Judge: Gail Killefer, Case: 20STCP01958, Date: 2023-03-06 Tentative Ruling

Case Number: 20STCP01958    Hearing Date: March 6, 2023    Dept: 37

HEARING DATE:                 March 6, 2023   

CASE NUMBER:                  20STCP01958

CASE NAME:                        Derek Hay, et al. v. Jane Does 1-5 

TRIAL DATE:                        August 8, 2023

PROOF OF SERVICE:          OK

MOTION:                               Respondents’ Motion for Summary Adjudication  

MOVING PARTIES:             Respondents, DOES

OPPOSING PARTIES:          Petitioners, Derek Hay and Direct Models, Inc. (“Appellants”)

OPPOSITION:                       January 13, 2023

REPLY:                                  January 27, 2023

TENTATIVE:                         Respondents’ motion for summary adjudication is denied. Appellants are to give notice.

Background

This is an action to appeal a Labor Commissioner Award brought by Petitioner, Derek Hay (“Hay”). According to the operative petition, filed June 19, 2020, Hay is the owner and Chief Executive Officer of Petitioner, Direct Models Inc. dba LA Direct Models (“Direct Models”), who represents artists in the adult entertainment industry and who entered into agreements to represent Respondents, Jane Does 1-5, at various points between 2015 to 2017. In 2018, Jane Does 1-5 filed Petitions to Determine Controversy (the “Petition”) with the California Labor Commissioner, alleging that Petitioners engaged in improper conduct in connection with the representation of all respondents by coercing Jane Does 1-5 to engage in unwanted and unlawful sexual relations and failing to properly account for fees they received.

On June 15, 2020, the Labor Commissioner rendered a Determination on Controversy, in which the Labor Commissioner awarded Respondents $24,206.9 plus additional fees to be determined after an accounting. Petitioners appeal the Labor Commissioner’s June 15, 2020 award and seek trial de novo pursuant to Labor Code § 1700.44.

On March 2, 2020, prior to the filing of this action, a criminal Complaint was filed In Los Angeles County (Action number BA484102) by the Office of the Attorney General and charged defendants, including Hay, with two counts of felony pandering in violation of Penal Code § 266i(a)(1).) (the “Criminal Action”)

On October 24, 2022, Appellants’ motion for judgment on the pleadings as to the eleventh cause of action for unfair competition was granted (“October 24 Order”).

Respondents now move for summary adjudication as to the first, third, fourth, fifth, sixth, ninth, tenth, and eleventh causes of action. Appellants oppose the motion. As the October 24 Order granted judgment on the pleadings as to the eleventh cause of action, the court now addresses the remaining causes of action of Respondents’ motion.

Request for Judicial Notice

Respondents request judicial notice of the following in support of their motion:

1.      Provisions of the California Talent Agency Act, Labor Code § 1700, et seq; and Title 8 of the California Code of Regulations, § 12000 et seq.;

2.      Government Agency File from the California Department of Labor Standards Enforcement pertaining to Direct Models, Inc’s Talent Agency’s License and the dates contained therein— the Proposed Decision in In re the Statement of Issues against Direct Models, Inc. (2022) Agency Case No. SC 6641 OAH No. 2019070942 (“Statement of Issues”) which involves overlapping and substantially similar conduct as alleged in Respondents’ Case originally filed in the Labor Commission and from which this de novo matter appeals; (Exhibit 1)

3.      Contents of www.LADirectModels.com and www.TheLuxuryCompanion.com as archived at www.archive.org in the respective scans between January 1, 2016 and January 1, 2020; (Exhibit 1)

4.      The filing by LADM of a Complaint against Brittany Hayes aka Trinity St.Clair, Case # LC105861 filed 8/28/17; (Exhibit 1)

Appellants also request judicial notice of the following in support of their opposition:

5.      Website and Forms Pages of DIR Website on Talent Agents; (Exhibit A)

6.      The Documents Produced as Part of PRA HQ36489 to DLSE with Original Request; (Exhibit B)

7.      First Amended Petition for Writ of Administrative Mandamus; Los Angeles Superior Court - 22STCP03265; (Exhibit C)

