Appeal Court Reverses Decision, Sends Mail Boxes Etc. to Trial

Unfortunately it has a player that is on the disk that has to be installed in order to play it. We tried copying it to no avail. It won't let you copy the executeable file. Mine is on "loan" right now. Maybe Mr. McDonald the UPS lawyer that requested a copy will lend his to you???? LOL

Here is some of it Kitching: I think we’ll hear from respondents first. This is a great big summary judgment and the court granted it, and as we read the record of summary judgment not as summary adjudication of issues so that means that if there’s one triable of issue of fact in this whole record that the whole thing uh, should be reversed, and we’ve actually probably found forty or more triable issues of fact, and, I’ll just very briefly go over some of them with you, mmm Cause of Action #3 Intentional Interference with prospective economic advantage, uh, lost customer, there’s evidence that, from, Sen, uh, plaintiffs Sanford, Senoff and McDougal that they lost customers. Sanford, Mr Sanford had a declaration citing three instances of regualar patronage of the store by three named people when those people discon…discontinued patronage at the store, after, looking at advertisements saying they could obtain the same services for new lower prices at the UPS stores. Mr Sanford produced a list of 472 lost customers, who discontinued their patronage as a result of the Gold Shield program. Mr Senoff produced a list of customers names etc , now I know that the defendants say, well there are other reasons that these customers didn’t come to these stores, but that’s not for a court to decide on a summary judgment those, it seems to me are triable issues of fact. As to the 24th cause of action, breach of the franchise agreements, there is all kinds of evidence about this local creative marketing materials and what quality they were and how the quality according to the plaintiffs, changed and that they couldn’t any longer use these materials. That’s a triable issues of fact. I know defendants will say those were fine, but, plaintiffs are saying they’re not. There are triable issues of fact as to who controlled the N-M-F, and both sides have arguments as to who’s really controlling it…are they advising, are defendants in control of it, are they independent…those are triable issues of fact. We have issues about competition in the territories of the remaining Mail Boxes Etc. franchises, and there’s evidence that we have these drop boxes and the alliances and the ASO’s , and…those are triable issues of fact, whether those, uh, devises were competing With the Mail Boxes Etc people. Ummmm, as to the tortuous interference with contractual relations, uhh, the plaintiff alleges, uhh, that basically their franchises were without a business and defendant argues some kind of privelege, but I don’t believe privelege was alleged in the answer to the complaint and also that would be a triable issue of fact whether that kind of conduct was privelege. Priveledge is a question for the triar of fact under G H Kosc vs Mayer 224 Cal App 3rd at ..... So it seems to me that, this is a very big case and the parties see things veryyy differently, as to what happened and the plaintiffs have all kinds of evidence, all kinds of declarations. I left out the declarations of the experts who said they put these people out of business. Those are triable issues of fact. So, that’s our tentative view and I’ll hear from counsel. Another justice: If, If I might just add too, it was your burden in order to sustain a summary judgment, not only to negate these facts, but to establish that these facts under no circumstances could be established by the plaintiffs, and you failed to do that on this record. Justice Keatchin: so (nervous laughter in background) as I told counsel before, you have an uphill burden MoFo Atty: alright Other justice interrupts: to say the least MoFo Atty: (nervously laughing) I am a little bit daunted here , but.. (11:11:05) Justice Keatchin interrupts: Well, it you know, there are just too many disputed facts here. These people say you put us out of business, you did all these things to us, who knows who’s right but a court can not tell this on a summary judgment. MoFo: What I’d like to try and do if, I can attempt to persuade you back to my point of view is to focus on some of the issues where there may be disputes of fact. But, um, they don’t fall within the, uh, conduct governed by the contracts, so I’ll start, for example, um with Justice Keachin interrupts: you realize there only needs to be one? Ha ha Mofo: Well, I huh Other Justice: When you say, that’s right, when you say on some of the issues, umm, umm, the brief - briefing was extensive in this case, and both sides set out in some detail each of the issues, and discussed each of the issues, but it seems to me, as Justice Keatching said, if there was only 1 issue, since this was not a summary adjudication, MoFo: Well, uh, I, I understood the order to be a summary adjudication of each of the various judies and then ending in summary judgment because… Justice: Well, that’s it, but that, once you end in summary judgment then that assumes? Everything. Justice keatching: We looked at that because it was a little confusing what was going on but the court filed a summary judgment I believe. We can look at that again. But.. MoFo: So. Are are are Justice keathin: It seems to be given what I told you though, it’s easy to find 10 or 15 triable issues in each of