eForce Global, Inc. v. Bank of America Corporation

Filing 49

ORDER by Judge Samuel Conti granting in part and denying in part 43 Motion to Strike ; granting 31 Motion for Summary Judgment (sclc2, COURT STAFF) (Filed on 6/24/2010)

1 2 3 4 5 6 7 8 9 10 v. BANK OF AMERICA, N.A., Defendant. EFORCE GLOBAL, INC., Plaintiff, ) Case No. 09-1984 SC ) ) ORDER GRANTING DEFENDANT'S ) MOTION FOR SUMMARY JUDGMENT ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

For the Northern District of California

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I.

INTRODUCTION Now before the Court is a Motion for Summary Judgment, or

Alternative Partial Summary Judgment, filed by Bank of America, N.A. ("Defendant" or "Bank of America"). ("Motion"). Docket No. 31

Plaintiff eForce Global, Inc. ("Plaintiff" or

"eForce") filed an Opposition, and Bank of America filed a Reply. Docket Nos. 36, 41. Pursuant to Local Civil Rule 7-1(b), the

Court finds the Motion is suitable for determination without oral argument. GRANTED. For the reasons stated below, Defendant's Motion is

II.

BACKGROUND On May 6, 2009, Plaintiff filed a Complaint against Bank of

America.

Docket No. 1 ("Compl.").

Plaintiff is an information

technology services company that provides enterprise solutions to

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its clients.

Id. ¶ 1.

eForce developed the Integrated Treasury

Operations System ("ITOPS"), a Web-based automated and integrated cash-management system. Id. ¶ 7. In 2007, eForce entered into

negotiations with the Regents of the University of California ("the University") to implement and support ITOPS at the University. ¶ 8. On January 7, 2008, eForce and the University signed a Id.

written contract whereby eForce agreed to furnish ITOPS and, in exchange, the University agreed to pay eForce $100,000 for the software, a fee not to exceed $600,000 for the deployment of the system, and a monthly subscription fee. See Reidy Decl. Ex. B

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("Ravindra Pande Dep.") Ex. 4 ("UC Banking Services Agreement") at EFO 42894-42903.1 Around July 2007, the University told eForce that ITOPS would have to be integrated with Bank of America's system so that the University and Bank of America could conduct banking operations through ITOPS. Compl. ¶ 9; Ravindra Pande Dep. at 44:7-13. On

July 27, 2007, representatives of eForce, the University, and Bank of America participated in a telephone call. Pande Dep. at 78:12-79:23. Compl. ¶ 12; Ravindra

Participants on the conference call

included Ravindra Pande and Sujith Nair ("Nair") of eForce, Richard Powell ("Powell") of the University, and Joseph Simas ("Simas"), Cynthia Weinthaler ("Weinthaler"), and Susan Colles ("Colles") of Bank of America. Ravindra Pande Dep. at 79:4-9; Ravindra Pande

1

David Reidy ("Reidy"), an associate at Reed Smith LLP, attorneys for Defendant Bank of America, filed a Declaration in Support of the Motion. Docket No. 32.

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Decl. ¶¶ 9-10; Nair Decl. ¶¶ 15-16.2 Ravindra Pande is a Project Manager and Enterprise Architect at eForce, and he held that position in 2007. ¶ 2. Ravindra Pande Decl.

According to Ravindra Pande, "the purpose of the call was

largely for Bank of America to describe their capabilities with respect to bulk payment interfaces." 20. Ravindra Pande Dep. at 79:18-

Bank of America's representations to eForce during the

telephone call form the basis for eForce's three causes of action for (1) Intentional Interference with Contractual Relations; (2) Breach of Oral Contract; and (3) Breach of the Covenant of Good Faith and Fair Dealing. See Compl. ¶¶ 20-41.

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III. LEGAL STANDARD Entry of summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." R. Civ. P. 56(c). Fed.

