KIDS'UNIVERSE

Plaintiffs, Kids' Universe, and Lew and Howard Rudzki, [1] appeal from a summary judgment in favor of defendants, In2Labs and Conrad Salindong. Plaintiffs sought lost profits on the theory defendants negligently caused a flood in the Kids' Universe retail store and prevented them from launching an internet Web site for the sale of toys. The trial court found plaintiffs could not establish with the requisite certainty that profits would have been made from the operation of the online business. We conclude defendants met their summary judgment burden as to the entire damage element of plaintiffs' cause of action which sought only lost profits. Further, because of the speculative nature of their evidence, we conclude plaintiffs failed to raise a triable issue of material fact as to their ability to prove lost profits. Accordingly, we affirm the summary judgment.

The material facts are undisputed. [2] Two brothers, the Rudzkis, founded Kids' Universe in 1992. Kids' Universe is a retailer of toys, educational products, and computer training services for children. Kids' Universe operates a retail store in Beverly Hills.

Defendants leased office space directly above the…

I. Introduction

Plaintiffs, Kids’ Universe, and Lew and Howard Rudzki, 1 appeal from a summary judgment in favor of defendants, In2Labs and Conrad Salindong. *874 Plaintiffs sought lost profits on the theory defendants negligently caused a flood in the Kids’ Universe retail store and prevented them from launching an internet Web site for the sale of toys. The trial court found plaintiffs could not establish with the requisite certainty that profits would have been made from the operation of the on-line business. We conclude defendants met their summary judgment burden as to the entire damage element of plaintiffs’ cause of action which sought only lost profits. Further, because of the speculative nature of their evidence, we conclude plaintiffs failed to raise a triable issue of material fact as to their ability to prove lost profits. Accordingly, we affirm the summary judgment.

II. Facts

The material facts are undisputed. 2 Two brothers, the Rudzkis, founded Kids’ Universe in 1992. Kids’ Universe is a retailer of toys, educational products, and computer training services for children. Kids’ Universe operates a retail store in Beverly Hills.

Defendants leased office…

I concur in the result. Unlike the majority, I do not discern any ambiguity or inconsistency in the discussion of summary judgment in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 [ 107 Cal.Rptr.2d 841 , 24 P.3d 493 ] (Aguilar). One cannot infer from Aguilar , as the majority asserts, “that, at the summary judgment stage, if there are equally conflicting inferences to be drawn from the evidence, the moving defendant is entitled to the benefit of that conflict and the motion must be granted.” (Maj. opn., ante, at p. 881.) The majority opinion appears to confuse Aguilar’s discussion of the plaintiff’s burden of production in opposing summary judgment with Aguilar’s standard for granting summary judgment.

In Aguilar , the Supreme Court said that “[i]f a party moving for summary judgment in any action, including an antitrust action for unlawful conspiracy, would prevail at trial without submission of any issue of material *889 fact to a trier of fact for determination, then he should prevail on summary judgment.” ( Aguilar, supra, 25 Cal.4th at p. 855 .) To establish his entitlement to summary judgment, “if a defendant moves for summary judgment . . . , he must present…