Medical Acquisition Company Inc vs Southwest Law Center Etal

Memorandum Medical Acquisition Company Incs Memorandum of Points and Authorities ISO Opposition to Defendants MSJ

Cal. Super. - 2nd Dist.June 23, 2015

Electronically FILED by Superior Court of California, County of Los Angeles on 07/24/2019 06:31 PM Sherri R. Carter, Executive Officer/Clerk of Court, by E. Gregg,Deputy Clerk A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc TARA LUSHER (Bar No. 281678) 2772 Gateway Road Carlsbad, CA 92009 760-692-5158 DUANE S. HORNING (Bar No. 174995) TRACY L. SCHIMELFENIG (Bar No. 243714) CALIFORNIA BUSINESS LAW GROUP, PC The Rynearson House 2441 E Street, Suite 101 San Diego, CA 92102 619-325-1555 Attorneys for MEDICAL ACQUISITION COMPANY, INC. a California corporation, Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES MEDICAL ACQUISITION COMPANY, INC, Plaintiff, v. SOUTHWEST LAW CENTER, APC; SOTUHWEST LEGAL GROUP; ANTHONY R. LOPEZ AND ASSOCIATES; GELLY YUKON VALERO; ANTHONY R. LOPEZ, JR.; and DOES 1 through 50 inclusive, Defendants. Case Number: BC585918 MEDICAL ACQUISITION COMPANY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Hearing Date: August 6, 2019 Time: 8:30 AM Department: 57 Complaint filed: December 19, 2014 Trial Date: September 9, 2019 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc TABLE OF CONTENTS I. INTRODUCTION. Loot sass sate shee sae eee sae saan 1 II. SUMMARY JUDGMENT AND SUMMARY ADJUDICATION STANDARDS. .................. 2 A. Summary Judgment Must Be Denied if There Is a Triable Issue as to Any Material FaCK. .....cooiiiiiiiiiiiiiee cece eee eee eee 2 B. summary Adjudication Must Be of an Entire Cause of Action, Not Just an 3 SSUE. evita cite cheeses eeabeeate eb eee eae sheet ese shee shee sa eee saa sheen III. SUMMARY JUDGMENT SHOULD NOT BE GRANTED BECAUSE THERE ARE TRIABLE ISSUES OF DISPUTED FACTS. cs ssssu0s sssss sus ssnsss cvssssnsssssnssn swsassnss savasss sms sos i 3 A. Summary Adjudication as to Attorneys’ Fees Should Be Denied. ..........c..cc..c....... 3 I. Summary Adjudication of the Issue of Attorneys’ Fees is Not PIOPET. ieee eects sees 3 2 There Was No Condition Precedent to the Right to Receive AMOTOCYE” FEE8: wuss soswusss soussan su sussssi svuns os 52am se 5m 50.58 5455550 S055 4545 5505053 SHSHEH8 48.55 4 3. Assuming Arguendo There Was a Condition Precedent, Defendants Waived the Claimed Condition Precedent by Refusing to Arbitrate. ......... 4 B. California Law Authorizes Attorneys’ Fees for the Liens in Question. ................. 5 1. A Ruling on Attorneys’ Fees Is Premature. .........ccoceeveveiieiieiieninncnene 9 2. The Liens Provide for Attorneys’ Fees. ......ccccevvirriieiiiiniiiniienie cece 6 De MAC is a Party to the Contracts as an ASSIZNEE........cccureuersueeesmemsasrsaersases 7 4. Southwest is Bound by the Attorneys’ Fees Clause and Is Barred from Denying the Clause Applies to MAC..........ccooemniieiiiiiinnieniecieeeen 7 Js Defendants MiscOAStre Case LAW: usin ssssnes susnssnss swssass swsss sass svssssn ovens 5s 65 8 C. Defendants’ Request for Adjudication of Their Defense of Accord and Satistaetion Sliould Be DENIS. mwswummsmsmmmssmmemmmesssnmmmmmnss s s mmm s amEsss 8 I. Defendants’ Defense of Accord and Satisfaction Is Barred as Not Pled in Their ANSWET. ......coiiiiiiiiiieeieieeeee eects ee esr es 8 2. Southwest’s Claim that Dr. Esposito’s Liens Were Satisfied Fails and Should Be Adjudicated in MAC’s Favor. ........coccocevieiiininncnccccnens 9 D. Southwest’s Defense that It Is Not Liable for Liens Not Signed by Anthony Lapez Is, Without WEBEL. cum. comes sven os suman ssa sews seuss ss cass sss a5. asasss dears 12 1. This Issue Is Not Included in Defendants’ Notice of Motion and Therefore Shonld Be DENied.. xem smmsmmmsmamssssammasmnssisssmamesmmms 12 i Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication 1 2 Summary Adjudication as to the Signatures on Certain Liens Is Not Proper as It Will Not Dispose of an Entire Cause of Action. ................... 12 De No Attorney Signature Is Required on the Liens. ........cccoceeveivvennieennnnn 13 4. Even if a Signature Was Required, a Signature Was Provided by One with Apparent or Ostensible Authority. ......c..ccoecueeueerieirnieniecieenee. 13 TV. CONCLUSION cc cx: zuma sosnn ss wsnsss susan oo zeae mss is 245555 528505 545 555558 5955555 38 2450555 S558555 43 S405 58 asia 16 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc i Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc TABLE OF AUTHORITIES CASES Abdallah v. United Savings Bank, 43 Cal. APP-Ath TT0T (1996)... eee eee ees seats sbae sabe ee esses eaee eens 8 Aguilar v. Atlantic Richfield Co., 28 Coal A BE (21) ssensoesnossonsonessonsons ios 0H UNS SS SE A 2 Alki Partners, L.P. v. DB Fund Services, LLC, 4 Cal. APP. Sth 574 (2016) ...cceeieeeie eee eerste eee a ee she sete eee eee eae eene 8 Associated Creditors’ Agency v. Davis, I3 Cal3A 374 (1975) eee eee tees eee sees sbae sabe e teeta esbaeenbe ane e esa ns 14 Binder v. Aetna Life Ins. Co., 75 Cal APP 4th 832 (1999)... eee eee ees eee teste eb aeeebee teeta eae eee 2 Brown Bark III, L.P. v. Haver, Z19 Cel. Binns DU BOD CEO Vimo assis somone esses 6 0 sms sss sams 7 Cal. Union Ins. Co. v. Poppy Ridge Partners, 224 Cal. APP. 3d 897 (1990)....ccuiieiieeiie eee eee estes ate sateen estes sbae sabe enneas 8 California Concrete Co. v. Beverly Hills Savings & Loan Assn., 215 Cal. APP. 3d 260 (1989)... cuits eee ete seater saber estes sabe sabe enneas 9 City of Emeryville v. Superior Court, 2 Cal. APP. Ath 21 (1991) cnet eee testes sate sabe e