Filed 6/17/26 Piltan v. Novell CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
BABAK PILTAN, B321273
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 19STCV14652
v.
MARIO NOVELL et al.
Defendants and Respondents.
APPEAL from a judgment and underlying orders of the
Superior Court of Los Angeles County, Richard J. Burdge, Jr,
Judge. Affirmed in part and dismissed in part.
Joseph A. Hearst for Plaintiff and Appellant.
Carter Law Firm and Corey Alan Carter for Defendants
and Respondents.
_____________________________
INTRODUCTION
This is the second appeal between Babak Piltan and Mario
Novell before us this year. Piltan initiated a derivative action on
behalf of Mac Daddy Films, LLC (Mac Daddy Films) against
respondents Mario Novell and his production company, alleging a
cause of action for conversion. Piltan claimed Novell registered
the copyright in his own company’s name instead of in Mac
Daddy Films’s name, contrary to their mutual understanding.
After trial, the jury found in favor of Piltan and awarded
$145,000 in damages. Novell then filed a motion for judgment
notwithstanding the verdict (JNOV) and alternatively a motion
for new trial, contending the evidence at trial was insufficient as
a matter of law to support the jury’s verdict as to damages
resulting from conversion of the film’s copyright. The trial court
agreed with Novell and granted both motions; it clarified that it
granted Novell’s motion for a new trial conditionally, that is, it
will not take effect unless the JNOV it concurrently granted does
not become final.
On appeal, Piltan claims the trial court erred in granting
the JNOV motion because the jury had adequate evidence by
which it could calculate damages arising from Novell’s conversion
of the copyright. Piltan also argues the trial court’s order
granting a new trial was not supported and requests that we
reverse the judgment and direct the trial court to enter the
original judgment based on the jury’s verdict.
We disagree with each of Piltan’s arguments. We affirm
the judgment and its underlying order granting Novell’s JNOV
motion. Because we affirm the order granting JNOV, the
conditional new trial order also granted by the trial court
becomes moot.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Complaint and Answer
On October 8, 2019, Piltan filed the operative first amended
complaint (FAC) against Novell and Novell Productions.1 The
FAC’s caption provides that Piltan brought this action
“[d]erivatively on behalf of MAC JAY FILMS, LLC.” Elsewhere
in the FAC, it provides Piltan derivatively brought this action “on
behalf of MAC DADDY FILMS, LLC.” The FAC alleged six
causes of action, including conversion and declaratory relief as to
the rights to copyright and share in the profits generated by the
film. We recite the allegations and information pertaining to the
conversion cause of action only, which is the subject of the appeal
before us.
The FAC alleges:
Piltan and Novell were both involved in producing the film
Mac Daddy’s Vegas Adventure (Missy Moallempour Films and
Ytinifni Pictures 2017) (the film), the sequel to Mac Daddy and
Lovers (Fenix Pictures and Ytinifni Pictures 2015). Novell
formed Mac Daddy Films2 on January 2, 2015 “to conduct the
business of producing [the film]” with members—Piltan, Novel,
and Mac Jay (now deceased). Piltan and Novell entered into a
contract (operating agreement) to finance the production of the
film. They agreed Piltan would “fund the production of [the film]
and [would] be repaid in part from the profits received from the
sales” of the film. Piltan invested $145,000 in the film. On
1 Novell Productions is a California limited liability
company; its sole member is Novell.
2 Mac Daddy Films is a Nevada limited liability company.
3
October 1, 2018, Piltan discovered the film had been completed,
released, and distributed. Pursuant to the operating agreement,
Piltan “was to receive 30 percent of the profits as a member of the
limited liability company.” As of the FAC’s filing date, neither
Piltan nor Mac Daddy Films had received money generated by
the distribution of the film.
During the course of the parties’ prior litigation in Los
Angeles Superior Court (LASC) case No. BC622302, arising from
the production of the same film, Piltan “discovered that [Novell]
had taken and converted for himself the copyright[] to the film
and placed [it] in his name and that of his wholly owned company
[Novell Productions].” Novell’s “intentional taking of the
copyright[] to the film was for the purpose of permanently
depriving [Mac Daddy Films] of said copyright[].” It was agreed
that the copyright was to be the “rightful property of [Mac Daddy
Films].” Novell’s actions were intentional and malicious and
“thus justify the awarding of exemplary and punitive damages” in
addition to general damages and/or the value of the copyright.
On November 6, 2019, Novell and Novell Productions each
filed an answer to the FAC, with 19 affirmative defenses. The
third and fourth affirmative defenses asserted res judicata and
collateral estoppel, respectively, alleging Piltan is barred from
relitigating issues determined against him in LASC case No.
BC622302. The 11th and 12th affirmative defenses for release
and settlement, respectively, alleged Piltan’s FAC was barred by
a settlement agreement and general release purportedly signed
by Piltan on October 24, 2018. The settlement agreement
resolved the prior case (BC622302) by Piltan against Novell. By
way of the settlement agreement, Novell agreed to pay Piltan
$80,000, and in return, Piltan signed a general release with a
4
Civil Code section 1542 waiver.3 Piltan accepted the $80,000
settlement payment from Novell/Novell Productions and then
filed an acknowledgement of satisfaction of judgment on
November 1, 2018.
