Judge: Peter A. Hernandez, Case: KC069311, Date: 2022-08-16 Tentative Ruling

Case Number: KC069311    Hearing Date: August 16, 2022    Dept: O

Defendant Chandana Basu’s Motion for Summary Judgment is DENIED.

Background   

Plaintiff Michael J. Hemming (“Plaintiff”) alleges as follows:

Plaintiff is an attorney. On December 22, 2012, Plaintiff and Chandra Basu (“Basu”) on behalf of Doctors Reimbursement Services LLC, dba Professional Billing Services (“Doctors”) entered into an “Attorney-Client Contingency Fee Agreement.” Doctors does not exist and the real party is Basu. Plaintiff provided legal services to Basu but has not been paid. In or about July 2019, Plaintiff and Basu on behalf of PPJ Enterprises entered into an “Attorney-Client Contingency Fee Agreement.” Plaintiff provided legal services to PPJ Enterprises but has not been paid. On or about June 30, 2015, a lawyer representing PPJ Enterprises, i.e., Pamela Tahim aka Pamela Thakor (“Tahim”) of Treadway, Lumsdaine and Doyle, LLP (“the Tredway Firm”), falsely represented that funds claimed by Plaintiff for costs would be held in an attorney/client trust account and she would file an interpleader if an agreement could not be reached between Plaintiff and Firm on behalf of Basu.

On October 23, 2017, Plaintiff filed a Second Amended Complaint (“SAC”), asserting causes of action against Basu, PPJ, Tahim, the Tredway Firm and Does 1-10 for:

1.                  Breach of Contract—Basu

2.                  Breach of Contract—PPJ

3.                  Common Counts—Basu

4.                  Common Counts—PPJ

5.                  Fraud

6.                  Breach of Fiduciary Duty

On April 12, 2018, Plaintiff filed an “Amendment to Complaint,” wherein PPJ Healthcare Enterprises, Inc. (“PPJ Healthcare”) was named in lieu of Doe 1. On July 18, 2018, PPJ Healthcare’s default was entered.

On August 27, 2018, Basu filed a Second Amended Cross-Complaint (“SACC”), asserting causes of action against Plaintiff, Michael J. Hemming and Associates and Does 1-100 for:

1.                  Breach of Contract

2.                  Breach of Covenant of Good Faith and Fair Dealing

3.                  Conversion

4.                  Fraud and Deceit—Negligence

5.                  Fraud and Deceit—Intentional Misrepresentation

6.                  Intentional Interference with Economic Advantage

7.                  Intentional Misconducts

8.                  Violation of Business and Professions Code section 17200

9.                  Common Count

10.              Breach of California Rules of Professional Conducts—Rule 3-110, Rule 3-300, Rule 3-310, Rule 3-320, Rule 3-300, Rule 5-200, Rule 5-220

On December 18, 2018, the court sustained Plaintiff’s demurrer to the first through ninth causes of action in Basu’s SACC without leave to amend.

On April 23, 2019, an “Order Granting Motion for Determination of Good Faith Settlement” as between Plaintiff and the Tredway Firm was filed.

On February 18, 2020, Plaintiff filed an “Amendment to Complaint,” wherein Doctors Reimbursement Services LLC was named in lieu of Doe 2.

On April 27, 2020, Plaintiff dismissed Tahim, with prejudice. On April 29, 2020, Plaintiff dismissed the Treadway Firm, with prejudice.

The Final Status Conference is set for October 4, 2022. Trial is set for October 18, 2022.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “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.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge 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 a judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; Code Civ. Proc., § 437c, subd. (c).)

Discussion

Basu moves the court for summary judgment in her favor and against Plaintiff.

Request for Judicial Notice

At the outset, the court rules on Basu’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit 1 (i.e., complaint filed May 11, 2017); Granted as to Exhibit 2 (i.e., SAC filed October 23, 2017 [erroneous September 11, 2017 filing date listed]) and Granted as to Exhibit 3 (i.e., Basu’s answer to SAC filed April 24, 2018).

Merits

“[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [“The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond”]; Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [“the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings”].)

Plaintiff’s operative complaint is the SAC filed October 23, 2017. Plaintiff has alleged, in relevant part, that “[a] contract was entered into between Plaintiff and Defendant Chandana Basu (hereinafter “Basu”) on behalf of Doctors Reimbursement Services. Doctors Reimbursement Services does not exist and the real party is Defendant Basu. Under the terms of the agreement, Plaintiff agreed to provide legal and attorney services to Defendant. A copy of the contract, Attorney/Client Fee Agreement is attached hereto as Exhibit One. . .” (SAC, ¶ 12.) Plaintiff has further alleged that Plaintiff provided attorney services to Basu under the agreement, that Basu has failed to pay the sums due and that Plaintiff has been damaged. (Id., ¶¶ 13 and 14.) Plaintiff references this same contract in his third cause of action. (Id., ¶ 25.)

Basu, however, now seeks summary judgment on the basis that Plaintiff has executed a declaration wherein Plaintiff attests that he is not, in fact, suing on Exhibit One attached to the SAC, but on a separate oral agreement allegedly reached between Basu and himself with respect to the provision of legal services pertaining to the defense of a cross-complaint filed by Dr. Thomas G. Hirose against Basu and Doctors in case styled Doctors Reimbursement Services LLC v. Hirose, Case No. BC512448. This agreement, however, is not pled in the SAC. Accordingly, Basu’s motion is denied.