Judge Upinder S. Kalra, Case 19STCV06482 2023-02-08 Tentative Ruling

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MOVING PARTY: Defendants DMG Entertainment, LLC, DMG Entertainment Holding, LLC, and DMG Management Services, Inc., Daniel Mintz, and Bing Wu

RESPONDING PARTY(S): Notice of Joinder to Motion to Seal filed by Christopher Fenton

1. An order granting the motion to seal certain exhibits filed concurrently with the Motion for Summary Judgment.

On February 25, 2019, Plaintiff Christopher Fenton (“Plaintiff”) filed a complaint against Defendants DMG Entertainment, LLC; DMG Entertainment Holding, LLC; DMG Management Services, Inc.; New Asia Success Partners Limited; Healthy Soar Investment Limited; Daniel Mintz, Bing Wu, and Peter Xiao (“Defendants.”) The complaint alleged seven causes of action for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) promissory estoppel; (4) promissory fraud; (5) constructive discharge; (6) retaliation in violation of Labor Code, § 1102.5; and (7) unfair business practices in violation of Business & Professions Code, §§ 17200, et seq. (the Unfair Competition Law, “UCL”).

Plaintiff alleges that he is the former President of DMG Entertainment Motion Picture Group and General Manager of DMG North America, and that he worked with the DMG entities in various senior level or representative capacities over the course of 17 years, until the end of his employment in or about February 2018. Plaintiff alleges that he originally began working with Defendants while working as a talent agent at William Morris, but that he left William Morris to establish his own entertainment company, H2F Entertainment, Inc. (“H2F”). According to Plaintiff, he continued to independently operate H2F with the DMG entities’ knowledge and approval, even after becoming the General Manager of DMG North America in January 2004.

Mintz allegedly approached Plaintiff about purchasing H2F in the summer of 2012 and hired Plaintiff to work full-time for DMG. During the purchase negotiations, Mintz and Wu allegedly promised to compensate Plaintiff with a bonus in the event the DMG entities made an initial public offering. Plaintiff specifically alleges that Mintz promised Plaintiff that DMG would “take care of him nicely in the event of an IPO” in consideration for Plaintiff’s agreement to sell H2F and to work full-time for the DMG entities.

The parties allegedly agreed to the terms of the purchase and the sale in two phases. First, Plaintiff allegedly entered into an “Agreement for Purchase of Sale and Stock” with the DMG entities through New Asia and DMG (Hong Kong) Group Ltd. (the “First Stock Purchase Agreement”) whereby the DMG entities allegedly agreed to purchase 49.9% of H2F from Plaintiff for $1,000,000. Second, Plaintiff allegedly entered into a second stock purchase agreement on November 18, 2013 through New Asia (the “Second Stock Purchase Agreement”) whereby he allegedly agreed to sell his remaining 50.1% interest in exchange for $4,020,000 to be paid over the course of five years. As part of the same transaction, Plaintiff also allegedly entered into a separate agreement with New Asia dated November 18, 2018 which set forth the terms of Plaintiff’s full-time employment with the DMG entities from 2003 to 2017 (the “Employment Agreement”).

In or around April 2014, The DMG entities allegedly announced they were planning a “back-door” IPO through a reverse merger agreement with an entity named Sichuan Gaojin Food (“SGF”). The DMG entities allegedly completed the IPO on or about November 14, 2014, when SGO issued 897.5 million shares to the owners of DMG, and the DMG entities’ shares allegedly closed with a first day value of roughly $3 billion United States dollars. Defendants allegedly did not compensate Plaintiff in connection with the IPO despite allegedly stating that they would on numerous occasions between 2015 and 2017.

According to Plaintiff, Defendants engaged in financially questionable activity after the IPO and he voiced his concerns to Mintz regarding the stock activity. Plaintiff further alleges that he demanded that Mintz honor the terms of the Employment Agreement and compensate him following the successful launch of the IPO, toward the end of 2017 when he was due to negotiate the terms of his ongoing employment with the DMG entities. Plaintiff’s negotiations with the DMG entities and Mintz allegedly made clear that the DMG entities would not pay Plaintiff bonuses for the IPO or his performance bonus, and Plaintiff alleges that he was compelled to resign on February 23, 2018.

On April 2, 2019, Defendants DMG Entertainment, LLC; DMG Entertainment Holding, LLC; DMG Management Services, Inc. filed a Demurrer with Motion to Strike.

