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Michael G. Ackerman, Esq. (SBN 64997)
LAW OFFICES OF MICHAEL G. ACKERMAN
2391 The Alameda, Suite 100
Santa Clara, CA 95050
Telephone: (408) 261-5800
Facsimile: (408) 261-5900
Email: mga@mgackermanlaw.com
Attorneys for Plaintiff,
PHILIP RESTIVO
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
PHILIP RESTIVO, Case No.: 17CV308469
Plaintiff,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, MOTION FOR
SUMMARY ADJUDICATION
vs.
WORLDWIDE GROUND
TRANSPORTATION SOLUTIONS, INC.;
JAMES BROWN, an individual; and DOES
1 through 5, inclusive.
Defendants. Date: February 5, 2019
Time: 9:00 a.m.
Dept.: 9
Judge: Hon. Mary E. Arand
NN mmemmmermermrnrerrr
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION Case No.: 17CV308469Oe Oe et
TABLE OF CONTENTS
lL INTRODUCTION. .......ccccsesssessssssesstsssessesssssstessesarssuesseeavesuecasesecsuecsesacsasesecsaseeusessessnesssesseensecnss 1
Il. ARGUMENT
1. Standards on a Motion for Summary Judgment...........ccccssesesessseseeseesessesseeseententeanees 3
2. James Brown Signed the Mediated Settlement Agreement In His Personal
CAD ACI esc ee 7
3. Defendant’s Material Breach of the Contract Coupled With Defendant Brown’s
Repudiation of the Contract Entitles Plaintiff To Treat the Contract As Terminated
And Sue For Damages............ssesesssessessesssseerensesssetsesusstenssusseeessessieateaeeneeatsseeneenteasenee 9
4. If the Contract May Be Terminated as a Result of the Breach by Defendants and Their
Repudiation of the Contract, Plaintiff Is Entitled to Treat the Contract as Terminated
and Sue for the Value of the Services That Were to Be Provided under the Contract as
5. The Declaratory Relief Cause of Action Seeks a Declaration of Future Rights with
Respect to the Covenant Not to Compete and Therefore Is A Proper Subject for
Declaratory Relief........sesessesssssssessssecssesssseersscsessesseesesssessessssecssesecueauecueaueeveeseeseeneeneees 12
TIL. = CONCLUSION... .sccssccssessssssesseessesseessecsecanesscssccuscasecsecnsesscesecsecsssssecsecsecasecsseanessuecsucaseesseessees 13
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION i Case No.: 17CV308469cS 0D mI DH RF BW NY |
TABLE OF AUTHORITIES
CASES:
Binder v. Aetna Life Insurance Co.
(1999) 75 Cal. App. 4" 832, 839, 89 Cal. Rptr. 2d 540.
Branco v. Kearney Moto Park, Inc.
(1995) 37 CA 4" 184, 189 Cal. Rptr. 2d 352.....ccssssssssssssssessescsssssssseessssscesesssssssssvsssesesssececceseeeeceeenseee! 4,5
Carlesimo v, Schwebel
(1948) 87 C.A. 2d 482, 487, 197 P. 2d 167... ececssecssecsseessecssecsnecsueecseesssecsuesnsesssecsssessseeessecsssneessveesss 8
Columbia Pictures Corp. v. De Toth
(1945) 26 Cal. 2d 753, 161 P. 2d 227... sssscssessssessssessssessecsseessscesvessnecsuscsuvessuecsnscssnecsseessseceassesssveessees 13
Coughlin v. Blair
(1953) 41 Cal. 2d 587 pg. 262 P. 2d 305....c.ccessessessstssscsseesnesseesvecnessseseesessuscnseenssneessesesssesseessecsseenseenes 10
County of San Diego v. State of California
(2008) 164 C.A. 4" 580, pg. 608 79 Cal. Rptr. 3d 489........ccsssccsssssessesssssessessssnsesecssssneeescesssssnseseeeess 12
Gold Mining and Water Co. v. Swinerton
(1943))23 Call 2d 190 pe 142) Bid: 22 er ee 10
Harvey v. Landing Homeowner’s Association
(2008) 162 C.A. 4" 809, 817, 76 Cal. Rptr. 3d 41... ceesccsssssssscsesnnesesssnneesessnneesecssntneeteeessnsnnneseseees 12
Molko v. Holy Spirit Assn.
(1988) 46 Cal. 3d 1092, 1107, 252 Cal. Rptr. 122, 762 P. 2d 46.0... eeseessesseesseeseesseaneenneenecenenesneenses 4
Otis Elevator Co. v. Berry
(1938) 28 C.A. 2d 430, 82 P. 2d 704... cececesssessessesseesssesseesessessesesessssessesesetsscesssesseesesseeseaneaseessesesaeesees 8
Servi v. Santa Clara University
(2014) 226 Cal. 4" 830, pg. 854
United States Liability Inc. Co. v. Haidinger-Hayes, Inc.
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION ii Case No.: 17CV308469(1970) 1 Cal. 3d 586, pg. 595.ccscsscsssssesntsnstsstsstssssstsntsstisniseseatiesssetsstsetnsssetstiesietnsinsieee 7
STATUTES/OTHER:
Civil Code Section 1643....
Code of Civil Procedure § 437c.
Evidence Code § 1400, 1410..........c08
Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial
(The Rutter Group 2013),
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION iii Case No.: 17CV308469Co IN DH BF Ww NY
eee
RBNRRRBBRHRBE Ce vWwA DEBRA S
L INTRODUCTION:
As this court may recall, Mr. Brown made a motion to disqualify Michael Ackerman as
counsel for Plaintiff in this case. To support the motion, Mr. Brown made a statement under penalty
of perjury that Mr. Ackerman was to provide advice to Mr. Brown regarding the asset purchase
agreement. The truth was that the asset purchase agreement was prepared by Greg Carpenter, a
business broker, in Mr. Brown’s presence, and then immediately signed by Mr. Brown and Mr.
Restivo in Mr. Carpenter’s presence. This court, in denying the motion to disqualify, commented on
Mr. Brown’s lack of credibility. (Request for judicial notice, Exhibit 1) On this motion for summary
judgment, Mr. Brown once again misstates the facts regarding the preparation of the asset purchase
agreement (referring to William Dunn as the business broker), misstates the reason he and Mr.
Restivo went to mediation, misstates the agreement made by the parties at the mediation, and neglects
to include the fact that the mediator (Mr. Alarcon) prepared a more formal agreement for Mr. Brown
to sign which he later refused to sign. Mr. Brown falsely accuses Michael Ackerman of threatening
to file a lawsuit and sending a proposed release agreement as a “high pressure and bad faith litigation
tactic.” (Declaration of James Brown, paragraph 12) The truth is that this letter was sent as a result
of settlement negotiations between the attorneys, which negotiations were initiated by the parties
themselves. Mr. Brown retained Nancy Battel as his attorney in the September/October time frame of
2016. Ms. Battel sent a letter to Mr. Ackerman on October 2, 2016, accusing Mr. Restivo of
breaching the non-compete agreement. (Declaration of Michael G. Ackerman, Exhibit “1”) Mr.
Ackerman responded in writing on October 7, 2016. (Ackerman decl. Exhibit “2”) Approximately
two months later, Mr. Ackerman wrote to Ms. Battel stating that he had been informed that Mr.
Brown and Mr. Restivo had been negotiating between themselves and that they had discussed a
settlement of $100,000.00. (Ackerman decl. Exhibit “3”) Ms. Battel responded approximately a
week later stating that Mr. Restivo had contacted Mr. Brown directly allegedly “trying to extort
monies.” She told Mr. Ackerman to go ahead and file a lawsuit. (Ackerman decl. Exhibit “4”)
One week later, on December 21, 2016, Mr. Ackerman sent the letter that is now claimed to
be a “high pressure bad faith litigation tactic.” Mr. Ackerman sent the letter because he was
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 1 Case No.: 17CV308469Co Om YN DH BF WN
BNRRRRBBRRSSEeVABREBER AS
informed by his client that Mr. Brown and Mr. Restivo had reached an agreement to settle at
$90,000.00. Ms. Battel received the letter by email on December 21, 2016 (it was not sent by Mr.
