Natalie Hockey vs Brighton Collectibles LLC

Case Number

19CV06616

Case Type

Hearing Date / Time

Mon, 06/24/2024 - 10:00

Nature of Proceedings

Motion: Summary Judgment

Tentative Ruling

Natalie Hockey v. Brighton Collectibles, LLC        

Case No. 19CV06616      

Hearing Date: June 24, 2024                                      

HEARING:              L.A. Models, Inc.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication Against Cross-Complainant Brighton Collectibles, LLC

ATTORNEYS:        For Plaintiff and Cross-Defendant Natalie Hockey: Joseph H. Low IV; Roger Y. Muse, John Matheny, Excelsior Law

                                    For Defendant and Cross-Complainant Brighton Collectibles, LLC: Peter W. Ross, Charles Avrith, Ross LLP

                                    For Cross-Defendant L.A. Models, Inc.: Gene H. Shioda, Steven P. Chang, Heidi M. Cheng, Shioda Langley & Chang, LLP

TENTATIVE RULING:

The motion of LA Models, Inc.for summary judgment or, in the alternative, summary adjudication against cross-complainant Brighton Collectibles, LLC is denied.

Background:

On December 16, 2019, plaintiff Natalie Hockey filed her complaint in this action against defendant Brighton Collectibles, LLC (Brighton). The complaint alleges one cause of action for penalty wages pursuant to Labor Code section 203.

The complaint alleges that in October 2018, Brighton employed Hockey as a model for a photography shoot. (Complaint, ¶ 6.) That employment began and concluded on October 4, 2018. (Ibid.) The employment was pursuant to an employment agreement for the one day’s employment on October 4. (Complaint, ¶ 7.) Hockey asserts that pursuant to Labor Code section 201, she was entitled to be paid her wages upon the completion of the photo shoot. (Complaint, ¶ 8.) Hockey was not paid until more than 30 days after she was discharged. (Complaint, ¶ 9.) Hockey claims her entitlement to penalty wages for 30 days at her daily rate amounting to $90,000. (Complaint, ¶¶ 10-11.)

On March 2, 2020, Brighton filed its answer to the complaint generally denying the allegations of the complaint and asserting eight affirmative defenses.

Also on March 2, 2020, Brighton filed its cross-complaint (“CC”) against Hockey. The CC alleges two causes of action: (1) declaratory relief; and (2) fraud.

On June 30, 2020, Brighton filed its cross-complaint against LA Models for breach of contract and indemnity.

On April 1, 2022, Brighton filed its first amended cross-complaint (FACC) against LA Models, with the same two causes of action.

As alleged in the FACC: “Brighton is in the business of designing, manufacturing, marketing, and selling ladies’ accessories, such as handbags, wallets, belts, shoes, sunglasses, and jewelry.” (FACC, ¶ 4.) LA Models is a modeling agency based in Los Angeles. (FACC, ¶ 5.) LA Models was Hockey’s employer. (FACC, ¶ 7.)

“On or around October 3, 2018, Brighton and LA Models agreed to a contract containing the following terms, among others: (a) LA Models had the authority to act Hockey’s behalf; (b) LA Models would instruct Hockey to appear for a photoshoot with Brighton on October 4, 2018, in Santa Barbara; (c) Brighton would pay LA Models $3,000 for Hockey’s work (d) LA Models would send an invoice to Brighton for Hockey’s work; (e) the invoice would be paid by Brighton directly to LA Models (not Hockey); and (f) LA Models would fully and timely pay Hockey in accord with all applicable laws. Terms (b) and (c) were orally agreed to and confirmed in emails. Terms (a), (d), (e) and (f) were implied in fact based on the custom and practice in the industry and the course of dealing between Brighton and LA Models.” (FACC, ¶ 9.)

“Pursuant to the contract between Brighton and LA Models, Hockey modeled for a

photoshoot in Santa Barbara for Brighton on October 4, 2018.” (FACC, ¶ 11.) “On October 29, 2018, LA Models sent Brighton an invoice related to Hockey’s October 4, 2018 work.” (FACC, ¶ 12.) “In accordance with the parties’ agreement, on or about December 7, 2018, Brighton sent LA Models a $3,000 check in full payment of its October 29, 2018 invoice.” (FACC, ¶ 13.)

“Neither LA Models nor Hockey ever said or indicated to Brighton that they considered Hockey to be an employee of Brighton. Neither LA Models nor Hockey ever said or indicated to Brighton, either before or during the photoshoot, or until sending the invoice on October 29, 2018, that Brighton must pay Hockey in some fashion other than that agreed.” (FACC, ¶ 14.)

“LA Models breached the contract with Brighton by failing to pay Hockey timely and in compliance with the California Labor Code.” (FACC, ¶ 19.)

On September 6, 2022, LA Models filed its answer to Brighton’s FACC generally denying the allegations of the FACC and asserting 26 affirmative defenses.

On December 4, 2023, Hockey dismissed her complaint without prejudice.