On April 11, 2019, Defendants DMG Entertainment, LLC; DMG Entertainment Holding, LLC; DMG Management Services, Inc. filed a Cross-Complaint against Christopher Felton.

On May 24, 2019, Defendants DMG Entertainment, LLC; DMG Entertainment Holding, LLC; DMG Management Services, Inc. filed an Answer.

On June 5, 2019, Defendants DMG Entertainment, LLC; DMG Entertainment Holding, LLC; DMG Management Services, Inc. filed a First Amended Cross-Complaint against Christopher Felton.

The Current Motion to Seal Records was filed on November 9, 2022. No Opposition has been filed. On January 20, 2023, Plaintiff filed a joinder in the application to seal designated documents.

California law authorizes the sealing of court records containing confidential information. (NBC Subsidiary, Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, n. 46.) California Rules of Court Rule 2.551(a) provides that a record may not be filed under seal without a court order and the court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties. (Cal. Rules of Court, rule 2.551(a).) The party requesting a record be filed under seal must file a motion or an application for an order sealing the record that is accompanied by a memorandum or declaration containing facts to justify the sealing. (Id., rule 2.551(b)(1).) “The court may order that a record be filed under seal” if it finds that there is an overriding interest in favor of maintaining the confidentiality of the information. (Id., rule 2.550(d).)

The factual findings requires to seal records require the court to expressly find that (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest. (Cal. Rules of Court, rule 2.550(d)(1)-(5).)

The Supreme Court identified in NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal.4th 1178 the following examples of overriding interests:

1) protection of minor victims of sex crimes from further trauma and embarrassment;
2) privacy interests of a prospective juror during individual voir dire;
3) protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify;
4) protection of trade secrets;
5) protection of information within the attorney-client privilege;
6) enforcement of binding contractual obligations not to disclose;
7) safeguarding national security;
8) ensuring the anonymity of juvenile offenders in juvenile court; and
9) ensuring the fair administration of justice by preserving confidential investigative information.

(NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal.4th 1178, 1222 fn. 46.)

Defendants move to have Exhibits C, D, E, F, G, I J and L, which are attached to their Motion for Summary Judgment, or alternatively, Motion for Summary Adjudication, sealed.

Defendants contend that good cause exists to seal these records. These documents contain private corporate information and would violate Defendant DMG’s privacy rights as they contain sensitive information regarding DMG, which is a non-public company. Moreover, Defendants will be prejudiced if the documents are not sealed, and the request is narrowly tailored as it only excerpts of deposition transcripts.

The Court finds that the sealing of these documents is appropriate. The Court finds that all five factors under Rules of Court, Rule 2.550(d)(1)-(5).) have been met. First, there exists an overriding interest as these documents contain confidential information about DMG, a non-public company. Second, there is an overriding interest in preventing public access to this private information since DMG is a private business. Third, if not sealed, there is a probability that Defendant will suffer prejudice, as DMG’s competitors could gain insight and unfair strategic advantages with this information to the detriment of DMG. Fourth, this is narrowly tailored as it only requests certain portions of the Chang Declarations, which includes 8 Exhibits. Lastly, there is no less restrictive means, as the request pertains to only specific portions of the deposition transcripts.

MOVING PARTY: Defendants DMG Entertainment, LLC, DMG
Entertainment Holding, LLC, and DMG Management Services, Inc., Daniel Mintz,
and Bing Wu

1. An
order granting summary judgment, or alternatively, summary adjudication, as to
the 1^st, 3^rd, 4^th, 5^th, 6^th,
and 7^th causes of action

2. Summary
Adjudication is DENIED, as to 1^st, 3^rd, 4^th, and
7^th causes of action.

On February 25, 2019, Plaintiff Christopher Fenton (“Plaintiff”)
filed a complaint against Defendants DMG Entertainment, LLC; DMG Entertainment
Holding, LLC; DMG Management Services, Inc.; New Asia Success Partners Limited;
Healthy Soar Investment Limited; Daniel Mintz, Bing Wu, and Peter Xiao
(“Defendants.”) The complaint alleged seven causes of action for: (1) breach of
contract; (2) breach of the covenant of good faith and fair dealing; (3)
promissory estoppel; (4) promissory fraud; (5) constructive discharge; (6)
retaliation in violation of Labor Code, § 1102.5; and (7) unfair business
practices in violation of Business & Professions Code, §§ 17200, et seq. (the Unfair Competition Law,
“UCL”).

