Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BC280932, Michael C. Solner, Judge.
Esner, Chang & Ellis and Stuart B. Esner for Plaintiff and Appellant.
The Law Offices of Timothy C. Cronin and Timothy C. Cronin for Defendants and Respondents.
KITCHING, J.
INTRODUCTION
This appeal from a judgment after the grant of defendant’s motion for summary judgment involves the construction of the effect of a decision by this court in an earlier appeal by plaintiff Business to Business Markets, Inc. (B2B). In that appeal, also from the grant of defendant’s summary judgment motion, this court found that B2B had created a triable issue of fact as to whether B2B had suffered actual damages, in the form of the termination of B2B’s investment agreement with third parties, as a result of the conduct of defendant Kshema Technologies Ltd. (Kshema). The earlier decision did not address a second category of damages claimed by B2B, which was the cost of completing the work which Kshema allegedly failed to complete. We hold that on remand, B2B was entitled to present evidence of both these damage claims in the trial of its breach of contract and negligence causes of actions. We also hold that in the most recent summary judgment proceeding, B2B provided evidence creating a triable issue of fact as to whether B2B sustained damages, in the form of investment funds lost because of Kshema’s alleged breach of contract and negligence in failing to develop and deliver a functioning website. We reverse the grant of summary judgment.
FACTUAL AND PROCEDURAL HISTORY
On January 19, 2002, B2B and Kshema entered into a written contract, pursuant to which Kshema would perform work on B2B’s existing website to provide “a technology solution and ultimately a fully functional Web site delivering automated, end to end, business transactions and supply chain management automating business transactions between many companies concurrently and in real time, with all the services needed to support such a site, including generally the confidential and/or complete User Interface, public exchange of data, sourcing, purchasing and sale automation functions and integration with suppliers, buyers and services providers, among many other features[.]” The contract provided that Kshema was to complete work on the first phase within five weeks of the execution of the contract, and would be paid $41,000. As of July 19, 2002, Kshema had not completed the first phase of the project, and B2B asserted that many website features and functions Kshema provided did not work.
Plaintiffs B2B and its President, Theodore Kohan, filed suit in September 2002 against Kshema. A subsequent first amended complaint alleged causes of action for breach of contract, negligence, and conversion. The breach of contract action alleged that Kshema breached the contract by failing: to deliver first phase work within five weeks; to fix issues raised in two sets of acceptance test reports; to deliver full documentation and codes pursuant to the agreement; to implement a required development and implementation process to timely complete the fully functional website; to follow ISO 9000 requirements and other procedures promised to plaintiffs by Kshema; to fix problems raised in two gap reports and in a “Not Working” document; to meet contract timelines; to implement changes pursuant to discussions and e-mails after execution of the contract; and by failing to turn over codes and other documentation. The complaint alleged that plaintiffs sustained damages in the form of losses because of not having a functional website, lost revenue from Kshema’s failure to deliver the product within the required time, and interference with plaintiffs’ investment agreement in which plaintiffs were to have received a $500,000 investment for the working website which Kshema failed to develop for B2B.
The negligence cause of action alleged that Kshema failed to exercise ordinary care as website developers and to conform to industry standards regarding the design and implementation of the website, and therefore failed to exercise the proper degree of knowledge and skill expected by plaintiffs. The complaint alleged that Kshema’s negligence caused plaintiffs to sustain more than $1 million in damages.
A third cause of action for conversion alleged that the contract made plaintiffs the owners of personal property created, developed, or implemented by Kshema in connection with the website, and alleged that Kshema failed and refused to return that personal property to plaintiffs.
Kshema filed a demurrer to the first amended complaint, asserting that plaintiff Kohan did not have standing to sue. Plaintiffs opposed the demurrer on the ground that Kohan was a third party beneficiary under the contract. The trial court sustained the demurrer without leave to amend and dismissed Kohan from the action.
