JOSEPH BATAILLON, District Judge
This matter is before the court on defendant's partial motion for summary judgment pursuant to Fed.R.Civ.P. 56. Filing No. 37. Defendant Video Yellow Pages (Yellow Pages) challenges plaintiff Citron Haligman Bedecarre's (Citron) claim that there is a breach of express contract, contending that there is no signed express contract. Yellow Pages argues that in any event, Lisa Marco, Vice President of Advertising and Promotions, did not have the authority to enter into a contract with Citron. I have carefully reviewed the record, and in particular the briefs and indices of evidence, as well as the relevant case law. I conclude that defendant's motion for summary judgment should be denied at this time.
Yellow Pages also argues that plaintiff is not entitled to lost profits with regard to its quantum meruit claim. Plaintiff has agreed that it does not intend to ask for lost profits on the quantum meruit claim. Consequently, I shall deny this part of the motion as moot.
Standard of Review
On a motion for summary judgment, the question before the court is whether the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995). Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Id.
The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Therefore, if the defendant does not meet its initial burden with respect to an issue, summary judgment must be denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee's Furniture, Inc. v. Doughboy Recreational Inc., 825 F.2d 167, 173 (8th Cir. 1987).
Once the defendant meets its initial burden of showing there is no genuine issue of material fact, the plaintiff may not rest upon the allegations of his or her pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e); Chism v. W.R. Grace Co., 158 F.3d 988, 990 (8th Cir. 1998). The party opposing the motion must do more than simply show that there is some metaphysical doubt as to the material facts; he or she must show "there is sufficient evidence to support a jury verdict" in his or her favor. Id. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Facts
Citron is in the business of providing advertising agency services, and Yellow Pages provides Internet video advertising for businesses. Drafts of an Advertising Agency Agreement were created so that Citron would provide certain advertising services to Yellow Pages. It appears from the depositions and affidavits submitted to me that time was of the essence. The negotiations began in March 2000, and the project had to be completed in May 2000. Aff. of Bedecarre, Ex. 30, ¶ 11. Joe Montana had already been hired by Yellow Pages and was to be the spokesman for the video advertising. The deal was negotiated by Vice President of Advertising, Lisa Marco of Yellow Pages, who reported to Jim Pappas, President, and to Bill Chasse, then President of infoUSA.com. Yellow Pages was a subsidiary of infoUSA and shared offices with Yellow Pages.
It appears that the agreement in question was never executed, and according to Marco, she never received approval from Chasse. However, Thomas Bedecarre, Chairman of Citron, will testify that on March 10, 2000, he was told that Marco had hired Citron to do its advertising. Aff. of Bedecarre, Ex. 30, ¶ 13. Citron argues that Marco had total and complete authority to enter into the agreement and that substantial work had occurred in accordance with the terms of the agreement. Aff. of Bedecarre, Ex. 30, ¶¶ 30-39. Citron states that the work in this regard was extensive. Citron further argues that in such dot.com and start-up businesses of this type it is the norm to have an unsigned contractual agreement due to the fact that time is so critical. Aff. of Bedecarre, Ex. 30, ¶¶ 5 29. Further, Citron argues that the public was notified that Marco had hired Citron, and The Wall Street Journal and the P.R. Newswire ran articles about this $15,000,000 — 20,000,000 advertising account. Exs. 25 and 26. Citron states that these news releases were allegedly released by Yellow Pages.
Citron contends that the negotiations began in March 2002, were finalized in early April 2000, and work initiated during that time period. Citron contends that the final draft was agreed upon on April 4, 2000. Aff. of Bedecarre, Ex. 30, ¶ 27. Thereafter, in April 2000, Marco was discharged from her employment with Yellow Pages. Yellow Pages argues that it authorized only focus group work which was conducted, invoiced, and paid in full. Citron disagrees, stating that this is only a partial payment for the focus groups. Citron submitted an invoice for the first month's fee in the amount of $180,000, an amount Marco allegedly represented as acceptable, to Yellow Pages, who has refused to pay that amount since the agreement was never executed.
Discussion
Yellow Pages contends that California law applies to the issue of whether there was an express contract or not, as California has the most significant relationship to this dispute. See Powell v. American Charter Fed. Sav. and Loan Assoc., 514 N.W.2d 326 (Neb. 1994). It appears that the parties were located in San Francisco, the negotiations took place in San Francisco, and the advertising was to be performed in San Francisco. Citron has not offered any argument to the contrary, so for purposes of this motion I shall apply California law where applicable.
A contract under California law has four essential elements: (1) two or more parties who are capable of contracting; (2) mutual consent; (3) a lawful object; and (4) sufficient consideration. Cal. Civ. Code § 1550. Further, under California law, all contracts may be oral, unless, there is a statute that specifically requires a writing. Cal. Civ. Code § 1622. The parties have not argued that a specific statute requiring a signed writing applies in this case. The mutual assent requirement is the element that is heavily disputed by the parties in this lawsuit. Mutual assent has been interpreted to mean the parties must agree on all the essential features of the agreement. Banner Entertainment, Inc. v. Superior Court, 62 Cal.App.4th 348, 358, 72 Cal.Rptr.2d 598, 603 (1998).
Citron argues that the agreement was negotiated by both parties, reduced to writing and entered into. Citron allegedly performed substantial work under this agreement and, therefore, Citron contends it is entitled to payment for these services. Yellow Pages argues it did not sign any agreement, that obtaining signatures was a crucial requirement for acceptance of the contract, and that there is no express contract to enforce. Citron argues that the provision for acceptance can be waived by the offerer. Sabo v. Fasano, 154 Cal.App.3d 502, 505, 201 Cal.Rptr. 270 (1984). Citron contends that it has waived the signature provision. Citron argues that they had agreed to the scope of the work, compensation, terms of the agreement, assigned personnel and resources, and conducted focus groups. In a California case where the plaintiff had not signed the agreement, the court stated: "[I]t is not the presence or absence of a signature which is dispositive; it is the presence or absence of evidence of an agreement to arbitrate which matters." Banner Entertainment, Inc. v. Superior Court, 72 Cal.Rptr.2d at 606.
After carefully reviewing the arguments and evidence submitted by the parties, I conclude that the motion for summary judgment must be denied. The number of factual issues argued by the parties convinces me that the contract issue should not be decided by a motion for summary judgment.
Yellow Pages next argues that in any event Marco had no authority to enter into an agreement with Citron. Citron argues that Marco has at least apparent, if not actual, authority to enter into the contract. Citron states that Marco was the only vice president of Yellow Pages known to Citron. Her business cards and her emails held her out to be the vice president. The newspaper accounts indicated that Marco had hired Citron to handle its advertising needs. Citron has provided sufficient evidence to meet its burden at the summary judgment stage to support its argument that Marco had the authority to enter into agreements on behalf of Yellow Pages.
Thus, I shall deny the motion for summary judgment at this time and the case shall proceed to trial.
THEREFORE, IT IS ORDERED that the defendant's motion for partial summary judgment, Filing No. 37, is denied.