Hendricks & Lewis PLLC v. George Clinton

Filing 306

FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND ORDER MODIFYING ASSIGNMENTORDER DATED DECEMBER 5, 2014 [305} signed by Judge Otis D. Wright, II.The Assignment Order dated December 5, 2014 is hereby modifiedand amended to provide that the specified assigned accounts are hereby ASSIGNED to Hendricks & Lewis PLLC (SEE DOCUMENT FOR SPECIFIC ACCOUNTS, SPECIFIC NAMED APPLICABLE PARTIES, ROYALTY PAYORS AND DETAILED INSTRUCTIONS THEREIN). (lc)

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KATHERINE HENDRICKS (Admitted Pro Hac Vice)
[e-mail]
HENDRICKS & LEWIS PLLC
1516 Federal Ave E
Seattle, Washington 98102-4233
Telephone [phone]
Facsimile [phone]
MARY H. HAAS (State Bar No. 149770)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
865 S. Figueroa Street, Suite 2400
Los Angeles, California 90017-2566
Telephone [phone]
Facsimile [phone]
Attorneys for Plaintiff
HENDRICKS & LEWIS PLLC

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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HENDRICKS & LEWIS PLLC, a
Washington professional limited
liability company,

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Plaintiff,
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vs.
GEORGE CLINTON, an individual,

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Defendant.
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Case No. CV10-09921- ODW (PLAx)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW, AND
ORDER MODIFYING ASSIGNMENT
ORDER DATED DECEMBER 5, 2014
The Honorable Otis. D. Wright II
Date:
Time: 1:30 p.m.
Action Filed: August 10, 2010

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I.

BACKGROUND.
This matter originally came before the Court on Plaintiff and Judgment

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[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 1
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Creditor Hendricks & Lewis PLLC (“H&L”)’s Motion for Assignment Order,

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Restraining Order and Turnover Order filed on December 27, 2010. (See ECF

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No. 5.) On December 5, 2014, this Court granted H&L’s motion and entered

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Findings and Conclusions on Motion for Assignment Order, Restraining Order,

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and Document Turnover Order (the “Assignment Order”).

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H&L has moved for a modification of the Assignment Order to extend it to
cover four (4) awards for attorneys’ fees and costs totaling $430,768.35. The

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parties have provided briefing on the subject and the having considered that

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briefing as well and the entire record of this proceeding, the Court makes the

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following findings of fact and conclusions of law and Order Extending Assignment
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Order.

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II.

FINDINGS OF FACT.

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1.

On May 28, 2010, the United States District Court for the Western

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District of Washington entered judgment in favor of H&L and against Defendant

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and Judgment Debtor George Clinton for $1,675,639.82 (the “Original

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Judgment”). Pursuant to 28 U.S.C. § 1963, H&L registered that judgment in this
District on August 10, 2010.
2.

On December 27, 2010, H&L moved for Assignment Order,

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Restraining Order and Turnover Order to provide for payment of the Original
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 2
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Judgment and costs of the litigation.

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3.

On December 5, 2014, this Court granted H&L’s motion and entered

Findings and Conclusions on Motion for Assignment Order, Restraining Order,
and Document Turnover Order (the “Assignment Order”). The Assignment Order

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provided for payment of the Original Judgment, interest and costs of the litigation.
4.

On February 5, 2015, this Court awarded H&L its reasonable

attorney’ fees of $119,666.50 as part of the costs of the assignment motion

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litigation, and on March 17, 2015, taxed costs of $13,611.19. Royalties assigned

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have been applied to payment of these fees and costs.

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5.

The balance due on the Original Judgment after application of

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payments through October 27, 2016 was $40,216.37.
6.

On September 29, 2016, in Hendricks & Lewis PLLC v. George

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Clinton, No. 3:13-mc-00183 (M.D. Tenn.), the United States District Court for the

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Middle District of Tennessee ordered George Clinton to pay H&L reasonable

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attorneys’ fees in the amount of $146,931.25. Pursuant to 28 U.S.C. § 1963, H&L

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registered that Order in this District on November 14, 2016.
7.

On August 28, 2015, in George Clinton v. Will Adams v. Hendricks &

Lewis PLLC, No. 12-56663 (9thCir.), D.C. No. 10-cv-9476-ODW (C.D. Cal.), the

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United States Court of Appeals for the Ninth Circuit awarded H&L attorneys’ fees
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 3
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and costs against George Clinton in the total amount of $64,540.45.

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8.

