Judge: Richard Y. Lee, Case: 30-2021-01198250, Date: 2023-08-10 Tentative Ruling
Defendant/Cross-Complainant, Synoptek, LLC (“Synoptek”) moves for entry of summary judgment in its favor because: “1) Plaintiff Burstorm Inc.’s claim for damages is based on alleged pre-contract communications and understandings and an alleged, subsequent oral modification of the written agreement, which is expressly barred by the agreement’s integration clause as a matter of law; and 2) after more than two years of discovery, Burstorm’s discovery responses reflect it cannot establish the requisite element of damages for each of its claims as a matter of law.”
Synoptek contends that summary judgment must be granted in its favor because the causes of action of Plaintiff/Cross-Defendant Burstorm, Inc. (“Burstorm”) are barred by the integration clause in the User Access Agreement and that an alleged oral modification of the parties’ integrated, written agreement is without merit as a matter of law, and that any pre-contractual discussions or agreements that were not incorporated into the written terms of the Agreement are also barred by the integration clause. Synoptek also contends that summary judgment must be granted because a plaintiff must show damages to prevail on causes of action for breach of contract and fraudulent inducement, but that Burstorm cannot establish the requisite element of damages as a matter of law based on Burstorm’s factually devoid discovery responses which show Plaintiff cannot prove the element of damages.
Burstorm contends that the motion must be denied on procedural and substantive grounds. Burstorm asserts that the motion is procedurally defective as it seeks only summary judgment but fails to defeat all of Burstorm’s causes of action and does not address the third cause of action for unjust enrichment or fourth cause of action for common counts, that any attempt by Synoptek to claim it is seeking summary adjudication regarding a particular cause of action or claims for damages must fail as it does not clearly and expressly declare it is seeking summary adjudication as required by California Rules of Court, rule 3.1350(b), and that the motion, as it relates to damages, is in violation of Code of Civil Procedure section 437c(t) as Synoptek did not seek necessary leave to make this argument.
Burstorm also contends that Synoptek’s arguments fail substantively. Burstorm argues that Synoptek’s first argument that parol evidence from before the parties entered into their written agreements is inadmissible with respect to a separate agreement titled Burstorm Synoptek Scope/Scope Agreed Terms based on the integration clause in the User Access Agreement, does not clearly state what parol evidence Synoptek contends Burstorm relies on, and that Burstorm does not rely on parol evidence to support its claims. Burstorm asserts that there are two distinct agreements: the User Access agreement and the Scope Agreed Terms, and that it relies on Synoptek’s commitments as set forth in the Scope Agreed Terms including the percentage of savings it obtained for Synoptek on technology infrastructure contracts, and compensation under the three-year exclusive brokerage services commitment. Burstorm also argues that Synoptek has not established, as it must to support its argument that the integration clause applies, that the User Access Agreement and the Scope Agreed Terms are a single agreement such that the integration clause appearing only in the User Access Agreement applies to the Scope Agreed Terms, as well as that the parties intended that single agreement to be fully integrated. Burstorm additionally provides that the declarations in support of the opposition from Brandon Abbey and Scott Goessling, who were involved in the contracting process on Burstorm’s behalf, and who testify that the User Access Agreement and the Scope Agreed Terms always were intended to be separate and distinct and that the Scope Agreed Terms was not to be governed by the provisions of the User Access Agreement, including the integration clause shows that, at minimum, there are at least triable issues of fact about whether there is one agreement or multiple agreements and whether the parties intended there to be an integration.
Burstorm contends that Synoptek’s second argument that an oral modification of a term of the Scope of Agreed Terms is barred based on an integration clause in the User Access Agreement fails for the same reason that Synoptek has not established that the documents at issue are a single agreement to which the integration clause in the User Access Agreement applies. Burstorm also contends that even if oral modification is not enforceable, Burstorm could still proceed because it claims that Synoptek breached the exclusive brokerage commitment to Burstorm which would be in violation of the exclusive brokerage term in the Scope of Agreed Terms, and the accommodation reached by the parties of that breach is a collateral agreement.
Burstorm contends that Synoptek’s third argument that Burstorm cannot prove damages is based on its response to a single interrogatory, Special Interrogatory No. 41, that does not ask about Burstorm’s proof of damages; that a specifically calculable amount is not required; that Burstorm’s damages are at least in the amounts it calculated and for which it invoiced Synoptek for savings-related services; that Burstorm has damages from the breach of the exclusive brokerage agreement and reserves its right to those damages; that Synoptek ignores other interrogatory responses which establish damages, such as responses to Special Interrogatory Nos. 32, and 47; and that declarations in support of the opposition contain facts supporting Burstorm’s savings-related damages. Burstorm also contends that the motion does not produce evidence that Burstorm cannot obtain evidence to support damages.
