Filed 5/8/17 Experience Hendrix v. The Last Experience CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
EXPERIENCE HENDRIX, LLC,
Plaintiff and Appellant,
v.
THE LAST EXPERIENCE, INC.
et al.,
Defendants and Respondents.
B268414
(Los Angeles County
Super. Ct. No. BC460695)
APPEAL from a judgment and an order of the Superior
Court of Los Angeles County. Mark V. Mooney, Judge. Affirmed.
LeClairRyan, Robert G. Harrison and Christiane Kinney,
and McPherson Rane, Edwin F. McPherson for Plaintiff and
Appellant.
Blakely Law Group, Brent H. Blakely and Craig A. Huber
for Defendants and Respondents.
* * * * * *
2
This appeal arises out of a contract dispute over whether a
film documenting Jimi Hendrix’s February 1969 performances at
the Royal Albert Hall in London, England will ever see the light
of day. For almost a half-century, the two parties (or their
predecessors) who own the rights to this film and its
accompanying soundtrack have been lost in a purple haze of false
starts and litigation. In 2010, however, the parties signed a
contract to jointly produce the film for theatrical release, and one
party negotiated a deal with a movie studio for a limited
theatrical release of the film. Alas, the other party wanted to
hold out for a wider release and the deal fell apart. The parties
ended up suing each other over the 2010 contract. The trial court
rejected one party’s bid to rescind the contract and collect
$4.1 million in restitution, concluding that there was no failure of
consideration; the court went on to award over $300,000 in
attorney’s fees to the prevailing party. The losing party appeals,
arguing that the trial court misread the contract, made
unsupported factual findings, and was wrong to award attorney’s
fees. We conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The Royal Albert Hall Concerts
Jimi Hendrix (Hendrix) is one of the best guitarists, if not
the best, in the history of rock music. A year and a half before his
untimely death, and six months before his iconic performance of
“The Star-Spangled Banner” at Woodstock, Hendrix and his
band—the eponymous Jimi Hendrix Experience—put on two
concerts at the Royal Albert Hall in London, England on
February 18 and 24, 1969, at the tail end of their European tour
(the Royal Albert Hall concerts).
3
B. The Original 1968 Documentary Contract
Prior to the European tour, Hendrix’s manager signed a
contract with Steve Gold (Gold) and defendant Gerald Goldstein
(Goldstein) granting Gold and Goldstein the right to film the tour
and use the footage for a concert film (the film), with the
revenues to be split evenly between the two camps.
C. The 2010 Agreement to Produce the
Documentary
Forty-two years later, in March 2010, the successors to that
1968 contract revived their commitment to making the film by
signing a contract to “jointly produce a feature length film
intended for theatrical release” “based primarily on the concert
footage embodying the” Royal Albert Hall concerts (the 2010
Agreement). Plaintiff Experience Hendrix, LLC (plaintiff) signed
as the successor to Hendrix; Goldstein and defendant The Last
Experience, Inc. (Last Experience), a corporation formed solely to
hold Goldstein’s film rights, signed as the successors to Goldstein,
Gold, and Hendrix’s manager. By this time, the parties had
already made several attempts to cooperate in producing the film
that had gone nowhere or ended in litigation. Although they
“hated each other’s guts,” the 2010 Agreement was a further
effort to move forward in finishing and releasing the film.
In the 2010 Agreement, Goldstein and Last Experience
(collectively, defendants) warranted that the video and audio
footage from the Royal Albert Hall concerts was their “sole and
exclusive property”; acknowledged that Gold’s ex-wife had filed a
copyright registration on that footage in 1997, but warranted
that her registration “was improperly obtained” and that “as
between [defendants] and [Gold’s ex-wife], [defendants] own the
copyright”; and promised to “promptly . . . take all necessary
steps to have the Registration amended”; plaintiff simultaneously
4
agreed to “take all reasonable steps necessary to assist
[defendants] in connection with any challenge to [defendants’]
claim of copyright ownership . . . including, but without
limitation, reasonably assisting [defendants] in challenging the
impropriety of the Registration.”
