This case was last updated from Los Angeles County Superior Courts on 01/31/2021 at 22:56:00 (UTC).

WILLIAM S NYE VS WALT DISNEY COMPANY ET AL

Case Summary

On 08/24/2017 WILLIAM S NYE filed a Contract - Other Contract lawsuit against WALT DISNEY COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RUPERT A. BYRDSONG, KEVIN C. BRAZILE and DAVID J. COWAN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3736

  • Filing Date:

    08/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RUPERT A. BYRDSONG

KEVIN C. BRAZILE

DAVID J. COWAN

 

Party Details

Plaintiffs and Appellants

ABLESOFT INC. FKA RABBIT EARS PRODUCTIONS INC. A PENNSYLVANIA CORPORATION

GOTTLIEB ERREN

Respondent and Defendant

THE WALT DISNEY COMPANY

Not Classified By Court

GROSSMAN JOEL M.

18 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

HAMRICK A. RAYMOND III

Defendant Attorney

ELLIOTT CHRISTOPHER A.

 

Court Documents

Reply - REPLY OF BUENA VISTA TELEVISION IN SUPPORT OF MOTION TO (1) COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (2) COMPEL COMPLIANCE WITH DOCUMENTS REQUESTS AND COURT ORDERS; AND (3) IMPOSE

6/7/2019: Reply - REPLY OF BUENA VISTA TELEVISION IN SUPPORT OF MOTION TO (1) COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (2) COMPEL COMPLIANCE WITH DOCUMENTS REQUESTS AND COURT ORDERS; AND (3) IMPOSE

Commission to Take Deposition Outside California

6/10/2019: Commission to Take Deposition Outside California

Commission to Take Deposition Outside California

6/10/2019: Commission to Take Deposition Outside California

Commission to Take Deposition Outside California

6/10/2019: Commission to Take Deposition Outside California

Commission to Take Deposition Outside California

6/10/2019: Commission to Take Deposition Outside California

Commission to Take Deposition Outside California

6/11/2019: Commission to Take Deposition Outside California

Other - - REFEREE'S RECOMMENDED RULINGS ON NYE'S AND DISNEY'S DISCOVERY MOTION'S

6/28/2019: Other - - REFEREE'S RECOMMENDED RULINGS ON NYE'S AND DISNEY'S DISCOVERY MOTION'S

Commission to Take Deposition Outside California

7/2/2019: Commission to Take Deposition Outside California

Commission to Take Deposition Outside California

7/2/2019: Commission to Take Deposition Outside California

Notice - NOTICE JOINT REPORT REGARDING CASE MEDIATION STATUS

7/3/2019: Notice - NOTICE JOINT REPORT REGARDING CASE MEDIATION STATUS

Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (NON-APPEARANCE CASE REVIEW OF PLAINTIFF'S STATUS REPORT REGAR...) OF 07/05/2019

7/5/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (NON-APPEARANCE CASE REVIEW OF PLAINTIFF'S STATUS REPORT REGAR...) OF 07/05/2019

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW OF PLAINTIFF'S STATUS REPORT REGAR...)

7/5/2019: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW OF PLAINTIFF'S STATUS REPORT REGAR...)

Objection - OBJECTION PLAINTIFFS OBJECTIONS TO THE REFEREES - RECOMMENDED RULINGS ON NYES AND DISNEYS DISCOVERY MOTIONS AND REQUEST FOR HEARING RE THE SAME

7/8/2019: Objection - OBJECTION PLAINTIFFS OBJECTIONS TO THE REFEREES - RECOMMENDED RULINGS ON NYES AND DISNEYS DISCOVERY MOTIONS AND REQUEST FOR HEARING RE THE SAME

Declaration - DECLARATION DECLARATION OF A. RAYMOND HAMRICK, III IN SUPPORT OF PLAINTIFFS OBJECTIONS TO REFEREES- RECOMMENDED RULINGS ON NYES AND DISNEYS DISCOVERY MOTIONS AND REQUEST FOR HEARING

7/8/2019: Declaration - DECLARATION DECLARATION OF A. RAYMOND HAMRICK, III IN SUPPORT OF PLAINTIFFS OBJECTIONS TO REFEREES- RECOMMENDED RULINGS ON NYES AND DISNEYS DISCOVERY MOTIONS AND REQUEST FOR HEARING

Notice of Ruling

7/10/2019: Notice of Ruling

Ex Parte Application - EX PARTE APPLICATION PLAINTIFFS' EX PARTE APPLICATION TO CONTINUE THE HEARING ON DEFENDANTS' MOTIONS FOR SUMMARY ADJUDICATION AND TO CONTINUE THE TRIAL DATE

7/18/2019: Ex Parte Application - EX PARTE APPLICATION PLAINTIFFS' EX PARTE APPLICATION TO CONTINUE THE HEARING ON DEFENDANTS' MOTIONS FOR SUMMARY ADJUDICATION AND TO CONTINUE THE TRIAL DATE

Declaration - DECLARATION DECLARATION OF A. RAYMOND HAMRICK, III IN SUPPORT OF PLAINTIFFS' EX PARTE APPLICATION TO CONTINUE THE HEARING ON DEFENDANTS' MOTIONS FOR SUMMARY ADJUDICATION AND TO CONTINUE

7/18/2019: Declaration - DECLARATION DECLARATION OF A. RAYMOND HAMRICK, III IN SUPPORT OF PLAINTIFFS' EX PARTE APPLICATION TO CONTINUE THE HEARING ON DEFENDANTS' MOTIONS FOR SUMMARY ADJUDICATION AND TO CONTINUE

Opposition - OPPOSITION DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO CONTINUE THE HEARING ON DEFENDANTS MOTIONS FOR SUMMARY ADJUDICATION, THE TRIAL DATE AND ALL CORRESPONDING PRE-TRIA

7/19/2019: Opposition - OPPOSITION DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO CONTINUE THE HEARING ON DEFENDANTS MOTIONS FOR SUMMARY ADJUDICATION, THE TRIAL DATE AND ALL CORRESPONDING PRE-TRIA

440 More Documents Available

 

Docket Entries

  • 01/08/2021
  • Docketat 5:00 PM in Department 1, David J. Cowan, Presiding; Evidentiary Hearing 402 EC (Witness Testimony) - Held - Taken under Submission

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  • 01/08/2021
  • Docketat 4:00 PM in Department 1, David J. Cowan, Presiding; Non-Appearance Case Review (Re Receipt of Closing Briefs) - Held

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  • 01/08/2021
  • DocketCertificate of Mailing for ((Evidentiary Hearing 402 EC Witness Testimony) of 01/08/2021); Filed by Clerk

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  • 01/08/2021
  • DocketBrief (Defendant Buena Vista Television, LLC?s Post-Hearing Brief As To Evidence Code Section 402 Hearing Re: Contract Interpretation Issues); Filed by Buena Vista Television , LLC (Defendant)

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  • 01/08/2021
  • DocketMinute Order ( (Non-Appearance Case Review Re Receipt of Closing Briefs)); Filed by Clerk

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  • 01/08/2021
  • DocketMinute Order ( (Evidentiary Hearing 402 EC Witness Testimony)); Filed by Clerk

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  • 01/08/2021
  • DocketDeclaration (Declaration of A. Raymond Hamrick, III in Support of Plaintiffs' Closing Brief and Argument re the Evidence Code Section 402 Hearing and Contract Interpretation Issues Involving Conflicting Extrinsic Evidence); Filed by Ablesoft, Inc. (Plaintiff); Cascade Public Media (Plaintiff); Erren Gottlieb (Plaintiff) et al.

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  • 01/08/2021
  • DocketBrief (Plaintiffs' Closing Brief and Argument re the Evidence Code Section 402 Hearing and Contract Interpretation Issues Involving Conflicting Extrinsic Evidence); Filed by Ablesoft, Inc. (Plaintiff); Cascade Public Media (Plaintiff); Erren Gottlieb (Plaintiff) et al.

