Judge: H. Jay Ford, III, Case: 21SMCV00016, Date: 2023-02-07 Tentative Ruling

Case Number: 21SMCV00016    Hearing Date: February 7, 2023    Dept: O

  Case Name:  Gerry v. Paquin, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Plaintiff Kevin Gerry

RESP. PARTY:         Defendants David C. Paquin and Ocean View Law Group

TENTATIVE RULING

            Plaintiff Kevin Gerry’s Motion for Summary Judgment is DENIED.  Plaintiff’s Objections are OVERRULED. 

            Plaintiff filed a Notice of Conditional Settlement on 2-14-22 indicating that a dismissal would be filed by September 10, 2022.  No dismissal has been filed. 

            “A plaintiff or cross-complainant 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. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP §437c(p)(1).

As moving party, Plaintiff must submit admissible evidence as to each and every element of his claims for breach of contract and common counts.  Plaintiff does not request adjudication and the motion must be denied if there are any triable issues of material fact as to any cause of action.     

            To prevail on his claim for breach of contract against Defendants, Plaintiff must establish: (1) the existence of a contract with Defendants; (2) Plaintiff's performance; (3) Defendant's breach; and (4) damages.  See First Commercial Mortgage Co. v. Recce (2001) 89 Cal.App.4th 731, 745.  To prevail on his claim for common counts, Plaintiff must establish that (1) Defendants requested that Plaintiff perform services for Defendants’ benefit, (2) Plaintiff performed those services as requested, (3) Defendants have not paid Plaintiff for the services and (4) the reasonable value of the services provided.  See CACI 371. 

Plaintiff establishes the existence two attorney-client fee contracts.  See SSUMF Nos. 1 and 3, Dec. of K. Gerry, ¶¶2 and 4, Ex. A.  Plaintiff establishes his performance under both agreements.  See SSUMF Nos. 2 and 4, Motion, Dec. of K. Gerry, ¶¶3 and 5.  Plaintiff establishes Defendants’ breach based on failure to pay the fees incurred.  See SSUMF No. 6; Motion, Dec. of K. Gerry, ¶6.  Plaintiff establishes an outstanding balance of $35,012, which reflects a credit for $15,000 in payments and includes the $12 bank charge Plaintiff was forced to pay when Defendants’ check was rejected based on insufficient funds.  See SSUMF Nos. 5, 7-9; Motion, Dec. of K. Gerry, ¶¶7-9.  Plaintiff establishes each element of his claims for breach of contract and common counts. 

In response, Defendants argue Plaintiff’s declaration fails to satisfy his burden of proof.  The Court disagrees.  Plaintiff’s declaration and exhibits are admissible and establish each element of the contract.

Defendants also argue that the fees have been paid and there is no outstanding balance due.  Defendants submit the declaration of Kevin Margulis, office manager of Defendant Oceanview Law Group.  See Dec. of K. Margulis, ¶2.  Margulis testifies that payments in the amount of $52,460 have been made to Plaintiff.  Id. at ¶3.  Margulis testifies that there was an agreement to accept a lesser amount of interest incurred on the amount due.  Id. at ¶4. 

Margulis’ testimony is not supported by the accompanying exhibits.  Based on Exhibit 1 to the Margulis declaration, Defendants only made payments in the amount of $47,460.  See Margulis Dec., Ex. 1.  The QuickReport sheet reflects total payments in the amount of $52,460, but Check 1363 for $5000 was erroneously listed twice and is crossed off the report.  Id. 

Although Defendants’ evidence does not negate Plaintiff’s evidence of breach, Defendants raise a triable issue of fact regarding the amount due.  Plaintiff’s evidence claims there is an outstanding balance of $35,012.  Based on Defendants’ evidence, Plaintiff would only be due $2,552 (($50,000-$47,460) + $12 NSF fee).  On reply, Plaintiff also claims that Check 1363 was ultimately rejected for NSF.  See Reply, Dec. of K. Gerry, ¶4. 

Triable issues of fact remain as to the amount of Plaintiff’s damages.  Even if Plaintiff had requested summary adjudication, he is not entitled to summary adjudication on the issue of contractual liability with trial on damages alone.  See Paramount Petroleum Corp. v. Supr. Ct. (2014) 227 Cal.App.4^th 226, 242-243. 

Finally, Defendants argue settlement as a defense.  However, Defendants submit a copy of a settlement agreement that is not signed by Plaintiff.  See Dec. of Margulis, Ex. 2.  Plaintiff also denies ever having seen the settlement agreement presented by Defendant, and Plaintiff denies ever having agreed to it.  See Reply, Dec. of K. Gerry, ¶3.  Triable issues of fact therefore remain as to Defendants’ defense based on settlement. 

Plaintiff’s Motion for Summary Judgment is DENIED.