Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 15:20:52 (UTC).

WHITE WATER FUNDING LLC ET AL VS TVD LLC ET AL

Case Summary

On 09/19/2017 WHITE WATER FUNDING LLC filed a Contract - Other Contract lawsuit against TVD 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 DALILA CORRAL LYONS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6261

  • Filing Date:

    09/19/2017

  • 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

Presiding Judge

DALILA CORRAL LYONS

 

Party Details

Plaintiffs, Defendants, Petitioners and Respondents

SULLIVAN EQUITY PARTNERS LLC

WHITE WATER FUNDING LLC

DGADE OF DELAWARE LLC

Defendants, Respondents and Cross Plaintiffs

TVD LLC

SULLIVAN EQUITY PARTNERS LLC

SHAKIB SAM

DOES 1 TO 50

Plaintiffs, Petitioners and Cross Defendants

WHITE WATER FUNDING LLC

DGADE OF DELAWARE LLC

TRIFISH LLC

NAMVAR MOUSA

NAMVAR HOOSHANG

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

DYE PAUL T. ESQ.

Defendant and Respondent Attorneys

ROXBOROUGH POMERANCE NYE & ADREANI LLP

SALSIG RYAN R.

Cross Defendant Attorneys

DYE PAUL

DYE PAUL TAYLOR ESQ.

 

Court Documents

Unknown

1/22/2018: Unknown

Unknown

1/26/2018: Unknown

NOTICE RE: CONTINUANCE OF HEARING

1/29/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE OF COURT ORDER

4/17/2018: NOTICE OF COURT ORDER

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TVD, LLC AND SAM SHAKIB'S MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

9/21/2018: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TVD, LLC AND SAM SHAKIB'S MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

TVD, LLC AND SAM SHAKIB'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPIAINT

9/21/2018: TVD, LLC AND SAM SHAKIB'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPIAINT

Minute Order

10/22/2018: Minute Order

Other -

10/22/2018: Other -

Summons

10/25/2018: Summons

Notice and Acknowledgment of Receipt

11/13/2018: Notice and Acknowledgment of Receipt

Reply

1/22/2019: Reply

Minute Order

1/31/2019: Minute Order

Notice of Change of Address or Other Contact Information

3/22/2019: Notice of Change of Address or Other Contact Information

Stipulation and Order

6/13/2019: Stipulation and Order

NOTICE OF POSTING JURY FEES

12/22/2017: NOTICE OF POSTING JURY FEES

FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT; BREACH OF FIDUCIARY DUTY; BREACH OF GUARANTY

12/22/2017: FIRST AMENDED COMPLAINT FOR BREACH OF CONTRACT; BREACH OF FIDUCIARY DUTY; BREACH OF GUARANTY

NOTICE OF CASE MANAGEMENT CONFERENCE

10/31/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

Unknown

9/29/2017: Unknown

48 More Documents Available

 

Docket Entries

  • 06/14/2019
  • at 3:00 PM in Department 20, Dalila Corral Lyons, Presiding; Non-Appearance Case Review (of Plaintiffs' Status Report re Settlement) - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 06/13/2019
  • Stipulation and Order (to file Amended Answer to Cross-Complaint); Filed by Dgade of Delaware, LLC (Cross-Defendant); White Water Funding LLC (Cross-Defendant); Trifish LLC, (Cross-Defendant) et al.

    Read MoreRead Less
  • 06/11/2019
  • Status Report; Filed by White Water Funding, LLC (Plaintiff); Dgade of Delaware, LLC (Plaintiff); Sullivan Equity Partners, LLC (Plaintiff) et al.

    Read MoreRead Less
  • 04/16/2019
  • Notice (OF DATE CHANGES FOR PLAINTIFFS' STATUS REPORT RE SETTLEMENT AND STATUS CONFERENCE RE: SETTLEMENT); Filed by White Water Funding, LLC (Plaintiff); Dgade of Delaware, LLC (Plaintiff)

    Read MoreRead Less
  • 04/09/2019
  • at 1:27 PM in Department 20, Dalila Corral Lyons, Presiding; Court Order

    Read MoreRead Less
  • 04/09/2019
  • Certificate of Mailing for (Minute Order (COURT ORDER - REGARDING CONTINUANCE OF HEARINGS:) of 04/09/2019); Filed by Clerk

    Read MoreRead Less
  • 04/09/2019
  • Minute Order ( (COURT ORDER - REGARDING CONTINUANCE OF HEARINGS:)); Filed by Clerk

    Read MoreRead Less
  • 03/26/2019
  • at 08:30 AM in Department 20, Dalila Corral Lyons, Presiding; Hearing on Ex Parte Application (TO CONTINUE TRIAL DATE AND FINAL STATUS CONFERENCE PURSUANT TO STIPULATION) - Held - Motion Granted

    Read MoreRead Less
  • 03/26/2019
  • Minute Order ( (Hearing on Ex Parte Application TO CONTINUE TRIAL DATE AND FI...)); Filed by Clerk

    Read MoreRead Less
  • 03/26/2019
  • Ex Parte Application (Joint to Continue Trial Date and Final Status Conference Pursuant to Stipulation); Filed by White Water Funding, LLC (Plaintiff); Dgade of Delaware, LLC (Plaintiff)

    Read MoreRead Less
87 More Docket Entries
  • 11/03/2017
  • NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS TO PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

    Read MoreRead Less
  • 10/31/2017
  • ORDER TO SHOW CAUSE HEARING

    Read MoreRead Less
  • 10/31/2017
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 10/31/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 10/31/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

    Read MoreRead Less
  • 09/29/2017
  • Notice of Change of Address

    Read MoreRead Less
  • 09/29/2017
  • Notice of Change of Address or Other Contact Information; Filed by White Water Funding, LLC (Plaintiff); Dgade of Delaware, LLC (Plaintiff); Sullivan Equity Partners, LLC (Plaintiff)

    Read MoreRead Less
  • 09/19/2017
  • COMPLAINT FOR BREACH OF CONTRACT, BREACH OF FIDUCIARY DUTY, BREACH OF GUARANTY, AND RESCISSION

    Read MoreRead Less
  • 09/19/2017
  • Complaint; Filed by White Water Funding, LLC (Plaintiff); Dgade of Delaware, LLC (Plaintiff); Sullivan Equity Partners, LLC (Plaintiff)

    Read MoreRead Less
  • 09/19/2017
  • SUMMONS

    Read MoreRead Less

Tentative Rulings

Case Number: BC676261    Hearing Date: April 22, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20


Hearing Date: Thursday, April 22, 2021

Case Name: White Water Funding LLC, et al. v. TVD LLC, et al.

Case No.: BC676261

Motion: Summary Judgment

Moving Party: Defendants TVD LLC and Sam Shakib.

Responding Party: Plaintiffs Dgade and White Water

Notice: OK


Ruling: The Motion for Summary Judgment is DENIED.

Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


BACKGROUND

On September 19, 2017, Plaintiffs White Water Funding, LLC (“White Water”) and Dgade of Delaware, LLC (“Dgade”) filed a Complaint against TVD LLC, Sam Shakib, and unnamed Does stating claims for breach of contract, breach of fiduciary duty, breach of guaranty, and rescission derivatively on behalf of Sullivan Equity Partners, LLC (“Sullivan”).

On October 22, 2018, Cross-Complainants TVD and Shakib filed a Cross-Complaint against Cross-Defendants Dgade, White Water, Trifish LLC, Hooshang “Sean” Namvar, Mousa Namvar, and Roes 1-50, stating claims for negligence and breach of oral contract. The negligence claim is stated against all Cross-Defendants, but the breach claim is stated by Shakib against Sean Namvar only.

On December 9, 2019, Cross-Defendants Trifish, White Water and Sean Namvar (“Sean” hereafter) filed a Motion for Summary Adjudication of TVD’s crossclaim for negligence and crossclaim against Sean for breach of oral contract. Cross-Defendants Dgade and Mousa Namvar concurrently filed a Motion for Summary Adjudication of TVD’s crossclaim for negligence.

On June 17, 2020, White Water and Dgade filed a Second Amended Complaint (“SAC”) against TVD and Shakib, stating causes of action for breach of contract, breach of fiduciary duty, and breach of guaranty and alleging Shakib is the alter ego of TVD.

On December 11, 2020, the Court granted the Motion for Summary Adjudication filed by Sean, Trifish, and White Water. The Court also granted the Motion for Summary Adjudication filed by Dgade and Mousa.

On January 19, 2021, the Court entered judgment in favor of Sean, Trifish, and White Water on the Cross-Complaint and entered separate judgment in favor of Dgade and Mousa on the Cross-Complaint.

On January 21, 2021, TVD and Shakib filed a Motion for Summary Judgment of the claims asserted by Dgade and White Water in the SAC.

On March 23, 2021, Dgade and White Water filed an Opposition to the Motion for Summary Judgment filed by TVD and Shakib.

On April 2, 2021, TVD and Shakib filed a Reply in support of summary judgment.

On April 8, 2021, the Court continued the hearing on this Motion to April 15, 2021.

