Herzer V Redstone (Korff MTD)

Case 2:17-cv-07545-PSG-KS Document 56 Filed 04/27/18 Page 1 of 35 Page ID #:443
1 Daniel I. Small (pro hac vice)

Christopher M. Iaquinto (pro hac vice)
2 HOLLAND & KNIGHT LLP
10 Saint James Avenue, 11th Floor
3 Boston, MA 02116
Telephone: 617.573.2700
4 Fax: 617.523.6850
E-mail: dan.small@hklaw.com
5 christopher.iaquinto@hklaw.com
6 Kristina S. Azlin (SBN 235238)
Michael T. Boardman (SBN 279153)
400 South Hope Street, 8th Floor
8 Los Angeles, California 90071
Tel: 213.896.2400
9 Fax: 213.896.2450
Email: kristina.azlin@hklaw.com
10 michael.boardman@hklaw.com
11 Attorneys for Defendant
Tyler Korff
12
Holland & Knight LLP
Los Angeles. CA 90071
13 UNITED STATES DISTRICT COURT

Fax: 213.896.2450
Tel: 213.896.2400
14 CENTRAL DISTRICT OF CALIFORNIA

15
16 MANUELA HERZER, an individual, ) Case No.: 2:17-cv-07545-PSG
)
17 Plaintiff, ) DEFENDANT TYLER KORFF’S
) NOTICE OF MOTION AND
18 vs. ) MOTION TO DISMISS
) PLAINTIFF’S FIRST AMENDED
19 SHARI REDSTONE, an individual; ) COMPLAINT; MEMORANDUM
TYLER KORFF, an individual; and ) OF POINTS AND AUTHORITIES
20 DOES 1 through 10, inclusive, ) IN SUPPORT THEREOF;
) [PROPOSED] ORDER
21 Defendants. )
) [Fed. Rule. Civ. Pro. 8, 9(b), 12(b)]
22 )
) Date: June 11, 2018
23 ) Time: 1:30 pm
) Dept.: 6A
24 )
) [Joint Request for Judicial Notice;
25 ) Declaration of Kristina S. Azlin filed
) concurrently]
26 )
27
28
#56702245_v9
DEFENDANT TYLER KORFF’S MOTION TO DISMISS
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on June 11, 2018, at 1:30 p.m., or as soon
3 thereafter as the matter may be heard before the Honorable Philip S. Gutierrez, in
4 Courtroom 6A of the United States District Court, Central District of California,
5 Western Division, 350 West 1st Street, 6th Floor, Los Angeles, California, 90012,
6 Defendant Tyler Korff will and hereby does move this Court for entry of an Order
7 dismissing the First Amended Complaint filed by Plaintiff Manuela Herzer
8 (“Herzer”). This motion to dismiss is brought pursuant to Rules 8, 9(b) and 12(b)(6)
9 of the Federal Rules of Civil Procedure. This Motion is made following the
10 conference of counsel pursuant to Local Rule 7-3 which took place on April 19,
11 2018. Defendant Korff also joins in the concurrently filed Motion to Dismiss or, in
12 the alternative, to Stay, filed by Defendant Shari Redstone pursuant to Colorado
13 River Water Conservation District v. United States, 424 U.S. 800 (1976).
Fax: 213.896.2450
Tel: 213.896.2400
14 This Motion is based upon this Notice of Motion and Motion, the attached
15 Memorandum of Points and Authorities, the concurrently filed Request for Judicial
16 Notice and Declaration of Kristina S. Azlin, all papers and records on file herein, and
17 such other matters as may be presented to the Court at or before the hearing on this
18 Motion.
19
Dated: April 27, 2018 Respectfully submitted,
20
HOLLAND & KNIGHT LLP
21
22
By: /s/ Daniel I. Small
23 Daniel I. Small (pro hac vice)
Kristina S. Azlin
24
Attorneys for Defendant
25 Tyler Korff
26
27
28
#56702245_v9 -2-
1 TABLE OF CONTENTS
2 Page No.
3 I. INTRODUCTION AND FACTUAL BACKGROUND ................................ 1
4 II. LEGAL STANDARD ..................................................................................... 4
5 III. ALL CAUSES OF ACTION ARE BARRED DUE TO IMPROPER
CLAIM-SPLITTING....................................................................................... 4
6
IV. HERZER LACKS STANDING TO BRING A CIVIL RICO CLAIM........ 10
7
A. Ms. Herzer’s Alleged Disinheritance from a Revocable Trust
8 Does Not Confer RICO Standing. ...................................................... 10
9 B. Fees Incurred in Ongoing Litigation Initiated by a Third Party Do
Not Confer RICO Standing. ................................................................ 11
10
V. HERZER FURTHER FAILS TO ADEQUATELY ALLEGE THE
11 NECESSARY ELEMENTS OF A RICO CLAIM ....................................... 14
12 A. The Alleged Goal of the Enterprise Is Not Plausible or Supported.... 14
13 B. The FAC Fails to Allege Sufficient RICO Predicate Acts. ................ 15

Fax: 213.896.2450
Tel: 213.896.2400
14 C. The “Scheme” Directed at Herzer Is Not Sufficiently Continuous. ... 18

15 D. Herzer Cannot Establish Proximate Causation. .................................. 18
16 VI. HERZER CANNOT PLAUSIBLY STATE A CLAIM UNDER THE
FEDERAL WIRE TAP ACT ........................................................................ 22
17
A. The Wiretap Act Does not Permit Secondary Liability. ..................... 22
18
B. Herzer Fails to Adequately Allege that Any Communications
19 Were Unlawfully Intercepted. ............................................................. 22
20 VII. THE FAC FAILS TO ALLEGE CONSPIRACY TO DEFAME. ................ 24
21 VIII. CONCLUSION ............................................................................................. 25
22
23
24
25
26
27
28
#56702245_v9 -i-
1 TABLE OF AUTHORITIES
2 Page(s)
3
Cases
4
Adams v. California Dept. of Health Servs.,
5 487 F.3d 684 (9th Cir. 2007) ................................................................................ 4, 9
6
Agric. Water v. Occidental,
7 235 F. Supp. 3d 1132, 1175 (E.D. Cal. Jan. 20, 2017) .......................................... 14
8
AmerisourceBergen Corp. v. Roden,
9 495 F.3d 1143 (9th Cir. 2007) .................................................................................. 9
10 Anza v. Ideal Steel Supply Corp.,
11 547 U.S. 451 (2006) ............................................................................................... 18
12 Apparel Art Intern., Inc. v. Jacobson,

967 F.2d 720 (1st Cir. 1992) .................................................................................. 18

13
Fax: 213.896.2450
Tel: 213.896.2400
14 Arthur Anderson, LLP v. U.S.,

544 U.S. 696 (2005) ............................................................................................... 16
15
Ashcroft v. Iqbal,
16
556 U.S. 662 (2009) ........................................................................................... 4, 14
17
Bankers Trust Co. v. Rhoades,
18 859 F.2d 1096 (2d Cir. 1988) ................................................................................. 13
19
Barnett v. Stern,
20 909 F.2d 973 (7th Cir. 1990) .................................................................................. 13
21 Bell Atl. Corp. v. Twombly,
22 550 U.S. 544 (2007) ............................................................................................... 14
23 Boeken v. Philip Morris USA, Inc.,
48 Cal. 4th 788 (2010) .............................................................................................. 5
24
25 Boyle v. United States,
556 U.S. 938 (2009) ............................................................................................... 14
26
27 Canyon County v. Syngenta Seeds, Inc.,
519 F.3d 969 (9th Cir. 2008) .................................................................................. 10
28
#56702245_v9 - ii -
1 Chappell v. Robbins,
2 73 F.3d 918 (9th Cir. 1996) .................................................................................... 21
3 Clark v. Yosemite Cmty. Coll. Dist.,

785 F.2d 781 (9th Cir. 1986) .................................................................................... 5
4
5 Cook v. C.R. England, Inc.,
2012 WL 2373258 (C.D. Cal. June 21, 2012).......................................................... 4
6
Costantini v. Trans World Airlines,
7
681 F.2d 1199 (9th Cir. 1982) .................................................................................. 9
8
Curtis & Assocs., P.C. v. Law Offices of David M. Bushman, Esq.,
9 758 F. Supp. 2d 153 (E.D.N.Y. 2010) .................................................................... 13
10
Curtis v. Law Offices of David M. Bushman, Esq., 443 F. App’x 582 (2d
11 Cir. 2011) ................................................................................................................ 13
12 Cusano v. Klein,
264 F.3d 936 (9th Cir. 2001) .................................................................................. 24

