This case was last updated from Los Angeles County Superior Courts on 10/23/2020 at 16:42:29 (UTC).

EVAN ISRAEL BRENNER VS MIKA JAYMES INC ET AL

Case Summary

On 01/19/2018 EVAN ISRAEL BRENNER filed an Other lawsuit against MIKA JAYMES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MALCOLM MACKEY and DAVID S. CUNNINGHAM III. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0971

  • Filing Date:

    01/19/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MALCOLM MACKEY

DAVID S. CUNNINGHAM III

 

Party Details

Defendants, Respondents and Cross Plaintiffs

MIKA JAYMES INC

DOES 1 TO 10

JAHAVERY MEHRAD

Minors, Cross Defendants and Not Classified By Court

BRENNER MIKA JAYMES

BRENNER EVAN ISRAEL

Guardian Ad Litem, Cross Defendant and Not Classified By Court

BRENNER EVAN ISRAEL

Attorney/Law Firm Details

Defendant, Respondent and Cross Plaintiff Attorneys

RICHARDS RONALD N. ESQ.

MURO RAYMOND

MURO RAYMOND J. ESQ.

MURO RAYMOND J.

RICHARDS RONALD N.

Cross Defendant Attorney

BRODY LORI SAMBOL

Minor Attorney

GEORGE ERIC M. ESQ.

Other Attorneys

NICHOLSON GUY CRAIG

NICHOLSON GUY C. ESQ.

KITSON ROBERT M

KITSON ROBERT M.

GEORGE ERIC M.

 

Court Documents

Minute Order - MINUTE ORDER (COURT ORDER)

8/3/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

7/10/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Opposition - OPPOSITION TO EX PARTE

6/22/2020: Opposition - OPPOSITION TO EX PARTE

Minute Order - MINUTE ORDER (COURT ORDER)

5/4/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Proof of Service - Order Granting Attorney's Motion to be Relieved as Counsel - PROOF OF SERVICE BY MAIL

9/27/2019: Proof of Service - Order Granting Attorney's Motion to be Relieved as Counsel - PROOF OF SERVICE BY MAIL

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil - DECLARATION IN SUPPORT OF MOTION

9/27/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil - DECLARATION IN SUPPORT OF MOTION

Notice - NOTICE OF NON-- OPPOSITION TO BROWNE GEORGE ROSS LLPS MOTION TO BE RELIEVED AS COUNSEL FOR PLAINTIFF AND CROSS-CROSS- DEFENDANT EVAN BRENNER, ON BEHALF OF HIS MINOR CHILD MIKA BRENNER

10/17/2019: Notice - NOTICE OF NON-- OPPOSITION TO BROWNE GEORGE ROSS LLPS MOTION TO BE RELIEVED AS COUNSEL FOR PLAINTIFF AND CROSS-CROSS- DEFENDANT EVAN BRENNER, ON BEHALF OF HIS MINOR CHILD MIKA BRENNER

Notice - NOTICE OF ERRATA RE GLOBAL PROOF OF SERVICE OF MOTION TO BE RELIEVED AS COUNSEL, DECLARATION IN SUPPORT AND PROPOSED ORDER FOR EVAN ISRAEL BRENNER,INDIVIDUALLY

10/30/2019: Notice - NOTICE OF ERRATA RE GLOBAL PROOF OF SERVICE OF MOTION TO BE RELIEVED AS COUNSEL, DECLARATION IN SUPPORT AND PROPOSED ORDER FOR EVAN ISRAEL BRENNER,INDIVIDUALLY

Motion for Summary Judgment

1/16/2020: Motion for Summary Judgment

Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS MIKA JAYMES, INC., AND MEHRAD JAVAHERY'SJAVAHERYS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUM

1/17/2020: Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS MIKA JAYMES, INC., AND MEHRAD JAVAHERY'SJAVAHERYS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUM

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/28/2020

4/28/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/28/2020

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Application And Order For Appointment of Guardian Ad Litem

10/24/2018: Application And Order For Appointment of Guardian Ad Litem

Minute Order - Minute Order (Case Management Conference)

12/13/2018: Minute Order - Minute Order (Case Management Conference)

