Sukumar v. Med-Fit Systems

Filed 2/3/09 Sukumar v. Med-Fit Systems CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and orders of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed in part, reversed in part and remanded with instructions.

Ponani Sukumar appeals from a judgment entered in favor of Med-Fit Systems, Inc. (Med-Fit) and Nautilus Group, Inc. (Nautilus, and together with Med-Fit, Defendants) following a jury trial. He claims no evidence supported the jury's conclusion that: (1) Med-Fit performed its contract with him and Nautilus did not induce a breach of that contract; (2) Med-Fit did not make a false representation of fact; and (3) Nautilus did not intend to interfere with that contract. Sukumar also claims the trial court erred in: (1) denying his motion for a new trial based on (a) violation of the mediation privilege and (b) attorney misconduct; and (2) granting summary adjudication in favor of (a) Med-Fit on his specific performance claim and (b) Nautilus on his claims against it for breach of contract.

We conclude that the record does not contain substantial evidence to support the jury's finding that Med-Fit performed all parts of its contract with Sukumar. Accordingly, we reverse the jury's verdict on the breach of contract claim and remand for a limited retrial. Because the jury's verdicts on Sukumar's negligent misrepresentation claim against Med-Fit and inducing breach of contract claim against Nautilus are dependent on the finding of a breach of contract, these claims must also be remanded for a new trial. We conclude, however, that substantial evidence supported the jury's verdict on Sukumar's interference with contract claim against Nautilus.

We also reject Sukumar's assertions that the trial court erred in denying his new trial motion and granting summary adjudication in favor of Nautilus on his claims against it for breach of contract; however, we conclude the trial court erred in summarily adjudicating Sukumar's "claim" for specific performance and reverse that part of the order. The matter is remanded for further proceedings in accordance with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Prior Litigation

Sukumar decided to establish a series of stroke-rehabilitation centers after his father suffered stroke-like symptoms. After meeting with a Nautilus representative, Sukumar decided to purchase Nautilus equipment for his business venture. Sukumar, however, wanted some safety modifications made to the machines and Greg Webb, Nautilus's Vice President of Engineering, assured him that Nautilus could make the requested modifications. In 1998, Sukumar ordered the customized equipment from Nautilus.

In 2000, Sukumar sued Nautilus's predecessor, Direct Focus, Inc., in federal court claiming that the customized equipment was defective (the Direct Focus litigation). The parties mediated the dispute and agreed that Nautilus would deliver the equipment without defects and that retired Judge Harry McCue would serve as a neutral inspector of the delivery. After Judge McCue concluded that several machines were defective or did not match the order, the parties continued to mediate but were unable to resolve the disputes.

In July 2004, the district court found that Nautilus had breached its contract with Sukumar and ordered specific performance and damages. (All dates are in 2004.) In December, Nautilus attempted to deliver the equipment to Sukumar under the specific performance order, but Sukumar again claimed that the equipment was defective and did not match the order specifications. The record does not reflect the ultimate outcome of this litigation.

II. The Instant Litigation

In early 2004, while the federal lawsuit was ongoing, Sukumar sought to purchase generic "off-the-shelf" Nautilus equipment through Med-Fit, a Nautilus distributor. After Sukumar did not receive all the equipment ordered, he filed this action against Defendants asserting claims against them for breach of contract and specific performance and additional claims against Nautilus for breach of the covenant of good faith and fair dealing, breach of contract under a third party beneficiary theory, inducing breach of contract and intentional interference with contract. The trial court later granted summary adjudication to Defendants on Sukumar's specific performance claim and to Nautilus on Sukumar's contract claims against it.

The matter proceeded to trial on the remaining causes of action and, consistent with the standard of review, we summarize the facts in the light most favorable to the jury's findings and the verdicts. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1137-1138.)

Sukumar told Dean Sbragia, Med-Fit's President, about the Direct Focus litigation and his concern that Nautilus would not sell equipment to him because of the ongoing litigation. Sbragia assured Sukumar that he would be able to get the equipment through Nautilus or another dealer. Sbragia then offered to sell Sukumar a variety of Nautilus equipment, they agreed to the price for each piece of equipment and Sukumar paid a $40,000 deposit to "close" the deal. Before taking Sukumar's deposit, Sbragia cleared the order through his contact at Nautilus. With the deposit, Sbragia understood that Sukumar had accepted the terms of his offer for three different lines of Nautilus equipment: a full line of 2ST Medical equipment consisting of 22 pieces (the 2ST equipment); XP Load equipment (the XP equipment); and a reconditioned set of Next Generation equipment (the Next Generation equipment).

