Grandison v. Cox Reps CA2/3 ( 2015 )

Filed 12/23/15 Grandison v. Cox Reps CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LANCE GRANDISON, B255805
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC500360)
v.
COX REPS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Joseph R. Kalin, Judge. Affirmed.
Lance Grandison, in pro. per., for Plaintiff and Appellant.
Brown Wegner McNamara, Matthew K. Wegner and Valerie L. McNamara for
Defendant and Respondent.
_________________________
INTRODUCTION
Plaintiff and appellant Lance Grandison appeals a judgment following a grant of
summary judgment in favor of defendant and respondent Cox Reps. Grandison sued Cox
Reps for “breach of a contract and negligence” and for fraud, based on allegations that
Cox Reps agreed to sell him airtime on KCAL-TV for his show, Video Hot Mix. The
trial court found, among other things, that Grandison failed to join indispensable parties
CBS and KCAL. We agree that there is no triable issue of material fact as to any of
Grandison’s causes of action, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
In 2002, Grandison produced Video Hot Mix, a program showcasing music in the
rap and hip-hop industries in the form of “mixing” music videos, “D.J. style.” A version
of the show aired on KTLA between 2002 and 2003, but, lacking advertiser interest,
production ceased. In 2006, Spike TV paid production costs for a pilot episode of Video
Hot Mix but declined to air it.
In 2011, Grandison tried to get airtime for the show from Channel 5 but none was
available. He instead was referred to Cox Reps, an “intermediary between television
stations that sell air time” and people who want their shows to run on the air. Carolina
Guasch was an account executive for Cox Reps.
Guasch, Grandison, and Lionel Grandison (plaintiff’s brother),1 met on August 3,
2011 to discuss buying airtime on KCAL. Guasch viewed an episode of Video Hot Mix
and answered questions about securing airtime with CBS/KCAL.2 Guasch gave
Grandison an “award notification report,” which showed air dates for the show and the
rate for each slot of airtime. The report listed “KCAL-TV-Los Angeles” as “station”;
Grandison as “Buyer”; and Guasch as “salesperson.” Tapes were to be sent to KCAL,
1
Lionel was in charge of production.
2
CBS owns and operates KCAL-TV.
2
and checks were to be sent to CBS. Under “policies and procedures” the report stated
that “[s]tation maintain all orders will be held to a firm four week cancellation[.] [¶] All
changes, cancels, add ect., must be handled by Cox Reps LA [¶] All payments are to be
received two weeks prior to air date [¶] All tapes must have closed captioning[.]” The
report then listed an airtime schedule, beginning October 1, 2011, and continuing every
seven days thereafter, with the last airtime on December 24, 2011. The rate for each
airtime slot was $1,300.
The day after the meeting, Grandison told Guasch that he “look[ed] forward to
doing business with K-CAL 9. I am meeting my client Friday 8/5/11 and I was hoping to
have confirmation of airtime and secure it with payment. Please send paperwork . . . .”
Guasch responded that “[w]e’ll need to make sure that the station approves the content. I
looked at the promos and it’s hard to say.” Grandison understood he had to send
episodes directly to KCAL for approval: “I mean, I’m not dumb. They’re not going to
air a show that nobody’s viewed.” He understood he was “buying time from KCAL 9.”
On Grandison’s behalf, his father, Samir Muqaddin, contacted CBS and negotiated
an agency discount rate of $1,105 per slot of airtime, $200 less than the $1,300 rate on
the report Guasch gave to Grandison. Muqaddin also understood he had to “make a bid
for airtime” with CBS, and CBS “had to accept my price.”
Grandison and Muqaddin spoke to Jerome Ventura at CBS regarding payments.
Payments for the two airtime slots were made by XL Entertainment,3 on behalf of
Grandison, directly to CBS. No payments were made to Cox Reps. Neither Cox Reps
nor CBS and KCAL paid any production costs for Video Hot Mix. Grandison was never
told that Cox Reps or KCAL assumed responsibility for production costs.
The first episode of Video Hot Mix aired on October 1, 2011. A second aired on
October 8, 2011. After the second episode aired, CBS expressed concern about the show.
Leslie Keane, CBS’s director of research and programming, asked Guasch to clarify
3
XL Entertainment, which Lionel ran, “helps” Grandison produce shows.
3
whether Grandison had rights to air the music and videos in Video Hot Mix. Guasch
conveyed CBS’s concerns to Muqaddin. After talking to Muqaddin, Guasch e-mailed
him on October 11, 2011 and told him that Keane needed an e-mail from him “explaining
exactly what you told me.” That same day, Muqaddin forwarded an agreement with
record companies concerning use of videos, and Guasch sent it to Keane. Keane pointed
out that the agreement did not address music licenses.
