On 02/26/2018 LEILA A ABRAHAM filed a Labor - Other Labor lawsuit against LOS ANGELES DEPT OF WATER AND POWER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JOHN P. DOYLE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JOHN P. DOYLE
ABRAHAM LEILA A.
LOS ANGELES DEPARTMENT OF WATER AND POWER
DOES 1 TO 25
VAKILI SA'ID ESQ.
MOON KRISTINE A. DEPUTY CITY ATTORNEY
MOON KRISTINE ANN
11/13/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
10/17/2019: Notice of Ruling - NOTICE OF RULING ON DEFENDANT LOS ANGELES DEPARTMENT OF WATER AND POWER'S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
10/11/2019: Response - RESPONSE DEFENDANT'S RESPONSE TO PLAINTIFF'S RESPONSE TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE, SU
10/11/2019: Declaration - DECLARATION DECLARATIONS SUBMITTED IN SUPPORT OF DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF IS
10/11/2019: Reply - REPLY DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
10/2/2019: Memorandum of Points & Authorities
10/2/2019: Declaration - DECLARATION OF L.A. ABRAHAM IN SUPPORT OF HER OPPOSITION TO DEF'S MOTION FOR SUMMARY JUDGMENT
6/21/2019: Notice - NOTICE OF ASSOCIATION OF COUNSEL
6/24/2019: Minute Order - MINUTE ORDER (HEARING ON PLAINTIFF'S UNOPPOSED EX PARTE APPLICATION TO CONT...)
5/22/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE; CONFERENCE RE MEDIATION SETTING AND/OR MSC...)
3/14/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE; POST-MEDIATION STATUS CONFERENCE)
11/5/2018: Other - - Other - Appendix of Exhibits Submitted in Support of Defendant's Motion for Summary of Judgment
11/5/2018: Separate Statement
11/5/2018: Memorandum of Points & Authorities
12/21/2018: Ex Parte Application - Ex Parte Application to Continue The Hearing Date and Briefing Schedule and Trial Date
5/4/2018: DEFENDANT CITY OF LOS ANGELES' ANSWER TO PLAINTIFF'S UNVERIFIED FIRST AMENDED COMPLAINT
5/18/2018: PLAINTIFF'S NOTICE OF CASE MANAGEMENT CONFERENCE
3/5/2018: ORDER TO SHOW CAUSE HEARING
Hearing05/03/2021 at 09:00 AM in Department 58 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing04/28/2021 at 09:00 AM in Department 58 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing02/18/2021 at 08:30 AM in Department 58 at 111 North Hill Street, Los Angeles, CA 90012; Conference Re: MSC SettingRead MoreRead Less
Hearing02/18/2021 at 08:30 AM in Department 58 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Expert Witness DiscoveryRead MoreRead Less
Hearing02/18/2021 at 08:30 AM in Department 58 at 111 North Hill Street, Los Angeles, CA 90012; Status ConferenceRead MoreRead Less
Docketat 08:30 AM in Department 58; Order to Show Cause Re: (Expert Witness Discovery) - Held - ContinuedRead MoreRead Less
Docketat 08:30 AM in Department 58; Status Conference ((All-Purpose)) - Held - ContinuedRead MoreRead Less
Docketat 08:30 AM in Department 58; Conference (ReMSC Setting) - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Status Conference (All-Purpose); Conference Re: MSC Setting; ...)); Filed by ClerkRead MoreRead Less
Docketat 09:00 AM in Department 58; Jury Trial - Not Held - Advanced and Continued - by CourtRead MoreRead Less
DocketSummons; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketProof-Service/Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketOSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketORDER TO SHOW CAUSE HEARINGRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR: (1) RETALIATION AND DISCRIMINATION IN VIOLATION OF FEHA; ETCRead MoreRead Less
DocketComplaint; Filed by Leila A. Abraham (Plaintiff)Read MoreRead Less
Case Number: BC696208 Hearing Date: December 11, 2019 Dept: 58
Judge John P. Doyle
Hearing Date: December 11, 2019
Case Name: Regenstein v. Ellin, et al.
Case No.: BC696208
Moving Party: Defendants Robert S. Ellin and LiveXLive Media, Inc.
Responding Party: Plaintiff Barry Regenstein
Tentative Ruling: The Demurrer is sustained in part.
