FILED Superior Court of Californta ‘County of Los Angeles Superior Court of California . - Fep-15 2018 County of Los Angeles Sherri R Carter, E Officer/Clerk »y. Deputy Department 51 ‘Richard Duarte SEVEN SUMMITS PICTURES & Case No.: BC604072 MANAGEMENT, LLC, Hearing Date: 2/9/18 (cont. from 2/5/18) Plaintiff, Trial Date: 3/27/18 v. RULING RE: ZOOEY DESCHANEL, et Summary Adjudication Motion Defendants. Plaintiff / cross-defendant Seven Summits Pictures & Management, LLC sues its former client, defendant / cross-complainant Zooey Deschanel. The operative first amended complaint against Deschanel alleges (1) breach of written contract, (2) breach of oral contract, (3) breach of implied contract, (4) declaratory relief, (5) quantum meruit, (6) accounting, and (7) promissory estoppel. Deschanel cross-sues Seven Summits and Sarah Jackson (Deschanel’s personal manager at Seven Summits). The operative first amended cross-complaint against Seven Summits and Jackson alleges (1) breach of fiduciary duty and (2) declaratory relief. Allegations As to the complaint, Seven Summits alleges that when Deschanel terminated their management relationship in August 2013, she continued to pay some post-termination commissions, but when Seven Summits requested commissions on a certain project, Deschanel retaliated by ceasing to pay any commissions in violation of their contract. Seven Summits performed substantial work ‘on the certain commissionable projects, including the Hello Giggles website, the New Girl television series, a Tommy Hilfiger endorsement campaign, and the 500 Days of Summer film. Deschanel, on the other hand, alleges that there is no enforceable written agreement between the parties, and the purported written agreement on which cross-defendants rély does not appear to contain her signature. As to the cross-complaint, Deschanel alleges four incidents gave rise to cross-defendants’ breach of fiduciary duty. Those allegations are as follows. es (1) Cross-defendants encouraged and advised Deschanel to leave talent agency CAA for UTA despite knowing that CAA was most well-suited for her career. Deschanel moved agencies in January 2013. She was unable to obtain further acting opportunities while at UTA. Shortly after terminating the management agreement with Seven Summits in August 2013, DeschanelRIL 22/79 retuned to CAA. This bad advice precipitated from cross-defendants’ taking advantage of Deschanel’s relationship with CAA by requesting that an agent there set up a meeting between cross- defendants and an actor-client of CAA whom cross-defendants sought to manage. CAA obliged cross-defendants’ request. Ultimately, the actor declined to retain cross-defendants. Cross- defendants were infuriated and blamed CAA for the actor's decision. To retaliate against CAA, cctoss-defendants encouraged and advised Deschanel to switch agencies. (2) When Deschanel was touring with her band, Jackson showed up unannounced and barged into Deschanel’s dressing room with two strangers when Deschanel was changing clothes. (3) Jackson sought producer credits on projects in which Deschanel was involved and to obtain back end participation that could affect the monies otherwise payable to Deschanel, (4) Jackson stated to Deschanel’s agent that she kept Deschanel with the agent for the purpose of making sure that the agent would send potential actors to be represented by Seven Summits. ~ Present Motion On November 21, 2017, cross-defendants filed this opposed summary adjudication motion, identifying three issues: that Deschanel cannot prove damages or causation on (1) her FACC’s first cause of action for breach of fiduciary duty, (2) her FACC’s second cause of action for declaratory relief to the extent itis premised on breach of fiduciary duty, and (3) her answer's first affirmative defense for breach of fiduciary duties. These issues are interrelated. The Court considered the moving, opposition, and reply papers, as well as the extensive argument at the hearing, and rules as follows. Failure to Highlight Transcript Cross-defendants’ counsel should note: “The relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.” CRC, rule 3.1116(¢). Alll parties are ORDERED to highlight or underlying the relevant passages of all transcripts submitted as evidence or risk such evidence being disregarded, rejected, and/or struck, and/or being subject to a monetary sanction. Evidentiary Objections The Court's rulings on the parties’ evidentiary objections are reflected in the proposed orders. Cross-defendants” purported motion to strike Deschanel’s evidence is DENIED. Summary Adjudication Standard The function of a motion for summary judgment or