eee t ee sate sabe e nes 3 Cytodyn of New Mexico Inc. v. Amerimmune Pharmaceuticals, Inc., 160 Cal, Appell 288! (EB: css ovasmnmsmessomninsnsssomess oss mss v5 ms SE as 8 Decastro W. Chodorow & Burns v. Superior Court, 47 Cal. APP. 4th 410 (1996)......coiuiieiiiiietie eects eee eevee eases sbae eevee nee enee ns 12 Doe v. Roman Catholic Archbishop of L.A., 247 Cal. APP. 4th 953 (20160)...ccueiiiieiie cites eters ste eters sates eres a eee eee 14 FPI Development, Inc. v. Nakashima, 231 Cal. APP.3d 367 (1991). eee at esate estes bee sbte ease enneas 8 Frankel v. Board of Dental Examiners, A6 Cal APE A SFL (TD Js essmssseon onsen oss cose ess 5 60s 5 a 0 ES SSSR SAGES 4 Hepp v. Lockheed-California Co., 86 Cal APP 3d 714 (1978) eee eects eters ete eters st teste sabe e eee sb ee sabe esse a neeenseen 2 Hood v. Superior Court, 33 Cal. APP. 4th 319 (1995)... cies eee este eee eres b ee saa eabe anaes 3 Hooks v. Southern Cal. Permanente Medical Group, 107 Cal APP 3d 435 (1980) ...uueieeieiie cites eters sates eebe estes saee sabe ease anneas 2 iii Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc In re Tobacco Cases I, 193 Cal. APP.4th 1591 (2011) uuiiiiieiie eee ters sate e e eae esas sateen 6 Johnson v. County of Fresno, 111 Cal APPA, TOBT (20003) x smsnsn coms snsnwsnsn cosmo momo onus 5555s 055555 5655455558 55557545 5055550 5450 555.58 55 7 Jones v. Drain, 149 Cal. APP. 3d 484 (1983). .uiiiiieiie eects eters sates esters sate setae eee a ee sae sabe annes 6 Karpinski v. Smitty's Bar, Inc., 246 Cal. APP. 4th 456 (2016)...ccueiiiieiieeiie eee eects eee estes sates atest essa saree neas 4 LAOSD Asbestos Cases, 28 Cal. APP. Sth 862 (2018) ....uieeiiiieiie eee eters sitet sates erases sae eee 14 Lexin v. City of San Diego, 222 Cal. APs BL BOL (FONT Yu ssn suns sms sess oss 255555045 5555555505055 55.30 5455558 SH83305-49 S553 R50 HSHH5H36 55 2 Loughan v.Harger-Haldeman, 184 Cal. APP.2d 495 (1960)... . cies eee tees e eet esbae sane anneas 5 Marvland Casualty Co. v. Reeder, 221 Cal. APP.3d 961 (1990)... cece eee eters eee sate eater e ete e saan 12 N. Assocs. v. Bell, 184 Cal. APP. 3d 800 (1986)....ccoueieeieeeieeieeeeeeite ects te sate ae ese ae ssee sabe anneas 6 Pfeifer v. Countrywide Home Loans, Inc., 211 Cal App Ath. 1250 (HOLD Yu smn suns sms sesso mss 5505045 5555555055555 50 5455558 SH85305-49 S553550 SH5HH55.58 55 4 Raghavan v. Boeing Co., 133 Cal. App. 4th T120 (2005) ..cuueeeuieeieiiiieriie eee saee sabe ee estes sbeeesbe anne esaens 12 Rains v. Arnett, 189 Cal. APP. 2d 337 (1961). eects eters steers sbae sateen 4 Sabo v. Fasano, 154 Cal. APP.3d 502 (1984).....eiiieieiie ects ee eters sete eee e eee a ee ssee sabe annees 5 Searles Valley Minerals Operations Inc. v. Ralph M. Parsons Serv. Co., 191 Cal. Apps AN. 1 FGA COT 1) usm somo snsnwsnsn oosossnn sos ons 555m e555 56557555558 55557545 5555550 5450555.58 55 7 Seouioa Ins. Co. v. Superior Court, 13 Cal APP.Ath 1472 (1993)...neeieiie eects ete ee ees esate sete e estes sbaeesbe anaes eens 12 Tomerlin v. Canadian Indem. Co., 61 Cal.2d 638 (1964) eevee eects eres eres eras saree eases sabe e esate ee eare ee eare ee eaaeeerae es 13 Waller v. Truck Ins. Exch., T1 Cal. 4th 1 (1995) .eeeeeeeeeieeeeeeeee eee eee eee este eevee eae eae ares sas ae este e esate ae ssbe ae sabe ee ssseeessaeaans 5 Whitney's at the Beach v. Superior Court of S.F., B Cals, APD: 30. ZEB 10700 5.50 sms sows sms sess. oss 255755045 555555050555 55.30 5455558 SH83 30549 S53 50 HSHH5 38.55 2 iv Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication 1 | STATUTES California Civil Code (Deering 2019) § LT LT cee eee eee eee eee eee ae eee ae ae eet ae tee e et at teas abba eee aaeae ee esnraeae ann passim California Code of Civil Procedure (Deering 2019) 8 DBT sss ms sn sre a5 0 5 5555357 855583605 55555 5 5.0 S53 45 S55 5 45 RA S035 08 S55 S555 55.0 SHO 8505 2,3,4 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 #MceLc Y Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc Medical Acquisition Company, Inc. (“MAC”) respectfully submits the following Memorandum of Points and Authorities in Opposition to Defendants Southwest Law Center, Anthony R. Lopez, Jr. And Gelly Valero’s (collectively, “Defendants””) Motion For Summary Judgment Or, In The Alternative, Summary Adjudication (“Motion”). I. INTRODUCTION. Issue Nos. 1-7 in Defendants’ Notice of Motion all contend that MAC is not entitled to attorneys’ fees and costs as damages on the grounds MAC allegedly failed to comply with an arbitration provision in the lien contracts. While Defendants argue that arbitration was a condition precedent to the ability to collect attorneys’ fees, there was no such condition in the contracts. Even if there was such a condition, Defendants waived it by refusing to submit to arbitration after MAC demanded it. The lien contracts provide for attorneys’ fees to the prevailing party and California law authorizes such fees. MAC as an assignee of the lien contracts is entitled to collect attorneys’ fees under the provision of the contracts. Southwest was a signatory to the contracts and relied on the provision by including a request for attorneys’ fees in the prayer of its Answer to MAC's Second Amended Complaint. Summary adjudication of a claim for attorneys’ fees as damages is not proper because summary judgment of damages issues is limited to challenges to punitive damages. The Motion seeks a premature ruling on attorneys’ fees. Once a verdict and judgment is entered, the prevailing party will have an opportunity to seek attorneys’ fees and costs. If any such motion is filed, the opposing party will have an opportunity to file an opposition. With regard to issue Nos. 8-11 in Defendants’ Motion, Defendants contend that MAC's claim for damages as to Marina Olagur, Angel Arzate and Zenaida Medina Ordaz have been fully compensated through accord and satisfaction issue. Defendants contend that the liens of Dr. Esposito’s were allegedly satisfied. However, this defense was not pled by Defendants in their Answer to the Second Amended Complaint and is therefore barred. Even if considered, this issue should be summarily adjudicated against Defendants because the undisputed evidence proves that these liens were not satisfied. 