This case was last updated from Los Angeles County Superior Courts on 05/23/2019 at 08:05:03 (UTC).

DR ISMAEL SILVA JR VS JAMES DAVID WILLIAMS ET AL

Case Summary

On 06/16/2016 DR ISMAEL SILVA JR filed a Contract - Other Contract lawsuit against JAMES DAVID WILLIAMS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELIZABETH ALLEN WHITE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4006

  • Filing Date:

    06/16/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ELIZABETH ALLEN WHITE

 

Party Details

Plaintiffs and Petitioners

SILVA ISMAEL JR. DR.

SILVA ISMAEL JR.

Defendants and Respondents

WOODLAWN HOLDINGS LLC

MIRADA PARK LLC

WILLIAMS JAMES DAVID

WILLIAMS KAMMIE

HEALY KEITH

BROWN STEVEN J.

PLAINFIELD PASS LLC

MONTGOMERY ASTRID J.

SCHNEIDER STEVEN

WILLIAM MORRIS ENDEAVOR ENTERTAINMENT

MANASHIL STUART

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

COTTONE & MOON

COTTONE EDWIN R.

Defendant Attorneys

BURGEE JOHN G. ESQ.

GROTZINGER JORDAN D.

 

Court Documents

Case Management Statement

1/10/2019: Case Management Statement

Notice of Ruling

2/11/2019: Notice of Ruling

COMPLAINT FOR: 1. BREACH OF CONTRACT; ETC

6/16/2016: COMPLAINT FOR: 1. BREACH OF CONTRACT; ETC

SUMMONS

6/16/2016: SUMMONS

PROOF OF SERVICE SUMMONS

6/30/2016: PROOF OF SERVICE SUMMONS

Unknown

7/27/2016: Unknown

DECLARATION OF EDWIN R. COTTONE, ESQ. IN SUPPORT OF PLAINTIFF'S NOTICE OF UNAVAILABILITY WITH RESPECT TO HEARING ON DEFENDANT WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC'S DEMURRERS DUE TO COUNSEL'S AC

8/24/2016: DECLARATION OF EDWIN R. COTTONE, ESQ. IN SUPPORT OF PLAINTIFF'S NOTICE OF UNAVAILABILITY WITH RESPECT TO HEARING ON DEFENDANT WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC'S DEMURRERS DUE TO COUNSEL'S AC

Minute Order

10/4/2016: Minute Order

SEPARATE STATEMENT OF DISCOVERY ITEMS IN DISPUTE RE: FORM INTERROGATORIES (SET ONE) TO PLAINTIFF DR. ISMAEL SILVA, JR.

1/3/2017: SEPARATE STATEMENT OF DISCOVERY ITEMS IN DISPUTE RE: FORM INTERROGATORIES (SET ONE) TO PLAINTIFF DR. ISMAEL SILVA, JR.

Minute Order

2/23/2017: Minute Order

NOTICE OF RULING ON DEFENDANT STUART MANASHIL'S DEMURRER TO THE SECOND AMENDED COMPLAINT AND MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT

2/27/2017: NOTICE OF RULING ON DEFENDANT STUART MANASHIL'S DEMURRER TO THE SECOND AMENDED COMPLAINT AND MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT

PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE: DISMISSAL OF UNSERVED DEFENDANTS

4/14/2017: PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE: DISMISSAL OF UNSERVED DEFENDANTS

DECLARATION OF ANDREW LINARES IN SUPPORT OF PLAINTIFF'S APPLICATION FOR PUBLICATION

5/2/2017: DECLARATION OF ANDREW LINARES IN SUPPORT OF PLAINTIFF'S APPLICATION FOR PUBLICATION

NOTICE OF HEARING ON MOTION AND MOTION OF STEVEN J. BROWN TO COMPEL DEPOSITION OF PLAINTIFF ISMAEL SILVA, JR.; ETC.

