Judge Stephen P. Pfahler, Case 21CHCV00950 2023-02-06 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 21CHCV00950, Date: 2023-02-06 Tentative Ruling

Case Number: 21CHCV00950 Hearing Date: February 6, 2023 Dept: F49

Dept. F-49

Date: 2-6-23

Case #21CHCV00950

Trial Date: 4-24-23

SUMMARY ADJUDICATION

MOVING PARTY: Plaintiff, Municipal Packaging, Inc.

RESPONDING PARTY: Defendants, Virgin Scent, Inc., et al.

RELIEF REQUESTED

Motion for Summary Adjudication on the Breach of Contract Cause of Action

SUMMARY OF ACTION

On December 13, 2021, Plaintiff f Municipal Packaging, Inc. filed a complaint for Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Common Count, Open Book Account, and Account Stated seeking to collect $230,750.02 for unpaid delivered goods. Defendants Virgin Scent, Inc., Yaakov Nourollah, Akiva Nourollah, and Osher Netkin answered the complaint on March 23, 2022.

RULING: Denied.

Plaintiff Municipal Packaging, Inc. moves for summary adjudication on the breach of contract cause of action seeking judgment for $230,750.02. The sought after balance comes from a series of invoices indicating delivery of goods from April 27, 2021 to August 31, 2021, and non-payment. Defendants Virgin Scent, Inc., Yaakov Nourollah, Akiva Nourollah, and Osher Netkin challenge the motion on grounds of admissible evidence, and lack of any basis for liability against the individual defendants. Plaintiff in reply submits “corrected” declarations.

The law of summary judgment provides courts “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 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD., v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) 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).) Plaintiff need not disprove all defenses, if the elements of a cause of action are made. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 564; WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532.) “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 inference that may be drawn form 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; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

“Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.”

(Code Civ. Proc., § 2015.5.)

The declarations of Larry Slade, Jason Small, and Monica Helm lack any indication of the execution within the state of California, or a location outside of California, yet in compliance with California law. The declarations are therefore in violation of Code of Civil Procedure section 2015.5, and cannot be presented as evidence in support of the motion for summary adjudication. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 618.) Affidavits and declarations submitted in connection with summary judgment motions must set forth admissible evidence. (See Code Civ. Proc., § 437c, subd. (d).)

The court declines to accept the subsequently corrected declarations. The original motion was technically defective. Allowing corrections in a reply improperly deprives Defendants of the opportunity to challenge the late submitted evidence. The court declines to consider the objections constituted an opportunity to respond. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1182-1183.) The motion for summary judgment is therefore denied, due to the lack of admissible, supporting evidence establishing the balance due.

Even if the court considered the declarations, however, the court alternatively finds no support on the issue of liability against the individual defendants in that the invoices only identify the Virgin Scents, Inc. dba Artnaturals entity. The motion and reply lacks argument or evidentiary support for individual defendant liability. In fact, Plaintiff in reply concedes this argument. Thus, the purported contractual agreement is only with the corporate entity, with the personal guaranty section empty. Therefore, even assuming the existence of the agreement and the validity of the invoices, because the motion only addresses one party, the court declines to grant summary adjudication in that it completely fails to dispose of the entire cause of action. (Code Civ. Proc., § 437c, subd. (f)(1).) Absent a dismissal of the individual defendants from the subject cause of action prior to the filing of the motion, the court declines to accept the concession as somehow allowing the court to consider the motion potentially completely adjudicated.

The motion is denied in its entirety.

Trial remains set for April 24, 2023.

Plaintiff to provide notice to all parties.