This case was last updated from Los Angeles County Superior Courts on 12/04/2019 at 16:27:52 (UTC).

GENESIS MEDIA LLC VS OWNZONES MEDIA NETWORK INC ET AL

Case Summary

On 05/14/2018 GENESIS MEDIA LLC filed a Contract - Other Contract lawsuit against OWNZONES MEDIA NETWORK 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 JAMES C. CHALFANT and ELIZABETH ALLEN WHITE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6021

  • Filing Date:

    05/14/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JAMES C. CHALFANT

ELIZABETH ALLEN WHITE

 

Party Details

Plaintiffs, Petitioners, Respondents and Cross Defendants

GENESIS MEDIA LLC

MISLE HOWARD

Defendant, Cross Defendant and Appellant

MISLE HOWARD

Defendants, Respondents and Cross Plaintiffs

DOES 1-10

GOMAN DAN

OWNZONES MEDIA NETWORK INC.

MISLE HOWARD

Defendants, Respondents and Cross Defendants

DOES 1-10

GENESIS MEDIA LLC

GOMAN DAN

OWNZONES MEDIA NETWORK INC.

Not Yet Classified

SELTZER PETER

Attorney/Law Firm Details

Defendant, Respondent, Plaintiff, Cross Defendant and Appellant Attorneys

KLEIN ROBERT G.

Attorney at Law Office of Robert G. Klein

8383 Wilshire Blvd. Suite 510

Beverly Hills, CA 90211

KLEIN ROBERT G. ESQ.

Plaintiff and Petitioner Attorney

KLEIN ROBERT G. ESQ.

Defendant, Respondent, Cross Plaintiff, Cross Defendant and Appellant Attorneys

HUGHES KEVIN D. ESQ.

CALKINS REBECCA LAWLOR

Attorney at Greenspoon Marder LLP

1875 Century Park East Suite 1850

Los Angeles, CA 90067

TURKEN JAMES

LAWLOR CALKINS REBECCA

THAKOR NEIL P.

TURKEN JAMES H.

KLEIN ROBERT G.

Attorney at Law Office of Robert G. Klein

8383 Wilshire Blvd. Suite 510

Beverly Hills, CA 90211

Defendant and Cross Plaintiff Attorneys

TURKEN JAMES

LAWLOR CALKINS REBECCA

THAKOR NEIL P.

TURKEN JAMES H.

Not Yet Classified Attorney

GAREEB ALEXANDER S

 

Court Documents

Declaration - DECLARATION OF REBECCA LAWLOR CALKINS IN SUPPORT OF OPPOSITION TO MOTION TO FILE RECORDS UNDER SEAL

11/25/2019: Declaration - DECLARATION OF REBECCA LAWLOR CALKINS IN SUPPORT OF OPPOSITION TO MOTION TO FILE RECORDS UNDER SEAL

Opposition - OPPOSITION OF DEPONENT PETER SELTZER AND HIS COUNSEL, ALEXANDER S. GAREEB, TO PLAINTIFFS MOTION TO COMPEL PETE SELTZER TO ANSWER QUESTIONS AT A DEPOSITION AND REQUEST FOR SANCTIONS AGAI

11/27/2019: Opposition - OPPOSITION OF DEPONENT PETER SELTZER AND HIS COUNSEL, ALEXANDER S. GAREEB, TO PLAINTIFFS MOTION TO COMPEL PETE SELTZER TO ANSWER QUESTIONS AT A DEPOSITION AND REQUEST FOR SANCTIONS AGAI

Motion for Leave - MOTION FOR LEAVE TO COMPEL PETE SELTZER TO PROVIDE ANSWERS AT DEPOSITION

10/7/2019: Motion for Leave - MOTION FOR LEAVE TO COMPEL PETE SELTZER TO PROVIDE ANSWERS AT DEPOSITION

Separate Statement

10/7/2019: Separate Statement

Exhibit List

9/16/2019: Exhibit List

Declaration - DECLARATION OF ALEX NAHAI

9/16/2019: Declaration - DECLARATION OF ALEX NAHAI

Minute Order - MINUTE ORDER (HEARING ON DEFENDANTS' REQUEST FOR ISSUE AND/OR EVIDENCE SANC...)

