Eric Podwall v. William Smokey Robinson, Jr.

O [7] United States District Court [8] Central District of California [10] 11 ERIC PODWALL, Case № 2:16-cv-06088-ODW (AGRx) 12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION FOR SUMMARY 14 JUDGMENT [87] WILLIAM “SMOKEY” ROBINSON, JR., [15] Defendant. [16] 17 I. INTRODUCTION 18 In this breach of contract action, Plaintiff Eric Podwall seeks to recover unpaid 19 commissions from Defendant William “Smokey” Robinson, Jr. pursuant to a written 20 agreement. (See First Am. Compl. (“FAC”), ECF No. 52.) Pending before the Court 21 is Robinson’s Motion for Summary Judgment (“Motion”). (Mot. Summ. J. (“Mot.”), 22 ECF No. 87.) For the reasons that follow, the Court DENIES Robinson’s Motion.1 23 II. BACKGROUND 24 Robinson is a well-known musician who has been in the music business for 25 decades. (FAC ¶ 1.) Podwall is a personal manager who has also worked in the 26 entertainment industry for decades. (Pl.’s Statement of Genuine Disputes (“PSGI”) & [27] 28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 Add’l Material Facts (“PAMF”) 12, ECF No. 91.)2 In September 2012, Podwall and 2 Robinson entered into a written letter agreement, which Podwall refers to as a 3 “management agreement.” (AMF 15; see also FAC ¶ 8, Ex. 1 (“Agreement”).) The 4 Agreement provides, among other things, that Podwall would receive “[t]en percent of 5 gross compensation derived from all products of [Robinson’s] services” for the period 6 of the Agreement. (Agreement ¶ 2.) This excludes live engagements booked before 7 the date of the Agreement and performed before June 1, 2013. (Id.) Podwall asserts 8 that Robinson sent him a letter terminating the Agreement in December 2015 and has 9 failed to pay commissions Podwall is owed. (FAC ¶¶ 15, 22; PAMF 22, 132.)3 10 Podwall filed this action to recover unpaid commissions under the Agreement 11 for more than one hundred performances. (See FAC ¶ 14.) Podwall asserts causes of 12 action for breach of contract, quantum meruit, and accounting. (FAC ¶¶ 23–38.) 13 After a long and winding procedural history involving two stays pending referrals to 14 the California Labor Commissioner (“CLC”) regarding issues under the California 15 Talent Agency Act (“TAA”), Robinson renews his motion for summary judgment on 16 all of Podwall’s claims. (See Mot. 1–4; see also Min. Order, ECF No. 145.) 17 III. LEGAL STANDARD 18 A court “shall grant summary judgment if the movant shows that there is no 19 genuine dispute as to any material fact and the movant is entitled to judgment as a 20 matter of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable 21 inferences in the light most favorable to the nonmoving party. Scott v. Harris, [22] 550 U.S. 372, 378 (2007); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 23 2000). A disputed fact is “material” if the resolution of that fact might affect the [24] 2 The Court OVERRULES all boilerplate objections and improper argument in the parties’ 25 Statements of Facts and of Genuine Issues. (See Scheduling & Case Mgmt. Order 7–9, ECF No. 47.) Further, where the objected evidence is unnecessary to the resolution of the Motion or 26 supports facts not in dispute, the Court need not resolve those objections here. To the extent the Court relies on objected-to evidence in this Order, those objections are OVERRULED. See Burch [27] v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1122 (E.D. Cal. 2006) (proceeding with only 28 necessary rulings on evidentiary objections). 3 Sealed versions of redacted documents cited herein may be found at ECF Nos. 110–14. 1 outcome of the suit under the governing law, and the dispute is “genuine” if “the 2 evidence is such that a reasonable jury could return a verdict for the nonmoving 3 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Conclusory or 4 speculative testimony in affidavits is insufficient to raise genuine issues of fact and 5 defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730 , 738 6 (9th Cir. 1979). Moreover, though the Court may not weigh conflicting evidence or 7 make credibility determinations, there must be more than a mere scintilla of 8 contradictory evidence to survive summary judgment. Anderson, 477 U.S. at 255 ; 9 Addisu, 198 F.3d at 1134 . 