Judge Katherine Chilton, Case 20STLC03019 2023-02-23 Tentative Ruling

Plaintiff Manhattan Floor Covering, Inc.’s Motion for Summary Judgment is GRANTED. Plaintiff’s Motion for Summary Adjudication is hereby MOOT.

On April 3, 2020, Plaintiff Manhattan Floor Covering, Inc. dba SERVPRO of Redondo Beach (“Plaintiff” or “MFC”) filed an action against Defendant Maureen McCool (“Defendant”) for breach of contract, open book account, and account stated.

On July 1, 2021, the Court granted Defendant’s Motion for Leave to File Cross-Complaint. The Cross-Complaint was filed on April 22, 2021, against Cross-Defendants MFC and Interinsurance Exchange of the Automobile Club (“Interinsurance Exchange”) for breach of written contract, breach of the implied covenant of good faith and fair dealing, conversion, negligence, and negligent hiring, retention, and supervision. On July 26, 2021, based on McCool’s request, the Court dismissed Cross-Defendant Interinsurance Exchange without prejudice. (7-26-21 Request for Dismissal.)

On August 25, 2021, Plaintiff/Cross-Defendant MFC filed an Answer to the Cross-Complaint.

On August 9, 2022, the Court granted Defendant McCool’s Counsel’s Motion to be Relieved as Counsel, filed on January 18, 2022. (8-9-22 Minute Order; 8-9-22 Order.)

On October 26, 2022, Plaintiff filed a Motion for Summary Judgment or in the alternative, Summary Adjudication (“Motion”). Defendant, in propria persona, filed an Opposition to the Motion (“Opposition”) on January 4, 2023. Plaintiff filed a Reply to the Opposition (“Reply”) on January 11, 2023, after which Defendant filed a corrected Opposition.

On January 12, 2023, the Court, on its own motion, continued the hearing on the Motion to February 23, 2023. (1-12-23 Minute Order.)

Plaintiff requests that the Court take judicial notice of Plaintiff’s Complaint and Defendant’s Answer to the Complaint in the instant action. (RJN, Exs. I-J.)

Although it is not necessary to take judicial notice of documents in the instant action, Plaintiff’s request is GRANTED.

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc. § 437c(c).) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742-743.) Thus, “the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.). When a plaintiff seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c(p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and the courts must construe the evidence in support of the opposing party, resolving any doubts in favor of the opposing party. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639; Scalf, 128 Cal.App.4th at 1519; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc. § 437c(p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) Summary judgment must be granted “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.)

As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)

Plaintiff seeks a court order granting summary judgment in its favor and against Defendant or, in the alternative, summary adjudication of its causes of action for breach of contract, open book account, and account stated. (Mot p. 2.)

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) “A written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect. [Citations.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

Plaintiff “is a restoration company that provides services for damages after emergencies or weather-related disasters, including water, fire, and mold remediation services.” (Mot. p. 5.) Plaintiff has submitted the declaration of Adam Salceda, an employee of Plaintiff MFC, in support of the Motion. (Salceda Decl. ¶ 1.) According to Salceda, on March 21, 2019, he performed an estimate of the work to be performed on the premises located at 506 East 224th Street, Carson, 90745 (“Premises”). (Ibid. at ¶ 3, Mot. p. 5.) Salceda listed all the work to be performed and sent it to MFC for an estimate. (Salceda Decl. ¶ 6.) Salceda discussed the work list with Defendant and answered all of her questions, after which Defendant signed an agreement with Plaintiff, titled Authorization to Perform Services, allowing Plaintiff to perform work on the Premises. (Ibid. at ¶ 7, Ex. A.) Based on the agreement, Plaintiff was to provide the following services: “content manipulation, content packing, handling, and storage, which consisted of packing and moving items on the premises onto an onsite container and moving truck, personal property disposal, and water extraction and remediation services.” (Ibid. at ¶¶ 6-7, 24, Exs. A-B.) Salceda explained that Defendant’s insurance policy would cover some of the payment for Plaintiff’s services and the rest would have to be paid by Defendant. (Ibid. at ¶ 8.) Defendant also signed the Customer Information Sheet, after Salceda explained to her that it required the customer to remove all valuables, including jewelry and heirlooms from the Premises. (Ibid. at ¶ 9, Ex. B.)

