Howard Entertainment, Inc. v. Kudrow
146 Cal. Rptr. 3d 154
Cal. Ct. App.2012Background
- Howard, Kudrow entered into an oral personal management agreement (1991) granting Howard a 10% commission; Kudrow terminated Howard in 2007 and Howard seeks post-termination commissions on earnings from engagements during the relationship; Kudrow moved for summary judgment arguing no post-termination agreement evidence existed; Howard offered expert Bauer stating industry custom supports post-termination commissions; the trial court excluded Bauer’s declaration for lack of foundation and granted summary judgment; on appeal, that exclusion was reversed on remand to evaluate Bauer’s supplemental declaration; on remand, Bauer’s supplemental declaration was deemed admissible and the case proceeded towards trial on custom-and-usage evidence; the trial court ultimately granted Kudrow summary judgment, which this court reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bauer’s declaration was admissible to prove industry custom | Howard contends Bauer’s testimony should be admitted to establish post-termination custom | Kudrow argues Bauer lacks foundation for his opinions | Yes; Bauer declaration admissible and creates triable issues |
| Standard of review for evidentiary rulings at summary judgment | Howard asserts de novo review; evidence should be evaluated openly | Kudrow asserts traditional abuse-of-discretion review | Evidentiary rulings reviewed under abuse of discretion, but court finds error in exclusion of Bauer’s declaration |
| Existence of industry custom for post-termination compensation | Custom in entertainment industry supports post-termination commissions | No established universal custom in 1991 to bind Kudrow | Custom existed and could bind Kudrow; issues for triable determination |
| Qualifications and facts underpinning Bauer’s opinion | Bauer’s experience provides adequate foundation to opine on industry custom | Foundational gaps asserted by Kudrow were valid | Bauer’s qualifications and the supplemental facts provide adequate foundation for his opinion |
| Triable issues remain on post-termination compensation scope | Evidence shows commissions on earnings during representation post-termination | No clear evidence of post-termination clause; reliance on custom unreliable | Yes; remand necessary to determine effect of custom and usage on the contract |
Key Cases Cited
- Mann v. Cracchiolo, 38 Cal.3d 18 (Cal. 1985) (expert admissibility may extend beyond precise specialty when knowledge is sufficient)
- People v. Gonzalez, 38 Cal.4th 932 (Cal. 2006) (expert foundation and reliability standards for opinion testimony)
- Hope v. Arrowhead & Puritas Waters, Inc., 174 Cal.App.2d 222 (Cal.App. 1959) (expert may rely on non-admitted familiar information in forming opinion)
- Reid v. Google, Inc., 50 Cal.4th 512 (Cal. 2010) (established standard for appellate review of evidentiary rulings at summary judgment (open question in this case))
- Marathon Entertainment, Inc. v. Blasi, 42 Cal.4th 974 (Cal. 2008) (discusses roles of personal managers and agents in entertainment industry)
- People v. Olguin, 31 Cal.App.4th 1355 (Cal.App. 1994) (admissibility and reliance guidance for expert testimony)