On 10/19/2018 COMPUTER POWER SOLUTIONS, INC filed a Contract - Other Contract lawsuit against SUNSET FOOT CLINIC CORPORATION. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Disposed - Dismissed.
Disposed - Dismissed
JON R. TAKASUGI
COMPUTER POWER SOLUTIONS INC
SUNSET FOOT CLINIC CORPORATION
FOSTER RICHARD JAMES
10/19/2018: Civil Case Cover Sheet - Civil Case Cover Sheet
10/19/2018: Complaint - Complaint
9/28/2021: Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Dismissal (Settlement)) of 09/28/2021
9/28/2021: Minute Order - Minute Order (Order to Show Cause Re: Dismissal (Settlement))
6/29/2021: Minute Order - Minute Order (Non-Jury Trial)
9/21/2020: Notice of Ruling - Notice of Ruling
10/16/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
5/7/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
3/13/2020: Notice of Appearance - Notice of Appearance
3/13/2020: Notice of Appearance - Notice of Appearance
3/23/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
9/13/2019: Separate Statement - Separate Statement
9/13/2019: Motion for Summary Judgment - Motion for Summary Judgment
9/26/2019: Notice (name extension) - Notice of Errata
9/27/2019: Substitution of Attorney - Substitution of Attorney
9/27/2019: Substitution of Attorney - Substitution of Attorney
9/27/2019: Substitution of Attorney - Substitution of Attorney
11/12/2019: Separate Statement - Separate Statement
DocketOn the Complaint filed by Computer Power Solutions, Inc on 10/19/2018, entered Order for Dismissal without prejudice as to the entire actionRead MoreRead Less
DocketMinute Order (Order to Show Cause Re: Dismissal (Settlement))Read MoreRead Less
DocketCertificate of Mailing for (Order to Show Cause Re: Dismissal (Settlement)) of 09/28/2021; Filed by: ClerkRead MoreRead Less
DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 09/28/2021 at 09:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 09/28/2021; Result Type to HeldRead MoreRead Less
DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 09/28/2021 at 09:30 AM in Spring Street Courthouse at Department 25Read MoreRead Less
DocketMinute Order (Non-Jury Trial)Read MoreRead Less
DocketOn the Court's own motion, Non-Jury Trial scheduled for 06/29/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 06/29/2021Read MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by: ClerkRead MoreRead Less
DocketOn the Court's own motion, Non-Jury Trial scheduled for 10/20/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 06/29/2021 08:30 AMRead MoreRead Less
DocketNotice of Ruling; Filed by: Computer Power Solutions, Inc (Plaintiff)Read MoreRead Less
DocketHearing on Motion for Summary Judgment scheduled for 12/04/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketCase reassigned to Stanley Mosk Courthouse in Department 94 - Hon. James E. Blancarte; Reason: Inventory TransferRead MoreRead Less
DocketAnswer; Filed by: Sunset Foot Clinic Corporation (Defendant); Thomas Lim (Defendant); Schlomo Schmuel (Defendant)Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/22/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketNon-Jury Trial scheduled for 04/17/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Computer Power Solutions, Inc (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by: Computer Power Solutions, Inc (Plaintiff); As to: Sunset Foot Clinic Corporation (Defendant); Thomas Lim (Defendant); Schlomo Schmuel (Defendant)Read MoreRead Less
Case Number: 18STLC13001 Hearing Date: December 04, 2019 Dept: 94
Computer Power Solutions, Inc. v. Sunset Foot Clinic Corporation et al.
MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
(Code Civ. Proc., § 437c)
Plaintiff Computer Power Solution, Inc.’s Motion for Summary Judgment is DENIED. Plaintiff’s Motion for Summary Adjudication is DENIED as to all the causes of action in the Complaint.
On October 19, 2018, Plaintiff Computer Power Solutions, Inc. (“Plaintiff”) commenced this action for breach of written contract and common counts against Defendants Sunset Foot Clinic Corporation, Thomas Lim, and Schlomo Schmuel (“Defendants”).
Plaintiff filed and served the instant Motion for Summary Judgment or, in the alternative, Summary Adjudication on September 13, 2019 (“Motion”). Defendants filed and served their opposition on November 12, 2019 and Plaintiff replied on November 21, 2019.