Minute Order -

5/9/2018: Minute Order -

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

9/5/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE

5/10/2018: NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE

COMPLAINT FOR (1) RIGHT OF PUBLICITY UNDER CIVIL CODE 3344; ETC

1/19/2018: COMPLAINT FOR (1) RIGHT OF PUBLICITY UNDER CIVIL CODE 3344; ETC

100 More Documents Available

 

Docket Entries

  • 08/24/2021
  • Hearing08/24/2021 at 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 08/17/2021
  • Hearing08/17/2021 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/19/2020
  • DocketNotice of Ruling; Filed by Mika Jaymes, Inc (Defendant); Mehrad Jahavery (Defendant)

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  • 08/18/2020
  • Docketat 1:30 PM in Department 37; Hearing on Motion to Compel Further Discovery Responses - Held

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  • 08/18/2020
  • Docketat 1:30 PM in Department 37; Hearing on Motion to Compel Further Discovery Responses - Held

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  • 08/18/2020
  • Docketat 1:30 PM in Department 37; Hearing on Motion to Compel Further Discovery Responses - Held

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  • 08/18/2020
  • Docketat 1:30 PM in Department 37; Hearing on Motion to Compel Further Discovery Responses - Held

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  • 08/18/2020
  • Docketat 1:30 PM in Department 37; Hearing on Motion to Compel Further Discovery Responses - Held

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  • 08/18/2020
  • Docketat 1:30 PM in Department 37; Hearing on Motion to Compel Further Discovery Responses - Held

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  • 08/18/2020
  • Docketat 1:30 PM in Department 37; Hearing on Motion to Compel Further Discovery Responses - Held

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165 More Docket Entries
  • 03/12/2018
  • DocketSummons; Filed by Evan Israel Brenner (Legacy Party); Mika Jaymes Brenner (Legacy Party)

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  • 02/28/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 02/28/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL EX PARTE

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  • 02/06/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 02/06/2018
  • DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 02/06/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 01/30/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 01/30/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/19/2018
  • DocketComplaint; Filed by null

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  • 01/19/2018
  • DocketCOMPLAINT FOR (1) RIGHT OF PUBLICITY UNDER CIVIL CODE 3344; ETC

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Tentative Rulings

Case Number: BC690971    Hearing Date: August 18, 2020    Dept: 37

HEARING DATE: August 18, 2020

CASE NUMBER: BC690971

CASE NAME: Evan Israel Brenner v. Mika Jaymes, Inc., et al.

TRIAL DATE: August 24, 2021

PROOF OF SERVICE: OK

MOTIONS: Motions to Compel Further Responses to Discovery: 4 by James and 4 by Javahery

MOVING PARTIES: Defendants and Cross-Complainants, Mika Jaymes, Inc. and Mehrad Javahery

OPPOSING PARTY: Plaintiff Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner

OPPOSITION: August 4, 2020

REPLY: August 11, 2020

TENTATIVE: The court finds Defendants MJI and Javahery’s Motions to Compel Further Responses to Form Interrogatories, Special Interrogatories, Requests for Production and Requests for Admission, Sets One are moot as to the supplemental responses. Defendants’ requests for sanctions are granted. The moving party is to give notice as to each motion.

Background

Plaintiff Evan Israel Brenner (“Evan Brenner”), on behalf of his minor child Mika Jaymes Brenner (“Mika Brenner”),[1] alleges that Defendants Mika Jaymes, Inc. (“MJI”) and Mehrad Jahavery (“Jahavery”) (“Defendants”) improperly created a corporation using Mika Brenner’s name to operate a men’s clothing brand, registered the “Mika Jaymes” trademark with the United States Patent and Trademark Office, purchased the “www.mikajaymes.com” domain name and signed up for related social media pages. In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, § 3344 and (2) common law right of publicity.

On October 30, 2019, Plaintiff’s former counsel’s Motion to be Relieved as Counsel was granted.

On July 10, 2020, the court denied MJI and Javahery’s(“Defendants”) motion for summary judgment without prejudice “at least until the discovery issues are resolved.” (see July 10, 2020 Minute Order at p. 8-9.) Specifically, the court held that Defendants were not entitled to rely on Plaintiffs’ deficient responses to discovery because Plaintiffs’ previous discovery responses only stated objections and Defendants’ motions to compel further responses were still pending as of the hearing on Defendants’ motion for summary judgment.

On July 31, 2020, Plaintiff’s counsel Robert Kitson of The Myers Law Group, A.P.C. filed a Notice of Appearance.

