Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 1 of 20 Page ID #:16471 'O' 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 THE SANTA BARBARA CV 19-10733-RSWL-JEM x 11 SMOKEHOUSE, INC., a California corporation; ORDER re: Plaintiffs’ 12 and DHBRANDS LIMITED, a Motion for Reconsideration 13 Cyprus limited liability [272] and AquaChile’s company, Motion to Amend Judgment 14 to Add Prejudgment and Plaintiffs, Post-Judgment Interest 15 [273] v. 16 AQUACHILE, INC., a Florida 17 corporation; AGROSUPER 18 S.A., a Chile corporation; and EMPRESAS AQUACHILE 19 S.A., a Chile corporation, 20 Defendants. 21 AQUACHILE, INC., a Florida corporation, 22 Counter-Plaintiff, 23 v. 24

THE SANTA BARBARA

25 SMOKEHOUSE, INC., a California corporation, 26 Counter-Defendant. 27 28 1 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 2 of 20 Page ID #:16472

1 Plaintiffs The Santa Barbara Smokehouse

2 (“Smokehouse”) and DHBrands Limited (“DHBrands”) brought

3 this Action, asserting various contract and fraud- 4 related claims against Defendants AquaChile, Inc. 5 (“AquaChile”); Agrosuper S.A. (“Agrosuper”); and 6 Empresas AquaChile S.A. (“Empresas”) (collectively, 7 “Defendants”). On March 4, 2022, the Court granted 8 Defendants’ Motion for Summary Judgment in its entirety, 9 and on March 7, 2022, the Court entered judgment in 10 favor of Defendants. 11 Currently before the Court is Plaintiffs’ Motion to 12 Alter or Amend the Judgment Pursuant to Rule 59(e), or, 13 in the Alternative, for Relief from the Judgment 14 Pursuant to Rule 60(b) [272] (“Motion for 15 Reconsideration”). Also before the Court is AquaChile’s 16 Motion to Amend Judgment to Add Prejudgment and Post- 17 Judgment Interest [273] (“Motion to Amend Judgment”). 18 Having reviewed all papers submitted pertaining to these 19 Motions, the Court NOW FINDS AND RULES AS FOLLOWS: the 20 Court DENIES Plaintiff’s Motion for Reconsideration and 21 GRANTS AquaChile’s Motion to Amend Judgment. 22 I. BACKGROUND 23 A. Factual Background 24 Smokehouse is a California corporation. Defs.’ 25 Stmt. of Uncontroverted Facts (“Defs.’ SUF”) ¶ 1, ECF 26 No. 129-2. DHBrands owns the brands under which 27 Smokehouse sells its salmon products, and Smokehouse 28 pays DHBrands a percentage of Smokehouse’s revenues in 2 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 3 of 20 Page ID #:16473

1 exchange for use of the brands. Id. ¶ 4. AquaChile is

2 a supplier of salmon fillets and is a wholly owned

3 subsidiary of Empresas. Id. ¶¶ 6, 8. Both AquaChile 4 and Empresas are owned by Agrosuper. Id. ¶ 7. 5 In 2015, Smokehouse and AquaChile entered into a 6 one-year supply agreement whereby AquaChile would supply 7 Smokehouse with various salmon fillets, and Smokehouse 8 would pay a price per pound that was negotiated monthly. 9 Id. ¶ 9. This agreement expired in April 2016, but 10 AquaChile continued to supply fillets to Smokehouse on a 11 per-order basis. Id. ¶ 10. When Smokehouse later 12 sought assurance that AquaChile would continue supplying 13 it with salmon fillets at Smokehouse’s election, 14 AquaChile proposed a five-month supply agreement. Id. 15 ¶¶ 11, 12. Smokehouse’s CEO Tim Brown (“Brown”) 16 rejected this offer and instead proposed a two-year 17 agreement. Id. ¶ 13. Vincent De La Cruz (“De La 18 Cruz”), an AquaChile representative, in turn rejected 19 Smokehouse’s offer, stating he would get fired for 20 accepting a two-year supply agreement on AquaChile’s 21 behalf. Id. ¶ 14; Decl. of Michael Weiss in Supp. of 22 MSJ (“Weiss Decl.”) Ex. 11, ECF No. 130-11. 23 The parties agree that from 2016 through September 24 2019, AquaChile continued to provide weekly sales to 25 Smokehouse. Defs.’ SUF ¶ 22. The parties also agree 26 that Smokehouse was free to purchase salmon from other 27 suppliers at any time. Id. ¶ 25. However, Plaintiffs 28 assert that AquaChile’s continued supply was pursuant to 3 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 4 of 20 Page ID #:16474

