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Thursday, August 30, 2012

Howard Entertainment v. Lisa Kudrow: Court Erred In Excluding Expert Witness Evidence of Custom and Usage in Personal Management Dispute

In 1991, Scott Howard and actress Lisa Kudrow entered into an oral agreement for Howard to act as Kudrow's personal manager. Kudrow agreed to pay Howard 10% of her earnings. In 1994, Kudrow landed the role of "Phoebe" on the television show "Friends." She earned up to $1 million per episode, plus 1 1/4 % of the show's "backend" earnings. 

Kudrow terminated Howard in 2007, and Howard made a demand for commissions on income Kudrow earned following the termination of their relationship for work she performed during the relationship. Kudrow rejected the demand, and Howard filed suit. On summary judgment, Howard presented the declaration of an expert, who stated that custom and practice in the entertainment industry required clients to pay their personal managers post-termination commissions on the services that they rendered, and on engagements that they entered into, when the personal managers were representing them.

Kudrow objected to the expert's declaration, and Howard sought an extension of time to supplement it. The trial court (Los Angeles Superior Court, Judge Cesar Sarmiento) denied the request for continuance, sustained Kudrow's objections to the expert's declaration, and granted summary judgment. Howard appealed, and the Court of Appeal remanded to the trial court with directions to exercise its discretion to determine if Howard was entitled to a continuance to file a supplemental expert declaration.

On remand, the trial court granted Howard's request to file a supplemental expert witness declaration. The trial court then held that the declaration lacked foundation and again granted summary judgment. Howard again appealed, and the Court of Appeal reversed, holding:
Howard's expert was qualified as an expert witness (slip op. at 15-17); 
The expert's declaration provided adequate foundation for the opinions expressed, despite a "lack of specific details in portions of the ... declaration" (slip op. at 17-23); and 
Because the expert declaration was admissible, Howard raised triable issues of material fact as to the proper interpretation of the parties' agreement, and the trial court erred in granting summary judgment (slip op. at 23).
The opinion is available here.

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