Reese vs. Day

performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Plaintiff fails to meet its initial burden to establish Plaintiff’s performance or excuse for nonperformance of the contract it seeks to enforce. The only evidence provided is the conclusory statement from the declaration of Sandra Otero asserting that “National Funding has performed all conditions and promises required to be performed on the its part under the terms of the Settlement Agreement.” (ROA 18, ¶8.)

Even if this was sufficient to meet Plaintiff’s initial burden on summary judgment, Defendant has established a triable issue of fact as to this element. Defendant has shown that Plaintiff was required to file a dismissal of the prior action within 10 days of receipt of the third payment. Defendant has shown that Plaintiff did not file the dismissal until 28 days after the third payment was made. Plaintiff argues it is nevertheless entitled to summary judgment because Plaintiff substantially complied with its obligations under the agreement.

But the very authority Plaintiff relies upon recognizes that determination of substantial performance is a question of fact. (See Magic Carpet Ride LLC v. Rugger Investment Group, LLC (2019) 41 Cal.App.5th 357, 364.) Since Plaintiff has not shown that the undisputed facts establish that Plaintiff substantially performed its own obligations under the settlement agreement, it has not met its initial burden to prove each element of its cause of action for breach of contract. Accordingly, Plaintiff is not entitled to summary judgment.

The Court now VACATES the Case Management Conference and sets this matter for a COURT TRIAL on April 23, 2027, at 11:00 a.m. in Department C12.

Moving Party shall provide notice.

11. Reese vs. Day 1. Demurrer to Amended Complaint 2. Motion to Compel Answers to Form Interrogatories 25-01469806 3. Motion to Compel Answers to Special Interrogatories 4. Motion to Compel Production 5. Motion to Deem Facts Admitted 6. Case Management Conference 7. Order to Show Cause re: Dismissal (Failure to Serve)