Judge: Virginia Keeny, Case: 22VECV00091, Date: 2023-01-09 Tentative Ruling
Case Number: 22VECV00091 Hearing Date: January 9, 2023 Dept: W
DARYL BASKIN v.
micah eigler, et al.
plaintiff’s MOTION
FOR SUMMARY JUDGMENT
Date of Hearing: January
9, 2023 Trial Date: February 27, 2023
Department: W Case
No.: 22VECV00091
Moving Party: Plaintiff
Daryl Baskin
Responding Party: None
BACKGROUND
Plaintiff alleges that Defendant
breached his contractual obligations by failing to pay the sum he owed Plaintiff
under the parties’ written contract. He further alleges that the Defendant
waived the statute of limitations in exchange for Plaintiff not entering
judgment against him.
On January 21, 2022, Plaintiff Daryl
Baskin (“Plaintiff”) filed this action against Defendant Micah Eigler (“Defendant”),
asserting causes of action for (1) breach of contract and (2) common counts.
On February 22, 2022, Defendant filed
his Answer.
Plaintiff now moves for summary
judgment of his Complaint. As of January 5, 2023, no opposition to the motion,
evidentiary objections, or requests for judicial notice have been filed.
[Tentative] Ruling
Plaintiff Daryl Baskin’s Motion for
Summary Judgment is GRANTED.
ANALYSIS
Legal
Standard
The purpose of a motion for summary
judgment “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. Atl. 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 judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“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.) “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.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th
463, 467; see also Code Civ. Proc., §
437c, subd. (c).)
“A plaintiff … has met his or her
burden of showing that there is no defense to a cause of action if that party
has proved each element of the cause of action entitling the party to judgment
on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the
plaintiff … has met that burden, the burden shifts to the defendant … to show
that a triable issue of one or more material facts exists as to the cause of
action or a defense thereto.” (Ibid.)
First
Cause of Action for Breach of Contract
“To prevail on a cause of action for
breach of contract, the plaintiff must prove (1) the contract, (2) the
plaintiff’s performance of the contract or excuse for nonperformance, (3)
the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman
v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)
“Contract
formation requires mutual consent, which cannot exist unless the parties ‘agree
upon the same thing in the same sense.’ (Civ. Code, §§ 1580, 1550, 1565.)” (Bustamante
v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208 (“Bustamante”).)
“‘If there is no evidence establishing a manifestation of assent to the ‘same
thing’ by both parties, then there is no mutual consent to contract and no
contract formation.’ [Citation.]” (Ibid.) “‘Mutual consent is determined
under an objective standard applied to the outward manifestations or
expressions of the parties, i.e., the reasonable meaning of their words and
acts, and not their unexpressed intentions or understandings.’ [Citations.]” (Ibid.)
“Where
the existence of a contract is at issue, and the evidence is conflicting or
admits of more than one inference, it is for the trier of fact to determine
whether the contract actually existed.” (Bustamante, supra, 141
Cal.App.4th at p. 208.) “But if the material facts are certain or undisputed,
the existence of a contract is a question for the court to decide.” (Ibid.)
Responses to requests for admissions
can be considered in a motion for summary judgment proceeding. (Barnett v.
American-Cal Medical Services (1984) 156 Cal.App.3d 260, 266 [“[T]he court
properly refused to set aside the admissions, and they were appropriately
considered in granting the motion for summary judgment”]; Code Civ. Proc., § 2033.410,
subd. (a) [“Any matter admitted in response to a request for admission is
conclusively established against the party making the admission in the pending
action, unless the court has permitted withdrawal or amendment of that
admission under Section 2033.300”].)
Here, Plaintiff moves for summary judgment
based on Defendant’s responses to his requests for admissions. Defendant served
verified responses to Plaintiff’s requests for admissions admitting the
following: (1) he signed the written agreement (the “Agreement”) attached to
the Complaint as Exhibit A; (2) he intended for the Agreement to be enforceable
when he signed it; (3) since executing the Agreement, he has acknowledged in
writing that he owed Plaintiff money pursuant to the Agreement; and (4) that
Plaintiff has fully performed all of his obligations under the Agreement,
including Paragraph 3 of the Agreement which required Plaintiff to forego
pursuing a judgment against the Defendant in exchange for Defendant waiving the
statute of limitations involved in Plaintiff’s pursuit of the obligation
Defendant owed. (Plaintiff’s Compendium of Evidence, filed on August 1, 2022(“COE”),
Ex. A – Plaintiff’s first set of requests for admissions (“First RFA”),
Attachment 1, ¶¶ 2, 3, 4, 5, and 6; Ex. B – a copy of
Defendant’s responses to the First RFA, p. 2:2-26.) Further, the Agreement
provides that that Defendant owes a total of $314,000, and Defendant subsequently admitted under oath that
he has paid no more than $29,500 to the Plaintiff. (COE, Ex. C – Plaintiff’s
second set of requests for admissions (“Second RFA”), Attachment 1, ¶
1; Ex. D – Defendant’s responses to Second RFA, p. 2:2-3.) Therefore, Defendant
has essentially admitted that $284,500 is the remaining balance.
The Court finds that Plaintiff has met
his burden of showing that there is no defense to his first cause of action for
breach of contract by proving each element of the cause of action entitling him
to judgment on that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)
Accordingly, the burden shifts to the
Defendant to show that a triable issue of one or more material facts exists as
to the breach of contract cause of action or a defense thereto.
Here, by failing to file an opposition,
Defendant has failed to meet his burden of showing that there are triable
issues of material fact as to Plaintiff’s breach of contract claim.
Second
Cause of Action for Common Counts
“‘“A common count is proper whenever
the plaintiff claims a sum of money due, either as an indebtedness in a sum
certain, or for the reasonable value of services, goods, etc., furnished. It
makes no difference in such a case that the proof shows the original
transaction to be an express contract, a contract implied in fact, or a
quasi-contract.” [Citation.]’ [Citation.]” (Utility Audit Co., Inc. v. City
of Los Angeles (2003) 112 Cal.App.4th 950, 958.)
“A claim for money had and received can
be based upon … performance by one party of an express contract.” (Utility
Audit Co., Inc. v. City of Los Angeles, supra, 112 Cal.App.4th at p.
958.) “The only essential allegations of a common count are ‘(1) the statement
of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work
done, etc., and (3) nonpayment.’ [Citation.]” (Farmers Ins. Exchange v.
Zerin (1997) 53 Cal.App.4th 445, 460.)
Here, Plaintiff’s common counts claim
was based on his performance of the parties’ express contract. In addition, the
same allegations that supported his first cause of action for breach of that
contract underlie his second cause of action for common counts.
Since the Court has found that
Plaintiff has met his initial burden of summary judgment as to his first cause
of action for breach of contract, he has also met it as to the second cause of
action for common counts. Defendant has failed to meet his burden showing that
there are triable issues of material fact as to the common counts claim or
defense thereto by failing to file an opposition.
For the reasons set forth above, the
Court finds that all the papers submitted show that there is no triable issue
as to any material fact and that Plaintiff, the moving party, is entitled to a
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
Accordingly,
the motion is granted.
CONCLUSION
Plaintiff Daryl Baskin’s Motion for
Summary Judgment is GRANTED.