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  • 01/08/2021
  • DocketRequest for Judicial Notice; Filed by Ablesoft, Inc. (Plaintiff); Cascade Public Media (Plaintiff); Erren Gottlieb (Plaintiff) et al.

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  • 12/23/2020
  • DocketNotice of Ruling; Filed by Buena Vista Television , LLC (Defendant)

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641 More Docket Entries
  • 09/29/2017
  • Docketat 00:00 AM in Department 308; (Order-Complex Determination; Case Determined to be non-Complex) -

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  • 09/29/2017
  • DocketMinute order entered: 2017-09-29 00:00:00; Filed by Clerk

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  • 09/29/2017
  • DocketMinute Order

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  • 09/22/2017
  • DocketStipulation STIPULATION TO EXTEND TIME FOR ALL DEFENDANTS TO RESPOND TO COMPLAINT

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  • 09/15/2017
  • Docketat 09:00 AM in Department 309; (Recusal; Court makes order) -

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  • 09/15/2017
  • DocketMinute Order

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  • 09/15/2017
  • DocketMinute order entered: 2017-09-15 00:00:00; Filed by Clerk

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  • 08/24/2017
  • DocketSUMMONS

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  • 08/24/2017
  • DocketCOMPLAINT FOR DAMAGES FOR: 1. FRAUDULENT CONCEALMENT ;ETC

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  • 08/24/2017
  • DocketComplaint; Filed by William S. Nye (Plaintiff); James McKenna (Plaintiff); Erren Gottlieb (Plaintiff) et al.

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Tentative Rulings

Case Number: ****3736 Hearing Date: June 29, 2022 Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20


Hearing Date: June 29, 2022

Case Name: Nye v. The Walt Disney Company, et al.

Case No.: ****3736

Matter: OSC Re: Why Dismissal Should Not Be Entered

Notice: OK


Ruling: The OSC is discharged. Plaintiffs can withdraw their request for

dismissal or the Court will enter the dismissal with prejudice.

Defendant Buena Vista Television, LLC to give notice.

If counsel do not submit on the tentative, they are strongly

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.


The Fourth Amended Complaint alleges, “The present action arises from the Defendants' failure to account for and pay Plaintiffs their owed share of revenue participation from the sale, distribution and other exploitation of a children's television program, which Plaintiffs co -created, and in which Plaintiff Bill Nye starred in throughout much of the 1990s, entitled ‘Bill Nye the Science Guy.’ ” (Fourth Amended Complaint 1.)

On May 31, 2022, Plaintiffs William Nye, James McKenna, Erren Gottlieb, Ablesoft, Inc., and Cascade Public Media filed a request for dismissal, without prejudice, as follows:

1. Plaintiff William S. Nye, a/k/a Bill Nye, requests dismissal without prejudice of his First and Second Causes of Action based on participation statements issued after January 8, 2011; his Fourth, Sixth, Seventh, and Eighth Causes of Action based on participation statements issued after January 8, 2010; and his punitive damages claims on the foregoing causes of action.

2. Plaintiffs James McKenna and Erren Gottlieb request dismissal without prejudice of their First and Second Causes of Action based on participation statements issued after April 2, 2015; their Fourth, Sixth, Seventh, and Eighth Causes of Action based on participation statements issued after April 2, 2014; and their punitive damages claims on the foregoing causes of action.

3. Plaintiff Cascade Public Media d/b/a KCTS-TV, a Washington public benefit corporation, requests dismissal without prejudice of its First, Second, Fourth, Sixth, Seventh, and Eighth Causes of Action based on participation statements issued after March 31, 2016; and its punitive damages claims on the foregoing causes of action.

4. Plaintiff AbleSoft, Inc., f/k/a Rabbit Ears Productions, Inc., a Pennsylvania corporation, requests dismissal without prejudice of its entire complaint.

On June 3, 2022, Defendant Buena Vista Television, LLC filed an objection to Plaintiffs’ request for dismissal. Defendant contends that a dismissal without prejudice is impermissible because under Code Civ. Proc. 581 “trial” has already “commenced” to the extent the Court held a 4-day 402 hearing in which it determined a key contractual interpretation issue against the Plaintiffs.

Plaintiffs argue that they have an absolute right as to dismissal; Defendant has no right to object; and a 402 hearing is not the commencement of trial as the Court never entered a dispositive ruling as to Plaintiffs' claims—rather, the Court merely entered a ruling as to extrinsic evidence.

Code Civ. Proc. 581(c) states, “A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.

Code Civ. Proc. 581(a)(6) states, “A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.”

A dismissal without prejudice under Code Civ. Proc. 581 has been precluded “in two types of cases: those in which allowing a dismissal would frustrate a statutory scheme, and those in which courts interpret ‘trial’ so broadly as to include certain proceedings at the stages of pleading or discovery. . . In the second type of case, courts have defined the term ‘trial’ in section 581 so broadly as to encompass certain pretrial proceedings that were dispositive of a case. . . . The thread running through all these cases seems to be one of fairness: Once the parties commence putting forth the facts of their case before some sort of fact finder, such as an arbitrator, or at the pretrial stage a ruling is made on an issue of law or on admitted facts which effectively disposes of the plaintiff's case against him, it is unfair—and perhaps a mockery of the system—to allow the plaintiff to dismiss his complaint and refile. While our system is adversary and grounded on vigorous disputation, it is also dedicated to justice and grounded on the fundamental fairness of its proceedings.” (Gray v. Superior Ct. (1997) 52 Cal.App.4th 165, 172–73.)

In December 2020, Judge Cowan held a 4-day 402 hearing to determine whether extrinsic evidence should come into trial on a contractual interpretation issue. The Court described the issue as follows: “The parties' dispute here concerns principally what is included within ‘gross receipts,’ as defined in the March 31, 1993 Agreement (‘the Agreement’) resulting from exploitation by BVT of the series Bill Nye The Science Guy (‘the Series’). On the one hand, Nye contends that the income derived from a ‘Video Device’ - one of the ways in which ‘Gross Receipts’ are calculated - does not include sales from streaming revenues arising from subscription video on demand (‘SVOD’) (principally, income from Netflix) or electronic sell through (‘EST’) (such as iTunes - allowing for downloading of specific programming) as those are not ‘similar to a video cassette or video disc.’ On the other hand, BVT contends that SVOD and EST revenues are ‘similar’ to a video cassette or video disc. The SVOD / EST revenues did not exist in 1993 because there was no such streaming technology at that time.” The Court clarified that “The foregoing issue is of significance because under the Agreement if the SVOD/EST revenues arc a from a ‘Video Device’ then this would allow BVT to have permissibly contributed 20% of that income towards Gross Receipts (after payment of an 80% royalty to its associate), as provided for under the Agreement (which is what BVT has been doing), whereas if they arc not video device income, then Nye contends BVT has been improperly accounting for these sums and that 100% of this income should have been applied to gross receipts.”

After considering “the testimony of the witnesses, the Opening Statements and Closing Arguments, [and] the briefing prior to the hearing”, the Court, in a 26-page ruling, concluded it would “now exclude[] from introduction at trial under Evid. Code sec. 402 the proffered extrinsic evidence it provisionally received during this hearing. After consideration of the extrinsic evidence, the Court finds the Agreement is not reasonably susceptible to Nye's reading of SVOD and EST as not falling within the definition of ‘video device.’ ” The Court ultimately concluded, “whether EST/ SVOD are a video device is not an issue that is required to be heard by a jury. The Court interprets the Agreement as including EST/ SVOD within the definition of ‘video device.’ As a result, the trial of the accounting cause of action the Court previously bifurcated (as to which this Evid. Code sec. 402 hearing was held beforehand) can now proceed based on the Court's determination of these preliminary facts and ensuing interpretation of the Agreement.” (February 2, 2021, Ruling.) That is, the Court ruled against Plaintiffs on the disputed interpretation issue.

