This case was last updated from Los Angeles County Superior Courts on 12/12/2020 at 21:25:21 (UTC).

JOHN C LABONTY JR VS MOMAGER INC ET AL

Case Summary

On 09/20/2017 JOHN C LABONTY JR filed a Contract - Other Contract lawsuit against MOMAGER INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MICHELLE WILLIAMS COURT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6635

  • Filing Date:

    09/20/2017

  • 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 Judge

MICHELLE WILLIAMS COURT

 

Party Details

Plaintiffs and Petitioners

LABONTY JOHN C. JR

LABONTY JOHN C. JR.

Defendants, Respondents and Cross Plaintiffs

KARDASHIAN KIM

JENNER KRIS

2DIE4KOURT INC

MOMAGER INC

KARDASHIAN KHLOE

KIMSAPRINCESS INC

KHLOMONEY INC

KARDASHIAN KOURTNEY

DOES 1-20 INCLUSIVE

HILLAIR CAPITAL MANAGEMENT LLC

WILSON TODD

2DIE4KOURT INC.

KHLOMONEY INC.

MOMAGER INC.

KIMSAPRINCESS INC.

Defendants, Respondents and Cross Defendants

HILLAIR CAPITAL MANAGEMENT LLC

HILLAIR CAPITAL INVESTMENTS LP

HAVEN BEAUTY INC.

4 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

WHITMAN TODD E. ESQ.

WHITMAN TODD ERIK ESQ.

Defendant and Respondent Attorneys

KUMP MICHAEL J.

FAYER GREGORY ALAN

STEINSPIR JONATHAN P.

KUMP MICHAEL JOSEPH

Defendant and Cross Plaintiff Attorney

KUMP MICHAEL JOSEPH

Cross Defendant Attorney

MILLARD MICHELLE

 

Court Documents

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE APPEAL)

7/10/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE APPEAL)

Notice - NOTICE OF CASE MANAGEMENT AND CONTINUANCE OF STATUS CONFERENCE

10/15/2019: Notice - NOTICE OF CASE MANAGEMENT AND CONTINUANCE OF STATUS CONFERENCE

Answer

1/3/2020: Answer

Declaration - DECLARATION DECLARATION OF TODD E. WHITMAN RE SANCTIONS FOR FAILURE TO APPEAR AT THE CASE MANAGEMENT CONFERENCE HELD ON DECEMBER 10 2019

1/16/2020: Declaration - DECLARATION DECLARATION OF TODD E. WHITMAN RE SANCTIONS FOR FAILURE TO APPEAR AT THE CASE MANAGEMENT CONFERENCE HELD ON DECEMBER 10 2019

Notice Re: Continuance of Hearing and Order

3/17/2020: Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order

3/25/2020: Notice Re: Continuance of Hearing and Order

Notice of Ruling

7/6/2020: Notice of Ruling

Motion to Compel Further Discovery Responses

10/9/2020: Motion to Compel Further Discovery Responses

Notice of Change of Address or Other Contact Information

11/2/2020: Notice of Change of Address or Other Contact Information

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

11/12/2020: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES)

11/20/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES)

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO CONTINUE SUMMARY JUDGMENT HEARING DATE PURSUANT TO CODE OF CIVIL PROCEDURE 437C, SUBD. (A)(3)

12/11/2020: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO CONTINUE SUMMARY JUDGMENT HEARING DATE PURSUANT TO CODE OF CIVIL PROCEDURE 437C, SUBD. (A)(3)

DEFENDANT HILLAIR CAPITAL MANAGEMENT'S ANSWER TO PLAINTIFF'S COMPLAINT, ETC

3/1/2018: DEFENDANT HILLAIR CAPITAL MANAGEMENT'S ANSWER TO PLAINTIFF'S COMPLAINT, ETC

Minute Order -

4/4/2018: Minute Order -

NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE) (APPELLATE)

5/2/2018: NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE) (APPELLATE)

Minute Order -

5/8/2018: Minute Order -

PLAINTIFF'S CASE STATUS REPORT

8/31/2018: PLAINTIFF'S CASE STATUS REPORT

NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL -

10/20/2017: NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL -

97 More Documents Available

 

