This case was last updated from Los Angeles County Superior Courts on 08/20/2020 at 20:12:05 (UTC).

OUTBACK & UNDER PRY LTD VS ROBERT DEHN ET AL

Case Summary

On 05/09/2018 OUTBACK UNDER PRY LTD filed a Contract - Other Contract lawsuit against ROBERT DEHN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5598

  • Filing Date:

    05/09/2018

  • 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 Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff and Petitioner

OUTBACK & UNDER PTY. LTD.

Defendants and Respondents

WILDFIRE STUDIOS LLC

WILDFIRE SONIC MAGIC

DOES 1 TO 25

WSM POST LLC

DEHNOH PRODUCTIONS

SONIC MAGIC INC.

DEHN ROBERT

SATELLITE POST PRODUCTION

RICHARD GRAY AN INDIVIDUAL - DOE 1

MAGIC WILDFIRE SONIC

GRAY DOE 1 RICHARD

DEHNOH PICTURES

GRAY RICHARD

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

WEINBERG GONSER LLP

LIPSTONE DOUGLAS MARK

BITZER BRYAN

Defendant and Respondent Attorneys

JARED M. AHERN

EDMONSON WILLIAM H. ESQ.

AHERN JARED M.

AHERN JARED MICHAEL

FREDRICKS TIMOTHY WESTON ESQ.

EDMONSON WILLIAM HAYES

EANET MATTHEW LEO

EANET MATTHEW

 

Court Documents

Answer - ANSWER TO 4TH AMENDED COMPLAINT

4/15/2020: Answer - ANSWER TO 4TH AMENDED COMPLAINT

Reply - REPLY DEFENDANT RICHARD GRAY'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE FOURTH AMENDED COMPLAINT

3/9/2020: Reply - REPLY DEFENDANT RICHARD GRAY'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE FOURTH AMENDED COMPLAINT

Proof of Service (not Summons and Complaint)

3/9/2020: Proof of Service (not Summons and Complaint)

Motion to Strike (not initial pleading)

2/7/2020: Motion to Strike (not initial pleading)

Request for Entry of Default / Judgment

11/15/2019: Request for Entry of Default / Judgment

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON MOTION FOR DETERMINATI...)

11/21/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON MOTION FOR DETERMINATI...)

Notice of Posting of Jury Fees

11/25/2019: Notice of Posting of Jury Fees

Opposition - OPPOSITION DEFENDANT RICHARD GRAY'S OPPOSITION TO FORMER DEFENDANTS SONIC MAGIC, INC. AND SATELLITE POST PRODUCTION'S NOTICE OF MOTION AND MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMEN

11/7/2019: Opposition - OPPOSITION DEFENDANT RICHARD GRAY'S OPPOSITION TO FORMER DEFENDANTS SONIC MAGIC, INC. AND SATELLITE POST PRODUCTION'S NOTICE OF MOTION AND MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMEN

Proof of Service (not Summons and Complaint)

10/21/2019: Proof of Service (not Summons and Complaint)

Motion to Strike (not initial pleading) - MOTION TO STRIKE (NOT INITIAL PLEADING) PORTIONS OF THIRD AMENDED COMPLAINT

10/21/2019: Motion to Strike (not initial pleading) - MOTION TO STRIKE (NOT INITIAL PLEADING) PORTIONS OF THIRD AMENDED COMPLAINT

Case Management Statement

7/26/2019: Case Management Statement

Summons - SUMMONS ON COMPLAINT (2ND)

6/17/2019: Summons - SUMMONS ON COMPLAINT (2ND)

Proof of Service (not Summons and Complaint)

7/2/2019: Proof of Service (not Summons and Complaint)

Application - APPLICATION APPLICATION FOR ORDER AUTHORIZING SUBSTITUTED SERVICE OF PROCESS ON DEFENDANTS DEHNOH PICTURES AND WILDFIRE STUDIOS, LLC PURSUANT TO CAL. CORP. CODE 1702(A)

7/12/2019: Application - APPLICATION APPLICATION FOR ORDER AUTHORIZING SUBSTITUTED SERVICE OF PROCESS ON DEFENDANTS DEHNOH PICTURES AND WILDFIRE STUDIOS, LLC PURSUANT TO CAL. CORP. CODE 1702(A)