13
Fax: 213.896.2450
Tel: 213.896.2400
14 Daddona v. Gaudio,
156 F. Supp. 2d 153 (D. Conn. 2000) .................................................................... 13
15
16 Derby v. City of Pittsburg,
2017 WL 713322 (N.D. Cal. Feb. 23, 2017) .......................................................... 16
17
Dunmore v. Dunmore,
18
2013 WL 5569979 (E.D. Cal. Oct. 9, 2013) .......................................................... 12
19
Eclectic Props. E., LLC v. Marcus & Millichap Co.,
20 751 F.3d 990 (9th Cir. 2014) ........................................................................... passim
21
Fordan v. San Francisco State University,
22 2017 WL 5194511 (N.D. Cal. Nov. 9, 2017) ........................................................... 5
23 In re Google Inc. Gmail Litigation,
24 2014 WL 1102660 (N.D. Cal. Mar. 18, 2014) ....................................................... 22
25 Gotfredson v. Larsen LP,
26 432 F. Supp. 2d 1163 (D. Colo. 2006) ................................................................... 18
27 Hall v. Witteman,
584 F.3d 859 (10th Cir. 2009) ................................................................................ 18
28
#56702245_v9 - iii -
1 Hemi Group, LLC v. City of New York, N.Y.,

2 559 U.S. 1 (2010) ....................................................................................... 18, 19, 21
3 Henrichs v. Valley View Dev.,

474 F.3d 609 (9th Cir. 2007) .................................................................................... 9
4
5 Holloway v. Clackamas River Water,
2014 WL 6998069 (D. Or. Sept. 9, 2014) .............................................................. 12
6
Holmes v. Sec. Investor Prot. Corp.,
7
503 U.S. 258 (1992) ............................................................................................... 18
8
J.D. Marshall Int'l, Inc. v. Redstart, Inc.,
9 935 F.2d 815 (7th Cir. 1991) .................................................................................. 18
10
Konop v. Hawaiian Airlines, Inc.,
11 302 F.3d 868 (9th Cir. 2002) .................................................................................. 22
12 Lincoln House, Inc. v. Dupre,
903 F.2d 845 (1st Cir. 1990) .................................................................................. 13

13
Fax: 213.896.2450
Tel: 213.896.2400
14 Long v. Walt Disney Co.,

116 Cal. App. 4th 868 (2004) ................................................................................. 25
15
16 Lui Ciro, Inc. v. Ciro, Inc.,
895 F. Supp. 1365 (D. Haw. July 26, 1995) ........................................................... 18
17
Marsh v. Zaazoom Sols., LLC,
18
2012 WL 952226 (N.D. Cal. Mar. 20, 2012) ......................................................... 23
19
Mattel, Inc. v. MGA Entm’t, Inc.,
20 782 F. Supp. 2d 911 (C.D. Cal. 2011) .................................................................... 17
21
Menjivar v. Trophy Properties IV DE, LLC,
22 2006 WL 2884396 (N.D. Cal. Oct. 10, 2006) ........................................................ 12
23 Mireskandari v. Mayne,
24 2016 WL 1165896 (C.D. Cal. Mar. 23, 2016) ....................................................... 18
25 Moore v. Saniefar,
26 2016 WL 2764768 (E.D. Cal. May 12, 2016) ........................................................ 13
27 Murphy v. Am. Gen. Life Ins. Co.,

74 F. Supp. 3d 1267 (C.D. Cal. 2015) .................................................................... 24
28
#56702245_v9 - iv -
1 Murphy v. Wells Fargo Home Mortg.,

2 2013 WL 4482671 (N.D. Cal. Aug. 19, 2013) ......................................................... 9
3 Nakahara v. Bal,
1998 WL 35123 (S.D.N.Y. Jan. 30, 1998) ............................................................. 13
4
5 Ogden v. Wells Fargo Bank N.A.,
2015 WL 13413390 (C.D. Cal. Feb. 20, 2015) ...................................................... 11
6
Pillsbury, Madison & Sutro v. Lerner,
7
31 F.3d 924 (9th Cir. 1994) .................................................................................... 21
8
Reusser v. Wachovia Bank, N.A.,
9 525 F.3d 855 (9th Cir. 2008) .................................................................................... 9
10
Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc.,
11 806 F.2d 1393 (9th Cir. 1986) .................................................................................. 4
12 Shefts v. Petrakis,
954 F. Supp. 2d 769 (C.D. Ill. 2013) ...................................................................... 22

13
Fax: 213.896.2450
Tel: 213.896.2400
14 Summerfield v. Strategic Lending Corp.,

2010 WL 3743897 (N.D. Cal. Sept. 20, 2010)....................................................... 10
15
16 Takahashi v. Bd. of Tr. of Livingston Sch. Dist.,
783 F.2d 848 (9th Cir. 1986) .................................................................................... 5
17
Tatung Co. v. Shu Tze Hsu,
18
43 F. Supp. 3d 1036 (C.D. Cal. 2014) .................................................................... 21
19
Theofel v. Farey-Jones,
20 359 F.3d 1066 (9th Cir. 2004) ................................................................................ 22
21
U.S. v. Jinian,
22 725 F.3d 954 (9th Cir. 2013) .................................................................................. 16
23 U.S. v. Kennings,
24 861 F.2d 381 (3d. Cir. 1988) .................................................................................. 16
25 United States v. Haytian Republic,
26 154 U.S. 118 (1894) ................................................................................................. 4
27 Virden v. Graphics One,

623 F. Supp. 1417 (C.D. Cal. 1985) ....................................................................... 17
28
#56702245_v9 -v-
1 Statutes
2 18 U.S.C.
3 § 201 ....................................................................................................................... 15
§ 1512 ..................................................................................................................... 15
4 § 1515(a)(1) ............................................................................................................ 16
5 § 1962(c) ................................................................................................................... 1
§ 2511 ................................................................................................................. 1, 23
6
§ 2520 ....................................................................................................................... 1
7
Cal. Civ. Code § 3425.3 .............................................................................................. 25
8
Cal. Code Civ. Proc. § 340(c) ...................................................................................... 24
9
Cal. Code Civ. Proc. § 48a(d)(2) ................................................................................. 25
10
Cal. Penal Code § 641.3(a) .......................................................................................... 16
11
Other Authorities
12
13 Fed. R. Civ. P. Rule 9(b) ......................................................................................... 4, 17

Fax: 213.896.2450
Tel: 213.896.2400
Fed. R. Civ. P. Rule 12(b)(6) ......................................................................................... 4

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
#56702245_v9 - vi -
1 I. INTRODUCTION AND FACTUAL BACKGROUND

2 Desperate to add to the more than $75 million that she has already extracted
3 from the almost 95-year old Sumner Redstone, and after almost three years of
4 unsuccessful litigation, Plaintiff Manuela Herzer (“Herzer”) now tries to shop her
5 case in federal court, ignoring both the truth and the law in the attempt.
6 In a 64-page First Amended Complaint (“FAC”) that is clearly written to read
7 more like a bad soap opera than a legal pleading, Herzer offers a sensationalized
8 restatement of the same allegations she has made for years. As she did in her multiple
9 state court actions—the first of which terminated in a judgment against her, the others
10 are ongoing—Herzer alleges that Mr. Redstone’s only daughter, Defendant Shari
11 Redstone (“Ms. Redstone”), purportedly conspired with her son, Defendant Tyler
12 Korff (“Mr. Korff”), and a litany of other non-parties, including Mr. Redstone’s
13 nurses and staff members and other Redstone family members, to oust Herzer from
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Tel: 213.896.2400
14 Mr. Redstone’s life, home and estate plan in October 2015—all in furtherance of an
15 implausible “criminal” conspiracy to effectuate “a corporate and family takeover of
16 Sumner Redstone,” “usurp[] control of Sumner’s life,” and “ultimately take control of
17 CBS and Viacom.” See, e.g., FAC ¶¶ 1-5, 184.
18 To achieve this “vengeful scheme,” Herzer alleges that Defendants (by,
19 through, and with the various non-parties) violated section 18 U.S.C. § 1962(c) of the
20 Racketeer and Corrupt Organizations Act, (“RICO”), sections 18 U.S.C. §§ 2511 and
21 2520 of the Electronic Communications Privacy Act (“ECPA”), and conspired to
22 defame her under California law, by illegally spying on her, intercepting her
23 communications, making false statements about her to Mr. Redstone and others, and
24 committing witness tampering, bribery, and mail and wire fraud. Id. at FAC ¶¶ 182-
25 213. She demands “compensatory damages in an amount no less than $100 million”
26 for “being disinherited and removed from Sumner’s estate plan” and for her
27 “attorney’s fees to defend against frivolous legal actions … fraudulently being
28 prosecuted in Sumner’s name,” plus treble and punitive damages and attorney’s fees.
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1 Id. at ¶¶ 30, 195, 202, 213.

