SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEPT. WEO

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

C/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR

NONE

Reporter

Plaintiff
Counsel

HOWARD SCOTT KING

NO APPEARANCES

VS

TOMMY LEE ET.

Defendant
Counsel

AL.

NATURE OF PROCEEDINGS;
RULING ON SUBMITTED MATTER (MOTION OF DEFENDANTS
MOTLEY CRUE, INC., MOTLEY CRUE TOURING, INC., AND
TOMMY LEE FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION, TAKEN UNDER
SUBMISSION ON 12-19-13)
The Court rules on the above referenced submitted
matter as follows:
Defendants MSJ is GRANTED.
Defendants establish
that (1) Plaintiffs idea was not a trade secret as
he failed take reasonable steps to maintain
confidentiality, including handing the idea over to
Lee, the proposed purchaser, without securing an NDA
or any promise not to use the idea without
compensation; (2) the drum ring was independently
developed, as the developers did not have access to
Plaintiffs plan, nor were the persons with access
involved in developing the drum ring; and (3)
Plaintiff did not in fact submit the proposal to
Defendants.
See SSUNF Nos. 37-38, 41-43, 51-52,
73-82, 86-88, 117-120.
Plaintiff submits evidence
raising an issue of fact as to whether Fisher and
Thaler met with him regarding the idea, but he fails
to present any evidence challenging Defendants
showing of independent development or the absence of
reasonable attempts to maintain confidentiality.
ANALYSIS:

Defendant Motley Crue moves for summary

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DEPT.

WEO

MINUTES ENTERED
12/20/13
COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES

DATE

12/20/13

HONORABLE

LISA HART COLE

JUDGE

HONORABLE

DEPT

N. LEE
S. MIXON,

WED

DEPUTY CLERK

C/A

JUDGE PRO TEM

ELECTRONIC RECORDING MONITOR

ON

ffN
ePu

27

185

Counsel

HOWARD SCOTT KING

VS
TOMMY LEE ET. AL.

Defendant
Counsej

NO APPEAPCES

NATUPJ OF PROCEEDINGS:
Udgme on the entire Complaint
or in the
dj
e
u
v
j
y
ti
d
ar
a
r
n
m
a
0
r
fo
m
e
of the 1st c/a
su
alt
for misappropriation of trade secrets and 5th c/a
for breach of implied promise
The 1st c/a for
p.
and 5th c/a for breach of implied
misappro
promise are the only remaining causes of action.
Defendant moves for summary udgm and
of each claim on 5
groun that Cl)
adjudicati
Defendant did not have reasOnable P55bility of
access to Kings idea; (2) the drum ring used by
y
Defendants is not substantiall
similar to King;s
Tommy Lee Loop Coaster; (3) the drum ring was
ntly created; (4) there was no
y
independe
OPPortunit
t
c
je
to re
the idea and therefore no implied contract
could arise; (5) the Loop Coaster is not a trade
secret; (6) King did not take reasonable efforts to
maintain the secrecy of his idea; and (7) Defendant
did not misappropriate the idea
Breach of Implied Promise

(Desny Claim)

tIjf the idea Purveyor has Clearly COnditioned his

cblig to pay
ffer to Convey the idea Upon an 0
for it j t is Used by the Offeree and the Offeree
knowing the Condition before he knows the idea
ly accepts its
i
on
voluntari
disclosure (necessarj
d
)
ie
e
th
and finds it valuable and uses
basis
specif
t, the law will either apply the object test an
hold that the parties have made an express
or
(sometimes called implied in f
contract

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EN
3
/1
0
/2
12
LERJ
LYC
&JTES

SUPERIOR COURT OF CAUFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEFr. WEO

LISA HART COLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

C/A

HONORABLE

ELECTRONIC RECORDING MONITOR

NONE

NONE

SC118527

Plaintiff
Counsel

HOWARD SCOTT KING

NO APPEAR]NCES

VS

TOMMY LEE ET.

Reporter

Defendant
Counsel

AL.