If the party moving for summary judgment does

not have the ultimate burden of persuasion, then that party must produce evidence negating an essential element of the non-moving party's claims or showing that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Summary judgment

Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

should be granted where the evidence is such that it would require a directed verdict for the moving party.
2

Anderson v. Liberty

Ravindra Pande and Sujith Nair ("Nair"), employees of eForce, submitted declarations in support of eForce's Opposition. Docket Nos. 36-4, 36-7. 3

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Lobby, Inc., 477 U.S. 242, 251 (1986).

Thus, "Rule 56(c) mandates

the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." 317, 322 (1986). Celotex Corp. v. Catrett, 477 U.S.

"The evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

IV. DISCUSSION A. Evidentiary Objections 1. eForce Objections

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eForce filed objections to the evidence Bank of America submitted in support of its Motion. Objections"). Docket No. 35 ("eForce Docket

Bank of America responded to the objections.

No. 44 ("Resp. to eForce Objections"). eForce contends that Bank of America may not use the deposition testimony of its own employees unless they are outside the state or otherwise unavailable to testify. at 2. eForce Objections

This contention is simply incorrect, and the cases cited by In Garcia-Martinez v. City and County of

eForce do not support it.

Denver, the Tenth Circuit addressed the admissibility at trial of the deposition testimony of a party who had voluntarily left the country. 392 F.3d 1187, 1190-91 (10th Cir. 2004). In Paz v.

Wauconda Healthcare and Rehabilitation Centre, LLC, the Seventh Circuit noted that a plaintiff may defeat summary judgment with his or her own deposition testimony. 2006). 464 F.3d 659, 664-65 (7th Cir.

Neither case supports the novel evidentiary rule proposed

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by eForce.

It is elementary that a party moving for summary Celotex, 477 U.S. at

judgment may rely on deposition testimony. 323.

The Court OVERRULES eForce's objections to the deposition

testimony of Bank of America employees Simas, Heidi Hawthorne ("Hawthorne"), Doris Chu ("Chu"), and Sharon Midkiff ("Midkiff"). Although Plaintiff initially objected to the authenticity of documents Bank of America submitted in support of its Motion, Plaintiff subsequently withdrew its authenticity objections. Overend Decl. ¶ 2, Ex. A ("May 25, 2010 Email").3 does not need to rule on these objections. See

Hence, the Court

Plaintiff has also

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withdrawn its request for a Rule 56(f) continuance, and therefore the Court does not respond to that request. Docket No. 46 ("June 4, 2010 Letter"). eForce objects on the basis that Bank of America often "miscites" deposition testimony. eForce Objections at 4-5. These See Opp'n at 3-6;

objections do not call into question the admissibility of Bank of America's evidence, but instead question Bank of America's description or characterization of the evidence. The Court bases

its decisions on what the evidence shows, not on how a party has characterized the evidence. As such, the Court OVERRULES eForce's Having reviewed

objections based on alleged inaccurate citations.

the deposition testimony referred to in Attachment A to eForce's Objections, the Court also OVERRULES the objections based on a purported lack of personal knowledge, the hearsay rule, inadmissible opinion testimony, and a lack of foundation.
3

William R. Overend ("Overend"), partner at Reed Smith LLP, attorneys for Defendant Bank of America, filed a Declaration in Support of Bank of America's Responses to Plaintiff's Evidentiary Objections. Docket No. 45. 5

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2.

Bank of America Objections

Bank of America objects to eForce's Opposition on the basis that there is no evidence to support many of the assertions in the Opposition brief. Docket No. 43 ("Def.'s Objections") at 2-8. As

stated above, the Court relies on what the evidence shows, not on how a party describes or characterizes the evidence. Hence, the

Court OVERRULES Bank of America's objections to statements in eForce's Opposition brief, but the Court makes clear that it always bases its determinations on what the evidence shows, not on how a party has characterized that evidence in its pleadings. Bank of America objects to references to an agreement between eForce and the Bank in the P.K. Pande Declaration. Id. at 9-10.

