Judge Gail Killefer, Case Number: 23STCV14856, Date: 2024-09-12 Tentative Ruling

PROCEEDING: Motion for Summary Judgment or, in the alternative, for Summary Adjudication

TENTATIVE: Plaintiff’s Motion for summary judgment is denied. The Court GRANTS Plaintiff’s motion for summary adjudication as to the first cause of action for breach of contract and DENIES Plaintiff’s motion for summary adjudication as to the second cause of action for common count. Plaintiff to give notice.

On June 26, 2023, Eisner, LLP (“Plaintiff”), filed a Complaint against Patricia Rionda Del Castro (“Defendant”) alleging two causes of action for breach of contract and common counts. The Complaint asserts that Plaintiff agreed to provide attorney services to Defendant and Defendant failed to pay the sum of $51,922.39.

Default was entered against Defendant, but the Parties stipulated to vacate the entry of Default and for Defendant to file an answer. Plaintiff filed an answer on January 11, 2024. The Answer denies generally and specifically the allegations of the Complaint. Despite moving to vacate the default and filing an Answer, however, Defendant failed to respond to discovery.

On April 16, 2024, the court granted Plaintiff’s motion to deem its request for admission admitted against Defendant. Defendant now moves for summary judgment, or summary adjudication in the alternative. The motion is unopposed. The matter is now before the court.

motion for summary judgment, or summary ADJUDICATION in the ALTERNATIVE

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843 (Aguilar).) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (CCP, § 437c(f).)¿¿¿¿¿¿

A plaintiff moving for summary adjudication bears the burden of showing there is no defense to a cause of action. (CCP, § 437c(a).) The burden can be met if the plaintiff “has proved each element of the cause of action entitling the party to judgment on that cause of action.” (CCP, § 437c, (p)(1); see also Aguilar, supra, 25 Cal.4th at p. 853.) If the plaintiff meets this burden, it is up 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.” (CCP., § 437c(p)(1); see also S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.)

Defeating summary judgment requires only a single disputed material fact. (See CCP, § 437c(c) [a 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”] [italics added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿¿

The court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

1) Stipulation to (1) Vacate Entry of Default, (2) Vacate Hearing Date for Defendant’s Motion to Set Aside Default and Default Judgment, (3) Correct Name of Defendant, and (4) Deem Answer Filed and Order thereon, filed January 8, 2024, with Attachment A thereto [Answer of Patricia Del Castro to Complaint, deemed filed as of January 11, 2024 ], attached as Exhibit C.

2) Notice of Ruling, with attached Minute Order, on Plaintiffs Motion to Deem Request

3) Plaintiffs Complaint for: (1) Breach of Contract; and (2) Common Counts, Los 16 Angeles County Superior Court Case No.: 23STCV14856, filed on June 26, 2023, 17 attached as Exhibit E.

This action arises out of a fee dispute. On February 7, 2017, Plaintiff and Defendant entered into a written Engagement Agreement (“Agreement”) wherein Defendant agreed to pay Plaintiff for certain legal services.^{^[1]} (Eisner Decl. ¶3, Ex. A.) The Agreement provided that Defendant would be periodically billed for services and payment was expected upon receipt of a statement. (Ex. A, ¶ 4.) The Agreement further provided that Plaintiff would provide services to Defendant at rates ranging from $410 and $795 per hour for attorneys, between $235 and $350 per hour for paralegals, and between $50 and $100 per hour for Case Assistants. (Id.) The Agreement also provided that if fees and costs are not timely paid, Plaintiff may withdraw as counsel at any time. (Id.)

13. Attorney’s Fees. In the event that a dispute arises hereunder, the prevailing party in any litigation or arbitration shall be entitled to payment by the non-prevailing party of all of its attorneys’ fees, arbitrator fees, expert fees, and all costs and expenses of any sort incurred.