Kshema moved for summary judgment or alternatively for summary adjudication. Kshema’s motion contended that B2B could not raise a triable issue of fact that it sustained damages, citing B2B’s response to Kshema’s first set of special interrogatories asking about damages: “ ‘ “All damages need to be looked upon and analyzed in due course and by proper people.” ’ ” Kshema’s second set of special interrogatories requested that B2B identify facts, witnesses, and documents supporting B2B’s contention that it suffered compensable losses. B2B responded that B2B “ ‘had to close [the] office, was [sic]unable to continue operating, failed to deliver on an investment agreement, [and] incurred expenses due to Defendant’s non-delivery has [sic] resulted in loss.’ ”
Anticipating that B2B would claim damages because of the lost investment agreement, Kshema asserted that the parties to the investment agreement mutually terminated their contract on January 8, 2002, before Kshema and B2B executed the contract at issue in this litigation. Kshema therefore argued that its alleged conduct could not have resulted in the termination of B2B’s investment agreement.
Kshema understood the investment agreement, entered into between B2B and Iraj Yazdanpanah and Hamed Yazdanpanah on January 25, 2001, to have called for B2B to deliver phase one of the website by September 1, 2001, and phase two no later than February 15, 2002. Once the website was delivered, the Yazdanpanahs agreed to pay B2B $200,000 within 30 days, $100,000 within 60 days, $100,000 60 days later, and another $100,000 60 days later. The Yazdanpanahs also agreed to pay B2B an annual salary of $120,000 for the first year of business, $180,000 for year two, and for each year thereafter up to five years, a salary of no less than $250,000 per year. The parties agreed that B2B would be entitled to a 2.5% bonus on earnings in the first five years should the company have a total revenue of $10,000,000 per year.
Kshema also contended that B2B failed to raise a triable issue of fact that Kshema converted B2B’s property.
B2B’s opposition submitted Kohan’s declaration as to damages. It stated that B2B’s damages included the cost to complete the project as contemplated by the B2B-Kshema contract, which provided that if Kshema failed to deliver pursuant to the contract, B2B had the option to complete the project by a U.S. company. Kohan stated that this contract provision would require B2B to spend hundreds of thousands of dollars due to higher U.S. labor costs instead of using an Indian company.
A contract provision captioned “Financial Arrangements” stated, in relevant part: “Both Parties agree that should Developer fail to deliver pursuant to this agreement, that Client shall at its sole and absolute discretion undertake the task of completing the project by a U.S. company/developer and no longer have the project done in India and by an Indian company.”
Kohan’s declaration stated that B2B claimed damages from the loss of an investment agreement because of Kshema’s alleged conduct. It stated: “ ‘The parties to the investment agreement were willing to comply with the terms of the investment agreement should B2B get the project started within a reasonable period of time even after it was terminated. The undersigned had numerous discussions with Kshema personnel during late 2001 and the first two quarters of 2002 where the investment agreement was discussed and they acknowledged said agreement. The undersigned informed several Kshema employees that I was to be paid a sum of money to implement and deliver a fully functional website. In fact one of the reasons why the Project was to be delivered in phases was to demonstrate to my investors that we will have a working website in a relatively short period of time.’ ”
Kshema’s reply brief attached Kohan’s deposition testimony estimating that it would cost approximately $1 million to complete the website.
The trial court granted Kshema’s summary judgment motion, ruling that B2B failed to raise a triable issue of material fact that it suffered damages.
B2B moved for reconsideration, based on its explanation that it had obtained expert witness evidence quantifying damages. B2B’s expert, John Mitchell, concluded that Kshema’s work would have to be completely replaced based on systemic and pervasive flaws, at a cost Mitchell estimated to be more than $1 million. The trial court denied B2B’s motion for reconsideration because B2B did not show its due diligence in presenting new or different facts—Mitchell’s declaration. The trial court also rejected B2B’s request for relief based on Code of Civil Procedure section 473.
