Filed 8/17/26 Jackson v. Livento Group CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
BRYON JACKSON,
Plaintiff and Appellant,
A174416
v.
LIVENTO GROUP, LLC, et al., (Alameda County
Super. Ct. No. 24CV061831)
Defendants and Respondents.
The trial court granted summary judgment in favor of defendants
Livento Group, LLC and David Stybr on plaintiff Bryon Jackson’s complaint
for breach of contract. Plaintiff appeals, contending the court misapplied the
summary judgment standard, excluded admissible evidence that
demonstrated the existence of triable issues of material fact, and failed to
apply the public policy favoring resolution on the merits over procedural
technicalities. We conclude plaintiff’s effort to demonstrate error falls short,
both because he supplies an inadequate record on appeal and because he
ignores the primary bases for the court’s decision, i.e., his failures to submit a
requisite separate statement and authenticated evidence with his opposition
papers. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2024, plaintiff filed a complaint against defendants alleging
a single cause of action for breach of contract. The complaint alleged that
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defendants hired plaintiff to work a minimum of 20 hours per week for one
year at $125 per hour and that plaintiff worked all year and billed
defendants. Defendants, however, paid plaintiff a total sum of only $37,500
and refused to pay the balance of $92,500. The complaint sought damages of
$92,500 and attorney fees in the amount of $5,000. Plaintiff attached a copy
of the alleged contract to the complaint.1
On May 23, 2025, defendants moved for summary judgment,
contending the undisputed facts established that plaintiff only partially
performed under the contract, and that he did so below industry standards
before inexplicably stopping altogether. Specifically, defendants argued that
plaintiff either completely stopped working after he was paid $37,500 or
stopped reporting his work to the company. Though acknowledging plaintiff’s
severance was not formally documented, defendants provided him with
company “shares in lieu of cash” as a bonus two months after he stopped
working “to part ways amicably.” Defendants further argued that Stybr,
Livento’s chief executive officer, was not a party to the contract at issue.
In support of their motion, defendants submitted excerpts from
plaintiff’s deposition and Stybr’s declaration. According to the trial court’s
summary of the evidence,2 plaintiff testified during his deposition that he did
not have or recall having physical or electronic documents relating to his
work under the contract. Additionally, Stybr stated in his declaration that
“[a]ny services [Plaintiff] claims to have performed for [Livento] after receipt
of payment, were not actually performed and/or not actually received by
1 The record indicates defendants did not dispute that plaintiff and
Livento entered into this contract.
2 We rely on the trial court’s summary of the evidence because the record
on appeal does not include the evidence submitted in support of the motion.
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[Livento].” Based on this evidence, the trial court concluded defendants met
their initial burden of showing no triable issue of material fact.
Plaintiff filed an opposition brief contending he provided services “in
the total amount of $130,000.00, including assistance with SEC Form l0,
Form 10-Q, and registration statements.” Plaintiff argued defendants
breached the contract by paying him only $23,188.49 and failing to pay for
$106,811.51 worth of services.3 (Boldface omitted.) Plaintiff further argued
that defendants improperly terminated the contract and remained obligated
to compensate him for work performed prior to termination. Alternatively,
plaintiff argued he is entitled to compensation under the doctrine of quantum
meruit for the reasonable value of services provided.
On August 1, 2025, the trial court continued the summary judgment
motion to September 18. The court found plaintiff’s opposition brief was
“procedurally defective” because it failed “to include a separate statement or
any evidence” as required by rule 3.1350 of the California Rules of Court and
Code of Civil Procedure section 437c, subdivision (b)(2), (3), both of which the
court expressly cited. The court ordered plaintiff to file and serve code-
compliant opposition papers “no later than August 29, 2025.” Plaintiff did
not do so.
On September 8, 2025, defendants submitted a reply memorandum
arguing that the motion was “unopposed” and that plaintiff had no evidence
to prove breach of a contract. The following day, plaintiff filed a
“supplemental response” in which he argued there were factual disputes
about his performance and claimed he “already filed admissible evidence
3 Plaintiff did not explain why these figures differed from those alleged
in the complaint.