Plaintiff alleges that he is the former President of DMG
Entertainment Motion Picture Group and General Manager of DMG North America,
and that he worked with the DMG entities in various senior level or
representative capacities over the course of 17 years, until the end of his
employment in or about February 2018. Plaintiff alleges that he originally
began working with Defendants while working as a talent agent at William
Morris, but that he left William Morris to establish his own entertainment
company, H2F Entertainment, Inc. (“H2F”). According to Plaintiff, he
continued to independently operate H2F with the DMG entities’ knowledge and
approval, even after becoming the General Manager of DMG North America in
January 2004.

Mintz allegedly approached Plaintiff about purchasing H2F
in the summer of 2012 and hired Plaintiff to work full-time for DMG.
During the purchase negotiations, Mintz and Wu allegedly promised to compensate
Plaintiff with a bonus in the event the DMG entities made an initial public
offering. Plaintiff specifically alleges that Mintz promised Plaintiff
that DMG would “take care of him nicely in the event of an IPO” in
consideration for Plaintiff’s agreement to sell H2F and to work full-time for
the DMG entities.

The parties allegedly agreed to the terms of the purchase
and the sale in two phases. First, Plaintiff allegedly entered into an
“Agreement for Purchase of Sale and Stock” with the DMG entities through New
Asia and DMG (Hong Kong) Group Ltd. (the “First Stock Purchase Agreement”)
whereby the DMG entities allegedly agreed to purchase 49.9% of H2F from
Plaintiff for $1,000,000. Second, Plaintiff allegedly entered into a
second stock purchase agreement on November 18, 2013 through New Asia (the
“Second Stock Purchase Agreement”) whereby he allegedly agreed to sell his
remaining 50.1% interest in exchange for $4,020,000 to be paid over the course
of five years. As part of the same transaction, Plaintiff also allegedly
entered into a separate agreement with New Asia dated November 18, 2018 which
set forth the terms of Plaintiff’s full-time employment with the DMG entities
from 2003 to 2017 (the “Employment Agreement”).

In or around April 2014, The DMG entities allegedly
announced they were planning a “back-door” IPO through a reverse merger
agreement with an entity named Sichuan Gaojin Food (“SGF”). The DMG entities allegedly completed
the IPO on or about November 14, 2014, when SGO issued 897.5 million shares to
the owners of DMG, and the DMG entities’ shares allegedly closed with a first
day value of roughly $3 billion United States dollars. Defendants allegedly
did not compensate Plaintiff in connection with the IPO despite allegedly
stating that they would on numerous occasions between 2015 and
2017.

According to Plaintiff, Defendants engaged in financially
questionable activity after the IPO and he voiced his concerns to Mintz
regarding the stock activity. Plaintiff further alleges that he demanded
that Mintz honor the terms of the Employment Agreement and compensate him
following the successful launch of the IPO, toward the end of 2017 when he was
due to negotiate the terms of his ongoing employment with the DMG
entities. Plaintiff’s negotiations with the DMG entities and Mintz
allegedly made clear that the DMG entities would not pay Plaintiff bonuses for
the IPO or his performance bonus, and Plaintiff alleges that he was compelled
to resign on February 23, 2018.

On April 2, 2019, Defendants DMG Entertainment, LLC; DMG Entertainment
Holding, LLC; DMG Management Services, Inc. filed a Demurrer with
Motion to Strike.

On April 11, 2019, Defendants DMG Entertainment, LLC; DMG Entertainment
Holding, LLC; DMG Management Services, Inc. filed a
Cross-Complaint against Christopher Felton.

On May 24, 2019, Defendants DMG Entertainment, LLC; DMG Entertainment
Holding, LLC; DMG Management Services, Inc. filed an Answer.

On June 5, 2019, Defendants DMG Entertainment, LLC; DMG Entertainment
Holding, LLC; DMG Management Services, Inc. filed a First Amended
Cross-Complaint against Christopher Felton.

On November 9, 2022, Defendants DMG Entertainment, LLC; DMG Entertainment
Holding, LLC; DMG Management Services, Inc., Daniel Mintz and Bing Wu filed the
current Motion for Summary Judgment, or alternatively, Motion for Summary
Adjudication. Plaintiff’s Opposition was filed on January 9, 2023. Defendants’
Reply was filed on February 1, 2023.[1]

Overrules: Objections
Nos. 1, 3, 5-7, 9-10, 14-28, 30-31, 33-34, 37-46, 48, 50

The court declines to rule on the
remaining objections, Nos. 51 through 144 as immaterial. (Code Civ. Proc., § 437c, subd. (q).)

