FBLED SU erior Court of aMo our?)! 0f Los Angelersma SEP 02 2015 Sherri R. Can utive Officer/Clerk By Deputy Neli M. nga SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GLEN LARSON PRODUCTIONS, INC., Case No.: BC465172 Plaintiff, vs. ATTACHMENT UNIVERSAL CITY STUDIOS PRODUCTIONS, Defendant. Defendant?s Motion for Summary Judgment or alternatively, for Summary Adjudication, is DENIED. Defendant?s Motion for Summary Adjudication as to the Eighth Cause of Action for Fraud and Ninth Cause of Action for Negligent Misrepresentation is DENIED. Defendants Requests for Judicial Notice are GRANTED (as to existence of documents and not their contents). The court?s rulings on the parties? Evidentiary Objections are attached hereto. INTRODUCTION Plaintiff Glen Larson Productions, lnc. filed a Second Amended Complaint against Defendant University City Studios Productions LLP alleging causes of action for: breach of written contract; (2) breach of implied covenant; (3) declaratory relief; (4) accounting; (5) restitution for unjust enrichment; (6) money due on an open book account; (7) conversion; (8) fraud; (9) negligent misrepresentation; and (10) unfair business practices. Plaintiff?s claims arise out of an agreement with Defendant in 1978 in which Glen Larson (?Larson?) through his production company, produced certain shows for Defendant. Under the Agreement, Defendant was to give Plaintiff net profits above a specified level to costs per a certain calculation, but that Defendant used accounting methods to suppress the net profits owed to Plaintiff. Defendant moves for Summary Judgment and/or Summary Adjudication on the grounds that: (1) the applicable statutes of limitation bar Plaintiff's claims and neither the discovery rule nor the equitable doctrines of tolling or estoppel apply to relieve Plaintiff of the time bars; and (2) the doctrine of laches bars Plaintiff?s claims for which it seeks equitable relief. Defendant also separately moves for Summary Adjudication as to Plaintiff?s Eighth Cause of Action for Fraud and Ninth Cause of Action for Negligent Misrepresentation on the grounds that: l) the claim of misrepresentation is based upon an inadmissible letter that Plaintiff could not have reasonably relied upon; and 2) Defendant expressly disclosed the information to Plaintiff. In opposition, Plaintiff argues that it did not and could not be expected to know that Defendant would use accounting practices that would deprive Plaintiff of its compensation under their Agreement. Therefore, the statutes of limitations did not begin to run until 2010, many years after the parties entered into the contract, when Plaintiff discovered the misrepresentations. Additionally, Plaintiff argues that it was reasonable to rely on Defendant?s misrepresentations and therefore there is a dispute to a material issue of fact. Plaintiff also opposes Summary Adjudication as to the Eighth and Ninth Causes of Action on the grounds that there are disputes as to what Defendant?s disclosures meant and whether Plaintiff?s reliance on the representations was reasonable. In reply, Defendant argues Plaintiff has shown no dispute of material fact and Defendant is entitled to summary judgment, or in the alternative summary adjudication. II. DISCUSSION A. Applicable Law The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.? Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts ?liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.? Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. A motion for summary judgment must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387). ?If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.? Cal Rules of Court, Rule 3.1350. A court cannot adjudicate any issue except those precisely stated in the notice. Gonzales v. Sup. Ct. (1987) 189 Cal.App.3d 1542, 1546; Homestead Savings v. Sup. Ct. (1986) 179 Cal.App.3d 494, 498; Maryland Casualty Co. v. Reeder (1990) 221 Ca1.App.3d 961, 974 n. 3; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 949 (?because Wilton did not move in the alternative for summary adjudication of specified issues, we will not address whether Wilton may have prevailed on some issues in this Sequoia Ins. Co. v. Sup. Ct. (1993) 13 Cal.App.4th 1472, 1478 (notice requesting summary adjudication as to listed causes of action is sufficient); CRC Rule 3.1350(b) (issues must be repeated verbatim in separate statement). Statutes of Limitations plaintiff must bring a claim within the limitations period after accrual of the cause of action.? Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806. As to the applicable statutory periods, Plaintiff's contract, accounting, and open book account claims have a four?year limitation (CCP ?337) and its claims for negligent misrepresentation and fraud have limitations of two and three years, respectively (CCP ?338(d); CCP 339). Accrual generally occurs upon the infliction of ?appreciable and actual harm? to a plaintiff. Davies v. Krasna (1975) 14 Cal.3d 502, 514. ?While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.? NBCUniversal Media, LLC v: Superior Court (2014) 225 Ca1.App.4th 1222, 1231. Plaintiff asserts that Defendant breached the Agreement ?[s]ince [its] execution? by failing to properly account to Plaintiff (UP 47), causing Plaintiff?s backend interest to be ?in a deficit position from the very beginning, which was the 19703. SAC 132. Thus, Defendant argues Plaintiff?s contract claims accrued far more than four years before the action as filed July 12, 2011. Davies 14 Ca1.3d at 514. And Defendant argues the fraud claims are presumed to have accrued at the same 17_?discovery despite reasonable diligence. 18 19 20 time of the alleged fraudulent acts upon execution of the Agreement in the 19703. UF 50?53; Samuels v. Mix (1999) Cal.4th 1, l4 (statute of limitations presumptively begins run upon commission of the fraud). 