NATURE OF PROCEEDINGS:

under those circumstances, as some writers view it,

the law itself, to prevent fraud and unjust
enrichment, will imply a promise to compensate
fJ]
Such inferred or implied promise, if it is to be
found at all, must be based on circumstances which
were known to the producer at and preceding the time
of disclosure of the idea to him and he must
voluntarily accept the disclosure, knowing the
conditions on which it 5 tendered.
Desny v.
Wilder (1956) 46 Cal.2d 715, 739.
The idea man who blurts out his idea without having
first made his bargain has no one but himself to
blame for the loss of his bargaining power. The law
will not in any event, from demands stated
subsequent to the unconditioned disclosure of an
abstract idea, imply a promise to pay for the idea,
for its use, or for its previous disclosure
The law
will not imply a promise to pay for an idea from the
mere facts that the idea has been conveyed, is
valuable, and has been used for profit; this is true
even though the conveyance has been made with the
hope or expectation that some obligation will
Id.
ensue.
Thus, in order for Plaintiff to recover on his 5th
c/a for breach of implied promise, he must be able
to establish two facts.
First, he must establish
that he submitted the
Loop Coaster idea to
Defendants for sale, or in other words, were
Defendants given access to the idea conditioned upon

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13

DEPT.

WEO

MINUTES ENTERED
12/20/13
COUNTy CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEPT. WEO

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

C/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR

NONE

Reporter

Plaintiff
Counsel

HOWARD SCOTT KING

VS
TOMMY LEE ET. AL.

NO APPEARANCES
Defendant
Counsel

NATURE OF PROCEEDINGS:
payment if used?
Mann v. Columbia Pictures, Inc.
(1982) 128 Cal.App.3d 628, 646.
Second, he must
establish that Defendants actually used his idea.
Id.
Defendants successfully negate the element of
access.
Plaintiff alleges he formally presented the
Loop Coaster to Defendants agents, Rich Fisher and
Doug Thaler, on 11/21/91 after a nondisclosure
agreement was signed by both persons.
See
Complaint, 13.
Defendants establish that (1)
Plaintiff has no evidence of the purported NDA or
any other documentation from Fisher or Thaler
evidencing the meeting on 11/21/91 (SSUMF Nos.
37-38); (2) Thaler never attended any meeting with
Plaintiff, nor did he ever see the Proposal (SSUMF
Nos. 41-43; (3) Fisher could not have attended such
a meeting (SSUMF Nos. 51-52); (4) neither Thaler nor
Fisher were involved in the conceptualization,
design or manufacture of the drum ring; and (5)
the persons involved in the conceptualization,
design or manufacture of the drum ring were
Pearce, Long and White, none of whom had access to
Kings idea or had contact with Thaler or Fisher
regarding the drum ring.
(SSUMF Nos. 73-82,
86-88)
Likewise, Defendants negate the allegation that
Tommy Lee himself ever received Kings proposal.
King claims he left a proposal package with Lees
gate guard at his home.
See SSUMF Nos. 56-63.
Lee

MINUTES ENTERED
Page

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13

DEPT.

WEO

12/20/13
COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEPT. WEO

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

c/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR

NONE
Plaintiff
Counsel

HOWARD SCOTT KING

NO APPEARANCES

VS

TOMMY LEE ET.

Reporter

Defendant
Counsel

AL.

NATURE OF PROCEEDINGS:
allegedly drove to the guard and retrieved the
package.
Id.
Plaintiff did not ask Lee to execute
an NDA prior to turning the package over to him.
Id. at 70.
Lee denies that this meeting ever took
place or that he ever received a package from King.
See Motion, Deci. of Tommy Lee, 6-7.
In opposition, Plaintiff does not dispute that
Fisher and Thaler had nothing to do with the
creation of the drum ring.
See SSUMF No. 88.
For
this reason, whether Fisher and Thaler had access
and whether the 1991 meeting occurred is immaterial.
Even assuming the meeting had occurred and Fisher
and Thaler received the proposal, Plaintiff has no
evidence that Fisher and Thaler ever conveyed
Plaintiffs idea to the persons responsible for
creating the drum ring.
The access inquiry focuses
on whether those persons with access were the
individuals who purportedly independently created
the purportedly misappropriated work.
A reasonable
possibility of access requires a sufficiently strong
nexus between the intermediary to whom the
plaintiffs submitted their work and the creator of
the allegedly offending work.
Spinner v. American
Broadcasting Companies, Inc. (2013) 215 Cal.App.4th
172, 186.
Instead, Plaintiff claims that Lee, 20 years after
purportedly receiving Plaintiffs packet,
proposed
some form of the drum ring based on his memory of
the Plaintiffs Loop Coaster.
See Plaintiffs

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DEPT.