Request for Dismissal

1/14/2019: Request for Dismissal

NOTICE OF CASE MANAGEMENT CONFERENCE

5/23/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

Answer - Answer to First Amended Complaint

11/21/2018: Answer - Answer to First Amended Complaint

Minute Order - Minute Order (Case Management Conference)

11/2/2018: Minute Order - Minute Order (Case Management Conference)

137 More Documents Available

 

Docket Entries

  • 03/08/2021
  • Hearing03/08/2021 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 03/02/2021
  • Hearing03/02/2021 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/15/2021
  • Hearing01/15/2021 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 04/15/2020
  • DocketAnswer (to 4th Amended Complaint); Filed by Richard Gray (Defendant)

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  • 04/06/2020
  • DocketDeclaration (Declaration of Scott Didier in Support of Plaintiff's Application for Court Judgment Against WSM Post LLC); Filed by Outback & Under PTY. Ltd. (Plaintiff)

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  • 04/06/2020
  • DocketDeclaration of Interest, Costs and Attorney Fees; Filed by Outback & Under PTY. Ltd. (Plaintiff)

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  • 04/06/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Outback & Under PTY. Ltd. (Plaintiff)

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  • 04/06/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Outback & Under PTY. Ltd. (Plaintiff)

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  • 04/06/2020
  • DocketSummary of the Case; Filed by Outback & Under PTY. Ltd. (Plaintiff)

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  • 04/06/2020
  • DocketRequest for Entry of Default / Judgment; Filed by Outback & Under PTY. Ltd. (Plaintiff)

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174 More Docket Entries
  • 07/19/2018
  • DocketCASE MANAGEMENT STATEMENT

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  • 07/11/2018
  • DocketAMENDMENT TO COMPLAINT

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  • 06/11/2018
  • DocketAmendment to Complaint; Filed by Outback & Under PTY. Ltd. (Plaintiff)

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  • 06/06/2018
  • DocketAnswer; Filed by Satellite Post Production (Defendant); Sonic Magic, Inc. (Defendant)

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  • 06/06/2018
  • DocketDEFENDANTS SONJC MAGIC, INC AND SATELLITE POST PRODUCTION'S ANSWER TO PLAINTIFF'S COMPLAINT

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  • 05/23/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/23/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/09/2018
  • DocketComplaint; Filed by Outback & Under PTY. Ltd. (Plaintiff)

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  • 05/09/2018
  • DocketC0MPLAINT FOR DAMAGES 1. BREACH OF CONTRACT ;ETC

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  • 05/09/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC705598    Hearing Date: March 16, 2020    Dept: 47

Outback & Under Pty. Ltd v. Robert Dehn, et al.

 

(1) DEMURRER TO FOURTH AMENDED COMPLAINT;

(2) MOTION TO STRIKE PORTIONS OF FOURTH AMENDED COMPLAINT

MOVING PARTY: (1)-(2) Defendant Richard Gray

RESPONDING PARTY(S): (1)-(2) Plaintiff Outback & Under Pty. Ltd.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants breached an agreement to supply post-production services, personnel, facilities and other resources for the total audio and visual edit for Plaintiff’s documentary film series in order to make the documentary ready to market to networks and other global distributors.

Defendant Richard Gray demurs to the fourth amended complaint and moves to strike portions of it.

TENTATIVE RULING:

Defendant Richard Gray’s demurrer to the fourth amended complaint is OVERRULED.

Defendant’s motion to strike portions of the fourth amended complaint is GRANTED as to the prayer for punitive damages and the related allegations in ¶¶ 120, 131, 138, and 157. The motion is DENIED as to “Gray and” in ¶ 135 (Page 23, line 20).

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. If it does not, no leave to amend will be given.

DISCUSSION:

Demurrer To Fourth Amended Complaint

Meet-and-Confer Requirement

The Declaration of Attorney Sonia S. Roham demonstrates that the meet-and-confer requirements of CCP § 430.41 have been met.

Fifth Cause of Action (Fraud)

Defendant demurs to the fifth cause of action for fraud on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 (italics omitted).)

Fraud must be pleaded with specificity rather than with “general and conclusory allegations.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made . . . .

We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.’” (Id. at pp. 216–217.)

