This case was last updated from Los Angeles County Superior Courts on 06/01/2021 at 12:47:43 (UTC).

SHIPWARE, LLC VS U.S. AUTO PARTS NETWORK, INC.

Case Summary

On 05/21/2020 SHIPWARE, LLC filed a Contract - Other Contract lawsuit against U S AUTO PARTS NETWORK, INC. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0377

  • Filing Date:

    05/21/2020

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs and Cross Defendants

SHIPWARE LLC

ROES 1 TO 25

Defendant and Cross Plaintiff

U.S. AUTO PARTS NETWORK INC.

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

FITZGERALD KEN

Defendant and Cross Plaintiff Attorney

ZEE TAPPAN

 

Court Documents

Opposition - OPPOSITION DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, TO COMPEL COMPLIANCE, AND FOR SANCTIONS

1/21/2021: Opposition - OPPOSITION DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, TO COMPEL COMPLIANCE, AND FOR SANCTIONS

Reply - REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES

1/28/2021: Reply - REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES

Proof of Service (not Summons and Complaint)

1/28/2021: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION OF K. FITZGERALD IN SUPPORT OF REPLY RE: MOTION TO COMPEL FURTHER RESPONSES

1/28/2021: Declaration - DECLARATION OF K. FITZGERALD IN SUPPORT OF REPLY RE: MOTION TO COMPEL FURTHER RESPONSES

Declaration - DECLARATION OF R. MARTINEZ ISO PLAINTIFF'S AMENDED APPLICATION FOR WRIT OF ATTACHMENT

2/2/2021: Declaration - DECLARATION OF R. MARTINEZ ISO PLAINTIFF'S AMENDED APPLICATION FOR WRIT OF ATTACHMENT

Declaration - DECLARATION OF K. MYERS ISO PLAINTIFF'S AMENDED APPLICATION FOR WRIT OF ATTACHMENT

2/2/2021: Declaration - DECLARATION OF K. MYERS ISO PLAINTIFF'S AMENDED APPLICATION FOR WRIT OF ATTACHMENT

Declaration - DECLARATION OF B. VOJAK ISO PLAINTIFF'S AMENDED APPLICATION FOR WRIT OF ATTACHMENT

2/2/2021: Declaration - DECLARATION OF B. VOJAK ISO PLAINTIFF'S AMENDED APPLICATION FOR WRIT OF ATTACHMENT

Proof of Service (not Summons and Complaint)

2/2/2021: Proof of Service (not Summons and Complaint)

Writ of - WRIT OF PLAINTIFF'S AMENDED APPLICATION FOR WRIT OF ATTACHMENT

2/2/2021: Writ of - WRIT OF PLAINTIFF'S AMENDED APPLICATION FOR WRIT OF ATTACHMENT

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

2/4/2021: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Proof of Service (not Summons and Complaint)

2/9/2021: Proof of Service (not Summons and Complaint)

Case Management Statement

2/9/2021: Case Management Statement

Case Management Statement

2/16/2021: Case Management Statement

Proof of Service (not Summons and Complaint)

2/16/2021: Proof of Service (not Summons and Complaint)

Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND COMPLAINT

2/16/2021: Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND COMPLAINT

Declaration - DECLARATION DECLARATION OF ALFREDO GOMEZ

2/16/2021: Declaration - DECLARATION DECLARATION OF ALFREDO GOMEZ

Declaration - DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO AMEND

2/16/2021: Declaration - DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO AMEND

Opposition - OPPOSITION DEFENDANTS OPPOSITION TO PLAINTIFFS AMENDED APPLICATION FOR RIGHT TO ATTACH ORDER AND ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT

2/16/2021: Opposition - OPPOSITION DEFENDANTS OPPOSITION TO PLAINTIFFS AMENDED APPLICATION FOR RIGHT TO ATTACH ORDER AND ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT

75 More Documents Available

 

Docket Entries

  • 04/28/2021
  • Docketat 09:30 AM in Department B; Hearing on Motion to Compel Further Discovery Responses - Not Held - Vacated by Court

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  • 04/28/2021
  • Docketat 09:30 AM in Department B; Hearing on Application for Writ of Attachment (CCP 484.040) - Not Held - Vacated by Court

