Filed 6/27/13 Kajioka v. Reynoso CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

KEN KAJIOKA, 

Plaintiff and Appellant, 

 v. 

ANALUISA REYNOSO, 

Defendant and Respondent. 

F064144 

(Super. Ct. No. 634093) 

OPINION

THE COURT* 

 APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. 

Beauchesne, Judge. 

 Law Offices of Michael L. Abbott and Michael L. Abbott for Plaintiff and 

Appellant. 

 Law Office of David M. Jamieson and David M. Jamieson for Defendant and 

Respondent. 

-ooOoo- 

 

* Before Wiseman, Acting P.J., Levy, J. and Poochigian, J. 
2. 

 This is an appeal from summary judgment entered in favor of respondent and 

defendant Analuisa Reynoso and against appellant and plaintiff Ken Kajioka. We affirm 

the judgment. 

FACTS AND PROCEDURAL HISTORY 

 It is alleged in the operative first amended complaint that plaintiff in 2008 entered 

into two agreements to loan money to Bouthavy Tyler Manivong and his business, 

Pacific A.R.C. Manivong attempted to repay the loans with checks drawn on an account 

he held jointly with defendant, his wife. The first check, for $120,000, was dishonored 

by defendant’s credit union for insufficient funds. The second check, for $14,000, was 

rejected by the credit union pursuant to a stop payment order. Manivong was 

subsequently arrested on “charges relating to financial fraud.” The facts concerning 

loans to Manivong were not established for purposes of the summary judgment motion. 

The only facts asserted in support of plaintiff’s theories of liability were that the checks 

were drawn on a joint checking account in the name of defendant and Manivong. 

 The operative first amended complaint alleges a first cause of action against 

Manivong, but not against defendant, for breach of contract. The remaining causes of 

action include defendant, and are: second cause of action, quantum meruit; third cause of 

action, money due on open account; and fourth cause of action, account stated. (A fifth 

cause of action for fraud was dismissed.) Defendant and Manivong filed a joint answer. 

Defendant, separately, filed a motion for summary judgment, together with a statement of 

undisputed facts and supporting documents. Plaintiff filed an opposition, including a 

statement of disputed and undisputed facts. Defendant filed a reply and an additional 

declaration in support of the motion. After being granted a continuance to do so, plaintiff 

filed a further opposition addressing that declaration. 

The uncontested evidence in the summary judgment motion established that 

plaintiff did not receive any check signed by defendant, did not ever meet her, and did not 

talk to her or negotiate with her. Plaintiff alleged in the operative first amended 
3. 

complaint that “it is abundantly established that [all the named defendants, including 

Manivong and defendant] received the benefit of the proceeds” of the two loans, and that 

they “conspired and cooperated with each of the other Defendants to receive, distribute, 

spend, enjoy and prevent the collection of the payment of the indebtedness evidenced” by 

the two promissory notes for the loans. But the evidence submitted in opposition to the 

summary judgment motion did not attempt to support any of these allegations. Instead, 

the opposition to the summary judgment motion contended that defendant’s liability to 

plaintiff arose “[b]ecause she did not disclaim liability or authority for” the checks after 

she became aware of them. 

 The trial court granted the motion for summary judgment. The court concluded 

there was no evidence that Manivong was acting as defendant’s agent or representative in 

executing the two checks. It concluded defendant was not involved in financial 

transactions with plaintiff and did not benefit from the underlying loans, and that plaintiff 

had failed to establish any triable issue of fact concerning these issues. 

DISCUSSION 

 Plaintiff’s sole contention on appeal is that defendant failed to specifically deny in 

her answer “the authenticity of, and authority to make, each signature on the instrument,” 

(U. Com. Code, § 3308, subd. (a)) and therefore she “admitted liability” on the checks 

(full capitalization omitted). Accordingly, plaintiff contends, summary judgment was 

error. 

 There are two primary problems with plaintiff’s theory. First, it is elementary that 

the “‘pleadings delimit the issues to be considered on a motion for summary judgment. 

[Citation.]’ [Citation.] Thus, a ‘defendant moving for summary judgment need address 

only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded 

issues in his or her opposing papers.’ [Citation.]” (Laabs v. City of Victorville (2008) 

163 Cal.App.4th 1242, 1253; see also Batarse v. Service Employees Internat. Union, 
4. 

Local 1000 (2012) 209 Cal.App.4th 820, 827 [on appeal, as in the trial court, the first step 

is to “‘identify [the] issues framed by the pleadings’”].) 

 Here, the striking fact is that plaintiff did not sue defendant on the checks. 