the causes of action. MoFo: And and so is your suggestion that you would have to, if if you find one one breach of one contractual duty then the entire case goes back and you….. Other Justice: CORRECT Mofo: and and you don’t look at the other issues? Other Justice: CORRECT Justice Keathing: I think theoretically that’s true, but I am also telling you that I think if you look at each cause of action you can find 10 or 15 triable issues of fact. When these plaintiff’s are saying, I lost customers, when their expert comes in and said, they didn’t trade here because the advertising, because the whatever you look up on the computer, and they sent you to the wrong place and all that….those are clearly triable issues of fact MoFo: Well, on..on..that issue they they would have to show that there was uh wrongful conduct, um and they um, that that caused the interference with the customer relationship, and at the trial court they didn’t identify any wrongful conduct….On appeal now they are saying that it’s uh uh 17500 false advertising claim. Other justice: See but, but the burden is on you before the burden even shifts to them, to establish not only that there that all the conduct was lawful, but under no circumstances could they establish that there was wrongful conduct. MoFo: Well they acknowledge that the Korea Supply, uh, case requires them, to uh, to uh, as part of their case in chief plead and prove the unlawful violation. They can’t do that here because, uh, the the only unlawful advertising claims in the case were under 17200 Justice Keatchin: Well, but they could always amend their complaint. I, I don’t think that kind of technical argument is going to make it. I mean if they just didn’t allege it in their complaint, they can allege it in their complaint…..and I don’t know that they even have to allege it in their complaint MoFo: Well, but I.. Justice Keatching: You have to show they have no cause of action under any possibility under, or no case under any possibility under that cause of action. So like Justice Alldridge says, it’s YOUR burden, NOT theirs. MoFo: Well, but it’s also the the allegations of the complaint that determine what is material…. Justice Keatching: right..and… Mofo: for summary judgment Justice keating: right, and when you read the complaint you would say, well, that’s false advertising, that’s what they are alleging, and so again, I’m telling you that whether they put a number on it or not, they are alleging that. Mofo: But, uh uh uh, in the circumstances of this case they did have a false advertising claim under 17200, they had 2 claims under 17200, and the court granted summary adjudication of THOSE claims, and they didn’t appeal from that…so in in the circumstances of of Justice Keating: Ok Ok, I understand your argument, I just see this as a very technical argument. Mofo: Umm, I..I.. I (nervous laugh), I…I…I would like to..uhh..I…I.. realize you’re...your’re suggesting to me that anything that you find as a…as a factual issue, issue, is going to send the whole, whole case back, but I would really like to go by and talk about the different issues, um, and why there aren’t material disputes of fact. Justice Keathing: OK, tell me why there aren’t material issues—triable issues of fact as to whether they lost customers when they have experts saying they lost customers and they have the names of customers who say we didn’t go back there because we thought you were out of business, etc etc. MoFo: Well, I think, part of what they have, they have customers lists, and the customer lists, that that these are people that don’t come anymore Justice K: They have names of customers MoFo: And and, but there’s no link of the causation there. You, you need to Justice K: Well they have an expert who said the people don’t come because MoFo: Umm, he the expert, umm Stott, said they MAY not come, umm because of that. Ummm, but that’s, that’s just speculation, they don’t have, they, they didn’t have any, uhh, customer come in with anything other than, umm, conclusory, and and, one of their folks, umm, Mr Hilumberg, whose from Mr. McDougal, he came in and, and, and said…, umm, umm talked about, umm, what happened to him, when he became a customer in two thousand and four, umm, so that’s well after the advertisements at issue. Umm, so what we,what we said in our brief is if there are reasonable conclusions that that’s that can be decided as a matter of law and this court did that recently in the uh, uh, in the March,,in the umm, O’Brian case. You can, you can determine whether someone’s conclusions are reasonable, as a matter of law, it doesn’t necessarily present a question of fact, and what what, when you’ve got the ads, and umm, you know the ads say We’re becoming the UPS Store, we know that that’s in fact, umm true that 90% of the the stores uh converted immediately, umm, the others were, uhh, were going to be required by uhh MBE to convert at the end of their agreements, and for these 3 franchisees their agreements ended within a year, ummm, the tagline, same great service, um, we, we argued that that’s, um, a statement of opinion, umm they say that no that that’s a promise of exact same services from all the stores, but the statement, the mere statement same great service is a statement of opinion about the service and that’s value and opinion, so… Is that: Is that…

Understood Thanks

Of course the judge could have certified it. BUT HE THREW THAT PART OF THE CASE OUT TOO!! The appeals court had to reverse that ruling ALSO