Motion Summary Judgment Adjudication

Cal. Super. - 6th Dist.September 30, 2016

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER LINE 4 Hearing Start Time: 9:00 AM Maxim Integrated Products, Inc. vs Air Products Manufacturing Corporation HearingType: Motion:Summary 16CV300545 Judgment/Adjudication Date of Hearing: 10/05/2017 Comments: Heard By: Stoelker, James L Location: Department 13 Courtroom Reporter: - No Record Transcribed Courtroom Clerk: Ann Vizconde Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - by Def Air Products Manufacturing Corporation (Adam Friedenberg) No appearance. No one called to contest the Tentative Ruling. TENTATIVE RULING IS ADOPTED, see below: Currently before the Court is the motion by defendant and cross-complainant Air Products Manufacturing Corporation, sued as Air Products and Chemicals, Inc. (hereinafter, Air Products ), for summary judgment or, alternatively, summary adjudication. Factual and Procedural Background This action arises out of a long-term contract for the supply of nitrogen between Air Products and plaintiff and cross-defendant Maxim Integrated Products, Inc. ( Maxim ). Maxim filed the underlying complaint against Air Products on September 30, 2016, alleging claims for (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) unfair business practices, and (4) declaratory relief. On October 28, 2016, Air Products filed an answer to the complaint and a cross-complaint against Maxim. Printed 10/5/2017 10/05/2017 Manon Summary Judgment/Adjudlcanon - 16CV300545 Page 1 of9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER According to the allegations of the cross-complaint, Air Products and Maxim entered into a written Nitrogen Agreement (Agreement ) on June 30, 1998. (Cross-Complaint, 9.) Pursuant to the Agreement, Air Products agreed to sell and Maxim agreed to buy Maxim 5 requirements of nitrogen gas for use at two Maxim facilities. (Id. at 10, Ex. A.) The two facilities were located at 430 West Maude Avenue, Sunnyvale, California (West Maude Avenue ) and 3725 North First Street, San Jose, California ( North First Street). (lbid.) The initial term of the Agreement ( Initial Term ) was ten years from the first day (Commencement Date ) of the month following the date the Equipment for 3725 North First Street (as defined in paragraph 3(a)) [was] installed and ready for operation . (Cross-Complaint, 11, Ex. A.) Under the Agreement, Air Products was required to fabricate and install a pipeline, purifier, filter manifold, and related metering equipment at North First Street to facilitate the supply of [nitrogen gas] from [Air Products ] production and storage facilities at Santa Clara, CA ( Facility ) through the appurtenant pipeline system (Distribution System ). (Id. at 14.) The Equipment for 3725 North First Street was installed and ready for operation on or about December 7, 1998, such that the Initial Term commenced on January 1, 1999. (Id. at 12.) The Agreement was to remain in force from year to year after the expiration of the Initial Term unless terminated as provided in the Agreement. (Id. at 11, Ex. A.) The initial term of the Agreement together with any extension constituted the Supply Period. (lbid.) For each site, the Agreement obligated Air Products to supply Maxim s instantaneous requirements for gas up to 30,000 standard cubic foot ( SCF ) per hour ( Nitrogen Gas Delivery Rate ). (Cross-Complaint, 13, Ex. A.) The Agreement also provided for the sale of additional quantities of nitrogen up to a maximum of 50,000 SCF per hour in the event Maxim 5 requirements exceeded 30,000 SCF. (lbid.) Under the Agreement, Maxim had the right to modify the Nitrogen Gas Delivery Rate up to 60,000 SCF per hour, within thirty-six months of the Agreement 5 commencement date, if it developed an on-going requirement in excess of the Nitrogen Gas Delivery Rate. (lbid.) With respect to payment, the Agreement provided that [Maxim] shall pay [Air Products], during the Supply Period for [nitrogen gas] supplied and purchased up to the Nitrogen Gas Delivery Rate a price of $0.165 per 100 SCF for West Maude Avenue and $0.145 per 100 SCF for North First Street. (Cross- Complaint, 15, Ex. A.) During the Supply Period, Maxim was required to take or pay for, or pay for even if not taken, that amount of [nitrogen gas] which represents fifty percent of the total quantity of [nitrogen gas] at the Nitrogen Gas Delivery Rate for each calendar month. (lbid.) The