Case Number: BC645483 Hearing Date: March 21, 2018 Dept: 53

BEN JEWELRY, INC. vs. DONALD E. GRUENBERG INC. , et al., BC645483, MARCH 21, 2018

[Tentative] Order RE: PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION

Plaintiff BEN JEWELRY, INC.’s motion for summary adjudication is DENIED.

BACKGROUND

Plaintiff Ben Jewelry, Inc. (“BJI”) filed this action against Defendant Donald E. Gruenberg Inc. (“DGE”) on December 30, 2016. The gravamen of the Complaint is a dispute between the parties over the sale of a Cartier diamond ring (the “Ring”).

BJI moves for summary adjudication on its first cause of action for unjust enrichment/restitution. DGE opposes.

EVIDENCE

The Court grants BJI’s Request for Judicial Notice as to Exhibits A and B. The Court denies BJI’s Request for Judicial Notice as to Exhibits D, F, L, and M.

The Court rules on DGE’s evidentiary objections as follows: Nos. 1, 2, 3, 5, 6, 7, 8, 9, 10, and 11 are sustained; No. 4 is overruled.

LEGAL STANDARD

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (CCP §437c (c).) When a plaintiff seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (CCP § 437c(p)(1).) The plaintiff is not required to disprove any affirmative defenses to discharge this burden. (Oldcastle Precast, Inc. (2009) 170 Cal.App.4th 554, 564-565.) The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (CCP § 437c(p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.)

DISCUSSION

The facts as presented by BJI are as follows: BJI, a customer of DGE and also a jewelry sales business, contends that it had a customer who wanted to purchase a Cartier 10.07 carat diamond ring (the “Ring”). [BJI’s Separate Statement of Undisputed Material Facts (“UMF”) 3-4] BJI contends that DGE consigned the Ring to BJI for a $100,000 deposit. [UMF 5] However, when BJI’s customer canceled the purchase of the Ring and BJI requested a refund of the $100,000 deposit, DGE refused to return the deposit, claiming for the first time that it was non-refundable and invoiced BJI for $650,000. [UMF 9-10] DGE still has possession of the Ring. [UMF 7]

BJI asserts that no contract existed between the parties, as a matter of law, for the purchase of the Ring. Commercial Code section 2201, subdivision (1) provides that a contract for the sale of goods for more than $500 is not enforceable unless there is some writing sufficient to indicate that a contract for sale has been made and signed by the party against whom enforcement is sought. (Comm. Code, § 2201(1).) Therefore, BJI asserts a claim for restitution on a theory that DGE has been unjustly enriched, to wit, DGE accepted the $100,000 deposit but also retained possession of the Ring.

On the other hand, DGE contends that there was no consignment. Rather, the Ring was purchased by BJI for $750,000, and the $100,000 deposit paid to DGE was non-refundable. [DGE’s Response to UMF 5] When BJI failed to pay the $650,000 balance due on the Ring, the agreement to purchase the Ring was breached. [DGE’s Response to UMF 7] Though DGE does not brief the issue, the Court also finds that there is evidence that makes Commercial Code section 2201, subdivision (2) applicable to the instant case rather than section 2201, subdivision (1). Section 2201, subdivision (2) provides that “[b]etween merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subdivision (1) against the party unless written notice of objection to its contents is given within 10 days after it is received. (Comm. Code, § 2201(2).) DGE contends that a bill of sale requiring payment of the $650,000 balance for the Ring was sent to BJI. (DGE’s Response to UMF 12; Gruenberg Decl., ¶ 7, Ex. B.)

As an initial matter, the Court finds that BJI has failed to produce admissible evidence on the elements of a restitution cause of action. The Court has sustained DGE’s evidentiary objections to the bulk of the evidence submitted by BJI in support of its motion for summary adjudication. Therefore, without admissible evidence, BJI cannot bear its initial burden of making a prima facie showing that there are no triable issues of material fact. Notwithstanding the evidentiary defects with the motion, the Court also finds that even if BJI’s evidence were admissible, a triable issue of fact would exist as to whether the $100,000 deposit was, in fact, non-refundable.

Because the Court finds that a triable issue of fact exists, DGE’s request for a continuance to conduct further discovery is moot.

CONCLUSION

Based on the foregoing, BJI’s motion for summary adjudication is DENIED.

DGE is ordered to give notice of this ruling.

DATED: March 21, 2018

_____________________________

Hon. Howard L. Halm

Judge of the Superior Court