Judge Randolph M. Hammock, Case Number: 23STCV24100, Date: 2024-10-24 Tentative Ruling

This is a dispute between the two members of the musical group “Cobra Man.” Plaintiff Sarah Rayne alleges that her bandmate, Defendant Andrew Harris, took the band’s trademark, withdrew funds from the Band’s bank account(s), and locked Plaintiff out of the Band’s social media accounts. Additionally, Plaintiff alleges that Defendant Harris and the Band’s management—Defendants Shelter Music Group, Dino Paredes, and Derek Brewer—have attempted to force Plaintiff out of the Band. Plaintiff asserts causes of action for (1) breach of contract, (2) breach of fiduciary duty, (3) conversion, (4) fraud, (5) declaratory relief, and (6) involuntary dissolution.

Defendant Harris has filed a Cross-Complaint against Rayne, alleging that Rayne fraudulently incorporated Cobra Man, LLC, and represented that she was CEO of the Company and 50% owner. Defendant Harris also alleges that Rayne defamed him. Harris asserts causes of action against Rayne for (1) fraud, (2) breach of fiduciary duty, (3) breach of contract, (4) trademark infringement, and (5) defamation.

Harris has submitted objections to the declaration of Sarah Rayne. This court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)) or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

As such, the court respectfully declines to rule on these objections. The court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

Plaintiff Sarah Rayne moves the court to appoint a receiver over property and monies allegedly owed to Plaintiff through the Band’s business partnership, which are currently in the possession of Defendant Andrew Harris. [FN 1]

(1) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to the creditor's claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds of the property or fund, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.

In this dispute over the rights to the band Cobra Man, Plaintiff accuses Harris of absconding with the Band’s social media accounts, equipment and studio gear, and looting the band bank account to the tune of $40,000. (Rayne Decl. ¶¶ 11-13.) She argues that the “prompt appointment of a receiver is necessary to preserve [her] ability recover all proceeds due” and to “ensur[e] the assets are protected during the pendency of this litigation.” (Mtn. 3: 8-9.)

Harris opposes the motion. He argues that a receiver is unnecessary because the Cobra Man LLC has “nominal assets,” and because he has “maintained the status quo” with the property he currently possesses.

Here, the moving party has not demonstrated that the band’s property—be it equipment, IP, social media or bank accounts—is “in danger of being lost, removed, or materially injured” (CCP § 564(b)(1)), or that a receiver is “necessary to preserve the property or rights” of Rayne. (CCP § 564(b)(9).) To the extent Harris might possess or control the property in dispute, there is no compelling evidence it’s at risk of harm or loss.

The parties can dispute whether the Band’s assets are “nominal” or not, but the fact is this is not an action where a receiver is necessary. The appointment of a receiver is a “‘drastic,’ ‘harsh,’ and costly remedy that is to be ‘exercised sparingly and with caution.” (Medipro Medical Staffing LLC v. Certified Nursing Registry, Inc. (2021) 60 Cal.App.5th 622, 628.) Indeed, “[d]ue to the ‘extraordinary’ nature of this remedy and the special costs it imposes, courts are strongly discouraged – although not strictly prohibited – from appointing a receiver unless the more intrusive oversight of a receiver is a ‘necessity’ because other, less intrusive remedies are either ‘inadequate or unavailable.’” (Ibid.) Because a receivership is an equitable remedy, there must be a showing of irreparable injury and inadequacy of other remedies. (Alhambra-Shumway Mines v. Alhambra Gold Mine Corp. (1953) 116 Cal.App.2d 869, 872.) These factors do not exist here.

Defendant Harris asks for attorney’s fees and costs against Rayne under CCP § 128.5 or 128.7. That request is DENIED. This court expressly finds the motion was not made in bad faith, nor was it frivolous or solely intended to cause unnecessary delay.

Judge of the Superior Court

FN 1 - In addition to the order appointing receiver, Plaintiff “also moves for the court to order Plaintiff (i) take possession of the jointly owned band/business Cobra Man LLC’s (“Cobra Man”) current and future cash assets and payment intangibles, and to assume and pursue, as appropriate, its claims and rights to payment; (ii) issuing a preliminary injunction against Harris in aid of the Receiver; and (ii) setting a show cause hearing regarding confirmation of appointment of receiver in aid of receiver and preliminary injunction in aid of receiver.” (See Notice of Motion.) Because the motion to appoint a receiver is denied, Plaintiff’s additional requests are also denied.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.