This case was last updated from Los Angeles County Superior Courts on 06/01/2019 at 06:52:48 (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 CAROLYN B. KUHL, ANN I. JONES and DALILA CORRAL LYONS. 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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CAROLYN B. KUHL

ANN I. JONES

DALILA CORRAL LYONS

 

Party Details

Plaintiffs and Petitioners

NYE WILLIAM S.

BILL NYE

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

GOTTLIEB ERREN

Defendants and Respondents

WALT DISNEY COMPANY

DISNEY EDUCATIONAL PRODUCTIONS INC

THE DISNEY MOVIE CLUB

BUENA VISTA TELEVISION LLC

ABC TELEVISION INC

BUENA VISTA TELEVISIONS INC

TOUCHSTONE TELEVISION PRODUCTIONS INC

DISNEY EDUCATIONAL PRODUCTIONS INC.

DOES 1 THROUGH 100 INCLUSIVE

ABC TELEVISION INC.

TOUCHSTONE TELEVISION PRODUCTIONS INC.

BUENA VISTA HOME ENTERTAINMENT INC.

ABC NATIONAL TELEVISION SALES INC. A

TOUCHSTONE TELEVISION PRODUCTIONS LLC

THE WALT DISNEY COMPANY

Not Classified By Court

GROSSMAN JOEL M.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BARAB MARTIN J. ESQ.

HAMRICK A. RAYMOND III

Defendant and Respondent Attorneys

MITCHELL SILBERGBERG & KNUPP LLP

ELLIOTT CHRISTOPHER A.

 

Court Documents

JOINT STIPULATION AND ORDER RE RESPONSE TO FIRST AMENDED COMPLAINT

2/6/2018: JOINT STIPULATION AND ORDER RE RESPONSE TO FIRST AMENDED COMPLAINT

DEFENDANTS' NOTICE OF MOTION AND MOTION TO QUASH IMPROPERLY-SERVED SUBPOENAS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CHRISTOPHER A. ELLIOTT

3/27/2018: DEFENDANTS' NOTICE OF MOTION AND MOTION TO QUASH IMPROPERLY-SERVED SUBPOENAS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CHRISTOPHER A. ELLIOTT

NOTICE RE: CONTINUANCE OF HEARING

4/25/2018: NOTICE RE: CONTINUANCE OF HEARING

Minute Order

5/2/2018: Minute Order

Unknown

1/11/2019: Unknown

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

3/5/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Reply

3/12/2019: Reply

Minute Order

4/22/2019: Minute Order

Exhibit List

5/3/2019: Exhibit List

Declaration

5/24/2019: Declaration

Declaration

5/24/2019: Declaration

Declaration

5/24/2019: Declaration

Opposition

5/24/2019: Opposition

PLAINTIFF NYE'S OBJECTIONS TO DEFENDANTS' NOTICE OF RULING RE DEMURRERS TO COMPLAINT

12/19/2017: PLAINTIFF NYE'S OBJECTIONS TO DEFENDANTS' NOTICE OF RULING RE DEMURRERS TO COMPLAINT

DISCLOSURE

11/30/2017: DISCLOSURE

NOTICE OF RULING RE DEFENDANTS? DEMURRERS TO COMPLAINT

12/1/2017: NOTICE OF RULING RE DEFENDANTS? DEMURRERS TO COMPLAINT

DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPLAINT

11/21/2017: DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPLAINT

Proof of Service of Summons and Complaint

10/2/2017: Proof of Service of Summons and Complaint

160 More Documents Available

 

Docket Entries

  • 05/24/2019
  • Separate Statement; Filed by The Walt Disney Company (Defendant)

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  • 05/24/2019
  • Declaration (Evidence In Support of MSA, Vol. 3); Filed by The Walt Disney Company (Defendant)

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  • 05/24/2019
  • Request for Judicial Notice; Filed by The Walt Disney Company (Defendant)

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  • 05/24/2019
  • Motion for Summary Adjudication; Filed by The Walt Disney Company (Defendant)

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  • 05/24/2019
  • Declaration (Evidence ISO MSA Volume 4 of 4); Filed by The Walt Disney Company (Defendant)

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  • 05/24/2019
  • Separate Statement; Filed by The Walt Disney Company (Defendant)

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  • 05/24/2019
  • Declaration (Evidence ISO MSA Volume 2 of 4); Filed by The Walt Disney Company (Defendant)

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  • 05/24/2019
  • Declaration (Evidence ISO MSA Volume 1 of 4); Filed by The Walt Disney Company (Defendant)

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  • 05/24/2019
  • Declaration (Evidence ISO MSA Volume 3 of 4); Filed by The Walt Disney Company (Defendant)

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  • 05/24/2019
  • Motion for Summary Adjudication; Filed by The Walt Disney Company (Defendant)

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

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

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  • 09/29/2017
  • Minute Order

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

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

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

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  • 09/15/2017
  • Minute Order

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  • 08/24/2017
  • SUMMONS

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

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

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Tentative Rulings

Case Number: BC673736    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.: BC673736

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.: BC673736

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: BC673736    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.: BC673736

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: BC673736    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.: BC673736

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.

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__________________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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