The parties principally dispute whether the subject 402 hearing constitutes the commencement of trial. There is no case directly on-point, as the parties acknowledge.

The Court believes Defendant is correct. The 402 hearing included an opening statement, witnesses, and briefing. The 402 hearing resulted in a ruling against Plaintiffs on a contractual interpretation issue that essentially made a final ruling on Plaintiffs’ claims—to the extent based on that issue—inevitable. As Defendant puts it, “the Court’s Ruling effectively disposes of Plaintiffs’ breach of contract, breach of the implied covenant, fraud and concealment, accounting, and monies had and received claims to the extent the claims raise allegations of improper treatment of SVOD/EST revenue. Plaintiffs cannot prevail on those claims because the Court has already ruled that BVT’s treatment of that revenue was proper.” For Plaintiffs to simply dismiss their claims and have an opportunity to re-litigate the issue would be unfair and make a mockery out of the judicial system.

Code Civ. Proc. 581(e) states, “After the actual commencement of trial, the court shall dismiss the complaint, or any causes of action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless all affected parties to the trial consent to dismissal without prejudice or by order of the court dismissing the same without prejudice on a showing of good cause.”

Given that the Court has concluded that trial has commenced, Plaintiffs can withdraw their request for dismissal or the Court will enter the dismissal with prejudice.

The OSC is discharged.

Defendant Buena Vista Television, LLC to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.



Case Number: ****3736 Hearing Date: May 16, 2022 Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: Monday, May 16, 2022

Case Name: Nye, et al. v. The Walt Disney Company, et al.

Case No.: ****3736

Motion: Motion for an Order that Accounting Cause of Action be Bifurcated and Tried to the Court

Moving Party Defendants The Walt Disney Company (“TWDC”) and Buena Vista Television, LLC (“BVT”) (collectively, “Movants”)

Responding Party: Plaintiffs Willian S. Nye (“Nye”), James McKenna (“McKenna”), Erren Gottlieb (“Gottlieb”), Ablesoft, Inc. (“Ablesoft”), and Cascade Public Media d/b/a KCTS-TV (“Cascade”) (collectively, “Plaintiffs”)

Notice: OK

Ruling: The Motion for an Order that Accounting Cause of Action be Bifurcated and Tried to the Court is GRANTED.

Movants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

BACKGROUND

The operative Fourth Amended Complaint (“4AC”) asserts causes of action for: (1) fraudulent concealment; (2) fraudulent misrepresentation; (3) fraudulent inducement/false promise; (4) breach of contract; (5) breach of fiduciary duty; (6) accounting; (7) breach of the covenant of good faith and fair dealing; and (8) monies had and received.

On December 4, 2019, the Court granted Movants’ joint motion for summary adjudication, disposing of Plaintiffs’ breach of fiduciary duty and fraud causes of action as well as Plaintiffs’ punitive damages claim. In connection with these motions, the Court also narrowed the time frame at issue to the period from January 1, 2009 to the present.

Following the ruling on the motions for summary adjudication, this case was reassigned to Hon. David Cowan.

On February 25, 2020, the Court scheduled an Order to Show Cause Re: why the Court should not bifurcate the trial regarding accounting. Following oral argument on this matter, on July 7, 2020, the Court scheduled to conduct a hearing pursuant to Evidence Code 402 to determine if there were any contract interpretation issues involving conflicts of extrinsic evidence that require resolution by a jury, and in anticipation of the results from the Evidence Code 402 Hearing, the Court also schedule the first phase of trial regarding accounting for October 5, 2021. On February 2, 2021, the Court entered its ruling on the Evidence Code 402 Hearing, and ultimately determined that the first phase of trial as to the accounting claim may proceed by bench trial.

Following this order, this matter was reassigned to the undersigned Judge presiding.

On April 12, 2021, a trial setting conference was held, and during which, Plaintiffs indicated that there were remaining issues of contract interpretation that required determination by jury. Consequently, the Court scheduled a jury trial for October 17, 2022 as a precaution and suggested that the Movants could file a motion to enforce the Court’s prior ruling entered by Hon. David Cowan.

On April 22, 2022, Movants filed the instant motion for an order that the accounting cause of action be bifurcated and tried to the court in compliance with the Court’s prior ruling.

On May 3, 2022, Plaintiffs filed their opposition papers.

On May 9, 2022, Movants filed their reply papers.

DISCUSSION

Applicable Law

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby [. . .] make an order [. . .] that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case [. . .] The court, on its own motion, may make such an order at any time. [. . .]” (Code Civ. Proc. 598, portions omitted.)

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc. 1048(b).)

Application to Facts

Movants seek “an order compelling compliance with the Court’s prior ruling entered by Judge Cowan that Plaintiffs’ accounting cause of action be bifurcated and tried first to the Court in a bench trial proceeding, before trial of any of Plaintiffs’ other claims.” (Motion at pg. 6.)

Movants argue that the Court must enforce its prior rulings that trial in this matter will be bifurcated and that the first phase would consist of a bench trial on Plaintiffs’ accounting cause of action. (Motion at pg. 12.) These include the following orders: (1) “The Court orders that [a] bench trial on Plaintiffs’ accounting claim against BVT shall precede any jury trial on Plaintiffs’ remaining claims.” (RJN Exh. 9.); (2) “[T]he Court finds that whether EST/SVOD are a video device is not an issue that is required to be heard by a jury.” (RJN Exh. 13); and (3) “As a result, the trial of the accounting cause of action the Court previously bifurcated (as to which this Evid. Code sec. 402 hearing was held beforehand) can now proceed based on the Court’s determination of these preliminary facts and ensuing interpretation of the Agreement.” (RJN Exh. 13.) As indicated by Movants, Plaintiffs framed the issues surrounding the contract interpretations that would require a jury in the Rule 402 Hearing, and the Court ultimately ruled on those issues. (Motion at pg. 13; RJN Exhs. 10-12; Elliott Decl. Exh. C pp.52:23-54:19.) The Court determined that a jury would not be required to interpret the parties’ agreement. (RJN Exh. 13, pg. 26.)

In opposition, Plaintiffs argue that the Court has not addressed critical provisions of the parties’ agreement that are subject to conflicting extrinsic evidence. (Opposition at pg. 13-14.) Specifically, Plaintiffs contend that “the Court did not determine whether an ‘affiliate’ or non-affiliate of BVT ‘distributed’ the Series via SVOD or EST within the meaning of paragraph 10.5A of the Agreement.” (Opposition at pg. 14.) The affiliates/nonaffiliates referenced refer to Netflix and/or Apple iTunes. (Id.)

In reply, Movants point out that the Court previously ruled on the interpretation of paragraph 10.5A of the agreement. (Reply at pp. 7-10.) First, the Court determined that Netflix and Apple iTunes were licensees, not distributors, and that BVVOD distributed and manufactured the Series. (Reply at pp. 8-9; RJN Exh. 13, pg.21 fn.21.) Also, the Court held that there was no conflicting evidence surrounding the term “manufacturing.” (Reply at pg. 9; RJN Exh. 13 pp.24:16-25:7.) Furthermore, Movants reason that, because the Court determined that “SVOD/EST are Video Devices and that BVVOD is entitled to a royalty,” it follows that BVVOD manufactured and distributed those devices. (Reply at pg. 10.)

Upon review of the arguments before the Court and the prior ruling on the Rule 402 Hearing, the Court finds that the contract interpretation issues were properly resolved. Thus, there are no issues with regard to the parties’ agreement that need to be resolved by a jury. If Plaintiffs took issue with the Courts’ ruling, then they should have timely sought reconsideration of it. It is noted that Plaintiffs elected not to do so. “Generally, one trial court judge may not reconsider and overrule an interim ruling of another trial judge.” (In re Marriage of Oliverez (2015) 238 Cal. App. 4th 1242, 1248.)

