Judge: Michael Shultz, Case: 21CMCV00056, Date: 2022-10-04 Tentative Ruling
Case Number: 21CMCV00056 Hearing Date: October 4, 2022 Dept: A
21CMCV00056
Transcendent Beauty, LLC v. Gordon Laboratories, Inc.
[TENTATIVE] ORDER
DENYING
I.
BACKGROUND
The complaint alleges that in
March of 2020, the parties entered into a partnership agreement to produce hand
sanitizers under Plaintiff’s brand name since Defendant, Gordon Laboratories,
Inc. (“Gordon” or “Defendant”) was a contract manufacturer without a brand
name. Defendant agreed to cover and advance costs related to making the
products and provide marketing dollar support to Plaintiff who would be
responsible for selling the products.
In late August 2020, Plaintiff was
no longer receiving status updates from Defendant. Defendant demanded
Plaintiff’s immediate payment for manufacturing costs although Defendant purportedly
agreed to be reimbursed for such costs when the products were sold. Defendant
denied any partnership between them. Plaintiff alleges claims for (1) breach of
contract, (2) breach of partnership agreement, and (3) declaratory relief.
On July 9, 2021, Defendant filed a
Cross-Complaint for breach of contract and open book account. Gordon alleges
that Cross-Defendant failed to pay for the manufacture of products totaling
$129,398.00 later revised to $148,948.13.
II.
ARGUMENTS
Defendant argues it is entitled to
judgment on Plaintiff’s complaint and its cross-complaint against Plaintiff.
Plaintiff’s claims are based on an alleged partnership with Defendant which was
not discussed by the parties until an August 21, 2020, email sent after
Defendant delivered the products to Amazon at Plaintiff’s request. Defendant
fulfilled Plaintiff’s purchase order request for products. Defendant filled the
order and demanded payment, which Plaintiff refused to pay until the products
were sold.
In an effort to mitigate the
parties’ dispute over payment, Defendant sent Plaintiff the August 21, 2020
email, proposing to transfer $12,000 to Plaintiff for marketing-related
expenses in exchange for a share of the
proceeds. The proposal was “an agreement to agree.” It was not final and is not
enforceable. Even if it is enforceable, there is no evidence to support
Plaintiff’s performance which obligated Plaintiff to sell the product or that
Plaintiff would have been successful in selling the product.
The court’s file does not reflect
that Plaintiff filed an opposition.
III.
LEGAL STANDARDS
Summary judgment is proper “if all
the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” Code Civ. Proc. §437c subd. (c).
Where a defendant seeks summary judgment or adjudication, defendant must show
that either “one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there is a complete defense
to that cause of action.” Id. at §437c(p)(2). Once the
defendant meets this burden, the burden shifts to the plaintiff to show that a
“triable issue of one or more material facts exists as to that cause of action
or defense thereto.” Id.
Until the moving defendant has
discharged its burden of proof, the opposing plaintiff has no burden to come
forward with any evidence. Once the moving party has discharged its burden as
to a particular claim, however, the plaintiff may defeat the motion by
producing evidence showing that a triable issue of one or more material facts
exists as to that cause of action. Code
Civ. Proc., §437c(p)(2).
The court applies the three-step
analysis to motions for summary judgment or adjudication: (1) identify the
issues framed by the pleading, (2) determine whether the moving party
established facts which negate the opponents’ claim, (3) if a defendant meets
its threshold burden of persuasion and the burden shifts, determine whether the
opposing party has controverted those facts with admissible evidence. Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.
IV.
DISCUSSION
The motion is supported by the
Declaration of Julie Christiansen, the CEO of Gordon Laboratories since October
19, 2020. By way of that declaration, Defendant submits documentary evidence of
text messages, emails, and correspondence between other people and shipping and
billing records in support of the motion. Declarations submitted in support of
the motion "shall be made by a person on personal knowledge, shall set
forth admissible evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavits or
declarations." Code Civ. Proc., § 437c subd. (d).
Ms. Christiansen attests that the
declaration is based on her personal knowledge and “based on information I have
received in the regular course of business.” Christiansen Declaration, ¶ 2. The
foregoing statement is insufficient to establish the business records exception
to the hearsay rule which provides the following:
“Evidence of a writing made as a record of an
act, condition, or event is not made inadmissible by the hearsay rule when offered
to prove the act, condition, or event if:
(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the act,
condition, or event;
(c) The custodian or other qualified witness testifies to its
identity and the mode of
its preparation; and
(d) The sources of information and method and time of preparation
were such as to indicate its trustworthiness."
The
declaration satisfies only the first element. The text messages purportedly
establishing the parties’ arrangement with respect to the manufacture of the
products occurred in April 2020. Christiansen declaration, ¶ 6. She asserts she
became CEO in October 2020. Id., ¶ 1. Moreover, the text messages are
made between “Michael” (presumably, Michael Perreira, Defendant’s former CEO)
and an unknown third party. Christiansen Declaration, Ex. A. Mr. Perreira does
not submit a declaration authenticating the text messaging. Ms. Christiansen does
not assert any foundational facts to establish her personal knowledge of conversations
and written communication that occurred between Mr. Perreira
and Plaintiff’s CEO or between Plaintiff’s CEO and an Amazon representative
during the relevant time period. Accordingly, Defendant has not met its
threshold burden with admissible evidence.
Plaintiff has
no obligation to create a triable issue if Defendant fails to meet its
threshold burden, nor is Plaintiff required to produce a “scintilla” of
evidence challenging Defendant’s material facts. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454. If Defendant does not meet this burden, summary judgment must be
denied even if Plaintiff’s response is defective. Kelleher v. Empresa Hondurena De Vapores, S. (1976) 57
Cal.App.3d 52, 58. Plaintiff’s failure to oppose
the motion does not relieve Defendant of the burden of establishing evidentiary
facts of every element necessary to entitle Defendant to judgment. Pena v. W. H. Douthitt Steel & Supply Co. (1986) 179
Cal.App.3d 924, 929.
Accordingly,
Defendant’s Motion for Summary Judgment is DENIED.