Wall Street Network, Ltd. v. New York Times Co.

• Decision Date: 20 June 2008
• Docket Number: No. B193251.,B193251.
• Citation: 164 Cal.App.4th 1171,80 Cal. Rptr. 3d 6
• Parties: WALL STREET NETWORK, LTD., Plaintiff and Appellant, v. NEW YORK TIMES COMPANY et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

164 Cal.App.4th 1171

80 Cal. Rptr. 3d 6

WALL STREET NETWORK, LTD., Plaintiff and Appellant, v. NEW YORK TIMES COMPANY et al., Defendants and Respondents.

No. B193251.

Court of Appeals of California, Second District, Division Four.

June 20, 2008.

[164 Cal.App.4th 1173]

Arnold G. Regardie for Plaintiff and Appellant.

Dykema Gosset, Allan Gabriel and Brian C. Oh for Defendants and Respondents.

[164 Cal.App.4th 1174]

OPINION

MANELLA, J.

In the underlying action for breach of contract and misrepresentation by appellant Wall Street Network Ltd. (WSN), the trial court granted summary judgment in favor of respondents New York Times Company (NYT), NETexponent, Chris Kramer, Jason Lerman, and Michael Keenan, and issued an award of attorney fees to respondents. We affirm.

FACTUAL AND PROCEDURAL HISTORY

There are no material disputes about the following facts: WSN is the assignee of Click2Boost, Inc. (C2B), which entered into an Internet marketing agreement with NYT dated May 10, 2002. Respondent Michael Keenan, who is NYT's Web product manager, executed the agreement on behalf of NYT. Respondents Chris Kramer and Jason Lerman are employees of respondent NETexponent, which acted as NYT's agent regarding the agreement. The agreement contained a provision entitling the prevailing party in litigation arising out of the agreement to an award of attorney fees and costs.

Under the agreement, C2B was to solicit subscribers for home delivery of The New York Times newspaper by means of "pop up ads" at Internet Web sites with which C2B maintained "[m]arketing [a]lliances." According to C2B's description of the Internet marketing system it used in connection with the agreement, a person who clicked on the popup ad was invited to submit his or her ZIP code; if the ZIP code was suitable for home delivery of the New York Times, the person was prompted to provide additional information needed for a subscription; upon submission of this information, the C2B system displayed a confirmation of the subscription. The agreement required NYT to pay C2B a fee or commission for each home delivery subscription C2B submitted to NYT. NYT paid C2B more than $1.5 million in subscription submission fees from May 2002 to September 2003, and terminated the agreement on September 16, 2003.

In October 2003, WSN, proceeding as C2B's assignee with respect to its rights under the agreement, initiated the underlying action. On November 7, 2003, WSN filed its first amended complaint (FAC), which asserts a claim for breach of contract against NYT, claims for inducing breach of contract, aiding and abetting breach of contract, and conspiracy to induce breach of contract against Kramer, Lerman, and Keenan, and claims for misrepresentation against all the respondents.¹ The FAC alleges that NYT breached the agreement by terminating it before September 30, 2003, and that this breach was due to improper conduct by Kramer, Lerman, and Keenan. On March 16, 2004, NYT filed a cross-complaint for breach of contract against C2B, alleging that at least 90 percent of C2B's subscription submissions "were in fact names and addresses of individuals who did not subscribe to The New York Times newspaper for home delivery and/or whose addresses proved to be addresses to which the newspaper could not be delivered." The crosscomplaint requested restitution of the approximately $1.5 million in fees NYT had paid C2B.

C2B sought summary judgment on NYT's cross-complaint, and respondents filed a motion for summary judgment or adjudication on the FAC. Respondents contended, inter alia, that summary judgment was proper because WSN could not establish that C2B had performed under the agreement. Following a hearing on April 5, 2005, the trial court denied C2B's motion and granted respondents' motion.

On April 14, 2005, WSN filed a motion for reconsideration of the ruling on respondents' motion, contending that the depositions of representatives of two of C2B's marketing alliance partners—Donald L. Cerullo, Jr., of LSF Network, Inc., and Brian Nelson of Trancos, Incorporated—raised triable issues of fact regarding C2B's performance under the agreement. The trial court granted the motion for reconsideration in part, denying respondents' motion for summary judgment, but granting summary adjudication on each claim in the FAC except the breach of contract claim.

