Transaction Wireless v. Qualcomm
Filed 4/8/13 Transaction Wireless v. Qualcomm CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TRANSACTION WIRELESS, INC.,
Plaintiff and Appellant,
v.
QUALCOMM INCORPORATED,
Defendant and Respondent.
D059955
(Super. Ct. No. 37-2009-00104112- CU-BC-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Judith F. Hayes, Judge. Affirmed.
Plaintiff,
Transaction Wireless, Inc. (TWI), appeals a summary judgment for defendant
Qualcomm Incorporated (Qualcomm) in this action for
because the trial court's order granting the motion violates Code of Civil
Procedure
section 437c, subdivision (g) by not specifying the particular evidence on
which it relied, and the court erred by finding TWI cannot prove damages
measured by lost profits or unjust enrichment.
We conclude the contentions lack merit, and thus we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Qualcomm's
services include the designing and operation of wireless platforms for
businesses. Its "offerings include
a . . . managed network service that securely and reliably
manages transactions, applications and other data communications between
financial companies, wireless operators and mobile handsets."
Comdata
Stored Value Solutions, Inc., a subsidiary of Comdata Corporation (Comdata),
provides "stored value services such as gift and loyalty cards for
retailers." In late 2005 or early
2006, Qualcomm and Comdata began discussing the emerging field of mobile
commerce, specifically mobile payroll services.
TWI was
founded in October 2006 by Basil Abifaker, for the purpose of "developing
a mobile commerce and marketing software platform for the delivery and
processing of any wireless stored value transaction, including credit, debit,
gift and loyalty cards."
Specifically, TWI was developing an "SMS-based" mobile gift
card application, called the wGiftCard, designed to deliver gift cards to
recipients' phones via text messaging, as an alternative to plastic cards.
TWI, which
was unknown to Comdata, wanted to form an alliance with Qualcomm because of its
financial resources and to gain access to Comdata's large base of retailer
clients. To that end, in November 2006
TWI and Qualcomm entered into a mutual
nondisclosure agreement (MNDA). The
MNDA provided that each party possessed confidential, proprietary or trade
secret "Information" (some capitalization omitted) it wished to
disclose to the other party under the terms and conditions of [the MNDA]. The MNDA defined the term
"Information" as not including
information of the disclosing party that "has become generally known to
the public without breach of the [MNDA] by the [r]eceiving [p]arty." The MNDA required the receiving party to hold
disclosed Information in strict confidence, and to use it for the sole purpose
of evaluating the possibility of a joint business relationship.
In early
February 2007 TWI demonstrated its wGiftCard to Qualcomm and provided a
PowerPoint presentation with text, images, and a description of the product's
commercial application. Shortly
thereafter, Qualcomm sent Comdata an e-mail pertaining to a mobile payroll
service, and advising that Qualcomm had been presented with another mobile
commerce possibility, the delivery of gift cards directly to phones. In late February 2007 with TWI's express
authorization, Qualcomm introduced TWI's wGiftCard application to Comdata.
Further,
TWI, with Qualcomm's knowledge, eventually dealt directly with Comdata. In May 2007 TWI sent Comdata a slide
presentation and a press release about the wGiftCard and a document entitled,
"White Paper: How to Extend Your Gift Card Revenues and Build New
Compelling Consumer Value and Loyalty," which explained how TWI intended
its wGiftCard to operate. In June and
July, TWI made presentations and demonstrated a working model of its product to
Comdata. In July, TWI and Comdata
entered into a confidentiality agreement.
Comdata
continued to discuss mobile commerce with both Qualcomm and TWI, as well as
with other companies. Comdata was trying
to find a company "that could come to market with an actual [workable]
product" for presentation to Comdata's retailer clients, whether it be a
mobile payroll service or mobile gift cards.
Comdata found TWI's wGiftCard was "the most complete solution to
date," but it had no "workable model."
but it was "working on the infrastructure to come up with" a mobile
payroll service.
Further,
Qualcomm and TWI continued to explore the possibility of a joint venture on
mobile gift cards. Comdata encouraged
such a venture because TWI could provide technology and Qualcomm could provide
TWI with needed infrastructure and financing, which "may push [TWI] over
the finish line."
Ultimately,
Comdata determined Qualcomm and TWI were the only companies that had the
potential to provide it with a marketable product. On August
15, 2007, Comdata and TWI entered into a nonexclusive and
nonbinding memorandum of understanding (MOU) "with respect to cooperative
efforts related to the development of a wireless gift card service" using
TWI's technology. On August 31, 2007, Comdata and Qualcomm
entered into a nonexclusive and nonbinding letter of intent concerning
Qualcomm's provision of a balance inquiry service via text messaging for
holders of plastic gift cards processed by Comdata.