3
including the Consulting Agreement, invoices, and payment records.”4
Plaintiff further argued that defendants’ attempt to issue “shares in lieu of
cash” without his agreement constituted a breach of their contract. Once
again, plaintiff did not include the required separate statement or
authenticated evidence in his belated filing.
On September 15, 2025, the trial court issued its tentative ruling
granting defendants’ motion for summary judgment. Although the record
indicates there was “no timely contest” to the tentative ruling, the record on
appeal includes minutes of a hearing that took place on September 18, 2025.
The record, however, does not include a reporter’s transcript of the hearing.
On September 18, the trial court issued a written order adopting the
tentative ruling. In sum, the court found that defendants met their initial
burden of establishing plaintiff’s nonperformance under the contract, and
that plaintiff failed to meet his burden to show the existence of a triable issue
of material fact. As the court explained, plaintiff’s first opposition brief and
“supplemental response” did not include a separate statement or admissible
evidence. Though plaintiff made reference to “the agreement, invoices, and
payment records,” he did not “include authenticated copies of such
documents,” and his claim of substantial performance under the contract was
likewise “unsupported by admissible evidence.” As such, the court deemed
the facts stated in defendants’ separate statement “effectively undisputed.”
One day after the hearing, plaintiff filed a “Response and Opposition to
Tentative Ruling on Summary Judgment” arguing the court’s ruling was
based on “procedural technicalities” and “disregarded substantial evidence.”
4 The record does not bear out plaintiff’s claim that he had “already” filed
the identified evidence (other than a copy of the contract attached to the
complaint).
4
(Capitalization and boldface omitted.) In addition to attaching a copy of the
alleged contract (the authenticity of which does not appear disputed),
plaintiff provided unauthenticated copies of weekly timesheets and bank
statements to support his claim that 95 percent of the daily work he
performed was verbal, not “file-based,” and constituted valid performance
under the contract. Plaintiff requested leave to cure the technical
deficiencies in his prior filings on the grounds that “critical evidence of his
work was lost when Defendants unilaterally terminated Plaintiff’s company
email account immediately upon ending the contract. This spoliation of
evidence by Defendants deprived Plaintiff of access to his electronic records.”
Additionally, plaintiff requested a continuance to allow him “to resubmit a
compliant opposition with authenticated evidence.” The record reflects the
late submission was filed, but there appears no indication whether the court
considered it.
Plaintiff filed a notice of appeal, identifying the trial court’s September
18, 2025, order granting summary judgment. The judgment in favor of
defendants was subsequently entered on October 13, 2025. We treat the
premature notice of appeal as having been filed immediately after entry of
judgment. (Cal. Rules of Court, rule 8.104(d)(2).)
DISCUSSION
A. Summary Judgment and Standard of Review
Summary judgment is properly granted when the papers submitted
show there is no triable issue of material fact and the moving party is
entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)5
The motion must be supported by a separate statement setting forth all
5 All further unlabeled statutory references are to the Code of Civil
Procedure.
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material facts the moving party contends are undisputed, and the opposition
papers likewise must include a responsive separate statement stating
agreement or disagreement as to whether the facts set forth in the moving
separate statement are undisputed. (Id., subd. (b)(1), (3).) “Failure to comply
with this requirement of a separate statement may constitute a sufficient
ground, in the court’s discretion, for granting the motion.” (Id., subd. (b)(3).)
Additionally, the motion must be supported by affidavits, declarations,
and materials from discovery. (§ 437c, subd. (b)(1).) Where appropriate, the
opposition papers must likewise consist of affidavits, declarations, and
materials from discovery. (Id., subd. (b)(2).)
A defendant moving for summary judgment bears the initial burden of
demonstrating “ ‘a cause of action has no merit’ ” by submitting evidence that
shows one or more elements cannot be established. (Nazir v. United Airlines,
Inc. (2009) 178 Cal.App.4th 243, 253 (Nazir).) If the defendant meets that
burden, the plaintiff then has the burden to show a triable issue exists,
“supported by evidence of specific facts and not mere allegations of the
pleadings.” (Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 160.)