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4

The declarant states he was not part of the discussions that created this agreement; instead he obtained his information regarding an agreement from Nair and Ravindra Pande, other eForce employees. See P.K. Pande Decl. ¶ 14.4 Hence, statements in his

declaration concerning an agreement between eForce and Bank of America are hearsay. The Court SUSTAINS Bank of America's

objections to those statements, and GRANTS Defendant's Motion to Strike those statements. The Court OVERRULES Bank of America's

other objections to statements in the P.K. Pande Declaration. The Court OVERRULES Bank of America's objections to statements in the Ravindra Pande Declaration and the Nair Declaration. The

Court also OVERRULES Bank of America's objections to statements in

P.K. Pande, Chief Operating Officer ("CEO") of eForce, filed a Declaration in Support of eForce's Opposition. Docket No. 36-8.

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the Martin Kresse Declaration,5 but finds that the statements have no impact upon Bank of America's Motion because eForce has withdrawn its request for a Rule 56(f) continuance. 2010 Letter. B. Breach of Oral Contract See June 4,

"A cause of action for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff." Careau & Co. v. Sec. Pac. Bus. A contract

Credit, Inc., 272 Cal. Rptr. 387, 395 (Ct. App. 1990).

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requires consenting parties, and their consent must be free, mutual, and communicated by each to the other. 1550, 1565. Cal. Civ. Code §§

Consent is not mutual unless the parties all agree Id. § 1580. "If there is

upon the same thing in the same sense.

no evidence establishing a manifestation of assent to the 'same thing' by both parties, then there is no mutual consent to contract and no contract formation." Bustamante v. Intuit, Inc., 141 Cal.

App. 4th 199, 208 (Ct. App. 2006) (quoting Weddington Prods., Inc. v. Flick, 60 Cal. App. 4th 793, 811 (Ct. App. 1998). To form a

contract, the parties must reach mutual assent or consent on definite or complete terms. Merced County Sheriff's Employees'

Ass'n v. Merced County, 188 Cal. App. 3d 662, 670 (Ct. App. 1987); McClintock v. Robinson, 18 Cal. App. 2d 577, 582 (Ct. App. 1937). Here, Plaintiff's Complaint alleges that Bank of America breached an oral contract entered into on or about July 27, 2007. Compl. ¶¶ 30-31.
5

Plaintiff alleges that "Bank of America agreed to

Martin H. Kresse, attorney of record for eForce since February 2, 2010, filed a Declaration in Support of eForce's Opposition. Docket No. 36-1. 7

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provide support for UCOP Payment Types via its MX Message Interface." Id. ¶ 30.6 Plaintiff alleges that:

Bank of America further agreed to the following timeline for the implementation and testing of ITOPS's integration into the MX Message Interface: (1) eForce would complete the integration of ITOPS with Bank of America's MX Message Interface in Fourth Quarter 2007; (2) eForce would begin testing ITOPS's integration with Bank of America's MX Message Interface in or about September 2007; (3) Bank of America would provide a test environment for ITOPS during Fourth Quarter 2007; (4) Bank of America would begin providing support for the UCOP Payment Types via its MX Message Interface during Fourth Quarter 2007. Compl. ¶ 31. Bank of America presents evidence showing that mutual consent regarding the MX Message Interface was not reached during the July 27, 2007 telephone call, and eForce has failed to show otherwise. eForce did not commit to using the XML format during the July 27, 2007 conference call. Instead, on that date, the parties merely

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discussed options for how ITOPS could be integrated with Bank of America's system. On July 27, 2007, the parties discussed different types of file formats that Bank of America used to send payment origination instructions. 24, 64:14-18. Reidy Decl. Ex. A ("Simas Dep.") at 15:1-24, 62:6The file formats discussed included the Bank of Ravindra Pande Dep.