Ackerman directly to Mr. Brown). She did not reject the proposed settlement, but instead stated that
she wanted to see the May 8, 2014, “Agreement to Buy” which her client allegedly did not have a
copy. (Ackerman decl. paragraph 3, Exhibit “5”) Why is it that Ms. Battel, who now represents Mr.
Brown in this case, characterizes what appear to be settlement negotiations in which she was directly
involved as “high pressure and bad-faith litigation tactics?” All she had to say at the time was that
Mr. Brown was not interested in discussing a settlement, and the correspondence would have stopped.
Perhaps the most telling omission in Defendant’s recitation of the facts relates to the
preparation by Mr. Alarcon of a more formal agreement that was allegedly sent both to Mr. Brown
and Mr. Restivo for review. It is mentioned in the memorandum in support of the motion for
summary judgment but not in Mr. Brown’s declaration. Mr. Brown states that he appeared at the
mediation solely in his capacity as an authorized representative of Worldwide Ground Transportation,
but not in his individual capacity. (Paragraph 11)
However, the mediated settlement agreement refers to James Brown, not Worldwide Ground
Transportation. Was this an error in drafting the agreement? The more formal agreement later
prepared by Mr. Alarcon refers repeatedly throughout the agreement to both “James Brown and
Worldwide Ground Transportation Services, Inc.” as two parties rather than one. It further states that
“James Brown agrees to perform his part of the “Discounted Limousine Service” section in the
following manner: . . .” (Declaration of Phil Restivo, paragraph 6 Exhibit “1”) As indicated in Mr.
Restivo’s deposition and his declaration, his intent in going to the mediation was to have Mr. Brown
personally guarantee the obligation to provide discount limousine services. The fact that Mr. Brown
was mentioned personally in both the signed mediated settlement agreement and the more formal
agreement (that was not signed) is consistent with Mr. Restivo’s intent and the agreement made by
Mr. Brown and Mr. Restivo at the mediation. (Deposition of Phil Restivo, page 158, line 21 to page
161, line 22).
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 2 Case No.: 17CV308469As counsel is aware, a motion for summary judgment is not supposed to be an evidentiary
hearing for the court to decide who to believe. If that were the case, Mr. Brown has serious problems
of credibility. Yet, his counsel blatantly ignores Mr. Restivo’s testimony and the words used in the
two versions of the mediation settlement agreements to argue that the agreements, which, on their
face, refer to Mr. Brown as an individual, were not intended to bind him as an individual.
The claim that Plaintiff has suffered no damages is based upon the assumption that getting
discounted limousine services has no monetary value. Given the fact that Mr. Restivo is giving a
covenant not to compete for a term of seven years in consideration for discount limousine services
being provided, Defendants appear to be arguing that they gave no consideration for the covenant not
compete. However, that is not factually true. The discounted limousine services did have value
based upon the type of service requested.
Defendants argue that if Mr. Brown refused to abide by his agreement, Mr. Restivo suffered
no harm because he did not “cover” by purchasing limousine services from someone else. This
makes no logical sense. The agreement to provide services at a discounted price, when breached,
causes harm because the services were not provided. The monetary loss is the difference between the
full monetary value of the services that were to be provided and the discounted price that Mr. Restivo
was to pay. As an example, if Mr. Restivo was to be provided a twenty person bus at half price, his
loss would be the full price that would normally be charged to a customer less the price he was
supposed to pay. An analogy would be getting tickets to a play or sporting event. If the tickets are
not provided, the damage is the cost of the tickets even if the Plaintiff did not purchase a ticket as a
replacement and did not attend the event.
ARGUMENT
1) Standards on a Motion for Summary Judgment
To begin with, Defendants have made no effort to authenticate any of the exhibits in their
table of exhibits, other than Exhibits 11, 19 and 20 (referred to in Mr. Brown’s declaration attached as
Exhibit 22). The exhibits in the table of exhibits were obtained in discovery, for the most part, but
are not admissible on a motion for summary judgment simply by attaching them to the motion.
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 3 Case No.: 17CV308469Documents obtained in discovery in response to a request for production of documents may
be used to support or oppose a motion for summary judgment, but must be presented in admissable
form. This means the evidence must be (1) properly identified and authenticated, (2) admissable
under the secondary evidence rule, (3) nonhearsay or admissable under some exception to the hearsay
tule, and (4) a complete record, not selected portions of the document. (Weil & Brown, Cal. Practice
Guide: Civil Procedure Before Trial (The Rutter Group 2013) {J 10:168-to 10:169, pp. 10-70 to 10-
71.) (Rev. # 1, 2013).) Unless the opposing party admits the genuineness of the document, the
proponent of the evidence must present declarations or other “evidence sufficient to sustain a finding
that it is the writing that the proponent of the evidence claims it is.” (Evid. Code, § 1400; see Evid.
Code, §§1410 et seq. for methods of authenticating documents). Servi v. Santa Clara University
(2014) 226 Cal. 4" 830, at pg. 854.
Although Defendants have done nothing to authenticate any of the exhibits with the exception
of 11, 19 and 20, Plaintiff does not dispute the authenticity and admissibility of Exhibits 1, 2, 3, 4, 5,
6, 7, 8, 9, 10, 12, 13, 14, 15, and 21. Plaintiff objects to the admission of Exhibits 16, 17, 18 and 19.
Mr. Brown does not have personal knowledge of the preparation or mailing of the letters referred to
in Exhibit 19. Further, said letters are not relevant to the motion as they do not establish a material
fact.
“A motion for summary judgment shall be granted if all the papers submitted show there is no
triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law.
(Code Civ. Proc. § 437c, subd. (C); Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1107, 252
Cal. Rptr.122, 762 P.2d 46.) The evidence of the moving party should be strictly construed, and that
of the opponent liberally construed, and any doubts as to the propriety of granting the motion should
be resolved in favor of the party opposing the motion. (Molko, supra, at p. 1107, 252 Cal.Rptr.122,
762 P.2d 46.) A defendant is entitled to summary judgment if the record established as a matter of
law that none of the plaintiffs asserted causes of action can prevail. (Ibid). Branco v. Kearney Moto
Park, Inc. (1995) 37 CA 4" 184, 189, 43 Cal. Rptr. 2d 352.”
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 4 Case No.: 17CV308469Co Oo ND WH FF WN |
eS
Bet a) Oe oy ise ce 8 te tn 8 too te tO On es tO
“Reflecting the ‘cautious’ judicial attitude about granting summary judgment...the
declarations and evidence offered in opposition to the motion must be liberally construed, while the
moving party’s evidence must be construed strictly, in determining a “triable issue’ of fact.’ (Weil &
Brown, supra, § 10:309, p.10-114.)
“On a summary judgment motion, the court must therefore consider what inferences favoring
the opposing party a fact finder could reasonably could reasonably draw from the evidence. While
viewing the evidence in this manner, the court must bear in mind that its primary function is to
identify issues rather than to determine issues. (Cf., e.g., Weil & Brown, supra, § 10:270, p. 10-105
[citing cases].) Only when the inferences are indisputable may the court decide the issues as a matter
of law. If the evidence is in conflict, the factual issues must be resolved by trial. “Any doubts about
the propriety of summary judgment...are generally resolved against granting the motion, because that
allows the future development of the case and avoids errors.” (Henley, supra).” ( Binder v. Aetna Life
Insurance Co. (1999) 75 Cal. App. 4" 832, 839, 89 Cal. Rptr. 2d 540. )
On this motion for summary judgment, Defendants argue first that James Brown was not a
party to the mediated settlement agreement. This argument was first raised by a demurrer in which
Mr. Brown made the same arguments that he was not personally a signator to the mediated settlement
agreement. The court expressly held that Brown was a party to the settlement agreement based upon
the words appearing in the document. (Request for Judicial Notice, Exhibit “2”, page 5, lines 13-24)
On this motion for summary judgment, James Brown asks this court to revisit the issue and enter
judgment in his favor, not because there is no factual dispute, but, instead, because he wants this court
to accept his version of the facts even if there is an opposing and contradictory set of facts.