5/9/2017: NOTICE OF HEARING ON MOTION AND MOTION OF STEVEN J. BROWN TO COMPEL DEPOSITION OF PLAINTIFF ISMAEL SILVA, JR.; ETC.

Minute Order

6/14/2017: Minute Order

RULING

7/26/2017: RULING

DEFENDANT WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC'S STATUS CONFERENCE STATEMENT

11/13/2017: DEFENDANT WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC'S STATUS CONFERENCE STATEMENT

113 More Documents Available

 

Docket Entries

  • 02/20/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 02/11/2019
  • Notice of Ruling (OF THE COURT?S MINUTE ORDER ON STATUS CONFERENCE; ORDER TO SHOW CAUSE RE: DISMISSAL AS TO ALL UNSERVED DEFENDANTS AND CASE MANAGEMENT CONFERENCE); Filed by Ismael Silva, Jr. (Plaintiff)

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  • 01/30/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Case Management Conference - Held

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  • 01/30/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Status Conference - Held

    Read MoreRead Less
  • 01/30/2019
  • at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Order to Show Cause Re: (Dismissal as to all Unserved Defendants) - Not Held - Continued - Court's Motion

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  • 01/30/2019
  • Certificate of Mailing for (Minute Order (Status Conference; Order to Show Cause Re: Dismissal as to al...) of 01/30/2019); Filed by Clerk

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  • 01/30/2019
  • Minute Order ( (Status Conference; Order to Show Cause Re: Dismissal as to al...)); Filed by Clerk

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  • 01/15/2019
  • Statement of the Case; Filed by William Morris Endeavor Entertainment, (Defendant)

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  • 01/10/2019
  • Case Management Statement; Filed by Ismael Silva, Jr. (Plaintiff)

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  • 01/10/2019
  • Statement of the Case (PLAINTIFF?S STATUS CONFERENCE STATEMENT); Filed by Ismael Silva, Jr. (Plaintiff)

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258 More Docket Entries
  • 07/05/2016
  • PROOF OF SERVICE SUMMONS

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  • 06/30/2016
  • Proof-Service/Summons; Filed by Ismael Silva, Jr. (Plaintiff)

    Read MoreRead Less
  • 06/30/2016
  • PROOF OF SERVICE SUMMONS

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  • 06/30/2016
  • Proof-Service/Summons; Filed by Ismael Silva, Jr. (Plaintiff)

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  • 06/30/2016
  • PROOF OF SERVICE SUMMONS

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  • 06/27/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/27/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 06/16/2016
  • COMPLAINT FOR: 1. BREACH OF CONTRACT; ETC

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  • 06/16/2016
  • Complaint; Filed by Ismael Silva, Jr. (Plaintiff)

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  • 06/16/2016
  • SUMMONS

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Tentative Rulings

Case Number: BC624006    Hearing Date: April 7, 2021    Dept: 48

[TENTATIVE] ORDER RE: CROSS-DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

On December 2, 2016, Plaintiff Dr. Ismael Silva Jr. (“Plaintiff”) filed a second amended complaint (“SAC”) against Defendants James David Williams (“Williams”), Steven J. Brown (“Brown”), Kammie Williams, Astrid J. Montgomery, Plainfield Pass LLC (“Plainfield Pass”), Woodlawn Holdings LLC (“Woodlawn”), Keith Healy (“Healy”), Mirada Park LLC (“Mirada Park”), Steven Schneider (“Schneider”), Stuart Manashil (“Manashil”), and William Morris Endeavor Entertainment LLC (“WME”). Plaintiff later dismissed Healy and Woodlawn.

On November 22, 2019, WME filed a motion for summary judgment, or in the alternative, summary adjudication.

EVIDENTIARY OBJECTIONS

The Court does not rule on Plaintiff’s objection Nos. 1-4 because the evidence objected to was not material to the Court’s decision. (See Code Civ. Proc., § 437c, subd. (q).) The long arguments in the objections are improper and contrary to the applicable California Rule of Court.

