Judge Lynne M. Hobbs, Case Number: 23STCV09061, Date: 2024-12-19 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV09061, Date: 2024-12-19 Tentative Ruling

Case Number: 23STCV09061 Hearing Date: December 19, 2024 Dept: 61

DANIEL MOORE, AN INDIVIDUAL vs MARIA LITWIN, AN INDIVIDUAL

TENTATIVE

Plaintiff Daniel Moore’s Motion for Summary Judgment is DENIED.

Defendant to give notice.

DISCUSSION

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Plaintiffs moving for summary judgment may meet their initial burden by “prov[ing] each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c(p)(1).)

Once the plaintiff has met that burden, the burden shifts 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. (Code Civ. Proc. § 437c(p)(1).) The defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Plaintiff Daniel Moore (Plaintiff) moves for summary judgment on his sole claim for breach of oral contract against Defendant Marta Lutwin (Defendant). Plaintiff presents his declaration stating that he loaned Defendant $65,000, with an oral promise to repay that amount within 60 days, of which none has been repaid. (Daniel (Moore Decl. ¶¶ 2–7.) Plaintiff claims damages in the amount of $65,000 in principle, and $41,924.74 in interest from July 8, 2018 through December 19, 2024.

Defendant in opposition argues that the claim is barred by the statute of limitations. The statute of limitations for breach of oral contract is two years. (Code Civ. Proc. § 339.) Defendant notes that the loan here was made in May 2018, and due in full within 60 days. (Moore Decl. ¶ 3.)

Plaintiff testifies that Defendant promised to repay (Moore Decl. ¶ 6), and Defendant acknowledges that promises to pay may revive stale claims for breach of a debt contract. (See Western Coal & Min. Co. v. Jones (1946) 27 Cal.2d 819, 823 [“[A] debt barred by the Statute of Limitations may be revived by a new promise.”].)

But such promises must be in writing to be effective: “No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby[.]” (Code Civ. Proc., § 360.) Plaintiff does not testify to any instance of any written promise to repay, and Defendant denies any verbal promises to repay were made from July 2018 to July 2020. (Lutwin Decl. ¶ 3.)

Based on the above, triable issues exist as to whether the statute of limitations bars Plaintiff’s claim for breach of contract. The action was filed on April 24, 2023, more than two years after the July 2018 breach of the agreement. Plaintiff offers no evidence of any written promise to pay that might revive the statute.

In reply, Plaintiff argues that equitable estoppel may bar application of the statute of limitations defense, based on Defendant’s verbal promise to repay, made on October 5, 2021, in Plaintiff’s residence, and prior verbal representations by Defendant. (Reply at pp. 1–2, Moore Decl. ¶ 6.)

Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. (Migliore v. Mid-Century Ins. Co. (2002) 97 Cal.App.4th 592, 606.)

Plaintiff has not established the applicability of the equitable estoppel doctrine to the statute of limitations defense as a matter of law. Plaintiff testifies that Defendant made promises to repay prior to October 2021, which Defendant denies. (Moore Decl. ¶ 6; Lutwin Decl. ¶ 3.) And while Lutwin does not deny making such a verbal promise in October 2021, that promise was also made more than two years after the payments became due in July 2018, meaning that the statute of limitations had already run by then, and any inference of detrimental reliance thus remains a triable issue of fact. Plaintiff offers no testimony as to reliance, or the other elements of the equitable estoppel doctrine.

The motion is therefore DENIED.