Because Med-Fit could only obtain Nautilus equipment for business entities, Med-Fit's initial proposal listed "Selfless Service Universal House," an affiliate of Sukumar's, as the purchaser. Sbragia later suggested the name "Southern California Stroke Rehabilitation Associates" (Rehabilitation Associates) for Sukumar's proposed business and Sukumar decided to use it. Med-Fit then placed an order with Nautilus for the equipment, listing Rehabilitation Associates as the purchaser (the February order).

Thereafter, Med-Fit prepared a purchase order memorializing the transaction and sent it to Nautilus. Nautilus later instructed Med-Fit to modify the order by splitting it into three parts, one for each of the three different lines of equipment. Someone at Nautilus found out that Sukumar was involved with the orders and had them placed on hold. Sbragia contacted a number of people at Nautilus to get the orders released until Kevin Lamar, President of Nautilus, finally indicated that the orders would be delivered. However, the orders were not released and they remained on hold.

By May, Sbragia had yet to hear anything definitive regarding Sukumar's February order. Despite this, Sbragia understood that Sukumar wanted his outstanding order to be filled and his deposit held for that purpose. That same month, Nautilus's general counsel asked Nautilus's new President, Timothy Earl Hawkins, to decide whether to fill Sukumar's order after informing him of Sukumar's federal lawsuit. Hawkins discussed the proposed sale over the telephone with Sbragia and Sukumar and then sent Sbragia an e-mail indicating it was not in Nautilus's best interest to fill the order and cancelled the entire order. Sukumar, however, never agreed to the cancellation.

Although Hawkins did not want Nautilus to directly fill Sukumar's order, he asked Dennis Keiser, a business competitor, whether the latter company would be willing to take full responsibility for the order. Keiser agreed to accept delivery of the 2ST equipment, be 100 percent responsible for all warranty issues and modify it to meet Sukumar's specifications. Med-Fit then filled Sukumar's order for the 2ST equipment through Keiser. Hawkins "absolutely" intended the delivery to Keiser to be a means of fulfilling or replacing Sukumar's order for the 2ST machines through Med-Fit.

Sbragia informed Sukumar that his old order had to be cancelled because it was "purged" from the system, that it would take a certain amount of time to produce and deliver the equipment to Keiser and that the XP equipment was backordered, but would be delivered to Med-Fit's warehouse. Sbragia later e-mailed Sukumar stating he had two different "ship to" addresses for the replacement orders and that the 2ST equipment and "all other medical, off the shelf accoutrements" would be shipped to Keiser and that the XP equipment and some additional machines would be shipped to Med-Fit's warehouse. Notably, the order for 2ST equipment specified that the machines would have range limiting devices, medical weight stacks and labels. Sukumar testified at trial that these were all off the shelf options available from Nautilus.

The following week, Sbragia informed Sukumar that Med-Fit had his replacement orders ready; specifically, the 2ST equipment for shipment to Keiser and the XP equipment for shipment to Med-Fit's warehouse. Sbragia also informed Sukumar that he needed confirmation within a couple of days or the orders would be cancelled.

Finally, Sbragia informed Sukumar that Med-Fit cancelled Sukumar's order for the XP equipment because Sukumar had "chosen not to commit to [the] order." In mid-September, Nautilus delivered 20 pieces of the 2ST equipment to Keiser; however, two pieces of 2ST equipment were missing because Nautilus had stopped manufacturing them. Sukumar never received the Next Generation equipment.

After the close of evidence, the trial court granted Sukumar's motion to amend the pleadings to add claims against Med-Fit for negligent misrepresentation and promissory estoppel. The jury returned a special verdict in favor of Defendants, finding that Med-Fit did not make a false representation of an important fact to Sukumar or fail to do something its contract with Sukumar required it to do and that Nautilus did not intend to disrupt the performance of Med-Fit's contract. The trial court entered a judgment in favor of Defendants and denied Sukumar's motions for judgment not withstanding the verdict and new trial. Sukumar timely appealed.