Salceda was present on the premises on April 3 and 4, 2019, when Plaintiff’s technicians performed the work. (Ibid. at ¶¶ 9-10.) Salceda states that the Premises were “extremely cluttered with personal belongings, and pet waste, food waste and trash were strewn all over the premises.” (Ibid. at ¶ 11.) Plaintiff discussed with Defendant that “many or even most of the of the items that were present on the premises would need to be removed and discarded as they were not salvageable.” (Ibid.) Salceda has included photographs of the Premises during the time Plaintiff’s technicians were performing the work indicated. (Ibid. at ¶ 12, Ex. C.) On April 4, 2019, Defendant signed the Release of Disposal of belongings, after Salceda answered her questions and Defendant inspected the belongings. (Ibid. at ¶ 13, Ex. D.) On April 9, 2019, after completing all work, Plaintiff created a Job Completion report, listing all work performed with the amount of $4,453.12 due to Plaintiff, and creating Invoice #5073705 in the amount of $4,453.12. (Ibid. at ¶ 14, Exs. E-F.) On April 16, 2019, Salceda returned to the Premises as Defendant requested additional work to be performed. (Ibid. at ¶ 15.) Salceda estimated the work to be around $7,150 and informed Defendant that it would not be covered by her insurance policy. (Ibid. at ¶ 15.) Defendant “agreed, accepted the estimate and authorized us to perform the work on her premises.” (Ibid.) The additional work was performed on the Premises on April 18, 19, and 22, 2019. (Ibid.) On or around May 2, 2019, Plaintiff created a Job Completion list with all of the additional work performed totaling $7,151.26 due and Invoice #5073760 in the amount of $7,151.26. (Ibid. at ¶ 17, Exs. G, H.) Thus, Plaintiff is owed a total of $11,604.38 based on Invoices # 5073705 and #5073760. (Ibid. at ¶ 18.)

Salceda states that Plaintiff has performed all work required by the agreements between Plaintiff and Defendant and has fulfilled all of its obligations under these agreements. (Ibid. ¶ 24.) In exchange for Plaintiff’s services, Defendant was required to make payments. (Ibid.) Defendant did not pay for the services that Plaintiff performed on April 3, 4, 18, 19, and 22, 2019, as required by the agreements. (Ibid.) As a result of Defendant’s failure to pay for Plaintiff’s services, Plaintiff incurred damages in the amount of $11,604.38. (Ibid.)

In response to Defendant’s Answer, Salceda states that he has not seen any of the items, valuables, or heirlooms that Defendant indicates are missing from the Premises. (Ibid. at ¶ 19.) However, due to the clutter on the Premises, “[i]t is possible that the items that Ms. McCool mentioned were included in the property that was disposed of, at Defendant's special request and insistence.” (Ibid.) Furthermore, Salceda states that none of Plaintiff’s employees had access to her safe, opened it, entered it, or removed any items from it. (Ibid. at ¶ 20.) Salceda has “personal knowledge that Servpro did not dispose of, or remove, any items of Ms. McCool's personal property from the premises except for the items that Ms. McCool authorized us to dispose of.” (Ibid. at ¶¶ 21, 24.) Defendant has not identified any employee who removed any property from the Premises without her permission. (Ibid. at ¶ 22.)

Defendant opposes Plaintiff’s Motion. First, Defendant objects to Judge Katherine Chilton presiding over any proceedings in this case. (Oppos. p. 5.) The Court notes that the Opposition is the not the proper procedural tool to object to a judicial officer presiding over a case.

Second, Defendant denies many of the statements made by Plaintiff in its Motion and the Declaration of Adam Salceda. Specifically, she denies the existence of agreements between Plaintiff and Defendant and her signature on those agreements, claiming that she signed a blank template screen on a tablet only meant to authorize Plaintiff’s employees to be on the Premises. (McCool Decl. ¶¶ 6-7.) She states that there was no discussion regarding an estimate or the scope of work to be performed and she was not given any hard copies of agreements. (Ibid. at ¶¶ 6-7, 13.) The signature on the Customer Information Sheet submitted by Plaintiff was “[c]learly…copied from the tablet signature.” (Ibid. at ¶ 8.)

