Alumistar Inc. v. National Thermal Processing, Inc.

complained that the components should have been oriented differently while being treated. (Thayer Decl., ¶10.) National further argues that it used the same treatment process (same oven, same temperature, same components) on other parts provided by Plaintiff during the same period without any issues. (Thayer Decl., ¶11.) And, National has not received complaints from other customers from the relevant time period despite using the same ovens and procedures used on Plaintiff’s components. (Thayer Decl., ¶12.)

In general, “[a] claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc., § 481.190.) Here, Plaintiff’s declaration fails to set forth with “particularity” the facts to establish the probable validity of its claim. (Code Civ. Proc., § 482.040.)

Plaintiff’s claim is based on its sending components to National under purchase orders that required certain heat-treatments be applied to the parts. he only evidence provided by Plaintiff that National improperly heat-treated the components at issue is Lake’s conclusory statements that National failed to provide the proper heat treatments pursuant to the purchase orders. Plaintiff provides no underlying factual evidence to show that the heat-treatments requested in the purchase orders were not applied or how the treatment that was applied damaged the components. Although stating there was “physical damage to the components” that made them “non-salvageable,” there is no evidence that this damage was the result of the heattreatment.

Readily Ascertainable Damages – National also argues that Plaintiff failed to meet its burden to show that its damages are fixed or readily ascertainable. National asserts that Plaintiff fails to provide support for its damage calculation and it cannot be ascertained if the claimed amount represents actual loss, anticipated profits, customer billing, or something else.

“It is a well-recognized rule of law in this state that an attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite.” (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 540.) “But the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof.” (Ibid.)

Here, Plaintiff has not met its burden to show that its damages are “readily ascertainable”: The purchase orders contain quantities, component numbers, and job numbers; no pricing information is included in the orders. Thus, the purchase orders by themselves provide no standard by which the amount of damages may be clearly calculated. Plaintiff does not refer to the orders in calculating its damages. Instead, Plaintiff states that it “analyzed the damages” to the components and then “technically calculated the value of damages based on” how far along the component was in the manufacturing process. (Lake Decl., ¶8.)

Further, Plaintiff provided “invoices” to National reflecting the damages claimed, but these documents were sent after the fact; are not contracts between the parties; and do not adequately explain how the prices were determined.

Furthermore, Plaintiff appears to include improper items in its damage calculation. Plaintiff seeks to recover both the replacement cost of each component, as well as the amount its customers would have paid to Plaintiff for the component. Plaintiff also includes attorneys’ fees in its calculations which are not provided for in the purchase orders.

In all, it does not appear that damages are readily ascertainable. *** *** ***

11. Avedian v. Citizens Business Bank, et al, Case No. CIVSB2133301 Defendant’s Motion to Confirm Arbitration Award 6/24/26, 9:00 a.m., Dept. S-17 Tentative Ruling

The Court would GRANT this unopposed motion.

Case Summary

This is a wage-and-hour class and representative action. Plaintiff originally filed on December 7, 2021, alleging violations related to (1) payment of minimum wages; (2) payment of overtime wages; (3) meal periods; (4) rest breaks; (5) wage statements; (6) paycheck deductions; (7) wage timeliness; (8) final pay; as well as (9) violation of the unfair competition law. The complaint alleged a class of hourly, non-exempt employees working as service representatives, tellers, and related positions. On April 26, 2022, Plaintiff filed a First Amended Complaint (FAC) to add a cause of action for civil penalties pursuant to the Private Attorneys General Act (PAGA).

Relevant here, on October 13, 2022, this Court, under Judge David Cohn, stayed the PAGA claim and ordered the remaining individual causes to arbitration. (Tentative, Oct. 13, 2022.) At arbitration, Defendant brought – and prevailed on – a motion for summary judgment on the underlying individual wage-and-hour claims, as well as the unfair competition law claims that was underpinned by the allege wage-and-hour violations. Thus, the arbitrator held that causes of action 1 through 9 were not established, and she issued a Final Award to that effect. (See Motion, Attachment 8(c).)

Analysis

While Plaintiff has submitted a “response” to the motion, the motion is unopposed. (See Response 2:3 [“Plaintiff will not attempt to oppose . . .”].) A failure to oppose a motion may be