DISCUSSION

I. Sufficiency of the Evidence

A. Standard of Review

We review the sufficiency of the evidence under the substantial evidence test, viewing the whole record in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.) Evidence is substantial if it is of "ponderable legal significance" and is "reasonable, credible and of solid value." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) While inferences may support a judgment, "the inferences must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork. [Citation.]" (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.)

B. Analysis

1. Med-Fit

The jury found that Sukumar had a valid contract to purchase Nautilus equipment from Med-Fit and that Sukumar and Med-Fit had met all the prerequisites for performance and Med-Fit had complied with what the contract required it to do. It also found that Med-Fit had not made a false representation of an important fact to Sukumar.

Sukumar contends the finding that Med-Fit satisfied its contractual obligations is not supported by substantial evidence because the evidence showed that: (1) Med-Fit never delivered all of the equipment he contracted for; (2) he had placed a separate order for 2ST equipment that he never received; and (3) the breached contract supports his negligent misrepresentation claim. As discussed below, the evidence and reasonable inferences therefrom, do not support the jury's finding that Med-Fit performed its entire contract with Sukumar or that it did not negligently misrepresent a material fact because the evidence demonstrates that Med-Fit did not deliver all of the contracted for equipment.

a. Breach of Contract: 2ST Equipment

A written contract may be modified by an oral agreement that the parties have performed. (Civ. Code,  1698, subd. (b).) Med-Fit argued to the jury that by words and conduct, the parties had modified the method of performing the contract by going through Keiser. The trial court also instructed the jury that Med-Fit claimed that the original contract was modified, or changed, that Sukumar denied that the contract was modified and Med-Fit must prove that the parties agreed to the modification. (CACI No. 313.) It further instructed that "[t]he parties to a contract may agree to modify its terms. You must decide whether a reasonable person would conclude from the words and conduct of [the parties] that they agreed to modify the contract." (Ibid.)

Here, it was undisputed that Med-Fit had Nautilus deliver 20 pieces of 2ST equipment to Keiser for Sukumar. However, the parties disagree on whether this equipment satisfied Sukumar's original order with Med-Fit or whether Sukumar had two orders for 2ST equipment, one that Med-Fit never filled. As discussed below, the evidence presented at trial supported the jury's implied finding that the parties had modified the contract to allow Med-Fit to perform by delivering the 2ST equipment to Keiser and that Sukumar had only ordered one set of 2ST equipment.

The jury heard testimony from Sbragia and Hawkins that Nautilus cancelled Sukumar's original order for the 2ST equipment and created a replacement order in May and that Med-Fit filled the replacement order through Keiser. Although Sbragia understood that Sukumar did not want the May order to replace the February order, he told Sukumar that this was the only way to procure the equipment from Nautilus.

Sukumar denied that the 2ST order to Keiser was a replacement for the canceled order and claimed he had ordered two sets of the 2ST equipment from Med-Fit. Although Sbragia testified that it "appeared" that Sukumar wanted two sets of 2ST equipment, he stated that Sukumar had only contracted to purchase one set of 2ST equipment.

Accordingly, the jury implicitly accepted Hawkins's testimony that Med-Fit had satisfied the bulk of Sukumar's order for the 2ST equipment by delivering the equipment to Keiser and rejected Sukumar's testimony to the contrary. Considering the evidence in the light most favorable to the prevailing party, we conclude that the jury's finding is supported by substantial evidence and may not be disturbed on appeal.

Sukumar contracted to purchase 22 pieces of 2ST equipment, but only received 20 pieces of equipment because Nautilus had discontinued manufacturing two of the machines. Based on this uncontradicted evidence, Sukumar claims the jury erred when it found that Med-Fit performed the contract. This argument, however, disregards evidence suggesting the jury impliedly found that Med-Fit was excused from performing this part of the contract.

Specifically, the trial court instructed the jury that Med-Fit was contending that its performance under the contract was excused and to prevail on this argument Med-Fit was required to establish that it: (1) did not assume a greater obligation than to deliver the equipment; (2) notified Sukumar within a reasonable time of the nondelivery of equipment; and (3) delivery of the equipment was made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made. The evidence presented at trial supported this defense.