On October 18, 2011, Kerry O’Farrell, the national sales manager for KCBS-
TV/KCAL-TV told Guasch, “We cannot air this show. The documents provided did not
assure legal that they have the music rights. [¶] Please cancel remaining shows.” KCAL
stopped airing Video Hot Mix.
When Guasch told Grandison no more episodes would be aired, he proposed
airing a documentary style version of the show without music. On November 4, 2011, he
delivered a new version of Video Hot Mix to CBS. Keane expressed concerns about this
version as well: “We have a couple of questions about the episode we received: [¶] 1.
Did the production company have the rights to be filming at the LA Soul Festival and did
the people appearing in the show know they were going to be appearing on a television
production? [¶] 2. We need to be sent a list disclosing anything in the show where
promotional consideration was given in return for goods and/or services – i.e., was The
Game Sports Bar given promotion in the show in return for being the filming location?
[¶] Once we have these items it appears that we will be able to air Video Hot Mix with
the following conditions: [¶] We will need a weekly written disclosure of all
promotional consideration in the show sent to the station (it can be emailed directly to
me) by 2pm each Wednesday prior to the show’s airing on Saturday. [¶] The show
credits must clearly note any promotional consideration in the credits – i.e. ‘Promotional
consideration provided by . . .’ [¶] Each week’s show will have to go through an
approval process – We will need each week’s show by 2pm each Wednesday prior to its
Saturday airing as we will have to review and approve each episode. [¶] Should the
deadlines not be met, there is no guarantee that particular week’s program can air.”
4
Grandison did not comply with these terms. The revised show did not air. After
KCAL decided not to run Video Hot Mix, Grandison did not try to get it aired on another
station.
II. Procedural background.
On February 1, 2013, Grandison sued Cox Reps for breach of contract, negligence,
and for fraud. Grandison alleged that he and Cox Reps entered into an oral and written
agreement whereby Cox Reps agreed to sell to him “13 weeks of paid programming
television airtime beginning 10/1/11 and ending 12/24/11” on KCAL 9. The “essential
terms” were that Cox Reps guaranteed the programming, “save emergencies,” and that
there would be a four-week cancellation policy. Grandison asked for $257,324 in
damages for breach of contract and for negligence and “general and compensatory”
damages in the amount of $175,000.
Cox Reps moved for summary judgment on the ground that if there was a contract,
it was between Grandison and CBS and KCAL, who were therefore indispensable parties.
Cox Reps also disputed that there was any contract, because any contract terms were
uncertain and an essential element of the deal was that CBS or KCAL had to approve
Video Hot Mix’s content. Also, Grandison could not prove he was damaged by Cox
Reps’s conduct, given that all Grandison expected for his money was airtime, which he
received.
In support of the motion, Cox Reps submitted Guasch’s declaration. When
Guasch first met with Grandison, she told him the station had to approve the show’s
content and decide whether it could be aired. Each episode had to be close-captioned.
Tapes had to be sent directly to KCAL, payments to CBS. She also told Grandison he
could get a discounted airtime rate if airtime was purchased through an agency. Guasch
explained that if Grandison cancelled the programming without giving four weeks’
notice, he could incur fees or be prohibited from doing business with CBS. Neither
Grandison nor his brother asked if the cancellation policy was reciprocal. To illustrate an
airtime schedule, Guasch gave Grandison the award notification report. She “never
5
intended for this document to bind Cox Reps, CBS or KCAL to the estimated dates or
prices in any way, nor is such a document intended to act as a contract at all—it was
offered solely for Plaintiff’s benefit as an estimated schedule of airtime and the projected
associated cost.” However, she did tell Grandison he would be able to secure the
estimated airtime if KCAL approved the show’s content.
Grandison opposed the motion, maintaining that the award notification report
constituted a written contract. He also argued that Cox Reps acted negligently by failing
to pass information to him from CBS and acted fraudulently by inducing Grandison to
enter the contract by “misrepresenting the companies position on guaranteed airtime.”
As a result of the cancellation of Video Hot Mix, Grandison’s reputation was damaged
and he lost the opportunity to make $175,000 from advertising sales. In his declaration,
Grandison said that Guasch described the award notification report as “the official
contract.” She also told him the cancellation policy went both ways, and when Grandison
asked, “ ‘Is this a guarantee[?]’ ” she told him, yes, the show would be interrupted only
for emergency purposes.