WME’s objection Nos. 1-4 are overruled. WME did not submit the entire deposition transcript. The portions submitted show that Plaintiff testified about more details concerning his calls with Manashil than merely “A bunch of guys together just giving accolades to each other.”

REQUEST FOR JUDICIAL NOTICE

WME requests that the Court take judicial notice of 9 documents from various courts. Plaintiff also requests that the Court take judicial notice of 7 documents from various courts. The requests are granted.

BACKGROUND FACTS

Plaintiff is an orthopedic surgeon. WME is a talent agency. (Undisputed Material Facts “UMF” 1-3.) Manashil was a talent agent at WME between 2014 and 2017, and he represented outside clients in current and prospective film entertainment matters. (UMF 5-6.) Brown was one of Manashil’s friends, and Manashil knew Williams through Brown. (UMF 16-17.) Brown and Williams were not Manashil’s clients, and they were not employed by WME. (UMF 15, 18.) No other defendants in this action were employed by or affiliated with WME, and none had authority to act on behalf of WME. (UMF 19-24.)

Plaintiff met Brown in April 2014, and Plaintiff had several meetings and conversations with Brown and Williams about investing in a movie project known as Plymouth. (UMF 25-26; Additional Material Facts “AMF” 20.) Brown and Williams held themselves out to be experienced movie producers and businessmen with significant connections in the film and entertainment industry. (AMF 19.) They represented to Plaintiff that Schneider had acquired the rights to Plymouth. (UMF 21.) However, Schneider did not actually acquire the rights to Plymouth. (AMF 32.) Schneider was one of Manashil’s clients in 2014, but they did not have any written representation agreements regarding Plymouth. (UMF 13-14.) Brown and Williams told Plaintiff that Plymouth would be successful because of the “team” putting it together, and all that was needed was money for its production. (AMF 24-25.)

Before Plaintiff invested in Plymouth, he spoke with Manashil via phone on two occasions in the summer of 2014, for 15 to 30 minutes each time. (UMF 27.) Manashil spoke with Plaintiff regarding the project at Brown’s request, and Brown was also on the calls. (UMF 28-29.) During these two calls, the parties allegedly discussed budgeting for Plymouth, Manashil called Brown and Williams “great guys,” and Manashil stated that Brown and Williams had a strong track record in the film industry. (UMF 30-32; AMF 38-40.) Before investing in Plymouth, Plaintiff never met with Manashil in person, never spoke with anyone at WME other than Manashil, never visited any WME office, and never received any paperwork showing WME’s affiliation with the project. (UMF 33-35.)

On July 5, 2014, Brown and Manashil exchanged emails regarding prospective investors, and Brown stated, “We will crush them. Gonna fuck them like they have never seen.” (AMF 53-55.)

On September 11, 2014, Williams and Brown provided Plaintiff with a fake bank statement purporting to show a balance of $3,500,200.07 in Plainfield Pass’ account. (AMF 61-62.) The same day, Plaintiff entered into a Deal Memo with Plainfield Pass, memorializing that Plainfield Pass would produce Plymouth within six months and Plaintiff would contribute $500,000 to the production. (UMF 36; AMF 74.) Williams signed the Deal Memo on behalf of Plainfield Pass. (UMF 37.) Plaintiff also entered into an unconditional irrevocable feature film investment guarantee with Woodlawn, signed by Plaintiff and Healy. (UMF 38-39; AMF 75.) Neither the Deal Memo nor the guarantee referenced WME. (UMF 41.)

Plaintiff wired $500,000 to Plainfield Pass on September 12, 2014, and within a few days, the funds were diverted to Mirada Park to purchase a house for Williams and Kammie Williams. (UMF 42-43; AMF 76-77.) Neither WME nor Manashil ever possessed, handled, or received any of Plaintiff’s $500,000 investment. (UMF 47-48.)