22 to The ?discovery rule? delays the running of the limitations period until a plaintiff ?suspects, or should suspect that has been wronged.? Jolly v. Eli Lilly Co. (1988) 1103, 1114. ?The burden of pleading and proving belated discovery of a cause of action falls on the plaintiff.? Investors Equity Life Holding Co. v. Schmidt (2011) 195I Cal.App.4th 1519, 1533. plaintiff need not be aware of specific ?facts? necessary to establish the claim; that is process contemplated by pretrial discovery.? Jolly 44 Cal 1111. A plaintiff must show (1) the time and manner of discovery; and (2) the inability to have made an earlier Fox 35 Cal.4th at 44 Cal. [it] 3d the .3d at 808. Plaintiff alleges it did not discover its claims until July 2010 when Larson learned from Defendant?s counsel that another participant, Jack Klugman, SAC 140; UF 37. 1. Defendant?s Accounting Statements to Plaintiff sued Defendant following an audit. Defendant argues that Plaintiff was first on notice of its claims between 1983 and 1994 when Defendant issued six Statements reporting that the Series were in deficits and that Defendant owed no backend monies to Plaintiff. UF 10?18. Defendant argues those statements disclosed to Plaintiff and/or its accountant and business manager several of the accounting practices Plaintiff now calls into question. UF 5, 19?21. For example, the Quincy 1993 and 1994 Statements disclosed that: (1) Defendant took a distribution fee; (2) Defendant deducted that fee as the first deduction from ?gross receipts?; (3) substantial interest had accrued for Quincy; and (4) Quincy was nearly $40 million in deficit and thus no contingent compensation owed. UF 15-16, 18-21; Exh. 75. Defendant either mailed the Statements to Plaintiff?s principal (Larson) or its agent (Greenbaum). UF 10?18. Defendant argues that ?notice? to these individuals was ?notice? to Plaintiff. Civ. Code ?2332. Neither the principal nor the agent denied receiving the Statements, but each cannot recall one way or another. Exh. 18 at 164:4-21, 173:5?17, 180:25- 183:2; Exh. 22 at 111:2?4, 118:18?119:21. Defendant argues that faded memories are not enough to create a dispute of material fact and that the law presumes that Plaintiff received the UF 10?18; Statements in the mail. Evid. Code ?64l. Additionally, Defendant argues that Plaintiff is charged with the information that could have been revealed through a ?reasonable investigation? and ?sources open to [its] investigation had Plaintiff made reasonable inquiries upon Cal.4th at 808; Gutierrez v. receipt of the Statements. Mofid (1985) 39 Cal.3d 892, 898 (?means of knowledge are the equivalent of knowledge?). Plaintiff admitted that investigation would have uncovered the accounting practices it now challenges. UF 28; Exh. 28 at 16. And as the same accounting was used for each Series (UF 9), an investigation into any one Series would have revealed Defendant?s accounting for all Series under the Agreement. Plaintiff would have been able to assess whether contingent compensation was due for the claims. UF 47?54; Sun Sand, Inc. v. United Cal. Bank (1978) 21 Cal.3d 671, 702 (?If it had examined its bank statements with reasonable care, [plaintiff] would have discovered the [challenged conduct]; reasonable inquiries following such discovery would have revealed the fraud However, the court finds that Plaintiff had no duty to ?verify? the representations of the Statements issued for the Series. A defendant cannot expect relief from its own alleged deceit and punish the plaintiff for not discovering the lie earlier. Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1529. A failure to discovery falsity is excusable as reasonable when the falsity is not clear on the face of the representations made to the plaintiff. See id.; Watts v. Crocker?Citizens National Bank (1982) 132 Cal.App.3d 516, 523 (?Where no duty is imposed and where under the by law upon a person to make inquiry, circumstances ?a prudent man' would not be put upon inquiry, the mere fact that means of knowledge are open to a plaintiff, and he has not availed himself of them, does not debar him from relief when thereafter he shall make actual discovery.?) Plaintiff was under no duty to inquire unless the Statements put a reasonably prudent person on notice that something was amiss. Here, it is a triable issue as to whether the Statements would have alerted a reasonable person in Plaintiff?s circumstances. Therefore, Plaintiff is not barred just because the fraud would have been discovered if Plaintiff had investigated and audited the Statements. (Plaintiff?s Response to UF 19?21). Further, Plaintiff disputed receipt of the Statements, as it does not recall receipt. (lg. 10?18). The rebuttable presumption of receipt under Evidence Code section 641 is not the same as an indisputable fact of receipt. 2. Plaintiff?s Divorce Proceedings Defendant argues that Larson, who until his death in November 2014, was Plaintiff?s sole shareholder (UF 2), ?openly acknowledged? the claims on October 7, 1991 when he signed a joint stipulation in divorce proceedings in which he agreed to divide any damages from ?accounting for profits? claims against Defendant for Battlestar and Quincy. UF 22-23. And another divorce filing in 2006 referred back to the 1991 stipulation?s methodology for dividing damages from potential ?accounting for -10? profits? claims for Battlestar and Quincy and agreed to apply that methodology for any damages recovered from litigation or audit against Defendant for an additional eight Series. UF 24. Plaintiff asserts that Larson?s wife?s attorneys prepared the language in the stipulations and the judgment merely set forth what percentage the wife would receive, if any, should a claim arise at any time in the future. (Plaintiff?s Response to UF 22?24). Therefore, triable issues of fact exists as to: 1) whether Plaintiff acknowledged he had a claim against Defendant in the divorce proceedings; or 2) whether Plaintiff was only acknowledging that should he later find he has a claim, the proceeds of such claim would be divided according to the stipulation. The court cannot draw an inference from what was meant in the divorce proceedings at the summary judgment stage; that is a jury's province. 3. Advice Regarding Need for an Audit Defendant argues Plaintiff suspected that Defendant owed it compensation and discussed auditing Defendant no later than April 12, 2007. UF 25?27, 46. Shortly after Denny Bond began working for Plaintiff, Bond expressed ?surprise? that Defendant had not paid Plaintiff profits and advised Plaintiff to do an audit. UF 26. Larson ?agreed they should find out what was going on? and questioned how the costs of the shows could continue to rise and how these successful shows could never be -11? Bond called an auditor, paid off. UP 27. Tim Campbell, on April 12, 2007. (UF 25-29). Thus, Defendant argues that Plaintiff suspected that Defendant was withholding profits no later than April 12, 2007. Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1298 n.5 (?the limitations period is not triggered when a plaintiff forms an opinion that wrongdoing has occurred? and plaintiff?s admissions he had suspicions based on discussions triggered the limitations period); NBCUniversal 225 Cal.App.4th at 1236?38 (plaintiffs on inquiry notice of misappropriation claims as statute of limitations began to run when plaintiffs discussed whether ?it seemed possible? that their TV show idea had been stolen, and even before they saw the Show on TV). Plaintiff disputes that he suspected wrongdoing in 2007 and Bond does not recall that he advised Plaintiff to do an audit. In fact, Bond claims that he would not have made a statement advising Larson about a claim for television rights because Bond worked with Larson on Larson?s motion picture rights not his television rights. Plaintiff?s Response to UF 25?27. As such, triable issues exist as to whether Bond warned/advised Plaintiff to investigate Defendant?s profit calculations and as to whether Plaintiff expressed a desire to investigate because he suspected Defendant of wrongdoing. The matter is not appropriate for summary judgment on these grounds. -12- ?Open Book Account Claim? CCP ?337 provides for a four?year limitations period for open book account claims. Defendant argues that the claim for money due on an ?open book account" requires Plaintiff to show an entry on such account on or after July 12, 2007 showing that Plaintiff is owed money. Burchell v. Rohnert (1955) 133 Cal.App.2d 82, 86-87 (limitations period begins to run from last entry showing money owed). Plaintiff has not shown such an entry. Indeed, Plaintiff acknowledges that Defendant does not have, and never has had, an ?open book account" showing unpaid net profits to Plaintiff. UF 59; SAC 105 (alleging Defendant ?constructed? and ?designed? its accounting in such a manner that accounts would never show net profits owed to Plaintiff). Therefore, Defendant argues that the accounting claim is governed by the statute of limitations for the underlying breach of contract and fraud. Burchell 133 Cal.App.2d at 86 (contract limitations period governed jplaintiff?s open book account claim where plaintiff did not rely upon, and instead contested, the accounting because plaintiff] cannot rely upon the account and at the same time disavow As a result, Plaintiff's claim is barred by the statute of limitations. Plaintiff argues that the claims for accounting have not accrued because Defendant never prepared a complete accounting. -13.. Plaintiff?s Response to UF 59. Rather, Plaintiff argues that i Defendant provided him with Statements containing calculations that could not be corroborated. 1d. As such, a dispute of material fact exists as to whether 6 A dispute of material fact further exists as to the duty of the 7 Defendant to provide accounting statements to Plaintiff pursuant 8 9 to the Agreement. 10 5. Equitable Defenses to Statute of Limitations 11 a. Equitable Tolling 12 Equitable tolling is a judicially created doctrine that 13 stops a limitations period from running ?during tolling 14 event.? Cal. Rest. Mgmt. Sys. v. City of San Diego (2011) 195 5 Plaintiff was ever provided a complete and accurate accounting. 1 1 1 1 15 Cal.App.4th 1581, 1593. The doctrine applies when a plaintiff 16 ?has several legal remedies and, reasonably in good faith purses 17 one? before seeking to pursue another. 1d. For example, ?when 18 administrative remedies must be exhausted before suit may be 19 ifiled? or ?where a plaintiff has in good faith filed an initial i 20 action that is later found to be defective" then the courts will I toll the limitations period from running. 1g. Glue-Ford, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1029 n. 8 i 23 (similarities between discovery rule and fraudulent concealment u} makes it ?reasonable to deem them equivalent?). -14- Fraudulent concealment ?tolls the applicable statute of limitations only for that period during which the claim is undiscovered by the plaintiff or until such time as plaintiff, by exercise of reasonable diligence, should have discovered it.? Sanchez v. 8. Hoover Hosp. (1976) 18 Cal.3d 93, 99. As discussed above, there is a dispute of material fact as to when each claim, by the exercise of reasonable diligence, should have been discovered. b. Equitable Estoppel A defendant may be equitably estopped from asserting a limitations defense when its conduct induces the plaintiff to forbear bringing a timely suit, and the plaintiff ?reasonably relies on this [conduct].? Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384. The misrepresentation must bear ?on the necessity of bringing a timely suit.? 3g. at 384 n. 18. Equitable estoppel applies only when the plaintiff is already aware of the claims, intends to bring a lawsuit, but the defendant induces the plaintiff not to do so. Ed. at 384 (equitable estoppel viable when construction company induced homeowners who reasonably relied on false promises to repair identified defects); Carruth v. Fritch (1950) 36 Cal.2d 426, 434 (applying equitable estoppel when plaintiff was induced to believe she would be fully compensated for medical expenses and lost salary without litigation, but these promises were made -15? with no intention of performance); Union Oil Co. of Cal. v. Greka Energy Corp. (2008) 165 Cal.App.4th 129, 138 (apply equitable estoppel when defendant persuaded plaintiff to suspend legal claims with a promise to amend the contracts at issue). Defendant argues that Plaintiff has not alleged or shown that Defendant caused Plaintiff to delay filing suit after Plaintiff became aware of its claims. Plaintiff did not confront Defendant with its claims and thus Defendant could not make promises or assurances to delay Plaintiff?s claims. UP 57. Defendant is correct that Plaintiff does not appear to claim that Defendant did anything to induce Plaintiff to delay filing suit after Plaintiff became aware of its claims. Therefore, the court will hear argument on this issue and take it under submission. C. Laches Defendant further argues Plaintiff?s claim is barred by the affirmative defense of laches. Summary judgment is proper on the affirmative defense of laches when it is undisputed a plaintiff unreasonably delayed bringing the suit and the delay has prejudiced the defendant; or (2) the plaintiff has acquiesced in the act of which it complains. Drake v. Pinkham (2013) 217 Cal.App.4th 400, 406. Unreasonable delay is ?measured from the time the plaintiff knew (or should have known) about the alleged claim.? 