CBS MSJ

Electronically FILED by Superior Court of California, County of Los Angeles on 12/02/2021 02:08 PM Sherri R.
Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk
1 VENABLE LLP
Lee S. Brenner (SBN 180235)
2 LSBrenner@venable.com
Sarah L. Cronin (SBN 252624)
3 SLCronin@venable.com
Ken D. Kronstadt (SBN 259996)
4 KDKronstadt@venable.com
2049 Century Park East, Suite 2300
5 Los Angeles, CA 90067
Telephone: 310.229.9900
6 Facsimile: 310.229.9901
7 Attorneys for Defendant CBS Studios Inc.
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES – CENTRAL DISTRICT
10
11 HANZER HOLDINGS, a California Limited Case No. 18STCV09231

Partnership, and ARLITA, INC., a California
12 Corporation, Assigned to Hon. Maureen Duffy-Lewis,
2049 CENTURY PARK EAST, SUITE 2 300
Dept. 38
13 Plaintiffs,
DEFENDANT CBS STUDIOS INC.’S
LOS ANGELES, CA 90067
VENABLE LLP
14 v. NOTICE OF MOTION AND MOTION

310.229.9900
FOR SUMMARY JUDGMENT OR, IN

15 CBS STUDIOS INC., a Delaware corporation, THE ALTERNATIVE, SUMMARY
ADJUDICATION; MEMORANDUM
16 Defendant. OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
17
[Separate Statement of Undisputed
18 Material Facts; Declarations of Carmen
Desiderio, Ronald Jake Jacobson and Ken
19 D. Kronstadt; Appendix of Evidence; and
[Proposed] Order filed concurrently
20 herewith]
21 Hearing Date:
Date: February 15, 2022
22 Time: 9:30 a.m.
Dept.: 38
23
Reservation ID: 560285865559
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Action Filed: December 20, 2018
25 Trial Date: April 18, 2022
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CBS STUDIOS INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR,
IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on February 15, 2022, at 9:30 a.m., in Department 38,
3 located at 111 N. Hill Street, Los Angeles, California 90012, Defendant CBS Studios Inc.
4 (“CBS”) will and hereby does move the Court, pursuant to Code of Civil Procedure section 437c,
5 for summary judgment or, in the alternative, summary adjudication, in favor of CBS and against
6 Plaintiffs Hanzer Holdings and Arlita, Inc. (collectively, “Plaintiffs”).
7 Good Cause Exists To Grant Summary Judgment
8 Good cause exists to grant CBS’s motion for summary judgment on either of two grounds:
9 First, Plaintiffs’ contract claim fails as a matter of basic blackletter law. The undisputed
10 evidence, as well as Plaintiffs’ own concessions in their First Amended Complaint (“FAC”),
11 reveals that there was no mutual consent (i.e., “offer” and “acceptance”) as to what Plaintiffs now
12 allege is the “final agreement” on which their claims are based.

13 In particular, in their FAC, Plaintiffs state that Paramount Pictures Corporation and Henry
14 Winkler/John Rich Productions exchanged a series of offers and counteroffers, including a

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15 proposed agreement in December 1984 and a counteroffer in October 1985, respectively, and that
16 neither party ever accepted the other’s offer. “[T]erms proposed in an offer must be met exactly,
17 precisely, and unequivocally for its acceptance to result in the formation of a binding contract,”
18 and a qualified acceptance terminates the original offer. See Panagotacos v. Bank of Am., 60 Cal.
19 App. 4th 851, 855-56 (1998).
20 Second, the undisputed evidence confirms Plaintiffs’ admission that “there was no
21 meeting of the minds between the parties on certain terms” proposed in the December 1984 and
22 October 1985 offers referenced above related to material terms, including but not limited to
23 compensation (i.e., what Plaintiffs’ FAC refers to as “damages”) and the term (i.e., duration) of
24 the proposed agreement. (See Separate Statement of Undisputed Material Facts (“UF”) 14, 15,
25 19, 22, 24-31 (emphasis added).) Such a failure to reach a meeting of the minds on all material
26 terms “prevents the formation of a contract even though the parties have orally agreed upon some
27 of the terms, or have taken some action related to the contract.” See Bustamante v. Intuit, Inc.,
28 141 Cal. App. 4th 199, 215 (2006).
1
1 These deficiencies are fatal not only to Plaintiffs’ breach of contract claim, but also to
2 their bare bones claim for breach of the implied covenant of good faith and fair dealing. As a
3 fundamental matter, the tag-along implied covenant claim fails as a matter of law because there is
4 no enforceable contract. Green Valley Landowners Ass’n v. City of Vallejo, 241 Cal. App. 4th
5 425, 433 (2015) (“The prerequisite for any action for breach of the implied covenant of good faith
6 and fair dealing is the existence of a contractual relationship between the parties, since the
7 covenant is an implied term in the contract.”).
8 In The Alternative, Good Cause Also Exists To Grant Summary Adjudication
9 In the alternative, good cause exists to grant summary adjudication on Plaintiffs’ cause of
10 action for breach of the implied covenant of good faith and fair dealing because “one or more
11 elements of the cause of action, even if not separately pleaded, cannot be established . . . .” Cal.
12 Civ. Proc. Code § 437c(p)(2); Lilienthal & Fowler v. Superior Court, 12 Cal. App. 4th 1848,
13 1854-55 (1993).
14 Plaintiffs have recently asserted that their implied covenant cause of action is really based
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15 on (i) a statement allegedly made by CBS in October 2016 to Richard Weston that Paradigm
16 Talent Agency had represented that it was the successor to Major Talent Agency, and (ii) CBS’s
17 alleged failure to investigate Plaintiffs’ interests in an agency commission prior to November
18 2016. Plaintiffs’ unpled claims as set forth above (or any other claims that Plaintiffs come up
19 with that do not appear in Plaintiffs’ FAC) cannot possibly support Plaintiffs’ implied covenant
20 claim because, as the California Supreme Court has instructed, the pleadings “set the boundaries
21 of the issues to be resolved at summary judgment.” Conroy v. Regents of Univ. of Cal., 45 Cal.
22 4th 1244, 1250 (2009). 1 Summary adjudication is proper on this ground alone.
23 Even assuming, arguendo, the truth of Plaintiffs’ unpled allegations, Plaintiffs’ implied
24 covenant claim would still fail for two additional independent reasons. First, there is no evidence
25 that CBS’s October 2016 statement was made to either one of the Plaintiffs in this lawsuit. The
26
1
Before Plaintiffs amended their complaint, the Court instructed the parties that CBS is only
27 “fighting [what] is in the documents filed, the Complaint.” (UF 46.) In the face of that
admonition, Plaintiffs decided not to amend the implied covenant cause of action in the FAC to
28 add their contentions regarding CBS’s alleged October 2016 statement and investigation.
2
1 statement was made to Weston, who was at the time not representing either of the Plaintiffs in
2 this lawsuit (but rather was asserting a claim for non-party Major Clients Agency).
3 Second, Plaintiffs never relied on either the October 2016 statement or the results of
4 CBS’s investigation in any fashion. Rather, Plaintiffs stated that they rejected both of those
5 things. Thus, Plaintiffs cannot show they relied on or were harmed by CBS’s conduct, as they are
6 required to do in order to satisfy an essential element of their claim – i.e., resulting damages.
7 This Motion is based on this Notice of Motion, the concurrently-filed Memorandum of
8 Points and Authorities, CBS’s Separate Statement of Undisputed Material Facts, Appendix of
9 Evidence, and the Declarations of Carmen Desiderio, Ronald Jake Jacobson, and Ken D.
10 Kronstadt submitted in connection with this Motion, on such matters of which the Court must or
11 may take judicial notice, on all pleadings and other documents on file with this Court, and on
12 such other evidence as may be presented at the hearing on this Motion.

