Response Reply

Cal. Super. - 6th Dist.November 28, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 80V338604 Santa Clara - Civil JASON A. GELLER (SBN 168149) Email: jgeller@fisherphillips.com AARON LANGBERG (SBN 284975) Email: alangberg@fisherphillips.com FISHER & PHILLIPS LLP One Embarcadero Center, Suite 2050 San Francisco, California 941 11 Telephone: (415) 490-9000 Facsimile: (415) 490-9001 Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/2/2020 4:38 PM Reviewed By: S. Vera Case #1 8CV338604 Envelope: 5041413 Attorneys for Defendant and Cross-Complainant, COLORTOKENS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA CHARLES KUTA, an individual, Plaintiff, VS. COLORTOKENS, INC., a Delaware Corporation, and DOES 1 through 50, inclusive, Defendant. COLORTOKENS, INC., a Delaware Corporation, Cross-Complainant, vs. CHARLES KUTA, an individual, and ROES 1 through 100, inclusive, Cross-Defendant. Case No.: 18CV338604 Assignedfor allpurposes t0 the Honorable Judge Maureen Folan (Dept. 6) CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMMARY ADJUDICATION, OR ALTERNATIVELY, SUMMARY ADJUDICATION Date: October 8, 2020 Time: 9:00 am. Place: Dept. 6 Complaint filed: November 27, 2018 Cross-Complaint: January 18, 20 1 9 Trial Date: None Set CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 . Vera 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Cross-Defendant Charles Kuta (“Kuta”) failed to raise a disputed issue 0fmaterial fact in opposition to Cross-Complainant ColorTokens, Inc.’s (“ColorTokens”) Motion for Summary Judgment, 0r in the alternative, Summary Adjudication, and for that reason ColorTokens’ Motion must be granted in its entirety. Kuta’s erroneous characterization 0f the $35,000 forgivable loan (“Promissory Note”) as incentive compensation and failing t0 constitute a valid contract are insufficient for him t0 survive summary judgment. First, summaryjudgment is appropriate as t0 all ColorTokens’ claims because the August 3, 2015 Promissory Note is a valid enforceable written contract which Kuta subsequently breached by failing t0 pay back the $35,000 loan plus interest When it became due on April 30, 2018 (the date Kuta was laid off and was no longer rendering services t0 ColorTokens). Kuta erroneously contends that the Promissory Note was not a contract, but instead was incentive compensation ColorTokens offered to him t0 remain an employee. Kuta offers n0 evidence to support his contention that the Promissory Note was incentive compensation. Rather, Kuta relies 0n his own inadmissible speculation (contradicting his own testimony) as to his belief that the Promissory Note was considered incentive compensation. Second, summary judgment is appropriate because the terms 0f the Promissory Note are clear and unambiguous. The terms 0f the Promissory Note provided that Kuta would receive $35,000 loan with the obligation to repay ColorTokens the principal amount ($35,000) plus interest by May 1, 2025. UMF No. 8. Kuta admitted that he carefully reviewed the Promissory Note prior to signing it on August 3, 2015. UMF N0. 4, 9. In sum, Kuta cannot identify a single disputed material fact that would preclude the Court from entering summaryjudgment for ColorTokens as a matter of law as t0 ColorTokens’ causes 0f action for breach of contract, breach of the covenant of good faith and fair dealing, fraud, and promissory estoppel. /// /// /// CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. KUTA BREACHED HIS CONTRACT WITH COLORTOKENS WHEN HE FAILED TO PAY THE LOAN AMOUNT SET FORTH IN THE PROMISSORY NOTE A. The Promissory Note is not incentive compensation but rather a written enforceable contract. In his Opposition, Kuta contends that the Promissory Note is not a contract, but rather incentive compensation used t0 increase Kuta’s yearly salary. Opp. at 6: 10-1 1. However, Kuta’s mischaracterization of the Promissory Note fails t0 demonstrate the Promissory Note is not a valid enforceable contract. In California, an enforceable contract requires mutual consent, generally shown through offer and acceptance. Donovan v. RRL Corp. (2001) 26 Cal.App.4th 261, 270-271. The contract must be supported by consideration from both sides. Ladas v. California StateAuto. Ass ’n (1993) 19 Cal.App.4th 761, 770-771. The Promissory Note provided Kuta With a loan 0f $35,000 with the obligation t0 repay ColorTokens the principal amount ($35,000), plus interest, by May 1, 2025. UMF No. 8. Kuta admitted that he carefully reviewed every document before signing and reviewed the terms of the Promissory Note prior to its execution. UMF N0. 