Response ReplyCal. Super. - 6th Dist.August 14, 201810 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) SAN FRANCISCO 180V333268 Santa Clara - Civil R. Ara MARK E. MCKEEN (SBN 130950) Electronically Filed mark.mckeen@dlapiper.com by Superior Court of CA, EVA K. SCHUELLER (SBN 237886) County of Santa Clara, evi.schueller@dlapiper.com on 1 [5/2022 10:25 AMDLA PIPER LLP (US) Reviewed By: R. Aragon555 Mlssmn Street, Sulte 2400 San Francisco, California 94105-2933 case #1 8CV333268 Tel: 415.836.2500 Envelope: 7985932 Fax: 415.836.2501 Attorneys for Defendant SEMI, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ARCLITE, INC., CASE NO. 18CV333268 Plaintiff, DEFENDANT SEMI INC.’S REPLY MEMORANDUM IN SUPPORT OF V. MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR MILMONT FIELDS, LLC, a California SUMMARY ADJUDICATION Limited Liability Company; SEMI, INC., a California Corporation; and DOES 1-50, inclusive, Date: January 11, 2022 Time: 9:00 a.m. Defendants. Dept.: 2 Complaint filed: August 14, 2018 First Amended Complaint filed: NOV. 7, 2018 -1- gon REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 TABLE OF CONTENTS Page I. DEFENDANT SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED .................................................................................................. 5 II. PLAINTIFF ARCLITE’S OPPOSITION ARGUMENTS ARE CONCLUSORY, IMMATERIAL AND UNSUPPORTED BY EVIDENCE ................................................ 5 A. Plaintiff Arclite’s first argument regarding “formation 0f an agreement” with SEMI is without merit 0r evidence. ................................................................ 6 B. Plaintiff Arclite’s second argument regarding Mr. Villegas’ deposition testimony is being subj ect to more than one inference is Without merit or evidence ................................................................................................................... 8 C. Plaintiff Arclite’s third argument regarding “damages due 0n the oral contract” is Without merit 0r evidence. ................................................................... 9 D. Plaintiff Arclite’s fourth argument that there are triable issues 0f material facts regarding its related claims against defendant SEMI for quantum meruit and open book account are without merit or evidence. ............................. 10 E. Plaintiff Arclite’s fifth argument that SEMI’s “motion for summary adjudication” (not summary judgment) be denied 0n a procedural ground is without merit. ........................................................................................................ 12 F. Lastly, key portions of Plaintiff Arclite’s supporting declaration ofRay Villegas are inadmissible and cannot be used t0 contradict Mr. Villegas’ sworn deposition testimony in this case ................................................................ 13 III. CONCLUSION ................................................................................................................. 14 -2- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 TABLE OF AUTHORITIES Page(s) CASES Casenas v. Fujisawa USA, Inc. (1997) 58 Ca1.App.4th 101 ............................................................................................................... 5, 14 D ’Amico v. Board ofMed. Examiners (1974) 11 Cal.3d 1 ................................................................................................................................ 14 Joslin v. Gertz (1957) 155 Cal.App.2d 62 .................................................................................................................... 11 Ladas v. California State Automobile Assn. (1993) 19 Ca1.App.4th 761 ..................................................................................................................... 7 Ochs v. PacificCare ofCalifornia (2004) 115 Cal.App.4th 782 ................................................................................................................. 11 Richman v. Hartley (2014) 224 Cal.App.4th 1182 ................................................................................................................. 7 Truong v. Glasser (2009) 181 Cal.App.4th 102 ................................................................................................................. 13 Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609 ................................................................................................................ 14 Weddington Productions, Inc. v. Flick (1998) 60 Ca1.App.4th 793 ..................................................................................................................... 