10 Once the moving party satisfies its burden, the nonmoving party cannot simply 11 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 12 material issue of fact precludes summary judgment. See Celotex Corp. v. Catrett, [13] 477 U.S. 317 , 322–23 (1986); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 14 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., [15] 818 F.2d 1466 , 1468 (9th Cir. 1987). Nor will “uncorroborated and self-serving” 16 testimony create a genuine issue of material fact. Villiarimo v. Aloha Island Air, Inc., [17] 281 F.3d 1054, 1061 (9th Cir. 2002). The court should grant summary judgment 18 against a party who fails to demonstrate facts sufficient to establish an element 19 essential to its case when that party will ultimately bear the burden of proof at trial. 20 See Celotex, 477 U.S. at 322 . 21 Pursuant to the Local Rules, parties moving for summary judgment must file a 22 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that sets out 23 “the material facts as to which the moving party contends there is no genuine dispute.” 24 C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of Genuine 25 Disputes” setting forth all material facts as to which it contends there exists a genuine 26 dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that the material facts as 27 claimed and adequately supported by the moving party are admitted to exist without 28 controversy except to the extent that such material facts are (a) included in the 1 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written 2 evidence filed in opposition to the motion.” C.D. Cal. L.R. 56-3. 3 IV. DISCUSSION 4 Robinson moves for summary judgment on three grounds: (1) Podwall failed to 5 provide notice of breach and an opportunity to cure as required by the Agreement; 6 (2) Podwall did not disclose damages in his initial disclosures and cannot prove 7 damages; and (3) Podwall cannot prove his quantum meruit claim. (MSJ 1–4.)4 8 A. BREACH OF CONTRACT—NOTICE AND CURE PROVISION 9 Courts may interpret contracts on a summary judgment motion when the 10 interpretation does not rely on inadmissible extrinsic evidence. Miller v. Glenn Miller 11 Prods., Inc., 454 F.3d 975 , 990 (9th Cir. 2006). The fundamental goal of contract 12 interpretation is to “give effect to the mutual intent of the parties as it existed at the 13 time of contracting.” Id. Where “contractual language is clear and explicit and does 14 not involve an absurdity, the plain meaning governs.” Am. Alt. Ins. Corp. v. Superior 15 Court, 135 Cal. App. 4th 1239, 1245 (2006). A contract provision requiring notice 16 and an opportunity to cure “give[s] the allegedly breaching party an opportunity to 17 cure its breach.” Sigwart v. U.S. Bank, 713 F. App’x 535, 537 (9th Cir. 2017); 18 Keysight Techs., Inc. v. Mentor Graphics Corp., C 17-1456-SBA, 2017 WL 7310781 , 19 at *6 (N.D. Cal. Sept. 28, 2017). 20 The Agreement contains the following Notice and Cure provision: “If I [sic] 21 either of us feel the other has breached this agreement, the aggrieved party will notify 22 the other and the other will have 30 days to cure the problem.” (Agreement ¶ 5; see 23 Def.’s Statement of Uncontroverted Facts (“DSUF”) 1, ECF No. 87-2; PSGI 1.) 24 Robinson contends Podwall “failed to provide the required notice and opportunity to [25] 26 4 Robinson initially raised defenses based on the TAA but has since expressly waived any such defenses. (See Joint Status Report 2, ECF No. 144.) Accordingly, the Court considers only the three [27] non-TAA-related grounds raised in Robinson’s Motion. (See Min. Order 2.) Relatedly, Podwall’s 28 request for judicial notice is denied as moot for the purposes of this Order, as the documents therein relate to the CLC proceedings. (Req., ECF No. 93.) 1 cure for any supposed ‘breaches’” because Podwall did not send Robinson invoices 2 for the claimed commissions. (Mot. 5, 8; see DSUF 2–4.) Essentially, Robinson 3 argues Podwall was required to provide written notice of breach as to each specific 4 commission claimed. The plain language of the provision does not require this level 5 of detail, nor does it require any specific form of notice. Rather, the Notice and Cure 6 provision requires only that one party “notify the other” to give the other thirty days to 7 “cure the problem.” (See Agreement ¶ 5.) As such, the absence of invoices or written 8 notices for specific disputed commissions does not defeat Podwall’s contract claim. 