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This case was last updated from Los Angeles County Superior Courts on 07/17/2021 at 10:39:55 (UTC).

PHENOMENON MARKETING AND ENTERTAINMENT, LLC, A CALIFORNIA LIMITED COMPANY VS CAPPELLO GLOBAL, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Case Summary

On 04/29/2020 PHENOMENON MARKETING AND ENTERTAINMENT, LLC, A CALIFORNIA LIMITED COMPANY filed a Contract - Other Contract lawsuit against CAPPELLO GLOBAL, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY KEOSIAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6415

  • Filing Date:

    04/29/2020

  • 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

GREGORY KEOSIAN

 

Party Details

Plaintiffs, Cross Plaintiffs and Cross Defendants

PHENOMENON MARKETING AND ENTERTAINMENT LLC A CALIFORNIA LIMITED COMPANY

PHENOMENON MARKETING AND ENTERTAINMENT LLC

Defendants, Cross Plaintiffs and Cross Defendants

NIAGARA INTERNATIONAL CAPITAL LIMITED A NEW YORK CORPORATION

CAPPELLO GLOBAL LLC A CALIFORNIA LIMITED LIABILITY COMPANY

CAMDEN FINANCIAL SERVICES A CALIFORNIA CORPORATION

CAPPELLO GLOBAL LLC

CAMDEN FINANCIAL SERVICES

NIAGARA INTERNATIONAL CAPITAL LIMITED

PHENOMENON MARKETING AND ENTERTAINMENT LLC

ICARDO MARCO

MENON KRISHNAN

PHENOMENON MARKETING AND ENTERTAINMENT INC.

CAPPELLO ALEX

KELLY SEAN

PHE.NO HOLDINGS INC.

PHENOMENON HOLDINGS LLC

PHE.NO LLC A DELAWARE LIMITED LIABILITY COMPANY

PHENOMENON BLOCKER LLC

SLEEPING BEAR CAPITAL LLC

5 More Parties Available

Attorney/Law Firm Details

Plaintiff, Cross Plaintiff and Cross Defendant Attorneys

FARROW JEFFREY D.

QUIGLEY MARK THOMAS

Defendant, Cross Plaintiff and Cross Defendant Attorneys

JONES RICHARD

QUIGLEY MARK THOMAS

 

Court Documents

Notice of Change of Address or Other Contact Information

6/24/2021: Notice of Change of Address or Other Contact Information

Notice and Acknowledgment of Receipt

7/2/2021: Notice and Acknowledgment of Receipt

Opposition - OPPOSITION PLAINTIFF AND CROSS-DEFENDANT PHENOMENONS OPPOSITION TO MOTION TO STRIKE THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

1/5/2021: Opposition - OPPOSITION PLAINTIFF AND CROSS-DEFENDANT PHENOMENONS OPPOSITION TO MOTION TO STRIKE THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURRER) OF 01/19/2021

1/19/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURRER) OF 01/19/2021

Amendment to Cross-Complaint (Fictitious/Incorrect Name)

2/5/2021: Amendment to Cross-Complaint (Fictitious/Incorrect Name)

Stipulation and Order - STIPULATION AND ORDER PROTECTIVE

10/6/2020: Stipulation and Order - STIPULATION AND ORDER PROTECTIVE

Notice of Posting of Jury Fees

10/22/2020: Notice of Posting of Jury Fees

Notice of Rejection Default/Clerk's Judgment

9/30/2020: Notice of Rejection Default/Clerk's Judgment

Notice of Posting of Jury Fees - NOTICE OF POSTING OF JURY FEES CAPPELLO GLOBAL, LLC

9/21/2020: Notice of Posting of Jury Fees - NOTICE OF POSTING OF JURY FEES CAPPELLO GLOBAL, LLC

