Hargrow v. Ferris, et al

Hargrow v. Ferris, et al Motion: Summary Judgment Movant: Gregory M. Hargrow (Hargorw/Plaintiff) Respondent: Paul Ferris (Ferris/Defendant)

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND On November 13, 2024, Plaintiff filed the operative First Amended Complaint (FAC), alleging two causes of action for: (1) breach of contract, and (2) fraud. Plaintiff alleges that on March 31, 2023, and September 17, 2024, he entered into a written agreement with Defendant to repair his car; he paid Defendant a total of $18,600; Defendant did not repair the vehicle; and Defendant did not return the vehicle to Plaintiff. (FAC at p. 3-5.) Plaintiff alleges Defendant promised on September 17, 2024, that he would complete work by October 15, 2024. (FAC at p. 3.)

Defendant answered on December 23, 2024. Plaintiff filed a motion for summary judgment. Defendant opposes. ANALYSIS Motion for Summary Judgment “The purpose of the law of 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary judgment is proper where there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.

Proc., § 437c, subd. (c).) The analysis requires the trial court to engage in three steps: First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citations.] [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. [Citations.]

The motion must stand self- sufficient and cannot succeed because the opposition is weak. [Citations.] A party

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cannot succeed without disproving even those claims on which the opponent would have the burden of proof at trial. [Citations.] [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064- 65.)

When the moving party is a plaintiff, the initial burden is met by a showing that there is no defense to the action or rather by proving each element of the cause or causes of action. (See Code Civ. Proc., § 437c, subd. (p)(1).) Likewise, defendants can meet their initial burden by showing that a cause or causes of action have no merit because one or more elements of the claims “cannot be established.” (See Code Civ. Proc., § 437c subd. (p)(2).) Once the movant has met the initial burden, the burden then shifts to the opposing party to produce admissible evidence showing that there is a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 849-851.)

However, if the movant does not satisfy the initial burden, the motion must be denied and it is unnecessary for the court to consider the opposition. (Swanson v. Morongo Unif. Sch. Dist. (2014) 232 Cal.App.4th 954, 963.) The party opposing an MSJ must provide proof showing a triable issue of fact; equivocal evidence will not suffice. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial § 10:203 (“Weil & Brown”), citing Ahrens v. Sup. Ct. (Pac. Gas & Elec. Co. (1988) 197 Cal.App.3d 1134, 1152.)

Declarations and evidence offered in opposition to a motion for summary judgment must be liberally construed, while the moving party’s evidence must be construed strictly. The opposing party cannot controvert the moving party’s declarations by evidence “based on speculation, imagination, guess work, or mere possibilities.” (Weil & Brown, supra, § 10:203.1, citing Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481.) Opposing declarations, while liberally construed, cannot contain inadmissible evidence, either hearsay or conclusions. (Overland Plumbing, Inc. v.

Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483.) Any evidentiary objections not made are deemed waived. The Court, additionally, must consider reasonable inferences drawn from the presented evidence. (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th at p. 843.) The opposing party may not rely upon the allegations or denials in its pleadings, but must “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subd. (p)(2).) The opposing party’s failure to file counter-declarations or opposition does not relieve the moving party of the above burden, i.e., it is still the moving party’s burden to prove

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he is entitled to judgment. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743-45; FSR Brokerage, Inc. v. Sup. Ct. (1995) 35 Cal.App.4th 69, 73-75, fn. 4.) The court’s sole function on a motion for summary judgment is issue finding, not issue determination. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) The judge must determine from the evidence submitted whether there is a triable issue as to any material fact. (Id. at p. 926.) If there is a single such issue, the motion must be denied. (Joseph Schlitz Brewing Co. v.

Downey Distributor (1980) 109 Cal.App.3d 908, 914.) Breach of Contract The elements of a breach of contract action are the existence of the contract, plaintiff’s performance or excuse for nonperformance, defendant’s breach, and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) The parties do not dispute the existence of a contract. There are references made to various agreements between the parties. The First Amended Complaint (FAC) alleges agreements on March 31, 2023 and September 17, 2024.