7 STATUTES Cal. CiV. Code § 337a ..................................................................................................................... 11 Cal. CiV. Proc. Code § 437(c)(b)(1) ................................................................................................ 12 Cal. EVid. Code § 403 ..................................................................................................................... 13 Cal. Evid. Code § 702 ..................................................................................................................... 13 Cal. Evid. Code § 801-3 .................................................................................................................. 13 Cal. Evid. Code § 1200 ................................................................................................................... 13 Cal. Evid. Code § 1521 ................................................................................................................... 13 Cal. Evid. Code § 1523 ................................................................................................................... 13 -3- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 1 OTHER AUTHORITIES 2 CACI 302 .......................................................................................................................................... 7 3 CACI 303 .......................................................................................................................................... 7 CACI 371 ........................................................................................................................................ 1 1 CACI 372 ........................................................................................................................................ 11 Cal. Rule of Court 3.1350 ............................................................................................................... 13 Cal. Rule of Court 3.1350(b) .................................................................................................... 12, 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WEsm69891748.1 -4- DLA pIPER LL12 (U5) CALIFORNIA CORPORATE CENTER ACQUISITION, LLC’S MEMORANDUM OF POINTS AND SAN FRANCISCO AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 I. DEFENDANT SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED In its opposition memorandum, plaintiff Arclite admits - as it must - that Arclite never entered into any oral (0r written) agreementM defendant SEMI regarding purported work related t0 “Invoice no. 1235” dated September 29, 2017 and wrongly billed t0 SEMI. Instead, plaintiff Arclite raises several conclusory, immaterial and unsupported arguments t0 attempt to raise a triable issue of material fact regarding its claims as against defendant SEMI, but each are without merit 0r evidence. As detailed (and fully evidenced) in defendant SEMI’S moving papers, apart from two earlier invoices from plaintiff Arclite (which SEMI paid in full, as undisputed), SEMI did not agree t0, authorize and/or request any additional workfrom Arclite, either orally 0r in writing, related t0 anypurported work via “Invoice n0. 1235” dated September 29, 201 7. This purported “additional wor ” in Invoice n0. 1235 constitutes the entirety 0f plaintiff Arclite’s three (3) causes of action against SEMI in its unverified First Amended Complaint (“FAC”), and its monetary “claim” against SEMI for $225,532.30. Specifically, the 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 0f action]. Accordingly, given the undisputed facts and applicable law, defendant SEMI’s Motion for Summary Judgment 0r, alternatively, Summary Adjudication, against plaintiff Arclite’s claims against SEMI in its FAC should be granted in full. In this case, and clearly s0, California’s summary judgment procedure does fulfill the “laudatory purpose” of expediting litigation and eliminating the waste associated with needless trials. (Casenas v. Fujisawa USA, Inc. (1997) 58 Ca1.App.4th 101, 118-19 [“Justice requires that a defendant be as much entitled t0 be rid 0f an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.”].) II. PLAINTIFF ARCLITE’S OPPOSITION ARGUMENTS ARE CONCLUSORY, IMMATERIAL AND UNSUPPORTED BY EVIDENCE As difficult to comprehend or understand (and without citations to any supporting evidence), plaintiff Arclite’s opposition memorandum (“Opposition”) makes five (5) main -5- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 arguments in opposition t0 defendant SEMI’S Motion. First, plaintiff Arclite claims a triable issue of material fact as to “the formation of an [oral] agreement between Arclite and