At the
time, Comdata remained confident Qualcomm and TWI would form a
partnership. In late September 2007,
however, Comdata learned Qualcomm and TWI had broken off discussions. At that point, Comdata chose not to proceed
with TWI because it was an undercapitalized start-up company that had recently
sought venture capital from Comdata, and it was inexperienced in getting a
product to market. In contrast, Qualcomm
was a large, well capitalized and established company with a lengthy history of
bringing products to market.
On October 3, 2007, Qualcomm and Comdata
entered into a "Strategic Alliance Agreement" (SAA) under which
Qualcomm became Comdata's "preferred provider of mobile commerce
applications and solutions." The
parties agreed "to collaboratively plan and execute on the development and
provision of services to Merchants, whereby Merchants and Users can wirelessly
perform certain actions relating to Cards," meaning prepaid plastic gift
cards.
The SAA
defined three levels of contemplated service.
Under the basic service, a registered user would receive a text message
with the balance on a plastic gift card; under the deluxe service, a merchant
would attach a message related to its product or service; and under the premier
service, a registered user would receive an automatic text message when a gift
card had not been used for a certain period.
The SAA acknowledged that TWI had alleged Qualcomm misappropriated
certain proprietary information of TWI, and Qualcomm denied the allegation and was
trying to resolve the dispute. Qualcomm
was required to indemnify Comdata against any claims by TWI.
In late
fall 2007 Qualcomm acquired Firethorn Holdings, LLC (Firethorn). Qualcomm had not yet developed any product
for Comdata under the SAA and had received no compensation from Comdata. Firethorn's sole commercial product then was
a software application that allowed customers of participating banks to perform
functions on their mobile phones, such as checking balances and transferring
funds between accounts.
In December
2007 Qualcomm asked Firethorn to explore how it could satisfy Comdata's
requirements under the SAA. In May 2008
Firethorn assumed the SAA from Qualcomm, and in June 2009 Firethorn terminated
the SAA because it "was never able to convince Comdata to set aside its
desire for mobile alerts using SMS text messages and to switch to Firethorn's
application-based approach."
Firethorn never created a product for Comdata or received any revenue
from Comdata.
In August
2010 Firethorn announced a partnership with Discover Financial Services, under
which Firethorn would launch a mobile gift card application called SWAGG in
time for the 2010 holiday season.
According to Qualcomm, SWAGG did not use the same technology as TWI's
wGiftCard, text messaging, and instead was "a software, PC Web, and WebKit
browser application."
In May 2010
TWI filed its operative first amended complaint (complaint) against Qualcomm
for breach of written contract. The
complaint alleged that in reliance on the MNDA, TWI disclosed to Qualcomm
information about the wGiftCard and, instead of using the information solely to
explore the potential of a joint venture, Qualcomm disclosed the information to
Comdata for its own use and disrupted TWI's potential relationship directly
with Comdata.
In December
2010 Qualcomm moved for summary judgment.
Qualcomm argued the information it disclosed to Comdata was not
protected Information within the meaning of the MNDA because TWI disclosed the
same information to potential investors and to Comdata. Additionally, Qualcomm argued TWI could not
prove any legally cognizable damages.
After a
hearing, the court overruled all evidentiary objections and granted Qualcomm's
motion. The court determined TWI raised
triable issues of fact as to whether Qualcomm breached the MNDA, but it was
nonetheless entitled to judgment as a matter of law because Qualcomm made a
prima facie showing TWI had no resulting damages measured by lost profits or
unjust enrichment, and TWI failed to raise a triable issue of material fact on
the matter. Judgment was entered for
Qualcomm on July 21, 2011.
DISCUSSION
I
Standard of
Review
Summary
judgment may be granted only when a moving party shows it is entitled to a
judgment as a matter of law.
(§ 437c, subd. (c).) "
'Rulings on such motions are examined de novo.' " (Benson
v. Superior Court (2010) 185 Cal.App.4th 1179, 1185.)
" 'We
review summary judgment appeals by applying the same three-step analysis
applied by the trial court: First, we
identify the issues raised by the pleadings.
Second, we determine whether the movant established entitlement to
summary judgment, that is, whether the movant showed the opponent could not
prevail on any theory raised by the pleadings.