2 Herzer’s allegations, however, are little more than a morass of discredited
3 conspiracy theories, devoid of sufficient factual allegations to support her outrageous
4 claims. The FAC should be dismissed for a multitude of varied and layered reasons:
5 First, this entire case constitutes improper claim-splitting by Herzer and a
6 transparent and desperate attempt to forum and judge shop after sustaining significant
7 legal losses in all three of her previously filed cases, two of which are still pending.
8 Those cases concern the same nucleus of facts, necessitate the same evidence, and
9 implicate the same rights alleged to be at-issue here. In the first of these cases, the
10 probate court specifically rejected Herzer’s claim “that Shari was acting for
11 improper purposes” and that Mr. Redstone was “brainwashed by Shari or those
12 allegedly working with her.” RJN, Ex. 3 at 7 (emphasis added). Rather, the court
13 indicated that Herzer’s “undue influence claim makes little sense” and it “[did] not
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14 see how Herzer could prevail on this theory.” Id. at 16. Minutes after that decision,
15 Herzer filed a new civil action asserting these claims again, this time specifically
16 naming the Defendants here. The court granted Ms. Redstone’s demurrer, dismissing
17 Herzer’s attempt to end-run the probate court by claiming damages related to a loss
18 of expected inheritance in the form of civil damages. RJN, Ex. 13, at 67:23-68:20
19 (rejecting Herzer’s intentional interference with expected inheritance claim along
20 with all related “damages claims,” holding that such claims “belong in probate
21 court”) (emphasis added). The probate court, which now has jurisdiction of those
22 claims by virtue of Herzer’s third state action (which is still pending) agrees: “[T]he
23 probate court always was the proper venue for this trust contest.” RJN, Ex. 17 at 9
24 (emphasis added). This action attempts to resurrect and re-litigate these same issues.
25 Second, although Herzer’s allegations now purport to relate to the alleged
26 “criminal” acts of a broad RICO enterprise, Herzer does not have standing to assert a
27 civil RICO claim. She has not suffered a cognizable RICO injury, i.e., a concrete
28 financial loss to her business or property that was proximately caused by the alleged
#56702245_v9 -2-
1 RICO violation. Neither the loss of her hoped for inheritance from Mr. Redstone’s
2 revocable trust or the attorney’s fees incurred in defending Mr. Redstone’s elder
3 abuse lawsuit can meet this requirement.
4 Third, even if Herzer otherwise had standing to assert a civil RICO claim, she
5 has not adequately pleaded such a claim here. The FAC does not set forth a plausible
6 “common goal”; as to Mr. Korff especially, the FAC is wholly silent on any
7 “common” agreement related to the “takeover” of CBS or Viacom. At best, the FAC
8 alleges that he exchanged text messages and other communications with the staff in
9 his grandfather’s home for the purpose of monitoring his grandfather’s well-being
10 and protecting him from potential elder abuse – concerns that, as it turned out, were
11 well-founded. The FAC also does not allege a pattern of racketeering activity; the
12 alleged “predicate acts” of witness tampering, witness bribery, and commercial
13 bribery, are all barred due to various legal defects, and the only remaining two, mail
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14 and wire fraud, are not adequately alleged, continuous, or sufficiently related to the
15 “common scheme.” Further, even if Herzer’s alleged injuries were cognizable, which
16 they are not, the FAC does not set forth a “direct link” between those injuries and
17 viable predicate acts by these Defendants, as required to satisfy proximate causation.
18 Fourth, Herzer has not adequately alleged a claim against Mr. Korff under the
19 ECPA. The ECPA does not allow any form of secondary liability (whether stated as
20 “procuring” another to commit a violation or “conspiring” with another to do so); as
21 such, all claims against Mr. Korff based on the actions of others are barred. Herzer
22 also has not identified any unlawful “interception” of her communications, which is
23 narrowly construed under the statute and is a threshold element for any ECPA claim.
24 Finally, Herzer’s “conspiracy to defame” claim is barred by the one-year
25 statute of limitations applicable to all California defamation claims. Herzer attempts
26 to avoid this result by claiming delayed discovery, but her own allegations in the
27 prior state court actions demonstrate otherwise. Further, California recognizes only
28 limited types of special damages for defamation claims such as this, and Herzer’s
#56702245_v9 -3-
1 claimed damages, her removal from Mr. Redstone’s revocable trust, does not qualify.
2 As more fully set forth below, Herzer’s FAC—filed after years of discovery
3 and ongoing litigation—confirms that these defects cannot be cured. The FAC should
4 be dismissed with prejudice.
5 II. LEGAL STANDARD
6 To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
7 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
8 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
9 Twombly, 550 U.S. 544, 570 (2007)). If a complaint sets forth facts that are “‘merely
10 consistent with’ a defendant’s liability, it ‘stops short of the line between possibility
11 and plausibility of entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S. at
12 557). Likewise, when there is an “‘obvious alternative explanation’ for [the]
13 defendant’s behavior,” the plaintiff has not plausibly alleged a claim. Eclectic Props.
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14 E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (quoting
15 Iqbal, 556 U.S. at 682). Further, the complaint also “must state with particularity the
16 circumstances constituting fraud or mistake” for RICO claims based on fraud. Fed. R.
17 Civ. P. 9(b); Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d
18 1393, 1399-1401 (9th Cir. 1986) (Rule 9(b) applies to all claims based on fraud).
19 III. ALL CAUSES OF ACTION ARE BARRED DUE TO IMPROPER
CLAIM-SPLITTING
20
A party is “not at liberty to split up [her] demand, and prosecute it by
21
piecemeal, or present only a portion of the grounds upon which special relief is
22
sought, and leave the rest to be presented in a second suit, if the first fail.” United
23
States v. Haytian Republic, 154 U.S. 118, 125 (1894). Accordingly, as an “aspect” of
24
claim preclusion, the Ninth Circuit has developed a rule against claim-splitting, under
25
which a court can dismiss claims before a final decision on the merits of a previously-
26
filed suit has been entered. See Cook v. C.R. England, Inc., 2012 WL 2373258, at *3-
27
4 (C.D. Cal. June 21, 2012); Adams v. California Dept. of Health Servs., 487 F.3d
28
#56702245_v9 -4-
1 684, 688 (9th Cir. 2007) (recognizing the court’s “broad discretion . . . to dismiss a
2 duplicative later-filed action, to stay that action pending resolution of the previously
3 filed action, to enjoin the parties from proceeding with it, or to consolidate both
4 actions”) overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008);
5 see also Takahashi v. Bd. of Tr. of Livingston Sch. Dist., 783 F.2d 848 (9th Cir. 1986)
6 (prior state law action barred a subsequent federal action where both actions based on
7 the invasion of the same primary right); Clark v. Yosemite Cmty. Coll. Dist., 785 F.2d
8 781 (9th Cir. 1986) (same).
9 Herzer’s claims here should be dismissed because they concern the same
10 “primary rights” and, although captioned under different laws, are duplicative of
11 claims that she has been litigating in other courts for years. See Fordan v. San
12 Francisco State University, 2017 WL 5194511, at *10–11 (N.D. Cal., Nov. 9, 2017)
13 (“California courts apply the primary rights theory to determine whether two causes
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14 of action are identical for the purposes of claim preclusion.”) (citing Boeken v. Philip
15 Morris USA, Inc., 48 Cal. 4th 788, 797-98 (2010)). “[T]he phrase ‘cause of action’
16 has a ... precise meaning: The cause of action is the right to obtain redress for a harm
17 suffered, regardless of the specific remedy sought or the legal theory (common law or
18 statutory) advanced. Thus, even where there are multiple legal theories upon which
19 recovery might be predicated, one injury gives rise to only one claim for relief.”
20 Boeken, 48 Cal. 4th at 798 (internal citations and quotations omitted) (emphasis
21 added). Indeed, this case – the fourth filed by Herzer in under three years – is a prime
22 example of why the prohibition on claim-splitting is needed.
23 Herzer Case No. 1: One month after being removed from Mr. Redstone’s home
24 and estate plan, Herzer filed a petition with the probate division of the Los Angeles
25 Superior Court seeking to invalidate her removal as Mr. Redstone’s healthcare agent,
26 a change made at the same time that she was removed from his other estate
27 documents (the “First Action”). RJN, Ex. 1 (Herzer’s Petition in In re: Advance
28 Health Care Directive of Sumner M. Redstone, LASC Case No. BP 168725.) She
#56702245_v9 -5-
1 claimed that her removal was invalid because it was the result of “undue influence”
2 by Shari Redstone and others working with her. The action proceeded to trial before
3 the Honorable Judge Cowan on May 6, 2016. In his opening statement, Herzer’s
4 then-counsel argued, “[t]here was a circle of deceit. A palace coup stretching over a
5 year and featuring a ring of spies that were instigated, encouraged and yes, financed
6 by Sumner’s estranged daughter Shari, and ultimately succeeded.” RJN, Ex. 2 (Trial
7 Tr. 6:28-7:4). These alleged co-conspirators engaged in a “broad, effective
8 information-gathering operation” that constituted “a shocking mass invasion of
9 Sumner’s privacy as well as that of Manuela and Sydney, repeated violations by
10 nurses of HIPAA and their confidentiality agreements.” Id. 7:18-21. She claimed that
11 this alleged “ring of spies” used the information they gathered and “told [Sumner] a
