to summary adjudication on this cause of action.

The motion is GRANTED IN PART. The motion for summary adjudication with respect to the first cause of action for Breach of Contract is GRANTED. The motion is otherwise DENIED.