Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendants Thomas Oliver, Codie Elaine Oliver, The Confluential Company, LLC, Confluential Content, Inc., Confluential Development, LLC, Confluential Productions, LLC, Black Love Inc., and T. Edward Oliver, Inc. 

 

RESPONDING PARTY: Plaintiff Adam Platzner 

 

BACKGROUND 

This case arises from a dispute between former alleged partners in several entertainment production companies.  Plaintiff Adam Platzner alleges he was instrumental in helping Defendants Thomas (or Tommy) Oliver and Codie Elain Oliver secure financing and backing for their projects.  He was so essential that the Olivers allegedly made him a partner and agreed to give him an equity interest in their companies and in all future ventures.  However, Plaintiff alleges that once he helped land investors for the Olivers, they froze him out and reneged on their promise to give him equity ownership of their companies.   

The crux of the Complaint is a July 25-26, 2019 email allegedly memorializing the parties’ agreement.  (Ex. 3 to Oliver Decl.)  The parties to the alleged agreement are listed as Plaintiff and “Tommy & Codie Oliver, for all companies described below.”  (Ibid.)  The term of the contract was for 3 years.  (Ibid.)  Plaintiff was given the title of “Partner & Vice Chairman with Executive Producer credit.”  (Ibid.)  Plaintiff would be entitled to a salary of $300,000 for each of the three years.  (Ibid.)  Plaintiff would get “15% equity ownership in the new Confluential entity and 10% Equity ownership in Black Love Productions and Black Love X.”  (Ibid.)  The e-mail further provides that “[a]ll new ventures are 50/50 as between Tommy and Adam, investor’s share comes off the top.”  (Ex. 3 to Oliver Decl.)   

In addition to the Olivers, Plaintiff has sued the following entities which Plaintiff claims are the new ventures referenced in the July 2019 emails: Confluential Films, LLC, Confluential Content, Inc., Confluential Productions, LLC, Confluential Development LLC, The Confluential Company, LLC, Black Love, Inc., Black Love Global LLC (collectively the “Entity Defendants”.)   

Plaintiff claims that under the alleged July 2019 agreement, he is “the owner of 15% of Confluential Content, Inc., 50% owner of Confluential Development LLC, the 50% owner of Confluential Productions, LLC, the 50% owner of Confluential Company LLC, the 10% owner of Black Love, Inc., and the 50% owner of Black Love Global LLC” (collectively the “Equity Interests”).   

The operative First Amended Complaint (“FAC”) alleges claims for (1) breach of contract (against the Olivers), (2) breach of fiduciary duty (against the Olivers), (3) conversion (against all Defendants), (4) money had and received (against all Defendants), (5) quantum meruit (against all Defendants), (6) accounting (against all Defendants), (7) breach of implied partnership agreement (against the Olivers), (8) breach of implied joint venture agreement (against the Olivers), and (9) breach of the implied covenant of good faith and fair dealing (against the Olivers).   

This hearing is on Defendants’ demurrer and motion to strike.  Defendants argue that (1) Plaintiff’s four contract claims fail because there was no meeting of the minds; there was at most an unenforceable agreement to agree; the implied contract claims are barred by the statute of frauds and the statute of limitations, and the contract claims against Codie fail because she is not a party to the agreement; (2) Plaintiff’s breach of fiduciary duty claim against the Olivers fail because they did not owe him any fiduciary duties; (3) Plaintiff’s conversion claim fails because it does not identify any personal property Plaintiff possessed that is capable of conversion; (4) Plaintiff’s claims for money had and received and quantum meruit fail for the same reasons as his contract claims; and (5) Plaintiff’s claim for an accounting fails because Plaintiff is seeking a sum certain.  Defendants also move to strike Plaintiff’s request for attorneys’ fees and for emotional distress damages resulting from the alleged breach of contract. 