Agreement also provided that [Maxim] shall pay [Air Products], during the Supply Period for Nitrogen Purifier provided by [Air Products] at [Maxim s] facility a monthly charge of $7,250 for North First Street. (lbid.) Finally, Maxim was obligated to pay various taxes, charges, and fees, including its pro rata share of real estate and personal property taxes assessed against Air Products production and storage facilities in Santa Clara, the Distribution System, and Equipment. (lbid.) Air Products alleges that Maxim 5 current minimum monthly payment is $61,359, which includes the minimum charge for the nitrogen gas plus the monthly charge for the nitrogen purifier. On June 7, 2001, the parties executed Amendment No. 1 of the Agreement. (Cross-Complaint, 19, Ex. B.) Amendment No. 1 was effective as of May 1, 2001, and allegedly re-started the ten-year Initial Term of the Agreement. (Id. at 18-21.) Specifically, Amendment No. 1 provides that: Prmled 10/5/2017 10/05/2017 Mellon Summary Iudgmenl/Adjudlcallon - 16CV300545 Page 2 of9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER 1. Paragraph 2(a), TERM, of the Agreement shall be amended as follows: The following language shall be deleted Equipment for 3725 North First Street (as defined in Paragraph 3(a)) and replaced with purifier for 3725 North First Street. (Id. at 19, Ex. B.) Amendment No. 1 also increased the maximum flowrate from 10,000 SCF per hour to 30,000 SCF per hour. (lbid.) The purifier for North First Street was installed and made ready for operation on July 13, 2001. (Id. at 22.) Thus, the Initial Term, as amended, allegedly commenced on August 1, 2001 and continued until July 31, 2011. (lbid.) In mid-2008, the parties executed Amendment No. 2 of the Agreement. (Cross-Complaint, 23, Ex. C.) Amendment No. 2 removed West Maude Avenue from the Agreement; added a new site location at 120 San Gabriel Drive, Sunnyvale, California (San Gabriel ); provided Maxim with equipment for use at San Gabriel; and set forth new price terms. (Id. at 23-24.) Additionally, Amendment No. 2 allegedly re-started the ten-year Initial Term. (Id. at 23 and 25-26.) Specifically, Amendment No. 2 provides that: 2. Paragraph 2, subparagraph a, TERM, is hereby amended such that the phrase purifier for 3725 North First Street shall be replaced with the phrase Equipment for 102 San Gabriel Drive (as defined in Paragraph 3(a)). (Id. at 25, Ex. C.) The equipment for San Gabriel was installed and made ready for operation on August 26, 2008. (Id. at 27.) Thus, the Initial Term, as amended, allegedly commenced on September 1, 2008 and continued until August 31, 2018. (lbid.) Subsequently, the parties executed a third amendment of the Agreement (Amendment No. 3 ). (Cross- Complaint, 28.) Amendment No. 3 added a new site location, Rio Robles, and provided that there was a new Initial Term for the Rio Robles site only. (lbid.) Thus, the end date of the Initial Term for North First Street continued to be August 31, 2018. (lbid.) On April 27, 2015, Maxim sent Air Products a letter advising that it would terminate the Agreement as to North First Street effective May 1, 2016. (Cross-Complaint, 29.) The same day, Maxim sent another letter to Air Products purporting to terminate service at North First Street effective June 30, 2016. (lbid.) Air Products alleges the letters were improper because the Initial Term does not expire until August 31, 2018, and Maxim has no unilateral right to terminate the Agreement early. (Id. at 30.) Air Products informed Maxim that it was obligated to make the required minimum monthly payments for North First Street through August 2018, but Maxim failed to make payments on any invoice issued for North First Street after July 1, 2016. (Id. at 31.) Furthermore, Maxim told Air Products that it would make no additional purchases or minimum monthly payments for the North First Street site. (lbid.) Based on the foregoing, Air Products cross-complaint alleges two causes of action for (1) breach of contract and (2) declaratory relief. Prmled 10/5/2017 10/05/2017 Motion Summary Judgment/Adjudication - 16CV300545 Page 3 of9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER On July 20, 2017, Air Products filed the instant motion for summaryjudgment of its cross-complaint or, alternatively, summary adjudication of its first and second causes of action. A few days later, Air Products filed a corrected memorandum of points and authorities. Maxim filed papers