8.      Notice of Appeal - Hay v. Jane Doe; Los Angeles Superior Court - 22STCP00319; (Exhibit D)

9.      Notice of Appeal - Hay v. Jane Doe; Los Angeles Superior Court - 22STCP00324. (Exhibit E)

The parties’ requests are granted. While both parties oppose the other’s requests on grounds of irrelevance or insufficient justification for judicial notice, neither party has made a sufficient showing of the lack of authority in granting judicial notice of the requested exhibits. The existence and legal significance of these documents are proper matters for judicial notice. (Evid. Code § 452(h).) However, the court may not take judicial notice of the truth of the contents of the documents.  (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)  Documents are only judicially noticeable to show their existence and what orders were made.  The truth of the facts and findings within the documents are not judicially noticeable.  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Evidentiary Objections

Appellants’ Objections to Respondents’ Evidence

Overruled: Objections 1-6.

Respondents’ Objections to Appellants’ Evidence

Overruled:  Objection 2-4, 11, 14-15, 17, 19-21, 24-26, 28-30, 44-45, 58, 60-61, 63, 71

Sustained:   Objection 1, 5-9, 12-13, 16, 22-23, 27, 31-43, 46-57, 59, 64-70, 72-28.  

Sustained-in-part: Objection 10: sustained-in-part as to “they recommended that we use the standard form generic agreement that had been approved and was used by all talent agents in the State of California. Essentially, they indicated that they did not have adequate staffing to undertake a review of a different slightly more extensive document and so required that.”

Objection 18: sustained-in-part as to “Since it is not a fee charged by Direct Models but is only handled for the performers, it is not a fee that is required to be disclosed on any Schedule of Fees.” Improper legal opinion.

Objection 62: sustained-in-part as to everything after “Most of us...” Lacks personal knowledge, hearsay without exception.

Factual Background

Appellant LADM is a Talent Agency and Appellant Hay is a talent agent. (Separate Statement of Undisputed Material Facts (“DSS”), ¶¶ 1-2.) Respondents DOES 1-5 are “Artists” under the TAA, and were represented by Hay as their Talent Agent (DSS ¶¶3-4.) Appellant Hay is the only corporate officer of LADM and controlled its actions; Hay also instructed his employees on how to provide documents to LADM clients. (DSS ¶¶6-8.) In 2004, Appellants submitted a proposed contract template for their clients to the Labor Commission that was never approved. (DSS ¶9.)

The parties dispute whether Appellants had any of their submitted forms approved by the Labor Commissioner. (DSS ¶10-11.) However, the parties do not dispute that each of the DOES signed the Agency contract with LADM. (DSS ­¶12.) DOES 1, 2, 3, and 5 each also signed a “Best Practices and Rules of Conduct Required—Guidelines” document. (DSS ¶13.) The parties dispute whether this document needed to be submitted to the Labor Commissioner for approval. (DSS ¶¶13-16.)

DOES 1, 2, 3, and 5 each also signed a “Still Photograph Model Release and Assignment.” (DSS ¶18.) The parties further dispute whether this document needed to be submitted to the Labor Commissioner. (DSS ¶¶19-21.) The three documents were signed during a single meeting, but the parties dispute whether each document was discussed separately. (DSS ¶22.)

The parties further dispute whether Appellants had a duty to tell DOES that the “Best Practices” and “Release” documents were not approved by the Labor Commissioner. (DSS ¶23.)

Each Doe also had to fill out a “Model Profile.” (DSS ¶24.)

DOE 1 entered into a contract with Petitioners on 5/16/17. (DSS ¶276.) DOE 2 entered into a contract with Petitioners on 3/9/17. (DSS ¶277.) DOE 3 entered into a contract with Petitioners on 4/20/17. (DSS ¶278.) DOE 4 entered into a contract with Petitioners on 5/22/17. (DSS ¶279.) DOE 5 entered into a contract with Petitioners on 11/6/15. (DSS ¶280.)

The total amount of agency commissions charged to DOE 1 between 6/19/18 and 7/6/17 by Petitioners was $305.00. (DSS ¶27.) The total amount of all fees charged relating to DOE 1 between 6/19/18 and 7/6/17 by Petitioners was $950.00. (DSS ¶32.)

The total amount of agency commissions charged to DOE 2 between 6/19/18 and 3/26/19 by Petitioners was $6,217.50. (DSS ¶28.) The total amount of all fees charged relating to DOE 2 between 6/19/18 and 3/26/19 by Petitioners was $ 15,093.50. (DSS ¶33.)

