On 07/03/2017 MARIO LINO MIRAMONTES filed a Contract - Other Contract lawsuit against SAN PEDRO FISH MARKET LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MALCOLM MACKEY. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MIRAMONTE MARIO LINO
MIRAMONTES MARIO LINO
SAN PEDRO FISH MARKET LLC
DOES 1 TO 100
SAN PEDRO FISH MARKET ENTERPRISES INC.
AMALFITANO THOMAS JR.
AMALFITANO THOMAS SR.
UNGARO HENRY JR.
WASSERMAN BENJAMIN P. ESQ.
WASSERMAN BENJAMIN PETER
MANCINELLI DIANE LYNN
10/3/2018: Proof of Personal Service
10/3/2018: Proof of Personal Service
10/3/2018: Proof of Personal Service
10/9/2018: Minute Order
11/30/2018: Case Management Statement
12/7/2018: Case Management Statement
12/13/2018: Minute Order
1/2/2019: Notice of Posting of Jury Fees
2/7/2019: Minute Order
3/4/2019: General Denial
2/9/2018: Minute Order
5/10/2018: Minute Order
8/8/2018: Minute Order
7/3/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
General Denial; Filed by San Pedro Fish Market Enterprises, Inc. (Defendant); San Pedro Fish Market, LLC (Defendant); Thomas Amalfitano, Sr. (Defendant) et al.Read MoreRead Less
at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Demurrer - without Motion to Strike - HeldRead MoreRead Less
Minute Order ( (Hearing on Demurrer - without Motion to Strike)); Filed by ClerkRead MoreRead Less
Reply (to plaintiff's opposition to motion to demurrer to first amended complaint); Filed by San Pedro Fish Market Enterprises, Inc. (Defendant); San Pedro Fish Market, LLC (Defendant); Thomas Amalfitano, Sr. (Defendant) et al.Read MoreRead Less
Opposition ( to Demurrer to Plaintiff's First Amended Complaint); Filed by Mario Lino Miramontes (Plaintiff)Read MoreRead Less
Notice of Posting of Jury Fees; Filed by Mario Lino Miramontes (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Order to Show Cause Re: Failure to File Proof of Service - HeldRead MoreRead Less
at 08:30 AM in Department 55, Malcolm Mackey, Presiding; Case Management Conference - HeldRead MoreRead Less
Minute Order ((Order to Show Cause Re: Failure to File Proof of Service; Cas...)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Order to Show Cause Re: Failure to File Proof of Service; Cas...) of 12/13/2018 and Court's Status Conference Order); Filed by ClerkRead MoreRead Less
Minute order entered: 2017-12-11 00:00:00; Filed by ClerkRead MoreRead Less
Minute OrderRead MoreRead Less
at 08:30 AM in Department 55; Case Management Conference (Conference-Case Management; Matter continued) -Read MoreRead Less
Minute order entered: 2017-10-11 00:00:00; Filed by ClerkRead MoreRead Less
Minute OrderRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Complaint; Filed by Mario Lino Miramontes (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC667234 Hearing Date: April 23, 2021 Dept: 55
MIRAMONTES v. SAN PEDRO FISH MARKET, LLC BC667234
Hearing Date: 4/23/21, Dept. 55
#10: MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY SUMMARY ADJUDICATION.
Notice: Okay (continued for reply, per minutes entered 3/3/21).
On 7/3/17, Plaintiff filed a Complaint.
On 8/8/18, Plaintiff MARIO LINO MIRAMONTES filed a First Amended Complaint, alleging that defendants breached a verbal agreement, granting Plaintiff exclusive rights to proprietary custom spice blends, formulations and recipes, in growing the business called “San Pedro Fish Market,” including by interfering with Plaintiff’s business arrangements, and reneging on compensation agreements.
The causes of action are:
1. BREACH OF ORAL CONTRACT
2. TORTIOUS INTERFERENCE WITH WRITTEN CONTRACT OR PROSPECTIVE BUSINESS ADVANTAGE
3. NEGLIGENT INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE
4. VIOLATION OF BUSINESS & PROFESSIONS CODE § 17500.
5. VIOLATION OF BUSINESS & PROFESSIONS CODE § 17200.
Moving parties request the Court to grant summary judgment, or summary adjudication of each cause of action of the First Amended Complaint, on grounds including the following:
· There was never any agreement or contract between any of the Defendants and Miramontes, that conferred any ownership interest to Miramontes in the Spice Blends and Products.
· At no time did Amalfitano or anyone else represent to Miramontes that he would have any ownership in SPFM or proprietary interest in any of the Spice Blends and/or the Products that were developed while Miramontes worked at SPFM. (UMF#15).
