2011-00095474-CU-BC

James Smith vs. Anthony Lewis

Nature of Proceeding:      Motion for Summary Judgment

Filed By:   Pearson, Matthew D.

Defendants Jim Clark, Tania Chegini and Linda Infante’s Motion for Summary
Judgment/Summary Adjudication is ruled on as follows:

Plaintiff alleges claims arising out of an agreement to purchase a dance studio, Studio
18, from Anthony Lewis.    Plaintiff alleges that defendant Lewis used the name Studio
18 in violation of the agreement, locked him out of the website for the Studio and sold
the domain names to defendants, after which defendants Clark and Chegini took
control of the domain names for the website and engaged in other acts interfering with
his business.  Linda Infante owns The Ballroom, a competing dance studio.  Plaintiff
alleges that Infante told Clark and Chegini to modify the domain name links etc into
advertisements for themselves at The Ballroom.  Plaintiff alleges that defendants knew
of the dispute between plaintiff and Lewis yet proceeded to act against plaintiff’s
interests.

A default was entered against Anthony Lewis on the 4th amended complaint on
August 14, 2013.  (See ROA 520)

Plaintiff alleges the following causes of action against moving parties in his 4th
amended complaint:  3rd cause of action Intentional Interference with Prospective
Economic Gain, 4th cause of action Unfair Competition, 5th cause of action
Constructive Fraud, 6th cause of action Negligent Interference with Prospective
Economic Gain, 7th cause of action Breach of Contract/Intentional Interference with
Contractual Relations, 8th cause of action Confusion in the Market Place, 9th cause of
action “Abusive Process,” and 11th cause of action Declaratory Relief.

In support of the motion, defendants rely on the Declarations of Defendants Chegini,
Infante and Lewis.  (See Exhibits 2, 3, and 4 to the Declaration of Matthew Pearson.)
Specifically, the motion for summary adjudication as to the 3rd, 4th, 5th, 6th, and 11th
causes of action all rely in part on these declarations. (See separate statement, Issues
1, 2, 3, and 6.)  Plaintiff objects to those declarations as they do not comply with CCP
2015.5. (See opposition page 5, lines 3-9).  Although plaintiff did not include this
objection under his Evidentiary Objections, he has clearly set forth the objections in his
points and authorities, and the Court sustains the objections.  The declarations are not
signed under penalty of perjury as required by CCP 2015.5.    Because the
declarations are not properly verified, the motion for summary adjudication is not
supported by admissible evidence as to the following causes of action:  3rd, 4th, 5th,
6th, and 11th.   As a result, defendants have not met their burden of proof on this
motion and the burden never shifted to plaintiff to raise a triable issue of material fact
as to these causes of action. Defendants have submitted amended declarations as
exhibits to the Declaration of Pearson filed on December 13, 2013.  However, the
evidence submitted in support of a motion for summary judgment must be filed and
served 75 days before the hearing date.  The defects in the supporting evidence
cannot be cured seven court days before the hearing because evidence cannot be
submitted the first time in the Reply papers. San Diego Watercrafts, Inc. v Wells Fargo
th
Bank NA (2002) 102 Cal.App.4   308, 310-311.

The motion for summary adjudication is denied as to the 3rd, 4th, 5th, 6th, and 11th  causes of action.

Defendants bear the burden of persuasion that there is no triable issue of material fact
and that they are entitled to judgment as a matter of law. Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.  A party moving for summary judgment meets this
burden by presenting evidence demonstrating that one or more elements of the
plaintiff’s cause of action cannot be established or that there is a complete defense to
the action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar , supra, 25 Cal.4th 826, 849-
850, 853-854.) Once the defendant makes this showing, the burden shifts to the
plaintiff to show that a triable issue of material fact exists with regard to that cause of
action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar , at p. 850.)
However, because the motion as to the  3rd, 4th, 5th, 6th, and 11th causes of action is
not supported by admissible evidence, the burden never shifted to plaintiff.

The court has previously ruled that similar verifications used by the defendants in their
discovery responses were invalid.   In the minute order of November 26, 2013, the
court ruled that “[t]he verifications all state ‘I declare under penalty under the laws of
the State of California that the foregoing is true and correct’ and omit the phrase ‘of
perjury.’ Here…the verifications are not substantially similar to the suggested language
of CCP § 2015.5 as none of them indicate that they are in fact executed under penalty
of perjury. Indeed, the subject statute explicitly demands that the statement,
declaration, verification, etc. be ‘[i]n 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.’ ” (See
Minute Order of November 26, 2013.

The Court rules as follows on the causes of action that were not supported by the
defective evidence:

7th cause of action Breach of Contract Intentional Interference with Contractual
Relations:  Summary Adjudication is denied.  The cited “evidence” Plaintiff’s 4th
Amended Complaint at page 11, does not constitute an admission that there was no
contract.  Therefore, defendants have not met their burden of proof.

8th cause of action Confusion in the Marketplace: Summary Adjudication is denied.
Defendant contends there is no such cause of action.  However, the nature of the
claim controls, not the title.  This cause of action is not dissimilar to the  6th cause of
action for “Dilution of Trademark” that plaintiff alleged in the 2nd amended complaint.
The court overruled defendants’ demurrer to that cause of action.  (See Judge Hight
ruling of July 29, 2011.)  The court cannot reconsider a ruling made by Judge Hight on
essentially the same cause of action. . Bennett v. Suncloud (1997) 56 Cal App 4th 91.
In addition, the Court rejects defendants’ superficial argument is that  no such cause of
action exists merely because they did a “search” of the phrase “confusion in the
marketplace” and obtained no results.

9th cause of action “Abusive Process”:   Summary Adjudication is granted.
Plaintiff claims that defendants destroyed certain documents that he requested in
discovery. However, under the case of Cedars-Sinai Medical Center v. Superior Court
(1998) 18 Cal. 4th 1, there is no tort remedy for alleged destruction of evidence
discovered during the course of the litigation.  Therefore, the Court treats the motion            as one for judgment on the pleadings on this cause of action, which is actually one for
spoliation of evidence, and grants the motion, without leave to amend.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.