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (Code Civ. Proc., § 436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

 

MEET AND CONFER¿ 

Code Civ. Proc. §430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).)¿ The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).)¿ Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)¿ Defendants submit the declaration of Carla Wirtschafter attesting that the parties met and conferred by letter and email, and defense counsel offered to meet and confer by phone but the parties never did so.  While these attempts fall short of the requirements that the parties meet and confer in person or by telephone, a determination by the Court that the meet and confer process was insufficient “shall not be grounds to overrule or sustain a demurrer.”  (CCP § 430.41(a)(4).)¿ 

REQUEST FOR JUDICIAL NOTICE 

Defendants request judicial notice of the July 25-26, 2019 and March 7, 2021 emails, referenced in the Complaint.  Where a plaintiff references a document in his or her complaint, but fails to attach a copy of that document to the complaint, the Court may take judicial notice of the document. (See, e.g., Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285 n.3 (judicial notice appropriate where complaint referred to, and excerpted quotes from, documents not attached as exhibits to the complaint); Ascherman v. Gen. Reinsurance Corp. (1986) 183 Cal.App.3d 307, 310-11 (judicial notice taken of reinsurance contract and release which were referenced in the complaint); Marina Tenants Ass'n v. Deauville Marina Dev. Co. (1986) 181 Cal.App.3d 122, 130 (taking judicial notice of master lease that was quoted in complaint and formed the basis of the allegations in the complaint); Swiss Park, Inc. v. City of Duarte (1982) 136 Cal.App.3d 755, 758 (taking judicial notice of text and map from redevelopment plan, parts of which were referenced in the complaint); Purcell v. Colonial Ins. Co. (1971) 20 Cal.App.3d 807, 810 (taking judicial notice of agreement referenced but not attached to the complaint).  Accordingly, the Court grants Defendants’ request for judicial notice.    

DISCUSSION 

Contract Claims 

Defendants argue that Plaintiff’s breach of contract claims fail because the July 2019 email was at most, an unenforceable agreement to agree.  The Court agrees. 

Plaintiff sent a list of terms to Tommy that “is an outline of what we discussed” which he hoped “would be helpful to [Tommy’s] lawyer.”  (Ex. 3 to Oliver Decl.)  After Tommy responded with changes to the “outline”, Plaintiff responded that he “look[ed] forward to putting the agreement in place.”  (Id.)  Plaintiff’s email also acknowledged that certain compensation terms were to be “agreed upon at the time of formation” and “negotiated in the final agreement.”  (Id.)  This language suggests the parties contemplated a final agreement to be drafted by lawyers.        

“Where, in a business transaction, an important item is reserved for future determination no enforceable obligation is thereby created for ‘neither law nor equity provides a remedy for a breach of an agreement to agree in the future.’ … The law does not provide a remedy for breach of an agreement to agree in the future, and the court may not speculate upon what the parties will agree.”  (Alaimo v. Tsunoda (1963) 215 Cal.App.2d 94, 99.)  

Beck v. American Health Group Int’l Inc. (1989) 211 Cal.App.3d 1555 is instructive.  There, an employer gave its employee a letter that stated it was “the outline of our future agreement” and asked the employee to sign it so it could be forwarded to counsel “for the drafting of a contract.”  (Id. at 1562-1563.)  The employee signed the letter.  The court held that the signed letter was not a binding contract, but rather, an¿unenforceable agreement to agree. (Id. at p. 1563.)  As in Beck, the parties here contemplated that there would be a “final agreement” to be drafted by lawyers, which agreement was never memorialized.   

Accordingly, the Court SUSTAINS the demurrer to Plaintiff’s first, seventh, eighth, and ninth causes of action. 

Breach of Fiduciary Duty 

Defendants argue that Plaintiff has failed to allege a fiduciary relationship.  The Court agrees. 

Plaintiff’s claim for breach of fiduciary duty is tied directly to his claim that he is entitled to the Equity Interests.  As an equityholder, he would be owed a fiduciary duty by the Olivers who were directors and in certain cases, majority shareholders of the Entity Defendants.  (Jones v. H.F. Ahmanson & Co. (1969) 1 Cal.3d 93, 108-110; Remillard Brick Co. v. Remillard-Dandini Co. (1952) 109 Cal.App.2d 405, 419-421.)  However, as the Court has concluded there is no contract entitling Plaintiff to the Equity Interests, there must also be no fiduciary relationship.  Where there is no fiduciary relationship, there can be no breach of a fiduciary duty.  (Kenny v. Citizens Nat. Trust & Sav. Bank of L.A. (1954) 269 P.2d 641, 647.) 