1.
Statements
of information of H2F Entertainment, Inc. (Plaintiffs Exhibit No. 37)

3.
Document
64 in United States District Court Case No. 1 :16:-cv-02499-JPO (Plaintiffs
Exhibit No. 38)

9.
Decision
on Disciplinary Action dated April 8, 2019 (Plaintiffs Exhibit No. 54)

11.
Announcement
on the Termination of Listing of Shares of Yinj i Entertainment Media Co. Ltd.
(Plaintiffs Exhibit No. 56)

12.
The
pleading of Defendants/Cross-complainants DMG Entertainment, LLC, DMG
Entertainment, LLC and DMG Management Services, Inc., in their First Amended
Cross-Complaint dated June 5, 2019, at 1:1-3, 1:7-9, and 2:2-5, to wit: “For
their Cross Complaint, Cross-Complainants DMG Entertainment, LLC, DMG
Entertainment Holding, LLC, and DMG Management Services, Inc., (collectively
“Cross-Complainants” or “DMG CC”), allege as follows 1.…. Cross-Complainant DMG
CC is a U.S. division of a globally recognized media and entertainment company.
Cross-Defendant Christopher Fenton (“Fenton” or “Cross-Defendant” was hired to
oversee DMG CC’s U.S. operations….. 3. DMG CC, based and operated in Beverly
Hills, is a U.S. division of a successful global media and entertainment
company with an impressive roster of worldclass intellectual property, diverse
holdings and operations across motion pictures, television, comic book
publishing, gaming, next-gen technology, and location-based entertainment.”

Request for Judicial Notice is
DENIED. Plaintiff failed to provide a reasoning as to why these documents
should be granted or how they are subject to Evidence Code § 451 and 452. As
Defendants argue, it is also apparent that Plaintiff is attempting to have the
court take judicial notice of these documents for the truth of the matter.

The purpose of a motion for summary
judgment or summary adjudication “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.) “Code of Civil Procedure section 437c,
subdivision (c), requires the trial judge 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.)

“On a motion for summary judgment,
the initial burden is always on the moving party to make a prima facie showing
that there are no triable issues of material fact.” (Scalf
v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for
summary judgment or summary adjudication “has met his or her burden of showing
that a cause of action has no merit if the party has shown that one or more
elements of the cause of action . . . cannot be established, or that there is a
complete defense to the cause of action.”
(Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has
met that burden, the burden shifts to the plaintiff or cross-complainant to
show that a triable issue of one or more material facts exists as to the cause
of action or a defense thereto.” (Code
Civ. Proc., § 437c, subd. (p)(2).) “If
the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical
Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary
judgment, the court must consider all of the evidence set forth in the papers
(except evidence to which the court has sustained an objection), as well as all
reasonable inferences that may be drawn from that evidence, in the light most
favorable to the party opposing summary judgment.” (Id. at
p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendants move for summary
adjudication as to the 1^st, 3^rd, 4^th, 5^th,
6^th, and 7^th causes of action.

“A cause of action for damages for
breach of contract is comprised of the following elements: (1) the contract,
(2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s
breach, and (4) the resulting damages to plaintiff.” (Daniels
v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4^th 1150,
1173.)

Defendants contend that the first
cause of action is based upon a provision contained in the “Other Arrangements
Letter” that identifies a potential IPO payout and a contribution bonus:

“DMG agrees in good faith that
Fenton ‘shall be taken care of nicely’ in the event of an initial public
offering of DMG. DMG also recognizes and agrees in good faith that Fenton shall
be paid bonuses for his contributions to DMG, the amount of such bonuses to be
determined by DMG.”(UMF 19.)

Defendants argues that this cause
of action fails because both the IPO payout and the contribution are
unenforceable as a matter of law.[2] Two cases are instructive.