Similarly, Defendants argue that Plaintiff's claim that he was denied limousine services
should not be believed. Defendants argue that plaintiff suffered no damage because he did not
contract for services from someone else. Lastly, Defendants argue that he cannot claim future
damages because the contract is “divisible” and therefore Plaintiff cannot seek damages for the
services that were never requested. Defendants cite one case in support of all of these arguments and
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 5 Case No.: 17CV308469do not cite any cases with respect to the issue of whether a breach is material entitling Plaintiff to
declare the contract terminated with the right to sue for damages.
As Plaintiff explained in his deposition, he went to the mediation with Mr. Brown because he
was being refused the more expensive limousine services when he requested them. He was never
denied what he describes as the “airport” trips. (Depo. Of Restivo, page 171, lines 3-15) On the
airport trips, Plaintiff paid nearly the entire cost of the trip. It was the more expensive limousine trips
that cost Defendant more to provide the trips. (Decl. of Restivo, paragraph 4 ). It was the more
expensive trips that Plaintiff was frequently denied. In reviewing Defendants’ production of
documents, it is apparent that Plaintiff was not treated like any other customer on the more expensive
trips where, upon his calling, he would be given a reservation. Instead, Defendants had a procedure
where the person who received the call from Mr. Restivo had to first check with Mr. Brown for
approval. If Mr. Brown decided not to approve the trip, Mr. Restivo was told the vehicle was not
available. (Decl. of Restivo, paragraph 8 ).
It was Defendants’ failure to provide the requested discount limousine services that led to the
parties going to mediation to attempt to come to a settlement. Following the mediation, Plaintiff
continued to have problems in getting the services he requested. However, in October of 2016,
Plaintiff was given a quote for a 32 passenger bus that was $450 higher than was quoted to a regular
customer just calling in. (Decl. of Restivo, paragraph ; Depo. Of Brown, page 66, line 10 to page 68,
line 23). When Mr. Restivo discovered he was being quoted $450 more for the same 32 passenger
bus as a normal paying customer, instead of a discounted rate, he “confronted” Mr. Brown who
responded: “Oh, we must have made a mistake.” (Depo. Of Restivo, page 140, lines 1- 14) Mr.
Brown claims to have no memory of this incident. (Depo. Of Brown, page 68, line 24 to page 69, line
2; Page 70, line 17 to page 71, line 3) It was on October 2, 2016, that Ms. Battlel wrote the letter
accusing Mr. Restivo of breaching the covenant not to compete. (Decl. of Ackerman, Exhibit 1 ).
Over the next two months, the parties attempted to negotiate a settlement of the dispute. Plaintiff
only booked three additional trips, two airport trips and one trip to a winery in St. Helena, before
filing suit. (Exhibit 11) After Plaintiff discovered that Mr. Brown attempted to charge him almost
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 6 Case No.: 17CV30846950% more than a regular paying customer, Plaintiff felt that he could no longer trust Mr. Brown and
no longer wanted to do business with him. (Depo. Of Restivo, page 139, lines 7-18) Plaintiff
treated Mr. Brown’s repudiation of the mediated settlement agreement, his continued failure to
provide discount limousine services as requested and his attempt to overcharge him as a material
breach of the contract, terminating the contract and suing for damages. Defendants would have this
court decide whether Defendants’ conduct was a material breach of the mediated settlement
agreement, rather than having a jury decide this issue of material fact.
Lastly, Defendants seek to have this court determine as a matter of law whether Defendants’
material breach of the Addendum to Offer & Agreement to Buy and the Mediated Settlement
Agreement entitles Plaintiff to terminate the Covenant Not To Compete, which is expressly
conditioned upon Defendants adhering to Paragraph 4 (“Discount Limousine Service”). This again is
a question of material fact that cannot be decided on a motion for summary judgment or summary
adjudication.
2) James Brown Signed The Mediated Settlement Agreement In His Personal
Capacity
Defendants’ arguments that Mr. Brown did not sign the Mediated Settlement Agreement in
his personal capacity are based upon the supposition that if he was not a party to the prior agreements,
he could not be a party to the Mediated Settlement Agreement. Defendants do not address the fact
that nowhere in the Mediated Settlement Agreement is Worldwide Ground Transportation Solutions,
Inc. listed or mentioned. Defendants cite the case of United States Liability Inc. Co. v. Haidinger-
Hayes, Inc. (1970) 1 Cal. 3d 586, at page 595, for the rule that an individual is not personally liable
on a contract signed by them unless they purport to bind themselves individually. The court, in
United States Liability, does not discuss under what circumstance an individual will be held
personally liable for a contract signed by them but cites the case of Carlesimo v. Schwebel ( 1948) 87
C.A. 2d 482, 487, 197 P. 2d 167) in support of the rule previously stated.
The court, in the Carlesimo case, provides an analysis of when an individual may be liable
personally on a contract which he or she has signed. “The rule is that where a person signs his own
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR Saas
ADJUDICATION Case No.: 17CV308469AYA HA WD Fw N
name to a written contract, without qualification and without disclosing that he acts solely as agent,
extrinsic evidence is admissible to prove he acted solely as agent and was not a party to the contract. .
. An agent, who has signed his own name unqualifiedly, may introduce extrinsic evidence to show
he is not a party to the contract, only where the contract itself contains some phrase or provision
which shows that he was acting in a representative capacity.” (Carlesimo, supra, at page 487) Where
the corporation is listed as a party to the contract and the agent’s signature has the word “by”
appended before his signature and beneath the name of the corporation, the contract discloses on its
face that the other party was dealing with the corporation and not the agent. (Carlesimo, supra, at
page 487) The court, in Carlesimo, cited the case of Otis Elevator Co. v. Berry (1938) 28 C.A. 2d
430, 82 P. 2d 704, for the following holding: “The mere fact that the proposal was addressed to the
defendant’s principal is not enough, for the contract might also have been intended to bind the agent
as well. Aside from the address, there is no reference in the contract to defendant’s principal and
there is no clause in the contract which, either expressly or by implication, indicates that defendant
acted in a representative capacity. Defendant signed his name without indicating the identity of his
principal, or even the fact that he was acting as agent. Under these circumstances, he cannot now
assert that he is not a party to the contract.” (Carlesimo, supra, at page 488).
Turning to the facts in our case, Plaintiff intended to bind James Brown personally to the
contract to have him guarantee the performance of the agreement to provide the discount limousine
services. (Decl. of Restivo, Paragraph 5 ). Nowhere in the Mediated Settlement Agreement does it
mention Worldwide Ground Transportation Solutions or state that James Brown was not personally
liable but instead was acting as the agent for Worldwide. The more formal agreement, which was
never signed (identified as Exhibit 14 but not authenticated) mentions both James Brown and
Worldwide but nowhere states James Brown is not a party and is signing solely as the agent for
Worldwide. In fact, paragraph B(1) states that James Brown “ agrees to perform for his part of the
“Discounted Limousine Service’ section in the following manner: James Brown and Worldwide
Ground Transportation Services, Inc. will provide . . .” (emphasis added) Thus the express language
requires both the individual and the corporation to provide discount limousine services. When Mr.