We review a grant of summary judgment de novo, independently
examining the whole record to determine “whether the moving and opposing
papers show a triable issue of material fact.” (Addy v. Bliss & Glennon (1996)
44 Cal.App.4th 205, 214.) In doing so, we “ ‘ “liberally construe plaintiff[’s]
evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in
order to resolve any evidentiary doubts or ambiguities in plaintiff['s]
favor.” ’ ” (Nazir, supra, 178 Cal.App.4th at p. 254.)
B. Defendants’ Initial Burden
We begin with an analysis of whether defendants met their initial
burden to show the action had no merit, regardless of any shortcomings in
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the opposition papers. (See Garibay v. Hemmat (2008) 161 Cal.App.4th 735,
743 [where moving party fails to meet its burden, summary judgment must
be denied despite lack of opposing declarations]; Thatcher v. Lucky Stores,
Inc. (2000) 79 Cal.App.4th 1081, 1086 [even where summary judgment is
based on lack of opposition separate statement, reviewing court must still
determine whether the moving party met its initial burden].)
Here, plaintiff does not contend the trial court erred in determining
that defendants met that burden. Nor does the record provided by plaintiff
permit adequate review of defendants’ initial burden. “It is well settled, of
course, that a party challenging a judgment has the burden of showing
reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d
564, 574 (Ballard).) “We cannot presume error from an incomplete record”
(Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412; see Estrada v.
Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1), and it is not this court’s
responsibility to obtain the documents necessary to consider a party’s
arguments (State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th
1525, 1531, fn. 1; see Eagle Fire & Water Restoration, Inc. v. City of Dinuba
(2024) 102 Cal.App.5th 448, 464 [appellant has burden to correct record with
trial court or move to augment or correct record in appellate court]).
Moreover, issues not addressed as error in an appellant’s opening brief, with
legal analysis and citation to authority, are forfeited. (Golden Door
Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 786 (Golden
Door).)
Forfeiture aside, the record provided by plaintiff does not include
defendants’ separate statement or the evidence they submitted in support of
their motion for summary judgment, i.e., the excerpts from plaintiff’s
deposition transcript and Stybr’s declaration. As such, we cannot conclude
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defendants failed to meet their initial burden, and we will instead assume
their burden was satisfied. (See In re Marriage of Gray (2002) 103
Cal.App.4th 974, 977-978 [reviewing court presumes correctness].) We turn
to assess whether plaintiff met his burden to show the existence of a triable
issue of material fact.
C. Plaintiff’s Burden
1. Procedural Defects in Plaintiff’s Opposition Papers
Critically, plaintiff's opening brief contains no argument specifically
addressing the procedural deficiencies that impelled the trial court’s ruling.
Because plaintiff does not address these issues with cogent legal argument,
he forfeits them on appeal. (Golden Door, supra, 53 Cal.App.5th at p. 786.)
Furthermore, and in any event, we see no error by the trial court. (See
Ballard, supra, 41 Cal.3d at p. 574 [error must be affirmatively shown].)
When a party opposing summary judgment fails to include a separate
statement, a trial court is well within its discretion to grant the motion.
(§ 437c, subd. (b)(3).) Without a separate statement referencing “supporting
evidence in the form of affidavits or declarations, it is impossible for the
plaintiff to demonstrate the existence of disputed facts.” (Lewis v. County of
Sacramento (2001) 93 Cal.App.4th 107, 116.)
Here, the trial court overlooked plaintiff’s initial noncompliance with
the separate statement requirement. Indeed, the court continued the hearing
on the motion to give plaintiff an opportunity to cure the deficiencies and
expressly cited the applicable California Rules of Court and Code of Civil
Procedure sections that set forth the procedural requirements for the
opposition. After failing to meet the extended deadline, plaintiff submitted a
“supplemental response” that again omitted a separate statement. (See
§ 437c, subd. (b)(2); Cal. Rules of Court, rule 3.1350(e), (f), (h).) On this
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record, we see no abuse of discretion by the court in granting summary
judgment. (See § 437c, subd. (b)(3).)
