Filed 6/6/16 Albright v. DarbeeVision,Inc. CA4/3

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RUSSELL ALBRIGHT et al.,

 Plaintiffs and Appellants,

v.

DARBEEVISION, INC., et al.,

 Defendants and Respondents.

 G051079

 (Super. Ct. No. 30-2012-00586110)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Geoffrey 

T. Glass, Judge. Affirmed.

Law Offices of Benjamin G. Ramm and Benjamin G. Ramm for Plaintiffs 

and Appellants.

Werner Law Firm and Lee G. Werner for Defendants and Respondents.

* * *
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Plaintiffs’ Russell Albright and R.E. Albright, LLC (REA) (collectively, 

plaintiffs) first amended complaint against Defendants DarbeeVision, Inc. (DVI), Paul 

Darbee, Larry Pace, and William Heatley (collectively, defendants) alleged Albright 

entered into a stock purchase agreement with DVI. The complaint alleged eight causes of 

action. The fifth cause of action for an injunction was the only cause of action against 

Pace and Heatley. The remaining causes of action for specific performance, conversion,

injunctions, declaratory relief, intentional misrepresentation, fraud and deceit, were

alleged against DVI and Darbee or Darbee alone. After a court trial, the superior court 

found in favor of defendants. The court found there was no consideration for the stock 

purchase agreement and no meeting of the minds between the parties, as evidenced by 

Albright’s refusal to sign DVI’s Corporations Code section 25102, subdivision (f),

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acknowledgement or a noncompetition agreement, which DVI made a condition to the 

issuance of stock. Plaintiffs contend the judgment should be reversed because the stock 

purchase agreement signed by Albright was a contract. We agree there was no 

consideration for the stock purchase agreement. (Passante v. McWilliam (1997) 53 

Cal.App.4th 1240, 1247 [promise to issue stock to plaintiff for prior efforts lacked 

consideration].) We therefore affirm.

I

FACTS

The following facts are sufficient for the issue presented on appeal, i.e., 

whether the stock purchase agreement was an enforceable contract. In August 2005, 

REA entered into an option agreement with Darbee to purchase DarbeeVision 

Technology. DarbeeVision is a process whereby a picture’s clarity and depth are 

enhanced. The process was used on the movie Gosford Park. In that application, the 

 

1 All undesignated statutory references are to the Corporations Code.
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film was turned into a digital format, DarbeeVision Technology was applied and the 

digital version was turned back into film. To do so, however, was a lengthy and 

expensive process. Because it could not run in real time—i.e., having the appearance of 

happening instantaneously with filming—it was not suitable for a large portion of the 

marketplace.

The option agreement gave REA a six-month option to purchase 

DarbeeVision Technology for $2 million. Albright signed the option agreement on 

behalf of REA. The option period was extended for 18 months in April 2006, and 

another 18-month option period commencing in April 2008. The option period ended in 

May 2009, without REA exercising the option.

During the period of time REA held the option, it attempted to develop and 

market DarbeeVision Technology. In September 2005, REA hired Pace as an 

independent sales representative to attempt to find a buyer for the Technology. Pace 

signed a confidentiality and noncircumvent agreement with REA. Contact was made 

with people in the movie industry. Meetings were held with people from a number of 

companies, including Skywalker Productions, Google, Adobe, Dreamworks, Samsung, 

and Apple.

REA also hired Heatley, a computer science major at Chapman University

to attempt to have DarbeeVision Technology work on a real-time platform. Heatley also 

signed a confidentiality and noncircumvent agreement with REA. During the option 

period, Heatley worked on the development of a real-time chip for the product. He kept 

Albright and Pace “up to date with regard to his work on the DarbeeVision Technology.” 

By February 3, 2009, Heatley developed a process that permitted DarbeeVision to run in 

real time, although it still needed modification to permit “chroma tracking” and 

“clipping.” Nine days later, the chroma tracking issue was resolved and Heatley began 

working on the clipping issue. The working relationship between REA and Heatley 

ended in the middle of March 2009.
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In May 2009, Albright sent letters to Pace and Heatley, asking them to 

return to REA “all materials created, developed, or used in the process of creating 

software related to” the venture. The materials were not returned because Darbee, 

Albright, and Pace were in the process of forming a new corporation. It was anticipated 

that Darbee would receive 50 percent of the founders stock, and Pace and Albright would

each receive 25 percent of the founders stock. On August 3, 2009, Albright signed a 

document entitled Stock Purchase Agreement at a meeting he had with Darbee, Pace, and 

Heatley. His was the only signature on the document. According to the document, 

Albright agreed to purchase 500,000 founder’s shares of stock in DVI. The purchase 

price for the shares was: “The substantial time and capital contributions made by . . . 

