Judge: Monica Bachner, Case: 20STCV31885, Date: 2022-07-26 Tentative Ruling

Case Number: 20STCV31885    Hearing Date: July 26, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Belavis LLC’s motion for summary judgment on its operative second complaint against Defendants Yo Yo Amon, LLC and Amber Farr is denied. 

          Plaintiff Belavis LLC (“Plaintiff”) moves for summary judgment on its own Second Amended Complaint (“SAC”) against Defendants Yo Yo Amon (“YYA”) and Amber Farr (“Farr”) (collectively, “Defendants”).  Plaintiff moves on the grounds that there are no triable issues of material fact. (Notice of Motion, pgs. 1-2.)

          Defendants’ 7/20/22 evidentiary objection to evidence Plaintiff submitted in support of its reply is sustained. 

          The Court notes Plaintiff moves only for summary judgment and does not, in the alternative, move for summary adjudication of any issues and/or individual causes of action.  As such, to the extent Defendants submit evidence creating a triable issue of fact as to whether Plaintiff can establish a single cause of action, summary judgment on the SAC as a whole is not warranted.

          Background

Plaintiff filed this action on August 21, 2020. On November 12, 2020, Plaintiff filed a first amended complaint (“FAC”), and on January 29, 2021, Plaintiff filed the operative SAC against Defendants alleging causes of action for (1) breach of contract and (2) common counts. 

          Plaintiff alleges that prior to January 2020, Defendants, via a verbal internet communication, requested Plaintiff supply them with materials for use in Defendants’ designs, manufacturing, and distribution of women’s clothing.  (SAC ¶6.)  Plaintiff alleges the terms of the agreement were discussed and agreed upon by all parties and restated in a written purchase order. (SAC ¶6.)  Plaintiff alleges shipments of materials, which took place at different times, were provided at Defendants’ request and were each pursuant to a purchase order and accompanied by a written invoice from Plaintiff.  (SAC ¶6.)  Plaintiff alleges from December 2019 to March 11, 2020, Plaintiff supplied services, material and product to Defendants in nine shipments for which Plaintiff invoiced Defendants a total of $239,234.83. (SAC ¶7.)  Plaintiff alleges from February to July 2020, it attempted contacting Defendants regarding outstanding invoices, while noting Defendants continued to sell clothing using Plaintiff’s materials.  (SAC ¶8.)  Plaintiff alleges Defendants accepted Plaintiff’s materials and breached their agreement with Plaintiff by failing to pay for the materials, unjustly benefiting and refusing to pay the $183,917.32 owed, plus interest. (SAC ¶¶9-10.) Plaintiff filed the instant motion on April 5, 2022.

          Breach of Contract (1^st COA)

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Plaintiff submitted evidence establishing each element of the cause of action.  It is undisputed that YYA does business under the fictitious name “Flynn Skye” and that Amber Farr is an officer and member of YYA as well as an officer of Flynn Skye. (USSF Nos. 1-4 (“USSF” refers to undisputed facts).)   It is undisputed Farr was authorized to bind YYA to agreements with persons or entities providing services and products to YYA. (USSF No. 6.)  Plaintiff submitted evidence Farr entered into agreements to purchase services and products from Plaintiff.  ([Disputed Separate Statement of Fact (“D-SSF”) No. 7] Decl. of Namkoong ¶7.)  The following facts are undisputed: (1) YYA entered into agreements for the purchase of services and products from Plaintiff; (2) YYA received services and products from Plaintiff; (3) YYA received invoices from Plaintiff for those purchased services and products; (4) YYA did not return any products it received from Plaintiff; (5) YYA received the following nine invoices from Plaintiff as reflected in Exhibits 1 through 9: (1) No. 180337 [dated 12/16/19], (2) No. 180339 [dated 1/12/20], (3) No. 180340 [dated 1/12/20], (4) No. 180342 [dated 1/22/20], (5) No. 180343 [dated 1/22/20], (6) No. 180344 [dated 2/10/20], (7) No. 180345 [dated 2/10/20], (8) No. 180346 [dated 2/10/20], and (9) No. 180348 [dated 3/11/20] (collectively, “Invoices”).  (USSF Nos. 8-10, 12-14, 16-17, 19-20, 22-23, 25-26, 28-29, 31-32, 34-35, 37-38.) Plaintiff submitted evidence YYA did not pay the amounts indicated in Invoices 2, 3, 7-9, and the entire amounts in Invoices Nos. 1, 4- 6 to Plaintiff.  (USSF Nos. 18, 21, 33, 36, 39 (Invoice Nos. 2, 3, 7, 8, 9; [D-SSF Nos. 15, 24, 27, 30] (Invoice Nos. 1, 4, 5, 6) RFA Nos. 16, 25, 28, 31; Decl. of Weissman, Exh. 12; Decl. of Namkoong ¶14, Exh. 10.)  Plaintiff also submitted evidence YYA did not refuse any of Plaintiff’s services or products.  ([D-SSF No. 11] Decl. of Namkoong ¶15.)  Plaintiff submitted evidence the outstanding balance YYA owes Plaintiff as of August 1, 2020 is $163,239.  ([D-SSF No. 43] Decl. of Namkoong ¶14, Exh. 10.) 

Based on the foregoing, Plaintiff met its burden on summary judgment.  Therefore, the burden shifts to Defendants to create a triable issue of material fact.  As discussed below, Defendants met their burden.

Defendants submitted evidence creating triable issues of fact as to whether Plaintiff can establish the requisite elements of the breach of contract cause of action, namely, that Plaintiff fully performed, there was no excuse for Defendants’ alleged failure to pay amounts reflected in certain invoices to support the element of breach, and the amount of damages.  Defendants submitted evidence that Invoice No. 7 [No. 180345] was never delivered nor ordered and that Plaintiff acknowledged it was “NOT DELIVERED.”  ([Additional Material Fact (“AMF”) No. 44] Decl. of Farr ¶5; Decl. of Rosenthal ¶¶3-4, Exhs. 1, 2.) Defendants submitted Evidence Invoices Nos. 7 and 8 [180345 and 180346] were never approved for payment because Defendants had no evidence the shipment had been delivered.  ([AMF No. 45] Decl. of Farr ¶6.)  Defendants submitted evidence that “several” of the invoices presented by Plaintiff were for goods for which Defendants have no record of having received.  ([AMF No. 46] Decl. of Farr ¶4.)

The Court notes Defendants also argue Plaintiff failed to establish alter ego liability as to Farr to hold her liable for the debts of YAA.  However, given a triable issue of fact exists as to whether Plaintiff can establish its breach of contract cause of action against YAA, the Court need not address this issue. 

Based on the foregoing, Plaintiff’s motion for summary judgment is denied.

Dated:  July _____, 2022

Hon. Monica Bachner

Judge of the Superior Court