The trial court’s order granting Kshema’s summary judgment motion stated that B2B failed to raise a triable issue of material fact that it suffered damages: “ ‘Specifically, B2B failed to proffer any admissible evidence, by expert declaration or otherwise, that B2B suffered any damages in connection with B2B’s causes of action for breach of contract, negligence, and conversion[.]’ ” Regarding the conversion claim, the trial court ruled that B2B failed to raise a triable issue of material fact that Kshema converted B2B’s property for Kshema’s personal use.
Plaintiffs appealed the judgment for Kshema. This court in appeal B174691 (B2B1) held that plaintiff raised a triable issue of material fact that it sustained actual damages as a result of Kshema’s alleged breach of contract and negligence. Although Kshema presented evidence that Iraj and Hamed Yazdanpanah terminated the investment agreement before Kshema and B2B executed their contract, B2B presented Kohan’s declaration that he entered into an agreement with the Yazdanpanahs to extend time for B2B to perform. Kohan also stated that in numerous discussions in late 2001 and the first two quarters of 2002, he advised Kshema personnel that the investment agreement was extended. The decision concluded: “B2B raised a triable issue of material fact that it sustained actual damages as a result of Kshema’s alleged breach of contract and negligence. We therefore have no occasion to address whether the trial court abused its discretion by denying B2B’s motion for reconsideration, in which B2B sought relief pursuant to section 473 of the Code of Civil Procedure.” (Fn. omitted.)
The B2B1 decision found that B2B failed to raise a triable issue of material fact that Kshema wrongfully converted B2B’s property, and affirmed the trial court’s summary adjudication of the conversion cause of action in favor of Kshema. The B2B1 decision also found that the B2B-Kshema contract contained no indication that Kohan was an intended beneficiary and that B2B provided no evidence showing that the contracting parties intended to benefit him. Therefore, the decision affirmed the dismissal of Kohan with prejudice. The disposition of the B2B1 opinion stated: “The trial court judgment based upon the grant of summary judgment/summary adjudication in favor of Kshema is reversed in part and affirmed in part. The matter is remanded to the trial court for further proceedings consistent with this opinion. [¶] The trial court order sustaining Kshema’s demurrer and dismissing Kohan from the action with prejudice is affirmed.”
On remand, Kshema again moved for summary judgment, contending that B2B could not show it suffered damage in its breach of contract and negligence causes of action. ~(Petition Exhibits, p. 2)~ Kshema again argued that the investment agreement was terminated two weeks before the B2B-Kshema contract, and the investment agreement was never extended. Kshema relied on Hamed Yazdanpanah’s deposition testimony that after the January 8, 2002, termination of the investment agreement, he did not put any more money into it and never thought about whether he was willing to comply with its terms if B2B restarted the project. He testified that he did not think he would invest money even though he knew Kohan had not given up hope of resurrecting it. Iraj Yazdanpanah testified that he did not recall any conversations with Kohan about the investment agreement, and after January 8, 2002, he could not recall that Hamed told him Kohan was still trying to launch his business project. He could not recall any other contracts with Kohan. Based on this testimony, Kshema also argued there was no mutual consent by the parties to modify or extend the investment agreement, no consideration, and therefore no valid contract.
B2B’s opposition argued that the investment agreement was not the only means by which B2B could prove its damages, and that the trial court and the Court of Appeal made no ruling to that effect. B2B also argued that Mitchell’s declaration concerning the $1 million cost to replace Kshema’s flawed work, and any other information developed since B2B’s written discovery responses, were independent of whether B2B suffered any damages arising from the investment agreement, and should be considered evidence of recoverable damages. Even on the issue of damages arising from loss of the investment agreement, B2B argued that undisputed evidence supported B2B’s claim that the investment agreement would have been carried through in some form had Kshema delivered the website in working condition. B2B also argued that the Yazdanpanahs’ depositions were not definitive on whether the investment agreement retained any vitality, and neither witness testified that they did not extend the investment agreement or were not otherwise willing to comply with it, even after the termination letter. Both Hamed and Iraj Yazdanpanah stated they would defer to Kohan’s recollection of events in 2003. Specifically, B2B cited Hamed Yazdanpanah’s declaration, stating that he was not deposed until January 23, 2007, and he could not clearly recall events and precise dates in 2000-2002. He stated: “If Mr. Kohan says he recalls that I, on behalf of myself and my father, expressed that we were willing to continue under the terms of the Investment Agreement even after the termination letter was issued, then I have no reason to doubt him. It is entirely possible, and I simply do not have a precise recollection.” Iraj Yazdanpanah’s declaration made the same statement.