Docket Entries

  • 04/26/2021
  • Hearing04/26/2021 at 10:00 AM in Department 74 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 04/16/2021
  • Hearing04/16/2021 at 08:30 AM in Department 74 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/14/2020
  • Hearing12/14/2020 at 08:30 AM in Department 74 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Ex Parte Application TO CONTINUE SUMMARY JUDGMENT HEARING DATE PURSUANT TO CODE OF CIVIL PROCEDURE 437C, SUBD. (A)(3)

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  • 12/11/2020
  • DocketEx Parte Application (EX PARTE APPLICATION TO CONTINUE SUMMARY JUDGMENT HEARING DATE PURSUANT TO CODE OF CIVIL PROCEDURE 437C, SUBD. (A)(3)); Filed by 2Die4Kourt Inc. (Defendant); Kris Jenner (Defendant); Khloe Kardashian (Defendant) et al.

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  • 12/11/2020
  • DocketDeclaration in Support of Ex Parte Application; Filed by 2Die4Kourt Inc. (Defendant); Kris Jenner (Defendant); Khloe Kardashian (Defendant) et al.

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  • 11/20/2020
  • Docketat 08:30 AM in Department 74; Hearing on Motion to Compel Further Discovery Responses - Held - Motion Denied

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  • 11/20/2020
  • DocketMinute Order ( (Hearing on Motion to Compel Further Discovery Responses)); Filed by Clerk

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  • 11/12/2020
  • Docketat 08:30 AM in Department 74; Hearing on Demurrer - without Motion to Strike - Held - Taken under Submission

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  • 11/12/2020
  • Docketat 3:37 PM in Department 74; Nunc Pro Tunc Order

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  • 11/12/2020
  • DocketMinute Order ( (Hearing on Demurrer - without Motion to Strike)); Filed by Clerk

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180 More Docket Entries
  • 10/20/2017
  • DocketNotice and Acknowledgment of Receipt; Filed by John C. LaBonty, Jr. (Plaintiff)

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  • 10/20/2017
  • DocketNotice and Acknowledgment of Receipt; Filed by John C. LaBonty, Jr. (Plaintiff)

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  • 10/20/2017
  • DocketNotice and Acknowledgment of Receipt; Filed by John C. LaBonty, Jr. (Plaintiff)

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  • 10/19/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 10/19/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/19/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 10/19/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 09/20/2017
  • DocketCOMPLAINT FOR: 1) BREACH OF CONTRACT; AND ETC

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  • 09/20/2017
  • DocketSUMMONS

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  • 09/20/2017
  • DocketComplaint; Filed by John C. LaBonty, Jr. (Plaintiff)

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Tentative Rulings

Case Number: BC676635    Hearing Date: June 25, 2020    Dept: 74

BC676635 JOHN C LABONTY JR VS MOMAGER INC

Cross-Defendants Hillair Capital Management LLC, Hillair Capital Investments LP and Haven Beauty Inc’s Demurrer

TENTATIVE RULING: The demurrer to the first and seventh causes of action is SUSTAINED WITH LEAVE TO AMEND. Defendants/Cross Complainants Momager, Inc., Kris Jenner, Kim Kardashian, Khloe Kardashian, Kimsaprincess, Inc. Khloemoney Inc., 2die4kourt Inc. and Todd Wilson may file an amended cross-complaint within 10 days. The demurrer to the second, third, fourth, fifth and sixth causes of action are SUSTAINED WITHOUT LEAVE TO AMEND.

Request for Judicial Notice

The court takes judicial notice of (1) the executed license agreement dated May 9, 2012, (2) the final award in JAMS Arbitration No. 1210033201 dated January 14, 2019, and (3) the July 5, 2019, final ruling on submitted Motions to Confirm/Vacate Arbitration Award, Los Angeles Superior Court Case No. BC 614374. Evidence Code §§452, 453.

