Filed 8/17/26 Jackson v. Livento Group CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
BRYON JACKSON, Plaintiff and Appellant,
A174416
v. LIVENTO GROUP, LLC, et al., (Alameda County Super. Ct. No. 24CV061831)
Defendants and Respondents.
The trial court granted summary judgment in favor of defendants Livento Group, LLC and David Stybr on plaintiff Bryon Jackson’s complaint for breach of contract. Plaintiff appeals, contending the court misapplied the summary judgment standard, excluded admissible evidence that demonstrated the existence of triable issues of material fact, and failed to apply the public policy favoring resolution on the merits over procedural technicalities. We conclude plaintiff’s effort to demonstrate error falls short, both because he supplies an inadequate record on appeal and because he ignores the primary bases for the court’s decision, i.e., his failures to submit a requisite separate statement and authenticated evidence with his opposition papers. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND In January 2024, plaintiff filed a complaint against defendants alleging a single cause of action for breach of contract. The complaint alleged that
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defendants hired plaintiff to work a minimum of 20 hours per week for one year at $125 per hour and that plaintiff worked all year and billed defendants. Defendants, however, paid plaintiff a total sum of only $37,500 and refused to pay the balance of $92,500. The complaint sought damages of $92,500 and attorney fees in the amount of $5,000. Plaintiff attached a copy of the alleged contract to the complaint.1 On May 23, 2025, defendants moved for summary judgment, contending the undisputed facts established that plaintiff only partially performed under the contract, and that he did so below industry standards before inexplicably stopping altogether. Specifically, defendants argued that plaintiff either completely stopped working after he was paid $37,500 or stopped reporting his work to the company. Though acknowledging plaintiff’s severance was not formally documented, defendants provided him with company “shares in lieu of cash” as a bonus two months after he stopped working “to part ways amicably.” Defendants further argued that Stybr, Livento’s chief executive officer, was not a party to the contract at issue.
In support of their motion, defendants submitted excerpts from plaintiff’s deposition and Stybr’s declaration. According to the trial court’s summary of the evidence,2 plaintiff testified during his deposition that he did not have or recall having physical or electronic documents relating to his work under the contract. Additionally, Stybr stated in his declaration that “[a]ny services [Plaintiff] claims to have performed for [Livento] after receipt of payment, were not actually performed and/or not actually received by
1 The record indicates defendants did not dispute that plaintiff and Livento entered into this contract. 2 We rely on the trial court’s summary of the evidence because the record on appeal does not include the evidence submitted in support of the motion.
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[Livento].” Based on this evidence, the trial court concluded defendants met their initial burden of showing no triable issue of material fact.
Plaintiff filed an opposition brief contending he provided services “in the total amount of $130,000.00, including assistance with SEC Form l0, Form 10-Q, and registration statements.” Plaintiff argued defendants breached the contract by paying him only $23,188.49 and failing to pay for $106,811.51 worth of services.3 (Boldface omitted.) Plaintiff further argued that defendants improperly terminated the contract and remained obligated to compensate him for work performed prior to termination. Alternatively, plaintiff argued he is entitled to compensation under the doctrine of quantum meruit for the reasonable value of services provided.
On August 1, 2025, the trial court continued the summary judgment motion to September 18. The court found plaintiff’s opposition brief was “procedurally defective” because it failed “to include a separate statement or any evidence” as required by rule 3.1350 of the California Rules of Court and Code of Civil Procedure section 437c, subdivision (b)(2), (3), both of which the court expressly cited. The court ordered plaintiff to file and serve codecompliant opposition papers “no later than August 29, 2025.” Plaintiff did not do so.
On September 8, 2025, defendants submitted a reply memorandum arguing that the motion was “unopposed” and that plaintiff had no evidence to prove breach of a contract. The following day, plaintiff filed a “supplemental response” in which he argued there were factual disputes about his performance and claimed he “already filed admissible evidence
3 Plaintiff did not explain why these figures differed from those alleged in the complaint.
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including the Consulting Agreement, invoices, and payment records.”4 Plaintiff further argued that defendants’ attempt to issue “shares in lieu of cash” without his agreement constituted a breach of their contract. Once again, plaintiff did not include the required separate statement or authenticated evidence in his belated filing.
On September 15, 2025, the trial court issued its tentative ruling granting defendants’ motion for summary judgment. Although the record indicates there was “no timely contest” to the tentative ruling, the record on appeal includes minutes of a hearing that took place on September 18, 2025. The record, however, does not include a reporter’s transcript of the hearing.
