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LAW OFFICES OF RONALD JASON PALMIERI
Ronald Jason Palmieri, State Bar #96953
Robert P. Wargo, State Bar #175177
lilLEJJ
LO!; ~ t\Jr.P'F~ ~J1lF.I?'OR COURT
911 Linda Flora Drive
3 Los Angeles, California 90049 SEP 1 0 2001
Tel: (310) 471-1881
4 Fax: (310) 471-3511 JOhN~g)~~CLEAK

5 qV M I=~DEPUTY
Attorneys for Defendants Cirgadyne, Inc.; ABC Escrow;
6 Craig A. Block and Cindy Block
7

8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF LOS ANGELES
10
11 MARCIA J. HOLTZMAN, an individual) CASE NO.: BC254506
)
12 Plaintiff, ) REPLY TO OPPOSITION TO DEMURRER TO
) COMPLAINT; MEMORANDUM OF POINTS
13 vs. ) AND AUTHORITIES
)
14 CIRGADYNE, INC., et a1.
) Date: September 20, 2001
) Time: 8:30 AM
15 Defendants ) Dept.: 32
______________ ) Hon. William Highberger
16
Complaint Filed: July 20, 2001
17
18 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
19 COME NOW DEFENDANTS Cirgadyne, Inc.; ABC Escrow; Craig A. Block; and Cindy
20 Block and hereby Reply to Plaintiffs Opposition to Defendants' demur to both causes of action
21 contained in the Complaint filed herein.
22 Respectfully submitted.
23 Date: September 7, 2001 LAW 0 FFlC"""''''i-'
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REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT

ORIGINAL
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MEMORANDUM OF POINTS AND AUTHORITIES
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2 I.

3 INTRODUCTION

4 The Opposition to the Demurrer is nothing more than a vitriolic attack by a bitter woman

5 who is the disgruntled Aunt of Defendants' Craig and Cindy Block and the mother of James

6 Yaker, a former business associate of Defendant Cirgadyne whose business relationship was

7 recently terminated due to his failure to perform his duties in a business like fashion. In fact, if

8 the allegations in the Complaint have any merit at all, which they do not, the wrongdoing, if any,

9 was the creation and scheme of Plaintiff, Marcia Holtzman's, son, James Yaker, who Plaintiff has

10 conveniently sought not to sue in the instant action.

II In truth and fact, Defendants have done nothing improper, and Plaintiffs sole motive is a

12 veiled threat at economic blackmail, through the guise of the litigation privilege, while defaming

13 her nephew and niece, while her son has entered a business in direct competition with them,

14 apparently immune from her scathing lies.

15 That said, the Opposition, for the most part, is mere boiler plate regurgitation of black

16 letter law relating to Demurrers and fails to analyze or refute the fatal fundamental flaws which

17 mandate, as a matter of law, that the Demurrers be sustained.

18 II.

19 SUMMARY OF UNDISPUTED RELEVANT ALLEGATIONS

20 On July 21, 2001, Plaintiff Marcia J. Holtzman filed her two count Complaint for

21 Invasion of Privacy Under Common Law and Invasion of Privacy Under Civil Code §3344

22 against Cirgadyne, Inc.; ABC Escrow; Craig A. Block; and Cindy Block, among others.

23 However, Plaintiff has failed to allege sufficient facts to constitute either of these causes of

24 a~rion against any Defendant to this action. Accordingly, the court should sustain moving