Discussion

Cross-Defendants filed this demurrer on the grounds that the Cross-Complaint fails to state a claim for relief and lacks the specificity required to sufficiently plead each cause of action. Moreover Cross-Defendants argue express indemnity cause of action fails as a matter of law because intentional torts are not covered by the indemnity provision in the License. Cross-Defendants further argue that the equitable causes of action are duplicative, as equitable indemnity and contribution have no application as a matter of law and the equitable indemnity claims are uncertain. Finally, Cross-Defendants argue the declaratory relief cause of action fails as a matter of law.

First Cause of Action – Express Indemnity

“Express  refers to an obligation that arises “by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances… Express indemnity generally is not subject to equitable considerations or a joint legal obligation to the injured party; rather, it is enforced in accordance with the terms of the contracting parties' agreement.” (Prince v. Pac. Gas & Elec. Co., (2009) 45 Cal. 4th 1151, 1158.)

Paragraph 14 of the License allows for indemnification when:

“14(C) …arising from (i) the production, distribution, or other use by Licensee of the Kardashian Image in connection with Products pursuant to this Agreement, including claims of false advertising, (ii) a breach by Licensee of any warranty, representation, covenant, promise or undertaking made by Licensee hereunder, (iii) the development, manufacture, distribution, marketing, promotion, sale or other exploitation of the Products or the purchase or use thereof by any consumer; (iv) any claims or representations made by Licensee, (v) the operation of Licensee's business, and/or (vi) any acts or omissions by Licensee, including but not limited to any violations of law; except, in the case of each of clauses (i)-(vi), for any such claims only to the extent arising from the gross negligence or willful acts of one or more of the Indemnified Parties or a breach of the Licensors' representations or warranties contained in Section 14.B. Licensee's obligations set forth above are in addition to any other liability it may otherwise have hereunder and shall be independent of its obligations under any other provision of this Agreement…

14(D)… arising out of or in connection with any breach of any of the Licensors' or Kardashians' representations, warranties, obligations, covenants or agreements herein, except in each case to the extent any such claim arises from the gross negligence, intentional misconduct or violation of law or breach of any representation, warranty or covenant by any of the indemnified parties. The Licensor's obligations set forth above are in addition to any other liability it may otherwise have hereunder and shall be independent of its obligations under any other provision of this Agreement.”

Cross-complainants concede HCI and HCM are not parties to the License, but argue Haven is bound to the terms of the License as it succeeded Boldface in October 2014, and that HCI and HCM are bound to the terms of the License because Haven acted as its agent in their dealings with cross-complainants. (Demurrer p.4 ¶¶10-16.) As such, cross-complainants seek indemnity for Plaintiff’s two contract claims and two tort claims against the Defendants. In contrast, cross-defendants argue cross-complainants’ claims concern intentional conduct and do not qualify for indemnity under the terms of the License, which renders the Cross-Complaint incurable. The License specifically carves out willful or intentional conduct in both paragraphs 14C and 14B. As such, cross-defendants argue cross-complainants’ claim for an express indemnity regarding their own intentional conduct cannot stand. Contrarily, cross-complainants’ argue cross-defendants’ intentionality arguments must fail. Cross-complainants argue intentional torts do not require intentional conduct or intent, and as such, even if cross-complainants were guilty of an intentional tort, it would not prove specific intent. (Opp. to Demurrer p.12: 3-8.) Cross-complainants’ argument is unavailing even with its assertion relating to willful misconduct. (Opp. to Demurrer p.12: 11-14.) The plain language of the License exclaims liability for willful acts and breaches of any representation, warranty or covenant. (RJN Exhibit 1.)

Cross-complainants further argue cross-defendants must expressly indemnify them based upon Plaintiff’s claim arising out of “the operation of Licensee’s business” or from the “acts and omissions of Licensee.” (Cross-Complaint ¶¶ 12-13.) CDs first counter argue that, Plaintiff’s claim does not arise out of the operation of the Licensee’s business and as such must fail. Here, Plaintiff filed suit against Defendants due to an alleged violation of an agreed upon term sheet regarding his equity interest in Haven and does not involve the conduct of HCM and HCI, which does not give rise to an inference that the claim arose out of the operation of Licensee’s business. (Demurrer p.6 ¶¶14-25.) Cross-defendants further argue Plaintiff’s claim could in no way have arose out of the acts or omissions of the cross-defendants, specifically HCM.