Semi.” (Opposition, pp. 1:27-28, 4:26-27, 6: 16-17.) Second, plaintiff claims that the “statement made by Ray Vilegas [sic] in his deposition is clearly subject t0 more than one inference.” (Opposition, p. 5:2-3.)1 Third, plaintiff claims a triable issue 0f material fact as to “damages and amounts due 0n the oral contract.” (Opposition, p. 5:23- 24.) Fourth, plaintiff claims that there are triable issues of material facts regarding its related claims against defendant SEMI for quantum meruit and open book account. (Opposition, pp. 6:9- 7:2.) And fifth, plaintiff claims that defendant SEMI’S “motion for summary adjudication” (not summary judgment) should be denied on a procedural ground. As detailed below, each 0f plaintiff Arclite’s opposition arguments are without merit and are wholly unsupported by the evidence. A. Plaintiff Arclite’s first argument regarding “formation 0f an agreement” with SEMI is without merit 0r evidence. First, while not fully explained, plaintiff Arclite appears to argue that there is a triable issue 0f material fact as to Whether an oral contract was formed between plaintiff and defendant SEMI regarding the purported work referenced in Invoice no. 1235. Upon review, plaintiff’ s primary argument is that “Semi has provide [sic] n0 authorities, nor are there any, that support a position that the only way for an oral agreement t0 arise would be for direct conversations between Semi and Arclite t0 have occurred.” (Opposition, p. 5: 1 1-13.) As detailed in defendant SEMI’s moving papers, to prevail 0n its first cause 0f action for “breach of oral contract”, plaintiff Arclite must prove all of the following: (1) plaintWArclite and defendant SEMIm into a contract; (2) plaintiff Arclite did all, 0r substantively all, of the significant things that the contract required Arclite t0 d0 0r that Arclite was excused from 1 In a repeated error, plaintiff Arclite’s Opposition refers t0 Arclite’s only purported witness as “Ray Vilegas”, and submits a declaration in support of its Opposition t0 be signed by “Ray Vilegas” (but actually signed by “Ray Viflegas” on December 28, 2021). There is no relevant person to this Motion named “Ray Vilegas” - the relevant Arclite witness is named “Ray Viflegas”, and Mr. Villegas had his deposition taken as plaintiff s PMK Witness by counsel for SEMI and co-defendant Milmont Fields, LLC on February 12, 2021. -6- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 performance; (3) defendant SEMI failed t0 d0 something the contract required it t0 d0; (4) plaintiff Arclite was harmed; and (4) defendant SEMI’s breach ofcom‘ract was a substantial factor in causing plaintiff Arclite’s harm. (See CACI 303; Richman v. Hartley (2014) 224 Ca1.App.4th 1182, 1186.) More specifically, t0 prove that a contract was created (i.e., formed), plaintiff Arclite must prove all of the 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 “to d0 something 0r not t0 d0 something”; and (3) “the parties agreed t0 the terms of the contract.” If plaintiff Arclite does “not prove all 0f the above, then a contract was not created.” (See CACI 302; emphasis added; Weddington Productions, Inc. v. Flick (1998) 6O 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 to be enforceable is a question of law for the court.”].) Further, in paragraph 26 of its FAC, plaintiff Arclite alleged - as now shown, without any evidentiary basis - that (1) “Defendant Semi specifically requested that Plaintiff perform certain electrical work not requested by Defendant Milmont”, (2) “Defendant Semi agreed t0pay 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.” (Emphasis added.) In paragraph 27 0f 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 0f $225,532.30.” Applied here, the evidence is now clear that no oral agreement was ever “formed” between plaintiff Arclite and defendant SEMI regarding Invoice no. 1235, as shown in the deposition testimony 0f plaintiff Arclite’s PMK Witness, Ray Villegas, and SEMI’S supporting Declaration of John Friedlund. (SEMI’S SSUMF, Nos. 6-12.) Further, as a threshold matter, the remaining three elements 0f a breach 0f oral contract claim require the existence of an actual -7- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 “contract” between plaintiff Arclite and SEMI as a threshold matter, as entirely absent here. Accordingly, plaintiff Arclite’s first argument in opposition to defendant SEMI’S Motion is Without merit or evidence. B. Plaintiff Arclite’s second argument regarding Mr. Villegas’ deposition testimony is being subject t0 more than one inference is without merit or evidence. Second, plaintiff Arclite argues that the admission (i.e., truthful statement) made by Mr. Villegas in his PMK deposition that “n0 agreement” was formed between plaintiff and defendant SEMI is “subject to more than one inference.” (Opposition, p. 5:2-3.) Upon review 0f Mr. Villegas’ sworn testimony regarding Invoice no. 1235, this is simply not true or credible. As detailed in defendant SEMI’s moving papers, Mr. Villegas’ deposition testimony establishes that plaintiff Arclite’s three claims against defendant SEMI in its FAC are all based upon a non-existent “oral agreement” between Arclite and SEMI, and thus Without merit. (SEMI’S SSUMF, N0. 