Don Johnson Productions, Inc. v. Rysher Entertainment

I. INTRODUCTION

Defendants, Rysher Entertainment, LLC, 2929 Entertainment, LP, and Qualia Capital, LLC, appeal from a judgment entered in favor of plaintiff, Don Johnson Productions, Inc. On December 7, 1994, plaintiff and Rysher Entertainment, LLC, entered into a contract for the services of an actor, Don Johnson. Entitled the “Term Agreement” (the contract), it provided for production of the Nash Bridges television series (the series). In the published portion of this opinion, we address defendants’ contention that a tolling agreement is governed by Code of Civil Procedure 1 section 360.5. As will be discussed, section 360.5 has a requirement that a waiver of the statute of limitations be renewed every four years. Defendants argue an agreement to toll the statute of limitations is governed by the section 360.5 requirement that it be renewed every four years. We conclude the agreement to toll the statute of limitations in this case is not subject to section 360.5. In the unpublished portion of the opinion, we will explain why we modify the damage award and dismiss plaintiff’s cross-appeal.

II. FIRST AMENDED COMPLAINT

On November 1, 1994, CBS Television and plaintiff…

I respectfully dissent.

A. Tolling Agreement

Defendant asserts that the Code of Civil Procedure section 360.5 1 renewal requirement applies to the “tolling agreement” between the parties, and therefore plaintiff’s claim is untimely and barred by the statute of limitations. (§ 337.) The apparent purpose of section 360.5 was to prevent creditors from extracting perpetual waivers of the statute of limitations and thereby emasculating the defense of the statute of limitations. (See California First Bank v. Braden (1989) 216 Cal.App.3d 672, 677 [ 264 Cal.Rptr. 820 ].) Moreover, such agreements would be contrary to the public interest in preventing stale claims. (See Addison v. State of California (1978) 21 Cal.3d 313, 317 [ 146 Cal.Rptr. 224 , 578 P.2d 941 ].) The same policy principles apply to agreements whether labeled as waivers of, or as tolling of, the statute of limitations.

A comment in the Stanford Law Review shortly after the enactment of section 360.5, stated as follows: “More likely ‘waiver’ was included in the first part of [section 360.5] as a generic term to prevent evasion of the *932 section. It would then include acknowledgements, promises, and all other things…