Defendants have filed eight motions to compel Plaintiff to provide further responses to discovery. Plaintiff’s new counsel has filed one consolidated opposition to all eight motions. The court has reviewed Defendants’ moving papers as to each motion, Plaintiff’s opposition, and Defendants’ consolidated reply. The court will discuss all eight motions concurrently, as follows:

  1. Javahery’s Motion to Compel Further Responses to Special Interrogatories, Set One;

  2. Javahery’s Motion to Compel Further Responses to Requests for Production, Set One;

  3. Javahery’s Motion to Compel Further Responses to Requests for Admission, Set One;

  4. Javahery’s Motion to Compel Further Responses to Form Interrogatories, Set One;

  5. MJI’s Motion to Compel Further Responses to Special Interrogatories, Set One;

  6. MJI’s Motion to Compel Further Responses to Requests for Production, Set One;

  7. MJI’s Motion to Compel Further Responses to Requests for Admission, Set One;

  8. MJI’s Motion to Compel Further Responses to Form Interrogatories, Set One;

Procedural History

Defense counsel propounded Plaintiff with Form Interrogatories, Special Interrogatories, Requests for Production and Requests for Admission, Sets One on behalf of both Defendants on June 12, 2019. (Declaration of Raymond J. Muro (“Muro”) in Support of Motion, ¶ 2, Exhibits A.) Subsequently, Plaintiff’s former counsel requested 3 extensions to respond, totaling 2 months, all of which were granted. (Muro Decl. ¶¶ 3-5; Exhibits B-D.)

Plaintiff’s former counsel served Plaintiff’s responses to each set of discovery on September 13, 2019. (Muro Decl. ¶ 6, Exhibits E.) Former counsel was relieved in November 2019.

On July 31, 2020, Plaintiff’s new counsel Robert Kitson filed a Notice of Appearance and served supplemental responses to each set of discovery. (Declaration of Robert M. Kitson (“Kitson”) in Support of Opposition, ¶¶ 3-5, Exhibit 1.)

Defendants, in their consolidated reply acknowledge that supplemental responses were served.

The Parties’ Meet and Confer Efforts

Muro attests that on or about September 24, 2019, he sent a meet and confer letter to Plaintiff’s former counsel regarding the alleged deficiencies in each of Plaintiff’s responses at issue in the instant motions and requesting supplemental responses. (Muro Decl. ¶ 7, Exhibit F.) Muro further attests that he met and conferred telephonically with Plaintiff’s former counsel Keith Wesley (“Wesley”) on September 27, 2019, and that he was informed no further responses would be forthcoming from Wesley’s office as they intended to withdraw from representing Plaintiff. (Muro Decl. ¶ 8.)

Discussion

  1. Timeliness of Motions

Pursuant to Code of Civil Procedure sections 2030.300, subdivision (c), 2031.310, subdivision (c) and 2033.290, subdivision (c) a motion to compel further responses to interrogatories, requests for production or requests for admission must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., §§ 1013, subd. (a); 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c).)

Here, Plaintiff’s former counsel served responses to each set of discovery by mail on September 13, 2019. Thus, Defendants’ motion to compel deadline was November 4, 2019. Each motion was filed on November 4, 2019. As such, Defendants’ motions are timely.

  1. Analysis

Defendants move to compel a further response to each interrogatory and request in each of the eight sets of discovery served by Defendants, as discussed above.

In opposition, Plaintiff’s new counsel has attested under penalty of perjury that he served supplemental responses to each set of discovery at issue. (Opposition, 2-3; Kitson Decl. ¶ 3.) Since the motions all seek supplemental responses, that part of the motions is moot.

Monetary Sanctions

Defendants concede in reply that Plaintiffs served supplemental responses to each set of discovery at issue. However, Defendants maintain that sanctions are warranted and request a total of $7,055.00 in sanctions, as follow:

·$1,822.50, combined, as to Defendant Javahery’s and Defendant Mika Jaymes, Inc.’s motions to compel further responses to each of their Special Interrogatories (Set One);

· $1,705.00, combined, as to Defendant Javahery’s and Defendant Mika Jaymes, Inc.’s motions to compel further responses to each of their Requests for Production (Set One);

· $1,705.00, combined, as to Defendant Javahery’s and Defendant Mika Jaymes, Inc.’s motions to compel further responses to each of their Requests for Admissions (Set One);

· $1,822.50, combined, as to Defendant Javahery’s and Defendant Mika Jaymes, Inc.’s motions to compel further responses to each of their Form Interrogatories (Set One)”

(Reply, 2-3.) Defendants contend that sanctions are still warranted because the discovery was originally served when Plaintiff was represented by former counsel, and Defendants had to file the motions to compel to protect their rights to obtain responsive discovery responses. Plaintiff’s former counsel was advised of the discovery dispute before withdrawal, but nothing was done to address the dispute. (Id.)