Based on the foregoing, the Court grants Movants’ motion.

Request for Judicial Notice

The Court grants Movants’ request for judicial notice in its entirety. (Evid. Code 452(d).)

CONCLUSION

The Motion for an Order that Accounting Cause of Action be Bifurcated and Tried to the Court is GRANTED.

Movant to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.



Case Number: ****3736    Hearing Date: December 16, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Wednesday, December 16, 2020

Case Name: William S. Nye et al. v. The Walt Disney Company et al.

Case No.: ****3736

Motion: Motions in Limine Nos. 1-3; Motion to Compel Production

Moving Party: Plaintiffs William S. Nye, et al.

Responding Party: Defendant Buena Vista Television, LLC

Notice: OK


Ruling: The Motion to Compel is DENIED.


DISCUSSION

Motion to Compel

At the outset, the Court notes that discovery is closed under CCP sec. 2024.020. Section 2024.020(a) states that “[e]xcept as provided in this chapter, any party shall be entitled as a matter of right . . . to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” So when “a party properly notices a discovery motion to be heard on or before the discovery motion cutoff date, that party has a right to have the motion heard. By negative implication, a party who notices a discovery motion to be heard after the discovery motion cutoff date does not have a right to have the motion heard.” (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.) “But the fact that a party does not have a right to have a discovery motion heard after the discovery motion cutoff date does not mean the court has no power to hear it, or that the court errs in hearing it.” (Id.)

Under CCP sec. 2024.050(a), “the court may grant leave . . . to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” Section 2024.050(a) “specifies that such leave may be granted ‘[o]n motion of any party.’” (Id.) “Moreover, such a motion must be accompanied by a meet and confer declaration, and in exercising its discretion to grant or deny the motion [to reopen] the court must consider various factors, including (but not limited to) ‘[t]he necessity and the reasons for the discovery’ and ‘[t]he diligence or lack of diligence of the party seeking . . . the hearing of a discovery motion, and the reasons that . . . the discovery motion was not heard earlier.’” (Id. at 1587; CCP sec. 2024.050(b)) Critically, the Pelton court found it was an abuse of discretion for a trial court to rule on such a belated discovery motion without determining whether discovery should be reopened by considering the factors enumerated in Section 2024.050. (Id. at 1588 (“By simply hearing the motion to compel without first deciding whether discovery should be reopened . . . the trial court ‘transgresse[d] the confines of the applicable principles of law’ [cite] and thereby abused its discretion.”))

Significantly, Plaintiffs’ Motion makes no showing under CCP sec. 2024.050 in support of reopening discovery during trial. Plaintiffs do not attempt to show they were diligent in seeking to obtain the unredacted Netflix agreement. In fact, Plaintiffs characterize BVT’s arguments as to their delay in seeking the unredacted agreement as “meritless procedural arguments (i.e., that Plaintiffs purportedly delayed),” arguing that “any such purported delay does not defeat the fact that the proper rule is to ‘liberally’ allow discovery and there is ample good cause for the production of the Netflix Agreement.” (Motion, p. 4.)

This is legally erroneous; Pelton and CCP sec. 2024.010 et seq. require the Court to consider whether Plaintiffs acted diligently in bringing this motion after the discovery cutoff date. The argument that Plaintiffs unduly delayed, i.e. were not diligent, is therefore not a procedural technicality but a requisite to reopening discovery. The liberal rule in favor of discovery manifestly does not apply to motions filed after the discovery cutoff date, as Plaintiffs “do[] not have the right to have the motion heard.” Here, the discovery cutoff date was February 10, 2020, nearly ten months before Plaintiffs moved to compel. It is difficult to conclude Plaintiffs were diligent in filing this motion. Additionally, Plaintiffs’ Motion omits any note of the Discovery Referee’s ruling on Nye’s motion to compel production of the same Netflix Agreement.

Further factors to consider in reopening discovery include the “likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party” and “[t]he length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.” (CCP sec. 2024.050(b)(3)-(4).) Plaintiffs are seeking to reopen discovery in the middle of trial and, in the motions in limine, are specifically seeking to delay the trial to conduct depositions.

The Court was unconvinced by Plaintiffs’ argument that the standards for a motion to compel initial response apply here. BVT responded to Plaintiffs’ request for production by producing a redacted version of the Netflix Agreement. If Plaintiffs considered that response inadequate, they were obliged to move to compel a further response at that time.

In sum, the Motion has not shown good cause to reopen discovery during trial ten months after the discovery cutoff to order BVT to reproduce an unredacted version of an agreement it produced nearly two years ago. Simply put, Plaintiffs were not diligent in bringing this motion; further, the requested relief here and in the motions in limine risks substantially delaying trial. Necessity alone is not a basis under CCP sec. 2024.050 to reopen discovery now where Plaintiffs had ample opportunity to seek this discovery before the cutoff date and, at a minimum, before trial actually began. Additionally, the Court was not persuaded that there are sufficient grounds to deviate from the Discovery Referee’s conclusion that the redacted portions of the Netflix Agreement are not relevant here, which conclusion the Court adopted in adopting the Referee’s recommendations relating to Nye’s Motion to Compel Production of the same.

The Motion is DENIED as untimely after the close of discovery. Sufficient grounds have not been shown for late consideration. (CCP sec. 2024.050.)

Motion in Limine No. 1—Christopher Stefanidis

Plaintiffs argue Stefanidis should be precluded from testifying because (1) BVT failed to identify Stefanidis in its witness list when the parties filed such lists in September 2020, and (2) BVT failed to designate Stefanidis as a non-retained expert witness in its expert witness disclosures. Plaintiffs seek an order either precluding Stefanidis from testifying or or continuing the evidentiary hearing to permit Plaintiffs to take his belated deposition.

In turn, BVT argues that Stefanidis’s testimony will not be expert testimony but lay testimony based on his personal knowledge and work experience. Specifically, BVT says he will not testify as to industry standards, but as to the specific practices employed in production of digital files of the Bill Nye show for distribution to Netflix/Apple/etc., which is a matter within his personal knowledge. It does not appear to the Court that Stefanidis’s testimony would constitute expert testimony such that disclosure would be required.

BVT also argues there was no error in amending the witness list to include Stefanidis and co. because the Court specifically requested supplemental witness lists on September 28, 2020 with regards to the specific matters at issue in the bench trial. BVT did so, and both the original and supplemental witness lists were served well after the close of discovery in February. Therefore, BVT argues Plaintiffs’ arguments relating to deprivation of discovery are erroneous. The Court agrees—BVT complied with the Court’s directions relating to witness lists after the close of discovery, and witness lists are generally subject to amendment after close of discovery.

Plaintiffs also argue some of Stefanidis’s proposed testimony lacks foundation in light of BVT’s redactions to the produced Netflix Agreement; however, these objections can likely be addressed on an individual basis at the hearing. Moreover, the Court has denied the Motion to Compel, so it is not necessary to reopen discovery and delay Stefanidis’s testimony for Plaintiffs to use the unredacted Netflix Agreement. Rather, individual foundation objects will suffice.

The Motion is therefore DENIED. There is no basis to bar Stefanidis’s testimony and no basis to reopen discovery for Plaintiffs to take Stefanidis’s belated deposition.

Motion in Limine No. 2—Michael Patterson

Plaintiffs argue Patterson should be precluded from testifying because (1) the proposed scope of his testimony is now broader than indicated in the Joint Status Report, (2) BVT failed to designate Patterson as a non-retained expert witness in its expert witness disclosures, and (3) the subject matter of Patterson’s proposed testimony is inconsistent with his failure to answer a question at his deposition regarding “manufacturing” of video devices. Plaintiffs seek an order either precluding Patterson from testifying or continuing the evidentiary hearing to permit a follow-up deposition.