Plaintiff and defendants further agreed to “jointly agree on
all” “creative decisions” and, critically, to “jointly approve all
decisions relating to the entering into of agreements concerning
the exploitation of the [film], including any distribution
agreement.” With respect to these “approval[s],” the 2010
Agreement specifically provided that “[n]either party shall
withhold its approval in any instance in which such approval is
required hereunder for the purpose of altering the material terms
of this Agreement or enriching itself under the terms of any side
agreement.”
The parties agreed to split the film’s profits 50/50, with one
proviso: Profit sharing would not occur until plaintiff first
recouped the $4.1 million it incurred on behalf of itself and
defendants in United Kingdom-based litigation to stop the
London Times newspaper from distributing a bootlegged copy of
the audio from the Royal Albert Hall concerts. Plaintiff and
defendants ended up prevailing on the merits of their copyright
infringement suit, but nevertheless incurred $3 million in
attorney’s fees and owed the London Times $1.1 million in costs
and expenses because the ultimate amount of the verdict was less
than the newspaper had offered for settlement.
The 2010 Agreement also provided that “the losing party
shall be responsible for the prevailing party’s reasonable legal
fees” “[i]n the event either party commences litigation against the
other party to enforce the” agreement’s “provisions.”
5
D. Negotiations With Sony Music Entertainment
and Sony Pictures Entertainment
Two weeks before signing the 2010 Agreement, plaintiff
and Last Experience had signed a contract with Sony Music
Entertainment (Sony Music Agreement). In that agreement,
Sony Music promised to “distribute the audio-visual recordings
that constitute a first class theatrical motion picture comprised
substantially” of the Royal Albert Hall concerts. Plaintiff and
Last Experience were to deliver the “completed” film by June 30,
2010. Once they did, Sony Music was to pay $2 million and
advance $500,000 for “prints and advertising” (that is, for making
the celluloid copies of the film for cinemas to screen and for
advertising), and was to receive a 25 percent distribution fee and
split the profits 50/50 after recouping its prints and advertising
advance. The Sony Music Agreement gave plaintiff or Last
Experience 120 days to terminate the agreement. Although the
Sony Music Agreement was a distribution agreement for both the
anticipated soundtrack and film, the parties contemplated
“supersed[ing]” the short-form agreement with a longer-form
contract also involving one of Sony Music’s film distribution
affiliates.
Toward that end, plaintiff and defendants met with Sony
Pictures Classics (Sony Classics) and Sony Pictures
Entertainment (Sony Pictures). Sony Classics had no interest,
but plaintiff started to negotiate a film distribution deal with
Sony Pictures. Although plaintiff viewed the first Sony Pictures
offer as a “piece of crap,” plaintiff viewed its second, “final” offer
as a “very, very good deal.” In this second offer, Sony Pictures
agreed to distribute the film for a 17.5 percent fee and to spend a
minimum of $750,000 in prints and advertising and, if the first
24 days of the film’s box office receipts so warranted, at least
6
$250,000 more. The offer’s $750,000 prints and advertising
budget is consistent with a limited “platform release” of the film
in five to twenty movie screens spread among five to ten different
cities.
Plaintiff was ready to sign this deal. Goldstein was not.
For years, Goldstein had openly expressed his vision—to plaintiff
and others—that the film have a “wide release” in at least 1,500
theaters, with a prints and advertising budget of $20 million to
$50 million. Although plaintiff believed that Goldstein would
accept no deal unless it met his vision, Goldstein never so stated
in writing, never told Sony Pictures he had an absolute
minimum, and viewed his vision as more of an “objective” or a
“goal” than a requirement. Goldstein met with Sony Pictures in
February 2011, to express his vision. Goldstein walked out of the
meeting thinking Sony Pictures would go along with a
corresponding wider release if Goldstein raised more prints and
advertising money from third parties; Sony Pictures took
Goldstein’s pitch as a rejection of its limited platform release
offer.