9/20/2019: Minute Order - MINUTE ORDER (HEARING ON DEFENDANTS' REQUEST FOR ISSUE AND/OR EVIDENCE SANC...)

Objection - OBJECTION TO PROPOSED ORDER

9/5/2019: Objection - OBJECTION TO PROPOSED ORDER

Response - RESPONSE TO SUPPLEMENTAL BRIEF

9/10/2019: Response - RESPONSE TO SUPPLEMENTAL BRIEF

Declaration - DECLARATION IN SUPPORT

7/3/2019: Declaration - DECLARATION IN SUPPORT

Order - RULING: DEMURRER AND MOTION TO STRIKE RE: SECOND AMENDED COMPLAINT

5/23/2019: Order - RULING: DEMURRER AND MOTION TO STRIKE RE: SECOND AMENDED COMPLAINT

Minute Order - MINUTE ORDER (HEARING ON DEFENDANTS OWNZONES MEDIA NETWORK, LLC AND DAN GOM...)

5/23/2019: Minute Order - MINUTE ORDER (HEARING ON DEFENDANTS OWNZONES MEDIA NETWORK, LLC AND DAN GOM...)

Demurrer - with Motion to Strike (CCP 430.10)

4/16/2019: Demurrer - with Motion to Strike (CCP 430.10)

Motion for Judgment on the Pleadings

2/11/2019: Motion for Judgment on the Pleadings

Minute Order - Minute Order (Hearing on Motion to Compel Production of Documents Requested...)

1/24/2019: Minute Order - Minute Order (Hearing on Motion to Compel Production of Documents Requested...)

Minute Order - Minute Order (Court Order Re: Request for Hearing on Determination of Disqu...)

12/28/2018: Minute Order - Minute Order (Court Order Re: Request for Hearing on Determination of Disqu...)

Declaration - Declaration Neil Thakor in Support of Motion to Compel

12/4/2018: Declaration - Declaration Neil Thakor in Support of Motion to Compel

Answer - Answer by Genesis Media, LLC and Howard Misle to Cross Complaint

12/14/2018: Answer - Answer by Genesis Media, LLC and Howard Misle to Cross Complaint

189 More Documents Available

 

Docket Entries

  • 06/08/2020
  • Hearing06/08/2020 at 09:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 06/03/2020
  • Hearing06/03/2020 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/15/2020
  • Hearing01/15/2020 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 12/11/2019
  • Hearing12/11/2019 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Pete Seltzer to provide answers at deposition

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  • 12/10/2019
  • Hearing12/10/2019 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Leave file records under seal

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  • 12/09/2019
  • Hearing12/09/2019 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Adjudication

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  • 11/27/2019
  • DocketProof of Service by Mail; Filed by Peter Seltzer (Non-Party)

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  • 11/27/2019
  • DocketResponse (TO PLAINTIFF?S SEPARATE STATEMENTS IN SUPPORT OF THE OPPOSITION OF DEPONENT PETER SELTZER AND HIS COUNSEL, ALEXANDER S. GAREEB, TO PLAINTIFF?S MOTION TO COMPEL PETE SELTZER TO ANSWER QUESTIONS AT A DEPOSITION AND REQUEST FOR SANCTIONS AGAINS); Filed by Peter Seltzer (Non-Party)

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  • 11/27/2019
  • DocketOpposition ( OF DEPONENT PETER SELTZER AND HIS COUNSEL, ALEXANDER S. GAREEB, TO PLAINTIFF?S MOTION TO COMPEL PETE SELTZER TO ANSWER QUESTIONS AT A DEPOSITION AND REQUEST FOR SANCTIONS AGAINST ALEXANDER S. GAREEB; REQUEST FOR SANCTIONS AGAINST PLAINTIFF); Filed by Peter Seltzer (Non-Party)