4, 9. Kuta accepted ColorTokens’ offer by signing the Promissory Note, and accepting the benefits-namely, the check for $35,000. UMF N0. 8, 10. Accordingly, a written contract was created between Kuta and ColorTokens. First, Kuta’s reliance on Schachter v. Citigroup is inapposite. In Schachter, Citigroup offered a voluntary incentive compensation plan that provided employees with certain company shares in lieu of a portion 0f the employee’s annual cash compensation. Schachter v. Citigroup, Inc. (2009) 47 Ca1.4th 610, 613. The plaintiff-stockbroker challenged the portion of the plan that required employees t0 forfeit the shares if they resigned 0r were terminated for cause before the shares vested. Id. In affirming summary judgment for Citigroup, the court explained, “[e]ligibility t0 receive incentive compensation is ‘properly determined by the . . . plan’s specific terms and general contract principles.”’ Id. at 621. While acknowledging California’s strong public policy in favor 0f full and prompt payment of wages, the court confirmed that “nothing in 2 CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the public policy of this state concerning wages . . . transforms [a] contingent expectation 0f receiving bonuses into an entitlement.” Id. Schachter dealt With a compensation plan that provided employees with stock options rather than an employee’s full annual salary. Here, ColorTokens did no such thing. The Promissory Note explicitly provided Kuta With a $35,000 loan that he was required to pay back with interest by May 1, 2025 or at the time that he failed t0 render services t0 ColorTokens (on April 30, 2018 when Kuta was laid off). Further, the Promissory Note did not provide Kuta With any deferred compensation. The Promissory Note granted Kuta With a $35,000 loan in exchange for his promise t0 pay back that amount plus interest. Second, Kuta’s citation t0 Arnold v. Palmer and Frierdich v. Commissioner oflm‘ernal Revenue are inapposite. Opp. at 5:24-25, 623-6. First, both Arnold and Frierdz'ch are not employment law cases; Arnold is a foreclosure case and Frierdich is a federal unpaid income tax case. Second, neither decision is from California (With Arnold being decided by the Court 0f Appeals in West Virginia and Frierdich decided in the Seventh Circuit) and thus Kuta may not rely 0n either as precedent. Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1508 fn. 2 (holding in the absence 0f California authority on point, courts may consider decisions from other states for only persuasive value). Third, Arnold and Frierdich contain no discussion of incentive compensation. Fourth, neither 0f these cases support Kuta’s contention that the Promissory Note (0r a loan in general) can be construed as incentive compensation. While Kuta relies 0n Schachter, Arnold, and Frierdich to contend that the Promissory Note is not a loan contract but rather incentive compensation, each are easily distinguishable. In fact, two 0f the cases make no mention of incentive compensation. Kuta simply cannot create a triable issue of fact by mischaracterizing the Promissory Note as incentive compensation. Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty C0. (2009) 170 Cal.App.4th 554, 570 (mischaracterizing evidence does not create a triable issue 0f fact t0 preclude summary judgment). /// /// 3 CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. The Promissory Note is an enforceable contract and is not ambiguous 0r indefinite. In his Opposition, Kuta contends that the Promissory Note is unenforceable because it is ambiguous and indefinite. Opp. at 6-8. Specifically, Kuta contends that the acceleration clause and forgiveness provision contained in the Promissory Note render it ambiguous and indefinite. Opp. at 8:24-26. Again, Kuta’s argument misses the mark. First, Kuta fails to provide any legal support for his argument that a contract containing an acceleration clause and forgiveness provision make a contract ambiguous and indefinite. In fact, that contention is contrary t0 California law. See City ofSan Marcos v. Loma San Marcos, LLC (2015) 234 Ca1.App.4th 1045, 1054 (holding that a contract that contained an acceleration clause was not ambiguous When the acceleration clause provided a time in which the loan was owed). Here, the Promissory Note provided that the repayment 0f the loan plus interest became due at the time Kuta ceased employment With ColorTokens for any reason. UMF No. 8. Kuta was laid off on April 30, 2018 making the $35,000 loan plus interest due and payable. UMF N0. 