FISCHBACH & FISCHBACH, ALC VS JULIAN LEDESMA

Tentative Rulings

Case Number: 19STLC03268    Hearing Date: January 22, 2020    Dept: 25

MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED

(CCP § 2033.280)

TENTATIVE RULING:

Plaintiff Fischbach & Fischbach, ALC’s Motion to Deem Matters Admitted is DENIED. However, Plaintiff’s Request for Monetary Sanctions is GRANTED in the amount of $360.00.

OPPOSITION: Filed on January 8, 2020 [ ] Late [ ] None

REPLY: None filed as of January 17, 2020 [ ] Late [X] None

1. Background

On April 3, 2019, Plaintiff Fischbach & Fischbach, ALC (“Plaintiff”) filed an action for breach of contract, common counts, and account stated against Defendant Julian Ledesma (“Defendant”). Defendant filed an Answer to the Complaint on May 31, 2019.

On August 28, 2019, Plaintiff filed a Motion for Summary Adjudication as to the account stated cause of action. On December 2, 2019, the Court granted that motion.

On November 14, 2019, Plaintiff filed the instant Motion to Deem Matters Admitted Pursuant to Requests for Admission, Set Two, Nos 1 to 9[1] and Request for Monetary Sanctions (the “Motion”).

On December 6, 2019, Defendant, formerly self-represented, filed a Substitution of Attorney form designating Natela Shenon, Esq. from Shenon Law Group as his legal representative.

On January 8, 2020, Defendant filed an Opposition.

To date, no reply brief has been filed.

1. Legal Standard

A party must respond to requests for admissions within 30 days after service of such requests. (Code Civ. Proc., § 2033.250, subd. (a).) “The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product privilege…” (Code Civ. Proc., § 2033.280, subd. (a).) “The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7.” (Id. at subd. (b).) However, a court will not make such an order “if a party to whom requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Id. at subd. (c).)

A motion dealing with the failure to respond, rather than with inadequate responses, does not require the requesting party to meet and confer with the responding party. (Deymer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4 [disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973]. There is no time limit within which a motion to have matters deemed admitted must be made. (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1585.)

In addition, Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process. A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) Further, it is mandatory that the Court impose a monetary sanction on the party or attorney whose failure to serve a timely response to requests for admission necessitated such motion. (Code Civ. Proc., § 2033.280, subd. (c).)

1. Discussion

Here, Plaintiff served Defendant with Requests for Admission, Set Two, on September 3, 2019 by overnight delivery. (Mot., Fischbach Decl., ¶¶ 4-5.) As such, responses were due on October 5, 2019. (Code Civ. Proc., § 1013.)

Defendant did not serve any responses to the Requests for Admission before the instant Motion was filed. (Id., ¶¶ 6, 8.) However, after this Motion was filed and after obtaining legal representation, Defendant served verified Responses to Plaintiff’s Requests for Admission, Set Two. (Oppo., Matevosyan Decl., ¶ 3, Exh. A.) The Court finds these responses are in substantial compliance with Code of Civil Procedure section 2033.220. As such, Plaintiff’s request to deem matters admitted is DENIED .

Although delayed responses may defeat a motion to deem matters admitted, they will not avoid monetary sanctions. Indeed, the imposition of sanctions is mandatory against the party whose untimely responses necessitated this motion. (Code Civ. Proc., § 2033.280, subd. (c).) Plaintiff’s attorney requests $510.00 in sanctions based on four hours of attorney time billed at $150.00 per hour and a filing fee of $60.00. (Mot., Fischbach Decl., ¶ 9.) Plaintiff seems to have miscalculated the total amount of sanctions. Regardless, the Court finds this amount to be excessive given the relative simplicity of this Motion and the lack of reply. Plaintiff’s request for sanctions is GRANTED in the amount of $360.00 based on two hours of attorney time billed at $150.00 per hour and a $60.00 filing fee.

1. Conclusion & Order

Based on the foregoing, Plaintiff Fischbach & Fischbach, ALC’s Motion to Deem Matters Admitted is DENIED. However, Plaintiff’s Request for Monetary Sanctions is GRANTED in the amount of $360.00.

Moving party to give notice.