As is appropriate, the motions requested sanctions against the party who did not comply with discovery obligations. While they could have been requested against counsel, they were not. Accordingly, the court must award sanctions against the party, if at all. Plaintiff’s discovery abused obligated Defendants to file the motions at some cost. Therefore, the court grants Defendants requests for sanctions as set forth above.

Conclusion

The court finds Defendants MJI and Javahery’s Motions to Compel Further Responses to Form Interrogatories, Special Interrogatories, Requests for Production and Requests for Admission, Sets One are moot as to the supplemental responses. Defendants’ requests for sanctions are granted. The moving party is to give notice as to each motion.


[1] The court refers to Plaintiff as “Mika Brenner” solely to avoid any potential confusion in this tentative ruling. The court expressly does not make any finding at the present time as to Plaintiff’s rights or lack of rights to the exclusive use of the name “Mika Jaymes.”

Case Number: BC690971    Hearing Date: July 10, 2020    Dept: 37

HEARING DATE: July 10, 2020

CASE NUMBER: BC690971

CASE NAME: Evan Israel Brenner v. Mika Jaymes, Inc., et al.

TRIAL DATE: August 18, 2020

PROOF OF SERVICE: OK

MOTION: Motion for Summary Judgment

MOVING PARTIES: Defendants and Cross-Complainants, Mika Jaymes, Inc. and Mehrad Javahery

OPPOSING PARTY: Plaintiff Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner

OPPOSITION: June 26, 2020

REPLY: July 2, 2020

TENTATIVE: Defendants’ motion for summary judgment is DENIED. Plaintiff is to provide notice.

Background

Plaintiff Evan Israel Brenner (“Evan Brenner”), on behalf of his minor child Mika Jaymes Brenner (“Mika Brenner”),[1] alleges that Defendants Mika Jaymes, Inc. (“MJI”) and Mehrad Javahery (“Javahery”) (“Defendants”) improperly created a corporation using Mika Brenner’s name to operate a men’s clothing brand, registered the “Mika Jaymes” trademark with the United States Patent and Trademark Office, purchased the “www.mikajaymes.com” domain name and signed up for related social media pages. In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, § 3344 and (2) common law right of publicity.

On June 23, 2020, the court denied Plaintiff’s ex parte motion to continue the hearing on Defendants’ motion for summary judgment. The court found no exigent circumstances under which to justify ex parte relief, as Plaintiff’s former counsel withdrew October 30, 2019 and Defendants filed the instant motion on January 16, 2020.

MJI and Javahery now move for summary judgment or, in the alternative, summary adjudication on all of the following issues:

  1. Issue Number 1: The First Cause of Action for Right of Publicity Under Civil Code Section 3344 Has No Merit Because Plaintiff Has Not and Cannot Establish Essential

    Elements.

  2. Issue Number 2: The First Cause of Action for Right of Publicity Under Civil

    Code Section 3344 Is Barred by The Two-Year Statute of Limitations Pursuant to Code of Civil Procedure Section 339.

  3. Issue Number 3: The Second Cause of Action for common Law Right of Publicity Has No Merit Because Plaintiff Has Not and Cannot Establish Essential Elements

  4. Issue Number 4: The Second Cause of Action for Common Law Right of Publicity is Barred by The Two-Year Statute of Limitations Pursuant to Code of Civil Procedure section 339.

  5. Issue Number 5: The Claim for Punitive Damages Fails as A Matter of Law

    Because There Are No Facts Demonstrating That Defendants Are Guilty of Oppression,

    Fraud, Or Malice.

Plaintiff opposes the motion.

Request for Judicial Notice

Defendants request that the court take judicial notice of the following:

  1. Plaintiff’s Complaint.

Defendants’ request is granted. The existence and legal significance of this document is a proper matter for judicial notice. (Evidence Code § 452, subds. (d), (h).)