II. Pre-Trial Conference
The pre-trial conference took place on November 19, 2021.
The trial court noted: “[S]ort of a technical thing that runs
throughout everything is, the plaintiff in this case is Babak
Piltan. It’s not Mac Daddy Films, LLC. He is the plaintiff on
behalf of Mac Daddy Films. Mac Daddy Films is not the plaintiff.
So all the jury instructions where you use Mac Daddy Films as
the plaintiff are wrong.” The court continued: “In a typical
derivative action, plaintiff is the plaintiff on behalf of the
company or the LLC and the LLC is a nominal defendant” but
here, Piltan “didn’t name [Mac Daddy Films, LLC] as a nominal
defendant in this case.”
3 The settlement agreement also provides: “Plaintiff hereby
waives and relinquishes all rights and benefits that it has or may
have under [Civil] Code section 1542 . . . to the full extent it may
lawfully waive all such rights and benefits pertaining to any of
the claims, demands or causes of action released herein. Plaintiff
further acknowledges, understands and agrees that there is a
risk and possibility that it may have further claims or defenses or
that it may incur or suffer some further loss or damages that is in
some way caused by or attributable to the occurrences or events
released herein, but which are unknown at the time this
Settlement Agreement is executed. Plaintiff expressly agrees,
however, that this Settlement Agreement and the releases herein
shall remain in full force and effect notwithstanding the
discovery or existence of any such additional or different claims,
facts or damages.”
5
The court also clarified with Piltan: “You are not seeking
return of any property or seeking any [¶] . . . [¶] return of
copyright or anything else?” Piltan’s counsel answered, “No, your
honor.”
III. Jury Trial and Judgment
Trial by jury began on November 29, 2021.
Piltan testified: He met Novell in 2005 while they were
both working at Raytheon; they became friends. During a
meeting in November 2014, Piltan, Mac Jay, and Novell
“discussed plans to establish a company” and “it was going to be
called Mac Daddy Films, LLC.” The company was established on
January 2, 2015. Piltan, Mac Jay, and Novell were managing
members of Mac Daddy Films. Piltan was also the lead investor
responsible for providing up to $145,000 in funding. “The
purpose [of creating the company Mac Daddy Films] was to
produce and retain the rights from the film,” including “the
copyrights.” The film’s budget—prepared by Novell and sent via
email to Piltan on January 31, 2015—included $1,250 in a “line
item . . . for the copyright of the film” as well as $35 for the “filing
fee . . . for filing the copyright.” But Piltan, in 2017, realized that
Novell had filed for the copyright himself, for himself.” Piltan
admitted Mac Daddy Films was not yet formed when the parties
entered into the short form contract with Ytinifni4 Pictures (the
distributor of the film). Piltan was aware of and received from
Novell a scanned copy of the short form contract in December
2014 “shortly after” Novell and the distributor executed it. The
short form contract was signed only by Novell and the
4 Sometimes the parties refer to Ytinifni as Infinity
throughout trial. We will refer to it as Ytinifni.
6
distributor, and “there’s no signature for Mac Daddy Films, LLC.”
Piltan received an operating agreement via email from Novell on
February 5, 2015; the operating agreement “set forth each
person’s obligations and duties to each other and the company.”
The agreement was “never signed” by the parties, but it was
understood they would “be bound by” it. Piltan admitted he
received $80,000 from Novell to settle the prior case.
Novell testified: Ytinifni Pictures was the distributor of the
first Mac Daddy film in January 2014. Ytinifni’s role was to
“distribute the film internationally” and “show the film in
different formats.” Novell did not make any money from the first
Mac Daddy film. Ytinifni was the distributor for the second film
too, which was released in October 2017 across digital platforms.
The short form contract with Ytinifni listed both Novell
Productions and Mac Daddy Films as the producer “[b]ecause
Novell Productions was the main production company and Mac
Daddy Films, LLC was the company that was used to open the
bank account and hold the funds.” Novell was listed as the
producer and IP copyright owner on the short form contract
because he “was the main producer and the copyright owner.”
Per the terms of the short form contract, Ytinifni was to
distribute the film internationally and “would receive a
25 percent cut straight from the profits.” Neither Novell nor
Novell Productions have received any money from the
distribution of the film. The purpose of forming Mac Daddy
Films “was to open a bank account and also to hold the funds to
expense the production costs of the film.” Mac Daddy Films has
had its status revoked in Nevada. Piltan never signed the
operating agreement. Novell confirmed he signed the settlement
agreement at Piltan’s lawyer’s office on October 26, 2018; Piltan
7
and Novell had initialed every page. Novell signed the
settlement agreement and paid $80,000 because he “wanted . . . a
general release of all claims against [him] and to settle a
dispute.”