8, 11. Second, Kuta cites an abundance of case law citing various contract interpretation principles. However, Kuta fails t0 provide any legal analysis as t0 how any 0f his cited cases apply to the facts in this case. For example, Kuta makes the legal argument that the Promissory Note is ambiguous but fails t0 provide any legal support. See LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Ca1.App.4th 977, 981 (a party cannot avoid summary judgment based 0n conjecture). C. The Promissory Note is not unconscionable. Kuta contends that the Promissory Note is unconscionable and thus unenforceable. Opp. at 8-1 1. Kuta’s contention is misplaced. The party seeking t0 invalidate a contract based 0n unconscionability carries the burden of proving by a preponderance 0f the evidence that the contract in dispute is both procedurally and substantively unconscionable. Pinnacle Museum Tower ASS ’n v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246; Engalla v. Permanente Medical Group, Inc. (1997) 15 4 CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal.4th 951, 972. Procedural unconscionability “addresses the circumstances of contract negotiation and formation, focusing 0n oppression 0r surprise due to unequal bargaining power.” Pinnacle Museum Tower Ass ’n, 55 Ca1.4th at 246. Substantive unconscionability, in contrast, addresses the actual terms 0f the contract; the focus is 0n Whether the terms are overly harsh 01' so one-sided that it shocks the conscience. Id. Although both procedural and substantive unconscionability must exist for a contract t0 be invalidated 0n the basis 0f unconscionability, they do not need t0 exist in the same degree. Serpa v. California Surely Investigations, Inc. (2013) 215 Ca1.App.4th 695, 703. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability [that] is required . . . and Vice versa.” Id. 1. The Promissory Note is not procedurally unconscionable. Kuta contends that the Promissory Note is procedurally unconscionable because it was an adhesion contract and given to him 0n a take it 0r leave it basis. Opp. at 10:24-26. His argument fails. An adhesion contract is not presumed to be procedurally unconscionable Where there is n0 proof that the employee was in any way surprised or under duress When signing the agreement. Serpa, 215 Cal.App.4th at 704; see also Graham v. Scissor-Tail, Inc. (1990) 28 Cal.3d 807, 817 (adhesion contracts are an “inevitable fact of life”). In fact, Kuta admitted that he carefully reviewed every document before signing it, including the Promissory Note. UMF N0. 4. Further, Kuta admitted that he reviewed the terms of the Promissory Note prior t0 its execution. UMF N0. 9; Robison v. City 0f Manteca (2000) 78 Cal.App.4th 452, 459 (n0 procedural unconscionability where the plaintiffwas presented with a contract and not prevented from reading it). Next, Kuta contends that the Promissory Note is procedurally unconscionable because he did not fully understand the terms 0f the Promissory Note When he signed it. Opp. at 10:26-27. Kuta’s contention is not supported by California law. In general, a party need not read 0r understand an agreement to be bound by it. Pinnacle, 55 Ca1.4th at 236; Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710 (general rule is one who assents to a contract is bound by its provisions and cannot later complain of unfamiliarity With the language). Contrary t0 Kuta’s assertion, Kuta admitted that he carefully reviewed every document before signing it. 5 CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UMF No. 4. Specifically, regarding the Promissory Note, Kuta admitted that he reviewed the terms of the Promissory Note before signing it. UMF No. 9. State Farm Mut. Auto. Ins. C0. v. Eastman (1984) 158 Ca1.App.3d 562, 573 (a party cannot rely 0n contradictions in his own testimony to create a triable issue 0f fact for purposes 0f a summary judgment motion). Finally, While Kuta cites a myriad 0f case law regarding What California courts 100k to in determining whether a contract is procedurally unconscionable, Kuta fails to provide any legal analysis as t0 Why the facts in this case are similar to any 0f his cited cases. Thus, Kuta’s failure to provide any legal analysis as t0 Why his alleged facts can lead t0 a conclusion that the Promissory Note is procedurally unconscionable is Without legal basis and not persuasive. 