NYT sought relief from this ruling by petition for writ of mandate. In a published opinion, this court concluded that reconsideration was improper because the deposition testimony was available to WSN prior to the ruling on NYT's motion for summary judgment. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-215 .) We directed the trial court to vacate its order granting reconsideration and reinstate its order granting respondents' motion for summary judgment. (Id. at p. 216.)

On May 23, 2006, the trial court filed an order granting respondents' motion for summary judgment and entered judgment in respondents' favor on the FAC. WSN filed a motion for a new trial, which the trial court denied. On October 4, 2006, the trial court issued respondents an award of $1,430,754.50 in attorney fees against WSN and C2B.

DISCUSSION

WSN contends the trial court erred in granting summary judgment, denying WSN's motion for a new trial, and issuing a fee award against it. We disagree.

A. New Trial Motion Following Summary Judgment

Generally, "[a] defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) The defendant may carry this burden by showing "that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).) The defendant need not "conclusively negate" the element; all that is required is a showing "that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Id. at pp. 853-854.) Following a grant of summary judgment, we review the record de novo for the existence of triable issues, and consider the evidence submitted in connection with the motion, with the exception of evidence to which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)²

An order granting summary judgment is properly challenged by a motion for a new trial. (Aguilar, supra, 25 Cal.4th at p. 858.) "This is so, even though, strictly speaking, `summary judgment ... is a determination that there shall be no trial at all.'" (Ibid., quoting Green v. Del-Camp Investments, Inc. (1961) 193 Cal.App.2d 479, 481 .) The new trial motion may seek reversal of the summary judgment on "any available statutory ground for a new trial" (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 232, p. 642), which encompass contentions that there are triable issues of fact (see Green v. Del-Camp Investments, Inc., supra, 193 Cal.App.2d at pp. 482-483).

Generally, rulings on new trial motions are reviewed for an abuse of discretion. (Aguilar, supra, 25 Cal.4th at p. 859.) Nonetheless, in the case of an order denying a new trial following summary judgment, the determinations underlying the denial dictate our standard of review. (See id. at pp. 859-860.) To the extent the denial relies on the resolution of a question of law, including the nonexistence of triable issues of fact, we examine the matter de novo. (Aguilar, supra, 25 Cal.4th at p. 860; see Green v. Del-Camp Investments, Inc., supra, 193 Cal.App.2d at pp. 482-483.) We therefore review WSN's challenge to the denial as we would examine a direct attack on the order granting summary judgment, insofar as WSN asserts that the evidence considered by the trial court when it granted summary judgment raised triable issues of fact. We examine other determinations underlying the denial "under the test appropriate to such determination." (Aguilar, supra, 25 Cal.4th at p. 859.)

B. Forfeiture

(1) We begin by assessing the extent to which WSN has forfeited its contentions of error regarding the grant of summary judgment. Generally, appellants forfeit or abandon contentions of error regarding the dismissal of a cause of action by failing to raise or address the contentions in their briefs on appeal. (Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884, 887, fn. 2 ; see Johnson v. United Services Automobile Assn. (1998) 67 Cal.App.4th 626, 632, fn. 2 ; Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811 .) Thus, failure to address summary adjudication of a claim on appeal constitutes abandonment of that claim. (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590, fn. 5 , disapproved on another ground in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159, fn. 11 [131 Cal.Rptr.2d 29, 63 P.3d 937]; Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1420 .)

Respondents' motion sought summary judgment, or alternatively, summary adjudication on each of WSN's causes of action in the FAC. The motion attacked the claims on the ground that WSN could not establish that it had performed under the agreement, and also asserted that each claim—with the exception of the claim for breach of contract—failed on additional grounds. In granting summary judgment, the trial court determined that summary adjudication was proper on each claim for the reasons that respondents had advanced.

WSN's briefs focus exclusively on C2B's performance under the agreement, and do not discuss the independent grounds for summary adjudication on the claims in the FAC other than the breach of contract claim. Because WSN has forfeited any contention of error regarding the independent...