Marsh V Gaumont MSJ Ruling

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 56
BC691790 September 8, 2020

KATIE O CONNELL MARSH VS GAUMONT TELEVISION 1:42 PM
USA LLC
Judge: Honorable Holly J. Fujie CSR: None

Judicial Assistant: O. Chavez ERM: None
Courtroom Assistant: None Deputy Sheriff: None
APPEARANCES:
For Plaintiff(s): No Appearances
For Defendant(s): No Appearances
NATURE OF PROCEEDINGS: Ruling on Submitted Matter
The Court having taken the matter under submission on September 4, 2020 makes its ruling.
MOVING PARTY: Plaintiff and Cross-Defendant Katie O’Connell Marsh (“Marsh”)
RESPONDING PARTIES: Defendant and Cross-Complainant Gaumont Television USA, LLC

(“Gaumont”) and Gaumont SA (“Cross-Complainants”)
The Court has considered the moving, opposition, and reply papers1, as well as this Court’s prior
orders on the motions and demurrers heard in this case since the filing of this motion.
BACKGROUND
Marsh filed the operative Second Amended Complaint (“SAC”) against Defendants alleging
causes of action for: (1) declaratory relief; (2) breach of contract; (3) breach of the implied
covenant of good faith and fair dealing; (4) fraudulent inducement; (5) fraudulent concealment;
(6) unfair competition in violation of California Business and Professions Code, Section 17200 et
seq.; (7) intentional interference with contract; (8) inducing breach of contract; and (9)
accounting. Plaintiff’s SAC arises from her tenure as a television executive with Gaumont
Television, LLC and the alleged failure of Defendants to pay Plaintiff her share of contracted
Modified Adjusted Gross Receipts (“MAGR”).
On December 2, 2019, Gaumont filed the operative Second Amended Cross-Complaint

(“SAXC”) against Marsh arising from the alleged employment and termination of Marsh,
alleging causes of action for: (1) breach of contract; (2) conversion; (3) possession of personal
property; (4) declaratory relief pursuant to California Code of Civil Procedure, Section 1060; (5)
fraudulent inducement; and (6) fraudulent concealment.
Minute Order Page 1 of 13
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1 This ruling concerns the motion for summary judgment or, in the alternative summary
adjudication filed by Marsh with the reservation number of 861911459031. The Court sets forth
the reservation number in connection with the motion due to the numerous motions for summary
judgment or summary adjudication filed by the respective parties.
On February 24, 2020, the Court ruled on Marsh’s demurrer and motion to strike with respect to
the SAXC. The Court sustained without leave to amend the demurrer of Marsh to the second,
third, fifth, and sixth causes of action in the SAXC due to those causes of action being barred by
the statute of limitations and Defendant’s failure to meet its burden in showing a reasonable
probability that such causes of action could be asserted to state sufficient facts. The Court also
granted Marsh’s motion to strike as to the SAXC without leave to amend.
Pertinent Allegations of the SAXC
The SAXC alleges, in part, that: (1) the Termination Agreement required Plaintiff to not
disclose, divulge and/or use certain Materials, Trade Secrets and/or Confidential Information,
and required that she return all such Materials to Defendant (SAXC at ¶ 13); (2) paragraph 9 of
the Termination Agreement required that Plaintiff was to return on or before the End Date all
data, files, lists, information, memoranda, documents and all other property—including phones,
computer equipment, keys, fax machines, credit cards, and identification card (Id.); (3) the End
Date was October 14, 2015 which was Plaintiff’s last day working at Gaumont (Id. at ¶ 15); (4)
instead of returning the Materials, Trade Secrets, and Confidential information, Plaintiff
wrongfully took such Materials and wrongfully used, disclosed, or divulged the Materials to
third parties in competition with Gaumont (Id.); (5) Gaumont first discovered on September 28,
2018, that Plaintiff had acted in violation of the Termination Agreement, Gaumont’s policies,
and its property rights, when some of the Materials were produced by Plaintiff in response to
document requests propounded by Gaumont in this lawsuit (Id. at ¶ 16); (6) Gaumont could not
have reasonably discovered Plaintiff’s violations and breaches before this time because prior to
that date, Gaumont did not know that Plaintiff had taken the Materials upon her departure from
Gaumont on October 14, 2015 (Id.); (7) Gaumont surmises that Plaintiff took the Materials on or
before October 2, 2015, which is when she purchased Gaumont’s computer laptop (the
“Laptop”) that she had been using as CEO, and the Laptop contains most if not all of the
Materials that were taken (Id.); and (8) on the same day she purchased the Laptop, Plaintiff sent
her representatives an e-mail asking for all Gaumont property—which would have included the
Materials—to be returned to Gaumont (Id.).