25 p~ies' demurrers to each cause of action of the Complaint without leave to amend.
t
26 i\ i Plaintiff does not deny the Summary of Relevant Allegations Defendants' cite in their
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27 q'tmurrer and, in fact, incorporates them in her Opposition. (See Opposition, Paragraph Number
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28 I~at page 2, lines 25-27). As such, it is on these allegations and the relevant law that the
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REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT
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Demurrer must be decided and not Plaintiffs extrapolation of unplead allegations or argument.
2 Based thereon, the Demurrer must, as a matter of law, be sustained or this Court will merely be
3 creating new law in the State of California.
4 Plaintiff alleges that Defendants Craig and Cindy Block are the sole officers, directors
5 and/or shareholders of Defendants Cirgadyne, Inc., and ABC Escrow (Complaint, ~I3).
6 Cirgadyne, Inc., is in the business of finding, for individuals and businesses who are interested n
7 selling and/or purchasing alcoholic beverage licenses and providing consulting services to those
8 who acquire assistance in preparing, completing and/or submitting the required documentation to
9 the California Department of Alcoholic Beverage Control in connection with the purchase of new
10 alcoholic beverage licenses, or the sale, purchase and transfer of existing alcoholic beverage
II licenses (~2). ABC Escrow is in the business of acting as an escrow agent for the private sale
12 and purchase of alcoholic beverage licenses issued by the California Department of Alcoholic
13 Beverage Control (~3).

14 Plaintiff alleges that Defendant Cirgadyne assessed its clients a finder's fee for its
15 involvement in the purchase and/or sale of alcoholic beverage licenses on behalf of its clients and
16 that in some of its transactions, other persons and/or business entities acted as independent third
17 party finders on behalf of sellers and/or purchasers of alcoholic beverage licenses that were either
18 being purchased by or sold to clients of Cirgadyne. In such instances, Plaintiff alleges, both
19 Cirgadyne and the third party finder would charge their respective clients an applicable finder's
20 fee ranging between $1,500 and $5,000, and the escrow instructions sent to ABC Escrow, when
21 said entity was acting as the escrow agent, would direct ABC Escrow to remit to both Defendant
22 Cirgadyne and the specified third party finder an applicable finder's fee from the purchase price
23 being paid for the license (~~4, 5).
24 Plaintiff alleges that between 1993 and up to and including December 2000, Defendants
25 qtgadyne; ABC Escrow; Craig Block; Cindy Block; Louis Cano, Jr. (who Plaintiff alleges was a
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26 f~der employed by Cirgadyne [~8]); Amy Kwak (who Plaintiff alleges was an escrow officer
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27 ewployed by ABC Escrow [~9]) and Kimberly Abels (who Plaintiff alleges also was an escrow
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28 officer employed by ABC Escrow [~9]), and each of them, "knowingly and intentionally
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REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT
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participated in continuing series of escrow transactions wherein Plaintiffs name, signature and

2 identity were used without Plaintiffs knowledge, consent and authorization in the purported
3 capacity of an independent third party finder by the foregoing defendants solely for the purpose

4 of creating a fictitious, false and non-existent finder to charge and collect a fictitious and false
5 finder's fee from the seller and purchaser involved in alcoholic beverage license sale and

6 purchase transactions being escrowed by Defendant Cirgadyne at Defendant Escrow" (~I 0).

7 Plaintiff further alleges that Defendants, and each of them, "signed and endorsed Plaintiff s name

8 to payment checks for the foregoing finder's fees without Plaintiffs knowledge, consent or

9 authorization, and then negotiated said checks for said defendants' own financial benefit and
10 gain" (~18).

II Plaintiff seeks damages for the "shock, emotional trauma and diminution in value of her
12 name, signature and identity by the defendants' unauthorized, unlawful, fraudulent and deceitful

13 scheme" alleged hereinabove (~20).

14 III.
15 PLAINTIFF'S OPPOSITION IS BASICALLY BOILER PLATE CITATIONS WITHOUT
ANY RELEVANCE TO THE INSTANT DEMURRER
16

17 Plaintiffs Opposition, for the most part, is basically boiler plate citations to the standard

18 by which a Court should rule upon a Demurrer. The Opposition's numbered paragraphs 3, 4, 5, 6,
19 7, 8, and 9, merely explain the standard of proof and Paragraphs 10, 11, 12, 13, 1415, 16" 17,

20 and 18 merely cite general propositions as to an individual's right to privacy, while paragraphs 19

