This section contains the nature of the case and procedural background.

From 2004 until 2019, OraHealth, founded by P who was also its President, manufactured a product called XyliMelts, an adhering disc designed to combat dry mouth. OraHealth sold its products wholesale to Amazon, which then sold OraHealth's products to the public. An employee of OraHealth agreed to a marketing development fund (MDF) agreement with P which took effect on January 1, 2012. D would deduct 10 percent of the net receipts from the sale of OraHealth products before remitting payment to OraHealth. The agreement would “automatically renew on the same terms for additional periods of one year each unless either Vendor or Amazon gives the other party written notice of non-renewal at least 60 days before the end of the term.” D made the 10 percent deduction from OraHealth's net receipts on a monthly basis. P sent an e-mail to D's employee, Hiley Olsen, in June 2012, objecting to the deductions and expressing his desire to obtain a lower MDF rate. OraHealth was unable to successfully negotiate a lower MDF rate, it did raise its prices by 6 percent in order to offset the monthly deductions. From 2013 to 2015, Amazon made no deductions. In January 2016, D sent a notice to OraHealth via e-mail, stating that it had conducted an audit and intended to deduct $47,679.44 from the next disbursement of funds to OraHealth. This amount represented 10 percent of OraHealth's net proceeds for the entire 2014 calendar year. OraHealth sent a letter to D, protesting the proposed deduction. D did not respond to the letter and made the deduction. In August 2016, Amazon sent another notice via e-mail to OraHealth, stating that it intended to deduct $81,857.16 from the next disbursement. This amount represented 10 percent of OraHealth's net proceeds for the entire 2015 calendar year. OraHealth renewed its objection to this proposed deduction. D made the deduction in October 2016 without resolving OraHealth's objection. D made no deductions during the 2016 calendar year. In March 2018, D deducted 10 percent of OraHealth's 2016 net proceeds from its disbursement, in an amount of $34,328.71. In March 2017, D increased the deduction rate to 13.65%. OraHealth did not agree to the 13.65 percent rate and was able to negotiate an MDF rate of 6 percent for the remainder of the year. In March 2018, D requested that OraHealth accept the updated terms of its agreements D stated that the MDF rate was 20 percent. P attempted to negotiate a 6 percent MDF rate in line with the previous year's figure. Those negotiations failed. OraHealth then ceased selling its products to D. In May 2018, D made a deduction of $28,017, representing 20 percent of OraHealth's net receipts for April 2018. P sued D, asserting claims for declaratory relief, unjust enrichment, accounts receivable, and violation of the Consumer Protection Act. P moved for partial summary judgment based on his own testimony as to the events and his cancellation of the MDF. D submitted a declaration from Gianmarco Vairo, a paralegal in D's litigation department, stating that he had conducted a search of records and was unable to “identify any additional documents or communications from P or any other OraHealth representative with Amazon between 2012 and when D began assessing post-audit coop fee deductions in 2016 except for one email chain. The court denied P's motion for partial summary judgment and entered a number of factual findings and related legal conclusions. It found that P never repudiated the 2012 Agreement. It held that P offered no evidence supporting that he had any further communications with D regarding the 2012 Agreement after his May and June 2012 emails. The court ruled that P's phone communications would have been ineffective in canceling the 2012 Agreement, which required advance “written notice” for any valid termination. The Court noted that P never mentioned these purported October 2012 communications with D in either of his two previously filed complaints in this action or in the six complaints he brought in his 2017-18 action against D concerning these same deductions. On April 9, 2021, the parties both filed motions for partial summary judgment. In denying P's second motion for partial summary judgment, the trial court found that the motion was “an untimely and improper attempt to seek reconsideration of the Court's Order” on the first summary judgment motion. In granting D's motion for partial summary judgment, the trial court reiterated that it had previously made “findings” that it was now treating as conclusive. Eventually, the complaint was dismissed, and P appealed. P claims he presented a triable issue of material fact and that the court erred when it refused to credit his declaration and entered summary judgment. D contends that P's declaration was “self-serving” and did not need to be accepted “at face value,” and was therefore insufficient to create a triable issue of fact.

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