Patrick Miele v. Ron Perlstein

379 F. App'x 626

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2010
• Docket: 09-55525
• Status: Unpublished

Opinion

MEMORANDUM **

Patrick Miele appeals an award of summary judgment to Ron and Judith Perl-stein and Danco, Inc. (Defendants). We exercise our discretion to assume jurisdiction over the appeal, see Wahkiakum Band of Chinook Indians v. Bateman, 655 F.2d 176, 177 n. 1 (9th Cir.1981); Biggie v. California, 577 F.2d 579, 581 n.A (9th Cir. 1978), and we affirm.

No California state court has squarely decided whether the principles of derivative lawsuits applicable to corporations also apply to a limited liability company such as Rhapsody LLC. Cf. PacLink Commc’ns Int’l, Inc. v. Superior Court, 90 Cal.App.4th 958, 109 Cal.Rptr.2d 436, 439 (Ct.App.2001) (noting that the plaintiffs had conceded that such principles applied in the LLC context). We will assume for the sake of argument that Miele has standing to assert his claims against Defendants. See Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 338, 110 S.Ct. 661, 107 L.Ed.2d 696 (1990) (assuming arguendo that a party met the prudential requirements of the standing doctrine).

Even under that assumption, Miele’s claims for breach of fiduciary duty and intentional interference with prospective economic advantage are meritless as a matter of law. Miele must show that he has suffered damages to establish either a breach of fiduciary duty, see Alexander v. Robertson, 882 F.2d 421, 423 (9th Cir.1989); Am. Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App.4th 1017, 117 Cal.Rptr.2d 685, 705-06 (Ct.App.2002), or intentional interference with prospective economic advantage, see Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 131 Cal.Rptr.2d 29, 63 P.3d 937, 950 (2003); Salma v. Capon, 161 Cal.App.4th 1275, 74 Cal.Rptr.3d 873, 888 (Ct.App.2008). There is no evidence that the sale of the film Rhapsody to Blockbuster without Miele’s consent, 1 Dan-co’s separate contract with Bruder Releasing, or Perlstein’s deposit of funds from the Blockbuster deal into Danco’s account deprived Miele of any money that he would otherwise have received. There is no evidence that the film’s fair market value exceeded the amount Blockbuster paid for it, or that other, better offers were available.

Furthermore, there is no evidence that Perlstein himself negotiated or executed the deal with Blockbuster. It was Bruder Releasing that signed the agreement with Blockbuster and had exclusive authority to enter into it. Bruder Releasing was dismissed earlier in this case, but apparently Miele has not appealed that dismissal. Insofar as Miele’s claims relate to the Blockbuster agreement, the Perlsteins and Dan-co are not proper defendants.

Miele also asserts a frivolous claim of usury. Perlstein’s investment in Rhapsody was not a loan, see Ghirardo v. Antonioli, 8 Cal.4th 791, 35 Cal.Rptr.2d 418, 883 P.2d 960, 965 (1994) (noting that in determining whether a transaction was a loan, and therefore subject to usury law, the substance and not the form of the transaction controls), and even if it were, Perlstein enjoyed a negative rate of “interest” by receiving less than $200,000 from the Blockbuster deal since he had contributed $300,000 to Rhapsody LLC. Miele has adduced no evidence of any other return that Perlstein received on his investment.

Because the district court’s summary judgment must be affirmed, Miele’s contention that this case should be remanded to a different district court judge is moot.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . The record is not entirely clear on the question of consent. Miele changed his mind about the Blockbuster deal at least twice. The record does not explain Miele's change of mind, and counsel’s attempted explanation at oral argument clarified nothing.