America flat file ("BAFF") and the XML format.

at 79:21-80:11; Ravindra Pande Decl. ¶ 13; Simas Dep. at 15:1-7, 15-24. While BAFF is a proprietary Bank of America format, the Simas

parties also discussed ISO 20022, an XML-based standard.
6

eForce refers to the University as "UCOP," which is an abbreviation for the University of California Office of the President. 8

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Dep. at 22:2-4; Ravindra Pande Dep. at 81:25-82:6; Ravindra Pande Decl. ¶ 13. These were file formats that the University could use

to send bulk payments through Bank of America's system using the new ITOPS software. Ravindra Pande Dep. at 80:20-82:6.

During this call, a Bank of America representative "talked about how [the XML standard] was going into production and how they were using pilot customers right now, and it would be in production in October." Id. at 82:10-21. Ravindra Pande's understanding was

that the XML format "was in testing with . . . [Bank of America's] pilot customers, and it was scheduled for production in October." Id. at 82:24-83:1. Indeed, this case hinges on Bank of America's

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representation during the call that the XML payment interface would be in production in October 2007. Nair Decl. ¶ 17. Ravindra Pande Decl. ¶¶ 15-17;

eForce alleges that it relied on that

representation, and that Bank of America's failure to meet that deadline forced eForce to maintain employees on the ITOPS project for longer than anticipated. P.K. Pande Decl. ¶ 20.

On this motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in eForce's favor. Anderson, 477 U.S. at 255. The Court

therefore assumes the truth of eForce's claim that Bank of America represented during the July 27 call that the XML format would be in production in October 2007. Assuming the truth of this assertion,

the evidence does not show that an oral contract was formed between eForce and Bank of America on that date. Ravindra Pande testified that, during the July 27, 2007 call, Bank of America provided eForce with information concerning file formats for a bulk payment interface, Ravindra Pande Dep. at 81:16-

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83:1, and eForce requested follow-up information and documentation on the XML format, id. at 86:2-23. the call to go with the XML format. eForce did not decide during Id. at 86:24-87:8. Instead,

eForce requested documentation from Bank of America so that eForce could understand the XML format. Id. Hence, eForce did not commit

to the XML format on July 27, 2007. In his declaration, Ravindra Pande does not dispute that eForce did not commit to the XML format during the call. He

declares that he "told the Bank on the July 27th conference call that we would likely utilize the Bank's XML interface rather than their BAFF interface." Ravindra Pande Decl. ¶ 19 (emphasis added).

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On July 28, 2007, he told other eForce employees that eForce would be utilizing the XML payment interface. Id. ¶ 22. However, eForce

first notified Bank of America that it intended to use the XML format in an email dated August 10, 2007. Ex. 6 ("Aug. 10, 2007 Email"). See Ravindra Pande Dep.

The email states "[w]e are planning Id. at EFO

implement [sic] the XML interface based on ISO 20022." 08882.

eForce admits this email is the first time eForce notified

Bank of America that it intended to use the XML file format. Ravindra Pande Dep. at 99:24-100:2. If eForce did not commit to using the XML format during the conference call, then it is impossible for eForce and Bank of America to have entered into an oral contract regarding the XML format at that time. eForce alleges that "Bank of America agreed

to provide support for UCOP Payment Types via its MX Message Interface," and that Bank of America and eForce agreed to a "timeline for the implementation and testing of ITOPS's integration into the MX Message Interface." Compl. ¶¶ 30-31. In its

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Opposition, eForce asserts that "[d]uring the call an agreement was reached between the Bank and eForce that if the Bank's XML interface was used for the UCOP payment types that eForce could use the Bank's October 2007 XML product release for the UCOP project so that eForce could complete its testing and integration during Q4 2007 with this release." Opp'n at 11.