On September 18, the trial court issued a written order adopting the tentative ruling. In sum, the court found that defendants met their initial burden of establishing plaintiff’s nonperformance under the contract, and that plaintiff failed to meet his burden to show the existence of a triable issue of material fact. As the court explained, plaintiff’s first opposition brief and “supplemental response” did not include a separate statement or admissible evidence. Though plaintiff made reference to “the agreement, invoices, and payment records,” he did not “include authenticated copies of such documents,” and his claim of substantial performance under the contract was likewise “unsupported by admissible evidence.” As such, the court deemed the facts stated in defendants’ separate statement “effectively undisputed.”
One day after the hearing, plaintiff filed a “Response and Opposition to Tentative Ruling on Summary Judgment” arguing the court’s ruling was based on “procedural technicalities” and “disregarded substantial evidence.”
4 The record does not bear out plaintiff’s claim that he had “already” filed the identified evidence (other than a copy of the contract attached to the complaint).
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(Capitalization and boldface omitted.) In addition to attaching a copy of the alleged contract (the authenticity of which does not appear disputed), plaintiff provided unauthenticated copies of weekly timesheets and bank statements to support his claim that 95 percent of the daily work he performed was verbal, not “file-based,” and constituted valid performance under the contract. Plaintiff requested leave to cure the technical deficiencies in his prior filings on the grounds that “critical evidence of his work was lost when Defendants unilaterally terminated Plaintiff’s company email account immediately upon ending the contract. This spoliation of evidence by Defendants deprived Plaintiff of access to his electronic records.” Additionally, plaintiff requested a continuance to allow him “to resubmit a compliant opposition with authenticated evidence.” The record reflects the late submission was filed, but there appears no indication whether the court considered it.
Plaintiff filed a notice of appeal, identifying the trial court’s September 18, 2025, order granting summary judgment. The judgment in favor of defendants was subsequently entered on October 13, 2025. We treat the premature notice of appeal as having been filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(d)(2).)
DISCUSSION
A. Summary Judgment and Standard of Review Summary judgment is properly granted when the papers submitted show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)5 The motion must be supported by a separate statement setting forth all
5 All further unlabeled statutory references are to the Code of Civil Procedure.
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material facts the moving party contends are undisputed, and the opposition papers likewise must include a responsive separate statement stating agreement or disagreement as to whether the facts set forth in the moving separate statement are undisputed. (Id., subd. (b)(1), (3).) “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Id., subd. (b)(3).)
Additionally, the motion must be supported by affidavits, declarations, and materials from discovery. (§ 437c, subd. (b)(1).) Where appropriate, the opposition papers must likewise consist of affidavits, declarations, and materials from discovery. (Id., subd. (b)(2).)
A defendant moving for summary judgment bears the initial burden of demonstrating “ ‘a cause of action has no merit’ ” by submitting evidence that shows one or more elements cannot be established. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253 (Nazir).) If the defendant meets that burden, the plaintiff then has the burden to show a triable issue exists, “supported by evidence of specific facts and not mere allegations of the pleadings.” (Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 160.)
We review a grant of summary judgment de novo, independently examining the whole record to determine “whether the moving and opposing papers show a triable issue of material fact.” (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.) In doing so, we “ ‘ “liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff['s] favor.” ’ ” (Nazir, supra, 178 Cal.App.4th at p. 254.)
B. Defendants’ Initial Burden We begin with an analysis of whether defendants met their initial burden to show the action had no merit, regardless of any shortcomings in
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the opposition papers. (See Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743 [where moving party fails to meet its burden, summary judgment must be denied despite lack of opposing declarations]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086 [even where summary judgment is based on lack of opposition separate statement, reviewing court must still determine whether the moving party met its initial burden].)
Here, plaintiff does not contend the trial court erred in determining that defendants met that burden. Nor does the record provided by plaintiff permit adequate review of defendants’ initial burden. “It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (Ballard).) “We cannot presume error from an incomplete record” (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412; see Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1), and it is not this court’s responsibility to obtain the documents necessary to consider a party’s arguments (State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1531, fn. 1; see Eagle Fire & Water Restoration, Inc. v. City of Dinuba (2024) 102 Cal.App.5th 448, 464 [appellant has burden to correct record with trial court or move to augment or correct record in appellate court]). Moreover, issues not addressed as error in an appellant’s opening brief, with legal analysis and citation to authority, are forfeited. (Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 786 (Golden Door).)
Forfeiture aside, the record provided by plaintiff does not include defendants’ separate statement or the evidence they submitted in support of their motion for summary judgment, i.e., the excerpts from plaintiff’s deposition transcript and Stybr’s declaration. As such, we cannot conclude
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defendants failed to meet their initial burden, and we will instead assume their burden was satisfied. (See In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978 [reviewing court presumes correctness].) We turn to assess whether plaintiff met his burden to show the existence of a triable issue of material fact.
