Mission Viejo Florist Inc. v. Orchard Supply Company LLC

MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Summary Judgment 149

C.D. Cal.March 25, 2019

1 Steven R. Young Atty. Bar #96258. LAW OFFICES OF’STEVEN H. YOUNG 2 Civil Justice Attorneys 600 Anton Blvd. Suite 650 3 Costa Mesa Calif’ornia 92626 Tele: (714) 673-600 Fax: (714) 545-0355 4 li4mail: syoung@juryattorney.com 5 Attorney for Plaintiff Mission Viejo Florist, Inc. 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 MISSION \TIEJO FLORIST, INC, a CASE NO. SACV 16-01841-CJC 13 California Corporation, (KESx) Plaintiff, 14 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF 15 v. OPPOSITION TO DEFENDANT ORCHARD’S 16 MOTION FOR SUMMARY ORCHARD SUPPLY COMPANY LLC, JIJDGMENT PLAINTIFF’S 17 a North Carolina Limited Liability OPPOSITIOJT TO Company; DOES 1-10, illclusive, DEFENDANT ORCHARD’S 18 MOTION FOR SUMMARY JUDGMENT; MEMORANDUM 19 Defendants. OF POINTS AND ________________________ AUTHORITIES 20 DECLARATION OF JONI O’NEILL. 21 DATE: Auril 15, 2019 22 TIME: 1:30p.m. CRTROOM: 7C 23 24 TO THE COURT, THE PARTIES AND TO THEIR ATTORNEYS OF 25 RECORD: 26 27 28 1 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 1 of 29 Page ID #:5770 TABLE OF CONTENTS Memorandum of Points and Authorities Opposing Orchard’s Motion for Summary Judgment 5 1. liltrothiction - Statemeilt of Facts 5 2. Expert Testimony Is Not Required to Prove Mvf’s Damages aild Avoid Summary Judgment 8 3. Orchard Callilot Overcome the California State Presumption That a Breach of Coiitract Entitles the Plaintiff to a Award of Damages Even If the Plailltiff Cannot Prove Other Damages and Therefore, as a Matter of Law, the Court must Deny Orchards Motion 9 4. Longstanding U.S. Supreme Court Precedents Establish That Uncertainty of Damages Has Never Been Regarded as a Sufficient Reason for Denying Relief 12 5. State Court Law Recognizes “Loss of Expected Growth” as an Element of Damages That Orchard Did Not Address in its Motion 16 6. By Virtue of Orchard’s Interference with Mvf’s Lease, Mvf Has Incurred More than $500,000.00 in Attorneys Fees Defending the Successor Landlord’s Separate Suit Filed in Support of Orchard’s Selling of Flowering Plailts in Violation of Mvf’s Original Lease 17 Declaration of Joni O’Neill 20 Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 2 of 29 Page ID #:5771 TABLE OF AUTHORITIES U.S. SUPREME COURT Hetzel v. B. & 0. R.R. Co., 169 U.S. 26 .. 3, 12-13 Pierce v. Tenn. Coal, etc., R.R. Co., 173 U.s. 1 3, 12 FEDERAL DISTRICT COURT DSPT Intern., Inc. v. Nahum, 624 F3d. 1213 (9th Cir. 2010) 8, 9, 14-15 Stepovich vs. Kupoff, 261 F.2d 693 (9th Cir. 1958) 13-14 CALIFORNIA CASES Asahi Kasei Pharma Corporation. v. Actelion Ltd., (2013) 222 Cal. App. 4th 945 16-17 Elsbach v. Mulligall (1943) 58 Cal App 2d. 354 18 Flaggv. Andrew Williams Stores, Inc., (1954) 127 Cal.App.2d 165 . 2, 16 Foster v. Keatillg (1953) 120 Cal App 2d. 435 18 Hildebrand v Stonecrest (1959) 174 Cal App 2d 158 17 Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 3 of 29 Page ID #:5772 Sargon Enterprises, Tile. v. Ulliversity of Southeril Cal., (2012) 55 Cal. 4th 747 17 Sweet v. Johnson (1959) 169 Cal.App.2d 630 2, 10 STATUTES AND OTHER AUTHORITIES California Civil Code § 3360 2, 10 CACI 360 “Nominal Damages” 11 Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 4 of 29 Page ID #:5773 1 Plailltiff Mission Viejo Florist, Inc. (“MVF”) opposes Orchard’s motioll 2 for summary judgment because there is a genuine dispute between the 3 parties on a material issue of fact and law, that being whether Defeildailt 4 Orchard caused damages to Plaintiff MVF that are cognizable by the court or 5 jury without expert testimony. In Flagg v. Andrew Williams Stores, Inc., 6 (1954) 127 Cal.App.2d 165, the court held a tellant need not prove a decline 7 of sales from a landlord’s breach of contract because damages ca be 8 predicated on a loss of expected growth. Additiollally, California Civil 9 Code § 3360 provides: 10 11 “When a breach of duty has caused no appreciable detriment to 12 the party affected, he may yet recover ilornillal damages.” 13 14 California courts have interpreted this to hold that: 15 16 “[a] plailltiff is entitled to recover ilommal damages for the 17 breach of a contract, despite inability to show that actual damage 18 was inflicted upon him, since the defendailt’s failure to perform a 19 contractual duty is, in itself, a legal wrong that is fully distinct 20 from the actual damages. The maxim that the law will not be 21 concerned with trifles does not, ordinarily, apply to violation of a 22 contractual right. Accordingly, nomillal damages, which are 23 presumed as a matter of law to stem merely from the breach of a 24 contract may properly be awarded for the violation of such a 25 right. And, by statute, such is also the rule in California.” (Sweet 26 v. Johnson (1959) 169 Cal.App.2d 630, 632-633, internal citations 27 28 2 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 5 of 29 Page ID #:5774 1 omitted.) 