B2B also argued that Kohan’s declaration was evidence of the ongoing vitality of the investment agreement, even after the termination letter. Kohan’s declaration stated: “ ‘The parties to the investment agreement were willing to comply with the terms of the investment agreement should B2B get the project started within a reasonable period of time. . . . In late 2001, I was in discussions with Kshema regarding taking over the project. In early January 2002, however, it appeared my discussions with Kshema had reached an impasse and the contract would not go forward. When I advised Hamed and Iraj Yazdanpanah of this, Hamed advised that to protect himself and Iraj legally, he needed to have a written termination agreement. However, he and Iraj both told me at that time that they were willing to revive the Investment Agreement on the same terms should the project get back on track. Later in January 2002, Kshema and B2B did reach agreement on the Web Site Development Agreement and following this during early 2002 I had other conversations with Hamed and Iraj in which they repeated their willingness to do so. However, by mid to late 2002 it became clear that Kshema would not deliver on the contract, and from that point on the Yazdanpanahs and I did not have specific conversations about the Investment Agreement.[’] ”
On April 16, 2007, the trial court denied Kshema’s summary judgment motion on the causes of action for breach of contract and negligence. The trial court stated that because the investment agreement terminated on January 2, 2002, before Kshema and B2B executed their contract, and the investment agreement was not thereafter revived or extended, there was no triable issue of fact concerning whether B2B suffered damages arising from the terminated investment agreement because of Kshema’s alleged breach of contract or negligence. However, the trial court denied summary judgment because it concluded that the declaration of B2B’s expert witness Mitchell created a triable issue of fact concerning B2B’s damages arising from its cost to complete the website. The trial court rejected Kshema’s argument that the trial court lacked jurisdiction to find a triable issue as to B2B’s damages based on Mitchell’s declaration because the B2B1 opinion had left undisturbed the trial court’s denial of B2B’s motion for reconsideration (which relied on the Mitchell declaration) and remanded solely on the issue of damages arising from the terminated investment agreement.
One month before the trial date, defendants moved in limine to exclude B2B from introducing evidence that it suffered damages as a result of defendant’s alleged breach of contract or negligence. The motion argued, inter alia, that B2B was precluded from arguing that it suffered damages because the superior court and the Court of Appeal had summarily adjudicated the issue of B2B’s damages. Kshema argued that this court’s B2B1 opinion found that the only triable issue of material fact remaining was the applicability of the investment agreement, and called other damages issues “dead.” Kshema’s motion argued that B2B could not proffer evidence that it sustained damages from the loss of the investment agreement because the Yazdanpanahs’ depositions confirmed that the investment agreement terminated two weeks before B2B contracted with Kshema and it was never extended thereafter.
B2B’s opposition argued that the motion in limine attacked only one potential measure of damages, based on the investment agreement, and no ruling by the trial court or the Court of Appeal limited B2B to proving these damages. B2B argued that Kshema failed to explain why evidence that completing the project would cost more than $1 million should not be considered evidence of recoverable damages. B2B further argued that even if it were limited to proving damages exclusively through the investment agreement, evidence supported B2B’s claim that the investment agreement would have been carried through in some form if Kshema had delivered the website in working condition as promised.