1 a three-year supply agreement that the parties entered

2 into on July 20, 2017 (the “2017 Agreement”), which

3 obligated AquaChile to supply Smokehouse with salmon 4 fillets through July 2020.1 Defs.’ SUF ¶ 25. 5 Defendants dispute the existence of this contract, 6 asserting that AquaChile did not agree to supply 7 Smokehouse with salmon fillets for three years. Id. 8 ¶ 20. 9 In early 2019, AquaChile started to reduce supply 10 of fillets to Smokehouse. Id. ¶ 28. Plaintiffs assert 11 that Smokehouse began experiencing poor customer service 12 from AquaChile, that AquaChile ignored several purchase 13 orders Smokehouse had placed, and that there were delays 14 in shipments. Id. ¶ 29. Plaintiffs believed that the 15 supply issues were due to Agrosuper’s recent acquisition 16 of Empresas because there had previously been a lawsuit 17 between Smokehouse and Agrosuper. Id. ¶ 27. On April 18 11, 2019, AquaChile’s sales director told Brown that 19 AquaChile was terminating its relationship with 20 Smokehouse at Agrosuper’s direction and would not 21 continue shipping any salmon to Smokehouse due to its 22 1 Plaintiffs assert the following facts as to the formation 23 of the 2017 Agreement: Representatives of Smokehouse and AquaChile (including De La Cruz and Brown) met on July 20, 2017. 24 Pls.’ Resp. to Defs.’ SUF ¶ 97, ECF No. 150-4. De La Cruz 25 brought with him a three-year supply agreement dated July 3, 2017, and he gave it to Brown to sign. Id. ¶ 98. After Brown 26 signed the agreement, De La Cruz elected not to sign the agreement but “said he wanted to bring it back with him for a 27 double check.” Id. ¶ 100. Over the next month, Brown followed up about obtaining a countersigned copy of the agreement but did 28 not receive one. Id. ¶ 102. 4 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 5 of 20 Page ID #:16475

1 prior lawsuit with Agrosuper. Id. ¶ 30. However,

2 Plaintiffs assert that De La Cruz called Smokehouse

3 personnel the following morning explaining that there 4 had been a miscommunication and that AquaChile would, in 5 fact, continue to supply Smokehouse. Pls.’ Resp. to 6 Defs.’ SUF ¶¶ 142-43. 7 For the next two months, there was a significant 8 cutback in salmon offered by AquaChile to Smokehouse. 9 Defs.’ SUF ¶ 32. In response, Smokehouse informed 10 AquaChile that its insufficient supply was impacting 11 Smokehouse and that Smokehouse therefore refused to pay 12 invoices owed to AquaChile for fillets Smokehouse had 13 received from AquaChile. Id. ¶¶ 34-35. To diffuse 14 tensions between the two parties, Smokehouse and 15 AquaChile entered into an agreement on June 6, 2019 (the 16 “2019 Agreement”), whereby AquaChile agreed to deliver 17 six containers of fillets at a reduced price due to 18 shipping delays, and in exchange Smokehouse agreed to 19 pay three outstanding invoices totaling $404,078.23. 20 Id. ¶ 36. The 2019 Agreement also stated that 21 Smokehouse “incurred $150k damages for . . . delayed / 22 non-shipped containers as referenced in the agreement 23 dated July 3, 2017 [and] quality control issues as 24 discussed on June 30, 2019.” Pls.’ Resp. to Defs.’ SUF 25 ¶ 173; Decl. of David A. Thomas in Supp. of Opp’n to MSJ 26 (“Thomas Decl.”) Ex. 35, ECF No. 153-37. 27 Shortly thereafter, AquaChile stopped supplying 28 Smokehouse with frozen salmon fillets altogether, and on 5 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 6 of 20 Page ID #:16476