Evidentiary Objections

As a preliminary note, Javahery and MJI appear to object on reply to the entire Evan Brenner declaration and entire Ravit Brenner Declaration on the grounds that both constitute unlawful practice of law by a guardian ad litem. Javahery and MJI rely on J.W. v. Superior Court (1993) 17 Cal.App.4th 958 (J.W.) for this objection.

In J.W., a mother filed an application with the trial court requesting that she be appointed her minor son’s guardian ad litem in a paternity action. (Id. at 962.) The trial court rejected the mother’s application, stating that a guardian ad litem cannot represent a minor in propia persona. (Id. at 963.) The Court of Appeal upheld the trial court’s decision rejecting the mother’s application, noting that the guardian ad litem is not a party to the action but merely the representative of a party. (Id. at 964.) As such, the Court of Appeal concluded that neither common law nor guardianship statutes permit an exception to the prohibition against unauthorized practice of law which would permit the mother to act as her son’s guardian ad litem and also represent him in the action. (Id. at 964-973.)

Since November 12, 2020, Plaintiff has been without counsel of record. Although Plaintiff has attempted to litigate and has filed papers in this action as a self-represented party, a guardian ad litem may not litigate as a self-represented party for the minor child he or she represents. Plaintiff’s complaint does not state any causes of action in his individual capacity. Accordingly the court will not consider any of the papers filed by Plaintiff.

Factual Background

The factual background to the instant motion is taken from the motion.

Javahery is the designer and founder of MJI, a men’s clothing brand which he founded in 2005. (Separate Statement of Undisputed Material Facts in Support of Motion (“DSS”), ¶ 2; Exhibit 1 (Javahery Declaration), ¶ 2.) Javahery was manufacturing and operating the Mika Jaymes label through his company, Volume, Inc. by August 2005. (DSS ¶ 10; Exhibit 1 at ¶ 5.)

Javahery contends he came up with the name “Mika Jaymes” for his clothing brand in mid-2005. (DSS ¶ 2; Exhibit 1 at ¶ 3; Exhibit 2 (Jacki Javahery Decl.) at ¶¶ 3-4.)

Plaintiff’s Complaint tells a totally different story.

Further, Javahery contends he chose “MIKA” as part of MJI’s name to honor his grandparents by using the first letter of each of their names. (DSS ¶ 3; Exhibit 1 at ¶ 3.) Specifically, “M” is from “Moussa,” Javahery’s maternal grandmother, “I” is from Iran, Javahery’s paternal grandmother, “K” is from Kahlil, Javahery’s maternal grandfather and “A” is from Azizola, Javahery’s paternal grandfather. (DSS ¶¶ 4-7; Exhibit 1 at ¶ 3.) Additionally, Javahery contends that he chose “Jaymes” as an homage to the fictional character James Bond and that he added “Y” to distinguish his brand from James Bond as well as the men’s clothing brand, “James Perse.” (DSS ¶¶ 8-9; Exhibit 1 at ¶ 4.)

Around August 2005, Javahery informed his friend, now wife, Jacki Javahery about his idea to create a clothing brand called “Mika Jaymes.” (DSS ¶¶ 11-12; Exhibit 1 at ¶ 5; Exhibit 2 at ¶ 3.) Jacki Javahery agreed to showcase and sell the Mika Jaymes clothing in her showroom beginning August or September 2005. (DSS ¶ 13; Exhibit 1 at ¶ 5; Exhibit 2 at ¶ 3.) Further, Jacki Javahery attests that around this time, she told Ravit Sahar that Javahery wanted to start a clothing line called “Mika Jaymes” and that Ravit Sahar replied that it was “cool.” (DSS ¶ 14; Exhibit 2 at ¶ 4.)

Mika Brenner was born in or around October 2005. (DSS ¶ 15; Exhibit 2 at ¶ 5.) Jacki Javahery and Javahery attest that they did not know Mika’s middle name was “Jaymes” until the present action was filed. (DSS ¶ 16; Exhibit 1 at ¶ 11; Exhibit 2 at ¶¶ 6-7.)