2. The Promissory Note is not substantively unconscionable. Kuta contends that his lack 0f understanding 0f terms contained in the Promissory Note render it substantively unconscionable. Opp. at 11:14- 1 5. Kuta fails to provide any legal support for this argument. That is because there is none as substantive unconscionability focuses 0n the terms 0f the contract rather than an individual’s understanding 0f the terms. T0 the extent that Kuta contends that he did not understand the terms and thus the contract is unenforceable, that argument also fails. See Pinnacle, 55 Ca1.4th at 236; Madden, 17 Cal.3d at 710. As addressed above, a lack of understanding of the terms of a contract does not render the contract unenforceable. See Ramos v. Westlake Services LLC (2015) 242 Ca1.App.4th 674, 687 (holding that the fact that a party did not completely understand the language in the signed agreement would not bar enforcement). Next, Kuta contends that the Promissory Note’s acceleration clause renders the Promissory Note substantively unconscionable. However, Kuta’s contention is contrary t0 the case law. In Steffen v. Refrigeration Discount Corp. (1949) 91 Ca1.App.2d 494, 498, the court held that a contract containing an acceleration clause was not unconscionable because it alerted the borrower of the time the loan payment would become due and payable. Similarly, here, the Promissory Note clearly indicated that if Kuta’s employment With ColorTokens ceased for any reason, the $35,000 loan plus interest would become due and payable. UMF N0. 8. Accordingly, the Promissory Note is not substantively unconscionable. 6 CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The Promissory Note was not obtained through fraud 0r error. Kuta contends that the Promissory Note is unenforceable because it was obtained through fraud when ColorTokens’ CEO, Raj Parekh, presented the loan to Kuta t0 match his salary at LG. Opp. at 1223-7. Kuta’s contention fails because he has not proven his affirmative defense of fraud. In order t0 prove the affirmative defense of fraud, Kuta must prove: (1) ColorTokens made a fraudulent statement; (2) ColorTokens knew that the representation was not true; (3) ColorTokens made the representation t0 persuade Kuta to agree t0 the contract; (4) Kuta reasonably relied 0n ColorTokens representation; and (5) Kuta would not have entered into the contract if he had known that the representation was not true. City ofAtascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Ca1.App.4th 445, 481. Kuta has the burden to prove his affirmative defense of fraud. Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 969 (the party that “advances an affirmative defense t0 [ColorTokens’] claims bears the burden 0f proof on the defense”). (a) ColorTokens did not make anv fraudulent statement Kuta contends that Parekh made a fraudulent statement When he proposed giving Kuta two forgivable loans with the intention that these two loans would match his salary at LG. Opp. at 1225-7. Kuta’s contention fails. Kuta has presented n0 evidence that ColorTokens made a fraudulent statement. In fact, ColorTokens offered Kuta the forgivable loan that he requested. UMF No. 7. (b) ColorTokens did not knowinglv make anv untrue regresentations Kuta fails t0 provide any admissible evidence that ColorTokens knowingly made an untrue statement. As stated above, ColorTokens offered Kuta the forgivable loan that Parekh informed him he would receive as part of his employment offer letter. Even if Kuta was able t0 show that ColorTokens did knowingly make an untrue representation (it did not), Kuta fails t0 provide any evidence that Parekh knowingly made any false statements t0 Kuta regarding the receipt of a forgivable loan during Kuta’s employment With ColorTokens. 