Judge Robert B. Broadbelt, Case Number: 23STCV18522, Date: 2025-06-12 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 23STCV18522, Date: 2025-06-12 Tentative Ruling

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court rules on defendant Triller Platform Co.’s evidentiary objections to the declaration of Logan Pettigrew, filed on May 23, 2025, as follows:[1]

The court sustains Objection No. 13 as to the statement “Applovin Corporation is entitled to summary adjudication as a matter of law” but overrules the remainder of the objection.

The court notes that many of the evidentiary objections directed to the declaration of attorney Logan Pettigrew (“Pettigrew”) are based on the assertion that counsel did not lay the necessary foundation to establish the business records exception to the hearsay rule. The court disagrees. Pettigrew stated, in their declaration, that in their employment capacity as the Senior Managing Litigation & Regulatory Counsel, they are one of the custodians of records for Plaintiff and are familiar with the methods used in making database entries and maintaining records of the accounts receivables and other documents reflecting the agreements and contracts of Plaintiff. (Pettigrew Decl., ¶¶ 2-3.) Thus, the court finds that Pettigrew has laid the necessary foundation as a custodian of records for plaintiff AppLovin Corporation.

As to Exhibits C through H, Pettigrew has stated that (1) the records and documents accompanying their declaration “were created, executed and/or received by [plaintiff AppLovin Corporation] employees in the regular course of business and are maintained in the files of” plaintiff AppLovin Corporation, and (2) in the ordinary course of its business, plaintiff AppLovin Corporation generates monthly invoices for the services provided by it to its customers. (Pettigrew Decl., ¶¶ 3, 5 [describing mode of preparation of invoices].) Pettigrew, as one of the custodians of records for plaintiff AppLovin Corporation, has testified to the identity of those exhibits. (Pettigrew Decl., ¶ 7 [stating that true and correct copies of the statement of account and unpaid invoices are attached thereto as Exhibits C-H].) Further, the court finds that the sources of information and method and time of preparation of the subject documents are such as to indicate their trustworthiness. Thus, the court finds that Pettigrew’s declaration is sufficient to establish that Exhibits C through H, as attached to Pettigrew’s declaration, are not made inadmissible by the hearsay rule. (Evid. Code, § 1271.)

The court rules on defendant Triller Platform Co.’s evidentiary objections to the declaration of Timothy Carl Aires, filed on May 23, 2025, as follows:

The court overrules Objection No. 2 as to the statement “On November 21, 2023, responses were served to Requests for Admission, Set No. One by Defendant Triller Platform Co., a corporation,” but sustains the objection to Exhibit J because those discovery responses are not verified. (Aires Decl., Ex. J, p. 5 [unsigned verification page].) The court has not considered the verification submitted in support of the reply papers because such evidence was required to be filed and served with the moving papers. Moreover, although plaintiff AppLovin Corporation asserts that these responses are admissible as a prior inconsistent statement, it did not introduce these discovery responses in order to show defendant Triller Platform Co.’s prior inconsistent or consistent statements. (Legrand v. Yellow Cab Co. (1970) 8 Cal.App.3d 125, 129 [“no oath is required for prior inconsistent or consistent statements under Evidence Code sections 1235, 1236”]; Mot., p. 8:1-3 [arguing that the discovery responses “provide no information which contradicts the absence of a disputed material fact” and that “Barren discovery responses may be used to show that there is no triable issue of material fact in dispute”].)

The court overrules Objection No. 4 as to the statement “On November 21, 2023, responses were served to Form Interrogatories, Set No. One by Defendant Triller Platform, Co.,” but sustains the objection to Exhibit L because those discovery responses are not verified. (Aires Decl., Ex. L, p. 19 [unsigned verification page].) The court has not considered the verification submitted in support of the reply papers because such evidence was required to be filed and served with the moving papers. Further, plaintiff AppLovin Corporation did not show that it presented these responses in order to show defendant Triller Platform Co.’s prior inconsistent or consistent statements. (Legrand, supra, 8 Cal.App.3d at p. 129; Mot., p. 8:1-3.)

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) For the purposes of motion for summary judgment and summary adjudication, “[a] plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) “Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

Plaintiff AppLovin Corporation (“Plaintiff”) moves the court for an order granting summary adjudication in its favor and against defendant Triller Platform Co. (“Defendant”) on Plaintiff’s first cause of action for breach of contract in the total amount of $423,902.57, consisting of $315,213.10 in damages and $108,689.47 in interest.

“‘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.’” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402 [internal citation omitted].)

The court finds that Plaintiff has not met its burden of showing that there is no defense to the first cause of action for breach of contract because Plaintiff has not proven the element of its performance or excuse for nonperformance. (Miles, supra, 236 Cal.App.4th at p. 402.)