in opposition to the motion on September 21, 2017. Discussion l. Legal Standard on Motions for Summary Judgment/Adjudication A motion for summaryjudgment shall be granted when all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) Where a plaintiff moves for summary judgment, the plaintiff bears the initial burden of showing that there is no defense to a cause of action by proving each element of the cause of action entitling the plaintiff tojudgment. (Code Civ. Proc., 437, subd. (p)(1); Paramount Petroleum Corporation v. Super. Ct. (2014) 227 Cal.App.4th 226, 241 (Paramount).) If the plaintiff makes such a showing, the burden then shifts to the defendant to show that a triable issue of one or more material facts exists as to a cause of action or a defense thereto. (lbid.) Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. A summary adjudication is properly granted only if a motion therefor completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment. (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464, internal citations omitted.) For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence, which is to say the motion is evidentiary in nature and cannot be based solely upon the allegations in a complaint. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463.) In ruling on the motion, however, a court cannot weigh the evidence presented or deny summaryjudgment or adjudication on the ground any particular evidence lacks credibility. (Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summaryjudgment is a drastic remedy eliminating trial, the court must liberally construe evidence in support of the party opposing summaryjudgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed- California Co. (1978) 86 Cal.App.3d 714, 717-718.) ll. Evidentiary Objections Maxim submits objections to evidence offered by Air Products in support of its pending motion and a proposed order in the proper format pursuant to California Rules of Court, rule 3.1354. Prmled 10/5/2017 10/05/2017 Motion Summary Judgment/Adjudication - 16CV300545 Page 4 of9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Upon review of the objections, the Court finds that Objection Nos. 1-9 are improper because they are directed to some of the undisputed material facts ( UMF ) asserted by Air Products in its separate statement as opposed to the evidence proffered in support of the UMF. (Cal. Rules of Ct., rule 3.1354(b) [mandating that all written objections to evidence in opposition to a motion for summary judgment quote or set forth the objectionable statement or material].) Next, the Court finds that Objection No. 19 to the declaration of Warren John Sullivan (Sullivan) is well- taken. Sullivan 5 statement that [f]or purposes of calculating the minimum monthly payment Maxim owes pursuant to the Agreement and Amendments, the current Product unit price is 24 cents per 100 SCF lacks foundation. Sullivan does not explain how he arrived at the conclusion that [f]or purposes of calculating the minimum monthly payment Maxim owes pursuant to the Agreement and Amendments, the current Product unit price is 24 cents per 100 SCF. Notably, Amendment No. 3 of the Agreement provides that Maxim shall pay Air Products $0.195 per 100 SCF for Product delivered to North First Street up to the Nitrogen Gas Delivery Rate of 60,000 SCF per hour. (Sullivan Dec. Ex. G, italics added.) In addition, the Court finds that Objection No. 20 to the Sullivan declaration is well-taken as to the statement that Maxim is obligated to pay $60,267 for annual property taxes and other contractual charges. As Maxim persuasively argues, this statement lacks foundation as Sullivan does not provide any breakdown or calculation explaining how he arrived at the $60,267 amount of annual property taxes and other contractual charges. Finally, the Court finds that the remaining objections lack merit. In light of the foregoing, Objection Nos. 1-18 and 21-22 are overruled and Objection Nos. 19 and 20 are granted. Ill. Merits of the Motion Air Products contends that its first cross-claim for breach of contract is established as a matter of law because undisputed facts demonstrate: (1) the existence of a contract between [it] and [Maxim]; (2) that [it] has performed the contract; (3) that Maxim has breached the contract; and (4) the damages resulting from Maxim s breach. (Ntc. Mtn., p. 222-6.) Air Products further asserts that because Maxim has repudiated the contract, [it] is