NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

HOLLENHORST, J.

I. INTRODUCTION

Plaintiff Rochelle Saenz appeals from judgment following the trial court's grant of summary adjudication, judgment on the pleadings, and nonsuit in favor of defendant AT&T Corporation (AT&T). Saenz contends the trial court erred in granting summary adjudication on her breach of contract claim on the ground that her liability to a third party was not a proper component of her damages. Saenz further contends the trial court erred in granting judgment on the pleadings and nonsuit because: (1) there is a current case or controversy; (2) Public Utilities Code section 1759 does not preclude declaratory relief; (3) declaratory relief is not meaningless in this case; (4) the trial court erred in vacating prior rulings of another judge; (5) Code of Civil Procedure section 1060 does not require a continuing relationship as the basis for declaratory relief; (6) the trial court's ruling violated her due process rights to notice and an opportunity to be heard; and (7) nonsuit cannot be granted sua sponte. We find no prejudicial error, and we affirm.

II. PROCEDURAL BACKGROUND

In November 2003, Saenz brought this action as a class action against AT&T and Verizon California Inc. (Verizon),2 alleging that defendants engaged in unfair, deceptive and misleading practices when billing consumers who contracted with AT&T for the provision of certain long distance services. Saenz sought monetary damages and declaratory relief and alleged claims for breach of contract, violations of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) and declaratory relief.

AT&T removed the complaint to the United States District Court for the Central District of California on the ground that Saenz's contract with AT&T could only be the tariff on file with the Federal Communications Commission during the relevant period, which set forth the terms and conditions under which AT&T provided long distance telephone service, including calling card service, to consumers. AT&T argued Saenz's claims thus arose under federal law. Saenz moved to remand on the ground that her action, based on her alleged contract with AT&T, "[did] not seek to enforce nor challenge the validity of any tariff—directly or indirectly." She further argued her claims "[did] not challenge the propriety of any tariff or rate" (bolding and italics omitted) and stated she was not claiming she had been charged rates "different than those contained and authorized by the tariffs." The federal court granted Saenz's motion.

AT&T filed a motion for summary judgment or summary adjudication on Saenz's operative third amended complaint. Following a hearing, the trial court granted summary adjudication as to the claims for breach of contract and violation of the Unfair Competition Law,3 leaving for trial only the claim for declaratory relief.

In October 2007, the trial court granted Saenz's motion for class certification and defined the class as follows: "[A]ll persons residing within the State of California who, at any time between November 3, 1999 and October 1, 2004, contracted with defendant AT&T Corp. for the use of a calling card under the One Rate Calling Card Plan and who were billed at a rate in excess of twenty-five cents per minute for any calls initiated by using their calling cards."

On October 31, 2008, AT&T filed a motion for judgment on the pleadings, and on November 7, 2008, Saenz filed an opposition to the motion. Following a hearing, Judge John G. Evans denied the motion. Judge Evans reasoned that even through Saenz had alleged she had cancelled her long distance service with AT&T, she also alleged Verizon maintained that Saenz still owed money to AT&T. Judge Evans found that to be "a sufficient allegation of a continuous relationship" between Saenz and AT&T.

Shortly before trial, both parties submitted trial briefs on the declaratory relief claim. On the day set for trial, the trial court indicated it had threshold questions as to whether Saenz and the class had a current relationship with AT&T and whether any conceivable declaration would be necessary or effective. During the discussions, counsel for AT&T renewed the motion for judgment on the pleadings or, in the alternative, for nonsuit based on the offer of proof that had been made. Following arguments of counsel, the trial court made a ruling from the bench granting judgment on the pleadings in favor of AT&T. Judgment was thereafter entered in favor of AT&T.

Additional facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Summary Adjudication of Cause of Action for Breach of Contract

Saenz contends the trial court erred in granting summary adjudication on her breach of contract claim on the ground that her liability to a third party was not a proper component of her damages.

1. Standard of Review

On appeal from the trial court's grant of a motion for summary adjudication, "we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) "Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. [Citations.]" (Ibid.) In conducting our review, "[w]e apply the same procedure used by the trial court:

2. Saenz's Claims Based on Alleged Oral Contract

In her initial complaint, Saenz alleged she had entered into an oral agreement with AT&T in May or June 2000, under which AT&T would provide her with free long distance and calling card service for two months. Although she alleged the oral contract was memorialized in a written "welcome package" she received, she never produced any evidence of such a writing. In her third amended complaint, Saenz simply omitted the allegations of an oral contract for free service and alleged that on May 24, 2000, she had entered into a written contract under which, among other terms and conditions, she would be billed 25 cents per minute for calling card calls. She further alleged the terms of the plan were set forth in the "welcome package."