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 8 Case No.: 17CV308469Com QD DH FF WN
Dw MN YN KN NY DY Bee ewe we we ewe ewe eH eB
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Restivo presented the more formal agreement to Mr. Brown to sign, Mr. Brown refused to do so
saying that he had changed his mind and was not going to honor the agreement. (Depo. Of Restivo,
page 155, line 21 to page 157, line 9)
Not only is Mr. Brown’s self-serving declaration not conclusive on the issue of whether the
Mediated Settlement Agreement was signed by Mr. Brown solely as agent for Worldwide, it may not
be admissible at all unless the court finds language somewhere in the Mediated Settlement Agreement
that suggests that Mr. Brown was signing as the agent for the corporation. Then and only then is the
declaration admissible as parole evidence that may be rebutted by Mr. Restivo’s declaration. Without
this finding, Mr. Brown’s signature is presumed to be in his individual capacity and cannot be
contested by his self-serving declaration.
3. Defendants’ Material Breach of the Contract Coupled with Defendant Brown’s
Repudiation of the Contract Entitles Plaintiff to Treat the Contract as
Terminated and Sue for Damages.
The following facts appear to be undisputed: Worldwide Ground Transportations Solutions,
Inc. entered into an agreement with Restivo Enterprises Inc. which provided that Phil Restivo
individually was to provide consulting services and a covenant not to compete for a term of seven (7)
years. The covenant not to compete was expressly conditioned upon two things: (1) the payments
were to remain current on the note, and (2) the terms in Paragraph 4 of the Addendum to Offer &
Agreement to Buy, dated 5/13/14, had to be “adhered to.” After performance began, Plaintiff
believed that Defendants were breaching the agreement to provide discount limousine services by
improperly refusing to provide him such services when requested. As a result, the parties went to a
mediation at which they signed the “Mediated Settlement Agreement” which stated that the value of
the discount limousine services that were to be provided was a maximum of $5,000 per month,
accumulated and carried forward every four months. The parties signed the two page agreement
contemplating that a more formal agreement would be prepared.
At this point, there is a dispute with respect to the facts. Mr. Restivo stated that Mr. Alarcon
prepared a more formal agreement which Mr. Restivo presented to Mr. Brown to sign. Mr. Brown
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 9 Case No.: 17CV308469refused to sign it and stated that he had changed his mind and would not honor their agreement.
(Decl. of Restivo, paragraph 6) Mr. Restivo did not immediately terminate the agreement but instead
continued to attempt to obtain Brown’s and Worldwide performance under the agreements only to
discover in October of 2016 that Brown and Worldwide were charging him more for “discount”
limousine services than a regular customer who called in would pay. (Decl. of Restivo, paragraph 7 )
Shortly after that, their relationship broke down and suit was later filed.
A total breach of contract may arise in two ways. There may be an anticipatory breach,
termed a breach by anticipatory repudiation, which is necessarily total and which is of importance
both with relation to an excuse for nonperformance by the promisee, the repudiation being by the
promisor, and the right of the promisee to recover damages immediately for a total breach of the
contract before his performance is due under the contract. On the other hand, there may be a total
breach of a contract where there has been a partial breach by the promisor, which means of course
that the time for a portion of the performance was due, followed by a repudiation of the contract by
him. (Gold Mining & Water Co. v. Swinerton (1943) 23 Cal. 2d 19, at page, 142 P. 2d 22) Ifa
breach of contract is total, the injured party may treat it as partial, unless the wrongdoer has
repudiated the contract. (Coughlin v. Blair (1953) 41 Cal. 2d 587, at page , 262 P. 2d 305).
In this case, there was a partial breach of the agreement to provide discount limousine services
when Defendants failure to provide the services when requested. Thereafter, Plaintiff attempted to
obtain full performance by mediating their dispute and clarifying the obligations under the contract.
After the mediation occurred, Defendant Brown repudiated the contract stating that he had changed
his mind and did not intend to perform pursuant to the mediated settlement agreement. Thereafter
Plaintiff treated the contract as still effective until Plaintiff discovered that Defendant was defrauding
him by charging him more for “discount” limousine services than he was charging his regular
customers. Plaintiff treated this later act as a further total repudiation of the contract, thereafter
terminating the contract and suing for damages. Defendants’ argument that Plaintiff cannot recover
for future discount limousine services ignores the above principles of law allowing a party to
terminate a contract, which is partially performed, when the promisor breaches the contract and also
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 10 Case No.: 17CV308469an a
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repudiates the contract.
4, If the Contract May Be Terminated as a Result of the Breach by Defendants and
Their Repudiation of the Contract, Plaintiff Is Entitled to Treat the Contract as
Terminated and Sue for the Value of the Services That Were to Be Provided
under the Contract as Damages.
Defendants argue that the contract limits Plaintiff's damages to the cost of obtaining another
limousine at a higher price. There is no provision in any of the contracts which limits the damages in
this or in any other manner other than to limit the maximum amount of services to be provided in a
month to $5,000.00. Defendants next argue that if Plaintiff does not request limousine services, he
cannot sue for damages for failing to provide the services which were never requested. This ignores
the legal principle that if the contract is terminable by Plaintiff due to Defendants’ breach and
repudiation of its terms, Plaintiff may elect to treat the contract as terminated and sue for damages. If
the contract is terminated, Plaintiff no longer has to request limousine services. His damages are the
maximum amount of services that were to be provided to him under the terms of the contract. That
was the consideration he bargained for in exchange for the covenant not to compete. The prayer is for
damages in the sum of $5,000.00 per month, both past and future.
Defendants next argue that the agreement to provide discount limousine services is
unenforceable because the Addendum to Offer & Agreement to Buy referred to a “reasonable amount
of use as agreed to between Buyer and Mr. Restivo. . .” If the Mediated Settlement Agreement had
not been agreed to, this might have required the court to interpret this provision to make it lawful,
operative, definite, reasonable, and capable of being carried into effect, if it can be done without
violating the intention of the parties. (C.C. Section 1643) This would have required the court to
interpret the otherwise “ambiguous” term to make it lawful, operative, reasonable and capable of
being carried out. (Harvey v. Landing Homeowner's Association (2008) 162 C.A. 4" 809, 817, 76
Cal. Rptr. 3d 41).
However, that is not necessary as the parties, in the mediated settlement agreement, clarified
the amount of discount services that were to be provided each month (i.e. up to a maximum of
$5,000). There was no need for further agreement as to what was the reasonable amount of services
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 1 Case No.: 17CV308469co ON DH FF WY
Ne ee
Boe a ont ue ee oe Se ee tr fOr too Ce ON ns a tO es
to be provided each month.
Defendants attempt to create an ambiguity by arguing that the frequency of use was never
addressed. However, that is not true. The second paragraph under section 2 states: “Vehicle trade
use is good for any day or any time with the exception of Saturdays when 8 passenger or smaller is
okay but anything over 8 passenger must be booked within 24 hours or less notification.” The words
“good for any day or any time” could not be more clear. Mr. Brown simply refuses to recognize the
deal he made as enforceable.
5. The Declaratory Relief Cause of Action Seeks a Declaration of Future Rights
with Respect to the Covenant Not to Compete and Therefore Is a Proper Subject
for Declaratory Relief.
Defendants argue that the cause of action for declaratory relief only seeks to redress past
wrongs. That is not correct. Plaintiff seeks to have this court determine the parties’ future rights and
obligations under the covenant not to compete. As the court stated in the case of County of San
Diego v. State of California (2008) 164 C.A. 4" 580, at page 608, 79 Cal. Rptr. 3d 489, “We
recognize that a court can award monetary relief in a declaratory relief action under appropriate
circumstances. (citations) For example, if parties to a contract seek declaratory relief as tot the
validity of a contract, the court can declare the contract to be valid and enforceable and award
damages for its breach in the interest of disposing of the entire controversy between the parties and
gran ting complete relief. (citation)” “A complaint for declaratory relief is legally sufficient if it sets
forth facts showing the existence of an actual controversy relating to the legal rights and duties of the
respective parties under a contract and requests that these rights and duties be adjudged by the court.”
