Memorandum Points and Authorities

Cal. Super. - 6th Dist.August 14, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO MARK E. MCKEEN (SBN 130950) mark.mckeen@dlapiper.com EVA K. SCHUELLER (SBN 237886) evi.schueller@dlapiper.com DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, California 94105-2933 Tel: 415.836.2500 Fax: 415.836.2501 Attorneys for Defendant SEMI, INC. Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/2/2021 3:13 PM Reviewed By: L Del Mundo Case #1 8CV333268 Envelope: 6977457 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ARCLITE, INC., Plaintiff, V. MILMONT FIELDS, LLC, a California Limited Liability Company; SEMI, INC., a California Corporation; and DOES 1-50, inclusive, Defendants. CASE NO. 18CV333268 DEFENDANT SEMI, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION Date: Time: 9:00 a.m. Dept.: 2 Complaint filed: August 14, 2018 First Amended Complaint filed: Nov. 7, 2018 -1- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT WEST\294305780.1 CASE NO. 18CV333268 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO II. III. IV. TABLE OF CONTENTS Page INTRODUCTION .............................................................................................................. 5 STANDARD ON MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION ............................................................................................................... 5 STATEMENT OF UNDISPUTED FACTS AND SUPPORTING EVIDENCE ............... 7 ARGUMENT .................................................................................................................... 1 1 A. Defendant SEMI’S Motion Should Be Granted against Plaintiff Arclite’s Fourth Cause of Action for “Breach of Oral Contract” in its First Amended Complaint. ............................................................................................................. 1 1 B. Defendant SEMI’s Motion Should Be Granted against Plaintiff Arclite’s Fifth Cause 0f Action for “Quantum Meruit” in its First Amended Complaint. ............................................................................................................. 13 C. Defendant SEMI’S Motion Should Be Granted against Plaintiff Arclite’s Sixth Cause of Action for “Open Book Account” in its First Amended Complaint. ............................................................................................................. 13 CONCLUSION ................................................................................................................. 1 5 -2- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT WEST\294305780.1 CASE NO. 18CV333268 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO TABLE OF AUTHORITIES Pagegs) CASES Addy v Bliss & Glennon (1996) 44 Ca1.App.4th 205 ....................................................................................................... 7 Aguilar v. Atlantic Richfield C0. (2001) 25 Cal. 4th 826 .......................................................................................................... 6, 7 Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322 ..................................................................................................... 7 FPIDev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367 ....................................................................................................... 6 Hawkins v. Wilton (2006) 144 Cal. App. 4th 936 ................................................................................................... 6 Hindin v. Rust (2004) 118 Ca1.App.4th 1247 ................................................................................................... 7 Joslin v. Gertz (1957) 155 Cal.App.2d 62 ....................................................................................................... 14 Ladas v. California State Automobile Assn. (1993) 19 Cal.App.4th 761 ..................................................................................................... 12 Lewis v. Chevron (2004) 119 Cal. App. 4th 690 ................................................................................................... 6 Melican v. Regents 0f University ofCalifornia (2007) 151 Cal. App. 4th 168 ................................................................................................... 6 Ochs v. PacificCare ofCalifornia (2004) 115 Ca1.App.4th 782 ................................................................................................... 13 Richman v. Hartley (2014) 224 Ca1.App.4th 1182 ................................................................................................. 11 Roth v. Rhodes (1994) 25 Cal.App.4th 530 ....................................................................................................... 6 Saelzer v Advance, Group 400 (2001) 25 Ca1.4th 763 ............................................................................................................... 