Judge: Melissa R. Mccormick, Case: "CBCI Construction Inc. v. Las Ramblas Viejo Partners LLC, et al.", Date: 2022-11-10 Tentative Ruling
Defendant Metropolitan Solutions-CA LLC’s Motion for Summary Judgment or, in the alternative, Summary Adjudication
Defendant Metropolitan Solutions-CA, LLC moves for summary judgment or, in the alternative, summary adjudication against plaintiff CBCI Construction, Inc.’s complaint. For the following reasons, Metropolitan’s motion is denied.
A defendant seeking summary judgment bears its burden of showing that a cause of action has no merit if the defendant shows that one or more elements of the cause of action cannot be established, or that the defendant has a complete defense to the cause of action. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.
If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840. If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, 25 Cal.4th at 850-51.
CBCI’s complaint alleges two causes of action against Metropolitan: breach of contract and common counts.
Breach of Contract
“[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.
Issue No. 1: Metropolitan contends CBCI could not perform under the contract and the contract was properly rescinded. This issue addresses the second element of a breach of contract claim, i.e., plaintiff’s performance. Metropolitan contends Las Ramblas refused to allow CBCI to perform any work on the property. Separate Statement No. 27. CBCI has presented evidence disputing this alleged fact, including Frank Blefari’s declaration in which he states that Las Ramblas did not refuse to allow CBCI to perform any work on the property. CBCI’s Responsive Separate Statement No. 27; Blefari Decl. ¶ 9. Metropolitan agrees in its Reply Separate Statement that this alleged fact is disputed. See Metropolitan’s Reply Separate Statement No. 27. Summary adjudication of Issue No. 1 is denied.
Issue No. 2: Metropolitan contends CBCI cannot establish Metropolitan breached the contract. One of the allegedly undisputed material facts on which Metropolitan rests this argument is the same fact discussed above, i.e., that Las Ramblas allegedly refused to allow CBCI to perform any work on the property. Separate Statement No. 35. As discussed above, CBCI has presented evidence disputing this alleged fact (CBCI Responsive Separate Statement No. 35), and Metropolitan agrees in its Reply Separate Statement that this alleged fact is disputed. Metropolitan’s Reply Separate Statement No. 35. Metropolitan argues with respect to Issue No. 2 that Blefari’s declaration contradicts Blefari’s deposition testimony and discovery responses. Metropolitan provides no citations to evidence or evidence substantiating this claim. Summary adjudication of Issue No. 2 is denied.
Issue No. 3: Metropolitan contends the alleged cancellation provision in the contract is an unenforceable liquidated damages clause. One of the allegedly undisputed material facts on which Metropolitan rests this argument is the same fact discussed above, i.e., that Las Ramblas allegedly refused to allow CBCI to perform any work on the property. Separate Statement No. 48. As discussed above, CBCI has presented evidence disputing this alleged fact (CBCI Responsive Separate Statement No. 48), and Metropolitan agrees in its Reply Separate Statement that this alleged fact is disputed. Metropolitan’s Reply Separate Statement No. 48. Summary adjudication of Issue No. 3 is denied.
Common Counts
Issue No. 4: Metropolitan contends there was no open book account and CBCI cannot establish damages. The elements of a claim for an open book account are: (i) the plaintiff and the defendant had a financial transaction(s); (ii) the plaintiff, in the regular course of business, kept a written or an electronic account of the debits and credits involved in the transaction(s); (iii) the defendant owes the plaintiff money on the account; and (iv) the amount of money owed. CACI No. 372.
CBCI has submitted evidence demonstrating triable issues of material fact regarding Metropolitan’s contentions that there was no open book account and CBCI cannot establish damages. CBCI’s Responsive Separate Statement Nos. 73 & 75. Summary adjudication of Issue No. 4 is denied.
Issue No. 5: Metropolitan contends there was no account stated under the elements of CACI No. 373. “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. “An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another.” Gleason v. Kramer (1980) 271 Cal.App.2d 782, 786. “When the account is assented to, ‘“it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties. . . .” Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.’” Id. at 786-87. Once the creditor renders a statement of account to the debtor, the debtor must object within a reasonable time, or the law implies the debtor’s agreement that the account is correct as rendered. See Zinn, 271 Cal.App.2d at 600.
Metropolitan has not met its initial burden of showing that one or more elements of this cause of action cannot be established. The only allegedly undisputed facts Metropolitan identifies in support of this issue are (i) that CBCI alleges an account stated between CBCI and Metropolitan in the amount of $254,836.07, and (ii) that CBCI calculates that sum based on the liquidated damages provision in the contract and the unpaid materials deposits. Metropolitan Separate Statement Nos. 78 & 79. Summary adjudication of Issue No. 5 is denied.
Issue No. 6: Metropolitan contends CBCI cannot prove a common count of goods and services provided because CBCI cannot establish it was not already paid for any goods or services or the reasonable value of any such goods and services. The elements of a common count for goods and services provided are: (i) that the defendant requested, by words or conduct, that the plaintiff deliver goods or perform services for the benefit of the defendant; (ii) that the plaintiff delivered the goods or performed the services as requested; (iii) that the defendant has not paid the plaintiff for the goods or services; and (iv) the reasonable value of the services and goods that were provided. CACI No. 371.
As an initial matter, one of the allegedly undisputed material facts on which Metropolitan rests this argument is the same fact discussed above, i.e., that Las Ramblas allegedly refused to allow CBCI to perform any work on the property. Separate Statement No. 81. As discussed above, CBCI has presented evidence disputing this alleged fact (CBCI Responsive Separate Statement No. 81), and Metropolitan agrees in its Reply Separate Statement that this alleged fact is disputed. Metropolitan’s Reply Separate Statement No. 81.
In addition, CBCI has submitted evidence demonstrating triable issues of material fact regarding Metropolitan’s contentions that CBCI cannot establish it was not already paid for any goods or services or the reasonable value of any such goods and services. CBCI’s Responsive Separate Statement Nos. 87 & 88. Summary adjudication of Issue No. 6 is denied.
CBCI to give notice.