(Columbia Pictures Corp. v. De Toth (1945) 26 Cal. 2d 753, 161 P. 2d 227).
Plaintiff is seeking a declaration from the court determining the respective rights and duties of
the parties on a prospective basis under the covenant not to compete. This request relates to an
ongoing relationship which will not end absent a determination from this court. This is exactly the
type of controversy that declaratory relief exists for. The fact that past wrongful conduct may affect
the prospective rights of the parties does not change the nature of the claim. It is still one for a
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 12 Case No.: 17CV308469declaration of the validity of a contractual term. The fact that damages may also be awarded on a
related claim is irrelevant.
CONCLUSION:
On the basis of the above-cited cases and authorities, Defendants’ motion for summary
judgment, or, in the alternative, for summary adjudication must be denied in their entirety,
DATED: December _27, 2018 LAW OFFICE!
Attorneys/for Plaintiff, PHILIP RESTIVO
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION 13 Case No.: 17CV308469
Preview
Michael G. Ackerman, Esq. (SBN 64997) LAW OFFICES OF MICHAEL G. ACKERMAN 2391 The Alameda, Suite 100 Santa Clara, CA 95050 Telephone: (408) 261-5800 Facsimile: (408) 261-5900 Email: mga@mgackermanlaw.com Attorneys for Plaintiff, PHILIP RESTIVO SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA PHILIP RESTIVO, Case No.: 17CV308469 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION vs. WORLDWIDE GROUND TRANSPORTATION SOLUTIONS, INC.; JAMES BROWN, an individual; and DOES 1 through 5, inclusive. Defendants. Date: February 5, 2019 Time: 9:00 a.m. Dept.: 9 Judge: Hon. Mary E. Arand NN mmemmmermermrnrerrr MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION Case No.: 17CV308469Oe Oe et TABLE OF CONTENTS lL INTRODUCTION. .......ccccsesssessssssesstsssessesssssstessesarssuesseeavesuecasesecsuecsesacsasesecsaseeusessessnesssesseensecnss 1 Il. ARGUMENT 1. Standards on a Motion for Summary Judgment...........ccccssesesessseseeseesessesseeseententeanees 3 2. James Brown Signed the Mediated Settlement Agreement In His Personal CAD ACI esc ee 7 3. Defendant’s Material Breach of the Contract Coupled With Defendant Brown’s Repudiation of the Contract Entitles Plaintiff To Treat the Contract As Terminated And Sue For Damages............ssesesssessessesssseerensesssetsesusstenssusseeessessieateaeeneeatsseeneenteasenee 9 4. If the Contract May Be Terminated as a Result of the Breach by Defendants and Their Repudiation of the Contract, Plaintiff Is Entitled to Treat the Contract as Terminated and Sue for the Value of the Services That Were to Be Provided under the Contract as 5. The Declaratory Relief Cause of Action Seeks a Declaration of Future Rights with Respect to the Covenant Not to Compete and Therefore Is A Proper Subject for Declaratory Relief........sesessesssssssessssecssesssseersscsessesseesesssessessssecssesecueauecueaueeveeseeseeneeneees 12 TIL. = CONCLUSION... .sccssccssessssssesseessesseessecsecanesscssccuscasecsecnsesscesecsecsssssecsecsecasecsseanessuecsucaseesseessees 13 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION i Case No.: 17CV308469cS 0D mI DH RF BW NY | TABLE OF AUTHORITIES CASES: Binder v. Aetna Life Insurance Co. (1999) 75 Cal. App. 4" 832, 839, 89 Cal. Rptr. 2d 540. Branco v. Kearney Moto Park, Inc. (1995) 37 CA 4" 184, 189 Cal. Rptr. 2d 352.....ccssssssssssssssessescsssssssseessssscesesssssssssvsssesesssececceseeeeceeenseee! 4,5 Carlesimo v, Schwebel (1948) 87 C.A. 2d 482, 487, 197 P. 2d 167... ececssecssecsseessecssecsnecsueecseesssecsuesnsesssecsssessseeessecsssneessveesss 8 Columbia Pictures Corp. v. De Toth (1945) 26 Cal. 2d 753, 161 P. 2d 227... sssscssessssessssessssessecsseessscesvessnecsuscsuvessuecsnscssnecsseessseceassesssveessees 13 Coughlin v. Blair (1953) 41 Cal. 2d 587 pg. 262 P. 2d 305....c.ccessessessstssscsseesnesseesvecnessseseesessuscnseenssneessesesssesseessecsseenseenes 10 County of San Diego v. State of California (2008) 164 C.A. 4" 580, pg. 608 79 Cal. Rptr. 3d 489........ccsssccsssssessesssssessessssnsesecssssneeescesssssnseseeeess 12 Gold Mining and Water Co. v. Swinerton (1943))23 Call 2d 190 pe 142) Bid: 22 er ee 10 Harvey v. Landing Homeowner’s Association (2008) 162 C.A. 4" 809, 817, 76 Cal. Rptr. 3d 41... ceesccsssssssscsesnnesesssnneesessnneesecssntneeteeessnsnnneseseees 12 Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1107, 252 Cal. Rptr. 122, 762 P. 2d 46.0... eeseessesseesseeseesseaneenneenecenenesneenses 4 Otis Elevator Co. v. Berry (1938) 28 C.A. 2d 430, 82 P. 2d 704... cececesssessessesseesssesseesessessesesessssessesesetsscesssesseesesseeseaneaseessesesaeesees 8 Servi v. Santa Clara University (2014) 226 Cal. 4" 830, pg. 854 United States Liability Inc. Co. v. Haidinger-Hayes, Inc. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION ii Case No.: 17CV308469(1970) 1 Cal. 3d 586, pg. 595.ccscsscsssssesntsnstsstsstssssstsntsstisniseseatiesssetsstsetnsssetstiesietnsinsieee 7 STATUTES/OTHER: Civil Code Section 1643.... Code of Civil Procedure § 437c. Evidence Code § 1400, 1410..........c08 Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013), MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION iii Case No.: 17CV308469Co IN DH BF Ww NY eee RBNRRRBBRHRBE Ce vWwA DEBRA S L INTRODUCTION: As this court may recall, Mr. Brown made a motion to disqualify Michael Ackerman as counsel for Plaintiff in this case. To support the motion, Mr. Brown made a statement under penalty of perjury that Mr. Ackerman was to provide advice to Mr. Brown regarding the asset purchase agreement. The truth was that the asset purchase agreement was prepared by Greg Carpenter, a business broker, in Mr. Brown’s presence, and then immediately signed by Mr. Brown and Mr. Restivo in Mr. Carpenter’s presence. This court, in denying the motion to disqualify, commented on Mr. Brown’s lack of credibility. (Request for judicial notice, Exhibit 1) On this motion for summary judgment, Mr. Brown once again misstates the facts regarding the preparation of the asset purchase agreement (referring to William Dunn as the business broker), misstates the reason he and Mr. Restivo went to mediation, misstates the agreement made by the parties at the mediation, and neglects to include the fact that the mediator (Mr. Alarcon) prepared a more formal agreement for Mr. Brown to sign which he later refused to sign. Mr. Brown falsely accuses Michael Ackerman of threatening to file a lawsuit and sending a proposed release agreement as a “high pressure and bad faith litigation tactic.” (Declaration of James Brown, paragraph 12) The truth is that this letter was sent as a result of settlement negotiations between the attorneys, which negotiations were initiated by the parties themselves. Mr. Brown retained Nancy Battel as his attorney in the September/October time frame of 2016. Ms. Battel sent a letter to Mr. Ackerman on October 2, 2016, accusing Mr. Restivo of breaching the non-compete agreement. (Declaration of Michael G. Ackerman, Exhibit “1”) Mr. Ackerman responded in writing on October 7, 2016. (Ackerman decl. Exhibit “2”) Approximately two months later, Mr. Ackerman wrote to Ms. Battel stating that he had been informed that Mr. Brown and Mr. Restivo had been negotiating between themselves and that they had discussed a settlement of $100,000.00. (Ackerman decl. Exhibit “3”) Ms. Battel responded approximately a week later stating that Mr. Restivo had contacted Mr. Brown directly allegedly “trying to extort monies.” She told Mr. Ackerman to go ahead and file a lawsuit. (Ackerman decl. Exhibit “4”) One week later, on December 21, 2016, Mr. Ackerman sent the letter that is now claimed to be a “high pressure bad faith litigation tactic.” Mr. Ackerman sent the letter because he was MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 Case No.: 17CV308469Co Om YN DH BF WN BNRRRRBBRRSSEeVABREBER AS informed by his client that Mr. Brown and Mr. Restivo had reached an agreement to settle at $90,000.00. Ms. Battel received the letter by email on December 21, 2016 (it was not sent by Mr. Ackerman directly to Mr. Brown). She did not reject the proposed settlement, but instead stated that she wanted to see the May 8, 2014, “Agreement to Buy” which her client allegedly did not have a copy. (Ackerman decl. paragraph 3, Exhibit “5”) Why is it that Ms. Battel, who now represents Mr. Brown in this case, characterizes what appear to be settlement negotiations in which she was directly involved as “high pressure and bad-faith litigation tactics?” All she had to say at the time was that Mr. Brown was not interested in discussing a settlement, and the correspondence would have stopped. Perhaps the most telling omission in Defendant’s recitation of the facts relates to the preparation by Mr. Alarcon