On December 9, 2014, in Hendricks & Lewis PLLC v. George

Clinton, No. 13-35010 (9th Cir.), D.C. No. 12-CV-841-RSL, the United States
Court of Appeals for the Ninth Circuit issued its mandate and taxed costs against

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George Clinton in the amount of $892.10. On January 6, 2015, the United States

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Court of Appeals for the Ninth Circuit amended its mandate by an Order to George

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Clinton to pay H&L reasonable attorneys’ fees in the amount of $157,618.00.

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Pursuant to 28 U.S.C. § 1963, H&L registered the Mandate in this District on

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November 16, 2016, and the Order in this District on November 2, 2015.

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9.

On July 19, 2010, in Hendricks & Lewis PLLC v. George Clinton, No.

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C10-0253-JCC (W.D. Wash.), the United States District Court for the Western

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District of Washington entered judgment awarding H&L its reasonable attorneys’

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fees against George Clinton in the amount of $60,786.50. Pursuant to 28 U.S.C.
§ 1963, H&L registered that Judgment in this District on October 27, 2016.
10.

As a consequence of the foregoing four awards, George Clinton has

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become indebted to Hendricks & Lewis PLLC for a total of $430,768.35 for

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attorneys’ fees and costs in addition to the original judgment debt he owed

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Hendricks & Lewis PLLC, the balance of which was $1,304,340.72 at the time the

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Court entered the assignment order on December 5, 2014.
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 4
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Clinton incurred these fees and costs by opposing, obstructing and

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delaying payment of the original judgment debt for which the Assignment Order

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was entered.

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12.

George Clinton has given notice to Broadcast Music, Inc. (“BMI”) of

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termination of his songwriter’s performance royalty accounts. Two of the accounts

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have terminated. The last of these accounts that provides royalties, the Tick Free

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Music account, reportedly terminates on June 30, 2017.

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13.

Clinton reported to this Court that he has moved or is moving his

accounts to a French organization comparable to BMI, Société des Auteurs,

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Compositeurs et Éditeurs de Musique (Society of Authors, Composers and
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Publishers (SACEM)) (ECF 263 at 8.).
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At SACEM Clinton’s royalties are beyond the reach of traditional

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U.S. state garnishment proceedings.
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These royalties are now presumptively available to Clinton for his

personal needs and use.

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16.

Under the assignment order entered on December 5, 2014, the original

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judgment debt and the costs of the Assignment Order litigation have been

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substantially paid down, and thus, the assigned royalty streams from Universal

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Music Group (“UMG”) and SoundExchange soon will be available to pay down
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 5
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Clinton’s new obligations.

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H&L currently has two pending judgment enforcement actions outside

this District. One involves an order from the United States District Court for the
Western District of Washington appointing a receiver and directing the licensing

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and/or sale of four copyrights in sound recordings to pay the Original Judgment

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and the attorneys’ fee judgment entered by that Court. The other involves a

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garnishment of Clinton’s remaining account at Broadcast Music, Inc. in the United

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States District Court for the Middle District of Tennessee to collect the attorneys’

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fees awarded by that court to H&L from Clinton.

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All of the payments collected on the judgment to date have been the

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result of H&L’s judgment enforcement actions. Clinton has not made any

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voluntary payments on the judgment unconnected to H&L’s enforcement efforts

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since the judgment was entered in May 2010. Clinton also has not made any

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voluntary payments on the awards for attorneys’ fees and costs against him and in

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favor of H&L.

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Clinton has not turned over any documentation relating to his royalty

streams as required by the Assignment Order.
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Under the Assignment Order, H&L receives royalty payments from

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third-party royalty payors Universal Music Group (“UMG”) and SoundExchange.
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 6
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III.

CONCLUSIONS OF LAW.

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1.

H&L has registered each of the out-of-district attorneys’ fee and costs

awards under 28 U.S.C. § 1963, and each of those awards therefore “has the same
effect as a judgment of the district court of the district where registered and may be

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enforced in like manner.” 28 U.S.C. § 1963.
2.

Under FED. R. CIV. PROC. 69 California law governs this judgment

enforcement proceeding.

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3.

In California, all property of the judgment debtor is subject to

enforcement of a money judgment absent a statutory exemption. CAL. CIV. CODE
§ 695.010(a); Ford Motor Credit Co.. v. Waters, 166 Cal. App. 4th Supp. 1, 8, 83

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Cal. Rptr. 3d 826 (2008).
4.

Under California judgment law, “Either the judgment creditor or the

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judgment debtor may apply to the court on noticed motion for an order to modify .

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. . the assignment order. CAL. CIV. CODE § 708.560(a). Under CAL. CIV. CODE

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§ 708.560(b) “The court shall make an order modifying . . . the assignment order

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upon a showing that there has been a material change in circumstances since the

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time of the previous hearing on the assignment order.” Section 708.560(b) also

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provides that “The order shall state whether and to what extent it applies to

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payments already made.”
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 7
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5.