adjudication is to allow a determination as to ‘whether an opposing party cannot show evidentiary support for a pleading or claim and to enable8 ROLE an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing such motions, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal. App.4th 289, 294. Parties opposing such motions cannot rely upon “assertions that are ‘conclusionary, argumentative or based on conjecture and speculation,”” but instead must “‘make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact ...."" Roberts v. ‘Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1404. “[O]pposing evidence that is merely equivocal will not suffice to raise a triable fact issue.” Stewart v. Preston Pipeline Inc. (2005) 134 Cal. App.4th 1565, 1589. Opposing declarations must include evidentiary facts and more than ultimate facts repeating allegations, or conclusions. Snider v. Snider (1962) 200 Cal. App.2d 741, 751 Breach of Fiduciary Duty Standard ‘The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damages proximately caused by the breach. Stanley v. Richmond (1995) 35 Cal. App.4th 1070, 1086. The duty of loyalty is a fiduciary duty. A fiduciary breaches this duty when engaging in self- interested behavior. See Wallner v. Parry Professional Bldg., Ltd. (1994) 22 Cal.App.4th 1446, 1448. First Incident: Speculative Damages Cross-defendants argue that the alleged damages flowing from the first incident (advising Deschanel to switch agencies) are nonexistent or speculative. “Generally, ‘damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.’ [Citation.]” Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal. App.4th 1118, 1132. “However, recovery is allowed if, claimed benefits are reasonably certain to have been realized but for the wrongful act of the opposing party.” Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989. Here, there is evidence that UTA and CAA are “A level” peer agencies. Jackson Decl. 27; Exh. B, Peters Depo. 28:8-18 (comparing UTA, CAA, and William Morris as peer, “A. level,” and most competitive agencies.) Deschanel does not genuinely dispute these facts. A series of correspondence from December 2012 through February 2013 shows that Deschanel, ‘was offered several acting roles for the 2013 hiatus. Exh. 41. Deschanel does not genuinely dispute this factRIAL 2/08 The import of these facts is that (at least absent some other facts) UTA’s quality and abil were essentially the same as CAA’s and that UTA did secure opportunities for Deschanel for the 2013 hiatus. On November 29, 2012, Deschanel stated to Jackson in an email, “this hiatus- I really just want to play a very interesting small character role in a movie. That's my only goal acting wise. can ‘we make this happen? I am worried that it will close in and I won't have this one thing I want to do and considering the fact that a she & him tour is shaping up now, I am more concerned than ever that I don’t have something interesting to do.” Exh. 26. At deposition, Deschanel testified that around the date of the email, “We were talking about dates [for the She & Him 2013 hiatus tour].” Exh. A, Deschanel Depo. 228:20-25. The import of this email is multifaceted. First, it establishes that Deschanel’s criteria for “suitable” roles were extremely narrow. Second, it establishes that Deschanel herself was then setting dates for or at least involved in scheduling the tour. Third, it establishes that Deschanel herself recognized that her own availability was limited by a music tour that was then “shaping up” and that the tour would conflict with acting opportunities. In opposition, Deschanel argues that the email actually supports an inference that she believed that she could take on an acting role during the 2013 hiatus despite her anticipated busy schedule. Deschanel’s subjective beliefs at that moment, however, are largely irrelevan context. The issue is whether she actually could have obtained such employment, this Deschanel also states that the email was actually expressing that a general reference “to the time that is available during the hiatus.” She also states that no tour dates were finalized, that she was waiting to secure a film role first, and that she committed to the tour in spring 2013 when she became convinced that UTA could not “get me a movie.” Deschanel Decl. $ 17. On January 29, 2013, however, Jackson sent an email to Deschanel’s UTA team identifying Deschanel’s band’s tour dates. UTA agent Jelline responded, “This is pretty much a hiatus killer???” Exh. 38. At deposition, Jelline explained that, by that response, he “was just, identifying the fact that the dates ... were going to be a conflict