MOSSIMO HOLDINGS LLC v. << (2018)

MEMORANDUM **

The Lambus Corporation (“Lambus”) appeals the adverse grant of summary judgment in favor of Victor Siasat. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Easley v. City of Riverside, 890 F.3d 851, 855 (9th Cir. 2018) (citations omitted), we affirm.

Summary judgment was properly granted on Lambus’s intentional-interference-with-contract claim because Lambus failed to present a genuine dispute of material fact as to the existence of a valid contract. See Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (requiring “a valid contract between plaintiff and a third party” (quoting Pac. Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 270 Cal.Rptr. 1, 791 P.2d 587, 589–90 (1990) ) ). Though Lambus’s complaint alleges the existence of a 2012 oral agreement,¹ it failed to present evidence of “mutual consent, which cannot exist unless the parties ‘agree upon the same thing in the same sense.’ ” Bustamante v. Intuit, Inc., 141 Cal.App.4th 199, 45 Cal.Rptr.3d 692, 698 (2006) (quoting Cal. Civ. Code § 1580) (citing Cal. Civ. Code §§ 1550, 1565).

Summary judgment was also properly granted on Lambus’s intentional-interference-with-economic-advantage claim because, among other things, Lambus never alleged Siasat “engaged in conduct that was wrongful by some legal measure other than the fact of interference itself.” Fresno Motors, 771 F.3d at 1125 (quoting Della Penna v. Toyota Motor Sales, USA, Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740, 751 (1995) ). By failing to challenge this conclusion in its brief, Lambus waived this claim on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments not raised by a party in its opening brief are deemed waived.” (citing Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1046 n.7 (9th Cir. 1999) ) ).

AFFIRMED.

FOOTNOTES

1.   The district court also addressed the existence of an alleged 1996 agreement—an agreement referenced vaguely for the first time in Lambus’s opposition to summary judgment. But, simply put, “summary judgment is not a procedural second chance to flesh out inadequate pleadings.” Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (quoting Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990) ).