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  • 11/27/2019
  • DocketDeclaration ( OF NICOLE HAJJAR IN SUPPORT OF OPPOSITION OF DEPONENT PETER SELTZER AND HIS COUNSEL, ALEXANDER S. GAREEB, TO PLAINTIFF?S MOTION TO COMPEL PETE SELTZER TO ANSWER QUESTIONS AT A DEPOSITION AND REQUEST FOR SANCTIONS AGAINST ALEXANDER S. GARE); Filed by Peter Seltzer (Non-Party)

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259 More Docket Entries
  • 05/24/2018
  • DocketRequest for Judicial Notice; Filed by Genesis Media, LLC (Plaintiff)

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  • 05/24/2018
  • DocketPoints and Authorities; Filed by Genesis Media, LLC (Plaintiff)

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  • 05/24/2018
  • DocketOpposition Document; Filed by Dan Goman (Defendant); Ownzones Media Network, Inc. (Defendant)

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  • 05/24/2018
  • DocketREQUEST FOR JUDICIAL NOTICE

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  • 05/24/2018
  • DocketMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

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  • 05/24/2018
  • DocketSUPPLEMENTAL DECLARATION OF HOWARD MISLE

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  • 05/24/2018
  • DocketEX PARTE APPLICATION AND SUPPORTING DECLARATIONS FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION; CERTIFICATION RE NOTICE

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  • 05/14/2018
  • DocketSUMMONS

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  • 05/14/2018
  • DocketCOMPLAINT

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  • 05/14/2018
  • DocketComplaint; Filed by Genesis Media, LLC (Plaintiff)

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Tentative Rulings

Case Number: BC706021    Hearing Date: January 15, 2020    Dept: 48

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: Defendants Ownzones Media Network, Inc. and Dan Goman

RESPONDING PARTY(S): Plaintiff Genesis Media, LLC

PROOF OF SERVICE:

ANALYSIS

Defendants’ Evidentiary Objections

Pursuant to CCP § 437c(q), the Court declines to rule upon Defendants’ objections, which are asserted against evidence which the Court deems not to be material to the disposition of this motion.

Motion For Summary Judgment

For the reasons discussed below, Defendants have not demonstrated that they are entitled to judgment as to all remaining causes of action asserted against them. The motion for summary judgment is DENIED.

The Court will proceed to address the alternative motion for summary adjudication.

Motion For Summary Adjudication

1. Issue No. 1: “DEFENDANTS ARE ENTITLED TO SUMMARY ADJUDICATION ON PLAINTIFF’S FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT BECAUSE PLAINTIFF CANNOT ESTABLISH THAT IT PERFORMED ITS OWN OBLIGATIONS UNDER THE AGREEMENT, OR THAT ANY OF ITS OBLIGATIONS WERE EXCUSED.”

§ 5.1 of the Strategic Alliance Agreement (Def’s Exh. 2) provides:

Year One Service Fee. The annual service fee for the Media Business and Channel is US $4,100,00.00 (“Year One Service Fee”) and such amount shall be funded by Genesis and paid to OWNZONES in full within forty-five (45) days of the full execution of this Agreement by the Parties. The Parties approve of the Year One Service Fee set forth on Schedule A attached hereto.

(Bold emphasis added.)

In turn, however, § 5.1.1 states: “Allocation. The year One Service Fee will be allocated in its entirety to the Services provided by OWNZONES as described in this Agreement.” (Bold emphasis added.)

Schedule A itemizes the $4,100,00 Year One Service Fee as follows: Production ($2,205,000); Technology & Development $1,148,000; Marketing ($507,000); Channel Management (Sales/BD, Programming, Marketing ($240,000).