with” Deschanel’s ability to secure employment during the 2013 hiatus. Exh. C, Jelline Depo. 36:20-25. This evidence establishes that, at minimum, Deschanel left an impression that her availability ‘was very limited, It further establishes that Deschanel had essentially finalized the tour dates and moved forward on planning the tour regardless of the progress on securing an acting role. Subsequent correspondence confirms this view and is evidence of additional reasons why an acting job was merely speculative On February 3, 2013, Ted Melfi wrote in an email that Deschanel “said she’s going on tour with her music in June and July for 4 weeks. Doesn’t matter...I'm a huge fan and we'll see what happens. One never knows. I have to run her up the Harvey flagpole....see what he thinks.” Exh. 39. This email establishes that the role Deschanel pursued under Melfi required Harvey’s (presumably referring to producer Harvey Weinstein) approval. Deschanel proffers no evidenceca eneen a) about why Weinstein did not approve Deschanel for a role, least of all because of her switching agencies. Ina February 19, 2013 email chain, Deschanel was in fact offered the lead role in a film. In response, she stated, “I’m worried I won't have time to play a lead role this hiatus- i [sic] have so little time and its [sic] dwindling away- I was looking for a small part I can get done in a short amount of time this hiatus ....”" She also stated, “it's just so busy this hiatus, unless they were on a3 week shooting schedule or something.” Ultimately, she stated, “That would be way too much to do even if I love it.” Exh. 40. UTA agent Peters testified, “In general, [Deschanel] chose to say no to most everything because of her availability.” Exh. B, Peters Depo. 70:20-21. Thus, the record establishes that Deschanel had finalized the tour dates by January 29, 2013, and that Deschanel had some degree of control over the tour dates. It also shows that, even if Deschanel herself believed that she had sufficient availability, others did not. It also shows that factors outside of her, UTA, and cross-defendants’ control played a role, particularly, the unexplained absence of Weinstein’s approval Moreover, Deschanel does not genuinely dispute the obvious facts that securing an acting job depends on the actor’s availability or that numerous factors influence an actor's employment. Exh. B, Peters Depo. 60:19-21, 85:15-16. (Although the cited testimony does not identify the “numerous factors,” the record establishes that the factors include the actor’s availability, the actor’s criteria, the producer’s approval, the nature of the project, the nature of the specific role, and the shooting schedule. None of these factors aligned for Deschanel’s 2013 hiatus.) In opposition, Deschanel asserts that the scripts that UTA provided her were inappropriate for her, citing insufficient quality, “some aspect of the required performance that otherwise did not ‘work, such as that it was for a lead role or otherwise was a time-consuming role ....” Deschanel Decl. 4116. These assertions are not substantial evidence for summary adjudication purposes and do not establish a genuine dispute. Deschanel states no facts about the scripts’ quality or the “some aspect,” other than being time-consuming. The record establishes that Deschanel’s unavailability (due to a concert tour) and perception thereof was a problem of her own making that she created by late-January 2013 Deschanel also asserts, “It is common for me to obtain employment on a film during my hiatuses from the New Girl television program.” Deschanel Decl. § 14. It is undisputed, however, that the 2013 hiatus was Deschanel’s first from the New Girl. Therefore, at the relevant time, there ‘was no consistent or established pattern for Deschanel’s hiatuses. Deschanel’s post-hoc expectations are inherently speculative. Deschanel Decl. § 15. Finally, the Court cannot ignore that Deschanel has not identified any other “suitable” opportunity that UTA could and should have pursued on her behalf. Explained differently, as a threshold matter, there is no evidence suggesting that any acting opportunity that would have suited Deschanel’s very narrow criteria (“a very interesting small character role in a movie” with “a 3 week shooting schedule or something”) for the 2013 hiatus existed, was made known toCAA, and was one that she would have been hired for. ‘These omissions underscore the strength of cross-defendants’ argument that Deschanel’s damages are speculative. There certainly could be a case where a decision to advise an actress to switch agencies could cause damages. But here, based on the record, cross-defendants