Global
Sales & Marketing v. Don Spare Enterprises
Filed 6/13/13 Global Sales & Marketing v. Don Spare
Enterprises CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
GLOBAL SALES & MARKETING,
Plaintiff and Appellant,
v.
DON SPARE ENTERPRISES, INC. et
al.,
Defendants and Respondents.
B238495
(Los Angeles
County
Super. Ct.
No. LC080831)
APPEAL from
a judgment of the Superior Court
of
County, Frank J. Johnson, Judge. Affirmed.
Lozoya
& Lozoya, Frank J. Lozoya IV and Edmont T. Barrett, for Plaintiff and
Appellant.
Turner,
Aubert & Friedman, D. Larene Pyles and Jonathan M. Deer, for Defendant and
Respondent MTM Recognition.
Law Offices
of Glenn D. Hamovitz and Glenn D. Hamovitz for Defendants and Respondents Don
Spare Enterprises, Inc., Don Spare, George Stone Enterprises, Inc. and George
Stone.
I. INTRODUCTION
The parties to this lawsuit were involved in an
attempt to create an E-Commerce Company Store (ECS) designed to allow employees
to make on-line purchases of items including those bearing the internal
branding and logos of their employer.
The parties hoped to market the ECS to nonparty SuperValu for use by the
approximately 200,000 employees of SuperValu and its subsidiaries. SuperValu never gave final approval and none
of the parties realized any profit. The
present lawsuit was filed by one of the joint venturers against its former
associates. The allegations are breach
of contract, quantum meruit and fraud, resulting in claimed damages in excess
of $5 million. The trial court denied a
motion to compel discovery brought by plaintiff and granted all defendants’
grounds. Judgments in favor of
defendants were entered and plaintiff appeals.
We affirm.
II. BACKGROUND
A. The parties
Plaintiff/appellant Global Sales
& Marketing, LLC (Global), owned and managed by Dean Ladell, provides a
variety of domestic and international business services, including design and
development of on-line marketing and merchandising products. Working with
defendants, Global developed the proposed ECS that is the subject of this
lawsuit.
Defendants Don Spare, Don Spare Enterprises, Inc.
(Spare), George Stone and George Stone Enterprises, Inc. (Stone) are experienced
sales representatives for a variety of products and services, including
recognition programs and awards. Spare
and Stone have for many years sold products and programs created by defendant
Midwest Trophy Manufacturing Co., Inc. dba MTM Recognition (MTM). Spare and Stone are independent contractors
whose relationship with MTM is governed by a written agreement.
MTM is a manufacturer and provider of awards and
recognition products and services. It
employs over 750 people, including 15 information technology developers who
have designed and maintained over 500 recognition-related websites for MTM’s
customers. MTM’s clients include the NCAA, college bowl game entities, the
Special Olympics and a number of multi-national corporations.
Nonparty Supervalu owns retail chain stores including
Albertsons, Bristol Farms and Sav-on.
Albertsons and Supervalu have purchased MTM’s recognition awards
programs through Spare and Stone since 2003.
B. The Product
An “e-commmerce business package†consists of all aspects of
a proposed on-line project, including the actual “front-end†operational plan
and web site, as well as “back-end†services such as maintenance, accounting
and tax collection. An e-commerce
company store, or ECS, is an internet store that sells products branded with a
company logo to the company’s employees.
It is a different product than a recognition and awards program such as
the ones purchased from MTM by SuperValu.
C. The First Amended Complaint
In
its operative complaint Global seeks compensatory and punitive damages in
excess of $5 million from defendants Spare, Stone and MTM based on breach of
contract, quantum meruit and fraud.
name="_ftnref1" title="">[1]
Global alleges that pursuant to a November 2006 oral contract, plaintiff agreed
to develop a “business package for merchandise†and a “permanent web platformâ€
which the parties hoped would be adopted by SuperValu as its on-line company
store. In return for its work Global was
to receive “40% of the store sales for the life of the store,†and was
allegedly promised additional compensation for its services. Global alleges that it worked steadily to
comply with its contractual obligation until, on December
27, 2006, Global was falsely advised by defendants that Global’s work had been
accepted by SuperValu, and that Global should continue perfecting the project.
