Sukumar v. Ragir CA2/5 ( 2023 )

Filed 10/2/23 Sukumar v. Ragir CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
PONANI SUKUMAR, B314776
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. SC126627)
TANYA RAGIR, as Executor, etc., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Craig Karlan and Rafael Ongkeko, Judges.
Affirmed.
Friedhofer and James E. Friedhofer; Hill, Farrer & Burrill,
Steven J. Tomasulo and William A. Meyers for Plaintiff and
Appellant.
Brown White & Osborn, Cynthia M. Cohen, Jack B. Osborn
and Mark J. Andrew Flory for Defendants and Respondents.
——————————
Plaintiff and appellant Ponani Sukumar (Sukumar)
appeals the trial court’s grant of summary judgment in favor of
defendants David Andersen (Andersen) and David Andersen
Pianos, Inc. (Andersen Piano) (collectively Defendants).1 The
underlying complaint alleged breach of contract,
misrepresentation, and negligence claims relating to the sale of a
piano to, and maintenance of pianos for, Sukumar. We affirm the
trial court’s order.
FACTS AND PROCEDURAL HISTORY
Complaint
On October 28, 2016, Sukumar filed a complaint against
Andersen, Andersen Pianos, All About Pianos, Inc. (All About
Pianos), and Louis Spencer-Smith (Spencer-Smith), the president
of All About Pianos, alleging four causes of action that are
relevant here—breach of written contract (first cause of action),
negligent misrepresentation (second cause of action), breach of
oral contract (fifth cause of action), and negligence (sixth cause of
action).2 The complaint alleged the following facts:
1 Andersen died during the pendency of this matter.
Respondent Tanya Ragir (Ragir) is executor of Andersen’s estate.
The estate includes the assets of Andersen Piano, which was
dissolved prior to the trial court’s order.
2 The third cause of action for breach of written contract
and the fourth cause of action for negligent misrepresentation
were alleged as to All About Pianos and Spencer-Smith only.
Neither is a party to this appeal, as they settled with plaintiff
prior to the litigation of Defendants’ summary judgment motion
at issue here.
2
Sukumar is a collector of high-end pianos. In the fall of
2014, Sukumar sought to add pianos to his collection with the
assistance of Nikica Lesic (Lesic), an accomplished concert
pianist. Spencer-Smith advised Sukumar that Andersen had a
desirable 1919 Steinway piano (the 1919 Piano). On Sukumar’s
behalf, Lesic met with Andersen at Andersen’s home to inspect
the 1919 Piano. Lesic found the 1919 Piano interesting, but
believed that the “ ‘action’ was too stiff” and that the piano would
require repairs to improve the sound. Andersen told Lesic that
he could restore the 1919 Piano for a few thousand dollars so that
it would produce “the optimal sound associated with Steinway
pianos of that vintage.” Spencer-Smith represented that the 1919
Piano was a high-quality Steinway piano. Neither Spencer-
Smith nor Andersen advised Sukumar that many operational
parts of the 1919 Piano had been replaced with incompatible
parts that were not manufactured by Steinway. In light of
Andersen’s reputation as a piano technician, Sukumar
reasonably believed that Andersen had inspected the 1919 Piano
and had an understanding of its true condition and the cost of
restoring it.
On or about November 14, 2014, Sukumar entered into a
written contract to purchase the 1919 Piano for $69,950. The
purchase contract identifies Sukumar as the buyer and All About
Pianos as the seller. Sukumar is informed and believes that
Andersen actually owned the 1919 Piano and also qualifies as a
seller under the purchase contract. Sukumar relied on Andersen
and Spencer-Smith’s representations regarding the quality of the
piano and the cost to restore it. Sukumar would not have agreed
to pay the purchase price absent their representations.
3
In or around February 2015, Sukumar sought out a skilled
technician to service the 1919 Piano and other pianos in his
collection. Sukumar retained Andersen, who Spencer-Smith
recommended. In or around March 2015, Andersen performed
work on several of Sukumar’s pianos, for which he was paid
several thousand dollars. Andersen’s work on the pianos was
substandard. Sukumar had his pianos serviced by a different
technician who advised him that many of the parts in the 1919
Piano were replacement parts that were incompatible with the
piano and prevented it from sounding and playing as it should.
Sukumar has been advised and believes that it will cost $50,000
to properly restore the 1919 Piano. If Sukumar had been aware
of the true cost of restoring the 1919 Piano, he would either not
have purchased the piano or insisted on a dramatically lower
purchase price.
The complaint alleges the following: Andersen is one of the
sellers of the 1919 Piano. Andersen breached the 1919 Purchase
Contract (first cause of action, breach of written contract) by
delivering a piano that had incompatible parts that would be
more expensive to repair than Andersen led Sukumar to believe,
and Sukumar was damaged thereby. Andersen made material
representations about the condition of the 1919 Piano that he had
reason to believe were false (second cause of action, negligent
misrepresentation). Sukumar reasonably relied on Andersen’s
misrepresentations in purchasing the 1919 Piano to his
detriment. Sukumar orally contracted with Andersen and
Andersen Piano to perform maintenance and service on
unspecified pianos in his collection (fifth cause of action, breach of
oral contract). Defendants breached that contract by failing to
properly perform the services that were orally agreed upon, to
4
Sukumar’s detriment. Finally, because he held himself out as a
skilled piano technician and agreed to service Sukumar’s pianos,
Andersen had a duty to use a reasonable degree of care, skill, and
expertise to perform maintenance and repair (sixth cause of
action, negligence). Andersen breached that duty of care,
damaging Sukumar.