(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

Although fraud must be pled with specificity, Defendant’s arguments regarding the alleged deficiencies in this cause of action go beyond what is required at the pleading stage. For example, Plaintiff need only allege one misrepresentation, so Defendant’s criticisms would only be viable if they meant that Plaintiff had failed to allege any alleged misrepresentations with the required specificity. That is not the case. Here, Plaintiff alleges, among other things, that Gray “falsely represented to Outback that (a) he did not know where the money to pay Outback’s editors had gone; and (b) that he was not collecting any money from the Documentary.” (4AC ¶ 113.) At the time, Gray knew these representations to be false. (¶ 114.) These actions were intended to induce Plaintiff to “continue paying the installments outlined in the Agreement.” (¶ 120.) Plaintiff relied on these representations by continuing to pay installments and by not attempting to recover the $50,000 from Gray. (¶ 118.) This reliance was reasonable because the true facts were known only to Gray. (Ibid.) Plaintiff was harmed in an amount no less than $50,000 as a result. (¶ 119.) In other words, Plaintiff has alleged that (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. At the pleading stage, this is sufficient.

The demurrer is OVERRULED as to the fifth cause of action.

Sixth Cause of Action (Concealment)

Defendant demurs to the sixth cause of action for concealment on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

The elements of fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) intent to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) the plaintiff sustained damage as a result of the concealment or suppression of fact. (Hambridge v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

 

There are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; or (4) when the defendant makes partial representations but also suppresses some material fact.” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)

Fraud-based claims are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) To advance a cognizable fraud claim, “every element of the cause of action . . . must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a fraud claim deficient in any material respect.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) “Concealment is a species of fraud, and ‘[f]raud must be pleaded with specificity.’” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.)

Without citing to any authority, Defendant asserts that “exclusivity of knowledge to establish a duty of [sic] disclose does not apply to such transactions.” (Demurrer, at p. 4.) The Court is not aware of any such limitation on the circumstances outlined in LiMandri in which concealment may be actionable. Here, Plaintiff alleges that Defendant actively concealed from it a fact that Plaintiff did not know and that Defendant did: that the $50,000 for the editors had gone to him and that he was taking a commission on the Documentary. (¶¶ 124, 125.) Thus, Plaintiff has alleged particular ways in which Defendant had exclusive knowledge of material facts not known to the plaintiff and actively concealed material facts from Plaintiff.

Accordingly, the demurrer is OVERRULED as to the sixth cause of action for concealment.

Seventh Cause of Action (Conversion)

Defendant demurs to the seventh cause of action for conversion on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

“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.

(Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1452.)

Here, Plaintiff alleges its right to possess funds in the amount of $50,000 and alleges that Defendant wrongfully converted that amount when he was not entitled to it, resulting in damage to Plaintiff. (¶¶ 133-137.) These allegations are sufficient to state a cause of action for conversion. If Plaintiff ultimately cannot “show” its right to possess these funds, as Defendant claims (Demurrer, at p. 1), they can attempt to prove it in an appropriate motion. Plaintiff need only “allege” it at this stage.

Accordingly, the demurrer is OVERRULED as to the seventh cause of action for conversion.

Eighth Cause of Action (Violation of Penal Code § 496(a)) and Tenth Cause of Action (Violation of Penal Code § 496(a))

Defendant demurs to the eighth and tenth causes of action for violation of Penal Code § 496(a) on the grounds that they fail to state facts sufficient to constitute a cause of action and are uncertain. (CCP § 430.10(e), (f).)

Penal Code § 496(a) provides:

(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.

A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.

(Pen. Code § 496(a).) Any person who has been injured by a violation of this subdivision “may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.” (Id. § 496(c).)

A criminal conviction is not required in order for a civil plaintiff to recover treble damages under Penal Code 496(c):

A default judgment was entered against Igal J. Feibush for breach of contract, fraud, and treble damages under section 496(c). He challenges the treble damages on the ground he was never convicted in a criminal proceeding of the acts giving rise to liability under section 496(c). He argues a defendant must be convicted under section 496(a) before a private plaintiff may recover treble damages against that defendant under section 496(c). We hold, based on the statutory language, a criminal conviction under section 496(a) is not a prerequisite to recovery of treble damages under section 496(c). We also hold the phrase “any manner constituting theft” under section 496(a) includes theft by false pretense. We therefore affirm the judgment.

(Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1043.)