WEO

MINUTES ENTERED
12/20/13
COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEPT. WEO

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

C/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR

NONE

Reporter

Plaintiff
Counsel

HOWARD SCOTT KING

NO APPEARANCES

VS

TOMMY LEE ET.

Defendant

AL.

Counsel

NATURE OF PROCEEDINGS:
Response to SSUMF Nos. 86-87.
However, Plaintiff
admits he did not require Lee to execute an NDA and
merely dropped of the unmarked package without
saying anything to Lee, nor does he have any
evidence that Lee actually looked at the package.
Based on these undisputed facts and as to Lee,
Plaintiff falls within that category of the idea
man who blurts out his idea without having first
made his bargain.
Such facts do not support a
claim for breach of an implied contract.
Moreover, even if Lee had access to Plaintiffs
idea, Plaintiff has no evidence to refute
Defendants assertion that Lee was not involved in
the creation of the drum ring.
See Plaintiffs
Response to SSUMF Nos. 73-82, 86-88.
Pearce, Long
and White detail how they arrived at the idea of a
drum ring through trial and error, initially
proposing an egg yolk idea to the band.
Id.
The
drum ring idea was proposed by Pearce after the band
rejected the egg yolk idea and it was prompted by
the existing circular stage centerpiece and a truss
that Show Group Production Services already had.
See Declaration of E. Pearce, J9-11.
Pearce
suggested the idea.
Id.
Plaintiff has no evidence to refute Defendants
position that the drum ring was created by
independent effort, which is a complete defense to
Plaintiffs 5th c/a.
Mann v. Columbia Pictures,
Inc., supra, 128 Cal.App.3d at 650 (any inference of

Page

6 of

13

DEPT.

WEO

MINUTES ENTERED
12/20/13
COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEPT. WEO

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

c/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR

NONE
Plaintiff
Counsel

HOWARD SCOTT KING

NO APPEARANCES

VS

TOMMY LEE ET.

Reporter

Defendant
Counsel

AL.

NATURE OF PROCEEDINGS:
access and use rebutted by evidence that plaintiff
did not submit her work to Columbia Pictures or of
any contact between the screenplay authors and the
people alleged to have possessed plaintiffs
treatment); Spinner, supra, 215 Cal.App.4th at
184-185.
Plaintiff admits the key facts regarding
the development of the egg yolk idea.
Plaintiffs
only evidence linking Tommy Lee to the development
of the ring is portions of Lees deposition
testimony.
See Plaintiffs response to SSUMF No.
78.
However, the cited portions of Lees deposition do
not establish that Lee was involved in the
conceptualization, design or creation of the drum
ring.
Lee testified that we always sit down and
start designing the next spectacular, U which in
itself does not establish that Lee himself thought
of or proposed the drum ring.
In fact, Lee clearly
and unambiguously testified when asked Q. Who
brought up the concept of using a loop coaster in
the performances? that it was Robert Long who
bought up the concept, Robert Long would be that
guy. Yeah, Robert.
Lees testimony is consistent
with his own declaration and the declarations of
Long, White and Pearce.
See SSUMF No. 81.
According to Defendants, Long took Pearces proposal
for the drum ring back to Motley Crue for approval
or rejection.
Id.
In light of Defendants undisputed showing that the

Page

7 of

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DEPT.

WED

MINUTES ENTERED
12/20/13
COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEPT. WEO

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

C/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR.

NONE

Reporter

Plaintiff
Counsel

HOWARD SCOTT KING

VS
TOMMY LEE ET. AL.