Accordingly, the Court SUSTAINS the demurrer as to Plaintiff’s breach of fiduciary duty claim.       

Conversion 

Defendants argue that Plaintiff’s conversion claim fails as a matter of law because Plaintiff has not sufficiently alleged ownership or right to possession of the property he claims was wrongfully converted.  The Court agrees. 

Conversion is the wrongful exercise of dominion over the property of another.  The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) defendant’s conversion by a wrongful act or disposition of property rights, and (3) damages.  (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) 

Here, Plaintiff alleges that Defendants converted Plaintiff’s (1) stock or membership interests in the Entity Defendants, and (2) any dividends issued by the Entity Defendants.  (FAC ¶ 71.)  However, the Court has concluded there is no contract entitling Plaintiff to the Equity Interests.  Accordingly, Plaintiff has not alleged ownership or right to possession of the stock or dividends he claims was converted.   

Therefore, the Court SUSTAINS the demurrer as to Plaintiff’s claim for conversion. 

Money Had and Received 

Defendants argue that the claim for money had and received must fail for the same reasons as the contract claim.  The Court agrees.   

The crux of Plaintiff’s claim for money had and received is that he is an equity holder of the Entity Defendants who received $20 million in financing that was then allegedly distributed as dividends to other equity holders in the Entity Defendants.  (FAC ¶¶ 75-77.)  However, the Court has concluded that Plaintiff is not an equity holder of the Entity Defendants.  Accordingly, Plaintiff did not have a right to the dividends or distributions from the $20 million in financing.   

The Court, therefore, SUSTAINS the demurrer as to Plaintiff’s claim for money had and received.     

Quantum Meruit 

Defendants argue that the claim for quantum meruit must fail for the same reasons as Plaintiff’s breach of contract.  The Court disagrees.   

“Quantum meruit refers to the well-established principle that the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered.  To recover in quantum meruit, a party need not prove the existence of a contract, but it must show the circumstances were such that the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made.”  (Chodos v. Borman (2014) 227 Cal.App.4th 76, 96.)  In order to recover under a quantum meruit theory, a plaintiff must establish both that “he or she was acting pursuant to either an express or implied request for such services from the defendant and that the services rendered were intended to and did benefit the defendant.”  (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 248.) 

Plaintiff has sufficiently alleged a claim for quantum meruit.  While the July 2019 emails did not create a contract, they do evince that the parties contemplated services provided by Plaintiff would be compensated, and the emails constitute a request for Plaintiff’s services by the Olivers.  The Court agrees with Defendants, however, that this claim should be dismissed against the Entity Defendants as Plaintiff has not shown they requested his services.  Accordingly, the Court SUSTAINS IN PART and OVERRULES IN PART the demurrer to the claim for quantum meruit. 

Accounting 

Defendants argue that Plaintiff’s claim for accounting must fail because he is seeking a sum certain – $8.9 million – or a sum that can be made certain by calculation.  The Court agrees. 

A cause of action for accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting and that some balance is due the plaintiff that can only be ascertained by an accounting.  An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.  (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179 (citations and paragraph break omitted).) 

Here, the Complaint is seeking a sum certain or a sum that can be made certain by calculation.  (Compl. ¶¶ 58, 65, 70, 78, 82.)  Accordingly, Plaintiff’s claim for accounting must fail.  (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 14¿ (“A suit for an accounting will not lie where it appears from the complaint that none is necessary or that there is an adequate remedy at law.  An accounting will not be accorded with respect to a sum that a plaintiff seeks to recover and alleges in his complaint to be a sum certain.”) (internal quotations and citations omitted).)  The Court SUSTAINS the demurrer to Plaintiff’s accounting claim.   

Motion to Strike Emotional Distress Damages 

Defendants seek to strike Plaintiff’s claim for emotional distress for a breach of contract on the ground that such damages are not available for a breach of contract.  The Court agrees. 