Further, “obtaining funds by false pretense and refusing to return it upon demand is sufficient to constitute a violation of Penal Code § 496 which would entitle a civil Plaintiff to treble damages.” (Ibid.) (Emphasis added.) As such, one can violate Penal Code § 496 if they are the person who committed the theft, and also refused to return the stolen goods upon demand.

Here, as discussed above, Plaintiff has sufficiently pled its fraud cause of action, and thus has pled the element of stolen property or obtaining property by false pretenses. Defendant’s argument that he “cannot be convicted of both stealing and receiving the same property” ignores the fact that this argument was explicitly rejected in Bell v. Feibush. (212 Cal.App.4th at 1048-1049.)

As such, the demurrer to the eighth and tenth causes of action is OVERRULED.

Motion To Strike Portions of the Fourth Amended Complaint

Meet-and-Confer Requirement

The Declaration of Attorney Sonia S. Roham demonstrates that the meet-and-confer requirements of CCP § 435.5 have been met.

Analysis

Defendant Richard Gray moves to strike Plaintiff’s prayer for punitive damages and related allegations, as well as the phrase “Gray and” in a paragraph within Plaintiff’s conversion cause of action.

The motion to strike is DENIED as to the phrase “Gray and” in Paragraph 135 (Page 23, line 20.) As discussed above, Plaintiff has sufficiently alleged conversion against Gray.

The motion is GRANTED as to the prayer for punitive damages and related allegations. As to Defendant Gray, Plaintiff has not sufficiently pled fraud as that term is defined in Civil Code § 3294(c)(3) to require an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention of depriving a person of property or legal rights. Adequately pleading a fraud cause of action does not automatically mean that a plaintiff has adequately pled entitlement to punitive damages. (Nickerson v. Stonebridge Life Ins. Co. (2016) 5 Cal.App.5th 1, 22.) Nor has Plaintiff pled with particularity any other basis for punitive damages as to this Defendant.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. If it does not, no leave to amend will be given.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 16, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org

Case Number: BC705598    Hearing Date: November 21, 2019    Dept: 47

Outback & Under Pty. Ltd v. Robert Dehn, et al.

 

(1) MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAINT;

(2) MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT[1]

MOVING PARTY: (1) Defendant Richard Gray; (2) Former Defendants Sonic Magic, Inc. and Satellite Post Production

RESPONDING PARTY(S): (1) Plaintiff Outback & Under Pty. Ltd.; (2) Defendant Robert Dehn and Defendant Richard Gray (separately)

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants breached an agreement to supply post-production services, personnel, facilities and other resources for the total audio and visual edit for Plaintiff’s documentary film series in order to make the documentary ready to market to networks and other global distributors.

Defendant Richard Gray moves to strike portions of the third amended complaint.

Former Defendants Sonic Magic, Inc. and Satellite Post Production move for determination of good faith settlement.

TENTATIVE RULING:

Defendant Richard Gray’s motion to strike portions of the third amended complaint is GRANTED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. If he does not, no leave to amend will be given.

Former Defendants Sonic Magic, Inc. and Satellite Post Production’s motion for determination of good faith settlement is GRANTED.

DISCUSSION:

Motion To Strike Portions of the Third Amended Complaint

Meet-and-Confer Requirement

Although the Declaration of Attorney Brian D. Lauter erroneously refers to the meet-and-confer statute applicable to demurrers, not motions to strike (and, even more confusingly, refers in the caption of the declaration to a “Demurrer and Motion to Strike filed concurrently herewith” when it no demurrer seems to have been filed), it appears that the meet-and-confer requirements of CCP § 435.5 have been met.

Analysis

Defendant Richard Gray moves to strike Plaintiff’s prayer for punitive damages and attorney’s fees and related allegations.

Defendant’s motion to strike the prayer for punitive damages and related allegations is GRANTED. As to Defendant Gray, Plaintiff has not sufficiently pled fraud, as that term is defined in Civil Code § 3294(c)(3) to require an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention of depriving a person of property or legal rights. Nor has Plaintiff pled with particularity any other basis for punitive damages as to this Defendant.

The motion to strike the prayer for attorneys’ fees is also GRANTED. Plaintiff has not alleged any agreement with this Defendant that includes a provision authorizing attorney’s fees, and Plaintiff has not alleged any other basis for an award of fees.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. If he does not, no leave to amend will be given.

