United States District Court, N.D. California
ORDER ON SUMMARY JUDGMENT RE: DKT. NO. 100
ILLSTON United States District Judge
before the Court is a motion for partial summary judgment by
defendant FiberLight, LLC (FiberLight), seeking dismissal of
various causes of action advanced by plaintiff Telecom Asset
Management, LLC ("TAM"). Dkt. No. 100. The parties
appeared before the Court on June 24, 2016 on
FiberLight's motion. After careful consideration of
papers submitted, and for the reasons articulated in open
court, the Court rules as follows:
choice of law disputes on the remaining causes of action will
be resolved in favor of California law. Atl. Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Texas,
U.S., 134 S.Ct. 568, 582 (2013) (reasoning that a
"federal court sitting in diversity ordinarily must
follow the choice-of-law rules of the State in which it
sits" (citations omitted)); Washington Mut. Bank, FA
v. Superior Court, 24 Cal.4th 906, 914 (Cal. 2001)
("California has two different analyses for selecting
which law should be applied in an action."); Costco
Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F.Supp.2d
1183, 1198 (S.D. Cal. 2007) (reasoning that California's
common-law "governmental interest analysis" applies
in cases, as here, where there is no operative choice-of-law
clause). The Court has analyzed each cause of action for
purposes of choice of law, and the laws of California and
Texas are either not materially different, or FiberLight has
failed to show that the application of Texas law will further
an interest of Texas. Wash. Mut. Bank, FA, 24
Cal.4th at 919 (directing that the first step in the
governmental interest test is to "identify the
applicable rule of law in each potentially concerned state
and [ ] show it materially differs from the law of
California"); Frontier Oil Corp., 153
Cal.App.4th at 1465 (explaining that it is the party seeking
the application of foreign law that bears the burden of
demonstrating that it materially differs from California law
and showing that the foreign law furthers an interest of the
foreign state); Wash. Mut. Bank, FA, 24 Cal.4th at
920 (reasoning that if the laws are materially different, the
Court must "determine what interest, if any, each state
has in having its own law applied to the case"). The
record reflects that this services contract dispute exists
between citizens of California and Georgia, with TAM's
principal place of business in San Francisco, California.
See Dkt. No. 1, Compl. ¶¶ 1, 2, 5; Dkt.
No. 11-1, Coyne Decl. ¶ 3; Dkt. No. 23-1, Strong Decl.
¶¶ 1-2, 24.
the merits of the underlying dispute:
(1) FiberLight's motion for summary judgment seeking
dismissal of TAM's first cause of action for breach of
contract is hereby DENIED.
(2) FiberLight's motion for summary judgment seeking
dismissal of TAM's third cause of action for breach of
the covenant of good faith and fair dealing is hereby DENIED.
(3) FiberLight's motion for summary judgment seeking
dismissal of TAM's eighth cause of action for
restitution/unjust enrichment is hereby DENIED.
(4) FiberLight's motion for summary judgment seeking
dismissal of TAM's ninth cause of action for fraud -
false promise is hereby GRANTED.
(5) FiberLight's motion for summary judgment seeking
dismissal of TAM's tenth cause of action for fraud -
intentional misrepresentation is hereby GRANTED.
(6) FiberLight's motion for summary judgment seeking
dismissal of TAM's eleventh cause of action for negligent
misrepresentation is hereby GRANTED.
(7) FiberLight's motion for summary judgment seeking
dismissal of TAM's fourteenth cause of action pursuant to
the California Independent Wholesale Representatives
Contractual Relation Act is hereby DENIED.
the California Independent Wholesale Representatives
Contractual Relation Act, case law is sparse. California
Civil Code § 1738.10 provides:
The Legislature finds and declares that independent wholesale
sales representatives are a key ingredient to the California
economy. The Legislature further finds and declares the
wholesale sales representatives spend many hours developing
their territory in order to properly market their products,
and therefore should be provided unique protection from
unjust termination of the territorial market areas.
Therefore, it is the intent of the Legislature, in enacting
this act to provide security and clarify the contractual
relations between manufacturers and their nonemployee sales
to the California Jury Instructions - Civ. 11.48.5, a claim
under this statute requires proof, inter alia, that
defendant used the plaintiff's services to solicit
wholesale orders at least partially within California. While
it is undisputed that the four deals contemplated by the
parties here - Houston-Bryan, West Texas, Lubbock-Shertz, and
Central Texas - were in Texas, the agreement initially
discussed by the parties at the October 2011 meeting was
"a general sales agent agreement" that was not
limited to Texas opportunities. Dkt. No. 33 at 8 (order on
motion to dismiss); Dkt. No. 23-1, Strong Decl. ¶ 14
("[TAM] agreed to assist [FiberLight], and proceeded to
bring it opportunities with Carrier, including but not
limited to the opportunities in Texas."); ¶ 12
(indicating that prior to October 2011 TAM approached
FiberLight "for help sourcing bandwidth . . ...