Furthermore, Defendant denies that Plaintiff’s employees completed the work, claims that they disposed of or destroyed her personal belongings without authorization, and claims that she never signed a release allowing them to dispose of her belongings. (Ibid. at ¶¶ 10, 12.)

Defendant also denies Plaintiff’s statements about the payment she owes as (1) she was only responsible for the deductible, which she has not been able to determine due to the insurance carrier’s refusal to provide her with the full Claim File, (2) she has not received itemized billing statements from Plaintiff, and (3) she believes that “the damages would be offset by the value of the damages to the property, and the value of the lost, stolen or destroyed properties.” (Ibid. at ¶ 2, 14.) Defendant does not dispute that there was clutter in the house; however, she states that the specific personal items that were missing were kept in dresser drawers and these dressers have been emptied. (Ibid. at ¶¶ 10-11.) She also states that numerous items were broken, stolen or thrown out. (Ibid.) She has not been asked to identify anyone and does not believe Adam Salceda was on the Premises every day that Plaintiff’s technicians were working on the property. (Ibid. at ¶¶ 9, 15-16.)

Defendant’s Opposition is based on her declaration and no additional evidence. Defendant made it clear in her Opposition that she did not intend to meet her burden in stating, “[i]t appears that this Motion was filed with the hope that defendant and cross-complainant would produce evidence. That is not going to happen.” (Oppos. p. 9.)

In its Reply, Plaintiff states that “Defendant provided no affidavits, admissions, interrogatory answers, or depositions or any other admissible evidence, other than a declaration by Defendant herself that contradicts her own defense.” (Reply p. 2.) The Opposition “is not more than argument, innuendo, and allegations.” (Ibid.) Plaintiff argues that it “has produced adequate evidence to establish that an agreement existed between the parties, and what the agreement required each of the parties to do.” (Ibid. at p. 3.) Defendant did not produce any evidence to contest Plaintiff’s assertions. (Ibid. at pp. 3-4.) Plaintiff states that Defendant was presented with all the documents that made up the contract, had an opportunity to review these documents and ask questions, and subsequently signed on the tablet and her signature was applied to all of the documents that comprised the contract and had been presented to her. (Ibid. at p. 4.) Defendant has not submitted any evidence to prove that Plaintiff did not perform all of its obligations as initially agreed. (Ibid. at pp. 4-5.)

Moreover, Defendant has not presented any evidence to dispute the amount she owes or that any amount was paid by her or anyone else. (Ibid. at p. 5.) While Plaintiff has presented its invoices to demonstrate the amount owed, Defendant has not produced any evidence that the amount of damages is inaccurate or different. (Ibid.) Thus, Plaintiff has produced sufficient and undisputed evidence that a written contract existed, Plaintiff performed its obligations, and Defendant breached the contract by failing to pay the amount owed and causing Plaintiff to incur damages. (Ibid. at pp. 5-6.)

The Court finds that Plaintiff has met its burden of producing sufficient evidence to show that Defendant breached a written contract requiring her to make payments in exchange for Plaintiff’s services. Although Defendant disagrees with nearly all statements made by Plaintiff and states that she has evidence to prove her arguments, she declined to present “evidentiary facts that are substantial in nature and rise beyond mere speculation.” Defendant has not presented her evidence to the Court. Thus, the Court finds that there is no triable issue of material fact as to the cause of action for breach of contract.[1]

To establish a cause of action for open book account, the following elements must be satisfied: (1) plaintiff and defendant had financial transactions, (2) plaintiff kept an account of the debits and credits involved in the transactions, (3) defendant owes plaintiff money on the account, and (4) the amount of money that the defendant owes the plaintiff. (State Comp. Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal. App. 5th 422, 449.) A book account is “open” if a balance remains due on this account. (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.)