12.) Again, during his deposition 0n February 12, 2021 regarding Invoice n0. 1235, Mr. Villegas testified under oath in response to SEMI’s counsel questions, in pertinent part, as follows: Q. Right. So your answer would be the same, that you are unaware 0f any specific documents 0r evidence that would support that Semi specifically requested that Arclite d0 that labor and material work [0n Invoice 1235]; correct ? A. Yes. (Dep0., p. 16821-5; emphasis added.) * * * Q. In your complaint that was filed against Semi in this lawsuit, by Which we are in deposition today, there is a cause 0f action, a claim, that Semi entered into an oral contract with Arclite relating t0 the items that are invoiced Invoice 1235. You never had any direct oral agreements 0f-f0r the work that was setforth in Invoice 1235, as opposed t0 you were told by Milmont that work should be invoiced t0 Semi; correct ? A. That’s correct. Q. S0 a claim that Arclite had an oral agreement for the work covered in Invoice 1235, that wouldn ’t be true ? There was n0 verbal 0r oral agreement; correct ? A. Yeah. Imean, 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 no agreement with Milmont - or Semi said thatyou d0 the work, we’re going t0 pay you. (Depo., p. 170:2-18; emphasis added.) * * * -8- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 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 ? P That’s correct. Iprobably wrote this late at night. . . . Q. Right. They [SEMI] paid the first two invoices, and paid them one immediately and one in a couple 0f 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.) Further, in no way or manner does plaintiff Arclite’s Opposition contradict 0r dispute the material evidence set forth in Mr. Friedlund’s Declaration in support of defendant SEMI’s Motion. That core evidence is clear and straightforward, as is not subj ect t0 “more than one inference” - again, apart from paid Invoices nos. 1162 and 1178, SEMI never agreed t0 pay 0r authorized any additional work by Arclite, either in writing 0r verbally. (SEMI’s SSUMF, N0. 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, N0. 5.) Yet, 0n 0r 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, N0. 6.) The evidence is now clear that n0 one at SEMI ever agreed t0pay 0r authorized any subsequent work by Arclite, either verbally 0r in writing, 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, No. 7.) Accordingly, plaintiff Arclite’s second argument in opposition to defendant SEMI’s Motion is without merit or evidence. C. Plaintiff Arclite’s third argument regarding “damages due 0n the oral contract” is without merit 0r evidence. Third, plaintiff Arclite argues that defendant SEMI has “failed t0 show that there is n0 triable issues of material fact relating to the damages and amounts due on the oral contract.” -9- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 (Opposition, p. 5:23-24.) Again, this argument is nonsensical, given the clear evidence (as admitted in Mr. Villegas’ PMK deposition, and stated in Mr. Friedlund’s Declaration in support 0f this Motion) that no oral contract regarding Invoice n0. 1235 ever existed in the first place. Specifically, during his deposition 0n February 12, 2021 regarding Invoice n0. 1235, Mr. Villegas testified under oath in response t0 SEMI’S counsel questions regarding the purported “damage” amounts stated in Invoice n0. 1235 - to which Arclite’s PMK witness had no supporting documents or evidence, as follows: Q. A. Q. Right. I’m only asking about What’s 0n Invoice 1235. That’s correct. A11 right. So there are n0 dates 0n this activity. D0 you have any supporting documents that would show the exact time that each 0f these activities were allegedly performed 0r conducted ? N0, I don’t. (Depo., p. 164218-25; emphasis added.) >X< >X< Well, your testimony was that it took siX months to 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 d0 not have any supporting documents to evidence either the activities 0r the amount setforth 0n Invoice 1235f0r what was billed t0 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 I have exactly, specifically