The court acknowledges that Plaintiff has presented evidence to prove existence of the contract between Plaintiff and Defendant. (Pettigrew Decl., Ex. A, p. 1 [Campaign IO entered into by and between Plaintiff, on the one hand, and Triller Inc. (Defendant’s former name), on the other hand[2]]; Pettigrew Decl., Ex. B [Amendment No. 1 to the Campaign Insertion Order].)

However, the court finds that Plaintiff has not shown that it performed under the parties’ contract or that its performance was excused. Plaintiff did not, for example, submit the declaration of any of its employees stating that Plaintiff performed all the services required under the Campaign IO and the amendment to the Campaign IO. Moreover, Pettigrew’s testifying as to the method of preparation of the invoices is not sufficient to show that Plaintiff performed all of its obligations under the parties’ contract. (Pettigrew Decl., ¶ 5.) The court also finds (1) that, upon review of the invoices, the invoices are not sufficient, alone, to show that Plaintiff performed all its obligations under the parties’ contract, and (2) the emails set forth in Pettigrew’s declaration (and to which the court has not sustained objections) do not establish the element of Plaintiff’s performance or excuse for nonperformance. (Pettigrew Decl., ¶¶ 10-12; Pettigrew Decl., Exs. C-H.)

The court also notes that it has sustained Defendant’s evidentiary objections to the unverified discovery responses of Defendant. However, even if the court were to consider those responses, the court would find that they do not show that Plaintiff performed under the terms of the parties’ contract.

Specifically, although Plaintiff points to certain of Defendant’s discovery responses in an attempt to show that Defendant’s responses do not provide “information which contradicts the absence of a disputed material fact[,]” Defendant’s response to form interrogatory number 17.1 states that it denied the admission that it owes Plaintiff the principal sum of $315,213.10 on the ground that such amount included charges for services that Defendant terminated. (Mot., p. 8:1-3; Pl. Material Fact No. 5; Pettigrew Decl., Ex. L, Def. Response to Form Interrogatory No. 17.1 as to Request for Admission No. 1, p. 14:6-10.) Thus, even if the court were to consider the unverified discovery responses of Defendant, such responses shows that a triable issue of material fact exists as to (1) whether Plaintiff performed all the obligations under the parties’ contract, and (2) the amount of damages due and owing to Plaintiff for the services actually rendered.

Further, the other discovery responses cited by Plaintiff in its material fact number 5 are not factually devoid responses that are sufficient to shift the burden to Defendant on the merits of the first cause of action because (1) the response to Request for Admission number 1 denies the admission, which is all that is required, (2) the assertions that Defendant can neither admit nor deny Request for Admission number 2 as to documents A and B are not factually devoid and, even if they were factually devoid, those requests concern only the genuineness of the Campaign IO and Amendment No. 1 to the Campaign Insertion Order and therefore do not prove that Plaintiff performed under the parties’ contract or that Defendant owes to Plaintiff the claimed $315,213.10 in principal, and (3) the responses to Form Interrogatories numbers 15.1 and 50.3 are not factually devoid within the meaning of Union Bank v. Superior Court (1995) 31 Cal.App.4th 573 simply because they contain only objections (the merits of which could have been challenged on a motion to compel further responses), since objections are valid responses to document demands. (Pl. Material Fact No. 5; Pettigrew Decl., Ex. J, Def. Responses to Req. for Admission, pp. 3:22-4:13; Pettigrew Decl., Ex. L, Def. Responses to Form Interrogatories, pp. 13:15-22, 16:16-23; Union Bank, supra, 31 Cal.App.4th at pp. 580 [describing response to form interrogatory number 17.1, which only stated the plaintiffs’ belief that defendant took the assignment of assets fraudulently], 581 [finding that the answers that contained no facts supporting the existence of misrepresentations shifted the burden of proof on summary judgment]; Code Civ. Proc., § 2031.210, subd. (a)(3) [party to whom a demand has been directed shall respond by, inter alia, an objection to the particular demand].)

For the reasons set forth above, the court denies Plaintiff’s motion for summary adjudication.

The court denies plaintiff AppLovin Corporation’s motion for summary adjudication.

[1] The court notes that the evidentiary objections are not (1) numbered and (2) accompanied by a proposed order, as required. (Cal. Rules of Ct., rule 3.1354, subds. (b), (c).) The court has ruled on the evidentiary objections in numerical order.

[2] Defendant disputes that it was formerly known as Triller Inc. but does not dispute that it was formerly known as Triller, Inc. (Def. Response to Material Fact No. 2.) Defendant does not appear to meaningfully dispute, however, that it entered into this contract as Triller Inc.

applovin corporation ; Plaintiff, vs. triller platform co. , et al.; Defendants.	Case No.:	23STCV18522

	Hearing Date:	June 12, 2025

	Time:	10:00 a.m.

	[Tentative] Order RE: plaintiff’s motion for summary adjudication