Judge Elaine W. Mandel, Case 21SMCV00674 2022-08-24 Tentative Ruling

Judge: Elaine W. Mandel, Case: 21SMCV00674, Date: 2022-08-24 Tentative Ruling

Case Number: 21SMCV00674 Hearing Date: August 24, 2022 Dept: P

Tentative Ruling
Mashian Law Group v. Miles et al., Case No. 21SMCV00674
Hearing Date August 24, 2022
Defendant Miles’ Motion for Summary Judgment

Plaintiff Mashian Law Group, APC (“MLG”) alleges its former client defendant Miles owes legal fees. Miles argues MLG’s retainer agreement lacked consideration, since MLG previously promised to provide legal services to Miles under a separate contract with Viridity. Miles argues this renders the retainer agreement unenforceable, since an already existing legal obligation cannot serve as consideration for a new agreement.

Miles moves for summary judgment and/or adjudication as to the breach of contract, account stated and quantum meruit claims. He also moves for summary adjudication of the cause of action for promissory estoppel on the grounds that a written retainer agreement exists, precluding a cause of action based on an implied contract.

To obtain summary judgment or adjudication, defendant must “show that the plaintiff cannot establish at least one element of the cause of action.” See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826, 853; Mitchell v. United National Ins. Co. (2005) 127 Cal. App. 4th 457. “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” Ibid. “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” Mitchell at p. 467.

Until defendant meets this evidentiary burden, plaintiff has no burden to present evidence showing a triable issue of fact. See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [the Hawkins court quoted Duckett saying that “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].

MLG Evidentiary Objections OVERRULED

Breach of Contract
A promise to do “what one is already legal bound to do cannot be consideration” for a contract. Dole Foods Co., Inc. v. Superior Court (2015) 242 Cal.App.4th 894, 911.

Miles argues MLG’s discovery responses show it promised to provide Miles legal representation in the implied Viridity agreement, executed November 20, 2019, one day before the written retainer agreement between Miles and MLG. Miles Separate Statement (MSS) 1. Miles argues the legal services agreement was not supported by consideration, because MLG was already obligated to provide legal services to Miles under the implied Viridity agreement.

Miles fails to meet his initial summary judgment burden. The motion is based on the argument that the alleged Viridity agreement antedated the promises MLG made to Miles in the November 21, 2019 legal services agreement, and that consideration for the Viridity agreement was the same as the consideration subsequently promised under the legal services agreement.

This argument is based in part on allegations supporting the now-dismissed fifth cause of action for breach of implied contract in the first amended complaint. MLG separate statement ¶2. It is also based on plaintiff’s response to Special Interrogatory No. 1, in which MLG admits its agreement to provide legal services in connection with the Miles retainer agreement “was included in the consideration provided to Viridity.” Miles does not establish that the existence of the implied Viridity agreement negates the Miles agreement.

Although both agreements rest on the same consideration from MLG, Miles does not establish that the implied Viridity agreement predated the Miles agreement. The FAC does not allege Viridity paid the retainer before the retainer agreement with Miles was formed, only that it “scheduled” a wire transfer on November 20, 2020. Further, MLG provides evidence that payment was not complete until November 22, 2019, one day after the retainer agreement with Miles was executed. MLG exhibit 17. MLG did not need to present this evidence because Miles failed to clear its initial burden.

A reasonable reading of the complaint suggests that both the retainer agreement and the implied Viridity agreement essentially amounted to a single transaction, and both Viridity and Miles agreed to pay, jointly and separately, for MLG’s legal services. Miles failed to show that MLG cannot prove existence of valid consideration supporting the legal service agreement. DENIED.

Quantum Meruit
The MSJ to this cause of action is based on the same allegations as the MSJ to the breach of contract claim and fails for the reasons stated above. DENIED.

Common Counts
Miles argues MLG alleged existence of an explicit written agreement, preventing a cause of action based on an implied agreement. As MLG notes, this cause of action does not deny that an explicit written agreement existed, but that an oral or implied agreement also existed, which may be enforceable even if the written retainer agreement is not. Mashian decl. ¶¶12-15. DENIED.