The total amount of agency commissions charged to DOE 3 between 6/19/18 and 9/6/18 by Petitioners was $1,865.00. (DSS ¶29.) The total amount of all fees charged pertaining to DOE 3 between 6/19/18 and 9/6/18 by Petitioners was $4,615.00. (DSS ¶34.)

The total amount of agency commissions charged to DOE 4 between 6/19/18 and 4/5/18 by Petitioners was $4,295.00. (DSS ¶30.) The total amount of all fees charged pertaining to DOE 4 between 6/19/18 and 4/5/18 by Petitioners was $14,166.99. (DSS ¶35.)

The total amount of agency commissions charged to DOE 5 between 6/19/18 and 6/14/18 by Petitioners was $1,385.00. (DSS ¶31.) The total amount of all fees charged pertaining to DOE 5 between 6/19/18 and 6/14/18 by Petitioners was $4,663.00. (DSS ¶36.)

The parties dispute the amount of fees charged to each Doe, but do not dispute the agency commission amounts. (DSS ¶¶32-36.)

The parties further dispute the existence, use, and threat of use of “Short Notice Cancellation Fees” also known as “Kill Fees” by Appellants/Petitioners. (DSS ¶¶49-54.)

The parties do not dispute that on 11/16/17, LADM assessed a Kill Fee against DOE 5 for refusing to participate in a "topless poker party" even though HAY knew of her refusal five days before the event. (DSS ¶55.)

The parties further dispute the Appellants’ rights to employ Does’ marks and likenesses, and the extent of the Model Release agreements pertaining to photoshoots of Does. (DSS ¶56-57.)

The parties dispute the nature of the “Point of View” shoots Does were asked and booked to perform. (DSS ¶¶71-74.)

"Point of View" ("POV") shoots are a type of production where it appears that the person having sex with the female model is filming the scene. (DSS ¶70.) It is undisputed that Petitioners sent DOE 1 to a shoot with only a single producer/cameraman. (DSS ¶75.) However, the parties dispute whether the remaining Does 2-5 were sent on such shoots. (DSS ¶¶76-79.)

The parties also dispute whether adequate security was provided at events where Does were scheduled to appear, but do not dispute one such incident on December 5, 2017, when another model told Hay that she was groped on November 30, 2017 at such a party. (DSS ¶¶80-82.)

The parties do not dispute Petitioners had charged DOE 5 two prior "Kill Fees" for cancelling on two previous parties where she was to be a topless ambient model; even though the parties dispute whether Doe 5’s Model Profile included an agreement to participate in such events. (DSS ¶¶83-84.)

Despite having replaced DOE 5 five (5) days prior to the event, having substituted April Snow to replace her, and earning its commissions and booking fees for Ms. Snow's appearance, LADM still charged DOE 5 a $300 Kill Fee for not taking the 11/30/17 Poker Party booking. (DSS ¶87.)

Further, the parties do not dispute the following: Petitioners knew that The Luxury Companion ("TLC") was an escort agency prior to 6/2/17; Petitioners knew that Karine Michmichian ran TLC prior to 6/2/17; Petitioners knew Dwight Cunningham was involved with TLC prior to 6/2/17. (DSS ¶¶91-93.) The parties dispute whether Appellants knew “TLC was a front for prostitution.” (DSS ¶¶94-97.)

The parties further do not dispute the following: Michmichian introduced Doe 1 to Hay; Hay introduced Doe 2 to Michmichian, Hay also introduced Doe 2 to Cunningham; Doe 3 was scheduled to have photos taken at Michmichian’s home by Appellants; Hay introduced Doe 4 to Michmichian. (DSS ¶¶99, 101-106.) The parties also do not dispute that after “referring DOE 4 to TLC, HAY asked her if she had done her first ‘job’ and how it went.” (DSS ¶¶110.)

The parties further dispute whether Hay knew escort services “involved sex with the clients for money.” (DSS ¶111.) The parties also dispute the nature, extent, and payment of several fees on several occasions charged to the Does. (See generally DSS ¶¶132-162.) The parties do not dispute that Does were charged “travel arrangement fees” on several occasions. (DSS ¶¶169-178.) The parties also do not dispute that Does were charged “booking fees” on several occasions. (DSS ¶¶182-188.)

