Fredianelli v. Jenkins

ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Docket No. 171)

I. INTRODUCTION

Defendants Stephan Jenkins; Bradley Hargreaves; Third Eye Blind, Inc.; 3EB Touring, Inc.; and Stephan Jenkins Productions, Inc. bring the current motion for summary judgment or, alternatively, partial summary judgment of Plaintiff Anthony Fredianelli’s First Amended Complaint (“FAC”).1 Plaintiffs complaint includes six causes of action stemming from his participation as lead guitarist for the rock group Third Eye Blind (“the Band”) from 1993 to 1994 and from 2000 to 2009, and his alleged co-ownership of the Band and related entities. Jenkins is the founder, singer, and leader of the Band, and Hargreaves its drummer. The six causes of action in the FAC are for (1) breach of contract; (2) reasonable value of services performed (Plaintiffs “quantum meruit” claim); (3) constructive trust; (4) accounting; (5) declaratory relief regarding ownership of copyrights; and (6) declaratory relief regarding ownership of trademarks. FAC, Docket No. 137-1, ¶¶ 79-113; Order, Docket No. 152, ¶ 4 (making FAC the operative complaint). Defendants now move for summary judgment on each cause of action.

For the reasons stated herein, the Court GRANTS Defendants’ motion for summary judgment in its entirety except to the extent Plaintiffs claims for breach of contract and an accounting are based on his not receiving his full share of net touring revenues, irrespective of his status as a co-owner of the Band, as discussed further below.

II. EVIDENTIARY OBJECTIONS

The only evidence submitted by Plaintiff in opposition to Defendants’ motion for *1007summary judgment is a declaration with seven attached exhibits filed alongside Plaintiffs opposition brief as well as a supplemental declaration with a single exhibit filed following Defendants’ reply brief. See Fredianelli Decl., Docket No. 213-1; Supp. Fredianelli Decl., Docket No. 216. Defendants submitted fifty-seven separate objections to the evidence Plaintiff submitted in support of his opposition brief and objected separately to Plaintiffs supplemental declaration. See Defs.’ Objs., Docket No. 214-1; Defs.’ Objs. to Supp. Deck, Docket No. 219. “Before ordering summary judgment in a case, a district court must not only provide the parties with notice and an opportunity to respond to adverse arguments, it must also rule on evidentiary objections that are material to its ruling.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). Material to this Order are Defendants’ objections to Fredianelli’s supplemental declaration, several sham affidavit objections to Fredianelli’s initial declaration, and several hearsay objections to Fredianelli’s initial declaration.

A. Supplemental Declaration

Plaintiffs supplemental declaration includes a single exhibit of alleged deposition corrections dated December 2009 for a March 2009 deposition he gave in the matter of Jenkins v. Godtland, Case No. CGC-08-476453 (Cal.Super.Ct. San Francisco County) (hereinafter, the “Godtland case”). See Docket No. 216. The Court need not consider Plaintiff’s supplemental declaration and attached exhibit because (1) it was filed in an untimely manner pursuant to Local Rule 7 — 3(d); (2) it violates the sham affidavit rule; and (3) the deposition corrections were untimely pursuant to California law.

First, Local Rule 7-3(d) provides that, once a reply is filed, “no additional memoranda, papers, or letters may be filed without prior Court approval,” except for objections to new evidence filed with the reply and notices of relevant judicial opinions published after the date of the opposition papers. Here, Plaintiffs new evidence does not fall within either exception and Plaintiff did not seek the Court’s approval to file his supplemental declaration.

Second, the sham affidavit rule provides that “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). Similarly, deposition corrections may not “include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.” Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir.2005). There are two limitations on a district court’s discretion to invoke the sham affidavit rule: (1) “the district court must make a factual determination that the contradiction was actually a ‘sham’”; and (2) “the inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit.” Van Asdale v. Internat’l Game Tech., 577 F.3d 989, 998-99 (9th Cir.2009) (quotation marks and citation omitted).

