This case was last updated from Los Angeles County Superior Courts on 11/28/2019 at 03:53:03 (UTC).

MS TRADING SERVICES, INC. VS MARK THORNTON, ET AL.

Case Summary

On 03/18/2019 a Contract - Other Contract case was filed by MS TRADING SERVICES, INC against MARK THORNTON in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2676

  • Filing Date:

    03/18/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiffs and Cross Defendants

TRADING SERVICES INC. MS

SACK MARSHALL

Defendants and Cross Plaintiffs

1-10 DOES

THORNTON MARK

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

SULLIVAN JOHN

 

Court Documents

Opposition (name extension) - Opposition OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT

11/5/2019: Opposition (name extension) - Opposition OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT

Reply (name extension) - Reply Opposition To Motion For Summary Judgment

11/12/2019: Reply (name extension) - Reply Opposition To Motion For Summary Judgment

Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

11/18/2019: Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

Motion for Summary Judgment - Motion for Summary Judgment

8/23/2019: Motion for Summary Judgment - Motion for Summary Judgment

Proof of Service by Mail - Proof of Service by Mail

8/23/2019: Proof of Service by Mail - Proof of Service by Mail

Separate Statement - Separate Statement

8/23/2019: Separate Statement - Separate Statement

Declaration (name extension) - Declaration Declaration In Support Of Motion For Summary Judgment

8/23/2019: Declaration (name extension) - Declaration Declaration In Support Of Motion For Summary Judgment

Answer - Answer

5/24/2019: Answer - Answer

Summons - Summons on Complaint

4/24/2019: Summons - Summons on Complaint

Cross-Complaint - Cross-Complaint

4/24/2019: Cross-Complaint - Cross-Complaint

Answer - Answer

4/24/2019: Answer - Answer

Summons - Summons on Complaint

3/18/2019: Summons - Summons on Complaint

Complaint - Complaint

3/18/2019: Complaint - Complaint

First Amended Standing Order - First Amended Standing Order

3/18/2019: First Amended Standing Order - First Amended Standing Order

Civil Case Cover Sheet - Civil Case Cover Sheet

3/18/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

3/18/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

4 More Documents Available

 

Docket Entries

  • 03/21/2022
  • Hearing03/21/2022 at 10:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 09/14/2020
  • Hearing09/14/2020 at 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 11/18/2019
  • DocketMinute Order (Hearing on Motion for Summary Judgment)

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  • 11/18/2019
  • DocketHearing on Motion for Summary Judgment scheduled for 11/18/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 11/18/2019; Result Type to Held - Taken under Submission

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  • 11/12/2019
  • DocketReply Opposition To Motion For Summary Judgment; Filed by: MS Trading Services, Inc. (Plaintiff)

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  • 11/05/2019
  • DocketOpposition OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT; Filed by: Mark Thornton (Defendant)

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  • 08/23/2019
  • DocketMotion for Summary Judgment; Filed by: MS Trading Services, Inc. (Plaintiff); As to: Mark Thornton (Defendant)

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  • 08/23/2019
  • DocketSeparate Statement; Filed by: MS Trading Services, Inc. (Plaintiff)

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  • 08/23/2019
  • DocketProof of Service by Mail; Filed by: MS Trading Services, Inc. (Plaintiff); As to: Mark Thornton (Defendant)

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  • 08/23/2019
  • DocketDeclaration Declaration In Support Of Motion For Summary Judgment; Filed by: MS Trading Services, Inc. (Plaintiff)

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3 More Docket Entries
  • 04/24/2019
  • DocketSummons on Complaint; Issued and Filed by: Mark Thornton (Defendant); As to: MS Trading Services, Inc. (Plaintiff)

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  • 04/24/2019
  • DocketCross-Complaint; Filed by: Mark Thornton (Cross-Complainant); As to: MS Trading Services, Inc. (Cross-Defendant); Marshall Sack (Cross-Defendant)

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  • 03/19/2019
  • DocketNon-Jury Trial scheduled for 09/14/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 03/19/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/21/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 03/19/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 03/18/2019
  • DocketComplaint; Filed by: MS Trading Services, Inc. (Plaintiff); As to: Mark Thornton (Defendant); Does 1-10 (Defendant)

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  • 03/18/2019
  • DocketSummons on Complaint; Issued and Filed by: MS Trading Services, Inc. (Plaintiff); As to: Mark Thornton (Defendant); Does 1-10 (Defendant)

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  • 03/18/2019
  • DocketCivil Case Cover Sheet; Filed by: MS Trading Services, Inc. (Plaintiff); As to: Mark Thornton (Defendant); Does 1-10 (Defendant)

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  • 03/18/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/18/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC02676    Hearing Date: November 18, 2019    Dept: 94

MS Trading Services, Inc. v. Thornton, et al.