Global did so, responding to requests for additions to the program by
defendants Spare and Stone. In October
of 2007 a representative of defendant MTM falsely told Global the project was
proceeding. In October and November of
2007 defendants Spare and Stone falsely informed Global that SuperValu’s top
managers were completely committed, had named the platform “The Pro Shop,†and wanted to go full speed
ahead toward a December 1, 2007 “launch†date. In November of 2007 a
representative of defendant MTM supplied “base information†necessary for
Global to move forward on the project.
Global relied on these false statements and continued to perfect the
ECS. All defendants allegedly made misrepresentations which induced Global to
provide proprietary and trade secret information without compensation. Thereafter all defendants refused to pay,
made material misrepresentations and, by means of false statements, took
Global’s “proprietary information and protected trade secrets.†Global alleged that all defendants acted as
agents for one another, and acted in a manner deserving of an award of punitive
damages.
D. Global’s
Motion To Compel Discovery of MTM’s Proprietary Information
In February 2010 the trial court denied, without prejudice, Global’s
motion to compel discovery of MTM’s programming code and other electronic
data. The court found the information
sought constituted trade secrets governed, as to discovery, by Civil Code
section 2019.210. The court ruled, in
effect, that Global had not complied with that statute. We need not reach this issue on appeal in
light of our affirmance of the summary judgment motions. Any claim that the discovery may have
affected the trial court’s summary judgment rulings has been forfeited by
Global’s failure to renew the motion to compel prior to the
convinces us there was no abuse of discretion by the trial court, and that the
discovery at issue could not have changed the result of the summary judgment
rulings. (See Lickter v. Lickter (2010) 189 Cal.App.4th 712, 740.)
E. Defendants’
Motions For Summary Judgment Or Summary Adjudication
Defendants filed two similar motions for summary judgment or summary
adjudication, one by Spare and Stone, the other by MTM. Both motions challenged Global’s ability to
prove damages as to breach of contract and fraud, and argued any alleged damages
were speculative. Both motions contended
Global could not prove one or more elements of its quantum meruit claim, i.e.
that Global expected to be paid by defendants or that defendants benefitted
from Global’s services. Spare and Stone asserted the breach of contract and
quantum meruit claims failed due to the absence of a written agreement as
required by the Wholesale Sales Representatives Contractual Relations Act of
1990 (the CRA) (Civ. Code § 1738.10 et seq).
MTM argued the absence of a writing was fatal to the alleged
fraud. Spare and Stone contended the
alleged oral agreement did not include a requirement that defendants pay monies
to Global. MTM contended Global’s breach
of contract and fraud claims against MTM failed because Global could not prove
a legally enforceable agreement.
F. The Trial Court’s Rulings
The trial court’s separate written rulings found each defendant had
carried its initial burden, and that plaintiff Global had failed to establish
triable issues, in that: (1) Global
cannot prove damages as to any cause of action; (2) the “purported damages . .
. are too speculative as a matter of law and without foundationâ€; (3) Global
cannot prove one or more elements of quantum meruit against either defendant,
and Global waived such a claim as to the Spare and Stone defendants; (4) the
breach of contract and quantum meruit claims fail due to the absence of a
written agreement; (5) the alleged oral agreement did not obligate Spare and
Stone to pay monies to Global; (6) there was no enforceable agreement or
promise as between Global and MTM; and (7) Global cannot prove damages against
MTM relating to any issue of trade secrets.
These conclusions were supported in the trial court’s written decisions
by a number evidentiary rulings and factual findings, which shall be discussed
as needed below.
III. STANDARD OF REVIEW
Our review of the trial court’s rulings is governed by
well established principles. “‘“A trial
court properly grants a motion for summary judgment only if no issues of
triable fact appear and the moving party is entitled to judgment as a matter of
law. (Code Civ. Proc., § 437c, subd.
(c); see also id., § 437c, subd. (f)
[summary adjudication of issues].) The
moving party bears the burden of showing the court that the plaintiff ‘has not
established, and cannot reasonably expect to establish,’†the elements of his
or her cause of action. (
[30 Cal.Rptr.3d 797, 115 P.3d 77].)’ (
746, 171 P.3d 1082].) We review the
trial court’s decision de novo, liberally construing the evidence in support of
the party opposing summary judgment and resolving doubts concerning the
evidence in favor of that party. (
Cal.4th 1028, 1037 [32 Cal.Rptr.3d 436, 116 P.3d 1123].)†(State
of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018.) “[W]e must construe plaintiff’s evidence
liberally and accept all reasonable inferences which could be drawn by a trier
of fact in favor of plaintiff.†(
Cal.App.4th 832, 854.)