On or about January 24, 2006, Javahery registered “Mika Jaymes” as a domestic corporation with the California Secretary of State. (DSS ¶ 17; Exhibit 1 at ¶ 6.) In January 2017, California Apparel News contacted Javahery for an interview on MJI to be published in the January 2017 issue of their magazine. (DSS ¶ 18; Exhibit 1 at ¶ 9.) Javahery indicated in the interview that the brand “Mika Jaymes” takes its name from his grandparents. (DSS ¶ 19; Exhibit 1 at ¶ 9.)

Javahery contends that Mika Brenner’s name had no influence on his decision to name his brand Mika Jaymes. (DSS ¶ 20; Exhibit 1 at ¶ 11.) Moreover, Javahery first met Mika Brenner at a wedding in 2009, approximately (4) years after Javahery named his clothing brand “Mika Jaymes.” (DSS ¶ 21; Exhibit 1 at ¶ 12.)

On June 12, 2019 Defendants MJI and Javahery each propounded Request for Admissions, Request for Production of Documents, Special Interrogatories and Form Interrogatories, Sets One on Plaintiff. (DSS ¶ 23; Exhibit 3 (Muro Declaration) at ¶¶ 3-9; Exhibits 3-A to 3-F (Plaintiff’s Discovery Responses).) Plaintiff responded to each and every interrogatory and request with objections only and did not produce any responsive documents. (DSS ¶ 24.) Defendants’ discovery asked that Plaintiff state facts, identify witnesses and produce documents in support of each of his causes of action as well as his prayer for punitive damages. (DSS ¶¶ 25-30.) Defendants filed motions to compel further answers to the discovery which are now set to be heard in August 2020.

Discussion

  1. Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., § 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

  1. Analysis

     

  1. Whether Plaintiff’s Action Is Outside Statute of Limitations

An action for right of publicity is a type of action for invasion of privacy. (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 409.) Invasion of privacy claims are subject to the single-publication rule under Civil Code section 3425.3. (Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476.) Further, a cause of action for right of publicity carries a two-year statute of limitations. (Long v. Walt Disney Co. (2004) 116 Cal.App.4th 868, 874.) Civil Code section 3425.3 provides as follows:

“No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.”

Under the single-publication rule, a cause of action accrues, and the limitations period commences, when material which Plaintiff claims violates their rights is first distributed to the public. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245-1246.) The limitations period commences after first distribution whether or not Plaintiff becomes aware of the distribution unless the material was distributed in an “inherently secretive” manner. (McGuinness v. Motor Trend (1982) 129 Cal.App.3d 59, 62-63.) However, if the material at issue in Plaintiff’s action is not a single publication but instead a series of publications then the limitations period may not expire even if more than two years has passed since first distribution. (Christoff v. Nestle USA, Inc., supra 47 Cal.4th 468 [finding that statute of limitations had not expired in soccer player’s action against Nestle for printing his likeness on a label continuously for five years on the grounds that single-publication rule did not apply.])

Defendants first contend that summary judgment is warranted because Plaintiffs’ action is brought outside of the two-year statute of limitations. (Motion, 6-8.) Further, Defendants contend that the discovery rule does not apply to toll the statute of limitations in this instance. (Id.) Specifically, Defendants contend that because Javahery created the “Mika Jaymes” name in 2005 and Plaintiff did not file their action until 2018, this means that Plaintiff’s action falls well outside the statute of limitations and is time-barred.

The court disagrees. This facts of this action are similar to that of Christoff, in which Plaintiff’s action alleged that Defendant wrongfully used his likeness on its products continuously, for five years. Here, Plaintiff alleges that Javahery and MJI continue to use Mika Brenner’s name on his clothing line, MJI, and that such use began in or around 2006. Further, it is undisputed that Defendants continue to use “Mika Jaymes” in their clothing line. As such, there is no single instance of publication from which the statute of limitations has run.

Accordingly, the court does not grant Defendants’ motion on this basis.

  1. Whether Plaintiff Has Evidence in Support of First and Second Causes of Action

“California law has long recognized ‘the right to profit from the commercial value of one's identity as an aspect of the right of publicity.’ ” (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 (Orthopedic Systems).) There are two vehicles a plaintiff can use to protect this right: a common law cause of action for commercial misappropriation and a claim under Civil Code, section 3344. (Ibid.) The right of publicity distinctly protects an “economic interest” and is personal in nature, such that the owner of the right has the exclusive authority to assign it during his or her lifetime. (Timed Out, LLC v. Youabian (2014) 229 Cal.App.4th 1001, 1010.)

