Motion for Summary Judgment (Judge Andrew P. Banks)

Defendant?s and Plaintiff?s Requests For Judicial Notice are all GRANTED. Judicial notice is limited to the existence of, filing of, and legal effect of the pleadings and court records, but not as to the truth of any disputed factual matters therein, excepting orders and judgments.

Defendant 4 Copas? Motion For Summary Judgment is DENIED. Defendant?s evidence failed to meet its initial burden to show that the claims asserted in Plaintiff?s Complaint are barred by the affirmative defenses of statute of limitations, res judicata, or waiver.

Specifically, triable issues exist as to:

(i)? The date of the accrual of the Plaintiff?s causes of action for breach of contract, and money had and received;

(ii) Whether the claims asserting in this action (that Plaintiff should have received a share of the settlement of 4 Copas? recovery against the Rivas defendants) could have been asserted in OCSC Case No. 30-2010-00400469 (the ?Rivas Action?), as the settlement of such action did not occur until after the Rivas Action had gone to judgment, and been resolved via settlement; and

(iii) Whether any settlement reached between Plaintiff and Mr. Rivas and/or his law firm would have the effect of releasing 4 Copas, or waiving Plaintiff?s right to pursue this action.

In reaching this determination the court reviewed the Greenberg Declaration, all exhibits thereto, and all requested items for judicial notice granted by the court.

 

Defendant appears to have been attempting to argue that Plaintiff is barred from proceeding with this action as a result of the court?s determination that he did not own any shares in 4 Copas, i.e. that the doctrine of collateral estoppel on the specific issue of Plaintiff?s ownership of shares in 4 Copas bars this action, because the Plaintiff is not a shareholder in 4 Copas.

 

This specific issue was not raised in the Notice of Motion, or Defendant?s Points and Authorities, and was not raised as an affirmative defense in the Defendant?s Answer. As a motion for summary judgment is framed by the pleadings, the court cannot grant summary judgment on an affirmative defense not pled. Kendall v. Walker (2009) 181 Cal.App.4^th 584, 598.

 

Moving party to give notice.