Additionally, our independent review of the record confirms that, as the
trial court found, plaintiff’s opposition filings did not offer “any evidence,
admissible or otherwise.”6 It was not until the day after the hearing on the
summary judgment motion that plaintiff submitted 35 pages of documentary
records, consisting of the parties’ alleged contract and various bank
statements and timesheets. Even if defendants did not dispute that plaintiff
and Livento entered into the alleged contract, plaintiff provided no
authentication of the other records that supposedly supported his allegations
of contractual breach. (Evid. Code, § 1401 [“Authentication of a writing is
required before it may be received in evidence.”]; see § 437c, subds. (b)(2)
[opposition shall consist of affidavits, declarations, and discovery materials],
(d) [supporting and opposing declarations “shall be made by a person on
personal knowledge”].) The proponent of a piece of evidence can meet the
burden of authentication “when sufficient evidence has been produced to
sustain a finding that the document is what it purports to be.” (Jazayeri v.
Mao (2009) 174 Cal.App.4th 301, 321; see § 2015.5 [requirements for
declarations].) But because plaintiff did not produce such evidence, his
belated, unauthenticated filings were insufficient to raise a triable issue of
material fact with regard to his breach of contract claim.
2. Remaining Arguments
Plaintiff’s remaining arguments likewise offer no basis for relief. As set
forth below, they either fail to demonstrate error or are unrelated to whether
summary judgment was properly granted.
6 See footnote 4, ante.
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Plaintiff contends the trial court misapplied the summary judgment
standard and ignored triable issues of fact. We disagree for the reasons
already set forth.
Plaintiff further claims that, in the proceedings below, he “raised
service defects that were not properly addressed. Due process requires notice
and opportunity to be heard.” A review of the record, however, shows
plaintiff never raised any service issues in the trial court; nor did he claim he
was prejudiced by any inadequate notice. (See Carlton v. Quint (2000) 77
Cal.App.4th 690, 698 [plaintiff waived inadequate notice of summary
judgment motion because he “never claimed he did not have adequate time to
prepare a response, appeared at the hearing, argued the merits, never
requested a continuance, and never claimed he was prejudiced by the
defective service or inadequate notice of hearing.”].) We deem the issue
forfeited. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591–592.)
On the topic of evidentiary exclusion, plaintiff argues the trial court’s
exclusion and disregard of his evidence was improper under Evidence Code
section 1271, the business records exception to the hearsay rule. This
argument is wholly misplaced, as the court did not exclude any evidence on
hearsay grounds. Rather, the court’s ruling was based on the lack of a
separate statement and authenticated evidence.
Relatedly, plaintiff contends defendants’ act of restricting access to his
company email account after the contract ended amounted to “spoliation of
evidence.” He is mistaken. Spoliation of evidence is “the destruction or
significant alteration of evidence or the failure to preserve evidence for
another's use in pending or future litigation.” (Williams v. Russ (2008) 167
Cal.App.4th 1215, 1223.) Nothing in the record suggests defendants
destroyed or altered evidence. Nor does plaintiff argue or demonstrate that
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he could not have obtained the necessary records through the discovery
process. (See §§ 2031–2031.1 [inspection demands].)
Finally, plaintiff argues the trial court failed to apply the public policy
favoring resolution on the merits over “procedural technicalities.” But
plaintiff’s failure to submit a separate statement and authenticated evidence
exceeded the bounds of a mere technicality. Such items were necessary for
the court to evaluate whether plaintiff demonstrated the existence of a triable
issue of material fact. (See § 437c, subds. (b)(3), (d); Collins v. Hertz Corp.
(2006) 144 Cal.App.4th 64, 72 [separate statement is designed to allow trial
courts to expeditiously review complex motions for summary judgment].)
In sum, none of plaintiff’s arguments demonstrates any error by the
trial court.
DISPOSITION
The judgment is affirmed. In the interests of justice, the parties shall
bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
Jackson v. Livento (A174416)
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