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The SAXC further alleges that: (1) following that request, and Plaintiff’s physical departure from
Gaumont, Plaintiff executed the Termination Agreement on or about October 19, 2015, in which
she agreed to return all Gaumont property (Id.); (2) because she did not return any of the
Materials following her execution of the Termination Agreement, Gaumont was and is entitled to
presume and expect that Plaintiff would abide by her contractual obligations (Id.); (3) Gaumont
had the reasonable belief that any Gaumont documents that may have been in Plaintiff’s
possession while she was still employed at Gaumont had been destroyed following her departure,
such that she did not have any Gaumont property once she had executed the Termination
Agreement including the Materials that were on her Laptop (Id.); and (4) because Plaintiff
retained possession of the Laptop, it was impossible for Gaumont to know what was on it. (Id.)
With respect to the breach of contract cause of action in the SAXC, Gaumont alleges that: (1)
Marsh breached the Termination Agreement by wrongfully taking the materials, wrongfully
disclosing, divulging and/or using Gaumont’s Materials to its detriment (SAXC at ¶ 25); (2)
Marsh has refused to provide Gaumont with a list of the materials she wrongfully took (Id.); (3)
Marsh has refused to disclose to Gaumont how and when she has wrongfully disclosed, divulged
and/or used such Materials (Id.); (4) Marsh has failed to return all Materials to Gaumont (Id.);
and (5) Marsh breached the Termination Agreement by wrongfully discussing and/or disclosing
the terms of the Termination Agreement and/or disparaging Gaumont and/or its employees or
officers in the context of their Gaumont business and professional activities. (Id.)
The Instant Motion
On February 18, 2020, Marsh filed a motion for summary judgment or, in the alternative,
summary adjudication of the causes of action in the SAXC. Marsh contends that there is no
triable issue of fact and the claims in the SAXC fail as a matter of law because they are time-
barred or otherwise fail to state a cause of action. Marsh asserts that: (1) the second, third, fifth,
and sixth causes of action in the SAXC are barred by the statute of limitations; (2) the first,
second, fifth, and sixth causes of action fail because Gaumont cannot establish that it was
damaged by Marsh’s alleged actions; and (3) the fourth cause of action in the SAXC for
declaratory relief fails. If summary judgment is not granted, Marsh moves for summary
adjudication on the following issues: (1) the second, third, fifth, and sixth causes of action in the
SAXC are all barred by the applicable statute of limitations to such claims; (2) the first, second,
fifth, and sixth causes of action do not establish the required element of damages; and (3) the
fourth cause of action for declaratory relief has no merit because it is improperly redundant of
the issues in the SAC, Gaumont’s affirmative defenses thereto, Gaumont’s first cause of action
for breach of contract, and it improperly seeks to redress past wrongs.
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Cross-Complainants oppose Marsh’s motion on the grounds that: (1) Gaumont has been
damaged by Marsh’s breach of contract; and (2) the declaratory relief claim seeks remedies not
covered by the breach of contract claim.
Cross-Complainants’ opposition papers indicate that only Gaumont is objecting to Marsh’s