Albright to promote and benefit DarbeeVision. This shall constitute the entire investment

by . . . Albright to purchase the Founder’s Common Stock of [DVI].” (Italics added.) As 

Albright understood it, he would receive the stock for his prior efforts. The purchase 

agreement further stated: “This Agreement constitutes the sole understanding of parties 

with respect to the subject matter of the Agreement.”

The DVI corporate book and three signed stock certificates were present at 

the meeting. The stock certificates were made out to Darbee for 1 million shares, Pace 

for 500,000 shares, and Albright for 500,000 shares. Although Albright had already 

signed the stock purchase agreement, he took the corporate book and the other documents 

to his office, to have his nonattorney advisor, Frank Zagar, look at them. Zagar had 

drafted each of the option agreements REA had with Darbee.

After Albright signed the stock purchase agreement, he gave Pace the Dell 

computer Albright bought in 2008, for DarbeeVision business. Adobe Photoshop, other 

programs, and all the documentation, faxes, e-mails, and customer databases REA 

generated relating to DarbeeVision Technology were on the computer.

On August 12, 2009, Darbee, Pace, and Albright signed the certificate of 
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organization as the incorporators of DVI. All three became directors of the corporation. 

Darbee became the president and Pace became the secretary and treasurer. A week later, 

Albright sent an e-mail suggesting certain changes to the bylaws and one modification to 

the stock purchase agreement.

Albright was provided with a document entitled “Certificate of 

Representations of Purchaser with Respect to Securities to be Issued under Exemption 

from Qualification provided by . . . Section 25102[, subdivision] (f)” in September 2009. 

(Original capitalization omitted.) The certificate stated the shares in DVI have not been 

registered under the Securities Act of 1933, have been acquired for investment purposes 

only, and may not generally be sold or otherwise transferred without an exemption to the 

act. In September 2009, Albright complained the “[s]ales [c]ontract” prohibits him from 

selling his shares “regardless of the Securities Acts of California,” and that he wanted the 

contract language changed. He also complained that indemnification was limited to the 

period of time the individual is a director in the corporation, and he thought 

indemnification “should go on indefinitely.”

Albright discussed with Zagar about the certificate sent to him by DVI. He 

was concerned that it restricted his ability to sell the stock and that the certificate 

contained language not found in section 25102, subdivision (f). Albright never signed 

the certificate.

In September 2009, Albright received a letter from DVI advising him that 

shares in the corporation could not be issued to him until he signed the certificate 

recognizing the Corporations Code restriction on the sale or transfer of the stock. On 

September 18, 2009, DVI’s corporate counsel, Bertrand Cottle, wrote to Albright stating 

that Darbee and Pace have learned that Albright had been “blind copying internal 

corporate communications, as well as attorney-client communications, to third parties,”

and that it was necessary for him to sign and return a nondisclosure agreement. Nearly a 
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month later, Albright wrote to Cottle stating, among other things: that the stock purchase 

agreement stated nothing about his having to sign a certificate of purchaser, signing a 

nondisclosure agreement, or signing a noncompetition agreement; that he would no 

longer act as a director in DVI; and that he considered the stock purchase agreement 

binding. Albright also stated the decision not to participate as a director was made as a 

result of Zagar’s advice. Albright also requested that he be provided with his DVI 

“‘Founders’ Stock Certificates.”

Cottle wrote to Albright two days later, informing him DVI accepted his 

decision not to serve as a director and that the shares of stock would be issued to him, but 

only after he signed the section 25102, subdivision (f) statement as Darbee and Pace had 

done. Albright did not sign the section 25102, subdivision (f) advisement, and in the 

middle of December 2009, Cottle again wrote to Albright. The letter stated that 

Albright’s refusal to sign the advisement could only be interpreted as evidencing his 

intent not to participate as a shareholder in DVI. The letter informed Albright that if he 

did not sign and return the advisement within 15 days, the offer to issue him stock in DVI 

would be withdrawn.

Albright did not sign and return the advisement. On Janaury18, 2010, more 

than a month after the letter was sent setting forth the 15-day time limit, Albright emailed Cottle that he had concerns he wanted addressed by DVI before he would sign. 

Three days later, Cottle responded by letter, notifying Albright “the offer of shareholder 

participation remains withdrawn.” Shortly thereafter, the Dell computer Albright had 

provided DVI was returned, everything on the computer having to do with the work REA

did while he held the option to purchase the DarbeeVision Technology had been 

removed.
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II

DISCUSSION

Before delving into the matter of whether Albright had an enforceable 

contract with DVI, we note appellants’ brief does not claim REA was harmed in any way 

by the complained of actions in this matter. As to REA, we find no error below and 

affirm the judgment. The only issue addressed in the appellant’s opening brief was 

whether the stock purchase agreement was an enforceable contract.