1 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc Defendants request an additional issue to be adjudicated in its Memorandum of Points and Authorities which is not included in its Notice of Motion and Motion, i.e., Defendants cannot be legally responsible for liens not signed by Anthony Lopez. First, since this issue is not in the Notice of Motion, summary judgment should be denied on this ground alone. Second, adjudication of the signature issue will not dispose of an entire cause of action and therefore, summary adjudication is statutorily not available. If the Court were to consider the merits of Defendants’ arguments, this defense fails. No attorney signature, Lopez or otherwise, was required for the liens to be valid. Third, even if a signature was required, Southwest provided signatures by those with ostensible or apparent authority. II. SUMMARY JUDGMENT AND SUMMARY ADJUDICATION STANDARDS A. Summary Judgment Must Be Denied if There Is a Triable Issue as to Any Material Fact. Summary judgment may be granted only where “there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Cal. Code Civ. Proc. § 437c(c) (Deering 2019); Lexin v. City of San Diego, 222 Cal. App. 4th 662, 669 (2013). If there is a single such triable issue, the motion must be denied. Whitney's at the Beach v. Superior Court of S.F., 3 Cal. App. 3d 258, 266 (1970). “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). The “moving party must make a strong showing. His affidavits are strictly construed. . . . [90 On the other hand, the affidavits of the party opposing the motion are liberally construed.” Binder v. Aetna Life Ins. Co., 75 Cal App 4th 832, 838-839 (1999); Hepp v. Lockheed-California Co., 86 Cal App 3d 714, 717-718 (1978). Doubts about the propriety of summary judgment are generally resolved against granting the motion. Binder, 75 Cal. App.4th at 839-840. Summary judgment may not be granted based on inferences, if such inferences are contradicted by any other inference which raises a triable issue of fact. Hepp, 86 Cal App 3d at 717-718. “The court has no power in a summary proceeding to weigh one inference against another or against other evidence.” Hooks v. Southern Cal. Permanente Medical Group, 107 Cal App 3d 435, 442 (1980). 2 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc There are several issues of disputed material fact warranting denial of Defendants’ Motion. B. Summary Adjudication Must Be of an Entire Cause of Action, Not Just an Issue. “The summary judgment statute was amended in 1990 to restrict the summary adjudication remedy to motions that would adjudicate an entire cause of action or affirmative defense, or the issues of duty or punitive damages.” Hood v. Superior Court, 33 Cal. App. 4th 319, 323 (1995). Section 437c (f)(1) (as amended in 1993) provides: A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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. Hood, 33 Cal. App. 4th at 323, citing Cal. Code Civ. Proc. § 437c¢ (f)(1), emphasis added. Section 437c¢ is not intended to be available as a means of piecemeal disposition of cases. City of Emeryville v. Superior Court, 2 Cal. App. 4th 21, 24-25 (1991) (1990 amendment to statute was intended to stop piecemeal summary adjudication of facts or issues and to narrow available adjudication to complete disposal of a cause of action or defense, issue of duty, or claim to punitive damages). To the extent Defendants request summary adjudication of only issues that will not dispose of an entire cause of action, adjudication should be denied. III. SUMMARY JUDGMENT SHOULD NOT BE GRANTED BECAUSE THERE ARE TRIABLE ISSUES OF DISPUTED FACTS. A. Summary Adjudication as to Attorneys’ Fees Should Be Denied. 1. Summary Adjudication of the Issue of Attorneys’ Fees is Not Proper. A party may move for summary adjudication on the basis “that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code.” Cal. Code Civ. Proc. § 437c (f)(1), 3 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc emphasis added. Civil Code § 3294 governs claims for punitive damages. Thus, by the wording of section 437c (f)(1), a “claim for damages” may be the subject of summary adjudication only if the claim lacks merit under Civil Code § 3294, i.e., if there is no merit to a claim for punitive damages. Section 437c, subdivision (f)(1) accordingly does not permit summary adjudication of just any kind of claim for “damages,” attorneys’ fees or otherwise. Nor does § 437¢ permit summary adjudication of isolated parts of a prayer for relief, which is effectively what Defendants are seeking. Thus, adjudication of this issue should be denied. 