Judge: Keri G. Katz, Case: 37-2021-00037071-CU-BC-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2021-00037071-CU-BC-CTL BLACK ICE ADVISORS VS ILUSTRATO PICTURES INTERNATIONAL INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendant Ilustrato Pictures International, Inc.'s evidentiary objections are all OVERRULED for failure to comply with California Rules of Court, Rule 3.1354(b)(3) ['[e]ach written objections must . . . [q]uote or set forth the objectional statement or material . . . ']. Plaintiff's objections to the Declaration of Nicholas Link are OVERRULED for failure to comply with CRC 3.1354(b) ['[e]ach written objection must be numbered consecutively . . . '].

The court then rules as follows. Plaintiff's motion for summary judgment is DENIED.

Preliminarily, Plaintiff's separate statement fails to comply with California Rules of Court, Rule 3.1350(d)(1) ['t]he Separate Statement . . . must separately identify . . . [e]ach cause of action . . . '].

Plaintiff's separate statement also fails to comply with the numbering of lines requirement of CRC 2.108.

The court exercises its discretion in favor of reaching the merits of Plaintiff's motion.

The complaint alleges two causes of action for breach of contract and declaratory relief.

As set forth in CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach. (Armstrong Petroleum Corp. v. Tri–Valley Oil & Gas. Co. (2004) 116 Cal.App.4th 1375, 1391, fn. 6, 11 Cal.Rptr.3d 412 [stating elements].) CDF Firefighters, 158 Cal.App.4th at 1239.

Plaintiff submits evidence which it contends establishes that in December 2019, ILUS borrowed $4,000 from Plaintiff [SSUMF 15]; on or about December 11, 2019, ILUS executed, issued and delivered a promissory note to Plaintiff in the original principal amount of $4,000.00 [SSUMF 16]; in consideration of the issuance and delivery of the Note by ILUS to Plaintiff, Plaintiff paid the sum of $4,000.00 to ILUS [SSUMF 22]; under the terms of the Note, the principal balance together with accrued interest was due and payable in full on or before December 9, 2020 [SSUMF 26]; ILUS did not pay the balance of the Note on or before December 9, 2020 [SSUMF 41]; on or about April 16, 2021, more than four (4) months after the maturity date of the Note, Plaintiff notified ILUS of Plaintiff's election to convert the principal balance of the Note into 40,000,000 shares of ILUS common stock by means of a Notice of Conversion [SSUMF 50]; ILUS did not provide Plaintiff with written notice of prepayment in lieu of conversion pursuant to Paragraph 4(c) of the Note prior to Plaintiff's Notice of Conversion [SSUMF 52]; ILUS was Calendar No.: Event ID:  TENTATIVE RULINGS

2978691  5 CASE NUMBER: CASE TITLE:  BLACK ICE ADVISORS VS ILUSTRATO PICTURES  37-2021-00037071-CU-BC-CTL required to deliver the common stock to Plaintiff within three (3) business days of receiving Plaintiff's Notice of Conversion - April 19, 2021 [SSUMF 54]; ILUS refused to deliver the ILUS common stock to Plaintiff as required under the Note [SSUMF 63]; Plaintiff was owed 40,000,000 shares of ILUS common stock under the terms of the Note; the value of that common stock at the time Plaintiff was to have received its shares on April 21, 2021 was $3,772,000.00 (40,000,000 shares x $0.0943 per share); thus, Plaintiff has suffered damages of $3,772,000.00 [SSUMF 69].

ILUS submits evidence which it contends establishes that in 2019, ILUS was a penny-stock shell company with no active business and its share price was zero; its CEO at the time was Larson Elmore; Elmore had other separate business ventures including 'Red Creek' which was a cannabis business in Colorado [ILUS Additional Material Fact 1]; in late 2020, FB Technologies Global acquired ILUS; Nicolas Link was announced as the new CEO of ILUS in January 2021 [ILUS AMF 2]; Link reviewed all of the company's finances and records and discussed the company's history at length with Elmore; at the time of the alleged Black Ice $4,000 loan in December, 2019, ILUS did not have a bank account to receive the alleged loan proceeds, and ILUS was conducting no business that would benefit from the alleged loan; Link was and is unable to locate any information indicating or substantiating that ILUS actually received $4,000 from Plaintiff [ILUS AMF 6]; Plaintiff admits that the purported $4,000 was not paid to ILUS, but rather to a separate business of Elmore's called Red Creek Real Estate Development, LLC; Red Creek is a cannabis business in Colorado belonging to Elmore personally and is not affiliated in any way with ILUS [ILUS AMF 7]; Link also requested and searched for any ILUS-issued Board resolutions authorizing the purported loan and note with Plaintiff; there are no such Board resolutions; Elmore testified at deposition that he does not have possession of any such Board resolution [ILUS AMF 8]; if the loan as alleged was made and $4,000 was paid by Plaintiff, the money was paid to Elmore for his personal benefit, or for the benefit of one of his separate business interests, and not for the benefit of ILUS [ILUS AMF 10]; ILUS never received the purported $4,000 loan from Plaintiff [ILUS AMF 12].

It is undisputed that Plaintiff paid the $4,000 to Red Creek and not directly to ILUS [SSUMF 23; ILUS AMF 7]. Drawing all reasonable inferences in favor of ILUS [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826] the court finds this evidence, combined with evidence that Link, the current CEO of ILUS, cannot find any information indicating or substantiating that ILUS actually received the $4,000 from Plaintiff, and that there is no record of a ILUS Board resolution authorizing the alleged loan with Plaintiff, sufficient to create triable issues of material fact as to whether Plaintiff performed its obligations under the contract.

The court is not persuaded by Plaintiff's reliance on the deposition testimony of former CEO Elmore as to Elmore's discussions with Link and documents prepared by Link. Elmore testified to multiple notes involving Plaintiff [Deposition Transcript of Lee Larson Elmore, p. 89, ll. 5-14] and it is not certain which of Plaintiff's notes Link is referring to in the documents. Moreover, even if Link acknowledged the Note at issue in this case, such evidence does not negate ILUS's contention that it never received the $4,000 from Plaintiff. Even if the court were to find in favor of Plaintiff on this issue, the result would not change as the court finds ILUS establishes grounds for denial and/or a continuance under CCP § 437c(h).

The court does not reach the declaratory relief cause of action because, absent establishing grounds for adjudication of the breach of contract cause of action, there is no basis for the award of summary judgment.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Calendar No.: Event ID:  TENTATIVE RULINGS

2978691  5