Judge: Cherol J. Nellon, Case: 23STCV30103, Date: 2024-03-27 Tentative Ruling

Case Number: 23STCV30103    Hearing Date: March 27, 2024    Dept: 14

 Doe v Doe

Case Background

Plaintiff alleges that his talent agents worked against Plaintiff’s best interests in the compensation negotiations for Plaintiff’s appearance on the hit television show ‘Empire.’

On December 8, 2023, Plaintiff filed his Complaint for (1) Breach of Fiduciary Duty, (2) Constructive Fraud, and (3) Fraudulent Concealment against Defendants Creative Artists Agency, LLC (“Creative Artists”), David Bugliari, Jon Teiber, Michael Katcher, and DOES 1-10.

No proof of service has been filed as to Defendants David Bugliari, Jon Teiber and Michael Katcher.

            No trial date has yet been set.

Instant Pleading

            Defendant Creative Artists now demurs to the entire Complaint on the grounds that all claims are barred by the statute of limitations.

Decision

            Defendant Creative Artists’ Request for Judicial Notice is DENIED. The attachment of another lawsuit, and the publicity surrounding that lawsuit, invites the court to make certain factual conclusions about what Plaintiff must have or should have seen or known. The Court of Appeal has made it very clear that this court cannot use a request for judicial notice to transform a demurrer into an evidentiary hearing. See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605; see also Sanai v. Saltz (2009) 170 Cal.App.4^th 746, 768-770

            The demurrer is SUSTAINED, with 20 days leave to amend.

Discussion

            The acts alleged in the Complaint occurred in 2014, 2016, and 2018. (Complaint ¶¶ 13-20, 34-36). The parties tacitly agree, for present purposes (Defense asserts, and Plaintiff does not disagree), that the three-year limitations period contained in Code of Civil Procedure § 338(d) applies to these claims. While that would, facially, put these claims beyond the statute, Subdivision 338(d) also contains the well-known “discovery rule.”

            The Discovery Rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4^th 797, 807. “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.” Id. A Plaintiff who wishes to rely on the Discovery Rule has the burden of specifically pleading “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” Id. at 808 (emphasis in original).

            Plaintiff has done neither. Paragraph 41 pleads generically that “sometime in 2021, [Plaintiff] discovered that the representations made by his agents regarding the comparisons discussed in 2018 were in fact misleading.” While the identification of a specific year is arguably sufficient pleading of the time of discovery, this does not describe the manner in which the discovery was made. Further, it only applies to what happened in 2018, not the events of 2014 or 2016.

            Nor is there any attempt to explain how Plaintiff was unable to make the discovery earlier. He pleads ignorance and misunderstanding of what it meant that Defendant Creative Artists also served as the “packaging agent” for the show. (Complaint ¶¶ 21-22). On demurrer the court must accept this allegation and its necessary implication: that Plaintiff did not know the nature of the conflict of interest he now alleges. But the conflict is not itself the harm; Plaintiff’s loss of pay is the harm. And Plaintiff alleges that he was unhappy with his pay as early as 2016, to the point of hiring counsel to help with renegotiations. (Complaint ¶¶ 33-34). Plaintiff needs to provide a more detailed explanation as to why the discovery of the harm alleged did not lead him to find its source.

            As Plaintiff notes in his opposition, the Discovery Rule is not a high hurdle at the pleadings stage. It is likely that Plaintiff will ultimately be able to clear it. When a person should reasonably have notice of a claim is a classic factual question. But Plaintiff must provide the court and the Defense with some details to allow for assessment. ‘This happened and I just discovered it two years ago’ is not enough.

Conclusion

            Because Plaintiffs’ Complaint presently lacks the requisite details, the demurrer is SUSTAINED with 20 days leave to amend.