There is no evidence to support these allegations of an agreement. A contract concerning the XML format could not have

been formed during the conference call because eForce did not commit to using the XML format at that time, and eForce first notified Bank of America of its intention to use that format on August 10, 2007. Ravindra Pande Dep. at 86:24-87:8, 99:24-100:2; Contract formation requires a

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Aug. 10, 2007 Email at EFO 08882.

manifestation of assent to the same thing by both parties. Bustamante, 141 Cal. App. 4th at 208. Therefore, even if Bank of

America misrepresented that the XML format would be in production in October 2007, this statement could not have given rise to a contract. The evidence indicates that, during the call, the

parties to this lawsuit were merely discussing options for how ITOPS could be integrated into Bank of America system. See

Ravindra Pande Dep. at 81:16-87:8; Simas Dep. at 62:6-24, 64:14-18; Ravindra Pande Decl. ¶¶ 11-19. There is simply no evidence of

mutual consent during the July 27, 2007 conference call. Nor do the emails subsequent to the July 27 call give rise to a contract between eForce and Bank of America. On August 1, 2007,

Weinthaler, Vice President of Treasury Management Services at Bank of America, sent an email to Powell, Senior Banking Manager at the University of California, containing hyperlinks and information

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regarding the XML format. EFO 08884-86.

Ravindra Pande Dep. Ex. 6 ("Emails") at

Powell forwarded the information to Ravindra Pande Id. at 08884.

on August 2, 2007.

On August 10, 2007, Ravindra Pande responded in an email sent to representatives of both the University and Bank of America. Aug. 10, 2007 Email at 08882-84. The email states "[w]e are

planning implement [sic] the XML interface based on ISO 20022. . . . We are planning to have our integration completed during calendar Q4 of this year and expect to enter testing in the September time frame contingent on the lead time required for establishing UCOP in a test environment." Id. at 08882. The email continues:

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Our understanding of the BofA support for ISO 20022 is 1. Support for domestic and international Wires, ACHs and Drafts will be available using the new MX Message Interface . . . . 2. B Of A will begin production support for these MX Messages/ISO 20022 with their initial set of customer [sic] in the October 2007 timeframe. Id. The email also asks Bank of America to provide eForce "with

any documentation relating to the implementation, testing and connectivity to the new ISO 20022 when it is available," and it also seeks advice on the process for accessing the Bank of America test environment. Id. at 08883.

Simas, from Bank of America, responded on August 29, 2007. Ravindra Pande Dep. Ex. 7 ("Aug. 29, 2007 Email") at EFO 0859808605. He notes that Bank of America's "documentation for the XML Id. at EFO 08599. In

process is still being established."

response to eForce's request regarding access to Bank of America's test environment, the email states that Bank of America is "[s]till determining when and how our test environment will be made

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available to you for the XML process."

Id.

On November 16, 2007,

Ravindra Pande sent Weinthaler an email expressing his surprise regarding "delays which have apparently occurred at BofA with respect to their previously communicated timelines." Ravindra

Pande Dep. Ex. 9 ("Nov. 16, 2007 Email") at EFO 08887-88. The problem for eForce is that there is no evidence showing that Bank of America's failure to begin production support for XML messages in the October 2007 timeframe constituted the breach of a contract with eForce. The Court struggles to understand how these Where is the

emails can be construed as giving rise to a contract. offer or an acceptance of that offer?

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eForce attempts to portray

its August 10, 2007 email as an acceptance of Bank of America's offer made during the July 27, 2007 conference call. 13-14. This contention is without merit. Opp'n at 6-7,

"[T]erms proposed in an

offer must be met exactly, precisely and unequivocally for its acceptance to result in the formation of a binding contract." Panagotacos v. Bank of America, 60 Cal. App. 4th 851, 855 (Ct. App. 1998) (quoting Apablasa v. Merritt & Co., 176 Cal. App. 2d 719, 726 (Ct. App. 1959). Having carefully reviewed the August 10, 2007

email, it cannot be construed as an acceptance of a Bank of America offer. The email states eForce's understanding that Bank of