Further, § 5.1.4 provides:

In the event that any party hereto determines that additional funding beyond the Year One Service Fee or Subsequent Annual Fee (as defined in Section 5.2.1 below) may be necessary to fulfill any of the Service, the Parties hereto shall discuss a resolution in good faith, with final approval over any decisions made being in the absolute discretion of Genesis and Nahai.

(Bold emphasis added.)

§ 6.3 provides that the Parties agreed that they would share in the Content Revenue, Merchandising Revenue, Other Revenue and Media Exploitation Revenue based on whether Genesis has recouped the Recoupment with each party entitled to the percentage revenue share for each category of revenue set forth at § 6.3.1.

The definition of “Recoupment” at § 6.1, Page 7 as follows:

Recoupment” means as of the Effective Date, an amount equal to the Year One Service Fee minus the Sponsorship Amount[1]. Any additional funds contributed by Genesis to the continuing operation of the Media Business and Channel in excess of the Year One Service Fee or for purposes of funding all or a part of any Subsequent Annual Fee will be added to the amount of “Recoupment” on an ongoing and continuing basis.

(Bold emphasis added.)

From the §§ 5.1, 5.1.1, 5.1.4 and Schedule A above, it appears that the $4,100,00.00 Year One Service Fee was to be used entirety to perform the services set forth on Schedule A.

Defendants admit that Genesis paid Ownzones $3.1 million of the $4.1 million Year One Service Fee. UF No. 10. Genesis paid Ownzones $900,000 by the July 6, 2017 payment deadline, and another $2.2 million shortly after the payment deadline, for payments totaling $3.1 million. UF No. 11. To this day, Genesis has not paid Ownzones the remaining $1 million of the Year One Service Fee. UF No. 25.

It is a triable issue of material fact as to whether Plaintiff’s failure to pay the remaining $1 million was a material breach which prevents Plaintiff from seeking to recover for the alleged breach of contract by Defendant Ownzones. For example, the 2AC alleges at ¶ 32, Page 6:14-19 that Ownzones commingled Genesis Media’s funds with its own and used Genesis’ funds for Ownzones operations other than for the Media Business in breach of Section 5.1.1. At the very least, a jury could find that Plaintiff was entitled to performance of at least $3.1 million of the services listed on Schedule A of the Strategic Alliance Agreement.

When a party's failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract. (Citations omitted.) Normally the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact. (Citations omitted.) Whether a partial breach of a contract is material depends on “the importance or seriousness thereof and the probability of the injured party getting substantial performance.” (Citations omitted.)

. . .  [*279]  . . .

The determination of whether a promise is an independent covenant, so that breach of that promise by one party does not excuse performance by the other party, is based on the intention of the parties as deduced from the agreement. (15 Williston, supra, § 44:7, pp. 94–96.) . . .  [*280]  . . .

Brown also invokes Restatement Second of Contracts, section 240, which provides, “If the performances to be exchanged under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents, a party's performance on his part of such a pair has the same effect on the other's duties to render performance of the agreed equivalent as it would have if only that pair of performances had been promised.” (See 13 Corbin on Contracts (rev. ed. 2003) § 68.4(3)(b), pp. 198–201.) Section 240, comment a of the Restatement Second of Contracts on page 229 provides, “a party's failure to perform may cause him to lose his right to the agreed exchange after he has relied substantially on the expectation of that exchange, as by either preparation or performance. The risk of forfeiture is similar to that which arises on the non-occurrence of a condition stated in the agreement. … But because the failure must be material in order to have this effect … courts can temper the application of those sections in appropriate cases to avoid forfeiture in a way that is not possible where the agreement itself states the condition. … In addition, forfeiture may sometimes be reduced or avoided by allowing a party whose failure has been material to have restitution in accordance with the policy favoring avoidance of unjust enrichment.” (Citations omitted.)

Brown v. Grimes (2011) 192 Cal.App.4th 265, 278-80 (bold emphasis and underlining added).

Defendants’ argument that Genesis’ payment obligation was a condition precedent to Ownzones performance is not persuasively stated, as the Strategic Alliance Agreement does not expressly set forth conditions precedent.