21 and 20 halfheartedly attempt to apply general law to Plaintiffs Complaint. The only cases cited

22 to this Honorable Court, without application to the relevant allegations ofthe Complaint, Hill v.
23 National Collegiate Athletic Assn. (1994) 7 Ca1.4th I and the 1955 case of Fairfield v. American

24 .,
Photograph, etc. Co (1955) 138 Cal.App.2d 82. Neither ofthese cases support Plaintiffs

25 O~position to the Demurrer and, in fact, establish the Demurrer should be sustained, as a matter

26 o~taw.
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REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT
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Plaintiff's sole attempt at analysis of the law with the current Demurrer is found in

2 number paragraphs 21, 22 and 23 of the Opposition and does not overcome the compelling

3 analysis ofthe legal precedent and analysis contained in the Demurrer of set forth below.

4 ~

5 PLAINTIFF'S OPPOSITION CANNOT DENY THAT PLAINTIFF HAD FAILED TO

PLEAD SUFFICIENT FACTS TO STATE ANY CAUSE OF ACTION AGAINST
6 DEFENDANTS AND THE DEMURRER MUST BE SUSTAINED

7 Code of Civil Procedure §430.1 0 states, in relevant part:

8 "The party against whom a complaint or cross-complaint has been filed may object by
demurrer ... to the pleading on anyone or more of the following grounds: .
9 (e) the pleading does not state facts sufficient to constitute a cause of action "

10
A. Plaintiffs Have Failed to State a Cause of Action for Invasion of Privacy under
11 Common Law (First Cause of Action) against Defendants

12 The elements of a common law cause of action for misappropriation of name or likeness

13 may be pleaded by alleging "(I) the defendant's use of the plaintiff's identity; (2) the

14 appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise;

15 (3) lack of consent; and (4) resulting injury." Slivinskv v. Watkins-Johnson Co. (1990) 221

16 Cal.App.3d 799,807.

17 Plaintiff's Opposition fails to address or deny the controlling law that: "[w]hether a

18 legally recognized privacy interest is present in a given case is a question of law to be decided by

19 the court [citations omitted]. Whether plaintiff has a reasonable expectation of privacy in the

20 circumstances and whether defendant's conduct constitutes a serious invasion of privacy are

21 mixed questions of law and fact. If the undisputed material facts show no reasonable expectation

22 of privacy or an insubstantial impact on privacy interests, the question of invasion may be

23 adjudicated as a matter of law." Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1,

24 40. The facts alleged by Plaintiff, even if accepted as true by the Court, as it must for the
j: ,

25 plll1POSeS of this demurrer, do not demonstrate that there has been any substantial impact on
q

26 P~ntiffs privacy interests. Thus, it is appropriate for the Court to adjudicate on this cause of
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27 a~von, as a matter of law, in Defendants' favor.

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REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT
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Defendants' research has failed to reveal any California case where the mere use of a
2 person's name in the context of a private financial transaction gives rise to a cause of action for
3 Invasion of Privacy under Common Law. Plaintiffs Opposition fails to include any case where
4 such a finding was made. DOES PLAINTIFF INTEND THAT THIS COURT CREATE
5 NEW LAW ON THIS FATALLY FLAWED COMPLAINT? Indeed, recovery under the