Third, if the movant has met its burden, we consider whether the
opposition raised triable issues of fact.' " (Benson
v. Superior Court, supra, 185 Cal.App.4th at p. 1185.) We review the evidence in the light most
favorable to the plaintiff. (
25 Cal.4th 826, 843.)
II
Sufficiency of
the Order
Preliminarily,
we dispose of TWI's contention we should reverse the judgment because the trial
court's minute order does not cite the specific evidence on which it
relied. Section 437c, subdivision (g),
provides that when granting a motion for summary judgment, the court
"shall, by written or oral order, specify the reasons for its
determination. The order shall
specifically refer to the evidence proffered in support of, and if applicable
in opposition to, the motion which indicates that no triable issue
exists."
"The
trial court's failure to perform this statutory duty, however, does not
automatically require a reversal.
[Citation.] The de novo standard
for appellate review of an order granting summary judgment frequently means the
lack of a proper order constitutes harmless error." (Main
Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044,
1057; Soto v. State of California (1997)
56 Cal.App.4th 196, 199.) If our
independent review of the evidence "establishes the validity of the judgment,
then the error is harmless." (
109 Cal.App.4th 1134, 1146.)
A violation
of section 437c, subdivision (g), may constitute reversible error when the
trial court's order is insufficient to permit meaningful appellate review. (Main
Street Plaza v. Cartwright & Main, LLC, supra, 194 Cal.App.4th at p.
1058 [order insufficient when it gave no explanation of reasons and merely
stated summary judgment motion "is granted"]; Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88
Cal.App.4th 439, 449 [order insufficient when lack of statement of reasons for
ruling precluded de novo review].) That
is not, however, the situation here.
Rather, the
trial court's order explains:
"[TWI] has failed to create triable issues of material fact as to
the issue of damages. The fact of
damages is speculative and even if the amount of damages could be determined,
there is no evidence that [TWI] was actually damaged by Qualcomm's
conduct. Further, there is no evidence
that Qualcomm was unjustly enriched by any information it received from
[TWI]. [TWI] concedes that neither
Qualcomm nor [TWI] reached a binding or enforceable agreement with Comdata to
provide wireless delivery of gift cards, and it is undisputed that Qualcomm
never provided SMS-based delivery of wireless gift cards for Comdata or anyone
else."
The order
establishes that in the trial court's view, Qualcomm presented a prima facie
case for judgment as a matter of law, based on a lack of damages to TWI; the
burden shifted to TWI to raise a triable issue of fact as to damages; and TWI
did not meet its burden. The order
allows us to conduct a de novo review, and thus its lack of specific citations
to the evidence is harmless.
III
Lost Profits
A
TWI's theory
is that Qualcomm breached the MNDA by disclosing confidential information to
Comdata not solely for the purpose of exploring a joint venture between
Qualcomm and TWI, but rather to give Qualcomm an edge with Comdata and
interfere with TWI's ability to contract directly with Comdata.
initial burden of establishing entitlement to judgment as a matter of law on
TWI's claim for lost profits, and thus the burden did not shift to TWI to raise
a triable issue of material fact. We
conclude the contention lacks merit.
"Damages
awarded to an injured party for breach of contract 'seek to approximate the
agreed-upon performance.'
[Citation.] The goal is to put
the plaintiff 'in as good a position as he or she would have occupied' if the
defendant had not breached the contract."
(Lewis Jorge Construction
Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960,
967.)
"No
damages can be recovered for a breach of contract which are not clearly
ascertainable in both their nature and origin." (Civ. Code, § 3301.) "Generally, 'damages which are
speculative, remote, imaginary, contingent, or merely possible cannot serve as
a legal basis for recovery.'
[Citation.] Thus, '[l]ost
anticipated profits cannot be recovered if it is uncertain whether any profit
would have been derived at all from the proposed undertaking. But lost prospective net profits may be
recovered if the evidence shows, with reasonable certainty, both their
occurrence and extent. [Citation.]' [Citation.]
Under these principles, lost
profits based on a future contract cannot be recovered when the contract is
uncertain or speculative." (
USA, Inc. (2012) 209 Cal.App.4th 1118, 1132, italics added;
96 Cal.App.4th 1251, 1263 ["Satisfactory proof of [lost profits] is
impossible [when] there is no way to know what the eventual terms of
the . . . agreement would have been, or even if the parties
would have reached an agreement."]; Citri-Lite
Co. v. Cott Beverages, Inc. (E.D.Cal. 2010) 721 F.Supp.2d 912, 937-938
[plaintiff could not recover lost profits based on renewal of the contract when
there was no evidence the contract would be renewed].)