David Shevitz, Novell’s attorney in the parties’ prior
litigation, testified: He helped prepare the settlement agreement
between Novell/Novell Productions and Piltan. Shevitz
negotiated with “Mr. Weiner [who was] an attorney that was
hired by [Piltan] to negotiate a settlement agreement with
myself.” “There was a lot of back and forth negotiation and
ultimately we settled on $80,000 as full settlement with a waiver
of any other related claims or causes of action under [Civil Code
section] 1542.” “Once [the settlement agreement] was drafted,
before a payment was made, I made a demand that we receive a
signed copy of the agreement by Mr. Weiner or Mr. Piltan, which
I did receive prior to Mr. Novell going to Mr. Weiner’s office and
signing it himself.” When asked why the Civil Code section 1542
waiver language was included, Shevitz testified: “This language
was put in there to ensure that once any payment was made by
Mr. Novell, that [Piltan] could no longer bring any future—well,
one, to make sure that this judgment is settled in full and that
[Piltan] could not in the future bring any cause of action related
in any way to this superior court case at all” or “related to the
movie at all.” “There was no way I was going to allow my client
to pay $80,000 if I didn’t have confirmation that we had a clear
agreement that was signed by [Piltan].” Shevitz confirmed that
“Mac Daddy Films, LLC” does not appear anywhere in the
settlement agreement. After reviewing his emails with Piltan’s
counsel Bernard Weiner, Shevitz confirmed that Weiner emailed
him on October 25, 2018 with a one-page attachment of the
8
signature page to the settlement agreement, with Piltan’s and
Weiner’s signatures. “Nobody was under the understanding it
was a one-page agreement. He was sending me the signature
page because we had already worked out the full terms of the
underlying agreement we reviewed earlier, the full settlement
agreement.” The agreement was eight pages long; Mr. Weiner’s
email to Shevitz included an attachment of the settlement
agreement that erroneously had “two page fours [and] two page
sixes.”
Relevant admitted trial exhibits include:
• The short form agreement (trial exhibit No. 6) entered into
by Novell and Ytinifni Pictures on December 23, 2014,
providing that Ytinifni shall have the exclusive right to
distribute the film for a 25-year term. Ytinifni’s
distribution fee “shall be 25% of gross receipts.” It specifies
the production company name as “Novell Productions, LLC
assoc. w/ Mac Daddy Films, LLC.” Novell is identified as
the “Producer / IP / Copyright Owner.” Novell is the only
signatory alongside a representative of Ytinifni.
• The film’s copyright certificate of registration (trial exhibit
No. 7) with a stamped date of March 22, 2016, specifying
Novell Productions, LLC as the copyright claimant.
• The film’s budget (trial exhibit No. 42) prepared by Novell
specifying $35 for the cost of the “Copyright (Film)” and
$1,250 for the “Title & Copyright Report.”
The settlement agreement (trial exhibit No. 43) and
Novell’s cashier’s check to Piltan for $80,000 (trial exhibit No. 90)
were admitted at trial, as well as the emails between Shevitz and
Weiner pertaining to the negotiation and execution of the
settlement agreement. Also admitted were emails exchanged
9
between Piltan and Novell regarding the operating agreement
(trial exhibit Nos. 19–21, 31, 34, and 37), even though a copy of
the (unsigned) operating agreement was not in evidence.5
The parties stipulated to a special verdict form. On
December 2, 2021, at the close of evidence and argument, that
special verdict form was submitted to the jury. On December 3,
2021, the jury answered the special verdict form’s questions as
follows:
1) “Did Mac Daddy Films, LLC have a right to possess the
copyright and company assets for the filming of [the
film]?” The jury answered, “Yes.”
2) “Did [Novell and Novell Productions] substantially
interfere[] with Mac Daddy Films, LLC’s property by
knowingly or intentionally taking possession of the
copyright and funds?” The jury answered, “Yes.”
3) “Did [Novell and Novell Productions] act without Mac
Daddy Films’ consent?” The jury answered, “Yes.”
4) “Was Mac Daddy Films, LLC harmed?” The jury
answered, “Yes.”
5) “Was [Novell’s and Novell Productions’] conduct a
substantial factor in causing Mac Daddy Films, LLC’s
harm?” The jury answered, “Yes.”
6) “What are Mac Daddy Films, LLC’s damages?” The jury
answered, “$145,000.”
7) “Did Babak Piltan, Mario Novell, and Novell
Productions, LLC enter into a Settlement Agreement?”
The jury answered, “No.”
5 The operating agreement is not in the record on appeal.
10
On December 10, 2021, judgment on the special verdict was
entered. The judgment states by reason of the special verdict
“Piltan on behalf of Mac Daddy Films, LLC is entitled to
judgment against [Mario Novell] and Novell Productions, LLC in
the amount of $145,000.”
