12:24pm PT by Eriq Gardner
Adam Carolla Headed to Trial Over Podcast Enterprise
A Los Angeles Superior Court judge ruled on Friday that a trial is necessary to determine whether Adam Carolla broke an agreement with an ex-friend over his super-popular podcast.
The comedian and Fox News contributor is being sued by his former producer Donny Misraje, who claims to have convinced Carolla to try podcasting in 2009 after his syndicated radio talk show for CBS was canceled. The Adam Carolla Show became a hit -- called the "most downloaded podcast" in the world -- and Misraje says that he has an agreement for 30 percent of ownership. In 2011, Carolla allegedly became "increasingly dictatorial and threatening," and after disputes over authority, Misraje was ousted.
Now, Misraje and another former colleague, Sandy Ganz, are in court in an attempt to gain restitution.
The essential question of the dispute is how to properly characterize the business relationship between Carolla and Misraje. Was it a partnership? Misraje believes so. His lawyers say that Carolla has repeatedly used that word, and when the relationship between the two men soured, Carolla wrote an email to Misraje stating that "steps must be taken to dismantle this partnership." In the deposition in the case, Carolla was asked whether he had referred to Misraje as his partner, and Carolla answered, "I'm sure I said that, yes."
Or was it an employer-employee relationship? Carolla believes so. He is not denying that Misraje may be entitled to profit participation. "But the admission that profit participation is owed is not the same as an admission that there was a legally-binding partnership," say Carolla's legal papers.
And so what's the real difference between Misraje being Carolla's partner and him being Carolla's employee with a profit-participation interest?
"This may invite the question of what exactly it is that the parties are fighting over," say Misraje's legal papers. "To Carolla's way of thinking -- or, more accurately, his way of thinking shaped by the advice of his talent lawyer and talent agent -- Misraje and Ganz should be considered mere 'profit participants' in the business, not owners, and therefore he should have no duty to buy out their interest in the business after they were pushed out."
Enter the judge.
Carolla attempted to defeat the lawsuit on summary judgment.
Paul Marks, his attorney, argued that the employment claims should fail because Misraje and Ganz don't really see themselves as employees. But Los Angeles Superior Court Judge Michael Johnson says that it's one of two alternative theories and that it's a triable issue.
As for the alleged partnership, Carolla's lawyer argues that while his client might have used the word "partnership," the relationship arises from an oral agreement that lacks definiteness on its partnership terms.
In a tentative opinion that was adopted after a hearing on Friday morning, Judge Johnson responds, "While the question of whether a partnership exists is to be determined from the nature of the relation agreed upon rather than the name which the parties have given to it, some weight must be given to the language of the parties themselves."
And there's a bit more to send it to trial:
"Plaintiffs have presented evidence that Carolla often referred to his relationship with Misraje as a partnership (sometimes very specifically referring to its date of formation and the addition of Ganz as a partner); and that Plaintiffs shared in partnership profits, contributed to the partnership, and helped to manage the partnership. This evidence raises triable issues of fact."
And so, barring a settlement, Carolla is headed to trial.
"The judge got it right," says Gregory Doll, the attorney for Misraje and Ganz. "A jury should decide this case. If we can't resolve this dispute informally with Mr. Carolla, we look forward to presenting our case to a jury in July."