To show TWI
had no prospect of winning a contract with Comdata, Qualcomm submitted evidence
TWI had only a nonexclusive and nonbinding MOU with Comdata, which contemplated
no contract terms. Further, Qualcomm
relied on deposition testimony of its executive Robert H. Skiba, who had
contracting authority. He ultimately
declined to have Comdata contract directly with TWI because it was a start-up
company, it was seeking venture capital from Comdata, and it was "possibly
going to . . . run dry of funding." Further, TWI had "what appeared to be
emerging technology, but no real product out in the marketplace that was being
used by anybody else." Skiba chose
to proceed with Qualcomm for mobile commerce because it was well capitalized,
it was a "very large company with a long history of established products,
goods, services, and infrastructure," and its products "were being
used by firms all over the country."
The evidence belies the notion TWI had a prospective contract with Comdata.
Moreover,
even when there is a prospective contract, to obtain lost profit damages a
"plaintiff must show loss of net
pecuniary gain, not just loss of revenue." (Kids'
Universe v. In2Labs (2002) 95 Cal.App.4th 870, 884 (Kids' Universe), italics added.)
"The Court of Appeal has defined lost profits as follows: ' "Net profits are the gains made from
sales 'after deducting the value of the labor, materials, rents, and all
expenses, together with the interest of the capital employed.' " ' " (Ibid.)
"When
the operation of an unestablished business is prevented, . . . prospective
profits may be shown in various ways."
(Kids' Universe, supra, 95
Cal.App.4th at p. 884.) "
'[D]amages may be established with reasonable certainty with the aid of expert
testimony, economic and financial data, market surveys and analysis, [and]
business records of similar enterprises.' " (Ibid.) When the defendant " 'has prevented the
beginning of a new business . . . all factors relevant to
the likelihood of the success or lack of success of the
business . . . that are reasonably provable are to be
considered, including general business conditions and the degree of success of
similar enterprises.' " (
1698 ["Unestablished businesses have been permitted to claim lost profit
damages in situations where owners have experience in the business they are
seeking to establish, and where the business is in an established
market."].)
title="">[4]
Qualcomm's
evidence defeats a claim of lost net gain to TWI. At the relevant time both TWI, founded in
2006, and the mobile gift card industry were unestablished. Further, TWI had raised more than $4 million
in venture capital since 2008, but it had generated less than $37,000 in gross
revenue through the end of September 2010 and it had never made a profit.
TWI
cursorily asserts Qualcomm's evidence is insufficient because it "avoid[s]
the obvious question of whether Qualcomm's breach [of the MNDA] was the
negate the rule against speculative damages.
To the contrary, the rule applies when an alleged breach of contract
results in the loss of a new business opportunity, as discussed. Standing alone, Qualcomm's alleged breach
does not suggest TWI lost prospective profits.
Qualcomm
met its burden of producing evidence establishing the speculative nature of
both a prospective contract between TWI and Comdata, the terms of any such
contract, and any net gain to TWI from such a contract. Thus, the burden of production shifted to TWI
on the issue of lost profits.
B
TWI
contends it did meet its burden. TWI
asserts the deposition testimony of Skiba that Qualcomm submitted inaccurately
reflects his position, and he actually viewed TWI as qualified to become
Comdata's partner.
TWI cites
Skiba's testimony that Comdata was "looking for the best possible solution
with somebody that could come to market with an actual product," and he
had advised TWI that it "offered the most complete solution to date,"
because the solution used technology most retailers already had and thus it
could overcome retailer resistance.
Further, as of August 1, 2007, Skiba considered TWI "the
only company that we were talking to that actually was
ready . . . to test" technology on "balance
inquiry" for plastic credit cards.
Additionally,
on September 14, 2007, Skiba provided a positive recommendation to a potential
investor in TWI. When asked how he
envisioned a "go to market strategy" with TWI, Skiba responded: "Right now I have about 650 customers in
the turnkey outsourced gift card market like Costco, Gap, JC Penney. What I liked about the [TWI] product is that
it will allow me to start out with baby steps, and get a sense of the markets [
solution. Right now there is a 1-800
number on the back of my cards where you can call and get your balance on the
back of the card, and the Y and X generation is using that with significant
frequency and getting the balance of their card. We are going to use the [TWI] solution to
serve as the text ability, where the teenagers will be ability [
shoot [sic] back to you."