evidence and request for judicial notice, and that only Gaumont is presenting facts in opposition
to Marsh’s separate statements. The opposition memorandum points of authorities, however,
indicates that it is brought on behalf of both Cross-Complainants. The Court will refer to the
opposition papers as they are titled by the opposing parties for purposes of accuracy.
The Scope of the Instant Motion
“The pleadings play a key role in the summary judgment motion.” (Hutton v. Fidelity National
Title Co. (2013) 213 Cal.App.4th 486, 493.) “The function of the pleadings in a motion for
summary judgment is to delimit the scope of the issues and to frame the outer measure of
materiality in a summary judgment proceeding.” (Id.) “The materiality of a disputed fact is
measured by the pleadings . . . which set the boundaries of the issues to be resolved at summary
judgment.” (Id.) “[T]he burden of a [cross-defendant] moving for summary judgment only
requires that he or she negate plaintiff’s theories of liability as alleged in the complaint.” (Id.)
“The procedure for resolving a summary judgment motion presupposes that the pleadings are
adequate to put in issue a cause of action.” (FPI Development, Inc. v. Nakashima (1991) 231
Cal.App.3d 367, 382.) “[A] pleading may be defective in failing to allege an element of a cause
of action.” (Id.) “In such a case, the moving party need not address a missing element nor,
obviously, respond to assertions which . . . make out no recognizable legal claim. The summary
judgment proceeding is thereby necessarily transmuted into a test of the pleadings and the
summary judgment motion into a motion for judgment on the pleadings.” (Id.)
Due to the Court’s ruling on the demurrer to the SAXC and sustaining it without leave to amend,
the Court finds that Marsh’s motion for summary judgment or, in the alternative, summary
adjudication is MOOT as to the second, third, fifth, and sixth causes of action in the SAXC as
the Court found such causes of action insufficient to state a claim for relief via Marsh’s demurrer
to the SAXC. Because the Court has already found these causes of action in the SAXC to be
defective, Marsh need not had addressed them in her motion for summary judgment under FPI.2
Thus, the Court will only address Marsh’s arguments with respect to the first and fourth causes
of action in the SAXC and this Court’s ruling will only analyze the first and fourth causes of
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action in connection with Marsh’s motion for summary judgment or, in the alternative, summary
adjudication.
Marsh presented new evidence with the supplemental declaration of Daniel A. Saunders, which
was filed with the reply papers. Although this evidence was not presented with Marsh’s moving
papers, the Court has exercised its discretion to consider it.
2. The demurrer as to the SAXC was still pending and had not yet been heard when Marsh filed
the motion for summary judgment or, in the alternative, summary adjudication. Marsh did not,
however, formally withdraw those portions of this motion following this Court’s ruling on the
demurrers.
Separate Statement in Connection with the Opposition
California Rules of Court, Rule 3.1350(f)(2) states that in opposition to the moving party’s
separate statement “the response must unequivocally state whether the fact is disputed or
undisputed. An opposing party who contends that a fact is disputed must state, on the right side
of the page directly opposite the fact in dispute, the nature of the dispute and describe the
evidence that supports the position that the fact is disputed.” California Rules of Court, Rule
3.1350(f)(2) says that “[c]itation to the evidence in support of each material fact must include
reference to the exhibit, title, page, and line numbers.”
There are numerous instances in Gaumont’s separate statement in opposition to Marsh’s motion
where Gaumont indicates that a fact is: (1) undisputed but refers the Court to their evidentiary
objection because such fact is alleged to be irrelevant; (2) undisputed but moot in light of the
Court’s ruling on the demurrer to the SAXC; or (3) disputed but moot in light of the Court’s
ruling on the demurrer to the SAXC. In instances where Gaumont disputes a fact but deems it
irrelevant to the Court’s ruling on the demurrer to the SAXC without citing any evidence, the
Court finds that Gaumont did not comply with the mandate of California Rules of Court, Rule
3.1350(f)(2).
JUDICIAL NOTICE
Marsh’s initial request and supplemental request for judicial notice are GRANTED. Gaumont
objects to Marsh’s request for judicial notice to the extent that Marsh is seeking judicial notice of
the truth of the contents of the documents. “[W]hile courts are free to take judicial notice of the
existence of each document in a court file, including the truth of results
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reached, they may not take judicial notice of the truth of hearsay statements in decisions and
court files.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 882.) “Courts may not take judicial notice of allegations in affidavits [and]
declarations . . . in court records because such matters are reasonably subject to dispute and
therefore require formal proof.” (Id.) Thus, to the extent that Marsh is requesting the Court to
take judicial notice of the truth of the matters asserted therein, the Court SUSTAINS Gaumont’s
objections to Marsh’s request for judicial notice with respect to exhibits 2, 3, 7, and 14.
The Court GRANTS Gaumont’s request for judicial notice.
EVIDENTIARY OBJECTIONS
The Court SUSTAINS Gaumont’s evidentiary objections numbers 1-9 to the evidence submitted
by Marsh in support of her motion for summary judgment or, in the alternative, summary
adjudication.
The Court OVERRULES Marsh’s evidentiary objections numbers 1-5, 7-8, and 10-12 to the
declaration of Tim Stephen (“Stephen”) and SUSTAINS Marsh’s evidentiary objections numbers
6 and 9 thereto.
The Court OVERRULES Marsh’s evidentiary objections numbers 14-21 to the declaration of
Michael Plonsker (“Plonsker”) and SUSTAINS Marsh’s evidentiary objections number 13
thereto.
The Court OVERRULES Marsh’s evidentiary objection number 22 to the declaration of Robert
Gaulin.
DISCUSSION
“The purpose of the law of summary judgment is to provide the courts with a mechanism to cut
through the parties’ pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843.) “Summary judgment is appropriate when all of the papers submitted show there is not
triable issue of material fact and the moving party is entitled to a judgment as a matter of law.”
(Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 492.)