Here, the affidavit claiming changes were made to the deposition transcript is a sham. Plaintiff has not submitted any evidence to corroborate that these deposition corrections were, in fact, made in December 2009 and not instead made in response to Defendants’ summary judgment motion in this case. Furthermore, the inconsistency between the original deposition testimony and the new affidavit is clear. While much of Defendants’ case rests on the argument that Plaintiff had no effective business or creative control in the Band, as testified to during Plaintiffs deposition in the Godtland case, Plaintiffs deposition corrections directly contradict this testimo*1008ny. See Supp. Fredianelli Decl. Ex. H at 4-5.

Lastly, under California law, Plaintiff only had thirty days following his March 11, 2009 deposition within which to make corrections; yet, he allegedly waited until December 2009 to do so. See Cal. Code Civ. Proc. § 2025.520(b); Fredianelli Decl. ¶ 43. Changes to the transcript would be barred under California law.

Plaintiff suggests that, nevertheless, he should not be bound by the transcript because he “made several attempts to get [his] original deposition transcript so [he] could make changes,” including calling his attorney’s office the day after the deposition and leaving “a message that [he] would like to see the transcript as soon as possible.” Fredianelli Decl. ¶ 41. In California, “[t]he attorney is authorized by virtue of his employment to bind the client in procedural matters arising during the course of the action but he may not impair the client’s substantial rights or the cause of action itself.” Linsk v. Linsk, 70 Cal.2d 272, 276, 74 Cal.Rptr. 544, 449 P.2d 760 (1969). Cases discussing when an attorney has impaired a client’s substantial rights or the cause of action itself do not deal with tactical or logistical decisions made during discovery, but rather instances where an attorney, by virtue of his conduct, has waived entire causes of action. See, e.g., Daley v. Butte County, 227 Cal.App.2d 380, 391-92, 38 Cal.Rptr. 693 (1964) (client not bound by attorney neglect resulting in dismissal for lack of prosecution). On the other hand, “[t]rial counsel is authorized to exercise his independent judgment with respect to strategic litigation decisions.” Cadle Co. v. World Wide Hospitality Furniture, Inc., 144 Cal.App.4th 504, 510, 50 Cal.Rptr.3d 480 (2006). Thus, even if the attorney’s failure to send Plaintiff a copy of his deposition transcript was due to negligence or mistake, Plaintiff is still bound by his attorney’s conduct. See Alferitz v. Cahen, 145 Cal. 397, 400, 78 P. 878 (1904) (“Where such questions of negligence and mistake arise, there must always come a time when, notwithstanding the hardship to the client, he must be bound by the errors and omissions of his attorney.”). In short, Mr. Fredianelli is bound to his deposition testimony.

Thus, the Court sustains Defendants’ objections to Plaintiffs alleged deposition corrections and Plaintiffs original deposition transcript stands unaltered.

B. Sham Affidavit Objections to Initial Declaration

Similar to them objections to Fredianelli’s deposition corrections, Defendants’ sham affidavit objections 12, 13(b), 16(b), 18(b), 21, 23(a), 30(c), 35(b), 36(b), and 37(a) each refer to sections of Fredianelli’s declaration wherein he states that he had a say in the business and creative decisions of the Band and that Jenkins did not have unilateral authority to make decisions on behalf of the Band, including decisions on whether or not to oust other musicians from the Band. See Defs.’ Objs., Docket No. 214-1. However, in his deposition Plaintiff testified that, up until March 2009, he never gained a say in the business and creative decision-making of the Band and that “Stephan leads.” See Fredianelli Dep. 78:20-22, 80:5-8. He further testified that “Stephan, basically, told [him] that [he] would have no role in the final decisions, in the decision making of the band” and that “[Jenkins] made an analogy as if he would be the United States and we would be smaller countries and he would' — if he wanted to ask for advice, he would ask,” but “[a]t the end of the day, he would reserve the right to make the decision and that that would not change.” Id. at 227:5-6. Lastly, he testified that Jenkins had the authority to fire *1009him. Id. at 243:21-244:8. Thus, as noted above, Plaintiffs declaration is inadmissible under the sham affidavit rule to the extent it contradicts this unequivocal deposition testimony.

