Filed 4/6/20 Mortillaro Lobster, Inc. v. Henry Aguila, Thee Aguila, Inc. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

MORTILLARO LOBSTER, INC.,

Plaintiff and Respondent,

v.

HENRY AGUILA, THEE AGUILA, INC.,

Defendants and

Appellants.

B285100

(Los Angeles County

Super. Ct. No. VC063153)

APPEAL from a judgment of the Superior Court of Los Angeles County, Brian F. Gasdia, Judge. Affirmed.

Henry Aguila, in pro. per., for Defendant and Appellant.

NT Law, and Julie Nquoc Nong for Defendant and Appellant Thee Aguila, Inc.

Lopez, Bark & Schulz, Michael Edward Lopez, Wilbert & Wilbert, Christian W. Wilbert, and Troy William Stanton for Plaintiff and Respondent.

Henry Aguila cross-complained in a lawsuit brought by Mortillaro Lobster, Inc. and its owner, Vince Mortillaro. Aguila appeals from summary judgment granted in favor of two cross-defendants, contending the trial court erred in denying his motion to continue the summary judgment hearing, in granting summary judgment, and in denying his motion to reconsider the court’s order. We disagree with each contention, and thus affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Henry Aguila formed Thee Premium Lobster (Thee Premium) to operate a lobster wholesale business. Matt Parham ran Thee Premium’s day-to-day operations, which included purchasing lobsters from seafood distributors for resale to local restaurants. Aguila provided the necessary financial backing and paid the distributors for lobsters Parham purchased.

In 2011, Thee Premium began purchasing lobsters from Mortillaro Lobster, Inc. (Mortillaro Lobster). Mortillaro Lobster issued Thee Premium an invoice for each order filled, noting the product, total due, and that payment was due within 21 days. Aguila paid Mortillaro Lobster’s invoices on behalf of Thee Premium. After a billing dispute arose between the two businesses, Mortillaro Lobster demanded that Thee Premium pay all outstanding invoices in full. When Aguila refused to pay multiple disputed invoices, Mortillaro Lobster placed the debt for collection with Seafax, Inc.

In 2012, Thee Premium also purchased lobsters on credit from Ipswich Shellfish Company (Ipswich). On July 20, 2012, Vince Mortillaro (Mortillaro) told Fred Fullerton, an Ipswich salesperson, that Aguila had failed to pay several invoices, which were past due. Ipswich thereafter refused to sell to Thee Premium on credit, representing it would continue to do business with the wholesaler only on a cash-on-delivery (COD) basis. With two of its distributors now refusing to extend credit, Thee Premium’s business declined.

On September 4, 2012, Seafax published a “Flash Report” in its food-industry periodical essentially stating that Aguila’s debt to Mortillaro Lobster had been placed for collection with Seafax, and that Aguila acknowledged the debt but stated his non-payment was in retaliation for Mortillaro’s defamatory collection efforts.

On May 7, 2013, Mortillaro Lobster sued Aguila and Thee Premium to collect $166,371.30 in unpaid invoices.

Aguila cross-complained against Mortillaro Lobster and Mortillaro personally, and after extensive law and motion practice filed the operative third amended cross-complaint. In it, Aguila asserted causes of action for slander per se, libel per se, intentional interference with a contractual relationship, intentional interference with a prospective economic advantage, and breach of contract.

Aguila alleged that on July 20, 2012, Mortillaro told Fullerton, the Ipswich salesperson, that Aguila refused to pay amounts due Mortillaro and was a “deadbeat,” and advised him “that Ipswich should stop doing business with [Aguila].” Aguila alleged Mortillaro’s statements were false because Aguila was current on all payments to Mortillaro Lobster per an agreement with Mortillaro that lobsters could be purchased on credit with 30 to 60 days to pay, and Aguila had never refused to pay an invoice. Aguila alleged Mortillaro’s statements disrupted his business relationship with Ipswich because they prompted that distributor to withhold credit from Thee Premium.

Aguila alleged that Seafax’s Flash Report was similarly false because it implied Aguila refused to pay his debts.

Aguila further alleged Mortillaro Lobster breached its agreement with him when it demanded immediate full payment on all outstanding invoices, even on those invoices that were not yet due.

Mortillaro Lobster and Mortillaro moved for summary judgment or adjudication on grounds that (1) Mortillaro’s statements to Ipswich were either true (a complete defense to defamation) or constituted non-actionable opinion, and (2) Aguila had no contract with either Mortillaro Lobster or Ipswich.