Sukumar sought money damages, interest, costs of suit,
and any other relief that the court deemed appropriate.
Sukumar attached the purchase contract for the 1919 piano to
the complaint.
Motion for Summary Judgment
Motion for Summary Judgment and Supporting
Evidence
On January 30, 2020, Defendants filed the operative
amended motion for summary judgment or summary
adjudication, arguing that Sukumar failed to raise a triable issue
of fact as to the first, second, fifth, and sixth causes of action in
the complaint.
As to the first cause of action for breach of written contract,
Defendants argued that there was uncontroverted evidence that:
(1) Defendants did not enter into a written contract with
Sukumar relating to the 1919 Piano; (2) Andersen was not a
party to the purchase contract; (3) Andersen was not a signatory
to the purchase contract; (4) Andersen never owned the 1919
Piano; (5) Andersen never performed restoration work of any
kind on the 1919 Piano; (6) Andersen was not a party capable of
entering into a contract for sale of the 1919 Piano; and (7)
5
Andersen could not and did not consent to the terms of the
purchase contract.
As to the second cause of action for negligent
misrepresentation, Defendants argued there was uncontroverted
evidence that: (1) Andersen never spoke to or communicated
with Sukumar prior to Sukumar’s purchase of the 1919 Piano; (2)
Andersen never made a positive assertion or representation
regarding any material fact to Lesic regarding the 1919 Piano; (3)
Andersen never performed any restoration work of any kind on
the 1919 Piano—the 1919 Piano was only displayed at his home;
(4) Andersen never represented to Lesic that he owned the 1919
Piano, that the 1919 Piano had all original parts, or that all parts
of the 1919 Piano were correct or compatible for its restoration;
(5) Sukumar had not adduced evidence to support his contention
that any statement Andersen made to Lesic was false; (6) all
competent evidence confirmed that any opinion Andersen gave
Lesic regarding the methods of making a piano less stiff, one of
which could be performed for about $5,000, were honest and
reasonable; (7) Sukumar could not have reasonably relied on
Andersen’s alleged statement of opinion to Lesic, given Lesic’s
own expertise and recommendation and the fact that Lesic was
paid a commission by the piano brokers; and (8) Sukumar’s
contention that Lesic inferred a representation from Andersen’s
neutral statement that it would cost $5,000 to repair the 1919
Piano in a certain manner is not sufficient to support a claim for
negligent misrepresentation.
Regarding the fifth cause of action for breach of oral
contract, Defendants argued: (1) Sukumar has not adduced
evidence of material terms of an agreement with Defendants
related to specific piano evaluation or maintenance that
6
Defendants have failed to perform; (2) Defendants did not breach
any term of any agreement entered into with Sukumar related to
a phased, incremental, and limited scope provision of piano
evaluation and maintenance on a select number of pianos; (3)
Sukumar cannot demonstrate a causal connection between any
alleged breaches of agreement with Defendants and any
purported damages; (4) Sukumar has not identified any specific
damages of any kind related to the alleged breach of oral contract
in response to special interrogatories and requests for production
of documents; and (5) Sukumar has no evidence of damages in
connection with Defendants’ provision of limited piano evaluation
and maintenance services on several pianos in Sukumar’s
collection.
Finally, with respect to the sixth cause of action for
negligence, Defendants argued: (1) there is no evidence that
Defendants breached a duty of care to Sukumar; (2) there is no
evidence of a causal connection between any alleged breach of
duty and damages sustained by Sukumar; (3) there is no triable
issue of material fact on the question of causation and resulting
damage to Sukumar, (4) Sukumar was unable to identify
damages he sustained as a result of the purported breach with
any particularity in response to special interrogatories and
requests for production of documents; and (5) there is no basis to
enforce the alleged breach of contractual promises through tort
recovery.
Defendants concurrently filed a separate statement of
undisputed material facts and Andersen’s declaration.3
3 Defendants also submitted various exhibits as
attachments to their counsel’s declaration, including; Steinway &
Sons’ announcement of the acquisition of the Louis Renner
7
Defendants listed Andersen’s age and his ownership of Andersen
Pianos in their separate statement of undisputed facts. Andersen
declared he was 70 years old and the owner of Andersen Pianos.
Neither Andersen nor Andersen Pianos had ever owned the 1919
Piano and neither ever rebuilt or refurbished the 1919 Piano.