1d. Defendant argues -16- irequire a showing the plaintiff reasonably relied on the 18 19 Plaintiff unreasonably delayed filing this action. UF 8?14. As discussed above, there is a dispute of material fact as to when each claim, by the exercise of reasonable diligence, should have been discovered. D. Eighth and Ninth Causes of Action Fraudulent inducement or negligent misrepresentation requires a showing that a representation was made. Civ. Code ??1572, 1709, 1710; Service by Medallion, Inc. v. Clorox Co. (1996) 44 Ca1.App.4th 1807, 186 (for fraudulent misrepresentation a plaintiff must prove the existence of ?a Pollack knowingly false representation by the defendant?; Fox v. (1986) 181 Ca1.App.3d 954, 962 (?Negligent misrepresentation is a form of deceit, the elements of which consist ofma misrepresentation of past or existing material fact.?) Fraudulent inducement and negligent misrepresentation claims misrepresentation. Service by Medallion 44 Cal.App.4th at 1816 (fraudulent inducement); Fox 181 Cal.App.3d at 962 (negligent misrepresentation). Reasonable reliance can be decided as a matter of law in appropriate circumstances. Hoffman v. 162 N. Wolfe LLC (2014) 228 Cal.App.4th 1178, 1194; See also Blankenheim v. E.F. Hutton Co., Inc. (1990) 217 Ca1.App.3d 1463, 1475 (?Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the -17? question of whether a plaintiff?s reliance is reasonable is a question of fact.?) Defendant argues Plaintiff?s sole (and inadmissible) evidence (UF 7, 8) of an alleged misrepresentation is memorialized in a May 3, 1978 letter from Mark Goldman (son of Plaintiff?s attorney Lou Goldman (UF 14)) to Defendant?s executive, Jamie Schloss. Goldman?s letter stated: My father asked me to confirm with you the representations made by you that the definition of net profits is attached to the contract as an exhibit represents the most favorable definition of net profits given to a producer at Universal except for changes that do not go to the substance of the definition. Exhibit 4.1 Defendant argues that Plaintiff could not have reasonably relied on the ?representations made by [Schloss]" about net profits because Defendant?s employee, Paul Miller, later ?clarified? the definition of net profits. Miller?s letter stated: To the best of my knowledge the form sent to you is the standard form we are currently attaching to contracts of other TV term producers entitled to net profit participations in television series. We agree that although the form is being sent to you without changes, that at your request we will negotiate in good faith with respect to changes in the form but in so negotiating we will not be required to grant more than the normal changes (and we will grant such normal changes) granted in term agreements with other 1 Plaintiff disputes that the letter is the sole evidence of its claim. Plaintiff?s Response to UP 7?8. Plaintiff further argues the letters are admissible under several exceptions to the hearsay rule, and is nonhearsay as a statement by Defendant. -18? television producers of comparable stature to Mr. Larson, who we, of course, acknowledge is a top level television producer. UF 19-20. Defendant argues that when Plaintiff?s attorneys reCeived the Miller letter (UP 21) which explicitly disclosed that the standard form did not include the changes normally granted to other top level producers, Plaintiff was no longer justified in relying upon any purported representation that the definition of net profits was the ?most favorable.? Hadland v. NN Investors Life Ins. Co. (1994) 24 Ca1.App.4th 1578, 1589 (holding plaintiffs? reliance on representations about what they were getting for their money was unjustified as a matter of law" because of the written policy they received); Hackethal v. Nat. Cas. Co. (1987) 189 Cal.App.3d 1102, 1111 (reliance is ?unjustifiable as a matter of law? when a separate ?printed material contradicted" the representation). Plaintiff counters that the Miller Letter indicates that Defendant would ?make changes? to reflect terms that were given to other top level producers. Plaintiff argues it is a question of fact as to whether Plaintiff was justified in relying on Defendant?s statements during the negotiations and the impact and meaning of the subsequent Miller Letter. Questions of fact exist as to whether Defendant fulfilled its alleged promise to continue negotiations and modifications to the Agreement. And -19_ Plaintiff correctly notes that nothing in the letters stated that Plaintiff was not receiving the most favorable definition of net profits. Defendant objects to the Goldman Letter as hearsay. Plaintiff argues the Goldman Letter is being offered for non- hearsay purposes. Plaintiff argues it is (1) Plaintiff?s reason for signing the contract, (2) Plaintiff?s understanding at the time he signed the contract, (3) Defendant?s knowledge of Plaintiff?s understanding when Plaintiff signed the contract, and (4) Defendant?s understanding at the time it received Plaintiff?s conditional acceptance. Plaintiff argues it only seeks to establish that the statements were made, which is not hearsay. City of Santa Maria v. Adam (2012) 211 Ca1.App.4th 266, 294. Plaintiff argues that the words show the basis of the Agreement, they are operative facts and non-hearsay. Alternatively, Plaintiff argues that the Goldman Letter is a business record containing statements that are subject to multiple hearsay exceptions. Plaintiff also argues that the ?most favorable? representation is a party admission or prior inconsistent statement when compared to the Miller Letter. Plaintiff states that the Miller Letter does not deny the representation but offered to negotiate further the