· Miramontes’ First Amended Complaint and all its causes of action, depend upon Miramontes establishing an ownership interest in the Spice Blends and Products that were sold at SPFM.
· Plaintiff has only declared that a partnership was formed, but does not set forth any terms. If a “restaurant partnership” had been formed, Plaintiff would have shared in the losses as well as profits. Plaintiff only alleges that he was to receive what appears to be a “commission” on the sale of the spices.
· All things created during employment are the property of the employer. (Labor Code §2860).
· The only Defendant who was involved in the hiring of Miramontes in or 1981 was Thomas Amalfitano, Sr. (hereinafter, “Amalfitano”), and there was no discussion concerning developing Spice Blends or Products that would be sold at SPFM at the time of his hiring by Mr. Amalfitano. (UMF #2)
· The other individual Defendants were not involved in hiring Miramontes and most had no, or almost no, interaction at SPFM with Miramontes in the 35 years he was employed with SPFM.
· Defendants have never been aware of any “economic relationships” that Miramontes had with anyone or any third-party entity and have never interfered with any “economic relationships”. (UMF#18).
· Any oral agreement would be barred by the Statute of Frauds, having terms not to be performed within a year from the making. An oral agreement that is “perpetual” could not be performed in one year from its making.
· Plaintiff has not produced any evidence that he or anyone else relied on any misleading statements on the labelling, nor that he or anyone else suffered any damage from any misleading statement on the labelling.
· Plaintiff claims that the labeling changed in 2012. (Mancinelli Decl., Exhibit “1”, FAC, ¶36). Accordingly, the statute of limitations expired in 2016, and the Complaint was filed on July 3, 2017.
· Since SPFM was within its rights to change the labelling, doing so would not be “unlawful” under Section 17200.
· None of the Defendants made any “false statements” to Plaintiff.
· “Restitution” is a remedy, not a cause of action.
· Evidentiary objections were filed to Plaintiff’s incompetent declaration.
Opposing party requests denying, for reasons including the following:
· Plaintiff was never an employee. Plaintiff entered into a partnership agreement and perpetual condition agreements. (Miramontes Decl. ¶ 9.)
· The parties orally agreed, and showed by subsequent performance, that Plaintiff owned property rights to the Spice Blends, formulations, and products at issue.
· The Statute of Frauds is inapposite. The oral partnership and the perpetual condition agreements extended beyond one year, but they could have been completely performed within 1 year, for a number of reasons.
· When the parties’ children entered into the business, by their conduct and acquiescence prior to the pretext incidence, they performed and ratified the original partnership agreement, either under doctrine of voluntary ratification, ratification based upon inconsistent conduct, or by the rules of estoppel. Rakestraw v. Rodrigues ( 1972) 8 Cal.3d 67, 73,
· Triable issues of material fact exit as to Plaintiff’s claims for negligent and intentional interference with written contract and/or prospective business advantage with third-party entities. Defendants’ ignorance of Plaintiff’s agreements or business with third-parties is impossible, given the business nature. Plaintiff "had confidential business relationships with several spice blending and production companies outside and separate from the restaurant partnership. (Miramontes' Decl. ¶ 11.). Plaintiff’s confidential contractual business relationships were with Pacific Spice Company, Inc., Farmers Bros., and Harris Spice Company when it purchased the entirety of the Spice Division assets of Farmers that included agreements for the blending and production of proprietary Spice Blends, formulations and recipes. (Miramontes' Decl. ¶ 12.).
· Plaintiff shows fraudulent business practices under the UCL. Defendants devised a "relabeling" scheme as a pretext for disassociating Plaintiff from SPFM. (Miramontes' Decl. ¶¶ 29-33.) SPFM's scheme had the effect of tricking consumers into believing they are purchasing spices and Products that are uniquely SPFM, when in fact they are uniquely Miramontes' Cajun Spices, Hot Sauce by Chef Mario Lino, or Shrimp Trays by Chef Mario Lino, etc.
· Fraud is evidenced. Plaintiff was unaware of the clandestine scheme devised and pursued by defendants, to force Plaintiff out of the original partnership and to interfere with third-party business relationships. (Miramontes Decl. ¶¶ 29-33, 56.). As part of the inducement to enter into the restaurant partnership with Defendant, Tommy Sr., the Parties agreed that Plaintiff would be able to sell his Spice Blends, formulations and products under his own label, and would receive royalties. SPFM utilized false and misleading references while knowing the labeling statements were false. (Miramontes Decl. ¶¶ 5-7, 49-51.).