In a September 14, 2014 email to a third party where Manashil was copied as a recipient, Brown stated that WME was “repping Sony Music handling the music,” and that “Stuart Manashil is the architect who helped bring the pieces together.” (AMF 29-30.)

In the summer of 2015, Plaintiff called Manashil about his investment, and Manashil said he would call Brown. (UMF 44; see AMF 84.) Brown told Manashil that the issue was being resolved pursuant to a buyout agreement. (UMF 45.) Manashil never informed anyone at WME about Plymouth until after Plaintiff started making litigation threats in the summer of 2015. (UMF 52.)

On September 4, 2015, Plaintiff emailed the assistant to David Wirtschafter at WME about Plymouth and Manashil’s involvement, and requesting help in recovering his investment. (UMF 46; AMF 89, 91-93.) Plaintiff sent another similar email on October 21, 2015, and Wirtschafter’s office asked by Plaintiff was contacting them about it. (AMF 95.) On October 29, 2015, Plaintiff explained that he lost his investment in a project that he thought was being produced by Schneider, Manashil’s and WME’s client. (AMF 96-99.)

LEGAL STANDARD

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163 (Sangster).)

DISCUSSION

Plaintiff alleges the fourth (fraud), fifth (conspiracy to defraud), sixth (aiding and abetting fraud), seventh (negligent misrepresentation), and eleventh (aiding and abetting breach of fiduciary duty) against WME.

A. Fraud and Negligent Misrepresentation – Fourth and Seventh Causes of Action

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citations.] The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. [Citations.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) Fraud based on concealment requires that “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311 (Bigler-Engler).)

WME argues Plaintiff cannot prove that Manashil made an actionable representation of existing or past material fact, that Manashil intended to defraud Plaintiff or knew any statements were false, and that Manashil owed a duty to Plaintiff. WME also argues it cannot be liable as a matter of law.

1. Actionable statement

Negligent misrepresentation requires a false statement of a past or existing material fact. (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 984.) Plaintiff testified that Manahsil tricked him because he “led [Plaintiff] to believe how great all these guys were, including [Brown] and [Williams].” (Motion at p. 20; WME’s Compendium of Evidence, Ex. A at p. 100.) He also “gave [Plaintiff] real positive accolades and attributes these guys got in the film industry as well as himself.” (WME’s Compendium of Evidence, Ex. A at p. 100.) When asked about Manashil sharing his opinion about Brown and Williams being great, Plaintiff explained, “It was like a bunch of guys getting together, hey, you’re fantastic. . . . I mean it was just a bunch of guys together just giving accolades to each other . . . .” (Motion at p. 19; WME’s Compendium of Evidence, Ex. A at pp. 220-221.) These are statements of opinion, not actionable fact.

However, Plaintiff also testified that Manashil told him that Brown and Williams had been in the movie industry and “had good outcomes with their things.” (WME’s Compendium of Evidence, Ex. A at p. 221.) Manashil told Plaintiff that some movies “had made tens of millions of dollars,” and there was a list and all these movies there was nothing in there that he said was less than 10 or 12 million dollars.” (Id. at p. 229.) WME argues that Plaintiff could not remember any amounts that Manashil said a specific film had made. (Motion at p. 20.) But stating that none of Brown’s or William’s films made less than 10 or 12 million dollars is a sufficiently actionable statement of fact.

WME also contends that Manashil’s statements about the ability to get a better quality film with a bigger budget are also non-actionable opinions. (Motion at p. 12.) While that may be a prediction about the quality of the film as a result of the budget, a statement that the budget was $4 million is not a prediction or opinion. Plaintiff testified that Manashil told him Schneider needed $4 million or the film could not happen. (WME’s Compendium of Evidence, Ex. A at pp. 190-191.)

WME has not met its initial burden of showing the lack of an actionable statement.