NO APPEARANCES
Defendant
Counsel

NATURE OF PROCEEDINGS:
drum ring was independently created, Plaintiff
cannot avoid summary judgment even if a question of
fact exists regarding whether similarities existed
between the drum ring and the Loop Coaster.
Such
similarities would merely give rise to an inference
of access and use.
Id.
Such an inference would be
dispelled by direct evidence of independent
creation.
Id.
An issue of fact regarding
substantial similarity is not necessarily sufficient
to overcome summary judgment when the defendants
show as a matter of law that they independently
created their product. In an idea submission case,
similarities that do not result from copying are
similarities without legal significance.
Spinner,
supra, 215 Cal.App.4th at 184-185 (defendant ABC
established affirmative defense of independent
creation to plaintiffs breach of implied contract
claim with direct evidence from creators of Lost
series that they did not have access to plaintiffs
script L.O.S.T., nor did they consult with any
persons who may have had access to plaintiffs
script, which was submitted 30 years prior to
creation of Lost series)
With regard to substantial similarity, Defendant
argues that the issue is one of law to be determined
by the Court.
However, applicable California case
law is to the contrary.
Similarity, access, and
use present questions of fact for the jury.
Mann,
supra, 128 Cal.App.3d at 648.
If, as a matter of
law, there is no such similarity, no question of

Page

8 of

13

DEPT.

WEO

MINUTES ENTERED
12/20/13
COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEPT. WED

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

c/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR

NONE

Reporter

Plaintiff
Counsel

HOWARD SCOTT KING

VS
TOMMY LEE ET.

NO APPEARANCES
Defendant

AL.

Counsel

NATURE OF PROCEEDINGS:
fact is in issue and the demurrers to each count of
the complaint were properly sustained. But if, from
a comparison of the two productions, such similarity
reasonably might be found, that issue, and also the
question as to copying, should have been submitted
to the jury for determination.
Weitzenkorn v.
Lesser (1953) 40 Cal.2d 778, 791 (assessing
sufficiency of complaint alleging misappropriation
of literary work).
The Court finds that reasonable
minds could conclude that the drum ring and the
roller coaster are substantially similar and as
such, may not grant summary judgment on this issue.
Defendants reliance upon Kouf v. Walt Disney
Pictures & Television , 16 F.3d 1042, 1045 does not
warrant a different result.
Kouf expressly
acknowledges that when the issue is whether two
works are substantially similar, summary judgment is
appropriate if no reasonable juror could find
substantial similarity of ideas and expression,
viewing the evidence in the light most favorable to
the nonmoving party and [w] here reasonable minds
could differ on a finding of substantial similarity,
summary judgment is improper.
Id. at 1045.
1st c/a for Misappropriation
Misappropriation means:
(1) Acquisition of a
trade secret of another by a person who knows or has
reason to know that the trade secret was acquired by
improper means; or (2) Disclosure or use of a trade

Page

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DEPT.

WEO

MINUTES ENTERED
12/20/13
COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE;

12/20/13

HONORABLE

DEPT. WEO

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

C/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR

NONE

Reporter

Plaintiff
Counsel

HOWARD SCOTT KING

NO APPEARANCES

VS

TOMMY LEE ET.

Defendant

AL.

Counsel

NATURE OF PROCEEDINGS:

secret of another without express or implied consent

by a person who: (A) Used improper means to acquire
knowledge of the trade secret; or (B) At the time of
disclosure or use, knew or had reason to know that
his or her knowledge of the trade secret was:
(i) Derived from or through a person who had
utilized improper means to acquire it; (ii) Acquired
under circumstances giving rise to a duty to
maintain its secrecy or limit its use; or (iii)
Derived from or through a person who owed a duty to
the person seeking relief to maintain its secrecy or
limit its use; or (C) Before a material change of
his or her position, knew or had reason to know that
it was a trade secret and that knowledge of it had
been acquired by accident or mistake.
Civ. C.
342G.1. Improper means includes theft, bribery,
misrepresentation, breach or inducement of a breach
of a duty to maintain secrecy, or espionage through
electronic or other means. Reverse engineering or
independent derivation alone shall not be considered
improper means.
Id.
Trade secret means information, including a
formula, pattern, compilation, program, device,
method, technique, or process, that: (1) Derives
independent economic value, actual or potential,
from not being generally known to the public or to
other persons who can obtain economic value from its
disclosure or use; and (2) Is the subject of efforts
that are reasonable under the circumstances to
maintain its secrecy.
Civ. C. 3426.1.