In support of the Mortillaro Lobster motion, Mortillaro declared he never told Ipswich that Aguila was a deadbeat or that the distributor should stop doing business with him. Mortillaro Lobster offered the deposition testimony of Fullerton, the Ipswich salesperson, and Cindy Knight, Ipswich’s credit manager. Fullerton had testified that Mortillaro had not said Aguila was a deadbeat nor that Ipswich should stop selling to him, but at most said Aguila owed Mortillaro money and refused to pay. Fullerton also testified that Ipswich’s decision to withhold credit from Aguila and Thee Premium had nothing to do with Mortillaro’s statements. Knight testified Ipswich withdrew credit from Aguila because Thee Premium had fallen far behind on payments, not because of anything Mortillaro said.

Mortillaro Lobster offered copies of email exchanges between it and Thee Premium from May 11 to July 14, 2012. On May 11, Mortillaro Lobster asked Aguila about the status of Thee Premium invoice payments, attaching a statement showing Thee Premium owed on 25 outstanding invoices, many over 30 days old. On May 21, Mortillaro Lobster said Aguila’s recent payments had been insufficient, and Aguila responded he could only make one more payment that day. On June 7, Aguila promised to send two more payments. In a June 22 email Mortillaro told Aguila that he “really needs to know the status of checks.” Three days later Parham suggested that additional payment was forthcoming. Mortillaro later complained that six Thee Premium invoices were over 60 days old. In a July 10 email to Aguila and Parham, Mortillaro stated he was “not happy” with Aguila’s recent payment. On July 12 Mortillaro wrote, “I NEED TO KNOW IF WE ARE GETTING PAYMENT FOR 3 INVOICES BY FRIDAY.” (Emphasis in original.) And on July 14 Mortillaro complained that payments were not arriving as Thee Premium had promised, stating “I am getting Invoices paid in an [average] of 80 days[.] That is 50 days past due.”

Mortillaro Lobster also offered excerpts of Aguila’s deposition transcript, in which he admitted that when Mortillaro told Ipswich on July 20, 2012, that Aguila owed Mortillaro Lobster on several invoices, he actually did owe over $400,000, of which $166,000 was still unpaid. Aguila also admitted that Seafax’s Flash Report was accurate except for the assertion that Aguila’s refusal to pay Mortillaro Lobster was “retaliatory.” Aguila said he never used the word retaliatory, but conceded that he had refused to pay Mortillaro Lobster because Mortillaro’s statements had damaged Aguila’s business, and the amount of those damages exceeded what Aguila owed. Finally, Aguila admitted he had no contract with either Mortillaro or Ipswich.

In opposition to summary judgment, Aquila argued Mortillaro’s statements to Ipswich had been false, because he never failed to pay any invoice. Aguila argued he personally owed Mortillaro Lobster nothing because (1) Parham (not Aguila) had purchased all lobsters for Thee Premium, (2) Thee Premium paid all outstanding invoices within 30-60 days (the industry standard), and (3) Thee Premium had no obligation to pay invoices that billed for lobsters it never received.

In support of his opposition, Aguila declared that Parham purchased all lobsters for Thee Premium, and he, Aguila, merely provided the financial backing. He also declared that on July 22, 2012, he told Mortillaro that Mortillaro Lobster had overbilled Thee Premium.

Aguila also offered Mortillaro’s deposition testimony that Aguila never personally purchased or ordered lobsters from Mortillaro Lobster. Mortillaro had further admitted that Mortillaro Lobster generally refused to deliver lobsters to customers who had delinquent invoices, but continued to sell to Thee Premium even though it had not paid on invoices that were over 30 days old.

Aguila offered a July 14, 2012 email in which Mortillaro stated that some invoices Thee Premium had paid within 80 days had been “50 days past due,” suggesting 30 days was the actual payment term.

The trial court found no triable issue existed as to any cause of action against Mortillaro Lobster or Mortillaro. The court found that uncontroverted evidence showed Mortillaro’s statements about Aguila’s delinquent payments were true when made; Seafax was not Mortillaro’s agent when it published its Flash Report; no contract existed between Aguila and Ipswich; and when Ipswich stopped selling on credit to Thee Premium, it did so for reasons unrelated to any statement made by Mortillaro. The court also noted as to the breach of contract cause of action that Aguila could not “sue on a contract which he adamantly testified does not exist.” Accordingly, the court granted summary judgment in favor of Mortillaro Lobster and Mortillaro, and later denied Aguila’s motion for reconsideration.

Aguila timely appealed.

DISCUSSION

A. Mortillaro Summary Judgment Motion

Aguila contends the trial court erred in granting summary judgment to Mortillaro Lobster and Mortillaro. We disagree.