6 common law cause of action for misappropriation of name or likeness has been limited to
7 situations where there has been a publication or utilization of a plaintiff's name or likeness
8 before the general public. For example, in Fairfield v. American Photocopy Co. (1955) 138
9 Cal.App.2d 82, 87, the Court held that the plaintiff alleged a valid common law cause of action
10 against a photocopy manufacturer who used plaintiff's name in an advertisement that incorrectly
II state that the plaintiff and other named persons were satisfied customers of the defendant.
12 In Stilson v. Reader's Digest Ass'n (1972) 28 Cal.App.3d 270, 272-273, the Court held
13 that a magazine improperly had used plaintiffs' names to its own advantage by using them in
14 letters to solicit the neighbors of the plaintiffs to participate in a sweepstakes designed to
15 promote subscriptions.
16 In both Midler v. Ford Motor Co. (9th Cir. 1988) 849 F.2d 460,463, and Waits v. Frito
17 Lay (9th Cir. 1992) 978 F.2d 1093, 1098-1103, the Ninth Circuit held that the plaintiffs in the
18 respective cases, singers Bette Midler and Tom Waits, had alleged valid common law causes of
19 action for misappropriation of identity against the corporate defendants for their use of singers
20 sounding like the famous plaintiffs in television commercials.
21 However, in the present action, Plaintiffs Opposition does not deny that Plaintiff fails to
22 allege that Defendants utilized her name in any way before the general public in order to induce
23 others to enter into a financial transaction which would benefit Defendants. Plaintiffs
24 Opposition further does not deny that Plaintiff has alleged no facts to suggest that the purchasers
~:.

25 o~. rellers of alcoholic beverage licenses who became involved in transactions with Defendants
26 C~gadyne or ABC Escrow did ~o because they became aware that "Marcia Holtzman" allegedly
27 wAs a third party finder in the transaction. Rather, other than the allegation that some name was
28 mkd as a means allegedly to obtain a larger profit from the transaction, the Plaintiffs Opposition
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REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT
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does not deny that the name "Marcia Holtzman" was wholly irrelevant to the overall transactions

2 themselves, and Defendants apparently could have selected or concocted any name at random, in

3 order to accomplish the purported same ends alleged by Plaintiff. Moreover, Plaintiff fails to

4 plead any facts concerning any other aspect of her identity to suggest that Defendants allegedly

5 were misappropriating HER identity as opposed to the identity of some other person named

6 "Marcia Holtzman" or Defendants disclosed any other identifying characteristics about Plaintiff

7 to any of the parties to the financial transactions alleged in the Complaint such that any of these

8 parties could connect Plaintiff, a woman the parties to the transactions apparently never met or

9 heard of prior to the transaction, with the name "Marcia Holtzman" which may have appeared in

10 some documentation relevant to the transaction.

II All of these fatal defects in Plaintiffs Complaint are not denied, not analyzed and go

12 unrefuted in Plaintiffs Opposition. Accordingly, even accepting Plaintiffs' alleged facts as true,

13 the alleged use of Plaintiff s name in the financial transactions alleged in the Complaint clearly

14 had no substantial impact on Plaintiffs privacy interests. Thus, Plaintiff has not alleged

IS sufficient facts to constitute a cause of action for Invasion of Privacy under Common Law, and

16 the Court should sustain the demurrer this cause of action without leave to amend.
17
B. Plaintiffs Have Failed to State a Cause of Action for Invasion of Privacy under Civil
18 Code §3344 (Second Cause of Action) against Defendants

19 Once again, Plaintiffs Opposition to the Demurrer fails to cite this Honorable Court to

20 one case supporting her theory or permitting this Court to allow her Second Cause of Action to

21 go forward. She does not deny the limitations of Civil Code Section 3344 and, more importantly,

22 does not deny that she cannot allege that her name was used for advertising or solicitation
23 purposes.

24 It is undisputed by Plaintiff that the law is clear that a person or entity may be liable for

25 c~punercial misappropriation if it "knowingly uses another's name, voice, signature, photograph