Discussion

I.                   Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  CCP § 437c(a) provides: 

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.  The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct….  The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.  The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading. 

A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (CCP § 437c(c).)   

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.  The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.  The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.”  (CCP § 437c(b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)   

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).)  CCP § 437c(p)(1) provides: 

A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. 

 The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].)  A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475). 

II.                Analysis

The Court first turns to Plaintiffs’ pleading, which “determine[s] the scope of relevant issues on a summary [adjudication] motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co.¿(2010) 181 Cal.App.4th 60, 74.)

a.      Talent Agencies Act (TAA) Claims

The purpose of the TAA is “remedial; its purpose is to protect artists seeking professional employment from the abuses of talent agencies.”  (Styne v. Stevens (2001) 26 Cal.4th 42, 50.) The current TAA, enacted in 1978 and codified as California Labor Code §§ 1700 et seq., applies to both talent managers and agents.  (Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal. 4th 974, 980.)

Under the TAA, “no person shall engage in or carry on the occupation of a talent agency without first procuring a license therefor from the Labor Commissioner.”  (Lab. Code, § 1700.5.)  A “talent agency” means “a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist….”  (Lab. Code, § 1700.4(a).)  The term “artist” includes “models.”  (Id. at subd. (b).) According to the TAA, the parties can “appeal within 10 days after [the commissioner’s] determination, to the superior court where the [dispute] shall be heard de novo.”  (Lab. Code, § 1700.4(a).)   

The TAA states: “In cases of controversy arising under this chapter,” for example, a person engaged in the occupation of a talent agency without a license, “the parties involved shall refer the matters in dispute to the Labor Commissioner ….”  (Lab. Code, § 1700.4(a) [emphasis added].)  According to the California Supreme Court, “this language, using the mandatory ‘shall,’ grants ‘original and exclusive jurisdiction over issues arising under the Act’ to the Labor Commissioner. [Citations.]”  (Villanueva v. Fidelity National Title Co. (2021) 11 Cal.5th 104, 127.) California law provides the California Labor Commissioner with exclusive jurisdiction to decide the first instance issues arising under the Talent Agencies Act and requires any defense first be heard by the Labor Commissioner before the parties can proceed to this Court. (Lab. Code § 1700.44(a); Styne v. Stevens, (2001) 26 Cal.4th 42.)

Pursuant to Labor Code § 1700.44(a), a Labor Commissioner’s determination under the Act is subject to a “de novo” review in the superior court. Thus, Appellants here, as the appealing party, “is entitled to a complete new hearing—a complete new trial—in the superior court that is in no way a review of the prior proceeding.” (Buchwald v. Katz, 8 Cal. 3d 493, 502 (1972) (discussing “de novo” review in the context of an appeal under the Act) (emphasis added).)  Stated otherwise, this Court must make its findings and conclusions in this appeal as if “no previous hearing had ever been held,” and no deference whatsoever is to be given to the Labor Commissioner’s determination below.  (Id. at 501 (emphasis added); see Marathon Ent., Inc. v. Blasi, 42 Cal. 4th 974, 990 (2008) [“under the Act's statutorily guaranteed trial de novo procedure, the Labor Commissioner's findings carry no weight”]; People v. Bourdon, 10 Cal. App. 3d 878, 881 (1970) [“The very concept, ‘de novo’ hearing, means that all matters therein in issue are to be considered anew; afresh; over again”] (internal quotations omitted); see also Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir. 2009) [“De¿novo¿review¿means¿that the reviewing court does not defer to the lower court's ruling but freely considers the matter anew, as if no decision had been rendered below.”] (internal quotations omitted); United States v. Raddatz, 447 U.S. 667, 690 (1980) United States v. Raddatz, 447 U.S. 667, 690 (1980) [“The phrase ‘de novo determination’ has an accepted meaning in the law. It means an independent determination of a controversy that accords no deference to any prior resolution of the same controversy”].) 

First, Respondents contend collateral estoppel precludes the determination of several issues here, but fail to point to any supporting authority for the preclusive effects of Labor Commissioner findings upon a de novo review on appeal, as are the circumstances before this court now. (Motion, 10-11.)

