Hinson v. Calvary Records, Inc. et al.,

Filing 60

ORDER signed by District Judge Troy L. Nunley on 3/23/2017 DENYING 8 Application for Right to Attach order and order for issuance of writ of attachment. (Donati, J)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

RONALD A. HINSON,
Plaintiff,

12

ORDER

v.

13
14

No. 2:15-cv-02227-TLN-EFB

CALVARY RECORDS, INC., et al.
Defendants.

15
16
17

This matter is before the Court pursuant to Plaintiff Ronald A. Hinson’s

18
19

(“Plaintiff”) application for right to attach order and order for issuance of writ of

20

attachment (the “Application”). (ECF No. 8.) The San Joaquin County Sheriff, Coroner,

21

Public Administrator (the “Public Administrator”), in his representative capacity as the

22

Special Administrator of the Estate of Nelson S. Parkerson, Jr., filed an opposition. (ECF

23

No. 22.) Plaintiff filed a reply. (ECF No. 23.) The Court has carefully considered the

24

arguments raised by the parties.1 For the reasons set forth below, the Application is

25

DENIED.

26

///

27

1

28

Because the Court has concluded that oral argument would not be of material assistance, it decides
the matter on the briefing in accordance with Eastern District Local Rule 230(g).

1

1

I.

PROCEDURAL BACKGROUND

2

This case arises out of the alleged misappropriation of royalties for songs

3

copyrighted by Plaintiff. Plaintiff filed this suit on October 26, 2015. (Compl., ECF No.

4

1.) On January 11, 2016, Plaintiff filed his first amended complaint (“FAC”) naming as

5

defendants Calvary Records, Inc., a California corporation (“Calvary Records”), dba The

6

Calvary Music Group dba Songs of Calvary; Songs of Calvary, an entity whose form of

7

organization is unknown (“Songs of Calvary”); Calvary Music Group, Inc., a Tennessee

8

corporation (“Calvary Music”); Nelson S. Parkerson, Jr. (“Parkerson”), deceased, by and

9

through the Public Administrator, as special administrator of Parkerson’s estate, Phyllis

10

Bradhurst (“Bradhurst”); Warner Chappell Music, Inc., a Delaware corporation (“Warner

11

Chappell”); and Does 1 to 50, inclusive (collectively, “Defendants”). (ECF No. 7.)

12

The FAC contains the following ten causes of action: (1) violation of the

13

Copyright Act, 17 U.S.C. §§ 101 et seq., against all Defendants; (2) breach of fiduciary

14

duty (constructive fraud) against all Defendants except for Warner Chappell; (3)

15

conversion against all Defendants; (4) declaratory relief against all Defendants except for

16

Warner Chappell; (5) breach of contract against all Defendants except for Warner

17

Chappell; (6) rescission of contract against all Defendants except for Warner Chappell;

18

(7) negligence against all Defendants; (8) common counts – money had and received

19

against all Defendants except Warner Chappell; (9) common counts – money had and

20

received against Warner Chappell and Does 1 to 50; and (10) accounting against all

21

Defendants. (See ECF No. 7.)

22

Also on January 11, 2016, Plaintiff filed the Application seeking to attach a

23

particular Wells Fargo bank account (the “Account”) “in the name(s) of Calvary Records,

24

Inc. dba The Calvary Music Group dba Songs of Calvary; Calvary Music Group, Inc.;

25

Songs of Calvary; Nelson S. Parkerson, Jr.; Phyllis M. Bradhurst; or any one or

26

combination of them.” (ECF No. 8 at 2.) To the extent the “account balance is

27

insufficient or [the] account has been closed,” Plaintiff also seeks to attach “the net

28

proceeds of the sale” of certain real property in Fresno, CA, more particularly described
2

1

in the Application, in the amount of $171,000.00. (ECF No. 8 at 2.)

2

II.

3

Federal Rule of Civil Procedure 64 provides in pertinent part:

4

At the commencement of and throughout an action, every remedy is available
that, under the law of the state where the court is located, provides for seizing a
person or property to secure satisfaction of the potential judgment . . . . The
remedies available under this rule include . . . attachment . . . .

5
6

LEGAL STANDARD

7

Fed. R. Civ. P. 64. The effect of Rule 64 is to incorporate state law to determine the

8

availability of prejudgment remedies for the seizure of property to secure satisfaction of a

9

judgment ultimately entered. Granny Goose Foods Inc. v. Bhd. of Teamsters & Auto

10

Truck Drivers, Local No. 70 of Alameda Cty., 415 U.S. 423, 436 n.10 (1974). Thus,

11

California law provides the rules governing the Application.