2, There Was No Condition Precedent to the Right to Receive Attorneys’ Fees. “In contract law, ‘a condition precedent is either an act of a party that must be performed or an uncertain event that must happen before the contractual right accrues or the contractual duty arises.” Karpinski v. Smitty’s Bar, Inc., 246 Cal. App. 4th 456, 464 (2016), citing Pfeifer v. Countrywide Home Loans, Inc., 211 Cal.App.4th 1250, 1267 (2012). “The existence of a condition precedent normally depends upon the intent of the parties as determined from the words they have employed in the contract.” Id. “[Clonditions precedent are not favored in the law.” Barroso v. Ocwen Loan Servicing, LLC, 208 Cal. App. 4th 1001, 1010 (2012), citing Frankel v. Board of Dental Examiners, 46 Cal.App.4th 534, 550 (1996). There is no language in the lien contracts making arbitration a condition precedent to recovery of attorneys’ fees or costs. The attorneys’ fees clause contemplates arbitration because other language provides for arbitration. However, nothing in the liens expressly or impliedly conditions recovery of attorneys’ fees on a dispute being resolved exclusively in arbitration. 3. Assuming Arguendo There Was a Condition Precedent, Defendants Waived the Claimed Condition Precedent by Refusing to Arbitrate. Defendants’ central argument is that MAC did not comply with the condition precedent of demanding and submitting the dispute to arbitration. To the contrary, MAC complied by demanding arbitration to which Defendants would not agree. Declaration of Tracy L. Schimelfenig (“TLS Dec.”) Ex. A and B. It was Defendants, not MAC, who refused to arbitrate. “A person cannot take advantage of his own act or omission to escape liability.” Rains v. Arnett, 189 Cal. App. 2d 337, 347 (1961). “If he prevents or makes impossible the performance 4 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc or happening of a condition precedent, the condition is excused.” Id., citations omitted. “It is well settled a contracting party may waive conditions placed in a contract.” Sabo v. Fasano, 154 Cal.App.3d 502, 505 (1984). “[W]aiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right.” Waller v. Truck Ins. Exch., 11 Cal. 4th 1, 31 (1995). There is a waiver when a “party's acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.” Id. at 33-34. Waiver is ordinarily a question of fact. Loughan v.Harger-Haldeman, 184 Cal.App.2d 495, 503 (1960). Therefore, it is not amenable to disposition by summary judgment. Defendants erroneously contend that MAC never demanded arbitration. The evidence is contrary. On March 2, 2015, MAC sent Southwest a formal demand for arbitration. TLS Dec. Ex. A. Thereafter, Southwest argued that San Diego was not the proper venue for the action, but that the venue should be Los Angeles. Southwest requested that MAC stipulate to transfer venue or otherwise Southwest would file a motion to change venue and seek sanctions. TLS Dec. Ex. B. By correspondence dated April 13, 2015, Southwest informed MAC that Defendants would not agree to arbitration and again requested a stipulation to change venue. TLS Dec. Ex. B. On or about May 4, 2015, the parties entered into a stipulation to transfer venue to Los Angeles. TLS Dec. Ex. C. Thus, it was Defendants who refused the alleged condition precedent to have this matter decided by arbitration. MAC demanded arbitration. Defendants cannot now contend that attorneys’ fees cannot be recovered because of a lack of arbitration when it was Defendants themselves who refused it. B. California Law Authorizes Attorneys’ Fees for the Liens in Question. 1. A Ruling on Attorneys’ Fees Is Premature. Defendants’ Motion seeks a premature ruling on attorneys’ fees. There has been no motion for attorneys’ fees or determination of prevailing party filed. Once a verdict and judgment is entered, the prevailing party will have an opportunity to seek attorneys’ fees and 5 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc costs. If MAC prevails and files such motion, Defendants will have an opportunity to file an opposition. However, any such ruling is untimely at this juncture. 2, The Liens Provide for Attorneys’ Fees. In pertinent part, § 1717 of the Civil Code provides: (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the prevailing party, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. . . . [para. ] Reasonable attorney's fees shall be fixed by the court, upon notice and motion by a party, and shall be an element of the costs of suit. Defendants contend, without any citation to the law, that attorney’s fees clauses are narrowly construed. But they are not. Courts must liberally interpret § 1717. “California courts liberally construe ‘on a contract’ to extend to any action as long as an action involves a contract and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit.” In re Tobacco Cases I, 193 Cal. App.4th 1591, 1601-02 (2011). “[S]ection 1717 broadly applies to any dispute involving a written agreement.” Id. The courts have consistently held that the award of Civil Code § 1717 contractual attorney's fees is to be governed by equitable principles. N. Assocs. v. Bell, 184 Cal. App. 3d 860, 865 (1986), citing Jones v. Drain, 149 Cal. App. 3d 484, 489-490 (1983). “[N]umerous appellate decisions have applied § 1717 to award attorney fees to prevailing parties even in situations where the contract containing the attorney fees provisions is unenforceable, rescinded, or nonexistent, or where the party sued on a contract is actually a nonsignatory.” N. Assocs., 184 Cal. App. 3d at 865, citations omitted. Defendants quote the first sentence of § 1717, stating that the contract must “specifically” provide for attorneys’ fees and cite cases which are inapplicable to this situation between the parties. Here, the lien contracts do “specifically” provide for attorneys’ fees. The requirements of § 1717 are satisfied. 