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  • 04/28/2021
  • Docketat 09:30 AM in Department B; Case Management Conference - Not Held - Vacated by Court

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  • 04/28/2021
  • DocketProof of Service by Mail; Filed by Shipware, LLC (Plaintiff)

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  • 04/28/2021
  • DocketRequest for Dismissal (as to Entire Action); Filed by Shipware, LLC (Plaintiff)

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  • 04/26/2021
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by Clerk

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  • 04/23/2021
  • DocketNotice of Settlement; Filed by Shipware, LLC (Plaintiff)

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  • 04/23/2021
  • DocketProof of Service by Mail; Filed by Shipware, LLC (Plaintiff)

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  • 03/29/2021
  • Docketat 08:30 AM in Department B; Hearing on Motion to Compel Further Discovery Responses - Held - Continued

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  • 03/29/2021
  • Docketat 08:30 AM in Department B; Hearing on Application for Writ of Attachment (CCP 484.040) - Held - Continued

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83 More Docket Entries
  • 06/02/2020
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 05/29/2020
  • DocketProof of Personal Service; Filed by Shipware, LLC (Plaintiff)

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  • 05/27/2020
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 05/26/2020
  • DocketOrder to Show Cause (Hearing); Filed by Clerk

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  • 05/26/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/21/2020
  • DocketSummons (on Complaint); Filed by Shipware, LLC (Plaintiff)

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  • 05/21/2020
  • DocketCivil Case Cover Sheet; Filed by Shipware, LLC (Plaintiff)

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  • 05/21/2020
  • DocketCivil Case Cover Sheet; Filed by Shipware, LLC (Plaintiff)

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  • 05/21/2020
  • DocketComplaint; Filed by Shipware, LLC (Plaintiff)

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  • 05/21/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: 20TRCV00377    Hearing Date: March 29, 2021    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka

Department B

Monday – March 29, 2021

Calendar No. 4

PROCEEDINGS

Shipware, LLC v. U.S. Auto Parts Network, Inc.

20TRCV00377

  1. Shipware, LLC’s Motion to Compel Further Responses to Request for Production of Documents, to Compel Compliance, and for Sanctions

    TENTATIVE RULING

    Shipware, LLC’s Motion to Compel Further Responses to Request for Production of Documents, to Compel Compliance, and for Sanctions is granted.

    Meet and Confer

    Plaintiff filed a meet and confer declaration setting forth a reasonable good faith attempt at an informal resolution of each issue presented by the motion in compliance with CCP § 2031.310(b)(2). (Decl., Kenneth Fitzgerald, ¶ 5).

    Motion to Compel

    A party responding to an inspection demand shall respond to each demand with one of the following: a statement the party will comply with the demand, a representation the party lacks the ability to comply with the demand, or an objection. (Code Civ. Proc., § 2031.210, subd. (a).) A response to an inspection demand may be inadequate because it is evasive or incomplete; contains an incomplete statement of compliance; an inadequate, incomplete, or evasive representation of inability to comply; or meritless or overly general objections to a demand. (Code Civ. Proc., § 2031.310, subd. (a).)

    If a demanding party believes the responding party responded inadequately, the demanding party may move for an order compelling further response. (Code Civ. Proc., § 2031.310, subd. (a).) “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” (Code Civ. Proc., § 2031.310, subd. (c).)

    Here, Defendant’s responses are evasive and incomplete. Further, Defendant failed to justify its objections. In addition, Defendant’s responses do not comply with the manner in which responses must be set forth pursuant to CCP § 2031.210 to CCP § 2031.240. This failure contributed to the uncertainty as to whether the responses were full and complete, or whether certain documents were being withheld. In addition, Defendant appeared to object on the basis of certain privileges but failed to provide a privilege log. Also, it is not clear from the form of responses whether Defendant organized the production in a manner in which Plaintiff could determine what documents are responsive to which demand. CCP § 2031.280(a) requires a production to be sorted and labeled to correspond with the categories as stated in the original request. Defendant purported to provide a response stating that it produced “all” documents but the manner of the responses and the objections asserted appear to demonstrate that not all responses have been produced. In fact, in Plaintiff’s portion of the joint discovery brief submitted on March 22, 2021, Plaintiff identified numerous categories of documents which appear to exist but have not yet been produced. (Joint Discovery Statement, pg. 2).

