Judge Michael P. Linfield, Case Number: 21STCV26182, Date: 2024-04-04 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV26182, Date: 2024-04-04 Tentative Ruling

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On July 15, 2021, Plaintiff Robert Manquero filed his Complaint against Defendants Avida CBD and Avida Naturals LLC on causes of action arising from Plaintiff’s alleged purchase and use of Defendants’ products.

On March 22, 2023, Plaintiff amended his Complaint to substitute Doe 1 with Avida LLC.

On April 3, 2023, Defendants Avida Naturals LLC and Avida LLC filed their Answer to the Complaint.

On January 30, 2024, Avida LLC (“Defendant”) filed its Motion for Summary Judgment and/or Summary Adjudication (“MSJ”). In support of its MSJ, Defendant concurrently filed: (1) Declaration of Jason Gonzalez; (2) Declaration of Leonard Haberman; and (3) Statement of Undisputed Material Facts.

On February 6, 2024, the Court granted Plaintiff’s ex parte motion to continue the Motion for Summary Judgment pursuant to CCP 437c(h) until April 4, 2024.

On March 18, 2024, Plaintiff filed his Opposition to the MSJ. In support of his Opposition, Plaintiff concurrently filed: (1) Declaration of Martin R. Berman; (2) Response to Separate Statement; and (3) Evidentiary Objections.

On March 29, 2024, Defendant filed its Reply in support of the Motion for Summary Judgment.

Plaintiff filed evidentiary objections to Defendant’s evidence. The following are the Court’s rulings on these objections.

Objection	SUSTAINED	OVERRULED
1		OVERRULED
2	SUSTAINED
3	SUSTAINED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7		OVERRULED
8		OVERRULED
9		OVERRULED
10		OVERRULED
11		OVERRULED
12		OVERRULED
13		OVERRULED
14		OVERRULED
15		OVERRULED
16		OVERRULED
17		OVERRULED
18		OVERRULED
19		OVERRULED
20		OVERRULED
21		OVERRULED
22		OVERRULED
23		OVERRULED
24		OVERRULED
25		OVERRULED
26		OVERRULED
27	SUSTAINED
28		OVERRULED
29		OVERRULED
30		OVERRULED
31		OVERRULED
32		OVERRULED
33		OVERRULED
34		OVERRULED

Many of the objections filed by Plaintiff are frivolous. Plaintiff objects to the statement by Defendant’s expert that “I have been engaged by Defendant, Avida LLC to provide expert evidence” on the grounds of hearsay. (See Objections, Objection No. 1.) Similarly, Plaintiff objects to the statement by Defendant’s Chief Operating Officer that “Avida LLC is a Nevada corporation and sole owner of the brand Avida CBD.” (Objections, Objection No. 10.) The two lawyers who submitted these objections have collectively over 70 years of experience as California attorneys. “This is hardly good advocacy, and it unnecessarily overburdens the trial court.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254, fn. 3.)

Plaintiff also objected to Defendant’s Reply, and Defendant filed a Response to these objections. Although Defendant’s Reply exceeds the allowable length and Defendant did not receive prior leave to surpass the length limit, the Court exercises its discretion to consider the Reply in its entirety.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.” (Code Civ. Proc., § 437c, subd. (1)(a).)

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850, citation omitted.)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, at p. 850; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474, [applying the summary judgment standards in Aguilar to motions for summary adjudication].)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839, citation omitted.)

“The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Binder, supra, at p. 840, citations omitted; see also Weiss v. People ex rel. Dep’t of Transp. (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

“On a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Super. Ct. (2003) 114 Cal.App.4th 309, 320, citation omitted.)

Defendant moves the Court to grant summary judgment, or in the alternative summary adjudication, in its favor. (MSJ, p. 31:7–8.)

Defendant argues: (1) that Plaintiff cannot establish that Defendant breached any duty owed because Defendant’s advertising was accurate and truthful; (2) that Plaintiff cannot establish that Defendant caused his damages because the evidence shows that other parties were the cause; (3) that Plaintiff has already successfully argued that his damages were caused by his employer’s wrongful termination; (4) that even if the employer was not the sole cause of damages, Plaintiff cannot prove that Defendant’s conduct was a substantial factor cause for his damages because it was neither a necessary nor sufficient cause of the failed drug test; (5) that Plaintiff cannot recover damages from Defendant because he already received an arbitration award ordering his employer to pay his damages; (6) that Plaintiff cannot prevail on any of his causes of action; and (7) that Plaintiff cannot prevail because Defendant is entitled to certain affirmative defenses. (MSJ, pp. 16:15–16, 17:16–17, 18:8–9, 19:8–11, 20:22–23, 21:17, 28:5–6.)

Plaintiff disagrees, arguing: (1) that Defendant knowingly made false representations and the MSJ should be denied; (2) that Defendant is strictly liable; (3) that Defendants are liable for breach of warranty; (4) that Defendants are liable for fraud; (5) that Defendants are liable for violation of Business and Professions Code sections 17200 and 17500; and (6) that Plaintiff’s receipt of monies from the arbitration does not entitle Defendant to summary judgment. (Opposition, pp. 12:11–12, 14:16, 18:26, 19:20, 20:21, 21:23, 22:26–27.)

There appear to be multiple triable issues of material fact in this matter, including but not limited to:

(1) whether Defendant’s advertising was accurate and truthful. This is brought into question by Plaintiff’s declaration that he had not previously tested positive on any drug test prior to using Defendant’s product but that he did test positive on two drug tests after using Plaintiff’s product (Decl. Berman, Exh. 5, Decl. Manquero, ¶¶ 3–5 [actual pages 148–149 of 168] and Exh. 6, Decl. Scott, ¶ 4 [actual pages 155–156 of 168] and Exh. 6.2, KorvaLabs Test Results [actual page 162 of 168]);

(2) whether Defendant’s product was an actual cause of Plaintiff’s failed drug tests (ibid.);

(3) whether Defendant’s product was a proximate cause of Plaintiff’s failed drug tests (ibid.);

(4) whether Plaintiff suffered separate damages by acts of Defendant from those damages to Plaintiff allegedly caused by Plaintiff’s employer (Decl. Berman, Exh. 5, Decl. Manquero, ¶ 8 [actual pages 150–151 of 168]); and

(5) whether the amount of damages Plaintiff suffered is larger than the amount paid to him by his employer (ibid.).

While there are other remaining issues — some specific to individual causes of action and others pertaining to the Complaint as a whole — those issues (including the applicability of certain affirmative defenses) also involve triable issues of material fact.