Sukumar has not pointed to any evidence in the record suggesting that Med-Fit had assumed a greater obligation than to deliver the equipment to him; that Med-Fit failed to notify him of nondelivery of the equipment within a reasonable time or that the continued manufacture of the equipment by Nautilus was not a basic assumption of the contract. Rather, the jury heard evidence that Nautilus was no longer manufacturing two machines in its 2ST equipment line, that Med-Fit informed Sukumar of this fact and asked whether he wanted these machines deleted from the order or similar machines substituted. The jury also learned that Nautilus retained the right under its distribution agreement with Med-Fit to discontinue manufacturing particular machines.

Based on this evidence, the jury reasonably concluded that Med-Fit had not failed to so something that the contract required it to do because it was excused from performing this part of the contract.

b.      Breach of Contract: XP and Next Generation Equipment

Sukumar contends the jury's finding that Med-Fit had satisfied its contractual obligations is not supported by substantial evidence because his trial testimony established that he never received the Next Generation and XP equipment he had ordered. Although it is undisputed that Sukumar never received the XP equipment, other evidence considered by the jury suggests Sukumar agreed to cancel that part of the order seeking the XP equipment. Namely, after Nautilus arranged to have the XP equipment shipped to Med-Fit's warehouse for redelivery to Sukumar, Sbragia told Sukumar that he needed confirmation or the orders would be cancelled and Sbragia ultimately cancelled the order after Sukumar would not "commit." Based on this evidence, the jury could reasonably conclude that Sukumar impliedly agreed to the cancellation of his order for the XP equipment.

This evidence, however, does not support the jury's implied finding that Med-Fit was excused from performing that part of the contract for the Next Generation equipment. The exhibits presented at trial do not address the Next Generation equipment, an order that was separate and distinct from the orders for the 2ST and XP equipment. In fact, there is a dearth of evidence as to the Next Generation equipment because the parties focused their attention at trial on the 2ST equipment line.

The record shows that Sukumar contracted to purchase certain Next Generation equipment from Med-Fit, purchase of this equipment was subject to its availability, and he never received the equipment. Further, there is no evidence that Med-Fit's performance on this part of the contract was excused.

Sbragia testified that Nautilus never told him it was physically unable to fill Sukumar's order; nor did Med-Fit present any evidence that it could not obtain the Next Generation equipment from some other source. Rather, Sbragia assured Sukumar he would be able to get the equipment Sukumar had ordered "one way or another" through his inventory, Nautilus or another dealer.

Because there is insufficient evidence to support the jury's implied finding that Med-Fit performed that part of its contract with Sukumar pertaining to the Next Generation equipment, the jury's verdict on the breach of contract claim must be reversed. Here, the contract was severable because the consideration to be paid by Sukumar for each of the three lines of equipment was apportioned. (Lowy v. United Pac. Ins. Co. (1967) 67 Cal.2d 87, 91-92; Filet Menu, Inc. v. C.C.L. & G., Inc. (2000) 79 Cal.App.4th 852, 860-862.) Accordingly, the matter is remanded for a limited new trial on the issue of breach of contract as to the Next Generation equipment.

c. 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.]" (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407.) During trial, the court granted Sukumar's motion to amend the pleadings to add a claim against Med-Fit for negligently misrepresenting it could secure the Nautilus products for him. After being instructed on all elements of this claim (CACI No. 1903), the jury ultimately found that Med-Fit had not made a false representation of an important fact to Sukumar. Accordingly, it did not reach the remaining elements of the claim.

Sukumar asserts this finding is not supported by substantial evidence because Med-Fit represented it would deliver all of the contracted for equipment, but failed to do so. Defendants do not deny that Sbragia made certain representations to Sukumar; rather, they claim that the jury's finding in Med-Fit's favor on the breach of contract claim demonstrates the propriety of its finding that Med-Fit made no false statements. As discussed above, the verdict in Sukumar's favor on his breach of contract claim must be reversed and remanded for a limited new trial; thus, Sukumar is also entitled to a new trial on this claim. Although Defendants argue that Sukumar cannot prove the remaining elements of this claim, the jury did not reach these issues and we decline to address them.