Motion for Determination of Good Faith Settlement

Former Defendants Sonic Magic, Inc. and Satellite Post Production move for a determination of good faith settlement.

CCP § 877.6(a)(1) provides:

Any party to an action “in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt” is entitled to a hearing “on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (CCP § 877.6(a)(1).)

At a minimum, a party seeking confirmation of a settlement must explain to the court and to all other parties: who has settled with whom, the dollar amount of each settlement, if any settlement is allocated, how it is allocated between issues and/or parties, what nonmonetary consideration has been included, and how the parties to the settlement value the nonmonetary consideration. 

(Alcal Roofing & Insulation v. Superior Court (1992) 8 Cal.App.4th 1121, 1129.)

Who has settled with whom. Former Defendants Sonic Magic, Inc. and Satellite Post Production have settled with Plaintiff Outback & Under Pty. Ltd.

The dollar amount of each settlement. The Moving Defendants have paid Plaintiff $15,000.

If any settlement is allocated, how it is allocated between issues and/or parties. It does not appear that the settlement has been allocated.

What nonmonetary consideration has been included. The Moving Defendants have assigned any claims they have against the remaining parties in the case to Plaintiff. Plaintiff agreed to dismiss the claims against the Moving Defendants with prejudice. Plaintiff and the Moving Defendants also provided each other with a general release.

How the parties to the settlement value the nonmonetary consideration. The parties value the assignment of claims to Plaintiff at approximately $62,500, based on a $50,000 invoice that Moving Defendant Satellite paid and another $12,500 that Satellite distributed to Defendant Robert Dehn.

Where a plaintiff settles with one of several joint tortfeasors without releasing the others, a determination of “good faith” discharges the settling defendant from liability to the other defendants for equitable contribution or comparative indemnity. (CCP § 877(a)-(b).) The amount paid by the settling defendant reduces the claim against the others (CCP § 877(a)), but a risk of prejudice remains because an unreasonably low settlement (i.e., with the “most culpable” tortfeasor) exposes the remaining defendants to a judgment exceeding their fair share of the liability. (See Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1019-1020.)

There is no precise yardstick for measuring the “good faith” of a settlement with one of several tortfeasors, but it must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among tortfeasors. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.)

The nonexclusive factors considered include:

  1. A rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability;

  2. The amount paid in settlement;

  3. A recognition that a settlor should pay less in settlement than if found liable after a trial;

  4. The allocation of the settlement proceeds among plaintiffs;

  5. The settlor's financial condition and insurance policy limits, if any; and

    (6) Evidence of any collusion, fraud, or tortious conduct between the settlor and the plaintiffs aimed at making the nonsettling parties pay more than their fair share.

    (Tech-Bilt, supra, 38 Cal.3d at 499; TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 165-166.)

    Here, Defendants Robert Dehn and Richard Gray oppose the motion for determination of good faith settlement.

    As an initial matter, Defendant Robert Gray argues that the Moving Defendants are not “joint tortfeasors or co-obligors” because they are not named in the operative complaint. The statute uses the word “tortfeasor” rather than “defendant,” however, “implying a broader scope of applicability.” (Widson v. International Harvester Co. (1984) 153 Cal.App.3d 45, 57, superseded by statute on unrelated grounds.) Defendant Gray also argues that the Moving Defendants were not “joint tortfeasors or co-obligors” even in the previous complaint, because there were no causes of action alleged against both Defendant Gray and the Moving Defendants. There is no requirement, however, that “joint tortfeasors” be named as defendants in the identical causes of action, especially given that they need not be parties to the lawsuit at all. (Mid-Century Ins. Exch. v. Daimler-Chrysler Corp. (2001) 93 Cal.App.4th 310, 316.) Moreover, “[j]oint tortfeasors may act in concert or independently of one another.” (Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1115.) “There seems to be no logical reason why the application of [joint and several liability] should turn on the relationship of the tortfeasors to each other. What is important is the relationship of the tortfeasors to the plaintiff and the interrelated nature of the harm done.” (Ibid. (citation omitted; bold emphasis added).) Here, the allegations against the Moving Defendants and the Defendants opposing this motion were “interrelated,” as was the alleged harm done. Thus, the Moving Defendants are “joint tortfeasors or co-obligors” for purposes of § 877.6.

