Judge Kenneth J. Medel, Case Number: 37-2022-00048180-CU-BC-CTL, Date: 2024-04-26 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2022-00048180-CU-BC-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024 09:30:00 AM C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2022-00048180-CU-BC-CTL LORBER GREENFIELD & POLITO LLP VS RHINO LININGS CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 09/27/2023

Plaintiff Lorber Greenfield & Polito, LLP's motion for summary judgment (ROA #35) is DENIED.

Plaintiff's objections to Defendant Rhino Linings Corporation's request for judicial notice are OVERRULED, except as to Plaintiff's objections to request No. 1 (California State Bar Ethics Formal Opinion No. 1980-53), which is SUSTAINED since Defendant failed to attach the correct document.

Accordingly, Defendant's request for judicial notice (ROA # 79) is GRANTED as to all but request No. 1.

The Court however does not take judicial notice of the statements contained in the website screenshots.

(See Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal. App. 4th 514, 519 as modified on denial of reh'g (Mar. 25, 2008) ['...although it might be appropriate to take judicial notice of the existence of the websites, the same is not true of their factual content.'].) Further, while a court may take judicial notice of another court's action and files, it cannot take notice of the truth of hearsay statements in the decisions and court files. (Barri v. Workers' Comp. Appeals Bd. (2018) 28 Cal.App.5th 428, 437.) Defendant's objections to Plaintiff's evidence (ROA # 75) are OVERRULED.

Further, considering that Plaintiff was served with the opposition and primary papers only one day late, the Court exercised its discretion and chose to consider Defendant's untimely filed opposition. (See Cal. R. 3.1300.) In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83.) In ruling on a summary judgment motion, the Court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. (McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 96 – 97.) Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' (Reid v. Google, Inc.

(2010) 50 Cal.4th 512, 535.) Calendar No.: Event ID: TENTATIVE RULINGS

3029319 42 CASE NUMBER: CASE TITLE: LORBER GREENFIELD & POLITO LLP VS RHINO LININGS 37-2022-00048180-CU-BC-CTL '[T]he elements of a cause of action 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.) For claims by an attorney against their client alleging breach of a valid fee agreement, to meet the second element, 'the attorney must demonstrate he reasonably performed his obligations under the agreement in a manner consistent with the implied covenant of good faith and fair dealing.' (Pech v. Morgan (2021) 61 Cal.App.5th 841, 855.) Here, Plaintiff submitted the following evidence in support of its motion: (1) a copy of the Letter of Engagement for legal services that was signed by Defendant's representative; (2) a copy of a July 14, 2022 letter to Defendant regarding unpaid legal fees; (3) copies of invoices showing the alleged amounts owed by Defendants for Plaintiff's legal services; and (4) a calculation of prejudgment interest. (ROA # 36, Ex. 1-4.) It should be noted that the invoices do not contain any information establishing the basis for the claimed amounts. (See ROA # 36, Ex. 3.) The court is not entirely persuaded that the plaintiff has met its burden of seeking summary judgment because plaintiff has not presented admissible evidence establishing each essential element to establish a breach of contract. Namely, plaintiff has failed to present evidence establishing that it fully performed under the terms of the contract, was excused from performing or the basis for its claimed damages.

Assuming arguendo that the burden shifts to the defendant, the court finds that there are triable issues of material fact precluding summary judgment as follows: (1) whether Plaintiff fully performed under the contract; and (2) plaintiff's claimed damages.

First, Defendant presented evidence that Plaintiff did not perform as required under the contract (See Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 181 [If an 'attorney undertakes to perform his duties pursuant to a contract with the client, the attorney's failure to exercise the requisite skill and care is also a breach of an express or implied term of that contract.'].) This evidence included the declarations of Donald H. Flanary, Jr. (ROA # 77) and Donald F. Hagans (ROA #78).

Further, Defendant submitted some limited evidence that Plaintiff is not entitled to the claimed fees, outside of its failure to perform under the contract. (See Hagan Decl., ¶ 16, Ex. A.) While Plaintiff's reply sought to introduce additional evidence to counter these claims and proposed to waive some disputed charges (ROA # 81, Ex. B-G) even if the Court considered it, construing the evidence in the non-moving party's favor, it merely creates a dispute of material fact. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537–1538.) For these reasons, plaintiff's motion for summary judgment is denied.

The motion for summary adjudication is denied on the additional basis that Plaintiff has not complied with California Rules of Court, Rule 3.1350(b) [If making a motion for summary adjudication, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.].

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