Judge: David Sotelo, Case: BC395819, Date: 2022-12-05 Tentative Ruling

Case Number: BC395819 Hearing Date: December 5, 2022 Dept: 40

MOVING PARTY: Defendants O’Neil Omidvar (incorrectly sued as Aneal Omidvar), Oliver Omidvar,

Parviz Omidvar,

Tiffany Ventures, LLC,

Entertainment Factors, LLC and

Music Royalty Consulting, Inc.

Defendants O’Neil Omidvar (incorrectly sued as Aneal Omidvar), Oliver Omidvar, Parviz Omidvar, Tiffany Ventures, LLC, Entertainment Factors, LLC and Music Royalty Consulting, Inc. (herein the “Omidvar Parties) bring an opposed Motion for Attorney’s Fees and Costs in the amount of $359,161 against Wertheim, LLC based on Defendants’ (1) prevailing party status through this Court granting on April 8, 2022 a summary judgment motion in the Omidvar Parties’ favor as to all causes of action alleged against them by Wertheim in this action (LASC Action No. BC395819) and the consolidated action (LASC Action No. BC598307) and (2) a 2006 Promissory Note including a contractual attorney’s fees clause between Currency Corporation (a Defendant also related to the Omidvar Parties) and Ms. Maibell Page, which has been used in other actions between the parties to entitle the Omidvar Parties to attorney’s fees against Wertheim.

Evidentiary Objections

Wertheim LLC’s Objections

Objection Nos. 1, 5-8, 14-16: OVERRULED.

Objection Nos. 2-4, 9-13: SUSTAINED.

Omidvar Parties Objections

All Objections: OVERRULED.

Motion for Attorney’s Fees and Costs

Legal Standard: We begin with inquiry “with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted [according to a multiplier enhancement] based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant multiplier factors include “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Discussion – Fees:

The Omidvar Parties seek $349,425.43 in attorney’s fees (calculated as $359,161 total sought in fees and costs minus $9,735.57 sought in costs) as the prevailing parties in this action and specifically rooted in an attorney’s fee provision in a 2005 Promissory Note tied to a $6,500 loan made by Currency Corporation to Maibell Page in return for music royalty rights (hereafter the “Currency-Page Note” or “Note”). (Mot., 14:2-16.) In relevant part, the Note provided that “in connection with any claim or dispute arising out of or relating to this Note, including any litigation, arbitration or other proceeding alleging a breach of the terms of this Note, the prevailing party shall recover … reasonable attorneys’ fees and costs incurred by such party prosecuting or defending such claim or dispute” (Aug. 5, 2008 SAC, Ex. B, p. 2.)

On Opposition, Wertheim argues that this action (BC395819) and the consolidated action (BC598307) do not arise from and do not relate to the Currency-Page Note between Currency Corp. and Maibell Page because the causes of action raised in these pleadings relate not to harms arising from any breaches of contract or torts related to the Currency-Page Note, but rather, relate to torts by the Omidvar Parties in relation to or interfering with an Agreement made in 2006 by Maibell Page and Wertheim through David Pullman and involving a transfer the same music royalty rights (hereafter the “Page-Wertheim Agreement”). (Opp’n, 12:2-13:5.)

On Reply, the Omidvar Parties double down on the Currency-Page Note being the source of the contractual attorney’s fee provision entitling these parties to fees and costs in this and the consolidated action. (Reply, 7:15-9:8.)

The Court agrees with Wertheim and against the Omidvar Parties.

A review of the Second Amended Complaint (“SAC”) in this action (BC395819) and Complaint in the consolidated action (BC598307) shows claims related to torts allegedly committed by the Omidvar Parties in relation to or interference with the Page-Wertheim Agreement, NOT the Currency-Page Note. (BC395819 SAC, ¶¶ 31-35 [Tortious Interference with Contract—i.e., the Page-Wertheim Agreement—with the Omidvar Parties causing Maibell Page to repudiate the Page-Wertheim Agreement through slander of Wertheim and David Pullman—operator of Wertheim—and through representations that the Omidvar Parties would forgive loans to Maibell Page and fund her representation against lawsuits by Wertheim and/or Pullman], 36-39 [Trade Libel based on the Omidvar Parties making disparaging remarks against Wertheim and David Pullman to Maibell Page], 40-42 [Interference With Prospective Business Advantage against the Omidvar Parties based on these Defendants’ previously described conduct]; BC598307 Complaint, ¶¶ 147-191, note 152(a)-(f) [Inducing Breach of Contract—i.e., the Page-Wertheim Agreement—based on aforementioned conduct and additional allegations related to depriving Wertheim of the benefits of this Agreement, including threats to Maibell Page and family if they sued the Omidvar Defendants or supported Wertheim in the ongoing lawsuits between the parties], 192-216, note 197(a)-(f) [Tortious Interference with Contract based on same grounds], 217-226 [Intentional Interference With Prospective Economic Advantage based on “Currency and the other Defendants [beginning] … in September 2006 … interfering with Wertheim’s rights under the Assignment Agreements [i.e., the Page-Wertheim Agreement] and related documents by wrongfully inducing Page to breach and repudiate the Assignment Agreements” “by slandering Wertheim and Wertheim’s principal and President, David Pullman, using Currency and its principal Parviz Omidvar’s undue influence on Page and members of her family, falsely telling Page that Currency and the other Defendants each and every one of them had committed no wrongful acts, and forgiving ‘loans’ that Currency told Page were due from Page to Currency”], 227-236 [Negligent Interference With Prospective Economic Advantage on same grounds], 237-252 [RICO violation based on aforementioned conduct, as well as Defendants “extorting Page with threats of reporting her to the Internal Revenue Service unless she agreed to their demand, misdirecting Page’s funds to Tiffany [one of the Omidvar Parties] in order to take it from her possession and use it for their own benefit including to lend to her, fraud (including mail and wire fraud), receipt of and theft of stolen property, charging of usurious and unlawful interest, diverting statements of royalty income to deceive borrowers, taking over the royalties through their various other related entities and associates”].)