A few weeks later, plaintiff informed Sony Music it did not
wish to extend its right to terminate the Sony Music Agreement
for another 120 days, as it and defendants had been doing while
the Sony Pictures negotiations were underway. Not wanting to
be stuck with the less favorable film distribution terms contained
in the Sony Music Agreement, Goldstein thereafter terminated
the Sony Music Agreement.
On March 22, 2011, plaintiff sent defendants a letter
rescinding the 2010 Agreement.
7
II. Procedural Background
In May 2011, plaintiff sued defendants for (1) restitution
following rescission, and (2) declaratory relief.1 As to both claims,
plaintiff alleged that the 2010 Agreement was subject to
rescission because (1) Goldstein committed fraud by not
disclosing that he would accept nothing less than a deal for a very
wide film release, and (2) Goldstein acted unreasonably in
rejecting the Sony Pictures offer. For relief, plaintiff sought
$4.1 million in restitution as well as a declaration that it was the
sole owner of the rights to exploit the Royal Albert Hall concerts
footage.
Defendants filed a cross-complaint for (1) breach of
contract, (2) breach of the implied covenant of good faith and fair
dealing, and (3) intentional misrepresentation. All three claims
turned on the same basic allegation that plaintiff had lied when
it represented, in the 2010 Agreement, that the Royal Albert Hall
concerts footage was not already covered by a 2009 contract
plaintiff had with Sony Music regarding the “audio only master
records” in Hendrix’s catalog. Defendants sought unspecific
compensatory damages as well as punitive damages.
The trial court granted summary judgment to plaintiff on
defendants’ cross-complaint, and plaintiff’s action proceeded to a
five-day bench trial.
Following trial, the trial court issued a tentative and, after
receiving objections, final statement of decision. The court
rejected both of plaintiff’s grounds for rescission. The court found
that Goldstein had never hidden his vision for a wide release and

1 Plaintiff also sued for breach of fiduciary duty, but
subsequently dropped that claim.
8
that he was not insisting upon any absolute minimum, as
Goldstein thought he had a “sliding scale” understanding with
Sony Pictures—that is, the more prints and advertising money he
raised, the wider Sony Pictures would release the film. The court
pointed out that plaintiff’s complaint acknowledged that very
fact, and thus refuted the notion that Goldstein had an absolute
minimum.
The trial court also ruled that there was no “failure of
consideration” warranting rescission. The court rejected the
argument that Goldstein’s rejection of the Sony Pictures limited
platform release offer breached the 2010 Agreement. “Nothing in
the . . . Agreement,” the court noted, “required the parties to
agree to any specific terms on the distribution of the film . . . .
Both parties had an equal right to block the distribution of the
film if they believed they could obtain a better deal.” The court
went on to find that even if Goldstein’s rejection of the Sony
Pictures offer was “not a sound business decision,” Goldstein still
did not breach the contract or the implied covenant of good faith
and fair dealing because “[i]t was not unreasonable for Goldstein
to try and obtain a better deal for the parties.” The court also
rejected plaintiff’s argument that Goldstein had breached the
2010 Agreement by not initiating litigation to wipe away Gold’s
ex-wife’s copyright registration, finding that the 2010 Agreement
obligated defendants to “take all necessary steps” to register their
claim to the copyright and finding that the defendants did
precisely that. Because “[n]o evidence was presented . . . that
there is any current challenge to defendant’s right as copyright
owner of the” film, the court concluded that defendants’ failure to
sue Gold’s ex-wife does not “serve as a material failure of
consideration to warrant rescission.”
9
After the trial court entered judgment, defendants moved
for attorney’s fees under the 2010 Agreement. The court awarded
$301,444 in attorney’s fees.
Plaintiff filed timely notices of appeal from the judgment
and the order awarding attorney’s fees.
