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Starnet International Amc Inc., Dba All Cheer International Limited v. Mousa Kafash Dba Bapaz Garments

January 5, 2011

STARNET INTERNATIONAL AMC INC., DBA ALL CHEER INTERNATIONAL LIMITED AND KERRY INTERNATIONAL,
PLAINTIFF,
v.
MOUSA KAFASH DBA BAPAZ GARMENTS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

On November 29, 2010, Defendant Mousa Kafash moved for summary judgment on all of Plaintiff Starnet International AMC Inc.'s*fn1 claims in this matter. Dkt. No. 56 ("Mot."); see also Dkt. No. 62 ("Reply Br."). Starnet opposes the motion. Dkt. No. 57 ("Opp'n"). For the foregoing reasons, the Court GRANTS in part and DENIES in part Kafash's motion for summary judgment.

I. BACKGROUND

Starnet filed this collection action against Kafash on September 16, 2009. Dkt. No. 1 ("Compl."). Starnet claims that Kafash has failed to pay for $132,298.32 in goods that he ordered 25 and received from Starnet. See Compl. ¶¶ 5-10. In addition, Starnet alleges that based on Kafash's intentional misrepresentations to Starnet's employees, Starnet extended Kafash a line of credit. Id.

Plaintiff is identified as Starnet International AMC Inc. Starnet has failed to clarify this discrepancy. For purposes of this motion, the Court will refer to Plaintiff as Starnet.

¶ 19. According to Starnet, if its employees had known Kafash's representations were false, it 2 would not have manufactured, shipped, or sold goods to Kafash without first requiring advance 3 payment. Id. ¶ 25. 4

Based on these allegations, Starnet has brought five claims against Kafash: (1) open book account, (2) account stated, (3) reasonable value of goods sold and delivered, (4) intentional 6 misrepresentation, and (5) negligent misrepresentation. See id. ¶¶ 11-29. Starnet seeks (1) 7 payment in the sum of $132,298.32 plus ten percent per annum interest from December 31, 2008, 8 (2) costs for its suit, (3) attorneys' fees under California Civil Code § 1717.5, and (4) exemplary 9 damages. Id. at 6-7. 10

In his answer, Kafash denied all of Starnet's factual allegations. See Dkt. No. 5 ("Answer").

Kafash's position, as stated in his summary judgment motion, is that he has never done business with Starnet in his individual capacity. Mot. 1. According to Kafash, he has neither ordered nor 13 received any goods from Starnet, and he has never made any representations to Starnet. Id. Kafash 14 claims that Bapaz Garments Corporation, a New York corporation of which he is the owner and 15 CEO, has done business with Starnet in its corporate capacity and that Bapaz has paid for all goods 16 received from Starnet. Id. at 1-2. 17

II. LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine 19 dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The party seeking summary judgment bears the initial burden of showing an absence 21 of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 22 2548, 91 L. Ed. 2d 265 (1986)). "Once the moving party carries its initial burden, the adverse party 23

'may not rest upon the mere allegations or denials of the adverse party's pleading,' but must provide 24 affidavits or other sources of evidence that 'set forth specific facts showing that there is a genuine 25 issue for trial.'" Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc) (citations 26 omitted). "On an issue as to which the nonmoving party will have the burden of proof" at trial, 27 "the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) 2 (citation omitted). 3

"As to materiality, the substantive law will identify which facts are material. Only disputes 4 over facts that might affect the outcome of the suit under the governing law will properly preclude 5 the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 6 2505, 2510, 91 L. Ed. 2d 202 (1986). "A scintilla of evidence or evidence that is merely colorable 7 or not significantly probative does not present a genuine issue of material fact." Addisu v. Fred 8 Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (citing United Steelworkers of Am. v. Phelps 9 Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989)). 10

"The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, 477 U.S. at 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); see 13 also Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010) ("In deciding a motion for summary 14 judgment, the evidence is viewed in the light most favorable to the non-moving party, and all 15 justifiable inferences are to be drawn in its favor . . . .") (citation omitted). Nevertheless, in order 16 to survive summary judgment, "[t]he evidence must be enough for a 'reasonable trier of fact' to find 17 for the plaintiff." Schmidt v. Burlington N. and Santa Fe Ry. Co., 605 F.3d 686, 689 (9th Cir. 18 2010) (citation omitted). 19

III. ANALYSIS

consider whether each of Starnet's claims can survive in turn.*fn2

Kafash has moved for summary judgment on all of Starnet's claims. The Court will

A. Open Book Account

A book account, stated in somewhat simplified terms, is "a detailed statement of debit/credit transactions kept by a creditor in the regular course of business, and in a reasonably permanent 25 manner." Imperial Merch. Servs., Inc. v. Hunt, 47 Cal. 4th 381, 397, 97 Cal. Rptr. 3d 464, 476, 212 P.3d 736, 746 ...


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