of a more formal agreement that was allegedly sent both to Mr. Brown and Mr. Restivo for review. It is mentioned in the memorandum in support of the motion for summary judgment but not in Mr. Brown’s declaration. Mr. Brown states that he appeared at the mediation solely in his capacity as an authorized representative of Worldwide Ground Transportation, but not in his individual capacity. (Paragraph 11) However, the mediated settlement agreement refers to James Brown, not Worldwide Ground Transportation. Was this an error in drafting the agreement? The more formal agreement later prepared by Mr. Alarcon refers repeatedly throughout the agreement to both “James Brown and Worldwide Ground Transportation Services, Inc.” as two parties rather than one. It further states that “James Brown agrees to perform his part of the “Discounted Limousine Service” section in the following manner: . . .” (Declaration of Phil Restivo, paragraph 6 Exhibit “1”) As indicated in Mr. Restivo’s deposition and his declaration, his intent in going to the mediation was to have Mr. Brown personally guarantee the obligation to provide discount limousine services. The fact that Mr. Brown was mentioned personally in both the signed mediated settlement agreement and the more formal agreement (that was not signed) is consistent with Mr. Restivo’s intent and the agreement made by Mr. Brown and Mr. Restivo at the mediation. (Deposition of Phil Restivo, page 158, line 21 to page 161, line 22). MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 2 Case No.: 17CV308469As counsel is aware, a motion for summary judgment is not supposed to be an evidentiary hearing for the court to decide who to believe. If that were the case, Mr. Brown has serious problems of credibility. Yet, his counsel blatantly ignores Mr. Restivo’s testimony and the words used in the two versions of the mediation settlement agreements to argue that the agreements, which, on their face, refer to Mr. Brown as an individual, were not intended to bind him as an individual. The claim that Plaintiff has suffered no damages is based upon the assumption that getting discounted limousine services has no monetary value. Given the fact that Mr. Restivo is giving a covenant not to compete for a term of seven years in consideration for discount limousine services being provided, Defendants appear to be arguing that they gave no consideration for the covenant not compete. However, that is not factually true. The discounted limousine services did have value based upon the type of service requested. Defendants argue that if Mr. Brown refused to abide by his agreement, Mr. Restivo suffered no harm because he did not “cover” by purchasing limousine services from someone else. This makes no logical sense. The agreement to provide services at a discounted price, when breached, causes harm because the services were not provided. The monetary loss is the difference between the full monetary value of the services that were to be provided and the discounted price that Mr. Restivo was to pay. As an example, if Mr. Restivo was to be provided a twenty person bus at half price, his loss would be the full price that would normally be charged to a customer less the price he was supposed to pay. An analogy would be getting tickets to a play or sporting event. If the tickets are not provided, the damage is the cost of the tickets even if the Plaintiff did not purchase a ticket as a replacement and did not attend the event. ARGUMENT 1) Standards on a Motion for Summary Judgment To begin with, Defendants have made no effort to authenticate any of the exhibits in their table of exhibits, other than Exhibits 11, 19 and 20 (referred to in Mr. Brown’s declaration attached as Exhibit 22). The exhibits in the table of exhibits were obtained in discovery, for the most part, but are not admissible on a motion for summary judgment simply by attaching them to the motion. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 3 Case No.: 17CV308469Documents obtained in discovery in response to a request for production of documents may be used to support or oppose a motion for summary judgment, but must be presented in admissable form. This means the evidence must be (1) properly identified and authenticated, (2) admissable under the secondary evidence rule, (3) nonhearsay or admissable under some exception to the hearsay tule, and (4) a complete record, not selected portions of the document. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013) {J 10:168-to 10:169, pp. 10-70 to 10- 71.) (Rev. # 1, 2013).) Unless the opposing party admits the genuineness of the document, the proponent of the evidence must present declarations or other “evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (Evid. Code, § 1400; see Evid. Code, §§1410 et seq. for methods of authenticating documents). Servi v. Santa Clara University (2014) 226 Cal. 4" 830, at pg. 854. Although Defendants have done nothing to authenticate any of the exhibits with the exception of 11, 19 and 20, Plaintiff does not dispute the authenticity and admissibility of Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, and 21. Plaintiff objects to the admission of Exhibits 16, 17, 18 and 19. Mr. Brown does not have personal knowledge of the preparation or mailing of the letters referred to in Exhibit 19. Further, said letters are not relevant to the motion as they do not establish a material fact. “A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (C); Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1107, 252 Cal. Rptr.122, 762 P.2d 46.) The evidence of the moving party should be strictly construed, and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko, supra, at p. 1107, 252 Cal.Rptr.122, 762 P.2d 46.) A defendant is entitled to summary judgment if the record established as a matter of law that none of the plaintiffs asserted causes of action can prevail. (Ibid). Branco v. Kearney Moto Park, Inc. (1995) 37 CA 4" 184, 189, 43 Cal. Rptr. 2d 352.” MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 4 Case No.: 17CV308469Co Oo ND WH FF WN | eS Bet a) Oe oy ise ce 8 te tn 8 too te tO On es tO “Reflecting the ‘cautious’ judicial attitude about granting summary judgment...the declarations and evidence offered in opposition to the motion must be liberally construed, while the moving party’s evidence must be construed strictly, in determining a “triable issue’ of fact.’ (Weil & Brown, supra, § 10:309, p.10-114.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a fact finder could reasonably could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. (Cf., e.g., Weil & Brown, supra, § 10:270, p. 10-105 [citing cases].) Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. “Any doubts about the propriety of summary judgment...are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.” (Henley, supra).” ( Binder v. Aetna Life Insurance Co. (1999) 75 Cal. App. 4" 832, 839, 89 Cal. Rptr. 2d 540. ) On this motion for summary judgment, Defendants argue first that James Brown was not a party to the mediated settlement agreement. This argument was first raised by a demurrer in which Mr. Brown made the same arguments that he was not personally a signator to the mediated settlement agreement. The court expressly held that Brown was a party to the settlement agreement based upon the words appearing in the document. (Request for Judicial Notice, Exhibit “2”, page 5, lines 13-24) On this motion for summary judgment, James Brown asks this court to revisit the issue and enter judgment in his favor, not because there is no factual dispute, but, instead, because he wants this court to accept his version of the facts even if there is an opposing and contradictory set of facts. Similarly, Defendants argue that Plaintiff's claim that he was denied limousine services should not be believed. Defendants argue that plaintiff suffered no damage because he did not contract for services from someone else. Lastly, Defendants argue that he cannot claim future damages because the contract is “divisible” and therefore Plaintiff cannot seek damages for the services that were never requested. Defendants cite one case in support of all of these arguments and MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 5 Case No.: 17CV308469do not cite any cases with respect to the issue of whether a breach is material entitling Plaintiff to declare the contract terminated with the right to sue for damages. As Plaintiff explained in his deposition, he went to the mediation with Mr. Brown because he was being refused the more expensive limousine services when he requested them. He was never denied what he describes as the “airport” trips. (Depo. Of Restivo, page 171, lines 3-15) On the airport trips, Plaintiff paid nearly the entire cost of the trip. It was the more expensive limousine trips that cost