definition of net profits. Plaintiff asserts that the lack of denial is an adoptive admission. Plaintiff argues that because the ?most favorable" representation is the only relevant statement and whether a conversation occurred is immaterial as the representation is what caused Plaintiff to execute the contract. And Plaintiff argues that any conversation of what Lou Goldman told Mark Goldman is not hearsay as the Goldmans were agents of the Plaintiff as Plaintiff?s attorneys. Plaintiff further argues the Goldman Letter itself is a business record as it was prepared in the ordinary course of business, and Mark Goldman has and can testify to such effect. Defendant argues even if admi:ted for non?hearsay purposes, the Goldman Letter is not admissible to show that Jamie Schloss actually told Lou Goldman that the net profits definition was the ?most favorable.? Defendant argues that to admit the letter as such would require a hearsay exception for each out?of?court statement therein. And Defendant argues that if the Goldman Letter is admitted as non-hearsay, it cannot be used to prove any alleged misrepresentation and Plaintiff still has no evidence of the alleged fraudulent statement. Defendant states that even if the Goldman Letter is admitted to show Plaintiff?s state of mind and understanding, it still cannot be used to show any representation was made. Defendant argues that the Goldman Letter is nothing more than direct evidence of Mark Goldman?s words, not any alleged misrepresentation by Defendant. Defendant argues the Goldman Letter is inadmissible hearsay not subject to any exceptions as well. Defendant argues that while ?state of mind? could be used to show Mark Goldman believed the alleged misrepresentation had been made, it cannot be used to show the misrepresentation was actually uttered. Defendant argues that to find that the conversation between the Goldmans is not subject to hearsay because they were agents of the Plaintiff threatens to swallow the rule, particularly in light of large corporations and organizations. Defendant argues that the Goldman Letter is not a business record as Plaintiff offers no more than mere conclusion that the Goldman Letter was prepared in the ordinary course of business. And Defendant argues nothing can be recalled about the conversation between Lou and Mark Goldman by Mark Goldman, let alone when it occurred in relation to the drafting of the letter. Hence, it is unreliable. Defendant argues that Plaintiff presents no evidence regarding the preparation of the Goldman Letter to qualify it for the business records exception. Here, the Court finds the Goldman Letter is admissible because it is not hearsay. Not all statements are assertive; only declarative sentences fall within the definition of hearsay. Imperative, exclamatory and interrogatory statements are not assertive. The Goldman Letter is not making any assertion (that Mr. Schloss made a statement), but is inquiring -22- whether a conversation took place between Mr. Schloss and Mr. Goldman in which Schloss made certain statements. (?My father asked me to confirm that Schloss and he had a conversation wherein Schloss told my father that he was receiving most favorable terms.?) Similar to when two parties speak on the phone and one party summarizes the conversation in an email asking for confirmation that the conversation took place as summarized, here the Goldman Letter in essence asks for Defendant to confirm that a representation was made and that it is an accurate understanding of a conversation. See People v. Jurado (2006) 38 Cal.4th 72, 84 (a request, by itself, is not hearsay because a request does not assert the truth of any fact and this cannot be offered to prove the truth of the matter stated). Here, the Goldman Letter requests Defendant to confirm a representation allegedly made by one of Defendant?s representatives. It is an interrogatory, not a statement. Accordingly, the Goldman Letter is not hearsay because it is a request and does not assert the truth of any fact. Plaintiff is cautioned that it must be clear as to how it argues the Goldman Letter to the jury. Plaintiff cannot argue that the text of letter alone proves that Schloss previously told Goldman that he was receiving most favorable terms. However, Plaintiff can argue that Defendant?s failure to deny that Schloss told Goldman that he was receiving most favorable -23- 1 terms in its response letter, (the Miller Letter), was an 2 admission by silence that Schloss, in fact, had earlier told 3 Goldman that Goldman was receiving most favorable terms. 4 It is the court?s understanding that both parties seek 5 admission of Defendant?s response to Goldman?s letter 6 the Miller Letter. Plaintiff offers the Miller Letter for the 7 non?hearsay purposes of (1) Defendant did not tell Plaintiff it 8 9 was not receiving the most favorable definition, (2) Defendant?s 10 understanding when it affirmed Plaintiff?s conditional . ll acceptance, and (3) whether Plaintiff could have maintained its 12 understanding of what it was signing. Plaintiff argues that it 13 seeks to establish that certain words were spoken, without 14 reference to the truth or falsity of those words. See Smith v. 15 Whittier (1892) 95 Cal. 279, 293. Plaintiff argues that the 15 words and Miller Letter shows the basis of the Agreement, they 17 are operative facts and non~hearsay. Alternatively, Plaintiff 18 argues the Miller Letter is a business record containing 19 . . . operative facts or a party admiSSicn. 20 Defendant offers the Miller Letter to show the information 21 was imparted to Plaintiff?s lawyers and that Plaintiff was unjustified in relying on any alleged misrepresentation that *4 Plaintiff was receiving the ?most favorable? definition. Defendant may also use the Miller Letter to rebut Plaintiff?s claim that Schloss told Goldman that Goldman was receiving most favorable terms. Defendant may argue to the jury that because the Miller Letter did not directly answer Plaintiff?s question, Defendant did not admit (?confirm?) that Schloss and Goldman had a conversation in which Schloss told Goldman that he would receive the most favorable terms.2 Reading the Miller Letter in context with the Goldman Letter, there is a dispute of material fact as to whether: 1) Schloss ever had a conversation with Goldman wherein he stated that Goldman was receiving most favorable terms; and 2) Plaintiff was justified in relying upon the Miller Letter for Plaintiff?s understanding that Plaintiff was receiving the ?most favorable" definition. As discussed below, Defendant's response was not definitive as to what Plaintiff would receive under the agreement and accordingly there is a dispute of material fact as to Plaintiff?s reliance on the ?most favorable" representation. The court finds that it is a question of fact whether the changes to be made in accordance with Larson?s standing as a ?top level" producer would include giving him the most favorable definition of net profits. Accordingly, summary adjudication will not be granted on these grounds. 