Anderson tuned the 1919 Piano and displayed it in his home
while Spencer-Smith attempted to sell it. Andersen had no
knowledge of its restoration history or components. Defendants
were not party to the contract to sell the 1919 Piano and did not
participate in negotiating its price. Andersen never
communicated with Sukumar in any way prior to the sale of the
1919 Piano. Andersen spoke with Lesic on one occasion prior to
the sale of the 1919 Piano, when Lesic came to Andersen’s home
to inspect and play the piano. Lesic indicated that he was
working with Spencer-Smith on the sale of the 1919 Piano by a
potential buyer. Lesic said that he loved the sound of the piano
but that it felt “stiff.” Andersen told Lesic that he knew of two
methods to lessen the stiffness of the 1919 Piano—one reversible
and one permanent. When Lesic inquired about the cost of
repair, Andersen replied that he would charge $300 for the labor
to perform the reversible repair, and $5000 for the labor and
parts for the irreversible repair. Andersen never communicated
to Lesic that he owned the 1919 Piano or that it had 100 percent
Steinway parts.
Andersen’s declaration states that in February 2015, after
the sale of the 1919 Piano, he met with Sukumar for the first
time. The two reached an understanding that Andersen and his
assistant Nick Morello would evaluate a few of Sukumar’s pianos.
company (for which Defendants requested judicial notice),
correspondence, and discovery responses.
8
Following this evaluation, if the parties agreed, Andersen and
Morello would return and perform any necessary maintenance on
the pianos. Andersen and Morello performed the evaluations of
the pianos, invoiced Sukumar, and were paid in full for the
evaluations. They later performed maintenance on the pianos for
which they were paid in part only. At Lesic’s request, they
performed maintenance on three pianos. After this maintenance
was complete, Lesic sent emails indicating that he was not
satisfied with Andersen’s work. In particular, Lesic was
dissatisfied with the condition of two Steinway B pianos, which
Andersen had previously informed him were poorly rebuilt.
Andersen and Morello only performed standard maintenance on
these pianos; they had no role in the manufacture, rebuilding, or
restoration of the pianos. Lesic also demanded that Andersen
provide him with audio recordings of the pianos on which he had
worked.
Andersen declared that it is standard to use parts
manufactured by Renner in the rebuilding and refurbishing of
Steinway pianos.
Opposition to the Motion for Summary Judgment
and Supporting Evidence
Sukumar filed an opposition to the motion for summary
judgment on October 16, 2020.4 Sukumar argued that if any fact
contained in Defendants’ statement of undisputed facts was
disputed, the motion for summary judgment must be denied,
4 Sukumar’s filing in the trial court included a footnote
indicating he did not contest summary adjudication against him
of the first cause of action, for breach of written contract.
9
because all facts included by the moving party are deemed
material, even if a particular fact is objectively immaterial.
Among the 207 purportedly undisputed facts in Defendants’
separate statement, one fact stated that Andersen was 70 years
old, although he was 71 years old, and another stated that
Andersen owned Andersen Pianos, although Andersen Pianos
was dissolved prior to the filing of the motion for summary
judgment. Based on these two facts alone, Sukumar argued that
summary judgment should be denied. Sukumar further argued
that he raised triable issues of material fact. He claimed that
Andersen made two misrepresentations regarding the 1919
Piano: (1) that it was a “Steinway,” and (2) that it could be
properly restored for a few thousand dollars. Finally, Sukumar
stated without elaboration that “there is ample evidence that
Anderson’s piano maintenance was clearly deficient, constituting
breach of oral contract and/or negligence.”
Sukumar also filed a separate statement of undisputed
material facts, the declarations of Sukumar, Lesic, Steinway’s
General counsel Jennifer Wang, Michael Megaloudis (a Steinway
employee who sells, repairs, and restores pianos), Michael Mohr
(a director level Steinway employee with experience in these
same areas), and a declaration of Sukumar’s counsel attaching
exhibits. Sukumar filed evidentiary objections to the declaration
of Andersen and his counsel.
Sukumar declared that he met Lesic, who is a concert
pianist, in 2009. Lesic assisted him in acquiring a collection of
pianos. In late 2014, Sukumar became interested in the 1919
Piano, a Steinway D, which he found on All About Pianos’s
website. In November 2014, Lesic informed Sukumar that he
had seen and played the 1919 Piano at Andersen’s home, where it
10
was staged. Lesic liked the 1919 Piano but found it stiff.
Andersen was an experienced piano technician, and had
explained to Lesic that the problem could be remedied in one of
two ways—one reversible and one not. Andersen could fix the
piano by one of these two methods for less than a couple
thousand dollars so that it could be played and sound as
intended. Andersen referred to the piano as a “Steinway.” Lesic
recommended that Sukumar purchase the piano. Sukumar
purchased the 1919 Piano for $69,950, which he believed to be
above market price.
Sukumar’s declaration stated that, in November 2014, he
was very familiar with industry standards governing the sale of
new and used Steinway Pianos. Under those standards, it would
be inappropriate for a seller to refer to a piano as a “Steinway” if
it did not have 100 percent Steinway parts. In light of his
knowledge of industry standards and Andersen’s experience as a
piano technician, Sukumar took Andersen’s comments to Lesic to
mean that the 1919 Piano had 100 percent Steinway parts and
could be fixed using 100 percent Steinway parts for a couple
thousand dollars. Sukumar believed these statements were
misleading. He would not have purchased the 1919 Piano if he
understood its true condition. Sukumar’s beliefs regarding
industry standards for Steinway Pianos were listed as
undisputed facts in his separate statement.