12 bunch of lies. . . . and two days later Manuela was gone.” Id. at 15:5-7. On May 9,
13 2016, Judge Cowan dismissed Herzer’s petition with prejudice after hearing
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14 testimony from Mr. Redstone himself, including testimony that “he wanted for his
15 daughter Shari Redstone [] to serve as his agent” and that he “hate[d] Manuela [and
16 he] want[ed] Manuela out of [his] life.” RJN, Ex 4 (May 9, 2016 Ruling). Although
17 not required to make findings with respect to the alleged undue influence, he
18 nonetheless observed that “the undue influence claim makes little sense” and stated
19 that he “[did] not see how Herzer could prevail on this theory.” Id. at 16. Judge
20 Cowan’s order was affirmed on appeal.
21 Herzer Case No. 2: Obviously not liking Judge Cowan’s ruling—or his
22 statements regarding the viability of her claims—Herzer filed a new complaint in the
23 civil division of the Los Angeles Superior Court on May 9, 2016, the same date that
24 the First Action was dismissed. RJN, Ex. 3 (Complaint in Manuela Herzer v. Shari
25 Redstone et al., Case No. BC619766 (Cal. Super. Ct.) (the “Second Action”)). In her
26 “new” case, Herzer again realleged the same core theory of undue influence and
27 spying, this time asserting claims against Ms. Redstone, Mr. Korff, and their alleged
28 “co-conspirators,” including Ms. Redstone’s other son, Brandon Korff, and various
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1 members of Mr. Redstone’s household and nursing staff, for intentional interference
2 with expected inheritance (“IIEI”), breach of contract (against the staff defendants),
3 and aiding and abetting statutory and common law invasions of privacy. Id. Like in
4 the First Action, Herzer alleged that Ms. Redstone conspired with Mr. Korff and the
5 members of Mr. Redstone’s staff to spy on Mr. Redstone and Herzer and “provid[e]
6 Sumner with false information concerning Herzer”, all in an effort to “oust Herzer”
7 and “banish[]” her “from Sumner’s home, life and personal trust . . . [t]hrough deceit,
8 treachery, lying, spying, an unlawful eviction, and bribery.” Id., ¶¶ 75, 83, 89. As
9 damages, Herzer sought to recover the “inheritance” that she hoped to receive under
10 Mr. Redstone’s personal revocable trust before he made the October 2015 changes to
11 his estate plan. Id., ¶¶ 92, 101, 106, 121.
12 On September 7, 2016, the Honorable Robert Leslie Hess sustained Ms.
13 Redstone’s demurrer to the original complaint, with leave to amend. RJN, Ex. 7. On
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14 October 4, 2016, Herzer filed a First Amended Complaint, again asserting claims
15 against Ms. Redstone and Mr. Korff for IIEI and invasion of privacy. Id., Ex. 8. On
16 April 21, 2017, Judge Hess again sustained Ms. Redstone’s demurrer to Herzer’s
17 claim for IIEI, finding that if Herzer wished to contest her removal from Sumner’s
18 trust, she had to do so in probate court, where she had an adequate remedy. RJN, Ex.
19 13. Judge Hess also rejected all of Herzer’s inheritance based “damages claims,”
20 holding that such claims also “belong in probate court.” Id. at 67-68.
21 On May 30, 2017, Herzer filed a Second Amended Complaint against the
22 Defendants asserting claims for invasions of privacy and aiding and abetting same,
23 based on the same allegations of conspiracy, spying, wiretapping, deception, and
24 bribery. RJN, Ex. 15 at ¶¶ 45-75. This action remains pending.
25 Herzer Case No. 3: On May 30, 2017, Herzer filed another petition in the
26 probate division of the Los Angeles Superior Court, this time directly challenging her
27 removal as a beneficiary in Mr. Redstone’s personal revocable trust—also based on
28 the same allegations of undue influence, invasions of privacy, fraud, and bribery
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1 involving Ms. Redstone, Mr. Korff, and Mr. Redstone’s staff, as asserted in the
2 previous actions. RJN, Ex. 14 (Complaint in In re the Matter of the Sumner M.
3 Redstone 2003 Trust, as amended and restated, Case No. 17STBP04740 (Cal. Super.
4 Ct.) (the “Third Action”)). This case was also assigned to Judge Cowan, who Herzer
5 unsuccessfully attempted to disqualify. See RJN, Exs. 16-19; see also Korff’s Motion
6 to Strike at 5. Her claim is set for trial in July of this year.
7 Herzer Case No. 4: Less than a month after the California Court of Appeal
8 denied her writ of mandate in the Third Action challenging Judge Cowan’s
9 assignment, Herzer filed the instant action in federal court. As she did in her three
10 prior actions, Herzer again alleges a conspiracy among Ms. Redstone, Mr. Korff and
11 Mr. Redstone’s medical staff to “oust Herzer from Sumner’s life,” home, and estate
12 plan through a campaign of bribery, surveillance, and fraud. E.g., FAC ¶¶ 129, 140,
13 190. Although she has now added pages of allegations about various other non-party
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14 business executives and businesses in which she has no interest at all, this case is
15 simply a more salacious and implausible repackaging of Herzer’s theories in her
16 other actions.
17 Critically, Herzer’s allegations in the still pending Second and Third Actions
18 are duplicated in the instant litigation, for example: “[s]tarting in September 2014 …
19 Shari organized what would eventually become a successful campaign to turn
20 Sumner against Herzer” and Defendants violated Herzer’s privacy by “listening in on
21 and/or recording private telephone calls …, conducting covert surveillance of
22 Herzer,” and attempting to “drive a wedge between Sumner and his closest friends”
23 by telling “lies about Herzer includ[ing] that she had allegedly stolen millions of
24 dollars from him.” Compare RJN, Ex. 15 at ¶¶ 4, 43-44, 60 and 85; Ex. 14 at ¶¶ 4, 27,
25 36-53, 66; FAC ¶¶ 84-101. Herzer claims in the Second Action to have “suffered
26 over $100 million in damages as a result of … repeated and malicious invasions of
27 privacy” during the two years that Herzer was Mr. Redstone’s housemate, just as she
28
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1 does here (FAC ¶ 195), all with no basis in reality.1 Her allegations of “espionage,
2 bribery, illegal eviction by force, and deception” (RJN No. 15 at ¶ 4) are repeated
3 almost verbatim in the FAC. See, e.g. ¶¶ 7, 11-12, 25, 27, 66-67, 109, 148.
4 The parties, evidence and relief Herzer seeks across these cases are identical.
5 There can be no reasonable dispute that the allegations in Herzer’s prior cases make
6 up “the same transactional nucleus of facts” as this case, which is the “most
7 important” consideration in a res judicata/claim-splitting analysis. Costantini v.
8 Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982). Accordingly, where a
9 Plaintiff like Herzer “seek[s] to adjudicate the same rights and interests, and rely on
10 the same evidence and nucleus of facts as the underlying action” and continues in
11 “active pursuit of these claims in the original forum, the only appropriate resolution []
12 is dismissal without leave to amend of these duplicative actions.” Murphy v. Wells
13 Fargo Home Mortg., 2013 WL 4482671, at *7 (N.D. Cal. Aug. 19, 2013); Adams,
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14 487 F.3d at 688 (dismissal with prejudice; allegations duplicated earlier state action).
15 Indeed, Herzer’s obvious attempt to avoid litigating her claims in state court is
16 also barred by the Rooker-Feldman doctrine. That doctrine, which prohibits a party
17 from using a federal court as a de facto state appellate court, “essentially . . . bars
18 ‘state-court losers complaining of injuries caused by state-court judgments rendered
19 before the district court proceedings commenced’ from asking district courts to
20 review and reject those judgments.”2 Henrichs v. Valley View Dev., 474 F.3d 609,
21 1
No amendment could change the fact that Herzer’s claims are duplicative, given
that she recently verified under oath that the “over $100 million in damages as a
22 result of Defendants’ conduct” that she seeks to recover in the Second Action
“include, but are not limited to, the following: (1) Damages for Defendants’ repeated
23 and malicious invasions of privacy throughout the time that Ms. Herzer lived at the
Beverly Park residence; (2) Damages for Defendants’ unauthorized access of Ms.
24 Herzer’s computer; (3) Damages for Defendants’ illegal bribery, surveillance, and
wire fraud … [and] (5) Damages resulting from changes in Sumner Redstone’s
25 estate plan ….” See Declaration of Andrew Walsh in Support of Shari Redstone’s
Motion to Dismiss, Exhibit 2 at 4. (emphasis added).
26
2
For a discussion of Rooker-Feldman doctrine, see AmerisourceBergen Corp. v.
27 Roden, 495 F.3d 1143, 1153 (9th Cir. 2007) (explaining that the Rooker–Feldman
doctrine “provides that federal district courts lack jurisdiction to exercise appellate
28 review over final state court judgments”); Reusser v. Wachovia Bank, N.A., 525 F.3d
855, 859 (9th Cir. 2008) (recognizing that the Rooker–Feldman doctrine also applies
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1 613 (9th Cir. 2007). Herzer cannot circumvent the state court rejections of her claims
2 by splitting them and asserting them in this court, hoping for a different result.3
3 IV. HERZER LACKS STANDING TO BRING A CIVIL RICO CLAIM
4 “To have standing under § 1964(c), a civil RICO plaintiff must show: (1) that
5 [her] alleged harm qualifies as injury to [her] business or property; and (2) that [her]
6 harm was ‘by reason of’ the RICO violation, which requires the plaintiff to establish
7 proximate causation.” Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th
8 Cir. 2008) (citing Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992);
9 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). Such injury to business or
10 property must be a “concrete financial loss,” which is “a categorical inquiry typically
11 determined by reference to state law.” Canyon County, 519 F.3d at 975 (quoting Diaz
12 v. Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en banc)).
13 A. Ms. Herzer’s Alleged Disinheritance from a Revocable Trust Does