13
Dated: December 2, 2021 VENABLE LLP
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VENABLE LLP
310.229.9900
By:
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Lee S. Brenner
17 Sarah L. Cronin
Ken D. Kronstadt
18
Attorneys for Defendant CBS Studios Inc.
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1 TABLE OF CONTENTS
2 I. INTRODUCTION ...............................................................................................................1
3 II. STATEMENT OF FACTS ON SUMMARY JUDGMENT ...............................................4
4 A. Paramount, Henry Winkler, And John Rich Begin Negotiating The

Terms Of An Agreement To Make Television Shows In 1983 ...............................4
5
B. An “Early Draft” Of The Proposed Agreement Was Executed “In
6 Error,” Involved The Wrong Contracting Party (Which Was
Revealed To Have Never Existed) And, In Fact, Negotiations
7 Continued Thereafter For Years ..............................................................................4
8 C. Plaintiffs Contend There Was “No Meeting Of The Minds” On

Terms Of The Proposed Agreement, Including Material Terms
9 Related To Compensation And Duration, Among Other Material
Terms .......................................................................................................................6
10
D. Paramount And Henry Winkler/John Rich Productions Begin
11 Negotiating An As Of January 1, 1985 “Joint Venture Agreement”
Specifically For The MacGyver Television Show – The Very
12 Document Referred To In The Distribution Statements Setting
Forth The Money To Be Paid For MacGyver ..........................................................7
13
E. Plaintiffs Have Identified No Witnesses Who Can Support Their
14 Amended Allegations In The FAC As To What They Allege Is The

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Agreement They Claim Was Breached....................................................................8

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F. Plaintiffs Concede Whether What They Allege Is The “Final
16 Contract” Is An Issue For The Court To Decide On The Undisputed
Facts .........................................................................................................................9
17
III. THE COURT SHOULD GRANT SUMMARY JUDGMENT AND
18 DISMISS PLAINTIFFS’ FAC ..........................................................................................10
19 A. Legal Standards: As The California Supreme Court Has Instructed,

The Plaintiffs’ Complaint Delimits The Scope Of Issues To Be
20 Resolved On Summary Judgment ..........................................................................10
21 B. Plaintiffs Cannot Prove That What They Allege Is The “Final

Agreement” Is An Enforceable Contract ...............................................................11
22
1. There Was No Mutual Consent Because Paramount’s
23 October 1985 Counteroffer Was Never Accepted .....................................12
24 2. Plaintiffs Expressly Allege There Was “No Meeting Of The

Minds” On All Terms, Including Material Terms .....................................14
25
C. Plaintiffs’ Implied Covenant Claim Fails As A Matter Of Law
26 Where, As Here, Plaintiffs Fail To Allege A Valid Contract ................................16
27 IV. IN THE ALTERNATIVE, THE COURT SHOULD GRANT SUMMARY

ADJUDICATION AS TO PLAINTIFFS’ IMPLIED COVENANT CLAIM ...................17
28
i
1 A. Legal Standard For Summary Adjudication ..........................................................17
2 B. CBS’s Alleged Conduct Was Not Directed At Either Plaintiff, But

At Non-Parties Weston and Major Clients Agency ...............................................18
3
1. The October 2016 Statement Was Made At Least 9 Month
4 Before Weston Could Have Been Speaking For Hanzer
Holdings .....................................................................................................18
5
2. The October 2016 Statement Was Made Two Years Before
6 Arlita Purportedly Obtained A Contractual Right To An
Agency Commission ..................................................................................19
7
C. Plaintiffs Cannot Show Resulting Damages Due To The Alleged
8 October 2016 Statement Or CBS’s Investigation ..................................................19
9 V. CONCLUSION ..................................................................................................................20
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Aguilar v. Atl. Richfield Co.,

25 Cal. 4th 826 (2001) .............................................................................................................. 10
5
Ajax Holding Co. v. Heinsbergen,
6
64 Cal. App. 2d 665 (1944) ................................................................................................ 12, 13
7
Amerigraphics, Inc. v. Mercury Cas. Co.,
8 182 Cal. App. 4th 1538 (2010) ................................................................................................. 20
9 Brown v. Cal. State Lottery Comm’n,

232 Cal. App. 3d 1335 (1991) .............................................................................................. 1, 12
10
Bustamante v. Intuit, Inc.,
11 141 Cal. App. 4th 199 (2006) ................................................................................... 2, 14, 15, 16
12
Carmel Dev. Co., Inc. v. Anderson,
13 48 Cal. App. 5th 492 (2020) ..................................................................................................... 11

14 Castillo v. Barrera,
VENABLE LLP
146 Cal. App. 4th 1317 (2007) ........................................................................................... 11, 13

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15
Conroy v. Regents of Univ. of Cal.,
16 45 Cal. 4th 1244 (2009) .....................................................................................................passim
17 DeLeon v. Verizon Wireless, LLC,
18 207 Cal. App. 4th 800 (2012) ........................................................................................... 1, 2, 12
19 Granadino v. Wells Fargo Bank, N.A.,

236 Cal. App. 4th 411 (2015) ................................................................................................... 11
20
Green Valley Landowners Ass’n v. City of Vallejo,
21 241 Cal. App. 4th 425 (2015) ............................................................................................. 11, 16
22 Hughes Aircraft Co. v. Superior Court,
23 44 Cal. App. 4th 1790 (1996) ................................................................................................... 17
24 Hutton v. Fid. Nat’l Title Co.,

213 Cal. App. 4th 486 (2013), as modified on denial of reh’g (Feb. 22, 2013) ................passim
25
Key Brands Int’l Ltd. v. Wilson,
26 2019 WL 6622856 (C.D. Cal. Sept. 3, 2019) ..................................................................... 11, 12
27 Krasley v. Superior Court,
101 Cal. App. 3d 425 (1980) .................................................................................................... 11
28
iii
1 Laabs v. City of Victorville,
163 Cal. App. 4th 1242 (2008), as modified on denial of reh’g (July 7, 2008)........................ 10
2
Lilienthal & Fowler v. Superior Court,
3
12 Cal. App. 4th 1848 (1993) ................................................................................................... 17
4
Moreau v. San Diego Transit Corp.,
5 210 Cal. App. 3d 614 (1989) .................................................................................................... 10
6 Ojjeh v. Brown,
43 Cal. App. 5th 1027 (2019) ................................................................................................... 18
7
Panagotacos v. Bank of Am.,
8 60 Cal. App. 4th 851 (1998) ........................................................................................... 1, 12, 13
9
Racine & Laramie Ltd.,
10 11 Cal. App. 4th at 1031-32 ...................................................................................................... 18
11 Rosenfeld v. JPMorgan Chase Bank, N.A.,

732 F.Supp.2d 952 (N.D. Cal. 2010) .................................................................................. 18, 20
12
SVGRP LLC v. Sowell Fin. Servs., LLC,
13 2019 WL 652890 (N.D. Cal. Feb. 15, 2019) ............................................................................ 15

14
VENABLE LLP
Telecom Asset Mgmt., LLC v. Fiberlight, LLC,

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15 203 F.Supp.3d 1013 (N.D. Cal. 2016) ................................................................................ 12, 14
16 Weddington Prods., Inc. v. Flick,

60 Cal. App. 4th 793 (1998) ................................................................................... 12, 13, 14, 15
17
Wolkowitz v. Redland Ins. Co.,
18 112 Cal. App. 4th 154 (2003) ............................................................................................... 4, 19
19 Woodham v. Allen,
20 130 Cal. 194 (1900) .................................................................................................................. 11
21 Statutes
22 Cal. Civ. Code § 1580 ..................................................................................................................... 14
23 Cal. Civ. Code § 1585 ............................................................................................................... 12, 13

24 Cal. Code Civ. Proc. § 437c.................................................................................................. 3, 11, 17
25 Other Authorities
26 Judicial Council of California, Civil Jury Instructions (“CACI”) § 325 ........................................ 18
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iv
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 The parties to this lawsuit finally agree on something – that whether the alleged “final
4 agreement” Plaintiffs Hanzer Holdings and Arlita, Inc. (collectively, “Plaintiffs”) claim rights
5 under as third-party beneficiaries in their First Amended Complaint (“FAC”) is a valid and
6 enforceable contract is a question of law for this Court to decide. 1 Under hornbook law,
7 however, what Plaintiffs allege is the “final agreement” is simply not an enforceable agreement.
8 Plaintiffs allege the “final agreement” was reached between the parties – Paramount Pictures
9 Corporation (“Paramount”) and Henry Winkler/John Rich Productions – through a series of offers
10 and counteroffers, none of which were ever accepted, a fact Plaintiffs expressly concede in their
11 FAC. (See Separate Statement of Undisputed Material Facts (“UF”) 24 (Plaintiffs allege
12 Paramount’s proposal was “never agreed to”); see UF 3-19, 22, 26.) Plaintiffs’ admission that no
13 party to the alleged “final agreement” ever accepted the other party’s offer is case dispositive.
14 Plaintiffs are the masters of their complaint, and their contract formation claim is untenable under
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15 California law.
16 California law is clear: “There is no contract unless there is mutual consent of the parties.”
17 DeLeon v. Verizon Wireless, LLC, 207 Cal. App. 4th 800, 813 (2012) (citing Cal. Civ. Code §§
18 1550, 1565). The manifestation of mutual consent “ordinarily takes the form of an offer or
19 proposal by one party followed by an acceptance by the other party.” Brown v. Cal. State Lottery
20 Comm’n, 232 Cal. App. 3d 1335, 1339 n.1 (1991) (emphasis added). In Panagotacos v. Bank of
21 America, the trial court granted summary judgment for the defendant, finding there was no
22 enforceable contract because neither party had ever unequivocally accepted the other party’s
23 offer, where the plaintiffs’ response “added an additional term . . . proposing that payment for the
24 property occur in Greece” rather than Germany, which “constituted a counteroffer,” and the
25 sellers never unequivocally accepted the plaintiffs’ counteroffer. 60 Cal. App. 4th 851, 855
26
1
More specifically, Plaintiffs each claim to be the successors-in-interest to Major Talent Agency.
27 FAC ¶¶ 1-2. Major Talent Agency performed talent agency services on the original MacGyver
television series and was a third-party beneficiary of the draft agreement Plaintiffs seek to enforce
28 in their FAC. FAC ¶ 1. CBS accepts the allegations of Plaintiffs’ FAC as true for purposes of
this motion only.
1
1 (1998). The trial court concluded “there was not a binding contract between the parties.” Id. at
2 856. The Court of Appeal affirmed the trial court’s dismissal of the case on summary judgment.
3 Id. at 857.
4 Here, by Plaintiffs’ own admission and under their own pleading, they are seeking to
5 enforce a specific contract for which there was no mutual consent (i.e., offer and acceptance) as a
6 matter of law. Plaintiffs allege – and the undisputed evidence shows – that an “early draft” of the
7 proposed agreement (the “Proposed Agreement”) – nominally between Paramount and an entity
8 that never existed (“WRP Productions, Ltd.”) – was signed “in error” in August 1984, and that
9 counsel for Henry Winkler sent Paramount a revised draft of the proposed agreement in
10 December 1984. Paramount responded to the December 1984 draft with its own proposed
11 revisions in an October 1985 letter. Plaintiffs expressly allege that Henry Winkler/John Rich
12 Productions never accepted Paramount’s October 1985 counteroffer. The result is that what
13 Plaintiffs allege is the “final agreement” under which they claim to have rights is not an
14 enforceable contract because the parties never consented mutually to the terms of the October
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15 1985 counteroffer. Thus, Plaintiffs’ FAC, which frames the issues on summary judgment, cannot
16 establish an enforceable contract as a matter of law.
17 Separately, Plaintiffs expressly allege that:
18 there was no meeting of the minds between the parties [i.e.,