Defendant more to provide the trips. (Decl. of Restivo, paragraph 4 ). It was the more expensive trips that Plaintiff was frequently denied. In reviewing Defendants’ production of documents, it is apparent that Plaintiff was not treated like any other customer on the more expensive trips where, upon his calling, he would be given a reservation. Instead, Defendants had a procedure where the person who received the call from Mr. Restivo had to first check with Mr. Brown for approval. If Mr. Brown decided not to approve the trip, Mr. Restivo was told the vehicle was not available. (Decl. of Restivo, paragraph 8 ). It was Defendants’ failure to provide the requested discount limousine services that led to the parties going to mediation to attempt to come to a settlement. Following the mediation, Plaintiff continued to have problems in getting the services he requested. However, in October of 2016, Plaintiff was given a quote for a 32 passenger bus that was $450 higher than was quoted to a regular customer just calling in. (Decl. of Restivo, paragraph ; Depo. Of Brown, page 66, line 10 to page 68, line 23). When Mr. Restivo discovered he was being quoted $450 more for the same 32 passenger bus as a normal paying customer, instead of a discounted rate, he “confronted” Mr. Brown who responded: “Oh, we must have made a mistake.” (Depo. Of Restivo, page 140, lines 1- 14) Mr. Brown claims to have no memory of this incident. (Depo. Of Brown, page 68, line 24 to page 69, line 2; Page 70, line 17 to page 71, line 3) It was on October 2, 2016, that Ms. Battlel wrote the letter accusing Mr. Restivo of breaching the covenant not to compete. (Decl. of Ackerman, Exhibit 1 ). Over the next two months, the parties attempted to negotiate a settlement of the dispute. Plaintiff only booked three additional trips, two airport trips and one trip to a winery in St. Helena, before filing suit. (Exhibit 11) After Plaintiff discovered that Mr. Brown attempted to charge him almost MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 6 Case No.: 17CV30846950% more than a regular paying customer, Plaintiff felt that he could no longer trust Mr. Brown and no longer wanted to do business with him. (Depo. Of Restivo, page 139, lines 7-18) Plaintiff treated Mr. Brown’s repudiation of the mediated settlement agreement, his continued failure to provide discount limousine services as requested and his attempt to overcharge him as a material breach of the contract, terminating the contract and suing for damages. Defendants would have this court decide whether Defendants’ conduct was a material breach of the mediated settlement agreement, rather than having a jury decide this issue of material fact. Lastly, Defendants seek to have this court determine as a matter of law whether Defendants’ material breach of the Addendum to Offer & Agreement to Buy and the Mediated Settlement Agreement entitles Plaintiff to terminate the Covenant Not To Compete, which is expressly conditioned upon Defendants adhering to Paragraph 4 (“Discount Limousine Service”). This again is a question of material fact that cannot be decided on a motion for summary judgment or summary adjudication. 2) James Brown Signed The Mediated Settlement Agreement In His Personal Capacity Defendants’ arguments that Mr. Brown did not sign the Mediated Settlement Agreement in his personal capacity are based upon the supposition that if he was not a party to the prior agreements, he could not be a party to the Mediated Settlement Agreement. Defendants do not address the fact that nowhere in the Mediated Settlement Agreement is Worldwide Ground Transportation Solutions, Inc. listed or mentioned. Defendants cite the case of United States Liability Inc. Co. v. Haidinger- Hayes, Inc. (1970) 1 Cal. 3d 586, at page 595, for the rule that an individual is not personally liable on a contract signed by them unless they purport to bind themselves individually. The court, in United States Liability, does not discuss under what circumstance an individual will be held personally liable for a contract signed by them but cites the case of Carlesimo v. Schwebel ( 1948) 87 C.A. 2d 482, 487, 197 P. 2d 167) in support of the rule previously stated. The court, in the Carlesimo case, provides an analysis of when an individual may be liable personally on a contract which he or she has signed. “The rule is that where a person signs his own MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR Saas ADJUDICATION Case No.: 17CV308469AYA HA WD Fw N name to a written contract, without qualification and without disclosing that he acts solely as agent, extrinsic evidence is admissible to prove he acted solely as agent and was not a party to the contract. . . An agent, who has signed his own name unqualifiedly, may introduce extrinsic evidence to show he is not a party to the contract, only where the contract itself contains some phrase or provision which shows that he was acting in a representative capacity.” (Carlesimo, supra, at page 487) Where the corporation is listed as a party to the contract and the agent’s signature has the word “by” appended before his signature and beneath the name of the corporation, the contract discloses on its face that the other party was dealing with the corporation and not the agent. (Carlesimo, supra, at page 487) The court, in Carlesimo, cited the case of Otis Elevator Co. v. Berry (1938) 28 C.A. 2d 430, 82 P. 2d 704, for the following holding: “The mere fact that the proposal was addressed to the defendant’s principal is not enough, for the contract might also have been intended to bind the agent as well. Aside from the address, there is no reference in the contract to defendant’s principal and there is no clause in the contract which, either expressly or by implication, indicates that defendant acted in a representative capacity. Defendant signed his name without indicating the identity of his principal, or even the fact that he was acting as agent. Under these circumstances, he cannot now assert that he is not a party to the contract.” (Carlesimo, supra, at page 488). Turning to the facts in our case, Plaintiff intended to bind James Brown personally to the contract to have him guarantee the performance of the agreement to provide the discount limousine services. (Decl. of Restivo, Paragraph 5 ). Nowhere in the Mediated Settlement Agreement does it mention Worldwide Ground Transportation Solutions or state that James Brown was not personally liable but instead was acting as the agent for Worldwide. The more formal agreement, which was never signed (identified as Exhibit 14 but not authenticated) mentions both James Brown and Worldwide but nowhere states James Brown is not a party and is signing solely as the agent for Worldwide. In fact, paragraph B(1) states that James Brown “ agrees to perform for his part of the “Discounted Limousine Service’ section in the following manner: James Brown and Worldwide Ground Transportation Services, Inc. will provide . . .” (emphasis added) Thus the express language requires both the individual and the corporation to provide discount limousine services. When Mr. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 8 Case No.: 17CV308469Com QD DH FF WN Dw MN YN KN NY DY Bee ewe we we ewe ewe eH eB RBNHRRREBEK FS SGEeX AVL AADREBEHRHS Restivo presented the more formal agreement to Mr. Brown to sign, Mr. Brown refused to do so saying that he had changed his mind and was not going to honor the agreement. (Depo. Of Restivo, page 155, line 21 to page 157, line 9) Not only is Mr. Brown’s self-serving declaration not conclusive on the issue of whether the Mediated Settlement Agreement was signed by Mr. Brown solely as agent for Worldwide, it may not be admissible at all unless the court finds language somewhere in the Mediated Settlement Agreement that suggests that Mr. Brown was signing as the agent for the corporation. Then and only then is the declaration admissible as parole evidence that may be rebutted by Mr. Restivo’s declaration. Without this finding, Mr. Brown’s signature is presumed to be in his individual capacity and cannot be contested by his self-serving declaration. 