Judge: Maurice A. Leiter, Case: 19STCV37503, Date: 2022-08-17 Tentative Ruling

Case Number: 19STCV37503    Hearing Date: August 17, 2022    Dept: 54

Hearing Date: August 17, 2022

Department 54, Judge Maurice A. Leiter

(2) Motions for Summary Judgment

Moving Party: Defendants David Bren and Jennifer Anne McKay Gold

Responding Party: Plaintiff Greenwich Blackhawk Partners

T/R:     DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT ARE DENIED.

            DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. 

The Court considers the moving papers and oppositions.

BACKGROUND

            On July 22, 2020, Plaintiff Greenwich Blackhawk Partners filed the operative first amended common counts complaint against Defendants David Bren and Jennifer Anne McKay Gold for unpaid legal fees.

On October 4, 2021, Bren and Gold filed the operative first amended cross-complaint, asserting causes of action for (1) negligent breach of fiduciary duty; (2) intentional breach of fiduciary duty; and (3) UCL violations. Bren and Gold allege Greenwich Blackhawk and Neuner’s legal billings were improper.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment 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 each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.)  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.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. Defendant David Bren’s Motion for Summary Judgment

            Bren moves for summary judgment of Plaintiff’s complaint for account stated. Bren relies on his own declaration to support the motion. But the declaration is not signed. Accordingly, Bren has failed to present admissible evidence establishing there are no triable issues of fact.

            Defendant Bren’s motion for summary judgment is DENIED.

B. Defendant Jennifer Gold’s Motion for Summary Judgment

            Gold moves for summary judgment on the grounds that Gold does not owe Plaintiff money and Plaintiff’s complaint is barred by the statute of limitations.

“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.)  

Gold asserts she paid all invoices sent to her by Plaintiff. (UMF ¶¶ 1-4.) In opposition, Plaintiff presents evidence showing she owes $5,893.60 in attorney’s fees and agreed to be liable for Bren’s attorney’s fees of $145,885.99. (Opp. UMF ¶¶ 1-4.) This is sufficient to create a triable issue of fact.

            Plaintiff also argues the complaint is barred by the 4-year statute of limitations for common counts, because the work billed began in 2011. In opposition, Plaintiff presents evidence that the last entry in the book account was in 2017. The complaint was filed in 2019.

            Defendant Gold’s motion for summary judgment is DENIED.

Hearing Date: August 17, 2022

Department 54, Judge Maurice A. Leiter

Motion for Sanctions

Moving Party: Cross-Defendants Greenwich Blackhawk Partners and Kirk Neuner

Responding Party: None

T/R:     CROSS-DEFENDANTS’ REQUEST FOR SANCTIONS IS DENIED.

CROSS-DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers. No opposition has been received.

BACKGROUND

            On July 22, 2020, Plaintiff Greenwich Blackhawk Partners filed the operative first amended common counts complaint against Defendants David Bren and Jennifer Anne McKay Gold for unpaid legal fees.

On October 4, 2021, Bren and Gold filed the operative first amended cross-complaint, asserting causes of action for (1) negligent breach of fiduciary duty; (2) intentional breach of fiduciary duty; and (3) UCL violations. Bren and Gold allege Greenwich Blackhawk and Neuner’s legal billings were improper.

ANALYSIS

If a party fails to provide a timely response to a request for admission, the party waives any objection to the requests.  (C.C.P. § 2033.280(a).)  Moreover, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction….”  (C.C.P. § 2033.280(b).) 

            Cross-Defendants brought this motion to deem RFAs admitted against Cross-Complainant Jennifer Gold. Cross-Defendants represent Gold served responses on July 27, 2022. Cross-Complainants assert they are still entitled to sanctions because Gold did not serve responses until after the motion was filed and served. The Court disagrees. The motion to deem RFAs admitted is MOOT. After responses were served, the motion should have been taken off calendar completely. The Court will not award sanctions.