6 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc 3. MAC is a Party to the Contracts as an Assignee. It is well settled contract law that that the assignee of a contract “stands in the shoes” of the assignor and that an assignment carries with it all the rights of the assignor. Searles Valley Minerals Operations Inc. v. Ralph M. Parsons Serv. Co., 191 Cal. App. 4th 1394, 1402 (2011); Johnson v. County of Fresno, 111 Cal.App.4th 1087, 1096 (2003). “Once a claim has been assigned, the assignee is the owner and has the right to sue on it.” Searles Valley Minerals Operations Inc., 191 Cal. App. 4th 1394 (2011); Brown Bark Ill, L.P. v. Haver, 219 Cal. App. 4th 809 (2013) (Corporation was entitled to recover its attorney fees on breach of contract claims brought against it by a creditor’s assignee because the corporation prevailed on the claims, and the assignee would have been entitled to its attorney fees had it prevailed on its successor liability theory against the corporation, as the contracts at issue made the fee provisions binding on the contracting parties’ Successors). The provider liens were assigned to MAC for collection purposes in this lawsuit, only. TLS Dec. Ex. D; Stencil Dec., 8. The lien contracts expressly authorize assignment of the provider’s lien. Defendants’ Notice of Lodgment, (“Def. NOL”), Exs. 1-22. Defendants were also put on notice of the assignment at various periods of time by way of a letter from MAC requesting status of cases and informing Defendants of the assignment. Stencil Dec., 99. 4. Southwest is Bound by the Attorneys’ Fees Clause and Is Barred from Denying the Clause Applies to MAC. Southwest is bound by each of the liens including the attorneys’ fees clause. Def. NOL, Exs. 1-22. Each lien contract states that “in the event ATTORNEY does not sign this agreement, PATIENT and ATTORNEY will still be bound by the provisions set forth herein.” Id. at {11 or 12 of each lien, emphasis supplied. With no other basis for recovery of attorneys’ fees, Southwest claimed a right to attorneys’ fees in its Answer to MAC’s Second Amended Complaint. RIN, Ex. A. “As long as an action ‘involves’ a contract, and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit, the other party should also be entitled to attorney fees if it prevails, even if it does so by successfully arguing the inapplicability, invalidity, 7 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc unenforceability, or nonexistence of the same contract.” N. Assocs., 184 Cal. App. 3d at 865. “A party is entitled to recover its attorney fees pursuant to a contractual provision only when the party would have been liable for the fees of the opposing party if the opposing party had prevailed.” Abdallah v. United Savings Bank, 43 Cal.App.4th 1101, 1111 (1996). This follows the reciprocal right to recover attorneys’ fees under Civil Code § 1717(a). Therefore, since Southwest claims the right to attorneys’ fees, Southwest is barred and judicially estopped from arguing that MAC is not entitled to the attorneys’ fees. 3. Defendants Misconstrue Case Law. Defendants contend that whether they are parties to the liens is critical in determining if the attorneys’ fees clause is viable, citing cases dealing with indemnity clauses in Alki Partners, L.P.v. DB Fund Services, LLC, 4 Cal. App. 5th 574 (2016) and Cytodyn of New Mexico Inc. v. Amerimmune Pharmaceuticals, Inc., 160 Cal. App 4th 288 (2008). These cases are inapposite. The courts in both cases determined that the indemnity provisions did specifically contain an attorney fees clause. Alki at 601 (there was no language discussing attorneys’ fees) Cytodon at 300 (The license agreement has no attorney fees clause.) In Cytodon, the party seeking attorneys’ fees attempted to rely on an agreement that was not even part of the lawsuit. These cases have no application here. C. Defendants’ Request for Adjudication of Their Defense of Accord and Satisfaction Should Be Denied. 1. Defendants’ Defense of Accord and Satisfaction Is Barred as Not Pled in Their Answer. “The pleadings play a key role in a summary judgment motion.” FPI Development, Inc. v. Nakashima, 231 Cal.App.3d 367, 381 (1991). The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues . . . and to frame “the outer measure of materiality in a summary judgment proceeding.” Id. A defendant may not successfully assert an affirmative defense without pleading it as an affirmative defense. Cal. Union Ins. Co. v. Poppy Ridge Partners, 224 Cal. App. 3d 897, 903 (1990); See California Concrete Co. v. Beverly Hills 8 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc Savings & Loan Assn., 215 Cal. App. 3d 260, 273 (1989) (barring defendant from raising affirmative defense that was not pled in its answer”); Code Civ. Proc. § 431.30 (b)(2). Defendants’ alleged defense of accord and satisfaction should not be considered because that defense was not pled their answer. RIN Ex. A. The Court should reject this defense as unpled. If for any reason the Court is inclined to consider this defense, the Court should deny Defendants’ request for summary adjudication on this defense for the reasons stated below 2, Southwest’s Claim that Dr. Esposito’s Liens Were Satisfied Fails and Should Be Adjudicated in MAC’s Favor. Southwest claims it paid the three receivables and satisfied liens securing them granted to Dr. Esposito for Marina Aragon Olagur (“Olagur”), Angel Arzate (“Arazate”) and Zenaida Medina Ordaz (““Ordaz”) (collectively, the “Esposito Liens”) in 2016. The