This is an action in which Plaintiff alleges that contrary to contract Defendants failed to provide Plaintiff with unrestricted stock in exchange for his employment. On August6 7, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”) for (1) breach of contract, (2) intentional interference with prospective economic advantage, (3) negligent interference with prospective economic relations, (4) intentional interference with contractual relations, (5) breach of implied covenant of good faith and fair dealing, (6) intentional misrepresentation, (7) constructive fraud, (8) negligent misrepresentation, (9) concealment, (10) promissory fraud, (11) promissory estoppel, (12) conversion, (13) conspiracy, (14) nonpayment of wages, (15) quantum meruit, and (16) declaratory relief.
Defendants Robert S. Ellin and LiveXLive Media, Inc. demur to all causes of action for failure to state sufficient facts.
(a) 1st, 4th-5th, 11th, and 14th-16th Causes of Action
Defendants demur to Plaintiff’s contract-based claims because (1) Defendants performed; (2) there is no legal obligation to provide unrestricted stock; and (3) they are time-barred.
The Court has reconsidered its prior ruling as to performance in light of the further explanation provided by Plaintiff. The subject Advisory Board Consulting Agreement (“Advisory Agreement”) provided for 100,000 shares of stock to Plaintiff, and Plaintiff did receive such stock. However, later, a stock split occurred, and it is alleged Plaintiff did not receive the shares resulting from the split. Plaintiff was left with an apparently inoperative stock certificate such that it could be said that Plaintiff did not receive the benefit of the Advisory Agreement.
Defendants’ argument that Plaintiff is not entitled to unrestricted stock for the purposes of the sixteenth cause of action for declaratory relief fails because it merely relies on generalities about securities laws. As far as the FAC is concerned, the Advisory Agreement provided for restricted stock that would vest and then be subject to a one-year lock-up. Thus, the assumption is that after the expiration of the lock-up, the subject stock would be unrestricted.
Defendants’ arguments as to the statute of limitations have some merit. Defendants argue Plaintiff’s first, fifth, eleventh, fourteenth, and fifteenth causes of action are time-barred under two- to four-year limitations periods because such claims accrued on October 1, 2014, when the FAC provides Plaintiff’s stock vested.
Plaintiff argues his claims accrued in October 2017 when Defendants refused to deliver stock issued as a one-for-three reverse stock split. (FAC ¶ 12.)
Neither contention is totally accurate. The FAC makes clear that Plaintiff’s contract claims are premised on the failure to provide unrestricted stock. According to the FAC, this occurred on October 1, 2015 after the expiration of a one-year lock-up. (FAC ¶¶ 8, 68, 81, 88, 97, Exhibit A.) Defendants are incorrect that the subject claims accrued in October 2014 because while this is the time Plaintiff’s stock vested, this is before the one-year lock-up expired. Further, Plaintiff is incorrect that such claims accrued in October 2017 because the harm suffered is not actually the failure to deliver stock altogether, but the non-delivery of unrestricted stock. Indeed, the FAC provides that in December 2017 Defendants offered to provide Plaintiff the requested stock certificate, but subject to a lock-up agreement which Plaintiff considered to be a breach of the Advisory Agreement. (FAC ¶ 18.) Thus, Plaintiff was actually first harmed when his stock did not become unrestricted in October 2015. That such restrictions were apparently never removed—even when the October 2017 stock split occurred—does not apparently resuscitate Plaintiff’s claims.
Plaintiff’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing have a four-year limitations period. (Code Civ. Proc. § 337.) Because Plaintiff’s claims accrued in October 2015 and the Complaint was filed in February 2019, such claims are timely.
The same is not true for Plaintiff’s claims for promissory estoppel and quantum meruit which have a two-year limitations period. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 6 Cal.App.5th 1207, 1221, 1224.) Similarly, the statute of limitations for Plaintiff’s unpaid wages claim is three years. (Code Civ. Proc. § 338(a).) Without the aid of tolling, such claims are time-barred given that they accrued in October 2015.
The Court also notes the eleventh cause of action for promissory estoppel fails because consideration is pled. (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 904.)