Answer

8/27/2020: Answer

Notice Re: Continuance of Hearing and Order

9/4/2020: Notice Re: Continuance of Hearing and Order

Ex Parte Application - EX PARTE APPLICATION DEFENDANTS/CROSS-COMPLAINANTS CAPPELLO GLOBAL, LLC AND CAMDEN FINANCIAL SERVICES NOTICE OF EX PARTE AND EX PARTE APPLICATION FOR A PROTECTIVE ORDER; MEMOR

7/23/2020: Ex Parte Application - EX PARTE APPLICATION DEFENDANTS/CROSS-COMPLAINANTS CAPPELLO GLOBAL, LLC AND CAMDEN FINANCIAL SERVICES NOTICE OF EX PARTE AND EX PARTE APPLICATION FOR A PROTECTIVE ORDER; MEMOR

Opposition - OPPOSITION PLAINTIFF AND CROSS-DEFENDANTS OPPOSITION TO EX PARTE APPLICATION FOR A PROTECTIVE ORDER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JEFFREY D. FARROW

7/23/2020: Opposition - OPPOSITION PLAINTIFF AND CROSS-DEFENDANTS OPPOSITION TO EX PARTE APPLICATION FOR A PROTECTIVE ORDER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JEFFREY D. FARROW

Notice Re: Continuance of Hearing and Order

7/17/2020: Notice Re: Continuance of Hearing and Order

Notice and Acknowledgment of Receipt

7/9/2020: Notice and Acknowledgment of Receipt

Notice - NOTICE NOTICE OF CASE MANAGEMENT CONFERENCE

6/5/2020: Notice - NOTICE NOTICE OF CASE MANAGEMENT CONFERENCE

Proof of Personal Service

5/13/2020: Proof of Personal Service

Civil Case Cover Sheet

4/29/2020: Civil Case Cover Sheet

55 More Documents Available

 

Docket Entries

  • 07/05/2022
  • Hearing07/05/2022 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 06/27/2022
  • Hearing06/27/2022 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/27/2022
  • Hearing04/27/2022 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 07/12/2021
  • DocketProof of Personal Service; Filed by Cappello Global, LLC (Cross-Complainant)

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  • 07/02/2021
  • DocketNotice and Acknowledgment of Receipt; Filed by Cappello Global, LLC (Cross-Complainant); Camden Financial Services (Cross-Complainant)

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  • 07/02/2021
  • DocketNotice and Acknowledgment of Receipt; Filed by Cappello Global, LLC (Cross-Complainant); Camden Financial Services (Cross-Complainant)

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  • 07/02/2021
  • DocketNotice and Acknowledgment of Receipt; Filed by Cappello Global, LLC (Cross-Complainant); Camden Financial Services (Cross-Complainant)

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  • 07/02/2021
  • DocketNotice and Acknowledgment of Receipt; Filed by Cappello Global, LLC (Cross-Complainant); Camden Financial Services (Cross-Complainant)

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  • 06/24/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by ALEX CAPPELLO (Cross-Defendant)

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  • 06/16/2021
  • DocketAmendment to Cross-Complaint (Fictitious/Incorrect Name); Filed by Cappello Global, LLC (Cross-Complainant)

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62 More Docket Entries
  • 06/04/2020
  • DocketCross-Complaint; Filed by Cappello Global, LLC (Defendant); Camden Financial Services (Defendant)

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  • 06/04/2020
  • DocketCivil Case Cover Sheet; Filed by Cappello Global, LLC (Defendant); Camden Financial Services (Defendant)

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  • 05/13/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/13/2020
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 05/13/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/13/2020
  • DocketProof of Personal Service; Filed by Phenomenon Marketing and Entertainment, LLC (Plaintiff)

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  • 04/29/2020
  • DocketComplaint; Filed by Phenomenon Marketing and Entertainment, LLC (Plaintiff)

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  • 04/29/2020
  • DocketCivil Case Cover Sheet; Filed by Phenomenon Marketing and Entertainment, LLC (Plaintiff)

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  • 04/29/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 04/29/2020
  • DocketSummons (on Complaint); Filed by Phenomenon Marketing and Entertainment, LLC (Plaintiff)

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Tentative Rulings

Case Number: 20STCV16415    Hearing Date: January 19, 2021    Dept: 61

Defendant Camden Financial Services’s Motion to Strike Portions of the First Amended Complaint is GRANTED as to Paragraph ¶ 16:9-10, 14-15, which allege that the written amendment terminated the agreement and merely extended the minimum success fee term, when in fact the amendment specifically disclaims such termination. The motion is otherwise DENIED.