12

In California, the procedures and grounds for obtaining orders for prejudgment

13

writs of attachment are governed by California Code of Civil Procedure §§ 481.010–

14

493.060. Blastrac, N.A. v. Concrete Sols. & Supply, 678 F. Supp. 2d 1001, 1004 (C.D.

15

Cal. 2010). Attachment is a purely statutory remedy. Pos-A-Traction, Inc. v. Kelly-

16

Springfield Tire Co., 112 F. Supp. 2d 1178, 1181 (C.D. Cal. 2000) (citing Jordan–Lyon

17

Prods., Ltd. v. Cineplex Odeon Corp., 29 Cal. App. 4th 1459, 1466 (1994)). The burden

18

is on the applicant to establish each element necessary for an attachment order by a

19

preponderance of the evidence. Blastrac, 678 F. Supp. 2d at 1004–05 (citing Loeb &

20

Loeb v. Beverly Glen Music, Inc., 166 Cal. App. 3d 1110, 1116 (1985)).

21

“Except as otherwise provided by statute, an attachment may be issued only in an

22

action on a claim or claims for money, each of which is based upon a contract, express or

23

implied, where the total amount of the claim or claims is a fixed or readily ascertainable

24

amount” not less than $500.00. Cal. Civ. Proc. Code § 483.010(a). California Code of

25

Civil Procedure § 484.090 provides that before an attachment order is issued, the court

26

must find all of the following: (1) the claim upon which the attachment is based is one

27

upon which an attachment may be issued; (2) the applicant has established the “probable

28

validity” of the claim upon which the attachment is based; (3) the attachment is not
3

1

sought for a purpose other than recovery on the claim upon which the request for

2

attachment is based; and (4) the amount to be secured by the attachment is greater than

3

zero. Cal. Code Civ. Proc. § 484.090(a).
“The application for a right to attach order must be supported by an affidavit or

4
5

declaration showing that the applicant, on the facts presented, would be entitled to a

6

judgment on the claim upon which the proposed attachment is based.” Pos-A-Traction,

7

Inc., 112 F. Supp. 2d at 1182 (citing Cal. Code Civ. Proc. § 484.030). “The affidavit or

8

declaration must state the facts ‘with particularity.’” Id. (citing Cal. Code Civ. Proc. §

9

482.040). Additionally, a writ of attachment will not be issued if the property to be

10

attached is exempt. Cal. Code Civ. Proc. § 484.090(b); Gen. Elec. Capital Corp. v.

11

Rhino Bus. Sys., Inc., No. 2:16-cv-00029-KJM-CMK, 2016 WL 2743557, at *3 (E.D.

12

Cal. May 11, 2016).
PLAINTIFF’S AFFIDAVIT AND REQUEST FOR JUDICIAL NOTICE

13

III.

14

In connection with the Application, Plaintiff filed a declaration (ECF No. 8 at 5–

15

13) (the “Hinson Declaration”).2 The Hinson Declaration refers to “Calvary Records,

16

Inc., Songs of Calvary Publishing Company and/or their authorized agent and

17

representative, Nelson S. Parkerson, Jr.” collectively as “Calvary” unless “separately

18

designated.” (Hinson Decl. at ¶ 3.) The Court will do so as well in this section of the

19

Order.
Plaintiff declares the following: Plaintiff is a professional songwriter and

20
21

composer of gospel music. (Hinson Decl. at ¶ 2.) Plaintiff composed the lyrics and

22

music to the songs “The Lighthouse” and “He Pilots My Ship” (the “Songs”), and

23

subsequently registered the Songs with the U.S. Copyright Office. (Hinson Decl. at ¶¶

24

2–3.) Plaintiff entered into a contractual relationship with Calvary Records, Inc. and

25

Songs of Calvary Publishing, with Parkerson acting on behalf of these entities, granting

26

Songs of Calvary Publishing the right to “split-publish” the Songs. (Hinson Decl. at ¶ 3.)

27
2

28

The Hinson Declaration was not docketed as a separate document from the Application. To avoid
confusion with the Application, citations to the Hinson Declaration refer to it as “Hinson Decl. at ¶ _.”

4

1

Plaintiff indicates this arrangement meant that Plaintiff was entitled to “fifty percent of

2

the income generated from the exploitation of the songs . . . as songwriter while the

3

remaining fifty percent was to be apportioned between . . . [the] split-publishers.”