entitled to recover both the past and prospective amounts owed pursuant to the contract. (Id. at p. 226-8.) Lastly, Air Products contends that its second cross-claim for declaratory relief is established as a matter of law because undisputed material facts demonstrate that Maxim has the continuing obligation through August 31, 2018, to make the required monthly minimum payments set forth in the contract, or to pay Air Products the sum of the remaining monthly payments owed under the agreement together with any incidental costs. (Id. at p. 2:9-13.) A. First Cause of Action In the first cause of action for breach of contract, Air Products alleges that it fully performed its obligations Prmled 10/5/2017 10/05/2017 Motion Summary Judgment/Adjudication - 16CV300545 Page 5 of9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER under the Agreement. (Cross-Complaint, 34.) It further alleges that Maxim s attempt to terminate the Agreement before expiration of the Initial Term and its ongoing refusal to make payments required by the Agreement, constitutes a breach of the Agreement. (Id. at 33.) Air Products also alleges that Maxim has repudiated the Agreement by failing to make the required monthly payments under the Agreement and advising that it will make no further payments. (Id. at 35.) Air Products concludes that as a result of the alleged breach of contract it has been damaged and it is entitled to damages reflecting the entire unpaid contract price and any incidental damages, including without limitation any taxes paid by [it] pursuant to paragraph 10 of the Agreement. (Id. at 36.) [T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff 5 performance or excuse for nonperformance, (3) defendant 5 breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Air Products argues that there is no triable issue of material fact with respect to its claim for breach of contract because the Agreement is valid and remains in effect through August 31, 2018; it performed its obligations under the Agreement by delivering nitrogen up until the time of Maxim s breach; Maxim breached the Agreement by failing to take or pay for the monthly minimum product requirement; and it has been damaged in the amount of $1,655.601. (Mem. Ps. & As., p. 929-13.) In support of its argument, Air Products presents the following UMF: (1) on June 30, 1998, it entered into the written Agreement with Maxim, whereby it agreed to supply Maxim with nitrogen gas for a ten-year term; (2) the Agreement applied to two Maxim facilities, West Maude Avenue and North First Street; (3) among other things, the Agreement required that [d]uring the Supply Period, Buyer [Maxim] must take and pay for, or pay for even if not taken fifty percent (50%) of the total quantity of Product at the Nitrogen Gas Delivery Rate for each calendar month; (4) in 2001, the parties agreed to extend the ten-year Initial Term of the Agreement by re-starting the Initial Term effective August 1, 2001, for a new ten-year period; (5) in 2008, the parties agreed to extend the Agreement by re-starting it effective September 1, 2008, for a new ten-year period; (6) it performed pursuant to the Agreement by delivering nitrogen gas to North First Street up until the time of Maxim s breach; (7) Maxim made its final monthly payment for North First Street on August 2, 2016, and has refused to make the monthly minimum payments required by the Agreement since that time; (8) on August 29, 2016, its sent Maxim a letter seeking, among other things, adequate assurance of performance of the Agreement; (9) Maxim did not provide the requested assurances, but instead refused to pay monthly invoices issued pursuant to the Agreement as they became due; (10) under the terms of the Agreement, Maxim is required to pay it for the 26-month period July 1, 2016 to August 31, 2018; (11) Maxim s obligation includes 26 equal monthly payments of $61,359 (which includes a monthly minimum product fee of $52,640 and a monthly fee of $8,719 for the nitrogen purifier) plus $60,267 for annual property taxes and other contractual charges. The evidence supporting these UMF is the Sullivan declaration and the attachments thereto. Upon review of the foregoing, the Court finds that Air Products has failed to meet its initial burden with respect to the first cause of action for breach of contract. First, as articulated above, Air Products breach of contract claim is based, in part, on Maxim s alleged failure to