According to Adam Salceda, Plaintiff “in its regular course of business, kept an electronic account of the debits and credits involved in the transactions. (Salceda Decl. ¶ 25.) Defendant was required to pay for the services performed by Plaintiff. (Ibid. ¶ 24.) Defendant did not formally dispute Plaintiff’s accounting and had time to make a “bona fide” allegation of incorrect invoices or billing. (Ibid. ¶ 25.) The account balance indicates that Defendant owes Plaintiff $11,604.38, which Defendant has failed to pay and owes in accordance with the open book account. (Ibid.)

First, Defendant disputes Salceda’s statements regarding Plaintiff’s recordkeeping practices and objects to these statements for being inadmissible. (McCool Decl. ¶¶ 4, 18.) Defendant disputes Plaintiff’s statement that she was required to pay Plaintiff as she has not received the full Claim File from her insurance carrier to determine what was already paid by the carrier. (Ibid. at ¶ 2.). She also asserts that Plaintiff owes her for the value of items that were destroyed or stolen. (Opposition – Sep. Statement ¶ 15.) She states that she has numerous emails with her out-of-state attorney discussing the billing, which she will produce at trial, and Plaintiff did not request any evidence that she disputed the billing. (Ibid. at ¶ 16.) She adds that her former counsel destroyed letters and emails. (Ibid.)

In its Reply, Plaintiff reiterates its arguments and states that Defendant has failed to produce any evidence to dispute the facts set forth in the Motion. (Reply p. 6.)

The Court finds that Plaintiff has met its burden of demonstrating previous financial transactions between Plaintiff and Defendant, Plaintiff’s account of the transactions and Defendant’s debt to Plaintiff on these accounts. The Court does not find that Defendant has produced any evidentiary facts beyond her own allegations that are substantial and not mere speculation to show that a triable issue of material fact exists.

“The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; [and] (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600; see CACI 373.)

According to Adam Salceda, Plaintiff “in its regular course of business, kept an electronic account of the debits and credits involved in the transactions. (Salceda Decl. ¶ 26.) Defendant agreed to pay for Plaintiff’s services. (Ibid.) Plaintiff demanded payment and Defendant did not raise any timely or reasonable dispute as to the amount requested and owed. (Ibid.) Defendant has not paid the sum of $11,604.38 that she owes Plaintiff. (Ibid.)

As discussed above, Defendant disputes the existence of any agreement between Plaintiff and Defendant and the amount she owes to Plaintiff.

In its Reply, Plaintiff states that the invoices presented establish that “(1) Defendant received the line of credit; (2) Plaintiff, in its regular course of business, kept an electronic account of the debits and credits involved in the transactions; (3) Defendant agreed to make payments for the services Plaintiff provided; (4) Plaintiff demanded payment from the Defendant and, Defendant failed to timely dispute any amount, or to raise a timely and reasonable dispute as to the amount owed.” (Reply p. 7.) Defendant has not paid the amount she owes Plaintiff or produced evidence disputing the amount. (Ibid.)

The Court finds that Plaintiff has met its burden of demonstrating the existence of previous financial transactions between Plaintiff and Defendant, the existence of an express written agreement, and a promise by Defendant to pay the amount due for Plaintiff’s services. The Court does not find that Defendant has produced any evidentiary facts beyond her own allegations that are substantial and not mere speculation to show that a triable issue of material fact exists.

Accordingly, the Court does not find any triable issues of material fact exist as to Plaintiff’s claims for breach of contract, open book account, and account stated. Thus, Plaintiff’s Motion for Summary Judgment is GRANTED and the Motion for Summary Adjudication is MOOT.

Plaintiff Manhattan Floor Covering, Inc.’s Motion for Summary Judgment is GRANTED. Plaintiff’s Motion for Summary Adjudication is hereby MOOT.

[1] The Court also notes that Defendant’s Separate Statement in opposition to the Motion is not in proper form. Rule of Court 3.1350(f)(2) requires that each response must unequivocally state whether that fact is “disputed” or “undisputed.” “An opposing party who contends that a fact is disputed must state . . . the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers. Several of Defendant’s responses do not unequivocally state whether the fact is “disputed” or “undisputed” and none of them cite to anything except “See Opposition Papers and Declaration of Maureen McCool.” Many of Plaintiff’s facts are undisputed because of Defendant’s failure to properly dispute them, as well as Defendant’s failure to provide evidence.