Judge Michael E. Whitaker, Case Number: 21SMCV00498, Date: 2024-01-04 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21SMCV00498, Date: 2024-01-04 Tentative Ruling

Defendants Infinity Films Holdings, LLC; Michael Ohoven; and Brandon Farm, LLC

This case arises from a dispute concerning the production and distribution of the fourth movie in the “Jeepers Creepers” movie franchise. Plaintiff Myriad Pictures, Inc. (“Plaintiff”) moves for summary adjudication on the single issue of whether Defendants Infinity Films Holdings, LLC (“Infinity”) and Brandon Farm, LLC (“Brandon”) owed a contractual duty to Plaintiff of the right of first negotiation and last refusal to be the exclusive sales representative on projects Infinity and Brandon control which are based on the “Jeepers Creepers” motion picture franchise.

Oppositions were filed on behalf of three groups of Defendants: (1) Infinity, Brandon, and Defendant Michael Ohoven (“Ohoven”); (2) Defendants Jake Seal (“Seal”), PVS Studios, LLC (“PVS”), and Orwo Film Distribution, LLC (“Orwo”); and (3) Independent Frame, LLC (“Independent”). Plaintiff has filed a consolidated reply.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (hereafter Aguilar).) ¿“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)

Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Aguilar, supra, 25 Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) Additionally, in line with Aguilar, “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

Plaintiff requests the Court take judicial notice of the January 12, 2022 Notice of Motion for Judgment on the Pleadings.

Judicial notice may properly be taken of records of any court in this state. (Evid. Code, § 452, subd. (d)(1).) However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].)

Accordingly, the Court takes judicial notice of the existence of the January 12, 2022 Notice of Motion for Judgment on the Pleadings, but not the truth of the allegations or arguments contained therein.

Defendants Jack Seal’s, PVS Studios’, and Orwo Film’s Request for Judicial Notice

Defendants Jack Seal (“Seal”), PVS Studios, LLC (“PVS”), and Orwo Film Distribution, LLC (“Orwo”) (collectively, the “Seal Defendants”) request the Court to take judicial notice of the U.S. Trademark registration of Jeepers Creepers, November 19, 2023, and as renewed thereafter.

Evidence Code section 452, subdivision (c) permits courts to take judicial notice of “Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” However, “materials prepared by private parties and merely on file with the state agencies” may not be properly judicially noticed as an official act of a legislative, executive, or judicial department of the United States or any state of the United States. (People v. Thacker (1985) 175 Cal.App.3d 594, 598.)

Because the U.S. Patent and Trademark Office must approve registrations before they become active, the Court therefore takes judicial notice of the U.S. Trademark registration of Jeepers Creepers, and the legal effect thereof, as an official act of the executive department of the United States, pursuant to Evidence Code section 452, subdivision (c) and as a fact confirmable from a source of reasonably indisputable accuracy, pursuant to subdivision (h).

Independent requests the Court to take judicial notice of the California Secretary of State website, indicating that Scoundrel Media, LLC was suspended by and is not in good standing with both the Secretary of State and Franchise Tax Board and has been inactive since May 9, 2018.

Official notices, statements, and certificates made by the Secretary of State and by the Franchise Tax Board are properly the subject of judicial notice as documents reflecting official acts of the executive department of the State of California pursuant to Evidence Code section 452, subdivision (c). (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483–1484.) However, “materials prepared by private parties and merely on file with the state agencies” may not be properly judicially noticed as an official act of a legislative, executive, or judicial department of the United States or any state of the United States. (People v. Thacker, supra, 175 Cal.App.3d at p. 598.)

Here, Independent requests the Court take judicial notice of the Secretary of State website listing the entity’s status as suspended with the Secretary of State and Franchise Tax Board, with an inactive date of May 9, 2018, which constitutes an act of the executive department of the State of California, and is therefore properly the subject of judicial notice.

Therefore, the Court grants Independent’s request and takes judicial notice of the Secretary of State’s website entry for Scoundrel Media, LLC.

The Court rules as follows with respect to Independent’s evidentiary objection to Plaintiff’s evidence: Overruled.

“[T]he concept of duty in contract law may refer both to an overall contractual obligation or to a requirement of performance under an agreement,” and “[t]he existence and scope of a duty is a question of law for the court.”) (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 518, citation omitted.) Further, “[i]f, under the facts and circumstances of a given case, a court finds it appropriate to determine the existence or non-existence of a duty in the nature of a contractual obligation, it may properly do so by a ruling on that issue presented by a motion for summary adjudication.” (Id. at p. 519.)

