Judge: Theresa M. Traber, Case: 20STCV32007, Date: 2023-05-04 Tentative Ruling

Case Number: 20STCV32007    Hearing Date: May 4, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     May 4, 2023               TRIAL DATE: June 6, 2023

CASE:                         Diane Bradley, et al. v. Swagg Media, Inc., et al.

CASE NO.:                 20STCV32007           

MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY:               Plaintiffs Diane Bradley and DAB Promotions, LLC

RESPONDING PARTY(S): Defendant Swagg Media, LLC, erroneously sued as Swag Media, Inc., and Craig Nobles.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a breach of contract and fraud action that was filed on August 21, 2020. Plaintiffs allege that the parties entered into a joint venture agreement in 2019 regarding the promotion and production of an event called the Fall Ball All Star Event. Plaintiffs contend that Defendants misrepresented that the event was scheduled for March 21, 2020, and that certain celebrities would appear.

Plaintiffs move for summary adjudication on their causes of action for breach of contract, fraud, and unfair competition, as well as Defendant Swagg Media’s affirmative defense of impossibility.

TENTATIVE RULING:

Plaintiffs’ Motion for Summary Adjudication is GRANTED IN PART as to the second cause of action for breach of contract and the affirmative defense of impossibility and otherwise DENIED.

DISCUSSION:

Plaintiffs move for summary adjudication on their causes of action for breach of contract, fraud, and unfair competition, as well as Defendant Swagg Media’s affirmative defense of impossibility.

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Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(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.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the plaintiff moving for summary judgment must satisfy the initial burden of proof by presenting proving each element of a cause of action. (Code Civ Proc. § 437c(p)(1).) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 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 that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Plaintiffs’ Requests for Judicial Notice

            Plaintiffs request that the Court take judicial notice of (1) the March 4, 2020 Proclamation of a State of Emergency issued by the Governor of the State of California; and (2) Executive Order N-25-20, enacted by the Governor of the State of California on March 12, 2020. Plaintiffs’ requests are GRANTED pursuant to Evidence Code section 452(c) (official acts of the executive department of California.)

Plaintiffs’ Evidentiary Objections

            Plaintiffs object to portions of the Declaration of Craig Nobles offered in support of Defendants’ Opposition to the Motion. The Court rules as follows on these objections:

Objections No. 1-4: OVERRULED. Objections go to weight, not admissibility.

Issue No. 1: Second Cause of Action (Breach of Contract)

            Plaintiffs contend that they are entitled to summary adjudication of the second cause of action for breach of contract.

To prevail on a cause of action for breach of contract, a plaintiff must establish (1) the existence of a contract; (2) the plaintiff’s performance on the contract or excuse for non-performance; (3) the defendant’s breach of the contract; and (4) damage to plaintiff resulting from the breach. (E.g. Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.)

The following facts are undisputed by the parties: Plaintiff DAB Promotions LLC entered into a Joint Venture Agreement with Defendant Swagg Media, LLC on December 16, 2019. (Declaration of Diane Bradley ISO Mot. Exh. B. p. 5; see also Defendants’ Response to Separate Statement of Undisputed Material Fact (“RSS”) No. 1.) The terms of that Agreement were that DAB and Swagg would work together to promote and produce an event titled “Fall Ball All Stars” which would take place in Los Angeles on March 21, 2020. (Separate Statement of Undisputed Material Fact (“SSUMF”) No. 8; RSS No. 8.) DAB was required by the Agreement to invest the sum of $100,000 to be utilized by Swagg to cover the costs associated with production, marketing, and exploitation of the event. (SSUMF No. 15, RSS No. 15.) Swagg, in turn, was obligated to facilitate the acquisition of financing to fund the event budget, and to “cause the planning, budgeting, marketing, production, streaming, and exploitation of the event.” (SSUMF No. 16, RSS No. 16.) Some time after signing the Agreement, Plaintiff Bradley, on behalf of DAB, wired $100,000 to an account in Defendant Nobles’ name on behalf of Swagg, in fulfillment of DAB’s obligations under the contract. (Id. No. 19.) Nobles received that money. (Id. No. 20.) However, the event contemplated in the contract never took place. (Id. No. 21.) The $100,000 investment was never returned. (Id. No. 53.)

Plaintiffs thus contend that there was a contract between DAB and Swagg, that DAB performed on its contractual obligations, and that Plaintiffs were damaged by Defendants’ failure to return the investment after the event did not take place. Plaintiffs’ evidence, including the agreement itself (Bradley Decl. Exh. B), and the deposition testimony of Defendant Nobles (Declaration of Anna-Sophie Tirre ISO Mot. Exh. K) is sufficient to establish these elements.

As to the central element of Defendant’s breach of the contract, Plaintiffs contend that the evidence shows that Swagg Media breached the contract by failing to plan and produce the event as agreed. The Agreement, which incorporated a pitch deck for the event by reference, stated both on its face and in the deck that the event would take place at the Galen Center on March 21, 2020. (SSUMF Nos. 8, 11.) Plaintiffs argue that, based on Defendants’ document production, Swagg never confirmed a date for the event with the Galen Center (SSUMF No. 25; RSS No. 25.) Indeed, Plaintiffs produce a chain of correspondence between Defendant Nobles and the Galen Center staff between January 29, 2020 and February 12, 2020 to schedule that event. (Id. Nos. 27-35.) In that chain, Defendant Nobles was informed that the Galen Center would most likely not be able to host the event for another four to six months. (Id. Nos. 33-34.) Plaintiff Bradley also testifies to a phone call with the parties and the Galen Center staff on February 19, 2020, where the staff suggested dates in June or July 2020 for the event. (Id. No. 37, 40.) In addition, Defendant Nobles admitted that he had not paid a deposit or signed a Letter of Intent to secure the March 21, 2020 date as of February 12, 2020. (Id. No. 42.) The Court is persuaded by Plaintiffs’ showing that Plaintiffs have met their burden to demonstrate that Swagg Media breached its obligation to plan and produce an event at the Galen Center for March 21, 2020. As Plaintiffs have met their burden on all of the elements of this cause of action, the burden shifts to Defendants to establish a triable issue of fact with respect to this cause of action.