“We review the trial court’s
decision [on a summary judgment motion] de novo, considering all of the
evidence the parties offered in connection with the motion (except that which
the court properly excluded) and the uncontradicted inferences the evidence
reasonably supports. (
Cal.4th 604, 612 [76 Cal.Rptr.2d 479, 957 P.2d 1313].) In the trial court, once a moving defendant
has ‘shown that one or more elements of the cause of action, even if not
separately pleaded, cannot be established,’ the burden shifts to the plaintiff
to show the existence of a triable issue; to meet that burden, the plaintiff
‘may not rely upon the mere allegations or denials of its pleadings . . . but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action . . . .’ (Code Civ. Proc., §
437c, subd. (o)(2); see Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 [107 Cal.Rptr.2d 841,
24 P.3d 493] (Aguilar).)†(Merrill
v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
IV. DISCUSSION
A. Plaintiff
Global Concedes The Correctness Of Some Of The Trial Court’s Rulings By Not
Challenging Them On Appeal; The Concessions Are Dispositive As To Breach Of
Contract And Quantum Meruit
In its Opening Brief, appellant
Global cites to the transcript of the argument on the motions in support of its
claim that the trial court ruled in Global’s favor on defendants’ Contractual Relations Act and waiver
defenses. Not only does this conclusion
ignore the trial court’s statement at the hearing that its remarks reflected
its “tentative ruling,†it is directly contrary to the court’s eventual written
rulings, which were drafted by defendants’ attorneys at the direction of the
trial court. Global’s counsel was given
notice of the proposed written rulings and failed to register any objection,
even after being served a second time, with a notice of non-receipt of response
to the proposed orders.
name="_ftnref2" title="">[2] A
trial court’s tentative ruling has no relevance on appeal insofar as it differs
from a final ruling. (Wilshire Ins. Co.
v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 638, fn. 9;
Cal.App.4th 1270, 1284; accord Shaw v.
County of Santa Cruz (2008) 170 Cal.App.4th 229, 268 [“[A] court’s oral
comments may be valuable in illustrating the trial judge’s theory, but they may
never be used to impeach the order or judgment on appeal.â€].) Further, having failed to object to the
content of the proposed written rulings below, Global is deemed to have
approved it. (Cal. Rules of Court, rule 3.1312(a).) Here the trial court’s final written rulings
state that each defendant’s motion was “granted in all particulars.†Each ruling then enumerates the court’s legal
conclusions in explicit detail. Global
has ignored them in this appellate proceeding at its peril. (
139 Cal.App.4th 659, 685; Tisher v.
California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361.) As
to defendants Spare and Stone, following its two rulings that damages could not
be proved, the trial court expressly concluded:
“(3) Plaintiff [Global] cannot prove one or more elements of quantum
meruit against Defendants and Defendants have established a complete defense of
waiver, (4) Defendants have established their affirmative defense that the
contract must be in writing as a complete defense to Plaintiff’s first and
second causes of action, and (5) Defendants do not owe a contractual duty to
Plaintiff to pay any monies to Plaintiff under the alleged oral agreement.†As to defendant MTM,
could not be proved, the trial court expressly concluded: “(3) Plaintiff [Global] cannot prove one or
more elements of quantum meruit
against Defendant MTM, (4) Plaintiff cannot prove a sufficiently certain and
enforceable agreement or promise as to Defendant MTM, (5) Plaintiff cannot
prove damages against Defendant MTM relating to any issue of trade secrets, and
(6) Defendant has established its affirmative defense to the First and Second
Causes of Action that the contract must be in writing.†Appellant
Global’s Opening Brief has challenged only the trial court’s rulings as to
damages. Thus, Global has conceded the
correctness of the other above-stated rulings, which independently disposed of
the breach of contract and quantum meruit claims against all defendants. The correctness of the trial court’s damages
rulings is therefore at issue only as to the fraud causes of action, which we
address de novo in the remainder of this opinion.
B. There Is No
Triable Issue Of Fact As To Damages
1. Plaintiff
Global Has Forfeited Challenges To The Trial Court’s Evidentiary And Burden
Shifting Rulings
The trial court sustained numerous
defense objections to Global’s proffered evidence in support of its opposition
to the motions. Global did not contest
these rulings during the hearing below, nor did it make any objections to
defendants’ evidence as it was presented to the trial court. On appeal
Global “takes exception†to exclusion of its chief officers’ opinions as to
lost profits and sales damages by means of a footnote in its Opening
Brief. In the footnote Global cites four
cases, three of which are accompanied by no discussion or analysis. As to the
fourth case, Coogan Finance Corp. v.