2 3 When the Supreme Court heard claims similar to those Orchard is urging, it 4 sided with the claimant in the struggle to prove damages COiltrOlled by the 5 defendant, holding long ago that, 6 7 The proof may sometimes be rather difficult upon the questioll 8 whether the damage was the just or proximate result of the 9 breach of the covenant. In such case it does lot come with very 10 good grace from the defendant to insist upon. the most specific 11 and certain proof as to the cause aild the amount of the damage, 12 when he has himself been guilty of a most inexcusable violation of 13 the covenants which were inserted for the very purpose of 14 prevelltmg the result which has come about.” (Hetzel v. B. & 0. 15 R.R. Co., 169 U.S. 26, 38-39) 16 17 The Supreme Court followed that ruling with: 18 19 “There are many cases in which the damages are uncertaill and 20 difficult to ascertain, and in fact cannot be ascertained with 21 certainty, but this has never been regarded as a sufficient reason 22 for denying all relief.” [Pierce v. Tenn. Coal, etc., R.R. Co., 173 23 U.S. 1, 15j 24 25 26 Based thereon, Orchard is not able, as a matter of law to establish that 27 28 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUI)GMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 6 of 29 Page ID #:5775 3 9 it is elltitled to judgment against 1VWF because MVF ca establish damages due to Orchard’s conduct. MYF makes this oppositioi with this Notice of Opposition aild Oppositioll, the attached Memorandum of Points and Authorities, the dec1aratioi of Joni O’Neill, the pleadings and papers Oil file, any additional argument and evidence that the Court receives and considers before ruling Oil this Motion. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DATED: March 25, 2019 LAW OFFICES OF STEVEN R. YOUNG 28 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL 1 2 4 5 6 7 8 10 4 Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 7 of 29 Page ID #:5776 1 MEMORANDUM OF POINTS AND AUTHORITIES OPPOSING 2 ORCHARD’S MOTION FOR SUMMARY JUDGMENT 3 4 1. INTRODUCTION - STATEMENT OF FACTS. 5 6 The leasillg of space in a shoppillg center differs from the usual 7 treatment of commercial property in that a shopping center comprises a 8 unified complex of stores and the individual leases for spaces within the 9 shopping center must compliment one another ill order to foster the goal of 10 multipurpose or one-stop shoppillg. 11 12 Mission Viejo Florist (“MVF”) operated as a florist shop in the 13 Marguerite Shopping Center (“Center”) for more than twenty years. Jorn 14 O’Neill owns MVF. Its busilless illcludes the sale of both cut flowers and 15 flowerillg plants. MVF’s lease with the Landlord coitaiis the following two 16 provisions granting M\TF the exclusive right to sell flowers in the shopping 17 center: 18 19 6.1.1 [...] Landlord agrees no [sic] to lease to another florist or 20 allow any new tenant to engage in the sale of fresh aild artificial 21 flowers 22 23 6.1.3 As long as Tenant is occupying the premises for use as 24 permitted under section 6.1. 1 of the lease, and is not in default of 25 the lease, Landlord agrees not to lease space ill the portion of the 26 shopping center that landlord owns to another florist or allow 27 28 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 8 of 29 Page ID #:5777 1 any new tenant to engage in the sale of fresh and artificial 2 flowers as of the effective date of this lease. [...] 3 4 Orchard is a hardware aild garden store that operated approximately 5 100 stores nationwide before it closed all its stores in 2018. In November 6 2014, Orchard began negotiations with the Landlord to open a store in the 7 Center. In July 2015, Orchard and the Landlord entered a written lease. 8 Paragraph 1.16 of Orchard’s lease provides: 9 10 The Premises may be used by Tenant for the sale, servicing and 11 storing of merchandise, all other items or services normally sold 12 in Orchard Supply Hardware stores (includillg home 13 improvement, appliances, paint, garden, nursery, electrical, 14 plumbing, home decor and building materials, subject to change 15 from time to time), the operation of a gardell center, the servicing 16 of tools and garden equipment, the collectioll from customers of 17 batteries, paints, solvents and other items for off-site recyclillg, 18 and all other lawful uses as long as the use of the Premises is not 19 a “Prohibited Use” as defined in Exhibit G or in violatioll or 20 conflict with any Existing Exclusive as set forth in Exhibit G. 21 22 Exhibit G to the lease is a document entitled “Exclusive Use Rights Granted 23 to Other Tenants and Occupants in the Shopping Ceilter aild Project.” 