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Plaintiff MS Trading Services, Inc.’s Motion for Summary Judgment is DENIED. Plaintiff’s Motion for Summary Adjudication is DENIED AS TO ALL THE CAUSES OF ACTION IN THE COMPLAINT, AND THE FIRST, FIFTH AND SIXTH CAUSES OF ACTION IN THE CROSS-COMPLAINT; and GRANTED AS TO THE SECOND, THIRD, FOURTH AND SEVENTH CAUSES OF ACTION IN THE CROSS-COMPLAINT WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On March 18, 2019, Plaintiff MS Trading Services, Inc. (“Plaintiff”) filed the instant action for breach of oral contract and common counts against Defendant Mark Thornton (“Defendant”). Defendant filed a Cross-Complaint for breach of covenant of good faith and fair dealing, fraud, defamation, interference with prospective economic advantage and unfair business practices on April 24, 2019.

Plaintiff filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication on August 23, 2019. Defendant filed his opposition on November 5, 2019 and Plaintiff replied on November 12, 2019.

Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

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. (Code Civ. Proc., § 437c, subd. (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.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Discussion

As an initial matter, the opposition was untimely filed and served by mail on November 5, 2019. The opposition should have been served personally by November 4, 2019 or by overnight mail by November 2, 2019. The Court also notes that the reply was also served by mail, which is improper. “[A]ll papers opposing a motion and all reply papers shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed.” (Code Civ. Proc., § 1005, subd. (c).)

Plaintiff moves for summary judgment, or the alternative, summary adjudication as to each cause of action in the Complaint and Cross-Complaint.

Plaintiff’s 1st Cause of Action for Breach of Oral Contract

The elements of a claim for breach of contract are “a contract; its performance or excuse for nonperformance; breach; and damages.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) Plaintiff presents evidence that in the summer of 2018, the parties entered into an oral agreement whereby Defendant agreed to pay Plaintiff to arrange transportation for goods for

international sale on ocean vessels and airplanes. (Motion, Separate Statement of Facts No. 1; Sacks Decl., ¶¶4-5.) In exchange, Defendant would pay Plaintiff’s costs, plus 10 percent of the cost of those services. (Motion, Separate Statement of Facts No. 2; Sacks Decl., ¶6 and Exh. 1.) Plaintiff provided these services starting in August 2018 for several months. (Motion, Separate Statement of Facts No. 3; Sacks Decl., ¶¶8-10 and Exh. 1.) Plaintiff generated an invoice for each order placed by Defendant. (Motion, Separate Statement of Facts No. 4; Sacks Decl., ¶¶10-13 and Exh. 1.) Defendant paid the first invoice within 15 days, as agreed, but thereafter failed to pay for the services provided. (Motion, Separate Statement of Facts No. 5; Sacks Decl., ¶¶9, 15-17.) There is now due and owing a balance of $20,106.15 by Defendant to Plaintiff. (Motion, Separate Statement of Facts No. 6; Sacks Decl., ¶¶18-20 and Exh. 1.) Plaintiff demanded payment, and Defendant admitted that he owes the entire amount due. (Motion, Separate Statement of Facts No. 8; Sacks Decl., ¶26 and Exh. 2.)

Plaintiff’s own evidence, however, demonstrates the existence of a triable issue of material fact with respect to the terms of the parties’ agreement. In Exhibit 3 to the declaration of Marshall Sacks, Plaintiff states that the payment by Defendant every three to four weeks was acceptable under the parties agreement. (Motion, Sacks Decl., Exh 3, p. 1.) This contradicts Plaintiff’s earlier contention that the parties agreed to the invoices within 15 days.

In opposition, Defendant also presents his own declaration disputing the terms of the contract. Specifically, he contends that he agreed to pay Plaintiff its actual shipping costs plus a flat fee of $250.00 per shipment. (Opp., Separate Statement Fact No. 2; Thornton Decl., ¶¶4, 7.) Defendant also contends that the parties never agreed to a payment deadline, and that Plaintiff was to provide documentation of its shipping costs. (Opp., Separate Statement Fact No. 5; Thornton Decl., ¶¶5-11.)