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A cross-defendant “moving for summary judgment has the burden of showing one or more
elements of the cause of action . . . cannot be established, or that there is a complete defense to
that cause of action.” (Sangha v. LaBarbera (2006) 146 Cal.App.4th 79, 84.) In reviewing a
motion for summary judgment or summary adjudication a court examines “the moving party’s
motion, including the evidence offered in support of the motion.” (Dollinger DeAnza Associates
v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144.) “In determining whether the
parties have met their respective burdens, the court must consider all the evidence and all the
inferences reasonably drawn therefrom . . . and must view such evidence . . . and such inferences
. . . in the light most favorable to the opposing party.” (Id.) “There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact
in favor of the party opposing the motion in accordance with the applicable standard of proof.”
(Id.) “[A] party cannot avoid summary judgment by asserting facts based on mere speculation
and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (Id.
at 1144-1145.) “Summary adjudication motions are procedurally identical to summary judgment
motions.” (Serri v. Santa Clara University (2014) 226 Cal.App.830, 859.) Summary judgment is
a drastic remedy. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102
Cal.App.4th 308, 316.)
Issue No.1: First Cause of Action in the SAXC
Marsh contends that Gaumont cannot establish that it was damaged by her alleged breach of
contract and that the breach of contract cause of action in the SAXC is based on her “wrongfully
taking the Materials, and, on information and belief, wrongfully disclosing, divulging and/or
using Gaumont’s Material’s to Gaumont’s detriment.” (SAXC at ¶ 25; Motion at 21:16-20.)
“A cause of action for breach of contract requires proof of the following elements: (1) existence
of the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s
breach; and (4) damages to plaintiff as a result of the breach.” (CDF Firefighters v. Maldonado
(2008) 158 Cal.App.4th 1226, 1239.) “Damages which are remote, contingent, or merely
possible cannot serve as a legal basis for recovery.” (California Shoppers, Inc. v. Royal Globe
Ins. Co. (1985) 175 Cal.App.3d 1, 62.) “A wrongful act . . . causing only nominal damages,
speculative harm, or the threat of future harm—not yet realized—does not suffice to create a
cause of action.” (Garver v. Brace (1996) 47 Cal.App.4th 995, 999.) California Labor Code,
Section 2860 states that “[e]verything which an employee acquires by virtue of his employment,
except the compensation which is due to him from his employer, belongs to the employer,
whether acquired lawfully or unlawfully, or during or after the expiration of the term of his
employment.”
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“One proper measure of damages for breach of contract is the amount expended [by the
nonbreaching party] on the faith of the contract.” (Agam v. Gavra (2015) 236 Cal.App.4th 91,
105.) “This measure of damages often is referred to as reliance damages.” (Id.) “It has been held
to apply where . . . one party to [an agreement] fails and refuses to carry out the terms of the
agreement, and thereby deprives the other party of the opportunity to make good [on the
agreement].” (Id.) “Concerning reliance damages . . . the injured party has the right to damages
based on his reliance interest, including expenditures made in preparation for performance or in
performance, less any loss that the party in breach can prove with reasonable certainty the
injured party would have suffered had the contract been performed.” (U.S. Ecology, Inc. v. State
of California (2005) 129 Cal.App.4th 887, 907.) “Lost profits may be recoverable as damages for
breach of contract.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55
Cal.4th 747, 773.)
“In general, [a] person who has been unjustly enriched at the expense of another is required to
make restitution to the other.” (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612,
627.) “In [some] situations, a benefit has been received by the [cross-defendant] but the [cross-
