Howard Entertainment v. Kudrow













Filed 9/28/10
Howard Entertainment v. Kudrow CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 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
FIVE




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HOWARD ENTERTAINMENT, INC., et al., Plaintiffs and Appellants, v. LISA KUDROW, et al., Defendants and Respondents.

B220440 (Los Angeles County Super. Ct. No. SC099232)

APPEAL from a judgment and postjudgment
order of the Superior Court
of Los Angeles
County, Elizabeth A. Grimes, Judge. Reversed and remanded.

Horvitz & Levy, Frederic D.
Cohen, Lisa Perrochet; Rintala,
Fraser & Jaenicke, J. Larson Jaenicke,
AnnMarie DeVita; Richard L. Hasen, for Plaintiffs and Appellants.

Sauer & Wagner, Gerald L. Sauer
and Lori L. Werderitch for Defendants and Respondents.

>INTRODUCTION

Plaintiffs and
appellants Howard Entertainment, Inc. and Scott Howard (together Howard) appeal
from a summary judgment in favor of
defendants and respondents Lisa Kudrow and Big Fouche Productions, Inc.
(together Kudrow). Howard also appeals
from an order denying his motion for relief under Code of Civil Procedure
section 473.[1]

Howard contends that a triable issue of material fact precluded
summary judgment, the trial court erred in excluding the conclusions and opinions
in his expert's declaration on the ground of lack of proper foundation, and the
court erred in denying his request for a continuance of the motion hearing to
submit a supplemental expert declaration.
Howard also contends the trial court erred in denying his motion for
relief from judgment pursuant to section 473.
In that motion, Howard requested that he be permitted to file his
proposed supplemental expert declaration that was attached to his concurrent
motion for new trial, and requested reconsideration of the trial court's ruling
on Kudrow's motion for summary judgment.

The trial court did not abuse its
discretion by sustaining Kudrow's objections to the expert's declaration. The trial court, however, abused its
discretion by not exercising its discretion in denying Howard's request for a
continuance, or it was not clear that the trial court exercised its discretion,
which in itself is a basis to remand.
Accordingly, we remand the matter to the trial court with directions to
exercise its discretion to determine if Howard may have a continuance to file a
supplemental expert declaration. We need
not reach the issue of the propriety of the trial court's order denying
Howard's motion for relief under Code of Civil Procedure section 473 or the
issue concerning due process claims.







>BACKGROUND[2]

Kudrow began working in the
entertainment industry in 1986. By 1991,
she had performed in a play and an NBC pilot, had made several television
appearances, had minor roles in several motion pictures, and had been a
featured comedy theater performer. She
had a manager for approximately one year, and also had an agent, and knew their
different roles. She knew that agents
were entitled to a commission on contracts they negotiated even if the
agent-client arrangement was later terminated.
Kudrow sought career advice from fellow actors and had consulted with an
entertainment attorney on issues relating to her entertainment career.

From 1984 through 1989, Howard
worked in the entertainment industry, including positions at Capitol Records,
MGM, and The William Morris Agency (William Morris). He worked as an assistant and later a talent
agent. In 1989, William Morris
terminated Howard's services.

In 1991, Howard partnered with
Debbie Miller, his former supervisor at William Morris, and became a personal
manager. At that time, the business of
managing actors was a developing field in the entertainment industry. There were no known guidelines or
standards. Howard did not have any
experience as a personal manager and did not have any clients.

In 1991, Howard approached Kudrow
about becoming her personal manager.
Howard and Kudrow orally agreed that Howard would provide personal
management services for Kudrow and in return receive a 10 percent commission on
her income. Kudrow was one of the first
clients Howard signed as a personal manager.


In 1992,
Kudrow landed a guest-starring part on the popular show â€