6 -3- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO Tsemel‘zin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334 ..................................................................................................... 6 Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793 ..................................................................................................... 12 OTHER STATE STATUTES Civil Code § 337a ...................................................................................................................................... 14 Code CiV. Proc. § 437C ........................................................................................................................................ 5 § 437c(f)(l) ................................................................................................................................ 7 § 437c(p) ................................................................................................................................... 7 § 437c(p)(1) ................................................................................................................................ 7 OTHER AUTHORITIES CACI 302 ...................................................................................................................................... 12 CACI 303 ...................................................................................................................................... 11 CACI 371 ...................................................................................................................................... 13 CACI 372 ...................................................................................................................................... 14 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) 101235 (rev. # I, 2006) ..................................................................... 7 -4- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO I. INTRODUCTION Defendant SEMI, Inc. (“defendant SEMI” 0r “SEMI”) is a commercial tenant at the premises located at 673 S. Milpitas Boulevard in the city of Milpitas, California (the “Premises”), wherein co-defendant Milmont Fields, LLC (“defendant Milmont” or “Milmont”) is its landlord under a commercial lease. Plaintiff Arclite, Inc. (“plaintiff Arclite” 0r “Arclite”) was defendant Milmont’s selection as the electrical contractor for work at the leased premises. Working With Milmont and Arclite, defendant SEMI agreed to pay plaintiff Arclite for certain additional costs for trenching and drilling, Which it did pay in full pursuant t0 two (2) written invoices, nos. 1162 (in the sum of $8,160.00, paid on December 9, 2016) and 1178 (in the sum 0f $157,047.25, paid 0n March 16, 2017). However, apart from those two invoices (and as plaintiff Arclite now fully admits Via PMK deposition testimony, as confirmed by defendant SEMI’s declaration filed herewith), SEMI did not agree to, authorize and/or request any additional workfrom Arclite - which purported “additional wor ” constitutes the entirety 0f plaintiff Arclite’s three (3) causes 0f action against SEMI in its First Amended Complaint (“FAC”), and its purported monetary “claim” against SEMI for $225,532.30 (Via purported “invoice” n0. 1235 dated September 29, 2017). Specifically, those claims asserted against defendant SEMI in the FAC are (1) “breach 0f oral contract” [fourth cause 0f action], (2) “quantum meruit” [fifth cause of action], and (3) “open book account” [sixth cause of action]. Accordingly, given the undisputed material facts and evidence set forth in this Motion, as well as California law as applicable supporting its positions and arguments, defendant SEMI respectfully requests summary judgment or, alternatively, summary adjudication pursuant to Code 0f Civil Procedure section 437C against the three (3) causes of actions asserted by plaintiff Arclite against defendant SEMI in Plaintiff’s FAC, each seeking the same damage amount of $225,532.30, as a matter oflaw. II. STANDARD ON MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION In evaluating a motion for summary judgment 0r summary adjudication the Court engages in a three-step process. -5- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO First, the Court identifies the issues framed by the pleadings. The pleadings define the scope 0f the issues 0n a motion for summary judgment 0r summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment 0r summary adjudication is limited t0 the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment 0r summary adjudication. (Roth v. Rhodes (1994) 25 Ca1.App.4th 530, 541 .) The papers filed in response to a defendant's motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Ca1.App.4th 1334, 1342.) Indeed, it has often been noted that "[i]t would be patently unfair t0 allow plaintiffs t0 defeat [defendant’s] summary judgment motion by allowing them t0 present a 'moving target' unbounded by the pleadings." (Melican v. Regents 0f University ofCalifornia (2007) 151 Cal. App. 4th 168, 176-177.) Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment 01' summary adjudication bears the burden of persuasion that one or more elements 0f the plaintiffs cause of action cannot be established, 0r that there is a complete defense to the cause 0f action. (Aguilar v. Atlantic Richfield C0. (2001) 25 Cal. 4th 826, 850, quoting CCP § 437c(p)(2).) A defendant is not required t0 conclusively negate one or more elements 0f the plaintiffs cause 0f action. (Saelzer v Advance, Group 400 (2001) 25 Ca1.4th 763, 780-781). Rather, to meet its burden, the defendant is required t0 show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, 25 Cal.4th at 853-855.) Further, the initial burden requires a showing that the plaintiff "could not prevail on any theory raised by the pleadings." (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 939-940.) At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make "an affirmative showing" in support 0f its motion. (See Aguilar, 25 Cal.4th at 854-855 -6- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO 11.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.) Similarly, a plaintiff (0r cross-complainant) moving for summary judgment meets its burden of showing that there is no defense to its cause 0f action by proving each element 0f its cause 0f action. CCP §437c(p)(1). It is no longer required also t0 disprove any defense asserted by the defendant. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) 10:235, p. 10-89 (rev. # I , 2006) [when plaintiff moves for summary judgment "[u]nlike former law, it is not plaintiffs initial burden t0 disprove affirmative defenses and cross[1]complaints asserted by defendant"].) If the plaintiff does so, the burden shifts to the defendant to show that a triable issue 0f fact exists as to that cause of action or defense. In doing so, the defendant cannot rely 0n the mere allegations or denial of its pleadings, "but, instead, shall set forth the specific facts showing that a triable issue 0f material fact exists ." (Code CiV. Proc, § 437C, subd. (p)(1).) A triable issue 0f material fact exists "if, and only if, the evidence would allow a reasonable trier 0f fact t0 find the underlying fact in favor 0f the party opposing the motion in accordance with the applicable standard 0f proof. [Fn. 0mitted.]" (Aguilar v. Atlantic Richfield C0. (2001) 25 Cal. 4th 826, 850.) Once the moving party has met its burden, the burden shifts to the opposing party t0 show that a material factual issue exists as t0 the cause 0f action alleged or a defense t0 it. (Code CiV. Proc. § 437c(p); see generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327.) In ruling 0n the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, 25 Cal.4th at 843.) Summary adjudication requires disposition of an entire cause of action 0r claim for damages. (Code CiV. Proc. § 437c(f)(l); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.) III. STATEMENT OF UNDISPUTED FACTS AND SUPPORTING EVIDENCE Defendant SEMI is a commercial tenant at the premises located at 673 S. Milpitas Boulevard in the city 0f Milpitas, California (the “Premises”), wherein co-defendant Milmont is its landlord under a commercial lease. (See defendant SEMI’s Separate Statement 0fUndisputed Material Facts and Evidence in Support of SEMI’S Motion for Summary Judgment 0r, -7- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO Alternatively, Summary Adjudication (“SEMI’s SSUMF”), N0. 1.) In his job role at SEMI, John Friedlund was responsible for taking the lead in interactions with landlord Milmont and/or any outside contractor regarding any specific work 0r physical improvements t0 be made at the Premises during the term 0f the Lease. (SEMI’S SSUMF, N0. 1.) Plaintiff Arclite was defendant Milmont’s selection as the electrical contractor for certain work requested by Milmont at the Premises. (SEMI’s SSUMF, N0. 2.) However, SEMI and Milmont determined that specific trenching for electrical in SEMI’S seminar and conference rooms (downstairs) and drilling for cubicle installation (upstairs), and related work thereto, was outside the scope of Milmont’s work with Arclite. (SEMI’s SSUMF, No. 2.) As a result, working With Milmont and Arclite, Defendant SEMI agreed to pay Arclite for such specific, agreed-to additional costs for trenching and drilling work, and related work thereto, which SEMI did pay in full pursuant to two written invoices from Arclite, i.e., invoice no. 1162 dated December 4, 2016 (in the sum of $8,160.00, paid by SEMI on December 9, 2016) and invoice no. 1178 dated January 29, 2017 (in the sum 0f $157,047.25, paid by SEMI on March 16, 2017). (SEMI’s SSUMF, N0. 3.) Apart from invoices nos. 1162 and 1178, SEMI never agreed t0 pay or authorized any additional work by Arclite, either in writing 0r verbally. (SEMI’S SSUMF, No. 4.) Further, either before or after invoices nos. 1162 and 1178, defendant SEMI has never worked with and/or had any transactions With plaintiff Arclite 0n any other proj ect. (SEMI SSUMF, No. 5.) However, 0n or about September 29, 2017, six (6) months after the second invoice n0. 