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Not Confer RICO Standing.

14
As she did in her original complaint, Herzer continues to assert that she has
15
had “bequests to her and her children [] deleted from Sumner’s trust.” FAC ¶ 195.
16
The trust at issue is Mr. Redstone’s personal, revocable trust, in which he had
17
bequeathed $70 million to Herzer through its 39th Amendment in September 2015
18
(one month before Mr. Redstone ejected Herzer from his home). See RJN Ex. 15, ¶
19
66. Ms. Herzer’s prior interest in that trust cannot form the basis of a RICO action
20
because California law is clear that revocable trusts do not confer a vested property
21
right. As explained in Summerfield v. Strategic Lending Corp., 2010 WL 3743897, at
22
*3–4 (N.D. Cal. Sept. 20, 2010), “under basic principles of trust law, since the trust is
23
24
where the parties do not directly contest the merits of a state court decision, but file
25 an action that constitutes a “de facto” appeal from a state court judgment; such a de
facto appeal exists where “claims raised in the federal court action are ‘inextricably
26 intertwined’ with the state court's decision such that the adjudication of the federal
claims would undercut the state ruling or require the district court to interpret the
27 application of state laws or procedural rules.”) (citation and quotation marks omitted).
28 3
As an alternative, Defendant Korff also joins in Section IV.D of Defendant Shari
Redstone’s Motion to Dismiss or Stay under the Colorado River Doctrine.
#56702245_v9 - 10 -
1 revocable, a beneficiary’s interest in it is merely potential and can evaporate in a

2 moment at the whim of the trustor.” (citations and quotation omitted). Therefore, a
3 beneficiary of a revocable trust has “no present interest in the funds contained in the
4 trust, … cannot claim that he suffered injury to his ‘business or property,’ and …
5 does not have standing under RICO.” Id. (emphasis added); see also Steinhart, 47
6 Cal. 4th at 1319 (“Any interest that beneficiaries of a revocable trust have in trust
7 property is merely potential and can evaporate in a moment at the whim of the
8 settlor.” (internal quotations omitted)). The undisputed facts here exemplify why this
9 is so. Mr. Redstone modified his personal trust 39 times from 2003 to 2015, adding
10 and removing beneficiaries. See RJN Ex. 15, ¶ 66; FAC ¶ 151. Each such
11 beneficiary’s interest—including Herzer’s—was unfunded and subject to “evaporate
12 in a moment” at Mr. Redstone’s “whim.” As such, Herzer never had a concrete
13 interest in the “money or property” she is alleging to have lost through disinheritance,
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14 a defect that is incurable. She therefore lacks RICO standing.