In February 2015, Sukumar retained Andersen to tune and
perform maintenance on his pianos under Lesic’s direction.
Andersen’s work was substandard.
Lesic’s declaration was consistent with Sukumar’s. Lesic
stated that he had the same understanding as Sukumar
regarding industry standards for Steinway pianos, and that he
11
also understood Andersen’s comments as representations that the
1919 Piano had 100 percent Steinway parts and could be fixed
using 100 percent Steinway parts for a couple thousand dollars.
Lesic’s beliefs regarding industry standards for Steinway Pianos
were listed as undisputed facts in Sukumar’s separate statement
of undisputed material fact. Lesic had the 1919 Piano inspected
by skilled and reputable piano experts, who informed him that it
contained non-Steinway parts.
Lesic’s declaration stated that, in February 2015, Sukumar
retained Andersen to perform maintenance on some of his pianos
under Lesic’s direction. Andersen’s work was substandard.
Andersen re-pinned pianos although Lesic did not ask him to do
so. Andersen also attempted to re-pin new pianos, but Lesic
stopped him. Lesic and Sukumar asked Andersen to record the
sound of the pianos prior to working on them, but Andersen did
not do so. Lesic asked Andersen to work on the pianos one at a
time so that Lesic could monitor his work. Instead, Andersen
opened several pianos and worked on them simultaneously.
Reply and Trial Court’s Rulings
On May 28, 2021, Defendants filed a reply, counsel’s
declaration, and evidentiary objections.
Following a hearing on the matter, the trial court ruled on
the parties’ evidentiary objections and granted Defendants’
motion for summary judgment or summary adjudication as to all
four causes of action.
Of particular relevance here, the court sustained
Defendants’ objections to the statements in Sukumar and Lesic’s
declarations regarding industry standards for Steinway pianos,
12
their knowledge of those standards, and how that knowledge led
them to believe that Andersen was misrepresenting the condition
of the 1919 Piano.
With respect to the motion for summary judgment, the
court observed that Sukumar failed to respond to the issues
raised in the moving papers, instead arguing that the court
should deny the motion for summary judgment because
irrelevant facts, such as Andersen’s age, were in dispute. The
court ruled that Sukumar’s citation to Insalaco v. Hope Lutheran
Church of West Contra Costa County (2020) 49 Cal.App.5th 506(Insalaco) did not require it to deny the motion based on a
dispute over immaterial facts.
The court concluded that Sukumar failed to raise an issue
of triable fact as to the first cause of action for breach of
contract—there was no evidence of an agreement between the
parties.
The court sustained the motion as to the second cause of
action for negligent misrepresentation because Andersen made
no affirmative representations about the quality of the 1919
Piano. Moreover, Sukumar could not have justifiably relied on
statements by Andersen, as his assistant Lesic was well-trained
regarding the quality of pianos. There was no evidence in the
record that the 1919 Piano was not a Steinway, and it was not
reasonable to interpret Andersen’s statements as a
representation that the 1919 Piano had 100 percent Steinway
parts. There was also no evidence that Andersen’s estimate of
the cost of repairing the 1919 Piano was unreasonable.
With respect to the fifth cause of action, Sukumar failed to
provide any evidence of the specific terms of the oral contract
between himself and Andersen.
13
As to the sixth cause of action, Sukumar did not provide
evidence of how Andersen’s work was negligent or what damage
was caused.
DISCUSSION
Legal Principles
A court may grant a motion for summary judgment or
summary adjudication “only when ‘all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’ ”
(Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th
1168, 1179; see Code Civ. Proc., § 437c, subd. (c).) A defendant
moving for summary judgment has the burden of showing the
court that the plaintiff has not established, and cannot
reasonably expect to establish, the elements of the cause of
action. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 705.)
Where, as here, a defendant moves for summary
adjudication on a cause of action for which the plaintiff has the
burden of proof at trial, the defendant “must present evidence
that either ‘conclusively negate[s] an element of the plaintiff’s
cause of action’ or ‘show[s] that the plaintiff does not possess, and
cannot reasonably obtain,’ evidence necessary to establish at
least one element of the cause of action. [Citation.] Only after
the defendant carries that initial burden does the burden shift to
the plaintiff ‘to show that a triable issue of one or more material
facts exists as to the cause of action.’ ” (Luebke v. Automobile
Club of Southern California (2020) 59 Cal.App.5th 694, 702–703;
see Code Civ. Proc., § 437c, subd. (p)(2).) “There is a triable issue
14
of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850, fn. omitted.)
“We review a grant of summary judgment de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law.” (Mattei v. Corporate Management Solutions, Inc. (2020) 52
Cal.App.5th 116, 122 (Mattei).) “We need not defer to the trial
court and are not bound by the reasons for [its] summary
judgment ruling; we review the ruling of the trial court, not its
rationale.” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 85.) “
‘In performing our de novo review, we must view the evidence in
a light favorable to plaintiff as the losing party . . . .’ ” (United
Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001,
1009.) “In deciding whether a material factual issue exists for
trial, we ‘consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and
sustained by the court, and all inferences reasonably deducible
from the evidence.’ (Code Civ. Proc., § 437c, subd. (c).)” (Duarte
v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 52.)
