Toberoff & Associates v. Daigle CA2/1 ( 2023 )

Filed 6/26/23 Toberoff & Associates v. Daigle CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
TOBEROFF & ASSOCIATES, P.C., B319706
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 18SMCV00170)
v.
GERALD J. DAIGLE, JR.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, H. Jay Ford III, Judge. Affirmed.
Toberoff & Associates, Marc Toberoff and Jaymie
Parkkinen for Plaintiff and Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, Anthony J.
Ellrod and Steven J. Renick for Defendant and Respondent.
________________________
In 2018, plaintiff Toberoff & Associates, P.C. (the firm or
the Toberoff firm) filed suit against Alan Donnes, alleging that
Donnes made false statements disparaging the firm and its
principal, Marc Toberoff,1 to a group of the firm’s clients, causing
the clients to terminate the firm’s representation. After Donnes
died, the firm filed an amended complaint against several new
defendants alleging that these new defendants collaborated with
Donnes in his scheme.
One of the newly added defendants, Donnes’s former
business partner Gerald J. Daigle, Jr., filed a motion to quash
service of summons of the complaint. Daigle, who resides in
Louisiana, argued that he did not have the minimum contacts
with California necessary to subject him to the jurisdiction of our
state’s courts. The Toberoff firm argues the trial court erred by
granting the motion, and that it abused its discretion by denying
the firm’s request for discovery regarding Daigle’s conduct in
California. We affirm. The firm failed to show the controversy
relates to or arises from Daigle’s contacts with California, and the
trial court reasonably determined that additional discovery was
unlikely to lead to the production of evidence of facts establishing
jurisdiction.
1We refer to Toberoff & Associates as the firm to
distinguish it from Marc Toberoff.
2
FACTUAL BACKGROUND AND PROCEEDINGS BELOW2
A. Events Leading to the Heirs’ Termination of the
Toberoff Firm
In 1938, John W. Campbell, Jr. published a novella titled
Who Goes There? about a group of scientists at a research
outpost in Antarctica under attack from a shapeshifting alien.
Campbell sold the film rights to the story for a flat fee, and in the
following decades, the story was adapted into three separate
films: first, in 1951, by RKO Radio Pictures under the title The
Thing from Another World, and then in 1982 and 2011 by
Universal Pictures under the title The Thing. The first two of
these adaptations are viewed as classics of the science fiction and
horror genres, suggesting the possibility of still more adaptations
to come.
In 2015, Toberoff approached Campbell’s heirs with news: a
brief window had opened during which the heirs could terminate
Campbell’s previous grant of film rights in Who Goes There? The
heirs signed an engagement agreement with the Toberoff firm to
recover the film rights on their behalf in exchange for 50 percent
of any proceeds deriving from the rights. The heirs were entitled
to terminate the firm’s engagement at any time, but the contract
provided that if the firm succeeded in securing any rights to the
2 Our account of the factual allegations and procedural
history is drawn in part from our recent opinion in another
appeal arising from this case, Toberoff & Associates, P.C. v.
Betancourt (May 1, 2023, B319116) [2023 WL 3166698] [nonpub.
opn.]). We take judicial notice of our prior opinion. (Starr v.
Ashbrook (2023) 87 Cal.App.5th 999, 1014.)
3
work, its “entitlement to its full [f]ee shall ‘vest’ even if the [f]irm
is subsequently discharged or terminated by the” heirs.
In January 2016, the firm served notices on the current
holders of the film rights, including Universal, informing them
that the heirs intended to terminate the grant of rights to the
novella pursuant to section 304 of the federal Copyright Act. (17
U.S.C. § 304(d).) The termination of rights did not take effect
until January 2018, and the Toberoff firm did not attempt to
market the film rights until that point.
In the summer of 2018, Donnes, an independent producer,
entered the scene. He contacted Toberoff, claiming that he owned
or controlled rights of RKO that would be necessary to make any
new The Thing movie, and that he had a relationship with
Universal or a production company at Universal. Toberoff
understood the latter to mean defendant Blumhouse Productions,
LLC (Blumhouse), a production company with a deal to produce
films for Universal. According to Toberoff, a Blumhouse
representative had recently contacted him with a proposal to
option or purchase the film rights to Who Goes There? from the
heirs. Toberoff was skeptical of Donnes’s claims and demanded
documentation of RKO’s rights, which Donnes was unable to
produce.