C. Hearsay Objections to Initial Declaration

Of Defendants’ various hearsay objections, objections 8(a) and 11(b) are material to this Order. Objection 8(a) refers to paragraph 9 of Fredianelli’s declaration, wherein he states that Godtland “said the band was ready,” went over “that all members, including Stephan Jenkins, were employees of the corporations as well as owners,” and “told [Fredianelli] he had consulted with the band by conference call and that the points of our conversation were approved by the band.” See Defs.’ Objs., Docket No. 214-1, at 8. These statements are hearsay; Plaintiff has not cited an exception to hearsay. There is no showing, for instance, that Godtland made these statements as an agent of Jenkins on a matter within the scope of that relationship under Fed.R.Evid. 801(d)(2)(D). Plaintiff may not use them as evidence for the truth of the matters asserted: that the band was ready, that all members were employees as well as owners of the corporations, or that Godtland consulted with the Band by conference call and the Band members approved the points of his conversation with Plaintiff. The objection on this ground is sustained.

Objection 11(b) refers to paragraph 12, in which Plaintiff states that Godtland “told [the Band], if we could just get Stephan Jenkins to focus and finish one new song of lyrics, Rhino Records, wanted to release a greatest hits package in 2005, instead of in 2006 when contractual rights belonging to Rhino would vest and allow them to do so without additional permission from 3eb” and that the Band “lost a million dollar advance from that failure that Rhino would have paid 3eb in 2005 for the right to release a greatest hits record with additional new songs.” Defs.’ Objs. 11. As above, both statements are hearsay. The objection on this ground is sustained.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue of fact is genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Id. at 252, 106 S.Ct. 2505. At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party and all justifiable inferences are to be drawn in the nonmovant’s favor. See id. at 255,106 S.Ct. 2505.

Where the movant has the ultimate burden of proof at trial, it may prevail on a motion for summary judgment only if it affirmatively demonstrates that there is no genuine dispute as to every essential element of its claim. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000). Once it has met the initial burden of showing the absence of any genuine dispute, the burden shifts to the opposing party to present “ ‘significant probative evidence tending to support its claim or defense.’ ” Id. (quoting Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. *10101991)). In contrast, where the nonmovant has the ultimate burden of proof, the movant may prevail on a motion for summary judgment simply by pointing to the nonmovant’s failure “to make a showing sufficient to establish the existence of an element essential to [the nonmovant’s] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

IV. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are viewed in Fredianelli’s favor. Nearly all are based on Fredianelli’s declaration except where it is barred by Defendants’ evidentiary objections. Where the declaration is silent as to an issue and does not rebut Defendants’ proffered evidence, such facts are considered undisputed.

A. Fredianelli’s Beginnings with Third Eye Blind

Plaintiff Anthony Fredianelli met Eric Godtland and Defendant Stephan Jenkins in early 1993, helping Jenkins form the band Third Eye Blind (“the Band”). Fredianelli Decl. ¶ 2. Godtland served as the Band’s manager and funded the Band’s startup costs. Id. From 1993 to 1994, Fredianelli traveled back and forth from Nevada, where he lived, to San Francisco, California, where the Band was based, to rehearse, record, write songs, and play gigs. Id. However, Jenkins eventually told Fredianelli that the Band was going to go forward with Kevin Cadogan as its guitar player. Id.

It is undisputed that, in or about 1996 to 1997, after Fredianelli was no longer in the Band, Jenkins formed three corporate entities: Third Eye Blind, Inc., which was to handle various financial aspects of the band including receipt of music royalties; Stephan Jenkins Productions, Inc., which was to handle the various expenses associated with recording and producing the recording of songs; and 3EB Touring, Inc., which was to handle the financial aspects of the Band’s touring and merchandise activities. Jenkins Deck, Docket No, 218-1, ¶ 7. It is undisputed that Jenkins was the sole shareholder of these corporations, as well as the president and chairman of their boards. Id.