Analysis
Separate Statement of Undisputed Facts (All Causes
of Action)
Sukumar primarily contends, presumably as to all causes
of action (he does not specify), that Defendants’ failure to follow
15
the requirements for a separate statement of undisputed facts
contained in Code of Civil Procedure 437c and California Rules of
Court, rule 3.1350 must result in denial of the motion for
summary judgment. We reject the contention.
Code of Civil Procedure section 437c governs the
procedures for submitting a motion for summary judgment. The
statute states: “The supporting papers shall include a separate
statement setting forth plainly and concisely all material facts
that the moving party contends are undisputed. Each of the
material facts stated shall be followed by a reference to the
supporting evidence. The failure to comply with this requirement
of a separate statement may in the court’s discretion constitute a
sufficient ground for denying the motion.” (Code Civ. Proc.,
§ 437c, subd. (b)(1), italics added.) California Rules of Court, rule
3.1350 specifies the necessary contents of a separate statement of
undisputed facts, but does not mention any consequences of
failure to comply with the rule.5
In the opposition to the motion for summary judgment in
the trial court, Sukumar expressly disavowed the need to identify
specifically any disputed fact other than Andersen’s age and his
ownership of Andersen Pianos to support this argument. Beyond
5 Rules of Court, rule 3.1350, subdivision (d) provides in
relevant part: “(1) The Separate Statement of Undisputed
Material Facts in support of a motion must separately identify:
[¶] (A) Each cause of action, claim for damages, issue of duty, or
affirmative defense that is the subject of the motion; and [¶] (B)
Each supporting material fact claimed to be without dispute with
respect to the cause of action, claim for damages, issue of duty, or
affirmative defense that is the subject of the motion. [¶] (2) The
separate statement should include only material facts and not
any facts that are not pertinent to the disposition of the motion.”
16
those two disputed facts, Sukumar only generally complained
that Defendants’ separate statement included excerpts of
deposition testimony that did not constitute facts for the purposes
of summary judgment and did not identify facts in dispute.
Sukumar now argues in his opening brief on appeal that several
other facts contained in Defendants’ statement of undisputed
facts are disputed and that their inclusion in the statement of
undisputed facts renders those facts material, necessitating
reversal. Sukumar forfeited any challenge based on these
additional facts by specifically abandoning them in his opposition
to the motion for summary judgment. (Premier Medical
Management Systems, Inc. v. California Ins. Guarantee Assn.
(2008) 163 Cal.App.4th 550, 564 [“ ‘ “ ‘we ignore arguments,
authority, and facts not presented and litigated in the trial court.
Generally, issues raised for the first time on appeal which were
not litigated in the trial court are waived’ ” ’ ”].) Accordingly, we
do not consider them here.6
With respect to the identified disputed facts (i.e.,
Andersen’s age and purported ownership of Andersen Pianos),
Sukumar argues that if any fact contained in Defendants’
statement of undisputed facts is disputed, the motion for
summary judgment must be denied—regardless of whether the
disputed fact is material—because Defendants’ inclusion of a fact
in the statement concedes materiality. Sukumar relies on
Insalaco, supra, 49 Cal.App.5th 506, Nazir v. United Airlines,
6 Sukumar also failed to provide cites to the record.We
review only arguments that are supported by record citations and
consider all other arguments forfeited. (See Miller v. Superior
Court (2002) 101 Cal.App.4th 728, 743 [appellant forfeits claim of
error by failing to cite to record].)
17
Inc. (2009) 178 Cal.App.4th 243 (Nazir), and Reeves v. Safeway
Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves). These cases do
not support Sukumar’s contention.
Nazir and Reeves each discussed the difficulties that are
created when a defendant fails to meet the requirements of Code
of Civil Procedure section 437c, subdivision (b)(1), as well as the
potential consequences that may flow from that failure.7 (Nazir,
supra,178 Cal.App.4th at p. 252; Reeves, supra, 121 Cal.App.4th
at pp.105–106.) In both cases, however, the court reached the
merits of the motion for summary judgment. Neither case was
decided on the basis of the defendant’s failure to comply with
Code of Civil Procedure section 437c or California Rules of Court,
rule 3.1350. (Nazir, at pp. 263–289; Reeves, at p. 106.) To the
extent these cases discussed the failure to meet the requirements
for a separate statement of undisputed facts, they do not support
reversal of the trial court’s grant of summary judgment here.
Insalaco, supra, 49 Cal.App.5th 506, is readily
distinguished from the case at bar. Insalaco involved a dispute
between residential property owners, their adjacent neighbors,
and a church located uphill of the two residences, regarding the
cause of a landslide that resulted in property damage. (Id. at
pp. 509–510.) Defendant neighbors cross-complained against
defendant church, and the church moved for summary judgment.
(Id. at p. 510.) In its separate statement of undisputed facts, the
church asserted it was undisputed that “ ‘[a] heavy rainfall such
as occurred on the date of the incident would not be enough to
cause the Wilkie Creek flow to infiltrate into the hill slope so as
7 Nazir also referenced Rules of Court, rule 3.1350 in its
discussion of the requirements for a separate statement of
undisputed facts. Reeves and Insalaco did not.