 

DISCUSSION

Applicable Law

Summary judgment is proper when the moving party is entitled to judgment as a matter of law and there are no triable issues of material fact. (CCP sec. 473c(c).) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The moving party must satisfy the initial burden of proof by presenting facts to negate or establish an essential element of each claim at issue. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met its burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material fact exists. (CCP § 437c(o)(2).) “Materiality is measured by the law applicable to the legal theories put in issue by the complaint [or petition].” (Panattoni v. Superior Court (1988) 203 Cal.App.3d 1092, 1094.) Factual issues are immaterial if they are “outside the scope of the pleadings.” (AARTS Production, Inc. v. Crocker National Bank (1986) 176 Cal.App.3d 1601, 1065.)

Application to Facts

Judicial Notice

TVD and Shakib request the Court take judicial notice of “Title 6, Delaware Code Sec. 18-1101.” The Request for Judicial Notice is unopposed. The Court takes judicial notice of this statute. (Evid. Code sec. 452(e).)

Dgade and White Water request the Court take judicial notice of the following: (1) TVD and Shakib's Cross-Complaint in this action, (2) the December 11, 2020 minute order granting summary judgment in favor of Trifish, Mousa Namvar, and Sean Namvar on the Cross-Complaint, (3) the judgment in favor of Sean Namvar and Trifish, (4) the judgment in favor of Mousa Namvar, (5) the January 19, 2021 minute order indicating the foregoing judgments were signed and filed, (6) a copy of a Notice of Appeal filed in Sullivan Equity Partners, LLC v. City of Los Angeles (LASC case no. BS169541), and (7) a copy of an opinion by the Delaware Court of Chancery in Auriga Capital Corp. v. Gatz Props., LLC (Del. Ch. 2012) 40 A.3d 839. The Request for Judicial Notice is unopposed. The Court takes judicial notice of the foregoing court records and acts. (Evid. Code sec. 452(d).)

Evidentiary Objections

The Court previously continued this Motion to address evidentiary objections. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255 (“a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections.”)) The Court now turns to those objections.

Dgade and White Water filed fifty-two (52) evidentiary objections to the Declaration of Sam Shakib and one objection to the Declaration of Travis Cullen. At the outset, the Court rejects the evidentiary objections based on Shakib’s credibility. (CCP sec. 437c(e) (“summary judgment shall not be denied on grounds of credibility . . .”); see Jordan v. Canale Foods, Inc. (1971) 15 Cal.App.3d 634, 638 (“Summary judgments have been reversed where the record indicated both a question of the credibility of the moving party's witnesses, and a basis for inferring from the record that the opposing party might prevail at a trial on the merits. . . . [T]he counteraffidavits make no showing that plaintiff could prevail at a trial either by attacking credibility or by any other means.”))

Objection 1 (relevance) is OVERRULED.

Objection 2 (relevance, lack of personal knowledge, and lack of foundation) is OVERRULED. There is no reason to think Shakib lacks personal knowledge of these facts, which are relevant as context.

Objection 3 (relevance, lack of personal knowledge, and the secondary evidence rule) is OVERRULED. The subject allegation does not describe the contents of Sean’s application, so the secondary evidence rule is irrelevant. Shakib has adequate personal knowledge and the allegation is relevant, if only as context or background.

Objection 4 (relevance, personal knowledge, and secondary evidence) is OVERRULED for the same reasons set forth above re: Objection 3.

Objection 5 (relevance, personal knowledge, and secondary evidence) is SUSTAINED. It is irrelevant who prepared the application for purposes of this motion, even if the filing of the application is relevant background.

Objection 6 (vague, improper lay opinion, personal knowledge, and secondary evidence) is OVERRULED; the references to the tree permits are not excessively vague and do not constitute improper lay opinion concerning their expiration, as this is not a matter requiring expertise. While Shakib alleges the permits “were set to expire fairly soon,” no particular dates are alleged to suggest this is inconsistent with the actual expiration date of the permit. Further, Shakib provided the permit, so the secondary evidence rule objection misses the mark. (Shakib Decl., Exh. C.)

Objection 7 (relevance, hearsay) is SUSTAINED. The allegation that Sean and Shakib “verbally agreed [to] split any litigation costs that came from neighborhood challenges” constitutes inadmissible hearsay.

Objection 8 (relevance, improper lay opinion, improper expert opinion, speculative, lack of personal knowledge) is SUSTAINED. There is nothing in Shakib’s Declaration indicating he has knowledge of the process of obtaining a permit to cut down protected trees; the reference to “experience” is vague and does not indicate Shakib has a basis to testify on this point. Moreover, it is unclear that the difficulty of obtaining permits is relevant here where a permit was in fact obtained and subsequently violated by cutting unpermitted trees.

Objection 9 is SUSTAINED IN PART as to Shakib’s allegation that Plus “remains obligated to comply with its contract when construction resumes,” which is a legal conclusion, but OVERRULES the objection as to Shakib’s allegation that Plus was paid pursuant to the contract.

Objection 10 is OVERRULED; as discussed further below, it is not significant from a legal perspective whether TVD hired Gonzales or whether TVD hired Plus which hired MDK which hired Gonzales; in either case, the issue is TVD’s liability for errors of its subcontractors. The Court was unpersuaded that this testimony contradicts previous testimony, given that Shakib has also previously testified that MDK hired Gonzales upon his recommendation. (Plaintiffs' COE, Exh. A (Shakib Depo. I, p. 36:16-38:11 (testifying that he "introduced Ricardo [Gonzales] to MDK" and "MDK hired Ricardo and sent him in"))

Objection 11 (relevance, hearsay, personal knowledge, speculation) is OVERRULED. The allegation is not entirely conclusory as to the RWQCB’s conduct and does not constitute inadmissible hearsay, as no out-of-court statements are alleged.

Objection 12 (relevance, hearsay, secondary evidence) is OVERRULED. Sean’s application to the RWQCB is clearly not “the pertinent writing,” as it is not even referenced. The allegation that “local residents . . . contacted City Officials” is not inadmissible hearsay, as it does not specifically allege any out-of-court statement and merely describes the cumulative effect and purpose of these calls.

Objection 13 is SUSTAINED insofar as Shakib alleges Sullivan’s position on substantive points without support for doing so.

Objection 14 (personal knowledge, lay opinion, speculation, secondary evidence rule) is OVERRULED. The allegation is not speculative or conclusory and Shakib has sufficient personal knowledge to render lay opinion based on his interactions with the RWQCB. The secondary evidence rule is inapplicable where Shakib at no point alleges the “years of . . . negotiations with the RWQCB” were in writing or attempts to describe any writing.

Objection 15 (secondary evidence rule) is SUSTAINED. Shakib purely describes the contents of the October 29, 2014 letter from the RWQCB, which is not permitted. (Evid. Code sec. 1523.)

Objection 16 (relevance, hearsay) is OVERRULED. Shakib merely alleges that out-of-court discussions took place, but does not describe their contents or attribute any specific statements to particular persons. The Court was unpersuaded that the allegation is entirely irrelevant.

Objection 17 (relevance, secondary evidence, personal knowledge) is OVERRULED—the mere reference to Sean submitting an application to the RWQCB is not objectionable as irrelevant or violative of the secondary evidence rule, as this is relevant background (indeed, Dgade and White Water object to a sentence fragment!) and does not allege the contents of any writing.

Objection 18 (lack of personal knowledge, lack of authentication, contradicts prior sworn testimony) is OVERRULED. Nothing in Shakib’s testimony regarding Sullivan’s submission of a revised jurisdictional delineation contradicts his previous testimony. No basis was given for the authentication objection.

Objection 19 (lack of personal knowledge, lack of authentication) is OVERRULED. No basis is given for either objection.

Objections 20, 21, 22, 23, 24, and 25 (contradicts prior sworn testimony) are OVERRULED as the subject passages are simply not inconsistent with the prior testimony cited. At most, the details offered are in tension with Shakib’s testimony that he left the water permit issues to Sean and did not focus on them much; the allegation of details does not “contradict” that prior testimony, though. The remaining bases for objection were unpersuasive and are overruled.

Objection 26 is SUSTAINED, as Shakib merely alleges the legal conclusion that he and TVD did not act wrongfully or recklessly. Facts rather than conclusions must be alleged, and where facts are alleged, allegations of mere legal conclusions are surplusage.

Objection 27 is OVERRULED. Shakib’s personal view that the Project would likely have been completed but for the Board’s intervention is permissible lay opinion.

Objection 28 is SUSTAINED. The alleged verbal agreement with Sean is unsubstantiated and constitutes impermissible hearsay; moreover, it is unclear how this agreement is relevant.

Objection 29 is OVERRULED. No inconsistent deposition testimony was identified and Shakib does not lack personal knowledge as to preclude his testimony merely because he did not personally witness the tree-cutting as it happened; Shakib clearly has personal knowledge of the aftermath of the cutting. The references to “accident” and “mistake” are not expressions of impermissible opinion.

Objection 30 is OVERRULED. The presentation of a chronology and practical inference that earlier events caused later events is permissible lay opinion where supported by factual allegations, as is the case here. There is no inadmissible hearsay as no out-of-court statements are alleged. The Court disagrees that the true cause of the Board’s investigation is irrelevant.

Objection 31 is OVERRULED. Despite the more inflammatory language describing the City’s decision as “draconian” and “completely out of line,” the expressions of opinion in this allegation are supported in context by Shakib’s preceding factual allegations regarding the tree-cutting and do not constitute improper lay or expert testimony.

Objection 32 is OVERRULED. The use of the word “therefore” is a stylistic matter not subject to evidentiary objection here. Its striking would not materially alter the factual content of the allegation.