15 Moreover, Herzer’s continued attempt to recover for an alleged loss of
16 inheritance outside of probate court is also in direct violation of Judge Hess’s April
17 2017 Order in the Privacy Action, which expressly rejected all disinheritance
18 damage theories as to all of Herzer’s causes of action on the grounds that such
19 alleged injury “merely duplicates the damage claims in the [IIEI] cause of action,
20 which belong in probate court.” RJN No. 13 at 67-68 (emphasis added). Herzer’s
21 attempt to claim such “civil” damages here is an improper attempt to circumvent
22 Judge Hess’s Order and interfere with the pending probate proceedings.
23 B. Fees Incurred in Ongoing Litigation Initiated by a Third Party Do
Not Confer RICO Standing.
24
In her FAC, Herzer adds a new category of alleged loss in the form of
25
attorneys’ fees incurred in defense of the elder abuse lawsuit that Mr. Redstone filed
26
against her in 2016, which she alleges is “frivolous.” FAC ¶ 195. As with her alleged
27
28
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1 disinheritance, however, any legal fees Herzer has incurred in defense of the elder
2 abuse case, or any other related case, are not recoverable as RICO damages.
3 First, as this District Court has already acknowledged, “[t]he Ninth Circuit has
4 generally refused to recognize legal fees as a valid injury to business or property
5 under RICO.” Ogden v. Wells Fargo Bank N.A., 2015 WL 13413390, *2 (C.D. Cal.
6 Feb. 20, 2015) (granting motion to dismiss RICO claims) (citing Thomas v. Baca,
7 308 Fed. Appx. 87, 88 (9th Cir. 2009), aff'd sub nom. Ogden v. Wells Fargo Bank,
8 NA, 674 F. App’x 650 (9th Cir. 2017). Nothing in this case warrants a different result.
9 Second, even if this court were to recognize legal fees as a potential RICO
10 injury, Herzer still could not avail herself of that rule. Legal fees, like any other
11 RICO damages, must be “directly linked to the illegal conduct of the defendants that
12 constitutes the RICO violations.” Dunmore v. Dunmore, 2013 WL 5569979, *7 (E.D.
13 Cal. Oct. 9, 2013) (analyzing out-of-circuit cases permitting fees as RICO injury and
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14 finding that “legal fees could confer standing [there] because those fees were incurred
15 in fighting frivolous lawsuits initiated by the defendants, the very wrongful conduct
16 that comprised the RICO claim”). Here, the case that Herzer claims has caused her to
17 suffer “defense” costs was not instituted by the Defendants; if Herzer’s allegations
18 are believed, it was “instituted by the direct victim[] of the alleged RICO violations,”
19 Mr. Redstone himself. Id. But Mr. Redstone suing Herzer is entirely disconnected
20 with the alleged goal of the purported enterprise in this case, which was for Ms.
21 Redstone “to take full control of CBS, Viacom and the media empire built by” Mr.
22 Redstone, not to influence him to file an elder abuse suit. FAC ¶¶ 53, 68, 69, 172.
23 Herzer simply cannot tie her attorneys’ fees in the elder abuse case to any “predicate
24 acts” committed by these RICO defendants. Labeling Mr. Redstone’s suit “frivolous”
25 is not enough to create the required direct link. Holloway v. Clackamas River Water,
26 2014 WL 6998069, at *9 (D. Or. Sept. 9, 2014) (“The caselaw in this circuit holds
27 that legal fees expended to defend against sham lawsuits are not the type of injury to
28 business or property interest which confer standing to bring a civil RICO claim.”)
#56702245_v9 - 12 -
1 Third, any attempt by Herzer to claim legal fees as RICO damages fails for the
2 added reason that such a claim is subject to the “critical limitation[] that the legal fees
3 stem from prior legal disputes.” Menjivar v. Trophy Properties IV DE, LLC, 2006
4 WL 2884396, at *12 (N.D. Cal. Oct. 10, 2006) (“for legal fees to suffice as RICO
5 damages, they must, at the very least, have been incurred prior to the current
6 litigation.”). The fees that Herzer alleges constitute her RICO injury are related to
7 ongoing litigation, with a third party, and are entirely speculative. Whether those fees
8 were incurred “wrongly” and, therefore, might constitute RICO damages, depends
9 upon her first prevailing on her defense in that case and then establishing that the
10 litigation was “fraudulently” pursued. Not only is this a high legal bar that Herzer
11 cannot meet, but she is procedurally nowhere near securing such findings in her
12 active state court cases. See, e.g., Moore v. Saniefar, 2016 WL 2764768, at *10 (E.D.
13 Cal. May 12, 2016) (dismissing RICO claim based on allegations that plaintiff was
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14 forced to spend money in defense of fraudulent litigation because “[t]hese are the
15 very damages on which a RICO claim cannot proceed.”); Lincoln House, Inc. v.
16 Dupre, 903 F.2d 845 (1st Cir. 1990) (plaintiff lacked RICO standing where
17 underlying claim was unresolved); Bankers Trust Co. v. Rhoades, 859 F.2d 1096,
18 1106 (2d Cir. 1988) (same); Barnett v. Stern, 909 F.2d 973, 977 n. 4 (7th Cir. 1990)
19 (same). Thus, since Herzer’s claim that the elder abuse action is a “sham” remains
20 pending in other unresolved litigation, Herzer cannot forum shop the issue into this
21 court by converting such assertion into a damages claim.
22 Lastly, Herzer’s avenue to recover her legal fees in the elder abuse case is in
23 connection with that case, not in a separate and premature RICO action. Claims that
24 assert allegedly wrongful litigation activity as a RICO injury are at most “a potential
25 yet still inchoate claim for malicious prosecution or abuse of process” Nakahara v.
26 Bal, 1998 WL 35123, at *6-8 (S.D.N.Y. Jan. 30, 1998); Curtis & Assocs., P.C. v.
27 Law Offices of David M. Bushman, Esq., 758 F. Supp. 2d 153, 171 (E.D.N.Y. 2010),
28 aff'd sub nom. Curtis v. Law Offices of David M. Bushman, Esq., 443 F. App’x 582
#56702245_v9 - 13 -
1 (2d Cir. 2011) (finding RICO claims to be “essentially claims of malicious

2 prosecution”); Daddona v. Gaudio, 156 F. Supp. 2d 153, 162 (D. Conn. 2000)
3 (finding allegations “at best amount to vague abuse of process or malicious
4 prosecution claims”).
5 At bottom, no matter how Herzer presents her “attorneys’ fee” damage theory,
6 it is simply not sufficient to satisfy RICO’s strict standing requirement.
7 V. HERZER FURTHER FAILS TO ADEQUATELY ALLEGE THE
NECESSARY ELEMENTS OF A RICO CLAIM
8
Even if Herzer had standing to assert a RICO claim, she has not otherwise
9
plead the elements necessary to state such a claim against Mr. Korff, i.e., that he
10
“participate[d] in (1) the conduct of (2) an enterprise that affects interstate commerce
11
(3) through a pattern (4) of racketeering activity,” and, that such conduct was “(5) the
12
proximate cause of harm to [Herzer].” See Eclectic, 751 F.3d at 997 (emphasis
13
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added). Indeed, there are fatal defects as to each of these elements.

