Judge: Maurice A. Leiter, Case: 23STCV11308, Date: 2025-04-04 Tentative Ruling

Case Number: 23STCV11308    Hearing Date: April 4, 2025    Dept: 54

Hearing Date: April 4, 2025

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendants Sweety High, Inc., Frank Simonetti and Veronica Zelle

Responding Party: Plaintiff Jena Rose Raphael

T/R:      DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION IS DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 18, 2023, Plaintiff Jena Rose Raphael sued against Defendants Sweety High, Inc., Frank Simonetti, and Veronica Zelle, asserting causes of action for (1) violation of the Krekorian Talent Scam Prevention Act; (2) fraud; and (3) accounting. Plaintiff alleges that Defendants fraudulently collected advance fees for talent management services in violation of the Krekorian Talent Scam Prevention Act.

ANALYSIS

“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.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. First Cause of Action for Violation of the Krekorian Talent Scam Prevention Act

The Krekorian Talent Scam Prevention Act prohibits talent managers from collecting advance fees for management services. (Labor Code § 1702.1.) The Act defines “advance-fee talent representation services” in sections 1702 and bans them in 1702.1. Taken together, these sections prohibit a “talent service” from providing, offering, advertising, or representing that they can provide to an artist four enumerated services—so long as the artist pays a fee for (a) any of these four services; (b) “any product or service required for the artist to obtain” any of these four services through the “talent service”; or (c) photographs, web sites, “other reproductions or other promotional materials as an artist,” lessons, coaching, seminars, workshops, “or similar training for an artist.” The four enumerated services are found in section 1702.1(a):

(1) Procuring or attempting to procure an employment opportunity or an engagement as an artist.

(2) Procuring or attempting to procure an audition for an artist.

(3) Managing or directing the development of an artist’s career.

(4) Procuring or attempting to procure a talent agent or talent manager, including an associate, representative, or designee of a talent agent or talent manager.

The Act defines “talent agency” as a “person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists”—”except that the activities of procuring, offering, or promising to procure recording contracts for an artist or artists shall not of itself subject a person or corporation to regulation and licensing under [Chapter 4].” (§ 1700.4(a). Emphasis added.)

Defendants assert that the Act does not apply to the facts here because Defendant Sweety High, Inc. is not a talent service, but rather a music, marketing, and media company that operates record labels. Defendants present evidence showing they contracted to provide music promotion services in 2019 in exchange for $500,000.00. Defendants represent that this contract did not require Defendants to procure employment for Plaintiff. The contract also states that the parties would negotiate management services later. In 2020, Plaintiff contracted with affiliated entity 5^th of July for personal management services.

In opposition, Plaintiff asserts that Defendants are liable under section 1702.1(a)(3) of the act, which prohibits a talent company for charging upfront fees for “managing or directing the development of an artist’s career.” Plaintiff presents evidence showing Defendants advised nearly every decision she made regarding her career as a musical artist, that they chose the songs that she released and directed her music videos and photoshoots, introduced her to collaborators, and managed her day-to-day schedule, brand, and image. This is sufficient to create a triable issue of fact.

Defendants’ motion for summary judgment is DENIED. The motion for summary adjudication of the first cause of action is DENIED.

B. Second Cause of Action for Fraud

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.)

Defendants assert that Plaintiff’s claim for fraud fails because Defendants did not misrepresent any material facts. Plaintiff alleges that Defendants misrepresented the true costs of third-party services, including the cost of her acting classes, charging Plaintiff $300.00 per class when the instructor only charged $75.00 per class. Defendants assert that this not a “material” fact because the amount of money is minimal in comparison to the millions of dollars Plaintiff paid to Defendants over the relevant period. This does not defeat Plaintiff’s claim for fraud as a matter of law.

The motion for summary adjudication of the second cause of action is DENIED.

C. Third Cause of Action for Accounting

“The right to an accounting can arise from the possession by the defendant of money or property which, because of the defendant’s relationship with the plaintiff, the defendant is obliged to surrender.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179-80.) 