9 In any event, Podwall raises a genuine dispute of fact regarding whether he 10 provided Robinson notice of the breach and an opportunity to cure before filing this 11 action. Podwall submits declaration and deposition testimony establishing that he 12 spoke with Robinson about paying the unpaid commissions on numerous occasions, 13 beginning in 2013 and continuing through 2015. (See PSGI 4 (first citing Decl. Eric 14 Podwall (“Podwall Decl.”) ¶¶ 16–33, ECF No. 95; and then citing Decl. Jesse Kaplan 15 (“Kaplan Decl.”) Ex. 17 (“Podwall Dep.”) passim, ECF Nos. 94, 94-17).) Robinson 16 objects broadly to Podwall’s declaration as self-serving and uncorroborated, among 17 other things, but does not object to Podwall’s deposition testimony. (See Def.’s Evid. 18 Obj., ECF No. 107-2.) Podwall testified at length that he notified Robinson of the 19 breach. For instance, he testified he told Robinson that, “[O]ur contract stipulated that 20 after a specific date, that I was owed money from touring, so it was more that--‘The 21 contract kicked in. You owe me money from touring starting in June of 20 . . . 22 2013,’” and that Robinson owed him “10 percent of touring, as pursuant to our 23 contract.” (See, e.g., Podwall Dep. 95:20–96:10; see also PAMF 27–71.) 24 Robinson hotly contests this testimony but, by citing his own deposition in 25 rebuttal, Robinson succeeds only in confirming a genuine factual dispute. (See Def.’s 26 Combined Statement of Facts 27–71, ECF No. 107-1 (citing Robinson’s deposition to 27 support disputed fact).) Robinson’s testimony corroborates the existence of numerous 28 conversations between Robinson and Podwall. (See, e.g., Second Decl. Rhonda H. 1 Wills Ex. 7 (“Robinson Dep.”) 93–94, 99, 117–18, 150, 179–80, ECF No. 107-4). 2 However, in Robinson’s version, Robinson told Podwall from the very beginning that 3 he “would never get any of [my touring money], he’s not entitled to that.” (Robinson 4 Dep. 93:25–94:1; see also id. 117:23–118:2 (“[H]e knows that I’m not stupid enough 5 to bring him in and give him money off of my concerts and stuff like that . . . or any 6 other source of income that I had before I met him.”).) The evidence before the Court 7 establishes that numerous conversations occurred; the parties just dispute what was 8 said. The Court may not resolve such a credibility dispute on summary judgment. 9 See Anderson, 477 U.S. at 255 (“Credibility determinations . . . are jury functions.”). 10 Viewing the disputed facts in Podwall’s favor, a reasonable jury could find he 11 complied with the Notice and Cure provision. Therefore, Robinson is not entitled to 12 summary judgment on this basis. 13 B. ALL CAUSES OF ACTION—DAMAGES 14 Podwall’s claims require a showing of damages. See Careau & Co. v. Sec. Pac. 15 Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1388 (1990), as modified on denial of reh’g 16 (Oct. 31, 2001) (listing the plaintiff’s damages as an element of breach of contract 17 claim); Day v. Alta Bates Med. Ctr., 98 Cal. App. 4th 243, 249 (2002) (“The measure 18 of recovery in quantum meruit is the reasonable value of the services rendered . . . .”); 19 Kritzer v. Lancaster, 96 Cal. App. 2d 1, 7 (1950) (stating that a claim for accounting 20 requires a balance due to the plaintiff). Accordingly, Federal Rule of Civil 21 Procedure 26 (“Rule 26”) required Podwall to disclose, to the extent reasonably 22 possible, “a computation of each category of damages claimed . . . [and] the 23 documents or other evidentiary material . . . on which each computation is based.” 24 Fed. R. Civ. P. 26(a)(1)(A)(iii) (initial disclosures), (e) (supplementing disclosures). 25 Robinson contends Podwall “wholly failed to provide any computation of 26 damages” in his Rule 26 disclosures and also failed to produce evidence of the sought 27 damages. (Mot. 16–18.) Robinson’s argument is readily dispatched. First, Podwall [28] 1 provided the following computation of damages in both his initial and supplemental 2 Rule 26 disclosures: 3 Podwall seeks unpaid commissions. Pursuant to the Management 4 Agreement, Defendant was to pay Podwall ten percent of Defendant’s “gross compensation derived from all products of [Defendant’s] [5] services.” [Citation]. Accordingly, Podwall’s damages equal ten (10%) 6 percent of Defendant’s gross compensation during the relevant timeframe, minus any amount(s) already paid. [7] 8 (Decl. Rhonda H. Wills Exs. 4, 5, ECF Nos. 87-7, 87-8.) These disclosures provide a 9 reasonable basis for computing Podwall’s damages. See Fed. R. Civ. P. 26; see also 10 GHK Assocs. v. Mayer Grp., Inc., 224 Cal. App. 3d 856, 874 (1990) (finding “some 11 reasonable basis of computation of damages” is all the law requires, especially if the 12 defendant’s wrongful acts created the difficulty in proving a specific amount). 