“The existence of a condition precedent normally depends upon the intent of the parties as determined from the words they have employed in the  [*594] contract. [Citation.]” (Realmuto v. Gagnard (2003) 110 Cal.App.4th 193, 199 [1 Cal. Rptr. 3d 569].) But “stipulations in an agreement are not to be construed as conditions precedent unless such construction is required by clear, unambiguous language; and particularly so where a forfeiture would be involved or inequitable consequences would result. [Citations.]” (Alpha Beta Food Markets v. Retail Clerks (1955) 45 Cal.2d 764, 771 [291 P.2d 433] (Alpha Beta Food); see Rubin v. Fuchs (1969) 1 Cal.3d 50, 53 [81 Cal. Rptr. 373, 459 P.2d 925] [contract provisions are not construed as conditions precedent in the absence of language plainly requiring such construction]; City of San Diego v. Haas (2012) 207 Cal.App.4th 472, 493 [143 Cal. Rptr. 3d 438].) Because “such conditions are not favored by the law, [they] are to be strictly construed against one seeking to avail [it]self of them. [Citations.]” (Antonelle v. Lumber Co. (1903) 140 Cal. 309, 315 [73 P. 966].)

JMR Construction Corp. v. Environmental Assessment & Remediation Management, Inc. (2015) 243 Cal.App.4th 571, 593-94 (bold emphasis added).

Accordingly, Defendants have not demonstrated that they are entitled to judgment as to the first cause of action. The burden does not shift to Plaintiff to raise a triable issue of material fact.

The motion for summary adjudication as to Issue No. 1 re: the first cause of action is DENIED.

2. Issue No. 2: “DEFENDANTS ARE ENTITLED TO SUMMARY ADJUDICATION ON PLAINTIFF’S SECOND CAUSE OF ACTION FOR FRAUD BECAUSE PLAINTIFF CANNOT ESTABLISH THAT DEFENDANTS EVER INTENDED TO DECEIVE PLAINTIFF.”

Defendants argue that Plaintiff cannot demonstrate that Ownzones had fraudulent intent because it performed by creating the 420TV channel and applications, to a high standard of quality and desirability.

However, the 2AC pleads Defendant Dan Gorman’s alleged verbal representation on March 23, 2017 (¶ 40) as to Ownzones’ intended use of the $3.1 million Year One Service Fee—allocation entirely to the services provided by Ownzones as described in the Agreement (¶ 41(f))—was false in that Ownzones knew at the time such representations were made that Ownzones intended to use part of those funds for purposes unrelated to the Project (¶ 50(e)); that Ownzones was not capable and had no intention of producing 9 multi-episodic services within the budget (¶ 50(h)), and that Ownzones would only be providing technical services related to the channel, not production of content services (¶ 50(j). ¶ 55 alleges that after Plaintiff gave Ownzones $3.1 million, Plaintiff learned that Ownzones’ representations were false. The 2AC alleges that had Plaintiff known the true facts, it would never have entered into the Agreement. ¶ 53.

Defendant’s evidence only goes to the 420TV application. UF Nos. 28 – 29; 33. It is true that § 1.1.1 of the Strategic Alliance Agreement may be construed to deal with providing content management and distribution services for the Media Business and Channel using Ownzones’ proprietary platform. However, Ownzones was also obligated to be “[t]he primary, exclusive producer of content and programming (including without limitation, audiovisual content and editorial) for the Media Business and the Channel” Per § 1.1.2. Defendant does not cite evidence demonstrating that it lacked fraudulent intent as to this promise at the time it entered into the Strategic Alliance Agreement.

Accordingly, Defendants have not demonstrated that they are entitled to judgment as to the second cause of action. The burden does not shift to Plaintiff to raise a triable issue of material fact.

The motion for summary adjudication as to Issue No. 2 re: the second cause of action is DENIED.

