This case was last updated from Los Angeles County Superior Courts on 07/01/2019 at 09:44:54 (UTC).

ROBERT FIORELLA VS ZINGARR SALES AND MARKETING, LLC

Case Summary

On 02/02/2016 ROBERT FIORELLA filed a Contract - Other Contract lawsuit against ZINGARR SALES AND MARKETING, LLC. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1112

  • Filing Date:

    02/02/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

FIORELLA ROBERT

Defendants

ZINGARR SALES AND MARKETING LLC

DOES 1 TO 10

MCCABE MONICA

DANZIGER ARTHUR

DANZIGER RICHARD

GOTTSCHALK EMILY

KSI INC.

DANZIGER OKSANA

Attorney/Law Firm Details

Plaintiff Attorneys

HOLLISTER & BRACE

DENVER MICHAEL PATRICK

Defendant Attorneys

STYSKAL THOMAS GEORGE

ATABEK & ASSOCIATES P.C.

 

Court Documents

Proof of Service (not Summons and Complaint)

2/17/2016: Proof of Service (not Summons and Complaint)

Legacy Document

8/29/2016: Legacy Document

Case Management Statement

9/8/2016: Case Management Statement

Case Management Statement

1/6/2017: Case Management Statement

Legacy Document

2/1/2017: Legacy Document

Minute Order

3/13/2017: Minute Order

Minute Order

7/7/2017: Minute Order

Minute Order

2/9/2018: Minute Order

Summons

2/22/2018: Summons

Proof of Service (not Summons and Complaint)

3/28/2018: Proof of Service (not Summons and Complaint)

Legacy Document

4/30/2018: Legacy Document

Legacy Document

5/21/2018: Legacy Document

Legacy Document

5/30/2018: Legacy Document

Legacy Document

5/30/2018: Legacy Document

Order

7/6/2018: Order

Case Management Statement

8/2/2018: Case Management Statement

Stipulation

8/8/2018: Stipulation

Notice

3/12/2019: Notice

87 More Documents Available

 

Docket Entries

  • 03/12/2019
  • Notice (Notice of Trial Setting); Filed by Robert Fiorella (Plaintiff)

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  • 03/11/2019
  • at 08:31 AM in Department M; Case Management Conference - Held

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  • 03/11/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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  • 02/26/2019
  • Case Management Statement; Filed by Zingarr Sales and Marketing, LLC (Defendant)

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  • 02/21/2019
  • Case Management Statement; Filed by Robert Fiorella (Plaintiff)

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  • 02/11/2019
  • at 08:30 AM in Department M; Order to Show Cause Re: (Striking Answer) - Held - Continued

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  • 02/11/2019
  • at 08:30 AM in Department M; Case Management Conference - Held - Continued

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  • 02/11/2019
  • Minute Order ( (Order to Show Cause Re: Striking Answer; Case Management Conf...)); Filed by Clerk

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  • 02/07/2019
  • Case Management Statement; Filed by Robert Fiorella (Plaintiff)

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  • 02/07/2019
  • Case Management Statement; Filed by Robert Fiorella (Plaintiff)

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128 More Docket Entries
  • 05/27/2016
  • Default Entered; Filed by Robert Fiorella (Plaintiff)

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  • 05/27/2016
  • Proof of Service (not Summons and Complaint); Filed by Robert Fiorella (Plaintiff)

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  • 02/17/2016
  • Proof of Service (not Summons and Complaint); Filed by Robert Fiorella (Plaintiff)

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  • 02/09/2016
  • OSC-RE Other (Miscellaneous); Filed by Clerk

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  • 02/08/2016
  • Summons; Filed by Robert Fiorella (Plaintiff)

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  • 02/08/2016
  • Amended Complaint; Filed by Robert Fiorella (Plaintiff)

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  • 02/02/2016
  • Civil Case Cover Sheet; Filed by Robert Fiorella (Plaintiff)

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  • 02/02/2016
  • Complaint; Filed by Robert Fiorella (Plaintiff)

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  • 02/02/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 02/02/2016
  • Summons; Filed by null

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Tentative Rulings

Case Number: YC071112    Hearing Date: July 29, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Wednesday, July 29, 2020

Department B Calendar No. 10

PROCEEDINGS

Robert Fiorella v. Zingarr Sales & Marketing, LLC, et al.

YC071112

  1. Robert Fiorella’s Motion for Summary Judgment or Summary Adjudication

    TENTATIVE RULING

    Robert Fiorella’s Motion for Summary Judgment or Summary Adjudication is denied.

    Objections

    No proper objections, as set forth in the manner required pursuant to Cal. Rules of Court Rule 3.1352 and 3.1354, were filed by any party. While Plaintiff made reference to “objections” in his Reply documents, since no procedurally proper objections were filed or served, the Court makes no ruling on any purported objections

    Motion for Summary Judgment and/or Summary Adjudication

    The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

    “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

    “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c(p)(1).

    “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; CCP § 437c(c).)

    Code Civ. Proc., § 437c(f)(1) states:

    “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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(t) states:

    “Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.

    (1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:

    (i) A joint stipulation stating the issue or issues to be adjudicated.

    (ii) A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.

    (B) The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.

    (2) Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties if the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation and declarations.

    (3) If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation. The stipulating parties shall not file additional papers in support of the motion.

    (4)(A) A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: “This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.”