In late August 2018, Donnes contacted the heirs (who
reside outside California) directly and waged a campaign to
convince them to terminate the Toberoff firm’s representation
and to allow Donnes to handle the film rights to Who Goes There?
On September 4, 2018, Donnes wrote an email to one of the heirs
and to defendant John Betancourt, whose company published
Campbell’s novels and who had been advising the heirs regarding
the film rights. In the email, Donnes offered to send a template
4
termination letter. The next day, Donnes wrote the heirs that, if
they canceled their agreement with the Toberoff firm, Donnes’s
company would “pay any and all legal expenses billed by Mr.
Toberoff, aside from his 50 [percent] share of any licensing fees.”
Donnes also offered the heirs “additional money for consulting
work, executive producing, etc. These payments are NOT shared
with Mr. Toberoff.” He wrote that Toberoff was an obstacle to
signing a deal because he would insist on receiving a producer
credit and a high salary for himself as a part of any deal, and
that Toberoff was “NOT wanted or welcome at any major studio
and, to date, he has not produced a single film based on any of
the over 40 story rights he has secured copyrights to.” Donnes
warned the heirs that Toberoff “is not working in your best
interest.”
On September 26, 2018, Donnes wrote an email on behalf of
his production company, TLMC, promising to “pay all reasonable
costs incurred and billed to you by Marc Toberoff and Associates.
Additionally, TLMC will provide legal representation, at our cost,
to represent you should he file any litigation related to his
termination and/or production of the feature film.” The following
day, Betancourt sent Toberoff a termination letter on the heirs’
behalf. Toberoff was blindsided by the termination letter. He
“had received no indication of any kind from the [heirs] that [the
firm’s] services and performance were not fully satisfactory.”
B. Daigle’s Involvement
There is little evidence of Daigle’s involvement in the
matter up to this point. In multiple email threads among
Donnes, the heirs, and Betancourt in the month leading up to the
termination of the Toberoff firm, Daigle’s name appears only
once, in passing. This occurred in an email dated September 23,
5
2018, from one of the heirs, Leslyn Randazzo, to the other heirs
and Betancourt. In the email, Randazzo recounted a recent
conversation with Donnes during which Donnes “[m]ade
reference to . . . his . . . partner Jerry Dagel [sic].” Nothing in the
email suggests Randazzo had heard of Daigle to that point, nor
that she believed he would play a significant role going forward.
Daigle’s name appears more frequently in correspondence
after the termination. On October 3, 2018, Donnes included
Daigle as a recipient of an email Donnes sent to Blumhouse
suggesting, “we should set up a conference call so that you can
get to know these great people [presumably the heirs] and they
you.” Nothing in the record of this appeal indicates whether
Daigle indeed participated in the conference call with the heirs
and Blumhouse, and if he did whether he said anything.
In an email chain from November 2018, Donnes
corresponded with a Santa Monica-based attorney representing
another production company, Stampede Ventures, regarding an
offer to option the heirs’ rights to The Thing. Daigle is listed as a
recipient of these messages. Donnes explained that he was
looking at the offer and stated, “we like it so far.” In response to
a follow-up email, Donnes wrote that Daigle would be “back in his
office Wednesday,” and would “handle business aspects on our
side.” The attorney responded that Daigle “can contact me.” The
record does not show whether Daigle actually contacted the
attorney. Stampede did not ultimately option the heirs’ film
rights.
A few days later, on November 15, 2018, Donnes wrote to
the heirs that “Daigle will soon be providing you all with an
agreement between our entity and all other parties legally
granting us the right to put the deal(s) together with either
6
Stampede or Blumhouse.” Later that month, Daigle signed a
“shopping agreement” on behalf of TLMC. Under this agreement,
the heirs granted TLMC the exclusive right to seek financing for
the development of Who Goes There? into a film or other
production through May 2019.