In turn, BVT argues (1) that Plaintiffs already deposed Patterson and failed to question him on the topics for which BVT seeks his testimony, and (2) that Patterson’s testimony will not be expert testimony but lay testimony based on his personal knowledge and work experience. Further, BVT argues generally that the objections raised in the motion in limine can be addressed by way of objections to individual pieces of testimony at the hearing (e.g., lack of foundation arguments as to the underlying Netflix agreements). BVT strongly disagreed that Patterson’s testimony would be inconsistent with his deposition, noting the quoted deposition passage[1] pertained to physical manufacturing of video devices and had nothing to do with a grant of rights to BVVOD. BVT also argues Patterson could have gained knowledge of the grant of rights after his deposition, which may be an issue for cross-examination rather than a motion in limine. The Court agrees; the cited deposition portion does not indicate Patterson lacked knowledge as to the grant of rights to BVVOD, and even if it did, Plaintiffs do not cite any case justifying total exclusion of testimony rather than cross-examination on such matters.

Plaintiffs argue that Patterson’s testimony as to the meaning of contract terms is “clearly expert testimony,” yet Patterson was not disclosed as an expert witness. BVT notes Plaintiffs’ witness list indicates they will call Patterson to testify as to “the meaning and import of the contractual terms in dispute (i.e., “Video Device”),” and argues this is not distinguishable from its intent to call Patterson to testify as to the “meaning customarily ascribed to certain terms in the parties’ agreement.” BVT notes Plaintiffs did not disclose Patterson as an expert witness, and that Plaintiff intends to call other witnesses on the same subject. The Court does not find Patterson’s testimony is “clearly expert testimony,” such that disclosure would have been required, and further agrees that Plaintiffs cannot seek to bar BVT from producing the very same testimony it seeks to produce on procedural grounds with which they did not comply.

The Motion is therefore DENIED. There is no basis to bar Patterson’s testimony and no basis to reopen discovery for Plaintiffs to take a limited-purpose deposition where Plaintiffs already adequately deposed Patterson. Objections during testimony will suffice.

Motion in Limine No. 3—Jennifer Praw

Plaintiffs argue Praw should be precluded from testifying as to “the purported ‘costs associated with SVOD/EST revenue’ and/or ‘what would be involved in compiling those costs should the Court determine that SVOD/EST should be not be reported as a 20% royalty,’” which Plaintiffs contend are “new areas” of proposed testimony. Plaintiffs argue Praw lacks foundation for her testimony on these points because (1) BVT agreed in the Joint Final Status Report that it “did not compile and deduct the distribution costs associated with SVOD/EST revenue” and (2) BVT has produced no documents relating to those costs which would provide foundation for Praw’s testimony. Per the previous motions in limine, Plaintiffs seek to either preclude Praw from testifying on these points or continue the evidentiary hearing for a belated and limited purpose deposition.

BVT disputes Plaintiff’s characterization of Praw’s testimony. Specifically, BVT contends her testimony would be consistent with the Joint Final Status Report because BVT intends to have her testify that “BVT did not compile and deduct the distribution costs associated with SVOD/EST revenue, because it has reported SVOD/EST revenue as a 20% royalty.” This is compatible with the concession that BVT did not compile/deduct distribution costs; the Court does not perceive the conflict urged by Plaintiffs.

BVT further argues Plaintiffs’ concerns regarding foundation and personal knowledge would be capable of being resolved by timely objections to specific parts of Praw’s testimony. As with the above objections, the Court agrees—specific objections are sufficient to address any points of testimony which lack foundation, and a blanket restriction on testimony would be excessive absent some showing of misconduct warranting it. Moreover, to the extent Plaintiffs contend discovery should be reopened for a limited purpose deposition, this request comes too late (during trial) and Plaintiffs have not shown sufficient grounds to reopen discovery on these limited issues in view of the prejudice to the ongoing trial. Finally, and relatedly, BVT notes Praw was in fact deposed and Plaintiffs did not depose her on these points; it is unclear how BVT could be faulted for this.

The Motion is therefore DENIED. There is no basis to bar Shaw’s testimony and no basis to reopen discovery for Plaintiffs to take a limited-purpose deposition where Plaintiffs already adequately deposed Shaw. Objections during testimony will suffice.


[1] “Q [Plaintiffs’ counsel]: Okay. So I understand. So did BVT, under this agreement, grant any affiliated companies the right to manufacture Video Devices as to “Bill Nye The Science Guy,” to your knowledge?

A [Patterson]: I don’t really -- I don't know how to respond to that because BVT is the distributor, and BVT would -- you know, to sell it into home video, the videos have to be manufactured. I don’t know who did the actual manufacture, if that’s your question.

Q: That’s my question.

A: I don’t know. You mean the actual physical manufacturing?

Q: Right. Right.

A: I don’t know.”



Case Number: ****3736    Hearing Date: February 25, 2020    Dept: 20

NOTE: TWO TENTATIVES POSTED BELOW.Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Tuesday, February 25, 2020

Case Name: William S. Nye, et al. v. The Walt Disney Company, et al.

Case No.: ****3736

Motion: To Strike and/or Quash Doe Amendments

Moving Party: One motion by Defendant The Walt Disney Company and one consolidated motion by Defendants Touchstone Television Productions, LLC & Walt Disney Pictures

Responding Party: Plaintiffs William S. Nye, James KcKenna, Erren Gottlieb, Ablesoft, Inc., and Cascade Public Media

Notice: OK


Ruling: Both of Defendants’ Motions to Strike and/or Quash Doe Amendments are GRANTED.

Plaintiffs are not thereby precluded from seeking leave to amend under CCP ;; 472-473.

Moving party to give notice.


BACKGROUND

On August 23, 2017, Plaintiff William S. Nye sued Defendants The Walt Disney Company (“TWDC”), Touchstone Television Productions, LLC (“Touchstone”), Buena Vista Television, LLC (“BVT”), and other entities affiliated with TWDC, but not Walt Disney Pictures (“WDP”). Plaintiff had an agreement with BVT, which is an indirect subsidiary of TWDC, to distribute Plaintiff’s series “Bill Nye the Science Guy.” Touchstone and WDP are also indirect subsidiaries of TWDC, though their connection to BVT is not entirely clear. The Court sustained demurrers as to this complaint with leave to amend.

On December 28, 2017, Plaintiff filed his First Amended Complaint. The parties then stipulated that Plaintiff would file a Second Amended Complaint with James McKenna, Erren Gottlieb, Cascade Public Media, and Ablesoft, Inc. joining as plaintiffs (together “Plaintiffs”). The stipulation also provided for dismissal of all defendants other than TWDC and BVT, and for dismissal of claims against TWDC other than Plaintiff’s fraudulent inducement claim.

On April 2, 2018, Plaintiffs filed their Second Amended Complaint, stating causes of action for fraudulent misrepresentation and fraudulent inducement against BVT “and Does 1-50.” On May 16, 2018, the Court sustained a demurrer with leave to amend as to this complaint.

On May 25, 2018, Plaintiffs filed a Third Amended Complaint. The Court again sustained demurrers as to this Complaint because Plaintiffs’ claims were facially barred by a joint venture disclaimer in an agreement between Plaintiffs and BVT.

On September 7, 2018, Plaintiffs filed a Fourth Amended Complaint, which still stated claims against BVT and “Does 1-50” but now alleged that the joint venture disclaimer was unenforceable and unconscionable. Plaintiffs’ third cause of action is stated against BVT, TWDC, and Does 1-50; this is the only claim stated against TWDC therein. All other claims are stated against BVT and Does. The Fourth Amended Complaint is the operative complaint.