This
evidence does not, however, affect Skiba's unequivocal testimony that when he
longer discussing a joint venture, he declined to have Comdata contract
directly with TWI because it was an undercapitalized start-up company with no
experience in bringing a new product to market.
Skiba considered Abifaker to be "one of the most savvy, technical
guys I've ever seen," but he clarified that while Abifaker was
"talking to me about delivering a product," he was still looking for
venture capital for TWI. TWI presented
no evidence, through Skiba or otherwise, that Qualcomm's alleged breach of the MNDA,
by divulging the wGiftCard concept to Comdata without the intent to pursue a
joint venture with TWI, caused Comdata's ultimate reluctance to take a chance
on mobile commerce directly with TWI.
In any
event, even assuming there were a triable issue of fact on TWI's potential of
contracting with Comdata, TWI did not raise any triable issue of fact
pertaining to its loss of prospective profits. TWI presented no expert testimony, no
evidence it had previous experience in the business it sought to establish, no
evidence there was any established market for its technology, no evidence of
general business conditions or its own capitalization and economic state, and
no evidence of the cost of performing under any contract with Comdata.
TWI claims
Qualcomm's own projections satisfy the damages element. TWI cites a February 7, 2007, internal
Qualcomm e-mail from David Wood to Stu Heilsberg, with the subject line
"Planning Thoughts for [TWI]."
The memorandum states, "I wanted to be sure we are now all on the same
page regarding Basil [Abifaker]. Per our
conversation yesterday, you have overall point for this account. I have attached above the beginnings of a
presentation on them that includes my thoughts on business model." The attachment included a page entitled
"The Market Opportunity," which estimated annual Qualcomm revenue of
between $17 and $30 million from a gift card deal with Comdata, based on the
assumption that 10 percent of Comdata's plastic gift card business may switch
to the mobile market. The attachment
included another page entitled " 'Possible' Business Model,"
which included a revenue sharing arrangement among Qualcomm, Comdata and TWI.
"Although
prelitigation projections are relevant and admissible, especially when they are
prepared by the defendant [citations], the projections must nevertheless be
based on facts that are substantially
similar to the lost business opportunity."
(Parlour Enterprises, Inc. v.
Kirin Group, Inc. (2007) 152 Cal.App.4th 281, 290.) TWI claims Qualcomm's "projections made
conservative assumptions [and] were based on a detailed analysis of the
market." The portions of the
appellate record TWI cites, however, do not support these claims. The market for mobile gift cards was unknown,
and thus Qualcomm's estimate of the percentage of Comdata's plastic gift card
market that would switch to mobile gift cards was speculative. Further, Qualcomm is an established business
with existing infrastructure, and TWI presented no evidence the estimate would
apply to a start-up company. As Qualcomm
observes, "TWI cites no case in which unrealized projections of future
revenues from undeveloped markets were used to establish damages flowing from a
hypothetical contract with a non-party to the lawsuit."
Moreover,
the issue is whether TWI would be
estimated revenue. TWI "presented
no evidence to the effect it was reasonably probable the venture would have
been profitable, i.e., gains . . . would have exceeded the
costs of opera[tion]." (
p. 888.) It is undisputed that despite
infusions of $4 million in capital since 2008, as of 2010 Comdata had earned
only $37,000 in gross revenue and had not realized any profit. Under these circumstances, the "evidence
would not allow a reasonable trier of fact to find with reasonable certainty
lost net profits" from the
alleged inability to contract with Comdata.
(Id. at p. 887.) TWI is mistaken in asserting its damages
"can be measured by the amount of revenue
which TWI lost . . . as a result of its breach of the
MNDA." (Italics added.) We agree with the trial court's finding that
TWI raised no triable issue of fact on lost profits. Presented with the evidence, a jury could not
award TWI damages without engaging in conjecture and speculation.
IV
Unjust Enrichment
Alternatively,
TWI contends Qualcomm did not meet its initial burden of negating damages
measured by unjust enrichment, and thus the burden did not shift to TWI to
raise a triable issue of material fact.
We also disagree with this contention.
The unjust
enrichment doctrine "applies where the plaintiffs, while having no
enforceable contract, nonetheless have conferred a benefit on the defendant
which the defendant has knowingly accepted under circumstances that make it
inequitable for the defendant to retain the benefit without paying for its
value. [Citation.] The defendant in an unjust enrichment claim
must pay the amounts necessary to place the plaintiff in as good a position as
he or she would have been had no contract been made. [Citation.]