Beatcher (1932) 120 Cal.App. 278, Global states that it “held that such
testimony was proper and therefore [the instant trial court’s] sustaining of
the objection was improper and in error.â€
Global’s
failure to properly contest the trial court’s rulings constitutes a
forfeiture. The California Rules of
Court require that a brief “[s]tate each point under a separate heading or
subheading summarizing the point . . . .â€
(Rule 8.204(a)(1)(B).) “This is
not a mere technical requirement; it is ‘designed to lighten the labors of the
appellate tribunals by requiring the litigants to present their cause
systematically and so arranged that those upon whom the duty devolves of
ascertaining the rule of law to apply may be advised, as they read, of the
exact question under consideration, instead of being compelled to extricate it
from the mass.’ [Citations.]†(In re
S.C. (2006) 138 Cal.App.4th 396, 408.) “The failure to head an argument as required
by California Rules of Court, rule [8.204(a)(1)(B)] constitutes a waiver. [Citations.]â€
(Opdyk v. California Horse Racing
Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) Structure aside, Global’s
footnoted challenge to the trial court’s evidentiary rulings refers to no
specific objection and fails to analyze or cite pertinent authority as to any
ground asserted by defendants for their objections. Such cursory briefing,
again, constitutes a forfeiture. (
Cal.App.4th 779, 784-785; accord Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [appellant must cite valid
authority and explain how it applies to the case at hand].) Were we to reach the
merits of the trial court’s evidentiary rulings, we would arrive at the same
results. (Walker v. Contrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158,
1169.) The cases cited by Global are
distinguishable for the reasons argued by defendants. The Ladell expert opinion lacks foundation in that it relies on
dissimilar businesses, calculations lacking factual basis and an unexplained
methodology referred to as a “standard business analysis.†(See Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th
747, 775-781; Parlour Enterprises, Inc. v. Kirin Group, Inc.
(2007) 152 Cal.App.4th 281, 288-291 (Parlour).) Similarly, the
Wilner opinion testimony regarding
damages lacks foundation, and appears to be hearsay based on an out-of-court
conversation between Wilner and an uninvolved person. Accordingly, we will
summarize the facts before the trial court without reference to the properly
excluded evidence. (Guz v. Bechtel Nat’l, Inc. (2000)
the trial court’s finding that defendants’ evidentiary showing shifted the
burden to Global, requiring Global to
demonstrate triable issues of fact as to each cause of action. Accordingly, the ultimate issue below was
whether Global carried its burden as to any cause of action. The issue on appeal is the same, although
limited to the fraud claims for the reasons discussed above.
2. De Novo Findings As To Material Facts
As
noted, we are concerned with only that portion of the parties’ evidentiary
showings that bear directly on whether Global suffered damages wrongfully
caused by defendants’ allegedly fraudulent behavior. We shall discuss and resolve the competing
factual claims as part of our de novo review.
Initially,
all defendants relied on the testimony of plaintiff Global’s owner and manager,
Dean Ladell (Ladell), as well as the declaration of SuperValu’s Director of
Compensation and Recognition, Melanie O’Neill-German (O’Neill-German), to
assert that Global understood its compensation would consist of 40 percent of
the gross sales for the life of the ECS.
In its Separate Statement of Disputed Material Facts, Global responded,
“Admit in part, Denied in Part,†asserting it was entitled to a 40 percent
“profit split†and noting, nonreponsively, that the customer base of the
proposed ECS would have consisted of over 200,000 employees of SuperValu and
its subsidiary, Albertsons.
Defendants
Spare and Stone cited to Ladell’s testimony as establishing that the agreement
“contained no cost reimbursement clause and there was not to be a reimbursement
of expenses to either side.†Global
responded, “Denied. Irrelevant,†nonresponsively referencing the testimony of
Ladell and Global official Michelle Wilner (Wilner) as establishing Global
completed the ECS by March/April 2007, and incurred over $74,000 in costs “due
to Defendants’ request to perform.â€
Global noted those costs had not been reimbursed by defendants.
We
find defendants established Global understood its potential compensation would
be derived from ECS sales.