California courts liberally construe “the arising out of” doctrine. But this requires more than “but for” causation. (Fireman's Fund Ins. Companies v. Atlantic Richfield Co. (2001) 94 Cal.App.4th 842, 849.) The “arising out of” concept notes “‘but for causation” is insufficient, but [the] standard is more liberal than proximate cause.” (Acceptance Ins. Co. v. Syufy Enterprises (1999) 69 Cal.App.4th 321, 329.) Cross-complainants state various case law examples to define legal concepts; however, they fail to sufficiently apply such facts to the legal concepts so as to prove that their claim does not fail. (Opp. to Demurrer p.9: 9-25; p.10: 1-28; p.11 1-13.) If more than “but for” causation is needed, cross-complainants failed to prove that Plaintiff’s cause of action “arouse out of” the License. As such, cross-complainants’ express indemnity claim fails.

Cross-defendants further argue cross-complainants have not pled sufficient facts to allege an express indemnity claim against HCI or HCM. In opposition, cross-complainants argue agency creates liability on the part of HCI and HCM. This argument fails, as neither HCI nor HCM are parties to the License. Express indemnity is allowed only upon the plain words stated in the contract. As such, the contract at issue here, the License, is between the Licensee and Licensor, which is neither HCI nor HCM. (RJN Exhibit 1.)

The demurrer to the express indemnity claim is SUSTAINED with leave to amend.

Second Cause of Action – Equitable Indemnity; Third Cause of Action – Comparative Indemnity; Fifth Cause of Action – Total Equitable Indemnity; Sixth Cause of Action – Implied Contractual Indemnity

Cross-defendants argue the Court should sustain their demurrer to all of the indemnity causes of actions because they are duplicative and must fail as a matter of law.

There are two types of indemnification causes of action recognized by law, express indemnity and equitable indemnity. (Prince v. Pac. Gas & Elec. Co., supra, 45 Cal. 4th at 1157.) KDs second cause of action (equitable indemnity), third cause of action (comparative indemnity), fifth cause of action (total equitable indemnity), and sixth cause of action (implied contractual indemnity) are all a part of an equitable indemnity claim.

As such, equitable indemnity requires a “showing of fault on the indemnitor and a resulting damage to the indemnitee for which the indemnitor is…equitably responsible.” (C.W. Howe Partners Inc. v. Mooradian, (2020) 43 Cal. App. 5th 688, 700.) “In an indemnity action, the trier of fact must determine whether the indemnitee was held legally responsible for damages to a third party, whether the indemnitor's conduct was a substantial factor in causing the harm, and if so, the indemnitee's and indemnitor's percentages of responsibility.” (Id.) There must be a joint legal obligation to another in order to properly claim indemnity. (Id.) Here, the equitable indemnity cause of action is misplaced because there has yet to be a determination as to whether the cross-complainants are legally responsible for Plaintiff’s damage.

The demurrer to the second, third, fifth and sixth causes of action are SUSTAINED WITHOUT LEAVE TO AMEND.

Fourth Cause of Action – Comparative Contribution

C.C.P. § 875 allows for contribution in a tort action once a tribunal has awarded a money judgment. Here, the Court has not awarded a money judgment.

The demurrer to fourth cause of action are SUSTAINED WITHOUT LEAVE TO AMEND.

Seventh Cause of Action – Declaratory Relief

Declaratory relief requires a proper subject for declaratory relief and an actual controversy between the parties “involving justiciable questions relating to [the party's] rights or obligations.’” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)

“Where a trial court has concluded the plaintiff did not state sufficient facts to support a statutory claim and therefore sustained a demurrer as to that claim, a demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly derivative’ of the statutory claim.” (Ball v. FleetBoston Fin. Corp., (2008) 164 Cal. App. 4th 794, 800.)

The demurrer to the declaratory relief claim is SUSTAINED with leave to amend.