In a December 2018 email chain among Donnes, the heirs,
Betancourt, and the heirs’ attorney regarding Toberoff’s claim to
a share of the proceeds of a board game based on Who Goes
There?, Donnes wrote, “Let’s keep [Daigle] looped in going
forward,” and added Daigle’s email address to the list of
recipients. Daigle did not reply, and the other participants in the
email chain ignored Donnes’s request and did not include Daigle’s
address in their subsequent emails.
In January 2019, Daigle wrote to the heirs’ Maryland-based
attorney proposing an option contract for Who Goes There? on
behalf of TLMC. The record does not show that the heirs ever
negotiated further on an option agreement with TLMC, nor
whether Daigle participated in any subsequent conversations. In
November 2019, nearly six months after TLMC’s shopping
agreement expired, the heirs agreed to sell the rights to Who
Goes There? to Universal at a price the Toberoff firm deemed far
below the true market value. TLMC was not a party to this
purchase agreement, and the record does not indicate whether
Daigle played any part in negotiations with Universal.
C. Legal Proceedings
On November 6, 2018, less than six weeks after the heirs
sent the termination letter, the Toberoff firm filed a complaint
against Donnes and additional unnamed Doe defendants,
alleging causes of action for intentional and negligent
interference with contractual relations, and intentional and
7
negligent interference with prospective economic advantage. The
complaint alleged that Donnes made false and misleading
statements to the heirs about his relationship with Universal and
his control of film rights to The Thing. According to the
complaint, Donnes also made false statements about Toberoff in
an effort to convince the heirs to end the firm’s representation.
The complaint alleged that Donnes acted “on his own, or in
coordination with other Doe defendants” (capitalization omitted)
in convincing the heirs to fire Toberoff. The complaint did not
mention Daigle’s name.
In July 2020, Donnes died. In July 2021, the court, upon
learning the sole named defendant in the case had passed away,
allowed the Toberoff firm five days to file an amended complaint
naming the previously unnamed Doe defendants.
On July 14, 2021, the firm filed the operative first amended
complaint. The new complaint alleged the same causes of action
for intentional and negligent interference with contractual
relations and with prospective economic advantage, as well as a
new cause of action for unfair competition. In place of Donnes,
the complaint listed as defendants TLMC, Daigle, Betancourt,
Wildside Press, LLC (Betancourt’s publishing company), and
Blumhouse. The firm alleged that the “[d]efendants joined forces
and approached the [heirs] directly through Donnes with
misrepresentations and derogatory statements regarding
[Toberoff], aimed at alienating [Toberoff] and ultimately inducing
the [heirs] to terminate without cause their relationship with [the
firm], causing significant financial loss to both the [heirs] and
[the firm].”
The new complaint described Daigle as “Donnes’s long-time
partner” and “a longstanding member of TLMC.” It alleged that
8
“Donnes acted with or as the agent for TLMC and his partner
Daigle,” and that “Daigle and/or TLMC offered financial and legal
assistance to the [heirs] to induce them to terminate” the
Toberoff firm. The complaint did not allege, however, that Daigle
personally made any disparaging statements about Toberoff or
his firm.
On September 21, 2021, Daigle filed a motion to quash
service of the complaint on the ground that the court lacked
personal jurisdiction over him. The trial court granted the
motion on February 10, 2022, finding that the Toberoff firm had
failed to show Daigle purposely availed himself of the benefits of
California, as required for special jurisdiction of a nonresident.
DISCUSSION
A. The Trial Court Did Not Err in Granting the Motion
to Quash
A defendant may challenge the trial court’s personal
jurisdiction over him by filing a motion to quash service of
summons. (See Bader v. Avon Products, Inc. (2020) 55
Cal.App.5th 186, 192; 2 Witkin, Cal. Procedure (6th ed. 2023)
Jurisdiction, § 233.) Upon the filing of such a motion, “the
plaintiff bears the burden of proving facts supporting the exercise
of jurisdiction by a preponderance of the evidence.” (Bader,
supra, at pp. 192-193.)