Esposito Liens were assigned to MAC for collection purposes only. TLS Dec. Ex. E., pp. 1-7. However, the payments Southwest relies on were not payments for the Esposito bills, but for payments for bills of a completely separate medical provider, SurgiTech, Inc. (“SurgiTech”). Stencil Dec., 11. The SurgiTech liens were also administered by MAC. Stencil Dec., {10. There is no evidence that the 2016 payments of the SurgiTech liens satisfied the Esposito Liens granted by Olagur, Arzate and Ordaz. The only evidence is to the contrary. Southwest’s defense that the Esposito Liens that are the subject of this lawsuit have been satisfied by payment of the SurgiTech Liens is contrary to the undisputed evidence and should be summarily adjudicated against Southwest and in MAC’s favor. Following is a summary of the undisputed evidence. On February 10, 2016, counsel for MAC and Southwest began negotiating settlement of nine cases on which SurgiTech had liens. TLS Dec. Ex. F. p. 1. On February 19, 2016, Southwest countered MAC’s offer and added the account of Olagur, for a total of ten cases. TLS Dec. Ex. Fp. 2. On February 19, 2016, MAC added to the negotiations an additional three SurgiTech cases bringing the total to 13 (“SurgiTech Liens”). TLS Dec. Ex. F. MAC responded that SurgiTech would accept $1,500.00 for each of the SurgiTech Liens, and requested a fair offer for 9 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc the Esposito Liens granted by five of Southwest’s clients, Olagur, Arzate, Ordaz, Mirna Garcia and Julio Lopez Ramirez. TLS Dec. Ex. F., p. 3. On February 22, 2016, Southwest agreed to settle the 13 SurgiTech Liens and attached reduction agreements to be signed by MAC. TLS Dec. Ex. F., p. 4. Then, Southwest wrote, “As to Dr. Esposito, Southwest is willing to make reasonable offers as you have requested. However, I have been informed that Southwest has been dealing directly with Dr. Esposito. If MAC holds Dr. Esposito’s liens and is authorized to negotiate on his behalf, please provide written confirmation from Dr. Esposito.” TLS Dec. Ex. F., p. 4, emphasis supplied. Clearly, the settlement of the SurgiTech Liens did not include the Esposito Liens on the settlement proceeds of any of the five patients listed in the email, and the reduction requests are attached to an email specifically explaining that these offers are not for Dr. Esposito. TLS Dec. Ex. F., p. 4. On February 23, 2016, MAC attached the SurgiTech reduction agreements to an email to Southwest. As to Dr. Esposito’s liens, MAC wrote: “I copied you to an email to Amelia (Dr. Esposito’s biller) and am awaiting her response.” TLS Dec. Ex. F., pp. 5-6. This is indisputable evidence that the 2016 settlements of the SurgiTech liens specifically excluded settlement of the Esposito Liens as acknowledged by Southwest’s counsel on February 22, 2016. On Wednesday, February 24, 2016, after Southwest and MAC had already settled the SurgiTech Liens, Dr. Esposito’s biller responded to MAC’s email and copied Southwest stating that Dr. Esposito authorized MAC’s counsel to negotiate on Dr. Esposito’s behalf. TLS Dec. Ex. G, pp. 1-2. Southwest responded on March 2, 2016: “Can you please provide something signed by Dr. Esposito.” TLS Dec. Ex. G, pp. 1-2. This is further, indisputable evidence that the February 23, 2016, SurgiTech settlements did not include payment for the Esposito Liens as acknowledged by Southwest’s counsel in this March 2, 2016 email. Id. On March 15, 2016, MAC followed up regarding the settlement checks for the SurgiTech Liens. Southwest responded the checks were being prepared and should be mailed by the next day. TLS Dec. Ex. G, pp. 3-4. 10 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc On May 16, 2016, the Esposito Liens were assigned to MAC for collection. TLS Dec. Ex. E, pp. 1-7. On June 9, 2016, MAC again requested offers for the Esposito Liens. Southwest’s counsel responded on June 10, 2016 that he was leaving the firm and attorney John Kim would be taking over. TLS Dec. Ex. G, p. 8. On August 19, 2016, Southwest sent payment to Dr. Esposito for two of the five accounts secured by the Esposito Liens, Julio Lopez Ramirez and Mirna Garcia. TLS Dec. Ex. H. Thereafter, in Form Interrogatory responses dated March 8, 2017, Southwest alleged for the first time that the Esposito Liens granted by the other three patient/clients, Olagur, Arzate and Ordaz, had been resolved. TLS Dec. Ex. I, p. 5. In support, in response to Requests for Production of Documents dated March 7, 2017, Southwest attached the SurgiTech settlement checks dated March 14, 2016 as if those payments applied to the Esposito Liens. TLS Dec. Ex. J, pp. 5-8. In fact, Southwest has produced reduction requests addressed to MAC/SurgiTech offering $1,500.00 for Arzate, and another letter addressed to Dr. Esposito offering $700.00 for the Esposito Lien granted by Arzate. TLS Dec. Ex. K. Southwest has produced reduction requests addressed to MAC/SurgiTech offering $2,000.00 for Ordaz’s SurgiTech Lien, and another addressed to Dr. Esposito offering $1,200.00 for the Esposito Lien granted by Ordaz. TLS Dec. Ex. L. Southwest has produced reduction requests addressed to MAC/SurgiTech offering $1,513.01 for Olagur’s, and another addressed to Dr. Esposito offering $589.09 for his account. TLS Dec. Ex. M. Dr. Esposito signed this agreement and returned it to Southwest on February 10, 2016. TLS Dec. Ex. M. Each of the foregoing documents referenced and negotiations from Southwest’s own records demonstrates the separation of the SurgiTech Liens and Esposito Liens. There was no accord and satisfaction. Adjudication should be in MAC’s favor. Defendants incorrectly contend that three of MACs liens were paid with checks they stamped “full and final satisfaction.” Defendants never paid MAC or Dr. Esposito for the accounts of Dr. Esposito for Marina Aragon Olagur, Angel Arzate and Zenaida Medina Ordaz. Stencil Dec., 12. However, the “full and final satisfaction” stamp on the three checks was of the Surgitech Liens, not the Esposito Liens. Stencil Dec., 12. Therefore, the stamp is irrelevant. 