Mission Viejo Florist Inc. v. Orchard Supply Company LLC

NOTICE OF MOTION AND MOTION for Summary Judgment

C.D. Cal.March 18, 2019

DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 Phillip J. Eskenazi (State Bar No. 158976) peskenazi@HuntonAK.com Alexandrea H. Young (State Bar No. 233950) ayoung@HuntonAK.com HUNTON ANDREWS KURTH LLP 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 Attorneys for Defendant ORCHARD SUPPLY COMPANY, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION MISSION VIEJO FLORIST, INC., a California corporation, Plaintiff, v. ORCHARD SUPPLY COMPANY, LLC, a North Carolina limited liability company; and DOES 1-10, inclusive, Defendants. Case No.: 8:16-cv-01841-CJC-(KESx) DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S: (1) NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; AND (2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: April 15, 2019 Time: 1:30 p.m. Courtroom: 7C Complaint Filed: September 27, 2016 Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 1 of 16 Page ID #:5663 1 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 TO THE COURT, PLAINTIFF, AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on Monday, April 15, 2019, at 1:30 p.m. in Courtroom 7C of the above-referenced Court, located at 350 W. First Street, Los Angeles, CA, 90012, Defendant Orchard Supply Company, LLC (“Orchard”) will, and hereby does, move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Orchard’s Motion is based on the ground that there is no genuine dispute as to any material facts, and Orchard is entitled to judgment as a matter of law as Plaintiff Mission Viejo Florist, Inc. (“MVF”) cannot establish damage due to Orchard’s conduct – an essential element to both of its remaining claims in this action. This Motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the declaration of Alexandrea H. Young (and exhibits thereto), the pleadings and papers on file, any matter of which the Court may take judicial notice, and upon such oral argument as may be made at the hearing on this Motion. This Motion is made following Orchard’s unsuccessful attempt to engage MVF in a conference of counsel pursuant to Local Rule 7-3. 1 Dated: March 18, 2019 HUNTON ANDREWS KURTH LLP Phillip J. Eskenazi Alexandrea H. Young By: /s/ Phillip J. Eskenazi Phillip J. Eskenazi Attorneys for Defendant ORCHARD SUPPLY COMPANY, LLC 1 As the Court directed Orchard to file this motion for summary judgment, it is unclear whether Local Rule 7-3 applied and whether a pre-filing meet and confer between the parties was required. But out of an abundance of caution, Orchard reached out to MVF to see whether such a conference would be productive. MVF did not respond to that communication. Declaration of Alexandrea H. Young (“Young Decl.”) at ¶8. Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 2 of 16 Page ID #:5664 i DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................. 1 II. STATEMENT OF FACTS ................................................................................ 1 A. MVF Sought To Prove Damages Through An Expert .............................. 1 B. MVF’s Expert Is Now Precluded From Testifying ................................... 5 III. SUMMARY JUDGMENT STANDARD .......................................................... 6 IV. ORCHARD IS ENTITLED TO SUMMARY JUDGMENT BECAUSE MVF CANNOT PROVE THE ESSENTIAL ELEMENT OF DAMAGE .......... 7 A. MVF’s Two Remaining Claims Both Require Proof Of Damage To MVF ................................................................................................... 7 B. As A Matter Of Law, MVF Has No Competent Evidence Of Damage .................................................................................................... 8 C. MVF Did Not, And Cannot, Seek Emotional Distress Damages ............ 10 V. CONCLUSION ............................................................................................... 11 Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 3 of 16 Page ID #:5665 ii DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 TABLE OF AUTHORITIES Page(s) Cases California v. Altus Fin. S.A., 540 F.3d 992 (9th Cir. 2008) ................................................................................. 