    Therefore, Plaintiff’s Motion to Compel Further Responses is granted. Defendant is ordered to provide further responses to Plaintiff’s demands for inspection with no objections beyond attorney work product, and to produce all documents in their possession responsive to Plaintiff’s request for production, subject to any privilege log identifying documents withheld as work product.

    Sanctions

    Plaintiff’s request for monetary sanctions is granted.

    The Court notes that Plaintiff requested the sum of $23,009 in sanctions. The Court reduces the amount imposed. Sanctions are awarded in favor of Plaintiff and against Defendant in the total amount of $5,061.75. The amount was derived by allotting for 10 hours to prepare and appear for the motion at a rate of $500/hour ($5,000.00), plus 1 filing fee of $61.75, for a total amount of $5,061.75. Sanctions are payable within 30 days of this date.

    Plaintiff is ordered to give notice of this ruling.

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday – March 29, 2021

Department B Calendar No. 4

PROCEEDINGS

Shipware, LLC v. U.S. Auto Parts Network, Inc.

20TRCV00377

  1. Shipware, LLC’s Application for Writ of Attachment

    TENTATIVE RULING

    Shipware, LLC’s Application for Writ of Attachment is granted.

    Background

    Plaintiff Shipware LLC filed its Complaint on May 21, 2020. Plaintiff alleges the following facts. On January 30, 2019, Shipware and Defendant US Auto Parts Network, Inc. (“US Auto”) entered into a written contract for Shipware to provide consulting and auditing services to enable US Auto to reduce parcel shipping costs. Rather than paying Shipware its percentage of these savings as required by the agreement, US Auto shut Shipware out of its shipping data system and refused to pay Shipware. Plaintiff alleged a sole cause of action for Breach of Contract. Defendant US Auto filed a Cross-Complaint, and, then, a First Amended Cross-Complaint alleging causes of action for Unjust Enrichment and Violation of Business and Professions Code § 17200.

    Objections

    Plaintiff’s objections 1 and 2 are sustained.

    Application for Writ of Attachment and Right to Attach Order

    Plaintiff filed its application for writ of attachment seeking the issuance of a right to attach order and an order for issuance of a writ of attachment with respect to all of Defendant’s assets against which attachment may issue.

    The attachment remedy allows commercial creditors holding unsecured claims or claims secured only by personal property to create judicial liens on a defendant’s property before final adjudication of the claims sued upon. See, Kemp Bros. Const., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476.

    The requirements authorizing attachment are the following: (1) the claim must be a claim for money based on a contract; (2) the claim must be for greater than $500; (3) the claim must not be secured or the security is valueless or has decreased in value to less than the amount owed; (4) if the claim is against a natural person, it must arise out of conduct in the defendant’s trade, business, or profession. CCP § 483.010(a)-(c).

    Pursuant to CCP § 483.010(a): “Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.”

    The Court must order issuance of a writ of attachment if it finds plaintiff has met its burden of proof on these required issues:

    (1) The claim upon which the attachment is based is one upon which an attachment may be issued;

    (2) The plaintiff has established the probable validity of the claim upon which the attachment is based;

    (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and

    (4) The amount to be secured by the attachment is greater than zero.

    CCP § 484.090(a).

    “Attachment is a harsh remedy because it causes the defendant to lose control of [its] property before the plaintiff’s claim is adjudicated” Martin v. Aboyan (1983) 148 Cal.App.3d 826, 831. The statutory requirements for the issuance of an attachment are strictly construed. See Vershbow v. Reiner (1991) 231 Cal.App.3d 879, 882. “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” CCP § 481.190.

    “The following property of the defendant is subject to attachment: (a) Where the defendant is a corporation, all corporate property for which a method of levy is provided by Article 2 (commencing with Section 488.300) of Chapter 8.” CCP § 487.010(a).