pay a monthly charge for the nitrogen purifier through August 31, 2018. (See Cross-Complaint, 14-16, 31, 33, 35-36; see also UMF Nos. 7 and 10-11.) The relevant clause provides: Prmled 10/5/2017 10/05/2017 Mellon Summary Iudgmenl/Adjudlcallon - 16CV300545 Page 6 of9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Buyer shall pay Seller, during the Supply Period for Nitrogen Purifier provided by Seller at Buyer 5 facility as follows: Designated Location Maximum Flowrate Monthly Charge 3725 North First Street 10,000 SCF per hour $7,250 (Sullivan Dec., Ex. A, p. 2, 8(b).) Amendment No. 2 increased the monthly service charge from $7,250 to $8,470.42. (Sullivan Dec., Ex. D.) This clause is ambiguous on its face. (See TRB Investments, Inc. v. Fireman 5 Fund Ins. Co. (2006) 40 Cal.4th 19, 27 [A provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. 1.) Air Products interprets the provision to mean that Maxim was required to pay a monthly charge for the nitrogen purifier for each month of the Supply Period regardless of whether the purifier was actually provided, and in use, during each month. In contrast, Maxim asserts that the provision does not require it to pay the monthly charge for the nitrogen purifier for those months after the purifier was removed from North First Street. The contract language is reasonably susceptible to the meaning ascribed by Maxim because the Agreement states that Maxim shall pay Air Products a monthly charge during the Supply Period for Nitrogen Purifier provided by [Air Products] at [Maxim s] facility. Thus, once the purifier was no longer provided at the North First Street facility, arguably Maxim was no longer obligated to pay the monthly service charge. Where there is such ambiguity, the scope of the subject provision cannot be resolved on summary judgment or adjudication. (See Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 361; see also Leep v. American Ship Management (2005) 126 Cal.App.4th 1028, 1041 [When the meaning of the language of a contract is doubtful or uncertain and parol evidence is introduced in aid of its interpretation, the question of meaning is one of fact. [Citation.] The contract language is sufficiently broad, uncertain in its meaning to require an examination into extrinsic circumstances to ascertain the intent of the parties. In such circumstances it is the primary duty of the trial court to construe the language after a full opportunity afforded to all parties in the case to produce evidence of facts, circumstances and conditions surrounding its effect and the conduct of the parties relating thereto. [Citation.] Such duty is not performed, cannot be performed by the summaryjudgment procedures. ], internal quotation marks omitted.) Consequently, Air Products fails to establish, as a matter of law, that Maxim breached the Agreement by refusing to pay the monthly charges for the nitrogen purifier through August 31, 2018. Second, Air Products fails to demonstrate that there is no triable issue of material fact with respect to the amount of damages to which it is entitled. (See Dept. of Indus. Relations v. Ul Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1097 [summary judgment and/or adjudication is inappropriate where issues of the calculation of damages remain to be determined]; see also Paramount, supra, 227 Cal.App.4th at p. 241.) As articulated above, Air Products seeks to recover the monthly charge for the nitrogen purifier as part of its damages. (See UMF No. 11 [ Maxim s obligation includes 26 equal monthly payments of $61,359 (which includes a monthly minimum product fee of $52,640 and a monthly fee of $8,719 for the nitrogen purifier) 1.) Air Products asserts that it is entitled to recover $8,719 per month for the nitrogen purifier. (See ibid.; see also Mem. Ps. & As., p. 8:14.) However, the operative contract language, set forth in Amendment No. 2, Prmled 10/5/2017 10/05/2017 Motion Summary Judgment/Adjudication - 16CV300545 Page 7 of9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER regarding the amount of the monthly charge for the nitrogen purifier states that the monthly charge is only $8,470.42. (Sullivan Dec., Ex. D.) Air Products does not explain this discrepancy and, therefore, fails to meet its burden with respect to the amount of damages. Additionally, Air Products asserts that the monthly minimum product charge that it is entitled to recover is $52,640. Air Products reached this amount by using the following