complainant] has not suffered a corresponding loss or, in some cases, any loss, but nevertheless
the enrichment of the [cross-defendant] would be unjust. In such cases, the [cross-defendant]
may be under a duty to give the [cross-complainant] the amount by which he [or she] has been
enriched.” (Id. at 628.) “A [cross-defendant’s] unjust enrichment is typically measured by the
[cross-defendant’s] profits flowing from the misappropriation.” (Ajaxo, Inc. v. E*Trade
Financial Corp. (2010) 187 Cal.App.4th 1295, 1305.) “Where the [cross-complainant’s] loss
does not directly correlate with the misappropriator’s benefit . . . the problem becomes more
complex.” (Id.) “A [cross-defendant’s] unjust enrichment [in that case] might be calculated based
upon cost savings or increased productivity resulting from use of the secret.” (Id.) A non-
breaching party to a contract is entitled to recover as damages its “actual outlay and expense” in
connection with its performance under a contract. (U.S. v. Behan (1884) 110 U.S. 338, 344.)
Marsh’s Evidence
Marsh presents the undisputed material facts that: (1) she and Gaumont entered into an
“Employment Agreement” dated September 10, 2015 (UMF 1); (2) Marsh and Gaumont entered
into an agreement dated September 20, 2015 with respect to the termination of her duties as
Gaumont’s Chief Executive Officer (the “Termination Agreement”) (UMF 5); (3) the
Termination Agreement contains a paragraph entitled “TRADE SECRETS AND
CONFIDENTIAL INFORMATION” which stated in part that Marsh agreed to return “on or
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before the End Date all data, files, list information, memoranda, documents, and all other
property . . . belonging to GIT or containing Trade Secrets of GIT” (UMF 6); (4) the Termination
Agreement indicated that Marsh would not “without express written consent of GIT unless
required by law, disclose or divulge to any other person or entity, or use or modify for use,
directly or indirectly in any way for any person or entity . . . any of GIT’s Confidential
Information” (UMF 6); (5) the End Date of the Termination Agreement was October 14, 2015
(UMF 6); (6) the Termination Agreement contained provision which stated that Marsh would not
discuss or disclose any terms of the Termination Agreement with anyone “other than her spouse,
attorney and/or accountant and/or financial advisor” (UMF 8); (7) she testified at her deposition
in this action that she never has shown any of the documents, including e-mails, on the Laptop to
anyone connected to Platform One Media, LLC (“Platform One”) (UMF 9); (8) she testified at
her deposition that she has never discussed any financial information regarding Gaumont with
anyone connected to Platform One (UMF 10); and (9) Neil Strum, who was deposed in this case
as Platform One’s Person Most Knowledgeable, testified that he had never seen any document
that had financial information relating to Gaumont and that to his knowledge Platform One does
not have any documents that refer to Gaumont. (UMF 11.)
Marsh presents the undisputed facts that: (1) she has not disclosed the terms of the Termination
Agreement to anyone other than her attorneys, her husband, her accountant, and her financial
advisor (UMF 12); (2) Gaumont employee Stephen testified at his deposition in this action that
he does not believe that it is a secret that Gaumont grants MAGR interests in its television series
(UMF 13); (3) in connection with her departure from Gaumont, Marsh asked to be permitted to
keep her Laptop (UMF 20); (4) she and Gaumont agreed that she could purchase her Laptop for
$600.00 (UMF 21); (5) she delivered a $600.00 check to Gaumont as payment for the Laptop on
October 2, 2015, which Gaumont negotiated on October 7, 2015 (UMF 22); (6) she executed the
Termination Agreement on or about October 19, 2015 (UMF 23); (7) Gaumont knew at the time
she executed the Termination Agreement that she was in possession of materials Gaumont now
claims are privileged (UMF 24); and (8) no employee ever wiped her Laptop or asked her to do
so (UMF 32.)
Marsh declares that no one from Gaumont asked her to wipe any information from the Laptop,
asked her to provide the Laptop to Gaumont IT personnel or anyone else so they could remove