1178 was paid in full by SEMI, and without warning, Raymond Villegas of Arclite sent John Friedlund at SEMI a third “invoice” n0. 1235 (for $225,532.30) regarding purported, additional work by Arclite at the Premises. (SEMI’s SSUMF, No. 6.) Clearly stated, n0 one at SEMI ever agreed t0pay 0r authorized any work by Arclite, either in writing 0r verbally, related t0 any work via purported “invoice” n0. 1235 dated September 29, 201 7, nor any other additional charges beyond the two fully paid invoices (i.e., nos. 1162 and 1178). (SEMI’S SSUMF, N0. 7.) Upon review 0f invoice no. 1235, Mr. Friedlund at SEMI contacted Mr. Villegas at Arclite and told him that SEMI never authorized 0r agreed to pay for the work referenced in -8- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 DLA PIPER LLP (US) SAN FRANCISCO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 invoice n0. 1235, nor any other additional charges beyond the two fully paid invoices (i.e., nos. 1162 and 1178), and that Arclite should directly address any such payment issues with Milmont. (SEMI’s SSUMF, N0. 8.) Thereafter, n0 one at SEMI heard from Mr. Villegas or anyone at Arclite related t0 this matter, or specifically invoice n0. 1235, for almost a year prior t0 receipt of plaintiff Arclite’s filed summons and complaint on or about August 21, 2018. (SEMI’S SSUMF, N0. 9.) Upon review 0f plaintiff Arclite’s FAC, it appears that invoice n0. 1235 dated September 29, 2017 constitutes the entirety of Arclite’s causes of action against SEMI, and its purported, improper monetary “claim” against SEMI for $225,532.30. (SEMI’s SSUMF, N0. 8.) However, as admitted by plaintiff Arclite in the deposition testimony 0f Arclite’s PMK witness, Raymond Villegas (taken on February 12, 2021), apart from the two invoices paid by SEMI, defendant SEMI never agreed to or authorized any “additional wor ” by Arclite as reflected in Arclite’s invoice n0. 1235. (SEMI’S SSUMF, No. 11.) Specifically, Mr. Villegas’ deposition testimony establishes that plaintiff Arclite’s three claims against defendant SEMI in its FAC for “breach 0f oral contract” [fourth cause 0f action], “quantum meruit” [fifth cause of action] and “open book account” [sixth cause 0f action] - as all based upon a non-existent oral agreement between Arclite and SEMI - are again false and without merit. (SEMI’S SSUMF, No. 12.) During his deposition on February 12, 2021 regarding Invoice N0. 1235, Mr. Villegas testified under oath in response to SEMI’S counsel questions, as follows: Right. I’m only asking about what’s 0n Invoice 1235. A. That’s correct. A11 right. So there are no dates on this activity. Do you have any supporting documents that would show the exact time that each 0f these activities were allegedly performed 0r conducted ? A. N0, I don’t. (Depo., p. 164:18-25; emphasis added.) >X< >X< >X< -9- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO Well, your testimony was that it took six months t0 put this invoice [Invoice 1235] together; right ? Yes. And even though it took six months for the invoice together, as you sit here today, you do not have any supporting documents t0 evidence either the activities 0r the amount setforth 0n Invoice 1235f0r what was billed to Semi; correct ? Ihave some. Imight have some. But, you know, again, I don ’t recall exactly what documentation I have. Right. So even the amount of $225,533.30, you don’t have documentation that supports that amount in that amount; correct ? Again, I created this four years ago. I don’t remember What documentation Ihave exactly, specifically to this stuff, for this invoice. (Depo., pp: 165:20- 166:1 1; emphasis added.) * Right. So your answer would be the same, thatyou are unaware ofany specific documents 0r evidence that would support that Semi specifically requested that Arclite do that labor and material work [0n Invoice 1235]; correct ? Yes. (Depo., p. 168:1-5; emphasis added.) * In your complaint that was filed against Semi in this lawsuit, by Which we are in deposition today, there is a cause of action, a claim, that Semi entered into an oral contract With Arclite relating to the items that are invoiced Invoice 1235. You never had any direct oral agreements of-for the work that was setforth in Invoice 1235, as opposed t0 you were told by Milmont that work should be invoiced t0 Semi; correct ? That’s correct. S0 a claim thatArclite had an oral agreementfor the work covered in Invoice 1235, that wouldn ’t be true ? There was n0 verbal 0r oral agreement; correct ? Yeah. I mean, I can’t say that - the way you’re wording it t0 me now, and way I’m understanding it at this moment, there was n0 agreement with Milmont - 0r Semi said thatyou d0 the work, we’re going to pay you. (Depo., p. 17022-18; emphasis added.) -10- WEST\294305780.1 SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLAJHPBRLLP(US) SAN FRANCISCO Q. When you said that Semi changed their tune and said they are suddenly not responsible, that’s not exactly correct. Imean, Semi never, at any point, said they were responsiblefor thepayment oflnvoice 1235; correct ? A. That’s correct. Iprobably wrote this late at night. . . . Right. They [SEMI] paid the first two invoices, and paid them one immediately and one in a couple of weeks. And then 0n the invoice they received six months later, they said they weren ’t responsiblefor it, they hadn ’t authorized that work; correct ? A. Yes. (Depo., p. 178:1-20; emphasis added.) (SEMI’S SSUMF, No. 12.) Accordingly, plaintiff Arclite’s three causes 0f action in its FAC against SEMI, and its entire monetary claim against SEMI for $225,532.30 (Via purported invoice n0. 