The awards of attorneys’ fees and costs against Clinton and in favor of

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H&L constitute a material change in circumstances that have increased Clinton’s

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total liability to H&L.

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6.

The substantial pay-down of the balance due on Original Judgment

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debt and the costs of litigation consisting of awards by this Court of attorneys’ fees

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of $119,666.50 and costs of $13,611.19 constitute a material change in

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circumstances that will shortly make the assigned royalty streams under the initial

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assignment available for payment of the attorneys’ fees and costs awards.
7.

Clinton’s termination of his accounts with Broadcast Music Inc.

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(“BMI”) to be effective June 30, 2017 and transfer of his performance royalties
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from to Societe des Auteurs, Compositeurs et Editeurs de Musique (“SACEM”) in

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France, beyond the reach of traditional United States garnishment and attachment

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procedures, constitute a material change in circumstances. This will make

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significant revenue available to Clinton in addition to other royalty payments not

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assigned to meet Clinton’s reasonable requirements.

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8.

Based on this evidentiary record, H&L has satisfied its burden of

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demonstrating the propriety of and need for the modification of the assignment

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order it now seeks as well as an extension of the order restraining Clinton from

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disposing of or otherwise transferring the royalty streams at issue and requiring
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 8
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Clinton to turn over documentation relating to these royalty streams

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IT IS HEREBY ORDERED as follows:

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1.

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H&L’s motion for modification of the assignment order, restraining

order and turnover order is GRANTED.

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2.

The Assignment Order dated December 5, 2014 is hereby modified

and amended in paragraph 2 on page 14 to provide that the specified assigned
accounts

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are hereby ASSIGNED to Hendricks & Lewis PLLC, c/o Katherine

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Hendricks, 1516 Federal Avenue East, Seattle, Washington 98102-4233 for

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purposes of payment of (1) the judgment in the amount of $1,304,340.72,
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plus interest after September 12, 2014, plus other costs as may be allowed,

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and (2) attorneys’ fees and costs awards totaling $430,768.35. The

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Assignment shall remain in place until such time as the judgment including

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accrued interest and said attorneys’ fees and costs awards are paid in full, or

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until this Order is amended.

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(Emphasis on language added.)
The Assignment Order dated December 5, 2014, is further modified and
amended in paragraph 3 on page 15 of the Assignment Order to provide that the

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specified accounts
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 9
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are hereby ASSIGNED to Hendricks & Lewis PLLC, c/o/ Katherine

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Hendricks, 1516 Federal Avenue East, Seattle, Washington 98102-4233 for

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purposes of payment of (1) the judgment in the amount of $1,304,340.72,

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plus interest after September 12, 2014, plus other costs as may be allowed,

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and (2) attorneys’ fees and costs awards totaling $430,768.35. The

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Assignment shall remain in place until such time as the judgment including

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accrued interest and said attorneys’ fees and costs awards are paid in full, or

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until this Order is amended.
(Emphasis on language added.)

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3.

IT IS ORDERED that pursuant to CAL. CIV. PROC. CODE § 708.510,

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all accounts, accounts receivable, rights to payment of money, contract rights,

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rights to payment of money from third parties, contingent rights, deposits and

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deposit accounts, claims against third parties and monies due from the following
third parties (referred to collectively hereinafter as “Royalty Payors”):

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a.

UNIVERSAL MUSIC GROUP, INC., UMG RECORDINGS,

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INC., and all affiliated labels, 2220 Colorado Avenue, Santa

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Monica, California 90404, and 1755 Broadway, New York,

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New York 10019, specifically the following accounts:

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Account No.

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Account Name

[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 10
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Account No.

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Account Name

XXXX3068

Tick Free Music Inc.

XXXX4652

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Tick Free Music

XXXX0297

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Parliament

XXXXP730

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Clinton George-Paythrough Acc

XXXX6304

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Clinton George/Clijo Prod-310

XXXX5301

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Tick Free Music

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b.

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CAPITOL RECORDS, EMI MUSIC, EMI MUSIC NORTH
AMERICA, and all affiliated labels, 1750 Vine Street,

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Hollywood, California 90028, specifically the following

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accounts:

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Account No.

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Account Name

XXXX7/002

Red Hot Chili/George Clinton – 7137455

XXXX8/001

Clinton, George/Clijo Prod – 3101687

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XXXX38/002

Clinton, Ge/Gregory Paul Prod – 3101689

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XXXX38/003

Clinton, George/Scoop of Poop – 3101690

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XXXX38/007
XXXX38/008

Clinton, George/Clijo Prod –
3601687/3651687
Clinton, George-Paythrough Acct – G.H.

