ALAN SCOTT DUNCAN v. EBAY, INC.
Case No.: 1-12-CV-229120
DATE: June 26, 2014
TIME: 9:00 a.m.
DEPT.: 3

As an initial matter the Court notes that Plaintiff has filed a 55-page Opposition Brief. Rule of Court 3.1113(d) clearly states that “[i]n a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.” A party seeking prior leave of court to file a longer memorandum may do so via an ex parte application to the Court, with written notice to the other parties, at least 24 hours before the memorandum is due (which here would have been no later than June 11, 2014). Rule of Court 3.1113(e). Pursuant to Rule of Court 3.1113(g) an overlong memorandum is treated in the same manner as a late-filed paper. Whether to consider the document at all or only in part is a matter for the Court’s discretion. See Rule of Court 3.1300(d). All California attorneys are expected to be aware of and comply with the Rules of Court. No California attorney could reasonably believe that a 55-page opposition brief was permitted without prior leave of Court. The Court has considered the Opposition Brief only in part. The Court has considered the opposing separate statement and Plaintiff’s declaration in support of the opposition in full.

The pleadings limit the issues presented for summary judgment. The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. See Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4th 60, 73 (“the pleadings determine the scope of relevant issues on a summary judgment motion.”). The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. CCP §437c(f)(1). See McClasky v. California State Auto. Ass’n (2010) 189 Cal App 4th 947, 975 (“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted. “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar, supra, at 850. To be material for summary judgment purposes, a fact must relate to some claim or defense in issue under the pleadings. Also it must be in some way essential to the judgment; i.e., if proved, it could change the outcome of the case. See Zavala v. Arce (1997) 58 Cal App 4th 915, 926; Kelly v. First Astri Corp. (1999) 72 Cal App 4th 462, 470.

The opposing party may be bound by admissions made in deposition testimony or responses to interrogatories or requests for admissions: “[W]hen discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried . . ,” controverting affidavits submitted by the opposing party may be disregarded. D’Amico v. Board of Med. Examiners (1974) 11 Cal 3d 1, 21. . “In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony.” Scalf v. D.B. Lodge Homes, Inc. (2005) 128 Cal App 4th 1510, 1522.

EBay’s motion for summary judgment is DENIED as EBay has not established a complete absence of triable issues of material fact as to all causes of action.

EBay’s alternative motion for summary adjudication of issues corresponding to Plaintiff’s causes of action and request for punitive damages is GRANTED in part and DENIED in part.

Summary Adjudication of “issue 1,” corresponding to the 1st cause of action for breach of the User Agreement, is DENIED. While the Long Declaration and EBay’s Ex. W are enough for EBay to meet its initial burden to show that there was no breach of the applicable User Agreement because Plaintiff received all FVFs that he properly requested and was eligible for, once the burden shifts to Plaintiff his denial in his declaration that EBay’s Ex. W represents the true universe of disputed charges raise triable issues of material fact that the Court cannot resolve as credibility cannot be weighed on summary judgment. “Typically in summary judgment litigation, equally conflicting evidence requires a trial to resolve the dispute.” Kids’ Universe v. In2Labs (2002) 95 Cal App 4th 870, 881. Summary adjudication can only be granted if an issue is wholly disposed of.

Summary adjudication of issues 2 and 3, corresponding to the 2nd and 3rd causes of action for intentional and negligent misrepresentation, is GRANTED. These claims as pled in the SAC are entirely based on alleged misrepresentations regarding the UPI system. “It is settled that a plaintiff, to state a cause of action for deceit based on a misrepresentation, must plead that he or she actually relied on the misrepresentation.” Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088. “Reliance exists when the misrepresentation or nondisclosure was an immediate cause of the plaintiff’s conduct which altered his or her legal relations, and when without such misrepresentation or nondisclosure he or she would not, in all reasonable probability, have entered into the contract or other transaction. ‘Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether the plaintiff’s reliance is reasonable is a question of fact.’” Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239, internal citation omitted.

EBay has met its initial burden to show that Plaintiff cannot establish the essential element of reliance by submitting his deposition testimony (Ex. B) admitting that he cannot remember how or on what basis he decided to use the UPI system in the first place. Therefore he cannot establish that he relied on any intentional or negligent misrepresentations by EBay in deciding to use the system. When the burden shifts Plaintiff is unable to raise any triable issue as to this essential element. Plaintiff is bound by his deposition testimony on summary judgment and any statements in his declaration inconsistent with or contradicting that testimony must be disregarded.

