Plaintiff and Cross-Defendant Veros Credit, LLC?s (?Veros?) Motion for Summary Judgment, or in the Alternative, Summary Adjudication on Defendant and Cross-Complainant Guadalupe Farias? (?Farias?) First Amended Cross-Complaint is denied.
Both parties submitted evidentiary objections, yet neither complied with California Rule of Court 3.1354(b) by using one of the two mandatory formats. Farias also failed to submit the mandatory proposed order. Nevertheless, the court will rule on the evidentiary objections.? The court overrules Veros? first four evidentiary objections and sustains the fifth evidentiary objection.? All of Farias? evidentiary objections are sustained.
?[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is 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 bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .?? (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)? ?A prima facie showing is one that is sufficient to support the position of the party in question.?? (Id. at p. 851.)? A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action.? (Code Civ. Proc., ? 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff?s complaint.? (FPI Development v. Nakashima(1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff?s allegations as a matter of law.? (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.)? Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action.? (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff?s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Sheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)
Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action.? (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)? To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue.? (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)? Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment.? (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)
First Cause of Action for Breach of Contract
?A cause of action for breach of contract requires [1] pleading of a contract, [2] plaintiff?s performance or excuse for failure to perform, [3] defendant’s breach, and [4] damage to plaintiff resulting therefrom.? (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655.)
Veros contends Farias cannot establish the second element, because she allegedly breached the Severance Agreement by texting with Veros employees during business hours from the period of July 30, 2014 through September 8, 2014. Veros argues the court should find this texting was a material breach, as a matter of law.? But, the court cannot. Veros acknowledges that, in including a ?no contact? provision, it was ?concerned about protecting its proprietary and confidential information.? (Mot. at 6.) Veros has submitted no evidence that Farias contacted Veros employees, or responded to their text messages, to obtain proprietary and confidential information. Farias worked at Veros for nearly a decade, it is not unreasonable that she would maintain social contact and remain friendly with her former coworkers. There is a triable issue of fact as to whether Farias performed under the Severance Agreement.
Second Cause of Action ?for Promissory Fraud
The elements of a claim of promissory fraud are: (1) a promise by the defendant (2) made without any intention of performance, and (3) made with the intent to induce reliance by the plaintiff, followed by (4) reasonable reliance by the plaintiff that results in (5) injury to the plaintiff.? (Civ. Code, ?? 1572, 1710; Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) ?A promise of future conduct is actionable as fraud only if made without a present intent to perform. . . . something more than nonperformance is required to prove the defendant?s intent not to perform his promise. . . . ?[I]f plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.? ? (Magpali v. Farmers Grp., Inc. (1996) 48 Cal.App.4th 471, 480-481.)
Veros has not met its burden of showing that Farias cannot establish fraudulent intent. ?Fraudulent intent must often be established by circumstantial evidence,? (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31), and there is enough circumstantial evidence for a jury to reasonably infer that Veros did not intend to complete performance of the Severance Agreement at the time it entered into the contract. Aside from nonperformance that Veros made only one of the six payments called for in the agreement, the manner in which Veros stopped making payments raises a triable issue of fact. The letters from Veros to Farias putting her on ?notice? of a potential breach and of an ?investigation? contained only vague accusations of wrongdoing. Although Farias allegedly encouraged employees to quit and asked for confidential and proprietary information, Veros has not proffered any admissible evidence of such conduct. Moreover, Veros stopped making payments even though its letters stated that it was only giving notice of a potential breach and that an investigation was ongoing. Here, there is an issue of material fact whether Veros intended to perform when it entered into the Severance Agreement.
Farias shall give notice of the ruling.