meet their initial burden by proffering evidence that factors beyond their control (not least of which was Deschanel’s own availability) rendered Deschanel’s 2013 hiatus employment prospects thin and this accounted for the lack of role—not the agency switch. Deschanel does not meet her responsive burden of proffering evidence that could establish a genuine dispute as to these facts. The motion is GRANTED. Cross-defendants argue that Deschanel cannot establish proximate cause because numerous intervening events broke the causation chain. In Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1460, the Court of Appeal credited the physician-respondents’ argument that evidence of “an extended chain of causation that involved discretionary decisions by the police, as well as [petitioner / plaintiff] Ryann’s noncooperation in the limited police investigation that did occur” broke the causation chain and affirmed the judgment in their favor. Id. at 1460, 1462. Here, as discussed above, the record establishes that Deschanel limited her own availability and created a perception of same. These undisputed facts contradict the claim that cross-defendants” advising Deschanel to switch agencies caused her not to secure employment during the 2013 hiatus. Deschanel’s availability would have been limited, or at least perceived as limited, even if she stayed at CAA. Additionally, on December 19, 2012, Deschanel wrote an email to her CAA agent Jim Toth stating, “As you recall you were bought [sic] on in the first phase to repair a broken relationship because I wasn’t happy at the agency ... the issues I had prior to my working with you still remain. After seven years at CAA, I feel I need to see what else is out there. Perhaps I am wrong and I will come back, but I need to find out. It is with a very heavy heart that I move on, but this the time for me to do it.” Exh. 67. In opposition, Deschanel states that her email was actually referring to an earlier relationship between her and another CAA agent that had been resolved years ago, and that the email simply thanked Toth for resolving the issue. Deschanel Decl. ]9. The email’s stating that “the issues still remain” contradicts that explanation, Based on the words of the email, the Court must conclude that the “issues” persisted and independently influenced Deschanel’s decision to leave CAA. Additionally, there is no dispute that Deschanel actually met with UTA representatives in the course of evaluating her choice of agency. Thus, the record supports the conclusion that Deschanel had her own reasons for leaving CAA, independent of cross-defendants’ advice and encouragement.eter 7z/ 7a Further, in spring 2015, Deschanel returned to UTA to follow her CAA agent who himself moved to UTA. But Peters is still at UTA and is part of Deschane!’s team. Deschanel Decl. 19. Also, while initially at UTA, Melfi stated in an email that Deschanel “said that this was the first script she’s received from UTA since she left the ‘alien spaceship place’ and was so very happy that you guys get her and get what she want to do. She's [sic] was very excited after she read the St. Vin to know she made the right choice.” Exh. 39. The combination of Deschanel’s returning to UTA and Peters, plus her complimentary statements about UTA (admissible hearsay statements against interest) support the notion that there was no defect in UTA’s representation. Cross-defendants satisfy their burden by proffering evidence that Deschanel’s own conduct and independent reasons caused her not to obtain an acting job for the 2013 hiatus. ‘The motion is GRANTED. Second Incident Deschanel asserts that cross-defendants breached their fiduciary duty when Jackson barged into Deschanel’s dressing room while she was changing when she was touring with her band. Jackson was with two intoxicated individuals, perhaps the filmmakers from whom Jackson obtained producer credit and fees on a documentary. Deschanel Decl. {¥ 20-21, Exhs. 24-25. ‘The Court agrees that these allegations do not state a breach of fiduciary duty. Deschanel does not dispute Jackson’s statements that she was invited backstage along with Deschanel’s friends, family, agents, and band members. Jackson Decl. 22. Additionally, at deposition, Jackson testified that she received the compensation for introducing the filmmakers to Loretta Lynn, the subject to the documentary. Exh. 3, Jackson Depo. 135:15- 25, Deschanel proffers no evidence that Jackson received the credit and cash because she introduced the filmmakers to Deschanel. Deschanel does not proffer evidence suggesting that Jackson and the filmmakers arrived at the decision to compensate Jackson based