Grandison also objected to Guasch’s declaration on the ground, among others, it
failed to comply with Code of Civil Procedure section 2015.5.4
In addition to his declaration in support of his opposition, Grandison submitted
exhibits (e.g., invoices, deposition transcripts, and e-mails), but they were not attached to
a declaration and were otherwise unidentified. Cox Reps objected to Grandison’s
evidence on the grounds it was not authenticated and that the deposition transcript
excerpts failed to comply with California Rules of Court, rule 3.1116(a).
The trial court granted summary judgment in Cox Reps’s favor. The court found
that Grandison failed to add indispensable parties CBS and KCAL; could not prove the
existence of an enforceable contract with Cox Reps; could not establish causation or
damages; failed to mitigate damages; and the fraud and negligence causes of action were
4
All further undesignated statutory references are to the Code of Civil Procedure.
6
barred as a matter of law. The court overruled Grandison’s evidentiary objections and
sustained all of Cox Reps’s objections, including ones to Grandison’s declaration,
exhibits, and deposition transcripts.5
Judgment was entered on February 26, 2014.
CONTENTIONS
Grandison contends that the summary judgment was improperly granted because I.
the trial court should have excluded Guasch’s declaration; II. there are triable issues of
material fact as to all causes of action; and III. the attorney fees award was excessive.
DISCUSSION
I. The trial court did not abuse its discretion by overruling objections to
Guasch’s declaration.
Grandison contends that his objections under section 2015.5 to Guasch’s
declaration should have been sustained. We find that the court did not abuse its
discretion by overruling the objections. (Miranda v. Bomel Construction Co., Inc. (2010)
187 Cal.App.4th 1326, 1335 [in summary judgment proceedings, the weight of authority
holds that appellate courts review evidentiary rulings for an abuse of discretion].)
Section 2015.5 requires a declaration to recite “that it is certified or declared by
[the affiant] to be true under penalty of perjury, is subscribed by him or her, and (1), if
executed within this state, states the date and place of execution, or (2), if executed at any
place, within or without this state, states the date of execution and that it is so certified or
declared under the laws of the State of California.” Guasch’s declaration states: “I
declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. [¶] Executed this October 18, 2013, at 9.30 A, California.”
Guasch printed her name.
5
Although Grandison appears to suggest we can consider evidence to which
objections were sustained, he does not address any specific objections and why the trial
court abused its discretion in sustaining them. His failure to do so forfeits this issue on
appeal. (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114; Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784-785.)
7
Guasch’s declaration complied with section 2015.5. First, the declaration was
under penalty of perjury. Second, it was subscribed by Guasch. Although Guasch
printed her name rather than signing it in cursive, Grandison cites no authority finding
that printing one’s name is an improper subscription. “Contentions on appeal are waived
by a party who fails to support them with reasoned argument and citations to authority.”
(Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303; Berger v.
California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007; Badie v. Bank of
America, supra, 67 Cal.App.4th at pp. 784-785.) Third, the declaration states the date of
execution, October 18, 2013. Finally, it is declared “under the laws of the State of
California.”
Notwithstanding the declaration’s compliance with section 2015.5, Grandison
suggests the declaration was fabricated, because Guasch printed her name and because
the declaration was signed the same day the motion was filed. These objections were not
properly raised in or considered by the trial court and therefore they were forfeited.
(§ 437c, subds. (b)(5), (c), (d).)6
II. There is no triable issue of material fact as to any of Grandison’s causes of
action.
A. The standard of review.
We review a grant of summary judgment de novo. (Intel Corp. v. Hamidi (2003)
30 Cal.4th 1342, 1348.) Summary judgment is properly granted when there are no triable
issues of material fact and the moving party is entitled to judgment as a matter of law.
(§ 437c, subd. (c).) A moving defendant meets its burden by showing one or more
essential elements of the cause of action cannot be established or there is a complete
defense thereto. (Id., subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 849.) Once the moving party meets its initial burden, the burden shifts to the
opponent to show a triable issue of one or more material facts exists as to that cause of
6
Grandison raised these objections in a motion for reconsideration, which was
denied on jurisdictional grounds. He does not appeal the order denying that motion.
8
action or defense. (§ 437c, subd. (p); Aguilar, at p. 849.) “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, at p. 850.) “In determining whether the papers
show that there is no triable issue as to any material fact the court shall consider all of the
evidence set forth in the papers, except that to which objections have been made and
sustained by the court . . . .” (§ 437c, subd. (c); see also Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334.)