11 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc MAC did not even hold the Esposito Liens until after the payment of the SurgiTech Liens were received. Stencil Dec., 13. Therefore, negotiations with MAC and payment to MAC could not have been for the Esposito Liens. D. Southwest’s Defense that It Is Not Liable for Liens Not Signed by Anthony Lopez Is Without Merit. 1. This Issue Is Not Included in Defendants’ Notice of Motion and Therefore Should Be Denied. The notice of motion for summary judgment must state the grounds for the motion. Cal. Code Civ. Proc. § 1010. A notice of motion for summary adjudication must state the specific cause of action or affirmative defenses to be adjudicated. Cal. R. Ct. Rule 3.1350(b). The moving party must therefore, at the very least list the causes of action to be adjudicated. Seouioa Ins. Co. v. Superior Court, 13 Cal.App.4th 1472, 1477 (1993). The court has no power to grant summary adjudication on any discrete issue which is not listed in the notice of motion. Marviand Casualty Co. v. Reeder, 221 Cal. App.3d 961, 974 fn.4 (1990). The discrete issue of liability on certain liens not signed by Lopez was not included in Defendants’ Notice of Motion. On this basis alone, the summary adjudication of this issue should be denied. 2, Summary Adjudication as to the Signatures on Certain Liens Is Not Proper as It Will Not Dispose of an Entire Cause of Action. A motion for summary adjudication is properly denied if it is only based on summary adjudication of a single item which does not dispose of an entire cause of action. Decastro W. Chodorow & Burns v. Superior Court, 47 Cal. App. 4th 410, 422 (1996). A trial court may not adjudicate facts. Raghavan v. Boeing Co., 133 Cal. App. 4th 1120, 1134 (2005). In its Motion, Southwest seeks adjudication of only an issue related to lien signatures, not an entire cause of action. Southwest seeks adjudication that it is not liable on certain liens, not all liens. However, it is improper to split out only certain liens from the remainder of the claim. This will not dispose of an entire cause of action. If even one lien has Lopez’ signature, summary judgment cannot be granted as to any entire cause of action based on this argument. Lopez 12 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc admits at least one lien is signed by him. Dec. of Lopez, {16. Therefore, Defendants’ Motion should be denied as to the issue of signatures on the liens. 3. No Attorney Signature Is Required on the Liens. Southwest argues that the liens are invalid and unenforceable because the signature on some of the liens is not that of Anthony Lopez. However, no signature by any attorney, Lopez or anyone else, is required for the liens to be valid. Each lien contract contains the following language: Execution. PATIENT is represented by counsel of his/her own choosing. PATIENT has read this Lien and PATIENT s counsel has fully explained its contents to PATIENT. PATIENT consents to the terms of this Lien and agrees to be bound by it. PATIENT understands that in the event ATTORNEY does not sign this agreement, PATIENT and ATTORNEY will still be bound by the provisions set forth herein. Def. NOL, Ex. 1-22, {11 or 12 of each lien, emphasis supplied. Thus, Southwest is “bound” by the provisions of the lien, including the attorneys’ fees clause, regardless of signature or lack of it, or who signed. 4. Even if a Signature Was Required, a Signature Was Provided by One with Apparent or Ostensible Authority. Even if a signature from Southwest was required, which it was not, the person who signed each of the liens on behalf of Southwest had extensible or apparent authority to contract, thereby obligating Southwest. “An agent has such authority as the principal, actually or ostensibly, confers upon him.” Civ. Code § 2315 (Deering 2019). “[O]stensible authority arises as a result of conduct of the principal which causes the third party reasonably to believe that the agent possesses the authority to act on the principal’s behalf.” Tomerlin v. Canadian Indem. Co., 61 Cal.2d 638, 643 (1964). A principal is bound by acts of his ostensible agent to those “who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof.” Civ. Code § 2334 (Deering 2019) . “Ordinarily, a party seeking to assign liability to the principal for the acts of an ostensible agent must establish three elements: (1) the party held a reasonable belief in the agent’s authority in dealing with the agent; (2) the principal’s conduct-active or neglectful-generated the party’s 13 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc belief in the agent’s authority; and (3) the party was not negligent in holding the belief.” LAOSD Asbestos Cases, 28 Cal. App. 5th 862, 884 n.12 (2018); Associated Creditors’ Agency v. Davis, 13 Cal.3d 374, 399 (1975). “In lieu of showing element (2), the party may show that the principal ratified the conduct performed in its name. ‘Ratification is the subsequent adoption by one claiming the benefits of an act, which without authority, another