Plaintiff has produced a copy of the February 16, 2017 Term Sheet between Scoundrel Media LLC (“Scoundrel”) on the one hand and Infinity and Brandon on the other hand, indicating:

In the event Producer is [sic] controls the right to any subsequent productions, Scoundrel shall be provided a right of first negotiation and last refusal consistent with the October 24, 2001 agreements as between Myriad Pictures, Inc. and Independent Frame LLC to act as the exclusive sales representative in the Territory with respect to the exploitation of any subsequent productions based upon the Picture (e.g., sequel, prequel, remake, spinoff, and/or television series rights) to be a “rolling right” (as such term is customarily used in the entertainment industry).

Notwithstanding the above, Myriad Picture’s ongoing rights to subsequent productions shall remain in effect in accordance with the October 24, 2001 agreements as between Myriad Pictures, Inc. and Independent Frame LLC.

Plaintiff has also produced a copy of the December 18, 2018 Assignment of Scoundrel’s rights under the Term Sheet from Scoundrel to Myriad. (See D’Amico Decl. ¶ 2 and Ex. B.)

Plaintiff has further produced a copy of email correspondence from Michael Ohoven at Infinity to Kirk D’Amico of Myriad, indicating “Please see attached offer I received for the next two Jeepers. I didn’t have the chance to review our agreement with you thoroughly yet but I know you always have matching rights.” (D’Amico Decl. ¶ 3 and Ex. C.)

Plaintiff has also produced a copy of a letter from the Law Offices of Lee Sacks, on behalf of Infinity, to Mr. D’Amico, on behalf of Myriad, indicating, “This letter is provided to Myriad Pictures (“Myriad”) in connection with Myriad’s right of First Negotiation and last refusal to act as the exclusive sales representative of any subsequent productions based upon Jeepers Creepers 3 (“the Picture”) as set forth in the Term Sheet [….]” (D’Amico Decl. ¶ 4 and Ex. D.) Attached to the Letter is a copy of Orwo’s offer to market, sell and distribute Jeepers Creepers 4 & 5 (defined in the letter as “Subsequent Productions”) and a copy of the script and deck synopsis for Jeepers Creepers 4 “Reborn.” (Ibid.) The letter further indicates: “The foregoing information and attachments are adequate information for Myriad to assess whether it intends to exercise its right of last refusal to act as the exclusive sales representative for Jeepers Creepers 4.” (Ibid.)

Plaintiff has also attached as exhibits to the Paredes declaration, various correspondences indicating that Infinity did not want Myriad promoting the film, and proposing strategies to “deal with” Myriad to “go away.”

Defendants Infinity, Brandon, and Ohoven have provided the declaration of Michael Ohoven, which indicates as follows:

a. Scoundrel, had a "right of first negotiation and last refusal consistent with the October 24, 2001, agreement between Myriad Pictures, Inc., and Independent Frame ("IFL Agreement"), to act as the exclusive sales representative in the Territory with respect to the exploitation of any subsequent productions based upon the Picture .... "

b. Further, at or about the time I executed the proposed Scoundrel Term Sheet, Mr. D'Amico provided me with a copy of a Term Sheet for Exclusive Sales Representation between Plaintiff and Odyssey Media Releasing (US) Inc. (the "Odyssey Term Sheet") which did provide for the first right of negotiation and last right of refusal to Myriad, which was a party to the IFL Agreement. Again, Mr. D' Amico falsely, or negligently, represented to me that Scoundrel, had the same rights as Myriad under the IFL Agreement. Mr. D'Amico asked me to include the same language in the proposed Scoundrel Term Sheet, as appeared in the Odyssey Term Sheet. I agreed to do so only because I have known, and trusted, Mr. D' Amico for many years and accepted his representation.

c. Mr. D' Amico, either intentionally or by negligent omission, failed to provide me with a copy of the IFL Agreement. Had I been provided with a copy of the IFL Agreement, I would have ascertained that Scoundrel was not a party to the IFL Agreement and would not have agreed to provide Scoundrel with the rights of the first negotiation and last refusal.

d. Although, I executed the proposed Scoundrel Term Sheet on or about February 16, 2017, I later learned the representation by Mr. D'Amico set forth above was false. In fact, Scoundrel was not a party to the IFL Agreement and did not have the rights of first negotiation and last refusal referenced above.

e. All of the correspondence, e-mails and communications that I sent to Mr. D' Amico, the other Defendants in this litigation and third parties concerning the purported rights of first negotiation and last refusal held by Scoundrel pursuant to the proposed Scoundrel Term Sheet were based upon the false, and/or negligent, representation of Mr. D' Amico referenced above. Had I been provided with the IFL Agreement, I would have ascertained that such rights, to the extent such rights existed as of the execution of the Scoundrel Term Sheet, were held by Myriad (and not Scoundrel) and those rights were conditioned upon the satisfaction of numerous factors, which based upon information subsequently provided to me, were not satisfied.