11 Celotex Corp. v. Cattrett, 477 U.S. 317 (1986) ................................................................................................ 6 City of Vernon v. S. California Edison Co., 955 F.2d 1361 (9th Cir. 1992) ............................................................................... 10 Coleman v. Dish Network LLC, 2018 WL 1957722 (C.D. Cal. Apr. 6, 2018) ........................................................... 6 F.P.D., Inc. v. Hartford Cas. Ins. Co., 2015 WL 12806477 (C.D. Cal. Oct. 6, 2015) ........................................................ 11 Glynn v. Midland Funding, LLC, 2018 WL 3244576 (C.D. Cal. June 29, 2018) ......................................................... 6 Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217 (9th Cir. 2005) ................................................................................. 9 Hariton v. Chase Auto Fin. Corp., 2010 WL 3075609 (C.D. Cal. Aug. 4, 2010) ........................................................... 8 Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228 (2005) .............................................................................. 11 Kizer v. Cty. of San Mateo, 53 Cal. 3d 139 (1991), as modified (Mar. 28, 1991) .............................................. 11 Lanphere Enterprises, Inc. v. Jiffy Lube Int’l Inc., 138 F. App’x 20 (9th Cir. 2005) ............................................................................ 10 McGlinchy v. Shell Chem. Co., 845 F.2d 802 (9th Cir. 1988) ................................................................................. 10 Operating Engineers & Pension Tr. Fund v. W. Power & Equip. Corp., 2011 WL 1153300 (N.D. Cal. Mar. 28, 2011) ......................................................... 7 Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 4 of 16 Page ID #:5666 iii DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 Pacific Gas & Electric Co. v. Bear Stearns & Co., 50 Cal. 3d 1118 (1990) ........................................................................................... 7 People v. Kinder Morgan Energy Partners, L.P., 159 F. Supp. 3d 1182 (S.D. Cal. 2016) ................................................................. 10 Richman v. Hartley, 224 Cal. App. 4th 1182 (2014) ................................................................................ 7 TCL Commc’ns Tech. Holdings, Ltd. v. Telefonaktienbolaget LM Ericsson, 2016 WL 6562075 (C.D. Cal. Aug. 9, 2016) ....................................................... 8, 9 Statutes California Business & Professions Code §17200 ......................................................... 7 Other Authorities Federal Rule of Civil Procedure 26 ................................................................ 1, 2, 8, 11 Federal Rule of Civil Procedure 30 .............................................................................. 2 Federal Rule of Civil Procedure 37 .............................................................................. 8 Federal Rule of Civil Procedure 56 .............................................................................. 6 Federal Rule of Evidence 403 .................................................................................. 5, 6 Federal Rule of Evidence 702 .................................................................................. 1, 5 Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 5 of 16 Page ID #:5667 1 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant Orchard Supply Company, LLC (“Orchard”) is entitled to summary judgment because Plaintiff Mission Viejo Florist, Inc. (“MVF”) has no competent evidence of damage to support its remaining claims. 