Paramount and Henry Winkler/John Rich Productions] on
19 certain terms in: (i) the December 17, 1984 redline (Exhibit C [to
the FAC]) . . . and (ii) certain new terms proposed in Paramount’s
20 October 1, 1985 letter (Exhibit D [to the FAC]).
21 (UF 22 (emphasis added).) The terms on which Plaintiffs allege “there was no meeting of the
22 minds” related to, among other things, material terms regarding compensation (i.e., what
23 Plaintiffs’ FAC refers to as “damages”) and the term (i.e., duration) of the proposed agreement.
24 (UF 22, 24-31.) Indeed, it is difficult to imagine any terms more “material” than money owed
25 and length of the agreement. Such a failure to reach a meeting of the minds on all material terms
26 “prevents the formation of a contract even though the parties have orally agreed upon some of the
27 terms, or have taken some action related to the contract.” Bustamante v. Intuit, Inc., 141 Cal.
28 App. 4th 199, 215 (2006) (emphasis in original).
2
1 After three-plus years of litigation, over a dozen depositions, hundreds of written
2 discovery requests, and thousands of pages of documents exchanged, the combination of
3 documents Plaintiffs proffer as the alleged contract they seek to enforce is unenforceable as a
4 matter of law due to the lack of mutual consent. The issues regarding contract formation are ripe
5 for summary judgment given Plaintiffs’ admissions and acknowledgment that whether the
6 documents they point to in their FAC amount to an enforceable “final contract” is a legal
7 conclusion for this Court to decide.
8 Alternatively, the Court should grant summary adjudication in CBS’s favor under section
9 437c(f)(1) of the California Code of Civil Procedure. Plaintiffs apparently now seek to premise
10 their claim for breach of the implied covenant of good faith and fair dealing on a statement
11 allegedly made by CBS in October 2016 that Paradigm Talent Agency (“Paradigm”) had
12 represented that it was the successor to Major Talent Agency, and CBS’s alleged failure to
13 investigate Plaintiffs’ interests in an agency commission prior to November 2016. As a

14 fundamental matter, summary adjudication is proper because neither of these allegations appear
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15 anywhere in Plaintiffs’ FAC. The California Supreme Court has instructed that the complaint
16 “set[s] the boundaries of the issues to be resolved at summary judgment,” and any unpled theories
17 are not part of the case. Conroy v. Regents of Univ. of Cal., 45 Cal. 4th 1244, 1250 (2009); see
18 Hutton v. Fid. Nat’l Title Co., 213 Cal. App. 4th 486, 492 (2013), as modified on denial of
19 reh’g (Feb. 22, 2013). On this ground alone, summary adjudication is appropriate.
20 Nevertheless, even assuming arguendo these contentions were pled in the FAC (they are
21 not) and that these contentions were all true (they are not), Plaintiffs’ implied covenant claim
22 would still fail as a matter of law. Plaintiffs cannot establish, nor is there any evidence, that the
23 October 2016 statement was made to either one of the Plaintiffs in this lawsuit, as Weston was
24 only representing the interest of a non-party (Major Clients Agency) at the time. Moreover,
25 Plaintiffs never relied on the October 2016 statement or the results of CBS’s investigation. In
26 fact, they immediately disputed CBS’s assertion and have consistently denied that Paradigm was
27 the successor to Major Talent Agency’s interests in any fashion. Plaintiffs, therefore, cannot
28 prove they were harmed by this alleged conduct, as they must do to support a claim. Without
3
1 resulting damages, there is no claim for breach of the implied covenant of good faith and fair
2 dealing. Wolkowitz v. Redland Ins. Co., 112 Cal. App. 4th 154, 162 (2003).
3 Twelve jurors cannot save Plaintiffs from their own words, and CBS respectfully requests
4 that the Court grant summary judgment rather than force a jury to try to find a contract that
5 Plaintiffs themselves cannot identify (and which their PMQ would not do during deposition).
6 II. STATEMENT OF FACTS ON SUMMARY JUDGMENT
7 A. Paramount, Henry Winkler, And John Rich Begin Negotiating The Terms Of
8 An Agreement To Make Television Shows In 1983
9 Film and television distributor Paramount, actor and producer Henry Winkler, producer
10 and director John Rich, and a company involving Henry Winkler and John Rich began
11 negotiating a deal to make television shows together in 1983 (the “Proposed Agreement”). (UF
12 1.) The Proposed Agreement contemplated that each specific television show produced
13 thereunder would have its own separate joint venture agreement between the parties related to
14 that television show. (UF 2.)

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15 B. An “Early Draft” Of The Proposed Agreement Was Executed “In Error,”
16 Involved The Wrong Contracting Party (Which Was Revealed To Have
17 Never Existed) And, In Fact, Negotiations Continued Thereafter For Years
18 In or around August 1984, an “early draft” of the Proposed Agreement was signed “in
19 error” and was between Paramount and a contracting party which was (a) not the correct
20 contracting party and (b) later revealed to have never existed. (UF 3, 4.) Plaintiffs concede in
21 their FAC that after the early draft was signed in error in August 1984, they are not aware of any
22 version of the Proposed Agreement that “was ever signed by the parties and/or agreed to.” (UF 8
23 (emphasis added).) 2
24 In the words of the attorney representing John Rich in a letter to Henry Winkler’s attorney
25 on September 5, 1984: “As we discussed, Paramount has mistakenly gone ahead with execution
26 of the early draft which does not reflect the correct joint venture name, the interest bearing Note
27
2
Plaintiffs amended their complaint in August 2021, and no longer claim that the signed version
28 is the final, operative contract on which they are premising their claims. Compare FAC at ¶ 7(d)
with Appendix of Evidence, Kronstadt Decl., Ex. 26 (Plaintiffs’ original Complaint) at ¶ 7.
4
1 to be delivered for $1 million of the $3.5 million, etc. …. [W]e’ll be submitting a correct, revised
2 draft for signature, instead.” (UF 5.)
3 John Rich’s attorneys then wrote to Paramount on September 7, 1984 that:
4 [T]he execution of the earlier memorandum [was] in error. . . .

