Fredianelli v. Jenkins

Fredianelli filed purported corrections to a 2009 deposition only after defendants filed their reply brief, without seeking leave as required by the local rules. The court also found the corrections untimely under California deposition procedure, which allowed thirty days to make corrections, and held that any failure by Fredianelli’s attorney to provide the transcript did not excuse the delay.

The corrections directly contradicted Fredianelli’s prior, unequivocal testimony that he had no effective voice in the band’s business or creative decisions and that Jenkins had final authority. With no reliable evidence that the corrections were actually made in 2009 rather than created to oppose summary judgment, the court found them to be a tactical sham rather than a legitimate clarification.

For the same reason, the court declined to consider portions of Fredianelli’s declaration asserting that he shared decisionmaking authority or that Jenkins lacked unilateral firing authority. Those assertions plainly conflicted with his earlier sworn testimony and could not manufacture a factual dispute.

The court also excluded statements allegedly made by Godtland that the band had approved an ownership arrangement and statements regarding a proposed Rhino Records deal. Fredianelli offered those out-of-court statements for their truth but did not establish an applicable hearsay exception.

A California contract requires mutual consent, among other elements. The evidence that band members had discussed Fredianelli eventually becoming a full member or shareholder did not establish a present agreement on definite terms. A promise made in 2000 to confer ownership after a two-year probationary period also fell within the statute of frauds because it could not be performed within one year, and Fredianelli produced no qualifying writing memorializing that promise.

Godtland’s testimony that the musicians intended to sign shareholder agreements and distribute shares showed, at most, an agreement to make an agreement in the future. It did not establish that the musicians had assented to the specific terms of a particular version of the proposed agreement, which itself reflected revisions to important provisions.

The surrounding conduct confirmed that the draft was never treated as binding. No shares were issued to Fredianelli or the other musicians, Fredianelli was denied the voting role that the draft contemplated, the merchandise-revenue terms were not followed, and he received touring revenue rather than the broader share of corporate net profits described in the document.

The court also found no basis to treat Godtland as an agent authorized to bind Jenkins or the band. Fredianelli offered no admissible evidence of actual authority, no conduct by Jenkins or the other principals creating ostensible authority, and no evidence that the band knew of and ratified Godtland’s alleged offer. A manager could not, without express authority, grant an ownership stake or distribute business profits.

Under California law, a partnership may arise from conduct even when the parties do not use the word “partnership.” But the central inquiry is whether they associated as co-owners, and the usual indicators include profit and loss sharing, contributions of money, property, or services, and some right to participate in management.

Fredianelli’s own admissible deposition testimony established that Jenkins made the final business, creative, legal, and personnel decisions. Fredianelli did not show that he had a right to control the band, that he had relinquished such a right through an agreed managerial arrangement, or that he participated in any decision against Jenkins’s wishes.

His receipt of a share of net touring revenue did not prove partnership. Defendants’ evidence showed that the payments were treated as wages, with wage tax forms rather than partnership returns or partner draws, and California law does not presume a partnership where profit sharing is compensation for services.

Other evidence—such as Fredianelli’s role as a plaintiff in litigation against the band’s former manager, occasional references to him as a band “member” or “officer,” and Jenkins’s consultation with him on discrete matters—did not overcome the undisputed absence of actual management authority.

Jenkins admitted that Fredianelli was entitled to at least 25 percent of net touring revenue beginning in 2003, regardless of whether that compensation arose from employment or ownership. Fredianelli alleged that he was not fully paid under that arrangement.

The evidence created a genuine dispute over the amount due. Jenkins had estimated that a 2008–09 tour was approximately 51 to 52 percent profitable, while a produced earnings document showed more than $5 million in total tour earnings. Using those figures and a 25 percent share suggested a substantial gap between what Fredianelli arguably should have received and what defendants showed he received.

Because defendants controlled the relevant financial records, the court applied the principle from profit-sharing cases that the party maintaining exclusive control of essential records bears the risk of incompleteness. Defendants had not adequately explained the apparent shortfall, making summary judgment improper on this narrow contractual theory.

Quantum meruit generally does not lie where an enforceable agreement covers the subject of compensation. The parties agreed that Fredianelli would receive either 25 percent or one-third of net touring revenue during the relevant periods.

Unlike a case in which a promised contingent payment cannot be calculated because the defendant fails to undertake the event that would generate compensation, Fredianelli’s share of net touring revenue was ascertainable. His remedy, if he was underpaid, was for breach of the compensation agreement rather than reasonable value of services.

A constructive trust is a remedy that requires an underlying wrong, such as fraud or breach of fiduciary duty. Fredianelli’s principal theory depended on his being a co-owner with Jenkins, but the court had already concluded that the evidence did not establish co-ownership or partnership.

Fredianelli did not produce admissible evidence that Jenkins served as his personal manager in a manner creating fiduciary obligations. Jenkins managed the band, while Fredianelli was not shown to be a co-owner of that enterprise.

A contractual right to a share of profits or revenues, standing alone, does not create a fiduciary relationship. Thus, any possible underpayment supported a contractual claim, not a constructive-trust remedy.

An accounting requires a relationship that gives rise to a duty to account and a balance that can be determined only through an accounting. Fredianelli’s pleaded claim rested on his assertion that he had been an equal co-owner, a premise the court rejected.

Fredianelli also failed to provide admissible evidence that defendants held unaccounted-for royalties. His assertions about advances, licenses, game usage, synchronization income, and other revenues rested on hearsay or speculation and did not show that identifiable royalties existed and remained unpaid.

But a party to a profit-sharing agreement can have an accounting right even without a fiduciary relationship when an accounting is inherent in the agreement. Since defendants controlled the tour financial records and there was evidence that Fredianelli may not have received his full share, an accounting remained available on that limited basis.

Defendants submitted evidence that, in 2010, Fredianelli’s attorney confirmed the songs that Fredianelli owned and controlled. That evidence addressed ownership, not merely royalty amounts.

Fredianelli did not identify evidence establishing a continuing ownership dispute over any song, including “Carnival Barker,” which defendants’ materials suggested had once been disputed. Arguments concerning allegedly unpaid royalties or touring compensation did not support a claim for declaratory relief as to copyright ownership.

Trademark rights in a group name remain with a person who has remained continuously involved with the group and has the ability to control the quality of the group’s services. Fredianelli left the band between 1994 and 1999 and had not performed with it after 2009.

By contrast, Jenkins had performed continuously under the Third Eye Blind name since before 1993, and Hargreaves had done so continuously since 1995. Fredianelli also acknowledged that Jenkins was the band leader and presented no evidence that he controlled the quality of the band’s performances or services.

Section 2802 requires an employer to indemnify an employee for necessary expenditures or losses that the employee personally incurs in performing job duties. Fredianelli identified no such personal, necessary expenses; instead, he argued that band recording and legal expenses were improperly deducted before his net-touring-revenue share was calculated. That argument confused a share of net revenue, which accounts for expenses, with a share of gross revenue.

Although Rule 56(d) can permit additional discovery when a party specifically shows that essential facts are unavailable, Fredianelli did not make that showing. His general statement that prior attorneys had failed to conduct adequate discovery did not explain why he had not obtained testimony from Godtland and Salazar, whom he claimed could corroborate him.