2. Nautilus

a. Inducing Breach of Contract

As a result of its special verdict on the breach of contract claim against Med-Fit, and pursuant to the instructions of the special verdict form, the jury did not reach the question of whether Nautilus induced a breach to Med-Fit's contract with Sukumar. Based on our conclusion that Sukumar is entitled to a limited retrial on his breach of contract claim, this claim must also be resubmitted to a jury.

b. Interference with Contract

The trial court properly instructed the jury that to find in Sukumar's favor on his intentional interference with contract claim, Sukumar needed to prove: (1) a valid contract existed between him and Med-Fit; (2) Nautilus knew of the contract; (3) Nautilus intended to disrupt the performance of the contract; (4) Nautilus's conduct prevented performance or made performance more difficult or expensive; (5) Sukumar suffered harm; and (6) Nautilus's conduct caused Sukumar's harm. (CACI No. 2201.) The court also instructed the jury that in deciding whether Nautilus acted intentionally, it could consider whether Nautilus knew that a breach of contract or disruption of the relationship between Med-Fit and Sukumar was substantially certain to result from Nautilus's conduct. (CACI No. 2203.)

The jury concluded that Nautilus did not intend to disrupt the performance of Med-Fit's contract with Sukumar and did not reach the remaining questions of whether Nautilus's conduct prevented performance and caused Sukumar's harm, thereby entitling him to damages. Sukumar contends that substantial evidence did not support the jury's finding because Nautilus's deliberate cancelling of Med-Fit's orders proved its "intent" to disrupt Med-Fit's performance of the contract.

We agree that the jury could construe Nautilus's cancellation of Med-Fit's orders for Sukumar as evidence of Nautilus's intent to disrupt Med-Fit's performance of its contract with Sukumar. Nonetheless, in analyzing this cause of action, we must credit all admissible evidence favorable to Nautilus and indulge in every legitimate favorable inference that may be drawn from it. As discussed below, other substantial evidence in the record supported the jury's conclusion that Nautilus did not intend to disrupt the contract.

Nautilus had been in litigation with Sukumar for four years when Hawkins learned of Sukumar's new order through Med-Fit and ultimately decided to cancel it. Hawkins believed that filling the order directly with Rehabilitation Associates placed Nautilus at risk for further litigation. Sukumar even acknowledged that the pending litigation might have been one of several reasons why Nautilus refused to sell him any equipment.

Hawkins wanted to fill Sukumar's order, but also insulate Nautilus from any possible additional litigation by not dealing directly with Sukumar. Thus, he arranged for Sukumar to obtain the 2ST equipment through Keiser. Although the order through Keiser did not address the XP and Next Generation equipment, the jury could have reasonably concluded that Med-Fit should have been able to satisfy these orders through an intermediary as Med-Fit represented it could do. Notably, Med-Fit wanted to fill Sukumar's orders despite Nautilus's cancellation and had dealers around the country to assist it in doing so. Based on this evidence, the jury could have reasonably concluded it was not substantially certain that Nautilus's cancellation of the purchase orders would disrupt Med-Fit's relationship with Sukumar.

II. Denial of Sukumar's New Trial Motion

A. General Legal Principles

A new trial may be granted for "[i]rregularity in the proceedings . . . by which either party was prevented from having a fair trial." (Code Civ. Proc.,  657 , subd. (1).) The trial court's determination on a motion for a new trial will not be disturbed on appeal absent a showing of a manifest and unmistakable abuse of discretion. (Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 781.) Nonetheless, where a trial court denies a new trial motion we must review the entire record and make an independent determination as to whether any error was prejudicial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.)

B. Alleged Evidentiary Error

1. Facts

Sukumar moved in limine for an order prohibiting reference at trial to any evidence regarding the positions of the parties during mediation of the Direct Focus action, including the amount of any settlement demands or offers. The trial court granted the motion, but indicated it might reconsider its ruling based on Nautilus's argument that Sukumar made unreasonable demands during the Direct Focus litigation and this conduct explained its reluctance in wanting to do business with him. Over Sukumar's objection, defense counsel informed the jury during opening statements that Nautilus thought Sukumar's position in the Direct Focus litigation was unreasonable and that the parties were not able to settle the matter.

At a side bar discussion during trial, the court indicated it would give counsel "some leeway" to elicit testimony that Sukumar had made unreasonable demands during the Direct Focus litigation, but stated that the parties could not provide any details about what was said. Sukumar's counsel then elicited testimony from Webb that Sukumar was a "very difficult" customer that had "expectations and standards . . . different than" Nautilus. When Sukumar's counsel asked Webb if he considered Sukumar to be "difficult" because the Direct Focus litigation had not been resolved, the witness replied: "Um, I don't know -- there was -- we tried to resolve the case several times through mediation. And we also tried putting the machines in on [sic] a condition that would be acceptable to Mr. Sukumar. But we were never able to reach any resolution."