7 CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (c) Kuta would not have signed the Promissorv Note if he knew Parekh’s representation was false Kuta fails to provide any evidence that he would not have signed the Promissory Note if he knew that ColorTokens’ representation was false. Thus, cannot establish this element t0 support his affirmative defense for fraud. As Kuta has not provided any admissible evidence t0 prove his affirmative defense of fraud, the court should grant ColorTokens’ motion for summaryjudgment in its entirety. Seltzer, 182 Ca1.App.4th at 969. III. KUTA BREACHED THE CONVENANT OF GOOD FAITH AND FAIR DEALING BY REFUSING TO PAY BACK THE LOAN DESPITE COLORTOKENS’ ATTEMPTS TO CONTACT HIM Kuta contends that ColorTokens’ breach of the covenant 0f good faith and fair dealing claims fails because it is based on the same allegations that support ColorTokens’ breach 0f contract claim. As established above and in its Motion, ColorTokens has successful established a claim for breach 0f contract and breach 0f the covenant 0f good faith and fair dealing that may be resolved by a dispositive motion. Next, Kuta contends he did not breach the covenant 0fgood faith and fair dealing because ColorTokens’ intention for offering Kuta the consulting agreement was t0 get Kuta t0 sign a release of all his claims. Opp. at 1322-7. Kuta’s contention fails because he has not provided any legal authority (not even a single case) that supports his argument. ColorTokens is aware of no such authority supporting this contention. Thus, Kuta’s contention is strictly conj ecture that cannot Withstand summary judgment. See LaChapelle, 102 Cal.App.4th at 98 1. IV. KUTA COMMITTED FRAUD BY EXECUTING THE PROMISSORY NOTE WITH NO INTENTION OF REPAYING THE LOAN Kuta contends that ColorTokens’ Motion for Summary Judgment, or alternatively, Motion for Summary Adjudication fails t0 present any evidence besides Kuta’s nonperformance in support of ColorTokens’ fraud claim. Opp. at 13:15-16. Specifically, he relies on Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass ’n for the proposition that in order t0 8 CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 successfully plead a fraud claim, ColorTokens must demonstrate more than nonperformance 0f the contract. Opp. at 13:10-16. Kuta’s contention misses the mark. As discussed in its Motion, Kuta knowingly intended for ColorTokens to rely on his representation that he would repay the $35,000 based on the terms set forth in the Promissory Note. UMF N0. 8. ColorTokenS justifiably relied 0n such Kuta’s representation as he signed the Promissory Note guaranteeing repayment 0f the loan. Finally, Kuta’s refusal to repay the loan has deprived ColorTokens 0f the use of its capital plus interest. Kuta’s contention and reliance 0n Riverisland Cold Storage is misplaced as ColorTokens has demonstrated more than simply Kuta’s nonperformance of the Promissory Note. As set forth in its Motion, ColorTokens offered Kuta a consulting agreement that would have eliminated the burden t0 repay the Promissory Note immediately. UMF N0. 15. However, Kuta failed t0 respond t0 these negotiation attempts-evidencing Kuta’s conscious intent t0 not repay the loan. UMF 16, 18, 19, 20. Further, ColorTokens attempted t0 discuss alternative repayment options With Kuta. UMF N0. 18. Kuta failed to respond-again evidencing his intent to refuse t0 repay the loan even under more favorable repayment terms. UMF 18, 19, 20. Thus, Kuta has done much more than mere nonperformance 0f the Promissory Note (i.e., repayment of the loan When it became due). Kuta has continually demonstrated his intent t0 refuse to pay the loan under more flexible repayment options and favorable repayment terms. V. KUTA MUST BE PROMISSORILY ESTOPPED FROM REFUSING TO REPAY THE LOAN Kuta contends that ColorTokens is not entitled to promissory estoppel because ColorTokens had n0 justifiable reliance that Kuta would repay the $35,000 loan because the loan was intended match Kuta’s LG salary. Opp. at 1429-1 1. First, Kuta’s contention fails to provide any legal support for his contention. Kuta cites n0 legal support (and ColorTokens is not aware 0f any) that Kuta’s belief as t0 the reason he received the loan creates a triable issue of fact precluding summary judgment. Second, Kuta contends that a promissory estoppel claim is limited to situations where there is n0 contract between the parties. Again, Kuta fails t0 provide any case law supporting his 9 CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMlVIARY ADJUDICATION, OR