2. Falsity and intent to defraud

WME argues there is insufficient evidence of Manashil’s intent to defraud or knowledge that the representations were false. (Motion at p. 20.) Manashil denied he had anything to do with where Plaintiff’s money went and confirmed that he expected Plymouth might be made. (WME’s Compendium of Evidence, Ex. B at p. 372.) He also confirmed that no one told him or suggested that they did not intend to try to have the film made, and he never assisted anyone in misleading Plaintiff. (Ibid.) WME has therefore met its initial burden.

Plaintiff also submits an email from Brown to Manashil in which Brown referred to prospective investors and said, “We will crush them. Gonna fuck them like they have never seen.” (Plaintiff’s Evidence, Ex. 11.) Manashil replied, “Oh we will.” In another email, Brown told Manashil, “I sure look forward to seeing u and maybe we call Williams. We are working on fucking them for 4 mill. Williams is always a risk so yeah we’ll need to remind him of the circle of honor.” A reasonable jury could find that this shows intent to fraud and knowledge of the falsity of the $4 million budget.

3. Duty of disclosure

An essential element of intentional concealment includes the duty to disclose, which must be based upon a transaction, or a special relationship, between plaintiff and defendant. (Bigler-Engler, supra, 7 Cal.App.5th at p. 314.) “There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.’” (Id. at p. 311.)

WME contends that Plaintiff were not in any relationship that had a duty of disclosure, as Manashil was not a fiduciary of, agent of, or party to a transaction with Plaintiff. (Motion at p. 21.) But WME does not address the other possible bases. Accordingly, it has not met his initial burden.

4. WME’s liability

WME contends that even if there is a triable issue of fact as to Manashil’s representations, WME is not liable. (Motion at p. 21.)

a. Respondeat Superior

First, WME argues that it is not liable under the doctrine of respondeat superior because Manashil’s wrongful acts were outside the scope of his employment. An employer is vicariously liable for the torts of its employees committed within the scope of the employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) An employee’s willful, malicious, and even criminal torts may fall within the scope of his or her employment for the purposes of respondeat superior, even if such crimes or intentional torts were not authorized by the employer. (Id. at pp. 296-297.) However, “[i]f an employee inflicts an injury out of personal malice, not engendered by the employment, the employer is not liable.” (Id. at 298.) The incident leading to the injury must be an “outgrowth” of the employment. (Id.) “California courts have also asked whether the tort was, in a general way, foreseeable from the employee’s duties. Respondeat superior liability should apply only to the types of injuries that as a practical matter are sure to occur in the conduct of the employer’s enterprise.” (Id., internal quotations omitted.) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ ” (Ibid.)

WME argues Plaintiff was not a client of WME and had no contract or agreement with WME. (UMF 4, 12.) Plaintiff did not receive any paperwork showing WME’s affiliation with the project. (UMF 34.) Plaintiff never spoke with anyone at WME other than Manashil and never visited the WME office. (UMF 33, 35.) Plaintiff’s couple conversations with Manashil were brief. (UMF 27.) Manashil and WME were not representing the other defendants on the proposed deal. (UMF 14, 15, 50, 51.) No one from WME negotiated the terms of the documents regarding Plaintiff’s investment, and WME is not mentioned in the documents. (UF 40, 41.) Manashil and WME did not receive any of Plaintiff’s investment. (UMF 47, 48.)

Plaintiff argues these facts, even if undisputed, are not a basis for summary judgment under Inter Mountain Mortgage, Inc. v. Sulimen (2000) 78 Cal.App.4th 1434. In that case, the loan representative submitted a loan application on his employer’s form, submitted other documentations originally made for the employer, and represented he was employed by the employer. The loan representative lead the plaintiff to believe he was performing his job duties for his employer when he submitted the fraudulent loan application. (Id. at p. 1442.) The court determined, “Under such circumstances, a nexus existed between [the loan representative’s] alleged tort, the fraudulent loan transaction, and his employment as a loan representative. The risk of one of defendants’ loan representatives submitting a fraudulent loan application . . . was a generally foreseeable risk inherent and incidental to defendants’ mortgage loan brokerage business.” (Ibid.) The court concluded such an occurrence was not so unusual or startling that it would be unfair to include the loss resulting from it among the cost of doing business. (Ibid.) Because there was sufficient evidence raising triable issues as to the employer’s vicarious liability, summary judgment was not warranted. (Ibid.)