1 July 30, 2019, Smokehouse personnel discussed the need

2 to place orders with other suppliers so that there was

3 not a gap in supply. Defs.’ SUF ¶ 45. On August 5, 4 2019, AquaChile further advised Smokehouse that it would 5 not be able to continue supplying Smokehouse with washed 6 salmon fillets.2 Defs.’ SUF ¶ 46. In September 2019, 7 AquaChile stopped accepting any new orders and 8 completely cut off its supply to Smokehouse. Id. ¶ 49. 9 B. Procedural Background 10 On March 4, 2022, this Court granted [256] 11 Defendants’ Motion for Summary Judgment in its entirety. 12 The Court entered Judgment [261] for Defendants and 13 against Plaintiffs on March 7, 2022, as to all of 14 Plaintiffs’ claims and as to AquaChile’s counterclaims 15 for breach of contract. Defendants filed an Application 16 to the Clerk to Tax Costs [266] on March 18, 2022, which 17 remains pending. 18 Plaintiffs filed the instant Motion for 19 Reconsideration [272] on April 4, 2022. Defendants 20 opposed [280] on April 26, 2022, and Plaintiffs replied 21 [285] on May 10, 2022. 22 Defendants filed the instant Motion to Amend 23 Judgment [273] on April 4, 2022. Plaintiffs opposed 24 [277] on April 26, 2022, and Defendants replied [282] on 25 May 10, 2022. 26

27 2 “Washing” is a process designed to kill Lm, a dangerous species of bacteria that is known to exist in salmon products. 28 See Pls.’ Resp. to Defs.’ SUF ¶¶ 87, 95. 6 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 7 of 20 Page ID #:16477

1 II. DISCUSSION

2 A. Legal Standard

3 1. Motion for Reconsideration 4 A motion for reconsideration can be brought under 5 either Rule 59(e) or Rule 60(b) of the Federal Rules of 6 Civil Procedure. Backlund v. Barnhart, 778 F.2d 1386, 7 1388 (9th Cir. 1985). Reconsideration under Rule 59(e) 8 is appropriate “if the district court (1) is presented 9 with newly discovered evidence, (2) committed clear 10 error or the initial decision was manifestly unjust, or 11 (3) if there is an intervening change in controlling 12 law.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 13 1263 (9th Cir. 1993). However, this is an 14 “extraordinary remedy, to be used sparingly” and only in 15 “highly unusual circumstances.” Kona Enters., Inc. v. 16 Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). 17 Alternatively, a party may seek relief from a final 18 judgment due to: (1) mistake, inadvertence, surprise, or 19 excusable neglect; (2) newly discovered evidence; (3) 20 fraud or other misconduct by an opposing party; (4) a 21 void judgment; (5) a satisfied or discharged judgment; 22 or (6) any other reason justifying relief from operation 23 of judgment. Fed. R. Civ. P. 60(b). Relief under this 24 Rule for “any other reason” requires a finding of 25 “extraordinary circumstances.” Backlund, 778 F.2d at 26 1388 (citation omitted). 27 Motions for reconsideration should not be used as a 28 vehicle to raise “repetitive contentions of matters 7 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 8 of 20 Page ID #:16478