Objection 33 is OVERRULED; Shakib’s conclusions regarding the effect of the Los Angeles Superior Court’s decision (pending appeal) are supported by direct reference to the Writ of Mandate, and no inconsistency has been shown between the Writ and Shakib’s allegation.

Objection 34 is OVERRULED.

Objection 35 is SUSTAINED IN PART on the same grounds as Objection 7 above insofar as Shakib refers to an oral agreement with Sean to share litigation costs. The Objection is otherwise OVERRULED, as the efforts to obtain a writ of mandate reversing the City’s decision is clearly relevant to whether TVD has made reasonable efforts to progress the Project after revocation of the permits.

Objection 36 is OVERRULED. Plaintiffs argue Shakib’s allegation that he acted in Sullivan’s best interests contradicts his prior testimony that the Project could not be completed and trees were wrongfully removed. (Shakib Decl., para. 23, 25.) This objection is overruled—at most, this testimony is in tension insofar as the failure to complete the project and wrongful removal of trees may not have been in Sullivan’s best interests, but there is no contradiction in the testimony that Shakib perceived himself as acting in Sullivan’s best interests. Similarly, the Court declines to grant an evidentiary objection on the grounds that this testimony conflicts with extrinsic evidence (letters from the City noting failures to comply with best management practices) as that is not the purpose of evidentiary objections.

Objections 37 and 38 are OVERRULED as Shakib has personal knowledge of the mindset of Gonzales and MDK in cutting down the trees insofar as he was closely involved in arranging from them to do so.

Objection 39 is SUSTAINED as an unsupported conclusion regarding the causation of the City’s letter requiring an amended certification.

Objections 40 and 41 are OVERRULED as TVD did indeed obtain a writ of mandate “to overturn the City’s decision”; the pendency of an appeal does not negate the fact that TVD successfully obtained the writ. The secondary evidence rule objections are rejected as Shakib provided the relevant ruling. (Shakib Decl., Exh. D.)

Objection 42 (relevance, hearsay) is SUSTAINED on the same grounds as Objection 7 above. The allegation that Sean and Shakib verbally agreed to split litigation costs that came from neighborhood challenges constitutes inadmissible hearsay.

Objection 43 is OVERRULED; generally, the argument that an allegation is factually erroneous is not a proper evidentiary objection, and here Plaintiffs simply argue TVD likely would not have completed the project in time even if the permits were valid. That argument is not properly resolved by evidentiary objection. The testimony cited did not appear to constitute expert testimony.

Objection 44 (hearsay, secondary evidence rule) is OVERRULED. Shakib alleges the crux of Dgade and White Water’s misappropriation claim in their verified court pleadings (SAC, para. 40-42); the objections are facially frivolous.

Objection 45 (legal conclusion, improper argument) is OVERRULED as it is a conclusion supported by the factual allegations of the following paragraph.

Objection 46 (lack of personal knowledge) is OVERRULED.

Objection 47 (lack of personal knowledge, speculation) is OVERRULED.

Objection 48 (lack of personal knowledge, secondary evidence rule) is OVERRULED. While the allegation is somewhat conclusory as to Plus’s obligations under the contract, Shakib does not allege any particular obligations (and so does not allege the contents of the contract) and Shakib clearly has personal knowledge of whether Plus indicated it intends to cease performing based on his interactions with Plus in the project.

Objection 49 (legal conclusion, improper argument) is OVERRULED. Dgade and White Water object to a sentence fragment out of context as conclusory; Shakib’s statement is amply supported by the subsequent factual allegations and is not conclusory or argumentative.

Objection 50 is OVERRULED. Shakib’s allegation that he was “[a]t all times [in] constant communication” with Plaintiffs does not contradict his prior testimony that he never provided written reports. Suffice to say not all “communication” is written. Hearsay is not alleged. While the Court agrees that oral communications do not satisfy the requirement of written reports, this does not mean the oral communications are irrelevant, at minimum as context for the failure to provide written reports.

Objection 51, however, is SUSTAINED as conclusory regarding Plaintiffs’ full awareness of developments and positions; the bare allegation of constant communication does not support this allegation.

Objection 52 is OVERRULED as this is merely Shakib’s expression of his view of the status quo, claiming there were no further material developments than those provided. While this is conclusory in some sense, it is literally the conclusion of Shakib’s Declaration, the sum of the factual allegations before it summarizing the material developments of the case.  

Objection 53 (lack of personal knowledge, hearsay) is OVERRULED. It is unclear to the Court how the claimed grounds for objection could apply to the designated allegation by Cullen.

Additionally, TVD and Shakib filed several evidentiary objections to the Declaration of Harold J. Bissner III, generally contending his testimony is improper expert testimony (Evid. Code sec. 720), irrelevant (Evid. Code sec. 350-352), and lacking personal knowledge and foundation or presenting hearsay. TVD and Shakib argue the Declaration misses the mark because they are not contractors—Plus, MDK, and Gonzales are—and Mr. Bissner is unqualified to testify regarding standards of care for a corporate officer. The Court is unpersuaded—in assessing whether the procedure employed by TVD and Shakib was “rational” and/or “in good faith” under the business judgment rule, the Court necessarily can assess whether the procedure significantly deviated from standards of care (e.g. by hiring someone substantially underqualified or by artificially rushing the tree-cutting operation). The Court discusses this further below but concludes that Mr. Bissner’s testimony concerning standards of care for contractors is not irrelevant here.

Objection 1 (relevance) is OVERRULED. Mr. Bissner alleges his qualifications as an expert; this is relevant. (Bissner Decl., para. 3.) Objection 2 (relevance, improper expert testimony) is also overruled, as Mr. Bissner continues to allege his qualifications and has not yet offered any expert testimony. (Bissner Decl., para. 4.) Objections 3, 4, 5, and 6 are overruled on the same ground as Objection 2, as Mr. Bissner continues to allege his experience in the relevant field. (Bissner Decl., para. 5-8.)

Objections 7 and 8 (relevance, improper expert testimony, lack of foundation, lack of personal knowledge, hearsay) are OVERRULED. (Bissner Decl., para. 9-10.) Mr. Bissner merely sets forth the facts relied upon to support his analysis. (See People v. Gardeley (1996) 14 Cal.4th 605, 618 (“Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Cites.] Of course, any material that forms the basis of an expert's opinion testimony must be reliable.”); Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923 (“Like a house built on sand, the expert's opinion is no better than the facts on which it is based.”)) There is no argument that Mr. Bissner relied upon inadmissible material that was unreasonable to rely upon in reaching his conclusions.

Remaining Objections 9 through 16 are OVERRULED. Mr. Bissner has laid adequate foundation to testify on this point as an expert in contracting standards. The Court was unpersuaded that the expert testimony offered is improper, irrelevant, purely conclusory, or based upon improper underlying materials. (Bissner Decl., para. 12-18.)

Breach of Contract and Breach of Fiduciary Duty

TVD and Shakib argue they are not liable to Plaintiffs because they did not “materially” breach the Operating Agreement or any fiduciary duties. It is undisputed that, under the Operating Agreement, TVD “shall not be liable to a Member or the Company for any action or inaction other than for its Bad Acts and/or its material breach of this Agreement.” (UMF 46.) Plaintiffs identify five purported “Bad Acts” under the Operating Agreement, which defines a “Bad Act” as a “party's fraudulent, reckless, willful or intentional misconduct, gross negligence or for its dishonesty, bad faith, commission of any crime, misappropriation of funds or other intentional wrongful act or intentional wrongful omission.” (UMF 47; see SAC, para. 34 (retention of subcontractor who cut down protected trees), 38 (failure to comply with Regional Water Quality Control Board requirements), 41-42 (misappropriation of funds to pay construction company and architect), 43 (failed to sue Plus), 45-46 (failure to keep apprised).) Plaintiffs argue this conduct also materially breached the Operating Agreement. (See Opposition, p. 3 (arguing “Plaintiffs need only show a material breach to defeat the Motion…”))

On the whole, the underlying events are largely not in dispute—the parties merely disagree over whether those facts constitute a material breach of, or “Bad Act” under, the Operating Agreement or constitute a breach of fiduciary duties. (See UMF 12 and AUMF 126-134 (undisputed that Plus was retained by Sullivan as a subcontractor and paid for services, but disputed whether the payments were warranted under the contract and disputed whether TVD needed to sue Plus); UMF 14 and AUMF 93-94 (undisputed that protected trees were removed by Sullivan’s subcontractor; disputed whether this was Gonzales or MDK and disputed whether the removal was mistaken or deliberate); UMF 32 (undisputed that the Los Angeles Superior Court issued a writ of mandate “directing the City to set aside [its] administrative decision and sanction,” but the significance pending appeal is disputed)) “Whether a breach is so material as to constitute cause for the injured party to terminate a contract is ordinarily a question for the trier of fact.” (Whitney Inv. Co. v. Westview Dev. Co. (1969) 273 Cal.App.2d 594, 601.)