on an introduction to Deschanel. Deschanel states that she was not interested in participating in the documentary. OPP 15:14-15. The claim thus is that Jackson received something akin to a finder’s fee with respect to Deschanel when she never actually secured Deschanel’s participation in the documentary. Even if this somehow makes sense, the Court agrees that, on this record, Deschanel states no cognizable damages. Deschanel does not claim resulting financial loss or lost entertainment job opportunities. Instead, in opposition, she asserts that the incident caused a violation of her privacy rights, embarrassment, and humiliation. But Deschanel affirmatively disclaims emotional distress damages. Exh. A, Deschanel Depo. 240:1-3. A cause of action for invasion of privacy is distinct from breach of fiduciary duty; these are two different rights, and Deschanel does not assert the former. Additionally, Deschanel does not state that she was in a state of undress or that Jackson refused to leave. As cross-defendantsWere 7a 8 argue, the incident was de minimis. See Loder v. City of Glendale (1997) 14 Cal.4th 846, 893 (stating that privacy interests should be weighed against the severity of the intrusion.) Here, the undisputed record establishes that the incident was so minimal as not to be actionable. ‘The motion is GRANTED. Third Incident Deschanel asserts that cross-defendants breached their fiduciary duty by receiving a producer credit and cash payment related to a documentary about Loretta Lynn. Cross-defendants argue that the claim is not viable because Deschanel was aware of the arrangement, there is no proximately caused harm, and damages are speculative. The first argument is not supported with admissible evidence. Jackson's declaration stating that Deschanel and her transactional counsel were aware of the arrangement is speculative. Jackson Decl. 429. Cross-defendants do not meet their initial burden on this argument. Regarding the other two arguments, at deposition, Deschanel could not recall losing a job because of Jackson's compensation on the documentary. Exh. A, Deschanel Depo. 244:3-14. In opposition, Deschanel states that she was embarrassed when Jackson barged into her dressing room. These facts are relevant (if at all) to the second incident, not this one. Deschanel also states that Jackson would be required to disgorge her commissions. But there is no evidence that Jackson received any cognizable commission on the documentary. Rather, the compensation was independent of her relationship with Deschanel. Indeed, Deschanel admits that she was not interested in the documentary and never participated in it. OPP 15:14-15. Additionally, as mentioned above, Jackson testified that she received the compensation for introducing the filmmakers to Lynn, not to Deschanel. Exh. 3, Jackson Depo. 135:15-25. There is no reason to conclude there is a connection between the compensation and Deschanel Overall, Deschanel articulates no legally cognizable theory of how or why Jackson’s receiving compensation for introducing the filmmakers to Lynn violated a duty to Deschanel or caused any injury. Deschanel proffers no evidence about the terms of Jackson's agreement with the filmmakers. There is no evidence suggesting that the filmmakers entered into such an agreement with Jackson based on Jackson’s connection with Deschanel. Additionally, Deschanel cites no law holding that a fiduciary must inform her client about her other activities, or that the fiduciary may not be involved in any manner in projects that the client rejected, Whether Jackson informed Deschanel about her arrangement with the filmmakers is immaterial The motion is GRANTED. Fourth Incident Deschanel claims that eross-defendants breached their fiduciary duty by “continuously ‘maninpulat{ing} Deschanel’s relationship with talent agents to promote (their] own interests.”BIOL ZL A OPP 15:4-5, More specifically, Deschanel asserts that cross-defendants kept Deschanel at CAA to pressure CAA into sending them more management clients. Cross-defendants argue that the alleged statement on which Deschanel bases this claim was never actually made. At deposition, Deschanel’s agent Lesak denied that Jackson told him that she was keeping Deschanel with him or CAA generally to make sure that Lesak would send Jackson more clients. Exh. D, Lesak Depo. 44:1-4. But he did testify that Jackson made other statements implying same. Exh. D, Lesak Depo 44:4-7; Lesak Decl. § 3 Cross-defendants also argue that Deschanel suffered no resulting injury. Indeed, Deschanel herself alleges that CAA was best suited for her career. This allegation precludes Deschanel also seeking