Judge: Anne Richardson, Case: 21STCV44256, Date: 2024-08-22 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV44256    Hearing Date: August 22, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

This action involves contractual agreements (Agreements) in which Plaintiff Tianmu Investment Hong Kong Limited (Tianmu) agreed to invest $6,700,000 in films that Defendants Mark Canton (Canton), Courtney Solomon (Solomon), Cinelou Holdings LLC (Cinelou), Atmosphere Entertainment MM, Inc., (AMM) and Does 1 through 50 (collectively, Defendants) were producing (Compl. ¶17.) Tianmu alleges that the films were never produced (Compl. ¶33.) and that it has not been compensated under the terms of the Agreements. (Compl. ¶¶40, 48.)

On December 3, 2021, Tianmu filed a Complaint against the Defendants asserting the following causes of action: (1) Breach of Agreement (Robotech Agreement); (2) Breach of Agreement (DI Agreement); (3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Negligent Misrepresentation; (5) Fraud; (6) Violations of California Corporations Code §§ 25400, 25401, et seq.; and (7) Violation of California Corporations Code § 25504, et seq.

On July 3, 2024, Solomon and Cinelou moved for Summary Judgment, or in the Alternative, for Summary Adjudication, which Tianmu opposed. On July 2, Tianmu filed a Notice of Errata which included a signed version of Jun Fang’s Declaration. Tianmu’s counsel stated that he had accidentally previously submitted the unsigned version of  Fang’s Declaration, although he had the signed signature page in his possession at the time of filing. (Notice of Errata, at ¶ 2.) The Declaration was not modified otherwise. Solomon and Cinelou replied on July 5, 2024. The Court heard arguments on July 11, 2024.

On July 15, 2024, the Court granted in part and denied in part the motion. The Court granted Summary Adjudication to both Solomon and Cinelou as to the Breach of the Robotech Agreement. The Court granted Summary Adjudication to Solomon as to the Breach of the DI Agreement and Breach of the Implied Covenant of Good Faith and Fair Dealing. The Court denied Summary Adjudication to Cinelou as to the Breach of the DI Agreement and Breach of the Implied Covenant of Good Faith and Fair Dealing. Finally, the Court denied Summary Adjudication to both Solomon and Cinelou as to Negligent Misrepresentation, Fraud, and Violations of the California Corporations Code (Min. Order at p.9, July 15, 2024.)

Fifteen days later, on July 30, 2024, Solomon and Cinelou moved for reconsideration of the summary judgment ruling claiming that the Fang Declaration was not authentic. They also moved to strike Jun Fang’s Declaration in its entirety on the same grounds.

On August 8, 2024, Tianmu filed an opposition to the motion for reconsideration arguing that Tianmu’s counsel did not make any misrepresentations to the court regarding the signature page (Opp. to Mot. for Reconsideration at p.2.)

On August 14, Solomon and Cinelou replied arguing that the circumstances surrounding the signature on the Fang declaration were not disclosed to them or the Court until after the Motion for Summary Judgment hearing (Reply in Supp. of Mot. to Reconsider at p.6, lines 14-16).

Motion to Reconsider Motion for Summary Judgment Ruling

Timeliness of Motion

A motion for reconsideration must be made “…within 10 days after service upon the party of written notice of entry of the order…” (Code Civ. Proc., § 1008, subd. (a).)

Here, the Court granted summary adjudication on July 15, 2024. (Minute Order, Jul. 15, 2024.) The record reflects that the ruling was served on Mr. Rosenthal, counsel for Tianmu by electronic service, which would extend the time for filing a motion by at least two days (Code Civ. Proc. § 1010.6 subd. (a)(3)(B)) and there is no proof of service by Mr. Rosenthal as to how he served the ruling on the Defendants. Defendants contend they downloaded it from the website. (Mot. at p. 9.) Fifteen days after the ruling was issued, on July 30, 2024, Solomon and Cinelou filed a motion for reconsideration. As no one raised the issue of timeliness, the Court will assume that the motion is timely.

Standard of Review

A motion for reconsideration is used to ask the court to modify, amend, or revoke its earlier order on a prior motion to the court because of new or different facts, circumstances, or law. (Code Civ. Proc., § 1008, subd. (a).) Such an order may involve an interim or final order (see Code Civ. Proc., § 1008, subds. (e), (h)), where an interim order is an intermediate ruling of some kind that requires further proceedings before the suit can be resolved, and where a final order is an order that finally disposes of the suit (see People v. DeLouize (2004) 32 Cal.4th 1223, 1231 [differentiating between interim and final orders]).