Case Number: 19STLC03268    Hearing Date: December 02, 2019    Dept: 94

Fischbach & Fishbach, ALC v. Ledesma, et al.

MOTION FOR SUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Fischbach & Fischbach, ALC’s Motion for Summary Adjudication GRANTED AS TO THE THIRD CAUSE OF ACTION FOR ACCOUNT STATED IN THE COMPLAINT.

ANALYSIS:

On April 3, 2019, Plaintiff Fischbach & Fischbach, ALC (“Plaintiff”) filed the instant action for breach of retainer agreement, common counts against Defendant Julian Ledesma (“Defendant”). Defendant filed his Answer on May 31, 2019. On July 1, 2019, Defendant also filed a Notice of Stay of Proceedings pursuant to arbitration of attorney fees and costs under Business and Professions Code section 6201. However, no copy of Defendant’s request for arbitration is attached to the Notice of Stay as required by Cal. Business and Profession Code section 6201, subdivision (b). Plaintiff filed the instant Motion for Summary Adjudication on August 28, 2019. To date, no opposition has been filed.

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/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 Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/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 be 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 movant’s 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).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) 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).)

Discussion

Plaintiff moves for summary adjudication of the third cause of action for account stated on the grounds that Defendant had a legal duty to object to Plaintiff’s invoices within a reasonable time. “An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787.) When the account is assented to, ‘“it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties. …” (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 725.) In order to prevail on a cause of action for account stated, Plaintiff must demonstrate that (1) Defendant owed Plaintiff money from previous financial transactions; (2) the parties, by words or conduct, agreed that the amount stated in the account was the correct amount owed; (3) Defendant, by words or conduct, promised to pay the stated amount; Defendant has not paid the amount owed under this account; and (5) the amount owed. (CACI 373.)

Plaintiff presents evidence that the parties entered into a retainer agreement (“the Agreement”) on April 19, 2018 with respect to multiple cases in which Defendant and his business entities were involved. (Motion, Separate Statement Fact Nos. 1-2; Fischbach Decl., ¶¶1-4.) Under the Agreement, Defendant agreed to pay Plaintiff’s fees for legal services and to reimburse Plaintiff for costs incurred in litigation. (Motion, Separate Statement Fact No. 3; Fischbach Decl., ¶¶1, 6.) Plaintiff represented Defendant until January, 2019. (Motion, Separate Statement Fact Nos. 4, 5; Fischbach Decl., ¶¶3, 7, 9 and Exh. 3.) Defendant paid an initial retainer of $12,500.00 and thereafter paid $16,823.88 on September 25, 2018. (Motion, Separate Statement Fact No. 6; Fischbach Decl., ¶¶2, 8 and Exh. 4.) Plaintiff sent Defendant invoices thereafter on November 6, 2018 and December 20, 2018. (Motion, Separate Statement Fact No. 7; Fischbach Decl., ¶¶2, 8 and Exh. 4.) Plaintiff did not object to either the November 6, 2018 or December 20, 2018 statements. (Motion, Separate Statement Fact Nos. 8, 9; Fischbach Decl., ¶8 and Exh. 4.) On December 18, 2018, Defendants wrote to Plaintiff to terminate the parties’ professional relationship and acknowledged that there was an outstanding bill for legal services rendered. (Motion, Separate Statement Fact No. 11; Fischbach Decl., ¶7 and Exh. 7.) There currently remains $23,992.44 owing on the account. (Motion, Separate Statement Fact No. 12; Fischbach Decl., ¶9 and Exh. 4.)

This evidence carries Plaintiff’s initial burden of proof regarding the elements of a cause of action for account stated. It demonstrates that Defendant owed Plaintiff money from previous transactions, that Defendant, in never objecting to the invoices, confirmed the amounts billed were owed. Defendant acknowledged the amount owed and promised to pay it off, and that $23,992.44 remains owing on the account. The burden now shifts to Defendant to present evidence that creates a triable issue of material fact as to these elements. Defendant, however, has not opposed the Motion for Summary Adjudication. Based on the foregoing, Plaintiff’s Motion for Summary Adjudication as to the third cause of action for account stated in the Complaint is GRANTED.

Moving party to give notice.