    “Where the defendant is a natural person, all of the following property: (1) Interests in real property except leasehold estates with unexpired terms of less than one year. (2) Accounts receivable, chattel paper, and general intangibles arising out of the conduct by the defendant of a trade, business, or profession, except any such individual claim with a principal balance of less than one hundred fifty dollars ($150). (3) Equipment. (4) Farm products. (5) Inventory. (6) Final money judgments arising out of the conduct by the defendant of a trade, business, or profession. (7) Money on the premises where a trade, business, or profession is conducted by the defendant and, except for the first one thousand dollars ($1,000), money located elsewhere than on such premises and deposit accounts, but, if the defendant has more than one deposit account or has at least one deposit account and money located elsewhere than on the premises where a trade, business, or profession is conducted by the defendant, the court, upon application of the plaintiff, may order that the writ of attachment be levied so that an aggregate amount of one thousand dollars ($1,000) in the form of such money and in such accounts remains free of levy. (8) Negotiable documents of title. (9) Instruments. (10) Securities. (11) Minerals or the like (including oil and gas) to be extracted.” Code Civ. Proc., § 487.010(c).

    Plaintiff has established that the attachment is based on a claim upon which an attachment may be issued. The claim is one for money, greater than $500, on a contract, and unsecured. For purposes of this application, plaintiff has met its burden to establish the probable validity of the claim and that the amount is greater than zero. (Decl., Rob Martinez, ¶¶ 4-20; Decl., Keith Myers, ¶¶ 4-64.) Plaintiff established that the attachment is not sought for a purpose other than recover of the claim. (Id.; Form AT-105, Paragraph 4.)

    The evidence submitted above adequately documents that Shipware’s claim is for money, based on an express contract between the parties. In addition, the above referenced evidence adequately demonstrates that the requested amount is readily ascertainable. The amount sought to be attached is $2,739,206.91. $198,970.31 represents the $183,047.12 for the first six invoices based on US Auto’s actual savings plus the 5% service charge of $15,923.19. $1,625,001.00 represents 25% of the rebate, and the remaining $915,235.60 represents Shipware’s expectation damages calculated by the average monthly savings multiplied by the remaining 30 months in the contract. (Id.)

    “In determining the probable validity of a claim . . . the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.” Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120. If there are any disputed facts or defenses, the court should determine those by a preponderance of the evidence. Id. at 1116. Again, the evidence referenced above has demonstrated that, for purposes of this application, Shipware is more likely than not to prevail on its claim for breach of contract. “[T]he essential elements of a claim of breach of contract, whether express or implied, are the contract, plaintiff’s performance or excuse for non-performance, defendant’s breach, and the resulting damages to plaintiff.” San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 439.

    Here, Shipware provided evidence that it performed under the contract. Shipware also provided evidence that Defendant breached the contract by failing to pay as agreed. The only evidence submitted by Defendant, in the form of the declaration of Alfredo Gomez, does not provide any facts to refute the evidence of US Auto’s breach. Instead, the declaration merely disputes the computation of damages. Gomez contends that Shipware is charging US Auto for savings that have not yet been realized.

    However, when a contract is breached, the non-breaching party is entitled to terminate the contract and immediately recover all contract damages, meaning all sums that would have been owed had the contract been fully performed. Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191 Cal.App.4th 435, 470. “Where the prospective profits are the natural and direct consequences of the breach of the contract they may be recovered. Profits are part and parcel of the contract itself, entering into and constituting a portion of its very element; something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation. They are presumed to have been taken into consideration and deliberated upon before the contract was made, and formed, perhaps, the only inducement to the arrangement. [Citation.] Damages consisting of the loss of anticipated profits need not be established with certainty. It is sufficient that it be shown as a reasonable probability that the profits would have been earned except for the breach of the contract.” Id.

    Therefore, the application for right to attach order and writ of attachment as against Defendant is granted.

    Plaintiff is ordered to post an undertaking in the amount of $10,000 pursuant to CCP § 489.220(a).

    Plaintiff is ordered to give notice of this ruling.

Case Number: 20TRCV00377    Hearing Date: December 03, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday – December 3, 2020

Department B Calendar No. 9

PROCEEDINGS

Shipware, LLC v. U.S. Auto Parts Network, Inc.

20TRCV00377

  1. Shipware, LLC’s Demurrer to Cross-Complaint

    TENTATIVE RULING

    Shipware, LLC’s Demurrer to Cross-Complaint is sustained with 20 days leave to amend.

    Meet and Confer

    Cross-Defendant set forth a meet and confer declaration in sufficient compliance with CCP § 430.41. (Decl. Kenneth M. Fitzgerald, ¶ 2.)