In late 1999, Jenkins asked Fredianelli if he would consider touring with the Band as a utility musician. Fredianelli Deck ¶ 4; Jenkins Deck ¶ 8. Fredianelli became a “hired musician” of the Band in approximately January 2000, and considered himself an employee. Jenkins Deck Ex. A (Fredianelli Dep.), at 43:20-44:12. Once Fredianelli began rehearsing with the Band, the Band voted to fire Cadogan. Fredianelli Deck ¶ 5. Brad Hargreaves, drummer for the Band, recounted to the rest of the Band, including Fredianelli, how he let Cadogan know that he was being fired, citing the “3eb band agreement.” Id. Fredianelli was immediately promoted to lead guitarist of the band. Id. Cadogan subsequently sued the Band. See id. ¶ 6. As lead guitarist, Plaintiff earned $1750 per week with a $1000 weekly retainer for weeks when there was no work. Id.

At the time Fredianelli was hired by the Band, Arion Salazar, the Band’s bass player, Jenkins, and Godtland told him that he would have to “pay [his] dues” during a two-year “probationary period,” after which he would officially be a Band member like they were and participate as a full fledged member and co-owner of the Band. Id. ¶ 6; see Fredianelli Dep. 52:11-22. Salazar explained that “the band made big decisions together, like firing Kevin Cadogan for example, and that each member had an equal vote.” Fredianelli Deck ¶ 6.

B. The Agreement

In or around late 2002 or early 2003, Salazar told Fredianelli that “the band[’]s *1011agreement [“the Agreement”] was affirmed through the closing of the Cadogan litigation.” Fredianelli Decl. ¶ 8. Godtland confirmed this fact. Id. Salazar told Fredianelli that “he had a lawyer who was working out ‘vesting the shares’ of 3eb to the shareholders, i.e. the band members.” Id. Godtland told Fredianelli that the rest of the band agreed that Fredianelli “could begin being se[n]t all corporate and shareholder documentation from David Rawson, [the Band’s accountant,] which began, and [Fredianelli] was told by Eric Godtland was information no different from Stephan Jenkins (sic).” Id.; Rawson Decl., Docket No. 171-5, ¶ 5.

Subsequently, Godtland set up a meeting with Plaintiff “in or around early March of 2003, where he walked [Plaintiff] through his management agreement, and the interim agreement, going over his management agreement line by line, but also going over general dynamics of the band[’]s two pass through corporations, that all members, including Stephan Jenkins, were employees of the corporations as well as owners and that [Plaintiff] in essence was agreeing to sharing the expenses of funding the business, which would include making records, to which [Plaintiff] would receive an equal share of proceeds.” Fredianelli Decl. ¶ 9. “Eric Go[d]tland, 3eb’s manager and representative to the outside world, told [Plaintiff] he had consulted with the band by conference call and that the points of [Godtland and Plaintiffs] conversation were approved by the band.” Id. Regarding the Band’s agreement, Godtland testified in the Godtland case that

[a]t each stage of band members, they agreed that they would take the shareholder agreements, sign them and distribute the shares. That happened while Cadogan was in the band, that happened again when Cadogan was out of the band with Arion, and that happened again when Tony joined.

What the band members said to each other with me there was that they were going to distribute these shares and they were going to sign off on these documents, and Stephan would distribute the shares to each of them.

Godtland Dep. 857:5-16.

Although Plaintiff alleges in his complaint that “[d]uring the Meeting, Plaintiff accepted the Band’s offer to become a full partner according to the terms of the Agreement, as that offer was conveyed to him by the Band’s manager and agent, Eric Godtland,” FAC ¶ 34,2 he did not testify to such in his declaration. Fredianelli submitted no admissible evidence that he accepted the Band’s offer.

Defendants have submitted a document produced by Plaintiff in this matter titled “Third Eye Blind Inter Party Agreements” (the “Agreement”), which is presumably the “interim agreement” referenced by Plaintiff. See Greenberg Decl. Ex. B. The Agreement consists of two *1012separate sections, titled “Business Structure (entities)” and “Employment Agreements.” Greenberg Decl. Ex. B. The Business Structure section provides that the Band members “shall be the sole owners in equal economic shares of any and all issued and outstanding shares of any corporation(s) or other business entities conducting business for or on behalf of the Group ... including but not limited to Third Eye Blind, Inc. and Third Eye Blind Touring, Inc.” Id. at 1. It then states that each member “shall have voting interests equal to their economic interests in the Corporation(s)” and requires majority approval “with respect to business and creative decisions of the Corporation(s) or the Group,” such as “approval of recording budgets.” Id. at 1-2. Towards the end of the Business Structure section, it states in handwriting that touring revenue will be split evenly, such that 25% goes to each of Salazar, Hargreaves, Fredianelli, and Jenkins. Id. at 5. It also provides that merchandise royalties would be divided such that 28% would go to Salazar, 19% to Hargreaves, 10% to Fredianelli, and 43% to Jenkins. Id.

