Judge: Mark E. Windham, Case: 22STLC01941, Date: 2023-02-06 Tentative Ruling

Case Number: 22STLC01941    Hearing Date: February 6, 2023    Dept: 26

Lux Life v. Avus Autosport, Inc., et al.

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING: 

Plaintiff Lux Life’s Motion for Summary Judgment is DENIED.

ANALYSIS:

Plaintiff Lux Life (“Plaintiff”) filed the instant action for breach of contract against Defendant Avus Autosport (“Defendant”) on March 24, 2022. Following Defendant’s failure to file a responsive pleading, the Court entered default on May 31, 2022 and default judgment on June 16, 2022.

On August 31, 2022, the Court granted Defendant’s Motion to Vacate Default and Default Judgment and ordered Defendant to file and serve its Answer within 20 days. (Minute Order, 08/31/22.) Defendant filed its Answer on September 8, 2022 and First Amended Answer on September 21, 2022.

Plaintiff filed the first Motion for Summary Judgment on September 26, 2022, which the Court denied on October 20, 2022 for lack of sufficient notice. (Minute Order, 09/26/22.) Plaintiff filed the second Motion for Summary Judgment on November 1, 2022. Defendant filed an opposition on January 5, 2023 and Plaintiff replied with only a declaration on January 18, 2023. Defendant filed evidentiary objections on January 23, 2023.

Evidentiary Objections

Defendant’s evidentiary objections to Plaintiff’s reply declaration, filed on January 18, 2023, are sustained.

Discussion

The Complaint alleges causes of action for (1) breach of contract; and (2) common counts. Specifically, Plaintiff alleges that Defendant agreed to repair the leak on his car and coordinate with warranty to cover the costs of repair, tow truck and rental car. (Compl., ¶BC-1.) Defendant allegedly breached the contract by not contacting warranty to cover the costs. (Id. at ¶BC-2.) As a result, Plaintiff suffered damages including the costs of repair, towing and rental vehicle with unnecessary stress and time. (Id. at ¶BC-4.)

Plaintiff moves for summary judgment on the Complaint pursuant to Code of Civil Procedure section 437c. On a motion for summary judgment or adjudication of a particular cause of action, a moving plaintiff must show that there is no defense by proving each element of the cause of action entitling the party to judgment on that cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Then 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. (Code Civ. Proc., § 437c, subd. (p)(1).) Additionally, in ruling on the Motion, the Court must view the “evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843].)

First, the Motion is procedurally defective. Plaintiff’s supporting separate statement fails to comply with Cal. Rules of Court rule 3.1350(d), which requires the statement of facts therein to be “followed by the evidence that establishes those undisputed facts in that same column.” (Cal. Rules of Court, rule 3.1350(d)(3).) Furthermore, “[c]itation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(d)(3).) The separate statement does not provide any citation to supporting evidence. (Motion, Separate Statement, Fact Nos. 1-2.) The separate statement also fails to separately identify each cause of action that is the subject of this Motion, despite the Complaint alleging causes of action for breach of contract and common counts (money paid). (See Cal. Rules of Court, rule 3.1350(d)(1).) Plaintiff’s non-compliant separate statement makes it very difficult for the Court to evaluate the evidence that purportedly supports the instant Motion for Summary Judgment.

Regarding the substance of the Motion, the elements of a cause of action for breach of contract are (1) the existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Plaintiff’s separate statement does not demonstrate that the parties entered into a contract. It merely states that “Plaintiff hired Defendant to fix a car” without providing any information regarding the formation of the contract or its terms. “A bilateral contract consists of mutual promises made in exchange for each other by each of the two contracting parties.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 36 [citing Corbin on Contracts (rev. ed.1993) § 1.23, p. 87].) In fact, the Complaint itself fails to allege the existence of a contract because it does not allege that Plaintiff had any obligations to Defendant. (See Compl., ¶¶BC-1 and BC-2.) The Complaint only alleges that Defendant’s obligations were to repair the leak on the car and coordinate with warranty to cover the costs of repair, tow truck and rental car. (Ibid.) Without allegations or evidence to demonstrate a mutual promise of performance by Plaintiff, the instant Motion does not demonstrate he will prevail on the cause of action for breach of contract.

Likewise, the elements of the common count for money paid are that (1) Defendant is indebted to plaintiff in a certain sum; (2) for money lent, paid or expended to, or for, the defendant. (Moya v. Northrup (1970) 10 Cal. App. 3d 276, 280.) Plaintiff alleges that he paid money to Defendant that should not have been paid because it should have been covered by the warranty company. (Compl., ¶CC-1(b).) There are no allegations as to whether Plaintiff authorized the repairs, when the repairs were performed, what amount Defendant asked Plaintiff to pay, why Plaintiff paid that or any other amount, or why Defendant is liable for the amount Plaintiff paid. By failing to provide details regarding the parties’ communications and ultimate agreement, Plaintiff has not alleged the basis on Defendant indebtedness. Nor does the Motion for Summary Judgment provide evidence of the parties’ transaction. It simply contends that Defendant caused Plaintiff to incur $4,319.32 by not contacting the warranty company. (Motion, Separate Statement, Fact No. 2.) This conclusory statement, which is unsupported by any cited evidence, does not demonstrate that Plaintiff must prevail on the second cause of action.

Conclusion

Plaintiff Lux Life’s Motion for Summary Judgment is DENIED.

Defendant to give notice.