First, TVD argues it did not materially breach the Operating Agreement even if it failed to report because, “given the state of the project and the fact that it has been stalled since October 2014, any failure to report adequately has not caused Plaintiffs any damages.” Additionally, Shakib alleges TVD provided Dgade and White Water oral updates concerning the Project and that they were otherwise “well aware of the Water Certification issue” anyway. However, Shakib’s alleged oral reports did not comply with the requirements for written reporting in the Operating Agreement. (Plaintiffs' COE, Exh. A (Shakib Depo. I, p. 284:11-14); Exh. B (Shakib Depo. II, p. 282:25-283:15 (“Q. Let me ask you about reporting. Have you, as the principal of TVD, provided written reports to the partners, the members, White Water and Dgade? A. I didn't need to because we were -- the job went on for six hours. … Q. The answer is you have not provided written reports. Correct? A. There was no need to.”))

TVD cannot obtain summary judgment merely by claiming the failure to comply with its contractual obligations did not damage Plaintiffs. It is not a plaintiff’s burden on summary judgment to present evidence to support their claims unless and until the defendant negates an element of the claim; at that time, the plaintiff must present evidence raising a triable issue of fact. TVD has not shown Plaintiffs were undamaged by the failure to comply with written reporting requirements, and so has not “negated” Plaintiffs’ damages. Rather, the materiality of the breach of the written reporting requirements is a question for the trier of fact.

Second, TVD argues it did not breach the contract by hiring the tree-cutting subcontractors. Specifically, TVD claims it hired subcontractor Plus, which then hired subcontractor MDK, which then hired subcontractor Gonzales to perform the tree-cutting. Under the Operating Agreement, TVD had “sole discretion to award contracts related to the Grading Work . . . to affiliates such as Plus.” (See UMF 44 (TVD “shall have the sole and absolute discretion to determine the manner of completing the Grading Project and the Subterranean Project and to award such contracts as may be determined in [TVD's] sole and absolute discretion.”)) Plaintiffs argue TVD did not in fact go through this chain of subcontractors, arguing TVD hired Gonzales directly on behalf of Sullivan based on Shakib’s deposition testimony in proceedings before the City. In response, TVD argues it does not matter which is true because it is free of liability so long as the “process employed . . . was either rational or employed in a good faith effort to advance corporate interests.”[1] (United Artists Theatre Co. v. Walton (3rd Cir. 2003) 315 F.3d 217, 232 (interpreting Delaware’s “director-protective business judgment rule.”))

The Court agrees that under Delaware’s business judgment rule, it does not matter whether TVD hired Gonzales directly or through a chain of subcontractors, such that the factual dispute on that point does not preclude summary judgment. But TVD did not establish that its process was “either rational or employed in a good faith effort to advance corporate interests.” The unrebutted expert testimony of Plaintiffs’ expert creates a triable issue of fact as to the rationality of TVD’s approach. Moreover, while TVD has “sole and absolute discretion to determine the manner of completing the Grading Project” and award contracts to effectuate that, this discretion clearly must be construed consistently with the remaining provisions of the Operating Agreement requiring TVD act reasonably and prudently in completing the Project, as well as with the business judgment rule requiring a good faith effort to advance corporate interests. (See UMF 41-42.) Thus, TVD has not established entitlement to judgment as a matter of law on the grounds that its hiring of Gonzales was not a material breach.

Third, TVD argues its failure to sue Plus for hiring Gonzales did not materially breach the Operating Agreement because it was not expressly required to sue Plus. TVD also argues there is no evidence its payments to Plus after the Project stopped were wrongful or misappropriated, as Plus remains obligated to perform under the contract. The latter argument again improperly reverses the burden—it is not Plaintiffs’ burden to affirmatively establish each element of their claims in response to a Motion for Summary Judgment, but TVD’s burden to affirmatively negate elements of claims. TVD has offered no explanation for paying over $300,000 to Plus during a period where Plus undisputedly performed no work on the Project. While the Operating Agreement gives TVD discretion to award contracts to Plus, again, that discretion must be exercised reasonably and/or in a good faith effort to advance corporate interests. TVD did not offer any evidence that these payments to Plus—apparently for nothing where TVD has offered no explanation—were reasonable or in good faith.

As to the former argument, the Court finds that TVD made a prima facie case in its moving papers that nothing in the Operating Agreement required it to sue Plus because TVD was affirmatively granted significant discretion in handling the contracts in connection with the Project. In response, Plaintiffs explained why TVD would be required to sue, explaining that Shakib has a conflict of interest in this regard, being the owner and President of Plus. (Opposition, p. 14.) Shakib testified that “in one hand, [he] owned Plus” and “[i]n the other hand, [he] owned the land” Plus was working on; so he “was paying [his] brothers to do the work” on his land for his company, “[b]ut the work wasn’t happening anyway because the whole thing was falling apart.” (Plaintiffs’ COE, Exh. B (Shakib Depo. II, p. 443:6-444:6.) On those facts, when pressed to sue Plus for its work on the land, Shakib clearly had interests adverse to Sullivan and TVD; a decision adverse to Plus in favor of Sullivan would injure him and his brother insofar as they owned Plus, while a decision in favor of Plus (or a decision not to sue) would disadvantage Sullivan. This conflict of interest raises a triable issue of fact as to whether TVD’s refusal to sue Plus was made in “a good faith effort to advance corporate interests.”

Fourth, TVD argues its failure to obtain the necessary permits to resume the Project thus far did not materially breach the Operating Agreement because it had no obligation to complete the Project by a particular time and because the neighborhood interference constituted a force majeure event. (See UMF 41 (“the Developer Member cannot guaranty any time of completion”); UMF 43 (force majeure events include “neighborhood intervention, inability to obtain permits, [and] environmental regulation and compliance”)) Plaintiffs argue TVD cannot invoke force majeure because the “heedlessly sloppy and illegal way in which TVD performed the tree cutting was the catalyst for the further review of the Project Certification by the RWQCB, which resulted in the second Notice of Violation.” (Opposition, p. 15.)

The evidence provided is sufficient to create a triable issue of material fact as to whether TVD’s conduct precipitated the revocation of permits and cessation of the Project so as to preclude invocation of force majeure. First, there is a triable issue of fact as to whether TVD’s failure to visibly adhere to best management practices prompted interference by the City on issues of “environmental compliance” and ability to obtain permits. (See, e.g., Shakib Decl., Exh. E (preliminary letter from RWQCB dated October 7, 2014 describing visible failures to adhere to best management practices); Exh. F (letter from RWQCB three weeks later requiring a new delineation); para. 15 (alleging the second letter “essentially ordered us to shut down the Project until we could provide an acceptable ‘amended’ certification”)) The temporal proximity permits a reasonable inference that the investigation reflected in the second letter was precipitated by the first letter. Second, there is a triable issue of fact as to whether TVD’s failure to obtain a licensed tree cutter, instead relying on unspecialized persons Shakib had prior experience with, precipitated neighborhood intervention. (Plaintiffs’ COE, Exh. B (Shakib Depo. II, p. 461:14-462:12 (agreeing that “close scrutiny” by neighbors required that Shakib be “especially careful in everything [he] did” because “the neighbors would likely use [any error] against [him] to slow or stop the project”)); Plaintiffs' COE, Exh. A (Shakib Depo. I, p. 180:8-16 (alleging he "had to put some group together" to cut the trees because he "was under the impression at that time that the three cutting [permit] would run out"); p. 36:16-38:11 (testifying that he "introduced Ricardo [Gonzales] to MDK" and "MDK hired Ricardo and sent him in"; p. 188:14-28 (testifying that he chose MDK because "[t]he guy has done work for me and he was okay," albeit not tree-cutting work"); see generally Bissner Decl. (explaining that the procedure employed by TVD, Plus, MDK and Gonzales was below the industry standard of care and unreasonable in certain respects.)) The rushed tree-cutting operation, which resulted in the cutting-down of a protected tree, may have prompted interference by the neighborhood; the evidence supports this inference even disregarding the Bissner Declaration (as TVD urges). Under these circumstances, force majeure does not bar the claims as a matter of law because the events were not necessarily beyond TVD’s reasonable control.

For the foregoing reasons, the Court finds triable issues of fact as to whether TVD’s decisions were protected by the business judgment rule or force majeure exception. If these decisions were unprotected, a reasonable trier of fact could find TVD’s conduct constituted a material breach of TVD’s obligations to proceed reasonably towards completion of the Project and to comply with performance standards set out in the Operating Agreement. Further, as there are triable issues of fact regarding whether TVD materially breached the Operating Agreement, Shakib’s request for summary adjudication of the breach of guaranty claim against him must be denied as well. Shakib’s liability as a guarantor is derivative of TVD’s liability.

CONCLUSION

The Motion for Summary Judgment is DENIED.

Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


[1] TVD also argues its decisions are protected under Section 8.4 of the Operating Agreement, providing that the “Managing Members may consult with counsel and accountants in respect of Company affairs and be fully protected and justified in any action or inaction that is taken in accordance with the advice or opinion of such counsel or accountants.” (UMF 46.) The Court does not consider this argument further, however, because TVD has adduced no evidence any of the subject decisions were “in accordance with the advice or opinion of . . . counsel or accountants.”

Case Number: BC676261    Hearing Date: April 8, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20


Hearing Date: Thursday, April 8, 2021

Case Name: White Water Funding LLC, et al. v. TVD LLC, et al.

Case No.: BC676261

Motion: Summary Judgment

Moving Party: Defendants TVD LLC and Sam Shakib.

Responding Party: Plaintiffs Dgade and White Water

Notice: OK


Ruling: The Motion is CONTINUED to April 15, 2021 at 8:30 a.m. in Department 20.