When reviewing a trial court’s decision on jurisdiction,
“[w]e defer to the . . . court’s factual findings that are supported
by substantial evidence.” (Farina v. SAVWCL III, LLC (2020) 50
Cal.App.5th 286, 293 (Farina).) “When no conflict in the evidence
exists, . . . the question of jurisdiction is purely one of law and
the reviewing court engages in an independent review of the
record.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14
9
Cal.4th 434, 449.) However, “[e]ven where the pertinent facts are
essentially undisputed, . . . the resolution of a particular legal
question may require ‘the drawing of inferences from the
presented facts . . . .’ [Citation.] In such a case, no pure question
of law is presented, and an appellate court must apply the
substantial evidence test to a trial court’s ruling, giving deference
to any inferences drawn by the trial court in support of its
resolution of a particular question . . . .” (CenterPoint Energy,
Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1119.) “We
independently review the trial court’s application of law to facts.”
(Farina, supra, at p. 294.)
“Personal jurisdiction can be general (all-purpose) or
specific (case-linked). (Bristol-Myers [Squibb Co. v. Superior
Court (2017)] 582 U.S. [255,] 262 [137 S.Ct. 1773, 198 L.Ed.2d
395] [(Bristol-Myers)].) A court has general jurisdiction over
defendants who are at home in the court’s forum; general
jurisdiction allows a court to hear any claim against a defendant,
regardless of where the underlying events occurred. (Farina,
supra, 50 Cal.App.5th at p. 294.) In contrast, specific jurisdiction
allows a court to adjudicate only those disputes relating to the
defendant’s contact with the forum. (Ibid.; Bristol-Myers, at
p. [262].)” (Bader v. Avon Products, Inc., supra, 55 Cal.App.5th at
p. 193.)
Daigle is not a California resident, and the Toberoff firm
does not allege that Daigle has “substantial and systematic
contacts in [California] sufficient to establish general
jurisdiction.” (Vons Companies, Inc. v. Seabest Foods, Inc., supra,
14 Cal.4th at p. 446.) We therefore focus our discussion on the
law relevant to specific jurisdiction.
10
In determining specific jurisdiction, “courts apply a three-
prong test. [Specific] jurisdiction exists where: (1) the defendant
has purposefully availed itself of a forum’s benefits; (2) the
controversy relates to or arises out of the defendant’s contacts
with the forum; and (3) the exercise of jurisdiction comports with
fair play and substantial justice.” (Farina, supra, 50 Cal.App.5th
at p. 294.)
The trial court found that the Toberoff firm failed to meet
its burden as to the first prong, to establish Daigle’s “purposeful
availment of California’s benefits.” In other words, the firm had
failed to show that Daigle “intentionally direct[ed] [his] activities
at [California] such that, by virtue of the benefits [he] has
received, [he] should reasonably expect to be haled into
[California]’s courts.” (Farina, supra, 50 Cal.App.5th at p. 294.)
The Toberoff firm contends this was error. It argues that
Daigle directed his activities toward California in several ways.
He participated in conference calls with Donnes and Blumhouse
employees located in California. In addition, an email from
Donnes to Stampede’s lawyer suggested that Daigle would call
the lawyer in California to discuss Stampede’s offer to option the
heirs’ film rights. Finally, the firm argues that Donnes’s emails
show that Daigle was in frequent contact with Donnes, who lived
in California.
“[O]n appeal, we do not review the reasons why the trial
court ruled as it did, but consider the validity of its ruling. If a
trial court’s ruling is correct, we will affirm, even if its reasoning
was flawed.” (In re Automobile Antitrust Cases I & II (2005) 135
Cal.App.4th 100, 117 (Automobile Antitrust).) In this instance,
we need not decide whether the trial court erred by finding the
Toberoff firm failed to carry its burden as to purposeful
11
availment because, even if so, the firm’s effort to establish
jurisdiction fails for a separate reason. It has failed to “prove[ ]
the second prong of [the] jurisdictional test—whether the
controversy is related to or arises out of [Daigle’s] contacts with
California.” (Id. at p. 116.)
