Ablesoft v. Walt Disney Company CA2/2

Filed 10/8/21 Ablesoft v. Walt Disney Company CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO ABLESOFT, INC., B304155 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC673736) v. THE WALT DISNEY COMPANY et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dalila C. Lyons, Judge. Reversed and remanded with directions. Hamrick & Evans, A. Raymond Hamrick III, Charles Rainey and Jonathan Dutton for Plaintiff and Appellant. Mitchell Silberberg & Knupp, Lucia E. Coyoca and Christopher A. Elliott for Defendants and Respondents.

Ablesoft, Inc. (Ablesoft) was one of several plaintiffs who sued defendants The Walt Disney Company and Buena Vista Television, LLC, formerly known as Buena Vista Television, Inc. (collectively, Buena Vista),1 for breach of contract and related causes of action. The trial court granted Buena Vista’s motion for summary adjudication against Ablesoft as to all its causes of action on the ground that Ablesoft lacked standing to sue. We reverse.2 BACKGROUND A. Underlying Facts On March 31, 1993, William Nye, James McKenna, Erren Gottlieb, KCTS-TV, and Rabbit Ears Productions, Inc. (Rabbit Ears) entered into an agreement with Buena Vista (BV Agreement) for 50 percent of the net profits resulting from the production and distribution of the television series, Bill Nye the Science Guy (series). Millennium Media Group Holdings, Inc. (MMG) purportedly made a loan to Rabbit Ears in September 1993 secured by a lien on Rabbit Ears’s assets. When Rabbit Ears apparently defaulted on the loan, MMG foreclosed the lien in 1997 and reportedly sold Rabbit Ears’s assets to Microleague

1Buena Vista Television, LLC is a subsidiary of The Walt Disney Company. 2 Because we conclude summary adjudication should not have been granted, we do not reach Ablesoft’s contention the trial court abused its discretion by denying a second continuance of the summary adjudication hearing. We do, however, briefly summarize Ablesoft’s two requests for a continuance to provide a clear understanding of the proceedings.

2

Multimedia, Inc. (Microleague) in February 1997. The sale was said to include Rabbit Ears’s rights under the BV Agreement. Ablesoft purportedly was a wholly owned subsidiary of Microleague. In December 1997, Microleague declared bankruptcy. Ablesoft apparently emerged as the surviving company, owning all of Rabbit Ears’s rights under the BV Agreement. On April 29, 1999, Buena Vista drafted an amendment (1999 Amendment) to the BV Agreement. Rabbit Ears was replaced as a signatory by “Microleague Multimedia, Inc., successor and assignee to the interests of Rabbit Ears Productions, Inc.” Buena Vista, Microleague, and the other parties executed the 1999 Amendment. In 2006, John Herson purchased Ablesoft from the “Penn Janney” fund. Shortly thereafter, CEO Herson received a check from Disney in connection with the series. Herson contacted a Buena Vista (Disney) representative to ask about the payment. In response, the representative provided Herson with a copy of the BV Agreement. From at least 2006 through 2018, Buena Vista issued accounting statements pursuant to the BV Agreement, replacing Microleague with Ablesoft as a paid participant for the series. To date, Buena Vista has paid Ablesoft nearly $1 million under the BV Agreement. B. Underlying Proceedings A lawsuit was filed against Buena Vista following its purported failure to account for and pay profits from the exploitation of the series pursuant to the terms and conditions of the BV Agreement. The operative pleading was the fourth amended complaint. Plaintiffs were Nye, McKenna, Gottlieb,