1 which were before the court on its prior consideration

2 or contentions which might have been raised prior to the

3 challenged judgment.” Costello v. U.S. Government, 765 4 F. Supp. 1003, 1009 (C.D. Cal. 1991); see also Evans 5 Hotels, LLC v. United Here! Local 30, No. 3:18-cv-02763- 6 LL-AHG, 2022 WL 272009, at *5 (S.D. Cal. Jan. 28, 2022) 7 (“[M]otions for reconsideration should not be used 8 merely as an intermediate ‘appeal’ before taking a 9 disputed ruling to the Ninth Circuit.”). 10 2. Prejudgment and Post-Judgment Interest 11 After a court has entered judgment on a claim, the 12 prevailing party may move to amend the judgment to add 13 an award of prejudgment and post-judgment interest. 14 Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 (1989). 15 A post-judgment request for interest is properly brought 16 as a motion to alter or amend the judgment under Rule 17 59(e) of the Federal Rules of Civil Procedure. Id. 18 In diversity actions, state law determines whether 19 the prevailing party is entitled to an award of 20 prejudgment interest. Northrop Corp. v. Triad Int’l 21 Mktg., S.A., 842 F.2d 1154, 1155 (9th Cir. 1988). 22 California law provides that a party “entitled to 23 recover damages certain, or capable of being made 24 certain by calculation,” is entitled to recover interest 25 from the date that the right to recover became vested. 26 Cal. Civ. Code § 3287(a). Damages are uncertain, and 27 prejudgment interest is therefore not recoverable, where 28 “the amount of damage, as opposed to only the 8 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 9 of 20 Page ID #:16479

1 determination of liability, depends upon a judicial

2 determination based upon conflicting evidence and is not

3 ascertainable from truthful data supplied by the 4 claimant to his debtor.” Esgro Central, Inc. v. General 5 Ins. Co., 98 Cal. Rptr. 153, 158 (Cal. Ct. App. 1971). 6 Where the parties have not contracted for a particular 7 rate of interest, interest is to accrue at a rate of 10% 8 per annum after breach. Cal. Civ. Code § 3289. 9 “It is settled that even in diversity cases post- 10 judgment interest is determined by federal law.” 11 Northrop, 842 F.2d at 1155. Post-judgment interest must 12 be awarded on any money judgment entered in a civil case 13 in the district court. 28 U.S.C. § 1961. It is to be 14 calculated “from the date of the entry of the judgment, 15 at a rate equal to the weekly average 1-year constant 16 maturity Treasury yield, as published by the Board of 17 Governors of the Federal Reserve System, for the 18 calendar week preceding the date of judgment.” Id. 19 Post-judgment interest is compounded annually and 20 computed daily up to the date the judgment is paid. Id. 21 § 1961(b). Post-judgment interest is to be applied to 22 all component parts of a judgment, including costs and 23 the prejudgment interest award. Air Separation, Inc. v. 24 Underwriters at Lloyd’s of London, 45 F.3d 288, 290-91 25 (9th Cir. 1995). 26 B. Analysis 27 1. Motion for Reconsideration 28 Plaintiffs argue that they are entitled to either 9 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 10 of 20 Page ID #:16480

1 amendment or relief from the Judgment because the Court

2 manifestly erred by concluding that: (1) the 2017

3 Agreement failed to satisfy the statute of frauds; (2) 4 the economic loss rule barred Plaintiffs’ fraud claims; 5 (3) Defendants did not owe Plaintiffs a duty to disclose 6 their intent to end supply; and (4) AquaChile was 7 entitled to recovery as a matter of law on its 8 counterclaims for breach of contract. Pls.’ Mot. for 9 Reconsideration 1:13-26, ECF No. 272. The Court will 10 address each argument in turn. 11 a. The Statute of Frauds [272] 12 “A memorandum satisfies the statute of frauds if it 13 identifies the subject of the parties’ agreement, shows 14 that they made a contract, and states the essential 15 contract terms with reasonable certainty.” Sterling v. 16 Taylor, 152 P.3d 757, 766 (Cal. 2007). “What is 17 essential depends on the agreement and its context and 18 also on the subsequent conduct of the parties.” Id. 19 “Because the memorandum itself must include the 20 essential contractual terms, it is clear that extrinsic 21 evidence cannot supply those required terms.” Id. at 22 767. 23 Plaintiffs argue that the Court failed to consider 24 Plaintiffs’ argument that “the combination of the [2017 25 Agreement] and the [2019 Agreement] together constituted 26 a sufficient ‘memorandum’ or ‘writing’ to satisfy the 27 statute of frauds.” Mot. 3:17-19. This argument fails 28 under Sterling, which makes clear that the essential 10 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 11 of 20 Page ID #:16481