DISCUSSION
I. Ruling on the Merits
A party to a contract may rescind it if, among other things,
“the consideration for the obligation of the rescinding party,
before it is rendered to him, fails in a material respect from any
cause.” (Civ. Code, § 1689, subd. (b)(4); Asmus v. Pacific Bell
(2000) 23 Cal.4th 1, 6, fn. 2.) If the failure of consideration is
total—that is, if “‘nothing of value has been received under the
contract by the party’”—a court may also award the rescinding
party restitution. (Rutherford Holdings, LLC v. Plaza Del Rey
(2014) 223 Cal.App.4th 221, 230, quoting Richter v. Union Land
etc. Co. (1900) 129 Cal. 367, 373; Brown v. Grimes (2011) 192
Cal.App.4th 265, 281.) Under these circumstances, restitution
means “repay[ment of] what has been received by [the breaching
party] under the contract.” (Holt v. Ravani (1963) 221
Cal.App.2d 213, 216.)
On appeal, plaintiff argues that the trial court erred in
rejecting its claims that defendants materially breached the 2010
Agreement (and that their breaches constitute a material failure
of consideration) when Goldstein (1) refused to approve the Sony
Pictures distribution deal, and (2) did not sue Gold’s ex-wife for
declaratory relief to clear title to the film. (Plaintiff is not
challenging the trial court’s rejection of its claim that Goldstein
fraudulently concealed his vision for a wide release of the film.)
To the extent plaintiff’s argument requires us to interpret the
10
2010 Agreement, we do so independently and give controlling
weight to the contract’s unambiguous language. (Cuenca
v. Cohen (2017) 8 Cal.App.5th 200, 222.) To the extent plaintiff’s
arguments require us to evaluate the trial court’s factual
findings, we review them for substantial evidence. (Gaines
v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1100.)
In undertaking substantial evidence review, we ask whether
there is evidence in the record to support the trial court’s
findings, and do so while construing the record in the light most
favorable to those findings, resolving all evidentiary conflicts in
favor of those findings, and deferring to the trial court’s
credibility determinations. (Atkins v. City of Los Angeles (2017)
8 Cal.App.5th 696, 737-738.)
A. Refusal to Approve Sony Pictures Distribution
Deal
The trial court did not err in ruling that Goldstein’s
rejection of Sony Pictures’ film distribution offer did not
constitute a breach of the 2010 Agreement (and, consequently,
did not amount to a failure of consideration, total or otherwise).
The 2010 Agreement obligated the parties to “jointly approve . . .
any distribution agreement.” Critically, the contract specifically
spelled out when a party’s refusal to approve would violate the
contract—that is, when the refusal was “for the purpose of [(1)]
altering the material terms of th[e] Agreement or [(2)] enriching
itself under the terms of any side agreement.” Goldstein’s vision
for a wide release of the film may have been unrealistic and thus,
as the trial court assumed, “not a sound business decision,” but
there is substantial evidence in the record to support the finding
that Goldstein’s longstanding vision was not aimed at altering
the terms of the 2010 Agreement or at enriching Goldstein under
the terms of any side agreement.
11
Plaintiff raises three challenges to this reasoning. First, it
argues that the 2010 Agreement, like every other contract, is
constrained by the implied covenant of good faith and fair dealing
(Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013)
218 Cal.App.4th 1230, 1244), and this covenant requires us to
read into the 2010 Agreement a duty to exercise the discretionary
power to approve a distribution deal in “subjective good faith”
and in an “objectively” reasonable manner (Carma Developers
(Cal.), Inc. v. Marathon Development California, Inc. (1992)
2 Cal.4th 342, 372; Locke v. Warner Bros., Inc. (1997) 57
Cal.App.4th 354, 363). We reject this argument because it would
require us to ignore the express language of the 2010 Agreement,
which, as noted above, places only two narrow constraints on the
parties’ power to approve. This, we cannot do. (Carma, at p. 374
[“implied terms should never be read to vary express terms”],
citing Tanner v. Title Ins. & Trust Co. (1942) 20 Cal.2d 814, 824;
Third Story Music, Inc. v. Waits (1995) 41 Cal.App.4th 798, 802-
806 (Third Story); Balfour, Guthrie & Co. v. Gourmet Farms
(1980) 108 Cal.App.3d 181, 190-191.) We accordingly have no
occasion to examine plaintiff’s various challenges to the trial
court’s alternative factual finding that Goldstein acted
reasonably in rejecting the Sony Pictures offer. (Accord, PeakLas
Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 106
[“good faith and reasonableness are questions of fact”].)