A motion for reconsideration may be brought by a party or by the court on its own motion. (See Code Civ. Proc., § 1008, subds. (a), (c).) A party may move for reconsideration based on: (1) new or different facts, (Code Civ. Proc., § 1008, subd. (a); see e.g., In re Marriage of LaMoure (2013) 221 Cal.App.4th 1463, 1473 [reconsideration motion granted on new evidence]); (2) new or different circumstances, (Code Civ. Proc., § 1008, subd. (a)); and (3) new or different law, (Code Civ. Proc., § 1008, subd. (a); Baldwin v. Home Sav. of Am. (1997) 59 Cal.App.4th 1192, 1196.)

A party may not move for summary judgment “based on issues asserted in a prior motion for summary adjudication” that has been denied by the court unless newly-discovered facts or circumstances supporting these issues, or a change of law, are established to the satisfaction of the court. (See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092,1097 [new facts required even though earlier motion based on same facts denied “without prejudice”].)

In their motion, Solomon and Cinelou argue that they were not able to inspect the signature page of the Declaration until after the Motion for Summary Judgment hearing on July 15. (Mot. to Reconsider at p. 11.) They argue that during that inspection they noticed further discrepancies, namely that the signed signature page was part of a four-page declaration, the footer was different, and the handwritten date was missing. (Mot. to Reconsider at p.8.) They contend that Fang did not sign the Declaration submitted to the Court (Mot. to Reconsider at p.6.) They also argue that Tianmu’s counsel falsely represented that the signature page was in his possession before the filing (Mot. to Reconsider at p. 6.)

Here, Tianmu filed its Notice of Errata with the signed version of the Fang Declaration on July 2. During the July 11 Motion for Summary Judgment hearing, Solomon and Cinelou objected to the authenticity of the Declaration. (Reynolds Decl. ¶5.) In its Opposition to the Motion for Reconsideration, Tianmu asserts the following series of events: Tianmu’s counsel sent Fang a standalone signature page, which Fang signed on June 24 (Rosenthal Decl. at p. 2). On June 26, Tianmu’s counsel sent Fang the final seven-page declaration for approval. (Rosenthal Decl. at p. 2.) On June 27, Fang approved the declaration and consented to have the signature page attached. (Rosenthal Decl. at p. 3.) Tianmu’s counsel added the date of Fang’s approval (June 27) to the signature page. (Rosenthal Decl. at p. 3.) Tianmu’s counsel then accidentally attached the unsigned version of the signature page to the declaration. (Rosenthal Decl. at p. 3.) Tianmu’s counsel states that the page footer got cut off when he printed and copied the correct signature page to send to Solomon and Cinelou’s counsel (Rosenthal Decl. at p. 3.)

In their Reply, Solomon and Cinelou argue that Tianmu’s counsel asserted for the first time in the Opposition that Fang signed a standalone signature page. (Reply to Opp., at p. 4.) They also argue that the explanation of the discrepancies is insufficient. (Reply to Opp., at p. 4.)

Solomon and Cinelou state that they noticed additional defects on July 16, after the summary judgment motion was decided (i.e., that the signed signature page was part of a four-page declaration, the footer was different, and the handwritten date was missing.) (Mot. to Reconsider at p. 6, lines 10-17.) They argue that these defects are new facts not raised in their initial objection to the declaration. However, this is still within the scope of their initial objection that the signature page is inauthentic. Solomon and Cinelou admit that Tianmu’s counsel was “specifically questioned at the MSJ hearing about the circumstances surrounding the signing of the Fang Declaration.” (Reply to Opp., at p. 4.) Thus, Solomon and Cinelou do not present any new material facts or circumstances.

However, even if these additional discrepancies constitute new facts, on the merits, the Court does not find sufficient basis to grant the motion for reconsideration. The Court notes that while the procedure followed by Tianmu’s counsel may not have been the most straightforward, it must also be recognized that obtaining timely signatures when a client is out of the country is not always straightforward either, particularly when drafts change over time. The Court must view the evidence submitted in opposition to a motion for summary judgment liberally. The Court views that requirement to apply in cases where the declaration is attacked in circumstances like this as well.  The Court accepts the explanation provided by counsel for Tianmu and does not agree that there is a sufficient basis to view the declaration as inauthentic, unreliable, or procedurally defective.

