Judge Elaine W. Mandel, Case 22SMCV00423 2023-05-05 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV00423, Date: 2023-05-05 Tentative Ruling

Case Number: 22SMCV00423 Hearing Date: May 5, 2023 Dept: P

Tentative Ruling

Greenspoon Marder, LLP v. Crimson & Black, LLC, Case No. 22SMCV00423

Hearing Date May 5, 2023

Plaintiff’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

Plaintiff law firm Greenspoon Marder (GM) alleges it provided legal work for defendant Crimson & Black (CB), for which CB failed to pay. GM alleges its representation agreement was established via an oral contract and confirmed via emails. GM argues CB failed to pay and provides no evidence of an affirmative defense. GM moves for summary judgment or adjudication on breach of contract, open book account, account stated and quantum meruit claims.

Defense Objections to Fante declaration: Objection 1 OVERRULED, objection 2 SUSTAINED (lack of personal knowledge) objection 3 SUSTAINED (hearsay, lack of personal knowledge) objections 4-12 OVERRULED.

Defense Objections to Ross declaration: Objection 1 OVERRULED, Objection 2 SUSTAINED (lack of personal knowledge) objection 3 OVERRULED.

GM relies primarily on the declaration and exhibits from COO Jennifer Fante, who reviewed and authenticates attached exhibits. Fante declaration ¶1. Fante states in August 2019 GM partner Sander Zagzebski agreed with CB manager Francisco Turner that GM would represent CB. Fante declaration ¶3. On September 25, 2019 Zagzebski emailed an engagement letter to Turner confirming CB would be GM’s client. Fante declaration ¶6, exhibit C.

CB makes evidentiary objections regarding the Fante declaration. Fante’s statement that Zagzebski and Turner formed an oral contract is inadmissible as hearsay and lacking in personal knowledge. Neither Zagzebski nor Turner provides a declaration regarding their communication. Fante does not allege she was present during the conversation or state the basis of her personal knowledge of meeting’s content. GM does not suggest any hearsay exception that would allow admission of a third-party, out-of-court discussion between Zagzebski and Turner. GM fails to prove Zagzebski and Turner formed an oral contract for legal services in 2019.

Fante alleges the terms of this oral contract were later memorialized in an engagement letter to Zagzebski sent in September 2019. Fante declaration ¶6, exhibit C. The letter is unsigned by Zagzebski. The court cannot conclude CB agreed to the terms of an engagement letter that was never executed. The engagement letter and Fante’s testimony regarding the conversation are the only evidence GM provides of a contract. Since neither is sufficient, plaintiff fails to carry its burden as to breach of contract.

Plaintiff also fails to provide sufficient evidence to support its non-contract causes of action for open book account, account stated and quantum meruit.

GM argues the invoices (Fante decl., exhs. D, G, H, I and J) prove existence of the alleged debt, even absent an explicit contract. The invoices, plaintiff argues, establish liability under the account stated, open book account and quantum meruit causes of action. A cause of action for open book account requires a contract or fiduciary relationship between the parties. Cal. Code of Civ. Proc. §337a. For the reasons stated, plaintiff failed to prove either prerequisite.

GW argues CB’s failure to object to the invoices proves as a matter of law that the amounts stated are accurate, which is sufficient to carry its burden as to the account stated cause of action. Fante decl. ¶¶6-9. While failure to respond to a request for payment can be evidence of a debt’s validity, failure to object cannot create liability where the parties did not previously agree to the debt. George E. Trafton v. N.E. Youngblood (1968) 69 Cal.2d 17, 25-26. Fante has not provided sufficient evidence to show CB agreed to pay for legal services provided by GM. Plaintiff failed to meet its initial burden as to the account stated cause of action.

Finally, the term sheet and email from Turner (Fante decl., exhs A and B) are admissible business records and serve as evidence that GW did provide legal services to CB. However, they do not reference a rate CB agreed to pay for GW’s services or other contract terms. Exhibits A and B do not prove CB owes the debt claimed, either under contract or quasi-contract.

The Fante declaration and exhibits provide insufficient evidence to meet plaintiff’s initial burden. The other evidence – declarations of Ross and Nachimson – contain no direct evidence of an agreement or understanding between the parties regarding payment and likewise fail to carry plaintiff’s initial burden on summary judgment. DENIED.