America would begin production support for the XML format "in the October 2007 timeframe." Aug. 10, 2007 Email at EFO 08882. While

this may have been eForce's understanding, Bank of America responded at the end of August that they were "[s]till determining when and how our test environment will be made available to you for the XML process." Aug. 29, 2007 Email at EFO 08599. There is

nothing to show that eForce and Bank of America mutually consented

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to definite contract terms either during the July 27, 2010 conference call or in the emails exchanged subsequent to that call. Accordingly, the Court GRANTS summary judgment in favor of Bank of America with regard to eForce's claim for breach of contract. C. Breach of Covenant of Good Faith and Fair Dealing

The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, because the covenant is an implied term in the contract. Foley v. Interactive Data

Corp., 47 Cal. 3d 654, 683-84 (1988); Gruenberg v. Aetna Ins. Co. (1973) 9 Cal. 3d 566, 577 (1973). Here, and as explained above, See Part

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there was no contract between eForce and Bank of America. IV.B, supra.

Therefore, the Court GRANTS summary judgment in favor

of Bank of America with regard to eForce's cause of action for breach of the implied covenant of good faith and fair dealing. D. Intentional Interference with Contract

Under California law, "[t]he elements of a cause of action for intentional interference with contract are: (1) a valid contract between plaintiff and a third party; (2) defendants' knowledge of the contract; (3) defendants' intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage." Tuchscher Dev. Enters., Inc. v. San Diego

Unified Port Dist., 106 Cal. App. 4th 1219, 1239 (Ct. App. 2003); see also Pacific Gas & Electric Co. v. Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (1990). In the Complaint, eForce alleges that: Bank of America knew that eForce had an

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agreement with UCOP to provide and deploy ITOPS with rules and functionality designed to UCOP's needs and specifications. Bank of America further knew that eForce could not provide UCOP with the ITOPS system required by UCOP unless and until ITOPS adopted and integrated a messaging interface that was supported by Bank of America. Compl. ¶ 22. eForce alleges that Bank of America's failure "to

provide eForce with a full test environment at anytime during Fourth Quarter 2007" interfered with the contract between eForce and the University. Id. ¶¶ 26-28.

There is no evidence to support eForce's claim that Bank of America intentionally interfered with eForce's contract with the University. On September 26, 2007, there was a meeting between

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Bank of America and the University "to discuss the University of California's desire to become an XML pilot client." 21 ("Sept. 26, 2007 Email") at BOA 05753. Simas Dep. Ex.

"Piloting" means the XML

format was being developed and tested with a particular client. Simas Dep. at 50:6-53:2. The email states "[w]e have not locked

down payment types, countries, telecom, target start and end dates yet for UC." Sept. 26, 2007 Email at BOA 05753.

On September 28, 2007, Bank of America emailed Nair of eForce "regarding when we'd be ready to start testing with you for the XML implementation," and stating that Bank of America "would like to lock down some specifics." EFO 42812. Ravindra Pande Dep. Ex. 8 ("Emails") at

eForce responded that early First Quarter 2008 was the Id. at EFO 42814.7

goal for full production status.
7

The email states "Early First Quarter 07" but the context makes it clear that this was a typographical error and that Nair meant Early First Quarter 2008. See also Mot. at 9 n.5.

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By mid-November, eForce was concerned about the lack of progress on the XML project and therefore the parties arranged a November 16, 2007 conference call. 121:25. Ravindra Pande Dep. at 120:4-

During the call, eForce was still hoping to get into Id. at 122:1-17. After

parallel production by the end of 2007.

the call, Ravindra Pande sent Bank of America an email recapping "eForce's understanding of the major points we discussed on the call Friday regarding both the current status and the approach BofA and eForce agreed to adopt in order to attempt to provide UCOP an Integrated Treasury Operations (ITOPS) product release in December." Id. Ex. 11 ("Nov. 19, 2007 Email") at EFO 07568.