The Motion for Reconsideration is DENIED.

Conclusion

The Court DENIES Defendants Courtney Solomon and Cinelou Holdings, LLC Motion to Reconsider Motion for Summary Judgment Ruling.

Superior Court of California

County of Los Angeles

Department 40

Background

This action involves contractual agreements (Agreements) in which Plaintiff Tianmu Investment Hong Kong Limited (Tianmu) agreed to invest $6,700,000 in films that Defendants Mark Canton (Canton), Courtney Solomon (Solomon), Cinelou Holdings LLC (Cinelou), Atmosphere Entertainment MM, Inc., (AMM) and Does 1 through 50 (collectively, Defendants) were producing (Compl. ¶17.) Tianmu alleges that the films were never produced (Compl. ¶33.) and that it has not been compensated under the terms of the Agreements. (Compl. ¶¶40, 48.)

On December 3, 2021, Tianmu filed a Complaint against the Defendants asserting the following causes of action: (1) Breach of Agreement (Robotech Agreement); (2) Breach of Agreement (DI Agreement); (3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Negligent Misrepresentation; (5) Fraud; (6) Violations of California Corporations Code §§ 25400, 25401, et seq.; and (7) Violation of California Corporations Code § 25504, et seq.

On July 3, 2024, Solomon and Cinelou moved for Summary Judgment, or in the Alternative, for Summary Adjudication, which Tianmu opposed. On July 2, Tianmu filed a Notice of Errata which included a signed version of Jun Fang’s Declaration. Tianmu’s counsel stated that he had accidentally previously submitted the unsigned version of  Fang’s Declaration, although he had the signed signature page in his possession at the time of filing. (Notice of Errata, at ¶ 2.) The Declaration was not modified otherwise. Solomon and Cinelou replied on July 5, 2024. The Court heard arguments on July 11, 2024.

On July 15, 2024, the Court granted in part and denied in part the motion. The Court granted Summary Adjudication to both Solomon and Cinelou as to the Breach of the Robotech Agreement. The Court granted Summary Adjudication to Solomon as to the Breach of the DI Agreement and Breach of the Implied Covenant of Good Faith and Fair Dealing. The Court denied Summary Adjudication to Cinelou as to the Breach of the DI Agreement and Breach of the Implied Covenant of Good Faith and Fair Dealing. Finally, the Court denied Summary Adjudication to both Solomon and Cinelou as to Negligent Misrepresentation, Fraud, and Violations of the California Corporations Code (Min. Order at p.9, July 15, 2024.)

Fifteen days later, on July 30, 2024, Solomon and Cinelou moved for reconsideration of the summary judgment ruling, claiming that the Fang Declaration was not authentic. They also moved to strike the declaration of Jun Fang submitted in support of Tianmu’s opposition to Solomon and Cinelou’s motion for summary judgment or adjudication.

In their motion to strike, Solomon and Cinelou argue that there are various discrepancies between the signature page of the Fang declaration that was first provided and the signature page Tianmu’s counsel later provided. (Mot. to Strike at p.6, lines 25-16, and p.7, lines 1-6.)

On August 9, 2024, Tianmu filed an opposition to the motion to strike arguing that it did not make any misrepresentations to the court regarding the signature page (Opp. to Mot. to Strike at p.2, lines 10-25).

On August 15, Solomon and Cinelou replied reiterating their argument that the signature page on the Declaration is not authentic (Reply in Supp. of Mot. to Strike at p.5, lines 3-9).

The Fang Declaration was submitted in support of the opposition to the Motion for Summary Judgment. As that motion has already been ruled upon, the motion to strike is only viable if the Court grants reconsideration of that motion, as requested in a separate motion filed by Solomon and Cinelou.

However, for the reasons stated in the ruling on that motion, the Court denies the motion to reconsider summary judgment, and therefore the motion to strike the Fang declaration is moot.  Even if it were not moot, the Court would deny the Motion to Strike as it does not find the procedural irregularities cited by the moving parties sufficient to justify striking the Fang Declaration.

The Motion to Strike is DENIED.

Conclusion

The Court DENIES Defendants Courtney Solomon and Cinelou Holdings, LLC Motion to Strike the Declaration of Jun Fang.