to this stuff, for this invoice. (Dep0., pp: 165:20-166zl 1; emphasis added.) Accordingly, plaintiff Arclite’s third argument in opposition to defendant SEMI’S Motion is Without merit 0r evidence. D. Plaintiff Arclite’s fourth argument that there are triable issues of material facts regarding its related claims against defendant SEMI for quantum meruit and open book account are Without merit 0r evidence. Fourth, plaintiff Arclite argues that triable issues of material facts exist regarding its related claims against defendant SEMI for “quantum meruit” and “open book account”. -10- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 Specifically, regarding quantum meruit, plaintiff does nothing more than again claim - as a conclusion, and Without supporting evidence - that “there is a clear triable issue 0f fact regarding the formation of a contract, 0r an agreement, between Arclite and SEMI.” (Opposition, p. 6: 16- 17.) Regarding open book account, plaintiff claims - albeit falsely - that “Semi alleges that n0 transactions have taken place before between Arclite and Semi.” (Opposition, p. 6:22-23.) As stated in defendant SEMI’s moving papers, and completely ignored in plaintiff Arclite’s opposition, to prevail 0n its claim for “quantum meruit”, plaintiff Arclite must prove all of the following: (1) defendant SEMI requested, by words 0r conduct, thatplaintifi‘Arclite perform 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 0f California (2004) 115 Cal.App.4th 782, 794.) Applied here, plaintiff Arclite has not presented any evidence showing the first two elements that defendant SEMI ever requested that plaintiff Arclite perform purported services for the benefit of SEMI regarding any $225,532.30 payment (Via Invoice no. 1235), and its PMK Witness (Mr. Villegas) admits that n0 request was ever made by SEMI regarding any services for $225,532.30 Via Invoice no. 1235 (as confirmed and entirely consistent with SEMI’s supporting declaration 0f Mr. 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, as entirely absent here. As also stated in defendant SEMI’s moving papers, and again completely ignored in plaintiff Arclite’s Opposition, t0 prevail on its claim for “open book account”, plaintiff Arclite must prove all of the following: (1) plaintiff Arclite and defendant SEMI hadfinancial transactions with each other; (2) plaintiff Arclite, in the regular course of business, kept a written 0r electronic account 0fthe debits and credits involved in the transactions; (3) defendant SEMI owes money 0n the account; and (4) the amount ofmoney that defendant SEMI owes plaintiff Arclite. (See CACI 372; Civil Code section 33 7a [book account must be kept in a reasonably permanentform]; Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65-66 [book account is a detailed -11- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 statement kept in a book] .) Applied here, plaintiff Arclite has not presented any evidence showing the elements of action for “open book account” against defendant SEMI. For starters, it is undisputed that either before 0r 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 - let alone that Arclite kept a written 0r electronic account 0fthe debits and credits involved in any transactions. (SEMI’S SSUMF, N0. 5.) As for Invoice n0. 1235 itself, t0 Which plaintiff’ s entire claim 0n the $225,532.30 number is based, there is no evidence that defendant SEMI ever agreed, authorized 0r 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 (Mr. Villegas) admits that n0 agreement 0r request was ever made by SEMI regarding any services for $225,532.30 Via Invoice no. 1235 (as, once again, confirmed and entirely consistent With SEMI’s supporting declaration of Mr. 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, plaintiff Arclite’s fourth argument in opposition t0 defendant SEMI’s Motion is without merit 0r evidence. E. Plaintiff Arclite’s fifth argument that SEMI’s “motion for summary adjudication” (not summary judgment) be denied 0n a procedural ground is without merit. Fifth, plaintiff Arclite argues that defendant SEMI’s request for “summary adjudication” (not summary judgment) should be denied under Rule 0f Court 3.1350(b) and Code of Civil Procedure section 437(c)(b)(1). However, plaintiff’ s arguments are Without merit 0r, at a minimum, should be denied at the Court’s discretion. In compliance with Code 0f Civil Procedure section 437(c)(b)(1), there is n0 dispute that defendant SEMI’s supporting papers included “a separate statement setting forth plainly and concisely all material facts that the moving party are undisputed . . . followed by a reference to the supporting