C. Plaintiff’s Burden 1. Procedural Defects in Plaintiff’s Opposition Papers Critically, plaintiff's opening brief contains no argument specifically addressing the procedural deficiencies that impelled the trial court’s ruling. Because plaintiff does not address these issues with cogent legal argument, he forfeits them on appeal. (Golden Door, supra, 53 Cal.App.5th at p. 786.)
Furthermore, and in any event, we see no error by the trial court. (See Ballard, supra, 41 Cal.3d at p. 574 [error must be affirmatively shown].) When a party opposing summary judgment fails to include a separate statement, a trial court is well within its discretion to grant the motion. (§ 437c, subd. (b)(3).) Without a separate statement referencing “supporting evidence in the form of affidavits or declarations, it is impossible for the plaintiff to demonstrate the existence of disputed facts.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
Here, the trial court overlooked plaintiff’s initial noncompliance with the separate statement requirement. Indeed, the court continued the hearing on the motion to give plaintiff an opportunity to cure the deficiencies and expressly cited the applicable California Rules of Court and Code of Civil Procedure sections that set forth the procedural requirements for the opposition. After failing to meet the extended deadline, plaintiff submitted a “supplemental response” that again omitted a separate statement. (See § 437c, subd. (b)(2); Cal. Rules of Court, rule 3.1350(e), (f), (h).) On this
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record, we see no abuse of discretion by the court in granting summary judgment. (See § 437c, subd. (b)(3).)
Additionally, our independent review of the record confirms that, as the trial court found, plaintiff’s opposition filings did not offer “any evidence, admissible or otherwise.”6 It was not until the day after the hearing on the summary judgment motion that plaintiff submitted 35 pages of documentary records, consisting of the parties’ alleged contract and various bank statements and timesheets. Even if defendants did not dispute that plaintiff and Livento entered into the alleged contract, plaintiff provided no authentication of the other records that supposedly supported his allegations of contractual breach. (Evid. Code, § 1401 [“Authentication of a writing is required before it may be received in evidence.”]; see § 437c, subds. (b)(2) [opposition shall consist of affidavits, declarations, and discovery materials], (d) [supporting and opposing declarations “shall be made by a person on personal knowledge”].) The proponent of a piece of evidence can meet the burden of authentication “when sufficient evidence has been produced to sustain a finding that the document is what it purports to be.” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321; see § 2015.5 [requirements for declarations].) But because plaintiff did not produce such evidence, his belated, unauthenticated filings were insufficient to raise a triable issue of material fact with regard to his breach of contract claim.
2. Remaining Arguments Plaintiff’s remaining arguments likewise offer no basis for relief. As set forth below, they either fail to demonstrate error or are unrelated to whether summary judgment was properly granted.
6 See footnote 4, ante.
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Plaintiff contends the trial court misapplied the summary judgment standard and ignored triable issues of fact. We disagree for the reasons already set forth.
Plaintiff further claims that, in the proceedings below, he “raised service defects that were not properly addressed. Due process requires notice and opportunity to be heard.” A review of the record, however, shows plaintiff never raised any service issues in the trial court; nor did he claim he was prejudiced by any inadequate notice. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 698 [plaintiff waived inadequate notice of summary judgment motion because he “never claimed he did not have adequate time to prepare a response, appeared at the hearing, argued the merits, never requested a continuance, and never claimed he was prejudiced by the defective service or inadequate notice of hearing.”].) We deem the issue forfeited. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591–592.)
On the topic of evidentiary exclusion, plaintiff argues the trial court’s exclusion and disregard of his evidence was improper under Evidence Code section 1271, the business records exception to the hearsay rule. This argument is wholly misplaced, as the court did not exclude any evidence on hearsay grounds. Rather, the court’s ruling was based on the lack of a separate statement and authenticated evidence.
Relatedly, plaintiff contends defendants’ act of restricting access to his company email account after the contract ended amounted to “spoliation of evidence.” He is mistaken. Spoliation of evidence is “the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.) Nothing in the record suggests defendants destroyed or altered evidence. Nor does plaintiff argue or demonstrate that
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he could not have obtained the necessary records through the discovery process. (See §§ 2031–2031.1 [inspection demands].)
Finally, plaintiff argues the trial court failed to apply the public policy favoring resolution on the merits over “procedural technicalities.” But plaintiff’s failure to submit a separate statement and authenticated evidence exceeded the bounds of a mere technicality. Such items were necessary for the court to evaluate whether plaintiff demonstrated the existence of a triable issue of material fact. (See § 437c, subds. (b)(3), (d); Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72 [separate statement is designed to allow trial courts to expeditiously review complex motions for summary judgment].)
In sum, none of plaintiff’s arguments demonstrates any error by the trial court.
DISPOSITION
The judgment is affirmed. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
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Fujisaki, J.
WE CONCUR:
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Tucher, P. J.
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Petrou, J.
Jackson v. Livento (A174416)