While the Court acknowledges that the Currency-Page Note and the Page-Wertheim Agreement in essence dueled for entitlement to the same music royalty rights belonging to Maibell Page, the claims advanced in this action and the consolidated action are not two sides of the same coin because the claims advanced herein did not arise from breach of the Currency-Page Note or torts related to it—e.g., a breach of contract of that Note or fraud in that Note or similar claims—but rather, involve torts against Wertheim’s rights to Maibell Page’s music royalty rights as through the Page-Wertheim Agreement.

Based on this conclusion, a majority of the Omidvar Parties’ arguments on Motion are irrelevant insofar they try to explain why the causes of action brought in this and the consolidated action relate to the Currency-Page Note and trigger attorney’s fees from Wertheim therethrough. (Mot., 13:1-14:1 [arguing Court of Appeal found that Currency Corp. was entitled to fees in separate lawsuit suit brought by Currency Corp. against Wertheim rooted in Currency’s rights through the Currency-Page Note—LASC Action No. BC417798—thus irrelevant to questions of torts against Wertheim based on the Page-Wertheim Agreement], 14:17-15:12 [arguing recovery permitted against Wertheim based on wide scope of the attorney’s fees provision in the Currency-Page Note NOT the Page-Wertheim Agreement], 15:13-16:28 [Omidvar Parties’ entitlement to fees based on the Currency-Page Note despite not being signatory to Currency-Page Note, irrelevant to the Page-Wertheim Agreement on which the herein and consolidated action are founded].)

Neither does Maibell Page’s assignment of rights against Currency Corp. through the Page-Wertheim Agreement tie this action and the consolidated action to the Currency-Page Note because through the two instruments involve the same rights, the root of the harm suffered by Wertheim in its pleadings herein relate only to harms suffered by Wertheim in relation to the Page-Wertheim Agreement alone and bear no relationship between the Note and the Agreement. (Contra. Mot., 17:1-12.)

The Court finds no merit to the argument that the Omidvar Parties are entitled to attorney’s fees based on Civil Code section 1717’s reciprocity rule (Mot., 17:13-18:2)—stating that a prevailing party is entitled to recover fees “so long as the party pursuing the lawsuit would have been entitled to attorney’s fees had it prevailed” (Rainier National Bank v. Bodily (1991) 232 Cal.App.3d 83, 86)—because it is not clear to this Court that Werthiem would have sought attorney’s fees against the Omidvar Parties had it prevailed against them. (BC395819 SAC, Prayer, p. 15, ¶¶ 1-5 [no attorney’s fees sought as relief against Omidvar Parties and Currency Corp.] & BC598307 Complaint, ¶¶ [conclusorily seeking “costs of suit … including reasonable attorney’s fees where allowed by law” without reference to any contract].)

It is worth mentioning that the fact that the Omidvar Parties have been able to collect attorney’s fees through the Currency-Page Note in LASC Action No. BC417798—initiated by Currency Corp. and various Omidvar Parties against Wertheim, Pullman, and other parties—is irrelevant for the purposes of attorney’s fees in this and the consolidated action.

The BC417798 action was premised on the Currency-Page Note and involved a Cross-Complaint wherein Wertheim alleged two claims against Currency Corp. and several Omidvar Parties based on harms suffered by Page and—through Page—Wertheim. (BC417798 Cross-Complaint, ¶¶ 17 [assignment], 20-25, 25-29, 30-33 [causes of action alleging harm to or seeking declaration of rights for Page and Wertheim in relation to the Note].)

The Motion is thus DENIED as to attorney’s fees.

Discussion – Costs: The Court GRANTS the $9,735.57 in costs sought by the Omidvar Parties in their June 2, 2022 Memorandum of Costs because a review of these expenses show that they are reasonable and germane to this action.

Conclusion

(1) DENIED as to fees because no contracts are shown by the Omidvar Parties to entitle them to fees against Wertheim, LLC in this and the consolidated action (BC395819 and BC598307); and

(2) GRANTED as to the $9,735.57 in costs sought by the Omidvar Parties in their June 2, 2022 Memorandum of Costs.