IV. Novell’s Motions for New Trial and Judgment
Notwithstanding the Verdict
On December 17, 2021, Novell and Novell Productions filed
two motions—one for a judgment notwithstanding the verdict
(JNOV) and alternatively for a new trial “in the event the court
denies the JNOV or if it grants the JNOV and the court of appeal
reverses that ruling.” In the JNOV motion, Novell argued the
evidence received at trial is insufficient as a matter of law to
support the jury’s verdict; specifically, “there was no evidence
presented by [Piltan] of where the film is or if it ever made a
dime of profit or that it is worth anything” and “the only evidence
that existed was [that] the movie in fact made no money.” They
also argued the entire matter should be dismissed because the
corporation, Mac Daddy Films, “is an indispensable party to a
representative action brought on its behalf” and failure to join the
corporation as a nominal defendant results in “this court ha[ving]
no jurisdiction over the dispute.” In the motion for new trial,
Novell argued the damages awarded were excessive based on the
evidence presented at trial; “[t]he fact that the film cost $165,000
to make does not make the copyright worth that much.”
On January 10, 2022, Piltan filed his opposition to Novell’s
two motions.
11
V. Trial Court Hearing and Ruling
On February 16, 2022, the trial court heard the motions
and announced its tentative decision to grant the motions:
“Defendant[s’] motion for a new trial is granted, but will
not take effect unless the JNOV concurrently granted does not
become final.” “Plaintiff argues that the jury awarded the cost of
making the Film and that numerous cases addressing the value
of specific physical property endorse the cost of the product as a
measure of damages where there is no evidence of market value.
. . . While the cases Plaintiff cites are useful in the fact situations
of those cases, neither the arguments nor the evidence makes
them applicable. [¶] There are several problems with Plaintiff’s
arguments. First, many things in addition to the copyright were
produced for the cost of making the Film. For example, there is
the Film. Thus, the cost of producing the Film is not the cost of
the copyright, which was minimal. Second, the copyright has
value only to the extent that it allows the owner to exploit the
copyrighted work. In this case, the uncontroverted evidence is
that the right to exploit the Film was already assigned to the
distributor for 25 years. Under the distribution agreement the
LLC was entitled to its share of the revenues from exploiting the
work, even though the copyright was registered in Novell’s name.
The evidence was undisputed that there were no such revenues
and the expectation was that there were not likely to be any over
the 25 years. Arguably, there may have been some value after
25 years, but there was no evidence presented on what that value
was. From the evidence presented, the only reasonable inference
was that the Film would never generate revenue for the LLC.”
“From the facts introduced at trial, there was no value to the LLC
of the copyright that it did not get. While the LLC spent money
12
to make the Film, that does not mean that Film had any value
not already assigned to the distributor, so there was no value lost
when Novell registered the copyright in its name. In addition,
there was no evidence that the LLC expended any time or money
to attempt to transfer the copyright from Novell to the LLC.
Thus, having failed to prove any damages, the court will grant”
Novell’s two motions. “Defendants also argue that the judgment
should be reversed for failure to join the LLC as a party. It is
true that in respect to a shareholder’s derivative action, the
corporation is an indispensable party to such a suit and must be
named as a nominal defendant. [Citation.] However, nonjoinder
of a party must be raised at the outset of the action or defendant
waives the defect. [¶] In any event, having granted JNOV on the
damages ground, the court does not address the joinder
argument.”
Following further argument, the trial court “adopt[ed] the
tentative as the ruling of the court.”
On March 7, 2022, judgment was entered for Novell/Novell
Productions and against Piltan, derivatively on behalf of Mac
Daddy Films.
On May 5, 2022, Piltan filed a notice of appeal from the
judgment.
DISCUSSION
First, Piltan contends the trial court erred in granting
JNOV because the jury had evidence by which it could calculate
damages arising from Novell’s conversion of the copyright, such
as the cost of producing the film. Piltan argues the court
mistakenly relied on developments occurring after the conversion
to find that the copyright had no value. Second, Piltan contends
he was entitled to declaratory judgment that Mac Daddy Films
13
was the owner of the copyright of the film. Third, Piltan contends
the new trial order was not justified, as the jury had a reasonable
basis for awarding $145,000 or at the minimum, nominal
damages. He requests that we reverse the judgment and
underlying order granting JNOV and direct the trial court to “re-
enter the original judgment in favor of Piltan and Mac Daddy
Films.” He alternatively requests that we reverse and remand
for a new trial “conditional on Piltan’s rejection of a remittitur of
damages to $1,285.”
We disagree with each of Piltan’s arguments, as detailed
below.
I. Applicable Legal Principles
An order granting a motion for judgment notwithstanding
the verdict is not appealable; instead, the appeal should be from
the judgment entered. (Jordan v. Talbot (1961) 55 Cal.2d
597, 602; Herman v. Shandor (1970) 8 Cal.App.3d 476, 479;
Mason v. Mercury Cas. Co. (1976) 64 Cal.App.3d 471, 473, fn. 2;
7 Witkin, Cal. Procedure (6th ed. 2021) Trial, § 433, p. 379) Here,
Piltan correctly appealed from the judgment following the trial
court’s orders granting JNOV and, alternatively, new trial.
Where the court grants a motion for JNOV, and likewise
grants a new trial motion, the order granting the new trial is
effective only if, on appeal, the motion for judgment
notwithstanding the verdict is reversed and the order granting a
new trial is not appealed from or, if appealed from, is affirmed.
(Code Civ. Proc.,6 § 629, subd. (d).) Thus, if both motions are
granted, the new trial order operates as a “backup” to the JNOV.