B. The breach of contract cause of action.
Grandison contends that Cox Reps agreed to sell him 13 weeks of airtime for
Video Hot Mix and agreed that the show could be cancelled only after four weeks’
notice. We conclude that, if a contract existed, CBS and/or KCAL were indispensable
parties to a cause of action for breach of it. Grandison, however, failed to raise a triable
issue of material fact on that issue. Therefore, the breach of contract cause of action was
properly adjudicated.
A party may be indispensable to an action if “(1) in his absence complete relief
cannot be accorded among those already parties or (2) he claims an interest relating to the
subject of the action and is so situated that the disposition of the action in his absence
may (i) as a practical matter impair or impede his ability to protect that interest or
(ii) leave any of the persons already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
If he has not been so joined, the court shall order that he be made a party.” (§ 389, subd.
(a); see also Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th
686, 692 [“ ‘Where the plaintiff seeks some type of affirmative relief which, if granted,
would injure or affect the interest of a third person not joined, that third person is an
indispensable party.’ ”].)
“ ‘Ordinarily where the rights involved in litigation arise upon a contract, courts
refuse to adjudicate the rights of some of the parties to the contract if the others are not
9
before it.’ ” [Citation.]” (Deltakeeper v. Oakdale Irrigation Dist. (2001) 94 Cal.App.4th
1092, 1106.) Here, Cox Reps submitted evidence that CBS and/or KCAL were
indispensable parties to any contract to sell airtime to Grandison. Grandison submitted
evidence in opposition, but Cox Reps’s objections to that evidence were sustained. (See
generally § 473c, subds. (c) [in determining whether a triable issue of material fact exists
as to any material fact, the court shall consider all evidence except that to which
objections have been made and sustained]; (d) [all opposing declarations shall set forth
admissible evidence].) Grandison does not challenge those objections on appeal. Cox
Reps’s evidence was therefore unopposed. (See Guz v. Bechtel National, Inc., supra,24 Cal.4th at p. 334.)
Cox Reps’s undisputed evidence established that complete relief cannot be
accorded in the absence of CBS and/or KCAL. (§ 389.) It was undisputed that Cox Reps
acted as an “intermediary” between television stations that sell airtime and people who
want their shows aired.7 The “award notification report” named Guasch as “salesperson”
and KCAL-TV as “station.” Grandison did not dispute he was buying airtime from
KCAL. Grandison did not dispute that negotiations concerning the airtime rate were with
CBS and that payments for airtime had to be sent to CBS. The invoices for airtime had
CBS logo on them and confirmed that airtime was being bought from CBS: “CBS
Television Stations Standard Terms and Conditions for advertising shall apply. [¶]
NONDISCRIMATION POLICY: CBS Television Stations and its Stations do not
discriminate in advertising contracts on the basis of race or ethnicity, and will not accept
any advertising which is intended to discriminate on the basis of race or ethnicity.
Advertiser represents and warrants that it is not purchasing time from CBS Television
Stations or its Stations that is intended to discriminate on the basis of race or ethnicity.”
(Italics added.) Grandison also did not dispute that he had to, and did, send Video Hot
7
In his responsive separate statement, Grandison did not dispute this fact. Instead,
he objected to it and asked, “Is Guasch Stating opinion or fact. The website says they are
the national sales firm for CBS.”
10
Mix episodes to KCAL for approval and that CBS and KCAL had to approve Video Hot
Mix before it aired.8
These facts establish that, assuming the existence of a contract to sell airtime, CBS
and/or KCAL were indispensable parties in whose absence complete relief could not be
accorded. Because Grandison failed to raise a triable issue of material fact on this issue,
the breach of contract cause of action was properly adjudicated.
C. The negligence cause of action.
It is unclear how Grandison’s “negligence” cause of action differs from or is
separate from his one for breach of contract. In fact, Grandison did not allege a separate
cause of action for negligence. Rather, his first cause of action is for “breach of contract
and NEGLIGENCE,” and therefore the same facts are alleged to support both causes of
action.
In any event, to the extent Grandison alleged a negligence cause of action, it too
was properly adjudicated. A “ ‘contractual obligation may create a legal duty and the
breach of that duty may support an action in tort.’ This is true; however, conduct
amounting to a breach of contract becomes tortious only when it also violates a duty
independent of the contract arising from principles of tort law. [Citation.] ‘ “ ‘An
omission to perform a contract obligation is never a tort, unless that omission is also an
omission of a legal duty.’ ” ’ [Citations.]” (Erlich v. Menezes (1999) 21 Cal.4th 543,
551.) Here, the only facts alleged were ones concerning breach of contract. It is
therefore unclear what legal duty of care Cox Reps owed Grandison. (See generally
Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918 [elements of a negligence
cause of action are a legal duty of care, breach of duty, and the breach proximately
caused resulting injury].)