Page

10 of

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DEPT.

WEO

MINUTES ENTERED
12/20/13
COUNTY CLERK

SUPERIOR COURT OF CAUFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

LISA HART COLE

JUDGE

HONORABLE

DEPT. WEO

N.
S.

LEE
MIXON,

DEPUTY CLERK

C/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONiTOR

NONE

Reporter

Plaintiff
Counsel

HOWARD SCOTT KING

NO APPEARCES

VS

TOMMY LEE ET.

Defendant
Counsel

AL.

NATURE OF PROCEEDINGS:
As discussed above, Defendants establish that
Plaintiff did not take reasonable steps to keep his
Loop Coaster secret, including handing the plan to
Lee without obtaining an NDA.
Moreover, Plaintiff
admits he disclosed the idea to numerous persons
without securing an NDA or obtaining any enforceable
promise of confidentiality.
See SSUMF Nos. 116-120.
Even if Lee did receive the packet, it would not
qualify as improper acquisitj
Since Plaintiff
handed it to him voluntarily without restriction.
In addition, the undisputed facts establish that
there was no improper use of the Loop Coaster idea,
as the drum ring was developed independently of
Plaintiffs idea.
Counsel for defendants is to prepare a proposed order,
in conformance with the Courts ruling, for the
Court s signature.
Counsel for defendants is to prepare a proposed

j udgment.

The final status conference date of 2-18-14 at

830 a.m. in Dept. WE-O and trial date of 2-24-14 at
9:30 a.m. in Dept. WE-O are advanced to this date and
vacated
Clerk gives notice counsel as indicated below via this
minute order.

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11 of

13

DEPT.

WEO

MINUTES ENTERED
12/20/13
COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEPT. WED

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

C/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR

NONE

Reporter

Plaintiff
Counsel

HOWARD SCOTT KING

NO APPEAPJNCES

VS

TOMMY LEE ET.

Defendant

AL.

Counsel

NATURE OF PROCEEDINGS:
CLERKS CERTIFICATE OF MAILING
I, the below-named Executive Officer/Clerk of the
above-entitled court, do hereby certify that I am
not a party to the cause herein, and that on 12-23-13
I served the minute order of 12-20-13
upon each party or counsel named below by placing
the document for collection and mailing so as to
cause it to be deposited in the United States mail
at the courthouse in Santa Monica,
California, one copy of the original filed/entered
herein in a separate sealed envelope to each address
as shown below with the postage thereon fully prepaid,
in accordance with standard court practices.
Dated: 12-23-13
Sherri R. Carter, Executive Officer/Clerk
By:
N. Lee

THOMAS L. WATTERS, ESQ.

HART, WATTERS & CARTER
12400 WILSHIRE BLVD. SUITE 500
LOS ANGELES, CA 90025

ALEXANDER SASHA FRID, ESQ.

MILLER BARONDESS, LLP
1999 AVENUE OF THE STARS, SUITE 1000
LOS ANGELES, CA 90067

Page

12 of

13

DEPT.

WEO

MINUTES ENTERED
12/20/13
COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE:

12/20/13

HONORABLE

DEPT. WEO

LISA HART COLE

JUDGE

HONORABLE

N.
S.

LEE
MIXON,

DEPUTY CLERK

C/A

JUDGE PRO TEM

NONE

Deputy Sheriff

SC118527

ELECTRONIC RECORDING MONITOR

NONE

Reporter

Plaintiff
Counsel

HOWARD SCOTT KING

NO APPEARANCES

VS

TOMMY LEE ET.

Defendant

AL.

Counsel

NATURE OF PROCEEDINGS:

BARBARA BERKOWITZ, ESQ.

BERKOWITZ & ASSOCIATES
150 SOUTH RODEO DRIVE, SUITE 240
BEVERLY HILLS, CA 90212

Page

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COUNTY CLERK