2 To the extent that the court's tentative evidentiary rulings on the Goldman and Miller letters conflict with its rulings on the Goldman and Miller letters discussed herein, the court?s rulings in the discussion herein control. The result is the same with respect to Plaintiff?s fraudulent concealment claim. A claim for concealment requires that Plaintiff prove that: defendant concealed material fact; (2) defendant had duty to disclose such fact; (3) defendant intentionally concealed the fact with intent to defraud plaintiff; (4) plaintiff was unaware of the fact and would have acted differently had it been disclosed; and (5) plaintiff sustained damage as a result). Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 131. Defendant argues that it had no duty to tell Plaintiff that it was not receiving the most favorable definition of net profits. The court is unaware of any authority that holds that a party to a contract negotiation has a duty to disclose to the counterparty whether the counterparty is getting a better or worse deal than others. As Defendant points out, the imposition of such a duty would destroy the negotiation process. However, Plaintiff argues questions of fact exist as to whether Defendant intentionally concealed information about its ?standard forms? by representing to Plaintiff that it was- the most favorable definition of net getting (or would get) profits in the Agreement. The court finds that while there is no duty to disclose the quality of an agreement to a counterparty, there is a dispute of material fact as to whether Defendant affirmatively made such representation to Plaintiff -26- which case Defendant would have a duty to disclose truthfully. Lastly, Defendant argues that after it received the Goldman letter asking it to confirm the ?most favorable definition? representation, Miller responded that the definition was Defendant?s ?standard form" and presented it ?without changes.? UF 19?21. Defendant argues that it explicitly disclosed (not concealed) that Plaintiff was receiving the ?standard form? and not the ?most favorable? definition. UP 20. However, the court finds that there are triable issues of fact as to whether Defendant intended to modify the ?standard form? definition of 'net profit to make it the most favorable definition that Defendant offered its top level producers. CONCLUSION Based upon the foregoing, the court orders that: 1) Defendant?s Motion for Summary Judgment or alternatively, is DENIED. for Summary Adjudication, 2) Defendant?s Motion for Summary Adjudication as to the Eighth Cause of Action for Fraud and Ninth Cause of Action for Negligent Misrepresentation is DENIED. (as 3) Defendants Requests for Judicial Notice are GRANTED to existence of documents and not their contents). -27_ 1 4) The court?s rulings on the parties' Evidentiary CLERK TO GIVE NOTICE TO ALL PARTIES. 2 Objections are attached hereto. IT IS so ORDERED. DATED: September 1, 2015 Mia/74? ETTE M. PALAZUE DGE OF THE OR COURT 1 ATTACHMENT Summary Judgment, or in the alternative, for Summary Adjudication Plaintiff objects to the following Defendant's evidence: 5 (1) Dinfolo Decl. 7, 2:24?3:2 on the grounds it lacks foundation, is an improper conclusion, and is improper opinion 6 testimony?OVERRULED (2) Bradley Decl. 7, 2:27?3:6 on the grounds it lacks 7 foundation, is an improper conclusion, and is improper opinion testimony?OVERRULED 8 (3) Bradley Decl. 8, 3:7-12 on the grounds it lacks foundation, is an improper conclusion, and is improper opinion i 9 testimony~OVERRULED i (4) Bradley Decl. 9, 3:13?15 on the grounds it lacks foundation, is an improper conclusion, is improper opinion testimony, and the best evidence (5) Thompson Decl. 6, 2:18-21 on the grounds it lacks 12 foundation, is an improper conclusion, and is improper opinion testimony?OVERRULED 13 Thompson Decl. 7, 2:22-28 on the grounds it lacks foundation, is an improper conclusion, is improper opinion 14 testimony, and assumes facts not in (7) Thompson Decl. 8, 3:1?5 on the grounds it lacks i 15 foundation, is an improper conclusion, and is improper opinion testimony?OVERRULED 16 (8) Smith Decl. 6, 2:26?28 on the grounds it lacks foundation and relevance. 17 (9) Smith Decl. 7, 2:1~3 on the grounds it lacks foundation and relevance?OVERRULED (10) Smith Decl. 37, 4:22?24 on the grounds it lacks foundation, relevance, hearsay, and lack of authentication? OVERRULED 20 (11) Smith Decl. 39, 4:28?5z2 on the grounds it lacks foundation, relevance, hearsay, and lack of authentication? 21 OVERRULED (12) Smith Decl. 41, 5:6?8 on the grounds it lacks foundation, 22f relevance, hearsay, and lack of authentication?OVERRULED HF (13) Smith Decl. 43, 5 11?13 on the grounds it lacks 23- foundation, relevance, hearsay, and lack of authentication- t3 OVERRULED 2&4 (14) Smith Decl. 45, 5:17?19 on the grounds it lacks foundation, a, relevance, hearsay, and lack of authentication?OVERRULED (15) Smith Decl. 47, 5:22?25 on the grounds it lacks foundation, hearsay, and lack of authentication?OVERRULED ll 18 19 UT -29- Smith Decl. 48, 5:26w6zl on the grounds it lacks lacks authentication, hearsay, improper opinion testimony, relevance, and improper conclusion?OVERRULED (17) Smith Decl. 49, 6:2?5 on the grounds it lacks foundation, lacks authentication, hearsay, improper opinion testimony, relevance, and improper conclusion?OVERRULED (18) Smith Decl. 50, 6:6?9 on the grounds it lacks foundation, lacks authentication, hearsay, improper opinion testimony, (16) foundation, relevance, and