Civil Code, section 3344 provides in relevant part:

(a) Any person who knowingly uses another’s name . . . in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.

(Civ. Code, § 3344, subd. (a).)

“To prove the common law cause of action, the plaintiff must establish: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. To prove the statutory remedy, a plaintiff must present evidence of all the elements of the common law cause of action” and must also prove a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.” (Orthopedic Systems, 202 Cal.App.4th at p. 544.)

Defendants contend that summary judgment is warranted because Plaintiff’s discovery responses are completely devoid of facts, witnesses or documents in support of their causes of action. As discussed above, Defendants have presented evidence that they properly served Plaintiffs with discovery asking that Plaintiff identify facts, witnesses and documents in support of each of their causes of action. (DSS ¶¶ 23-27.) Further, Defendants have presented evidence that Plaintiffs have responded to their discovery requests with only served objections. (Id.)

“[A] moving defendant may rely on factually devoid discovery responses to shift the burden of proof” to Plaintiff in a summary judgment motion. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) “Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Id.) However, responses that state only objections are not factually devoid responses. The propounding party must first obtain an order overruling the objections and requiring further responses setting forth the facts if any. Defendants have started this process, but those motions are not going to be heard until August. As such this argument is premature.

Plaintiff represents minor children who may have a factual basis to oppose this motion and who deserve some time to retain new counsel to present those facts. Accordingly, Defendants’ motion is DENIED without prejudice, at least until the discovery issues are resolved, with respect to the first and second causes of action.

  1. Punitive Damages

Defendants also contend that they should be entitled to summary judgment on Plaintiff’s prayer for punitive damages as Plaintiff has not and can not provide any facts, witnesses or documents in support. Defendants submit evidence demonstrating that Plaintiff has served objection only responses to Defendants’ discovery requests, including the ones requesting that he identify facts, witnesses and documents in support of his request for punitive damages. (DSS ¶¶ 23-31; Exhibit 3 (Plaintiff’s Discovery Responses).)

For the same reason that this argument is premature, the court declines to grant summary adjudication with regard to Plaintiff’s request for punitive damages. For the reasons discussed above, Defendants may not rely on Plaintiff’s prior discovery responses to establish that Plaintiff has no evidence to support his claims for punitive damages.

Conclusion

Defendants’ motion for summary judgment is DENIED without. Defendant is to give notice.


[1] The court refers to Plaintiff as “Mika Brenner” solely to avoid any potential confusion in this tentative ruling. The court expressly does not make any finding at the present time as to Plaintiff’s rights or lack of rights to the exclusive use of the name “Mika Jaymes.”

Case Number: BC690971    Hearing Date: October 30, 2019    Dept: 37

HEARING DATE: October 30, 2019

CASE NUMBER: BC690971

CASE NAME: Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner v. Mika Jaymes, Inc., et al.

MOVING PARTY: Browne George Ross LLP (Counsel); Counsel for Cross-Defendant Evan Israel Brenner, Individually

OPPOSING PARTY: None

TRIAL DATE: May 12, 2020

PROOF OF SERVICE: OK as to Evan Israel Brenner, individually

MOTION: Motion to Be Relieved as Counsel

TENTATIVE: The court GRANTS Brown George Ross LLP’s motion to be relieved as counsel as to Evan Israel Brenner, individually.

Procedural Requirements

The moving party must comply with the requirements of California Rules of Court, rule 3.1362 before a motion to be relieved as counsel may be granted.

Notice: Pursuant to California Rules of Court, rule 3.1362(a) and Code Civil Procedure, section 284, Notice of Motion and Motion to be relieved as counsel must be served on the client and made on the Notice of Motion and Motion to be Relieved as Counsel – Form MC-051.

Served on client – Yes, motion served by mail and by email on September 27, 2019

On Form MC-051 – Yes

Declaration: California Rules of Court, rule 3.1362(c) requires that the motion be accompanied by a declaration of counsel on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel – Form MC-052 and state in general terms, without compromising confidentiality, the basis for withdrawal.

Grounds for Motion – Moving counsel attests that cross-defendant Evan Israel Brenner (Client) has rendered it unreasonably difficult for counsel to carry out its employment effectively and that Client has breached the retainer agreement by failing to pay attorney fees to counsel.