14
A. The Alleged Goal of the Enterprise Is Not Plausible or Supported.
15
To be actionable, the stated goal of a RICO claim must have been the
16
enterprise’s “common purpose.” See id. at 997; Boyle v. United States, 556 U.S. 938,
17
946 (2009). Although each defendant need not commit every predicate act, all of the
18
alleged enterprise members must have joined together in furtherance of a “unified
19
agenda.” Comm. to Protect our Agric. Water v. Occidental, 235 F. Supp. 3d 1132,
20
1175 (E.D. Cal. Jan. 20, 2017). Further, a plaintiff must do more than show facts that
21
are “merely consistent with” liability. Twombly, 550 U.S. at 557. Where there is an
22
equally plausible alternative that would not involve liability the complaint fails unless
23
it pleads “facts tending to exclude” the innocent explanation. Id. at 557; Eclectic, 751
24
at 996. In Twombly, for example, the plaintiff alleged facts consistent with an
25
antitrust conspiracy, but also consistent with natural behavior. Twombly, 550 U.S. at
26
566. Similarly, in Iqbal, the Court held the plaintiff was required to “plead sufficient
27
factual matter to show that [defendants] adopted and implemented the …policies at
28
#56702245_v9 - 14 -
1 issue not for a neutral, investigative reason but for the purpose of discriminating... .”
2 Iqbal, 556 U.S. at 676-77. If the “well-pleaded facts” support only the possibility of
3 misconduct, “the complaint has alleged--but it has not show[n]’--‘that the pleader is
4 entitled to relief.’” Id. at 678-79 (quoting Fed. R. Civ. Pro. 8(a)(2)).
5 Herzer’s allegations of a vast criminal scheme, formed with the intent “to
6 destroy Sumner’s life” and “to seize control of the two publicly traded companies that
7 Sumner Redstone had acquired and built, CBS and Viacom” are simply not plausible.
8 FAC ¶¶ 3, 11. The only common thread between the alleged RICO actors’ conduct is
9 their efforts to protect Mr. Redstone against abuse and undue influence by Ms. Herzer
10 and her co-conspirator, Ms. Holland. A family’s attempt to look after an ailing
11 patriarch is a natural response to being informed of such abuse. There is nothing in
12 the FAC, or in the evidence, to suggest that Mr. Korff, Mr. Korff’s siblings, and Mr.
13 Redstone’s lawyers and nursing staff all shared the alleged common purpose of
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14 enabling Ms. Redstone to “tak[e] over” CBS and Viacom. Indeed, under Herzer’s
15 theory, Mr. Korff is not accused of being a part of the “corporate takeover” in any
16 way and has not gained any interest in CBS or Viacom that he did not already have.
17 Thus, even if Herzer’s theory had not been declared legally untenable in other
18 litigation, the FAC still fails because it does not show “that all the named defendants
19 acted with the same purpose in mind” and that such a purpose was unlawful. Comm.
20 to Protect our Agric. Water, 235 F. Supp. 3d at 1175; Twombly, 550 U.S. at 557.
21 B. The FAC Fails to Allege Sufficient RICO Predicate Acts.
22 Even assuming that Herzer has properly established an enterprise goal, she
23 fails to adequately allege a pattern of racketeering activity in furtherance of that goal.
24 The majority of Herzer’s allegations concern communications between Defendants
25 and Mr. Redstone’s nurses to “eavesdrop” or otherwise uncover the truth about the
26 goings-on in Mr. Redstone’s residence. See, e.g., FAC ¶¶ 109-110. Despite this
27 inherent contradiction in claiming that uncovering true facts about Herzer somehow
28 transformed those facts into “lies” when told to Mr. Redstone or others, Herzer
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1 asserts that this evidence gathering included criminal acts of bribery, witness
2 tampering and mail and wire fraud. But these alleged criminal acts are either
3 impossible as a matter of law or not pleaded with the required specificity.
4 Witness Tampering and Bribery Under Federal Law: Herzer alleges
5 violations of 18 U.S.C. § 201 and § 1512, FAC ¶¶ 191-192, both of which prohibit
6 corruptly influencing witnesses in federal proceedings. But Herzer does not and
7 cannot identify any federal proceeding in which any testimony was supposedly
8 influenced, corruptly or not. As such, these allegations cannot support an assertion of
9 racketeering activity. See 18 U.S.C. § 1515(a)(1) (defining “official proceeding”
10 under section 1512 to mean specified federal proceedings); Arthur Anderson, LLP v.
11 U.S., 544 U.S. 696, 707-8 (2005) (requiring a “nexus” between the alleged acts and a
12 “particular” official proceeding); Derby v. City of Pittsburg, 2017 WL 713322, at *4
13 (N.D. Cal. Feb. 23, 2017) (holding that “[w]itness tampering and retaliation in state
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14 criminal judicial proceedings are not actionable under RICO”); see also U.S. v.
15 Kennings, 861 F.2d 381, fn. 2 (3d. Cir. 1988) (rejecting interpretation of section 201
16 to claims of bribing witnesses outside of proceedings in a court of the United States).
17 Commercial Bribery Under California Law: Herzer also alleges a violation of
18 California’s “commercial bribery” law, which requires that the Defendants corruptly
19 offer or accept money with the specific intent to harm an employer. See Cal. Penal
20 Code § 641.3(a). “‘Employer’ means a corporation, association, organization, trust,
21 partnership, or sole proprietorship.” Id. at subs. (d)(2). Herzer was not the employer
22 of the nurses or any of the third parties who she alleges were “bought off,” nor could
23 she have been because individuals are not “employers” under the statute. Id. Mr.
24 Redstone could not have been the “employer” for the same reason.
25 Mail and Wire Fraud Under Federal Law: Herzer’s mail and wire fraud
26 claims fare no better. The elements of wire and mail fraud are: (1) a scheme to
27 defraud; (2) the use of wire, radio, or television (wire fraud) or the mails (mail fraud)
28 to further the scheme; and (3) a specific intent to defraud. See U.S. v. Jinian, 725 F.3d
#56702245_v9 - 16 -
1 954, 960 (9th Cir. 2013); Eclectic, 751 F.3d at 997. As explained above, Herzer fails
2 to establish that a plausible “scheme to defraud” was ever hatched. Eclectic, 751 F.3d
3 at 997 (A plaintiff must show “the existence of a plausible scheme.”). But even
4 assuming such a scheme were properly alleged, she also fails to plead facts showing
5 that any use of the mail or wires “furthered” such a scheme. All of the alleged
6 fraudulent mailings came from Mr. Redstone himself, with no involvement alleged
7 by Mr. Korff, and are alleged to have been mailed months after Mr. Redstone
8 removed Herzer from his home and estate plan. FAC ¶ 189. Mailings after October
9 2015 could not have resulted in the harm alleged and as a result, such acts are
10 irrelevant to a mail fraud claim. See, e.g., Virden v. Graphics One, 623 F. Supp.
11 1417, 1425 (C.D. Cal. 1985) (“[T]he [mail and wire fraud statutes] are not violated if
12 the communications occur after the scheme has reached fruition.”).
13 Attempting to allege wire fraud, Herzer points to the same “thousands of text
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14 messages, emails and phone calls” alleged in her prior cases and claims that the
15 “Defendants made false and misleading representations” about her, but she never
16 identifies what this supposedly false information was, as required by Rule 9(b). See
17 FAC ¶ 190; see, e.g., Mattel, Inc. v. MGA Entm’t, Inc., 782 F. Supp. 2d 911, 1023
18 (C.D. Cal. 2011) (rejecting attempts to plead “acts of racketeering en masse”). A
19 statement to Mr. Redstone in person by a third party that Herzer had “stolen millions”
20 is insufficient to establish wire fraud by the Defendants. Herzer appears to claim that
21 Mr. Korff “directed” this statement but never once in any of these communications
22 she identifies does Mr. Korff ask the nurses to do or say anything. If Mr. Korff truly
23 “inundated his cadre of staff-turned-spies on a daily basis with slanderous comments
24 about Herzer” (FAC ¶ 103), as alleged after two years of discovery on these issues in
25 other cases, the FAC certainly does not show or allege it. She also fails to explain
26 how emails and text messages to “others” including information about Herzer, who
27 has no involvement with CBS or Viacom, could have been incident to a scheme to
28 “take over” those companies. No amendment could remedy these defects.
#56702245_v9 - 17 -
1 C. The “Scheme” Directed at Herzer Is Not Sufficiently Continuous.