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of ikeness in any manner, on or in products, merchandise, or goods or for purposes of
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27 ailJvertising or selling, or soliciting purchases of products, merchandise, good or services, without
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28 s*ch person's prior consent." Civil Code §3344(a). Courts of this state have emphasized that in
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order to plead a cause of action under this statute, "there must also be an allegation of a knowing
2 use of the plaintiffs name ... for purposes of advertising or solicitation of purchases." Slivinsky
3 v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799,807. (Emphasis added).
4 Plaintiffs Opposition does not deny that this is controlling law, nor does she deny that no
5 such allegation has been, or could be, made by her in her Complaint. As set forth above, Plaintiff
6 merely alleges that Defendants used her name, signature and identity "in the purported capacity
7 of an independent third party finder ... for the purpose of creating a fictitious, false and non-
8 existent finder to charge and collect a fictitious and false finder's fee from the seller and
9 purchaser involved in alcoholic beverage license sale and purchase transaction being escrowed
10 by Defendant Cirgadyne and Defendant Escrow." (Complaint, ~1O). The Complaint contains no
11 allegations that any Defendant used Plaintiff's signature for purposes of advertising or
12 solicitation of purchases. DOES PLAINTIFF INTEND THAT THIS COURT CREATE
13 NEW LAW ON THIS FATALLY FLAWED COMPLAINT? Accordingly, there can be no
14 doubt that Plaintiff has failed to state a cause of action for Invasion of Privacy Under Civil Code
15 §3344, and the Court should sustain the demurrer thereto without leave to amend, as Plaintiff
16 will be unable to amend this cause of action, even with the addition of more facts, to state such a
17 cause of action.
18 V.
19 CONCLUSION
20 As stated above, the Opposition to the Demurrer is nothing more than a vitriolic attack by
21 a bitter woman who is the disgruntled Aunt of Defendants' Craig and Cindy Block and the
22 mother of a former business associate of Defendant Cirgadyne whose business relationship was
23 recently terminated due to his failure to perform his duties in a business like fashion. In fact, if
24 the allegations in the Complaint have any merit at all, which they do not, the wrongdoing, if any,
~: I

25 WiU the creation and scheme of Plaintiff, Marcia Holtzman's, son, James Yaker, who Plaintiff has
'I
26 c~veniently sought not to sue in the instant action.
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27 ;\ In truth and fact, Defendants have done nothing improper, and Plaintiffs sole motive is a
28 I threat at economic blackmail, through the guise of the litigation privilege, while defaming
velled
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REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT
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her nephew and niece, while her son has entered a business in direct competition with them,

2 apparently immune from her scathing lies.

3 As demonstrated above, Plaintiff has failed to state sufficient facts to state either of her

4 causes of action against any Defendant to this action. As Plaintiff will be unable to amend her

5 Complaint by adding additional allegations in order to state these two causes of action, the Court

6 should sustain these demurrers, without leave to amend.

7 Dated: September 7, 2001 Respectfully submitted,

8 NPALMIERl

9
10 By:{' .~~~~~-!::::::--
'=' mien
11 efendants Cirgadyne, Inc.; ABC
A. Block; and Cindy Block
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REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT
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• PROOF OF SERVICE
•
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,

3 I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 911 Linda Flora Drive, Los Angeles,
4 CA 90049.

5 On September 7, 2001, I served the following documents described as REPLY TO

OPPOSITION TO DEMURRER TO COMPLAINT on the interested parties in this action by as
6 follows:

7 Lawrence M. Adelman, Esq.

Law Offices of Lawrence M. Adelman
8 5850 Canoga Avenue #400
Woodland Hills, CA 91367-6554
9 FAX: 818/710-3844

10
BY MAIL
11 As follows: "I am readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Under that practice, it would be deposited with the U.S.
12 Postal Service on that same day with postage thereon fully prepaid at Los Angeles,
California, in the ordinary course of business. I am aware that on motion of the party
13 served, service is presumed invalid ifthe postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.
14
BY FACSIMILE
15 I faxed copies of such document listed above to the persons whose name, address and
facsimile number appears above.
16
BY PERSONAL SERVICE
17 I caused such envelope to be delivered by hand to the individual(s) whose name(s)
appear(s) above.
18
Executed on September 7, 2001, at Los Angeles, California.
19
l (STATE) I declare under penalty of perjury under the laws of the State of California that
20 the foregoing is true and correct.

21 (FEDERAL) I declare under penalty of perjury under the

America that the foregoing is true and corre .
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REPLY TO OPPOSITION TO DEMURRER TO COMPLAINT