Plaintiff?s motion for Summary Adjudication is DENIED.
First Cause of Action for Breach of Contract.
Defendants seek summary adjudication of Plaintiff?s first cause of action for breach of contract on the ground that ?Plaintiff failed to provide Defendants the requisite notice of any alleged breach and the opportunity to cure.?? The argument is based on ? 9.1 of the written agreement between the parties.? By its terms, however, ? 9.1 is entitled ?Default Remedies? and defines ?breach? for purposes of default remedies.? It reads, in pertinent part:
?A ?Default? is defined as a failure by the Licensee to observe, comply with or perform any of the terms, covenants, conditions or rules applicable to Licensee under this License.? A ?Breach? is defined as the occurrence of any one or more of the following Defaults, and, where a grace period for cure after notice is specified herein, the failure by Licensee to cure such Default prior to expiration of the applicable grace period, and [sic] shall entitle Licensor to pursue the remedies set forth herein.?
The foregoing suggests that the remedies in section 9 are available only for a ?breach,? not a mere a ?default.? ?But section 9.2 speaks of remedies available for ?default,? including injunctive relief and specific performance where damages are inadequate.? The section also provides for ?other damages at law? arising from a default.
Section 10.3(b), on the other hand, provides that the licensor may terminate the lease early for a ?breach of the terms herein, or defaults in the payment of any fees or amounts due hereunder.?
As best the court can determine, what the contract refers to as a ?default? is a breach of the agreement giving rise to damages and injunctive relief, and what the contract refers to as a ?breach? is a material breach of the agreement justifying Licensor?s early termination of the agreement (except that a default in a payment is good enough for termination also).
At any rate, the Court also notes section 7.5 which provides, in relevant part, that ?Licensee must indemnify . . . the Licensor against, and in respect of , . . . losses . . . Licensor may incur by reason of Licensee?s breach of or the failure to perform any of its . . . commitments, or covenants in this Agreement . . . .} By using both the terms ?breach? and ?failure to perform? the agreement makes clear that licensee may incur liability to the licensor for a default even if it does not qualify as a ?breach? as defined therein.
Defendant?s motion for summary adjudication of the 1st c/a is DENIED.
Second Cause of Action for Fraud.
Defendants move for summary adjudication of the 2nd c/a for fraud on the ground that ?there is no evidence to support Plaintiffs? fraud claim? because Defendants have ?unequivocally stated that it [sic] never intended to deceive PLAINTIFF at any time during the life of the agreement.?? In order to obtain summary adjudication on the ground that ?one or more elements of the cause of action . . . cannot be established,? Defendants must show that Plaintiff ?does not possess, and cannot reasonably obtain, needed evidence.??? Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301.? Here, Defendants do not make the requisite showing. They rely, entirely, upon their denial of intent to support their motion and provide no evidence regarding Plaintiff?s possession of or ability to obtain the needed evidence (e.g. interrogatory responses, responses to requests for admission, etc.).
Defendant?s motion for summary adjudication of the 2nd c/a is DENIED.
Claim for Punitive Damages.
Defendants move for summary adjudication of Plaintiff?s claim for punitive damages on the grounds that:
- Punitive damages are not available on a breach of contract. Myers Building Industries, Ltd. V. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960
- Plaintiff?s fraud claim has no merit and cannot support a claim for punitive damages.
- Plaintiff?s 3rd c/a for negligence is ?utter nonsense? and cannot support a claim for punitive damages.
As stated above, Defendants have not met their burden of establishing that Plaintiff has not and cannot obtain evidence to support its claim of fraud.? Because the fraud claim stands, the punitive damages claim stands also.
Defendant?s motion for summary adjudication of Plaintiff?s claim for punitive damages is DENIED.
Defendants to give notice.