Defendants Trial BriefBriefCal. Super. - 4th Dist.March 22, 2018OO 0 9 aN Wn BA W N = N N N N N N N N N e m e m e m e m p m e m e m e e co NN O N nn kA W N = D O O N N N R E W I N D = O RICHARD E. QUINTILONE II (SBN 200995) GEORGE A. ALOUPAS (SBN 313112) QUINTILONE & ASSOCIATES “Superior Court of Califo nia, TELEPHONE: (949) 458-9675 01/22/2019 at 07:41:00 PM FACSIMILE: (949) 458-9679 Clerk of the Superior Court E-MAIL: REQ@QUINTLAW.COM: GAA@QUINTLAW.COM ye L lerie.0 eps Clerk Attorneys for Defendant: MYCHOICE SOFTWARE, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE - LIMITED CIVIL REPUTATION MANAGEMENT Case No. 30-2018-00981452-CL-BC-CJC CONSULTANTS, INC. Assigned for All Purposes To: Plaintiff, Hon. Corey S. Cramin Dept.: C-3 Vv. DEFENDANT MYCHOICE SOFTWARE, MY CHOICE SOFTWARE, LLC., and DOES | LLC’S TRIAL BRIEF 1 through 10, inclusive Trial Date: January 23, 2019 Defendants. Time: 9:00 a.m. Dept: C-3 [Filed Concurrently with Defendant’s Exhibit List] Complaint Filed: March 22, 2018 Trial Date: January 23, 2019 -1- DEFENDANT’S TRIAL BRIEF © 0 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m e m e e co NN O N nn kA W N = D O O N N N R E W I N D = O TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: Defendant, MY CHOICE SOFTWARE, LLC, (“Defendant”) hereby submits the following trial brief for the above-captioned case for the upcoming trial dated January 23, 2019 at 9:00 a.m. in Department C-3 of the Central Justice Center, located at 700 W. Civic Center Drive, Santa Ana, CA 92701. I. PARTIES AND COUNSEL Plaintiff Reputation Management Consultants, Inc. (“Plaintiff or “RMC”) is represented by James D. Cuzzolina, Esq. of the Law Offices of J.D. Cuzzolina, Esq. located at 537G Santa Ana Canyon Road, #297, Anaheim Hills, CA 92807; Tel: (916) 500-4418; Email: james.cuzz@gmail.com. Defendant is represented by Richard E. Quintilone II, Esq. and George A. Aloupas, Esq. of Quintilone & Associates, located at 22974 El Toro Road, Suite 100, Lake Forest, CA 92630; Tel.: (949) 458-9675; Fax: (949) 458-9679; Email: req@quintlaw.com; gaa@gquintlaw.com. II. STATEMENT OF THE CASE This is a limited civil matter involving a contract dispute between corporation and a limited liability company. On March 22, 2018, Plaintiff filed its Complaint against Defendant for : (1) Breach of Contract; and (2) Common Counts. On May 16, 2018, Defendant filed its Answer to Plaintiff’s Complaint generally denying all of the allegations against it, and also asserting fourteen (14) affirmative defenses. On or about October 3, 2016, Plaintiff and Defendant entered into a written contract where Plaintiff was tasked with providing Reputation Management Services for Defendant. See Contract filed concurrently as Exhibit “A”. Part of these services consisted of suppress negative articles and publicity regarding Defendant, so that positive publicity appears at the top of search engine results for Defendant. Plaintiff was also supposed to create quality content that would be placed in search results as well as negative ad suppression. In fact, Plaintiff stated in its Initial Report to Defendant that “[t]he overall focus of the Inoculation Campaign is to remove any negative information from the front page of search engines with new content that is consistently fresh and stands the best chance of outranking current negative search results.” See Initial Report Filed concurrently as Exhibit “B”. 2- DEFENDANT’S TRIAL BRIEF © 0 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m e m e e co NN O N nn kA W N = D O O N N N R E W I N D = O Defendant was denied dual creative control of any of the content that would be created which is opposite to what was stated in the November 8, 2016 Inoculation Report. The November 8, 2016 Inoculation Report is filed concurrently as Exhibit “C”. On or about October 18, 2016, Defendant received profile content from Plaintiff which was subpar at best. The content contained numerous errors and as much as one-third of the “fresh” content was reclaimed from Defendant’s own website and a press release that one of Defendant’s employees wrote for the company back on July 13, 2016. Another example of the subpar work was the content “Unlocking Universes: the Evolution of Computer Software,” and “Mistakes when Purchasing was wholly inconsistent with Defendant’s name, brand, and key search phrase. See Unlocking Universes filed concurrently as Exhibit “D” and “Mistakes when Purchasing Software concurrently filed as Exhibit “E”. These issues were brought to Plaintiff’s attention and on November 8, 2018, Adam Reifman for Plaintiff responded stating that although there were concerns with Plaintiff’s work product, Plaintiff will not cancel the contract because “the terms of the contract are binding.” The November 8, 2016 email from Mr. Reifman is filed concurrently as Exhibit “F”. On