Advantage Sales & Marketing LLC vs. Mering Global Limited

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# Case Name Tentative

1. 2023-1337813 Advantage Defendant Mering Global Limited’s (“Defendant”) Motion for Sales & Summary Judgment, on Plaintiff Advantage Sales & Marketing Marketing LLC’s (“Plaintiff”) Complaint for Express Contractual Indemnity, is LLC vs. granted. Mering Global Limited Procedural Issues The Court declines to rule on Defendant’s evidentiary objections (ROA 216), because they are not material to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

Legal Standard “A party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) Simply put, “[i]f a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment.” (Id. at 855.)

A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the material allegations of the plaintiff’s complaint. (Huntsman-West Foundation v. Smith (2024) 104 Cal.App.5th 1117, 1132 [“Because summary judgment is defined by the material allegations in the pleadings, we first look to the pleadings to identify the elements of the causes of action for which relief is sought”].)

Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar, supra, 25 Cal.4th at p. 850.) To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v.

Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.) “If a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility or for want of crossexamination of witnesses furnishing affidavits or declarations in support of the summary judgment,....” (Code Civ. Proc., § 437c, subd. (e).) In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at 843.)

Express Contractual Indemnity “Indemnity is ‘the obligation resting on one party to make good a loss or damage another party has incurred.’” (First American Title Ins. Co. v. Spanish Inn, Inc. (2015) 239 Cal.App.4th 598, 603, citing McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal.App.4th 1528, 1536.) “A claim for contractual indemnity is akin to a claim for breach of contract.” (Gumarang v. Braemer on Raymond, LLC (2025) 110 Cal.App.5th 370, 382.) The plaintiff must show: “(1) the existence of an agreement containing a contractual indemnity provision; (2) the indemnitee’s performance of the relevant provisions of the agreement; (3) a loss within the meaning of the indemnity agreement; and (4) damages sustained as a result of the breach of the indemnity agreement.” (Ibid.; see also First American Title Ins.

Co. v. Spanish Inn, Inc. (2015) 239 Cal.App.4th 598, 603.)

Here, Defendant contends it is entitled to summary judgment on the sole cause of action for express indemnity, because “there is no contract between the parties for indemnity regarding the production of GM Candles.” The claim “is based on a Production Agreement between the parties”; however, “the production of GM Candles is not part of the Production Agreement.” (ROA 186 [Mot. at p. 5].) The Court agrees that the indemnity provision in the Production Agreement cannot be construed to encompass the candles at issue.

Generally, the construction and interpretation of contract terms are a matter of law for the court to determine. (Oakland-Alameda County Coliseum Authority v. Golden State Warriors, LLC (2020) 53 Cal.App.5th 807, 818–819; Civ. Code, § 1638.) “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.” (Civ. Code, § 1639.)

It is undisputed, here, that Plaintiff’s claim is based on the indemnity provision in the Production Agreement, which allegedly covers the “defective candles.” (Compl. at ¶¶ 6-7, Exh. 1; ROA 208 [UF no. 1].) The Production Agreement states, in relevant part, that:

THIS PRODUCTION AGREEMENT (this “Agreement”) is made and entered into as of 26th May 2021, by and between Advantage Sales & Marketing LLC d/b/a Advantage Solutions, a California limited liability company (“Company”), the one hand; and Mering Global Limited, a Hong Kong Company (“Vendor”), on the other hand....

WHEREAS, Vendor is in the business of product manufacturing; and

WHEREAS, Company desires to retain Vendor to produce certain Products for Company, in the quantity, price, and to the specifications set forth in this Agreement (the “Products”).... (Production Agreement at p. 1, Recitals, emphasis added.)

Under “Scope of Agreement,” the agreement provides:

a. Products, Deliverables, Schedule and Fees. Company hereby retains Vendor to purchase, and Vendor hereby agrees to provide to Company, the Products specifically set forth in one or more Scope of Work (‘SOW’) documents attached to this Agreement and incorporated herein by this reference, upon the terms and conditions hereinafter set forth. Said SOW(s) describe(s) (i) the Products to be produced and supplied by Vendor; and (ii) the fees to be paid by Company.... (Production Agreement at p. 1, § 1.a., emphasis in original.)

The “Indemnification” provision at issue states, in relevant part, that:

Vendor shall defend, indemnify and hold harmless Company ... from and against all actions, causes of action, liabilities, claims, suits, judgments, liens, awards, damages, costs and expenses of any kind and nature whatsoever . . . arising out of or in any way related to any act or omission of Vendor ... in connection with the performance under this Agreement including without limitation, any inaccuracy or breach of any representation, warranty or obligation of Vendor under this Agreement; ...; products and/or other product related materials and/or goods supplied in connection with this Agreement, including but not limited to, any defect in merchandise, or the purpose or use of any product manufactured, produced, or distributed by Vendor...” (Production Agreement at p. 4 § 10, emphasis added.)

Lastly, under section 20, entitled “Entire Agreement,” it states:

This Agreement together with any SOW(s) attached hereto constitutes the entire agreement between Company and Vendor with respect to the subject hereof, and fully supersedes any prior agreements or understandings with respect thereto. No provision of this Agreement shall be deemed, waived, amended or modified by any Party, unless in writing and signed by the Parties hereto. ((Production Agreement at p. 6 § 20.)