13 Podwall also disclosed documents in discovery to which this computation may 14 be applied. (See Opp’n 22–23, ECF No. 90.) He produced a spreadsheet his company 15 created contemporaneously to track Robinson’s performances during the relevant 16 period, listing Robinson’s fee and the associated 10% commission. (Decl. Paul 17 George ¶ 7, Ex. 33 (“Robinson Spreadsheet”), ECF Nos. 96, 96-1.) He produced his 18 company’s financial register listing all payments received from Robinson. (Podwall 19 Decl. ¶ 37, Ex. 32 (“Podwall Register”), ECF No. 95-4; see also Kaplan Decl. ¶ 24.) 20 Robinson clearly received these documents, as his counsel questioned Podwall about 21 them extensively in deposition. (See generally Podwall Dep.) Podwall also obtained, 22 through third party subpoenas, Robinson’s bookkeeping information including 23 deposits on the relevant performances; this information was disclosed to all parties. 24 (Kaplan Decl. ¶¶ 16–17, 22, Exs. 23–27 (“Stern Ledgers”), ECF Nos. 94-23–94-27.) 25 In light of this information, from which simple math produces quantifiable sums, no 26 reasonable jury could find Podwall failed to disclose his damages. 27 Viewing the disputed facts in Podwall’s favor, Podwall submits documents and 28 testimony from “which a finder of fact could reasonably conclude that [he] actually 1 suffered damages, caused by [Robinson], in a[] quantifiable amount.” McGlinchy v. 2 Shell Chem. Co., 845 F.2d 802 , 809 (9th Cir. 1988). Therefore, Robinson is not 3 entitled to summary judgment on this basis. 4 C. QUANTUM MERUIT 5 “Quantum meruit (or quasi-contract) ‘is an equitable remedy implied by the law 6 under which a plaintiff who has rendered services benefitting the defendant may 7 recover the reasonable value of those services when necessary to prevent unjust 8 enrichment of the defendant.’” Swafford v. Int’l Bus. Machs. Corp., 408 F. Supp. 9 3d 1131, 1149 (N.D. Cal. 2019) (quoting In re De Laurentiis Ent. Grp., Inc., 963 F.2d 10 1269 (9th Cir. 1992)). “To prevail on a claim for quantum meruit, [a plaintiff] must 11 show: (1) that he performed certain services for [the defendant]; (2) that the services 12 were rendered at [the defendant’s] request; and (3) that they are unpaid.” Id.; see also 13 Pac. Bay Recovery, Inc. v. Cal. Physicians’ Servs., Inc., 12 Cal. App. 5th 200 , 214–15 14 (2017) (“[A] plaintiff must establish both that he or she was acting pursuant to . . . [a] 15 request for such services from the defendant and that the services rendered were 16 intended to and did benefit the defendant.” (emphasis omitted)). 17 Robinson argues that Podwall “cannot establish the elements of his quantum 18 meruit claim” and therefore his “quantum meruit claim fails as a matter of law.” 19 (Mot. 18.) That is all. He provides no argument or analysis beyond this cursory 20 conclusion. (See id.; see generally Reply, ECF No. 107.) Robinson’s half-hearted 21 hand-wave is reason enough to deny summary judgment as to this claim; the Court 22 will not manufacture Robinson’s legal arguments for him. See, e.g., W. Radio Servs. 23 Co. v. Qwest Corp., 678 F.3d 970, 979 (9th Cir. 2012) (“We will not do an appellant’s 24 work for it, either by manufacturing its legal arguments, or by combing the record on 25 its behalf for factual support.”); see also United States v. Graf, 610 F.3d 1148 , 1166 26 (9th Cir. 2010) (“Arguments made in passing and not supported by citations to the 27 record or to case authority are generally deemed waived.”). [28] 1 Nevertheless, Podwall raises genuine issues of material fact as to Robinson’s 2|| challenge to the quantum meruit claim. Podwall submits declaration and deposition 3 || testtmony that he performed services for Robinson, (PAMF 18—21), at Robinson’s 4|| request, (PAMF 14, 22), for which he would typically be paid 10-15% commission, a 5 || standard rate in the industry, (PAMF 12-13), and he has not received payment from 6 || Robinson for the services provided, (Podwall Decl. {| 35-37; Podwall Register). 7|| Thus, even considering Robinson’s unsupported conclusion on this claim, Podwall 8 | submits evidence from which a reasonable finder of fact could find in his favor on a clarm for quantum meruit. Accordingly, Robinson is not entitled to summary 10 || judgment on this basis. 11 Vv. CONCLUSION 12 For the foregoing reasons, the Court DENIES Robinson’s Motion for Summary 13 | Judgment. (ECF No. 87.) The parties shall submit a Joint Report proposing dates for 14 || a jury trial and final pretrial conference by October 12, 2021. [15] 16 IT IS SO ORDERED. [17] 18 September 28, 2021 ss 19 fy Gédiod 1 OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE