Judge Thomas D. Long, Case Number: 22STCV16977, Date: 2024-11-19 Tentative Ruling

On February 24, 2023, Cross-Complainants Diana Lands AKA Diana Lands Nathanson (“Lands”) and Diana Lands Nathanson Design, Inc. (“Design”) filed a First Amended Cross-Complaint (“FACC”) in this action against Cross-Defendants Jessica De Rothschild, Alexander Gervasi, and Industria (USA) LLC alleging (1) negligence; (2) breach of contract (implied contract); (3) breach of contract (unformalized agreement); (4) breach of contract (common count – goods and services rendered); (5) quantum meruit; (6) defamation; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; and (9) negligence per se. The sixth, seventh, and eighth causes of action have been dismissed.

On July 26, 2024, Cross-Defendants filed a motion for summary adjudication of the breach of contract claims. Cross-Complainants filed an opposition. Cross-Defendants did not file a reply.

Cross-Defendants requested that Lands send them a written contract for her services “in the very beginning” of her work on the Nichols Canyon Project. (Undisputed Material Facts “UMF” 7.) Cross-Defendants asked Lands again to send a contract, but Lands does not know when they asked or how many times they asked. (UMF 8.) The first time Lands sent a proposed contract to Cross-Defendants was on March 1, 2022. (UMF 10.) Cross-Defendants never signed the contract. (UMF 12.)

Lands began working on the Nichols Canyon Project in March or April 2021. (UMF 9.) Lands’s fee on the Nichols Canyon Project was “a moving target because the scope changed often.” (UMF 2.) She figured out what her fees would be on the Nichols Canyon Project by “[c]alculating the amount of time that I spent on the project, the amount of items that were purchased, and cutting it in more than half because they were my friends.” (UMF 3; see UMF 4.)

Lands never presented Cross-Defendants with a proposed written contract for the Malibu Project. (UMF 15.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) 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, 162-163.)

Cross-Defendants argue that the FACC’s second, third, and fourth causes of action fail because the parties did not agree to material contract terms, and thus no contract was formed. (Motion at p. 6.)

Cross-Complainants asks the Court for a continuance so they can conduct discovery to oppose the motion. (Opposition at pp. 7-11.) If affidavits submitted in opposition to a motion for summary judgment show that facts essential to justify opposition may exist but cannot be presented, the Court shall deny the motion or order a continuance to permit additional discovery. (Code Civ. Proc., § 437c, subd. (h).)

On September 3, 2024 Lands served written discovery on Cross-Defendants. (Fine Decl. ¶ 4.) Cross-Defendants’ discovery responses were not received until October 24, 2024. (Fine Decl. ¶ 7.) Cross-Defendants claimed an inability to admit or deny almost 73% of the requests for admission and did not properly respond to Form Interrogatory No. 17.1 with information about the denials. (Fine Decl. ¶¶ 8-10, 16-17.) Cross-Defendants provided only objections to 56% of the special interrogatories and almost 70% of the special interrogatories. (Fine Decl. ¶¶ 12-15.) No documents were produced in response to Demand for Production of Documents, Set Two. (Fine Decl. ¶ 18.) Cross-Complainants contend that “[m]any special interrogatories bore directly on the key argument raised by Cross-Defendants in support of their Motion for Summary Adjudication—namely, the alleged failure to reach an agreement with Cross-Defendants regarding certain material terms of the implied contract for services.” (Fine Decl. ¶ 19; see Fine Decl. ¶¶ 19-26, 30-31.)

Ms. Rothschild was deposed on October 29, 2024, a week before the opposition was due. (Fine Decl. ¶ 33.) Cross-Complainants have not yet received the final transcript of Ms. Rothschild’s deposition, but they anticipate using it to show the manner and terms of Lands’s payment, and the allegedly undefined nature of the scope of her services. (Fine Decl. ¶ 39.) Cross-Complainants continued Mr. Gervasi’s deposition pending the results of a motion to compel further discovery responses, due to Cross-Defendants’ deficient responses. (Fine Decl. ¶ 34.) They expect Mr. Gervasi to possess unique knowledge regarding the scope of Lands’s services and the manner and terms of her payment. (Fine Decl. ¶ 40.)

Cross-Defendants did not file a reply or any opposition to the request for a continuance.

The Court is inclined to continue the hearing and set deadlines for a supplemental opposition and reply so Cross-Complainants may oppose the motion with the additional evidence.

At the hearing, the parties should be prepared to discuss the scheduling of depositions, supplemental discovery production, and related dates.

Cross-Complainants may file an amended opposition and Cross-Defendants may file a reply pursuant to statutory filing deadlines.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court