"Judicial admissions may be made in a pleading, by stipulation during trial, or by response to request for admission. [Citations.] Facts established by pleadings as judicial admissions `"are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted, by the party whose pleadings are used against him or her." [Citations.]' [Citations.]" (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746.) When a complaint "contain[s] allegations of fact in support of a claim or defense, the opposing party may rely on the factual statements as judicial admissions. [Citation.]" (Ibid.) Moreover, "[i]n moving for summary judgment, a party may rely on the doctrine of judicial admission by utilizing allegations in the opposing party's pleadings to eliminate triable issues of material fact. [Citation.]" (Id. at p. 747.) In addition, a party may use the opponent's superseded pleadings as admissions against interest, although the pleading party must be allowed to explain the changes. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426 [Fourth Dist., Div. Two].) Here, Saenz merely dropped the allegations of an oral contract when she filed her operative third amended complaint. Although AT&T relied on those allegations in its motion for summary judgment/summary adjudication, Saenz failed to provide any explanation for the change.

According to Saenz's judicial admission, the first two months of her contract with AT&T were governed by the alleged oral agreement. Saenz did not file her complaint until November 3, 2003. The statute of limitations on an oral agreement is two years. (Code Civ. Proc., § 339, subd. (1).) We conclude that, as a matter of law, Saenz's claims as to any overcharges for calling card calls made during the first two months (approximately mid-May through mid-July 2000) are therefore time barred.

3. Saenz's Claims Based on Alleged Written Contract

In the operative third amended complaint, Saenz alleged that in May 2000, she contracted with Verizon to provide residential telephone service. She was asked to select a long distance carrier, and she designated AT&T. She was connected to a customer service representative of AT&T who informed her she would be charged seven cents per minute for in-state long distance calls made from her home, 10 cents per minute for out-of-state long distance calls made from her home, and 25 cents per minute for long distance calls made using her AT&T calling card. Saenz alleged she agreed to that plan.

Saenz alleged her contract with AT&T was memorialized in writing in the form of a welcome package she received from AT&T that included her calling card and a confirmation of her enrollment in the plan. She was informed and believed the only calling card program AT&T provided with a 25 cent per-minute rate was the "One-Rate Calling Card Plan." She was informed and believed the terms of that plan were set forth in the welcome package, and the substantive terms of the rate contract provided she would be charged 25 cents per minute for long distance calls made through her AT&T calling card.

Saenz alleged she was not charged for long distance telephone calls during May and the first half of June 2000. On September 4, she was billed, through Verizon's Billstar system on behalf of AT&T, for direct dialed long distance calls and calling card long distance calls made in the second half of June, and July and August 2000. She alleged that beginning with calls made through the calling card on June 19, 2000, and thereafter, she was charged rates far in excess of 25 cents per minute. The total calling card charges on her September 4 bill were $637.47. On her October 4, 2000, bill, she was again charged for calling card calls at rates in excess of 25 cents per minute. The total calling card charges on that bill were $1,051.40.

Saenz alleged the rate contract was a uniform contract, and she had fully performed under the contract. She alleged AT&T had breached the rate contract by charging for long distance calls made through her AT&T calling card at rates in excess of 25 cents per minute.

Saenz alleged she contacted AT&T to attempt to correct the errors, but the service representative told her she was not a customer of AT&T, and she was being charged "non-subscriber" rates. AT&T refused to refund the overcharges or make any other accommodation. Saenz cancelled her long distance telephone service with AT&T.

Saenz alleged she did not pay all of the overcharges, and Verizon assessed penalties and interest and reported her nonpayment to credit reporting agencies and collection bureaus. Verizon maintained Saenz owed it approximately $2,700. Her credit has been adversely affected. Saenz alleged Verizon was the apparent owner of the debt. Saenz requested "compensatory damages in an amount according to proof at trial."