Second, plaintiff contends that the language in the 2010
Agreement did not expressly grant the parties full discretion
regarding approval decisions, and thus cannot be read to confer
upon the parties full “blocking rights.” (See Third Story, supra,
41 Cal.App.4th at p. 801 [provision granting party the right to
“refrain” from an act “at [its] election”; unfettered discretion];
12
Brandt v. Lockheed Missiles & Space Co. (1984) 154 Cal.App.3d
1124, 1128 [provision indicating employer “may, but is not
obligated to, grant” inventor-employee special pay; unfettered
discretion]; Gerdlund v. Electronic Dispensers International
(1987) 190 Cal.App.3d 263, 268-270 [provision granting party
right to terminate contract “at any time and for any reason”;
unfettered discretion].) To be sure, the 2010 Agreement did not
grant the parties a full and unfettered right to withhold approval
of distribution deals on a whim. But the 2010 Agreement
expressly placed only two narrow constraints on that right.
Implying a reasonableness requirement would negate those
narrow constraints and effectively—and impermissibly—rewrite
the contract. (Sonic-Calabasas A, Inc. v. Moreno (2013) 57
Cal.4th 1109, 1143 [“courts may not rewrite agreements and
impose terms to which neither party has agreed”].) Indeed, other
provisions of the 2010 Agreement imposed upon the parties a
duty to “work in good faith” or to proceed in a “commercial[ly]”
“reasonable” manner. The parties knew how to impose a
reasonableness requirement when they wanted one; we must give
effect to their decision not to place one in the approval provision.
(See Cornette v. Department of Transportation (2001) 26 Cal.4th
63, 73 [“When one part of a statute contains a term or provision,
the omission of that term or provision from another part of the
statute indicates the Legislature intended to convey a different
meaning”].)
Lastly, plaintiff asserts that Goldstein acted with a selfinterested
motive—namely, he needed a wide distribution deal in
order to turn any profit given how much he owed plaintiff from
the London Times litigation and how much he owed others.
There is no substantial evidence in the record to support this
13
proffered motive, given that Goldstein had been unabashedly
sharing his vision for a wide release long before the London
Times litigation ended up costing plaintiff and defendants
$4.1 million. And even if there were such evidence, Goldstein’s
desire to recoup his losses does not reveal a purpose to “alter[] the
material terms” of the 2010 Agreement or to “enrich [him]self
under the terms of any side agreement”—the only two motives
prohibited by the 2010 Agreement.2
B. Failure to Seek Declaratory Relief Against
Gold’s Ex-wife
The trial court also did not err in concluding that
defendants had not breached their duties under the 2010
Agreement regarding title to the film. In that agreement,
defendants represented that the footage to be used for the film is
their “sole and exclusive property”; warranted that, as between
themselves and Gold’s ex-wife, they “own the copyright” to those
materials; and promised to “promptly . . . take all necessary steps
to have the Registration amended.” Plaintiff promised to “take
all reasonable steps necessary to assist” defendants “in
connection with any challenge to the [defendants’] claim of
copyright ownership . . . including, but without limitation,

2 Plaintiff raises a number of other objections to the trial
court’s ruling—namely, that the court erred in (1) inaccurately
reporting that plaintiff refused to extend the Sony Music
Agreement (because plaintiff actually refused to extend the
termination rights under that agreement), (2) finding that
plaintiff’s subsequent refusal to extend the termination period in
the Sony Music Agreement was relevant or otherwise harmed
Goldstein, and (3) treating the Sony Pictures offer and Sony
Music Agreement as interrelated. These arguments do not affect
our analysis, so we need not address them.