All
defendants cited portions of the Ladell and O’Neill-German testimony as
establishing Global “understood from the beginning of the project that if the
proposed company store did not go live, then there would be no sales and no
revenue – as the source of revenue was actually to be selling merchandise.†Global responded, “Denied. Irrelevant,â€
asserting Ladell had testified “plaintiff had to build a business package and
permanent web platform in order to generate revenue.†Global cited Ladell and others as
establishing Global had completed the ECS and turned it over to defendants, who
“took the web platform project from the plaintiff by [MTM’s] wrongful conduct
and damaged it so that Spare, Stone and MTM requested that Supervalu not
publish it.â€
We
find Global’s assertions largely unsupported by its cited evidence and largely nonresponsive
to defendant’s asserted fact in any event.
We find defendants established Global understood it would realize no
revenue if the ECS never went live.
All
defendants next cited primarily to the O’Neill-German and Ladell evidence as
establishing Global knew the ECS could not go live without the approval of
SuperValu, which put the project on indefinite hold in the Spring of 2008, and
never approved the launch of the ECS.
The ECS “has never become finalized and operationalâ€; it never went live
and never generated sales. The ECS could
not have gone live without an agreement between SuperValu and the provider on
the terms of SuperValu’s participation; no such agreement occurred.
Global
denied virtually all of these assertions.
Global’s completed work, SuperValu’s “point person,†Jodi Salsman, complimented
the ECS and, in early 2007, forwarded suggestions from O’Neill-German through
Spare to Global. Thereafter, defendants
“damaged†Global’s work and Spare asked O’Neill-German to postpone the
ECS. Global asserted “the website was
finalized by Global†and could have been activated by the flip of a switch,
according to an employee of MTM. Global cited evidence of potential lost
profits damages that was later stricken by the trial court. Global repeated its assertion it had incurred
over $74,000 in out-of-pocket costs on the project. Global claimed the evidence established that
after being served with Global’s complaint in the present case, just days before
the April 15, 2008 “go live†date, defendants Spare and Stone urged SuperValu
not to launch the ECS. Global asserted defendants’ action was “
claimed “Defendant [MTM] and defendant’s counsel met with SUPERVALU and through
their wrongful conduct SUPERVALU postponed the site at Defendants’ request.â€
Having
examined the evidence cited by the parties in support of the asserted facts
summarized in the previous two paragraphs, we find defendants established: (1) Global knew from the start SuperValu had
the final say on launching the project; (2) SuperValu never gave its approval;
(3) the ECS never became operational; and (4) the ECS never generated any sales
revenue. We find no evidence
establishing or supporting a reasonable inference that defendants or defense
counsel urged SuperValu not to launch the ECS as a result of this lawsuit. Further, the evidence contradicts Global’s
claim that the lawsuit was discussed days before an April 15, 2008 launch date;
the evidence indicates SuperValu was informed of the lawsuit at a meeting on
April 24, 2008. We also find Global
misstated the evidence in claiming MTM employee Starling testified the ECS could
have been launched by the “flip of a switch.â€
All
defendants asserted they played no role in SuperValu’s decision to put the ECS
project on hold, and had no control over the ultimate decision by SuperValu not
to approve launching the ECS, citing the testimony to that effect by
O’Neill-German. Global denied those
assertions, repeating its contentions that it had turned over an operational
website, that defendants and their counsel had wrongfully sabotaged the launch,
and that Global lost profits and had unreimbursed costs .
We
find defendants established SuperValu made an independent decision not to
launch the ECS.
3. Global’s
Faulty Briefing As To The Damage Issue Merits Summary Rejection
Global’s briefing on the issue of damages consists of
citations to evidence stricken by the trial court, along with strings of
references to various parts of the record, including its own complaint, without
explanation or meaningful analysis. As
noted by defendants, Global’s factual summary consists largely of argument,
one-sided claims taken out of context, and citations to portions of the record
which are not supportive of Global’s position.
Much of the brief is written as if this court should presume trial court
error. Global has thus failed to comply
with the rules of appellate procedure.
Even where we engage in a de novo
review, we do not presume error by
the trial court. “To demonstrate error,
appellant must present meaningful legal analysis supported by citations to
authority and citations to facts in the record that support the claim of error.
[Citations.]†(In re
S.C., supra, 138 Cal.App.4th at
p. 408.) “When an issue is unsupported
by pertinent or cognizable legal argument it may be deemed abandoned and
discussion by the reviewing court is unnecessary. [Citations.]â€
(Landry v. Berryessa Union School
Dist. (1995) 39 Cal.App.4th 691, 699-700; see also Gunn v. Mariners Church, Inc.