Next, Respondents contend summary adjudication should be granted for their TAA claims since the evidence shows: Appellants used an “exemplar single page contract” and supplemented with “two other unapproved contracts” which they contend altered in Appellants’ favor “the obligations between the parties;” collected unlawful registration fees, “Kill fees,” and kept booking fees even after cancelling the scheduling, all of which were prohibited under the TAA; did not “use reasonable care to protect” DOES as their clients by booking them for various allegedly unsafe events and shoots, as well as arranging for Does’ involvement in a prostitution network; failed to submit fee schedules to the Labor Commissioner and did not post Fee Schedules for their clients; and collected illegal and prohibited registration fees. (Motion, 14-28, 31-33.)

In opposition, Appellants first contend that the “Best Practices” and “Model Release” documents do not create a new document, and further contend that any consideration of the creation of a new contract under Civil Code § 1642 is a question of fact. (Opposition, 20; citing Cadigan v. American Trust Co. (1955) 131 Cal.App.2d 780, 784, 786.) Appellants contend they dispute the notion that the other documents merged with the signed agreement to create a new contract, and even still, factual disputes regarding their incorporation preclude summary adjudication for the first cause of action. (Opp., 20-21.)

Appellants further argue:

“the Best Practices was not intended as a contract, presented as a contract, explained as a contract, or discussed as a contract but rather as [an] employee manual or guide of the practices in the adult entertainment industry.

Whether it was or was not a contract that was to be given binding effect is a question of fact about which there is dispute and which would have to be resolved at trial. As to the first allegation that it contained an illegal term or condition, relating to photo fees, that issue has been addressed above and is asserted to have been resolved in that the Labor Commissioner has determined that photo fees, initially advanced for Photo Portfolios primarily for the website are not Registration Fees.” (Opp., 23-24.)

Appellants further contend, as the summary adjudication deals with cancellation fees, “that it was the production companies, with whom Does had the agreements to provide content for shoots that determined whether they were going to assert a Kill Fee. If they did, they advised [LADM], forwarded an invoice and expected payment.” (Opp., 24.)

Appellants next contend, with regards to the fourth cause of action, that there “simply is no basis for the Does’ expressions of opinion that Solo POV shoots are inherently dangerous and the facts adduced by Direct Models about their investigation of POV shoots in general and Solo POV shoots in particular speaks to the disputed nature and need for a factual resolution which precludes summary adjudication.” (Opp., 25-26.) With regards to the private events, or Hay’s alleged involvement with the escorting/prostitution business, Appellants here also contend that “a determination of absolute necessity” here “involves a resolution of disputed material facts since there is no factual basis on which it could be concluded as a matter of law that Derek Hay caused or contributed to escorting activities.”

Appellants then contend with regards to the collection of rental fees, that such fees were not part of the “essential processes of booking a performer for a shoot but was strictly an accommodation intended to allow the performers a desirable place to stay at a relatively low cost.” (Opp., 27-28.) As such, they contend factual issues also preclude summary adjudication of the fifth cause of action.

Lastly, Appellants contend the ninth cause of action is further full of triable factual issues as:

“[t]here was no secret or hidden agenda about Derek Hay's participation in both companies and there is no contention that there were any referral fees or sharing of income, particularly to the detriment to the Does between the two companies. There simply is no basis for determining that allowing performers an opportunity to engage in a different type of work for a different company that brought them substantial sums of money was not a conflict of interest.” (Opp., 29.)

In reply, Respondents contend “Petitioners’ various declarations” do not “expressly [contradict]” “numerous undisputed facts” and “[m]any other attempts to dispute facts are based on Declarations... that evidence a lack of personal knowledge and/or lack foundation.” (Reply, 11-12.)

Respondents then contend that whether the Best Practices document constituted a “contract at all” is an issue of law. (Reply, 2-3; citing Wolf v. Walt Disney Pictures & Television, (2008) 162 Cal. App. 4th 1107, 1126.) Respondents then reiterate their contention that the additional two documents were also part of the contract between the parties. (Id.)

Respondents further again point to the language of the statute in contending that collecting registration fees, fees for banners and photos, and other unapproved fees are unlawful as a matter of law and ripe for summary adjudication. (Reply, 4-5.) Respondents further argue a single declaration speaking to the posting of an alleged fee schedule is not alone enough to create a triable issue of material fact. (Reply, 5-6.)