3. Issue No. 3: “DEFENDANTS ARE ENTITLED TO SUMMARY ADJUDICATION ON PLAINTIFF’S FOURTH CAUSE OF ACTION FOR CONVERSION BECAUSE PLAINTIFF CANNOT ESTABLISH THAT IT HAS ANY OWNERSHIP INTEREST IN ALLEGED CONVERTED ITEMS.”

and

4. Issue No. 4: “DEFENDANTS ARE ENTITLED TO SUMMARY ADJUDICATION ON PLAINTIFF’S FIFTH CAUSE OF ACTION FOR CLAIM AND DELIVERY BECAUSE PLAINTIFF CANNOT ESTABLISH THAT IT HAS ANY OWNERSHIP INTEREST IN ALLEGED CONVERTED ITEMS.”

Defendants argue that Plaintiff’s claim for conversion and claim and delivery fail because Plaintiff cannot establish that it has an ownership right in any of the various items it alleges Ownzones converted.

Plaintiff alleges that it had a right to posses and was entitled to possession of the $3.1 million that Defendants Goman and Ownzones placed in their personal bank account. 2AC, ¶ 75.

¶ 78 alleges that Plaintiff was the owner with the right to possess: (a) hard drives, disk storage, or other media that contains any audio-visual content of multi-episodic services or programs for Genesis’ 402TV channel; (b) intellectual property[2] including trademark material and registrations, copyrighted material and registrations, source codes for the user-interface developed for the 420TV channel; (c) logos for 402TV; and (d) the technology platform.

“Conversion is the wrongful exercise of dominion over the property of another.” (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543 [50 Cal. Rptr. 2d 810].) Proof of conversion requires a showing of ownership or right to possession of the property at the time of the conversion, the defendant's conversion by a wrongful act or disposition of property rights, and resulting damages. (Id. at pp. 543–544; Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066 [80 Cal. Rptr. 2d 704].) “Money can be the subject of an action for conversion if a specific sum capable of identification is involved.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 452 [61 Cal. Rptr. 2d 707].)

Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1452 (bold emphasis and underlining added).

Here, Defendants’ argument is based upon the lack of an ownership interest, but ignores the alternative right to possession. Defendants do no address the allegation that Plaintiff has the right to possession of $3.1 million that Defendants placed in their personal bank account.

Moreover, § 9.1 of the Strategic Alliance Agreement provides:

Ownership. Genesis shall own and retain all right, title and interest in and to the Media Business, Channel and Channel Programming, including any and all intellectual property rights therein (collectively the “Genesis Property”) provided, however, the copyrights in and to the Channel Programming and the trademarks in and to the Channel brands and logos will be owned jointly by Genesis and Nahai. To the extent applicable, Genesis and Nahai shall be deemed to be the “author” of all Channel Programming and all such Genesis Property will constitute “works made for hire” under the U.S. Copyright Act (17 U.S.C. §§ 101 et seq.) and any other applicable copyright law. . . . To the extent that Channel Programming does not constitute a work made for hire . . . OWNZONES hereby assigns to Genesis and Nahai all right, title and interest that OWNZONES may have or may hereafter acquire in all Channel Programming, including all intellectual property rights therein.

Nothing conditions this ownership upon full payment of the $4.1 million. Instead, the language appears to deem the foregoing to be the property of Ownzones, as author or assignee, upon creation of the works for hire.

Moreover, “an action in claim and delivery is a possessory action, and that one entitled to possession is entitled to maintain the action even though he is not vested with the legal title.” Feigin v. Kutchor (1951) 105 Cal.App.2d 744, 747 (bold emphasis added). Thus, for a claim and delivery action, ownership is not a required element.

Accordingly, Defendants have not demonstrated that they are entitled to judgment as to the fourth and fifth causes of action. The burden does not shift to Plaintiff to raise a triable issue of material fact.

The motion for summary adjudication as to Issue No. 3 re: the fourth cause of action and Issue No. 4 re: the fifth cause of action is DENIED.