24 Exhibit G lists the exclusive rights promised to other tenants in the shopping 25 center, including a hair salon, a pizza shop, and MW. Under the heading 26 “Florist,” is a reproduction of paragraph 6.1.1 of MYF’s lease, which states 27 28 6 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 9 of 29 Page ID #:5778 1 the Landlord promises not to “allow any new tenant to engage in the sale of 2 fresh and artificial flowers.” MVF is not a signatory to Orchard’s lease. 3 4 On September 8, 2015, O’Neill sent all email to the Landlord voicing 5 concerns about Orchard coming in as a new tenant. O’Neill stated that she 6 understands Orchard stores generally sell live plants, which would violate 7 the exclusive rights granted in Mission Viejo Florist’s lease. O’Neill sent 8 another email to the Lalldlord on September 13, 2015, voicing the same 9 concerns. In a response sent the same day, the Landlord stated: 10 11 “It is our intention to ensure that [Orchard] complies with all 12 restrictions the [sic] predate their opening for business in the 13 shopping center. You do indeed have an exclusive and [Orchard] 14 is aware of exactly what your lease says. [Orchard] does not 15 intend to operate at this location in a manner that violates your 16 exclusive.” 17 18 The following day, September 14, 2015, in response to another inquiry by 19 O’Neill, the Landlord assured: “Your lease is clear that you have an 20 exclusive. We have every interest in protecting you and your busilless.” The 21 Landlord also illdicated that Orchard’s store would not be opening for 22 another six to nine months. 23 24 In the following months, while the Orchard store was under 25 construction, O’Neill worked with the Landlord to set up a meeting with 26 Orchard to seek a resolution. The Landlord never set up the meeting, 27 28 PLAINTIFF MISSION \TIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 10 of 29 Page ID #:5779 1 however, and on June 29, 2016, a few months before Orchard opened for 2 business, MVF’ seilt a letter to the Laildiord. MYF reasserted its position that 3 Orchard should lot be permitted to sell any flowers, whether cut or as part of 4 a flowering plailt. On September 27, 2016, Orchard opened its store. It sold 5 flowering plants in the Center in violation of its lease and MVF”s exclusivity 6 provisions that protected Plaintiff Mission Viejo Florist’s exclusive right to 7 sell flowering plants. 8 9 Recently, the Court granted Orchard’s motion in liinine number 1 to 10 exclude MYF’s finailcial expert from expressing opinions of MVF’s future 11 damages due to Orchard’s breach of the exclusivity. Orchard has now filed a 12 motion for summary judgment claiming that without a financial expert, MYF 13 cannot prove damages. This positioll is contrary to California law and US 14 Supreme Court precedent. 15 16 2. EXPERT TESTIMONY IS NOT REQUIRED TO PROVE 17 MVF’S DAMAGES AND AVOID SUMMARY JUDGMENT. 18 19 In DSPT Intern., Inc. v. Nahum, 624 F3d. 1213 (9t1 Cir. 2010) The 20 district court barred the testimony of plaintiff’s expert witness (a ruling not 21 011 appeal). The defendant, a cybersquatter, argued there was no testimony 22 supporting a precise damage number of $152,000 that the jury awarded at 23 trial despite the absence of a expert witness. The Court held 24 25 “The law does not require expert testimony to establish 26 damages.” [DSPT Intern., Inc. v. Nahum, 624 F3d. 1213, 1223 27 28 8 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUT)GMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 11 of 29 Page ID #:5780 1 (9th Cir. 2010)] 2 3 In a footnote in the same case, the court observes, in rejecting the 4 defendant’s attack 011 the damage award, that: 5 6 “Many sources can provide the requisite information upon which 7 a reasonable jury may calculate damages. Cf. Louis Vuitton S.A. 8 v. Spencer Halldbags Corp., 765 F.2d 966, 973 (2d Cir. 1985) 9 (upholding calculation of damages based on statements made on 10 a videotape and noting that “[r]ecovery under section 1117 is not 11 limited to cases in which the quantum of actual damages is 12 demollstrated.”). [Ibid. at footnote 40] 13 14 Orchard is responsible not ollly for the damages, but for the 15 ullcertainty in this case. This is because the claim arises from Orchard’s 16 breach of contract and later closing of its store in the Center.1 17 18 3. ORCHARD CANNOT OVERCOME THE CALIFORNIA STATE 19 PRESUMPTION THAT A BREACH OF CONTRACT 20 ENTITLES THE PLAINTIFF TO AN AWARD OF DAMAGES 21 EVEN IF THE PLAINTIFF CANNOT PROVE OTHER 22 DAMAGES AND THEREFORE, AS A MATTER OF LAW, 23 THE COURT MUST DENY ORCHARD’S MOTION. 24 25 Orchard’s closure means Orchard is not longer selling flowering plants in the Center. This is what MVF sought in this action. From a practical standpoint, Orchard’s 26 closure means MVF prevailed on the injunction cause of action. 