18
to reduce slope stability on Plaintiffs’ [Insalacos’] property.’ ” (Id.
at p. 521.) This statement relied on the church’s expert’s opinion
as to the amount of rainfall that day. (Ibid.) When the neighbors
disputed the amount of rainfall, the church responded that the
amount of rain was immaterial. (Ibid.) The church also included
in its statement of undisputed facts that “there are ‘two ways in
which water flow in a creek could destabilize a slope.’ The water
could erode the toe of the slope; ‘[o]r, a sustained rise in the water
level in the creek could increase the amount of water in the
slope.’ ” (Ibid.) The neighbors did not dispute this statement, but
disputed the church’s expert’s opinion that the creek had not
overflowed in the past month. (Id. at pp. 521–522.) The church
countered that “the ‘materiality of whether the creek ever
overflowed its banks cannot be established.’ ” (Id. at p. 522.)
Finally, the church stated that it was undisputed that “ ‘[t]he
channel of Wilkie Creek is stable and shows no evidence of recent
erosion[,]’ ” which supported the church’s argument that the
landslide was not caused by erosion. (Ibid.) When the neighbors
asserted that the creek had suffered erosion, the church
responded that the erosion was also immaterial. (Ibid.)
Quoting Nazir, supra, 178 Cal.App.4th at page 252, the
Insalaco court admonished the church for “ignor[ing] the advice
from the leading practice treatise: ‘PRACTICE POINTER:
[¶] . . . [¶] Include only those facts which are truly material to the
claims or defenses involved because the separate statement
effectively concedes the materiality of whatever facts are
included. Thus, if a triable issue is raised as to any of the facts in
your separate statement, the motion must be denied!’ (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2009) § 10:95.1, [pp]. 10–35.)” (Insalaco, supra, 178
19
Cal.App.4th at p. 521.) The Insalaco court held that the church
could not “ ‘have it both ways.’ ”—i.e., it could not rely on a fact
that it designated undisputed to argue in its favor on summary
judgment and then deem the same fact immaterial when the
neighbors disputed the fact. (Insalaco, supra, 49 Cal.App.5th at
p. 521.)
Here, unlike Insalaco, the two facts at issue do not form the
underpinnings of Defendants’ arguments. Defendants will not
“have it both ways,” because whether disputed or undisputed, the
facts that Sukumar contests—that at the time the motion for
summary judgment was filed: (1) Andersen was the owner of
Andersen Pianos, and (2) Andersen was 70 years old—do not
impact the viability of the causes of action before us. Insalaco
held that a defendant’s inclusion of a fact in the separate
statement of undisputed facts concedes that the included fact is
material. A defendant’s concession does not end the analysis in
all cases, however. Even if we assume that Andersen’s age and
his ownership of Andersen Pianos are both disputed and
material, our task is to independently review “whether the facts
not subject to triable dispute warrant judgment for the moving
party as a matter of law.” (Mattei, supra, 52 Cal.App.5th at
p. 122, italics added.) In this case, Defendants’ concessions do
not defeat the judgment in their favor, which is supported by
other undisputed material facts.
20
No Triable Issues of Material Fact (Second, Fifth,
and Sixth Cause of Action)
Sukumar asserts that he has raised a triable issue of
material fact as to the second, fifth, and sixth causes of action.8
We reject these contentions.
Preliminarily, we emphasize that, contrary to his argument
in the reply brief, Sukumar failed to challenge the trial court’s
evidentiary rulings in the trial court or in his opening brief to this
court. Sukumar has waived any challenge to the trial court’s
evidentiary rulings by failing to raise them prior to his challenge
in the reply brief. (Employers Mutual Casualty Co. v.
Philadelphia Indemnity Ins. Co. (2008) 169 Cal.App.4th 340,
350.) Sukumar cannot support his contentions with facts to
which the trial court sustained objections.
Second Cause of Action: Negligent Misrepresentation
“ ‘ “ ‘Where the defendant makes false statements, honestly
believing that they are true, but without reasonable ground for
such belief, he may be liable for negligent misrepresentation, a
form of deceit.’ [Citations.]” [Citations.] If defendant’s belief “is
both honest and reasonable, the misrepresentation is innocent
and there is no tort liability. [Citations.]” [Citation.] Justifiable
reliance on the part of the plaintiff is also “an essential element
8 The first cause of action alleged that Andersen breached a
written contract by delivering a piano that was not a Steinway,
because it did not have 100 percent Steinway parts. Sukumar
has abandoned this argument in the opening brief, and we will
not address it further here.
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of a cause of action for negligent misrepresentation . . . .”
[Citation.] [¶] . . . Parties cannot read something into a neutral
statement in order to justify a claim for negligent
misrepresentation. The tort requires a “positive assertion[.]”
[Citation.] “An ‘implied’ assertion or representation is not
enough. [Citation.]” ’ ” (Residential Capital v. Cal-Western
Reconveyance Corp. (2003) 108 Cal.App.4th 807, 827–828.)