any information from it, in connection with the purchase of the Laptop or her departure from
Gaumont. (Marsh Decl. at ¶ 9.)
The Court finds that Marsh has met her burden in showing that there is no triable issue of fact
with respect to damages for her alleged breach of contract. The burden now shifts to Cross-
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Complainants to show a triable issue of material fact.
Cross-Complainants’ Evidence
Declaration of Stephen
Cross-Complainants present the declaration of Stephen, who relevantly declares that: (1) he is
the Executive Vice President of Strategy and Head of Business and Legal Affairs of Gaumont
(Stephen Decl. at ¶ 1); (2) Marsh signed an employment agreement (the “Employment
Agreement” (Stephen Decl. at ¶ 2 and Exhibit 3); (3) during her employment with Gaumont,
Marsh utilized the Laptop that was owned by Gaumont and he understands that she requested
that she be permitted to purchase the Laptop from Gaumont at the end of her employment and
that she claims she did so with a check to Gaumont for $600.00 (Id. at ¶ 4); (4) during her
employment, Marsh oversaw the preparation of an employee handbook (the “Employee
Handbook”) that codified the existing obligations of employees such as herself (Id. at ¶ 5 and
Exhibit D); and (5) the Termination Agreement was entered into between Marsh and Gaumont.
(Id. at ¶ 9 and Exhibit G.)
Stephen further declares that: (1) since Marsh already had possession of the Laptop, returning the
Property could and should have been accomplished by her deleting the Property from the Laptop,
in which case she would have nothing to physically return (Id. at ¶ 10); (2) neither he nor anyone
else at Gaumont was aware that Marsh has not deleted the Property from the Laptop until on or
after September 18, 2018 (Id.); (3) neither he nor anyone else at Gaumont could have discovered
that Marsh had not deleted the Property from the Laptop at the time of the signing of the
Termination Agreement because at the time Marsh had physical possession of the Laptop (Id.);
(4) he has reviewed some of the documents produced by Marsh in this litigation on September
28, 2018 (Id. at ¶ 11); (5) these documents contain the most private and confidential information
that Gaumont possesses such as internal agreements, its employment agreements, business
strategy documents, negotiating postures, evaluations of potential clients, financial statements,
and internal financial projections (Id.); (6) as of today, under terms of the Termination
Agreement, after October 15, 2015, Gaumont has paid Marsh a total of $605,934.55, which
includes severance payments and other compensation (Id. at ¶ 14); (7) at present, because the full
range of documents taken by Marsh has not been made available to Gaumont, the full amount of
lost profits cannot be determined, although once that occurs it is likely to be in the millions of
dollars (Id. at ¶ 15); and (8) the documents attached as Exhibit H to the declaration of Plonsker
also contain confidential, trade secret, and privileged information regarding confidential
agreements with third parties, sales information, sales methods, business plans, strategic and
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long-range plans, customer lists, prospective customer names, and budgets. (Id. at ¶ 13.)
Declaration of Plonsker
Counsel for Cross-Complainants, Plonsker relevantly declares that: (1) upon learning that Marsh
had some documents constituting part of the Property in her possession, he immediately
demanded to her attorneys that all of the Property in her possession be returned to Gaumont (Id.
at ¶ 4); (2) Marsh and her attorneys repeatedly refused to return the Property (Id. at ¶ 4 and
Exhibit F); (3) Mr. Berlinski has admitted on behalf of Marsh that she has up to 350,000
documents of the Property and that such documents have been uploaded onto her attorney’s
document server (Id. at ¶ 5 and Exhibit G); and (4) despite his requests, Marsh and her attorneys
have refused to provide Gaumont access to the Laptop so that they can assess what Property she
wrongfully took, provide Gaumont with a list of the Property she wrongfully took, and have
failed to return all the Property to Gaumont. (Id. at ¶ 7.)
Analysis