evidence.” (Emphasis added.) There is also n0 dispute that in its Separate Statement of Undisputed Material Facts and Evidence, defendant SEMI sets forth “ISSUE 1”, -12- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 “ISSUE 2” and “ISSUE 3” (specifically referencing plaintiff Arclite’s Fourth, Fifth and Sixth causes 0f action against SEMI, respectively), and thereafter lists the twelve (12) undisputed material facts and supporting evidence relating t0 the three claims. As detailed above, each of plaintiff Arclite’s claims against defendant SEMI are based 0n the existence (0r here, non-existence) 0f an “oral agreement” between plaintiff and SEMI regarding purported work referenced in Invoice no. 1235. The bottom line is that plaintiff Arclite’s three causes of action against defendant SEMI directly overlap With one another, as each based 0n the same 0r identical undisputed material facts in SEMI’s favor. As stated in Rule of Court 3.1350(b): “Ifmade in the alternative, a motion for summary adjudication may make reference t0 and depend 0n the same evidence submitted in support 0f the summary judgment motion.” (Emphasis added.) See also, Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 (“Because Glasser’s motion sought summary judgment, rather than summary adjudication of a subissue, his statement met the requirements of rule 3.1350 Without the necessity 0f separately listing subissues as t0 Which summary adjudication was sought. Moreover, even if some additional headings had been required, the court’s power t0 deny summary judgment 0n the basis 0f failure t0 comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory. . . . The facts critical to the ruling were adequately identified, and Plaintiffs have not explained how any alleged deficiency in Glasser’s separate statement of material facts impaired Plaintiffs’ ability t0 marshal evidence t0 show that material facts were in dispute . . .”; emphasis added.) Accordingly, plaintiff Arclite’s fifth argument in opposition to defendant SEMI’S Motion for Summary Adjudication (not Summary Judgment) is without merit. F. Lastly, key portions 0f Plaintiff Arclite’s supporting declaration 0f Ray Villegas are inadmissible and cannot be used t0 contradict Mr. Villegas’ sworn deposition testimony in this case. Lastly, as set forth in defendant SEMI’S Objection to Evidence submitted by Plaintiff Arclite in support of its Opposition, filed herewith, key portions of Mr. Villegas’ Declaration dated December 28, 2021 are inadmissible as lacking personal knowledge, foundation, authentication and/or inadmissible hearsay, among other obj ections. (See Evidence Code sections 403, 702, 801-3, 1200, 1521, 1523.) -13- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1 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 Further, California law is clear that - at the summary judgment stage - an opposing party is bound by admissions made in deposition testimony, which cannot be contradicted by subsequent declarations. “[W]hen discovery has produced an admission or concession 0n the part of the party opposing summary judgment Which demonstrates that there is n0 factual issue to be tried,” controverting declarations submitted by that party may be disregarded. (D ’Amico v. Board ofMed. Examiners (1974) 11 Cal.3d 1, 21-22; see also, Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613 (“Admission or concessions made during the course 0f discovery [deposition testimony] govern and control over contrary declarations lodged at a hearing 0n a motion for summary judgment”). III. CONCLUSION Given the undisputed material facts and evidence set forth in this Motion, as well as applicable law supporting its positions, defendant SEMI’S Motion indeed fulfills the “laudatory purpose” of expediting litigation and eliminating the waste associated With needless trials. (Casenas v. Fujisawa USA, Ina, supra, 58 Ca1.App.4th at 118-19.) Simply stated, plaintiff Arclite’s “oral contract” and related quantum meruit and open book account claims against defendant SEMI should have never been filed With this Court. Accordingly, defendant SEMI respectfully requests that this Court grant SEMI’s Motion against plaintiff Arclite’s three (3) causes 0f action against SEMI in its FAC, and specifically as to plaintiff Arclite’s stated claims against SEMI for (1) “breach of oral contract” [fourth cause of action], (2) “quantum meruit” [fifth cause of action], and (3) “open book account” [sixth cause 0f action] . Dated: January 5, 2022 DLA PIPER LLP (US) By WM 5 -fl7ék MARK E. MCKEEN Attorneys for Defendant SEMI, INC. -14- REPLY MEMORANDUM IN SUPPORT OF SEMI, INC.’S MOTION FOR SUMMARY JUDGMENT WEST\296972607.1