    Requests for Judicial Notice

    Cross-Defendant’s request for judicial notice is granted pursuant to Evidence Code Section 452(d). The Court takes judicial notice of the existence of the Contract Optimization and Audit Agreement and the Professional Services Agreement which were attached to the Complaint.

    Demurrer

    A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

First Cause of Action for Fraud

The demurrer to the first cause of action is sustained with 20 days leave to amend. Cross-Complainant fails to state facts sufficient to constitute a cause of action.

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.

“Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Cross-Complainant must state facts which “show how, when, where, to whom, and by what means the representations were tendered.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. Moreover, against a corporation, Cross-Complainant must allege the names of the specific person(s) who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. Id.

Cross-Complainant fails to state specific facts as to who specifically made the representations, to whom they were made, when they were made, where they were made, and how and by what means they were made. Cross-Complainant fails to state specific facts demonstrating Cross-Defendant’s knowledge of the falsity of the representations and its intent to deceive.

In addition, Cross-Complainant fails to set forth specific facts to establish justifiable reliance. Page, 2, paragraph 7 of the Contract Optimization and Audit Agreement states: “Client acknowledges and agrees it has the exclusive right and ultimate authority regarding negotiations upon Carrier Contracts and to manage the relationship with Carriers. Client further acknowledges that no guarantee of any outcome is made regarding any possible results regarding possible modification of the terms of Carrier Contracts. Client shall hold Shipware harmless and free of any liability regarding the outcome of negotiations with Client's Carrier Contracts.” In addition, the contract is a fully integrated agreement. (Request for Judicial Notice, Professional Services Agreement, page 6, paragraph 12.1.) Thus, the contention that Cross-Complainant justifiably relied upon Cross-Complainant’s purported representation of a substantial savings of its shipping costs with FedEx is contradicted by the terms of the agreement.

In addition, to the extent Cross-Complainant predicates its fraud claim on the generalized representation as to the savings it might be able to achieve, this is merely an opinion and not actionable fraud. “A representation is one of opinion, if it expresses only (a) the belief of the maker, without certainty, as to the existence of a fact; or (b) his judgment as to quality, value, authenticity or other matters of judgment.” Restatement (Second) of Torts § 538A (1977). “[I]t is hornbook law that an actionable misrepresentation must be made about past or existing facts; statements regarding future events are merely deemed opinions.” San Francisco Design Ctr. Assocs. v. Portman Cos. (1995) 41 Cal.App.4th 29, 43-44.

Finally, the parol evidence rule prohibits a party from using extrinsic evidence of a prior or contemporaneous oral agreement to contradict the plain terms of a fully integrated agreement. CCP § 1856(a). There can be no fraud claim based on an alleged representation that is contradicted by what is agreed to in a fully integrated contract. Alling v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1433-34. The Agreement here plainly states: “Client [US Auto] further acknowledges that no guarantee of any outcome is made regarding any possible results regarding possible modification of the terms of Carrier Contracts.” RJN, Exh. A at 2, § 7.

Therefore, Cross-Defendant’s demurrer to the first cause of action is sustained with 20 days leave to amend.

Second Cause of Action for Violation of Business and Professions Code Section 17200

As to the second cause of action for Violation of Business and Professions Code § 17200, Cross-Defendant’s Demurrer is sustained with 20 days leave to amend. Cross-Complainant fails to state facts sufficient to constitute a cause of action.

“California Business and Professions Code Sections 17000, et seq., and 17200, et seq., states [sic] that unfair competition shall mean and include unlawful, unfair or fraudulent business practices. . . . A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 618–19. “By proscribing ‘any unlawful’ business act or practice, the UCL “borrows” rules set out in other laws and makes violations of those rules independently actionable. [Citation.] However, a practice may violate the UCL even if it is not prohibited by another statute.” Los Angeles Memorial Coliseum Com. v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 835.

The same facts that were alleged to support the first cause of action are set forth to support the second cause of action. However, as noted above, Cross-Complainant has failed to set forth the requisite particularized facts to demonstrate that Cross-Defendant engaged in unlawful, unfair, or fraudulent conduct.

Thus, the demurrer to the second cause of action is sustained with 20 days leave to amend.

Cross-Defendant is ordered to give notice of this ruling.

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