On May 24, 2019, TWDC and BVT filed a joint motion for summary adjudication and BVT filed a separate motion for summary adjudication.

On November 14, 2019, Plaintiffs filed a Doe amendment under CCP ; 474 substituting in TWDC, Touchstone, and WDP as defendants on Plaintiffs’ second and fourth causes of action. At this time, TWDC was a currently-named Defendant, Touchstone had been previously named but dismissed, and WDP had not previously been named as a party to the action.

On December 4, 2019, the Court granted Defendants’ joint motion for summary adjudication, disposing of Plaintiffs’ sole cause of action against TWDC. TWDC was unable to move for judgment after this Order because of Plaintiffs’ Doe amendment adding TWDC as a named party to other causes of action. As a result, TWDC is still an active defendant.

On December 17, 2019, TWDC’s counsel reached out to Plaintiffs’ counsel requesting to meet and confer regarding Plaintiffs’ Doe amendment and anticipated motions to strike/quash. Plaintiffs’ counsel indicated they were currently in trial and agreed to a 15-day extension of TWDC’s time to respond.

On December 24, 2019, Plaintiffs’ counsel indicated they were still in trial and unable to meet and confer. Plaintiffs agreed to stipulate to a further 17-day extension of time to respond to the Doe amendment. Plaintiffs requested a stipulation and proposed order for the extension—presumably to comply with CRC Rule 3.110(d).

On December 30, 2019, TWDC’s counsel responded that the extension was generally agreeable, but needed to be extended one day due to Martin Luther King Day. That same day, Plaintiffs’ counsel responded and agreed to this condition.

On January 16, 2020, TWDC’s counsel contacted Plaintiffs’ counsel again to determine whether it was possible to meet and confer before January 21, 2020.

On January 20, 2020, Plaintiffs’ counsel sent a letter stating Plaintiffs’ position that TWDC had waived its right to file a motion to strike and/or quash by failing to seek leave of court for a further extension of time to file a motion, as required by CRC Rule 3.110(d). The letter also indicated that Plaintiffs would seek leave to amend if the motions to quash were granted, but that Plaintiffs believed those anticipated motions lacked merit.

On January 21, 2020, Defendant TWDC and Defendants Touchstone and WDP separately filed Motions to Quash and/or Strike the Doe amendment.

On February 10, 2020, Plaintiffs filed a Consolidated Opposition to both Motions.

On February 18, 2020, Defendants filed a Consolidated Reply to the Opposition.

DISCUSSION

As a preliminary matter, the Court GRANTS Defendants’ identical requests for judicial notice of various court filings and orders under Evid. Code ; 452(d).

Applicable Law

CCP ; 474 is construed liberally to permit amendments. (Streicher v. Tommy's Elec. Co. (1985) 164 Cal.App.3d 876, 882) Substitution of a defendant by Doe amendment is proper when, at the time of filing the complaint, the plaintiff lacked knowledge of facts giving rise to a cause of action against a defendant—even if he already knew the defendant's identity. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942 ("A plaintiff can avail him or herself of section 474 if the plaintiff is ignorant of facts that give rise to a cause of action against a person who is otherwise known to the plaintiff”)) CCP ; 474 does not impose on plaintiffs any obligation to seek facts incriminating Doe defendants. (Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 563-564 (474 requires only that the plaintiff is in fact ignorant of incriminating facts "[w]hether . . . from misfortune or negligence")) However, it is proper to grant a motion to strike an amended complaint when the amendment is facially contrary to established procedures and there is no showing of new facts. (Loser v. E.R. Bacon Co. (1962) 201 Cal.App.2d 387, 389 (“A court may, by virtue of its inherent power to prevent abuse of its processes, strike an amended complaint which is filed in disregard of established procedural processes"))

TWDC—Waiver and CCP ;; 472-473

Under CCP ;; 472(a) and 473, Plaintiffs were required to seek leave before substituting TWDC as a named defendant under CCP 474. (Delaney v. Superior Fast Freight (1993) 14 Cal.App.4th 590, 594) TWDC is a currently named Defendant on other causes of action and has already filed its Answer. TWDC was previously dismissed from Plaintiffs’ fraud claims—but, as it is still named on Plaintiffs’ other claims, has never been dismissed from the case. Plaintiffs have cited no authority permitting use of a Doe amendment to restate claims against currently named defendants, even when new facts are discovered. The “fictitious name” is not intended to allow plaintiffs to expand the alleged liability of currently named defendants without leave to amend. Indeed, allowing such use would seriously undermine CCP ; 473(a)(1), which authorizes parties to seek leave to amend their pleadings, as it applies to plaintiffs. Instead of seeking leave, plaintiffs could simply name several Does and use Section 474 to ‘fill in’ complaints as desired, during or after discovery, without any court approval. Thus, the Court finds use of the “fictitious name” statute improper as applied to currently named defendants. This “disregard of established procedural processes” may be remedied on a motion to strike “by virtue of [the Court’s] inherent power to prevent abuse of its processes.” (Loser, supra, 201 Cal.App.2d at 389)

Moreover, Plaintiffs’ Opposition completely fails to address CCP ;; 472 and 473, and instead Plaintiffs argue Defendant TWDC’s Motion to Quash is untimely under CCP ;; 418.10(a) (motions to quash) and 435(b)(1) (motions to strike). CCP ; 435(b)(1) applies to motions to strike; but under CCP ; 436, the Court is generally entitled to disregard the timeliness of a motion to strike due its inherent authority “to consider striking improper matter from pleadings ‘at any time in its discretion.’” (CPF Agency Corp. v. R&S Towing (2005) 132 Cal.App.4th 1014, 1021) In light of Plaintiffs’ hypertechnical argument, which ignores the fact that they actually agreed to a further extension due to their own inability to meet and confer, the Court sees no reason to dismiss Defendants’ motion as untimely.

A motion to quash under CCP 418.10(a)(1) challenges the Court’s personal jurisdiction over a defendant. (See McClatchy v. Coblentz, Patch, Duffy & Bass (2016) 247 Cal.App.4th 368, 375) Here, in an extremely unusual case for a Doe amendment, TWDC is a currently named defendant and active participant in this case. There is no real dispute that the Court has personal jurisdiction over TWDC, which has repeatedly appeared in this case. Motions to quash are typically used to challenge Doe amendments, but there is no well-settled procedure for doing so. (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1063–1065) But a motion to quash for lack of personal jurisdiction is clearly a poor fit here—further showing why Plaintiffs should have sought leave to amend. It would be inequitable to hyper-technically apply time limits to prevent Doe defendants from challenging improper amendments when there is no procedure consistently well-suited to challenging those amendments. (Id.)

In reality, the gravamen of TWDC’s motion is the striking of Plaintiffs’ improper Doe amendment. “[T]he court [has] inherent authority to treat defendant's motion as a motion to strike, and to consider it on the merits even though the motion was filed after defendant had filed its responsive pleading.” (CPF Agency, supra, 132 Cal.App.4th at 1021) Thus, the Court may consider TWDC’s motion as a motion to strike, and the Court has inherent authority to reach the merits of an untimely motion to strike. (CCP ; 436)

Thus, Defendant TWDC’s Motion to Strike and/or Quash Doe Amendment is GRANTED.