ALTERNATIVELY, SIHVHVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contention. In fact, his contention runs afoul of California law. See Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 243 (“Based 0n [the] significant differences between contract and promissory estoppel claims, [the] California Supreme Court repeatedly recognized the claims not only as distinct or alternative theories 0f recovery but also as mutually exclusive.”). Third, as set forth in ColorTokens Motion, the undisputed facts prove that ColorTokens has established each element for a promissory estoppel claim. Kuta made a clear and unambiguous promise When he signed the Promissory Note. UMF No. 8. Under the terms 0f the Promissory Note, ColorTokens would provide Kuta with $35,000 0n the condition that Kuta would repay the loan plus interest. UMF No. 8, 9. Kuta stated he reviewed the terms, had n0 questions, and did not make any changes before signing the Promissory Note. UMF No. 8, 9. ColorTokens reasonably and foreseeably relied 0n Kuta’s assurance that he would repay the $35,000 plus interest. ColorTokens has suffered damages in its loss of capital plus accrued interest. Thus, because ColorTokens has established each element for its cause of action for promissory estoppel and Kuta has failed t0 argue otherwise, ColorTokens is entitled to summary judgment. VI. CONCLUSION For the reasons set forth above, and in ColorTokens’ Motion and Memorandum of Points and Authorities, the Court must grant its Motion for Summary Judgment in its entirety and enter judgment in ColorTokens’ favor. Dated: October 2, 2020 FISHER & PHILLIPS LLP By: _ _____ JA'SON/AZGE’ R AARON LA GBERG Attorneys for Defendant and Cross-Complainant, COLORTOKENS, INC. 10 CROSS-COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS-DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMNIARY ADJUDICATION, OR ALTERNATIVELY, SUMlVIARY ADJUDICATION FP 387236456 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (C.C.P. §§ 101 1, 1013, 1013(a) and 2015.5; Cal. Rules ofCourt, rule 2.306 and 2.251) Kuta v. ColorTokens, Case N0. 18CV338604 I am employed in the County of San Francisco, State of California in the office of a member of the bar of this Court Whose direction the following service was made. I am over the age 0f 18 and am not a party t0 this action. My business address is One Embarcadero Center, Suite 2050, San Francisco, California. On the date set forth below, I served the foregoing document entitled: CROSS- COMPLAINANT COLORTOKENS, INC.’S REPLY BRIEF TO CROSS- DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMMARY ADJUDICATION, OR ALTERNATIVELY, SUMMARY ADJUDICATION on all the appearing and/or interested parties in this action by placing D the original g a true copy thereof addressed as follows: Daniel L. Feder Attorneysfor Plaintiff/Cross-Defendant Law Offices Of Daniel Feder 23 5 Montgomery Street, Suite 10 1 9 Telephone: (4 1 5) 39 1 -9476 San Francisco, CA 94 1 04 Facsimile: (4 1 5) 39 1 -9432 Email: daniel@dfederlaw.com [VIA ELECTRONIC SERVICE] I certify that on the date indicated below, I electronically served the above document(s) With the Court using an authorized electronic filing service provider, Green Filing LLC, Which Will send notification 0f such filing t0 the designated recipients email address as stated above. The Transaction Receipt is managed by the Court’s authorized Case Management System. (See CCP § I 01 0. 6 and CRCRuZes 2.250 through 2.259.) D [VIA E-SERVICE] I certify that 0n the date below, I caused each document(s) t0 be served Via electronic mail in Adobe “PDF” format t0 the designated recipient(s) email address(es) as listed above and such transmission was sent from the following sender: lwahlberg@fisherphillips.com. I did not receive any electronic message or other indication that the transmission was unsuccessful. D [VIA UNITED STATES MAIL] I enclosed the document(s) in a sealed envelope 0r package addressed t0 the person(s) whose address(es) are listed above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar With this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business With the United States Postal Service in San Francisco California, in a sealed envelope With postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 2, 2020 at San Francisco, California. Sue Anne Travers By; w/ . gflm fl aL/ Prlnt Name U w W”E Slgnature PROOF OF SERVICE FP 387236456