Plaintiff provided legal services and performed all obligations under the Agreement as evidenced by Plaintiff’s invoices sent to Defendant. (Eisner Decl., ¶ 5; Ex. F [RFA].) Commencing on or about March 7, 2017, through on or about March 25, 2020, Plaintiff periodically provided Defendant with invoices outlining the services performed, the attorney, paralegal, or Case Assistant performing the service, the hourly rate, the time spent performing the task, and the amount owed. (Ex. F [RFA of Plaintiff’s Invoices].) Defendant paid the invoices from March 7, 2017, to on or about May 31, 2022. (Eistern Decl., ¶ 7.) As of May 31, 2022, the total fees and costs were $299,441.31, with $247,441.31 in fees paid by Defendant. (Id.) After crediting all payments, the amount due and unpaid is $51,992.39, with 10% interest, as stipulated in the Agreement. (Id.; see also Ex. A, ¶ 4.) Plaintiff’s Exhibit B is a Chart of Fees, Costs, and Payments from March 7, 2017, to May 31, 2022, including a tabulation of accrued interest. (Eisner Decl., ¶ 7, Ex. B.)

Plaintiff asserts it was harmed when Defendant breached the Agreement by not paying the remainder of the costs and fees owed and Plaintiff expended considerable time and resources seeking to enforce the Agreement. (Eistern Decl., ¶ 11.) Although the Agreement provided for arbitration, Plaintiff served Defendant with a notice of the right to arbitrate the fee dispute but the deadline to seek arbitration passed. (Id., ¶ 10; Ex. A, ¶ 12.) Plaintiff asserts that exclusive of interest and attorney’s fees, Defendant owes the principal sum of $51,922.39. (Ex. B, F.)

The elements of a claim for breach of contract are: “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.)

Plaintiff has met his burden of showing the existence of a valid written Agreement between Plaintiff and Defendant, wherein Defendant agreed to pay the amount due in the invoices sent by Plaintiff. (Ex. A, F.) Defendant breached the Agreement when she stopped paying the invoices on or about May 31, 2022. (Ex. B.) Consequently, Plaintiff was damaged and is owed $51,999.39 plus interest, for legal services rendered. (Eisner Decl., ¶¶ 7-9, Ex. B.)

The burden shifts to Defendant to show triable issues of fact exist that preclude summary judgment. However, Defendant has failed to oppose the Motion despite being served with notice, despite being aware of this action, and seeking to vacate the entry of default. Therefore, summary adjudication is granted as to the first cause of action.

Plaintiff asserts that the second cause of action for common count is pled in the alternative to the breach of contract claim for services rendered (quantum meruit). (Motion, at p. 7:17-19.) “It is well-established that a plaintiff may, where he is seeking but one recovery, plead either upon an express contract or in quantum meruit.” (Haggerty v. Warner (1953) 115 Cal.App.2d 468, 475.)

“Quantum meruit refers to the well-established principle that ‘the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered.’ [Citation.] To recover in quantum meruit, a party need not prove the existence of a contract [citation], but it must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made’ [citations].” (Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 458.)

“The requisite elements of quantum meruit are (1) the plaintiff acted pursuant to ‘an explicit or implicit request for the services’ by the defendant, and (2) the services conferred a benefit on the defendant.” (Port Medical Wellness, Inc. v. Connecticut General Life Insurance Company (2018) 24 Cal.App.5th 153, 180.) “[W]here services have been rendered under a contract which is unenforceable because not in writing, an action generally will lie upon a common count for quantum meruit.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 996.)

Summary adjudication is denied as to the second cause of action because Plaintiff has prevailed on the first cause of action by showing that a valid enforceable contract exists between the Parties. “[A]s a matter of law, a quasi-contract action for unjust enrichment does not lie where, as here, express binding agreements exist and define the parties' rights.” (California Medical Ass'n, Inc. v. Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal.App.4th 151, 172.) “However, it is well settled that there is no equitable basis for an implied-in-law promise to pay reasonable value when the parties have an actual agreement covering compensation.” (Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419.)

Because a valid contract exists, Plaintiff cannot prevail on the alternative cause of action. Thus, summary adjudication is denied.

Plaintiff’s Motion for summary judgment is denied. The Court GRANTS Plaintiff’s motion for

summary adjudication as to the first cause of action for breach of contract and DENIES

Plaintiff’s motion for summary adjudication as to the second cause of action for common count.

[1] Plaintiff was formerly known as Eisner Jaffe, a professional corporation. (Eisner Decl., ¶ 1.) Eisner Jaffe, a professional corporation is the entity that entered into an agreement with Defendant.