· The Statute of Limitations is not a bar, under the delayed discovery doctrine, fraudulent concealment doctrine, continuing violation doctrine, and theory of continuous accrual. Plaintiff was unaware of Defendants' scheme of newly proffered labeling and their plan to eliminate him from the partnership, until around 2016, when he noticed that labeling changes were causing a reduction in royalties. (Miramontes' Decl. ¶¶ 29-33, 56.).
The motion for summary judgment is denied.
The alternative motion for summary adjudication is denied as to all issues.
The Court determines that there are triable issues of material fact, as to each issue raised, including whether Plaintiff was an employee, whether there was an agreement for Plaintiff to own the subject products, (e.g., separate statements, facts 1 – 25, and proof referenced thereat, including Plaintiff’s declaration).
In determining whether there are specific facts that give rise to triable issues of material fact, courts liberally construe opposing parties’ affidavits. Diloreto v. Bd. of Educ. (1999) 74 Cal. App. 4th 267, 275.
Because Plaintiff alleges oral agreements, the evidence is admissible for trial as to a determination what was actually said and not said. “He-said, she-said” evidence generally involves determinations of credibility. E.g., Knight v. S. Orange Cmty. Coll. Dist. (2021) _ Cal.App.5th _, _, No. G058644, 2021 WL 486518, at *7; Kinsella v. Kinsella (2020) 45 Cal. App. 5th 442, 450, n. 15.
According to Plaintiff’s declaration, defendants performed and ratified the agreement, and treated him as a business partner and spices owner, including by the type of payments given, such as commissions, and not regulate wages. The way parties perform an agreement can indicate the agreed terms. Employers Reinsurance Co. v. Sup. Ct. (2008) 161 Cal.App.4th 906, 920-21; Hayter Trucking v. Shell W. E&P (1993)18 Cal. App. 4th 1, 20; City of Hope Nat'l Med. Ctr. v. Genentech (2008) 43 Cal.4th 375, 393.
The Statute of Frauds has exceptions that apply to some disputed facts. “[T]he statute of frauds does not apply to an executed contract.” Lee v. Lee (2009) 175 Cal.App.4th 1553, 1557. “A party is estopped to assert the statute of frauds as a defense ‘where [the] party, by words or conduct, represents that he will stand by his oral agreement, and the other party, in reliance upon that representation, changes his position, to his detriment.’” Garcia v. World Sav., FSB (2010) 183 Cal.App.4th 1031, 1041 n.10. “[I]f a terminating condition can occur within one year a contract is outside the statute of frauds ‘even though performance of the contract may extend longer than one year....’” Abeyta v. Sup. Ct. (1993) 17 Cal.App.4th 1037, 1044.
As for the Statute of Limitations, Plaintiff sufficiently declares delayed discovery of defendants’ fraudulent scheme.
“Where … a defendant moving for summary judgment shows … the applicable limitations period ran out before the complaint was filed and the plaintiff relies on the delayed discovery rule the plaintiff has the burden ‘to show that a triable issue of one of more material facts exists as to that ... defense....’” Gryczman v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1, 7 (concluding that, “reasonable minds could differ as to the sufficiency of plaintiff's diligence in discovering … and therefore whether plaintiff exercised reasonable diligence under the circumstances is a question of fact for a jury to decide.”).
As to restitution, the opposing separate statement referenced evidence in dispute, and also summary adjudication cannot be based on improperly pleading it as a separate cause of action, because moving party must address all intelligibly pled theories.
“There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason.… Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct.” McBride v. Boughton (2004) 123 Cal.App.4th 379, 388.
For summary judgment purposes, issues framed by complaints and answers, which are to be addressed, may include even those pled defectively, yet intelligibly, although not theories completely missing from pleadings. Physicians Comm. For Responsible Medicine v. McDonald's Corp. (2010) 187 Cal.App.4th 554, 568 (“the issues framed by the pleadings are the only issues a motion for summary judgment must address.”); FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 382-383; Jordan-Lyon Prods., ITD., v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472; Bostrom v. County of San Bernardino (1995) 35 Cal. App. 4th 1654, 1663; 580 Folsom Assocs. v. Prometheus Dev. Co. (1990) 223 Cal. App. 3d 1, 14, 18 (burden to address theories “reasonably contemplated by the opponent's pleading”).
Finally, the Court has considered the evidentiary objections in making this ruling. As to summary judgment or adjudication motions, judges need only rule on evidentiary objections deemed material to the disposition. CCP §437c(Q). “ ‘[A]n appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard.’ ” Miranda v. Bomel Const. Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.
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