Smith v American Idol
Motion for Summary Judgment/Adjudication
| Calendar: | 9 | ||
| Case No.: | BC643000 | ||
| Hearing Date: | July 26, 2019 | ||
| Action Filed: | December 12, 2016 | ||
| Trial Date: | October 07, 2019 |
| MP: | Defendant Future Sonics, Inc. |
| RP: | Plaintiff Michael Simeon Smith |
ALLEGATIONS:
Plaintiff Michael Simeon Smith alleges that sometime prior to December 12, 2014, he entered into a Contestant Agreement with various media defendants to be a contestant on the American Idol television show. On December 12, 2014, he alleges that he was fitted with a silicone and/or molding material in his right ear and he immediately felt pain.
According to the moving papers, an oto-dam and silicone impression material from Defendant Westone Laboratories, Inc. (“WLI”) were used during the impression procedure, such that Plaintiff asserts various products liability causes of action against WLI.
On December 12, 2016, Plaintiff filed the Complaint, alleging causes of action for: (1) negligence; (2) strict products liability: design defect; (3) strict products liability: failure to warn; (4) products liability: negligence; (5) breach of express warranty; and (6) breach of implied warranty.
PRESENTATION:
The instant motion for summary judgment or adjudication was filed by Defendant Future Sonics on May 10, 2019. Plaintiff opposed the motion on July 12, 2019, and a reply brief was submitted on July 19, 2019.
RELIEF REQUESTED:
Defendant Future Sonics moves for judgment on the grounds that the single cause of action for negligence (1) cannot be established under the facts of this case, as Future Sonics did not have a duty to Plaintiff nor are Defendants Tanihana and Montoya employees of Future Sonics, and (2) the actions is barred by release, assumption of the risk, and waiver in Plaintiff’s contract.
DISCUSSION:
Standard of Review – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. §437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.
“For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” Code Civ. Proc. §437c(p)(1).
When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal. App. 4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.
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First Cause of Action (Negligence) – The elements of a negligence claims are: (1) defendant’s legal duty of care toward plaintiff; (2) defendant’s breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. Pultz v. Holgerson(1986) 184 Cal. App. 3d 1110, 1117.
The issues presented in the instant motion related to the applicability of the waiver and release are substantively identical to those presented in the motion for summary judgment heard on July 19, 2019. As it is undisputed that Future Sonics is a contractor under the relevant language of the contract (Plaintiff’s Separate Statement [“PSS”], ¶48), and the arguments Plaintiff raises against the applicability of the contract are identical to those provided in opposition to the prior motion, the Court will adopt the analysis of its prior statement of decision. For convenience, the Court will reproduce the relevant portions of its July 19, 2019, decision below:
Unconscionability – “Whether an agreement is unconscionable depends on circumstances at the time it was made. [Citation.] Unconscionability analysis begins with an inquiry into whether the contract is one of adhesion. [Citation.] If the agreement is adhesive, the court then considers whether other factors render it unenforceable under established legal principles.” Abramson v. Juniper Networks, Inc. (2004) 115 Cal. App. 4th 638, 655 (citing Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83).
Furthermore, a finding that the franchise agreement was not a contract of adhesion would not end the inquiry into whether the provision is unconscionable. Under Civ. Code § 1670.5, courts have the power to determine whether a contract or a clause thereof was unconscionable at the time it was made by considering the “commercial setting, purpose, and effect” of the clause or contract. Civ. Code § 1670.5(b). Both procedural and substantive unconscionability must be present before a court can refuse to enforce a contract term based on unconscionability. See Abramson v. Juniper Networks, Inc. (2004) 115 Cal. App. 4th 638, 655-56 (regarding arbitration provisions). Procedural unconscionability concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. The relevant factors are oppression and surprise. The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party. The component of surprise arises when the challenged terms are hidden in a prolix printed form drafted by the party seeking to enforce them. Where an adhesive contract is oppressive, surprise need not be shown. Id., at 656. “Substantive unconscionability” focuses on the terms of an agreement and whether those terms are so one-sided as to shock the conscience. Id., at 657. Substantive unconscionability may be shown if the disputed contract provision falls outside the nondrafting party’s reasonable expectations.” Parada v. Superior Court (2009) 176 Cal. App. 4th 1554, 1573.
On review, the Court finds that while the facts viewed in the light most favorable to the non-moving party are sufficient to support the inference that the contract is one of adhesion, the facts are insufficient for the Court to determine that the contract was procedurally or substantively unconscionable.