27 28 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JU])GMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 12 of 29 Page ID #:5781 1 California Civil Code § 3360 provides that when a breach of duty 2 occurs a plaintiff is entitled to an award of damages, even if the plaintiff 3 caniot prove damages with certainty: 4 5 “When a breach of duty has caused no appreciable detrimeilt to 6 the party affected, he may yet recover nominal damages.” [Civil 7 Code § 33601 8 9 The problem with the position Orchard has staked-out in its motion is 10 that it does not understaild that ullder California law, 11 12 “[a] plailltiff is elltitled to recover nominal damages for the 13 breach of a contract, despite inability to show that actual damage 14 was illflicted upon him, since the defendant’s failure to perform a 15 contractual duty is, ill itself, a legal wrong that is fully distinct 16 from the actual damages. The maxim that the law will not be 17 concerned with trifles does not, ordinarily, apply to violation of a 18 contractual right. Accordingly, nominal damages, which are 19 presumed as a matter of law to stem merely from the breach of a 20 contract may properly be awarded for the violation of such a 21 right. And, by statute, such is also the rule in California.” (Sweet 22 v. Johnson (1959) 169 Cal.App.2d 630, 632-633, internal citations 23 omitted.) 24 25 Both Orchard’s lease and MVF’s lease granted MYF the exclusive right to sell 26 flowering plants ill the Center. There is no dispute that Orchard sold 27 28 10 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 13 of 29 Page ID #:5782 1 flowering plaillts in the Ceilter violating the leases’ provisions. This is a 2 breach both of Orchard’s lease (giving right to a Third Party Belleficiary 3 claim by MVF under Orchard’s lease), and a violation of the exclusivity 4 provision of MVF’s lease. 5 6 The CACI jury instructions give guidance on this issile: 7 8 “360 Nominal Damages. If you decide that [name of defendant] 9 breached the contract but also that [name of plaintiff] was not 10 harmed by the breach, you may still award [him/her/it] ilominal 11 damages such as one dollar.” [CACI 360] 12 13 Based thereon, even if MVF is unable to demonstrate damages, MYF is still 14 entitled to an award of damages for the breach of lease, which award would 15 make MW the prevailing party. As a matter of law, Orchard callilot prevail 16 on the question of damages because even if MYF cailnot demollstrate 17 damages, it can recover nominal damages because Orchard’s selling of 18 flowering plants was a breach of the lease.2This prevents the entry of 19 summary judgment on the grounds Orchard urges because Orchard has not 20 demonstrated that the court or a jury would not award nominal damages for 21 the undisputed breach of coiltract. MYF requests that this Court so hold and 22 order. 23 24 25 2 Orchard has not asserted in its motion that MVF cannot demonstrate a breach 26 of the lease, and thus this is not a grounds for the motion nor disputed by Orchard. 27 28 11 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 14 of 29 Page ID #:5783 1 4. LONGSTANDING U.S. SUPREME COURT PRECEDENTS 2 ESTABLISH THAT UNCERTAINTY OF DAMAGES HAS 3 NEVER BEEN REGARDED AS A SUFFICIENT REASON 4 FOR DENYING RELIEF. 5 6 “There are many cases in which the damages are uncertain and 7 difficult to ascertain, and in fact cannot be ascertained with 8 certainty, but this has never been regarded as a sufficient reason 9 for denying all relief.” [Pierce v. Tenn. Coal, etc., R.R. Co., 173 10 U.s. 1, 15] 11 12 “In using the words ‘uncertain, speculative, and contingent,’ for 13 the purpose of excluding that kind of damage, it is not meant to 14 assert that the loss sustailled must be proved, with the certainty 15 of a mathematical demonstration, to have been the necessary 16 result of the breach of covenant by the defendant. The plaintiff is 17 not bound to show, to a certainty that excludes the possibility of a 18 doubt, that the loss to him resulted from the action of the 19 defendant ill violating his agreement. Ill many cases such proof 20 cannot be given, and yet there might be a reasonable certainty, 21 founded upon inferences legitimately and properly deducible 22 from the evidence, that the plaintiffs loss was not only ill fact 23 occasioned by the defendant’s violation of his covenant, but that 24 such loss was the natural and proximate result of such violation. 