II. Evidentiary Objections
Defendants’ Evidentiary Objections to Plaintiff’s Evidence in Support of Its Motion
Declaration of Brian K. Miller
Objections 1-4: The Court declines to rule on Defendants’ objections that the first page of the declaration was not timely filed and served because they are not evidentiary objections.
The Court weighs the competing interests of Plaintiff’s interest in a determination on its motion given its substantial compliance with Code of Civil Procedure section 473c and Defendants’ due process concerns and finds reason to consider the missing page of Brian K. Miller’s declaration along with Plaintiff’s moving papers. First, a notice of errata was promptly served on Defendants and filed with the Court on September 26, 2019. This was less than two weeks after the initial deadline to serve the motion by mail on September 14, 2019. Second, given the numbering and formatting of the declaration, it is clear that the first four paragraphs of Brian K. Miller’s original declaration were missing in the original version filed with Plaintiff’s moving papers. Third, the substance of those first four paragraphs state that Brian K. Miller is the President of Computer Power Solutions, Inc., which is not something Defendants can argue they were unaware of because the evidence attached to his declaration states that “Brian K. Miller” signed off on written communication with Defendants as “Account Manager” for “Computer Power Solutions, Inc.”, and (4) Defendants do not otherwise demonstrate substantial prejudice. Thus, the Court considers the entirety of the declaration in ruling on this Motion.
Objections 5-10: Overruled.
In reviewing the evidence, the Court will discuss below whether Brian K. Miller’s declaration is accurately supported by the evidence.
Plaintiff’s Evidentiary Objections to Defendants’ Evidence Submitted in Support of Their Opposition
Declaration of Dr. Thomas D. Lim
Objections 1-4: Overruled.
Declaration of Dr. Schlomo Schmuel
Objections 1-6: Overruled. Schlomo Schmuel can testify to the contracts entered by entity defendant, Sunset Foot Clinic Corporation, given that he is an officer of the corporation.
Declaration of Yossi Noudel
Objection 1: Sustained as to “fatally defective.” Overruled as to the balance.
Objection 2: Sustained.
Objection 3: Sustained.
III. Legal Standard
A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he or she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)
When a plaintiff seeks summary judgment, he or she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and are strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden shifting rules apply, but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)
Plaintiff moves for summary judgment or, in the alternative, summary adjudication as to each cause of action in the Complaint.
As addressed above in Section II on pages 2 to 3, the Court finds sufficient reasons to consider the first page of Brian K. Miller’s declaration filed with the Court in Plaintiff’s notice of errata. Therefore, the Court remains unpersuaded by Defendants’ argument that the Motion is only supported by inadmissible evidence due to the omission of that page. The Court declines to rule on the Motion on said procedural grounds.
Continuance for Discovery – (Code Civ. Proc., § 473c, subd. (h))
Defendants also request that the Court continue the Motion to allow for additional discovery under Code of Civil Procedure section 473c, subdivision (h). Defendants’ attorney declares that he was substituted as attorney of record on September 27, 2019 and no discovery had been requested or depositions taken. Defendants’ attorney declares that he has served Brian K. Miller with a notice of deposition with request for production of documents but has not received any documents demonstrating a written agreement signed by Defendants.
“It is not sufficient under [Code of Civil Procedure section 437c, subdivision (h)] merely to indicate further discovery or investigation is contemplated…The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’ ” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) If the declaration fails to show such facts, the court does not abuse its discretion in denying the request for a continuance. (Ibid.) Moreover, when a party’s lack of diligence results in them no knowing whether facts justifying their opposition exist, the court may deny opposing party’s request to continue the motion. (Desaigoudar v. Meyercord (2003) 108 Cal. App. 4th 173, 190.)
Although Defendants’ attorney’s declaration states that Defendants have a pending deposition and request for production of documents seeking a written agreement signed by Defendants, the instant action was filed over a year ago, on October 19, 2018. Defendants’ attorney’s declaration also states that he substituted in as counsel on September 27, 2019. Substitution of counsel does not provide justification for the lack of diligence Defendants have shown in defending this case. Defendants do not provide any other reason as to why discovery has not been conducted sooner.