In Wolf, the court explained:

“The rules governing the role of the court in interpreting a written instrument are well established. The interpretation of a contract is a judicial function. ( Pacific Gas E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 39-40 ( Pacific Gas Electric).) In engaging in this function, the trial court ‘give[s] effect to the mutual intention of the parties as it existed’ at the time the contract was executed. (Civ. Code, § 1636.) Ordinarily, the objective intent of the contracting parties is a legal question determined solely by reference to the contract's terms. (Civ. Code, § 1639 [‘[w]hen a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible . . .’]; Civ. Code, § 1638 [the ‘language of a contract is to govern its interpretation . . .’].)

The court generally may not consider extrinsic evidence of any prior agreement or contemporaneous oral agreement to vary or contradict the clear and unambiguous terms of a written, integrated contract. (Code Civ. Proc., § 1856, subd. (a); Cerritos Valley Bank v. Stirling (2000) 81 Cal.App.4th 1108, 1115-1116; Principal Mutual Life Ins. Co. v. Vars, Pave, McCord Freedman (1998) 65 Cal.App.4th 1469, 1478 [parol evidence may not be used to create a contract the parties did not intend to make or to insert language one or both parties now wish had been included].) Extrinsic evidence is admissible, however, to interpret an agreement when a material term is ambiguous. (Code Civ. Proc., § 1856, subd. (g); Pacific Gas Electric, supra, 69 Cal.2d at p. 37 [if extrinsic evidence reveals that apparently clear language in the contract is, in fact, susceptible to more than one reasonable interpretation, then extrinsic evidence may be used to determine the contracting parties' objective intent]; Los Angeles City Employees Union v. City of El Monte (1985) 177 Cal.App.3d 615, 622.)

When the meaning of the words used in a contract is disputed, the trial court engages in a three-step process. First, it provisionally receives any proffered extrinsic evidence that is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. ( Pacific Gas Electric, supra, 69 Cal.2d at p. 37; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 391.) If, in light of the extrinsic evidence, the language is reasonably susceptible to the interpretation urged, the extrinsic evidence is then admitted to aid the court in its role in interpreting the contract. (Pacific Gas Electric, at pp. 39-40; Wolf II, supra, 114 Cal.App.4th at pp. 1350-1351.) When there is no material conflict in the extrinsic evidence, the trial court interprets the contract as a matter of law. ( City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395 [interpretation of written instrument solely a judicial function "when it is based on the words of the instrument alone, when there is no conflict in the extrinsic evidence, or a determination was made based on incompetent evidence"]; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866.) This is true even when conflicting inferences may be drawn from the undisputed extrinsic evidence (Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439; Parsons, at p. 866, fn. 2) or that extrinsic evidence renders the contract terms susceptible to more than one reasonable interpretation. ( Parsons, at p. 865; New Haven Unified School Dist. v. Taco Bell Corp. (1994) 24 Cal.App.4th 1473, 1483.) If, however, there is a conflict in the extrinsic evidence, the factual conflict is to be resolved by the jury. (City of Hope National Medical Center, at p. 395 [‘when, as here, ascertaining the intent of the parties at the time the contract was executed depends on the credibility of extrinsic evidence, that credibility determination and the interpretation of the contract are questions of fact that may properly be resolved by the jury . . .’]; Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 291 [it is a "`judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence'"]; Pacific Gas Electric, at pp. 39-10 [same].) (Wolf v. Walt Disney Pictures & Television, 162 Cal.App.4th 1107, 1125-27 (Cal. Ct. App. 2008).)

Here, Respondents point to two documents the parties agree were signed and allegedly discussed contemporaneously with the agreement between each Respondent and Petitioners—the Best Practices and Model Release documents. However, as the documents themselves do not remain unambiguous before the court today, the court then looks to see whether any material conflict remains for the extrinsic evidence submitted. Here, Respondents and Petitioners have submitting dueling attestations, dueling evidence of records, and sheer volume of papers submitted by the parties speak to the existence of several questions of fact which prevent this court from determining the language of the contract, and whether the contract exists pursuant to section 1642. Any attempt by this court to resolve the existence and ambiguous language of the formation of the contract—whether the entire agreement is one document or the three aforementioned documents—would have this court to weigh the credibility of the extrinsic evidence the parties have each submitted before this court. The court therefore cannot determine the existence and terms of the contracts between the parties as a matter of law. (City of Hope National Medical Center, supra at 395; Warner Constr. Corp., supra, 2 Cal.3d at 291.)