The Court finds that Cross-Complainants have meet their burden in showing a triable issue of
material fact with respect to damages, and that the exhibits to the Saunders Declaration do not
affect that conclusion. Cross-Complainants have presented evidence that: (1) Marsh did not
comply with the terms of the Termination Agreement; and (2) Gaumont has been damaged as a
result. The discovery responses referenced in oral argument by Marsh, while not specifying the
exact amount of damages as requested, do not go so far as to admit that no such damages exist so
that Marsh can show that there are no potential damages arising from this cause of action.
Marsh’s citation to Brown is not applicable to this case. (Brown v. Grimes (2011) 192
Cal.App.4th 265.)
The Court DENIES Marsh’s motion for summary judgment with respect to Gaumont’s being
unable to establish it was damaged by her alleged actions. The Court also DENIES
Marsh’s request for summary adjudication as to Issue 1 in her motion as Gaumont has presented
evidence to establish that it was damaged by her alleged actions.
Issue No.2: Fourth Cause of Action in the SAXC
“[S]ummary judgment may be had in a declaratory relief action since [t]he propriety of the
application of declaratory relief lies in the trial court’s function to render such a judgment when
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only legal issues are presented for its determination.” (Las Tunas Beach Geologic Hazard
Abatement Dist. v. Superior Court (1995) 38 Cal.App.4th 1002, 1015.) “[I]n a declaratory relief
action, the defendant’s burden is to establish the plaintiff is not entitled to a declaration in its
favor. It may do this by establishing (1) the sought-after declaration is legally incorrect; (2)
undisputed facts do not support the premise for the sought-after declaration; or (3) the issue is
otherwise not one that is appropriate for declaratory relief.” (Gafcon, Inc. v. Ponsor & Associates
(2002) 98 Cal.App.4th 1388, 1402.) “[D]eclaratory relief operates prospectively, and not merely
for redress of past wrongs.” (Id. at 1403.) “Normally . . . a person is entitled to a determination of
the issues presented by the pleadings.” (International Ass’n of Fire Fighters, Local No. 1319,
AFL-CIO v. City of Palo Alto (1963) 60 Cal.2d 295, 301.) “[S]ection 1061 of the Code of Civil
Procedure expressly provides that the trial court may refuse to grant declaratory relief in any case
where its declaration or determination is not necessary or proper at the time under all the
circumstances.” (Id.) “This is a discretionary power . . . but should not be exercised in a case
where a declaration of rights is clearly called for.” (Id.) “In determining this question in a case
where declaratory relief is sought by cross-complaint, it is important to consider whether the
issues and evidence presented in the main case are substantially the same as would be produced
under the cross-complaint.” (Id.)
Marsh’s Evidence
Marsh presents the undisputed facts that: (1) in its fourth cause of action for declaratory relief in
the SAXC, Cross-Complainants seek a judicial declaration that because of Marsh’s material
breach of the Termination Agreement, Gaumont is excused from further performing any of its
duties pursuant to the Termination Agreement, including the obligation to pay n MAGR bonus to
Marsh and any Green Light Bonus (UMF 73); (2) in its fourth cause of action for declaratory
relief in the SAXC, Cross-Complainants seek a judicial declaration that any payments Marsh
received under the terms of the Termination Agreement must be returned to Gaumont including
the Severance Payment and the Green Light Bonuses (UMF 73); (3) in its thirteenth affirmative
defense in its answer to the SAC, Gaumont alleges that Marsh’s SAC and each cause of action is
barred by her own material breaches of the contracts described in the SAC in this action (UMF
74); and (4) in its fifteenth affirmative defense in its answer to the SAC, Gaumont alleges that its
“alleged actions and/or alleged failures were excused, in whole or in part, by acts and omissions
of Plaintiff and/or third parties.” (UMF 75.)
Analysis
The Court finds that summary adjudication as to the fourth cause of action for declaratory relief
Civil Division