1 terms of the agreement sought to be enforced must be

2 stated in the memorandum itself. Here, the 2019

3 Agreement contains no essential terms from the 2017 4 Agreement at all. It is thus impossible for the Court 5 to determine with any certainty that the 2019 Agreement 6 is referencing the purported 2017 Agreement that 7 Plaintiffs have put forward. Plaintiffs insist that the 8 essential terms of the 2017 Agreement can be read into 9 the 2019 Agreement, but the two documents cannot be read 10 together to satisfy the statute of frauds when the 2019 11 Agreement contains no essential terms from the 2017 12 Agreement whatsoever. See Straus v. De Young, 155 F. 13 Supp. 215, 219 (S.D. Cal. 1957) (finding signed 14 memorandums insufficient to satisfy the statute of 15 frauds because none contained “any language which 16 indicate[d] or from which might be inferred an intention 17 on the part of the defendants to authenticate or confirm 18 the oral agreement”). 19 In the cases cited by Plaintiff where the Court 20 read two documents together, it was clear that the 21 signed writing was referring to another specific 22 document that set forth the essential terms of the 23 agreement. See, e.g., Searles v. Gonzales, 191 Cal. 24 426, 433 (1923) (considering unsigned interest notices 25 together with signed checks because the documents “were, 26 without question, linked together in the minds of the 27 parties”). Here, however, the relation between the 2019 28 Agreement and the purported 2017 Agreement simply does 11 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 12 of 20 Page ID #:16482

1 not “appear upon the face of the writings relied upon.”

2 Id. at 431. The 2019 Agreement’s single reference to an

3 agreement between the parties that took place in 2017 4 does not satisfy the statute of frauds. As stated in 5 the Court’s previous order, the 2019 Agreement could be 6 referring to a single purchase order entered into on 7 July 3, 2017, just as easily as it could be referring to 8 a three-year supply agreement entered into on that date. 9 Plaintiffs further assert that the Court failed to 10 recognize that the 2019 Agreement “affirmed the three- 11 year duration when considered with parol evidence, which 12 can be introduced to establish satisfaction of the 13 statute of frauds.” Mot. for Reconsideration 8:3-7. 14 Not so. The law is clear that extrinsic evidence cannot 15 be used to supply essential terms that are missing from 16 the memorandum. See Sterling, 40 Cal. 4th at 766. 17 Moreover, as the Court stated in its previous Order, the 18 extrinsic evidence in this case does not convince the 19 Court that the parties entered into a three-year supply 20 agreement. Outside of the purported agreement itself, 21 Plaintiffs have failed to identify in the record a 22 single reference to a commitment by Defendants to 23 continue supplying Plaintiffs with salmon through July 24 2020. “The primary purpose of the [statute of frauds] 25 is evidentiary,” and Plaintiffs have not provided 26 sufficient evidence that the three-year supply agreement 27 was actually entered into. See id. It therefore fails 28 under the statute of frauds and is unenforceable as a 12 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 13 of 20 Page ID #:16483

1 matter of law.