6 Undesignated statutory references are to the Code of Civil
Procedure.
14
(Wegner et al., Cal. Practice Guide: Civil Trials and Evidence
(The Rutter Group 2025) ¶ 18:2, p. 18-1; see § 629, subd. (d).)
Hence, the correct procedure is to see first if that judgment will
stand up on the theory that the opposing party did not even
produce a prima facie case; if it does, there is no need for a new
trial and the order granting a new trial will be ineffective.
(7 Witkin, Cal. Procedure, supra, Trial, § 433, pp. 379–380.) But
if the judgment notwithstanding the verdict is reversed, then the
moving party must fall back on a second line of defense, the
retrial. (See Jach v. Edson (1967) 255 Cal.App.2d 96, 100 [order
granting new trial reversed]; Dietrich v. Litton Industries, Inc.
(1970) 12 Cal.App.3d 704, 719 [order granting new trial
affirmed].)
A trial court must render JNOV whenever a motion for a
directed verdict for the aggrieved party should have been
granted—that is, if it appears from the evidence, viewed in the
light most favorable to the party securing the verdict, that there
is no substantial evidence in support of the verdict. (Ryan v.
County of Los Angeles (2025) 109 Cal.App.5th 337, 356; Wolf v.
Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107,
1138; Sweatman v. Department of Veterans Affairs (2001) 25
Cal.4th 62, 68.) The court must deny the motion if there is any
substantial evidence to support the verdict. (Begnal v. Canfield
& Associates, Inc. (2000) 78 Cal.App.4th 66, 72; Linear
Technology Corp. v. Tokyo Electron Ltd. (2011) 200 Cal.App.4th
1527, 1532.) Our review is de novo. (Ryan, at p. 356.) The test
on appeal is the same as that governing the trial court’s ruling on
the JNOV motion: whether the verdict rests on substantial
evidence, contradicted or not, constituting a prima facie case of
the claim or defense asserted. (Gordon v. Strawther Enterprises,
15
Inc. (1969) 273 Cal.App.2d 504, 511; Wolf, at p. 1138.)
The standards for reviewing an order granting a new trial
are well settled. After authorizing trial courts to grant a new
trial on the grounds of “[e]xcessive . . . damages” or
“[i]nsufficiency of the evidence,” section 657 provides: “[O]n
appeal from an order granting a new trial upon the ground of the
insufficiency of the evidence . . . or upon the ground of excessive
or inadequate damages, . . . such order shall be reversed as to
such ground only if there is no substantial basis in the record for
any of such reasons.” (§ 657, italics added.) Thus, we have held
that an order granting a new trial pursuant to section 657 “must
be sustained on appeal unless the opposing party demonstrates
that no reasonable finder of fact could have found for the movant
on [the trial court’s] theory.” (Jones v. Citrus Motors Ontario,
Inc. (1973) 8 Cal.3d 706, 710.) Moreover, “[a]n abuse of discretion
cannot be found in cases in which the evidence is in conflict and a
verdict for the moving party could have been reached.” (Id. at p.
711; see Johnson & Johnson Talcum Powder Cases (2019) 37
Cal.App.5th 292, 336.) In other words, “the presumption of
correctness normally accorded on appeal to the jury’s verdict is
replaced by a presumption in favor of the [new trial] order.”
(Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 932; see
Johnson & Johnson, at p. 336.)
II. The Underlying Order Granting JNOV is Affirmed.
Piltan contends the trial court erred in granting JNOV
because the jury had evidence by which it could calculate
damages, to wit, the cost of producing the film, to assess the
value of the copyright at the time of conversion. Piltan argues
the trial court’s “reasoning demonstrates that it was not valuing
the copyright at the time of the conversion, but was instead
16
relying upon developments after,” such as the film’s failure to
generate any revenue.
A. Applicable Law
Conversion is the wrongful exercise of dominion over the
property of another. (Sheley v. Harrop (2017) 9 Cal.App.5th
1147, 1173.) The elements of a conversion claim are: (1) the
plaintiff's ownership or right to possession of the property; (2) the
defendant's conversion by a wrongful act or disposition of
property rights; and (3) damages. (Ibid.) Per Civil Code section
3336, “[t]he detriment caused by the wrongful conversion of
personal property is presumed to be: [¶] First—[t]he value of the
property at the time of the conversion . . . ; and [¶] Second—[a]
fair compensation for the time and money properly expended in
pursuit of the property.” (Civ. Code, § 3336, italics added.)
B. Analysis
Viewing the evidence in the light most favorable to the
party securing the verdict (Piltan), we find there is no substantial
evidence to support the jury’s damages finding in the amount of
$145,000.
We review the evidence, or lack thereof, pertaining to
damages. Piltan presented no evidence as to the value of the
copyright on or around the time of conversion—i.e., March 22,
2016—the date on which Novell obtained the copyright’s
certificate of registration under the name of Novell Productions.
Surprisingly, Piltan produced no expert witness at trial to opine
as to the value of the copyright of the film at the time of
conversion. “A copyright has a present value based upon the
ascertainable value of the underlying artistic work.” (In re
Marriage of Worth (1987) 195 Cal.App.3d 768, 775.) An expert’s
17
analysis and resulting opinion would have been helpful in that
regard.
