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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a nd Michael L. Abbott for Plaintiff and Appellant.
Law Office of David M. Jamieson an d 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 appella nt and plaintiff Ken Kajioka. We affirm the judgment.
FACTS AND PROCED URAL HISTORY It is alleged in the operative first ame nded 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 repa y 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 fund s. 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 suppo rt of plaintiff’s theories of liability were that the checks were drawn on a joint checkin g account in the name of defendant and Manivong. The operative first amende d complaint alleges a first cause of action against Manivong, but not against defe ndant, for breach of contra ct. The remaining causes of action include defendant, and are: second ca use 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.) De fendant and Manivong filed a joint answer. Defendant, separately, filed a motion for summary judgment, together with a statement of undisputed facts and supportin g documents. Plaintiff file d an opposition, including a statement of disputed and undi sputed facts. Defendant f iled a reply and an additional declaration in support of the motion. After be ing granted a continuance to do so, plaintiff filed a further opposition addre ssing that declaration.
The uncontested evidence in the summary judgment motion established that plaintiff did not receive any ch eck signed by defendant, did not ever meet her, and did not talk to her or negotiate with her. Plai ntiff alleged in the operative first amended3. complaint that “it is abunda ntly established that [all th e 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 Defenda nts to receive, distribute, spend, enjoy and prevent the collection of th e payment of the indebtedness evidenced” by the two promissory notes for th e loans. But the evidence submitted in opposition to the summary judgment motion did no t attempt to support any of these allegations. Instead, the opposition to the summary judgment moti on contended that defendant’s liability to plaintiff arose “[b]ecause she di d not disclaim liability or auth ority 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 Mani vong was acting as defendant’s agent or representative in executing the two checks. It concluded de fendant was not involved in financial transactions with plaintiff and did not benefit from the underlyi ng loans, and that plaintiff had failed to establish any triable issue of fact concerning these issues.
DISCUSSION Plaintiff’s sole contention on appeal is th at defendant failed to specifically deny in her answer “the authenticity o f, and authority to make, each signature on the instrument,” (U. Com. Code, § 3308, subd. (a)) and ther efore she “admitted liability” on the checks (full capitalization omitted). Accordingly, pl aintiff contends, summary judgment was

error. There are two primary problems with plainti ff’s theory. First, it is elementary that the “‘pleadings delimit the issues to be co nsidered on a motion for summary judgment. [Citation.]’ [Citation.] Thus , a ‘defendant moving for summary judgment need address only the issues raised by the complaint; th e plaintiff cannot bri ng up new, unpleaded issues in his or her opposi ng 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 tr ial court, the first step is to “‘identify [the] issues framed by the pleadings’”].) Here, the striking fact is that plainti ff did not sue defendan t on the checks. Instead, he sued her on theo ries of quantum meruit, open account, and account stated.
Each of these theories (causes of action generally referre d to as “common counts”) has its own elements. (See 4 Witkin, Cal. Procedur e (5th ed. 2008) Plead ing, § 553, pp. 680- 682; see id ., § 565-566, pp. 691-692.) Each requi res an allegation of consideration flowing from the plaintiff to the defendant, su ch as goods sold or work done, for which the defendant has failed to pay. ( Id ., § 557, pp. 685-686.) Th e first amended complaint generally pleaded the necessary elements for common counts causes of action. For example, in the quantum meruit cause of acti on, plaintiff alleged he loaned money to Manivong and the money was “use d and enjoyed” by all defenda nts. However, plaintiff offered no proof of these a llegations 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 we re tendered to him by Manivong. The first amended complaint did not attempt to st ate 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 issu e concerning the common counts causes of action. ( Laabs, supra, 163 Cal.App.4th at p. 1253.) Th e trial court impliedly concluded plaintiff failed to establish a triable issue of fact material to the co mmon counts causes of action, expressly finding that there was no evid ence of liability on the loans to Manivong, no evidence of any business or personal rela tionship between plaintiff and defendant, and
no evidence that defendant benef itted 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 wh ich 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 o f, and authority to make, each signature on the instrument is5. admitted unless specifically denied in the plea dings.” 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 ha s 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 i f, for example, the ch ecks had been honored by the credit union and defendant were suing plaintiff to recover community funds. In that case, relevant issues might arise concer ning Manivong’s authority to draw a check on the joint account. But th at 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 defenda nt has any liability to plaintiff.
Even if we were to assume that this wa s an action on the two checks, instead of the action on common counts that plaintiff actua lly pleaded, the issue would be whether
defendant was a “drawer” of the checks un der 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 orde ring 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 th e 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 de mand and drawn on a bank.” ( Id ., § 3104, subd. (f).)6. thereby.” That section, however, provides on ly 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 represente d 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 applic able where the signing person is acting or purporting to act as a represen tative 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 th e instruments, Manivong purporte d 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 Ma nivong was defendant’s representative when he issued the checks.
DISPOSITION The judgment is affirmed. Defendant is awarded costs on appeal.