According to Defendant, Plaintiff failed to provide documentation of the costs as demanded. (Opp., Separate Statement Fact No. 5; Thornton Decl., ¶¶5-11.) Indeed, Plaintiff’s own declaration supports Defendant’s contention that backup documentation of its costs was part of the agreement, as it provided Defendant with some of the documentation prior to the filing of this action, and additional documentation “following the start of litigation.” (Motion, Sacks Decl., ¶¶24, 25, 28.) Defendant also declares that Plaintiff added a ten percent markup to its cost and demanded payment for a shipment that was completed with the good delivered intact. (Opp., Separate Statement Fact No. 6; Thornton Decl., ¶¶5-12.) Finally, Defendant states in his declaration that he never agreed to the entire amount claimed was due but rather made payments to placate Plaintiff while other shipments were in route. (Opp., Separate Statement Fact No. 8; Thornton Decl., ¶¶10-15.)

The Court does note that Defendant’s opposition evidence is based entirely on his own declaration, without documentation of the purported terms of the agreement or Defendant’s purported breaches of its obligations. However, on a motion for summary judgment or adjudication, the Court is to strictly construe the moving party’s evidence and the opposing’s party evidence must only rise beyond mere speculation. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) In light of this standard, and the triable issues of material fact created by Plaintiff’s own motion, the Court finds that the evidence in opposition is sufficient to create a triable issue of material fact regarding the terms the parties’ oral contract and whether Defendant’s breach was excused by Plaintiff’s non-performance.

Plaintiff’s reply fails to dispute this evidence. It simply contends that Defendant failed to timely dispute the fees owed, which is contradicted by Defendant’s declaration wherein he states that he paid $20,000.00 while requesting the required documentation from Plaintiff. (Opp., Thornton Decl., ¶8.) Nor does the opposition attach any further evidence to demonstrate that it incurred the costs claimed for the services and that it did not mark up those costs by ten percent.

Therefore, the motion for summary adjudication is denied as to Plaintiff’s first cause of action for breach of contract.

Plaintiff’s 2nd, 3rd and 4th Causes of Action for Common Counts

Plaintiff’s evidence in support of the second, third and fourth causes of action for common counts—goods and services rendered, account stated, and open book account, respectively—is the same as for breach of oral contract. For the reasons discussed above, these causes of action are subject to the same triable issues of material fact regarding the request for services and responsibility for payment.

Therefore, the motion for summary adjudication is denied as to Plaintiff’s second, third and fourth causes of action for common counts.

Defendant’s 1st Cause of Action for Breach of Covenant of Good Faith and Fair Dealing

The elements of a claim for breach of the covenant of good faith and fair dealing is that (1) the parties entered into a contract (contractual relationship); (2) plaintiff fulfilled his/her contractual obligations; (3) any conditions precedent to defendant’s performance occurred; (4) defendant unfairly interfered with plaintiff’s right to receive the benefits of the contract; and (5) plaintiff was harmed by defendant’s conduct. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36.) In order for Plaintiff to prevail on this cause of action, it must show that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

The Cross-Complaint appears to allege that Plaintiff breached the covenant by refusing to provide documentation of its costs in order to overcharge him, and then refused to complete its obligations when Defendant did not pay the charges beyond the parties’ initial agreement. (Cross-Compl., ¶¶5, 8.) As discussed above, triable issues of material fact exist as to the parties’ obligations under the agreement and whether each complied with those obligations. Plaintiff, therefore, has not shown that Defendant did not fulfill his contractual obligations, or that it did not interfere with Defendant’s right to benefits under the contract.

Therefore, the motion for summary adjudication is denied as to Defendant’s first cause of action for breach of the covenant of good faith and fair dealing.