3. Defendants’ Material Breach of the Contract Coupled with Defendant Brown’s Repudiation of the Contract Entitles Plaintiff to Treat the Contract as Terminated and Sue for Damages. The following facts appear to be undisputed: Worldwide Ground Transportations Solutions, Inc. entered into an agreement with Restivo Enterprises Inc. which provided that Phil Restivo individually was to provide consulting services and a covenant not to compete for a term of seven (7) years. The covenant not to compete was expressly conditioned upon two things: (1) the payments were to remain current on the note, and (2) the terms in Paragraph 4 of the Addendum to Offer & Agreement to Buy, dated 5/13/14, had to be “adhered to.” After performance began, Plaintiff believed that Defendants were breaching the agreement to provide discount limousine services by improperly refusing to provide him such services when requested. As a result, the parties went to a mediation at which they signed the “Mediated Settlement Agreement” which stated that the value of the discount limousine services that were to be provided was a maximum of $5,000 per month, accumulated and carried forward every four months. The parties signed the two page agreement contemplating that a more formal agreement would be prepared. At this point, there is a dispute with respect to the facts. Mr. Restivo stated that Mr. Alarcon prepared a more formal agreement which Mr. Restivo presented to Mr. Brown to sign. Mr. Brown MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 9 Case No.: 17CV308469refused to sign it and stated that he had changed his mind and would not honor their agreement. (Decl. of Restivo, paragraph 6) Mr. Restivo did not immediately terminate the agreement but instead continued to attempt to obtain Brown’s and Worldwide performance under the agreements only to discover in October of 2016 that Brown and Worldwide were charging him more for “discount” limousine services than a regular customer who called in would pay. (Decl. of Restivo, paragraph 7 ) Shortly after that, their relationship broke down and suit was later filed. A total breach of contract may arise in two ways. There may be an anticipatory breach, termed a breach by anticipatory repudiation, which is necessarily total and which is of importance both with relation to an excuse for nonperformance by the promisee, the repudiation being by the promisor, and the right of the promisee to recover damages immediately for a total breach of the contract before his performance is due under the contract. On the other hand, there may be a total breach of a contract where there has been a partial breach by the promisor, which means of course that the time for a portion of the performance was due, followed by a repudiation of the contract by him. (Gold Mining & Water Co. v. Swinerton (1943) 23 Cal. 2d 19, at page, 142 P. 2d 22) Ifa breach of contract is total, the injured party may treat it as partial, unless the wrongdoer has repudiated the contract. (Coughlin v. Blair (1953) 41 Cal. 2d 587, at page , 262 P. 2d 305). In this case, there was a partial breach of the agreement to provide discount limousine services when Defendants failure to provide the services when requested. Thereafter, Plaintiff attempted to obtain full performance by mediating their dispute and clarifying the obligations under the contract. After the mediation occurred, Defendant Brown repudiated the contract stating that he had changed his mind and did not intend to perform pursuant to the mediated settlement agreement. Thereafter Plaintiff treated the contract as still effective until Plaintiff discovered that Defendant was defrauding him by charging him more for “discount” limousine services than he was charging his regular customers. Plaintiff treated this later act as a further total repudiation of the contract, thereafter terminating the contract and suing for damages. Defendants’ argument that Plaintiff cannot recover for future discount limousine services ignores the above principles of law allowing a party to terminate a contract, which is partially performed, when the promisor breaches the contract and also MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 10 Case No.: 17CV308469an a 0 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 repudiates the contract. 4, If the Contract May Be Terminated as a Result of the Breach by Defendants and Their Repudiation of the Contract, Plaintiff Is Entitled to Treat the Contract as Terminated and Sue for the Value of the Services That Were to Be Provided under the Contract as Damages. Defendants argue that the contract limits Plaintiff's damages to the cost of obtaining another limousine at a higher price. There is no provision in any of the contracts which limits the damages in this or in any other manner other than to limit the maximum amount of services to be provided in a month to $5,000.00. Defendants next argue that if Plaintiff does not request limousine services, he cannot sue for damages for failing to provide the services which were never requested. This ignores the legal principle that if the contract is terminable by Plaintiff due to Defendants’ breach and repudiation of its terms, Plaintiff may elect to treat the contract as terminated and sue for damages. If the contract is terminated, Plaintiff no longer has to request limousine services. His damages are the maximum amount of services that were to be provided to him under the terms of the contract. That was the consideration he bargained for in exchange for the covenant not to compete. The prayer is for damages in the sum of $5,000.00 per month, both past and future. Defendants next argue that the agreement to provide discount limousine services is unenforceable because the Addendum to Offer & Agreement to Buy referred to a “reasonable amount of use as agreed to between Buyer and Mr. Restivo. . .” If the Mediated Settlement Agreement had not been agreed to, this might have required the court to interpret this provision to make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. (C.C. Section 1643) This would have required the court to interpret the otherwise “ambiguous” term to make it lawful, operative, reasonable and capable of being carried out. (Harvey v. Landing Homeowner's Association (2008) 162 C.A. 4" 809, 817, 76 Cal. Rptr. 3d 41). However, that is not necessary as the parties, in the mediated settlement agreement, clarified the amount of discount services that were to be provided each month (i.e. up to a maximum of $5,000). There was no need for further agreement as to what was the reasonable amount of services MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 Case No.: 17CV308469co ON DH FF WY Ne ee Boe a ont ue ee oe Se ee tr fOr too Ce ON ns a tO es to be provided each month. Defendants attempt to create an ambiguity by arguing that the frequency of use was never addressed. However, that is not true. The second paragraph under section 2 states: “Vehicle trade use is good for any day or any time with the exception of Saturdays when 8 passenger or smaller is okay but anything over 8 passenger must be booked within 24 hours or less notification.” The words “good for any day or any time” could not be more clear. Mr. Brown simply refuses to recognize the deal he made as enforceable. 5. The Declaratory Relief Cause of Action Seeks a Declaration of Future Rights with Respect to the Covenant Not to Compete and Therefore Is a Proper Subject for Declaratory Relief. Defendants argue that the cause of action for declaratory relief only seeks to redress past wrongs. That is not correct. Plaintiff seeks to have this court determine the parties’ future rights and obligations under the covenant not to compete. As the court stated in the case of County of San Diego v. State of California (2008) 164 C.A. 4" 580, at page 608, 79 Cal. Rptr. 3d 489, “We recognize that a court can award monetary relief in a declaratory relief action under appropriate circumstances. (citations) For example, if parties to a contract seek declaratory relief as tot the validity of a contract, the court can declare the contract to be valid and enforceable and award damages for its breach in the interest of disposing of the entire controversy between the parties and gran ting complete relief. (citation)” “A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a contract and requests that these rights and duties be adjudged by the court.” (Columbia Pictures Corp. v. De Toth (1945) 26 Cal. 2d 753, 161 P. 2d 227). Plaintiff is seeking a declaration from the court determining the respective rights and duties of the parties on a prospective basis under the covenant not to compete. This request relates to an ongoing relationship which will not end absent a determination from this court. This is exactly the type of controversy that declaratory relief exists for. The fact that past wrongful conduct may affect the prospective rights of the parties does not change the nature of the claim. It is still one for a MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 12 Case No.: 17CV308469declaration of the validity of a contractual term. The fact that damages may also be awarded on a related claim is irrelevant. CONCLUSION: On the basis of the above-cited cases and authorities, Defendants’ motion for summary judgment, or, in the alternative, for summary adjudication must be denied in their entirety, DATED: December _27, 2018 LAW OFFICE! Attorneys/for Plaintiff, PHILIP RESTIVO MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 13 Case No.: 17CV308469