The Employment Agreements section of the Agreement provides that each Band member is entitled to an “[ajmount equal to their respective Economic Interest in the net profits of the Corporation(s),” among other forms of compensation. Id. at 7-8. The Agreement contains different provisions for compensation following terminations based on whether the termination was “for cause” or without cause. See id. at 8-11.

C. Operation of Band Following Plaintiff Becoming a Member

In line with the Agreement, upon his becoming a full-fledged member of the Band, Plaintiff ceased receiving the weekly retainer he had received since joining the Band in 2000 and began to receive 25% of touring revenue. Fredianelli Dep. 54:25-55:11, 72:16-73:5. However, contrary to the Agreement and as admitted at his deposition in the Godtland case, Plaintiff did not begin to have a role in the decision-making process of the Band and did not have a say in business decisions, where to tour, legal matters, creative decisions, or what expenses to incur. Id. at 78:2-80:15. Rather, Jenkins “would make those decisions because he was the leader.” Id. at 80:5-8. In characterizing the decision-making structure of the Band, Plaintiff testified that it was not a “democracy.” Id. at 80:11-15. Rather, Jenkins told Plaintiff that Plaintiff “would have no role in the final decisions, in the decision making of the band.” Id. at 227:5-10. “[Jenkins] made an analogy as if he would be the United States and [the rest of the Band] would be smaller countries and he would — if he wanted to ask for advice, he would ask.” Id. at 227:11-14. “At the end of the day, he would reserve the right to make the decision and that that would not change.” Id. at 227:14-16. Plaintiff conceded that, although “[f]iring someone in a band is a big decision,” Jenkins had the authority to fire him. Id. at 244:2-8. Moreover, Plaintiff does not dispute that shares in the corporations conducting business for the Band were never distributed to Plaintiff or any member of the Band other than Jenkins. See Jenkins Decl. ¶ 7.

A February 23, 2008 email from Plaintiff to the Band’s business manager corroborates his testimony about the Band’s decision-making structure. See Rawson Decl. Ex. A. In the email, Plaintiff indicates that Jenkins, not the collective Band, was negotiating each Band member’s share of the touring income, writing that “SJ and I sat down and had a talk” regarding a new agreement as to touring income, that “Stephan [Jenkins] has this same plan in mind for Brad [Hargreaves] — but as of right now they don’t have an agreement,” that Plaintiff was “going to be asking Eric *1013[Godtland] — for a little bit of breathing room in regards to [Plaintiffs] management commission,” and that he did not “know what Stephan [Jenkins] has in mind for [Godtland] in general.” See id.

Furthermore, it is undisputed that contrary to the Agreement, Fredianelli did not initially share in the merchandising royalties. Rather, Jenkins took the net proceeds from merchandise sales, and only came to share such revenue four years later, in 2007, at which point Jenkins received 50% of net merchandise proceeds, Hargreaves received 35%, and Plaintiff received 15%, terms which were not consistent with the Agreement. Jenkins Decl. ¶ 14.

D. Changes Following Plaintiff Becoming a Band Member

Shortly after Plaintiffs March 2003 meeting with Godtland, Godtland arranged a band meeting in Miami where he explained to each Band member that, since the Band no longer had a record company, all expenses would be paid from the Band’s touring revenue, including non-touring expenses such as the Band’s recording expenses. Fredianelli Decl. ¶ 10. The Band agreed to the decision to pay non-touring expenses out of the net touring revenue. See id. ¶ 37.

From 2004 to 2007, Jenkins all but abandoned the Band. Id. ¶ 13. Plaintiff stepped into the void and took over the leadership role for the Band, engaging in a variety of marketing activities on behalf of the Band, such as building the Band’s first Myspace and Facebook pages as well as reaching out to the Band’s fanbase through the “Village Churchyard” website. Id,. ¶ 15.