or about November 9, 2016, Jonathan Dean, a Content Specialist for Defendant emails Plaintiff reiterating a desire to cancel the contract and for a demand for the login information for the asset accounts that were created thus far. This November 9, 2016 email is filed concurrently as Exhibit “G”. Anthony Asuncion, a Project Manager for Plaintiff responds refusing give over the login information and also refusing to cancel the contract. This November 9, 2016 email response is filed concurrently as Exhibit “H”. On November 9, 2016, Nathan Mumme emails Mr. Reifman again demanding that the contract be cancelled due to substandard work, and even offering that Plaintiff keep $6,000.00 based on work already performed. The November 9, 2016 email is filed concurrently as Exhibit “I”. On November 10, 2016, Mr. Reifman emails Mr. Mumme responding to Mr. Mumme’s November 9, 2016 email condescendingly stating that Mr. Mumme might be “misunderstanding our relationship” and then doubling down on Plaintiff’s refusal to cancel the contract after multiple demands to do so. The November 10, 2016 email is filed concurrently as Exhibit “J”. 3 DEFENDANT’S TRIAL BRIEF © 0 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m e m e e co NN O N nn kA W N = D O O N N N R E W I N D = O After repeated demands from Defendant to cease work and to cancel the contract, Plaintiff continued to provide work under the contract and continued to invoice Defendant for the work. Plaintiff continued to provide subpar work product and refused to mitigate any of its alleged damages by ceasing work on the contract when Defendant made it known multiple times in writing to cancel the contract. III. DEFENDANT’S CONTENTIONS Defendant’s contentions in this case are as follows: I. That Plaintiff failed to substantially perform on the contract by producing subpart work product that was not new or “fresh,” but rather, it was recycled and was not consistent with the Defendant’s name and branding; and 2. Plaintiff failed as a matter of law to mitigate its damages after being notified in wiring on multiple occasions that Defendant was unsatisfied with the work product and that the contract should be cancelled, and that Defendant will no longer be paying for Plaintiff’s services. Plaintiff, after receiving this written demand multiple times from Defendant’s CEO, still refused to cancel the contract. IV. APPLICABLE LAW A. Plaintiff Did Not Substantially Perform its Duties under the Contract Substantial performance means that there has been no willful departure from the terms of the contract, and no omission of any of its essential parts, and that the contractor has in good faith performed all of its substantive terms. If so, he will not be held to have forfeited his right to a recovery by reason of trivial defects or imperfections in the work performed. Connell v. Higgins (1915)170 Cal. 541, 556. What constitutes substantial performance is a question of fact, but it is essential that there be no willful departure from the terms of the contract, and that the defects be such as may be easily remedied or compensated, so that the promisee may get practically what the contract calls for.” Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 186-187; see also Kossler v. Palm Springs Development Ltd. (1980) 101 Cal.App.3d 88, 101. Here, Plaintiff was tasked with a campaign that would not only suppress negative search results for Defendant, but also create new and “fresh” content that would appear in search results of 4- DEFENDANT’S TRIAL BRIEF © 0 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m e m e e co NN O N nn kA W N = D O O N N N R E W I N D = O Defendant. However, the work product that was presented to Defendant after the first month was subpar. It was riddled with spelling errors, much of the content was recycled from Defendant’s website and a prior press release, and not “fresh” at all. None of the content produced by Plaintiff as part of the contract discussed what makes Defendant unique in any compelling way. As a result, Plaintiff failed to substantially perform on the contract and Defendant did not receive the benefit of its bargain. B. Plaintiff Failed to Mitigate its Damages The doctrine of mitigation of damages holds that “[a] plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided.” Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 41; accord Seabord Music Co. v. Germano (1972) 24 Cal.App.3d 618, 622-623. A plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion. Mayes v. Sturdy Northern Sales, Inc. (1979) 91 Cal. App.3d 69, 85. One has an obligation to avoid an unwarranted enhancement of damages “through passive indifference or stubborn insistence upon a conceived legal right...” Green v. Smith (1968) 261 Cal.App.2d 392, 398-399. Here, Plaintiff was notified by both employees of Defendant and the CEO of Defendant that Plaintiffs work product was unsatisfactory; that Defendant wished to cancel the contract; and that Defendant would no longer be remitting any payment due under the contract. See Exhibit “F”. After being told that Defendant wanted the contract cancelled and that no more money would be paid pursuant to same, Plaintiff still performed work under the contract. Plaintiff’s actions show both the “passive indifference” and “stubborn insistence upon a conceived legal right” the Green court obliged Plaintiff to avoid. As such, Plaintiff is entitled to nothing as a matter of law because it failed to mitigate its damages. V. DAMAGES Plaintiff will claim that it is owed $21,700.00 plus interest from December 3, 2016 to January 23, 2019 plus costs. Defendant asserts that Plaintiff take nothing as it failed to substantially 5 DEFENDANT’S TRIAL BRIEF © 0 J a nm BA W N = N N N N N N N N N e m e m e m e m p m e m e m e e co NN O N nn kA W N = D O O N N N R E W I N D = O perform its duties under the contract, and because it failed to mitigate its damages after being notified of Defendant’s desire to cancel the contract on November 8, 2016. VI. ANY PERTIENET INFORMATION NOT DESCRIBED HEREIN ABOVE None to Defendant’s knowledge. VII. STATUS OF SETTLEMENT NEGOTIATIONS Plaintiff made its demand for settlement before the case was filed on February 20, 2018 for the full $21,700.00 owed. On January 22, 2019, Defendant, wishing in good faith to settle the case, conveyed an offer to Plaintiff of Nineteen Thousand dollars ($19,000.00). There has been no response to this offer from Plaintiff. Plaintiff appears to be unwilling to want to settle for anything less than $21,700.00 plus interest and costs. Dated: January 22,2019 QUINTILONE & ASSOCIATES RICHARD E. QUINTILONE II, GEORGE A. ALOUPAS Attorneys for Defendant MY CHOICE SOFTWARE, LLC -6- DEFENDANT’S TRIAL BRIEF © 0 9 O N un BRA W N = N N N N N N N N N e m e m e m e m p m e m e m e e co NN O N nn kA W N = D O O N N N R E W I N D = O PROOF OF SERVICE I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years, and not a party to the within action. I am an employee of or agent for Quintilone & Associates, whose business address is 22974 El Toro Rd., Suite 100, Lake Forest, CA 92630-4961. On January 22, 2019, I served the foregoing document(s): DEFENDANT’S TRIAL BRIEF on the following parties in this action addressed as follows: SEE ATTACHED SERVICE LIST X ~~ (BYMAIL) I caused a true copy of each document, placed in a sealed envelope with postage fully paid, to be placed in the United States mail at Lake Forest, California. I am "readily familiar" with this firm's business practice for collection and processing of mail, that in the ordinary course of business said document(s) would be deposited with the U.S. Postal Service on that same day. I understand that the service shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained on this affidavit. (BY PERSONAL SERVICE) 1 delivered each such document by hand to each addressee above. (BY OVERNIGHT DELIVERY) 1 caused a true copy of each document, placed in a sealed envelope with delivery fees provided for, to be deposited in a box regularly maintained by Federal Express or Overnight Express. I am readily familiar with this firm's practice for collection and processing of documents for overnight delivery and know that in the ordinary course of Quintilone & Associates’ business practice the document(s) described above will be deposited in a box or other facility regularly maintained by Federal Express or Overnight Express or delivered to a courier or driver authorized by Federal Express or Overnight Express to receive documents on the same date it is placed at Quintilone & Associates for collection. (BY FACSIMILE) By use of facsimile machine number 949.458.9679, 1 served a copy of the within document(s) on the above interested parties at the facsimile numbers listed above. The transmission was reported as complete and without error. The transmission report was properly issued by the transmitting facsimile machine. X (BY ELECTRONIC SERVICE) 1 delivered each such document by electronic means pursuant to California Civil Code, Code of Civil Procedure, the Local Rules and/or FRCP § 5(b)(2), et seq. Executed on January 22, 2019 at Lake Forest, California. (FEDERAL) I declare under penalty of perjury that the above is true and correct. XX (STATE) I declare under penalty of perjury that the above is true and correct. GEORGE A. ALOUPAS, ESQ. -1- PROOF OF SERVICE OO 0 9 aN Wn BA W N = N N N N N N N N N e m e m e m e m p m e m e m e e co NN O N nn kA W N = D O O N N N R E W I N D = O SERVICE LIST LAW OFFICE OF J.D. CUZZOLINA, ESQ. Counsel for Plaintiff J.D. Cuzzolina, Esq. 5753G Santa Ana Canyon Road, #297 Anaheim Hills, California 92807 Phone: (916) 500-4418 2- PROOF OF SERVICE
