Judge: Michael E. Whitaker, Case: 22SMCV01685, Date: 2024-04-16 Tentative Ruling

Case Number: 22SMCV01685    Hearing Date: April 16, 2024    Dept: 207

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment
2. Memorandum of Points and Authorities
3. Separate Statement of Undisputed Material Facts
4. Declaration of Nicole Browne
5. Declaration of Thomas F. Olsen

BACKGROUND

This breach of contract case arises from a dispute regarding the amount of back rent Defendants allegedly owe Plaintiff in connection with a residential property lease.

On September 26, 2022, Plaintiff SM 10000 Property LLC (“Plaintiff”) brought suit against Defendants Nicolai Bergman (“Nicolai”), Amanda McDermott-Bergmann (“Amanda”), and Nicolai Bergmann KK (“Nicolai KK”).  Amanda answered the complaint, but default was entered against Nicolai and Nicolai KK on August 10, 2023.

Plaintiff now moves for summary judgment against all three defendants on the single breach of contract cause of action.  Plaintiff’s motion is unopposed.

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

            The Court finds two procedural issues with Plaintiff’s motion for summary judgment.

            First, because default has been entered against Defendants Nicolai and Nicolai KK, the proper procedural vehicle to obtain a judgment against them is to request a default judgment.  (See Code Civ. Proc., § 585.)  Summary judgment is not a “default judgment.”  (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4^th 130, 137-138.)  Importantly, Code of Civil Procedure section 473, subdivision (b), which outlines the procedure for a party to request relief from a default judgment, does not apply to summary judgments.  (Ibid.)  Thus, granting Plaintiff’s motion for summary judgment as to Defendants Nicolai and Nicolai KK would deprive them of their rights and remedies as defaulted defendants.   

            Second, the proof of service indicates that Defendant Amanda, who is proceeding in pro per, was served the motion only electronically.  California Rules of Court, rule 2.251(b) provides:

(b) Electronic service by express consent

(1)  A party or other person indicates that the party or other person agrees to accept electronic service by:

(A)  Serving a notice on all parties and other persons that the party or other person accepts electronic service and filing the notice with the court. The notice must include the electronic service address at which the party or other person agrees to accept service; or

(B)  Manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic service address with that consent for the purpose of receiving electronic service. A party or other person may manifest affirmative consent by serving notice of consent to all parties and other persons and either:

(i)  Agreeing to the terms of service with an electronic filing service provider, which clearly states that agreement constitutes consent to receive electronic service; or

(ii)  Filing Consent to Electronic Service and Notice of Electronic Service Address (form EFS-005-CV).

(2)  A party or other person that has consented to electronic service under (1) and has used an electronic filing service provider to serve and file documents in a case consents to service on that electronic filing service provider as the designated agent for service for the party or other person in the case, until such time as the party or other person designates a different agent for service.

            Here, the Court finds no consent to electronic service by Defendant Amanda on file.  Therefore, electronic service of the motion on Amanda was not proper. 

CONCLUSION AND ORDER

Because summary judgment is improper as to Defendants Nicolai and Nicolai KK, and because the motion was not properly served on Defendant Amanda, the Court denies Plaintiff’s Motion for Summary Judgment without prejudice. 

Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  April 16, 2024                                                        ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court