In 2005, Jenkins changed Salazar’s share of the net touring revenue to less than 25%, with the remaining funds shared equally by Plaintiff, Jenkins, and Hargreaves. Jenkins Decl. ¶ 13. It is undisputed that, in June 2006, Salazar left the Band, and the remaining three musicians continued to share the net touring revenue equally, such that each member took home one-third of the net touring revenue. See Fredianelli Decl. ¶ 19; Jenkins Decl. ¶ 13; Rawson Decl. ¶ 11.

In or around early 2008, Jenkins replaced Godtland as manager for the Band. Fredianelli Decl. ¶¶ 20-22. In his first act as manager, Jenkins approached Fredianelli in January 2008 about reducing his share of the touring revenue back to 25%. Id. ¶ 22; Jenkins Decl. ¶ 13; Fredianelli Dep. 123:12-125:14. Fredianelli told Jenkins that he “would tentatively agree to making this one change to the deal [they] had in place, but told him strictly that it would be the only point [Fredianelli] would be willing to negotiate upon.” Fredianelli Decl. ¶ 22. Plaintiff told Jenkins he would make that one concession “contingent on [his] income not going down” from the $292,000 he earned touring in 2007. Id.

E. Godtland Litigation and Plaintiff’s Termination from the Band

Following Godtland’s ouster as manager for the Band, Jenkins wished to sue him. Id. ¶ 23. Jenkins threatened that if Plaintiff and Hargreaves “did not agree to sue Godtland, Jenkins would pursue other projects, leaving the band without a lead singer and mak[ing] it impossible for 3eb to deliver the new album Jenkins had been promising [Plaintiff], Hargreaves and Third Eye Blind fans for years.” Id. Jenkins indicated on several occasions “that he already was rich and did not need Third Eye Blind anymore, but that [Plaintiff] and Brad Hargreaves did, so [Plaintiff] had better go along, as he had convinced Brad [Hargreaves] to do, or [Plaintiff and Hargreaves] would lose everything.” Id. Ultimately, the Band decided to proceed with the litigation against Godtland. Id. *1014In his deposition, Plaintiff testified he had no say in legal decisions of the band. Fredianelli Dep. 78:12-13; 79:9-21.

During the course of the Godtland litigation, Plaintiff gave a deposition in. March 2009, in which he testified that he had never seen a management contract with Godtland and that he had effectively no control over the Band. Fredianelli Decl. ¶ 40; Fredianelli Dep. 77:22-80:15. Approximately nine months later, in December 2009, he contacted Godtland to apologize about his testimony and expressed a desire to make changes to his deposition. Fredianelli Decl. ¶ 42. About a week after Plaintiffs conversation with Godtland, Plaintiff perceived that Jenkins was angry with him for the recantation of his deposition testimony. Id. ¶ 44. Plaintiff played his last show with the Band on December 31, 2009, after which he was effectively frozen out of the Band. Id. He was never formally terminated for cause or any other reason. Id.

F. Intellectual Property Dispute

In early 2009, Jenkins sent Plaintiff an email with a proposal for publishing splits. Fredianelli Decl. ¶ 25. Fredianelli pointed out to Jenkins and Tim Mandelbaum, the Band’s attorney, that he did not agree with the split suggestions, as the splits were too low and Jenkins neglected to include four songs for which Plaintiff was clearly an author. Id. The Band released a digital EP titled “Red Star” in November 2008 and a full-length album titled “Ursa Major” in August 2009, for which Plaintiff authored or co-authored many of the new songs. Id. ¶26. Yet, Jenkins and Mandelbaum failed to credit Plaintiff for those works. Id. ¶ 26. Plaintiff never assigned any of his share of Third Eye Blind song rights or his share of the masters to Jenkins or any third party, yet Jenkins registered them in the Band’s corporations. Id. ¶ 29. Plaintiff eventually hired an attorney, Howard King, to work on his splits. Id. ¶ 33. King resolved the splits dispute in June 2010. Id.