Novell testified that neither he nor his production company
received any money from the distribution of the film. Similarly,
Piltan testified that he has received no profits from the film to
date.
Most importantly, 15 months prior to the date of the
conversion, it was already agreed, via the short form contract
entered with Ytinifni on December 23, 2014, that Ytinifni would
have the exclusive right to distribute the film for a 25-year term.
Ytinifni’s distribution fee “shall be 25% of gross receipts.” Thus,
the film was already subject to the short form contract with
Ytinifni prior to Novell’s registration of the copyright. In fact,
Piltan testified that he was personally aware of the short form
contract and had received a scanned copy of the agreement in
December 2014 “shortly after” Novell’s and the distributor’s
execution of it. Further, no evidence was provided demonstrating
that the copyright’s value was affected based on who owned the
copyright—Novell Productions or Mac Daddy Films—during the
25-year term where exclusive distribution rights are held by
Ytinifni. The copyright’s registration in the name of Novell
Productions instead of Mac Daddy Films in no way affected the
amount of money anticipated from the profit from the film; there
is no evidence to the contrary. There was also no evidence
demonstrating efforts expended by Mac Daddy Films to transfer
or obtain the copyright from Novell Productions.
In addition, any attempt to presently ascertain the value of
the copyright at the close of the 25-year exclusivity term with
Ytinifni is speculative at best. (See Engle v. City of Oroville
(1965) 238 Cal.App.2d 266, 274 (Engle) [“evidence of loss of
18
prospective profits was too speculative to form a basis of
permissible recovery”].) “In a copyright action, a trial court is
entitled to reject a proffered measure of damages if it is too
speculative.” (Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc.
(9th Cir. 1985) 772 F.2d 505, 513.) Although uncertainty as to
the amount of damages will not preclude recovery, uncertainty as
to the fact of damages may. (Ibid.) Speculation aside, there was
no evidence establishing or attributing any value to the copyright
at the expiration of the 25-year term of the distribution
agreement on which to base the damage award.
Piltan argues the jury could have relied upon the Piltan’s
“cost of producing the film to assess the value of the copyright as
of the date of conversion.” Gerwin v. Southeastern Cal. Assn. of
Seventh Day Adventists (1971) 14 Cal.App.3d 209, the case Piltan
cites to in support, is distinguishable. In Gerwin, a specific
performance action regarding the breach of an agreement for the
sale of restaurant and bar equipment (versus our case involving
the value of a copyright to a film), the plaintiff testified without
contradiction that, having previously owned bars, he was familiar
with the cost of obtaining replacement equipment. (Id. at
pp. 218, 221.) Witness testimony regarding the market value of
new equipment and photographs were received into evidence to
show the quality of furnishings. (Ibid.) This evidence proved
sufficient proof of the value of the business to support a damage
award. (Ibid.) That is not our case. Unlike the situation in
Gerwin, the evidence presented in our case was less than
sufficient to prove the value of the copyright on or around March
2016.
Piltan contends “[o]ne way of determining the value of the
Film at the time of conversion would be to ask what price Mac
19
Daddy Films might have received if it had sold the rights to the
copyright at the time of conversion . . . . While it is obviously
difficult to make that calculation, it was certainly not
unreasonable for the jury to conclude that the price would equal
at least the cost of production.” Yes, this type of information
would have qualified as helpful evidence in support of an award
of damages. However, as already mentioned, Piltan failed to
provide the jury with any expert testimony or calculation to that
effect.
Piltan also argues “there was evidence that supported an
award of at least nominal damages, because Novell appropriated
the cost of the copyright report and of registration of the
copyright.” We disagree. No other damages were proven and in a
tort action “ ‘nominal damages to vindicate a technical right
cannot be recovered . . . where no actual loss has occurred.’ ”
(Engle, supra, 238 Cal.App.2d at p. 274.)
In his opening brief, Piltan briefly argues that the trial
court erred in entering JNOV because “Piltan was entitled to a
declaration that he was the owner of the copyright.” Piltan
reiterated this position at oral argument, asserting the trial court
erred by not declaring Piltan the copyright’s owner. Piltan,
however, overlooks his own prior representations to the trial
court. During his exchange with the trial court at the November
19, 2021 pre-trial conference, the court expressly asked Piltan
whether he is “seeking return of any property or seeking any
return of copyright or anything else?” (Italics added.) Piltan’s
counsel unequivocally answered, “No, your honor.” In addition,
the question of whether Piltan owns the copyright or whether the
copyright should be returned to Piltan was never posed to the
jury. The jury determined in the first question of the special
20
verdict whether “Mac Daddy Films, LLC have a right to possess
the copyright and company assets.” (Italics added.) The question
of Piltan’s ownership of the copyright was never discussed.
Moreover, Piltan never pursued declaratory relief below. Piltan
noted during oral argument that the issue was raised via his
March 3, 2022 objection to Novell’s proposed judgment. He
contends the trial court failed to “modif[y] the judgment to reflect
that ownership of the copyright lay with Piltan.” Piltan’s
assertion that declaratory relief was pleaded in his FAC and later
raised via his objection to the proposed judgment does not cure
the fact that this issue was never pursued in trial.