2 b. Fraudulent Concealment

3 Plaintiffs argue that the Court erred in dismissing 4 their fraudulent inducement theory for two reasons: (1) 5 their fraud theory has been consistent throughout this 6 case, and (2) the economic loss doctrine does not apply 7 to fraudulent inducement claims. See Mot. for 8 Reconsideration 9:23-12:1. 9 As to the consistency of their fraud theory, 10 Plaintiffs assert that their fraudulent concealment 11 claims have always been based on Defendants’ intentional 12 concealment of the impending supply cutoff in order to 13 induce Smokehouse to enter into the 2019 Agreement and 14 other subsequent purchases. Id. at 10:21-11:21. 15 However, Plaintiffs did not frame their claims as 16 fraudulent inducement in the FAC. Plaintiffs did not 17 allege that Defendants fraudulently concealed the supply 18 cutoff with the intention of inducing Plaintiffs to 19 enter into subsequent agreements. Rather, Plaintiffs 20 alleged that Defendants concealed the supply cutoff to 21 avoid litigation, and as a result, Plaintiffs were 22 deprived of time to find alternative suppliers. See FAC 23 ¶¶ 76, 80, 100-109. Plaintiffs should not be permitted 24 to change the factual basis of their claim at the 25 summary judgment stage. See Swan v. Bank of Am. Corp., 26 No. 2:07–CV–00217–PMP–LRL, 2008 WL 2859066, at *10-11 27 (D. Nev. July 22, 2008) (citing Coleman v. Quaker Oats 28 Co., 232 F.3d 1271, 1294 (9th Cir. 2000)). 13 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 14 of 20 Page ID #:16484 1 Even if the Court were to consider Plaintiffs’

2 fraudulent inducement theory, the claims would still be

3 barred by the economic loss rule. The economic loss 4 rule bars tort claims that seek recovery for purely 5 economic loss that is indistinguishable from the loss 6 caused by the breach of a contract. Robinson Helicopter 7 Co., v. Dana Corp., 102 P.3d 268, 273 (Cal. 2004). 8 Thus, “[g]enerally speaking, the terms of a contract 9 cannot form the basis of a fraudulent inducement claim.” 10 Lee v. Fed. St. L.A., LLC, No. 2:14-cv-06264-CAS(SSx), 11 2016 WL 2354835, at *9 (C.D. Cal. May 3, 2016) (citing 12 Foster Poultry Farms v. Alkar-Rapidpak-MP Equipment, 13 Inc., 868 F. Supp. 2d 983, 993 (E.D. Cal. 2012)). 14 Here, the purportedly fraudulent promise that 15 induced Plaintiffs to enter into the 2019 Agreement and 16 other subsequent purchases was that AquaChile would 17 continue supplying Plaintiffs with salmon. This was an 18 express term of the purported 2017 Agreement. Thus, 19 however Plaintiffs frame their fraud claims, they cannot 20 escape the economic loss rule because the claims are 21 based on Defendants’ failure to abide by their 22 obligation under the 2017 Agreement to continue 23 supplying Smokehouse with salmon. Even if Defendants’ 24 promise of continued supply induced Plaintiffs to enter 25 into a new contract with new parties, the breached 26 obligation that Plaintiffs seek to hold Defendants 27 liable for arises from the 2017 Agreement. Moreover, 28 Plaintiffs seek identical damages for their contract 14 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 15 of 20 Page ID #:16485

1 claims as they do for their fraud claims. The fraud

2 claims are therefore barred. See Foster Poultry Farms,

3 868 F. Supp. 2d at 994 (holding that “regardless of the 4 language used” in labelling a claim, fraud claims 5 involving misrepresentations that also constitute 6 standalone contractual obligations are barred by the 7 economic loss rule). 8 c. Duty to Disclose 9 Even if Defendants’ purported misrepresentations 10 were independent of the contractual obligations created 11 by the 2017 Agreement, Plaintiffs’ fraud claims 12 alternatively fail because Defendants did not have a 13 duty to disclose the supply cutoff decision to 14 Plaintiffs. Nothing in Plaintiffs’ Motion convinces the 15 Court that this holding was erroneous. Plaintiffs rely 16 upon the same law and the same facts in the record as it 17 did previously in arguing that a duty existed, all of 18 which the Court considered before ruling on Defendants’ 19 Motion for Summary Judgment. The Court need not address 20 those arguments again here. See C.D. Cal. L.R. 7-18 21 (“No motion for reconsideration may in any manner repeat 22 any oral or written argument made in support of, or in 23 opposition to, the original motion.”); Costello, 765 F. 24 Supp. at 1009. 25 d. AquaChile’s Counterclaims 26 Plaintiffs similarly fail to identify manifest 27 error in the Court’s ruling on AquaChile’s counterclaims 28 for breach of contract. Plaintiffs state that they 15 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 16 of 20 Page ID #:16486

1 provided various evidence of AquaChile’s representations

2 to Smokehouse that certain fillets were washed.