The court here further agrees with Appellants that several factual issues also remain regarding whether the fees incurred were reimbursements, whether the fees themselves were prohibited by statute, whether the fees themselves were under the purview of the TAA, whether the aforementioned fees were for services rendered by Petitioners in their role as agents for Respondents as clients, and whether the fees were collected without the posting of a fee schedule in the workplace. Lastly, the court also agrees with Appellants that whether Petitioners acted with reasonable care in protecting Respondents from unsafe, dangerous environments, or harm, is rife with triable issues of material fact which this court cannot resolve by only looking to the statute and without weighing the credibility of the admissible evidence provided.

Given the foregoing and viewing the evidence submitted in the light most favorable to Petitioners, the court finds several triable factual controversies exist and therefore finds summary adjudication is not warranted with regard to the TAA claims of the first, third, fourth, fifth, and ninth causes of action. As discussed above, Respondents contend a plain reading of the statute and evidence provided shows summary adjudication is warranted upon all of the above discussed grounds. However, the court rejects Respondents’ contentions, given the disputed facts and dueling evidence submitted by Petitioners.

Accordingly, summary adjudication is denied with respect to the TAA claims.

b.      Sixth Cause of Action: Breach of Fiduciary Duty

“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Stanley v. Richmond¿(1995) 35 Cal.App.4th 1070, 1086.)¿ 

Here, Respondents contend the sixth cause of action should be granted summary adjudication because “Petitioners’ charging producers ‘Booking Fees’ to hire their performer clients constitutes an unlawful breach of fiduciary duty.” (Motion, 28-29.) Respondents contend that “[r]egardless of how Petitioners attempt to describe Booking Fees,” they are nevertheless “in reality, fee splitting... unlawful ‘kickbacks’ and; as a matter of law, a prohibited ‘secret profit’ from the agency that constitutes a breach of fiduciary duty.” (Id.) However, Respondents fail to show supporting authority, or point to supporting evidence, to explain how such fees are “secret profits” or “kickbacks” as they claimed them to be. (Id.) Respondents contend such fees circumvent the “limitation on commissions earned” by the TAA, but again fail to provide support for such a contention. (Id.) While Respondents point to caselaw which states agents “are simply not permitted to take side profits from an agency relationship,” they merely contend Appellants “charged producers an additional (side) Booking Fee when they sought to hire each Doe,” without showing a lack of triable factual issues to that regard. (Motion, 29-30.)

In reply, Respondents also reiterate that the aforementioned fees were allegedly not disclosed in a fee schedule, and that the alleged Booking Fees were earned beyond what would be earned in the normal course of business. (Reply, 6-7.)

As this court has already found several triable issues exist with regards to the collection, propriety, and nature of the alleged fees, the court finds the sixth cause of action cannot be summarily adjudicated as well.

Given the foregoing and viewing the evidence submitted in the light most favorable to Petitioners, the court finds that Respondents have failed to demonstrate the absence of a triable issue of material fact. Specifically, the court again finds the Respondents have failed to show an absence of triable issue of material fact regarding whether the fees were retained by Petitioners, whether the Petitioners profited from such fees, the nature of the fees themselves, as well as how such fees circumvented relevant statutes, namely the TAA.

Accordingly, the court denies summary adjudication as to the sixth cause of action.

c.       Tenth Cause of Action: Breach of Contract

To state a claim for breach of contract, a Plaintiff must allege sufficient facts to establish: (1) a contract between the parties; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff from the breach.  (See e.g. Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178 (Wall Street).)  A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect.  (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.)  An allegation of an oral agreement must “set[] forth the substance of its relative terms.”  (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305.)   

Having found several triable issues of material fact exist regarding the language, formation, and provisions of the contracts between the parties, as well as the alleged breaches of the parties, the court thereby finds Respondents have also failed to demonstrate the absence of a triable issue of material fact with respect to the elements of the tenth cause of action for breach of contract.

Accordingly, the court denies summary adjudication with respect to the tenth cause of action.

Conclusion

Respondents’ motion for summary adjudication is denied. Appellants are to give notice.