WDP and Touchstone—New Facts and Prejudice under CCP ; 474

In order to invoke Section 474, the “plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant.” (Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464) “[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170) A Doe amendment cannot “be based on a later-drawn legal conclusion arising from the discovery of an additional fact when that fact does not add anything to the theory of liability apparent at the time of the original pleading.” (McClatchy, supra, 247 Cal.App.4th at 374)

Here, Plaintiffs have not clearly identified any new facts supporting their fraud theories. Instead, Plaintiffs simply gesture at their financial expert’s Declaration analyzing the Bible. Plaintiffs have previously made TWDC and Touchstone defendants for these fraud claims—allegedly for discovery purposes—and have failed to explain how their new facts give rise to liability where previously known facts did not. This is especially problematic where the gravamen of the dispute, fundamentally, is between Plaintiffs and BVT—not related parents and subsidiaries. Plaintiffs’ assertion that these new documents were “critical” to the fraud claims is insufficient and conclusory, as Plaintiffs have not explained which new facts were learned or how these facts now incriminate TWDC, Touchstone, or WDP. Indeed, Plaintiffs had an opportunity—in their Opposition—to show they were justified in using 474. Plaintiffs have shown only that they received new, arguably important discovery, but failed to specifically identify a single new fact giving rise to liability where previously known facts did not. Although Section 474 is liberally construed to permit amendments, it does not give plaintiffs free reign to prejudice previous and current defendants whenever they discover a new fact.

Touchstone and WDP would likely be prejudiced by the Doe amendment. Trial is less than three months away and has been continued twice already—the Doe amendment would likely require another continuance, since discovery is nearly completed at this point. The addition of Touchstone and WDP all but requires the Court to restart the discovery period so these new defendants can prepare themselves for trial. Otherwise, Touchstone and WDP would be prejudiced by their inability to conduct discovery, and would be unable to defend themselves through motion work under these tight time constraints. Plaintiffs argue Touchstone and WDP could not be prejudiced because they “are already in possession of all the relevant documents and records.” That is not Plaintiffs’ call to make at the close of discovery; the newly-added Defendants have the right to determine whether they have all relevant and necessary discovery for their own defenses, which would require extension of the discovery cutoff date. Moreover, though the Court indicated it would extend the cutoff date if necessary, such an extension may still prejudice current Defendants and this prejudice must be considered in determining whether leave to amend is proper once sought.

Plaintiffs correctly note that “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761) But Plaintiffs have not sought leave to amend their Complaint, which would be the proper procedure where there is no showing of new facts. By quashing a Doe amendment, “[t]he litigation has not been terminated; the court simply determined that [the plaintiff] has no cause of action against the [Defendant] as a Doe defendant.” (McClatchy, supra, 247 Cal.App.4th at 376 (emphasis added)) The plaintiff “is not precluded from amending the petition to join the [Defendant] as a named defendant in its own right and to include causes of action for which the statute of limitations has not run.” (Id.) However, a plaintiff’s “disregard of established procedural processes” may be remedied on a motion to strike the amendment “by virtue of [the Court’s] inherent power to prevent abuse of its processes.” (Loser, supra, 201 Cal.App.2d at 389) Here, Plaintiffs misused Section 474, and a motion to strike and/or quash is properly granted.

Plaintiffs also argue the Court’s discretion to deny leave to amend is “strictly limited” when delay in filing the amendment is caused by the defendants’ failure to produce documents. (Arthur L. Sachs, Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 320) Again, Plaintiffs have not requested leave to amend—which would have been the proper procedure here. Moreover, the Court’s granting of a motion to quash does not preclude Plaintiffs from seeking leave to amend. And regardless, the record reflects that Plaintiffs have been sanctioned by the discovery referee for discovery misconduct, not Defendants—there is no evidence Defendants unjustifiably delayed their production of documents. This argument is therefore rejected.

Plaintiffs have not established any new facts justifying Doe substitutions for Touchstone and WDP, and prejudice would likely result from failing to quash Plaintiffs’ improper amendment. Thus, Touchstone and WDP’s Motion to Strike and/or Quash Doe Amendment is GRANTED.

CONCLUSION

Both Motions to Strike and/or Quash Doe Amendments are GRANTED.

Plaintiffs are not thereby precluded from seeking leave to amend under CCP ;; 472-473.

Moving party to give notice.~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Tuesday, February 24, 2020

Case Name:     William S. Nye, et al. v. The Walt Disney Company, et al.

Case No.: ****3736

Motion: To Strike and/or Quash Doe Amendments

Moving Party: Plaintiff Ablesoft, Inc.

Responding Party: Defendants The Walt Disney Company and Buena Vista Television, LLC

Notice: OK


Ruling: Plaintiff Ablesoft’s Motion to Stay Proceedings Pending Appeal is DENIED.

Moving party to give notice.


BACKGROUND

On August 23, 2017, Plaintiff William S. Nye sued Defendants The Walt Disney Company (“TWDC”), Touchstone Television Productions, LLC (“Touchstone”), Buena Vista Television, LLC (“BVT”), and other entities affiliated with TWDC, but not Walt Disney Pictures (“WDP”). In 1993, Nye entered into an agreement with BVT, which is an indirect subsidiary of TWDC, to distribute Nye’s series “Bill Nye the Science Guy.” Touchstone and WDP are also indirect subsidiaries of TWDC, though their connection to BVT is not entirely clear. The Court sustained demurrers as to this complaint with leave to amend.

On December 28, 2017, Nye filed his First Amended Complaint. The parties then stipulated that Nye would file a Second Amended Complaint with James McKenna, Erren Gottlieb, Cascade Public Media, and Ablesoft, Inc. joining as plaintiffs (together “Plaintiffs”). The stipulation also provided for dismissal of all defendants other than TWDC and BVT, and for dismissal of claims against TWDC other than Nye’s fraudulent inducement claim.

On April 2, 2018, Plaintiffs filed their Second Amended Complaint, stating causes of action for fraudulent misrepresentation and fraudulent inducement against BVT “and Does 1-50.” On May 16, 2018, the Court sustained a demurrer with leave to amend as to this complaint.

On May 25, 2018, Plaintiffs filed a Third Amended Complaint. The Court again sustained demurrers as to this Complaint because Plaintiffs’ claims were facially barred by a joint venture disclaimer in an agreement between Plaintiffs and BVT.

On September 7, 2018, Plaintiffs filed a Fourth Amended Complaint, which still stated fraud claims against BVT and “Does 1-50” but now alleged facts to show the joint venture disclaimer was unenforceable and unconscionable. Plaintiffs’ third cause of action is stated against BVT, TWDC, and Does 1-50; this is the only claim stated against TWDC therein. The Fourth Amended Complaint is the operative complaint.

On May 24, 2019, TWDC and BVT filed a joint motion for summary adjudication and BVT filed a separate motion for summary adjudication.

On December 4, 2019, the Court granted Defendants’ joint motion for summary adjudication against all of Ablesoft’s causes of action on the grounds that Ablesoft “lacks competent evidence of its standing to sue” as the successor-in-interest to Rabbit Ears Productions, Inc. (“Rabbit Ears”), another party to the 1993 Nye-BVT Agreement. The Court also granted the motion as to Plaintiffs’ third and sole cause of action against TWDC.

On January 22, 2020, the Court entered judgment against Ablesoft pursuant to the order granting summary adjudication of all of Ablesoft’s claims.

On February 7, 2020, Ablesoft filed a notice of appeal from the judgment against it and the underlying order granting summary adjudication on standing grounds.

On February 13, 2020, Ablesoft filed an ex parte application to stay the action pending appeal, arguing the remaining hearings were subject to an automatic stay pending appeal and that the Court should enter a discretionary stay as a matter of judicial efficiency.

On February 18, 2020, Defendants TWDC and BVT filed their Opposition.

On February 21, 2020, Ablesoft filed its Reply in support of a stay.

DISCUSSION

Automatic Stay

CCP ; 916(a) provides that, subject to certain exceptions not claimed to be relevant here, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 is the leading Supreme Court case on CCP ; 916. There, the Court stated that the purpose of an automatic stay pending appeal is to “prevent[] the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it,” or, in other words, to maintain the “status quo.” (Id. at 189) Thus, a trial court proceeding is “embraced” by the appeal when that proceeding “would have any effect on the ‘effectiveness’ of the appeal.” (Id.) A trial court proceeding affects the effectiveness of an appeal under three circumstances. First, when “the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable”; second, when the proceeding would “substantially interfere with the appellate court's ability to conduct the appeal”; and third, when the proceeding “directly or indirectly seek[s] to ‘enforce, vacate or modify [the] appealed judgment or order.’” (Id.)