Summary adjudication of issues 4 and 5, corresponding to the 4th and 5th causes of action for intentional and negligent interference with prospective advantage, is GRANTED. The elements for the tort of intentional interference with prospective economic advantage “are usually stated as follows: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153. See also Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1078 (elements of negligent interference). “To establish a claim for interference with prospective economic advantage . . . a plaintiff must plead that the defendant engaged in an independently wrongful act.” Korea Supply, supra, 29 Cal.4th at 1158.

Even if it assumed for purposes of argument that the restriction placed on Plaintiff’s account could qualify as the required independently wrongful act, for both causes of action a plaintiff must establish that there was an existing relationship between the plaintiff and an identifiable third party that the defendant knew of and either intended to disrupt or reasonably should have known would be disrupted by its actions. See Roth v. Rhodes (1994) 25 Cal App 4th 530, 546 (“[A]n essential element of the tort of intentional interference with prospective business advantage is the existence of a business relationship with which the tortfeasor interfered. Although this need not be a contractual relationship, an existing relationship is required.”) See also Salma v. Capon (2008) 161 Cal App 4th 1275, 1291 (“A plaintiff must establish an existing relationship to establish a claim for intentional interference with prospective economic advantage.”) Emphasis in original. EBay has met its initial burden to show, again through Plaintiff’s deposition testimony, that he cannot identify any existing relationships with specific customers that were interfered with by the account restriction and so fails to establish an essential element of both causes of action.

The Opposition’s assertion that Plaintiff can now identify five “user IDs” that may have stopped buying from him during the suspension/restriction of his account is not enough to raise triable issues as to either cause of action. Even assuming a user ID is sufficient to establish the identify of a “third party,” Plaintiff has not established that any of the five were in an existing economic relationship with him, he has not established that EBay was aware of the purported existing relationships (it is not enough to be “aware” of them as EBay users, EBay would have to know they were in a business relationship with Plaintiff), and he has not established that any existing relationships were in fact disrupted by the alleged interference. Plaintiff (at best) only claims to have evidence that certain “user IDs” began transactions for his goods during the suspension/restriction period that they did not complete, he has no actual evidence as to why any of them did not go forward with a transaction and their reasons for doing so cannot be presumed.

Plaintiff cannot base either claim on the argument that he must have lost unknown customers due to the restriction on his account because his sales volume dropped. EBay is correct that interference with economic relationship claims cannot be based on general “interference with the market” allegations. See Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal App 4th 507, 524-528.

Summary adjudication of issue 6, corresponding to the 6th cause of action for specific performance, is GRANTED. Generally, “It is . . . solely a judicial function to interpret a written instrument unless the interpretation turns on the credibility of extrinsic evidence.” Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal. 2d 713, 724. Specific Performance is not an independent claim but an equitable type of contract remedy, seeking to enforce a specific provision of a contract. Civ. Code §3390 (“Contracts Not Subject to Specific Performance”) states in pertinent part: “The following obligations cannot be specifically enforced: . . . 5. An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.”

EBay is correct that what Plaintiff is asking the Court to do is insert wholly new obligations into the User Agreement (basically a mediation/arbitration requirement for all disputes) rather than order the performance of any specific unambiguous terms in the existing User Agreement. The language Plaintiff bases this claim on: “If a dispute arises between you and EBay, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly,” is the opening sentence in the “Legal Disputes” section of the User Agreement. See Plaintiff’s Ex. 101. The next sentence states: “Accordingly, you and EBay agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services in accordance with one of the subsections below or as we and you otherwise agree in writing.” The “subsections below” present two options: a lawsuit that must be brought in a state or federal court in Santa Clara County, or: for any claim for less than $10,000, arbitration “through an established [ADR] provider mutually agreed upon by the parties.” In isolation the sentence Plaintiff seizes on is not “sufficiently certain” to be considered a promise of arbitration or mediation by an outside third party. Considered in context, the sentence clearly is simply referring to the lawsuit and arbitration options described in the User Agreement.

Summary adjudication of issue 7, asserting that there is no basis on which Plaintiff can seek punitive damages, is GRANTED. Punitive damages are permitted in “an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages.” Civ. Code §3294(a). With the misrepresentation and interference claims eliminated there is no remaining basis for Plaintiff to seek punitive damages, as only his breach of contract claim survives.