damages on a theory based on the fourth incident. Additionally, there is no dispute that, after she separated from cross-defendants, Deschanel left CAA. This fact establishes that Deschanel always had the ability to come and go from CAA as. she pleased on her own volition, The motion is GRANTED. Overreaching Deschanel claims that defendants breached their fiduciary duty by demanding commissions on Deschanel’s business investments after she terminated her relationship with defendants. This claim does not sound in fiduciary duty. Rather, it is merely another aspect of the parties’ contract dispute. The motion is GRANTED. Disgorgement as Relief At the hearing, Deschanel emphasized her argument that she need not prove actual damages in order to receive disgorgement of the commissions that cross-defendants received. Under her theory, for example, by Jackson’s allegedly trying to profit from their agency relationship by introducing the producers of the Loretta Lynn documentary to Deschanel—and assuming this, attempt to profit is a breach of fiduciary duty—cross-defendants could be required to disgorge all commissions from that point on, even if the commissions are unrelated to the breach. In the leading California case, Frye v. Tenderloin Housing Clinic, Inc. (2006) 38 Cal.4th 23, 48- 50, our Supreme Court held that disgorgement was not available in a case where there were no actual damages. Upon close review of the case law, the Court concludes that Deschanel may be correct insofar as she argues that Frye does not necessarily mean that disgorgement is never available in a breach of fiduciary duty case absent actual damages, whatever the circumstances. However, the Court concludes that the potential limitations on Frye’s reach do not aid Deschanel here. Frye held that a law corporation’s failure to register as required provided no actual damage to itsBTOLewE ta client, and disgorgement would be a disproportionate and unfair remedy under the circumstances. Id. at 48-50. Subsequently, the Court of Appeal applied Frye’s rule in a blanket matter as to attorneys: “Where an attorney's misrepresentation or concealment has caused the client no damage, disgorgement of fees is not warranted.” Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1536. It may, nevertheless, be over-reading Frye to find that it necessarily applies across-the-board to every breach of fiduciary claim, for two reasons. First, Frye and Slovensky only specifically address attomeys, and there are many kinds of fiduciaries. It is conceivable that a fiduciary, such as a trustee, that has as its primary duty something other than a principal/agent services contract could be subject to disgorgement even without causing demonstrable actual damages. See Restatement (Second) of Torts (1979) § 874, comment b (violation of fiduciary duty section) (“The remedy of a beneficiary against a defaulting or negligent trustee is ordinarily in equity; the remedy of a principal against an agent is ordinarily at law.”) But it is not tenable that Frye rule, based on tort principles, is a somehow special rule for attorneys only. Its principles must at least extend to principal/agent services contracts, as the contractual services a professional performs (whether an attomey or not) may not be affected by particular breaches of fiduciary duty absent actual damages. ‘That is, in a principal/agent contract between a client/attorney or a client/manager, the client is paying principally for particular services that the agent provides, whether litigation of a lawsuit or obtaining a movie role. If there are no actual damages, then there typically is no good reason—and it would be unfair—to order disgorgement of the fees or commissions for particular services that were actually contracted for and provided. This appears to be why the case law in New York, consistent with the Restatement (Second) of Agency, limits an agent’s disgorgement of fees to the particular transactions regarding which the agent was disloyal—and requires no disgorgement for other transactions—at least assuming the contract is severable in this manner. Phansalkar v. Andersen Weinroth & Co., L.P. (2d Cir. 2003) 344 F.3d 184, 205-206 (citing Restatement). That approach is consistent with Frye. In the context of contracts for professional services, at least, an agent’s bargained-for provision of services is usually severable from any alleged disloyalty that did not affect those services. There is no particular reason to distinguish an entertainment manager from a lawyer for purposes of the above analysis. The contrary inequitable result would mean that if, for example, Jackson violated a fiduciary