California law does not recognize a cause of action for negligent
nondisclosure. (Byrum v. Brand (1990) 219 Cal.App.3d 926, 940–
941.)
Here, Sukumar appears to argue that Andersen
misrepresented that (1) the 1919 Piano had 100 percent Steinway
parts; and (2) the 1919 Piano could be repaired using 100 percent
Steinway parts for less than a few thousand dollars. As
discussed below, the record does not include evidence that
Andersen made false statements or that Sukumar’s alleged
reliance on Andersen’s statements was justified.
Sukumar cites to the declarations of Andersen, Lesic, and
Sukumar in support of his argument that Andersen made false
statements to Lesic when Lesic visited Andersen’s home to play
and inspect the piano.9 Specifically, Sukumar asserts that
Andersen’s references to the 1919 Piano as a “Steinway” in his
conversation was a misrepresentation that led Lesic, and in turn
9 Sukumar’s brief also refers generally to “the facts outlined
above” in support of his argument. Which facts he refers to is not
clear, and the items that he refers to as facts in the immediately
preceding section include no record cites. On appeal, appellant
has the burden to show affirmative error; we will not “cull the
record” in search of facts that might support his argument.
(Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
22
Sukumar, to believe that the 1919 Piano had 100 percent
Steinway parts. Defendants do not contest that Andersen
referred to the 1919 Piano as a “Steinway,” but argue that the
statement was not an affirmative representation about the
piano’s component parts. We agree with Andersen that Sukumar
fails to raise a triable issue of fact that the identified statement
was a misrepresentation.
The trial court sustained Defendants’ objections to the very
statements in Sukumar and Lesic’s declarations that Sukumar
now relies on to characterize Andersen’s use of the neutral word
“Steinway” as a statement about component parts. The trial
court sustained Andersen’s objections to the portions of both
Lesic’s and Sukumar’s declarations that attempted to establish a
broad rule for the piano industry that it is inappropriate to refer
to a piano as a Steinway if it does not contain 100 percent
Steinway parts, and also to statements meant to establish that
Andersen must have used the word with this purported industry
meaning. Sukumar does not make any reasoned argument on
appeal as to how these evidentiary rulings were incorrect and
should be disregarded. Accordingly, our record contains no
evidence that Andersen’s reference to a “Steinway” was false;
moreover, we note the record does not support that Lesic or
Sukumar had reason to believe that the mere reference to a piano
as a “Steinway” was a warranty that the piano had 100 percent
Steinway parts and that they could justifiably rely on Andersen’s
statement as such. Lesic did not ask Andersen if he could verify
that the piano’s parts were 100 percent Steinway, and Andersen
never affirmatively represented that they were. Moreover,
Andersen’s casual reference to the 1919 Piano—which is depicted
in the contract for sale that Sukumar attached to the complaint
23
as bearing the words “Steinway & Sons” in large letters on the
front and one side—as a “Steinway” cannot be justifiably
construed as a statement that the piano contained 100 percent
Steinway parts. To all appearances, the 1919 Piano was a
Steinway piano. It was reasonable for Andersen to refer to the
1919 Piano as a Steinway in an honest belief that it was.
There is also no evidence that Andersen’s statement to
Lesic that there were two ways in which he could repair the
“action” of the 1919 Piano to make it sound as intended for less
than a few thousand dollars was false. Andersen did not claim
that he would use 100 percent Steinway parts to repair the
action, and there was no evidence presented that he could not
make the 1919 Piano sound like a Steinway piano of that era for
less than a few thousand dollars using non-Steinway parts.
Sukumar’s alleged belief that Andersen’s estimate for repairs to
the 1919 Piano was an assertion that the 1919 Piano could be
restored to contain only non-Steinway parts for less than a few
thousand dollars is not justifiable. Andersen made no such
affirmative statement. We affirm the trial court’s order as to the
second cause of action for negligent misrepresentation.
Fifth Cause of Action: Breach of Oral Contract
“The elements of a breach of oral contract claim are the
same as those for a breach of written contract: a contract; its
performance or excuse for nonperformance; breach; and
damages.” (Stockton Mortgage, Inc. v. Tope (2014) 233
Cal.App.4th 437, 453.) “ ‘Under California law, a contract will be
enforced if it is sufficiently definite (and this is a question of law)
for the court to ascertain the parties’ obligations and to
24
determine whether those obligations have been performed or
breached.’ (Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th
613, 623.) ‘To be enforceable, a promise must be definite enough
that a court can determine the scope of the duty[,] and the limits
of performance must be sufficiently defined to provide a rational
basis for the assessment of damages.’ (Ladas v. California State
Auto. Assn. (1993) 19 Cal.App.4th 761, 770; see also Robinson &
Wilson, Inc. v. Stone [(1973)] 35 Cal.App.3d [396,] 407.) ‘Where a
contract is so uncertain and indefinite that the intention of the
parties in material particulars cannot be ascertained, the
contract is void and unenforceable.’ (Cal. Lettuce Growers v.