Generally, emotional distress damages are not recoverable for a breach of contract.  (Erlich v. Menezes (1999) 21 Cal.4th 543, 558 (“a preexisting contractual relationship, without more, will not support a recovery for mental¿suffering¿where the defendant's tortious conduct has resulted only in economic injury to the plaintiff”).)   

“[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.  Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.”  (Gravallis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 777.)          

“Tort damages [such as emotional distress damages] have been permitted in contract cases where a breach of duty directly causes physical injury … for breach of the covenant of good faith and fair dealing in insurance contracts … for wrongful discharge in violation of fundamental public policy . . . or where the contract was fraudulently induced.” (Erlich, 21 Cal.4th at 551-552.) 

This case does not fall within any of these categories.  The object of the contract was not the mental condition of Plaintiff.  The breach of the contract did not cause physical injury.  The contract is not an insurance contract.  There is no claim for wrongful discharge in violation of public policy.  And Plaintiff has not alleged that the contract was fraudulently induced.  The breach of contract claims simply allege damage to financial interests.   

Plaintiff’s reliance on Windeler v. Scheers Jewelers, 8 Cal.App.3d 844, 852 is misplaced.  There, the Court described the unique circumstances of the case before it as follows: “[i]n the present case, at the time the bailment was created, plaintiff made known to defendant that the rings were cherished mementos of her husband and were old family rings, which, because of their sentimental value, she wished to have made into an heirloom for her daughter.  This was a special circumstance known to both of the parties at the time the contract was entered into.”  The facts of Windeler are materially different than those here, where the agreement is one for purely financial (equity) interests in several production companies.   

Accordingly, the Court GRANTS Defendant’s motion to strike Plaintiff’s request for emotional distress damages without leave to amend.     

Motion to Strike Attorneys’ Fees    

Defendants also seek to strike Plaintiff’s claim for attorneys’ fees because there is no agreement that contains an attorney fees’ clause nor are there any statutes cited in the Complaint that would allow Plaintiff to recover attorneys’ fees.¿ The Court agrees.¿¿¿ 

Attorney fees are only recoverable when authorized by contract, statute or law.¿ (Code Civ. Proc. 1033.5(a)(10).)¿ Otherwise, the “American rule” prevails, and each party must bear his or her own attorney’s fees.¿¿(Hart v. Clear Recon Corp. (2018) 27 Cal. App. 5th 322, 326.)   

Plaintiff has not pointed to any statute or contract but simply argues there is a vague possibility that formation documents for the Confluential Entities may include a provision entitling a prevailing party to attorneys’ fees.  This speculation is insufficient to defeat a motion to strike.  Should these documents materialize, Plaintiff may seek leave to amend.   

Accordingly, the Court GRANTS Defendants’ motion to strike Plaintiff’s prayer for attorneys’ fees without leave to amend.¿ 

CONCLUSION 

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendants’ demurrer.  The Court sustains with 20 days’ leave to amend Plaintiff’s first, second, third, fourth, seventh, eighth and ninth causes of action and without leave to amend Plaintiff’s sixth cause of action for accounting.  The Court sustains the demurrer as to Plaintiff’s fifth cause of action for quantum meruit only as to the Entity Defendants.  The Court also GRANTS Defendants’ motion to strike without leave to amend as to the prayer for emotional distress damages and for attorneys’ fees.  The Court strikes paragraph 56, lines 26-28 (“Tommy’s breach of the 2019 Agreement, including by unilaterally withholding Platzner’s salary and equity caused Platzner to suffer extreme emotional distress with resulting physical sickness.”); paragraph 57 (“extreme emotional distress with resulting physical sickness”), paragraph 94 (“The Olivers’ breach of the partnership agreement caused Platzner to suffer extreme emotional distress with resulting physical sickness”), paragraph 101 (“The Olivers’ breach of the joint venture agreement caused Platzner to suffer extreme emotional distress with resulting physical sickness.”), and Prayer for Relief paragraph 3 (“for any attorneys’ fees”).  

 

IT IS SO ORDERED. 

 

DATED: May 5, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court