f. The Assignment Agreement dated December 18, 2018 (the “Effective Date”) attached as Exhibit “B” to the D’Amico Declaration purported drafted ten (10) months after I executed the Scoundrel Term Sheet, confirmed that Scoundrel, did not have the rights of first right of negotiation and last right of refusal referenced above. Once again, D’Amico chose not to provide me with a copy of the Assignment Agreement, either intentionally or by negligent omission. Consequently, I did not accept the Assignment Agreement. As a result, in my view IFH and BF never formed a contractual relationship with Myriad or Scoundrel. I am also informed by IFL that the proposed Scoundrel Term Sheet or the Assignment Agreement, were not provided to, nor approved by, IFL.

g. Had I been provided with the IFL Agreement, I, or my counsel, would have noticed that Scoundrel did not have the first and last rights under the IFL Agreement and I would not have included that language in the proposed Scoundrel Term Sheet for Scoundrel to serve as the Sales Representative for the Picture, nor would I have written any communications or correspondence to Plaintiff or anyone involved with the Picture confirming Scoundrel’s “purported rights of first and last negotiation.”

Therefore, Infinity, Brandon, and Ohoven have produced evidence that Mr. D’Amico made a material misrepresentation to Mr. Ohoven, either intentionally or negligently, that may have fraudulently induced Mr. Ohoven to include the first right of negotiation and last right of refusal term in the Scoundrel Term Sheet. They have also produced evidence casting doubt on the validity of the Assignment of rights from Scoundrel to Plaintiff. As such, disputed issues of material fact concerning the validity of both the Term Sheet and the Assignment preclude the Court from granting Plaintiff’s motion for summary adjudication.

Independent has also provided an excerpt from Mr. D’Amico’s deposition testimony indicating that Scoundrel was never a party to the October 24, 2001 agreement, nor were the rights under that agreement ever subsequently assigned to Scoundrel, which corroborates the Ohoven declaration. (See Valentine Decl. ¶ 2 and Ex. B.)

Furthermore, Independent has provided additional evidence, through its request for judicial notice, indicating that Scoundrel had been an inactive entity for over seven months when it entered into the December 18, 2018 Assignment agreement. Therefore, Independent has created an additional disputed issue of material fact with regard to the validity of the Assignment.

Plaintiff argue in reply that the only evidence offered in opposition to the motion are “self-serving” declarations that contradict deposition testimony and other documents submitted in support of the Motion. The Court disagrees. The Ohoven declaration provides sufficient detail of outside facts, including about the October 24, 2001 Agreement, and is corroborated by the D’Amico deposition testimony excerpt provided by Independent to elevate it beyond a mere sham affidavit. Thus, whether and the extent to which Mr. Ohoven’s declaratory narrative can ultimately be reconciled with the totality of the deposition testimony and correspondence evidence is an issue for the trier of fact to resolve. Moreover, Scoundrel’s inactive date on the Secretary of State website is additional non-declaratory evidence that creates a genuine issue of material fact regarding the validity of the Assignment agreement.

Plaintiff also provides additional evidence, exhibits purportedly filed conditionally under seal, in support of the Reply. The Court declines to consider that evidence as Defendants have not had an opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)

Considering the competent evidence proffered by Plaintiff and Defendants, and viewing said evidence most favorably to Defendants, the Court finds that genuine issues of material fact preclude granting Plaintiff’s motion for summary adjudication. Specifically, the Court finds that there exists factual issues related to whether Infinity and Brandon owed a contractual duty to Plaintiff of the right of first negotiation and last refusal to be the exclusive sales representative on projects Infinity and Brandon control which are based on the “Jeepers Creepers” motion picture franchise. Consequently, the Court cannot determine as a matter of law that Plaintiff was owed a contractual duty as argued.

Therefore, the Court denies Plaintiff’s motion for summary adjudication. The Court orders Plaintiff to give notice of the Court’s ruling, and to file a proof of service of such.

[1] Plaintiff filed several exhibits “conditionally under seal,” however Plaintiff has not filed a motion to seal any documents in connection with this Motion. As such, the Court is inclined to unseal all exhibits filed conditionally under seal. Alternatively, because the Court does not find any of the sealed documents material to the disposition of this Motion, Plaintiff may also withdraw these exhibits, to prevent their public disclosure.

[2] Defendants Jack Seal, PVS Studios, LLC and Orwo Films Distribution, LLC did not comply with California Rules of Court, rule 3.1350(e), in filing an opposition separate statement. As such, the Court finds the opposition of said Defendants to be procedurally defective.

[3] See footnote 1.

DEPARTMENT	207
HEARING DATE	January 4, 2024
CASE NUMBER	21SMCV00498
MOTION	Motion for Summary Adjudication
MOVING PARTY	Plaintiff Myriad Pictures, Inc.
OPPOSING PARTIES	1. Defendants Infinity Films Holdings, LLC; Michael Ohoven; and Brandon Farm, LLC; 2. Defendants Jake Seal, PVS Studios, LLC, and Orwo Film Distribution, LLC; 3. Independent Frame, LLC