There never was a proper joint venture named WRP Productions.
5 There is an existing joint venture called Henry Winkler/John Rich
Productions …. That will be the entity which will be entering into
6 the long form contracts with Paramount which are being prepared. .
. . Some day [sic] we’ll have it all memorialized and signed ….
7
8 (UF 6 (emphasis added).)
9 After the parties acknowledged, in writing, that an early draft of the Proposed Agreement
10 was signed “in error,” they continued to negotiate for several years. (UF 3, 7, 9, 10, 15, 20.)
11 For example, on November 15, 1984, months after the early draft was erroneously signed
12 by the parties and Paramount first learned that a contracting party never existed, Paramount wrote
13 to counsel for John Rich that Paramount still “ha[d] not as yet received the formal documentation
14 with respect to the agreement between Paramount and Henry Winkler/John Rich Productions.”
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15 (UF 9; see also UF 3, 4.)
16 One month later, on December 17, 1984, counsel for Henry Winkler responded and
17 attached a redline draft of proposed changes (the “December 1984 Offer”). (UF 10.) The many
18 proposed changes in the December 1984 Offer redline included, but certainly were not limited to,
19 changing one of the two parties to the agreement from “WRP Productions, Ltd.,” the so-called
20 contracting party that never existed, to a different production entity, “Henry Winkler/John Rich
21 Productions,” and adding signature blocks for entities not named in the early draft of the
22 Proposed Agreement that was signed in error. (UF 11, 12; see also UF 4.) The December 1984
23 Offer also changed the “Purchase Price” provision of the Proposed Agreement, such that the
24 $2,250,000 due to Henry Winkler/John Rich Productions “on or before August 1, 1984” was
25 lowered by a full $1 million and changed to $1,250,000 “payable on or before August 1, 1984,”
26 with “[t]he balance of $1,000,000 [due] in the form of a promissory note, bearing interest at 10%
27 per annum[.]” (UF 13.)
28 Paramount did not accept the proposed December 1984 Offer. (UF 14.) Rather, it
5
1 sent proposed changes to the December 1984 Offer in an October 1, 1985 letter that sought to
2 change seven different provisions of the proposed December 1984 Offer, and add a new provision
3 (the “October 1985 Counteroffer”). (UF 15.) The October 1985 Counteroffer concluded by
4 asking if the foregoing changes were “acceptable” and, if so, requested that the changes be made
5 and that signature copies be provided. (UF 16.) Paramount’s Ronald Jake Jacobson, who penned
6 the October 1, 1985 letter, expected to receive a revised draft for his final review or approval, but
7 Henry Winkler/John Rich Productions never responded to Paramount’s October 1985
8 Counteroffer or provided a subsequent draft of the Proposed Agreement. (UF 17, 18.) Plaintiffs
9 admit that Henry Winkler/John Rich Productions never accepted the October 1985 Counteroffer.
10 (UF 19.)
11 On February 2, 1987, Paramount revisited negotiations regarding the Proposed
12 Agreement, sending another proposed draft (the “1987 Draft”). (UF 20.) Notably, Paramount’s
13 cover letter noted that the 1987 Draft incorporated language from the October 1985 Counteroffer,
14 removing the term “third party” from the phrase “actual direct out-of-pocket third party costs of
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15 distribution.” (UF 21.)
16 C. Plaintiffs Contend There Was “No Meeting Of The Minds” On Terms Of The
17 Proposed Agreement, Including Material Terms Related To Compensation
18 And Duration, Among Other Material Terms
19 Plaintiffs assert that:
20 there was no meeting of the minds on certain terms in: (i) the
December 17, 1984 redline . . . and . . . (ii) certain new terms
21 proposed in Paramount’s October 1, 1985 letter ….
(UF 22 (emphasis added).) Plaintiffs do not contend that any portion of any alleged agreement
22
was oral or implied. (UF 23.)
23
Plaintiffs admit that Henry Winkler/John Rich Productions “never agreed to Paramount’s
24
proposal” in the October 1985 Counteroffer “to drop the words ‘third party’ from the phrase
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‘actual direct out of pocket third party costs of distribution’ as it appears in Sections 13 and 19”
26
of the Proposed Agreement. (UF 24.) This change had significant practical and financial
27
implications for Paramount, including allowing Paramount to receive payment for the distribution
28
6
1 services it performed. (UF 25, 28, 29.) Plaintiffs also insist that Henry Winkler/John Rich
2 Productions never agreed to Paramount’s proposal in the October 1985 Counteroffer to add a
3 paragraph to the draft Proposed Agreement establishing a “Term” period. (UF 26.)
4 Paramount proposed to make eight changes to the draft Proposed Agreement, no fewer
5 than five of which were material to Paramount. (UF 27.) Plaintiffs have similarly acknowledged
6 the materiality of certain of the proposed changes in the October 1985 Counteroffer. (UF 28, 29,
7 31.) Plaintiffs’ Person Most Qualified (“PMQ”), Richard Weston, acknowledged that whether
8 Paramount was able to deduct only “‘third party costs’ versus ‘all costs’” when determining the
9 compensation owed to the parties “would be . . . “significan[t].” (UF 28 (emphasis added).)
10 Plaintiffs’ FAC admits the same, as Plaintiffs allege this proposed change relates to damages (i.e.,
11 compensation.) (UF 29.) The October 1985 Counteroffer proposed to make this very change in
12 two separate provisions of the Proposed Agreement, including Paragraph 19, which Plaintiffs
13 allege governs the “Agency Commission” at issue in this lawsuit. (UF 30.)
14 Additionally, Skip Brittenham, counsel for Henry Winkler during the negotiations of the
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15 draft Proposed Agreement, stated at his deposition that it is “a fundamental thing that all
16 agreements in show biz have a term, a length.” (UF 31.)
17 D. Paramount And Henry Winkler/John Rich Productions Begin Negotiating An
18 As Of January 1, 1985 “Joint Venture Agreement” Specifically For The
19 MacGyver Television Show – The Very Document Referred To In The
20 Distribution Statements Setting Forth The Money To Be Paid For MacGyver
21 On January 7, 1986 – approximately three months after sending the October 1985
22 Counteroffer – Jacobson sent counsel for Henry Winkler a Joint Venture Agreement specific to
23 MacGyver, with an “as of” date of January 1, 1985 (the “Joint Venture Agreement”). (UF 32.)
24 The Joint Venture Agreement states that all distribution costs are to be deducted, with no “third
25 party” limitation. (UF 33.)
26 The “Cumulative Distribution Statements” that were issued to Henry Winkler/John Rich
27 Productions outlining the compensation they were owed for MacGyver expressly cite the January
28 1, 1985 “Joint Venture Agreement,” not the Proposed Agreement. (UF 34.) Further, in
7
1 calculating what money was owed to Henry Winkler/John Rich Productions, Paramount did not
2 limit the deductions from adjusted or gross receipts to direct out-of-pocket third-party costs of
3 distribution, as Plaintiffs allege was their proposed term. (UF 35.) Unlike the alleged contract set
4 forth in Plaintiffs’ FAC, all actual direct out-of-pocket costs of distribution, without any “third
5 party” limitation, were deducted, consistent with Paramount’s October 1985 Counteroffer. (UF
6 35; see also UF 15, 24, 25, 30.)
7 E. Plaintiffs Have Identified No Witnesses Who Can Support Their Amended
8 Allegations In The FAC As To What They Allege Is The Agreement They
9 Claim Was Breached
10 Plaintiffs allege that “the final agreement of the parties” is the early, erroneously signed
11 draft of the Proposed Agreement attached as Exhibit A to the FAC “plus those amended terms in
12 the December 17, 1984 redline (Exhibit C) that Paramount agreed to [sic] its October 1, 1985
13 letter (Exhibit D).” (UF 36.) No witness in this lawsuit has testified that what Plaintiffs allege is
14 the “final agreement” is an agreement:

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15 • Plaintiffs’ PMQ on what Plaintiffs allege is the final agreement testified he “ha[s] no
knowledge one way or the other” “whether or not Arlita and Hanzer Holdings are
16 suing on the wrong contract in this case.” (UF 38 (emphasis added); see UF 37.)
17 • Ken Ziffren, who drafted the Proposed Agreement, and Skip Brittenham, who
represented Henry Winkler, each declared, under penalty of perjury, that they “do not
18 know” “which of the . . . documents constitute the 1984 Agreement.” 3 (UF 37, 39, 40.)
19
3
At the hearing on CBS’s motion to compel Messrs. Ziffren and Brittenham’s depositions on the
20 amended allegations, both Plaintiffs’ counsel and the personal counsel for Messrs. Ziffren and
Brittenham stated unequivocally that neither Messrs. Ziffren nor Brittenham would provide
21 testimony on any of the amended allegations:
22 MR. NESSIN [sic]: But the three post execution letters . . . [Messrs. Ziffren and
Brittenham] recall nothing about them, and they will not be testifying substantively on
23 those three letters.
...
24
MR. NESSIN [sic]: [Ziffren and Brittenham] will not be adding any substantive
25 testimony beyond the signed agreement.
...
26 THE COURT: Okay. I get it. I get it. All right. Thank you very much. The court is
ready to rule on the motion to compel deposition. Based on the fact that the plaintiff
27 says that those three witnesses -- those two witnesses and Counsel Singer says those
two witnesses have no new information about new allegations, that is what I take
28 away from all this conversation. Is that correct Counsel Singer?
8
1 • Ron Nelson, who was “involved with Paramount’s consideration of entering into” the
Proposed Agreement at the relevant time, when asked at his deposition, “Now what do
2 you recall in terms of your own involvement in terms of the negotiation of this ’84
3 agreement that there was no final signed version of?”, responded, “Not a thing.” (UF
37, 41.)
4
• Jake Jacobson, who represented Paramount in negotiations regarding the Proposed
5 Agreement, testified at his deposition, before the FAC was filed alleging that Henry
Winkler/John Rich Productions never agreed to his October 1985 Counteroffer, that
6 he thought the most complete version of the Proposed Agreement was the draft as
modified by his October 1, 1985 letter, but was not sure if the “joint-venture
7 agreement between Paramount and Henry Winkler/John Rich Productions” modified
the deal because he “d[id]n’t have it in front of [him] and . . . ha[d]n’t read it in 35
8
years.” (UF 37, 42.)
9
In fact, Plaintiffs have identified no witnesses who can support their amended allegations
10
in the FAC as to what they allege is the agreement that they claim was breached. (UF 45.)
11
F. Plaintiffs Concede Whether What They Allege Is The “Final Contract” Is An
12
Issue For The Court To Decide On The Undisputed Facts
13
Plaintiffs have represented that they will rely on the “signed agreement and the post
14
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execution letters” to prove what the contract is, which they concede is a “legal conclusion”:
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15
THE COURT: I just want to know who will be. I don’t want a long response.
16 Who will be testifying?
17 MS. CHERLOW: Thank you, Your Honor. All the witnesses who have already
testified with respect to the 1984 agreement and the negotiation history thereof.
18 Honestly, Your Honor, nobody remembers exactly what happened in 1984. So it is
the signed agreement and the post execution letters that substantively make up
19 our offer of proof of what the contract is. There’s no witness who can tell the jury
the legal conclusion of what the final contract is, and all of the key negotiators
20 who are still alive have already been deposed about what the contract is. So
21 there’s no further testimony needed because they’ve already provided their
testimony. It’s Mr. Nelson. It’s Mr. Jacobson. It’s Mr. Ziffren, and it’s Mr.
22 Brittenham. And they’ve already testified as to what the contract is and what the
negotiation history is to the extent they recall.
23
24
MR. SINGER: Correct.
25 THE COURT: Is that correct, plaintiff’s counsel?
26 MS. CHERLOW: Yes, Your Honor.
THE COURT: All right. Then the court is going to rule. Based on that response, the
27 court is going to -- regarding the information on new allegations, I’m going to deny it.
Everything has been given. No new depo.
28
(UF 43 (emphasis added).)
9
1 (UF 44 (emphasis added).) As set forth above, the documents Plaintiffs are relying on to prove
2 the alleged contract are a series of offers, none of which, even Plaintiffs allege, were ever
3 accepted. (UF 3-19, 22, 24, 26.)
4 III. THE COURT SHOULD GRANT SUMMARY JUDGMENT AND DISMISS
5 PLAINTIFFS’ FAC
6 A. Legal Standards: As The California Supreme Court Has Instructed, The
7 Plaintiffs’ Complaint Delimits The Scope Of Issues To Be Resolved On
8 Summary Judgment
9 “The purpose of the law of summary judgment is to provide courts with a mechanism to
10 cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is
11 in fact necessary to resolve their dispute.” Aguilar v. Atl. Richfield Co., 25 Cal. 4th 826, 843
12 (2001). In turn, the California Supreme Court has instructed that a plaintiff’s complaint plays a
13 key role in a summary judgment motion because it sets “the boundaries of the issues to be
14 resolved at summary judgment.” Conroy, 45 Cal. 4th at 1250. The complaint “delimit[s] the
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15 scope of the issues” and “frame[s] the outer measure of materiality in a summary judgment
16 proceeding.” Hutton, 213 Cal. App. 4th at 492. Accordingly, a defendant
17 ha[s] the burden on summary judgment of negating only those

theories of liability as alleged in the complaint and [is] not obliged
18 to refute liability on some theoretical possibility not included in
the pleadings.
19 Conroy, 45 Cal. 4th at 1254 (emphasis added) (internal quotations omitted); Hutton, 213 Cal.
20 App. 4th at 493. 4
21 The “plaintiff is the ‘master’ of his complaint and he may craft his causes of action . . .
22 [as] he so desires.” Moreau v. San Diego Transit Corp., 210 Cal. App. 3d 614, 620 (1989)
23 (emphasis added). As such, whatever a plaintiff chooses not to plead is not part of the case.
24 Conroy, 45 Cal. 4th at 1254; Hutton, 213 Cal. App. 4th at 493; Laabs v. City of Victorville, 163
25
26 4
The law aligns with the Court’s own instruction to the parties that “What [CBS is] fighting is in
the documents filed, the Complaint.” (UF 46 (emphasis added).)
27
In response to the Court’s instruction, Plaintiffs made the calculated choice not to amend their
28 complaint to add any new theories of liability on their bare bones breach of implied covenant
claim. (UF 47 (comparing Orig. Complaint with FAC).)
10
1 Cal. App. 4th 1242, 1253 (2008), as modified on denial of reh’g (July 7, 2008).
2 A motion for summary judgment must be granted when “all the papers submitted show
3 that there is no triable issue as to any material fact and that the moving party is entitled to a
4 judgment as a matter of law.” Cal. Code Civ. Proc. § 437c(c). Where, as here, the defendant
5 shows that the plaintiff cannot establish one or more essential elements of the plaintiff’s cause of
6 action the burden shifts to the plaintiff to show that a triable issue of one or more material facts
7 exists as to the cause of action. Cal. Code Civ. Proc. § 437c(p)(2).
8 “A defendant moving for summary judgment may rely on the allegations contained in the
9 plaintiff’s complaint, which constitute judicial admissions.” Castillo v. Barrera, 146 Cal. App.
10 4th 1317, 1324 (2007). The plaintiff, however, cannot “rely upon the allegations or denials of its
11 pleadings to show that a triable issue of material fact exists ….” Cal. Code Civ. Proc.
12 § 437c(p)(2); Granadino v. Wells Fargo Bank, N.A., 236 Cal. App. 4th 411, 415 (2015) (“The
13 plaintiff must produce ‘substantial’ responsive evidence sufficient to establish a triable issue of
14 fact.”) (emphasis in original). Where the moving party satisfies its burden to show that the
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15 plaintiff cannot establish one or more essential elements of the plaintiff’s cause of action, or that
16 an affirmative defense bars recovery, and the non-moving party is unable to identify triable issues
17 on a material fact, summary adjudication is mandatory. Krasley v. Superior Court, 101 Cal. App.
18 3d 425, 432 (1980).
19 As set forth below, Plaintiffs’ own allegations, testimony and verified discovery responses
20 make clear that summary judgment is appropriate here.
21 B. Plaintiffs Cannot Prove That What They Allege Is The “Final Agreement” Is
22 An Enforceable Contract
23 Plaintiffs must allege a valid and enforceable contract to prevail on either of their claims
24 for (i) breach of contract and (ii) breach of the implied covenant of good faith and fair dealing.
25 Woodham v. Allen, 130 Cal. 194, 198 (1900) (“Where there is no contract, there can be no
26 breach.”); Carmel Dev. Co., Inc. v. Anderson, 48 Cal. App. 5th 492, 527 (2020) (“As there was no
27 contract between plaintiff and defendants, there could be no breach.”); Green Valley Landowners
28 Ass’n v. City of Vallejo, 241 Cal. App. 4th 425, 433 (2015); see also Key Brands Int’l Ltd. v.
11
1 Wilson, 2019 WL 6622856, at *13 (C.D. Cal. Sept. 3, 2019).
2 As set forth below, Plaintiffs’ breach of contract claim fails as a matter of law, and with it
3 their breach of the implied covenant claim, because there was never mutual consent between the
4 parties as to what Plaintiffs contend is the “final agreement,” and for the separate reason that there
5 was “no meeting of the minds” on material terms of Plaintiffs’ alleged “final agreement.”
6 1. There Was No Mutual Consent Because Paramount’s October 1985
7 Counteroffer Was Never Accepted
8 “There is no contract unless there is mutual consent of the parties.” DeLeon, 207 Cal.
9 App. 4th at 813 (citing Cal. Civ. Code, §§ 1550, 1565). The manifestation of mutual consent
10 “ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the
11 other party.” Brown, 232 Cal. App. 3d at 1339 n.1 (emphasis added); DeLeon, 207 Cal. App. 4th
12 at 813 (mutual consent “is generally achieved through the process of offer and acceptance”).
13 As any first-year law student can attest, “[t]erms proposed in an offer must be met exactly,
14 precisely, and unequivocally for its acceptance to result in the formation of a binding
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15 contract.” Panagotacos, 60 Cal. App. 4th at 855 (emphasis added). A qualified acceptance
16 constitutes a rejection, terminates the original offer, and is deemed a counteroffer to the original
17 offeror which must also be unequivocally accepted by the original offeror for a binding contract
18 to form. See id. at 856; Ajax Holding Co. v. Heinsbergen, 64 Cal. App. 2d 665, 669-70 (1944)
19 (“The addition of any condition or limitation is tantamount to a rejection of the original offer and
20 the making of a counter-offer . . . . A counter-offer containing a condition different from that in
21 the original offer is a new proposal and, if not accepted by the original offeror, amounts to
22 nothing.”); Cal. Civ. Code § 1585 (“An acceptance must be absolute and unqualified …. A
23 qualified acceptance is a new proposal.”); see also Telecom Asset Mgmt., LLC v. Fiberlight,
24 LLC, 203 F.Supp.3d 1013, 1016-17 (N.D. Cal. 2016) (a redline extinguishes the offer to which it
25 responds and becomes a new legally operative offer); Key Brands, at *13 (C.D. Cal. Sept. 3,
26 2019) (“[T]he Court concludes that a contract between Plaintiff and Defendants was never formed
27 because the parties did not mutually assent to its terms. Without a contract, Plaintiff’s claim for
28 breach of implied covenant of good faith and fair dealing also fails.”).
12
1 In Panagotacos, at issue was whether a contract existed between the plaintiffs and the
2 prospective sellers of a property in Greece. 60 Cal. App. 4th at 853-55. On August 26, 1993, the
3 prospective sellers had written to plaintiffs with a proposal to sell a property subject to several
4 conditions, including that payment be made in Germany and that payment delivery occur no later
5 than April 15, 1994. On January 18, 1994, the plaintiffs responded by sending the sellers a signed
6 copy of the August 26 letter but also included a letter stating that payment needed to be made in
7 Greece. The parties continued to correspond, but did not come to an agreement until it was too
8 late for the bank to reconvey the deed of trust in time for the loan to be completed. The trial court
9 granted summary judgment for the defendant, finding no enforceable contract had been made
10 because neither party had ever accepted the other party’s offer. The Court of Appeal affirmed,
11 reasoning that the plaintiffs’ response “added an additional term . . . proposing that payment for
12 the property occur in Greece,” which “constituted a counteroffer,” and the sellers never accepted
13 the plaintiffs’ counteroffer. See id. at 855-56. Accordingly, the court concluded that “there was
14 not a binding contract between the parties.” Id. at 856.