Lastly, Burstorm asserts that all of Synoptek’s arguments are irrelevant, but that even if Synoptek were to prevail on any of its arguments regarding the unenforceability of certain contract terms, the motion must be denied because Burstorm can recover under unjust enrichment and its common counts, which are not addressed in the motion.
As a threshold matter, the Court notes that this action involves a Complaint filed by Plaintiff/Cross-Defendant Burstorm, Inc., and a Cross-Complaint filed by Synoptek. Synoptek does not identify upon which pleading it seeks summary judgment. However, the noticed issues and the parties’ briefing indicate that Synoptek is seeking summary judgment on Burstorm’s Complaint.
Notice of Motion
In addition, as noted by Burstorm, Synoptek seeks only summary judgment, and not summary adjudication, despite the reference to summary adjudication in the description of certain documents supporting the motion.
In order to move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, Rule 3.1350 (b).) A notice of motion must state the “grounds upon which it will be made.” (Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498 [citing Code Civ. Proc. § 1010] (“Homestead”).) The court has no power to adjudicate others. (Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead, supra, 179 Cal. App. 3d at p. 498.) A party does not waive any requirement of notice for a subissue that was not set forth in the notice by responding to the argument. (Homestead, supra, 179 Cal. App. 3d at p. 498.)
The court in Homestead reasoned, “If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion. It is no doubt tempting for a trial court to ‘adjudicate’ subissues it considered during examination of an issue presented by the moving party. In many cases, the trial court’s analysis of the subissue may be correct and the defending party may have put forth all available evidence and argument on the subissue. But neither the moving party nor the court can be certain that the defending party has fully defended the subissue. Any gain in efficiency the court might make by adjudicating subissues not targeted by the motion is outweighed by the unfairness to the defending party who has not been properly notified of the danger of such a ruling.” (Homestead, supra, 179 Cal. App. 3d at p. 498.)
“A summary adjudication motion tenders only those issues or causes of action that are specified in the notice of motion and may only be granted as to these specified matters. A judge must deny the motion if the moving party fails to establish an entitlement to summary adjudication on the specified matters and cannot summarily adjudicate other issues or claims even if a basis to do so appears from the papers.” (California Judges Benchbook: Civil Proceedings-Before Trial § 13.45 Summary Judgment and Summary Adjudication Motions, citing Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744.)
Here, Synoptek’s notice of motion states that Synoptek “move[s] for entry of summary judgment in its favor as follows: Synoptek is entitled to summary judgment in its favor on [sic] because: 1) Plaintiff Burstorm Inc.’s claim for damages is based on alleged pre-contract communications and understandings and an alleged, subsequent oral modification of the written agreement, which is expressly barred by the agreement’s integration clause as a matter of law; and 2) after more than two years of discovery, Burstorm’s discovery responses reflect it cannot establish the requisite element of damages for each of its claims as a matter of law.” (Notice of Motion, 1:4-13.)
Burden on Motion for Summary Judgment
“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.” (Code Civ. Proc. § 437c(a)(1).)
“A summary judgment may be granted only where it is shown that the entire ‘action’ ‘has no merit.’ [Citation.]” (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 834.)
“[I]f the showing by the defendant does not support judgment in his favor, the burden does not shift to the plaintiff and the motion must be denied without regard to the plaintiff’s showing. [Citation.]” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534.) Where a defendant fails to establish every fact necessary to show the causes of action against them are without merit, they fail to meet their initial burden and the motion must be denied. (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1310.)
In order to be entitled to summary judgment, a moving party must defeat all theories asserted as to a cause of action alleged in a complaint. (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 613 [“in order to be entitled to summary judgment, respondent had to defeat that theory [fraud based on concealment] in addition to the fraud based on affirmative misrepresentation” and the burden as on respondent to negate at least one element of the action for fraud based on concealment].)
Here, as noted by Burstorm, its Complaint asserts a cause of action for unjust enrichment [third cause of action], and a cause of action for common counts [fourth cause of action]. The motion does not identify or discuss these causes of action, and fails to show how these causes of action are without merit based on the integration clause in the User Access Agreement, or the purported inability by Burstorm to establish the element of damages.
Based on the foregoing, as Synoptek fails to show that the entire action has no merit, Synoptek’s motion for summary judgment is DENIED.
Burstorm’s Objections to Evidence (ROA 186)
Declaration of Jason Anderson
Objection No. 1: Sustained.
Objection No. 2: Sustained.
Defendants’ Objections
As for the objections, “[i]n granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to the disposition of the motion.” (Code Civ. Proc. § 437c(q).) Here, the objections to the Declaration of Scott Goessling (ROA 196) to the Declaration of Brandon Abbey (ROA 197) are not material to the disposition of the motion. Therefore, the Court need not rule on the objections.
Burstorm to give notice.