In Moncado v. West Coast Quartz (2013) 221
Cal.App.4^th 768, 777 (Moncado),
defendants told plaintiffs that if they remained as employees, defendant
promised to award “bonuses that would be sufficient for plaintiffs to retire.” Defendants
contended that such a promise was “vague and unenforceable, because it is an unspecified
amount and subject to different interpretations.” (Id. at p. 778.) The trial court sustained the Demurrer. (Id. at p. 772.) The Court of Appeal
reversed the trial court’s order, concluding that the promise was not vague,
but rather “was clear and definite: continuing working . . .
and we will pay you a bonus that will enable you to retire.” (Id. at p. 779.) Moncado relied upon a post judgment affirmance of a jury award in

Sabatini v. Hensley (1958) 161 Cal.App.2d 172 (Sabatini). There, plaintiff contended
that after he started employment, he was promised bonuses in addition to his
salary. (Id. at p. 174.) Defendant
argued that the promise was not express or definite. (Id. at p. 175.)The Court of Appeal rejected this contention recognizing:
"When an employer promises a prospective employee a fixed salary and an
indeterminate bonus, each promise is made to induce undertaking of the
employment. Acceptance of the employment is consideration for the promise of a
bonus, and this promise thus is enforceable." (Ibid.) As the Sabatini
Court explained: "The failure to specify the amount or a formula for
determining the amount of the bonus does not render the agreement too
indefinite for enforcement. It is not essential that the contract specify the
amount of the consideration or the means of ascertaining it. (Civ. Code, 1610.)
Where no standard is specified, the consideration shall be the reasonable
worth. (Civ. Code, 1611.) Under an agreement to pay a fixed salary and an
unspecified bonus, the amount of the bonus is the excess, if any, of the
reasonable value of the services over the agreed salary. [Citations.]" (Ibid.)

This Court sees no discernable
difference between the promise to pay a bonus here and the promises to pay bonuses
in Moncado and Sabatini. Defendants use of mandatory
language —“shall” — indicates that they acknowledged that they were obligated
to pay Plaintiff bonuses. In doing so, the Court rejects Defendants argument
that awarding the bonus was discretionary. What may have been discretionary,
however, was the amount of the bonuses. And just like in Moncado and Sabatini, if only
the future amounts of the bonuses needed to be calculated, the failure to set
forth “the formula for determining the amount of the bonus does not render the agreement too indefinite for
enforcement.” (Sabatini, supra, 161
Cal.App.2d at p. 175.) Defendants rely on Rochlis v. Walt Disney Co.(1993) 19 Cal.App.4th 201(Rochlis), disapproved on other grounds in Turner v. Anheuser–Busch, Inc (1994) 7 Cal.4th 1238 and Ladas v. California
State Automobile Association (1993) 19 Cal.App.4th 761. Moncado distinguished Rochlis and Ladas and so does this Court.
In Rochlis, the promise for a bonus
and salary was indefinite and qualified and Ladas
involved “an amorphous promise to ‘consider’ what employees at other companies
[were] earning.” (Ladas, supra, 19 Cal.App.4th at p. 771.) Here, the promise of a bonus was definite,
only the amount remained to be calculated. In sum, this Court cannot conclude
as a matter of law that the contribution bonus is indefinite and unenforceable.
Interestingly, Defendants asked this Court to make the same finding in their
Demurrer. Although the standard at the pleadings stage is less demanding than
at the summary adjudication stage, the law remains the same, as does this Court’s
ruling. Accordingly, Defendants have failed in their burden to show that the
first cause of action for breach of contract has no merit because Defendants have
not shown that a contract cannot be established.

Therefore, Motion for Summary Adjudication
as to the First Cause of Action for Breach of Contract is DENIED.

2. Third
Cause of Action and Fourth Causes of Action: Promissory Estoppel &
Promissory Fraud

Defendants argue that the
“contract-adjacent” claims fail due to indefiniteness and lack of reliance. Defendants’
arguments fail for the same reasons as indicated above.

Motion for Summary Adjudication as
to the Third Cause of Action is DENIED. Motion for Summary Adjudication as to
the Fourth Cause of Action is DENIED.

“ Constructive discharge occurs
when the employer's conduct effectively forces an employee to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7
Cal.4th 1238, 1244.) “In order to establish a constructive discharge, an employee
must plead and prove . . . that the employer either intentionally created or
knowingly permitted working conditions that were so intolerable or aggravated
at the time of the employee’s resignation that a reasonable employer would
realize that a reasonable person in the employee’s position would be compelled
to resign.” (Id. at 1251.)

Defendants argue that this cause of action
fails because Plaintiff did not resign, but rather his contract expired on
December 31, 2017, and was not renewed. (UMF 84.) Even after the expiration of
the contract, Fenton continued working until February 23, 2018. (UMF 75.)