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15 Here, under Panagotacos, Ajax, Telecom Asset Management, and Civil Code section
16 1585, Plaintiffs cannot prove that what they allege is the “final agreement” is an enforceable
17 contract. Plaintiffs’ FAC – which sets the boundaries of the issues to be resolved at summary
18 judgment (Conroy, 45 Cal.4th at 1250 & Hutton, 213 Cal. App. 4th at 493) – alleges the
19 untenable theory that Paramount’s October 1985 Counteroffer, which Plaintiffs admit proposed
20 changes to the December 1984 Offer (UF 15-16, 22, 24, 27, 29, 30), accepted some of the terms
21 of the December 1984 Offer, and that the parties’ final agreement includes those terms, but not
22 any terms of the October 1985 Counteroffer, all of which Plaintiffs allege Henry Winkler/John
23 Rich Productions did not accept. (UF 36, 18, 19, 22, 24, 26.) 5 This is simply not how the law
24 works.
25 Under California law, Paramount’s October 1985 Counteroffer terminated the December
26
5
A defendant moving for summary judgment may rely on the allegations contained in the
27 plaintiff’s complaint, which constitute judicial admissions. Castillo, 146 Cal. App. 4th at 1324.
A plaintiff “may not contradict the allegations of a complaint in response to a summary judgment
28 motion.” Id. at 1326. As such a plaintiff’s allegations are “conclusive concessions of the truth of
a matter and have the effect of removing it from the issues.” Id. at 1324.
13
1 1984 Offer because it did not expressly accept all proposed terms in the December 1984 Offer
2 and instead responded with proposed new terms. (UF 14-17, 22, 24, 26, 27, 29, 30.) Indeed,
3 Plaintiffs are adamant that Henry Winkler/John Rich Productions never accepted any of the terms
4 of the October 1985 Counteroffer. (UF 18-19, 22, 24, 26.)
5 Accordingly, what Plaintiffs claim is a binding, enforceable agreement cannot, as a matter
6 of law, be a valid contract because there was never offer and acceptance.
7 2. Plaintiffs Expressly Allege There Was “No Meeting Of The Minds” On
8 All Terms, Including Material Terms
9 “[T]he failure to reach a meeting of the minds on all material points prevents the
10 formation of a contract even though the parties have orally agreed upon some of the terms, or
11 have taken some action related to the contract.” Bustamante, 141 Cal. App. 4th at 215
12 (emphasis in original). A “material term” is any term required to render a contract “sufficiently
13 definite (and this is a question of law) for the court to ascertain the parties’ obligations and to
14 determine whether those obligations have been performed or breached.” Id. at 209. In other
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15 words, a material term “provide[s] a basis for determining the existence of a breach and for giving
16 an appropriate remedy.” Id. If the term at issue is required for the court to “determine the scope
17 of the duty . . . [and] to provide a rational basis for the assessment of damages,” then it is a
18 material term. Id. There is no meeting of the minds unless the parties “agree upon the same thing
19 in the same sense.” Cal. Civ. Code § 1580; Weddington Prods., Inc. v. Flick, 60 Cal. App. 4th
20 793, 811 (1998).
21 Courts routinely hold that compensation is a material term, and have granted summary
22 judgment where there was no meeting of the minds as to compensation, even where the parties
23 behaved as if they reached an agreement. See, e.g., Bustamante, 141 Cal. App. 4th at 215
24 (affirming summary judgment on breach of contract claim where evidence “establish[ed] that
25 material terms remained uncertain,” including “the form and amount of compensation [plaintiff]
26 would receive”); Telecom Asset Mgmt., 203 F. Supp. 3d at 1020 (applying California law and
27 holding that the “parties failed to achieve a meeting of the minds on all material points, as
28 evidenced by the back-and-forth on the issue of the appropriate [agent] commission percentage
14
1 payment” even though the plaintiff performed work for over a year before negotiations eventually
2 broke down); SVGRP LLC v. Sowell Fin. Servs., LLC, 2019 WL 652890, at *3, 8, 12 (N.D. Cal.
3 Feb. 15, 2019) (granting defendant’s motion for summary judgment as to breach of contract claim
4 where the parties “continued to negotiate compensation terms even after the [alleged contract]
5 was signed” and even though the parties operated as if there were a binding agreement and
6 defendant “announced, both publicly and within the company, that [it] had entered into an
7 agreement with [plaintiff]” (emphasis added)). 6
8 Under Weddington, Bustamante, Telecom Asset Management, and SVGRP, Plaintiffs’ own
9 allegations and discovery responses make clear that there was no meeting of the minds on all
10 material terms exchanged in the December 1984 Offer and October 1985 Counteroffer, including
11 two terms directly related to compensation. (UF 22, 14, 15, 18, 19, 24-31.) Indeed, Plaintiffs
12 themselves expressly allege in their FAC that “there was no meeting of the minds between the
13 parties on certain terms.” (UF 22.) No fewer than five of the terms Paramount added or
14 proposed to change by the October 1985 Counteroffer were material to Paramount. (UF 27; see
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15 UF 24-31.)
16 Even Plaintiffs agree that Paramount’s proposal that “third party” be removed from the
17 calculation of what would be owed under the agreement is material. (UF 28-30.) 7 This contested
18
6
Furthermore, to be enforceable, “a promise must be definite enough that a court can determine
19 the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a
rational basis for the assessment of damages.” Bustamante, 141 Cal. App. 4th at 209. If an
20 alleged agreement does not provide a basis to either determine what obligations the parties agreed
to or assess damages, there is no contract. See id.; Weddington, 60 Cal. App. 4th at 811; see also
21 SVGRP, 2019 WL 652890, at *7 (finding alleged agreement too indefinite to be enforced where it
provided “no basis for determining what compensation terms the parties agreed to, if at all”).
22
7
Plaintiffs argue that Paramount’s proposed removal of the words “third party” from the phrase
23 “actual direct out of pocket third party costs of distribution” from Paragraphs 13 and 19 of the
Proposed Agreement relates “only to the damages phase” of this dispute. (UF 29; see also UF
24 28.) As an initial matter, if it relates to damages, it is a material term. Moreover, as a matter of
basic contract law, the issue clearly goes to whether there was offer and acceptance sufficient to
25 give rise to an enforceable contract in the first place. Plaintiffs insist that Henry Winkler/John
Rich Productions did not accept Paramount’s proposed removal of the words “third party” and
26 that there was no meeting of the minds as to that change. (UF 24, 22, 19.) Plaintiffs also
acknowledge that the proposed removal of the words “third party” in Sections 13 and 19 of the
27 Proposed Agreement was “significan[t].” (UF 28; see also UF 29-30.) Thus, the Court can and
should determine on summary judgment of the liability phase that there was no meeting of the
28 minds on this material term and therefore what Plaintiffs allege is the “final agreement” is not an
enforceable agreement.
15
1 term is vital to the assessment of damages and is, therefore, indisputably material. See
2 Bustamante, 141 Cal. App. 4th at 215. While Plaintiffs claim Henry Winkler/John Rich
3 Productions never agreed to Paramount’s removal of the “third party” limitation proposed in the
4 1985 Counteroffer (or any other change), Paramount’s payments were consistent with the October
5 1985 Counteroffer such that there was no “third party” limitation on the distribution costs that
6 were deducted from the compensation calculation. (UF 19, 24, 32-35.) Additionally, counsel for
7 Henry Winkler agreed that the term length – which Paramount proposed to add to the Proposed
8 Agreement in the October 1985 Counteroffer – is a material term. (UF 31; see UF 15, 26-27.)
9 As a result, it is clear that what Plaintiffs allege is the “final agreement of the parties” in
10 the FAC – which sets the boundaries of the issues to be resolved at summary judgment (Conroy,
11 45 Cal. 4th at 1250) – is not a valid contract at all and, therefore, is not enforceable.
12 C. Plaintiffs’ Implied Covenant Claim Fails As A Matter Of Law Where, As

