Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC 320006, Gregory W. Alarcon, Judge.
William R. Kennon for Defendant and Appellant.
Gallagher & Kennedy and David W. Lunn for Plaintiff and Respondent.
WOODS, J.
Defendant Diversified Product Industries, Ltd. (DPI) appeals from the judgment entered in favor of plaintiff FNF Construction, Inc. (FNF) after the court granted summary “judgment” on FNF’s cause of action for unjust enrichment and on DPI’s cross-complaint. Defendant contends that the court ignored evidence of a triable issue and that the declaration of Jack Pryor, the president and CEO of DPI, established a triable issue. We reverse and remand.
FACTUAL AND PROCEDURAL SYNOPSIS
On November 20, 2003, FNF and DPI entered into a purchase order agreement relating to FNF’s acquisition of various steel products (the material) from DPI. On December 15, DPI submitted invoice 88-1250 to FNF in the amount of $233,177.50 for payment of the material. Later that day, DPI submitted invoices 88-1251 and 88-1250R1 to FNF with a combined total of $219,220.36 also for payment of the material.
DPI sold large steel beams to FNF. The steel beams are used as “falsework” or temporary structures under bridges as they are being built to hold up the emerging bridge as concrete is poured and dries to a point where the bridge can support its own weight. Once the bridge is completed, the steel beams are removed and sold to other companies with a similar need. DPI brokers the sale of such steel beams.
On January 4, 2004, FNF remitted payment via wire transfer to DPI in the amount of $219,220.36 for satisfaction of invoices 88-1251 and 88-1250R1. The wire transfer fully satisfied the amount FNF owed for the material. Because the wire transfer was outside its ordinary payment practices, on January 21, FNF remitted payment by check in the amount of $218,713.95 in satisfaction of the first invoice (88-1250). When FNF made payment by check, it did not realize it had previously paid DPI for the material via the wire transfer. DPI accepted and processed the check even though FNF had already paid in full for the material.
In early April 2004, FNF discovered it had paid DPI twice for the material. DPI acknowledged that FNF’s payment by check was not owed to it because FNF had already paid for the material. Instead of returning the overpayment, DPI advised FNF it did not have sufficient funds to pay FNF and requested FNF work with it in an attempt to find a solution. FNF discussed repayment options with DPI.
DPI informed FNF it would obtain a loan to repay the balance it owed. FNF agreed to cooperate in that effort. DPI soon reneged on its promise by terminating its efforts to obtain financing.
FNF filed a complaint alleging causes of action for breach of contract, breach of the covenant of good faith and fair dealing and unjust enrichment/restitution. DPI answered and filed a cross-complaint alleging breach of an oral agreement and four other causes of action.
The cross-complaint alleged DPI and FNF entered into an oral agreement for the purpose of resolving the debt owed to FNF as a result of FNF’s inadvertent overpayment of certain invoices:
“The parties . . . agreed that [DPI] would pay [FNF] the sum of Forty Thousand Dollars . . ., and provide services to [FNF] in arranging and facilitating the sale to third parties of certain used steel owned by [FNF], which had been used temporarily as ‘falsework’ in [FNF’s] construction of certain freeway bridges. It was agreed that the proceeds of the sales would be paid to [FNF], until the amount of twenty cents per pound was paid, and that any balance received from the sales exceeding such amount would also be paid to [FNF], until the balance of the preexisting debt was paid, with any further proceeds of the sales payable to [DPI].”
FNF filed a motion for summary judgment/summary adjudication. FNF adduced evidence disputing DPI’s claim the parties had reached an agreement with regard to how DPI would repay FNF. The superior court found that DPI received the benefit of FNF’s overpayment and retained that benefit at FNF’s expense and that although the parties attempted to arrange for an alternative method of compensation, both agreed that none was accomplished. The court then granted summary judgment in favor of FNF on the cause of action for unjust enrichment and on DPI’s cross-complaint. FNF dismissed its other causes of action, and the court entered judgment in favor of FNF.
At this point, it was actually summary adjudication. (Code Civ. Proc., § 437c, subd. (f)(1).)
DPI filed a timely notice of appeal from the judgment.
DISCUSSION
“We determine de novo whether a triable issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877.)
The court entered judgment in favor of FNF on its cause of action for unjust enrichment/restitution. “An individual is required to make restitution if he or she is unjustly enriched at the expense of another. A person is enriched if the person receives a benefit at another’s expense. Benefit means any type of advantage.” (Citations omitted.) (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662.)
In denying summary adjudication on the breach of contract cause of action, the court stated not returning the overpayment was a breach of contract, but then indicated DPI might have a valid defense in that it was “financially unable to repay the overpayment when it was discovered, and the parties attempted to negotiate an alternative agreement to compensate FNF. . . . [DPI] contends that an alternative agreement was never reached because of FNF’s actions.” With regard to the unjust enrichment cause of action the court found: “Although there is a triable issue as to whether the parties attempted to arrange for an alternative method of compensation, both agree none was accomplished. Thus [DPI] received the benefit of the overpayment, and it has retained that benefit at FNF’s expense.”