2 Both of MVF’s remaining claims—tortious interference with contract, and breach of contract as a third-party beneficiary—require that MVF prove that it has suffered damage due to Orchard’s purported wrongful conduct. MVF intended to prove that it suffered lost profits through the testimony of a damages expert. As such, when MVF’s sole shareholder, Joni O’Neill, was deposed shortly before the parties exchanged expert designations and reports, she deferred to MVF’s expert. When asked if MVF had experienced any monetary damages as a result of Orchard opening its store in the Marguerite Shopping Center (“Center”), O’Neill testified that she did not know, and “I’m not an accountant or bookkeeper, and we’re still analyzing those sales right now.” MVF’s counsel further objected throughout O’Neill’s deposition to questions regarding MVF’s damages as calling for expert testimony. MVF subsequently designated Deborah Dickson as its damages expert who the Court recently excluded from testifying under Daubert and Federal Rule of Evidence 702. As a result, MVF has no competent evidence of damages, and as a matter of law, cannot prove an essential element of its claims. The Court, therefore, should grant Orchard’s motion for summary judgment. II. STATEMENT OF FACTS A. MVF Sought To Prove Damages Through An Expert In its Federal Rule of Civil Procedure 26(a)(1) initial disclosures, MVF did not 2 The Court expressed hope this motion would not be necessary and encouraged the parties to discuss settlement for a “modest” amount in light of MVF’s lack of damages and the anticipated fees to bring this motion. MVF, however, ignored Orchard’s attempts to engage in any such discussions. Young Decl. ¶2. Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 6 of 16 Page ID #:5668 2 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 provide “a computation of each category of damages” it was claiming, nor did it make available for inspection or copying the documents on which such (non-existent) computation was based, as required by Rule 26. Young Decl. at ¶3, Exh. A (MVF’s Initial Disclosures); Orchard’s Proposed Statement of Uncontroverted Facts and Conclusion of Law, Uncontroverted Fact (“UF”) No. 6; Fed. R. Civ. P. 26(a)(1). Instead, MVF only stated “because of the nature of Defendant’s conduct, Plaintiff is unable at this time to accurately calculate or determine the extent and nature of damages (including future damage) flowing from Defendant’s conduct.” Id. MVF has never amended or supplemented its Rule 26 initial disclosures. Young Decl. ¶3. Orchard then deposed MVF’s sole shareholder, Joni O’Neill. She was deposed as both MVF’s sole designated witness under Rule 30(b)(6), including on the topic of “YOUR alleged damages that YOU are seeking in this action,” and in her individual capacity. Young Decl. ¶4, Exh. B (Orchard’s Deposition Notice to MVF); ¶4, Exh. C (O’Neill Dep. at 15:12-16:23); UF No. 7. At deposition, O’Neill repeatedly deferred to MVF’s expert on questions regarding MVF’s damages (and MVF’s counsel consistently objected on the ground that such questioning called for expert testimony). UF No. 13; O’Neill Dep. at 117:13-118:2; 118:17-22; 293-12-16; 293:17-294:4; 88-8- 89:21. For example, O’Neill testified as follows: MS. YOUNG: Do you believe MVF has suffered monetary damage because of Orchard opening at the center? THE WITNESS: I’m having experts look at that now. I don’t know the exact dollar amount, and I’m not sure. O’Neill Dep. at 184:14-17; UF No. 8. * * * * * MS. YOUNG: Okay. Has Mission Viejo Florist lost customers since Orchard opened its store at the center? MR. BEHNOOD: Objection. Calls for an expert opinion. Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 7 of 16 Page ID #:5669 3 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 THE WITNESS: I don’t know. MS. YOUNG: Has Mission Viejo Florist experienced any decline in its profits since Orchard opened its store at the center? MR. BEHNOOD: Same objection. You’re asking for facts, rather than her opinion, so objection in that it calls for expert analysis. THE WITNESS: I’m not an accountant or bookkeeper, and we’re still analyzing those sales right now. MS. YOUNG: So do you know, as you sit here today? THE WITNESS: I do not. I’m sorry. O’Neill Dep. at 293:11-294:4; UF Nos. 9 & 10. In fact, O’Neill could not provide the basic foundation for any damages that may have been suffered by MVF. She testified that she was literally unable to isolate the sales and profits of the products at issue – flowering plants: BY MS. YOUNG: In, let’s say, the 12 months before Orchard opened its store, could you give me a percentage of your sales that were cut flowers versus flowering plants? THE WITNESS: I don’t know right now as I sit here. MS. YOUNG: Would you be able to determine that? THE WITNESS: I could have any accountant or bookkeeper -- MS. YOUNG: What would they look at to determine that? MR. BEHNOOD: Objection. Calls for speculation. THE WITNESS: I’m not sure how they would come up with that. MS. YOUNG: Do you know of any report or document as you sit here today that would allow you to determine the percentage of cut flowers versus flowering plants that MVF sold in the year before Orchard opened? Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 8 of 16 Page ID #:5670 4 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 MR. BEHNOOD: Objection. She’s not an expert. She’s not an accountant. THE WITNESS: Well, as I testified before, it’s confusing in a way because I don’t know by my records if it was cut or uncut flowers. I gave you the example before. So to give you an exact percentage, I don’t think I could. MS. YOUNG: In the year since Orchard opened, would it be the same that you could not give me a percentage? MR. BEHNOOD: Objection. Mischaracterizes the testimony. And also I’ll object that she’s not an accountant, she’s not an expert. THE WITNESS: I’m not sure if I could give you a percentage. I don’t know if it’s -- I don’t know. MS. YOUNG: Okay. As you sit here today, can you think of any documents or report that you could look at to tell me in the year-plus that Orchard has been opened at the center what percentage of MVF sales have been flowering plants or uncut flowers? THE WITNESS: No, I could not. O’Neill Dep. at 88:8-89:21; UF No. 11. Based on the foregoing, O’Neill plainly deferred to MVF’s expert to calculate MVF’s damages. Moreover, she failed to provide any information to support a damages claim and further demonstrated an inability to identify the specific information necessary to support such a claim: sales, costs and profits attributable to the products at issue – flowering plants. 3 O’Neill Dep. at 287:23-288:25; UF No. 12. 3 O’Neill likewise testified that she did not know what amount of sales that MVF had lost from the time Orchard opened until the deposition (either an exact dollar amount Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 9 of 16 Page ID #:5671 5 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 As this Court has already explained, “the alleged harmful act is not that Orchard opened a store in the same shopping center. It is that Orchard sold flowering plants and artificial flowers in the same shopping center.” Order at p. 6 [Dkt. 145]. The day after O’Neill’s deposition concluded, the parties served their affirmative expert disclosures. Young Decl. ¶5. MVF designated Deborah Dickson as an expert witness on damages, and concurrently provided Dickson’s expert report. UF No. 14; Young Decl. ¶5, Exh. D (MVF’s affirmative expert disclosures including report). Dickson’s report included an “Accountant’s Letter” that stated that her engagement was “to calculate any damages suffered by Mission Viejo Florist,” and it went on to state that she “evaluated the damages claims of Mission Viejo Florist and quantified the lost profits suffered by Mission Viejo Florist.” 4 Id. at Letter; UF No. 15. B. MVF’s Expert Is Now Precluded From Testifying On February 4, 2019, Orchard filed its motion in limine to preclude the testimony of Dickson on the basis that her opinions were irrelevant and unreliable under Daubert and Federal Rule of Evidence 702, and because her testimony was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury pursuant to Federal Rule of Evidence 403. [Dkt. 120]. The Court granted Orchard’s motion in limine at the February 28, 2019 hearing on that motion, or an approximate dollar amount), nor did she know an approximate amount of profits that MVF had lost during that same time. O’Neill Dep. at 117:13-118:2. And in response to both questions, MVF’s counsel objected that they called for expert testimony. UF No. 13; Id. 4 Dickson testified that she did not have an opinion on any diminution in value to MVF’s business based on Orchard’s sale of flowering plants in Mission Viejo, nor did she have an opinion on any loss of goodwill by MVF due to Orchard’s actions. Young Decl. ¶6, Exh. E (Dickson Dep. at 142:24-143:11 and 144:22-145:3). This is noteworthy because MVF had alleged in its complaint that it suffered such damage. MVF’s First Amended Complaint (“FAC”) at ¶¶27, 41, 52, 62 [Dkt. 83]; MVF’s Complaint [Dkt. 1-2]. Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 10 of 16 Page ID #:5672 6 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 and issued a written opinion the following day. 5 UF No. 16; March 1, 2019 Orders [Dkt. 144; Dkt. 145]. In light of the impact of this ruling, the Court vacated the scheduled March 12, 2019 trial date, and directed Orchard to file this motion for summary judgment on the ground that MVF has no evidence of damages. Id. III. SUMMARY JUDGMENT STANDARD A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). Summary judgment should be granted against a party “after adequate time for discovery and upon motion…fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. The moving party need not disprove the opposing party’s case. Id. at 323. Instead, it bears an initial burden to establish the absence of a genuine issue of material fact, which it may do by “simply point[ing] to portions of pleadings, admissions, answers to interrogatories and depositions which, along with affidavits, show the absence of a genuine issue of material fact.” Id. When the moving party meets its initial burden, the non-moving party must establish a genuine dispute as to any material fact with respect to the existence of any essential element to its case on which it bears the burden of proof at trial. Glynn v. Midland Funding, LLC, 2018 WL 3244576, at *2 (C.D. Cal. June 29, 2018); Fed. R. Civ. Proc. 56(e). Conclusory, speculative testimony in declarations or other materials is insufficient to raise genuine issues of fact and defeat summary judgment. Coleman v. Dish Network LLC, 2018 WL 1957722, at *4 (C.D. Cal. Apr. 6, 2018). 5 Dickson had also opined on Orchard’s profits as part of an alternative disgorgement theory, but this Court had previously found as a matter of law that MVF is not entitled to disgorgement of Orchard’s profits. UF No. 4; August 16, 2018 Order [Dkt. 111]. Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 11 of 16 Page ID #:5673 7 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 IV. ORCHARD IS ENTITLED TO SUMMARY JUDGMENT BECAUSE MVF CANNOT PROVE THE ESSENTIAL ELEMENT OF DAMAGE A. MVF’s Two Remaining Claims Both Require Proof Of Damage To MVF MVF has two remaining claims against Orchard: (1) Intentional Interference with Contract; and (2) Breach of Contract – Third Party Beneficiary. 6 MVF’s Memorandum of Contentions of Fact and Law (“MVF’s Memorandum”) at p. 27 [Dkt. 129] (“MV Florist is not pursuing its second claim for Unfair Competition and its third claim for Injunctive Relief.”); MVF’s FAC; UF No. 1. Both of these claims require that MVF prove that there has been damage to MVF. MVF’s Memorandum at p. 4, 5; see also Pacific Gas & Electric Co. v. Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (1990) (intentional interference with contract requires “resulting damage”); Richman v. Hartley, 224 Cal. App. 4th 1182, 1186 (2014) (breach of contract claim requires “resulting damage to the plaintiff”); Operating Engineers & Pension Tr. Fund v. W. Power & Equip. Corp., 2011 WL 1153300, at *1-2 (N.D. Cal. Mar. 28, 2011) (same, in the context of a third-party beneficiary claim). 6 In its complaint, MVF prays for (i) an injunction; (ii) “[a]ctual, compensatory and consequential damages in an amount to be proven at trial”; and (iii) “[r]estitution and disgorgement of profits and proceeds in an amount to be proven at trial.” MVF’s FAC at Prayer; MVF’s Complaint; UF No. 3. However, the non-damages remedies have become moot. The Court previously granted partial summary judgment in favor of Orchard on MVF’s disgorgement of profits claim and claim for restitution under California Business & Professions Code §17200. August 16, 2018 Order [Dkt. 111]; UF No. 4. In November of 2018, Orchard closed its store at the Center and stopped selling the disputed products, rendering any injunctive relief moot. Young Decl. ¶7; UF No. 5. And MVF subsequently abandoned its Section 17200 claim, as well as its claim for Injunctive Relief. MVF’s Memorandum at p. 27; UF No. 5. Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 12 of 16 Page ID #:5674 8 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 B. As A Matter Of Law, MVF Has No Competent Evidence Of Damage MVF alleges that Orchard’s sale of flowering plants at the Center, violates MVF’s lease exclusivity and caused harm to MVF. FAC ¶¶1, 18, 19, 61; UF No. 2. As set forth above, MVF elected to prove its damages through an expert, and that expert may not testify. MVF has no other evidence of damage. As an initial matter, MVF did not identify any category of damage, nor provide the requisite “computation” of such damage, in its Rule 26 initial disclosures. MVF’s Initial Disclosures; UF No. 6. A plaintiff must provide a computation of each specific category of damages sought, or that plaintiff is “forbidd[en] [from using] at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.” See TCL Commc’ns Tech. Holdings, Ltd. v. Telefonaktienbolaget LM Ericsson, 2016 WL 6562075, at *9 (C.D. Cal. Aug. 9, 2016) (where Rule 26(a) disclosures did not identify categories of or a computation of damages, subsequent speculative testimony regarding damages “did not fulfill TCL’s obligation under Rule 26(a) to provide a computation of each category of damages claimed by TCL [and] [c]onsequently, TCL cannot rely on any later-disclosed computation or documentation to defeat summary judgment.”); see also Hariton v. Chase Auto Fin. Corp., 2010 WL 3075609, at *6 (C.D. Cal. Aug. 4, 2010) (where “damages were not mentioned in Plaintiff’s Rule 26(a) disclosure… [and were not disclosed] in responding to discovery requests…Plaintiff cannot belatedly claim these damages in his Opposition [to a summary judgment motion].”); Fed. R. Civ. Proc. 37(c). Nor can O’Neill now provide lay testimony regarding MVF’s alleged damages. As demonstrated above, when asked under oath, O’Neill could not provide the requisite information underpinning a lost profits claim. UF Nos. 8-12. She could not estimate what amount of sales MVF had lost from the time Orchard opened until her deposition (either an exact dollar amount or an approximate dollar amount), nor did she know an approximate amount of profits that MVF had lost during that same Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 13 of 16 Page ID #:5675 9 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 time. O’Neill Dep. at 117:13-118:2. She did not know if MVF has lost any customers since Orchard opened in the Center (id. at 293:11-16; UF No. 9), much less a drop in the specific sales at issue – in-store purchases of flowering plants. She further could not isolate the relevant sales: she did not know what percentage of MVF’s sales were cut flowers versus flowering plants, either in the year before Orchard opened or in the year after, and—indeed—could not think of a document that would provide that information. 7 O’Neill Dep. at 88:8-89:21; UF No. 11. She admitted that in looking at the three different types of monthly sales reports produced by MVF in this action, a person could not tell how many flowering plants were sold in-store at MVF in any given month (a critical component of determining any loss of such sales). O’Neill Dep. at 159:6-8 and 161:23-162:3 (“Q. Looking at these three reports again that are all [sic] concern October 2016. A. Yes. Q. How would I be able to tell how many flowering plants were sold in-store at MVF in October 2016? A. You can’t.”); UF No. 11. Nor could she identify the relevant cost information. O’Neill Dep. at 287:23- 288:25; UF No. 12. As her sworn testimony makes clear, O’Neill could not establish any evidence of damage to MVF. And she cannot contradict her deposition testimony to create an issue of fact on summary judgment. See Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005) (“[u]nder our ‘sham’ affidavit rule, a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.”); see also TCL Commc’ns Tech. Holdings, Ltd., 2016 WL 6562075, at *9–11 (summary judgment appropriate where deposition testimony failed to establish damages: “[n]either witness gave an answer to the question [of the actual 7 Dickson’s expert testimony was found by this Court to be “fundamentally flawed by her failure to calculate lost profits based on the products at issue.” March 1, 2019 Order at p. 5 [Dkt. 145]. The same would necessarily be true for any hypothetical damages testimony by a lay witness. Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 14 of 16 Page ID #:5676 10 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 amount of damages incurred], and at least one witness seemed to indicate that the fees would be submitted later as part of the litigation process”). Accordingly, as the Court has excluded the testimony of MVF’s designated damages expert, and MVF has no other competent evidence of the prima facie element of damage, summary judgment is appropriate. See, e.g., McGlinchy v. Shell Chem. Co., 845 F.2d 802, 808 (9th Cir. 1988) (finding “[s]ome sort of study estimating the amount of damages was essential to appellants’ case” and after damages expert was excluded, summary judgment was appropriate); City of Vernon v. S. California Edison Co., 955 F.2d 1361, 1373 (9th Cir. 1992) (“the serious flaws in the only damage study which could be proffered to the jury placed [the plaintiff] in the position of having no proper proof of damages at all [and] the district court did not err when it awarded summary judgment based upon this lack of evidence.”); Lanphere Enterprises, Inc. v. Jiffy Lube Int’l Inc., 138 F. App’x 20, 23–24 (9th Cir. 2005) (“[t]he district court’s exclusion of [the expert report] thus left [plaintiff]’s allegations regarding causation and damages completely unsupported. Accordingly, the district court properly granted Jiffy Lube’s Summary Judgment Motion.”); People v. Kinder Morgan Energy Partners, L.P., 159 F. Supp. 3d 1182, 1198–99 (S.D. Cal. 2016) (“[s]imply put [defendant] is entitled to summary judgment on both aspects of the City’s water damages claim—supply and storage—because the City will not be able to prove damages at trial without expert testimony, and damages is an essential element of the City’s [claims].”). C. MVF Did Not, And Cannot, Seek Emotional Distress Damages As a final point, MVF’s counsel raised at the February 28, 2019 hearing that MVF may be entitled to seek emotional distress damages. That is wrong. As MVF’s counsel subsequently confirmed to the Court at that hearing, MVF’s FAC does not allege damage due to emotional distress, nor are emotional distress damages prayed for in the FAC. See FAC [Dkt. 83]. Further, emotional distress was not disclosed as a Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 15 of 16 Page ID #:5677 11 DEFENDANT ORCHARD SUPPLY COMPANY, LLC’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H u n to n A n d re w s K u r th L L P 5 5 0 S o u th H o p e S tr ee t, S u it e 2 0 0 0 L o s A n g el es , C a li fo rn ia 9 0 0 7 1 -2 6 2 7 category of damage, nor was any computation of such damage provided, in MVF’s Rule 26 initial disclosures. See MVF’s Initial Disclosures. Finally, MVF, as a California corporation, cannot recover emotional distress damages due to its status as a business entity. See, e.g., F.P.D., Inc. v. Hartford Cas. Ins. Co., 2015 WL 12806477, at *3 (C.D. Cal. Oct. 6, 2015) (“[a]s a matter of law, however, a business entity like [plaintiff] cannot suffer emotional distress, and therefore lacks standing to pursue a claim for intentional infliction of emotional distress.”), citing Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228, 1260 (2005) (finding that “[a]s a business entity [plaintiff] lacks standing to pursue” an intentional infliction of emotional distress claim). 8 V. CONCLUSION For the foregoing reasons, Orchard respectfully requests that the Court grant its motion for summary judgment. Dated: March 18, 2019 HUNTON ANDREWS KURTH LLP Phillip J. Eskenazi Alexandrea H. Young By: /s/ Phillip J. Eskenazi Phillip J. Eskenazi Attorneys for Defendant ORCHARD SUPPLY COMPANY, LLC 8 MVF’s counsel also indicated at that hearing that MVF could somehow still obtain punitive damages without an award of compensatory damages. However, this is also incorrect. “Actual damages must be found as a predicate for exemplary damages.” California v. Altus Fin. S.A., 540 F.3d 992, 1001 (9th Cir. 2008); see Kizer v. Cty. of San Mateo, 53 Cal. 3d 139, 147 (1991), as modified (Mar. 28, 1991) (“In California, as at common law, actual damages are an absolute predicate for an award of exemplary or punitive damages.”). Case 8:16-cv-01841-CJC-KES Document 149 Filed 03/18/19 Page 16 of 16 Page ID #:5678