has voluntarily done while ostensibly acting as the agent of him who affirms the act and who had the power to confer authority (Civ. Code, §§ 2310, 2312). Id.; also see Doe v. Roman Catholic Archbishop of L.A., 247 Cal. App. 4th 953, 969 (2016). Here, every one of these elements are more than satisfied. The medical lien contracts were signed by multiple lawyers of Southwest, including Anthony Lopez, Mark Levine, Peter Lazarus, and Benjamin Swanson. Def. NOL Exs. 1-22. Office managers and secretaries also obtained signatures on liens. TLS Dec. Ex. O at 54: 21-25; 55: 1-9; 73: 9-15; TLS Dec. Ex. P at 158: 1-14; 159: 19-25; 160: 11-18. Mr. Lopez was aware of the practice of Southwest employees signing his name to liens, even independent of this litigation. TLS Dec. Ex. P at 7-25; 162: 1-23. Whoever signed the liens did so in the course and scope of their employment in performing services on behalf of Southwest. Southwest ratified the conduct and elected to adopt the conduct by sending the patient to the medical provider for treatment pursuant to the liens. TLS Dec. Ex. N and Q. Each signature page of each lien has Southwest’s fax stamp across the top; the fax number of the respective Southwest Office, and the name of the respective firm, i.e. Southwest Law Center, Southwest Legal Group, Anthony R. Lopez, Esq. Def. NOL Exs. 1-22. It is indisputable that Southwest received the liens, signed the liens, and faxed them back to MAC in order to secure an appointment with a medical provider for each patient. Id. Whether or not Mr. Lopez actually signed the liens himself is irrelevant. Southwest faxed the signature pages, signed, to MAC. Therefore, whether Mr. Lopez, another attorney, a secretary, a case manager, or another employee signed the liens and sent them to MAC, that employee was acting under the authority, 14 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MceLc apparent, ostensible, or otherwise, of their employer, Southwest, as the employees have done since 2008. Mr. Lopez admits there is no written policy regarding the signing of liens. TLS Dec. Ex. P at 154: 6-7; 160: 17-18; 164: 1-14. Southwest has presented no evidence that MAC, or any other medical lien holder, has ever been informed by Southwest that liens can allegedly be signed only by Anthony Lopez; or that the liens are invalid for lack of his signature. TLS Dec. Ex. P at 107: 1-25; 108: 1-25; 109: 1-25; 110:1-19. To the contrary, Anthony Lopez admits that the medical bills of the fourteen patients are due and owing. TLS Dec. Ex. P at 105: 3-6. Southwest never notified MAC that only Lopez had authority to sign the liens until well after this lawsuit was filed. Stencil Dec. {14. Southwest has paid dozens and dozens of medical liens, both with MAC and other providers, that have been produced as evidence during this litigation, and none of which contain the actual signature of Anthony R. Lopez. Stencil Dec. {14; TLS Dec. Ex. Q. Even if Southwest had a secret policy that only Lopez could sign the liens, which was routinely violated, MAC had no notice of that policy. MAC was entitled to rely on the signatures by others at Southwest on liens Southwest itself faxed to MAC. Southwest sent each lien, with a signature by Southwest, to MAC for the express purpose of inducing MAC to fund the lien purchases and thereby obtain medical care for Southwest’s clients. Southwest sent the patients for treatment by medical providers pursuant to those liens, collected the medical bills and reports from those medical providers, submitted those medical bills to the third and/or first-party insurance companies as damages incurred by the patient, and received settlement funds on behalf of the patient from which the liens are to be paid. Stencil Dec., 15-7; Def. NOL Ex 1-22; TLS Dec. Ex. N and Q. MAC was entitled and did rely on the validity of these Lien instruments received from Southwest and did so. Stencil Dec. 15. Thus, each of the three elements of LAOSD Asbestos Cases, cited above is satisfied. MAC held a reasonable belief in the signors’ authority. Southwest’s conduct generated MAC’s belief in the signor’s authority by faxing the liens to MAC, and continuing to negotiate with MAC over the years on the liens without ever denying their validity. Alternatively, this conduct by Southwest was a ratification of the signor’s authority to sign. There is no allegation or evidence 15 Memorandum in Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication 1 || of any negligence by MAC in holding its belief as to the signors’ authority. All of Southwest’s 2 | conduct cited above overwhelmingly would lead any party to a reasonable belief that the liens 3 | were signed by a person at Southwest with authority to do so. 4 Southwest’s motion for summary adjudication that MAC's liens, including the attorneys’ 5 || fees clause in them, are not binding on Southwest because they do not comply with Southwest’s 6 | alleged secret rule that only Lopez can sign liens should be summarily denied. “1 IV. CONCLUSION. 8 Based on the foregoing, MAC respectfully requests that Defendants’ motion for summary 9 | judgment or alternatively summary adjudication be denied in its entirety. 10 DATED: July 24, 2019 CALIFORNIA BUSINESS LAW GROUP, PC 11 By__s/ Tracy L. Schimelfenig DUANE S. HORNING 12 TRACY L. SCHIMELFENIG Attorneys for Plaintiff, MEDICAL ACQUISITION 13 COMPANY, INC. a California corporation 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CBLG Memorandum in Opposition to Defer Motion for Summary Judgment or, in the Alternative, Summary Adjudication