DPI contends that because the court found a triable issue, it should have denied the summary judgment motion in its entirety as the oral agreement resolved all the issues between the parties, was a defense to all FNF’s causes of action and supported DPI’s cross-complaint. The court’s statement that there was a triable issue as to whether the parties tried to reach agreement about an alternative method of payment but the parties agree no alternative method was reached is rather confusing. It appears to us that the parties agree they tried to reach an agreement, but disagree as to whether an agreement was reached. Thus, the issue presented is whether there is a triable issue as to whether an oral agreement about the alternative method of payment was reached.
DPI notes that Jack Pryor, its president, met with Mark Stucki, FNF’s senior vice president, and “[p]ossible solutions were discussed and an oral agreement was made” and that Pryor’s declaration sets out the essential terms of the agreement. However, on appeal DPI does not expressly describe what the terms of that agreement were.
DPI’s responsive statement of facts included the following facts relating to an oral agreement: “The agreement between DPI and FNF to resolve the inadvertent overpayment of FNF contemplated that DPI broker all of FNF’s available steel, most of which had just been purchased by them from DPI, and it was further agreed that the price to third parties would be in excess of 20 [cents] per pound. DPI agreed to sell for the highest price possible, in the shortest reasonable time period, and FNF agreed to credit DPI for all amounts received from the sale which exceeded 20 [cents] per pound”; and “The essence of the agreement . . . was that FNF would authorize DPI to broker their steel immediately, with all money received above 20 [cents] per pound going to reduce the overpayment obligation. All monies from the sales of steel would be paid directly to FNF until the overpayment was satisfied, with credit to DPI for the $40,000.00 to be paid in cash from DPI to FNF.” As evidentiary support for the oral agreement, DPI cites to Pryor’s 93-page deposition and his 8-page declaration without providing any exact page citations.
The superior court noted DPI had failed to provide sufficiently detailed references to its supporting documents. Although section 437c, subdivision (b)(3) of the Code of Civil Procedure directs that all disputed material facts “shall be followed by a reference to the supporting evidence,” such a general citation is not adequate. (Cf. Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.)
In Pryor’s declaration, he stated that in April 2004, he discussed FNF’s overpayment with Stucki. Pryor informed Stucki that DPI did not have the ability to repay the amount at that time, and the men discussed alternatives. Over a period of a few days, Pryor and Stucki discussed prices, amounts of steel and opportunities for quick resale. Pryor claims that he and Stucki “came to an understanding” that “if DPI would immediately pay FNF the sum of $40,000.00, they would agree to allow DPI to broker their available steel, remitting the DPI profit to them to eliminate or reduce substantially the balance, and continue doing so until the balance was eliminated.” Pryor states that the only issue not agreed upon was the price to be paid to FNF for the steel and that the parties agreed the next day that the price should be 20 cents per pound.
On April 26, FNF sent DPI a 5-page letter memorializing its understanding of the acknowledgments and agreements between FNF and DPI. The letter contained additional terms such as DPI agreed to sign a promissory note to FNF and Pryor agreed to personally guarantee repayment of the principal.
In finding the parties agreed no alternative agreement was reached, the court referred to paragraph 23 of Pryor’s declaration which stated: “The document [the April 26 letter] presented by Mr. Gully was not an accurate reflection of the oral agreement DPI reached in the negotiations with Mr. Stuki and the President of FNF. Not only were the essential terms missing, but many onerous terms never mentioned whatsoever had been included. The document simply did not reflect the mutual understanding and intent expressed between Mr. Stuki and myself on behalf of our respective companies.”
Pryor sent a responsive letter to FNF’s letter on May 10 referring to the “agreement which our companies have already agreed upon” and his already having sent the $40,000 to FNF. On May 11, FNF wrote it would continue to work with DPI to sell its steel “providing the overpayment is resolved correctly” and further stated it would take legal action if DPI did not reconcile the overpayment within the next 48 hours.
The court noted that the only evidence of an oral agreement was the declaration of Jack Pryor. The court stated that evidence was insufficient to establish a triable issue of fact. DPI argues the court improperly weighed the evidence. (See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1383.) DPI asserts the court’s statement that DPI contended an agreement was never reached is inconsistent with DPI’s position that the oral agreement was reached but it was never reduced to writing due to demands by FNF to include language not agreed upon.
Even if we were to view the court’s statement as sustaining its own objection to the declaration, it gave no basis for such a ruling.
Citing Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120, FNF argues Pryor’s declaration was insufficient to establish a triable issue as it was based on opinion and conclusions instead of evidentiary facts. Whether the parties agreed to resolve the overpayment under the terms Pryor claims they agreed to is a fact question. Despite minimal efforts by DPI to create a triable issue of material fact or describe the alleged oral agreement on appeal, Pryor’s declaration and his May 10 letter are sufficient to do so as a trier of fact might reasonably believe the parties entered such a “handshake” agreement. (See Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 877.)
FNF further suggests if the parties had entered into such an oral agreement it would be barred by the statute of frauds, as it was a contract for the sale of goods for the price of $500 or more. (Com. Code, § 2201.) The alleged oral agreement was to resolve a debt; it was not a contract for the sale of goods.
Accordingly, summary judgment was improperly granted.
DISPOSITION
The judgment is reversed and the matter is remanded to the superior court with directions to enter a new and different order denying FNF’s summary judgment motion. Each side to bear its own costs on appeal.
We concur: PERLUSS, P.J., ZELON, J.