Thereafter, Sukumar's counsel examined Webb at length as to why he considered Sukumar to be a difficult customer, attempting to show that Sukumar's demands were not unreasonable and that Sukumar was merely trying to enforce rights written into his contract with Nautilus. At one point, Sukumar's counsel asked Webb about a specific hearing, with Webb responding that Sukumar and Nautilus had unsuccessfully mediated the dispute. Sukumar's counsel then asked:

"Q: Can you just describe for me what would be successful in terms of this Friday, what would have been successful at this hearing, just generally, I don't want to discuss what transpired within this mediation because that's confidential, but what would have been successful in your mind?

"A: A reasonable number that would have been acceptable to [Nautilus].

"Q: Anything else?

"A: Well, it was ‑ I'm sure there [were] a lot of details in the mediation and to sit here and point out each one, that would be difficult for me to do."

Outside the presence of the jury, the trial court noted that this line of questioning had opened the door, entitling the jury to hear about the parties' respective positions in the Direct Focus litigation and that the court would give defense counsel some "leeway" during questioning, but that no settlement numbers would be allowed.

Defense counsel later elicited testimony from Webb and Hawkins that: (1) a neutral inspector of the machines at issue in the Direct Focus litigation made some recommendations for corrective action in a report submitted to the court and that Sukumar's expectations exceeded Nautilus's manufacturing ability; (2) the parties had unsuccessfully mediated the Direct Focus litigation; (3) Nautilus considered Sukumar's position during mediation to be unreasonable; and (4) the Direct Focus litigation and difficult mediations played a part in Nautilus's decision to cancel Sukumar's order. Defense counsel also questioned Sukumar, over objection, that Sukumar made a monetary demand to settle the Direct Focus litigation. Finally, during closing argument, defense counsel stated, without objection, that Nautilus viewed Sukumar's conduct during mediation as unreasonable.

After the jury rendered its verdicts, Sukumar moved for a new trial, arguing that admission of mediation evidence during trial was an irregularity in the proceeding that required a new trial. Sukumar's supporting declaration stated that he made all settlement demands in the Direct Focus litigation during mediation and had he been allowed to testify regarding mediation, he would have presented evidence to the jury to dispel Nautilus's argument that he had been "unreasonable" or had expectations that exceeded Nautilus's manufacturing ability. The trial court denied the motion.

2. Analysis

Sukumar claims the trial court erred in denying his motion for a new trial because the testimony elicited by defense counsel violated mediation confidentiality and prejudiced him by distracting the jury from the merits of the commercial dispute and portraying him as unreasonable. We disagree.

Evidence of settlement offers and discussions between the parties is inadmissible at trial to prove liability for the loss or damage to which the discussions relate, or to prove the invalidity of the claim in whole or in part. (Evid. Code,  1152, 1154, all undesignated statutory references are to this code.) Also inadmissible are written or oral communications made in the course of or pursuant to a mediation. ( 1119.) Any reference to mediation during a subsequent trial or other civil proceeding is an irregularity in the proceedings for purposes of a new trial motion "if the reference materially affected the substantial rights of the party requesting relief." ( 1128.)

Nonetheless, evidence that the parties agreed to mediate a dispute and that a mediator served is admissible. ( 1120, subd. (b)(2) & (3).) Additionally, evidence that is otherwise admissible or subject to discovery outside of a mediation does not become inadmissible solely by reason of its introduction or use in a mediation. (Id. at subd. (a).)

Here, the gist of Nautilus's defense at trial was that Sukumar had made unreasonable demands regarding the custom order at issue in the Direct Focus litigation and it cancelled Med-Fit's orders for Sukumar because it did not want to deal directly with him. Sukumar's counsel attempted to dispel this notion by questioning Webb at length regarding Sukumar's demands, eliciting testimony that Sukumar was a difficult customer with high expectations and that the parties had mediated the dispute, but were unsuccessful because Nautilus considered Sukumar's demand unreasonable.

This evidence did not violate mediation confidentiality or reveal settlement discussions. As recognized by the trial court, however, the evidence opened the door on these issues and allowed Nautilus to elicit similar testimony regarding the parties' respective positions, including that mediation was unsuccessful because Nautilus considered Sukumar's demands unreasonable. This testimony did not violate mediation confidentiality or reveal settlement discussions and Sukumar cannot now complain that his counsel's tactical decision to delve into these issues prejudiced him. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.)

