NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
It is ordered that the unpublished opinion filed July 11, 2017 be modified as follows:
Footnote 10 is added after the first full paragraph on page 20 with the following text:
"10 In its petition for rehearing, appellant argues that respondents, as the parties moving for summary judgment, had the initial burden of specifically denying that they signed the July 12, 2011 agreement. That is incorrect. "[A] summary judgment motion necessarily is addressed to the pleadings. [Citation.] `The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citation.] . . . `The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action.' [Citation]." (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172.) The operative third amended complaint did not allege that there was a signed July 12, 2011 agreement; the only signed agreement referenced in that complaint is a July 7, 2011 agreement. Respondents' summary judgment motion was necessarily directed at the allegations in the operative pleading, not at speculative arguments about the existence of a signed July 12, 2011 agreement that appellant advanced for the first time on appeal. Respondents denied accepting the July 7, 2011 agreement and stated that Neman did not sign any subsequent agreement that included item No. 39, which Frederick had proposed in the July 10, 2011 e-mail. That was sufficient to address the allegations in the operative pleading."
The petition for rehearing is denied. There is no change in judgment.