As to the issue of procedural unconscionability, while the Contract is in the nature of a ‘take-it-or-leave-it’ contract of adhesion, other procedural elements vitiate the ability for the Court to infer that the nature of the contract resulted in oppression or surprise. Specifically, the undisputed fact that Plaintiff had between 3-4 weeks to review the contract before signing it militates against the finding of procedural unconscionability. Plaintiff’s Separate Statement, ¶9. This element of time is different from cases where a person with no bargaining power is presented with an option to immediately sign away their rights or else lose a significant opportunity presented to them. For example, in Baltazar v. Forever 21, Inc.(2016) 62 Cal. 4th 1237, the California Supreme Court generally agreed that a ‘take-it-or-leave-it’ arbitration provision in an employment contract was a contract of adhesion, and presumptively procedurally unconscionable, but that the single-meeting application process through which Baltazar was required to waive her rights did not present strong evidence for procedural unconscionability because “while the contract was adhesive in nature, there was no element of surprise. Baltazar not only knew about the arbitration agreement, but initially sought to avoid it, ultimately deciding to accept it because Forever 21 was not willing to offer the job on other terms. Nor was there any oppression or sharp practice on the part of Forever 21. Baltazar was not lied to, placed under duress, or otherwise manipulated into signing the arbitration agreement. The adhesive nature of the employment contract requires us to be ‘particularly attuned’ to her claim of unconscionability [Citation], but we do not subject the contract to the same degree of scrutiny as ‘[c]ontracts of adhesion that involve surprise or other sharp practices’ [Citation.].” Baltazar v. Forever 21, Inc.(2016) 62 Cal. 4th 1237, 1245-46.
Here too, there are no indicia of sharp practices on the part of Moving Defendants, nor was there any element of surprise that might exert an oppressive force on Plaintiff’s decision. Rather, the undisputed facts indicate that, other than the inferred ‘take-it-or-leave-it’ nature of the contract, there is no basis whatsoever to infer that the contract was procedurally unconscionable. The Court notes that Plaintiff concedes in opposition that not all contracts of adhesion are oppressive, (Opposition, 7:13-17), and the Court concludes that this is one of those instances where a potentially adhesive contract is not oppressive. The Court additionally notes that it is not clear from the evidence provided that the contract is adhesive, or that a contestant lacks bargaining power due to the unique skills and talents of the contestants being more difficult to find adequate replacements, but the Court has accepted the inference of adhesion for the purposes of analyzing this summary judgment motion.
Of course, “‘[t]o describe a contract as adhesive in character is not to indicate its legal effect. It is, rather, the beginning and not the end of the analysis insofar as enforceability of its terms is concerned.’ [Citations]. The central issue is whether the adhesive contract is unduly oppressive or unconscionable. [Citation]. To speak in terms of ‘procedural’ unconscionability is to elevate the fact of adhesiveness, which is not per se oppressive, to the same level as ‘substantive’ unconscionability, thus tending to obscure the real issue.” California Grocers Assn. v. Bank of America (1994) 22 Cal. App. 4th 205, 214. Moreover, the determination of whether a contract term is unconscionable is analyzed on a sliding scale, “which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.” Baltazar v. Forever 21, Inc. (2016) 62 Cal. 4th 1237, 1244.
Plaintiff provides no arguments supported by evidence or legal authority as to whether the relevant contract terms are substantively unconscionable, and only asserts that “[s]ubstantively nothing could be more conscience shocking than DEFENDANTS’ interpretation of the Contestant Agreement: the DEFENDANTS could hand PLAINTIFF a microphone that explodes in his face on national TV and DEFENDANTS would owe PLAINTIFF no duty.” Opposition, 8:18-23. This statement does not reflect the facts of this case (there was no exploding microphone), nor does it present any citation directing the Court’s attention to relevant precedent or statutory law. Moving Defendants, on the other hand, have cited to ample caselaw that establishes that waiver and release provisions for ordinary negligence are generally accepted by the Courts absent a compelling public policy to the contrary – which would not exist under the present circumstances of a singing competition. The law, combined with the clear presentation in the contract that describes the nature of the waiver and release provisions, is adequate to establish the lack of substantive unconscionability for the relevant terms.
As Future Sonics is one of the parties who is covered by the release for negligence, and the contract is not unconscionable, the Court will grant the motion for summary judgment on this basis.
Agency/Legal Duty – As an alternative basis for granting judgment, Future Sonics argues that the individuals performing the oto-dam procedure (Tanihana and Montoya) were not its agents, and that Future Sonics owed no duty to Plaintiff. In effect, Future Sonic intends to disprove its alleged vicarious liability for negligence by establishing that neither Tanihana nor Montoya were its agents at the time of the alleged incident. To be vicariously liable, the evidence must support an inference that either Tanihana or Montoya were an employee or agent of Future Sonics, or that they were an ostensible agent of Future Sonics. The evidence provided by Future Sonics is sufficient to establish a prima facie right to relief on this basis, and, as Plaintiff provides no evidence or legal argumentation whatsoever in opposition, Future Sonics is entitled to judgment on this basis as well.