Despite the resolution of the dispute over publishing splits, Plaintiff asserts that he is owed revenue from several other sources, including: a deal with Megaforce MRI involving $1 million in advances of which Plaintiff would receive one-third; $1 million in sales from the Megaforce deal from which Plaintiff should have received his royalties; Plaintiffs song “Can You Take Me” being used in the video game “Guitar Hero V”; “synch revenue”; ring-tones; and royalties from the sale of a live record to which Plaintiff contributed. Id. ¶¶ 33-34, 46.

Y. DISCUSSION

A. Breach of Contract (First Cause of Action)

This cause of action involves two separate legal theories: (1) that there existed an express contract between the parties conferring on Plaintiff co-ownership of the Band; and (2) that the parties’ course of conduct evidenced an intent for Plaintiff to be a partner even absent an express partnership agreement. In addition, Plaintiff argued, but did not plead in his complaint, that Defendants breached a profit-sharing agreement with him, regardless of his status as a co-owner of the Band.

1. Express Contract

First, Defendants dispute Plaintiffs allegation that he entered an express contract, the Agreement, to become a co-owner of the Band. While both parties use the term “partner” and “partnership” throughout their briefs, this terminology appears to be inapposite with respect to the Agreement; the Agreement, as produced by Defendants, contemplates that Plaintiff will be a shareholder in “any corporation(s) or other business entities conducting business for *1015or on behalf of the Group.... ” Greenberg Decl., Docket No. 171-3, Ex. B.

a. Statement of Law

To prevail on his breach of contract claim, Plaintiff must prove (1) the existence of a contract, (2) Plaintiffs performance or excuse for non-performance, (3) Defendants’ breach of the contract, and (4) damage to Plaintiff resulting from such breach. See Acoustics, Inc. v. Trepte Constr. Co., 14 Cal.App.3d 887, 913, 92 Cal.Rptr. 723 (1971). Here, Defendants only contest the first element, arguing that Plaintiff cannot show the existence of a contract establishing him as a co-owner of the Band. See Defs.’ Mot., Docket No. 171, at 13-17. In order to show the existence of a contract, Plaintiff must produce evidence showing (1) “[pjarties capable of contracting”; (2) “[tjheir consent”; (3) “[a] lawful object”; and (4) “sufficient cause or consideration.” Cal. Civ. Code § 1550.

Here, the lawfulness of the object of the Agreement and consideration are not at issue. Rather, the dispute centers on whether Jenkins and the other Band members mutually consented to be bound by the Agreement or, if not, if Godtland had the authority to bind them to the terms of the Agreement.

b. Consent of Band Members

Plaintiffs declaration and the attached excerpts of Godtland’s deposition in the Godtland case identify only four instances where the Agreement came up among the other Band members: (1) when Hargreaves cited the “3eb band agreement” after the Band terminated Cadogan; (2) when Salazar, Jenkins, and Godtland told Plaintiff when he was hired by the Band in 2000 that, after a two-year probationary period, Plaintiff would officially be a full fledged Band member and co-owner of the Band; (3) when Salazar told Plaintiff that the Band’s agreement “was affirmed through the closing of the Cadogan litigation” and that “he had a lawyer who was working out ‘vesting the shares’ of 3eb to the shareholders, i.e. the band members,” and Godtland confirmed this fact; and (4) when the Band “agreed that they would take the shareholder agreements, sign them and distribute the shares.” See Fredianelli Decl. ¶¶ 6, 8; Godtland Dep. at 857:5-16. In addition, the written Agreement submitted by Defendants is itself potential evidence of the existence of a contract. See Greenberg Decl. Ex. B.

The first and third instances are not offers; they evidence no consent by the Band members to enter into a current agreement with Plaintiff. To the extent the third instance refers to an agreement being “affirmed,” the statement is ambiguous: it does not indicate what the agreement is, what is meant by its affirmation, who affirmed it, or whether Plaintiffs inclusion in the agreement was part of the affirmation. Moreover, these conversations with Salazar occurred before Fredianelli was made a member of the Band, suggesting that any agreement that he be a co-owner of the Band could not have been in effect at that time.