(2008) 167 Cal.App.4th 206, 217-218 [“‘an appellant must present a
factual analysis and legal authority on each point made or the argument may be
deemed waived’â€].) Moreover, an
appellant’s “burden to provide a fair summary of the evidence ‘grows with the
complexity of the record.
[Citation.]’ [Citation.]†Boeken
v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) “‘The appellate court is not required to
search the record on its own seeking error.’
[Citation.]†(
1229, 1246.) For
these reasons, we summarily reject Global’s claims that there are triable
issues as to damages.
4. On The merits, The Trial Court Correctly
Ruled That Global Cannot Prove Damages
Even if we overlook briefing issues
and address damages on the merits and de novo, we agree with the trial
court. As already noted, Global has not
challenged the trial court finding that the burden shifted to Global to
demonstrate a triable issue as to damages.
Given the trial court’ s evidentiary rulings striking the heart from
Global’s damage evidence, Global has failed to carry that burden.
The court sustained objections to the
testimony of Global’s principal officers, Ladell and Wilner, concerning lost
profits. It also concluded that, since
the ECS project “never launched,†lost profit damages were speculative at
best. It found that an email authored by
Mr. Ladell had waived cost reimbursement.
The trial court found no agreement between Global and MTM, and noted Mr.
Ladell’s admission that Global’s work had been completed before he was
introduced to MTM. The court also
credited the unrebutted declarations of MTM’s employees that MTM never used any
of Global’s work.
We agree with these findings, which
undercut Global’s reliance on the
cases it cites. Global cites Zavala v.
Arce (1997) 58 Cal.App.4th 915, 926 for the proposition that substantial
evidence of damages creates a triable issue of fact. The cited page merely recites the applicable
legal standards, including liberal construction of evidence submitted by a
party opposing summary judgment.
like the one at hand. Global cites Hulett
v. Farmers Ins. Exchange (1992) 10 Cal.App.4th 1051, 1059 in support of its
claim that its damage evidence was sufficient.
The cited page sheds no light on the issues before us, and Global fails
to explain how Hulett’s reversal of a
summary judgment in favor of an insurer in a bad faith action affects the
damage evidence assessment in the present case.
Global cites
405 and Nystrom v. First Nat. Bank (1978)
81 Cal.App.3d 759 for the principle that defendants had a duty to cooperate
with Global in accomplishing the purposes of the contract. True enough, but neither the principle nor
the cited cases address the issue of the sufficiency of damage evidence in the
summary judgment context.
More to the point is
Cal.App.3d 856, 873, cited by Global for the proposition that when a
defendant’s wrongful acts make damages difficult to calculate, less precision
is required in the damage calculation. Although the general principle argued by
Global may be correct, the case is distinguishable. In GHK,
a post-judgment appeal applying a presumption in favor of the trial court’s
ruling, the victimized plaintiff’s damages were computed as a portion of the
actual profits from the project at issue. (Id.
at p. 874.) Here, of course, no such
profits have been or will be realized.
Further, unlike the present scenario where a third party, SuperValu, was
the final decision-maker as to whether the project would launch, in
developers and alleged wrongdoers. (
Like the trial court, we have found Global’s lost
profits damages inadmissible, and that nonparty SuperValu made an independent
decision not to launch an on-line company store, thereby eliminating the anticipated
source of compensation to all of the parties. Viewed in its best light,
Global’s admissible evidence fails to support recoverable damages. (Parlour,
supra, 152 Cal.App.4th at
p. 288; accord McDonald v. John P.
Scripps Newspaper (1989) 210 Cal.App.3d 100, 104 [“‘It is fundamental that
damages which are speculative, remote, imaginary, contingent, or merely
possible cannot serve as a basis for recovery.’ [Citation.]â€].)
V. DISPOSITION
The
judgments are affirmed. Costs on appeal are awarded to defendants.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
O’NEILL,
J.
We concur:
TURNER,
P. J.
KRIEGLER,
J.
were jointly named in the breach of contract (first) and quantum meruit
(second) causes of action. Plaintiff separately alleged fraud and deceit
against defendant Spare and Stone (third) and MTM (fourth).
name="_ftn2" title="">[2] Global
further errs in claiming defendants moved for summary judgment only on the
limited issue of damages. As noted earlier in this opinion, defendants’ motions
raised several grounds addressing each of the causes of action.