“An employee is an individual who performs services subject to the right of the employer to control both what shall be done and how it shall be done and an employer is a person for whom an individual performs services as an employee.” Weisman v. Blue Shield of California (1984) 163 Cal. App. 3d 61, 67. “[T]he right to control job performance is the primary factor in determining any employment relationship.” State ex rel. Department of California Highway Patrol v. Superior Court (2015) 60 Cal. 4th 1002, 1012. “An agent is one who represents another, called the principal, in dealings with third persons.” Cal. Civ. Code §2295. “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Huong Que, Inc. v. Luu (2007) 150 Cal. App. 4th 400, 410-11. “An agency is proved by evidence that the person for whom the work was performed had the right to control the activities of the alleged agent.” Van’t Rood v. County of Santa Clara (2003) 113 Cal. App. 4th 549, 572.
In the evidence provided by Future Sonics, left undisputed by Plaintiff, it has been established that Future Sonics (1) never suggested to American Idol to use Tanihana or Montoya to perform the oto-dam work (PSS ¶11, 13); (2) never scheduled Tanihana or Montoya to perform the work (PSS ¶18); (3) never negotiated with American Idol for the services of Tanihana or Montoya (PSS ¶19); (4) did not know of the involvement of Montoya until the instant litigation (PSS ¶23); (5) never instructed Montoya in the performance of her work, (PSS ¶28); (6) never supervised Montoya’s work (PSS ¶28); (7) never supplied any materials for the oto-dam work (PSS ¶¶30-32); (8) never instructed what silicone material should be used for the oto-dam work (PSS ¶33); (9) never supervised either Tanihana or Montoya’s work (PSS ¶35); (10) never instructed Tanihana or Montoya on how to make an ear impression (PSS ¶36); (11) never received an invoice from Tanihana or Montoya, as such invoice was sent to American Idol (PSS ¶38); and (12) never paid Tanihana or Montoya for any work conducted (PSS ¶¶38-42). Further, it is undisputed that Tanihana was a certified audiologist (PSS ¶15), the uncontested evidence indicates that she has been doing business as ‘Impressions by Jami’, and has been engaged in ear impression work since 1983. Moving Ex. J, 112:1-9.
Plaintiff argues that the evidence provided by Future Sonics creates a material issue of fact as to whether Tanihana and Montoya were ‘really’ employees of Future Sonics, which involves the undisputed fact that (1) Future Sonics contacted Tanihana on behalf of American Idol when American Idol was unable to reach her (PSS ¶14). However, this fact does not support an inference that Tanihana and Montoya were subject to the control of Future Sonics such that it would be just to infer a principal-agent relationship. The undisputed facts that go to the issue of control, stated supra, all serve to establish the inference that no such principal-agent relationship existed.
Additionally, the Court notes that Plaintiff’s argument in opposition lacks sufficient foundation, as it contains no citation to the record, no statutory authority, and no caselaw in support of his contention. Opposition, 9:3-10:6. Absent a good faith basis for the modification or extension of an existing law, litigants are generally prohibited from asserting a position in litigation without authority. See, e.g., In re Estate of Randall (1924) 194 Cal. 725, 728-29 (“Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.”)(internal quotations omitted); California Rules of Professional Conduct, Rule 3.1. Additionally, the citation to general propositions of law, general statutes and rules, or the assertion that a legal principle applies, without analysis or authority, provides no basis for the court to analyze or adopt the request of the party, and requires no substantive analysis by the court. See Lafferty v. Wells Fargo Bank (2013) 213 Cal. App. 4th 545, 571-72 (“When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’”); Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 850 (“In a page and a half, and with citation to but one case for the general proposition the conduct was despicable, [Cross-Appellant appeals] from the granting of the directed verdict motion. This cursory treatment requires no discussion by us.”); Atchley v. City of Fresno (1984) 151 Cal. App. 3d 635, 647 (“Where a point is merely asserted by appellant’s counsel without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court.”).
As such, even if Future Sonics were not released from liability under the terms of the contract, judgment would be appropriate on the issue of lack of agency between Tanihana and Montoya, and lack of duty on that basis.
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RULING:
Grant the motion.
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In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.
ORDER
Defendant Future Sonics, Inc.’s Motion for Summary Judgment or Adjudication came on regularly for hearing on July 26, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
The motion is: GRANTED IN ITS ENTIRETY