25 Certainty to reasonable intent is necessary, and the meaning of 26 that language is that the loss or damage must be so far removed 27 28 12 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 15 of 29 Page ID #:5784 1 from speculation or doubt as to create in the minds of intelligent 2 and reasonable men the belief that it was most likely to follow 3 from the breach of the contract, and was a probable aild direct 4 result thereof. Such a result would be regarded as having been 5 within the contemplation of the parties, and as being the natural 6 accompaniment and the proximate result of the violation of the 7 contract.. . . The proof may sometimes be rather difficult 8 upon the question whether the damage was the just or 9 proximate result of the breach of the covenant. in such case it 10 does ‘not come with very good grace from the defendant to 11 insist upon the most specific and certain proof as to the 12 cause and the amount of the damage, when he has himself 13 been guilty of a most inexcusable violation of the covenants 14 which were inserted for the very purpose ofpreventing the 15 result which has come about.” [Hetzel v. B. & 0. R.R. Co., 169 16 U.S. 26, 38-39 (Italics added.)] 17 18 The Ninth Circuit dealt with a similar situation in Stepovich vs. 19 Kupoff, 261 F.2d 693 (9th Cir. 1958) where a tenant sued for breach of implied 20 covenant of quiet enjoyment in a placer milling lease. The court rejected the 21 defendant’s arguments that the plaintiff failed to establish damages with 22 specificity: 23 24 “Appellant argues that the proof relative to damages is 25 insufficient to support the verdict of the jury. We thillk otherwise. 26 See Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 27 28 13 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 16 of 29 Page ID #:5785 1 359, 379, 47 S.Ct. 400, 405, 71 L.Ed. 684. The Court there observed 2 that: ‘ * * a defendant whose wrongful conduct has rendered 3 difficult the ascertainment of the precise damages suffered by the 4 plaintiff, is not entitled to complain that they cannot be measured 5 with the same exactness and precision as would otherwise be 6 possible,’ citing Hetzel v. Baltimore & Ohio R., 169 U.S. 26, 39, 18 7 S.Ct. 255, 42 L.Ecl. 648. That observation aptly fits this case.” 8 [Stepovich vs. Kupoff, 261 F.2d 693, 694 (9th Cir. 1958)] 9 10 In 2010, the Ninth Circuit considered a judgment entered in favor of a 11 men’s clothing designer and manufacturer who sued a former employee 12 alleging “cybersquatting” and trademark infringement in violation of 13 Lanharn Act. Judge Wright granted judgment for the manufacturer after a 14 jury verdict in its favor. The defendant appealed. In DPST Intern vs. 15 Nahum, 624 F3d 1213, 1223 (9th Cir, 2010), the Ninth Circuit ruled, that the 16 manufacturer could recover expense of recreating Internet website, and lost 17 profits from retailers’ inability to find website, as consequential damages 18 without expert testimony. 19 20 “The wronged party has the burden of proof as to damages, but 21 the nature of the proof required depends on the circumstances of 22 the case. The calculation is ‘subject to the principles of equity.’ 23 Because Nahum did not, so far as the record indicates, divert 24 trade from DSPT to himself or his new employer, ‘defendant’s 25 profits’ were not sought and are not at issue, only consequential 26 damages to DSPT. 27 28 14 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 17 of 29 Page ID #:5786 1 Nahum’s coilduct was not an unintentional infringemeilt where 2 the defendant failed to provide fillailcial information it should 3 have been able to provide, as in Lindy Pen Co., Inc. v. Bic Pen 4 Corp. It was a jiltentiollal infringement, so our language in liltel 5 Corporation v. Terabyte International, Inc. applies. In Intel, we 6 affirmed a ‘crude’ measure of damages that depeilded on an 7 infereilce that was ‘not inexorable, ileither [was] it failciful.’ 8 In the circumstances of this case, precision in the calculation of 9 damages is neither necessary br possible. Nahum’s wrong made 10 it impossible to know with any precision what DSPT’s sales would 11 have been had he not committed his wrong. Requiring more 12 precision than can be attained, especially where the impossibility 13 of more precise ascertainment was the fault of the wrongdoer, 14 would be inequitable and is not required. ‘[A] defendailt whose 15 wrongful conduct has rendered difficult the ascertainment of the 16 precise damages suffered by the plaintiff, is not entitled to 17 complain that they cannot be measured with the same exactness 18 and precision as would otherwise be possible.’ [fnt] Just as a 19 business could not know how many p/zone calls it did not get 20 because its p/lone number was wrong in the yellow pages, 21 DSPT could not know how many shirts it did not sell because 22 retailers could not find its website.” [DPST Intern vs. Nahum, 23 624 F3d 1213, 1223 (9th Cir, 2010) (Italics added.)] 