Opinion
A141315
06-09-2017
RAFIK EL-HANI; EL-HANI SERVICES, INC., Plaintiffs and Appellants, v. FEDEX GROUND PACKAGE SYSTEM, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC-10-500506)
Appellants El-Hani Services, Inc. and its owner, Rafik El-Hani (together, El-Hani) licensed and operated certain delivery routes from respondent FedEx Ground Package System, Inc. (FedEx). El-Hani alleges that at a meeting with FedEx managers in 2008, he was told that his contract would be terminated unless he transferred his routes to one of his drivers, and that FedEx orally guaranteed payment for the routes. After FedEx and the driver failed to pay El-Hani, he brought breach of contract and related claims against them both. FedEx moved for summary judgment and the trial court granted the motion, finding that the breach of contract claim was barred by the statute of frauds and was based on an alleged promise too uncertain to be enforceable. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 2003, El-Hani licensed and operated several delivery routes from FedEx. After a June 2008 wine shipment was not handled by El-Hani to FedEx's satisfaction, El-Hani had a meeting with FedEx employees Tiffany Ringgold and Mike Wynant. According to El-Hani, Wynant and Ringgold told him that he had breached his contract, that they were sending his file to headquarters in Pittsburgh for termination, and that his only options were to allow his contract to be terminated or to sell his routes to one of his drivers, Marc Crawley. El-Hani also claims he was told that FedEx would guarantee that he would be paid for the routes. On June 11, 2008, El-Hani signed and delivered a document to FedEx transferring the routes to Crawley. El-Hani alleges that FedEx made payments under the parties' alleged guarantee agreement for at least a month after the sale, but then stopped.
El-Hani filed suit against FedEx and Crawley in San Francisco Superior Court on June 4, 2010. El-Hani's first amended complaint brings claims for breach of contract, tortious breach of contract, unfair competition, common counts, concealment, fraud, civil extortion and violation of the Unruh Act.
FedEx moved for summary judgment on all of El-Hani's claims. El-Hani opposed the motion, and filed 33 objections to the evidence relied on by FedEx. The trial court issued a tentative ruling granting FedEx's motion in its entirety. With respect to El-Hani's breach of contract claim, the trial court found:
"The Court grants [FedEx's] motion for summary judgment. Plaintiffs cannot establish the third cause of action for breach of contract/guarantee. The contract is too uncertain and the statute of frauds bars the claim. Plaintiff Rafik El-Hani's declaration, which states that defendant guaranteed $250,000, contradicts his deposition testimony and does not create a triable issue of material fact. Plaintiffs failed to show that defendant had a personal, immediate, and pecuniary interest in the transaction and therefore, the exception to the statute of frauds does not apply."
At the hearing on the motion, the trial court overruled all of El-Hani's evidentiary objections and adopted its tentative ruling granting FedEx's motion. El-Hani appeals.
DISCUSSION
On appeal, El-Hani makes two arguments: (1) the trial court erred in overruling his evidentiary objections; and (2) the trial court erred in concluding that he failed to show FedEx had a " 'personal, immediate, and pecuniary interest' " in the transaction, as required to establish an exception to the statute of frauds. (See Michael Distributing Co. v. Tobin (1964) 225 Cal.App.2d 655, 664-665.) I. El-Hani Has Not Established Prejudice from the Trial Court's Evidentiary Rulings
Although the law is not settled, the weight of authority holds that we review the trial court's rulings on evidentiary objections on a motion for summary judgment for abuse of discretion. (See Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852; but see Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 ["[W]e need not decide generally whether a trial court's ruling on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo"].) However, an erroneous evidentiary ruling requires reversal only if "there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.]" (Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1449; see Evid. Code, § 354.)
In his opening brief, El-Hani simply inserts a copy of the 33 objections he filed before the trial court and asserts that "[h]ad Appellant's objections been sustained Respondent's motion would have failed because it would not be able to have meet [sic] its burden of production and persuasion" and "[h]ad the objections been sustained Respondent would not have met its burden." El-Hani does not give any explanation how exclusion of the evidence would have created any triable issues of material fact with respect to any of his multiple claims, or otherwise affected the trial court's ruling so as to create a "reasonable probability" that FedEx's motion would not have been granted. The evidence at issue in El-Hani's objections does not relate to the indefiniteness of the alleged contract or the statute of frauds, the two grounds on which the trial court granted summary judgment on El-Hani's breach of contract claim. Accordingly, even if the trial court erroneously overruled his evidentiary objections, El-Hani has failed to establish prejudice from the error. (See Twenty-Nine Palms Enterprises Corp., supra, 210 Cal.App.4th at p. 1449.) II. El-Hani Does Not Address the Second Independent Ground for Summary Judgment
El-Hani's second argument is that the trial court erred in finding his breach of contract claim barred by the statute of frauds, because there is a statutory exception for "[a] promise to answer for the obligation of another . . . [¶] . . . [¶] where the promise is upon a consideration beneficial to the promisor." (Cal. Civ. Code § 2794, subd. (4).) But even if this exception to the statute of fraud applies as El-Hani argues, the trial court granted summary judgment to FedEx on the independent ground that the alleged promise was too uncertain to be enforceable. El-Hani does not address this independent ground in his brief, and does not offer any argument that summary judgment on this basis was improper. Accordingly, El-Hani has failed to demonstrate prejudice, and we will affirm the judgment. (See Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126 [affirming grant of summary judgment where appellant failed to offer argument on independent ground for summary judgment].)
DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
RIVERA, J.