1235), are completely false and without merit - and should be dismissed Via this Motion. IV. ARGUMENT Upon review 0f the undisputed facts, documents and applicable law, and on multiple grounds, defendant SEMI’S Motion for Summary Judgment should be granted against plaintiff Arclite’s causes 0f action for (1) “breach 0f oral contract”, (2) “quantum meruit”, and (3) “open book account” alleged in its FAC. A. Defendant SEMI’s Motion Should Be Granted against Plaintiff Arclite’s Fourth Cause 0f Action for “Breach 0f Oral Contract” in its First Amended Complaint. To prevail on its first cause of action for “breach of oral contract”, plaintiff Arclite must prove all 0f the following: (1) plaintiffArclite and defendant SEMI entered into a contract; (2) plaintiff Arclite did all, or substantively all, of the significant things that the contract required Arclite to do or that Arclite was excused from performance; (3) defendant SEMI failed to do something the contract required it t0 d0; (4) plaintiff Arclite was harmed; and (4) defendant SEMI’s breach ofcontract was a substantial factor in causing plaintiff Arclite’s harm. (See CACI 303; Richman v. Hartley (2014) 224 Ca1.App.4th 1182, 1186.) Further, to prove that a contract was created, plaintiff Arclite must prove all 0f the -1 1- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLAJHPBRLLP(US) SAN FRANCISCO following: (1) “the contract terms were clear enough that the parties could understand What each was required t0 do”; (2) “the parties agreed t0 give each other something 0f value” or promised “t0 do something 0r not to d0 something”; and (3) “the parties agreed t0 the terms 0f the contract.” If plaintiff Arclite does “not prove all of the above, then a contract was not created.” (See CACI 302; Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 81 1; see also, Ladas v. California State Automobile Assn. (1993) 19 Cal.App.4th 761, 770, fn. 2 [“Whether a contract is sufficiently definite t0 be enforceable is a question 0f law for the court.”].) In paragraph 26 of its FAC, plaintiff Arclite alleges that (1) “Defendant Semi specifically requested that Plaintiff perform certain electrical work not requested by Defendant Milmont”, (2) “Defendant Semi agreed t0 pay Plaintiff for all labor, service, equipment and material provided by Plaintiff for all work performed at Defendant Semi’s request for Defendant Semi 0n a Time and Material Plus Mark Up basis”, and (3) Defendant Semi and Plaintiff specifically agreed that Defendant Semi would make payments for that work directly to Plaintiff.” In paragraph 27 of its FAC, plaintiff Arclite alleges that the “labor, service, equipment and materials furnished by Plaintiff which Defendant Semi agreed to pay and which remain unpaid has a reasonable value of $225,532.30.” Applied here, plaintiff Arclite cannot prove any of the elements of its fourth cause 0f action for “breach of oral contract” against defendant SEMI. For starters, plaintiff Arclite cannot prove that Arclite and SEMI entered into a contract regarding any $225,532.30 payment (Via invoice no. 1235), and its PMK Witness admits that n0 agreement was ever entered into between regarding any $225,532.30 payment Via invoice n0. 1235 (as confirmed and entirely consistent With SEMI’S supporting declaration of John Friedlund). (SEMI’s SSUMF, Nos. 6-12.) Likewise, the remaining three elements of a breach of oral contract claim require the existence 0f a “contract” as a threshold matter, Which is entirely absent here. Accordingly, defendant SEMI’s motion for summary judgment 0r, alternatively, for summary adjudication should be granted on plaintiff Arclite’s fourth cause 0f action in its FAC for “breach of oral contract.” -12- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 DLA PIPER LLP (US) SAN FRANCISCO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Defendant SEMI’s Motion Should Be Granted against Plaintiff Arclite’s Fifth Cause 0f Action for “Quantum Meruit” in its First Amended Complaint. To prevail on its second claim for “quantum meruit” (i.e., common count: goods and services rendered), plaintiff Arclite must prove all 0f the following: (1) defendant SEMI requested, by words 0r conduct, thatplaintiffArcliteperform servicesfor the benefit 0fSEMI; (2) plaintiff