    (B) The notice of motion shall be signed by counsel for all parties, and by those parties in propria persona, to the motion.

    (5) A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.”

    Cal. Rules of Court, Rule 3.1350(b) states:

    “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

    The notice must identify the causes of action or defenses to which the motion for summary adjudication is directed. Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478. When the notice of motion seeks only summary judgment, the presence of any triable issue requires denial of the motion. The court may not summarily adjudicate claims or defenses as to which no triable issue was raised unless requested in the notice of motion. Homestead Sav. v. Superior Court (1986) 179 Cal.App.3d 494, 498.

    On February 2, 2016, Plaintiff filed his Complaint. Plaintiff alleges that Defendants tricked Plaintiff into handing over his intellectual property for a senior citizen tablet device. Defendants allegedly took the technology and profited to the exclusion of Plaintiff. Plaintiff also alleges that he was not paid for his services. Plaintiff’s operative Second Amended Complaint was filed on May 15, 2018. Plaintiff set forth causes of action for: 1. Fraud; 2. Unjust Enrichment; 3. Intentional Interference with Contract; 4. Negligence; 5. Breach of Contract; 6. Breach of the Implied Covenant of Good Faith and Fair Dealing. As to Zingarr, all the causes of action are directed against this entity except for the third cause of action.

    Plaintiff’s notice of motion states verbatim, in relevant part:

    “Plaintiff Robert Fiorella ("Fiorella"), by and through his counsel of record, will and hereby does, move the Court for an order that judgment be entered in Fiorella's favor and against defendant Zingarr Sales & Marketing, LLC ("Zingarr") as prayed for in Fiorella's Second Amended Complaint.

    This motion is made on the grounds that there is no defense to Fiorella's Breach of Contract cause of action, there is no triable issue of material fact and Fiorella is entitled to judgment as a matter of law. Fiorella is owed and is entitled to a judgment in the amount of at least $280,000 and that is the amount he will seek at trial if one is needed. However, to the extent the Court is inclined to enter Judgment now, and the Judgment is not reversed on appeal, Fiorella will waive his claim to amounts above $180,000. The waiver is made to avoid the time and expense of a trial.

    Accordingly, Fiorella's alternative Motion for Summary Judgment seeks a $180,000 Judgment, while Fiorella's Motion for Summary Adjudication seeks his full claim of at least $280,000.” (Plaintiff’s Notice of Motion, pages 1-2.)

    Plaintiff’s Motion for Summary Judgment must be denied. Plaintiff’s Motion for Summary Judgment, Separate Statement of Facts, and supporting evidence failed to address the first, second, fourth, and sixth causes of action. Thus, because summary judgment cannot be granted as to all the causes of action directed against Defendant Zingarr, the motion for summary judgment must be denied.

    Plaintiff’s alternative Motion for Summary Adjudication must also be denied. First, the notice of motion did not specifically move for summary adjudication of the fifth cause of action for Breach of Contract. Instead, the notice only sought a “judgment” “in Fiorella's favor and against defendant Zingarr Sales & Marketing, LLC ("Zingarr") as prayed for in Fiorella's Second Amended Complaint.” The notice of motion does mention adjudication, but, only in the context of Plaintiff’s apparent willingness to accept an “adjudication” of an amount of damages less than that sought if “judgment” is not granted. As stated above, a motion for summary adjudication may be sought as to “one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty .... 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.” CCP 437c(f)(1). Here, Plaintiff’s notice of motion did not specifically move for summary adjudication of the fifth cause of action for Breach of Contract. In addition, to the extent that Plaintiff may now argue that he is seeking adjudication of a “claim for damages” other than punitive damages that may not completely dispose of the cause of action, Plaintiff failed to comply with CCP § 437c(t).

    This fatal defect is further exemplified by Plaintiff’s failure to comply with Cal. Rules of Court, Rule 3.1350(b) which states: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Even assuming arguendo, that Plaintiff had sought and identified in the notice of motion, a motion for summary adjudication of the fifth cause of action, this “issue” sought to be adjudicated was not repeated verbatim in the separate statement. In fact, the “issues” sought to be adjudicated in the separate statement are not proper issues at all as defined under CCP § 437c(f)(1).

    The five issues identified by Plaintiff are: “Issue 1: Ms. Emily Gottschalk was the president and majority owner of Zingarr with the actual or apparent authority to enter contracts; Issue 2: Zingarr hired Fiorella to provide consulting services in California; Issue 3: Fiorella provided the contractual consulting services and helped Zingarr’s real pad project succeed; Issue 4: Fiorella submitted his bill to Zingarr which was approved for payment, but Zingarr failed to pay; Issue 5: Zingarr admits it should have paid, but did not do so.” (Plaintiff’s Separate Statement of Facts.) These are not causes of action, affirmative defenses, claims for damages, or issues of duties, but merely facts which Plaintiff believes supports his cause of action for Breach of Contract.

    Therefore, the Court finds that Plaintiff has not met his burden of showing that there is no defense to the causes of action by proving each element of the causes of action entitling the party to judgment on the cause of action. Code Civ. Proc., § 437c(p)(1). Thus, the burden does not shift to Defendant to set forth specific facts to show the existence of a triable issue of material fact as to the causes of action. Code Civ. Proc., § 437c(p)(1).

    Plaintiff’s motion for summary judgment and/or summary adjudication is denied.

    Defendant is ordered to give notice of this ruling.