Plaintiff argues like the loan representative, Manashil’s position made it reasonable to believe he would make false statements to close a movie deal for a client. (Opposition at pp. 21-22.) WME argues the case is inapplicable because the facts of those case made the fraudulent loan more closely connected to the employer’s business. (Reply at p. 11.)

The evidence allows for conflicting inference regarding WME’s vicarious liability. Manashil told Plaintiff that Schneider was attached to the Plymouth project, expressed his support for the project and the team, discussed budgeting for the project, emphasized Schneider’s past successes and Brown and Williams strong track record, and pushed an investment in Plymouth. (UMF 30, 31, 32; AUMF 33, 34, 35, 36.) These are the types of statements that would not be unusual or startling from an agent trying to close a movie deal for a client. A reasonable jury could infer from the evidence about Manashil’s conversations with Plaintiff, his representation of Schneider, and position at WME that WME is vicariously liable. Therefore, summary adjudication is not appropriate on this ground.

b. Ostensible Authority

Next, WME contends that it made no representations creating ostensible authority. (Motion at p. 24.) “Ostensible authority is authority that the principal, either intentionally or by lack of ordinary care, causes or allows a third party to believe the agent possesses. (Civ. Code, § 2317.) Ostensible authority is based on the principle of estoppel, and requires the essential elements of estoppel, i.e., representation, justifiable reliance, and changed position as a result of the reliance. [Citation.] Ostensible authority must be based on the acts or declarations of the principal and not solely upon the agent’s conduct. [Citation.]” (Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1005.) It is undisputed that Plaintiff never had a contractual relationship with WME, Plaintiff was never a client of WME, Plaintiff never visited a WME office, Plaintiff never received paperwork showing WME’s affiliation with the project, Plaintiff never spoke with anyone at WME besides Manashil, no one else at WME negotiated the written terms of the Deal Memo or Guarantee, and WME is not referenced in the Deal Memo or Guarantee. (UMF 4, 12, 33-35, 40-41.) WME has therefore met its initial burden. Plaintiff does not provide any argument or evidence to the contrary. Accordingly, WME is not liable under the doctrine of ostensible authority.

c. Authorization/Ratification

Finally, WME argues that it did not authorize or ratify any tortious acts. (Motion at p. 25.) “As an alternate theory to respondeat superior, an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee’s conduct is generally a factual question. [Citation.]” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169-170.) WME argues only that ratification requires its acceptance of the benefits of the transaction. However, although acceptance of benefits is one way to show ratification, it is not the only way. WME’s failure to accept any benefits of Manashil’s conduct toward Plaintiff does not preclude liability.

Therefore summary adjudication of the fourth and seventh causes of action is denied.

B. Conspiracy to Defraud – Fifth Cause of Action

The fifth cause of action alleges WME conspired with the other defendants. WME seeks summary adjudication of this cause of action on the ground that no one else at WME knew about Plymouth or committed any wrongful act with the other defendants. (Motion at p. 26.) “To establish conspiracy, a plaintiff must allege that the defendant had knowledge of and agreed to both the objective and the course of action that resulted in the injury, that there was a wrongful act committed pursuant to that agreement, and that there was resulting damage. [Citation.] A conspiracy requires evidence ‘that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it.’ [Citation.]” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652.) “The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582.)