BACKGROUND

On September 19, 2017, Plaintiffs White Water Funding, LLC (“White Water”) and Dgade of Delaware, LLC (“Dgade”) filed a Complaint against TVD LLC, Sam Shakib, and unnamed Does stating claims for breach of contract, breach of fiduciary duty, breach of guaranty, and rescission derivatively on behalf of Sullivan Equity Partners, LLC (“Sullivan”).

On October 22, 2018, Cross-Complainants TVD and Shakib filed a Cross-Complaint against Cross-Defendants Dgade, White Water, Trifish LLC, Hooshang “Sean” Namvar, Mousa Namvar, and Roes 1-50, stating claims for negligence and breach of oral contract. The negligence claim is stated against all Cross-Defendants, but the breach claim is stated by Shakib against Sean Namvar only.

On December 9, 2019, Cross-Defendants Trifish, White Water and Sean Namvar (“Sean” hereafter) filed a Motion for Summary Adjudication of TVD’s crossclaim for negligence and crossclaim against Sean for breach of oral contract. Cross-Defendants Dgade and Mousa Namvar concurrently filed a Motion for Summary Adjudication of TVD’s crossclaim for negligence.

On June 17, 2020, White Water and Dgade filed a Second Amended Complaint (“SAC”) against TVD and Shakib, stating causes of action for breach of contract, breach of fiduciary duty, and breach of guaranty and alleging Shakib is the alter ego of TVD.

On December 11, 2020, the Court granted the Motion for Summary Adjudication filed by Sean, Trifish, and White Water. The Court also granted the Motion for Summary Adjudication filed by Dgade and Mousa.

On January 19, 2021, the Court entered judgment in favor of Sean, Trifish, and White Water on the Cross-Complaint and entered separate judgment in favor of Dgade and Mousa on the Cross-Complaint.

On January 21, 2021, TVD and Shakib filed a Motion for Summary Judgment of the claims asserted by Dgade and White Water in the SAC.

On March 23, 2021, Dgade and White Water filed an Opposition to the Motion for Summary Judgment filed by TVD and Shakib.

On April 2, 2021, TVD and Shakib filed a Reply in support of summary judgment.

 

DISCUSSION

The Court requires further time to adequately address the several evidentiary objections posed by Plaintiffs Dgade and White Water and Defendants TVD and Shakib, which are significant in determining whether triable issues of fact exist so as to preclude summary judgment. “Trial courts are often faced with ‘innumerable objections commonly thrown up by the parties as part of the all-out artillery exchange that summary judgment has become.’” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.) Plaintiffs filed fifty-two evidentiary objections to the Declaration of Sam Shakib while Defendants filed evidentiary objections to nearly every passage of the Declaration of Harold J. Bissner III, Plaintiffs’ construction expert. Further, both sides filed memoranda of points and authorities in support of their objections. But this is not an excuse to ignore evidentiary objections in proper form or to issue blanket rulings. (Id. at 533; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 857 (“the trial court abused its discretion by issuing a blanket ruling on Defendants' objections”); see Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255 (“ a trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections.”)) Therefore, the Motion for Summary Judgment is CONTINUED to April 15, 2021 at 8:30 a.m. in Department 20.

Case Number: BC676261    Hearing Date: December 10, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date:     Thursday, December 10, 2020

Case Name: White Water Funding LLC, et al. v. TVD LLC, et al.

Case No.: BC676261

Motion: Summary Judgment

Moving Party: Cross-Defendants Trifish et al.

Responding Party: Cross-Complainants TVD et al.

Notice: OK


Ruling: Dgade and Mousa’s Motion for Summary Adjudication is GRANTED as to the first cause of action.

Dgade and Mousa shall submit a proposed judgment within 20 days of this Ruling, as summary judgment has been granted as to the sole crossclaim against them.

Trifish, White Water and Sean’s Motion for Summary Adjudication is GRANTED as to the first and second causes of action.

Trifish, White Water, and Sean shall submit a proposed judgment within 20 days of this Ruling as summary judgment has been granted as to all crossclaims.

Cross-Defendants to give notice of the rulings on their respective Motions.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person.


BACKGROUND

On September 19, 2017, Plaintiffs White Water Funding, LLC (“White Water”) and Dgade of Delaware, LLC (“Dgade”) filed a Complaint against TVD LLC, Sam Shakib, and unnamed Does stating claims for breach of contract, breach of fiduciary duty, breach of guaranty, and rescission derivatively on behalf of Sullivan Equity Partners, LLC (“Sullivan”).

On October 22, 2018, Cross-Complainants TVD and Shakib filed a Cross-Complaint against Cross-Defendants Dgade, White Water, Trifish LLC, Hooshang “Sean” Namvar, Mousa Namvar, and Roes 1-50, stating claims for negligence and breach of oral contract. The negligence claim is stated against all Cross-Defendants, but the breach claim is stated by Shakib against Sean Namvar only.

On December 9, 2019, Cross-Defendants Trifish, White Water and Sean Namvar (“Sean” hereafter) filed a Motion for Summary Adjudication of TVD’s crossclaim for negligence and crossclaim against Sean for breach of oral contract. Cross-Defendants Dgade and Mousa Namvar (“Mousa” hereafter) [1] concurrently filed a Motion for Summary Adjudication of TVD’s crossclaim for negligence.

On November 30, 2020, TVD filed a Consolidated Opposition to both Motions.

On December 3, 2020, all Cross-Defendants filed a Consolidated Reply to the Opposition.

 

DISCUSSION

Applicable Law

Summary judgment is proper when the moving party is entitled to judgment as a matter of law and there are no triable issues of material fact. (CCP sec. 473c(c).) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The moving party must satisfy the initial burden of proof by presenting facts to negate or establish an essential element of each claim at issue. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met its burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material fact exists. (CCP § 437c(o)(2).) “Materiality is measured by the law applicable to the legal theories put in issue by the complaint [or petition].” (Panattoni v. Superior Court (1988) 203 Cal.App.3d 1092, 1094.) Factual issues are immaterial if they are “outside the scope of the pleadings.” (AARTS Production, Inc. v. Crocker National Bank (1986) 176 Cal.App.3d 1601, 1065.)

Application to Facts

Judicial Notice

The Court takes judicial notice, as requested by Cross-Defendants, of the September 19, 2017 Complaint, the October 22, 2018 Cross-Complaint, and the June 13, 2013 Stipulation to File Amended an Answer to the Cross-Complaint. These are court records subject to judicial notice. The Court further takes notice of records from the California Secretary of State regarding TVD, Sullivan, Dgade, Trifish, and White Water, as well as the Delaware Secretary of State’s records regarding Sullivan, Dgade, and White Water. These are subject to judicial notice under Evid. Code sec. 452(h). The Request for Judicial Notice is not opposed.

First Cause of Action—Negligence

Dgade and Mousa’s Substantive Arguments

As an initial point, the Court notes TVD’s Opposition does not distinguish between the various Cross-Defendants’ roles in addressing the first cause of action, even though different arguments were presented in the separate Motions for Summary Adjudication. For example, Dgade and Mousa argue they “had nothing to do with the ‘original jurisdictional delineation’ . . . and that nothing they did caused the ‘Certification being determined to be invalid.’” (Motion, p. 7.) The Court finds this argument is supported by facts undisputed by TVD, as discussed below, and that TVD failed to address these arguments in its Opposition by lumping all the Cross-Defendants together despite responding to two distinct Motions.[2]

Envicom prepared its “jurisdictional delineation and impact analysis” for Trifish in July 2007, and an addendum thereto in July 2011. (UMF 19-20.) The Los Angeles Regional Water Quality Control Board (“RWQCB”) issued its Water Quality Certification for the Property on February 12, 2014. (UMF 23.) On April 11, 2014, Trifish then entered into an agreement with Envicom “for Envicom to ‘provide environmental compliance services as required by conditions of environmental permits’ for the Project including the permit from the RWQCB”; this is the “Envicom Agreement.” (UMF 24.) All of this occurred prior to Dgade’s involvement. On September 22, 2014, Dgade (through its “sole manager,” Mousa) and White Water entered into an Amended Operating Agreement with Sullivan, which provided that Dgade and White Water “were admitted as ‘Common Members’ of Sullivan collectively holding 50% of the membership interests.” (UMF 3-4, 38-40.)

TVD disputes various facts relating to Dgade and Mousa’s participation in the certification process, but there appears to be no actual dispute of fact. Dgade and Mousa state that they did not (1) “undertake any action to obtain or comply with the Water Quality Certification for the Property”, (2) “act as the agent for Trifish, Zin, White Water, Sullivan or any other party with respect to obtaining or complying with the Water Quality Certification for the Property,” or (3) “supervise or control the action of Envicom or any other person regarding obtaining or complying with the Water Quality Certification for the Property,” and state that neither Trifish nor White Water acted as their agents for those purposes. (UMF 45-52.) TVD disputes each of these facts on the ground that “Trifish hired Envicom to obtain the Water Quality Certification for the Property,” citing the Envicom Agreement and Sean Namvar’s Declaration. (UMF 45-52.) The Envicom Agreement, as discussed above, was executed months before Dgade and Mousa had any involvement. The Namvar Declaration indicates only that the Envicom Agreement exists, alleging that “[i]n or around April 2014, Trifish and Envicom entered into a written agreement for Envicom to ‘provide environmental compliance services as required by conditions of environmental permits’ for the Project including the Water Certification from the RWQCB. Attached as Exhibit 17 to the Compendium is a true and correct copy of such agreement. Trifish relied on Envicom to meet the RWQCB Water Certification requirements and did not actively supervise Envicom’s performance in so doing under this agreement.” (Sean Namvar Decl., para. 7.)