In opposition, Defendants offer no meaningful counterargument to Plaintiffs’ evidentiary showing. The sole argument advanced by Defendants in their briefing is that there is a triable issue of fact as to the identity of the parties to the agreement because the Motion does not show whether Swagg Media, Inc. entered into the agreement, rather than Swagg Media, LLC. The Court is not persuaded. Swagg Media Inc. successfully moved to compel arbitration on the basis that it was also a party to the agreement. (April 22, 2021 Minute Order [vacated July 7, 2022 for failure to demonstrate retention of counsel as corporate entity].) Under the doctrine of judicial estoppel, Defendants cannot now claim that Swagg Media, Inc. is not a party to the contract. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) Plaintiffs are therefore entitled to summary adjudication of the second cause of action for breach of contract.

Issue No. 2: Affirmative Defense of Impossibility

            Plaintiffs contend that Defendants’ affirmative defense of impossibility is without merit.

            Impossibility is defined “as not only strict impossibility but [also] impracticability because of extreme and unreasonable difficulty, expense, injury, or loss involved.” (Autry v. Republic Prods. (1947) 30 Cal.2d 144, 149. The defense of impossibility may be applicable when a government order makes it unlawful for a party to perform its contractual obligations. (SVAP III Poway Crossings, LLC v. Fitness International, LLC (2023) 87 Cal.App.5th 882, 893 [citing County of Yuba v. Mattoon (1958) 160 Cal.App.3d 456, 458-59].)

            Plaintiffs anticipate—correctly—that Defendants base this affirmative defense on Governor Newsom’s executive orders limiting attendance at mass events due to the COVID-19 pandemic. (Opposition p. 3:10-12.) Governor Newsom did not declare a state of emergency, however, until March 4, 2020. (RJN Exh. A.) Further, the Order limiting attendance at mass events was not made until March 12, 2020. (RJN Exh. B.) Plaintiffs contend that COVID-19 was never discussed on the February 19, 2020 phone call. (SSUMF No. 89.) Instead, that conversation focused on alternative dates owing to availability of the Galen Center during USC’s basketball and volleyball seasons, as well as upcoming graduation events. (SSUMF No. 81.) The Court therefore finds that Plaintiffs have offered evidence that the affirmative defense of impossibility is without merit. The burden therefore shifts to Defendants to demonstrate a triable issue of fact on this defense.

            Here, Defendants have not met their burden. Defendants’ sole evidence in support of this defense is a conclusory statement by Defendant Nobles that Plaintiff Bradley “was aware that COVID-19 restrictions would impact on the event going forward,” and “the original date of the Event was delayed due to impact of COVID-19.” (Nobles Decl. ¶¶ 4, 6.) These conclusory statements, without any supporting documentation or explanation of supporting facts giving rise to those conclusions, are not remotely sufficient to establish the existence of a genuine issue of material fact. Plaintiffs are therefore entitled to summary adjudication of this affirmative defense as a matter of law.

Issue No. 3: First Cause of Action (Fraud)

            Plaintiffs contend that they are entitled to summary adjudication of the first cause of action for fraud.

The elements of fraud are (a) a misrepresentation based on a false representation, concealment, or nondisclosure; (b) knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)  

            Plaintiffs contend that Defendant Nobles, as the representative of Swagg Media, represented that the Event was scheduled to take place at the Galen Center on March 21, 2020. (SSUMF No. 93, 96.) Plaintiffs argue that this representation was false because the venue had not been secured nor a letter of intent signed, and thus the Event was not actually scheduled at that time. (SSUMF Nos 118-119, 127.) Plaintiffs contend that Nobles thus either knew the statement was false or had no basis to believe the statement was true and yet made it anyway. Plaintiffs also argue that Nobles made those representations to induce Plaintiffs’ investment, on the basis that he had been told by Plaintiff Bradley that she was facing tax penalties and interest payments if she did not see a return on her investment within six months. (SSUMF No. 92.) Plaintiffs contend that the funds would not have been invested if she had known that the event did not have a scheduled date and venue. (SSUMF No. 100.) Finally, Plaintiffs state that Defendants’ misrepresentation caused damage in the amount of $100,000. (SSUMF No. 139.)

            The Court is not persuaded by Plaintiffs’ showing with respect to this cause of action. At minimum, Plaintiffs ask the Court to assume that Nobles’ statements as to the date and venue of the Event were intended to induce reliance purely on the basis that she was expecting a return on her investment within six months. Plaintiffs are not entitled to any inferences as the moving party on summary adjudication. Thus, Plaintiffs have not demonstrated that they can prove all the elements of their first cause of action for fraud. Accordingly, the burden of proof does not shift to Defendants to demonstrate a triable issue of fact with respect to this cause of action. Plaintiffs are not entitled to summary adjudication of the first cause of action.

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Issue No. 4: Third Cause of Action (Unfair Competition)

            Plaintiffs contend that they are entitled to summary adjudication of the third cause of action for unfair competition for the same reasons as the fraud cause of action addressed above. As Plaintiffs are not entitled to summary adjudication on that claim, summary adjudication is likewise unavailable to Plaintiffs here.

CONCLUSION:

            Accordingly, Plaintiffs’ Motion for Summary Adjudication is GRANTED IN PART as to the second cause of action for breach of contract and the affirmative defense of impossibility and otherwise DENIED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: May 4, 2023                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.