24 25 Just as a business could not know how many phone calls it did not get 26 because its phone number was wrong in the yellow pages, DSPT could not 27 28 15 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 18 of 29 Page ID #:5787 1 know how many shirts it did not sell because retailers could not find its 2 website. MYF canilot say how many flowering plailts it did lot sell because of 3 Orchard’s selling lower priced plants in violation of its lease. 4 5 5. STATE COURT LAW RECOGNIZES “LOSS OF EXPECTED 6 GROWTH” AS AN ELEMENT OF DAMAGES THAT 7 ORCHARD DID NOT ADDRESS IN ITS MOTION. 8 9 In Flagg v. Andrew Williams Stores, Inc., (1954) 127 Cal.App.2d 165 10 the state court held that a decline of sales is not the only category of 11 damages one can recover for a breach of lease. The court held it is not 12 necessary to prove a declille of sales, since damages can be predicated on a 13 loss of expected growth. 14 15 “One whose wrongful coilduct has reildered difficult the 16 ascertainment of the damages cailnot escape liability because the 17 damages could not be measured with exactness’ (Flagg v. 18 Andrew Williams Stores, Inc., supra, 127 Cal.App.2d 165, 174, 273 19 P.2d 294, 299, quoting from Zinn v. Ex-Cell-O Corp., 24 Cal.2d 290, 20 297-298, 149 P.2d 177. In the instant case, the following seems 21 particularly apt: ‘There may be some element of uncertainty but 22 not such a degree of uncertainty as to render the testimony 23 speculative. There is no uncertainty as to the fact of damage, that 24 is, as to the ilature, existence or cause of the damage. The same 25 certainty as to the amount of the damage is not required.’ At 26 pages 173-174 of 127 Cal.App.2d, at page 299 of 273 P.2d. It 27 28 16 PLAINTIFF MISSION \TIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 19 of 29 Page ID #:5788 1 canilot be said, as a matter of law, that the findings as to 2 damages herein are not supported by substailtial evidence.” 3 [Hildebrand v Stonecrest (1959) 174 Cal App 2d 158, 167] 4 5 The declaratioll of Joni O’Neill, the owner of MVF establishes a basis for the 6 jury to determine that MVF has suffered damages and to select an 7 appropriate amoullt as an award of damages for breach of contract. 8 9 6. BY VIRTUE OF ORCHARD’S INTERFERENCE WITH MVF’S 10 LEASE, MVF HAS INCURRED MORE THAN $500,000.00 IN 11 ATTORNEYS FEES DEFENDING THE SUCCESSOR 12 LANDLORD’S SEPARATE SUIT FILED IN SUPPORT OF 13 ORCHARD’S SELLING OF FLOWERING PLANTS IN 14 VIOLATION OF MVF’S ORIGINAL LEASE. 15 16 While damages are a element of a cause of actioll for contractual 17 interference, once there is sufficient evidence of the fact of lost profit 18 damages, the trier of fact need not calculate the amount of damages with 19 absolute certainty. [Asahi Kasei Pharma Corporation v. Actelion Ltd., 222 20 Cal. App. 4th 945 (2013), as modified on denial of reh’g, (Jan. 16, 2014) and 21 review denied, (Mar. 12, 2014) quoting and distinguishillg Sargon 22 Enterprises, Inc. v. University of Southern Cal., 55 Cal. 4th 747 (2012).] 23 Evidence of MVF’s growth or lost profits from lost sales is not too 24 speculative. The court held substantial evidence supported the lost profits 25 award. [Ibid.] 26 27 28 17 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 20 of 29 Page ID #:5789 1 A business’ losses can be determined by capitalizing the past profits. 2 This is somethillg Joni O’Neill can do without regard to expert testimony. For 3 example, ill Elsbach v. Mulligan (1943) 58 Cal App 2d. 354, defendant, by 4 misrepresentations and threats, procured the cancellation of plailltiff’s sales 5 agencies and obtained them for himself. The court awarded damages 6 consisting of plaintiff’s average yearly profits ($6,000), capitalized on the 7 basis of a 5-year purchase, or a total of $30,000. [58 Cal App 2d. 365; Foster 8 v. Keating (1953) 120 Cal App 2d. 435, 453 (following Elsbach)] 9 10 Orchard’s motion does not dispute that Orchard’s selling of flowering 11 plants in the Center violated the exclusivity granted to MVF. MVF’s profits 12 declined when MVF’s successor landlord sued MVF to support Orchard’s 13 business of selling flowering plants in violation of MVF’s exclusivity 14 provision. MYF’s expenditures for hourly attorneys fees are either direct 15 damages, that Joni O’Neill can testify to, or they are deductions from the 16 business’ profits (business expense aild overhead) imposed on M\TF by 17 Orchard’s breach. Jolli O’Neill can testify to how much she expended to 18 defend the suit that the successor landlord filed against her and 1VIVF’ and 19 thus, the damage figures on the cause of action for intentional interference 20 with contract are cognizable and exist, thus denying Orchard the order 21 /1/ 22 /// 23 /1/ 24 25 26 27 28 18 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 21 of 29 Page ID #:5790 1 Orchard seeks by its motion. 