On May 3, 2007, the trial court ordered briefing from the parties on the impact of the B2B1 opinion. Kshema’s brief argued that B2B1 found a single triable issue of material fact—whether Kshema’s alleged conduct caused termination of the investment agreement and caused B2B to sustain actual damages—and intended that the case proceed only on B2B’s investment agreement damages. Kshema argued that the B2B1 opinion was law of the case and the trial court lacked jurisdiction to retry any other issue or admit new evidence. B2B’s brief argued that the B2B1 opinion did not limit B2B to recovering only damages from loss of the investment agreement, did not preclude B2B from proving damages based on costs to complete the website, and did not preclude B2B from presenting evidence of those damages through its expert, John Mitchell.
On July 30, 2007, the trial court granted Kshema’s summary judgment motion. The trial court amended its April 16, 2007, ruling denying Kshema’s summary judgment motion, and now granted that motion on B2B’s causes of action for breach of contract and negligence. The trial court determined that the B2B1 opinion found that the sole triable issue of B2B’s damages was that related to the investment agreement and had remanded the case to the trial court for further proceedings consistent with its opinion. The trial court found that because the case was remanded on the sole triable issue of B2B’s damages arising from the investment agreement, and having ruled that no triable issue of material fact existed as to such damages, the trial court lacked jurisdiction to decide any issue of B2B’s damages other than the sole issue remanded to the trial court. The trial court therefore ordered that judgment be entered for Kshema.
Notice of entry of judgment was served on August 16, 2007. B2B filed a timely notice of appeal on September 28, 2007.
ISSUES
B2B claims on appeal that:
1. This court’s earlier opinion reversing summary judgment did not limit the damages B2B could recover for breach of contract and negligence; and
2. The trial court should not have granted summary judgment because triable issues of fact exist as to damages arising from lost investment opportunity.
DISCUSSION
1. This Court’s B2B1 Opinion Did Not Preclude Trial of B2B’s Damages Based
on the Cost to Complete the Website Kshema Contracted to Create
B2B claims on appeal that the trial court, in amending its earlier order and granting summary judgment, erroneously construed this court’s B2B1 opinion as limiting B2B to seek recovery of damages based on a lost investor opportunity arising from the investment agreement and as precluding B2B from seeking to recover damages based on the cost to complete the website Kshema contracted to create. We agree.
Two items of damages are at issue in this case: (1) “investment agreement damages” arising from Kshema’s alleged breach of contract and negligence in failing to develop and deliver a functioning website, which interfered with an investment agreement pursuant to which B2B was to receive a $500,000 investment from Iraj and Hamed Yazdanpanah; and (2) “cost of completion damages” arising from costs B2B allegedly incurred to pay someone else to complete development of a functioning website.
This court’s B2B1 opinion expressly found that B2B raised a triable issue of material fact as to investment agreement damages, i.e., that Kshema’s alleged breach of contract and negligence caused the termination of the investment agreement and caused B2B to sustain actual damages. Because of the existence of this triable issue of material fact, the opinion stated: “We therefore have no occasion to address whether the trial court abused its discretion by denying B2B’s motion for reconsideration, in which B2B sought relief pursuant to section 473 of the Code of Civil Procedure.” In its section 473 motion, B2B had provided evidence on cost of completion damages, in the form of expert witness John Mitchell’s declaration, stating that Kshema’s work would have to be completely replaced based on systemic and pervasive flaws, at a cost Mitchell estimated to be more than $1 million.
The trial court erroneously found that the B2B1 opinion found the “sole” triable issue as to B2B’s damages was investment agreement damages. Such a finding, moreover, is not “law of the case.” The law of the case doctrine “ ‘deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491, italics omitted.) The B2B1 opinion did not constitute law of the case for two reasons. First, “the doctrine applies exclusively to issues of law, and not those of fact.” (Cooper v. County of Los Angeles (1977) 69 Cal.App.3d 529, 536.) Here the B2B1 opinion held that a triable issue of fact existed as to one category of damages, and thus the B2B1 opinion did not state a rule of law. Second, the law of the case doctrine applies only to questions which were presented to and determined by the Court of Appeal in the previous decision. (Estate of Horman (1971) 5 Cal.3d 62, 73; Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309.) Here the B2B1 opinion expressly made no determination of the existence or non-existence of a triable issue of fact as to cost of completion damages. Nothing in the B2B1 opinion prohibits a trial of that issue.