13 Here, Plaintiffs Fail To Allege A Valid Contract

14 “The prerequisite for any action for breach of the implied covenant of good faith and fair
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15 dealing is the existence of a contractual relationship between the parties, since the covenant is an
16 implied term in the contract.” Green Valley, 241 Cal. App. 4th at 433.
17 Here, under Green Valley, Plaintiffs’ claim for breach of the implied covenant of good
18 faith and fair dealing fails because the alleged “final agreement” that Plaintiffs claim to have
19 rights under as third-party beneficiaries is not an enforceable contract. Paramount’s October
20 1985 Counteroffer was not an unqualified acceptance of the terms of the December 1984 Offer,
21 and Plaintiffs insist that Henry Winkler/John Rich Productions never accepted the terms proposed
22 in the October 1985 Counteroffer. (UF 18-19, 22, 24, 26.) Moreover, Plaintiffs expressly allege
23 that Paramount and Henry Winker/John Rich Productions did not reach a meeting of the minds on
24 all material terms of what Plaintiffs allege was the “final agreement”. (UF 22.)
25 The combination of offers and counteroffers Plaintiffs allege comprise the “final
26 agreement” between Paramount and Henry Winkler/John Rich Production fails the threshold tests
27 of (1) offer and acceptance, and (2) mutual consent on all material terms needed to allege an
28 enforceable agreement. Because what Plaintiffs, masters of their complaint, allege is the “final
16
1 agreement of the parties” is not a valid contract, there can be no breach of any term, express or
2 implied, and their implied covenant claim fails as a matter of law.
3 IV. IN THE ALTERNATIVE, THE COURT SHOULD GRANT SUMMARY
4 ADJUDICATION AS TO PLAINTIFFS’ IMPLIED COVENANT CLAIM
5 A. Legal Standard For Summary Adjudication
6 A defendant is entitled to summary adjudication where there are no disputes of
7 material fact concerning “one or more elements” of a claim. Cal. Civ. Proc. Code § 437c(p)(2);
8 see also Hughes Aircraft Co. v. Superior Court, 44 Cal. App. 4th 1790, 1794 (1996). Summary
9 adjudication is proper where one or more causes of action in a complaint have no merit, e.g.,
10 where the plaintiff cannot establish an element of the cause of action. Cal. Code Civ. Proc.
11 §§ 437c(f)(1), 437c(o).
12 Summary adjudication motions under section 437c(f)(1) may be directed at distinct

13 wrongful acts pleaded within a single cause of action. See Lilienthal & Fowler v. Superior Court,
14 12 Cal. App. 4th 1848, 1854-55 (1993) (under section 437c(f)(1), a party may “challenge[ ] a
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15 separate and distinct wrongful act even though combined with other wrongful acts alleged in the
16 same cause of action”). A court may also grant summary adjudication where “there is no merit to
17 a claim for damages.” CCP § 437c(f)(1).
18 Plaintiffs’ FAC, and the implied covenant claim set forth therein, “set[s] the boundaries of
19 the issues to be resolved at summary judgment” (Conroy, 45 Cal. 4th at 1250), and CBS need not
20 “refute liability on some theoretical possibility not included in the pleadings.” Id. at 1254;
21 Hutton, 213 Cal. App. 4th at 493. Early in this case, Plaintiffs acknowledged that they cannot
22 rely on a superfluous implied covenant claim that merely repackages their breach of contract
23 claim. (UF 48, 54, 65.) Plaintiffs have now asserted, outside the pleadings, that their implied
24 covenant cause of action is really based on (i) an alleged misrepresentation CBS made in October
25 2016 that Paradigm had stated that it was the successor to Major Talent Agency, and (ii) CBS’s
26 investigation – “prior to Weston even engaging counsel in November 2016” – into Plaintiffs’
27 claimed entitlement to an agency commission. (UF 49, 55, 66 (emphasis in original).) The Court
28 has instructed the parties that CBS would only be “fighting [what] is in the documents filed, the
17
1 Complaint,” but Plaintiffs failed to heed this warning and thereafter chose not to add this unpled
2 theory in the FAC. (UF 50-53, 56-57, 67-68.) Plaintiffs’ contentions regarding CBS’s alleged
3 October 2016 statement and investigation appear nowhere in Plaintiffs’ FAC.
4 First, in light of Conroy and Hutton, as well as the principle that Plaintiffs’ complaint
5 frames the outer measure of materiality in a summary judgment proceeding, Plaintiffs’ unpled
6 theories about a misrepresentation and investigation should be rejected as a matter of law.
7 Plaintiffs are the master of their own pleading, and they chose not to plead them. Summary
8 adjudication is proper on this ground alone.
9 Second, even assuming arguendo that it was appropriate to consider Plaintiffs’ unpled
10 claims (it is not, as the California Supreme Court explained in Conroy), Plaintiffs’ implied
11 covenant claim would still fail because (1) the October 2016 statement was made to non-parties
12 Weston and Major Clients Agency, not to either Plaintiff, and (2) Plaintiffs immediately
13 disbelieved and never relied on the October 2016 statement or the results of CBS’s investigation
14 and, therefore, cannot show resulting damages which, as set forth below, they are required to do.
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15 B. CBS’s Alleged Conduct Was Not Directed At Either Plaintiff, But At Non-
16 Parties Weston and Major Clients Agency
17 To prove breach of the implied covenant of good faith and fair dealing, the plaintiff must
18 show, among other elements, that defendants engaged in conduct which frustrated the plaintiff’s
19 rights to the benefits of the parties’ agreement. Rosenfeld v. JPMorgan Chase Bank, N.A., 732
20 F.Supp.2d 952, 968 (N.D. Cal. 2010); Ojjeh v. Brown, 43 Cal. App. 5th 1027, 1037 (2019);
21 Racine & Laramie Ltd., 11 Cal. App. 4th at 1031-32; Judicial Council of California, Civil Jury
22 Instructions (“CACI”) § 325. Here, Plaintiffs’ implied covenant claim fails under Ojjeh, Racine
23 & Laramie, and Rosenfeld because CBS’s alleged October 2016 statement was not directed at
24 either Plaintiff. (UF 58-64.)
25 1. The October 2016 Statement Was Made At Least 9 Month Before
26 Weston Could Have Been Speaking For Hanzer Holdings
27 When the October 2016 statement was allegedly made to non-party Richard Weston,
28 Weston was purporting to act only on behalf of himself and non-party Major Clients Agency.
18
1 (UF 60-61.) The statement was not made to Plaintiff Hanzer Holdings, and there is not a shred of
2 evidence that Weston was acting as an agent of Hanzer Holdings at that time. Id. Indeed, it was
3 not until nine months later that Weston and MCA entered into the July 2017 “Agreement in
4 Anticipation of Litigation” (“2017 Litigation Agreement”) with Hanzer Holdings, which
5 purported to split the “Agency Commission” 60% “owned” by Hanzer and 40% by
6 Weston/MCA. (UF 61.) Weston had no contractual right to any Agency Commission prior to
7 the effective date of the 2017 Litigation Agreement. (UF 62.) Accordingly, CBS’s alleged
8 statement to Weston and MCA in October 2016 could not possibly have frustrated Plaintiff
9 Hanzer Holdings’ purported rights to any benefits under the Proposed Agreement, since Weston
10 was not representing Hanzer Holdings at the time. (UF 60-62.)
11 2. The October 2016 Statement Was Made Two Years Before Arlita
12 Purportedly Obtained A Contractual Right To An Agency