2 3 DATED: March 25, 2019 LAW OFFICES OF STEVEN R. YOUNG 6 A ne for ion Viejo 7 , c, a liforilla Corporation 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 22 of 29 Page ID #:5791 1 DECLARATION OF JONI O’NEILL 2 3 I, Joni O’Neill, declare: 4 5 1. I am over the age of eighteen, and competent to testify the 6 matters herein declared. I know the matters herein declared on my personal 7 knowledge and will so testify under oath if required to do so. 8 9 2. I am, and for the last twenty-three years, have been the sole 10 owner of MVF. I operate MYF as a florist shop in the Marguerite Shopping 11 Center (“Center”). MVF”s business illcludes the sale of both cut flowers and 12 flowering plants. MVF’s lease with the Landlord contains the following two 13 provisions granting M\TF the exclusive right to sell flowers in the shopping 14 center: 15 16 6.1.1 [... j Landlord agrees no [sic] to lease to another florist or 17 allow any new tenant to engage in the sale of fresh and artificial 18 flowers 19 20 6.1.3 As long as Tenant is occupying the premises for use as 21 permitted under section 6.1. 1 of the lease, and is not in default of 22 the lease, Landlord agrees not to lease space in the portion of the 23 shopping center that landlord owns to another florist or allow 24 any new tenant to engage in the sale of fresh and artificial 25 flowers as of the effective date of this lease. [...] 26 27 28 20 PLAINTIFF MISSION \TIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY J[JDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 23 of 29 Page ID #:5792 1 2. In July 2015, Orchard and CP Marguarite, a successor to the 2 landlord from whom I leased the premises ill the Center, elltered a written 3 lease. I have seen that lease, including Paragraph 1.16 of Orchard’s lease 4 that provides: 5 6 The Premises may be used by Tenant for the sale, servicing and 7 storing of merchandise, all other items or services normally sold 8 in Orchard Supply Hardware stores (illcludillg home 9 improvemeilt, appliances, paint, garden, ilursery, electrical, 10 plumbing, home decor and building materials, subject to change 11 from time to time), the operatioll of a garden center, the servicing 12 of tools and garden equipment, the collectioll from customers of 13 batteries, paints, solvents and other items for off-site recycling, 14 and all other lawful uses as long as the use of the Premises is not 15 a “Prohibited Use” as defined in Exhibit G or in violation or 16 conflict with any Existing Exclusive as set forth in Exhibit G. 17 18 3. Exhibit 0 to the Orchard lease is a document entitled “Exclusive 19 Use Rights Granted to Other Tenants and Occupants in the Shopping Center 20 and Project.” I have seen Exhibit G to the Orchard lease and know of its 21 conteilts and that it is part of the Orchard lease. 22 23 4. Exhibit G lists the exclusive rights promised to various tenants in 24 the shopping center, including a hair salon, a pizza shop, and MW. Under 25 the heading “Florist,” is a reproduction of paragraph 6.1.1 of 1V[VF’s lease, 26 which states the Landlord promises not to “allow any new tenant to engage 27 28 21 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 24 of 29 Page ID #:5793 1 in the sale of fresh aild artificial flowers.” MYF is not a signatory to 2 Orchard’s lease. 3 4 5. Oi September 8, 2015, I seilt an email to the Landlord voicing 5 concerns about Orchard coming in as a new tenant. I said that Orchard 6 stores generally sell live plants, which would violate the exclusive rights 7 granted in M\TF’s lease. I sent another email to the Landlord on September 8 13, 2015, voicillg the same concerns. In a response sent the same day, the 9 Landlord stated: 10 11 “It is our intention to eflsure that [Orchard] complies with all 12 restrictions the [sic] predate their opemg for busilless ill the 13 shoppillg center. You do indeed have an exclusive and [Orchard] 14 is aware of exactly what your lease says. [Orchard] does lot 15 intend to operate at this location in a manner that violates your 16 exclusive.” 17 18 6. The following day, September 14, 2015, in response to another 19 inquiry by me, the Landlord assured: “Your lease is clear that you have an 20 exclusive. We have every interest ill protectillg you and your busilless.” The 21 Landlord also jildicated that Orchard’s store would lot be opening for 22 another six to nine months. 23 24 7. III the following months, while the Orchard store was under 25 construction, I worked with the Landlord to set up a meeting with Orchard to 26 seek a resolution. The Landlord never set up the meeting, however, and on 27 28 22 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 25 of 29 Page ID #:5794 1 Julle 29, 2016, a few mollths before Orchard opened for business, I, for MVF, 2 sent a letter to the Landlord. I reasserted MYF’s positioll that Orchard should 3 lot be permitted to sell any flowers, whether cut or as part of a flowering 4 plant. 