LA Models filed a motion for summary judgment or, in the alternative, summary adjudication as to Brighton’s action against it, on September 27, 2023, arguing that LA Models is a talent agency that is only required to pay its models within 30 days after receipt of money from the models’ employers, and that they did so. LA Models further argued that it has no employment relationship with Hockey and therefore Brighton is not entitled to indemnification.

Brighton opposed the motion and argued that there are triable issues of material facts as to whether L.A. Models breached its contract with Brighton and whether L.A. Models is liable for equitable indemnity to Brighton.

In reply, LA Models pointed out that Hockey dismissed her complaint on December 4, 2023 (after the filing of its motion) and that the motion for summary judgment should be granted because equitable indemnification requires a finding of liability of the indemnitee as well as the indemnitor.

On February 5, 2024, the court denied the motion for summary judgment. In doing so, the court did not consider LA Models’ reply arguments regarding whether Brighton is likely to prevail against LA Models given that Hockey dismissed her complaint. LA Models was not precluded from appropriately raising this issue at a later date due to Hockey’s dismissal being filed after LA Models’ first motion for summary judgment was filed.

LA Models now moves for summary judgment or, in the alternative, summary adjudication, arguing that because Hockey dismissed her complaint, there are no longer any allegations that Hockey was not timely or properly paid and, without those claims, Brighton has no ability to show that LA Models breached any contract or that Brighton is entitled to equitable indemnity.

Brighton opposes the motion. LA Models filed its reply on June 18, 2024.

Analysis:

Standard on Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented 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. (Code Civ. Proc., § 437c, subd. (c).)    

“[F]rom commencement to conclusion, the 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“The trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.] Nor may the trial court grant summary judgment for a defendant based simply on its opinion that plaintiff’s claims are “ ‘implausible,’ ” if a reasonable factfinder could find for plaintiff on the evidence presented.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) “[T]he function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

            Summary Adjudication

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“A defendant … 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the 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).)

“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.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b).)

LA Models’ notice of motion does not comply. It does not identify the specific causes of action. However, Brighton did not object to the defect. As will be explained below, LA Models’ motion for summary adjudication fails on substantive grounds.

            Undisputed Material Facts

“The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an affirmative defense. (See Code Civ. Proc., § 437c, subd. (b)(1); rule 3.1350(a)(2), (d)(2).) The statute and Rules of Court do not preclude litigants from including background, nonmaterial information in their papers as long as they include a cite to the evidence, but nonmaterial facts should not be included in the separate statement. The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “ ‘The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ ” [Citation.]” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875.)

“The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (Ibid.)

Here, Brighton’s response to LA Models’ separate statement is evasive, does not address the facts presented, and is completely unhelpful. For example, LA Models’ first undisputed material fact (“UMF”) is: “MODELS is a talent agency that procures various modeling assignments for its models.” Brighton’s response is: “Disputed that the statute states or implies that a talent agency has no more onerous payment obligation than the one set forth in Labor Code § 1700.25. Otherwise, undisputed for purposes of this motion.”

Brighton’s response should have simply stated: “Undisputed.” There is no reason to dispute the fact as stated. LA Models is, without any doubt, “a talent agency that procures various modeling assignments for its models.” Brighton does not provide any evidence that this in not the case. In fact, Brighton’s opposition, and other documents filed in this case, acknowledge the fact.

As with Brighton’s response to UMF No. 1, most of the other responses are evasive or are otherwise improper.

In addition to UMF No. 1, those facts that are either undisputed, or not reasonably disputed, include:

“In October 2018, MODELS procured a job assignment for [Hockey] with BRIGHTON with a pre-agreed upon price of $3,000.00, and an invoice was issued to BRIGHTON upon the conclusion of the photo shoot. The invoice indicated that payment was due ‘upon job completion.’ ” (UMF No. 2.) The court acknowledges that the invoice was issued 25 days after completion of the shoot, but that does not make the fact stated in UMF No. 2 untrue or reasonably disputed.

“MODELS received payment from BRIGHTON for HOCKEY’s job assignment on December 11, 2018, and MODELS paid HOCKEY three (3) days later on December 14, 2018.” (UMF No. 3.)

“Plaintiff alleged in her complaint that BRIGHTON did not pay the invoice ‘upon job completion,’ and therefore she was untimely paid.” (UMF No. 4.)

The only UMF that is reasonably disputed is No. 5.

“On or  about December 4, 2023, Plaintiff dismissed her Complaint against BRIGHTON; as such, there are no allegations that BRIGHTON or MODELS untimely paid Plaintiff.” (UMF No. 5.)  The court acknowledges, as indicated above, that the complaint was dismissed without prejudice. The court has also examined the FACC, and it clearly shows, at paragraph 19, that there are allegations that LA Models untimely paid Hockey.

Brighton adds 19 additional facts (“AMF”) which it contends are undisputed.