5. Issue No. 5: “DEFENDANTS ARE ENTITLED TO SUMMARY ADJUDICATION ON PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR DECLARATORY RELIEF BECAUSE IT IS WHOLLY DERIVATIVE OF EACH OF THE OTHER MERITLESS CAUSES OF ACTION.”

Defendants’ argument that the declaratory relief cause of action must fail because it is derivative of the other causes of action which fail is not persuasive for the reasons discussed above.

The motion for summary adjudication as to Issue No. 5 re: the seventh cause of action is DENIED.


[1] “ ‘Sponsorship Amount’ means that portion of the Year One Service Fee contributed by Genesis that was derived or originated from third party sponsorship dollars.” ¶ 6.1, Page 7.

[2] The Court notes that Defendants do not challenge whether intellectual property may be the subject of a conversion cause of action.

Case Number: BC706021    Hearing Date: December 11, 2019    Dept: 48

MOTION TO COMPEL ANSWER AT DEPOSITION; REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiff Genesis Media LLC and Cross-Defendant Howard Misle

RESPONDING PARTY(S): Third party deponent Peter Seltzer

PROOF OF SERVICE:

ANALYSIS

Motion to Compel Further Deposition Testimony

CCP § 2025.480 provides:

  1. If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

    . . .

    CCP § 2025.480 (bold emphasis and underlining added).

    Here, as pointed out by Seltzer, Plaintiff Genesis Media LLC and Cross-Defendant Howard Misle was not “the party seeking discovery” [CCP § 2025.480(a)]. Rather the deposition was noticed by Defendants Ownzones Media Network, Inc. and Dan Goman. See Motion, Exh. A. As such, Plaintiff Genesis Media LLC and Cross-Defendant Howard Misle does not have standing to bring this motion to compel.

    The motion to compel the further deposition testimony of third party deponent Peter Seltzer and for sanctions is DENIED.

    Third party deponent Seltzer’s request for sanctions against Plaintiff and its counsel, Robert G. Klein, jointly and severally is GRANTED in the reduced amount of $1,875. Sanctions are to be paid to Selzter’s counsel wihin 10 days.

Case Number: BC706021    Hearing Date: November 04, 2019    Dept: 48

MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT

MOVING PARTY: Defendant/Cross-Complainant Ownzones Media Network, LLC

RESPONDING PARTY(S): Plaintiff/Cross-Defendant Genesis Media, LLC AND Cross-Defendant Howard Misle

PROOF OF SERVICE:

ANALYSIS

Motion for Leave to File First Amended Complaint

Defendant/Cross-Complainant Ownzones Media Network, LLC move for leave to file a first amended cross-complaint.

A red-lined version of the proposed 1AC reflecting changes was attached as Exhibit B to the motion.

The Declaration of Rebecca Lawlor Calkins sufficiently addressed the factors set forth in CRC Rule 3.1324(b).

Cross-Defendant’s argument the Cross-Complainant lacks standing to complain about Misle’s alleged embezzling of money from Genesis’ investors is not persuasive. Cross-Complainant would have standing to assert a fraudulent transfer claim, as well as a claim for fraud (by inducing Cross-Complainant to enter into the agreement even though Cross-Defendants knew they intended to embezzle funds that would otherwise be available to pay Cross-Complainant), and violation of B & P Code § 17200.

Cross-Defendant’s remaining arguments on the merits may be tested by way of law and motion. Cross-Defendant has not demonstrated prejudice by way of the amendment. Any work done on the pending motion for summary adjudication can be utilized toward future motions for summary adjudication as to the amended cross-complaint.

The motion for leave to file a first amended cross-complaint is GRANTED. Cross-Complainant is ordered to file a stand-alone copy of the first amended cross-complaint today, and it is deemed to be served as of the date of this order.

Upon the filing of the first amended cross-complaint, the hearing on the motion for summary adjudication set to be heard on December 9, 2019 will be placed OFF-CALENDAR AS MOOT.