Grandison, however, does state in his opening brief that Cox Reps failed to “pass[]
information on a timely bas[is].” To the extent Grandison’s argument is that Cox Reps
8
Grandison argued that this approval was limited to closed captioning and audio
and visual issues.
11
had a legal duty of care to pass information to him, he fails to specify what information
was not conveyed. Instead, the undisputed evidence shows that, after the second episode
of Video Hot Mix aired on October 8, 2011, Keane at CBS asked Guasch to confirm
Grandison had the rights to air the music and videos in the show. In an e-mail dated just
three days later, October 11, Guasch told Muqaddin that CBS “is asking whether you
have music licenses with ASCAP and BMI to air the music [¶] (see below for what she
needs).” Muqaddin responded to Guasch on October 12, and, within the hour, Guasch
forwarded Muqaddin’s response to CBS. Muqaddin’s response, however, failed to allay
CBS’s concerns.
Apparently in an attempt to avoid licensing issues, Grandison delivered, on
November 4, 2011, a new version of Video Hot Mix to CBS. On November 7, Guasch
forwarded an e-mail from CBS to Muqaddin asking that several concerns about the new
show be addressed before the show could be aired; for example, CBS needed “a weekly
written disclosure of all promotional consideration in the show [to be] sent to the station.”
Although Grandison disputed that he failed to meet CBS’s conditions, he cited no
evidence showing a dispute.9 Instead, Grandison was asked at his deposition: “Did you
provide the weekly written disclosures, show credits, and those things, to KCAL after
receiving this e-mail?” “So to answer my question, no, you did not meet the conditions
that were set forth in this email, right?” He answered, “Correct. It’s ridiculous because
I’m sure they don’t do that for all other paid programmings. Ridiculous request. . . .”
Grandison therefore knew that CBS wanted him to provide certain information, but he
disregarded their request.
To the extent Cox Reps had a duty to forward communications from CBS and
KCAL to Grandison, there is no triable issue of material fact that Cox Reps complied
with that duty.
9
Grandison merely disputed the date of the e-mail; he did not otherwise dispute the
fact. At his deposition he admitted he received the e-mail.
12
D. The fraud cause of action.
Like the negligence “cause of action,” Grandison’s fraud cause of action appears
to be based on nothing more than breach of contract. True, tort damages have been
allowed in some contract cases, for example, where the contract was fraudulently
induced. (Erlich v. Menezes, supra, 21 Cal.4th at pp. 551-552.) But fraud still requires
an intentional misrepresentation of material fact with knowledge of its falsity and intent
to induce reliance, actual reliance, and damages proximately caused by the reliance.
(Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
Here, Grandison merely alleged that from October 15, 2011 through December 24,
2011, “Defendant represented to Plaintiff no reason for the breach of contract.” It is
unclear what this means or why it constitutes an “intentional misrepresentation.” He also
alleged that Cox Reps had no authority to make “promises on airtime.” Cox Reps
“intentionally made representations falsely and fraudulently and induced plaintiff to enter
into the original contract.” He clarifies in his briefs that Guasch said she “had authority,”
Grandison would get a 13-week airtime contract, and Guasch had a surplus of airtime to
sell. These representations concern nothing more than nonperformance of the contract.
But “ ‘something more than nonperformance is required to prove the defendant’s intent
not to perform his promise.’ . . . [I]f plaintiff adduces no further evidence of fraudulent
intent than proof of nonperformance of an oral promise, he will never reach a jury.”
(Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31.)
III. Any claim regarding an award of attorney fees is not properly before us.
Grandison contends that an attorney fees award was excessive. The record,
however, does not show that attorney fees were awarded to Cox Reps. The order
granting summary judgment stated only that defendant was entitled to “costs of
litigation.” The judgment awarded costs “and attorney’s fees to the extent permitted by
law.” It is therefore unclear on this record whether attorney fees were awarded.
In any event, a memorandum of costs in the amount of $11,488.87 was filed, but it
does not appear that Grandison moved to tax costs. (§ 1033.) Having failed to object to
13
costs and any attorney fees award, the issue is forfeited on appeal. (See, e.g, Jimenez v.
City of Oxnard (1982) 134 Cal.App.3d 856, 859.) Moreover, the record on appeal does
not contain either the memorandum of costs or a motion to tax costs. The record is
therefore inadequate to review any claim regarding costs or fees. (Vo v. Las Virgenes
Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.)
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DISPOSITION
The judgment is affirmed. Defendant and respondent is to recover its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, Acting P. J.
We concur:
LAVIN, J.
JONES, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
15