The second instance, on the other hand, is, at best, an agreement to enter into a contract two years in the future. In California, the statute of frauds requires that “[a]n agreement that by its terms is not to be performed within a year from the making thereof’ be reduced to writing. Cal. Civ. Code § 1624. Here, the promise to make Plaintiff a co-owner after a two year probationary period would thus be subject to the statute of frauds, as there is no way in which it could be performed in less than a year. Plaintiff has not produced any writing indicating this promise, and thus it could not serve to create a contract. Cf. 1 Witkin, Summary 10th (2005) Contracts, § 366 (a conditional contract must be one potentially performed within one year).

*1016As for the fourth instance based on Godtland’s testimony that the Band intended to sign the shareholder agreements and distribute the shares that testimony is inadmissible hearsay. Even if it were admitted to show an intent of the Band members to sign a shareholder agreement and distribute the shares in the future, “an agreement that parties will, in the future, make such contract as they may then agree upon amounts to nothing.” Kerr Glass Mfg. Corp. v. Elizabeth Arden Sales Corp., 61 Cal.App.2d 55, 56, 141 P.2d 938 (1943). There is no evidence that the parties had agreed on specific terms for this future agreement. The general rule in California is “that where any of the essential elements of a promise are reserved for the future agreement of both parties, no legal obligation arises ‘until such future agreement is made.’ ” Copeland v. Baskin Robbins U.S.A., 96 Cal.App.4th 1251, 1256, 117 Cal.Rptr.2d 875 (2002) (quoting City of Los Angeles v. Super. Ct., 51 Cal.2d 423, 433, 333 P.2d 745 (1959)).

The uncertainty here is underscored by the fact that, even if Godtland was referring to the draft written Agreement described above, it is unclear which version of the Agreement Godtland was referring to when he indicated that the Band intended to sign the shareholder agreements and distribute the shares. As is evident from the face of the Agreement (and as testified to by Jenkins), it was subject to a number of revisions to key elements over time, such as the merchandising splits, sponsorship splits, and decision-making structure. Jenkins Decl. ¶ 11; Greenberg Decl. Ex. B. Thus, Godtland’s representation that the Band intended to sign the shareholder agreements simply indicates that they intended to sign an agreement in the future, which agreement in fact was never signed. The terms of the agreement, as testified to by Godtland, even if that testimony was admissible, are insufficiently definite to create a binding contract.

Even if the Court were to consider the terms of the written Agreement submitted by Defendants sufficiently definite to form the basis of a contractual obligation, Plaintiffs own evidence suggests that the parties did not intend for the Agreement to be effective until signed. As represented by Plaintiff, Godtland testified that the Band “agreed that they would take the shareholder agreements, sign them and distribute the shares” and that “they were going to distribute these shares and they were going to sign off on these documents, and Stephan [Jenkins] would distribute the shares to each of them.” Godtland Dep. 857:5-16 (emphasis added). If anything, this testimony indicates the Band’s intent that the Agreement not be in effect until signed, as Godtland repeatedly testified to the Band’s intent to sign the Agreement.3 “[W]here it is part of the understanding between the parties that the terms of their contract are to be reduced to writing and signed by the parties, the assent to its terms must be evidenced in the manner agreed upon or it does not become a bind*1017ing or completed contract.” Beck v. Am. Health Group Internat’l, 211 Cal.App.3d 1555, 1562, 260 Cal.Rptr. 237 (1989). It is undisputed that no written agreement was ever signed by Plaintiff and the other band members.

Of course, parties may enter into an agreement without a written agreement. For example, in Columbia Pictures Corp. v. De Toth, 87 Cal.App.2d 620, 624, 197 P.2d 580 (1948), the court upheld an oral agreement when a film director and his agent held a meeting with a studio executive to negotiate a “term contract” governing the director’s employment by the studio for a period of time, at which meeting the agent indicated his client would sign the term contract upon termination of a preexisting agreement. The studio executive then repeated the terms of the term contract to the director and asked the director if he agreed, to which the director responded in the affirmative. Id. at 624-25, 197 P.2d 580. The three then shook hands and one of them said, “This is a deal.” Id. at 625, 197 P.2d 580. The director then said that he agreed to sign the term contract once h