Plaintiff Ablesoft devotes much of its Reply to arguing it is likely to succeed on appeal and arguing that a “piecemeal” trial would prejudice the litigants and waste resources. These arguments do not address the Varian standard, centered around “effectiveness of the appeal,” which requires analysis specific to the trial court proceedings sought to be stayed. Indeed, an automatic stay “does not suspend trial court proceedings on the remaining components of the litigation, for example, claims against other parties . . .not resolved by the judgment or order under appeal.” (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 580 fn. 11) At the time of the Tentative Ruling, three future proceedings are currently calendared. On March 9, 2020, a hearing is set on TWDC’s motion for sanctions in connection with its motion to quash and/or strike the Doe amendment. Next, is a final status conference set for May 6, 2020. Finally, trial is set to begin on May 18, 2020.

The effectiveness of Ablesoft’s appeal cannot be affected by any of these proceedings. TWDC’s motion for sanctions for abuse of CCP ; 474 has absolutely no legal or factual bearing on Ablesoft’s standing—which is the issue on appeal. The final status conference and the trial itself will not affect Ablesoft’s appeal either. Ablesoft contends judicial resources would be wasted by proceeding to trial without it, but this is not the standard under Varian. Ablesoft does not contend that a final judgment after trial would be “irreconcilable” with any appellate outcome on appeal or that this judgment would interfere in any way with the appellate proceedings. Indeed, a final judgment after trial would not dispose of—or even bear on—Ablesoft’s standing. Moreover, the Court does not see how any of these proceedings could constitute “enforce[ing], vacat[ing] or modify[ing]” the appealed summary judgment order.

Ablesoft argues that “inconsistent verdicts and judgments” could be rendered if it is forced to proceed to trial separately from the other plaintiffs. This is irrelevant under CCP ; 916(a), which considers only irreconcilable differences between the trial court’s acts and the appellate court’s acts—not inconsistent results rendered by the trial court. And as will be shown below, Ablesoft is unlikely to succeed on appeal, so the possibility of inconsistent judgments is merely theoretical where Ablesoft is unlikely to receive a trial on its causes of action due to its lack of standing.

Thus, Ablesoft has failed to show any of these future proceedings would be “embraced” by the appeal under Varian. There is no automatic stay of these calendared proceedings.

Discretionary Stay

Ablesoft also seeks a discretionary stay under CCP ; 128(a). A stay of an action is a matter within the sound discretion of the trial court. (Clark's Fork Reclamation Dist. No. 2069 v. Johns (1968) 259 Cal.App.2d 366, 370) Significantly, the Court is not required to grant a discretionary stay unless it is in the interests of justice, even though separate trial proceedings could waste judicial resources if the appellant succeeds. (Cooper v. Superior Court In & For Los Angeles Cty. (1961) 55 Cal. 2d 291, 301 (“the inherent power of a trial court to exercise a reasonable control over all proceedings connected with the litigation before it . . . ‘should be exercised by the courts in order to insure the orderly administration of justice’”))

Here, the Court does not consider Ablesoft likely to succeed on appeal. Ablesoft argues it is likely to succeed on appeal because it produced evidence “unequivocally establish[ing]” that Ablesoft possesses the “rights to receive the benefits of BVT’s obligation to pay Net Profits under the [1993] Agreement.” Specifically, Ablesoft produced an amendment to the 1993 agreement wherein BVT “expressly acknowledged and agreed that Microleague is the ‘successor and assignee to the interests of Rabbit Ears Productions, Inc.’” Ablesoft also claims to have produced evidence that “Microleague is the same entity as Ablesoft pursuant to a name change.”

Ablesoft’s evidence does not “unequivocally” establish standing. In ruling on BVT and TWDC’s motion for summary adjudication, the Court found the above evidence had been untimely submitted, but also found that the untimely evidence did not show a chain of interest sufficient to establish Ablesoft’s standing anyway. Specifically, the Court noted that Ablesoft had not shown how Rabbit Ears’ interests descended to Millenium Media, and from Milennium Media to Microleague. Moreover, the Court found Ablesoft’s CEO lacked personal knowledge of Ablesoft’s acquisition of Microleague’s rights. Ablesoft’s Motion and accompanying evidence do not fill in the blanks in the chain between Microleague and Rabbit Ears, and BVT’s agreement that Microleague is a successor does not automatically establish standing. Ablesoft thus fails to rebut the Court’s previous grounds for finding it lacked standing.

Given the unlikeliness that Ablesoft will succeed on appeal, any prejudice or waste of resources that may result from “piecemeal” trials is only hypothetical. The interests of justice do not require a stay of proceedings on matters unrelated to Ablesoft’s appeal. For the foregoing reasons, Ablesoft’s request for a discretionary stay under CCP ; 128 is DENIED.

CONCLUSION

Ablesoft’s Motion to Stay is DENIED.

Moving party to give notice.



Case Number: ****3736    Hearing Date: December 04, 2019    Dept: 20

TENTATIVE RULING

Judge Dalila C. Lyons

Department 20


Hearing Date: Wednesday, December 4, 2018

Case Name: Nye v. Walt Disney Company, et al.

Case No.: ****3736

Motion: Motion to Continue the Hearing on Defendants’ Motion for Summary Adjudication of AbleSoft’s Standing

Moving Party: Plaintiff AbleSoft, Inc. f/k/a Rabbit Ears Productions, Inc. (“AbleSoft”)

Responding Party: Defendants The Walt Disney Company and Buena Vista Television, LLC f/k/a Buena Vista Television, Inc. (“Defendants”)


Ruling: Plaintiff AbleSoft’s motion to continue the hearing on Defendants’ motion for summary adjudication as to AbleSoft’s standing, or in the alternative allow AbleSoft to conduct additional discovery, is DENIED.



Case Number: ****3736    Hearing Date: October 24, 2019    Dept: 20

TENTATIVE RULING

Judge Dalila C. Lyons

Department 20


Hearing Date: Thursday, October 24, 2018

Case Name: Nye v. Walt Disney Company, et al.

Case No.: ****3736

Motion: Motion for Summary Adjudication of Breach of Fiduciary Duty and Fraud Causes of Action, Punitive Damages and AbleSoft’s Standing

Moving Party: Defendants The Walt Disney Company and Buena Vista Television, LLC f/k/a Buena Vista Television, Inc. (“Defendants”)

Responding Party: Plaintiffs William S. Nye, James McKenna, Erren Gottlieb, AbleSoft, Inc. f/k/a Rabbit Ears Productions, Inc., and Cascade Public Media d/b/a KCTS-TV (“Plaintiffs”)


Ruling: Defendants’ motion for summary adjudication as to the Third, Fifth and Sixth Causes of Action is GRANTED.

Defendants’ motion for summary adjudication as to plaintiffs William S. Nye, James McKenna, Erren Gottlieb, and Cascade Public Media d/b/a KCTS-TV’s First and Second Causes of Action is DENIED.

Defendants’ motion for summary adjudication as to punitive damages claim is DENIED.

Defendants’ motion for summary adjudication as to of Plaintiff AbleSoft, Inc. f/k/a Rabbit Ears Productions, Inc.’s First, Second, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action is GRANTED.

Moving Party to give notice.

_______________________________________________________________________________________________________________

__________________NOTES: 

1. The basis for this tentative ruling will be provided to counsel at the hearing on this motion.

T 2.  The Court will not post a tentative ruling on the second motion for summary adjudication regarding incontestability/statues of limitations.

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2.  D D

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