. . . '[T]he measure of
damages . . . for unjust enrichment "is synonymous
with restitution." '
[Citation.] ' " 'In modern
legal usage, its meaning has frequently been extended to include not only the restoration
or giving back of something to its rightful owner, but also compensation,
reimbursement, indemnification, or reparation for benefits derived from, or for
loss or injury cause[d] to, another.' " ' " (Hernandez
v. Lopez (2009) 180 Cal.App.4th 932, 938-939; Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 56.)
In opposing
summary judgment, Qualcomm argued TWI could not seek unjust enrichment because
its complaint did not pray for equitable relief. There is, however,
" ' "no particular form of pleading necessary to invoke the
doctrine" of restitution.' " (
171, 198, fn. 15.) Unjust enrichment
damages are available in a breach of contract action when the complaint
"fully raised all the facts and circumstances
in which equity could contemplate a quasi-contractual remedy." (Hernandez
v. Lopez, supra, 180 Cal.App.4th
at p. 939, italics added.)
The
showed as a matter of law that TWI was not entitled to unjust enrichment under
the facts and circumstances the complaint raised. Qualcomm's separate statement listed as
undisputed facts that neither it nor Firethorn developed a product for Comdata
or received any payment from Comdata.
Qualcomm cited the deposition testimony of Thomas Niedbalski, Jr., who
at the relevant time was with Comdata, and the declaration of Ben Ackerman, who
was an executive with Firethorn.
Moreover,
the trial court addressed unjust enrichment in its ruling. It determined "there is no evidence that
Qualcomm was unjustly enriched by any information it received from [TWI]. [TWI] concedes that neither Qualcomm nor
[TWI] reached a binding or enforceable agreement with Comdata to provide
wireless delivery of gift cards, and it is undisputed that Qualcomm never
provided SMS-based delivery of wireless gift cards for Comdata or anyone
else."
title="">[6] We agree with this ruling.
TWI now
asserts that while "Qualcomm argued it made no money on the Comdata
relationship . . . that myopic focus on one business relationship
was insufficient to meet its initial burden.
Qualcomm did not address its misappropriation of TWI's gift card
invention . . . or deny, much less disprove, that TWI's
intellectual property benefitted Qualcomm's development and
for Qualcomm did not eliminate all of the benefit which Qualcomm received from
its breach." (Italics added.)
We disagree
that Qualcomm's moving burden included the production of evidence showing it
was not unjustly enriched by the supposed implementation of TWI's technology in
SWAGG. "In ruling on a summary
judgment motion, the issues which are material are limited to the allegations
of the complaint." (
26 Cal.App.4th 1214, 1223; Davis v.
Foster Wheeler Energy Corp. (2012) 205 Cal.App.4th 731, 736 [a defendant is
required "only to address the allegations and theories in the
complaint"].) TWI's complaint
alleged TWI advised Qualcomm it had a prospective business relationship with
Comdata, and Qualcomm breached the MNDA by using TWI's confidential information
"for the prohibited purpose of competing with [TWI]." The complaint does not mention SWAGG or
allege any facts suggesting Qualcomm was unjustly enriched other than by
wrongfully competing for Comdata's business, and thus TWI cannot reasonably
criticize Qualcomm for not addressing SWAGG in its separate statement. While pleadings "must be liberally
construed, with a view to substantial justice between the parties"
(§ 452), a defendant's burden on summary judgment is not based on
guesswork.
Qualcomm
reasonably relied on the complaint allegations in disproving unjust enrichment
pertaining to Comdata. Qualcomm's
evidence showed entitlement to judgment as a matter of law, and thus the burden
of production shifted to TWI to raise a material issue of fact. If TWI sought unjust enrichment damages based
on SWAGG, it was incumbent on TWI to raise triable issues of fact on that theory. TWI contends only that Qualcomm failed to
meet its initial burden; it does not contend it raised a triable issue of
material fact pertaining to any unjust enrichment of Qualcomm through either
Comdata or SWAGG. Thus, the trial
court's ruling was proper.
name="_ftnref8" title="">[8]
DISPOSITION
The
judgment is affirmed. Qualcomm is
entitled to costs on appeal.
McCONNELL,
P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
name="_ftn1" title="">[1] Further undesignated statutory citations are also to the
Code of Civil Procedure unless otherwise specified.
name="_ftn2" title="">[2] Abifaker conceded that when TWI was in discussions with
Comdata in 2007, its wGiftCard was not yet ready for commercial
deployment. TWI did not deploy any
feature of its mobile technology until the fall of 2009.