4

(Hinson Decl. at ¶ 3.) Plaintiff has submitted two contracts entered into “between

5

[Plaintiff] and Calvary” as Exhibits 1 and 2 of the Hinson Declaration. (See Hinson

6

Decl. at ¶¶ 4–5.) The first was entered into on August 11, 1975 (the “1975 Agreement”)

7

and the second on June 9, 1992 (the “1992 Agreement” and, together with the 1975

8

Agreement, the “Agreements”)). The 1992 Agreement “expressly nullified all prior

9

agreements between the parties except Part B of the 1975 Agreement.” (See Hinson

10

Decl. at ¶ 5.) Each of the Agreements maintained this split-publishing arrangement. (See

11

Hinson Decl. at ¶¶ 4–5.) The 1992 Agreement had a maximum term of “no more than

12

forty-eight months” unless certain projects were not completed. (Hinson Decl. at ¶ 6.)

13

However, the 1992 Agreement would not remain in effect, even if these projects were not

14

completed, if “it can be shown that The Company was in anyway responsible for their

15

incompleteness.” (Hinson Decl. at ¶ 6 (internal quotation marks omitted).)

16

Plaintiff neither recalls any contact from Calvary or Parkerson nor receiving any

17

royalties from Calvary since 2000. (Hinson Decl. at ¶ 7.) By this time Plaintiff

18

“regarded the 1992 Agreement as having expired and [his] contractual relationship with

19

Calvary as having terminated.” (Hinson Decl. at ¶ 7.) However, in approximately

20

October 2012, in connection with an IRS audit, Plaintiff was presented with Form 1099s

21

from Warner Chappell indicating he should have received approximately $67,000 in

22

royalties for the Songs “during tax year 2010.” (Hinson Decl. at ¶ 8.) After inquiring

23

with Warner Chappell, Plaintiff states he was provided copies of four cashed royalty

24

checks (the “Checks”) totaling approximately $67,000.00 made out to “Ronnie Hinson

25

D/B/A Songs of Calvary.” (Hinson Decl. at ¶ 12.) One of the Checks was purportedly

26

endorsed by Plaintiff, but Plaintiff indicates this is a forgery. (Hinson Decl. at ¶ 12.) The

27

Checks indicate they were cashed by Songs of Calvary and deposited in the Account.

28

(Hinson Decl. at ¶ 12.) Copies of the Checks have been submitted as an exhibit to the
5

1
2

Hinson Declaration.
Plaintiff states that he has been informed that Warner Chappell paid royalties to

3

Calvary “from 2003 through 2005” and that he believes “[t]here may also have been

4

payments made to Calvary since 2010” and “possibly . . . during 2002.” (Hinson Decl. at

5

¶ 14.) Plaintiff believes that Bradhurst “is still collecting and receiving royalty payments

6

under the names ‘Song of Calvary’ and other fictitious business names previously used

7

by Nelson S. Parkerson, Jr. without the knowledge and consent of the Special

8

Administrator of his Estate.” (Hinson Decl. at ¶ 15.)

9

Plaintiff has submitted a Request for Judicial Notice requesting, among other

10

things, for the Court to take judicial notice of an allegation made by certain of

11

Parkerson’s “objecting heirs” in Superior Court of California, County of San Joaquin that

12

“since 2010 Parkerson suffered from dementia and that he was the victim of undue

13

influence and financial elder abuse perpetrated by” Bradhurst. (See ECF No. 8-3 at 2.)

14

The Request for Judicial Notice is DENIED as the items Plaintiff would have judicially

15

noticed are immaterial to the resolution of the Application.

16

IV.

ANALYSIS

17

The Court finds that Plaintiff’s Application should be denied for three reasons.

18

First, Plaintiff has not satisfied his burden to establish the “probable validity” of his

19

breach of contract claim as it pertains to the Checks or earlier royalty payments

20

preceding them by failing to respond to the Public Administrator’s statute of limitations

21

argument. See Cal. Civ. Proc. Code §§ 483.010(a), 484.090(a). Second, with respect to

22

the breach of contract claims as it applies to possible royalty payments not covered by the

23

Public Administrator’s statute of limitations argument, Plaintiff has failed to show these

24

are in a fixed or “readily ascertainable” amount. See Cal. Civ. Proc. Code § 483.010(a).

25

Third, Plaintiff has not met his burden to identify a statute that would permit an order of

26

attachment for any of his non-contractual claims. See Cal. Civ. Proc. Code §§

27

483.010(a), 484.090(a).