    Turning to the settlement itself, the party contesting the settlement bears the burden of proving that it is in bad faith. (CCP §877.6(d).) If the party contesting the settlement can show, with admissible evidence, that the settlement is “so far ‘out of the ballpark’ in relation to [the above-referenced factors] as to be inconsistent with the equitable objectives of the statute,” then the court should find the settlement to be lacking in good faith. (Id. at 499-500.) If no such showing is made, the settlement should be deemed to be in good faith and the settlor is entitled to an order barring any further claims by any other joint tortfeasor or co-obligor for “equitable comparative contribution, or partial or comparative indemnity” and/or an order dismissing any such claims. (CCP §877.6(c).)

    Thus, in assessing the good faith of any settlement, the trial court must properly consider whether the proposed settlement was within the reasonable range of the settling tortfeasor’s total liability, taking into account the settling tortfeasor’s potential liability for indemnity. (Far West Financial Corp. v. D&S Co. (1988) 46 Cal. 3d 796, 814-815.)

    The trial court calculates “the culpability of the [settling] tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor.

    (Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 865, 873.)

    Here, although Plaintiff had estimated its damages at no less than $650,000 in the 3AC (¶ 66), total damages must be estimated as of the date of settlement. (Tech-Bilt, supra, 38 Cal.3d at 499 [“[P]ractical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement.”]) As of that date, the Moving Defendants estimate that Plaintiff’s damages would be “less than $150,000, and likely closer to $50,000, at most.” (Declaration of Attorney Jared M. Ahern ¶ 7.) This range is supported by the fact that Plaintiff received certain services in exchange for the $150,000 it paid, and therefore its ultimate recovery would be decreased by the value of the services and equipment received. (Ibid.)

    The Court finds that this range represents a more realistic estimate of Plaintiff’s total estimated recovery than the allegation in the 3AC, especially given that there is no guarantee Plaintiff would recover anything at all. Determination of a “ballpark” amount, however, includes consideration of the possibility that the plaintiff will not prevail – that is, it is a determination of what a reasonable person could believe the plaintiff would recover at trial. (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 964-965.) Thus, a settlement does not lack good faith solely because the settling tortfeasor pays “less than his or her theoretical proportionate or fair share.” (Tech–Bilt, supra, 38 Cal.3d at 499.) Discounting a settling tortfeasor's proportional share is appropriate because a plaintiff’s “damages are often speculative, and the probability of legal liability therefor is often uncertain or remote” (Ibid.) Under the circumstances, the Court cannot conclude that the settlement amount is grossly disproportionate to the Moving Defendants’ potential share of the liability. “[A] ‘good faith’ settlement does not call for perfect or even nearly perfect apportionment of liability. In order to encourage settlement, it is quite proper for a settling defendant to pay less than his proportionate share of the anticipated damages. What is required is simply that the settlement not be grossly disproportionate to the settlor’s fair share.” (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 874–875.)

    In terms of the remaining Tech-Bilt factors, because there is only one plaintiff, the allocation of settlement proceeds among plaintiffs is not at issue. Because there is no evidence that the settlement amount is disproportionately low compared to the Moving Defendants’ potential liability, their financial condition and insurance policy limits do not affect the Court’s analysis. (See L.C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 749-750.)

    Likewise, the opposing Defendants have not presented evidence demonstrating “the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” The Court has not found, based on the evidence presented, that the settlement is reasonable in light of Plaintiff’s potential recovery. As set forth above, it is the nonsettling defendants’ burden to prove that the settlement was not made in good faith. (CCP § 877.6(d); Tech-Bilt, supra, 38 Cal.3d at 499-500.) They have not met this burden.

    Accordingly, the Court GRANTS Former Defendants Sonic Magic, Inc. and Satellite Post Production’s motion for determination of good faith settlement. Hence, any present and future claims for indemnity or equitable contribution are barred as to the moving party. All cross-complaints for implied and/or equitable indemnity, contribution, and comparative fault against Sonic Magic, Inc. and Satellite Post Production are barred and dismissed in this action.

    Moving party to give notice, unless waived.

    IT IS SO ORDERED.

    Dated: November 21, 2019 ___________________________________

    Randolph M. Hammock

    Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org


[1] There was also a motion for judgment on the pleadings, demurrer and motion to strike filed by Dehnoh Pictures, and a motion to strike filed by Robert Dehn originally calendared for this date, but they were taken off calendar by the respective moving parties.