1. Pertinent Legal Standards

“Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ ” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents).) “A defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action,” or that there is a complete defense to the claim. (Code Civ. Proc., § 437c, subds. (c), (o)(1) & (o)(2); Regents, at p. 618; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the defendant makes such a showing, the plaintiff must then demonstrate the existence of one or more disputed issues of material fact as to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

On appeal, we independently review the entire record that was before the trial court when it granted summary judgment, except any evidence “to which objections have been made and sustained.” (Regents, supra, 4 Cal.5th at p. 618.) We view evidence in a light most favorable to the opposing party, and resolve evidentiary doubts and ambiguities in that party’s favor. (Elk Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 606.)

2. Defamation

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645; see Civ. Code, §§ 45 & 46.) “In all cases of alleged defamation, whether libel or slander, the truth of the offensive statements or communication is a complete defense against civil liability, regardless of bad faith or malicious purpose.” (Smith, at p. 646.) “The burden of pleading and proving truth [in a defamation action] is generally on the defendant.” (Id. at p. 646, fn. 5.)

Here, Mortillaro Lobster offered evidence establishing Mortillaro’s statements to Ipswich about Aguila on July 20, 2012, were true, that is, Aguila owed Mortillaro Lobster a substantial sum that he refused to pay. Aguila himself admitted in deposition that on July 20 he owed Mortillaro Lobster over $400,000, with approximately $166,000 remaining at the time of deposition. Mortillaro declared he never called Aguila a deadbeat, and Fullerton testified likewise. And both said Mortillaro had not advised Ipswich to cease doing business with Aguila. When asked how he learned about Mortillaro’s alleged defamatory comments, Aguila testified at deposition, “I believe originally I heard it from [Parham who] had heard it from [Fullerton].” Aguila’s equivocal hearsay statement is not sufficient to raise a triable issue. (See Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541.)

Mortillaro Lobster provided copies of invoices addressed to Thee Premium totaling over $166,000, with proof of shipment; accounts receivable reports sent to Aguila showing that in July 2012 Aguila had outstanding invoices dating back to April 2012; and a series of emails showing that Mortillaro Lobster repeatedly complained of late payments and, despite his promises, Aguila fell further and further behind.

With this evidence Mortillaro Lobster carried its burden on summary judgment, which shifted the burden to Aguila to demonstrate the existence of a triable issue of material fact.

In an attempt to carry his burden, Aguila declared he owed nothing to Mortillaro Lobster because he never personally ordered or purchased any lobsters from the seafood distributor. However, he alleged in the unverified third amended cross-complaint that he had purchased lobsters for Thee Premium, and admitted in deposition that he was “responsible for all the poundage that [Parham] sold under [the Thee Premium] name,” and he “paid [for] all the lobsters that were sold.” “A sufficient motion cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings; counterdeclarations are no substitute for amended pleadings.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065.)

Aguila argues Mortillaro’s statement to Ipswich was false because he had 30 to 60 days to pay any invoice, consistent with industry practice. He argues that Mortillaro’s continuing to ship lobsters to him despite his general practice of cutting off delinquent customers establishes that no invoices were overdue. Aguila also argues that Mortillaro’s statement in a July 14, 2012 email that invoices paid after 80 days were only “50 days past due” establishes his agreement to accept payments within 30 days.

None of this evidence established that the parties agreed Aguila had 30 to 60 days to pay on any invoice. Even if it did, Aguila admits that several invoices were over 60 days old, and further admitted that as of the time of his deposition he owed Mortillaro over $166,000. The evidence thus established no triable issue existed as to whether Mortillaro’s July 20, 2012 statement to Ipswich was true.

It is immaterial that some invoices had already been paid or were not overdue when Mortillaro made the statement. The imputation of the allegedly defamatory statement was “substantially true so as to justify the ‘gist or sting’ of the remark.” (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 581–582.)

Aguila contends Mortillaro’s July 2012 statement was false because at that time Aguila had an unapplied $55,225.00 credit on his account dating back to January 2012. But Mortillaro did not produce the Mortillaro Lobster billing statement showing the credit on Aguila’s account until October 27, 2015, weeks after the trial court granted Mortillaro Lobster’s summary judgment motion. On appeal we consider only evidence that was before the trial court when it ruled on the motion. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)

Aguila contends Mortillaro Lobster is liable for the Seafax statement in its Flash Report because Seafax was Mortillaro Lobster’s agent at the time. Aguila’s libel cause of action fails, however, because he raised no triable issue as to whether the Seafax statement was libelous in the first instance. At his deposition Aguila admitted that the Seafax statement was correct in all respects except the assertion that his actions were “retaliatory.” He also essentially conceded that his actions were retaliatory, that is, he had refused to pay Mortillaro Lobster’s overdue invoices because the amount of damages he suffered due to Mortillaro’s disparaging remarks exceeded what Aguila owed Mortillaro Lobster.