The knowledge of an officer of a corporation within the scope of his duties is imputed to the corporation, even if that knowledge was not communicated to the principal. (Uecker v. Zentil (2016) 244 Cal.App.4th 789, 797.) “If the principal was ‘owned’ and ‘ “controlled by’ ” the agent, the agent’s fraud ‘is properly imputed to [the principal].’ [Citation.]” (Id. at p. 798.) But, “ ‘an officer’s knowledge is not imputed to the corporation when he has no authority to bind the corporation relative to the fact or matter within his knowledge.’ [Citation.] (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 679.)

Manashil did not have authority to set corporate policy or exercise corporate decision-making, was not in charge of any department at WME, and did not have management responsibilities. (UMF 7-10.) WME has therefore met its burden of showing that Manashil was not an officer or agent whose knowledge could be imputed to WME. Plaintiff did not dispute these facts and did not cite California authority that Manashil’s alleged knowledge of the conspiracy is imputed to WME. Therefore summary adjudication is granted on this cause of action.

C. Aiding and Abetting – Sixth and Eleventh Causes of Action

WME also contends that there is no evidence it aided or abetted any fraud or breach of fiduciary duty because Manashil’s knowledge cannot be imputed to WME and WME did not substantially assist or encourage anyone to commit a tortious act. (Motion at p. 27.) “Liability may also be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846.) “[L]iability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted.” (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1145.)

As discussed above, the undisputed evidence is that Manashil’s knowledge of the wrong is not imputed to WME. Accordingly, summary adjudication of the sixth and eleventh causes of action is granted.

CONCLUSION

The motion for summary adjudication is GRANTED as to the fifth, sixth, and eleventh causes of action. The motion is DENIED as to the fourth and seventh causes of action.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC624006    Hearing Date: July 23, 2020    Dept: 48

[TENTATIVE] ORDER RE MOTIONS TO COMPEL AND DEEM RFAS ADMITTED

Steve Schneider

On November 25, 2019, Plaintiff served requests for production of documents (set one), special interrogatories (set one), form interrogatories (set one) and requests for admission (set one) on defendant Steve Schneider. Schneider did not request an extension. In January 2020, after the time for a response, Schneider served responses to the special interrogatories which consisted of only objections. Counsel exchanged correspondence but as of April 16, 2020, Plaintiff had received no other responses. On April 16, 2020, Plaintiff filed a motion to compel responses to the form interrogatories, motion to deem RFAs admitted, motion to compel responses to the document requests, and a motion to compel further responses to special interrogatories.

Schneider argues that the pandemic has prevented him from preparing discovery responses. He gave Plaintiff’s counsel an extension of the time to file a motion to compel to mid-April 2020.

Schneider served responses to the form interrogatories, document requests and RFAs and further responses to the special interrogatories on July 9 and 10, 2020. Therefore the motions are all MOOT. If Plaintiff believes the new responses are inadequate, improper, or defective, the parties are to meet and confer by phone or videoconference to resolve the dispute. If that is not successful, they are to schedule an information discovery conference before a hearing on any motion to compel further discovery responses.

The Court does not impose sanctions given the difficulties defense counsel describes he had in preparing the responses due to the pandemic.

Stuart Manashil

On November 27, 2019, Plaintiff served requests for production of documents (set five), special interrogatories (set four), form interrogatories (set three) and requests for admission (set one) on defendant Stuart Manashil. Manashil did not request an extension. In January 2020, after the time for a response, Manashil served responses to the special interrogatories which consisted of only objections. Counsel exchanged correspondence but as of April 16, 2020, Plaintiff had received no other responses. On April 16, 2020, Plaintiff filed a motion to compel responses to the form interrogatories, motion to deem RFAs admitted, motion to compel responses to the document requests, and a motion to compel further responses to special interrogatories.

Manashil’s argument is the same as Schneider’s. Manashil served responses to the form interrogatories, document requests and RFAs and further responses to the special interrogatories on July 9 and 10, 2020. Therefore the motions are all MOOT. If Plaintiff believes the new responses are inadequate, improper, or defective, the parties are to meet and confer by phone or videoconference to resolve the dispute. If that is not successful, they are to schedule an information discovery conference before a hearing on any motion to compel further discovery responses.