Noticeably absent is any reference to Dgade or Mousa in the Envicom Agreement or Declaration. As a result, there does not appear to be any factual dispute that Dgade and Mousa had no involvement in the jurisdictional delineation or certification process. No evidence of their involvement was presented and TVD did not explain how they were involved. The Court does not agree with TVD’s conclusion that Cross-Defendants’ “arguments are the same in each [motion] with respect to the first cause of action for negligence.” (Opposition, p. 1, fn. 1.) Rather, the parties present quite different arguments—Trifish, White Water and Sean argue they cannot be held liable as former owners of the property for any errors in the delineation and certification, while Dgade and Mousa argue they were totally uninvolved in the delineation and certification. (Trifish Motion, p. 7-8; Dgade Motion, p. 7-8 (arguing “neither Dgade nor Mousa had anything to do with ‘performing the original jurisdictional delineation’”)) Dgade and Mousa do not argue the use of Envicom for these matters exempts them from liability, arguing instead they did not contribute to, supervise, or control the other parties’ activities, while Trifish, White Water and Sean specifically argue that Envicom’s involvement bars liability. (Trifish Motion, p. 8-9; Dgade Motion, p. 9.) TVD therefore erred in treating these Motions as interchangeable, and particularly erred in treating the Cross-Defendants identically.

The Court GRANTS Dgade and Mousa’s Motion. The negligence claim necessarily fails because TVD has not identified any actionable conduct by Dgade and Mousa in connection with the jurisdictional delineation and certification process at issue. (See Cross-Complaint, para. 31-37.) As a result, Dgade and Mousa have defeated a critical element of the negligence claim, causation. As no conduct was alleged by Dgade and Mousa regarding the delineation and certification, necessarily no conduct was alleged which would have caused errors in the delineation in 2011 or caused the certification to be revoked in October 2014. (UMF 59.) Further, there are no triable issues of fact as to the foregoing.[3]

Trifish, White Water and Sean Namvar’s Substantive Arguments

These Cross-Defendants argue instead that (1) they have no liability as former property owners which transferred their interests to Sullivan in May 2014, (2) they are not liable for any negligence of Envicom as its independent contractor for jurisdictional delineation, and (3) that they did not cause errors in the delineation or revocation of the certification because they did not actively contribute to, supervise, or control Envicom’s activities. (Motion, p. 6-10.)

First, White Water and Trifish note it is undisputed they transferred their entire interest in the Property to Sullivan in May 2014, and transferred their interests in Sullivan to TVD. (UMF 29-34.) White Water and Trifish argue this transfer cut off their duty of care to TVD and Shakib. (Motion, p. 7-8.) However, several of the cases relied upon related to defects in the property itself. (See, e.g., Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134 (holding a “defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control”); Lewis v. Chevron U.S.A (2004) 119 Cal.App.4th 690, 692 (2004) (“absent concealment, a prior owner of real property is not liable for injuries caused by a defective condition on the property long after the owner has relinquished ownership and control, even if the prior owner negligently created the condition.”)) The defects in the delineation and certification by Envicom were not “defective condition[s] on the property,” but negligent conduct by a third party retained by Trifish (not by White Water). These cases are inapposite. To the extent Trifish is responsible for Envicom’s conduct, the fact that it no longer owns the Property is not relevant.

Next, Cross-Defendants argue they cannot be held liable for Envicom’s conduct, relying on Privette v. Superior Court (1993) 5 Cal.4th 689, which addressed a hiring party’s liability to the employees of a hired independent contractor for any negligence by the independent contractor. The Court explained that, “[a]t common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work.” (Id. at 693.) However, “the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that ‘the rule is now primarily important as a preamble to the catalog of its exceptions,’” and therefore not particularly significant. (Id.) Rather, Privette primarily dealt with the liability of a hiring party to an independent contractor’s employees. (See SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594 (citing Privette for the rule that “when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor.”)) That is not at issue here, and Privette does not support applying this “general rule of nonliability” now riddled with exceptions.

In turn, TVD relies on cases addressing the liability of a principal for the conduct of its agent “within the scope of [the agent’s] authority.” (See Warshauer v. Bauer Construction Co. (1960) 179 Cal.App.2d 44, 49 (“the principal is responsible to third parties for the misconduct of an agent committed within the scope of his authority even though the principal is completely innocent and has received no benefit from the transaction”); Grigsby v. Hagler (1938) 25 Cal.App.2d 714, 715 (“a principal is liable to third parties . . . for the negligence of his agent in the transaction of the business of the agency”)) Cross-Defendants argue that, even if such principal-agent liability existed on the part of Trifish, Sullivan (through Shakib) “agreed to assume all responsibility for the delineation” in a July 2014 letter to the RWQCB. (Reply, p. 9.) This argument was stated clearly in the moving papers, where Cross-Defendants argued the July 2014 letter absolved them of responsibility as former property owners because there was no issue with the delineation and certification when Sullivan assumed such responsibilities; however, TVD did not respond to this argument. (Motion, p. 8.)

The Court need not determine whether the July 2014 letter legally exempted Trifish, White Water, and Sean from liability for negligence by Envicom for two reasons. First, as discussed below, the claim is time-barred as to Trifish regardless of the legal effect of this June 2014 letter. Ultimately, Trifish cited no authority to support its position that an informal letter to RWQCB by Shakib is determinative of its liability for Envicom’s conduct predating Sullivan’s assumption of supervision responsibilities. Second, the agent-principal liability argument is plainly inapplicable to White Water and Sean. No facts were presented and no evidence was adduced showing that White Water and Sean had an agent-principal relationship with Envicom. (UMF 25, 82, 144 (Trifish and Envicom were the parties to the Envicom Agreement, not White Water and Sean)) Therefore, even if such a relationship existed between Trifish and Envicom, this would not be a basis to hold White Water and Sean—nonparties to the Envicom Agreement—liable for Envicom’s negligence.[4]

Statute of Limitations

Cross-Defendants argue CCP sec. 339 applies here, and alternatively that CCP sec. 335.1 applies; both statutes provide a two-year statute of limitations, the former applicable to claims for professional negligence and the latter applicable to any “action for . . . injury to . . . an individual caused by the wrongful act or neglect of another.” (See Roger E. Inc., v. SHN Consulting Engineers & Geologists, Inc. (2001) 89 Cal.App.4th 638, 647 (Section 339 applies to professional negligence claims)) A cause of action for professional negligence accrues when “the plaintiff (1) sustains damage and (2) discovers, or should discover, the negligence” that caused the damage. (Cyr v. McGovran (2012) 206 Cal.App.4th 645, 652.) Courts have warned against “confus[ing] the distinction between the fact and knowledge of damage and the amount of damage” because it “is uncertainty as to the fact of damage, rather than its amount, which negatives the existence of a cause of action.” (Roger E. Inc., supra, 89 Cal.App.4th at 651.) The professional negligence “action accrues, and the statute begins to run, as soon as the plaintiff suffers “appreciable harm” from the breach.” (Id.)

Here, TVD and Shakib allege they “suffered substantial harm, including expending substantial sums of money on the Project, expending substantial sums of money attempting to remedy the invalid Certification, and being unable to complete the Project as planned because Cross-Complainants relied on Cross-Defendants’ voluntary undertaking to obtain a valid Certification before Cross-Complainants started work on the Project.” (Cross-Complaint, para. 37.) Cross-Defendants argue this harm was suffered “when the work stopped in late 2014 after the RWQCB revoked the Water Certification. Cross-Defendants note Shakib’s letter to the RWQCB in November 2014 stating that the work stoppage after revocation “caus[ed] considerable delay and substantial financial burden.” (CoE, Ex. 32; Ex. 33 (11/14/2014 email from Shakib) “we are losing lots of money every day” in part due to having workers “standing by all material ready to deliver”)) They argue that this indicates TVD and Shakib had suffered “appreciable harm” in November 2014 in the form of out-of-pocket losses exceeding “$2 million.” (CoE, Ex. 33.) Cross-Defendants also note the undisputed fact that “between November 2014 and September 2015 [Shakib] contributed over US$100,000 to Sullivan to cover costs incurred in dealing with the application for the Water Certification.” (UMF 66.) Further, Shakib and TVD were forced to incur out-of-pocket expenses commissioning another delineation from Environ between October and December 2014. (UMF 63-65.)

Cross-Defendants further argue TVD and Shakib suffered appreciable harm in the form of “lost profits and distribution” after revocation of the certification. (Cross-Complaint, para. 35 (“As a direct and proximate result of the Certification being determined to be invalid, Cross-Complainants were precluded from developing the Property as planned . . .which has prevented Cross-Complainants from selling the developed Property and realizing a substantial profit”); CoE, Ex. 35 (Shakib’s Answers to Interrogatories) (“TVD, LCC was unable to complete the Project as planned, resulting in lost profits to it, and lost distributions to Sam Shakib.”)) Cross-Defendants argue this harm necessarily accrued by, at the latest, June 2015, because had the certification not been revoked, the “Project would have been completed within six to eight months, i.e., by June 2015,” which is undisputed by Shakib. (UMF 62.) Thus, by the time the anticipated project completion date had come around and the project was still incomplete, Shakib and TVD would have suffered appreciable harm in the form of lost profits.