“Where the existence of a contract is at issue and the evidence is conflicting 

or admits of more than one inference, it is for the trier of fact to determine whether the 

contract actually existed. But if the material facts are certain or undisputed, the existence 

of a contract is a question for the court to decide. [Citation.]” (Bustamante v. Intuit, Inc.

(2006) 141 Cal.App.4th 199, 208.)

The stock purchase agreement set forth Albright’s consideration for the 

purchase of the stock: “The substantial time and capital contributions made by . . . 

Albright to promote and benefit DarbeeVision. This shall constitute the entire investment 

by . . . Albright to purchase the Founder’s Common Stock of [DVI].” The last provision 

of the stock purchase agreement stated the “Agreement constitutes the sole understanding 

of parties with respect to the subject matter of the Agreement.” Albright admitted that as 

he understood it, he was to receive the stock for his prior efforts.

For a contract to be valid and enforceable, the parties must be capable of 

contracting, the contract must have a lawful object, the parties must consent to the 

contract, and there must be consideration provided by each party. (Civ. Code, § 1550.) 

Consideration is sufficient to support the contract if it consists of “[a]ny benefit 

conferred, or agreed to be conferred, upon the promisor, by any other person, to which 

the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, 

by such person, other than such as he is at the time of consent lawfully bound to suffer, as 

an inducement to the promisor . . . .” (Civ. Code, § 1605.)
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“‘A contract is . . . an exchange of promises.’ [Citation.]” (Orcilla v. Big 

Sur, Inc. (2016) 244 Cal.App.4th 982, 1005.) In the present case, DVI promised to give 

Albright 500,000 shares of stock. Albright’s counsel argued Albright’s consideration for 

the stock consisted of the substantial time and capital contributions he previously made to 

promote and benefit DarbeeVision, as was stated in the stock purchase agreement. 

Counsel conceded he could not assert Albright’s time and capital contributions were 

made in anticipation of Albright receiving stock for in exchange for them. He was 

correct. The purchase price for the promise of stock was Albright’s past investment of 

time and capital contributions made when his limited liability corporation, REA, held an 

option to purchase DarbeeVision Technology.

The trial court found Albright’s actions prior to the stock purchase 

agreement provided no consideration for a sale of stock. The court was correct. What 

Albright purported to exchange for the stock had already been performed. Consequently, 

DVI received no bargained for consideration in exchange for its promise of stock. “Past 

consideration cannot support a contract. [Citation.]” (Passante v. McWilliam, 53 

Cal.App.4th at p. 1247 [promise to issue stock to plaintiff for prior efforts lacked 

consideration].)

In Passante v. McWilliam, supra, 53 Cal.App.4th at page 1242, an opinion

penned by the late Justice Sills, the plaintiff obtained funding for the Upper Deck 

Company, “a rookie baseball card company.” The company desperately needed 

$100,000 to purchase the paper product necessary to produce its baseball cards. The 

company’s attorney arranged the funding by having his partner’s brother lend the 

company the money. (Ibid.) After he had done so, the directors were so grateful they 

agreed to give the attorney 3 percent of the company’s stock. The board later reneged on 

their promise and the attorney sued. (Ibid.) Another panel of this court found the 

attorney had not provided bargained for consideration in exchange for the issuance of 
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stock (id. at pp. 1247-1248), characterizing the promise to issue the stock as an “inchoate 

gift of stock” (id. at p. 1242).

2 Passante v. McWilliam is directly on point: the stock 

purchase agreement in this matter was not supported by any consideration on Albright’s 

part.

Albright’s counsel also argued to the trial court that Albright “turned over”

to DVI the $10,000 Dell computer that had on its hard drive all the client contacts and 

work that had been done on DarbyVision while REA held the option to buy 

DarbeeVision Technology, including all of Pace’s work product. While it is true 

Albright gave the computer to DVI3 and provided DVI with two Web sites, the stock 

purchase agreement says nothing about Albright having any obligation to furnish those 

items to DVI, and as Albright’s counsel repeatedly urged, the stock purchase agreement 

stated that it was the complete agreement between the parties. Albright’s unbargained for 

action performed after he signed the stock purchase agreement cannot supply the missing 

consideration.

The trial court also found an alternative basis for finding in favor of 

defendants. However, because we found the purchase stock agreement lacked 

consideration on Albright’s part and is unenforceable, there is no need to review further 

findings by the trial court.

 

2 Albright has not proceeded on a theory that the stock was a gift for his 

past acts and that the stock was actually or symbolically delivered. (See Passante v. 

McWilliam, supra, 53 Cal.App.4th at p. 1249, fn. 7.)

3 The computer was returned to Albright when he refused to sign the 

confidentiality agreement and the Corporations Code notice regarding the nature of the 

unregistered stock.
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III

DISPOSITION

The judgment is affirmed. Defendants are entitled to their costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.