Accordingly, the Court declines to continue this Motion and addresses the merits of Plaintiff’s Motion.
Separate Statement – California Rules of Court, rule 3.1350(b)
Defendants contend that Plaintiff’s separate statement fails to comply with California Rules of Court, rule 3.1350(b) because it does not set forth the issues sought to be adjudicated in its separate statement.
A party moving for summary adjudication must specify the cause of action, affirmative defense, claims for damages, or issues of duty in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts. (Cal. Rules of Court, rule 3.1350(b).)
Upon review of Plaintiff’s separate statement, the Court finds that Plaintiff properly states each noticed issue in its separate statement. (Plaintiff’s Separate Statement pp. 2, 4.)
Therefore, the Court moves to the merits of Plaintiff’s Motion.
Plaintiff’s First Cause of Action for Breach of Written Contract
Plaintiff contends that it is entitled to summary adjudication as to its first cause of action for breach of contract because Plaintiff can establish that Defendants breached their agreement with plaintiff by failing to pay for a battery back-up power system that Plaintiff delivered to Defendants.
“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff.” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)
Deficiencies in the Complaint
A view of the Complaint demonstrates that Plaintiff’s first cause of action is deficient because it alleges that a written contract was entered with Plaintiff, Computer Power Solutions, Inc., but in section BC-1, it does not allege with whom. (Complaint, p. 3.) The Complaint also states that a copy of the written agreement is attached as Exhibit A, but Exhibit A is not attached.
As evidence of a written agreement between it and Defendants to purchase a battery back-up power system an unsigned proposal, Plaintiff presents an email proposal from Plaintiff’s president to defendant Lim, an email response from defendant Lim asking for changes to the agreement, and an email response from Plaintiff’s president requesting that Defendants sign and return the amended proposal. (Miller Decl., ¶¶ 5-7, Exhs. A, B.) However, Plaintiff does not provide a copy of a signed written agreement between Plaintiff and Defendants.
Further, in opposition, Defendants contend that they did not enter into an agreement with Plaintiff. Defendants submit the declarations of defendant Lim and Defendant Schmuel who both state that they did not sign an agreement with Plaintiff. (Lim Decl., ¶ 2, Schmuel Decl. ¶¶ 3-4.) Moreover, Defendants provide evidence by way of a sworn declaration by Sunset Foot Clinic Corporation’s President, Schlomo Schmuel, that entity defendant, Sunset Foot Clinic Corporation, did not enter into a written agreement with Plaintiff. (Schmuel Decl., ¶ 5.)
“ ‘ “[W]hether a certain or undisputed state of facts establishes a contract is one of law for the court[.] On the other hand, where the existence ... of a contract or the terms thereof is the point in issue, and the evidence is conflicting or admits of more than one inference, it is for the ... trier of the facts to determine whether the contract did in fact exist[.]’ [Citations.] ‘Mutual assent or consent is necessary to the formation of a contract’ and ‘[m]utual assent is a question of fact.’ ” (Vita Planning & Landscape Architecture, Inc. v. HKS Architects, Inc. (2015) 240 Cal.App.4th 763, 771–772.)
Here, Defendants’ evidence in opposition raises a triable issue of fact as to whether the parties consented to the terms of the contract. Because mutual assent is required to form a contract, it is impossible to determine whether a contract formed between the parties as a matter of law.
For the aforementioned reasons, Plaintiff does not meet its moving burden of establishing every element of its cause of action for Breach of Contract. Moreover, Defendants present evidence that there are triable issues of fact as to whether a written contract existed between Plaintiff and Defendants.
Accordingly, Plaintiff’s motion for summary adjudication as to its first cause of action for breach of contract is denied.
Plaintiff’s Second Cause of Action for Common Counts
Plaintiff moves for summary adjudication as to its second cause of action for common counts on the grounds that it can establish every element of its cause of action for common counts. Plaintiff’s second cause of action seeks relief on two grounds: (1) account stated; and (2) goods, wares and merchandise sold and delivered.
“The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; [and] (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600; see CACI 373.)
Goods Sold and Delivered
In order to recover based on a common count theory for “goods sold and delivered,” a plaintiff must plead and prove (1) an indebtedness for a certain sum; (2) that goods were sold and delivered; and (3) nonpayment by defendants. (Allen v. Parnell (1967) 248 Cal.App.2d 502, 510.)