3 However, Plaintiffs provide no evidence of a 4 representation made by AquaChile that was knowingly 5 false when made. To prevail on its affirmative defense, 6 Smokehouse needed to identify a triable issue of fact 7 that AquaChile made a promise that it “had no intention 8 of performing at the time the promise was made.” UMG 9 Recordings, Inc. v. Global Eagle Ent., Inc., 117 F. 10 Supp. 3d 1092, 1108 (C.D. Cal. 2015). Plaintiffs assert 11 that AquaChile ceased washing their salmon fillets in 12 July 2019, see Pls.’ Resp. to Defs.’ SUF ¶ 240, but they 13 provide no evidence that any of the relevant purchases 14 were placed after this date. In other words, there is 15 no evidence that AquaChile promised to provide washed 16 fish with the intention of breaching that promise. Even 17 if some of the orders were ultimately not washed in 18 accordance with Smokehouse’s expectations, “[m]ere 19 nonperformance of a promise does not suffice to show 20 falsity of a promise.” UMG Recordings, 117 F. Supp. 3d 21 at 1108; see also Riverisland Cold Storage, Inc. v. 22 Fresno-Madera Prod. Credit Ass’n, 55 Cal. 4th 1169, 1183 23 (2013) (“It is insufficient to show an unkept but honest 24 promise, or mere subsequent failure of performance.”). 25 Thus, the Court did not err in granting AquaChile 26 summary judgment on its breach of contract claims. 27 In sum, Plaintiffs have failed to meet the high bar 28 required for relief under either Rule 59(e) or Rule 16 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 17 of 20 Page ID #:16487

1 60(b). The Court declines to address any remaining

2 arguments made by Plaintiffs, as they are repetitive of

3 those made in their Opposition to Defendants’ Motion for 4 Summary Judgment and therefore procedurally improper. 5 As other courts have aptly stated: 6 Rarely does the losing party believe that its 7 position lacked merit, or that the Court was 8 correct in ruling against it. Rather than either accept the Court’s ruling or appeal it, 9 it seems to have instead become de rigueur to 10 file a motion for reconsideration. The vast majority of these motions represent a simple 11 rehash of the arguments already made, although 12 now rewritten as though the Court was the opposing party and its Order the brief to be 13 opposed. It is easy for each litigant to 14 consider only his or her own motion, and the seemingly manifest injustice that has been done 15 to them. But the cumulative effect is one of 16 abuse of the system and a drain on judicial resources that could be better used to address 17 matters that have not yet been before the Court 18 once, let alone twice. 19 See Evans Hotel, 2022 WL 272009, at *5 (quoting Holtz v. 20 Powazek, No. 3:21-cv-01401-CAB-JLB, 2021 WL 5448981, at 21 *2 (S.D. Cal. Nov. 22, 2021)). Plaintiff’s Motion is 22 DENIED. 23 2. Motion to Amend [273] 24 AquaChile moves for amendment of the Court’s 25 judgment to include an award of both prejudgment and 26 post-judgment interest in relation to its breach of 27 contract claims. See generally AquaChile’s Mot. to Am. 28 J., ECF No. 273. The Court concludes that AquaChile is 17 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 18 of 20 Page ID #:16488

1 entitled to both prejudgment and post-judgment interest

2 and accordingly GRANT AquaChile’s Motion.