In view of this, Cross-Defendants argue the professional negligence claim accrued sometime between November 2014 and June 2015, as Shakib and TVD undisputedly knew of the relevant negligence once the certification was revoked and incurred “appreciable harm” to the tune of over $2 million in out-of-pocket expenses and an undefined (but “substantial”) amount of lost profits and distributions resulting from the cessation of development over the next six to eight months. Thus, Cross-Defendants argue the claim was untimely where the cross-claim was filed in October 2018, nearly four years later.

Cross-Defendants preemptively address an anticipated argument under CCP sec. 350 that the initiation of this action by Dgade and White Water tolled the statute of limitations. The “filing of the original action tolled the running of the statute of limitations as to [a] cross-complaint arising out of the same transaction provided the statute of limitations had not run when the original action was filed.” (Trindade v. Superior Court (1973) 29 Cal.App.3d 857, 860.) However, “as to cross-actions against . . . new parties it has regularly been held that the statute of limitations is not tolled by the commencement of the plaintiff's action.” (Id.)

Cross-Defendants’ factual arguments on this point appear somewhat confused; for example, Cross-Defendants argue “Trifish is a named plaintiff, so for Trifish the action ‘commenced’ on filing of the Complaint on September 19, 2017,” while “White Water and Sean [Namvar]” are new parties. While Sean is a new party, White Water and Dgade were the named plaintiffs on the September 19, 2017 Complaint and Trifish was named for the first time in TVD’s Cross-Complaint. Cross-Defendants do correctly observe that “Dgade is a named plaintiff” while “Mousa is a new party.” The Court notes that TVD does not address this argument and does not claim the Complaint triggered tolling under Section 350; regardless, the Court finds the Complaint would not trigger tolling under Trindade. Such tolling applies only “provided the statute of limitations had not run when the original action was filed.” As discussed, the claims accrued against these Cross-Defendants sometime between November 2014 and June 2015, and the Complaint was filed on September 22, 2017. The two-year statute of limitations had already run on the negligence claim when the Complaint was filed, so there was no tolling.

In response to the foregoing, TVD asserts equitable tolling of the statute of limitations; as noted, TVD’s Opposition does not distinguish between the negligence claim as stated against Dgade and Mousa and as stated against Trifish, White Water, and Sean. The tolling argument is therefore identical as to all Cross-Defendants. Moreover, on this point, Cross-Defendants agree on the applicable legal principles and the arguments differ only as to the relevant dates, so a consolidated argument appears proper here. Significantly, TVD does not dispute Cross-Defendants’ analysis of accrual or appreciable harm.

Equitable tolling applies “[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one. [Cite.] Thus, it may apply where one action stands to lessen the harm that is the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason.” (Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100, 1107.) “If otherwise appropriate, equitable tolling is available when there is timely notice and lack of prejudice to the defendant and reasonable and good faith conduct by the plaintiff.” (Id.) Such tolling is “designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations—timely notice to the defendant of the plaintiff's claims—has been satisfied.” (Id.) As recently explained in Reid v. City of San Diego (2018) 24 Cal.App.5th 343, the “doctrine of equitable tolling has been applied only in few ‘carefully considered situations.’” (Id. at 361.) Equitable tolling “has been recognized . . . only where (1) the plaintiff is pursuing an alternative remedy in another forum; (2) under narrow circumstances, while plaintiff is pursuing the same remedy in the same forum; (3) where a defendant fraudulently conceals the cause of action; and (4) in certain actions against an insurer.” (Id.)

TVD argues the statute of limitations was equitably tolled “because of the time spent attempting to overturn . . . the decision to revoke the building permits for the project.” Cross-Defendants argue this time was spent by Sullivan, not TVD and Shakib, as “Sullivan filed its first court effort to overturn the decision on September 22, 2016,” but the Court notes it is undisputed that either Shakib or TVD was the manager of Sullivan at that time, and so it can be inferred that Shakib or TVD instigated that litigation on behalf of Sullivan.[5] (UMF 10; see also UMF 41 (Sullivan Amended Operating Agreement provides that “[u]nless a Member is a Managing Member . . . no Member shall take part in the control or management” of Sullivan); UMF 12 (“TVD is the . . . current ‘Managing Member of Sullivan.’)) As a result, this technical argument is not persuasive as to the application a fundamentally equitable doctrine. Reid, supra, relied upon by Cross-Defendants, is not on point as it does not address whether litigation by a corporate entity may be equitably attributed to the manager guiding that entity’s litigation.

However, it is unclear that Sullivan’s litigation was connected with the instant negligence claim. The negligence claim regards Cross-Defendants’ participation in Envicom’s jurisdictional delineation and certification work, which resulted in revocation of the water certification for the Property in October 2014. But the Sullivan litigation related to revocation of building permits for the Property after “certain un-permitted trees were cut down.” (AUMF 1.) The Sullivan litigation had nothing to do with the water certification. The subject matter of the two actions is therefore plainly different, and Cross-Defendants were not parties to the Sullivan litigation.

TVD argues equitable tolling should apply despite that lack of connection because the revocation of the building permits “rendered Cross-Complainants’ negligence claim at least partially moot.” (Opposition, p. 16.) TVD argues the Bureau of Street Services’ action revoking building and grading permits in February 2016, and Sullivan’s resulting appeal to the Board of Public Works, “left Sullivan, and its managing member TVD, in the impossible situation in which the water certification had been rendered insufficient by the faulty jurisdictional delineation, and the building permits for the project had also been revoked by the city.” (Opposition, p. 17.) “Both events had independently caused the project to come to a standstill, and the resolution of either one of them, without also resolving the other, would not have resulted in the project’s resumption.” (Opposition, p. 17.) TVD argues that, due to this standstill, Sullivan was justified in pursuing its remedies relating to the building permits before proceeding on the negligence claim against Cross-Defendants, arguing “[r]esolution of that issue first would then enable the parties to work on curing the water-certification issues.”

There are two defects in this argument. First, the concept of “partial mootness” appears to be a legal fiction, as none of the authority cited by TVD addresses “partial” mootness and this concept does not make sense on its face. “Moot cases . . . are ‘those in which an actual controversy did exist but, by the passage of time or change in circumstances ceased to exist.’” (Assn. of Irritated Residents v. Dept. of Conservation (2017) 11 Cal.App.5th 1202, 1221.) Mootness is a binary concept under that definition—either an actual, justiciable controversy exists or it does not, and if the latter the case is moot. Second, TVD’s foregoing explanation merely demonstrates that there were two actual controversies, one relating to revoked water certification and another relating to revoked building permits, and that TVD/Sullivan elected to address the second controversy first. This choice by TVD/Sullivan does not make the former controversy moot in whole or “part,” nor does TVD explain how equitable tolling could be applied to a purportedly mooted case.  

The Court finds equitable tolling not applicable here. First, Sullivan’s litigation against the City of Los Angeles, unrelated to the water certification and not involving any of the Cross-Defendants here, could not have put Cross-Defendants on “timely notice . . . of the plaintiff’s claims” against them concerning the water certification. (Bjorndal, supra, 211 Cal.App.4th at 1107.) The “purpose of the statute of limitations” therefore has not been satisfied. (Id.) Second, there is no explanation as to why TVD/Sullivan could not concurrently litigate these claims to avoid statute of limitations issues rather than sitting on the negligence claim until the building permit issues were resolved. Plainly, the timing issues could have been avoided by initiating the action sooner against Cross-Defendants while also seeking relief from the City’s actions.

Third, TVD has not shown that the Sullivan litigation “st[ood] to lessen the harm that is the subject” of the negligence action under Bjorndal—instead, TVD argues both issues would need to be fully resolved before construction could continue. (Opposition, p. 17.) The resolution of the Sullivan action did not make any headway in addressing the water certification issue, which makes sense because the subject matters of the actions are not overlapping. The only common point is that both actions concerned the Property. Further, the remedy sought in the Sullivan litigation—reinstatement of grading and building permits—is not the same remedy at issue here, where TVD is seeking to recover damages resulting from the revocation of water certification allegedly due to Cross-Defendants’ negligence. Damages and reinstatement are substantially different remedies, neither of which would impact the other, and so neither action stood to lessen the harm at issue in the other.

For the foregoing reasons, equitable tolling does not apply, and the negligence claim is time-barred against all Cross-Defendants. The facts and evidence supporting Cross-Defendants’ account of accrual, based on appreciable harm suffered and knowledge of negligence, are not contradicted by TVD and Shakib. The claim accrued between November 2014 and June 2015, and so the two-year statute of limitations had already run by the time Dgade and White Water filed their Complaint on September 19, 2017, and certainly by the time the negligence claim was initiated on October 22, 2018. There are no triable issues of fact on this point.

Second Cause of Action—Breach

Sean Namvar specifically moves for summary adjudication of the second cause of action for breach of oral contract on the grounds that (1) no oral contract exists because there was no consideration and (2) the statute of limitations has elapsed because Namvar’s July 28, 2016 email to Shakib constituted a repudiation triggering accrual of the breach claim. The Court notes that Sean abandoned the consideration argument, declining to address TVD’s points in his Reply, which does not mention consideration and focuses solely on the statute of limitations issues discussed above. The Court therefore does not further address that point and focuses on the issue of repudiation time-barring the claim.