With that said, we note two instances in the record where defense counsel elicited testimony that violated mediation confidentiality or revealed settlement discussions, specifically Webb's testimony that: (1) a neutral inspector of the machines at issue in the Direct Focus litigation made some recommendations for corrective action in a report submitted to the court, but that Sukumar's expectations exceeded Nautilus's manufacturing ability and (2) Sukumar made a monetary demand on Nautilus as a condition of settling the Direct Focus litigation.

Sukumar claims that the repeated references to mediation discredited him and his case. Sukumar, however, has not demonstrated prejudice, i.e, that the introduction of this evidence materially affected his substantial rights. ( 1128.) The jury was well aware that Sukumar and Nautilus mediated, but could not settle, the Direct Focus litigation and that Sukumar ultimately prevailed in that action, despite Nautilus's argument that Sukumar had unreasonable standards. On this record we cannot conclude that the trial court abused its discretion when it denied the new trial motion.

C. Alleged Attorney Misconduct

1. Facts

During closing argument, Sukumar's counsel described the litigation as "drag out kick out trench warfare in litigation." In response, defense counsel argued:

"[Sukumar's counsel] has characterized this [litigation] as Nautilus engaging in trench warfare. Trench warfare litigation, I would submit to you, ladies and gentlemen, the evidence in this case establishes that Mr. Sukumar is himself a trench warfare gorilla [sic] who has established himself as an expert in the litigation war of conventional warfare."

During rebuttal, Sukumar's counsel disputed the characterization of his client as a "warfare gorilla" [sic], noting that Sukumar had prevailed in the Direct Focus litigation.

2. Analysis

Sukumar contends the trial court erred in denying his request for a new trial because these and other comments made by defense counsel during trial amounted to prejudicial misconduct. We disagree.

As a threshold matter, Sukumar's failure to object and request a curative admonition waived the issue on appeal. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795.) Even assuming Sukumar had preserved the issue for appeal, there was no misconduct. During closing argument, "attorneys for both sides have wide latitude to discuss the case." (Id. at p. 795.) Here, defense counsel simply responded to the contention of Sukumar's counsel that Nautilus had engaged in trench warfare, by arguing that Sukumar was a trench warfare guerilla, unfortunately transcribed by the court reporter as "gorilla."

Sukumar also argues that defense counsel engaged in misconduct by questioning Sukumar about his clinical depression, mentioning that Sukumar associated with a convicted felon, questioning whether Sukumar's father had died of dementia and introducing evidence of other litigation to suggest that Sukumar was chronically litigious.

Sukumar, however, failed to preserve the majority of the alleged misconduct for appellate review by failing to object at trial. To the extent Sukumar did object, we conclude there was no miscarriage of justice. In assessing whether attorney misconduct requires reversal, we examine the entire case to determine whether it is reasonably probable the appealing party would have achieved a more favorable result in the absence of the alleged misconduct. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 801-802.) Even assuming, without deciding, the statements and questions of defense counsel constituted misconduct, we conclude they were harmless.

III. Motion for Summary Adjudication

A. Legal Principles

We review summary judgment de novo (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68), strictly construing the moving party's evidence and liberally construing the opposing party's evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-839.) We may not weigh the evidence or conflicting inferences. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856; Code Civ. Proc.,  437c, subd. (c).) A triable issue of material fact exists 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., supra, 25 Cal.4th at p. 850.) If there is a single issue of material fact in dispute, the motion must be denied. (Code Civ. Proc.,  437c, subd. (c).)

B. Analysis

1. Breach of Contract: Nautilus

Sukumar sued Nautilus for breach of contract claiming that, under the terms of the written distribution agreement between Med-Fit and Nautilus, the three purchase orders Med-Fit submitted to Nautilus became binding contracts when Nautilus accepted them and that he was an intended beneficiary of these contracts. Nautilus sought summary adjudication of the breach of contract claim and other contract based causes of action against it on the ground that Sukumar was not an intended beneficiary to the contract. The trial court agreed with Nautilus, noting that Sukumar failed to present any evidence showing Nautilus intended to confer a benefit on him at the time Med-Fit and Nautilus entered into the contract and that Sukumar was merely an incidental beneficiary. We agree.

