Modification: Brighton Collectibles, LLC v. Hockey

BRIGHTON COLLECTIBLES, LLC,

Cross-complainant and Appellant,

v.

NATALIE HOCKEY,

Cross-defendant and Respondent.

2d Civ. No. B307235

(Super. Ct. No. 19CV06616)

(Santa Barbara County)

California Courts of Appeal

Second Appellate District

Filed June 24, 2021

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on June 3, 2021, be modified as follows:

1.       On page 5, the last paragraph beginning with "The evidence submitted during the proceedings below . . ." and ending on page 6 with "No more was required at this stage of the proceedings" is deleted and replaced with:

The evidence submitted during the proceedings below shows that Brighton's fraud cross-claim has the requisite minimal merit. To defeat Hockey's anti-SLAPP motion to strike its fraud claim, Brighton had to produce prima facie evidence that: (1) Hockey failed to disclose a material fact, (2) Hockey had a duty to disclose that fact, (3) Hockey intended to induce Brighton to rely on the fact, (4) Brighton justifiably relied on it, and (5) damages. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248; see also Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [defining elements of fraud].) Here, Brighton submitted evidence that Hockey concealed a material fact when she failed to tell the company she expected payment immediately upon her "termination" as an "employee" when the photoshoot concluded. She had a duty to disclose that fact to Brighton since the terms of her contract provided that the company would pay LA Models for her services upon receipt of an invoice. (See LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336 [duty to disclose exists where one makes partial representations but suppresses other material facts].) It can be inferred that Hockey intended for Brighton to rely on the concealed fact---and that Brighton justifiably did so---given that (a) those were her instructions to Brighton, and (b) her instructions comported with standard industry practices. Reliance on the concealed fact damaged Brighton by exposing it to $90,000 in waiting-time penalties plus attorney fees and costs---in addition to the costs Brighton incurred in defending itself against Hockey's lawsuit. No more was required at this stage of the proceedings.

There is no change in judgment.

Respondent's petition for rehearing is denied.

GILBERT, P. J.

PERREN, J.

TANGEMAN, J.