improper conclusion?OVERRULED (19) Smith Decl. 53, 6:17?20 on the grounds of hearsay and relevance?OVERRULED (20) Smith Decl. 54, 6:21?23 on the grounds of hearsay and relevance?OVERRULED (21) Smith Decl. 55, 6:24-27 on the grounds of (22) Smith Decl. 56, 6:28?7:3 on the grounds of hearsay and (23) Smith Decl. 57, 7: relevance?OVERRULED (24) Smith Decl. 58, 7: (25) Smith Decl. 59, 7: relevance~OVERRULED 4?6 on the grounds of hearsay and 7?10 on the grounds of hearsay and 11?13 on the grounds of hearsay and (26) Smith Decl. 60, 7:14?16 on the grounds of hearsay and relevance?OVERRULED (27) Smith Decl. 61, 7:17-24 on the grounds of lack of foundation, lack of authentication, hearsay, and relevance- OVERRULED (28) Smith Decl. 62, 7:25-8:4 on the grounds of lack of foundation, lack of authentication, hearsay, and relevance? OVERRULED (29) Smith Decl. 63, 8:5?7 on the grounds of relevance?OVERRULED (30) Deposition of Dennis Bond Vol. 1, Exh. ll 11:34:11?1lz34z24 on the grounds of best evidence rule, lack of personal knowledge, and (31) Deposition of Dennis Bond Vol. 1, Exh. 11 11:35:52-1l:36:12 on the grounds of (32) Deposition of Dennis Bond Vol. 1, Exh. 11 on the grounds it calls for speculation and assumes facts not in (33) Deposition of Dennis Bond Vol. 1, Exh. 11 12:10:37?12:10:55 on the grounds of (34) Deposition of Dennis Bond Vol. 1, Exh. 11 12:17:22?12:17:41 on the grounds of hearsay, asked and answered, and calls for speculation?OVERRULED (35) Deposition of Dennis Bond Vol. 1, Exh. 11 13:14:31?13:15:01 on the grounds of calls for speculation, knowledge?OVERRULED lack of personal (36) Deposition of Skip Brittenham Vol. 1, Exh. 12 9:34:35? 9:34:56 on the grounds of improper opinion testimony, calls for speculation, lack of personal knowledge, vague as to time.? SUSTAINED (37) Deposition of Timothy Campbell Vol.1, Exh. 15 11:09:07? on the grounds of calls for speculation and lack of personal knowledge?OVERRULED (38) Deposition of Timothy Campbell Vol.1, Exh. 15 11:49:52- 11:50:11 on the grounds of vague, ambiguous, and overbroad? OVERRULED (39) Deposition 11:58:35 on the foundation, and Undisputed Facts of Timothy Campbell Vol.1, Exh. 15 11:58:07- grounds of calls for speculation, lacks irrelevant?Not offered in support of Defendant's (40) Deposition of Timothy Campbell Vol.1, Exh. 15 12:44:56? on the grounds of calls for speculation, lacks foundation, and misquotes (41) Deposition of Timothy Campbell Vol.1, Exh. 15 12:49:02? 12:49:27 on the grounds of assumes facts not in evidence, calls for speculation, lacks foundation, and misquotes witness? OVERRULED (42) Deposition of Barry Felsen Vol. on the grounds of vague, ambiguous, foundation-OVERRULED Exh. l6 and overbroad and lack of (43) Deposition of Glen Larson Vol. 1 Exh. 22 16:43 on the grounds of (44) Deposition of Glen Larson Vol. 1 Exh. 22 16:52-16:53 on the grounds of vague and ambiguous, misstates prior testimony, and argumentative-OVERRULED - Deposition of Glen Larson Vol. 1 Exh. 22 15:04:22?15:04:58 on the grounds of calls for speculation and lack of foundation? SUSTAINED (46) Deposition of Glen Larson Vol. 1 Exh. 22 15:43:03?15z43213 on the grounds of misstates prior testimony?OVERRULED (47) Deposition of Glen Larson Vol. 1 Exh. 22 15:43:15?15:43:39 on the grounds of calls for speculation, lack of foundation, hearsay, and assumes facts not in (48) Deposition of Glen Larson Vol. 1 Exh. 22 on the grounds of calls for speculation, lack of foundation, hearsay, and assumes facts not in evidence?Not offered in support of Defendant?s Undisputed Facts (49) Deposition of Glen Larson Vol. 1 Exh. 26 12:20:24-12:20:59 on the grounds of lack of foundation?OVERRULED (50) Vol. 2 Exh. 74 to Defendant?s Appendix on the grounds of lack of foundation and (51) Vol. 2 Exh. 75 to Defendant?s Appendix on the grounds of lack of foundation and _31_ (52) Vol. 3 Exh. 80 to lack of foundation and (53) Vol. 3 Exh. 81 to lack of foundation and (54) Vol. 3 Exh. 52 to lack of foundation and (55) Vol. 3 Exh. 83 to lack of foundation and Defendant?s Appendix on the grounds of Defendant?s Appendix on the grounds of Defendant's Appendix on the grounds of Defendant?s Appendix on the grounds of Defendant objects to the following of Plaintiff?s evidence: (1) Thigpen Decl. Exh. irrelevant?OVERRULED (2) Thigpen Decl. Exh. irrelevant?OVERRULED (3) Thigpen Decl. Exh. irrelevant-OVERRULED (4) Thigpen Decl. Exh. irrelevant?OVERRULED (5) Thigpen Decl. Exh. irrelevant?OVERRULED (6) Thigpen Decl. Exh. irrelevant?OVERRULED (7) Thigpen Decl. Exh. OVERRULED (8) Thigpen Decl. Exh. irrelevant?OVERRULED (9) Thigpen Decl. Exh. 1 on the grounds of hearsay and 4 at 53:16?18 on the grounds it is 4 at 62:6?12 on the grounds it is 4 at 70:17?22 on the grounds it is 4 at 85:2?6 on the grounds it is 5 at 419:23?24 on the grounds it is 6 on the grounds it is irrelevant? 4 at 78:4?8 on the grounds it is 4 at 7927?9 on the grounds it is improper opinion testimony, lacks foundation, and is irrelevant? SUSTAINED (10) Thigpen Decl. Exh. irrelevant?OVERRULED (11) Thigpen Decl. Exh. irrelevant?OVERRULED (12) Thigpen Decl. Exh. irrelevant?OVERRULED (13) Thigpen Decl. Exh. irrelevant?OVERRULED (14) Thigpen Decl. Exh. 7 at 173:3?17 on the grounds it is 7 at 180 25-181:12 on the grounds it is 7 at 181:17?182:12 on the grounds it is 7 at 182:22?183z5 on the grounds it is 8 at 27:1?7 on the grounds it is irrelevant and lacks foundation?OVERRULED (15) Thigpen Decl. Exh. 8 at 35:12?21 on the grounds it is irrelevant and lacks foundation?OVERRULED (16) Thigpen Decl. Exh. 8 at 50:21?51 on the grounds it is irrelevant and lacks foundation?OVERRULED (l7) Thigpen Decl. Exh. 8 at 82:13-83:9 on the grounds it is irrelevant and lacks foundation-OVERRULED (18) Thigpen Decl. Exh. 8 at 136:10?23 on the grounds'it is irrelevant and lacks foundation?OVERRULED (19) Thigpen Decl. Exh. 8 at 137:5?17 on the grounds it is irrelevant and lacks foundation?OVERRULED (20) Thigpen Decl. Exh. 8 at 146:10?24 on the grounds it is irrelevant and lacks foundation?OVERRULED (21) Thigpen Decl. Exh. 8 at 150:3?21 on the grounds it is irrelevant and lacks foundation?OVERRULED (22) Thigpen Decl. Exh. 9 at 111:2?4 on the grounds it is irrelevant?OVERRULED (23) Thigpen Decl. Exh. irrelevant?OVERRULED (24) Thigpen Decl. Exh. irrelevantwOVERRULED (25) Thigpen Decl. Exh. irrelevant?OVERRULED (26) Thigpen Decl. Exh. irrelevant?OVERRULED (27) Thigpen Decl. Exh. irrelevant?OVERRULED (28) Thigpen Decl. Exh. irrelevant?OVERRULED (29) Thigpen Decl. Exh. irrelevant?OVERRULED (30) Thigpen Decl. Exh. irrelevant?OVERRULED (31) Thigpen Decl. Exh. irrelevant?OVERRULED (32) Thigpen Decl. Exh. irrelevant?OVERRULED (33) Thigpen Decl. Exh. irrelevant?OVERRULED (34) Thigpen Decl. Exh. irrelevant?OVERRULED (35) Thigpen Decl. Exh. is irrelevant?OVERRULED (36) Thigpen Decl. Exh. 13 at 39:2-14 on the grounds it is irrelevant?OVERRULED (37) Thigpen Decl. Exh. irrelevant?OVERRULED (38) Thigpen Decl. Exh. irrelevant?OVERRULED (39) Thigpen Decl. Exh. 9 at 111:25?112z6 on the grounds it is 9 at 112:8-17 on the grounds it is 9 at 114:16?24 on the grounds it is 9 at 120:9?25 on the grounds it is 11 at 99:11?100:7 on the grounds it is 11 at 100:14-101:12 on the grounds it is 11 at 101:18?102:7 on the grounds it is 11 at 102:9?103:1 on the grounds it is 5 at 288:7?25 on the grounds it is 9 at 204:22w23 on the grounds it is 9 at 228:15?23 on the grounds it is 13 at 38:9-18 on the grounds it is 13 at 38:19?39:1 on the grounds that it 13 at 40:22-23 on the grounds it is 13 at 44:13?25 on the grounds it is 13 at 54:11?55:21 on the grounds it is irrelevant?OVERRULED (40) Thigpen Decl. Exh. 10 at 464:21?465:15 on the grounds it 1 lacks foundation, lacks personal knowledge, and is irrelevant? OVERRULED (41) Thigpen Decl. Exh. 10 at 465:16?466z2 on the grounds it lacks foundation, lacks personal knowledge, and is irrelevant? OVERRULED (42) Thigpen Decl. Exh. irrelevantMOVERRULED (43) Thigpen Decl. Exh. 10 at 466:15?467:8 on the grounds it is irrelevant?OVERRULED (44) Thigpen Decl. Exh. 11 at 94:21?95z7 on the grounds it lacks foundation and lacks personal knowledge?SUSTAINED (45) Thigpen Decl. Exh. 11 at 133:1?5 on the grounds it is irrelevant, lacks foundation, and is vague and ambiguous? OVERRULED (46) Thigpen Decl. Exh. irrelevant?OVERRULED (47) Thigpen Decl. Exh. 14 at 18:4-19:3 on the grounds it is irrelevant?OVERRULED (48) Thigpen Decl. Exh. 14 at 127221?25 on the grounds it is irrelevant?OVERRULED (49) Thigpen Decl. Exh. 15 at 140:1?23 on the grounds it is irrelevantwOVERRULED (50) SKIPs?missing page 36 (51) SKIPS-missing page 36 (52) Thigpen Decl. Exh. 16 at 540:18-54lz8 on the grounds it is irrelevant?OVERRULED (53) Thigpen Decl. Exh. 16 at 633:12?19 on the grounds it is irrelevant?OVERRULED (54) Thigpen Decl. Exh. 16 at 654:4-25 on the grounds it is irrelevant?OVERRULED (55) Thigpen Decl. Exh. 16 at 657:3?658:l on the grounds it is irrelevant?OVERRULED (56) Thigpen Decl. Exh. 16 at 667:7?668zl4 on the grounds it is irrelevant?OVERRULED 10 at 466:3?13 on the grounds it is 12 at 89:15?90:3 on the grounds it is Summary Adjudication Plaintiff objects to the following of Defendant?s evidence: (1) Schloss Decl. 3, 1:12?14 on the grounds it lacks foundation, lacks personal knowledge, argumentative, vague and ambiguous?OVERRULED (2) Schloss Decl. 3, 1:14?17 on the grounds of the best evidence (3) Schloss Decl. 3, 4:21?22 on the grounds it lacks foundation and lacks personal knowledge?OVERRULED (4) Schloss Decl. 5, 2:2?10 on the grounds of the best evidence -34? (5) Schloss Decl. 6:13?16 on the grounds of lack of foundation and lacks personal knowledge?OVERRULED 16?17 on the grounds of lack of foundation and lacks personal knowledge?OVERRULED (6) Schloss Decl. 6: (7) Smith Decl. 22:7?13 on the grounds of lack of foundation, relevance, and lacks personal knowledge?OVERRULED (8) Smith Decl l4, 2:14?16 on the grounds of lack of foundation, relevance, hearsay, and lack of authentication? OVERRULED (9) Smith Decl. l6, 2:19?21 on the grounds of lack of foundation, relevance, hearsay, and lack of authentication* OVERRULED (10) Smith Decl. 17, 2:22?24 on the grounds of relevance? SUSTAINED (ll) Exh. 17 to Defendant?s Appendix on the grounds of relevance?SUSTAINED (12) Exh. 18 to Defendant?s Appendix on the grounds of relevance?SUSTAINED (13) Exh. 19 to Defendant?s Appendix on the grounds of relevance and (l4) foundation, relevance, Exh. 20 to Thompson Decl. on the grounds of lack of and lack of personal knowledge?OVERRULED Defendant objects to the following of Plaintiff?s evidence: (1) Plaintiff?s Appendix of Evidence Exh. (2) Thigpen Decl. OVERRULED (3) Thigpen Decl. Exh 4 on the grounds of . 3 on the grounds it is irrelevant-_ Exh.1 at 60:16?20 on the grounds of lack of personal knowledge?OVERRULED (4) Thigpen Decl. Exh irrelevant?OVERRULED (5) Thigpen Decl. Exh opinion testimony, lac (6) Thigpen Decl. Exh. irrelevant?OVERRULED (7) Thigpen Decl. irrelevant?OVERRULED (8) Thigpen Decl. irrelevant?OVERRULED (9) Thigpen DeCl. irrelevant~OVERRULED (10) Thigpen Decl. irrelevant (Exh. Exh. Exh. Exh. . . of foundation, 1 1 at 74:4?8 on the grounds it is at 79:7?9 on the grounds of improper and irrelevant?SUSTAINED at 87:23?88:14 on the grounds it is at 88:15?89:l on the grounds it is at 89:2?7 on the grounds it is at 90:19?25 on the grounds it is at 127:21?25 on the grounds it is -35- Defendant further argues that while the deposition testimony below was cited by Plaintiff in its Additional Undisputed Facts (No. 75), Plaintiff did not submit the evidence with its opposition to the instant motion and the objections should be granted on this basis alone and Plaintiff cannot rely on evidence submitted in its opposition to the other summary judgment motion in the instant motion. (11) Thigpen Decl. grounds of failure (12) Thigpen Decl. grounds of failure (13) Thigpen Decl. grounds of failure (14) Thigpen Decl. grounds of failure (15) Thigpen Decl. grounds of failure (16) Thigpen Decl. grounds of failure (17) Thigpen Decl. grounds of failure ISO Mot. No. 1 Exh. to submit evidence ISO Mot. No. to submit evidence ISO Mot. No. to submit evidence ISO Mot. No. to submit evidence ISO Mot. No. to submit evidence ISO Mot. No. to submit evidence ISO Mot. No. to submit evidence _36_ Exh. Exh. 1 Exh. 1 Exh. Exh. Exh38:9?18 on the irrelevant?SUSTAINED at 38:19?39:l on the irrelevant?SUSTAINED at 39:2-14 on the irrelevant?SUSTAINED at 40:22-23 on the irrelevant?SUSTAINED at 44:13?25 on the irrelevant?SUSTAINED at 54:11~55:21 on the irrelevant?SUSTAINED 9 at 228:15~23 on the and irrelevant?SUSTAINED