We conclude that the verdict was not supported by
substantial evidence and therefore affirm the order granting
Novell’s JNOV motion.
III. The Underlying Order Granting the Motion for New
Trial is Dismissed as Moot.
Piltan next argues that while the trial court was entitled to
reweigh evidence on the motion for new trial, the court was not
permitted to substitute its own judgment for that of the jury on
the question of damages.
Because the trial court’s order granting JNOV is affirmed
on appeal, the conditional new trial order also granted by the
trial court becomes moot and is dismissed. (§ 629, subd. (d); Cobb
v. University of So. California (1996) 45 Cal.App.4th 1140, 1146.)
We thus need not and do not address Piltan’s claim that the trial
court’s grant of a new trial was not justified.
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IV. Failure to Join an Indispensable Party is Not a
Jurisdictional Defect
We address Novell’s argument that Piltan’s failure to join
indispensable party Mac Daddy Films to the action “must result
in a discontinuance of the action, not for a mere defect in parties,
but for lack of jurisdiction to proceed.”
A. Applicable Law
Where a cause of action seeks to recover for harms to the
corporation, the shareholders have no direct cause of action
“[b]ecause a corporation exists as a separate legal entity” (Grosset
v. Wenaas (2008) 42 Cal.4th 1100, 1108 (Grosset)) and “ ‘is the
ultimate beneficiary of such a derivative suit’ ” (Patrick v. Alacer
Corp. (2008) 167 Cal.App.4th 995, 1003 (Patrick)). (Schrage v.
Schrage (2021) 69 Cal.App.5th 126, 149; see Cotton v. Expo Power
Systems, Inc. (2009) 170 Cal.App.4th 1371, 1380 [“A derivative
claim is a property right that belongs to the corporation.”].)
“The shareholders may, however, bring a derivative suit to
enforce the corporation’s rights and redress its injuries when the
board of directors fails or refuses to do so. When a derivative suit
is brought to litigate the rights of the corporation, the corporation
is an indispensable party and must be joined as a nominal
defendant.”7 (Grosset, supra, 42 Cal.4th at p. 1108, italics added;
see Patrick, supra, 167 Cal.App.4th at p. 1004 [“Though the
7 Naming the corporation a defendant, not a plaintiff, follows
from the joinder rules: “If the consent of any one who should have
been joined as a plaintiff cannot be obtained, he may be made a
defendant.” (§ 382.) So although the corporation is made a
defendant in a derivative suit, the corporation nevertheless is the
real plaintiff. (Patrick, supra, 167 Cal.App.4th at p. 1004.)
22
corporation is essentially the plaintiff in a derivative action,
‘[w]hen a derivative suit is brought to litigate the rights of the
corporation, the corporation . . . must be joined as a nominal
defendant.’ ”].) The particular stockholder who brings the suit is
merely a nominal party plaintiff; it is the corporation that is the
ultimate beneficiary of such a derivative suit. (Patrick, at
p. 1003.) Thus, the corporation is the real party plaintiff in the
action. (Ibid.) The corporation “must be joined because ‘its
rights, not those of the nominal plaintiff, are to be litigated’ ” and
to offer the real defendants res judicata protection from later
suits. (Id. at p. 1004.)8
The determination of whether a party is indispensable is
governed by section 389. (County of San Joaquin v. State Water
Resources Control Bd. (1997) 54 Cal.App.4th 1144, 1149 (County
of San Joaquin).) Section 389 describes a two-part test.
Subdivision (a) provides the criteria for who should be included in
the lawsuit if joinder is possible, “sometimes referred to as
‘necessary’ parties.” (County of San Joaquin, at p. 1149.) If a
party is deemed necessary but cannot be joined as a party (e.g.,
because the court does not have jurisdiction over the party), the
court must then determine “whether in equity and good
conscience the action should proceed among the parties before it”
or should be dismissed because the absent parties are
“indispensable.” (§ 389, subd. (b).) Subdivision (b) sets forth the
8 Although these principles arose in the context of
corporations, they apply equally to limited liability companies,
including Mac Daddy Films. (See PacLink Communications
Internat., Inc. v. Superior Court (2001) 90 Cal.App.4th 958, 963;
see also Denevi v. LGCC, LLC (2004) 121 Cal.App.4th 1211, 1214,
fn. 1.)
23
factors to be considered by the court, including to what extent a
judgment rendered in the person’s absence might be prejudicial
to him or those already parties, and whether a judgment
rendered in the person’s absence will be adequate, inter alia.
(Ibid.)
Whether a party is necessary and/or indispensable is a
matter of trial court discretion in which the court weighs factors
of practical realities and other considerations. (Hayes v. State
Dept. of Developmental Services (2006) 138 Cal.App.4th 1523,
1529.) The standard of review is abuse of discretion. (Hayes, at
p. 1529; TruConnect Communications, Inc. v. Maximus Inc.