4. Sufficiency of Allegation of Damages

To prevail on an action for breach of contract, a plaintiff must plead and prove: (1) the existence of a contract; (2) the plaintiff's own performance or excuse for nonperformance; (3) the defendant's breach; and (4) resulting damage to the plaintiff. (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1391, fn. 6.) Breach of contract damages include "the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." (Civ. Code, § 3300.)

In its motion for summary adjudication, AT&T contended Saenz's breach of contract claim failed as a matter of law, because (1) she could not establish that she suffered damages resulting from the alleged breach of contract, and (2) the action was untimely. The following facts were undisputed: A telephone bill dated September 4, 2000, was the first bill Saenz received that contained AT&T long distance charges for calls, including calling card calls, made during June, July, and August 2000. Saenz received a second telephone bill dated October 4, 2000, which contained AT&T long distance charges for calls made during September and October 2000. Saenz did not dispute that she had made the calls listed on the September and October bills. Between June and October 2000, Saenz incurred more than 1500 minutes of long distance telephone service for calls initiated through her AT&T calling card.

According to AT&T, customers using its One-Rate Calling Card Plan would be charged a $1.00 per month recurring charge, a 30 cent surcharge for calling card calls made from a payphone, and a charge of 25 cents per minute for all calling card calls. If Saenz had been billed under the One-Rate Calling Card Plan, her total charges for calling card calls on the September and October telephone bills would have been approximately $400.4 Saenz paid $453.12 to AT&T's agent on October 21, 2005.

AT&T asserts the only damages Saenz alleged were unpaid telephone bills, and an abstract balance due does not give rise to damages. (Pacific Pine Lumber Co. v. Western Union Tel. Co. (1899) 123 Cal. 428, 431.) AT&T further claims Saenz settled her claims with Verizon, the party responsible for billing her, and she stipulated she did not seek damages for any improper collection efforts.

In her third amended complaint, Saenz claimed damages in the amount of the alleged overcharges: "Defendant has breached and continue[s] to breach the Rate Contract by charging their customers for long distance telephone calls initiated with an AT&T calling card at rates in excess of twenty-five cents per minute," and "[a]s a direct and proximate result of the breach of the Rate Contract by [AT&T], Plaintiff and the other members of the Class have been damaged in an amount according to proof at trial . . . ." In her opposition to AT&T's motion for summary adjudication, Saenz stated: "Although AT&T originated the charges that appeared on [her] September and October 2000 bills, AT&T subsequently sold the right to collect those charges" to Verizon, her local exchange carrier. Verizon thereafter undertook efforts to collect those charges and continued to claim that Saenz owed more than $2,000.

In Green Wood Industrial. Co. v. Forceman Internat. Development Group, Inc. (2007) 156 Cal.App.4th 766 (Green Wood), the defendant contended the trial court erred in awarding the plaintiff damages for a claim made against the plaintiff by a third party in China for damages the third party suffered from the plaintiff's failure to deliver goods after the defendant breached its contact with the plaintiff. On appeal, the court held that that portion of the damage award was improper. The court explained, "A plaintiff may not recover damages for an unpaid liability to a third party, unless the plaintiff proves to a reasonable certainty that the liability could and would be enforced by the third party against the plaintiff or that the plaintiff otherwise could and would satisfy the obligation." (Id. at p. 776, fn. omitted.) The court continued, "Under California law, a plaintiff—whether the plaintiff's claim sounds in contract or tort—generally cannot recover damages alleged to arise from a third party claim against the plaintiff when caused by the defendant's misconduct. `It is clear that mere possibility, or even probability, that an event causing damage will result from a wrongful act does not render the act actionable . . . .' [Citations.] Accordingly, the existence of a mere liability is not necessarily the equivalent of actual damage. This is because the fact of damage is inherently uncertain in such circumstances. The facts that a third party has demanded payment by the plaintiff of a particular liability and the plaintiff has admitted such liability are not, by themselves, sufficient to support an award of damages for that liability, because that third party may never attempt to force the plaintiff to satisfy the alleged obligation, and the plaintiff may never pay the obligation. [Citations.]" (Ibid.; fn. omitted.)