Plaintiff argues that Defendants placed
Fenton in “uncomfortable positions.” For example, Fenton was asked to transport
$600,000 in case from Los Angeles to Las Vegas (UMF 289) and to negotiate
“unsaleable deals” (UMF 299). Additionally, Plaintiff was kept in the dark
about Defendants borrowing from Chinese back against DMG stock, “saddled
low-level Chinese DMG employees with debt-ladened stock, and failed to pay
loans.” (UMF 296-298.)

The Court finds that Defendants have met
their burden. Here, the evidence indicates that Plaintiff’s contract term
expired in December 2017, and was not renewed. Even still, Plaintiff worked
until February 2018. Moreover, Plaintiff has failed to meet his burden of
demonstrating that a triable issue of material fact exists. The evidence as demonstrated indicates
Plaintiff was not forced to resign, but rather his contract expired, and it was
not renewed.

Therefore, Motion for Summary Adjudication
as to the Fifth Cause of Action for Constructive Discharge is GRANTED.

Defendant argues that no “adverse
employment action” when Plaintiff was removed from the board of Valiant as
Fenton was an act of Valiant, and Fenton was not employed by Valiant. (UMF 86.)
Moreover, Plaintiff was not forced to resign, but rather his contract expired,
as stated above. (UMF 84.)

Plaintiff argues that it was Mintz’
original intent to grant a new employment contract, but that changed after
Plaintiff called out the accounting practices. (UMF 297.)

Labor Code § 1102.5 provides that
an employer cannot enforce a rule that prevents an employee from providing
information and cannot retaliate against an employee for providing information
“to a government or law enforcement agency…if the employee has cause to believe
that the information discloses a violation of state or federal statute, or a
violation of or noncompliance with a local, state, or federal rule or
regulation.”

The Court finds that Defendants have met
their burden. Here, the evidence indicates that Plaintiff’s contract term
expired in December 2017, and was not renewed. Additionally, Plaintiff’s
position on the Valiant board is not associated with Defendants. Plaintiff has
failed to meet his burden of demonstrating that a triable issue of material
fact exists.

Therefore, Motion for Summary Adjudication
as to the Sixth Cause of Action for Retaliation is GRANTED.

Defendants argue that because the unfair
competition claim is derivative of the other claims, it fails. Plaintiff argues
that “if a false promise to pay an IPO bonus is found to have been made, then a
violation of the UCL can be found to have occurred.”

Business and Professions Code § 17200
prohibits any unlawful, unfair, or fraudulent business act or practice and
unfair, deceptive, untrue, or misleading advertising. The statute, “written in
the disjunctive… establishes three varieties of unfair competition – acts or
practices which are unlawful, or unfair, or fraudulent.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.
(1999) 20 Cal. 4th 163, 180.) It “focuses solely on conduct and prohibits
‘anything that can properly be called a business practice and that at the same
time is forbidden by law.’” (Albillo v. Intermodal Container Services, Inc. (2003) 114 Cal. App. 4th 190, 206.) The
unlawful prong “‘borrows’ violations of other laws and treats them as unlawful
practices that the unfair competition law makes independently actionable.” (Ibid.) Punitive and compensatory damages are not
available under the UCL. (State Farm Fire
& Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093, 1110.)

Because the Court denied the summary
adjudication as to the breach of contract and promissory estoppel and promissory
fraud causes of action, this claim survives.

Therefore, Motion for Summary Adjudication
as to the Seventh Cause of Action for Unfair Competition is DENIED.

Summary Adjudication is DENIED, as to
1^st, 3^rd, 4^th, and 7^th causes of
action.

[1]
On January 27, 2023, the Court held a hearing on Ex Parte Application to
Continue Trial filed by Defendants DMG Entertainment, LLC; DMG Entertainment
Holding, LLC; DMG Management Services, Inc. It was denied. Additionally, The
Court moved the hearing for Summary Judgment, initially scheduled for 2/21/2023
to 2/8/2023. Additionally, Defendants’ reply was to be filed no later than
February 1, 2023.

[2]Defendants
list six reasons: First, “shall be taken care of nicely” is too indefinite.
Second, there was no meeting of the minds, as Plaintiff has offered four
different explanations of what that phrase could mean. Third, the condition
precedent of the IPO did not occur, and thus Defendants did not have an
obligation to “take care of” Plaintiff. Fourth, the claim is barred by the
statute of limitations as the alleged merger occurred in November 2014, and
this matter was not filed until February 2019. Fifth, the contribution bonus
was discretionary. Lastly, the contribution bonus is indefinite and unenforceable.