The Court construes these terms and finds, as a matter of law, the Production Agreement is “clear and explicit” as to the products covered by the Indemnity Provision. It is an undisputed fact that “there is no Scope of Work document for the production of GM Candles.” (ROA 208 [UF no. 208].) Thus, under the plain and unambiguous language of the written Production Agreement, the candles are not within the “Scope of the Agreement”; nor are the candles one of the products “supplied in connection with this Agreement” under the indemnity provision. Consequently, Defendant has made a prima facie case that the indemnity provision in the Production Agreement does not apply to the allegedly defective candles in dispute.

The burden shifts to Plaintiff to show there is a triable issue of fact. Plaintiff’s primary argument is that Defendant’s principal purportedly failed to “disavow the application of the Agreement to the transaction involving the Candles but seeks relief thereunder as part of its cross-complaint for alleged conduct under the same transaction.” Plaintiff argues Defendant’s principal “calls the

statement in [its] own cross-complaint a ‘false statement,’ despite the fact that he simply cannot identify any other agreement between the parties and acknowledges that the purchase order for the Candles came less than two months after execution of the Agreement.” Defendant’s principal also allegedly “dodged the question” when “pressed for an explanation as to why the alleged lack of applicability of the Agreement was not raised years ago.” (Opp’n at p. 5.)

Plaintiff’s argument misses the mark, because the terms of the contract, as a matter of law, do not show any ambiguity which would allow the Court to introduce extrinsic evidence that the parties intended for the Production Agreement to apply to the candles. And, in any event, the aforementioned testimony does not show any ambiguity from which the Court construe the agreement to apply to the candles. Plaintiff’s attack on the credibility of the deposition testimony of Defendant’s principal is not well-taken, because “summary judgment shall not be denied on grounds of credibility” if “a party is otherwise entitled to summary judgment.” (Code Civ.

Proc., § 437c, subd. (e).) It is not enough for Plaintiff to merely attack the credibility of Defendant’s principal’s testimony. Rather, the burden shifted to Plaintiff to “present substantial and admissible evidence creating a triable issue” of fact. Plaintiff failed to do so.

The Court notes that Plaintiff also argued in its opposing separate statement (but not in its memorandum) that the scope of the agreement purportedly “does not limit the separate, broad indemnity provision, which applies to any product ‘manufactured, produced, or distributed by’ Defendant ‘in connection with’ the Agreement.” (“DF” no. 2.) The Court rejects this interpretation of the indemnity provision, because the language simply does not lend itself to such an interpretation. Further, such an interpretation would require the Court to disregard the express language under the Scope of the Agreement. (Civ. Code, § 1641.)

Lastly, Plaintiff argues that the indemnity provision in the Production Agreement encompasses the candles, because of the purported judicial admissions in the Cross-Complaint. (Opp’n at p. 5, fn. 3, citing Cross-Compl. at ¶¶ 12-14.) As further explained in the 04/29/26 Minute Order, the Court disagrees with Plaintiff’s contention that Defendant made any unequivocal admissions that the candles were, in fact, covered by the Scope of Work documents, or that the indemnity provision applied to the candles. (See ROA 180.)

In conclusion, based on the evidence presented, the Court finds: the Production Agreement is an expression of the parties’ final intent;

the terms of the Production Agreement are clear and ambiguous with respect the products covered by the agreement; the candles are not one of the products “specifically set forth in one or more Scope of Work (‘SOW’) documents”; and, the indemnity provision does not encompass the candles.

Accordingly, there is no triable issue of fact and Defendant is entitled to summary judgment on the Complaint.

Defendant shall give notice of the ruling.

2. 2025-1459954 Plaintiff Zahra Azadnia’s Motion to Set Aside Order Dismissing the Azadnia vs. KC Case is granted. Wilson & Associates LLC Plaintiff moves under the mandatory provision of CCP section 473(b), for relief to set aside the dismissal and to restore this case to the active calendar, due to attorney fault. CCP section 473, subdivision (b), provides in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ.

Proc., § 473, subd. (b).) Mandatory relief is available, “whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, [the court shall] vacate any . . . (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ.

Proc. § 473, subd. (b).) Relief is mandatory when a complying affidavit is filed, even if the attorney’s neglect was inexcusable. (Metro. Serv. Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487.)

Here, the Court finds Plaintiff is entitled to relief under the mandatory provision of CCP section 473(b). Plaintiff’s counsel has admitted fault for the dismissal and has supported the application with a declaration attesting to the same. (ROA 52, 54.) Specifically, Plaintiff’s counsel, Pasha Vafaei, attests that the OSC was missed due to the handling attorney leaving the firm prior to the OSC hearing date and not properly calendaring the OSC hearing date. Mr. Vafaei further attests that he was “surprised and concerted” when he received the Court’s minute order dismissal the case, and apologizes for the oversight. (Vafaei Decl. at ¶¶ 2-4, 7.)

The Clerk is directed to vacate the dismissal, without prejudice, entered on April 7, 2026 (ROA 48).