Arclite performed the services as requested; (3) defendant SEMI has not paid plaintiff Arclite for the services; and (4) the reasonable value 0f the services that were provided. (See CACI 371; Ochs v. PacificCare ofCalifornia (2004) 115 Cal.App.4th 782, 794.) In paragraph 32 0f its FAC, plaintiff Arclite alleges that “[W]ithin the last two years Defendant Semi became indebted to Plaintiff in the sum 0f $225,532.30, or according to proof, which is the reasonable value, for work, labor, materials, equipment and services performed by the Plaintiff for and/or at the special request 0f Defendant Semi on a work of improvement at the Property.” Applied here, plaintiff Arclite cannot prove any elements of its fifth cause 0f action for “quantum meruit” against defendant SEMI. For starters, plaintiff Arclite cannot prove the first two elements that defendant SEMI ever requested that plaintiff Arclite perform services for the benefit of SEMI regarding any $225,532.30 payment (Via invoice no. 1235), and its PMK Witness admits that no request was ever made by SEMI regarding any services for $225,532.30 Via invoice n0. 1235 (as confirmed and entirely consistent with SEMI’S supporting declaration 0f John Friedlund). (SEMI’S SSUMF, Nos. 6-12.) Likewise, the remaining two elements 0f a quantum meruit claim fail Without the existence of a “request” as a threshold matter, Which is absent here. Accordingly, defendant SEMI’s motion for summary judgment 0r, alternatively, for summary adjudication should be granted on plaintiff Arclite’s fifth cause of action in its FAC for “quantum meruit.” C. Defendant SEMI’s Motion Should Be Granted against Plaintiff Arclite’s Sixth Cause 0f Action for “Open Book Account” in its First Amended Complaint. To prevail on its third claim for “open book account”, plaintiff Arclite must prove all 0f -13- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO the following: (1) plaintiff Arclite and defendant SEMI hadfinancial transactions with each other; (2) plaintiff Arclite, in the regular course 0f business, kept a written 0r electronic account 0fthe debits and credits involved in the transactions; (3) defendant SEMI owes money on the account; and (4) the amount 0fmoney that defendant SEMI owes plaintiff Arclite. (See CACI 372; Civil Code section 33 7a [book account must be kept in a reasonablypermanentform]; Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65-66 [book account is a detailed statement kept in a book].) In paragraphs 36 and 37 0f its FAC, plaintiff Arclite alleges that “Defendant Semi became indebted t0 Plaintiff within the last four years on an open book account for money due” and “$225,532.30, Which is the reasonable value, is due and unpaid despite Plaintiff’s demand, plus prejudgment interest according to proof.” Applied here, plaintiff Arclite cannot prove any elements 0f its sixth cause 0f action for “open book account” against defendant SEMI. For starters, either before or after invoices nos. 1162 and 1178, defendant SEMI has never worked With and/or had any transactions with plaintiff Arclite on any other proj ect - let alone that Arclite kept a written 0r electronic account 0fthe debits and credits involved in any transactions. (SEMI’S SSUMF, No. 5.) As for invoice n0. 1235 itself, to which plaintiff’s entire claim 0n the $225,532.30 number is derived, there is no evidence that defendant SEMI ever agreed, authorized 0r requested that plaintiff Arclite perform services for the benefit 0f SEMI regarding any $225,532.30 payment (Via invoice n0. 1235), and its PMK witness admits that n0 agreement 0r request was ever made by SEMI regarding any services for $225,532.30 Via invoice n0. 1235 (as confirmed and entirely consistent with SEMI’s supporting declaration of John Friedlund). (SEMI’s SSUMF, Nos. 6-12.) Likewise, there is no evidence that defendant SEMI owes plaintiff Arclite any amount under any written 0r electronic accounts, which is a threshold matter for this meritless claim. Accordingly, defendant SEMI’s motion for summary judgment 0r, alternatively, for summary adjudication should be granted on plaintiff Arclite’s sixth cause 0f action in its FAC for “open book account.” -14- SEMI INC.’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1 1 V. CONCLUSION 2 Accordingly, given the undisputed material facts and evidence set forth in this Motion, as 3 well as applicable law supporting its contractual positions, defendant SEMI respectfully requests 4 that this Court grant its Motion for Summary Judgment 0r, in the alternative, for Summary 5 Adjudication against plaintiff Arclite’s alleged claims for (1) “breach of oral contract”, (2) 6 “quantum meruit”, and (3) “open book account” in its FAC. 7 8 Dated: July 30, 2021 DLA PIPER LLP (US) 9 WM z.7%?@ 10 MA’RK E. MCKEEN 1 1 Attorneys for Defendant SEMI, INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP US ( ) _1 5_ SAN FRANCISCO SEMI INC. ’S MEMO OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT CASE NO. 18CV333268 WEST\294305780.1