General terms, without compromising confidentiality – Yes

On Form MC-052 – Yes

Service: California Rules of Court, rule 3.1362(d) requires that the notice of motion and motion, declaration, and proposed order are served on the client and on all other parties who have appeared in the case. When served by mail under Code of Civil Procedure, section 1013, the notice must be accompanied a declaration confirming the address of the client.

Client served – Yes; however, the caption page of the proof of service filed in support of this motion lists the incorrect hearing date (October 31, 2019).

Client Address confirmed – Yes, by e-mail, to client’s current email address

Opposing Counsel served – Yes

Timely Served and Filed – Yes

Order: California Rules of Court, rule 3.1362(e) requires the proposed order relieving counsel be prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel – Form MC-053 and specify all hearing dates scheduled in the action.

On Form MC-053 – Yes

Specify hearing dates – Yes, however the next hearing date specified is the final status conference on April 29, 2020. The next hearing date in this case is October 31, 2019 for Counsel’s motion to be relieved as counsel as to plaintiff and cross-defendant, Evan Israel Brenner, on behalf of his minor child Mika Jaymes Brenner.

Substantive Merits

Unlike their clients, attorneys do not have an absolute right to withdraw from representation at any time with or without cause. “The right of counsel to withdraw from pending litigation is not absolute.” (Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197.) Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct, rule 3-700 and are subject to discipline for failure to do so. Where withdrawal is not mandatory, an attorney normally must continue representation on the matter undertaken. The fact the client or matter proves unpleasant or unprofitable does not excuse attorney performance. The rules have been liberally construed to protect clients. (See Vann v. Shilleh, supra, 54 Cal.App.3d. at p. 197; Chaleff v. Sup. Ct. (1977) 69 Cal.App.3d 721; Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) An attorney, either with client’s consent or court’s approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to the client’s interests. A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar, 49 Cal.3d 753, 758-759), or by withdrawing at a critical point and thereby prejudicing the client’s case (Rules Prof. Conduct, rule 3-700(A)(2); Vann, supra, 54 Cal.App.3d at 197).

Where the procedures are properly followed, withdrawal is permitted in the appropriate circumstances. Pursuant to California Rules of Professional Conduct, rule 3-700(A)(2), “[a] member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.”

Counsel’s proposed order (form MC-053) for Client lists the next hearing date as the final status conference scheduled for April 29, 2020 at 8:30 am.

Counsel did not list the October 31, 2019 hearing on its motion to be relieved as counsel as to plaintiff and cross-defendant, Evan Israel Brenner, on behalf of his minor child, Mika Jaymes Brenner, in item 7.

The final status conference scheduled for April 29, 2020 should be listed in item number 8. Additionally, there are multiple other discovery motions set for hearing in June 2020 that should be listed in item number 8.

Counsel is ordered to appear at the hearing and submit proof of service of Cross-Defendant’s personal representative pursuant to California Rules of Court, rule 3.1362(d) and a corrected proposed order on form MC-053. In particular, item 7 of the MC-053 proposed order must read:

Counsel is responsible for determining if there are any other hearings scheduled or due dates for discovery for this case. Those dates must be listed in the proposed order. For each hearing, Counsel must state the date, time, and location of the hearing (“111 N. Hill Street, Dept. 37, Los Angeles, CA 90012”).

Conclusion and Order

Counsel is ordered to submit a revised proposed order at the hearing on form MC-053 reflecting the October 31, 2019 hearing date and any additional hearings scheduled or due dates for discovery for this case.

Based on the notice of motion and the declaration filed by Counsel, the Court is inclined to grant the motion. However, Counsel must first submit a revised proposed order at or before the hearing on this motion.

Provided that Counsel files or presents the corrected MC-053 at or before the hearing on this motion, the motion to be relieved as counsel will be granted. Otherwise, the motion will be denied without prejudice.

Counsel should note that after the orders are signed, the orders will only become effective upon the filing of a proof of service of a signed copy the order on Client Evan Israel Brenner. Counsel will remain the attorney of record until Counsel files with the Court proof of service of the signed order. Counsel will be ordered to serve a copy of the signed order (MC-053) on Client Evan Israel Brenner within three days.

Moving Counsel is ordered to provide notice of this order and file proof of service of such.