“A cause of action for breach of contract does not accrue before the time of breach.” (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 488.) When “a party to a contract expressly or by implication repudiates the contract before the time for his or her performance has arrived, an anticipatory breach is said to have occurred.” (Id.) “In the event the promisor repudiates the contract before the time for his or her performance has arrived, the plaintiff has an election of remedies—he or she may ‘treat the repudiation as an anticipatory breach and immediately seek damages for breach of contract, thereby terminating the contractual relation between the parties, or he can treat the repudiation as an empty threat, wait until the time for performance arrives and exercise his remedies for actual breach if a breach does in fact occur at such time.’” (Id. at 489; Taylor v. Johnson (1975) 15 Cal.3d 130, 137.) “[I]n the event the plaintiff disregards the repudiation, the statute of limitations does not begin to run until the time set by the contract for performance.” (Id. at 489.) There are two issues: (1) whether a repudiation took place and (2) the plaintiff’s response to the repudiation, which is dictated by the “time set by the contract for performance.”

“Anticipatory breach occurs when one of the parties to a bilateral contract repudiates the contract,” and the “repudiation may be express or implied.” (Taylor, supra, 15 Cal.3d at 137.) “An express repudiation is a clear, positive, unequivocal refusal to perform [citations]; an implied repudiation results from conduct where the promisor puts it out of his power to perform so as to make substantial performance of his promise impossible.” (Id.) A “mere threat alone to abandon is not a repudiation.” (Gold Mining & Water Co. v. Swinerton (1943) 23 Cal.2d 19, 28.) “[R]epudiation is ordinarily a question of fact and intent, and . . . must be determined by the facts in the particular case.” (Id.) But even where an issue is “normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

The Cross-Complaint alleges that Shakib and Sean “entered into an oral agreement whereby the parties agreed to share equally and personally any costs required to complete the Project that arose as a result of events not anticipated in the Operating Agreement, such as equipment failures, neighborhood intervention to delay or stop the Project, the failure or revocation of permits or government approvals, litigation of any lawsuit arising out of the Project, or cost overruns.” (Cross-Complaint, para. 40.) Here, TVD disputes whether Sean’s emails constituted a repudiation of that agreement, but concedes that “the content of the e-mail string attached as Exhibit 39A to the Compendium of Evidence is accurate.” (UMF 67.)

TVD argues instead that “there are no possible inferences that would lead a reasonable juror to conclude that the words written in the e-mails were a repudiation of the oral contract,” noting, for example, Sean’s statement that “I have not decided what to do” as evidence that the emails were not an “unequivocal” repudiation. (UMF 67.) TVD further argues that the email string addresses the Amended Operating Agreement for Sullivan rather than the oral contract at issue, and finally notes that “nowhere in the email string does [Sean] state that he will not perform the oral contract.” (UMF 67.) As a result, the issue is not an evidentiary dispute, but whether the “uncontradicted facts . . . are susceptible of only one legitimate inference.”

After review of the emails in Exhibit 39A, neither Sean nor Shakib (nor Shakib’s attorney, Mr. Jaffe) make any reference to an oral agreement to share costs. Rather, the emails concern the Sullivan Operating Agreement and the (non-)existence of any obligation to share costs thereunder. Sean consistently argues that the Operating Agreement does not require him to share costs; in turn, Shakib’s lawyer encourages him twice to “carefully read the Operating Agreement” regarding court determinations of gross negligence—which are irrelevant to the alleged oral contract. In fact, Shakib’s lawyer specifically states his “reading of the Operating Agreement is that you [Sean] are obligated to pay for half of the costs,” and that the failure to do so will “trigger other provisions of the Operating Agreement.” The emails are utterly silent as to an agreement to share costs outside the written Operating Agreement. This raises significant doubt as to whether Sean’s emails—which repeatedly reference that Agreement—were somehow intended to address another unreferenced oral agreement.

Further, mere repudiation is not sufficient for a breach claim to accrue. If repudiation occurs “before the time for . . . performance has arrived, the plaintiff has an election of remedies—he or she may ‘treat the repudiation as an anticipatory breach and immediately seek damages for breach of contract . . . or he can treat the repudiation as an empty threat, wait until the time for performance arrives and exercise his remedies for actual breach if a breach does in fact occur at such time.’” (Romano, supra, at 489.) It is unclear whether this repudiation took place “before the time for performance,” as the alleged contract lacks any timeframe and imposes a continuing obligation to share costs. (Cross-Complaint, para. 39.) If the repudiation occurred before performance was required, and “the plaintiff disregards the repudiation, the statute of limitations does not begin to run until the time set by the contract for performance.” (Id. at 489.) The oral contract alleged does not set a time for performance on its face.

Sean argues that the time for performance came and passed when Shakib made a demand to share costs. A “breach of contract ordinarily occurs upon the promisor's failure to render the promised performance. Therefore, to pinpoint the time of an alleged breach for purposes of the statute of limitations, it is necessary to establish what it was the defendant promised to do, or refrain from doing, and when its conduct diverged from that promise.” (McCaskey v. California State Auto. Assn. (2010) 189 Cal. App. 4th 947, 958.) Sean argues his conduct diverged from the alleged contract when he stated on July 28, 2016 that “this should be a notice to [Shakib] to fix the situation with his own money as he is supposed to under the operating agreement.” (CoE, Ex. 39A.) That is the last communication presented on the topic of cost-sharing.

While Shakib argues that this is an ambiguous repudiation because Sean stated he “ha[s] not decided what [he] want[s] to do,” this clause followed Sean’s statement that he thinks he “can spend the money and go after [Shakib]/envicom/and the water board and have a [b]etter chance of getting damages, rather than going after the city.” He indicated he had not decided what he wanted to do in terms of pursuing damages, “but this should be notice . . . to fix the situation with this own money.” (CoE, Ex. 39A.) The Court therefore agrees with Sean that, on the undisputed facts, he refused to share costs on July 28, 2016. Further, as the oral agreement does not set a deadline for sharing costs and merely requires sharing, it appears to the Court that Sean’s refusal at that time “diverged from that promise” to share costs, and therefore constituted a repudiation at the time of performance.

Thus, while the emails did not expressly reference the oral contract,[6] the emails clearly and unambiguously put Shakib on notice that the issues must be fixed “with his own money,” i.e., without any sharing of costs. There is no other reasonable way to construe that statement. This clearly diverged from Sean’s alleged obligations under the oral contract, and therefore constituted a clear repudiation of the oral contract on July 28, 2016. Since this repudiation was concurrent with Sean’s breaching conduct (refusal to share costs), Sean did not repudiate “before the time for . . . performance ha[d] arrived,” and Shakib had no election of remedies—the email was an immediate breach which triggered the statute of limitations. As a consequence, the claim is time-barred. The cross-claim for breach of oral contract was not brought until October 22, 2018, over two years after the July 28, 2016 repudiation of that contract.

The Motion is GRANTED as to the second cause of action, which is time-barred. The Court finds no triable issue of fact as to whether Sean repudiated the oral contract. The “uncontradicted facts established through discovery are susceptible of only one legitimate inference, [so] summary judgment is proper” here (Jolly, supra, 44 Cal.3d at 1112.)

CONCLUSION

Dgade and Mousa’s Motion for Summary Adjudication is GRANTED as to the first cause of action. Dgade and Mousa shall submit a proposed judgment within 20 days of this Ruling, as summary judgment has been granted as to the sole crossclaim against them.

Trifish, White Water and Sean’s Motion for Summary Adjudication is GRANTED as to the first and second causes of action. Trifish, White Water, and Sean shall submit a proposed judgment within 20 days of this Ruling as summary judgment has been granted as to all crossclaims.

Cross-Defendants to give notice of the rulings on their respective Motions.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person.


[1] The Court uses the first names of Sean Namvar and Mousa Namvar to avoid confusion and without intending any disrespect to the parties.

[2] The Court recognizes that Cross-Defendants consolidated their Compendium of Evidence and Separate Statement in support of both Motions. However, in light of that consolidation, the filing of separate memoranda of points and authorities was a strong indicator that distinct arguments were at issue in each Motion. This was confirmed by the Court’s review of the briefing.

[3] As discussed above, while TVD disputed Dgade and Mousa’s claims of non-involvement (UMF 45-52), TVD produced no evidence of their involvement. Instead, TVD referring to the Envicom Agreement, which does not involve Dgade and Mousa. A mere statement of dispute without evidence to support that dispute does not create a triable issue.

[4] Further, since TVD and Shakib rely on an agent-principal theory of negligence liability, rather than claiming Trifish, White Water and/or Sean directly caused errors in the certification, the Court does not reach these direct causation arguments.

[5] TVD and Shakib dispute UMF 10, which states that “Shakib is the current manager of Sullivan,” on the ground that TVD is the manager of Sullivan. Thus, one of them is the current manager of Sullivan. The Court does not find it significant for the statute of limitations analysis which of them is actually the manager.

[6] The fact that Shakib’s own lawyer made no reference to an oral agreement to share costs throughout this exchange is noteworthy.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases represented by Lawyer DYE PAUL