duty by introducing filmmakers to Deschanel for purposes that served Jackson more than Deschanel, that could work a forfeiture of commissions for work actually performed in obtaining business, even though that work and business obtained had nothing to do with the introduction of the filmmakers. This is inequitable in the same way as it would be to preclude the Frye law corporation’s recovery of fees due to a registration failure that did not demonstrably affect the services provided. A second potential limitation on Frye might be based on Frye’s reliance on disgorgement being disproportionate to the breach in that case, 38 Cal.4th at 48, as there could be a circumstance 10where an agent’s breach could be so egregious or extensive that it might warrant disgorgement of fees even absent actual damages, This would not usually be the case where contracted-for services were provided and the breach was narrow enough that it caused no actual damages. It is not the case here, as the alleged breaches were limited in scope, time, and effect. Finally, for completeness, the Court notes that the remedy of unjust enrichment may be a route by which a principal could recover gains to an agent that were caused by a breach of loyalty, even apart from actual damages, and this may not be precluded by Frye’s holding barring disgorgement, as it is a different type of disgorgement. See, e.g., Restatement (Second) of Agency § 403 (“If an agent receives anything as a result of his violation of a duty of loyalty to the principal, he is subject to a liability to deliver it, its value, or its proceeds, to the principal.”) While Deschanel pleads an affirmative defense of unjust enrichment (which is not at issue here), this has not been raised as a theory of recovery of commissions on the cross-complaint. The one post-Frye California case that Deschanel cites, Meister v. Mensinger, (2014) 230 Cal. App. 4th 381, is essentially about unjust enrichment. In calculating damages for a breach of fiduciary duty in the sale of corporate stock, the Court of Appeal essentially ordered the trial court to perform an accounting of the corporate books and calculate the gain that was “linked to a particular breach of fiduciary duty.” Id. at 401. While this relief could nominally be called disgorgement, it is not the sort of disgorgement of fees or commissions sought here, ic, the disgorgement of commissions not caused by a particular breach. Meister allows for the recovery from corporate fiduciaries of the benefit created by their particular breach of fiduciary duty, or the unjust enrichment from that particular breach. Similarly, Deschanel relies on the pre-Frye case Sierra Pacific Industries v. Carter (1980) 104 Cal. App.3d 579, 582-583, where a real estate broker who concealed that he sold a property to a relative was required to forfeit the particular commission on the sale. This is consistent with an unjust enrichment theory, to the extent that the agent would not have accomplished the particular sale absent the concealment. Indeed, it is consistent with even an actual damages theory if actual damages caused by the conflicted deal were difficult to calculate, so the benefit was the most equitable relief available. Finally, itis consistent with the New York rule discussed above which may require the forfeiture of commissions for a particular transaction in which there is a breach of fiduciary duty, as opposed to this case where Deschanel wishes for a breach of fiduciary duty to warrant a return of all commissions under a contract, not tied to a particular compromised transaction. Under Erye and the reasoning herein, the possibility of disgorgement does not warrant denial of the motion. Declaratory Relief Based on paragraph 25 of the FAC, the Court is persuaded that the declaratory relief cause of action seeks a declaration of rights based on a breach of fiduciary duty by cross-defendants. This essentially would be a declaration that cannot be separated from the first (breach of fiduciary duty) cause of action and stands or falls with it The motion is GRANTED. uleTOt Ze 70 Affirmative Defense ‘The merits of Deschanel’s affirmative defense based on breach of fiduciary duty rise and fall with her affirmative breach of fiduciary duty claim. The affirmative defense fails because there is no genuine dispute that Seven Summits, as plaintiff, engaged in an actionable breach of a fiduciary duty to Deschanel, as laid out above. Alternatively put, any breach alleged cannot constitute a material breach of the contract on the evidence provided. ‘The motion is GRANTED. Conclusion The motion is GRANTED. Dated: Lfrfe fichael J. Raphael Superior Court Judge