14
reasonably assisting [defendants] in challenging the impropriety
of the Registration.” A plain reading of this language obligated
defendants to file a copyright registration on the materials, and it
is undisputed that defendants did just that.
Plaintiff argues that the 2010 Agreement also required
defendants to “challeng[e] the impropriety” of Gold’s ex-wife’s
registration by filing a declaratory relief action against her, and
that defendants’ failure to do so is a failure of consideration. We
disagree, and do so for two reasons. First, the plain language of
the 2010 Agreement does not impose upon defendants the duty to
file a declaratory relief action or to otherwise clear up title to the
film. At most, the contract requires plaintiff to assist defendants
should they “challeng[e] the impropriety of the [ex-wife’s]
Registration”; but it does not expressly require defendants to
initiate such a challenge in the first place.
Second, even if we read the 2010 Agreement as implying an
obligation to “challeng[e] the impropriety” of Gold’s ex-wife’s
claim, this would not impose upon defendants an absolute duty to
file a declaratory relief action. A contractual provision requiring
a party’s “best efforts” requires only the party’s reasonable
diligence—not “every conceivable effort.” (California Pines
Property Owners Assn. v. Pedotti (2012) 206 Cal.App.4th 384,
394-395.) Defendants did not sue Gold’s ex-wife for declaratory
relief because they could not locate her and because she had not
taken any action with respect to her copyright registration since
1997. Because the act of filing a copyright registration
constitutes at most “prima facie evidence of the validity of the
copyright” that disappears upon the filing of a competing
registration (17 U.S.C. § 410(c); Martha Graham School
v. Martha Graham Center (2d Cir. 2004) 380 F.3d 624, 631), any
15
court adjudicating the copyright claim arising out of this case
would be required to look beyond the registrations to the evidence
supporting the competing claims (M & D Intern. Corp. v. Chan
(D. Hawaii 1995) 901 F.Supp. 1502, 1509-1510; Russ Berrie
& Co., Inc. v. Jerry Elsner Co., Inc. (S.D.N.Y. 1980) 482 F.Supp.
980, 987). Accordingly, defendants acted with reasonable
diligence in filing a competing copyright registration and in
standing at the ready with compelling evidence of the chain of
title to the footage in the event Gold’s ex-wife ever came “out of
the woodwork” to assert her then-13-year-old registration. Under
these circumstances, defendants were not obligated to sue a
person they could not locate on the chance she might press her
old and unsubstantiated competing claim.
II. Attorney’s Fees
Although parties generally bear their own attorney’s fees,
Civil Code section 1717 empowers a court to award “attorney’s
fees and costs . . . incurred to enforce [a] contract” “where the
contract specifically provides” that the prevailing party “[i]n any
action on [the] contract” be awarded its “attorney’s fees.” (Civ.
Code, § 1717, subd. (a).) The 2010 Agreement contains just such
an attorney’s fees provision, and the trial court awarded
defendants $301,444 in attorney’s fees pursuant to that provision.
Our review is limited to whether the trial court abused its
discretion. (Hilltop Investment Associates. v. Leon (1994)
28 Cal.App.4th 462, 466 (Hilltop).) Plaintiff levels three
objections at this award.
First, plaintiff asserts that the trial court should not have
awarded attorney’s fees because plaintiff was trying to rescind
the 2010 Agreement, not enforce it. This argument ignores that
“an action to avoid enforcement of a contract is an action ‘on a
16
contract’ within the meaning of section 1717.” (Eden Township
Healthcare Dist. v. Eden Medical Center (2013) 220 Cal.App.4th
418, 420-421, 426; Turner v. Schultz (2009) 175 Cal.App.4th 974,
976, 979-980 [same].) What is more, the argument overlooks that
defendant prevailed in its position that the contract was
enforceable.