            Attorney’s Fees as Damages

Central to LA Models’ arguments to both causes of action is the assertion that Brighton is not entitled to any type of damages without a finding of liability against it and that there is no authority for Brighton to recover attorney’s fees and costs in defending the action against Hockey.

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.)

Code of Civil Procedure section 1021.6, provides:

“Upon motion, a court after reviewing the evidence in the principal case may award attorney’s fees to a person who prevails on a claim for implied indemnity if the court finds (a) that the indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee’s interest by bringing an action against or defending an action by a third person and (b) if that indemnitor was properly notified of the demand to bring the action or provide the defense and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict.”

Of critical importance here: “Brighton has requested indemnity from LA Models, which LA Models has declined to provide.” (FACC, ¶ 26.)

“A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.” (De La Hoya v. Slim’s Gun Shop (1978) 80 Cal.App.3d Supp. 6, 8.)

“It appears to be the general rule in those United States jurisdictions which have considered the problem that attorney fees incurred in litigation with third parties may be recoverable as damages in an action for breach of contract. [Citations.] We see no reason why the general rule applied elsewhere should not also be adopted in this state, and we follow it in this case.” (Id., at p. 10.)

Here, the requirements of Code of Civil Procedure section 1021.6 will have been satisfied if the trier of fact determines that Brighton was without fault in the case brought by Hockey and LA Models was at fault by not, as alleged, timely paying Hockey.

            Breach of Contract

LA Models argues that judgment should be entered on the first cause of action for breach of contract because there are no allegations that plaintiff was untimely paid, due to plaintiff dismissing her complaint, and there are no damages to Brighton.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

“A contract is either express or implied. (Civ. Code, § 1619.) The terms of an express contract are stated in words. (Civ. Code, § 1620.) The existence and terms of an implied contract are manifested by conduct. (Civ. Code, § 1621.) The distinction reflects no difference in legal effect but merely in the mode of manifesting assent. [Citation.] Accordingly, a contract implied in fact “ ‘consists of obligations arising from a mutual agreement and intent to promise where the agreement and promise have not been expressed in words.’ ” [Citation.]” (Retired Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 1178.)

The parties do not dispute the existence of a contract between them. Rather, LA Models repeatedly argues that due to Hockey dismissing her complaint, there is no claim for untimely paid wages against Brighton and therefore no damages. LA Models additionally argues: “There are no allegations that HOCKEY was untimely paid unless BRIGHTON is admitting that BRIGHTON untimely paid HOCKEY.” (Motion, p. 6, ll. 15-16.) LA Models’ argument misstates the allegations in the complaint and Brighton’s theory of the breach. The complaint alleges that “LA Models breached the contract with Brighton by failing to pay Hockey timely and in compliance with the California Labor Code.” (FACC, ¶ 19.) The damages alleged by Brighton include attorney’s fees and costs incurred in defending against Hockey’s claims. (FACC, ¶ 29.) As such, there are, in fact, allegations remaining that LA Models did not timely pay Hockey. The fact that Hockey dismissed her complaint against Brighton does not negate the allegations made by Brighton, against LA Models, that LA Models did not timely pay Hockey.

Brighton has set forth a valid breach of contract claim against LA Models and there are triable issues as to the liability of each party, if any, and the amount of damages, if any.

The motion for summary adjudication of the breach of contract cause of action will be denied.

Equitable Indemnity

LA Models arguments with respect to equitable indemnity is closely linked to its arguments regarding recovery of attorney fees.

“In general, indemnity refers to ‘the obligation resting on one party to make good a loss or damage another party has incurred.’ [Citation.] Historically, the obligation of indemnity took three forms: (1) indemnity expressly provided for by contract (express indemnity); (2) indemnity implied from a contract not specifically mentioning indemnity (implied contractual indemnity); and (3) indemnity arising from the equities of particular circumstances (traditional equitable indemnity). [Citations.] [¶] Although the foregoing categories of indemnity were once regarded as distinct, we now recognize there are only two basic types of indemnity: express indemnity and equitable indemnity. [Citation.] Though not extinguished, implied contractual indemnity is now viewed simply as ‘a form of equitable indemnity.’ [Citations.]” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157, fn. omitted (Prince).)

“Unlike express indemnity, traditional equitable indemnity requires no contractual relationship between an indemnitor and an indemnitee. Such indemnity ‘is premised on a joint legal obligation to another for damages,’ but it ‘does not invariably follow fault.’ [Citation.] Although traditional equitable indemnity once operated to shift the entire loss upon the one bound to indemnify, the doctrine is now subject to allocation of fault principles and comparative equitable apportionment of loss.” (Prince, supra, 45 Cal.4th at p. 1158, fn. omitted.)

LA Models gives several examples of when equitable indemnity is not available. However, LA Models fails to address the implied equitable indemnity that is available under Code of Civil Procedure section 1021.6, which is discussed above.

There are triable issues of material fact as to whether Brighton is entitled to indemnity from LA Models and the amount, if any, of damages.

The motion for summary judgment or, in the alternative, summary adjudication, will be denied.