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United States District Court 

For the Northern District of California 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

EFORCE GLOBAL, INC., 

Plaintiff, 

v. 

BANK OF AMERICA, N.A., 

Defendant. 

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Case No. 09-1984 SC 

ORDER GRANTING DEFENDANT'S 

MOTION FOR SUMMARY JUDGMENT

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"). Docket No. 31 

("Motion"). 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. For the reasons stated below, Defendant's Motion is 

GRANTED. 

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. Id.

¶ 8. On January 7, 2008, eForce and the University signed a 

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 

("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. Compl. ¶ 12; Ravindra 

Pande Dep. at 78:12-79:23. 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. Ravindra Pande Decl. 

¶ 2. 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." Ravindra Pande Dep. at 79:18-

20. 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. 

 

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." Fed. 

R. Civ. P. 56(c). 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. 

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

should be granted where the evidence is such that it would require 

a directed verdict for the moving party. Anderson v. Liberty 

 

2

 Ravindra Pande and Sujith Nair ("Nair"), employees of eForce, 

submitted declarations in support of eForce's Opposition. Docket 

Nos. 36-4, 36-7. 

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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." Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986). "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 

eForce filed objections to the evidence Bank of America 

submitted in support of its Motion. Docket No. 35 ("eForce 

Objections"). Bank of America responded to the objections. Docket 

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. eForce Objections 

at 2. This contention is simply incorrect, and the cases cited by 

eForce do not support it. In Garcia-Martinez v. City and County of 

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. 464 F.3d 659, 664-65 (7th Cir. 

2006). Neither case supports the novel evidentiary rule proposed 

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by eForce. It is elementary that a party moving for summary 

judgment may rely on deposition testimony. Celotex, 477 U.S. at 

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. See

Overend Decl. ¶ 2, Ex. A ("May 25, 2010 Email").3 Hence, the Court 

does not need to rule on these objections. Plaintiff has also 

withdrawn its request for a Rule 56(f) continuance, and therefore 

the Court does not respond to that request. See Opp'n at 3-6; 

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 

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 

objections based on alleged inaccurate citations. Having reviewed 

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. 

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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. 

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 

 

4

 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. See June 4, 

2010 Letter. 

B. Breach of Oral Contract

"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. 

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

requires consenting parties, and their consent must be free, 

mutual, and communicated by each to the other. Cal. Civ. Code §§ 

1550, 1565. Consent is not mutual unless the parties all agree 

upon the same thing in the same sense. Id. § 1580. "If there is 

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. Plaintiff alleges that "Bank of America agreed to 

 

5

 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. 

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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 

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. Reidy Decl. Ex. A ("Simas Dep.") at 15:1-24, 62:6-

24, 64:14-18. The file formats discussed included the Bank of 

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

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 

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

 

6

 eForce refers to the University as "UCOP," which is an 

abbreviation for the University of California Office of the 

President. 

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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 

representation during the call that the XML payment interface would 

be in production in October 2007. Ravindra Pande Decl. ¶¶ 15-17; 

Nair Decl. ¶ 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. eForce did not decide during 

the call to go with the XML format. 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). 

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. See Ravindra Pande Dep. 

Ex. 6 ("Aug. 10, 2007 Email"). The email states "[w]e are planning 

implement [sic] the XML interface based on ISO 20022." Id. at EFO 

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; 

Aug. 10, 2007 Email at EFO 08882. Contract formation requires a 

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

EFO 08884-86. Powell forwarded the information to Ravindra Pande 

on August 2, 2007. Id. at 08884. 

 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: 

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 08598-

08605. He notes that Bank of America's "documentation for the XML 

process is still being established." Id. at EFO 08599. In 

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 

emails can be construed as giving rise to a contract. Where is the 

offer or an acceptance of that offer? 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. Opp'n at 6-7, 

13-14. This contention is without merit. "[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, 

there was no contract between eForce and Bank of America. See Part 

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 

Bank of America and the University "to discuss the University of 

California's desire to become an XML pilot client." Simas Dep. Ex. 

21 ("Sept. 26, 2007 Email") at BOA 05753. "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." Ravindra Pande Dep. Ex. 8 ("Emails") at 

EFO 42812. eForce responded that early First Quarter 2008 was the 

goal for full production status. Id. at EFO 42814.7

 

 

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. Ravindra Pande Dep. at 120:4-

121:25. During the call, eForce was still hoping to get into 

parallel production by the end of 2007. Id. at 122:1-17. After 

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. 

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 (which will be 

embarrassing and possibly damaging to our 

relationship with the UC). 

Simas Dep. Ex. 28 ("Carlson Email") at BOA 00426. By December 20, 

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 

Email"). On March 4, 2008, Chu, a Bank of America project manager, 

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. P.K. Pande Decl. 

¶ 9. Under the terms of the contract, the University agreed to pay 

eForce $100,000 for the ITOPS software. UC Banking Services 

Agreement Part I § 1. Concerning deployment, the contract 

provides: 

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. The contract also provides for a monthly 

subscription fee: 

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. 

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. Ravindra Pande 

Dep. at 132:17-133:11. 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. Ravindra Pande 

Dep. at 66:3-19. 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." Reidy Decl. 

Ex. F ("P.K. Pande Dep.") at 75:5-7. 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, 

66:1-3, 67:22-68:4, 69:1-9. There is no genuine issue of material 

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 

evidence in support of this contention. In support of its 

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. P.K. 

Pande Decl. ¶ 20. 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. 

Dated: June 24, 2010 

UNITED STATES DISTRICT JUDGE

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