Instead, he sued her on theories of quantum meruit, open account, and account stated. 

Each of these theories (causes of action generally referred to as “common counts”) has its 

own elements. (See 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 553, pp. 680-

682; see id., § 565-566, pp. 691-692.) Each requires an allegation of consideration 

flowing from the plaintiff to the defendant, such as goods sold or work done, for which 

the defendant has failed to pay. (Id., § 557, pp. 685-686.) The first amended complaint 

generally pleaded the necessary elements for common counts causes of action. For 

example, in the quantum meruit cause of action, plaintiff alleged he loaned money to 

Manivong and the money was “used and enjoyed” by all defendants. However, plaintiff 

offered no proof of these allegations whatsoever in his opposition to the motion for 

summary judgment, and admitted that he had no business or any other dealings with 

defendant at any time before the checks were tendered to him by Manivong. The first 

amended complaint did not attempt to state a cause of action against defendant on the 

checks (see U. Com. Code, § 3414, subd. (b)) and, accordingly, the existence of the 

checks did not, in itself, raise any triable issue concerning the common counts causes of 

action. (Laabs, supra, 163 Cal.App.4th at p. 1253.) The trial court impliedly concluded 

plaintiff failed to establish a triable issue of fact material to the common counts causes of 

action, expressly finding that there was no evidence of liability on the loans to Manivong, 

no evidence of any business or personal relationship between plaintiff and defendant, and 

no evidence that defendant benefitted by the loans to Manivong. 

 The second problem with plaintiff’s theory is that section 3308, subdivision (a), of 

the California Uniform Commercial Code, upon which plaintiff relies, is not relevant to 

any issue in this case. That section states, in part: “In an action with respect to an 

instrument, the authenticity of, and authority to make, each signature on the instrument is 
5. 

admitted unless specifically denied in the pleadings.” However, as noted above, this is 

not “an action with respect to an instrument”—although a check is an instrument 

(U. Com. Code, § 3104, subd. (f)), plaintiff has not sued on the check. In addition, 

defendant has not sought to contest either the authenticity of Manivong’s signature nor 

his authority to sign checks on the joint checking account. Instead, she contests (and 

specifically denied in her answer) any liability to plaintiff at all. Different considerations 

of authenticity and authority might pertain if, for example, the checks had been honored 

by the credit union and defendant were suing plaintiff to recover community funds. In 

that case, relevant issues might arise concerning Manivong’s authority to draw a check on 

the joint account. But that is not the case before us. In the present case, the issue is not 

the authenticity of Manivong’s signature or his authority to write a check on the joint 

account; the issue is whether defendant has any liability to plaintiff. 

 Even if we were to assume that this was an action on the two checks, instead of the 

action on common counts that plaintiff actually pleaded, the issue would be whether 

defendant was a “drawer” of the checks under section 3103, subdivision (a)(3) of the 

California Uniform Commercial Code. A drawer of a check is “a person who signs or is 

identified in a draft as a person ordering payment.”1 Defendant, as plaintiff 

acknowledges, did not sign either of the checks. Nor is she identified in the draft as a 

person ordering payment. Instead, her name appears on the pre-printed checks as one of 

the owners of the account who is authorized to write checks on the account. Her name 

does not appear on the check as a person ordering payment of these particular checks. 

Plaintiff cites section 3402, subdivision (a), of the California Uniform Commercial Code, 

in support of his contention that any “person whose name appears on the face of [joint 

account] checks, whether or not she signs the checks, ... is liable for the debt incurred 

 

1 Under the Uniform Commercial Code, a check is a “draft, other than a 

documentary draft, payable on demand and drawn on a bank.” (Id., § 3104, subd. (f).) 
6. 

thereby.” That section, however, provides only that “[i]f a person acting, or purporting to 

act, as a representative signs an instrument by signing either the name of the represented 

person or the name of the signer, the represented person is bound by the signature to the 

same extent the represented person would be bound if the signature were on a simple 

contract....” This section is only applicable where the signing person is acting or 

purporting to act as a representative of another person; otherwise, the general rule of 

section 3401, subdivision (a), is applicable: “A person is not liable on an instrument 

unless ... the person signed the instrument ....” In the present case, there is no allegation 

or evidence that Manivong was acting or purporting to act as a representative of 

defendant. On the face of the instruments, Manivong purported to draw the checks in his 

own right, as one of the owners of the joint account, not as defendant’s representative. 

Plaintiff has failed to establish as a triable issue of fact that Manivong was defendant’s 

representative when he issued the checks. 

DISPOSITION 

 The judgment is affirmed. Defendant is awarded costs on appeal.