Plaintiff Oversee.net’s motion for summary judgment is denied. Plaintiffs have not properly filed a motion for summary adjudication to be addressed by this court. The heading states plaintiffs filed a summary judgment motion. However, in the notice, plaintiffs seek alternatively adjudication. This is procedurally improper under CCP § 437c and California Rules of Court, Rule 3.1350 (b). Further the notice is defective in failing to set forth the issues to be adjudicated. Again, this violates R. 3.1350(b), which requires that “[i]f summary adjudication is sought…the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and repeated verbatim in the separate statement of undisputed material facts.” (Emphasis added.) Additionally, the separate statement and notice are not verbatim.

On the motion for summary judgment, plaintiffs fail to set forth any undisputed material facts in their separate statement to establish that: 1) the Registration Services Agreement (RSA) and Domain Brokerage Agreement (DBA) are legally independent, separate agreements, 2) that the DBA is an optional agreement; and 3) that Oversee is not only not a party to the DBA, but also not legally responsible under the DBA for another party to the contract under theories of intended beneficiary or as an assignee or agent of a party to the DBA. Without plaintiff setting forth any material facts in their separate statement to establish their legal arguments, the issues are not raised for defendants to either dispute or admit, and for the court to determine that plaintiffs have established the first and third elements of their breach of contract claim, i.e., the existence of a valid contract; and plaintiffs’ full performance or excuse from full performance of their obligations under the contract. For these reasons, plaintiff has failed to meet its burden of proof, because they have failed to persuade the court that there is no triable issue of material fact.

Additionally, defendants have presented facts which dispute plaintiff’s conclusion that the RSA is the only Agreement in question in this complaint. Here, the RSA and DBA reference and incorporate one another to raise a triable issue as to whether they constitute the entire agreement between the parties. (RSA, § 15; DBA, §9.) Each respective agreement explicitly references and incorporates the other in its material terms. For example, both the RSA and DBA contemplate that SnapNames and/or Moniker shall earn a set commission of 20% on the sale price of any of Manila’s domain names sold through SnapNames and/or Moniker, respectively, and that the commission shall be applied to the unpaid balance of the Advanced Services Fee. (RSA, §5.2, DBA, §2(c), 3(f).) The RSA provides for Oversee to advance monies to 3rd parties and to Moniker for the registration of Manila’s domain names through Moniker and SnapNames. The DBA requires that SnapNames and/or Moniker shall be the sole and exclusive broker for any of Manila’s domains listed for sale with SnapNames and/or Moniker, respectively.

Based on these facts set forth by defendants in response to plaintiff’s separate statement, a triable issue is raised whether the RSA and DBA are a series of interlocking contractual obligations that must be taken together and read as a single unified contract. The court does not resolve issues of fact, rather it seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence which raise a triable issue of material fact.

The court cannot consider the contractual interpretation of these two contracts as a matter of law to rule on the ultimate issues raised on whether the two contracts are separate and independent agreements or integrated contracts and how to interpret the terms to determine if there are conditions precedent in the DBA that plaintiff was obligated to perform before defendants were obligated to perform under the RSA. These are all issues beyond the scope of this motion as brought by plaintiff.

Defendants’ Objections to Plaintiff’s Evidence:

Sustained: #1,2, 4, 5, 10, 11, 12, 14, 15, 20.

Overruled: # 3, 6, 7, 8, 9, 13, 16, 17, 18, 19.

Plaintiffs’ Objections to Defendants’ Evidence:

The objections are not ruled upon because plaintiff failed to comply with Cal. Rules of Court, R. 3.1354 in its entirety. The portion of the objectionable evidence is not quoted for the court to review and there is no section for the court to rule on the objections.

Plaintiff’s Objection to Manila’s Separate Statement is overruled.

Defendants to give notice of ruling.