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eForce's understanding was that "BofA will have a test environment ready by December 15, 2007 in which UCOP can test domestic wire and ACH transactions. BofA will have a test environment ready by

January 15, 2008 in which UCOP can test international wire and international ACH transactions." Id. at EFO 07569.

On November 27, 2007, Doug Carlson ("Carlson"), a Senior Vice President at Bank of America, sent the Bank of America XML project team an email stating: I need to get us together to confirm the bank's commitment to piloting XML payments with the University of California and make sure that we have appropriate resources to meet their aggressive timeline. The UC needs to have the wires and ACH payments tested and operational by December 31, 2007 when the majority of their vendor (eFORCE) resources will roll off the project. After, 12/31/2007, they will maintain minimal resources for follow-up issues and to complete the FX payments when that functionality is available. With our one XML implementation resource (Heidi) out all this week for training and Christmas looming, I'm concerned that the project is already in danger. We either need to insure that we can meet their timeline, or we need to consider

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canceling the XML pilot embarrassing and possibly relationship with the UC).

(which will be damaging to our By December 20,

Simas Dep. Ex. 28 ("Carlson Email") at BOA 00426.

2007, it was clear to Bank of America employees that they were not going to have the XML project completed by the end of the year. Docket No. 39 ("Pl.'s Errata and Clarification of Exhibits") Ex. 30 ("Dec. 20, 2007 Email") at BOA 83746. On January 4, 2008, Midkiff,

a Client Fulfillment Manager at Bank of America, emailed a timeline anticipating that the XML project would be in production in March 2008. Reidy Decl. Ex. E ("Midkiff Dep.") Ex. 67 ("Jan. 4, 2008 On March 4, 2008, Chu, a Bank of America project manager,

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Email").

told Midkiff that the March 4, 2008 production target date had been met, although it was also anticipated that the University and eForce would continue testing through July. Id. at 112:8-113:12.

On January 7, 2008, eForce and the University signed a contract. See UC Banking Services Agreement at EFO 42894-42903.

While representatives of eForce may have been "discussing with UCOP representatives the parameters of the final agreement" since June 2007, the contract was signed on January 7, 2008. ¶ 9. P.K. Pande Decl.

Under the terms of the contract, the University agreed to pay UC Banking Services

eForce $100,000 for the ITOPS software. Agreement Part I § 1. provides:

Concerning deployment, the contract

The University and eForceglobal have agreed that deployment of the system will be completed for an amount not to exceed $600,000. Eforceglobal has submitted invoices for its incurred deployment expenses of $600,000. The University will pay eForceglobal 90% of the $600,000. The University agrees to pay eForceglobal for the deployment as it has been delivered and is being tested.

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Id. Part I § 2. subscription fee:

The contract also provides for a monthly

The University agrees to pay eForceglobal $75,000 starting December 1, 2007, and at the beginning of each month that the system is placed in parallel production testing. Upon mutual agreement, when both the University and eForceglobal concur that the software and the operations are in such condition as to warrant the end to parallel production, the 60 month subscription agreement will commence. Id. Part I § 3. The subscription agreement provides that the

University will pay eForce $75,000 per month for the first two years, $80,000 per month for the third year, and $85,000 per month for the fourth, fifth, and sixth year. Id. Part I § 5.

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There is no evidence to support eForce's claim that Bank of America intentionally interfered with this contract. There is

nothing to show that Bank of America's delays associated with the XML format and integrating ITOPS into their system were an intentional effort to interfere with eForce's contract with the University. Indeed, Ravindra Pande testified that eForce has no

evidence that anyone at Bank of America was out to get eForce or had some motive to intentionally delay the project. Dep. at 132:17-133:11. Ravindra Pande

As noted by this deponent, it is hard to

see how intentionally delaying the XML project would have served Bank of America's interests because the University was Bank of America's customer. Id. at 133:5-7.