In moving for summary judgment, Plaintiff presents evidence that on March 23, 2018, Computer Power Solutions, Inc. sent defendants Schmuel and Lim a proposal regarding the purchase of a battery back-up power system, quoted at $10,710.89 to demonstrate previous transactions between the parties establishing a relationship of debtor and creditor. (Miller Decl., ¶¶ 5-7, Exhs. A, B.) Plaintiff’s evidence further demonstrates that Defendant Lim sent an email to the President of Computer Power Solutions, Inc. and requested that his name be changed to “Dr. Schlomo Schmuel” on the proposal because Schmuel would be paying for the equipment. (Miller Decl., ¶ 7, Exh. B.) The evidence also shows that Computer Power Solutions received a receipt of a delivery to Defendants’ business address signed by “T.Lim” on April 10, 2018. (Miller Decl., ¶ 8, Exh. C.) Plaintiff also provides evidence that one of Plaintiff’s service agents installed the battery back-up power system at Defendants’ business address on April 19, 2019. (Miller Decl., ¶ 11, Exh. F.) Finally, Plaintiff provides an invoice in the sum of $10,710.89 billed to “Sunset Foot Clinic…Attn: Dr. Schlomo Schmuel.” (Miller Decl., ¶ 12, Exh. G.)
Deficiencies in the Complaint
Unlike an action for breach of written contract, a plaintiff does not have to plead or prove the existence of a written agreement between the parties to prevail on a cause of action for common counts. However, a plaintiff must still plead and prove who benefited from the transaction in order to recover damages.
Here, Plaintiff pleads in the Complaint that “Sunset, Lim, and Schmuel” are all obligated to it under its cause of action for common counts. Plaintiff’s moving evidence does not specifically demonstrate which Defendant benefited from the back-up power supply because it groups the entity and individual defendants together as discussed in more detail below.
Individuals’ Immunity for Corporate Obligations
“The corporate form was created to allow shareholders to invest without incurring personal liability for the acts of the corporation.” (Pearson v. Component Technology Corp. (3d Cir. 2001) 247 F.3d 471, 484.)
Plaintiff’s own evidence demonstrates the existence of a triable issue of material fact with respect to which defendant was liable to Plaintiff for the delivery of the back-up power system because it shows that there were communications between Plaintiff and defendant Lim referencing Schlomo and Sunset Foot Clinic Corporation, and a signature by “T.Lim” for the delivery. However, the invoice is billed only to the entity defendant, Sunset Foot Clinic Corporation.
In opposition, Defendants present the declaration of defendant Lim who states that he is not a director, officer, or manager at Sunset Foot Clinic Corporation and has not been authorized to enter into any contracts for the purchase of medical equipment on Sunset Foot Clinic Corporation’s behalf. (Lim Decl., ¶¶ 7-8.) Defendants also present the declaration of Defendant Schlomo who states that he did not enter into any obligations with Plaintiff or benefit from any equipment provided by Plaintiff as an individual, or as an officer acting on behalf of Sunset Foot Clinic Corporation. (Schlomo Decl., ¶¶ 3-8.)
Plaintiff’s reply disputes Defendants’ evidence on the grounds that it is self-serving. While the Court does note that Defendant’s opposition evidence is based entirely on their own declarations, without documentation of the purported terms of the agreement or Defendants’ purported breaches of its obligations. However, on a motion for summary judgment or adjudication, the Court is to strictly construe the moving party’s evidence and the opposing’s party evidence must only rise beyond mere speculation. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) In light of this standard and the triable issues of material fact created by Plaintiff’s own Complaint and motion, the Court finds that the evidence in opposition is sufficient to create a triable issue of material fact regarding which parties, if any, were indebted to Plaintiff.
Therefore, the motion for summary adjudication is denied as to Plaintiff’s second cause of action for common counts.
For the foregoing reasons, Plaintiff Computer Power Solution, Inc.’s Motion for Summary Judgment is DENIED. Plaintiff’s Motion for Summary Adjudication is DENIED as to all the causes of action in the Complaint.
Moving party to give notice.
 The Court will only rule on the objections to evidence that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)
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