Judge Michael J. Strickroth, Case 2020-01153440 2022-11-28 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2020-01153440, Date: 2022-11-28 Tentative Ruling

Motion to Dismiss

Defendant’s Motion to Dismiss or Alternatively, Motion for Summary Judgment, is DENIED.

First, the motion seeks dismissal because Plaintiff Ommid, LLC is not represented by counsel and because Plaintiff has failed to prosecute under Code of Civil Procedure section 583.410 and California Rules of Court, Rule 3.1342.

As a corporation, Plaintiff is required to be represented by counsel in this litigation. CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145. However, the opposition demonstrates Plaintiff has retained new counsel as of 11/14/22, so the motion is denied as to this issue.

As for Defendant’s second argument, Code of Civil Procedure section 583.410(a) states,

“(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”

Code of Civil Procedure section 583.420 provides in part, “(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:

(1) Service is not made within two years after the action is commenced against the defendant.

(2) The action is not brought to trial within the following times:

(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).

(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.

(3) A new trial is granted and the action is not again brought to trial within the following times:

(A) If a trial is commenced but no judgment is entered because of a mistrial or because a jury is unable to reach a decision, within two years after the order of the court declaring the mistrial or the disagreement of the jury is entered.

(B) If after judgment a new trial is granted and no appeal is taken, within two years after the order granting the new trial is entered.

(C) If on appeal an order granting a new trial is affirmed or a judgment is reversed and the action remanded for a new trial, within two years after the remittitur is filed by the clerk of the trial court.”

Here, Defendant contends Plaintiff has not served discovery or taken other action since Defendant answered the complaint. However, Defendant has not shown that the circumstances under Code of Civil Procedure section 583.420 are present. Therefore, the motion to dismiss for delay in prosecution is denied.

Second, the motion seeks summary judgment as to Plaintiff’s complaint.

Code of Civil Procedure section 437c(p)(2) states:

“(2) A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the 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 the cause of action or a defense thereto.”

Harman v. Mono General Hospital (1982) 131 Cal.App.3d 607, 612–613, states:

“A motion for summary judgment is designed to test whether there is sufficient evidence upon which a claim or defense may be sustained. “Such motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ.Proc., § 437c.) However, “... summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Ibid.) Where, as here, the motion for summary judgment is unopposed, the moving party may still not be granted summary judgment unless his papers clearly establish that there is no triable issue of fact and he is entitled to judgment. (de Echeguren v. de Echeguren (1962) 210 Cal.App.2d 141, 148, 26 Cal.Rptr. 562.)”

Here, Plaintiff’s complaint alleges causes of action for (1) specific performance of written settlement agreement, and (2) damages for breach of written settlement agreement. Paragraph 9 of the complaint describes the term of the settlement agreement which Plaintiff alleges Defendant has breached:

“7. SAMS’ Assistance of OMMID. CYPRESS will permit general contractor and its designated expert, Matt Sams (“SAMS”), to assist OMMID in negotiating a scope of work for completion of the project for remodel of the PROPERTY as reflected in the CONTRACT and the SUBCONTRACT. CYPRESS will pay SAMS’ hourly charges up to $10,000 for those services. SAMS will turn over to OMMID all reports and papers he has prepared in relation to the PROPERTY. SAMS will also provide a proposed contractor to do the work reflected in the agreed upon scope of work he develops with OMMID. That work will be performed at OMMID’s expense and discretion.”

At paragraphs 11-12 of the complaint, Plaintiff describes the alleged breach as follows:

“11. Sams met with Plaintiff and discussed a new scope of work. However, Sams failed to provide a contractor willing to do that work. Accordingly, Defendant breached the express terms of the Settlement Agreement because Sams who was acting on Defendant’s behalf failed to satisfy this express obligation of providing a proposed contractor to do the work reflected in the new scope of work he discussed with Plaintiff.

12. Sams initially suggested a contractor, but that contractor was unwilling to take on the project, so this referral was a meaningless and ineffective sham gesture that in no way satisfied Defendant’s express obligation under the Settlement Agreement. This contractor declared its unwillingness to do the work after the underlying Lawsuit was dismissed. Prior to that time, Sams and the contractor falsely represented to Plaintiff that the contractor would do the work, and Plaintiff only learned of Defendant’s breach of the Settlement Agreement after the underlying lawsuit was dismissed. Plaintiff agreed to the dismissal of its cross-complaint as part of that dismissal, but its cross-complaint was only against TLM and not Defendant, so Plaintiff did not dismiss any claims against Defendant or waive any of the ongoing obligations of Defendant owing pursuant to the Settlement Agreement. The request for dismissal was signed by counsel and did not attach a copy of the Settlement Agreement signed by the parties, so the judge in the Lawsuit determined that she did not have jurisdiction to enforce it, and this action is therefore necessary in order to do so.”

Defendant contends summary judgment is required because Plaintiff has failed to attach the subject contract to the complaint. Plaintiff has filed a “Notice of Errata and Amendment to Add the Settlement Agreement as Exhibit ‘1’ to the Complaint” concurrently with its opposition to the motion. If Plaintiff seeks to amend the complaint, Plaintiff must seek leave to amend under Code of Civil Procedure section 473 and California Rules of Court, Rule 3.1324.

However, Plaintiff’s failure to attach the contract to the complaint is not determinative of the motion. “In an action based on a written contract, a plaintiff may plead the contract word for word in the body of the complaint, attach the contract to the complaint, or plead the legal effect of the contract rather than its precise language.” Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199. Although Plaintiff has not attached the subject contract to the complaint, Plaintiff has adequately alleged the terms of the contract in the complaint.

Defendant submits a “Statement of Undisputed Material Facts” at pages 3-5 of its memorandum of points and authorities. However, the separate statement does not comply with the requirements of California Rules of Court, Rule 3.1350. The only evidence in support of the motion is the declaration of Defendant’s counsel, which includes a description of Plaintiff’s allegations, a description of Plaintiff’s responses to written discovery, and concludes, “Plaintiff has not offered any evidence that shows that ¶ 7 of the Settlement Agreement actually required Sams to find a contractor willing to do the work.”

Defendant has not met its burden of showing there is no triable issue of material fact as to Plaintiff’s causes of action in the complaint. For example, Defendant has not presented admissible evidence demonstrating that it complied with the contractual terms described in paragraph 9 of the complaint. The Court cannot determine there is no triable issue as to Plaintiff’s contract claims based solely on the allegations in the complaint and Plaintiff’s discovery responses cited in the declaration of defense counsel. Therefore, the motion for summary judgment is denied.

Plaintiff to give notice.