Thus, the Demurrer is overruled as to the first, fourth, fifth, and sixteenth causes of action. The Demurrer is sustained as to the eleventh, fourteenth, and fifteenth causes of action. Leave to amend is denied as to the eleventh cause of action for promissory estoppel. Leave to amend is to be argued for the fourteenth and fifteenth causes of action.
(b) 2nd and 3rd Causes of Action
Defendants demur to the second and third causes of action on the ground that Defendants Ellin had no knowledge of a putative buyer of Plaintiff’s shares.
The elements for a claim of intentional interference with prospective economic advantage are as follows: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.)
“The elements of negligent interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant’s failure to act with reasonable care; (5) actual disruption of the relationship; and (6) economic harm proximately caused by the defendant’s negligence.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 1005.)
Indeed, there is no knowledge of a prospective economic relationship alleged with respect to a buyer of shares.
Plaintiff argues that such claims are also premised on the contractual relationship with Defendant LiveXLive Media, Inc., but this would be a current—rather than prospective—economic relation. Thus, the Demurrer is sustained as to the second and third causes of action, with twenty days leave to amend.
The Court notes the manger’s privilege does not necessarily bar the second, third, and fourth cause of action because Ellin’s predominate motive is a factual question. (FAC ¶ 27; Huynh v. Vu (2003) 111 Cal.App.4th 1183, 1198.)
(c) 6th and 8-10th Causes of Action
Defendants argue that Plaintiff’s fraud claims fail because there was no representation that unrestricted stock would be provided. However, as discussed above, it could be said the Advisory Agreement provided for unrestricted stock after such stock vested and a one-year lock-up expired.
Defendants next argue the sixth cause of action fails because reliance in not properly pled with respect to delay in filing suit. However, this appears to be an improper attack on a portion of a cause of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047.)
(d) 7th Cause of Action
Defendants demur to the seventh cause of action for constructive fraud because there is no fiduciary relationship between Ellin and Plaintiff supporting such claim and because such claim is time-barred.
Defendants’ first contention appears to be without merit because Ellin is alleged to be an officer of LiveXLive Media, Inc. (FAC ¶ 4), and “[o]fficers and directors owe a fiduciary duty to stockholders.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 179.)
However, to the extent the harm suffered is the failure to remove restrictions from Plaintiff’s stock—as discussed above—damages accrued in October 2015 such that the constructive fraud claim is time-barred under a three-year limitations period. (Code Civ. Proc. § 338(d).)
The Demurrer is sustained as to the seventh cause of action. Leave to Amend is to be argued.
(e) 12th and 13th Causes of Action
Defendants argue the twelfth cause of action fails because a conversion claim is not to seek unpaid wages. Defendants argue the thirteenth cause of action fails because all other claims fail.
A conversion claim does not lie as to wages. (Voris v. Lampert (2019) 7 Cal.5th 1141, 1163.)
“Courts have recognized that ‘wages’ also include those benefits to which an employee is entitled as a part of his or her compensation, including money, room, board, clothing, vacation pay, and sick pay. (E.g., Suastez v. Plastic Dress–Up Co. (1982) 31 Cal.3d 774, 780[, 183 Cal.Rptr. 846, 647 P.2d 122]; Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1091[, 64 Cal.Rptr.2d 457].)” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103, 56 Cal.Rptr.3d 880, 155 P.3d 284.) Incentive compensation, such as bonuses and profit-sharing plans, also constitute wages.
(Schachter v. Citigroup, Inc. (2009) 47 Cal. 4th 610, 618.)
Here, no reason is given for why the subject stock would not qualify as wages (see id. at p. 619 [finding restricted stock to be a wage]); indeed, the FAC alleges such stock was promised as compensation (FAC ¶ 8.) Thus, the Demurrer is sustained as to the twelfth cause of action. Because it does not appear possible to remedy such claim, leave to amend is denied.
The Demurrer is overruled as to the thirteenth cause of action due to surviving fraud claims.
The Demurrer is overruled as to causes of action 1, 4-6, 8-10, 13, and 16.
The Demurrer is sustained as to causes of action 2-3, 7, 11-12, and 14-15.
Twenty days leave to amend is granted as to causes of action 2-3.
Leave to amend is to be argued as to causes of action 7 and 14-15.
Leave to amend is denied as to causes of action 11 and 12.
 Because these are the only causes of action specifically briefed, they are the only causes of action the Court will address for the purposes of the statute of limitations.