To satisfy the second prong of the specific jurisdiction
analysis, “There must be ‘a connection between the forum and the
specific claims at issue.’ [Citation.] ‘If the operative facts of the
allegations of the complaint do not relate to the [nonresident]’s
contacts in this state, then the cause of action does not arise from
that contact such that California courts may exercise specific
jurisdiction.’ [Citation.]” (Rivelli v. Hemm (2021) 67 Cal.App.5th
380, 399 (Rivelli).) “In order for a court to exercise specific
jurisdiction over a claim, there must be an ‘affiliation between
the forum and the underlying controversy, principally, [an]
activity or an occurrence that takes place in the forum [s]tate.’
[Citation.]” (Bristol-Myers, supra, 582 U.S. at p. 264; see also
Ford Motor Co. v. Montana Eighth Judicial Dist. Court (2021) ___
U.S. ___ [141 S.Ct. 1017, 1026, 209 L.Ed.2d 225] [“the phrase
‘relate to’ incorporates real limits, as it must to adequately
protect defendants foreign to a forum”] (Ford Motor Co.).)
Rivelli demonstrates an application of this test. In that
case, the defendant purposefully availed himself of California by
serving actively on the board of a California corporation for two
years and negotiating the transaction at issue in the case.
(Rivelli, supra, 67 Cal.App.5th at p. 405.) Nevertheless, the court
held that the plaintiffs had failed to meet their burden at the
second prong because they “offered no evidence of fraudulent or
tortious misconduct, or of any actual wrongdoing by [the
defendant], directed at” California. (Id. at p. 406.)
12
In Rivelli, the court affirmed two principles central to
analyzing claims of specific jurisdiction. First, “ ‘[e]ach
defendant’s contacts with the forum [s]tate must be assessed
individually.’ ” (Rivelli, supra, 67 Cal.App.5th at p. 404, quoting
Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 781, fn. 13
[104 S.Ct. 1473, 79 L.Ed.2d 790]; accord, Automobile Antitrust,
supra, 135 Cal.App.4th at pp. 117-118 [“plaintiff[ ] must present
evidence to support a finding that California may exercise
jurisdiction over th[is] particular defendant[ ]”].) Second, “[t]o
meet [its] burden, a plaintiff must do more than make
allegations. A plaintiff must support its allegations with
‘competent evidence of jurisdictional facts. Allegations in an
unverified complaint are insufficient to satisfy this burden of
proof.’ [Citation].” (Rivelli, supra, at p. 393.) As the court
explained in Automobile Antitrust, “Typically, the plaintiff need
not establish the merits of the complaint in order to prove
jurisdiction. [Citation.] However, when personal jurisdiction is
asserted on the basis of a nonresident defendant’s alleged
activities in this state, facts relevant to jurisdiction may also bear
on the merits of the case.” (Automobile Antitrust, supra, at
p. 118.)
The Toberoff firm has failed to meet this burden with
respect to Daigle. The principal allegation in the firm’s complaint
is that Daigle was part of “an illicit scheme and coordinated effort
. . . to circumvent [the firm] and cheaply seize control of” the film
rights to Who Goes There? The firm claimed that “Donnes, in
league with the other [d]efendants, made false and misleading
representations, derogatory statements regarding [the firm], and
engaged in other wrongful conduct, which enabled [d]efendants to
gain unearned control of the rights in the book.” But the firm
13
points to no evidence of Daigle’s involvement in this effort. As
noted above, the record contains only one reference to Daigle
from the period before the alleged scheme came to fruition when
the heirs terminated the firm on September 27, 2018. And that
email indicated merely that Donnes had mentioned Daigle in a
conversation with one of the heirs. It did not implicate him in
any malfeasance, much less any malfeasance connected with
California.
The Toberoff firm argues that it has overcome this lack of
direct evidence of wrongdoing by Daigle in two ways. First, it
argues that Daigle was responsible for Donnes’s actions in
California because Donnes acted as Daigle’s operative. Second, it
argues that Daigle’s participation with Donnes in an attempt to
exploit the film rights after the firm’s termination was sufficient
to subject Daigle to the court’s jurisdiction. We find both of these
arguments unpersuasive.