There is an additional reason why the B2B1 opinion cannot be construed to have determined that B2B could not seek to prove the second, cost-of-completion item of damages at trial. That is because the summary judgment statute allows the grant of summary adjudication only if it completely disposes of a cause of action. (Code Civ. Proc., § 437c, subd. (f)(1); DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 422.) This court’s holding that a triable issue of fact existed as to the first, investment-agreement item of damages precludes an interpretation that this court’s B2B1 opinion summarily adjudicated cost-of-completion damages.
It is true, as Kshema points out, that the B2B1 disposition reversed the grant of summary judgment/summary adjudication in favor of Kshema in part, and affirmed in part. The partial affirmance, however, reflected the affirmance of summary judgment on the conversion cause of action. The partial reversal reflected the B2B1 opinion’s reversal of the breach of contract and negligence causes of action. It did not reflect a holding that, on remand, B2B was precluded from a trial on two items of damages. On remand, although no trial of the conversion cause of action would occur, the B2B1 opinion did not restrict issues to be tried in the breach of contract and negligence causes of action. (Hall v. Superior Court (1955) 45 Cal.2d 377, 381.)
2. B2B Provided Evidence Creating a Triable Issue of Fact as to Investment Agreement Damages
B2B also claims on appeal that the trial court erroneously granted summary judgment on the issue of investment agreement damages.
Kshema’s second summary judgment motion argued that the investment agreement was terminated on January 8, 2002, and was never extended. (B2B disputed this date, because it was unclear whether the date of the letter terminating the investment agreement was January 8, 2002, or January 8, 2003.) It was undisputed that approximately a year earlier, Iraj and Hamed Yazdanpanah entered into a written investment agreement, which stated that upon delivery of a functional website, the Yazdanpanahs agreed to pay B2B $500,000 over a six-month period, to make annual salary payments, and to make certain bonus payments if B2B achieved specified annual revenue.
The B2B1 opinion had stated that Kshema had presented evidence that the investment agreement with the Yazdanpanah investors terminated before Kshema and B2B executed the contract at issue in this litigation, and that B2B responded with Kohan’s declaration that he had entered into an agreement with the parties to the investment agreement to extend time for B2B to perform. The B2B1 opinion stated that Kshema presented no evidence, such as declarations from the Yazdanpanahs, disputing the existence of the agreement to extend the investment agreement. Thus the B2B1 opinion found that B2B raised a triable issue of material fact that it sustained actual damages as a result of Kshema’s alleged breach of contract and negligence.
Following remand, Kshema deposed Hamed and Iraj Yazdanpanah. Kshema relied on Hamed’s testimony that after terminating his involvement in the investment agreement, he did not put any more money into that agreement. Hamed stated that he did not think he would invest money in the project, based on what had happened. Hamed also testified that after the January 8, 2002, termination, he never really thought about whether he was willing to comply with the terms of the investment agreement if B2B got the project started. Iraj said he signed the January 8, 2002, termination letter because Hamed gave it to him to sign; Hamed translated the letter for Iraj, who did not speak English. After signing, Iraj did not recall Hamed ever telling him that Kohan was still trying to launch his business. He recalled no other contracts with Kohan.
Because Hamed and Iraj Yazdanpanah share the same surname, for ease of reference they will be referred to by their first names. We mean no disrespect. (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303, fn 1.)