011 September 27, 2016, Orchard opened its store. I have been in. the 5 Orchard store ill the Center. I persollally observed flowering plants on 6 display for sale in the Orchard ill the Center in violation of its lease and 7 M\TF’s exclusivity provisions that protected M\TF’s exclusive right to sell 8 flowering plants. 9 10 INJURY TO MVF’S BUSINESS FROM COMPETITION IN THE CENTER 11 12 8. MYF lost momentum ill the Center after Orchard opened there. 13 Customers told me that my pricing for flowering plants was more than 14 Orchard’s pricing. For example, I sell orchids for $75.00 that Orchard sold for 15 less than $30.00 for from the same sources. I know this from seeillg the 16 sourcing tags 011 orchids for sale ill Orchard and checking the price tag 011 17 Orchard’s orchids on display ill the Center. 18 19 9. Several of my customers came into MYF’ and asked about the 20 difference in price between Orchard’s flowering plants and the same 21 flowering plants Orchard was selling. 22 23 9. I know I lost sales of flowerillg plants to Orchard. I saw people, 24 illcluding my customers, walking out of Orchard with flowering plants. I 25 asked customers about their purchases. The customers told me that 26 Orchard’s prices were lower than mile so they were buyillg from Orchard. 27 28 23 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 26 of 29 Page ID #:5795 1 This included hydrangeas, orchids, azaleas, and bromeliads, as well as 2 seasonal plants. 3 4 10. If the sales of the flowering plants in the Center were not so 5 profitable to Orchard, they would not have fought so hard, both in this case, 6 aild through the Landlord’s declaratory relief action in state court to obtain 7 the right to sell flowerillg plants despite the restriction in Orchard’s lease 8 that was to have prevented them from competing with me. 9 10 DIMINISHED GROWTH 11 12 11. MVF has spent $750,000.00 in attorneys fees and costs Ill these 13 litigations. I owe another $1. million to my Mr. Stroffe’s firm for a total of 14 almost $2 million. These are direct, hard money damages to the business that 15 are directly attributable to Orchard’s breach of the exclusivity provision. 16 17 12. Had MYF’ had the working capital that it instead expended for 18 attorneys fees, MVF would have grown by my estimate approximately 10 to 19 15% per year. There are only two independent floral shops left in Mission 20 Viejo. was uniquely positioned to have benefitted from the shrinking 21 competition in the community and our unique positioning as the 22 /7/ 23 /// 24 /// 25 26 27 28 24 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY J[JDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONI O’NEILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 27 of 29 Page ID #:5796 MPR-25-2019 16:22 FRDM:MISSIDN t.JIEJD FLORIS 94938130564 TO:1i’145450355 P.l’i 1 only independent floral shop in Mission Viejo. 2 3 I declare under penalty o perjury that the foregoing is true and 4 correct. 5 6 Executed March 25, 2019, at Mission Viejo, California. 8 )N&a4 - PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOM OREILL Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 28 of 29 Page ID #:5797 PROOF OF SERVICE 2 TATE OF CALIFORNIA, COUNTY OF ORANGE 3 I, Teresa Schreiber, am employed in the aforesaid County; I am over the age of 18 years and ot a party to the above-entitled action; my business address is 600 Anton Blvd., Suite 650, Costa esa, CA 92626. On March 25, 2019, I personally served the foregoing document described as: 6 7 PLAINTIFF MISSION VIEJO FLORIST’S NOTICE OF OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUMMARY JUDGMENT; PLAIN- 8 TiFF’S OPPOSITION TO DEFENDANT ORCHARD’S MOTION FOR SUM1’IARY 9 JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARA 10 TION OF JOM O’NEIL n the persons below as follows: 12 x With the Clerk of the United States District Court of the Central District of California, using the CM/ECF System. The Court’s CM/ECF System will send an email notification 13 of the foregoing filing to the following parties and counsel of record who are registered 14 with the Court’s CM/ECF System. 15 hillip J. Eskenazi (State Bar No. 158976) 16 eskenazi@HuntonAK.com lexandrea H. Young (State Bar No. 233950) 17 youngHuntonAK.corn 18 UNTON ANDREWS KURTH LLP 50 South Hope Street, Suite 2000 19 os Angeles, California 9007 1-2627 elephone: (213) 532-2000 20 acsirnile: (213) 532-2020 21 x_ (Federal) I declare under penalty of perjury under the laws of the United States of America 22 that the foregoing is true and correct. 23 EXECUTED on March 25, 2019 at Costa Mesa, California. 24 25 /5/ •J 26 Teresa Schreiber, Declarant 27 28 Case 8:16-cv-01841-CJC-KES Document 151 Filed 03/25/19 Page 29 of 29 Page ID #:5798