13 Commission
14 Plaintiff Arlita received rights for the first time to a MacGyver Agency Commission in
VENABLE LLP
310.229.9900
15 November 2018, when Weston and MCA purported to assign their rights under the 2017
16 Litigation Agreement to Arlita (the “2018 Litigation Agreement”). (UF 63.) Accordingly, CBS’s
17 statement to Weston and MCA in October 2016 could not possibly have frustrated Plaintiff
18 Arlita’s purported rights to any benefits under the Proposed Agreement, since Arlita did not even
19 have any such alleged rights until nearly two years after the alleged October 2016 statement. (UF
20 60, 62, 63.) Id.
21 Indeed, Weston did not mention to CBS Plaintiff Arlita’s name or its claim to an agency
22 commission on the 2016 Series any time prior to Plaintiffs filing this lawsuit. (UF 64.) There is
23 also no evidence that Paramount, CBS’s predecessor, was ever told that Arlita had any connection
24 to MacGyver.
25 C. Plaintiffs Cannot Show Resulting Damages Due To The Alleged October 2016
26 Statement Or CBS’s Investigation
27 Resulting damages is an essential element of a cause of action for breach of the implied
28 covenant. Wolkowitz, 112 Cal. App. 4th at 162. Accordingly, to establish a breach of the implied
19
1 covenant of good faith and fair dealing, a plaintiff must prove it was harmed by the defendant’s
2 conduct. Amerigraphics, Inc. v. Mercury Cas. Co., 182 Cal. App. 4th 1538, 1558 (2010);
3 Rosenfeld, 732 F.Supp.2d at 968 (citing Judicial Council of California Civil Jury Instruction 325).
4 Here, Plaintiffs have no evidence that they sustained any damages as a result of CBS’s
5 alleged October 2016 misrepresentation or CBS’s investigation. As to CBS’s alleged October
6 2016 representation regarding Paradigm’s (claimed) rights, Plaintiffs never believed that CBS’s
7 statement was correct: almost immediately after CBS allegedly made the statement, Weston wrote
8 to dispute it, and his attorney subsequently sent a demand letter again insisting that CBS was
9 wrong. (UF 69-71.) Accordingly, Plaintiffs could not possibly have been damaged by an alleged
10 misrepresentation that was immediately disbelieved, and on which they never purportedly relied.
11 As to CBS’s investigation, Plaintiffs similarly were not harmed because they concede they
12 did not believe the results of CBS’s investigation, as evidenced by this lawsuit claiming that CBS
13 has incorrectly denied them an agency commission on the 2016 MacGyver. (See generally
14 Complaint and FAC.) Here again, to the extent Plaintiffs’ implied covenant claim is based on
VENABLE LLP
310.229.9900
15 CBS’s alleged failure to investigate Plaintiffs’ claim to the Plaintiffs’ satisfaction, Plaintiffs have
16 no evidence of any compensable damages relating thereto.
17 V. CONCLUSION
18 For the foregoing reasons, CBS respectfully requests that its motion for summary
19 judgment be granted and Plaintiffs’ FAC be dismissed with prejudice, in its entirety. In the
20 alternative, CBS requests that its motion for summary adjudication be granted, and that Plaintiffs’
21 bare bones breach of implied covenant of good faith and fair dealing be dismissed with prejudice.
22 Dated: December 2, 2021 VENABLE LLP

23 By:
24
Lee S. Brenner
25 Sarah L. Cronin
Ken D. Kronstadt
26
Attorneys for Defendant CBS Studios Inc.
27
28
20
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA )
) ss.
3 COUNTY OF LOS ANGELES )
4 I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action. My business address is 2049 Century Park East, Suite 2300,
5 Los Angeles, CA 90067.
On December 2, 2021, I served a copy  / original  of the foregoing document(s)
6 described as DEFENDANT CBS STUDIOS INC.’S NOTICE OF MOTION AND
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION;
7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the
interested parties in this action addressed as follows:
8
9
Ronald J. Nessim Attorneys for Plaintiffs
10 Julia B. Cherlow Hanzer Holdings and Arlita, Inc.
Darren L. Patrick
11 BIRD, MARELLA, BOXER, WOLPERT, NESSIM,
DROOKS, LINCENBERG & RHOW, P.C.
12 1875 Century Park East, 23rd Floor
Los Angeles, CA 90067-2561

13 Telephone: (310) 201-2100 ● Fax: (310) 201-2110
Email: rnessim@birdmarella.com
VENABLE LLP
14 Email: jcherlow@birdmarella.com
310.229.9900
Email: dpatrick@birdmarella.com
15  By placing true copies thereof enclosed in a sealed envelope(s) addressed as stated above.
16  BY PERSONAL SERVICE (CCP §1011): I caused to be delivered such
envelope(s) by hand to the addressee(s) as stated above.
17
 BY ELECTRONIC SERVICE (CCP § 1010.6; CRC Rule 2.251(g); Judicial
18 Council Emergency Rule 12 Re COVID-19): I transmitted the above-stated
document(s) and a copy of this declaration from my computer (electronic
19 notification address mjdeveney@venable.com) located Venable LLP, 2049
Century Park East, Suite 2300, Los Angeles, CA 90067 to the interested parties in
20 this action whose names and e-mail addresses are listed above. I did not receive,
within a reasonable time after the transmission, any electronic message or other
21 indication that the transmission was unsuccessful. Service by e-mail or electronic
transmission was based on a court order or an agreement of the parties to accept
22 service.
23 I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
24
Executed on December 2, 2021, at Los Angeles, California.
25
26 ________________________________
Michele J. Deveney
27
28
1
PROOF OF SERVICE
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Electronically FILED by Superior Court of California, County of Los Angeles on 12/02/2021 02:08 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk

7 Attorneys for Defendant CBS Studios Inc.

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF LOS ANGELES – CENTRAL DISTRICT

11 HANZER HOLDINGS, a California Limited Case No. 18STCV09231

14 v. NOTICE OF MOTION AND MOTION

FOR SUMMARY JUDGMENT OR, IN

6 Plaintiffs Hanzer Holdings and Arlita, Inc. (collectively, “Plaintiffs”).

7 Good Cause Exists To Grant Summary Judgment

12 allege is the “final agreement” on which their claims are based.

14 Winkler/John Rich Productions exchanged a series of offers and counteroffers, including a

19 App. 4th 851, 855-56 (1998).

28 141 Cal. App. 4th 199, 215 (2006).

7 covenant is an implied term in the contract.”).

8 In The Alternative, Good Cause Also Exists To Grant Summary Adjudication

17 alleged failure to investigate Plaintiffs’ interests in an agency commission prior to November

7 This Motion is based on this Notice of Motion, the concurrently-filed Memorandum of

12 such other evidence as may be presented at the hearing on this Motion.

3 II. STATEMENT OF FACTS ON SUMMARY JUDGMENT ...............................................4

4 A. Paramount, Henry Winkler, And John Rich Begin Negotiating The

8 C. Plaintiffs Contend There Was “No Meeting Of The Minds” On

14 Amended Allegations In The FAC As To What They Allege Is The

Agreement They Claim Was Breached....................................................................8

19 A. Legal Standards: As The California Supreme Court Has Instructed,

21 B. Plaintiffs Cannot Prove That What They Allege Is The “Final

24 2. Plaintiffs Expressly Allege There Was “No Meeting Of The

27 IV. IN THE ALTERNATIVE, THE COURT SHOULD GRANT SUMMARY

2 B. CBS’s Alleged Conduct Was Not Directed At Either Plaintiff, But

4 Aguilar v. Atl. Richfield Co.,

9 Brown v. Cal. State Lottery Comm’n,

13 48 Cal. App. 5th 492 (2020) ..................................................................................................... 11

146 Cal. App. 4th 1317 (2007) ........................................................................................... 11, 13

19 Granadino v. Wells Fargo Bank, N.A.,

24 Hutton v. Fid. Nat’l Title Co.,

11 Rosenfeld v. JPMorgan Chase Bank, N.A.,

13 2019 WL 652890 (N.D. Cal. Feb. 15, 2019) ............................................................................ 15

Telecom Asset Mgmt., LLC v. Fiberlight, LLC,

15 203 F.Supp.3d 1013 (N.D. Cal. 2016) ................................................................................ 12, 14

16 Weddington Prods., Inc. v. Flick,

22 Cal. Civ. Code § 1580 ..................................................................................................................... 14

23 Cal. Civ. Code § 1585 ............................................................................................................... 12, 13

16 establish an enforceable contract as a matter of law.

17 Separately, Plaintiffs expressly allege that:

18 there was no meeting of the minds between the parties [i.e.,

28 App. 4th 199, 215 (2006) (emphasis in original).

2 discovery requests, and thousands of pages of documents exchanged, the combination of

7 conclusion for this Court to decide.

13 investigate Plaintiffs’ interests in an agency commission prior to November 2016. As a

6 II. STATEMENT OF FACTS ON SUMMARY JUDGMENT

8 An Agreement To Make Television Shows In 1983

14 that television show. (UF 2.)

15 B. An “Early Draft” Of The Proposed Agreement Was Executed “In Error,”

16 Involved The Wrong Contracting Party (Which Was Revealed To Have

17 Never Existed) And, In Fact, Negotiations Continued Thereafter For Years

2 draft for signature, instead.” (UF 5.)

3 John Rich’s attorneys then wrote to Paramount on September 7, 1984 that:

4 [T]he execution of the earlier memorandum [was] in error. . . .