3 a. Prejudgment Interest 4 Plaintiffs argue that AquaChile is not entitled to 5 prejudgment interest because Smokehouse’s alleged debt 6 under each of the purchase orders was a disputed fact. 7 Pls.’ Opp’n to Mot. to Am. J. 2:14-15, ECF No. 277. 8 They argue that the parties “did not have a meeting of 9 the minds about the value of the product that AquaChile 10 delivered” because Smokehouse believed it was receiving 11 washed salmon fillets, but the fillets were in fact non- 12 washed. Id. at 2:26-3:8. Thus, the fair value of the 13 non-washed fillets received by Smokehouse was less than 14 the stated purchase price and remains a disputed fact. 15 Id. at 3:25-4:1. 16 Plaintiffs’ argument fails because Plaintiffs did 17 not dispute the amount that AquaChile was entitled to 18 recover on its breach of contract claims at the summary 19 judgment stage. In opposing these counterclaims, 20 Plaintiffs argued that AquaChile was not entitled to 21 recovery at all because AquaChile misrepresented that 22 the fillets were washed, a material component of the 23 agreement. See Pls.’ Opp’n to MSJ 25:10-22. Plaintiffs 24 did not argue, however, that if AquaChile was entitled 25 to recovery, the amount of damages was actually less 26 than what AquaChile claimed. “A claim that damages is 27 $0 is not a dispute which renders the amount of damages 28 uncertain; it is effectively an argument for no 18 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 19 of 20 Page ID #:16489

1 liability.” L.A. Unified Sch. Dist. v. Torres Constr.

2 Grp., 271 Cal. Rptr. 3d 523, 548 (Cal. Ct. App. 2020).

3 AquaChile requested a certain amount of damages for 4 its counterclaims, and Plaintiffs did not dispute that 5 this was the proper amount reflected in the purchase 6 orders or that the purchase orders governed AquaChile’s 7 claim for damages. Plaintiffs therefore knew the amount 8 of damages owed to AquaChile if Smokehouse were to be 9 found liable on the breach of contract claims. See 10 Chesapeake Indus., Inc. v. Togova Enters., Inc., 197 11 Cal. Rptr. 348, 352 (Cal. Ct. App. 1983) (stating that 12 the focus in determining whether damages are 13 sufficiently certain is on the debtor’s knowledge about 14 the amount of the creditor’s claim). AquaChile’s 15 damages were thus certain, and AquaChile is entitled to 16 prejudgment interest. 17 The parties agree on the proper calculation method 18 for prejudgment interest and further agree that the 19 proper amount of prejudgment interest to be awarded is 20 $131,850.21. See Pls.’ Opp’n to Mot. to Am. J. 5:12-15; 21 AquaChile’s Reply in Supp. of Mot. to Am. J. 6:7-12, ECF 22 No. 282. The Court therefore GRANTS Defendant’s request 23 for prejudgment in the amount of $131,850.21. 24 b. Post-Judgment Interest 25 Plaintiffs do not dispute that an award of post- 26 judgment interest is mandatory under 28 U.S.C. § 1961 or 27 that the applicable interest rate is 1.02%. See Pls.’ 28 Opp’n to Mot. to Am. J. 5:24-26. The parties further 19 Case 2:19-cv-10733-RSWL-JEM Document 294 Filed 06/14/22 Page 20 of 20 Page ID #:16490

1 agree that the post-judgment interest calculation should

2 include the final costs amount awarded on Defendants’

3 Application to the Clerk to Tax Costs. Thus, the Court 4 GRANTS AquaChile’s request for post-judgment interest, 5 which is to be computed daily starting from March 7, 6 2022. The amount accrued per day shall be calculated by 7 adding together $688,369.53 and the total costs awarded, 8 multiplying that amount by the interest rate of 1.02%, 9 and dividing by 365 to arrive at the daily figure. 10 III. CONCLUSION 11 Based on the foregoing, the Court DENIES 12 Plaintiffs’ Motion for Reconsideration. The Court 13 GRANTS AquaChile’s Motion to Amend Judgment to add 14 prejudgment and post-judgment interest. The prejudgment 15 interest award is $131,850.21. The post-judgment 16 interest award is to accrue at the statutory rate 17 starting from March 7, 2022. Defendants shall file a 18 Proposed Amended Judgment reflecting interest awards 19 consistent with both this Order and the final cost 20 award. 21 IT IS SO ORDERED. 22 23 DATED: June 14, 2022 ____/_s/_ R__on_a_l_d_ S_._W_._ L_e_w________

HONORABLE RONALD S.W. LEW

24 Senior U.S. District Judge 25 26 27 28 20