(2023) 9 Cal.App.5th 497, 515.)
B. Analysis
Piltan argues that since “Novell never raised the absence of
the LLC as an issue until after trial, he is estopped to raise the
point now.” (Italics omitted.) “ ‘[I]t is frequently stated that the
failure to join an indispensable party constitutes a jurisdictional
defect which may be raised initially on appeal.’ ” (Kraus v.
Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 364
(Kraus), italics added.) Regardless, Novell’s argument does not
succeed here.
Returning to Novell’s argument that this court has no
jurisdiction over the matter due to the absence of indispensable
party Mac Daddy Films—“the failure to join an ‘indispensable’
party is not ‘a jurisdictional defect’ in the fundamental sense;
even in the absence of an ‘indispensable’ party, the court still has
the power to render a decision as to the parties before it which
will stand.” (Kraus, supra, 73 Cal.App.3d at p. 364.) Put
differently, it does not deprive a court of the power to make a
legally binding adjudication between the parties properly before
24
it. “It is for reasons of equity and convenience, and not because it
is without the power to proceed, that the court should not proceed
with a case where it determines that an ‘indispensable party’ is
absent and cannot be joined.” (Ibid., italics added.)
The trial court here confirmed that Mac Daddy Films
should have been named as a nominal defendant but explained
its reasoning that “[n]onjoinder of a party must be raised at the
outset of the action or defendant waives the defect.” The trial
court was empowered to make that determination. (See Martin
v. Kehl (1983) 145 Cal.App.3d 228, 242 [“Any Claim of Lack of
Indispensable Party Was Waived”]; see Doe v. Regents of
University of California (2022) 80 Cal.App.5th 282, 306 [“the
decision whether to dismiss an action for failure to name an
indispensable party is a matter of judicial discretion, which may
turn on many factors”]; see Kraus, supra, 73 Cal.App.3d at p. 366
[“ ‘When joinder cannot be accomplished, the circumstances must
be examined and a choice made between proceeding with or
dismissing the action. The adequacy of the relief that may be
granted in a person’s absence and the possibility of prejudice to
either such person or the parties before the court are factors to be
considered in making this choice.’ ”].) In fact, the trial court
mentioned at the November 19, 2021 pre-trial conference that
“[i]n a typical derivative action, plaintiff is the plaintiff on behalf
of the company or the LLC and the LLC is the nominal
defendant” but here, Piltan “didn’t name [Mac Daddy Films,
LLC] as a nominal defendant in this case.” (Italics added.) The
record shows Novell did not raise any issue at that point as to the
trial court’s jurisdiction over the matter.
Novell’s responsive brief on appeal is silent as to whether
the trial court’s determination amounts to abuse of discretion and
25
the record shows he did not raise this issue following the trial
court’s ruling on Novell’s motions either. Novell has thus
forfeited that argument and the issue is decided against him.
(DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 178.)
We pause here to underscore the fact that a great deal of
the parties’ litigation against each other could have been avoided
were it not for their trial counsel’s compounded carelessness
and/or errors. For instance, there is no reason why Mac Daddy
Films was not properly joined as a nominal defendant in the
underlying matter, which would have eliminated any subsequent
jurisdictional dispute. That would have been an easy fix
remediable at the outset. Compounding this, Piltan’s FAC
inconsistently refers to the company as “Mac Jay Films, LLC” in
the caption but refers to the company as “Mac Daddy Films, LLC”
elsewhere in the FAC, creating unnecessary confusion and
ambiguity.
In addition, the parties’ (and/or their counsel’s) decision to
pursue multiple separate lawsuits arising out of the same set of
circumstances, i.e., the producing of the film, resulted in
protracted litigation and inconsistent results. Most notably, the
jury in one case (LASC case No. 19STCV14650) found Piltan
“agree[d] to waive the protection of Civil Code section 1542 when
he settled the prior case [BC622302] and accepted $80,000.”
However, the jury in the underlying case (LASC case No.
19STCV14652) found that Piltan, Novell, and Novell Productions
did not enter into a settlement agreement. To that end, we
invited the parties to provide supplemental briefing on the issue
of whether or not the Civil Code section 1542 waiver in the
parties’ settlement agreement in the prior case precludes Piltan’s
claims in this case/appeal. Piltan reminded us via his March 13,
26
2026 responsive letter that he signed the settlement agreement
individually—not as agent, manager, or representative of Mac
Daddy Films. Thus, Mac Daddy Films is not a party to the
settlement and is not a signatory to the settlement agreement—
another oversight that would have avoided this underlying
lawsuit entirely. Taken together, the record reflects a pattern of
avoidable missteps that unnecessarily burdened both the parties
and the judicial system. Such circumstances highlight the
importance of careful case management, accurate drafting, and
the consolidation of related claims to promote consistent
judgment(s), finality, and efficient use of judicial resources.
DISPOSITION
The judgment and underlying order granting the motion for
judgment notwithstanding the verdict are affirmed. The
underlying order granting the motion for a new trial is dismissed
as moot. Costs are awarded to Novell and Novell Productions,
LLC.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
VIRAMONTES, J. SCHERB, J.
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