The firm is correct that “activities that are undertaken on
behalf of a defendant may be attributed to that defendant for
purposes of personal jurisdiction if the defendant purposefully
directed those activities toward the forum state.” (Anglo Irish
Bank Corp., PLC v. Superior Court (2008) 165 Cal.App.4th 969,
981.) But the trial court could fairly infer from the facts before it
(as it did) that the firm ”fail[ed] to establish that Daigle
purposefully directed Donnes’[s] actions.” No evidence at all
indicates that Daigle directed Donnes’s actions prior to the firm’s
termination. Following the termination, when Donnes received
an offer from Stampede Ventures in November 2018 to option the
heirs’ rights, he replied, “we have it and are going over it as we
speak.” Later that week, he wrote, “we will reach out tomorrow
and . . . I will likely send an email later today.” Three days later,
14
he wrote that Daigle would be “back in his office Wednesday,”
would “handle business aspects on our side,” and that Daigle
would contact Stampede’s lawyer. At around the same time,
Donnes wrote to the heirs that “Jerry Daigle will soon be
providing you all with an agreement between our entity and all
other parties legally granting us the right to put the deal(s)
together with either Stampede or Blumhouse. Knowing Jerry, it
will be created in as simple a way as possible.” The record
includes a “shopping agreement” dated one day after this email
that indeed grants TLMC “including producer Jerry Daigle, the
exclusive right during the period through May 31, 2019[,] to
arrange for the possible financing, development, production
and/or exploitation” of films and television programs based on
Who Goes There?
This course of events suggests that Donnes was the
primary decision-maker and delegated tasks to Daigle, and that
such delegation occurred after the firm was terminated; it did not
show Daigle purposefully directed Donnes’s activities toward
California. As substantial evidence supported the trial court’s
conclusion on this point, we may not second guess its finding.
(Farina, supra, 50 Cal.App.5th at p. 293; CenterPoint Energy, Inc.
v. Superior Court, supra, 157 Cal.App.4th at p. 1119.)
The Toberoff firm’s argument that Daigle’s involvement in
the events after the firm’s termination subjects it to the court’s
jurisdiction likewise fails to withstand scrutiny. We do not
understand how Daigle could be liable for interference with
contractual relations on the basis of actions he took after the
contract between the heirs and the Toberoff firm had already
been terminated. The remaining claims, for interference with
prospective economic advantage, require that the defendant’s
15
acts were “wrongful by some independent legal measure, beyond
interference.” (Golden Eagle Land Investment, L.P. v. Rancho
Santa Fe Assn. (2018) 19 Cal.App.5th 399, 429; accord, Korea
Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134,
1143, 1153.) The only allegations in the complaint of wrongful
acts against the Toberoff firm were the alleged disparagement
and defamation by Donnes and Betancourt, not Daigle, prior to
the termination.
The firm argues that Daigle’s actions related to the tortious
conduct because they contributed to the firm’s damages. We are
skeptical in light of Bristol-Meyers and Ford Motor Co. that a
defendant who played no part in California-based wrongful
conduct may be subject to the jurisdiction of California courts on
the basis of his participation in subsequent activities that led the
plaintiff to suffer damages, and the Toberoff firm has cited no
case law affirming jurisdiction on this basis. Nevertheless, even
if we assume the firm’s position is correct, its argument fails here
because the firm has produced no evidence that Daigle’s actions
caused the firm to suffer damages. The firm’s theory of damages
is that, because the firm was no longer representing the heirs,
“the [d]efendants induced and misguided the [heirs] into
accepting a financially unfavorable, low-ball agreement with
Universal/Blumhouse,” thereby reducing the amount payable to
the firm under the terms of its engagement agreement. But the
record contains no evidence connecting Daigle with any
negotiations with Universal or Blumhouse. The only direct
connection the firm has shown between Daigle and anyone
associated with Universal or Blumhouse was a single conference
call in early October 2018, in which it is not clear what, if
anything, Daigle actually said. In November 2018, Daigle may
16
have spoken with an attorney representing Stampede Ventures,
but Stampede did not sign a contract with the heirs, lowball or
otherwise. Daigle also proposed an option agreement to the heirs
on behalf of TLMC, but the heirs did not option the rights to
TLMC. The heirs did sign a “shopping agreement,” which Daigle
apparently drafted, but that agreement gave TLMC the exclusive
right to market the heirs’ rights to Who Goes There? only until
May 2019. The heirs did not sign an agreement regarding the
film rights until November 2019, months after the shopping
agreement expired. And there is no indication in the record that
Daigle played any part in the negotiation of that contract, nor
that the contract involved TLMC in any way.3
B. The Trial Court Did Not Abuse Its Discretion in
Denying Jurisdictional Discovery
The Toberoff firm contends the trial court abused its
discretion by denying its motion to obtain jurisdictional discovery
from Daigle. The firm admits that it did not seek discovery from
Daigle when it first filed suit against Donnes in 2018, and asserts
that it had not yet had an opportunity to propound discovery
3 Toberoff asserts that TLMC was involved in the deal
between the heirs and Universal, and that Donnes and Daigle
were attached as producers of the movie in development based on
the heirs’ rights, but we can find no evidence of these claims in
the record. In particular, the copy of the contract between the
heirs and Universal in the record is heavily redacted, and the
readable portion includes no mention of TLMC, Daigle, or
Donnes. The “appellant has the burden of providing an adequate
record. [Citations.] Failure to provide an adequate record on an
issue requires that the issue be resolved against [the] appellant.”
(Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935.)
17
requests on Daigle when he filed the motion to quash. The firm
proffered 13 requests for the production of documents and 14
interrogatories that it would submit to Daigle if the trial court
granted its motion. These include requests to identify, describe,
and produce records of communications between Daigle and the
various parties involved in the case, along with requests for
Daigle to account for his visits to California and for the projects
on which he worked with Donnes. The trial court denied the
motion on the ground that the firm “fail[ed] to make any showing
that discovery would likely produce evidence of Daigle’s
additional contacts.”
A party is ordinarily entitled to a continuance to obtain
discovery of jurisdictional facts, but “[i]n order to prevail on a
motion for a continuance for jurisdictional discovery, the plaintiff
should demonstrate that discovery is likely to lead to the
production of evidence of facts establishing jurisdiction.”
(Automobile Antitrust, supra, 135 Cal.App.4th at p. 127.) The
trial court has discretion to decide whether to grant such a
motion, and “we will not reverse the trial court’s ruling unless we
find a manifest abuse of that discretion.” (Ibid.)
We perceive no such abuse of discretion in this case.
Through its previous discovery efforts, the firm obtained a wide
array of email communications among Donnes, Betancourt, and
the heirs, in which all parties discussed their plans regarding
Toberoff, his firm, and the film rights openly. These emails show
that Donnes included Daigle as a recipient when he believed
Daigle was relevant, and that he made no attempt to hide his
efforts to persuade the heirs to terminate their relationship with
the Toberoff firm. In short, significant communications about the
relevant course of events and who was involved in them were
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already before the court. If Daigle played an active role in the
effort to persuade the heirs to dump the Toberoff firm involving
communications directed at California, we expect we would see
some indication of that in the existing discovery. Instead, there
is none. We also expect that if the firm thought such evidence
likely existed, it would not have waited until after it filed its
opposition to the motion to quash to move ex parte to undertake
such discovery.4 In light of the facts before it, the trial court
could reasonably conclude further discovery would not likely lead
to production of evidence establishing jurisdiction. (Automobile
Antitrust, 135 Cal.App.4th at p. 127.)
4 The motion to quash was filed in September 2021. The
pendency of an anti-SLAPP motion by other defendants stayed
discovery until the resolution of that anti-SLAPP motion in early
November 2021. (Code Civ. Proc., § 425.16, subd. (g).) Nothing
in the record indicates that the firm sought leave to conduct
jurisdictional discovery during the pendency of the anti-SLAPP
motion, as the statute permits for good cause shown. (Ibid.)
Instead, the firm waited until February 2, 2022, to file an ex
parte application seeking jurisdictional discovery—shortly after it
filed its opposition to the motion to quash and approximately one
week before the hearing on the motion to quash.
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DISPOSITION
The trial court’s order granting Daigle’s motion to quash
service of summons is affirmed. Daigle is awarded his costs on
appeal.
NOT TO BE PUBLISHED.
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
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