28

In order to establish that a claim has “probable validity,” the plaintiff must show
6

1

it is “more likely than not that the plaintiff will obtain a judgment against the defendant

2

on that claim.” Cal. Civ. Proc. Code § 481.190; see also Blastrac, 678 F. Supp. 2d at

3

1005. The Court makes this determination by “consider[ing] the relative merits of the

4

positions of the respective parties and mak[ing] a determination of the probable outcome

5

of the litigation.” Blastrac, 678 F. Supp. 2d at 1005 (quoting Loeb & Loeb, 166 Cal.

6

App. 3d at 212). “[I]t is not enough for the plaintiff to make out a prima facie case for

7

breach of contract; rather, the plaintiff must also show that the defenses raised are ‘less

8

than fifty percent likely to succeed.’” Id. at 1005 (quoting Pet Food Express, Ltd. v.

9

Royal Canin USA Inc., 2009 WL 2252108, at *5 (N.D.Cal.2009)).

10

The Public Administrator argued that a “portion of [Plaintiff’s] causes of action

11

are barred by the statute of limitations” and therefore Plaintiff should not receive “an

12

attachment order in the full amount” he seeks. (ECF No. 22 at 11–12 (discussing the

13

statute of limitations as they apply to six of Plaintiff’s causes of action).) In relevant

14

part, the Public Administrator argued that a “four year statute of limitations applies” to

15

Plaintiff’s breach of contract claim and that Plaintiff therefore “would not be entitled to

16

recover any damages for the period before October 26, 2011” with respect to that claim

17

because Plaintiff “initially filed this lawsuit on or about October 26, 2015.” (ECF No. 22

18

at 12.) In particular, the Public Administrator submitted this would bar recovery for each

19

of the Checks, which were “issued in April, July, and November of 2010 and in January

20

2011.” (ECF No. 22. at 12–13.)

21

The closest Plaintiff comes to discussing the Public Administrator’s statute of

22

limitations argument as it pertains to his breach of contract claim is Plaintiff’s conclusory

23

assertion that he has “met the requirements of . . . California Code of Civil Procedure §§

24

481.010, et seq.” (ECF No. 23 at 10.) Quite simply, Plaintiff has not met his burden to

25

demonstrate the probable validity of this claim. See Blastrac, 678 F. Supp. 2d at 1007

26

(concluding plaintiff “ha[d] not shown probable validity because it [had] not effectively

27

addressed [the opposing party’s] . . . defense”); Pet Food Exp. Ltd., 2009 WL 2252108,

28

at *5 (concluding a party fails to demonstrate the probable validity of its claim where it
7

1

“provide[s] no support for” the proposition that the opposing party’s defense is “less than

2

fifty percent likely to succeed). Indeed, Plaintiff has made no effort to do so.
Plaintiff’s statement that “[t]here may also have been payments made to Calvary

3
4

since 2010” does not change things. (Hinson Decl. at ¶ 14 (emphasis added).) The

5

burden is on Plaintiff to establish each element necessary for an attachment order.

6

Blastrac, 678 F. Supp. 2d at 1004–05. “[A]n attachment may be issued only in an action

7

on a claim or claims for money, each of which is based upon a contract, express or

8

implied, where the total amount of the claim or claims is a fixed or readily ascertainable

9

amount.” Cal. Civ. Proc. Code § 483.010(a) (emphasis added). Speculation as to

10

whether additional payments may have occurred in some unspecified amount fails to

11

meet this burden.
Finally, Plaintiff’s discussion of the statute of limitations as it pertains to his

12
13

copyright infringement claim is similarly to no avail. (ECF No. 23 at 3–5.) “Except as

14

otherwise provided by statute, an attachment may be issued only in an action on a claim

15

or claims for money, each of which is based upon a contract, express or implied . . . .”

16

Cal. Civ. Proc. Code § 483.010(a) (emphasis added). Even assuming Plaintiff’s

17

arguments are correct, Plaintiff has not met his burden to show that his copyright

18

infringement claim is a “claim upon which the attachment is based is one upon which an

19

attachment may be issued.” Cal. Civ. Proc. Code § 484.090; see also Loeb & Loeb, 166

20

Cal. App. 3d at 1116. (explaining the applicant plaintiff has “the burden of proving . . .

21

that his claim is one upon which an attachment may be issued”).

22

IV.

CONCLUSION

23

For the foregoing reasons, Plaintiff’s Application is DENIED.

24

IT IS SO ORDERED.

25

Dated: March 23, 2017

26
27

Troy L. Nunley
United States District Judge

28
8