Defendant to provide notice.

  1. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Camden argues that several portions of the FAC misstate the terms of the applicable contracts, which the FAC attaches as exhibits. Camden argues that although the FAC characterizes the August 2017 amendment to the original agreement as a termination, following which Defendants’ entitlement to a minimum success fee continued only 12 months, the actual amendment attached as exhibit 2 to the FAC states that the agreement itself continues for a minimum of 12 months from execution, not that Camden is entitled to minimum success fees for only that term. (Motion at p. 5.)

Thus Camden moves to strike all allegations that characterize the August 2017 agreement as a termination of the prior agreement. (Motion at pp. 7–10.) Camden also moves to strike the allegation that Defendants claimed a right to minimum success fees “in perpetuity” as misrepresenting their demands. (Motion at pp. 10–11.)

Plaintiff in response argues that the parties reached a prior agreement to terminate the relationship, and that Camden “fraudulently induced Plaintiff into believing that the Amendment would terminate the service Agreement.” (Opposition at p. 3.) Plaintiff also argues that the amendment contains no integration clause[1] and that Plaintiff’s own understanding that it effected a termination of the agreement, along with the parties’ subsequent communications on that point, may be admissible to prove Plaintiff’s interpretation. (Opposition at p. 2.)

Plaintiff may retain allegations that Defendants fraudulently represented to Plaintiff that the amendment effected a termination, but may not maintain allegations as to the character of the amendment that they signed that facially contradict its terms. This is because language contradicting the terms of an agreement may be admitted to show “that the purported instrument has no legal effect.” (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1175.) “[I]t was never intended that the parol evidence rule should be used as a shield to prevent the proof of fraud.” (Id. at p. 1182.) Conversely, Plaintiff may not attempt to submit evidence interpretive of a written agreement to contradict the express terms of a written agreement. “If a contract is partly written and partly oral, parol evidence is necessarily admissible to establish the parts of it that are oral; but even in such a case, parol evidence is not admissible to contradict the plain terms of that part of the contract that is set forth in the writing.” (Buffalo Arms, Inc. v. Remler Co. (1960) 179 Cal.App.2d 700, 709.)

Thus the motion to strike is GRANTED without leave to amend as to FAC ¶ 16:9-10, 14-15, which allege that the written amendment terminated the agreement and merely extended the minimum success fee term, when in fact the amendment specifically disclaims termination and states that it is rendered void and unenforceable if Plaintiff terminates the agreement. (FAC Exh. 2.)

Camden also moves to strike allegations concerning its purported position in which it claimed a right to seek fees in “perpetuity.” (Motion at pp. 10–11.) But whether Camden took this position following execution of the relevant agreements is not a matter contradicted by the pleadings or any exhibit, and is not subject to judicial notice. Accordingly, the motion to strike is DENIED as to allegations concerning Camden’s purported position.

Finally, Camden moves to strike the prayer for “treble restitution” under California’s Unfair Business Practices statute and for punitive damages generally. (Motion at pp. 11–13.) Plaintiff does not contest the inapplicability of the “treble restitution” claim, and the motion is GRANTED without leave to amend as to that claim.

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

Here, Camden seeks to strike the prayer for punitive damages, without taking specific issue with the sufficiency of Plaintiff’s cause of action for fraud. (Motion at pp. 12–13.) Because fraud is a sufficient basis to claim an award of punitive damages, the motion is DENIED.


[1] Plaintiff also argues, incorrectly, that the original agreement contained no integration clause, when in fact such a clause is the final term in the original agreement. (FAC Exh. 1.)