(Super. Ct. No. 39-2008-00196045-CU-CL-STK)
The opinion of the court was delivered by: Butz , J.
La Minerva di Chiodini Mario v. Norcal
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Norcal Sales and Service, Inc. (Norcal) appeals from a judgment entered after the trial court granted the motion for summary judgment filed by plaintiff la Minerva di Chiodini Mario s.r.l. (La Minerva). Norcal claims the motion should have been denied due to the existence of triable issues of material fact, and that the trial court abused its discretion when it overruled Norcal's objection to evidence. Finding no merit in these claims, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
La Minerva, an Italian corporation, sold and delivered food processing and packaging equipment to Norcal in March 2007, for which Norcal was charged $20,650 euros (then equivalent to $26,560.60 U.S. dollars). When Norcal failed to pay for the equipment, La Minerva filed a complaint alleging open book account, account stated, and unjust enrichment, seeking payment of $26,560 plus interest.
Norcal's answer to La Minerva's complaint denied each cause of action and alleged 11 affirmative defenses. In particular, the fourth affirmative defense alleged that, assuming the existence of a contract as alleged in the complaint, Norcal's "duty to perform its obligations under said contract, if any, has been excused by Plaintiff's material breach of said contract and/or cancellation thereof and/or because there has been a failure of consideration in that Plaintiff has failed to perform as the contract requires Plaintiff to perform."
Thereafter, Norcal paid La Minerva $5,075.43, but refused to make any further payments, claiming La Minerva failed to (1) honor its agreement to make Norcal its exclusive United States distributor, (2) issue warranties on equipment already sold to Norcal, and (3) sell additional parts to Norcal to service that equipment.
La Minerva filed a motion for summary judgment supported by copies of relevant invoices, statements of account, and discovery responses propounded by Norcal, as well as several declarations and a separate statement of undisputed material facts (separate statement). The separate statement set forth seven undisputed material facts: (1) La Minerva sold and delivered equipment to Norcal; (2) Norcal failed to pay for that equipment; (3) Norcal informed La Minerva nonpayment was "due to cash flow problems as well as an internal embezzlement by a former employee" of Norcal; (4) La Minerva sent Norcal statements of account; (5) Norcal made partial payments of $5,075.43 to La Minerva, which amount was credited to Norcal's account; (6) there remained $21,485.17 due and owing on Norcal's account; and (7) interest was accruing on Norcal's account at the rate of $5.89 per day from and after June 9, 2007.
One of the declarations filed in support of La Minerva's motion was that of Elisabetta Salati Chiodini, La Minerva's export and administration manager, who attested to the fact that La Minerva sold equipment to Norcal on an open account basis, that Norcal paid only $5,075.43 of the $26,560.60 due on the account, and that "[Norcal] informed [La Minerva] reasons for non-payment were due to cash flow problems as well as an internal embezzlement by a former employee of [Norcal]."
Norcal's opposition to the summary judgment motion,*fn1 filed November 10, 2009, relied in large part on the declaration of Norcal's president, Greg Lambert, in which Lambert attested to discussions between himself and Alessandro Barrucco, a representative of La Minerva, regarding the issue of Norcal being an exclusive distributor for La Minerva products in the United States. In particular, Lambert stated that, "In one of the discussions I had with Alessandro Barrucco, it was agreed that [Norcal] would be the exclusive distributor for [La Minerva] products in the United States." Lambert also discussed visits by La Minerva representatives to the Norcal facilities in Tracy, California, during which the representatives "approved the facilities as being adequate for the purposes of being [La Minerva's] exclusive distributorship," as well as trade organization meetings Lambert attended in Palm Springs, California, during which "representatives of [La Minerva] introduced [him] to [trade organization] members . . . as [La Minerva's] exclusive United States distributor." Lambert declared that Norcal would not have ordered the equipment from La Minerva in the absence of an exclusive United States distributorship agreement.
Lambert's declaration also stated that Norcal ceased making payments to La Minerva because, after Norcal purchased "substantial amounts of equipment and spare parts" from La Minerva, La Minerva refused to issue written confirmation of the exclusive distributorship agreement and further refused to issue warranties for the equipment sold to Norcal or sell Norcal additional parts to service the equipment. Paragraph 11 of Lambert's declaration states: "[Norcal] would not have purchased the equipment and spare parts from [La Minerva] if [Norcal] had not been granted an exclusive U.S. distributorship. As a result of [La Minerva's] refusal to honor the agreement made with [Norcal], [Norcal] has in its possession, custody and control equipment and spare parts purchased from [La Minerva] ...