Second, plaintiff argues that the trial court erred in
determining that defendants were prevailing parties because
defendants lost on their counterclaims. Civil Code section 1717
defines the “prevailing party” as “the party who recovered a
greater relief in the action on the contract.” (Civ. Code, § 1717,
subd. (b); see also Silver Creek, LLC v. BlackRock Realty
Advisors, Inc. (2009) 173 Cal.App.4th 1533, 1538.) When parties
have sued each other, courts assess prevailing party status by
evaluating “the parties’ comparative litigation success.” (Silver
Creek, at p. 1540.) A court may declare a party to be a prevailing
party even if that party did not prevail on every claim and
counterclaim (Epstein v. Frank (1981) 125 Cal.App.3d 111, 124-
125), and even if neither party obtained relief on its respective
claims and counterclaims (Silver Creek, at p. 1540; Hsu v. Abbara
(1995) 9 Cal.4th 863, 875-876 & fn. 10; cf. Silver Creek, at p. 1541
[noting that earlier cases suggesting that there is no prevailing
party whenever both parties obtain no relief, such as Hilltop,
supra, 28 Cal.App.4th at p. 468 and McLarand, Vasquez &
Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231
Cal.App.3d 1450, were superseded by Hsu].) In cases where
neither party prevails on its own claims, the court must examine
“the main litigation objective[s] for the parties” and whether they
were achieved. (Silver Creek, at p. 1540; Frog Creek Partners,
LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 531.)
17
The trial court did not abuse its discretion in finding
defendants to be the prevailing parties. Although plaintiff
obtained no relief on its restitution and declaratory relief claims
and although defendants obtained no relief on their breach of
contract and intentional misrepresentation counterclaims, the
trial court did not abuse its discretion in ruling that defendants
obtained the “greater relief” as between the two groups.
Defendants’ victory on the main complaint meant that they did
not owe $4.1 million in restitution and got to keep their rights in
the Royal Albert Hall concerts footage. By contrast, plaintiff’s
victory on the cross-complaint meant that plaintiff did not owe
unspecified damages for having misrepresented in the 2010
Agreement the terms of its earlier 2009 agreement with Sony.
Given that the 2009 agreement with Sony on its face refuted
defendants’ counterclaims as a matter of law, plaintiff was never
at risk of facing any damages, compensatory or punitive.
Plaintiff argues that we cannot reach this conclusion because the
trial court did not specifically include, in its statement of
decision, any facts supporting its finding of prevailing party
status. However, our evaluation of the court’s ruling rests on the
court’s legal rulings and express factual findings, not on any
implied findings, so the completeness of the statement of decision
on this point is irrelevant. (Cf. Code Civ. Proc., § 634 [appellate
courts may not infer findings when “a statement of decision does
not resolve a controverted issue”].)
Lastly, plaintiff challenges the amount of attorney’s fees,
asserting without any further argument or citation to the record
that (1) some charges are duplicative, (2) the attorneys
improperly engaged in “block billing,” and (3) the fee award
included fees incurred litigating the counterclaims that
18
defendants lost. Plaintiff invites us to comb through the 75 pages
of fee bills submitted by defendants. We respectfully decline. A
party “must affirmatively demonstrate error through reasoned
argument, citation to the appellate record, and discussion of legal
authority.” (Bullock v. Philip Morris USA, Inc. (2008) 159
Cal.App.4th 655, 685.) Plaintiff’s failure to do so in this case
waives its cursory challenge to the amount of the fee award.
(People v. Hovarter (2008) 44 Cal.4th 983, 1029.)
DISPOSITION
The judgment and order are affirmed. Defendants are
entitled to their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
HOFFSTADT
We concur:
_______________________, Acting P. J.
ASHMANN-GERST
_______________________, J.
CHAVEZ