USA LLC

in the SAXC is warranted in this case, in light of this Court’s ruling on August 14, 2020 in
connection with the parties’ Cross-Motions for Summary Judgment. The undisputed material
facts indicate that Gaumont is seeking a declaration that Marsh’s actions in connection with her
handling of the Material excuse Gaumont from “further performing any of its duties pursuant to
the Termination Agreement” and entitled Gaumont to a return of “any payments Marsh received
under the terms of the Termination Agreement.” (SAXC at ¶ 46; UMF 73.)
In its August 14, 2020 ruling, this Court found that: “The obligations of Plaintiff and Gaumont
are clearly independent based on the language of the Termination Agreement. Thus, Gaumont is
still required to pay Plaintiff her MAGR bonus and other agreed-upon compensation pursuant to
the terms of the Termination Agreement. Based on the Court’s reading of the Termination
Agreement, the intention of the parties was not to base Plaintiff’s compensation thereunder on
Plaintiff’s compliance with returning the Computer and the Property of Gaumont.” Under this
ruling, Marsh has met her burden in showing that Cross-Complainants are not entitled to a
declaration in their favor.
Therefore, the Court GRANTS Marsh’s request for summary adjudication as to Issue 5 in her
motion with respect to the claim for declaratory relief in the SAXC.
Marsh’s motion for summary judgment is DENIED, and her motion for summary adjudication is
DENIED in part and GRANTED in part.
Moving party is ordered to give notice of this ruling.
Dated this 8th day of September 2020
HOLLY J. FUJIE
______________
Hon. Holly J. Fujie
Judge of the Superior Court
Certificate of Mailing is attached.

Marsh V Gaumont MSJ Ruling

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

NATURE OF PROCEEDINGS: Ruling on Submitted Matter

MOVING PARTY: Plaintiff and Cross-Defendant Katie O’Connell Marsh (“Marsh”)

RESPONDING PARTIES: Defendant and Cross-Complainant Gaumont Television USA, LLC

On December 2, 2019, Gaumont filed the operative Second Amended Cross-Complaint

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

Pertinent Allegations of the SAXC

Minute Order Page 2 of 13

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

The Instant Motion

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

Cross-Complainants’ opposition papers indicate that only Gaumont is objecting to Marsh’s

The Scope of the Instant Motion

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

Separate Statement in Connection with the Opposition

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

The Court GRANTS Gaumont’s request for judicial notice.

Minute Order Page 6 of 13

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

Issue No.1: First Cause of Action in the SAXC

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

Complainants to show a triable issue of material fact.

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

Issue No.2: Fourth Cause of Action in the SAXC

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

BC691790 September 8, 2020

Judge: Honorable Holly J. Fujie CSR: None

Moving party is ordered to give notice of this ruling.

Dated this 8th day of September 2020

Certificate of Mailing is attached.

Minute Order Page 13 of 13

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