The court further explained, "It may be that existing California authorities generally require payment of the liability in order to include the liability as damages. But even if a liability to a third party might be included as damages without actual payment, more certainty is necessary than just evidence of an obligation to pay a third party. The obligation by itself does not mean that one will pay the third party. Accordingly, as with other types of prospective damage, a plaintiff must demonstrate that it will suffer the damage with reasonable certainty—that is, the plaintiff must prove to a reasonable certainty that the plaintiff could and would pay the liability." (Green Wood, supra, 156 Cal.App.4th at pp. 777-778; fn. omitted; see also Pacific Pine Lumber Co. v. Western Union Tel. Co., supra, 123 Cal. at p. 431 ["The rule, generally stated, is that there must be actual loss before there can be actual compensation; and it cannot be said . . . that actual liability is equivalent to actual loss."]; Superior Gunite v. Mitzel Inc. (2004) 117 Cal.App.4th 301, 312 ["`the mere possibility that one will be required to pay damages to a third party does not warrant even nominal damages'"].)

Applying those principles to the facts before it, the court in Green Wood observed that the evidence showed the plaintiff had not paid any portion of the third party's claim, and although there was evidence the plaintiff had settled the claim by agreeing to pay it, there was no evidence such agreement "would be enforceable in China, or that the liability could and would be enforced by the buyer in the United States or elsewhere, or that the claim [would] otherwise be paid. There was no other evidence from which the jury could conclude that it was reasonably certain that [the plaintiff] would ever have to pay the money. [Citation.]" (Green Wood, supra, 156 Cal.App.4th at p. 778.)

As noted, Saenz made a belated payment to Verizon in October 2005, slightly in excess of the amount she believed she owed, which she now claims cured any defect of having no damages. However, as we concluded above, her claims relating to alleged overpayments for charges through approximately mid-July 2000 are barred by the statute of limitations, and she cannot now challenge those charges. Because those charges, along with the charges she admits she incurred in later months, far exceed the amount of the payment she made to Verizon, we conclude she has failed to establish damages.

B. Nonsuit on Declaratory Relief Claim

Saenz contends the trial court erred in granting nonsuit in favor of AT&T on her declaratory relief claim.

1. Standard of Review

"We review an order granting a nonsuit de novo. [Citation.] A defendant is entitled to a nonsuit if the trial court determines the evidence presented by the plaintiff is insufficient to permit a jury to find in his or her favor as a matter of law. [Citation.]" (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060.)

2. Additional Background

The matter appeared before Judge Tranbarger for the first time on February 26, 2009. Judge Tranbarger requested the parties to address whether the court could grant any meaningful declaratory relief, in other words, whether the court "ha[d] the authority to make any declaration or order to AT&T other than: You are hereby ordered to follow the tariff, and I hereby declare that as it relates to dealings with all your customers, you must follow the tariff?" The court ordered the parties to return in the afternoon to address that issue. After extensive discussion and argument, counsel for AT&T stated, "And so I would move for judgment on the pleading. In the alternative, I would move for nonsuit based on the offer of proof that was made."

The trial court granted a motion for judgment on the pleadings and noted in a footnote of its dismissal order that, although it had not considered extrinsic evidence, dismissal was proper because Saenz's claim could not survive opening statement.

3. Analysis

Code of Civil Procedure section 581c,5 which governs nonsuit, does not authorize the trial court to grant nonsuit on its own motion. Here, however, AT&T's counsel made the motion orally, based on Saenz's offer of proof.

Moreover, it is a fundamental principle that, in most circumstances, procedural error in a civil case is not reversible unless it is prejudicial. (Cal. Const., art. VI, § 13; Biscaro v. Stern (2010) 181 Cal.App.4th 702, 709.) If the record establishes Saenz could not have prevailed under any circumstances, we may not reverse, even if the lower court erred in the manner in which it dismissed the contest. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1595; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 748-749 [although the trial court granted nonsuit on its own motion in an "irregular" procedure, reversal was not required unless the losing party was prejudiced; i.e., unless he would have survived a procedurally correct brought motion for nonsuit].)

We conclude Saenz has failed to demonstrate prejudicial error. The issue of damages was eliminated when summary adjudication was granted on her breach of contract claim. All that remained was that the trial court could declare AT&T was required to follow the law, which is not an appropriate basis for declaratory relief.

Because we have concluded the trial court did not err in granting nonsuit, Saenz's additional claims of error in granting the motion for judgment on the pleadings are moot.

IV. DISPOSITION

The judgment is affirmed. Costs shall be awarded to defendant and respondent.

RAMIREZ, P.J. and RICHLI, J., concurs.