Accordingly, no triable issue existed as to Aguila’s defamation causes of action.

3. Interference; Breach of Contract

Aguila’s interference and contract causes of action also fail.

The elements of a cause of action for intentional interference with contractual relations are “(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) Similarly, a breach of contract claim requires a valid contract, and breach thereof. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Here, Aguila testified at his deposition that he had no contract with Ipswich. Aguila similarly denied having any contract with Mortillaro. This evidence satisfied Mortillaro Lobster’s burden to show that Aguila cannot establish at least one element of his causes of action for interference with contractual relations and breach of contract.

Aguila speculated that a trier of fact could find that a contract existed based on an “open book account” he had with Mortillaro, and that Mortillaro had been the one who breached the contract. Aguila’s conclusory contention, with no specific analysis, legal authority, nor record citation supporting the point, fails to satisfy his burden on summary judgment.

Moreover, to establish intentional interference with prospective economic advantage a plaintiff must prove that the defendant “engaged in conduct that was wrongful by some legal measure other than the fact of the interference itself.” (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1060.) Here, Aguila contends Mortillaro’s statements to Ipswich were wrongful and disrupted his business relationship with that distributor. But as noted above, undisputed evidence suggested the statements were true.

Because Aguila failed to show the existence of a triable issue of material fact as to any cause of action, summary judgment was proper.

B. Motion for a Continuance

Aguila contends he was unable to obtain evidence necessary to defeat summary judgment due to Mortillaro Lobster’s various discovery violations, and the trial court erred when it denied his ex parte request for a continuance filed two days before the summary judgment hearing. A court may continue a summary judgment hearing to permit a party to obtain necessary discovery if an ex parte application to continue the hearing is made “on or before the date the opposition response to the motion is due.” (Code Civ. Proc., § 437c, subd. (h).) A plaintiff may also request continuance of a summary judgment motion pursuant to the ordinary discretionary standard applicable to continuance requests generally. (Hamilton v. Orange County Sheriff’s Dept. (2017) 8 Cal.App.5th 759, 765.)

Nothing in the record indicates that the court made any order regarding Aguila’s motion for a continuance other than a passing reference in its ruling on his reconsideration motion that an unspecified continuance request had been denied as untimely. We are unable to determine on a silent record whether the court abused its discretion in the manner Aguila suggests. In any event, the trial court could have properly denied Aguila’s motion because it was untimely.

C. Motion for Reconsideration

Aguila moved for reconsideration, arguing that discovery misconduct prevented him from obtaining unspecified new facts that, if disclosed earlier, could have created a triable issue of fact precluding summary judgment. The trial court denied the motion due to several procedural deficiencies, including that the court lacked jurisdiction to reconsider summary judgment because it had already entered judgment. Aguila contends the trial court erred in denying his motion. We disagree.

A motion for reconsideration must be based “upon new or different facts, circumstances, or law,” and requires the party seeking reconsideration to “state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).) A trial court’s ruling on a motion for reconsideration is reviewed for abuse of discretion. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) “In general, an appellate court reviews only the trial court’s ultimate decision, not the reasoning on which it was based, and we may affirm the decision on any valid theory.” (Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc. (2011) 198 Cal.App.4th 1366, 1377, fn. 7.)

Aguila’s declaration that he had filed in support of the reconsideration motion did not comply with the requirements of Code of Civil Procedure section 1008, subdivision (a). In it, he mostly made the same accusations of discovery violations he had previously raised when he sought continuance of the summary judgment hearing. This deficiency alone justified denying reconsideration. (Cox v. Bonni (2018) 30 Cal.App.5th 287, 312 [“A trial court may not grant a party’s motion for reconsideration that does not comply with section 1008”].) The evidence attached to the declaration was not new because it essentially pertained to depositions taken before September 14, 2015, and was thus available to Aguila when he filed his summary judgment opposition. Aguila attempted to raise the $55,225.00 credit as an issue in a supplemental brief that Aguila filed in support of the motion. But, the trial court properly struck the unauthorized filing because it did not comply with Code of Civil Procedure section 1005, subdivision (b), which requires all supporting evidence to be presented together. Aguila’s reply brief also referenced the credit, which was an improper way to raise the issue. We need not address evidence that was improperly advanced in the trial court. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Nonetheless, the imputation of Mortillaro’s statement, that Aguila owed Mortillaro Lobster a substantial sum that he refused to pay, would have remained true even assuming the existence of such a credit, because the total amount due exceeded the purported credit.

Accordingly, the court acted within its discretion in denying the motion.

DISPOSITION

The judgment is affirmed. Mortillaro Lobster and Mortillaro are to recover their costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.*