Union Sugar Co. (1955) 45 Cal.2d 474, 481; see also Civ. Code,
§ 1598; Ladas v. California State Auto. Assn., supra, 19
Cal.App.4th at p. 770.) ‘The terms of a contract are reasonably
certain if they provide a basis for determining the existence of a
breach and for giving an appropriate remedy.’ (Rest.2d
Contracts, § 33, subd. (2); accord, Weddington Productions, Inc. v.
Flick [(1998)] 60 Cal.App.4th [793,] 811.) But ‘[i]f . . . a supposed
“contract” does not provide a basis for determining what
obligations the parties have agreed to, and hence does not make
possible a determination of whether those agreed obligations
have been breached, there is no contract.’ (Weddington
Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 811.)”
(Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.)
Sukumar’s arguments in support of his breach of oral
agreement cause of action comprise a single page in which he
melds his fifth cause of action for breach of oral contract and his
sixth cause of action for negligence. He does not include the
elements required to prove either cause of action. The opening
brief makes several sweeping statements regarding Andersen’s
25
allegedly deficient work, which are largely unsupported by
specific evidence and are devoid of citations to the record. There
are only three complaints that Sukumar identifies with any
specificity: (1) Andersen worked on multiple pianos
simultaneously; (2) Andersen re-pinned new pianos; and (3)
Andersen failed to collect sound samples from the pianos as
agreed.
The single piece of evidence that Sukumar explicitly relies
upon in the opening brief to support his argument that Andersen
breached their agreement is “Spencer-Smith’s email.” Sukumar
provides no identifying date or record cite for the email.
Assuming that we are correct that the referenced email is Exhibit
6 attached to Lesic’s Declaration, which was filed with Sukumar’s
opposition to the motion for summary judgment, it is not evidence
of the parties’ agreement. The email to Sukumar and Lesic from
Spencer-Smith, dated April 9, 2015, purports to forward an email
that Spencer-Smith sent to Andersen that morning, in which
Spencer-Smith conveyed Sukumar’s demands and concerns. It
states that Sukumar expects Andersen to deliver documentation
from Andersen’s evaluation visit, including sound samples, and to
complete work on two pianos. It also notes an alleged billing
discrepancy. Spencer-Smith states, “I understand that you were
required to [¶] –attend to one piano at a time [¶] – to establish a
record of satisfaction with the client [¶] I am told that you have
engaged in several pianos, simultaneously, despite being
instructed to the contrary.” There is no evidence that Spencer-
Smith was privy to the piano maintenance agreement or
personally familiar with its terms. The email expresses Spencer-
Smith’s understanding of Sukumar’s position; it does not provide
evidence of the terms of the agreement.
26
Sukumar makes very little effort to delineate the terms of
his agreement with Andersen in his argument. In fact, he does
not claim that Andersen agreed not to work on multiple pianos at
once or that the parties agreed Andersen would not re-pin specific
pianos. The opening brief states only that Andersen agreed to
collect sound samples from the pianos and failed to do so. Lesic’s
declaration, which Sukumar does not mention in his argument,
provides evidence that some of these terms were agreed-upon:
the declaration states that Lesic instructed Andersen to work on
the pianos one at a time and to record the sound of the pianos
prior to working on them. The declaration further states that
Andersen failed to follow these instructions. However, Sukumar
provided no evidence of damages resulting from Andersen’s
failure to complete these two tasks. Absent such a showing, he
cannot defeat summary judgment with respect to these terms.
Finally, regarding the re-pinning of new pianos, there is no
evidence that this ever occurred. Lesic’s declaration states,
“[Andersen] attempted to re-pin some brand new pianos . . . but I
stopped him from doing so.” Without evidence of an actual
breach, let alone resulting damages, Sukumar cannot defeat
summary judgment on this basis, either.
Sixth Cause of Action: Negligence
“To prevail in a negligence action, a plaintiff must show
that the defendant owed a legal duty, the defendant breached
that duty and the breach proximately caused injury to the
plaintiff. [Citations.] ‘Absent a legal duty, any injury is an injury
without actionable wrong. [Citation.] “Duty, being a question of
law, is particularly amenable to resolution by summary
27
judgment. [Citation.]” [Citation.]’ [Citation.] . . . ‘If there is no
duty, there can be no liability, no matter how easily one may
have been able to prevent injury to another. . . . [T]he existence
of the duty in the first place is a question of law for the court.
[Citation.] The existence and scope of any duty, in turn, depends
on the foreseeability of the harm, which, in that context, is also a
legal issue for the court. [Citation.]’ ” (J.L. v. Children’s
Institute, Inc. (2009) 177 Cal.App.4th 388, 396.) “ ‘ “ ‘An omission
to perform a contract obligation is never a tort, unless that
omission is also an omission of a legal duty.’ ” ’ ” (Erlich v.
Menezes (1999) 21 Cal.4th 543, 551.)
Sukumar has not set forth the elements of a cause of action
for negligence. He has not attempted to provide evidence that
Andersen owed him a duty of care or what the standard of care
would be. Accordingly, we affirm the trial court’s order of
summary judgment as to the sixth cause of action for negligence.
DISPOSITION
We affirm the judgment. Tanya Ragir, executor of the
estate of David Andersen, is awarded costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J. BAKER, J.
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