A person who is not a party to a contract may nevertheless enforce it if the contract was made expressly for his benefit. (Civ. Code,  1559.) "Whether a third party is an intended beneficiary . . . involves construction of the parties' intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered. [Citation.]" (Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1725.) "It is not necessary that the intent to benefit the third party be manifested by the promisor [Nautilus]; it is sufficient that the promisor understand that the promisee [Med-Fit] has such intent. [Citations.] Neither is it necessary that the contract identify or refer to the third party beneficiary by name; the beneficiary may recover if he or she can show that it was intended that he or she be benefited by the contract. [Citations.]" (Alling v Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1440, italics omitted.)

The distributorship agreement between Med-Fit and Nautilus expressly provided that Med-Fit "shall conduct its business in the purchase and resale of Products as a principal for its own account and at its own expense and risk" and that Med-Fit did not have the power to bind Nautilus or to create any obligation on Nautilus's behalf. Thus, while the distributorship agreement created a contract on behalf of Med-Fit and Nautilus, it negated the possibility that Med-Fit's action of submitting Sukumar's purchase orders and Nautilus's acceptance of the orders created an obligation on Nautilus's behalf to benefit Sukumar or any other third party. Accordingly, the trial court correctly granted summary adjudication in Nautilus's favor on Sukumar's breach of contract claims.

2. Specific Performance: Med-Fit

Sukumar's complaint included a "cause of action" for specific performance of its contract with Med-Fit to purchase the exercise equipment. Med-Fit moved for summary adjudication of this "claim," contending it could not meet its contractual obligation to Sukumar without Nautilus's cooperation. The trial court granted summary adjudication in favor of Med-Fit on this "claim," noting that specific performance could be ordered against Nautilus.

As a threshold matter, we note that specific performance is not a separate cause of action; rather, it is a remedy for a contract that has been breached. (Miller v. Dyer (1942) 20 Cal.2d 526, 531; Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 49.) Although Sukumar pleaded the remedy of specific performance as a separate cause of action, a party may only move for summary adjudication of a cause of action, an affirmative defense, a claim for damages or an issue of duty. (Code Civ. Proc.,  437c, subd. (f)(1); Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.) Accordingly, the trial court erred in granting summary adjudication of this remedy because it was without statutory authority to do so.

Be this as it may, the trial court concluded that specific performance could not be ordered against Med-Fit because Nautilus was presently before the court and any order to specifically perform could only be issued directly against Nautilus. The trial court, however, eliminated any possibility of Sukumar obtaining the remedy of specific performance from Nautilus when it summarily adjudicated Sukumar's contract claims in Nautilus's favor.

The trial court also reasoned that specific performance could not be ordered against Med-Fit because such an order would require Med-Fit to procure the act or consent of Nautilus. (Civ. Code,  3390, subd. (4) ["[a]n agreement to procure the act or consent . . . of any other third person" cannot be specifically enforced].) Med-Fit, however, failed to present evidence in its separate statement showing that an order requiring it to specifically perform its contract with Sukumar would require it to procure the act or consent of Nautilus.

Moreover, the evidence later presented at trial suggests that Nautilus's act or consent was not necessary. Sbragia testified that Med-Fit could commit to sell to anyone without Nautilus's advance consent and represented to Sukumar that Med-Fit could obtain the equipment through Nautilus, its inventory or other dealers around the country.

Accordingly, the trial court erred in summarily adjudicating the remedy of specific performance in Med-Fit's favor.

DISPOSITION

The judgment in Med-Fit's favor is reversed as to the breach of contract and negligent misrepresentation claims against it. The judgment in Nautilus's favor is reversed as to the inducing breach of contract claim against it. The matter is remanded for a new trial on Sukumar's: (a) breach of contract claim against Med-Fit, limited to the issue of the Next Generation equipment and any damages; (b) negligent misrepresentation claim against Med-Fit; and (c) inducing breach of contract claim against Nautilus. The order granting summary adjudication in favor of Nautilus on Sukumar's breach of contract claims is affirmed. The order granting summary adjudication in favor of Med-Fit on Sukumar's "claim" for specific performance is reversed and Sukumar is entitled to present this theory of recovery to the jury.

In all other respects, the judgment is affirmed, as is the order denying Sukumar's new trial motion. Each party shall bear their own costs on appeal.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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