Furthermore, there was no interference or disruption of the contract. As required by the contract, Bank of America paid eForce

$100,000 for the ITOPS software, id. at 53:8-17, $540,000 for deployment expenses, id. at 64:22-65:3, 66:1-3, and Bank of America began paying the monthly subscription fee of $75,000 in December

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2007, id. at 67:22-68:4.

The University is currently in the midst

of the sixty-month subscription agreement with eForce, and the University is current on its payments. Id. at 69:1-9. The

contract provides that Bank of America would pay eForce for the deployment of the software "as it has been delivered and is being tested." UC Banking Services Agreement Part 1 § 2. Ravindra Pande

confirmed that the University was using and testing the software when the contract was signed on January 7, 2008. Dep. at 66:3-19. Ravindra Pande

P.K. Pande testified that "[b]y December 1st of

2007, which is within Q4 ­- around December 1st, beginning of December ­ we were live in a production environment." Ex. F ("P.K. Pande Dep.") at 75:5-7. Reidy Decl.

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He testified that, before the

end of the Fourth Quarter 2007, eForce had completed all of the material steps outlined in a Statement of Work agreed to by the University and eForce. Id. at 72:18-77:24.

Assuming the truth of eForce's allegations that Bank of America misrepresented that it would provide a full test environment for eForce before the end of 2007, or that ITOPS would be integrated with Bank of America's system by then, these misrepresentations did not result in a breach or disruption of eForce's contract with the University. The contract, signed on

January 7, 2008, explicitly acknowledges that the software was being tested at that time. See UC Banking Services Agreement Part

1 § 2 ("The University agrees to pay eForceglobal for the deployment as it has been delivered and is being tested."). eForce

has received and is receiving the benefit of its bargain with the University: eForce delivered the software, eForce has received all payments due from Bank of America, and eForce continues to receive

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subscription payments.

Ravindra Pande Dep. at 53:8-17, 64:22-65:3, There is no genuine issue of material

66:1-3, 67:22-68:4, 69:1-9.

fact that the contract has not been breached or disrupted. Therefore, eForce cannot prevail on its claim that Bank of America intentionally interfered with this contract. In its Opposition, eForce contends that Bank of America's delays associated with the XML interface "forced eForce to delay the launch of ITOPS and [resulted in] millions of dollars in extra development costs for ITOPS." Opp'n at 19. eForce asserts that a

contract existed between eForce and the University that "predated the July 27, 2007 phone call," id. at 18, but eForce cites to no In support of its

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evidence in support of this contention.

intentional interference claim, eForce relies on the statement in Pacific Gas and Electric Co., 50 Cal. 3d at 1129, that "interference with the plaintiff's performance may give rise to a claim for interference with contractual relations if plaintiff's performance is made more costly or more burdensome." Opp'n at 19.

However, when eForce and the University signed their contract on January 7, 2008, both eForce and the University were aware that it was taking longer than anticipated for ITOPS to be integrated with Bank of America's system. P.K. Pande declares that in

November or December 2007, eForce decided to maintain additional employees on the XML project at no cost to the University. Pande Decl. ¶ 20. P.K.

Despite its awareness of these delays and extra

costs, eForce decided to sign an agreement on January 7, 2008, according to which it would be paid $100,000 for the software, $540,000 for deployment of the software, and a monthly subscription fee starting at $75,000 for December 2007. To date, the University

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has made its required payments.

Hence, there has been no breach or

disruption of the terms of this agreement, and the Court GRANTS summary judgment in favor of Bank of America and against eForce on its claim for intentional interference with contractual relations.

V.

CONCLUSION For the reasons stated above, the Court GRANTS the Motion for

Summary Judgment filed by DEFENDANT Bank of America, N.A.

IT IS SO ORDERED.

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: June 24, 2010 UNITED STATES DISTRICT JUDGE

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