B2B’s opposition to the summary judgment motion provided a declaration of Theodore Kohan, B2B’s President. Kohan’s declaration stated: “In early January 2002 . . . it appeared my discussions with Kshema had reached an impasse and the contract would not go forward. When I advised Hamed and Iraj Yazdanpanah of this, Hamed advised that to protect himself and Iraj legally, he needed to have a written termination agreement. However, he and Iraj both told me at that time that they were willing to revive the Investment Agreement on the same terms should the project get back on track. Later in January 2002, Kshema and B2B did reach agreement on the Web Site Development Agreement and following this during early 2002 I had other conversations with Hamed and Iraj in which they repeated their willingness to do so. However, by mid to late 2002 it became clear that Kshema would not deliver on the contract, and from that point on the Yazdanpanahs and I did not have specific conversations about the Investment Agreement. Thus, there was a span of about 4-and-a-half years between my conversations with the Yazdanpanahs regarding the Investment Agreement and their depositions in January 2007.”
B2B’s opposition also provided a declaration of Hamed Yazdanpanah, stating that he and Iraj entered an investment agreement on January 25, 2001, to develop a website for B2B. After B2B first contracted with Tricon to develop the website, Tricon failed to deliver the website. In late 2001 or early 2002, Kohan informed Hamed that Kohan’s contract discussions with Kshema had fallen apart. Hamed advised Kohan that to protect himself and Iraj, he needed a written termination of the investment agreement. Hamed stated that although the date on the termination letter was January 8, 2002, he believed it was possible that the termination was actually dated January 8, 2003. Assuming that January 8, 2002, was the correct date, in the following months Kohan explained to Hamed that because of delays and problems with Kshema’s work, it became less likely that Kshema would ever produce the website. In 2002, Kohan told Hamed that Kshema would not deliver on the contract. Based on Kohan’s representations, Hamed did not believe the investment agreement had any future. Hamed, however, stated that his recollection of precise dates was not clear. He could not recall whether some or all of his conversations with Kohan occurred during the period of the Tricon problems or while B2B worked with Kshema, after the termination letter. Hamed’s declaration stated: “I was not deposed in this case until January 23, 2007, and up to that date I was never asked to, and never did, testify or otherwise document my recollection of these events. If Mr. Kohan says he recalls that I, on behalf of myself and my father, expressed that we were willing to continue under the terms of the Investment Agreement even after the termination letter was issued, then I have no reason to doubt him. It is entirely possible, and I simply do not have a precise recollection.”
Iraj’s declaration also stated that after he entered the investment agreement, Hamed and Kohan advised him what was happening with the project between 2000 and 2002. Iraj deferred to Hamed about what their continuing involvement should be. At some point, on Hamed’s advice, a termination letter was executed. Iraj stated: “I do not recall whether we specifically discussed or agreed to continue the Investment Agreement after the termination letter was signed. This was a long time ago and I would defer to Hamed’s and Mr. Kohan’s recollection of events. [¶] I was not deposed in this case until January 23, 2007, and up to that date I was never asked to, and never did, testify or otherwise document my recollection of these events. If Mr. Kohan says he recalls that I, on behalf of myself and my son, expressed that we were willing to continue under the terms of the Investment Agreement even after the termination letter was issued, then I have no reason to doubt him. It is entirely possible, and I simply do not have a precise recollection.”
Kohan’s declaration that even after the January 8, 2002, termination letter, Hamed and Iraj told him they were willing to revive the investment agreement on the same terms should the project get back on track creates a triable issue of fact concerning whether B2B sustained damages, in the form of investment funds lost because of Kshema’s alleged breach of contract and negligence in failing to develop and deliver a functioning website. Therefore, the grant of summary judgment should be reversed.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion; on remand, plaintiff Business to Business Markets, Inc. is entitled to present evidence of its damages arising from the termination of the investment agreement and from its cost to complete the website. Costs on appeal are awarded to plaintiff Business to Business Markets, Inc.
We concur: KLEIN, P. J., CROSKEY, J.