Exhibit 2 to the FAC is an unsigned document dated March 31, 2023 with certain terms and conditions. Exhibit 3 to the FAC is the September 17, 2024 fully executed by the parties. As for an alleged January 18, 2023 agreement, Plaintiff’s FAC is based on there being written agreements on March 31, 2023, and September 17, 2024, not January 18, 2023. None of the documents attached to Defendant’s opposition are legible. Plaintiff has shown his performance. The parties do not dispute that Plaintiff paid Defendant $18,600. (UMF 6.)

The party’s dispute is whether Defendant breached the contract. Plaintiff alleges Defendant breached the contract by taking his “car apart, including taking the engine out, and leaving it that way. Plaintiff further alleges that Defendant also breach[ed] the second promise which was to have the car ready by 10/15/24. First, attached to and referenced in the FAC is a March 31, 2023 agreement that provides for “R&R of Engine” and “Engine Rebuild.” (FAC Ex. 2.) Construing the evidence in the light most favorable to Defendant, the “R&R of Engine” meant removal and reinstallation of the engine.

Therefore, Plaintiff has not met his burden of showing a breach of the contract by the removal of the engine, especially where Plaintiff references the agreement as being on January 18, 2023, when no such agreement is alleged as a basis for Plaintiff’s breach of contract cause of action in the FAC. Second, Plaintiff cites no evidence regarding a deadline for Defendant’s performance. Plaintiff alleges that on September 17, 2024, Defendant promised to have the car completed by

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October 15, 2024, for an additional $2,600. (FAC at p. 3.) But the estimate signed by Plaintiff on September 17, 2024, states: “I understand no completion date or delivery date is stated and or implied,” and that line was initialed by Plaintiff. (FAC Ex. 3 at p. 1.) The estimate additionally states: “I agree to hold harmless Rezurnxn Speed and Marine for any and all delays regardless of circumstances,” and Plaintiff initialed that line. (FAC Ex. 3 at p. 1.) Fraud The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity, or “scienter;” (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Rattagan v.

Uber Technologies, Inc. (2024) 17 Cal.5th 1, 32.) First, the FAC alleges the misrepresentation was that “Defendant said he would fix Plaintiff’s car.” (FAC at p. 4.) The parties agree that they entered into a contract for Defendant to repair Plaintiff’s Cadillac. (UMF 6.) Second, the FAC alleges that Defendant knew the statement was false because “Defendant never intended to fix the car.” (FAC at p. 4.) However, Defendant states that he worked on the car extensively and at least attempted to fix it; Defendant states that Plaintiff visited the shop on numerous occasions, saw the work Defendant was doing, and approved of the work. (Ferris Decl. ¶¶ 5-6; Adame Decl. ¶¶ 3-6.)

Plaintiff has not shown that Defendant knew his promise was false, but even if he did, there is a triable issue of material fact as to whether Defendant knew his promise was false. Third, Plaintiff likewise offers no evidence of intent to defraud, and even if he did, Defendant’s work on the vehicle and performance under the contract is disputed. Lastly, Plaintiff has shown that he paid $18,600 in reliance on the contract. (UMF 6.) However, the parties dispute several material facts; Defendant’s scienter, his intent to perform under the contract, and his actual performance.

RULING 1. Plaintiff’s motion for summary judgment. There are triable issues of material fact regarding whether Defendant breached the contract, whether he knew his promise was false, and whether he intended to defraud Plaintiff.

2. Movant to give Notice. ///

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Undisputed Material Facts: Nos. 1, 3, 4, 5, 6, 9. Disputed Material Facts: Nos. 2, 7, 8. Materials considered: Notice of Motion and Motion for Summary Judgment; First Amended Complaint; Plaintiff’s Separate Statement of Undisputed Facts; Declaration of George Adame; Defendant's opposition to Summar Judgment; Declaration of Paul R. Ferris, Jr.; Declaration of Michael J. La Cilento; Defendant’s opposition to Plaintiff’s Separate Statements of undisputed facts;

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