The Court does not impose sanctions given the difficulties defense counsel describes he had in preparing the responses due to the pandemic.

In addition, defendant William Morris Endeavor Entertainment, LLC filed an opposition requesting that any matter deemed admitted be ordered not binding on it and not to have any preclusive effect on it. That is an issue to be determined if and when another party attempts use the admission in some way against it.

Steven J. Brown

On December 6, 2019, Plaintiff served requests for production of documents (set two), special interrogatories (set two), form interrogatories (set two) and requests for admission (set one) on defendant Steven J. Brown. Brown did not request an extension. Brown served no responses. Counsel exchanged correspondence, but as of April 16, 2020, Plaintiff had received no other responses. On April 16, 2020, Plaintiff filed a motion to compel responses to the form interrogatories, motion to deem RFAs admitted, motion to compel responses to the document requests, and motion to compel responses to special interrogatories.

Brown’s counsel states that he has not been able to communicate with defendant Brown because Brown is in a locked-down prison. He is able to send legal mail to Brown, but Brown has not responded to the mail. More recently, Brown has been transferred to a prison in Oregon where Brown’s counsel says legal mail is delayed.

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).)

Where a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The court shall grant a motion to deem admitted requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280, subd. (c).) It does not appear Brown served substantially compliant responses prior to the hearing.

Brown had more than three months to respond to the discovery before the pandemic shutdown orders. He has the obligation to keep in touch with his attorney, even if through the mail. At this point, the discovery was served 7.5 months ago, which is sufficient time for a person who is incarcerated to respond.

Accordingly, the motions are GRANTED. Brown is ordered to serve verified responses, without objection, to Plaintiff’s requests for production of documents, special interrogatories, and form interrogatories within thirty days of the date of this order. The RFAs are deemed admitted.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c).) Where a party fails to provide a timely response to requests for admission, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280, subd. (c).) The request for monetary sanctions is GRANTED and imposed against Brown in the amount of $494.50 to be paid within thirty days of the date of this order.

Astrid J. Montgomery

On February 3, 2020, Plaintiff served requests for production of documents (set two), special interrogatories (set two), form interrogatories (set two) and requests for admission (set one) on defendant Astrid Montgomery. Montgomery did not request an extension and served no responses. Counsel exchanged correspondence. On May 11, 2020, counsel for Montgomery emailed objections to the discovery. Plaintiff’s counsel states he did not see the email, and on May 12, 2020, Plaintiff filed a motion to compel responses to the form interrogatories, motion to deem RFAs admitted, motion to compel responses to the document requests, and motion to compel responses to special interrogatories.

Montgomery’s counsel states that he does not know where she is and does not have her current contact information. He states that the pandemic has made contacting Montgomery difficult.

Montgomery has the obligation to stay in touch with her lawyer. If she moves, she is to give her attorney her new contact information. A party’s failure to communicate with one’s attorney is not a basis for denying a motion to compel discovery from that party.

Accordingly, the motions are GRANTED. Montgomery is ordered to serve verified responses, without objection, to Plaintiff’s requests for production of documents, special interrogatories, and form interrogatories within thirty days of the date of this order. The RFAs are deemed admitted. The request for monetary sanctions is GRANTED and imposed against Montgomery in the amount of $494.50 to be paid within thirty days of the date of this order.

Conclusion

The four motions regarding discovery to defendant Steve Schneider are MOOT, and the request for sanctions is DENIED. The four motions regarding discovery to defendant Stuart Manashil are MOOT, and the request for sanctions is DENIED. The four motions regarding discovery to Steven J. Brown are GRANTED and the request for sanctions is GRANTED. The four motions regarding discovery to Astrid J. Montgomery are GRANTED and the request for sanctions is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

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