Defendants assert that Plaintiff is not entitled to an accounting because her damages can be ascertained without one. Defendants represent that they have produced documents showing third-party expenditures on the Project ($1,547,369.46), and the $1 million plus of expenditures on payroll during the Project. In opposition, Plaintiff asserts that Defendants’ own evidence and argument create a triable issue of fact as to accounting. Defendants assert that Plaintiff paid Defendants $2,635,448 as calculated by the Raphaels and $2,517,448 as calculated by Defendants. This discrepancy creates a triable issue of fact.

Defendants’ motion for summary adjudication of the third cause of action is DENIED.

Hearing Date: April 4, 2025

Department 54, Judge Maurice A. Leiter

Motion for Summary Adjudication

Moving Party: Plaintiff Jena Rose Raphael

Responding Party: Defendants Sweety High, Inc., Frank Simonetti and Veronica Zelle

T/R:      PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION IS DENIED.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 18, 2023, Plaintiff Jena Rose Raphael sued against Defendants Sweety High, Inc., Frank Simonetti, and Veronica Zelle, asserting causes of action for (1) violation of the Krekorian Talent Scam Prevention Act; (2) fraud; and (3) accounting. Plaintiff alleges that Defendants fraudulently collected advance fees for talent management services in violation of the Krekorian Talent Scam Prevention Act.

ANALYSIS

“In moving for summary judgment, a ‘plaintiff . . . has met’ his ‘burden of showing that there is no defense to a cause of action if’ he ‘has proved each element of the cause of action entitling’ him ‘to judgment on that cause of action.’”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (as modified (July 11, 2001).)  The plaintiff “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.”  (Id., at 851, original italics.)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  (CCP § 437c(p)(1).)  “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar, supra, 25 Cal.4th at 850.)  The 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.”  (CCP § 437c(p)(1).)

A. First Cause of Action for Violation of the Krekorian Talent Scam Prevention Act

The Krekorian Talent Scam Prevention Act prohibits talent managers from collecting advance fees for management services. (Labor Code § 1702.1.) The Act defines “advance-fee talent representation services” in sections 1702 and bans them in 1702.1. Taken together, these sections prohibit a “talent service” from providing, offering, advertising, or representing that they can provide to an artist four enumerated services—so long as the artist pays a fee for (a) any of these four services; (b) “any product or service required for the artist to obtain” any of these four services through the “talent service”; or (c) photographs, web sites, “other reproductions or other promotional materials as an artist,” lessons, coaching, seminars, workshops, “or similar training for an artist.” The four enumerated services are found in section 1702.1(a):

(1) Procuring or attempting to procure an employment opportunity or an engagement as an artist.

(2) Procuring or attempting to procure an audition for an artist.

(3) Managing or directing the development of an artist’s career.

(4) Procuring or attempting to procure a talent agent or talent manager, including an associate, representative, or designee of a talent agent or talent manager.

The Act defines “talent agency” as a “person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists”—”except that the activities of procuring, offering, or promising to procure recording contracts for an artist or artists shall not of itself subject a person or corporation to regulation and licensing under [Chapter 4].” (§ 1700.4(a). Emphasis added.)

Plaintiff moves for summary adjudication of the first cause of action. Plaintiff asserts that Defendants are liable under section 1702.1(a)(3) of the act which prohibits a talent company for charging upfront fees for “managing or directing the development of an artist’s career.” Plaintiff presents evidence showing Defendants advised nearly every decision she made regarding her career as a musical artist, that they chose the songs that she released and directed her music videos and photoshoots, introduced her to collaborators, and managed her day-to-day schedule, brand, and image.

In opposition, Defendants present evidence showing the Defendants contracted to provide music promotion services in exchange for $500,000.00 in 2019. Defendants represent that this contract did not require Defendants to procure employment for Plaintiff. The contract also states that the parties would negotiate management services later. In 2020, Plaintiff contracted with affiliated entity 5^th of July for personal management services. This is sufficient to create a triable issue of fact.

The motion for summary adjudication of the first cause of action is DENIED.