Defendant’s 2nd Cause of Action for Intentional Misrepresentation

Defendant’s second cause of action is for intentional misrepresentation based on purportedly false statements Plaintiff made regarding the terms of the agreement and that Plaintiff was licensed or authorized to perform freight-forwarding services. (Cross-Compl., ¶¶4-7.) Plaintiff correctly points out that this is a fraud cause of action that is not alleged with sufficient particularity. It is hornbook law that fraud-based claims are subject to a stricter pleading standard then that governing most California causes of action. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) The heightened particularity requirement necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Also, when fraud is alleged against a corporate party, as in the Cross-Complaint, Defendant must specifically allege the names of the persons who allegedly made the representation, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mutual Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The Cross-Complaint does not meet the heightened pleading requirement based on its conclusory allegations regarding Plaintiff’s statements with no information as to where, when, or how those statements were made.

“It has long been the rule in this state that when a [cross]-defendant's motion for summary judgment depends on the untenability of the [cross-complainant’s] case as pleaded . . . it may be treated as a common law motion for judgment on the pleadings.” (Cordova v. 21st Century Ins. Co. (2005) 129 Cal.App.4th 89, 109.) As the cause of action for intentional misrepresentation is not adequately alleged, the motion for summary adjudication is granted as to Defendant’s second cause of action for intentional misrepresentation.

Defendant’s 3rd Cause of Action Negligent Misrepresentation

A cause of action for negligent misrepresentation is held to the same pleading standard as fraud. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) As with Defendant’s first cause of action, the claim for negligent misrepresentation is not adequately pled. (Cross-Compl., ¶¶4-7.) The motion for summary adjudication is granted as to Defendant’s third cause of action for intentional misrepresentation.

Defendant’s 4th Cause of Action for Deceit by Concealment and False Promise

As with the intentional and negligent misrepresentation causes of action, the fourth cause of action for deceit by concealment and false promise is inadequately pled. (Cross-Compl., ¶¶4-7.) The motion for summary adjudication is granted as to Defendant’s fourth cause of action for deceit by concealment and false promise.

Defendant’s 5th Cause of Action for Defamation

Defamation involves the intentional publication of a statement of fact which 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; Civil Code, §§ 45, 46.) Plaintiff’s motion attacks only the second element of falsity by arguing that it did not make any statement to Defendant’s customers regarding his conduct except to truthfully report his failure to pay for its services. (Motion, Sacks Decl., ¶¶33-35 and Exh. 3.) For reasons already discussed, Plaintiff has not shown what Defendant was obligated to pay for the services rendered given the parties’ dispute over the contract terms. Triable issues of material fact, therefore, exist regarding the falsity of Plaintiff’s statements.

The motion for summary adjudication is denied as to Defendant’s fifth cause of action for defamation.

Defendant’s 6th Cause of Action for Interference with Prospective Advantage

The elements for intentional interference with prospective economic advantage are: (1) the existence of a prospective economic relationship with the probability of future economic benefit to plaintiff; (2) defendant’s knowledge of the relationship and intent to disrupt it; (3) actual disruption of the relationship; (4) caused by the defendant’s wrongful and unjustified conduct; and (5) plaintiff suffered damages as a result. (Youst v. Longo (1987) 43 Cal.3d 64, 71.) Plaintiff’s motion does not clearly state which element it contends Defendant cannot prove, but suggests that its conduct was justified because it simply wanted to be paid for its services. (Motion, Sacks Decl., ¶¶33-35 and Exh. 3.) Again, because triable issues exist as to the payment owed to Plaintiff, it has not shown that the statements made to Defendant’s customers were justified.

The motion for summary adjudication is denied as to Defendant’s sixth cause of action for intentional interference with prospective economic advantage.

7th Cause of Action for Unfair Business Practices

To state a claim under Cal. Business & Professions Code section 17200, Defendant must allege that Plaintiff’s conduct was fraudulent, unlawful or an unfair business practice. (Cal. Bus. & Profs. Code, § 17200, et seq.) Defendant alleges that Plaintiff business practices were unfair, without specifying which conduct. (Cross-Compl., ¶43.) The Court, however, is unaware of any claim for unfair business practices outside of the consumer context. (See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 184.) Nor does Defendant point to any authority involving a business contract dispute where a claim for unfair business practices succeeded.

The motion for summary adjudication is granted as to Defendant’s seventh cause of action for unfair business practices.

Conclusion

For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is DENIED. Plaintiff’s Motion for Summary Adjudication is DENIED as to all the causes of action in the Complaint, and the first, fifth and sixth causes of action in the Cross-Complaint; and GRANTED as to the second, third, fourth and seventh causes of action in the Cross-Complaint with 20 days’ leave to amend.

Defendant to give notice.