formula: (.5 x 60,000 SCF x 24 hours x 365 days x .0024 cents) / 12 months. Air Products monthly minimum product charge is based on Sullivan 5 statement that the current Product unit price is 24 cents per 100 SCF. However, as previously explained, this statement lacks foundation as Sullivan does not explain how he arrived at the conclusion that [f]or purposes of calculating the minimum monthly payment Maxim owes pursuant to the Agreement and Amendments, the current Product unit price is 24 cents per 100 SCF. Sullivan and Air Products do not point to any portion of the Agreement, or the amendments thereto, providing that the monthly minimum product charge should be calculated by using a current product unit price of 24 cents per 100 SCF. Instead, Amendment No. 3 of the Agreement provides that Maxim shall pay Air Products $0.195 per 100 SCF for Product delivered to North First Street up to the Nitrogen Gas Delivery Rate of 60,000 SCF per hour. (Sullivan Dec. Ex. G, italics added.) Thus, Air Products fails tojustify the amount sought in connection with the monthly minimum product charge. Furthermore, Air Products also seeks to recover $60,267 for annual property taxes and other contractual charges. Air Products fails to provide any breakdown or calculation explaining how Sullivan arrived at the amount of $60,267 for annual property taxes and other contractual charges. Moreover, it is wholly unclear what is included in the other contractual charges and what portion of the $60,267 is comprised of these other contractual charges. Therefore, there is no way for the Court to determine whether Air Products is entitled to recover those charges under the terms of the Agreement. For these reasons, the motion for summary judgement of the cross-complaint and summary adjudication of the first cause of action is DENIED. B. Second Cause of Action In the second cause of action for declaratory relief, Air Products alleges that [a]n actual dispute and controversy has arisen and presently exists between [it] and Maxim in that [it] contends and Maxim denies that Maxim remains obligated through August 31, 2018, to make the minimum monthly payments required by the Agreement, as amended by Amendment No. 2. (Cross-Complaint, 38.) Air Products requests a judicial declaration of the parties rights, duties, and obligations under the Agreement and the amendments thereto. Specifically, Air Products asks for a decree that Maxim has the continuing obligations through August 31, 2018, to make the required monthly minimum payments provided by the Agreement or to pay Air Products the sum on the remaining monthly payments owed under the Agreement together with any incidental damages. (Id. at 39.) Code of Civil Procedure section 1060, which governs actions for declaratory relief, provides: Any person interested under a written instrument , or under a contract, or who desires a declaration of his or her rights or duties with respect to another may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the Prmled 10/5/2017 10/05/2017 Motion Summary Judgment/Adjudication - 16CV300545 Page 8 of9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER instrument or contract. Summaryjudgment is appropriate in a declaratory relief action when only legal issues are presented for the court 5 determination. (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 185.) Air Products argues that there is no triable issue of material fact with respect to its claim for declaratory relief because there is no legitimate dispute that Maxim 1) is obligated to make monthly payments of $61,359 through August 2018, and 2) has refused and continues to refuse to do so. (Mem. Ps. & As., pp. 10- 11.) Air Products offers UMF Nos. 1-11 in support of its argument. The Court finds that Air Products motion with respect to the second cause of action is not well-taken because Air Products fails to establish that it is entitled to the sought-after declaration. The sought-after declaration is based, in part, on Air Products assertion that it is entitled to recover a monthly charge for the nitrogen purifier through August 2018. As articulated above, Air Products has not shown that it is entitled to recover that monthly charge. Thus, it is not entitled to the sought-after declaration. Accordingly, the motion for summary adjudication of the second cause of action is DENIED. - ooOoo - 10/05/2017 Motion Summary Judgment/Adjudication - 16CV300545 Page 9 of9 Printed 10/5/2017