XXXX98/001

Clinton, G/Scoop of Poop Prod - 3101691

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c.

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SOUNDEXCHANGE, 733 10th Street NW, 10th Floor,
Washington D.C. 20001, specifically account for What

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Productions and/or The C Kunspyruhzy F/S/O George Clinton.

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[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 11
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and in favor of and for the benefit of Defendant and Judgment Debtor George

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Clinton, or any of Defendant’s assignees, other persons acting on his behalf, and

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any of the following Clinton entities:

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d.

P-Funk, Inc.;

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e.

Clijo Productions, Inc.;

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f.

Disc and Dat, Inc. I;

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Disc and Dat, Inc. II;

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h.

What Production Company, Inc.;

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i.

Tick Free Music Publishing, Inc.;

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The Dog In Me, Inc.;

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k.

The C Kunspyruhzy, LLC;

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PFunk Nation Celebration, Inc.;

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Egmitt Productions, Inc.;

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n.

A Scoop of Poop Productions, Inc.; and

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o.

Exoskeletol Music

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are hereby ASSIGNED to Hendricks & Lewis PLLC, c/o Katherine Hendricks,

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1516 Federal Ave E, Seattle, Washington 98102-4233, for purposes of payment of

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(1) the judgment in the amount of $1,304,340.72, plus interest after September 12,

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2014, plus other costs as may be allowed; and (2) attorneys’ fees and costs award
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 12
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totaling $430,768.35. The Assignment shall remain in place until such time as the

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judgment is paid in full, including accrued interest, and the said attorneys’ fees and

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costs are paid in full, or until this Order is amended.

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4.

IT IS FURTHER ORDERED that pursuant to CAL. CIV. PROC. CODE

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§ 708.510, all accounts, accounts receivable, rights to payment of money, contract

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rights, rights to payment of money from third parties, contingent rights, deposits

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and deposit accounts, claims against third parties and monies due Clinton from the

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following Clinton entities:

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a.

P-Funk, Inc.;

b.

Clijo Productions, Inc.;

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c.

Disc and Dat, Inc. I;

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d.

Disc and Dat, Inc. II;

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What Production Company, Inc.;

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f.

Tick Free Music Publishing, Inc.;

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g.

The Dog In Me, Inc.;

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The C Kunspyruhzy, LLC;

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i.

PFunk Nation Celebration, Inc.;

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j.

Egmitt Productions, Inc.;

k.

A Scoop of Poop Productions, Inc.; and

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[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 13
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l.

Exoskeletol Music

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and in favor of and for the benefit of Defendant and Judgment Debtor George

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Clinton, or any of Defendant’s assignees or other persons acting on his behalf, are

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hereby ASSIGNED to Hendricks & Lewis PLLC, such that payments due from

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any of the Royalty Payors to any Clinton entity identified above may be paid

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directly to Plaintiff and Judgment Creditor Hendricks & Lewis PLLC, c/o

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Katherine Hendricks, 1516 Federal Ave E, Seattle, Washington 98102-4233, for

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purposes of payment of (1) the judgment in the amount of $1,304,340.72, plus

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interest after September 12, 2014, plus other costs as may be allowed; and

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(2) attorneys’ fees and costs awards totaling $430,768.35. The Assignment shall
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remain in place until such time as the judgment is paid in full, including accrued

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interest, and said attorneys’ fees and costs awards are paid in full, or until this

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Order is amended.
5.

IT IS FURTHER ORDERED that pursuant to CAL. CIV. PROC. CODE

§ 708.520, Clinton, his agents, employees, attorneys, accountants, and other

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representatives, and any and all person(s) acting in concert or participating with

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any of them, are hereby stayed, prohibited, and enjoined from cashing, negotiating,

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advancing, collecting, assigning or encumbering any and all accounts, accounts

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receivable, rights to payment of money, claims for payment of money due from
[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 14
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third parties, or other rights subject to the assignment herein.

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6.

IT IS FURTHER ORDERED that pursuant to CAL. CIV. PROC. CODE

§ 699.040, Clinton shall deliver all checks, cash, notes, instruments, deposits,
deposit accounts, drafts, accounts receivable ledgers or journals, or any other

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tangible item of payment received by Clinton or his agents, employees, attorneys,

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accountants, and other representatives pertaining to the rights to payment subject to

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the assignment herein to the Marshal, Central District of California, 255 E. Temple

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Street, Room 346, Third Floor, Los Angeles, California 90012-4798.
IT IS SO ORDERED.

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Date: January 25, 2017
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________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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[PROPOSED] FINDINGS AND CONCLUSIONS,
AND ORDER MODIFYING ASSIGNMENT ORDER
DATED DECEMBER 5, 2014 - 15
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