2 Disregarding the implausible allegations of Ms. Redstone’s wild scheme to
3 assume control of Viacom and CBS, which are not cognizable for the reasons set
4 forth above, the supposed predicate acts targeted at removing Herzer all took place
5 over “an approximately 12-month period” (FAC ¶ 190) and are not sufficiently
6 continuous to form a pattern of racketeering activity. Indeed, “the Ninth Circuit has
7 found no case in which a court has held the requirement to be satisfied by a pattern of
8 activity lasting less than a year.” Lui Ciro, Inc. v. Ciro, Inc., 895 F. Supp. 1365, 1382
9 (D. Haw. July 26, 1995) Likewise, “a single scheme to accomplish one discrete goal,
10 directed at a finite group of individuals, with no potential to extend to other persons
11 or entities, rarely will suffice to establish a threat of continuing activity required to
12 establish a pattern under RICO.” Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163,
13 1176 (D. Colo. 2006) (quoting Erikson v. Farmers Group, Inc., 151 Fed. Appx. 672,
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14 677 (10th Cir. 2005); Hall v. Witteman, 584 F.3d 859, 867-68 (10th Cir. 2009)
15 (rejecting “a closed-ended series of predicate acts constituting a single scheme to
16 accomplish a discrete goal ... directed at only one individual ... with no potential to
17 extend to other persons or entities”); see also Apparel Art Intern., Inc. v. Jacobson,
18 967 F.2d 720, 723 (1st Cir. 1992) (rejecting closed-ended 13-month RICO claim);
19 J.D. Marshall Int'l, Inc. v. Redstart, Inc., 935 F.2d 815, 820-21 (7th Cir. 1991)
20 (same). Herzer cannot rewrite history to overcome this defect.
21 D. Herzer Cannot Establish Proximate Causation.
22 As a further requirement for standing, the Supreme Court is clear that a RICO
23 plaintiff must show not only “but-for” causation, but also that the alleged predicate
24 acts proximately caused the alleged harm. See, e.g., Holmes, 503 U.S. at 268. “When
25 a court evaluates a RICO claim for proximate causation, the central question it must
26 ask is whether the alleged violation led directly to the plaintiff’s injuries.” Anza v.
27 Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006). A plaintiff may not use RICO to
28 pursue speculative, downstream damages claims. Id. at 458-459; Hemi Group, LLC v.
#56702245_v9 - 18 -
1 City of New York, N.Y., 559 U.S. 1, 15 (2010) (rejecting RICO theories that “rest on
2 the independent actions of third and even fourth parties”). Defendants must also have
3 an “intent to obtain money or property from the one who is deceived.” Mireskandari
4 v. Mayne, 2016 WL 1165896, *13 (C.D. Cal., Mar. 23, 2016)
5 The Supreme Court’s instruction not to go “beyond the first step” in attributing
6 allegations of harm is especially apt here. See Hemi, 559 U.S. at 15. Herzer’s alleged
7 chain of liability has multiple links, each of which depends upon a specific and
8 implausible assumption about how the various actors behaved, what they knew, and
9 what they thought. According to Herzer, Mr. Korff, his mother and Mr. Redstone’s
10 nurses conspired to carry out a “scheme of literally destroying all of Sumner’s friends
11 and confidantes.” FAC ¶ 174. They did this by eavesdropping and gathering
12 information about Herzer. They then provided “false” information to Mr. Redstone in
13 one conversation in October 2015 about Herzer taking financial advantage of him. Id.
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14 ¶ 141. Mr. Redstone believed that information, turned on Herzer, and immediately
15 removed her from his home and his estate plan. Id. ¶ 144. There are a myriad
16 alternative explanations that poke holes in each of these layers, however, each of
17 which is a far more “plausible and innocuous alternative explanation” for the course
18 of events than Herzer’s contrived theory. Eclectic, 751 F.3d at 998.
19 First, Herzer’s allegations make clear that the Defendants are not what
20 motivated the nurses’ actions. Rather, Herzer admits that she treated them terribly
21 and that they independently disliked her. See, e.g., FAC ¶ 103 (“Like other members
22 of the nursing and household staff, Jagiello resented Herzer…”); see also Dkt. 2
23 (Compl.) at ¶ 64 (the staff had “contempt for Herzer”; one explicitly stated as to
24 Herzer and Holland that he “can’t stand them and who they are and what they do!”);
25 id. at ¶ 65 (“Tyler capitalized on the staff’s resentment of Herzer…”). That the staff
26 observed her acting badly and decided to tell Mr. Redstone the truth is a far more
27 likely explanation than Herzer’s speculation that Mr. Korff somehow tricked six or
28 seven different people into “present[ing] Herzer in a negative light with ridiculous
#56702245_v9 - 19 -
1 and scurrilous accusations” to Mr. Redstone, all because they were fed a “propaganda
2 campaign” via text message. FAC ¶ 141. These people interacted with Herzer on a
3 daily basis and were fully capable of coming to their own conclusions.
4 Second, for Herzer’s story to make sense, the Court would have to believe not
5 only that the nurses were somehow “brainwashed” by Defendants’ text messages and
6 emails, but also that Mr. Redstone himself disregarded all of his own personal
7 experiences such that a nurse telling him that Herzer had “stolen millions” on
8 October 12, 2015 was sufficient to undo his trust. Even if this conversation occurred
9 as alleged, there is nothing to suggest that Mr. Redstone’s decision to remove Herzer
10 from the house and modify his estate plan would have necessarily resulted. Mr.
11 Redstone could have done any number of different things upon being presented with
12 this information. If Herzer were in fact considered “family,” (FAC ¶ 7) one
13 conversation with a nurse could not have caused Mr. Redstone to testify under oath,
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14 repeatedly, that “Manuela is a f***ing b***h” and “I hate her [and] I want Manuela
15 out of my life.” See RJN Ex. 4 at 2-3. While Herzer attempts to allege that Mr.
16 Redstone’s cognitive function was impaired in October 2015—but not September
17 2015 when he granted her the bequest at issue for $70 million—the probate court has
18 already indicated that such an argument is unlikely to succeed. See id. at 13, 16.
19 The reality is that Mr. Redstone experienced Herzer’s betrayal firsthand.
20 Indeed, Mr. Redstone has alleged a pattern of elder abuse by Herzer that goes far
21 beyond his being informed that she “stole millions,” including isolating him from his
22 family, manipulating him into buying lavish gifts and real estate around the world,
23 and attempting to blackmail Sumner’s heirs into agreeing not to challenge her abuse
24 in court by threatening to bar them from his funeral. RJN, Ex. 9. It would be
25 revisionist history to conclude, based on the allegations in the FAC, that Herzer’s
26 removal was a direct result of anything that the nurses did, let alone the Defendants.
27 Mr. Redstone “amended his personal trust, … over 40 times to make bequests to
28 dozens of individuals and entities, including to his family, former wives and
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1 girlfriends and their families, charities and his loyal employees.” Dkt. 2 at ¶ 35. In the
2 words of Judge Cowan, to find that the 40th amendment was unintended and caused
3 entirely by information that was “remotely” choreographed by Defendants as part of
4 an alleged scheme “to seize control of . . . CBS and Viacom” (FAC ¶ 3) rather than
5 on Sumner’s own experiences, “makes little sense.” RJN, Ex. 4 at 16.
6 Moreover, proximate cause cannot exist where, as in this case, the “theory of
7 liability rests not just on separate actions, but separate actions carried out by separate
8 parties.” Hemi, 559 U.S. at 11 (emphasis original); see also Chappell v. Robbins, 73
9 F.3d 918, 921-22 (9th Cir. 1996) (rejecting RICO claims based on alleged bribes to
10 state officials because subsequent actions of officials, not bribes, caused injury);
11 Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 929 (9th Cir. 1994) (affirming
12 dismissal of RICO claim for lack of proximate cause where third party stood between
13 plaintiff and alleged conduct that caused harm). This rule is unchanged even if
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14 Defendants somehow knew that Herzer’s harm was foreseeable and even if they
15 intended that result. See Hemi, 559 U.S. at 12 (explicitly rejecting tying RICO
16 proximate cause to foreseeability); Tatung Co. v. Shu Tze Hsu, 43 F. Supp. 3d 1036,
17 1059 (C.D. Cal. 2014) (“It is not relevant that the injury may have been foreseeable
18 or that the defendants may have ‘intended, indeed desired’ the precise injury to
19 [plaintiff].”). Thus, the chain of causation here is broken as a matter of law.
20 As Justice Roberts stated to conclude his opinion in Hemi, “[i]t bears
21 remembering what this case is about.” 559 U.S. at 17. Herzer is seeking to impose
22 RICO liability on a daughter and grandson for monitoring the health of their family’s
23 ailing patriarch and seeking to uncover the truth about what was occurring in his
24 home. Her alleged harm arising from this activity is legal costs associated with
25 ongoing litigation and loss of an inheritance to which she had no legal right. Concern
26 for Mr. Redstone’s wellbeing is “a plausible and innocuous alternative explanation,”
27 which defeats Herzer’s outlandish interpretation. Eclectic, 751 F.3d at 998.
28
#56702245_v9 - 21 -
1 VI. HERZER CANNOT PLAUSIBLY STATE A CLAIM UNDER THE

2 FEDERAL WIRE TAP ACT
A. The Wiretap Act Does not Permit Secondary Liability.
3
Herzer does not allege that Mr. Korff himself unlawfully intercepted any
4
communications. Instead, her claim relies on allegations that he “willfully conspired
5
with and procured” others to do so. See FAC, ¶¶ 197-198. The Wiretap Act, however,
6
expressly rejects civil claims like this that are based upon allegations that a defendant
7
“procured” or “conspired” with a third party to secure or intercept communications.
8
Indeed, Congress expressly removed the language providing for such a remedy from
9
the statute in 1986. See, e.g., Shefts v. Petrakis, 954 F. Supp. 2d 769, 777 (C.D. Ill.
10
2013) (recognizing the change in law). Thus, “[i]t is now clear that ‘procurement’
11
cannot support civil ECPA liability, and it is likewise clear that there can be no civil
12
‘conspiracy’ (or ‘aiding or abetting’ or ‘agency’) liability under the ECPA, as such
13
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forms of liability would permit plaintiffs to circumvent Congress’ intent to limit civil
14
liability to those who have actually engaged in the prohibited practices.” Id. As such,
15
Herzer’s wiretapping claims that depend entirely on the actions of non-parties must
16
be dismissed with prejudice.
17
B. Herzer Fails to Adequately Allege that Any Communications Were
18
Unlawfully Intercepted.
19
Even to the extent Herzer purports to allege direct violations by the
20
Defendants, by, for example, claiming that they illegally “used” or “disclosed” her
21
communications, Herzer’s EPCA claim still fails. In order to state any claim under
22
the federal wiretapping act a plaintiff must allege sufficient facts to establish that
23
such communications were unlawfully “intercepted,” i.e., wire-tapped, in the first
24
place. Herzer has not and cannot meet this threshold requirement.
25
“Intercept” is narrowly defined in the Act as “the aural or other acquisition of
26
the contents of any wire, electronic, or oral communication through the use of any
27
electronic, mechanical, or other device.” Id. § 2510(4) (emphasis added); see also §
28
2510(5) (defining “device”). In order to be actionable, the “acquisition” must occur
#56702245_v9 - 22 -
1 “during transmission,” not by accessing stored data. Theofel v. Farey-Jones, 359 F.3d
2 1066, 1077-78 (9th Cir. 2004) (unauthorized access to stored emails does not violate
3 act); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 876-78 (9th Cir. 2002) (same).
4 Further, for an “interception” to be unlawful, it must also have been intercepted
5 without consent by someone that was not a party to the communication. See, e.g., In
6 re Google Inc. Gmail Litigation, 2014 WL 1102660, at *12 (N.D. Cal. Mar. 18,
7 2014) (recognizing “several exemptions that render interceptions lawful,” including
8 “an exemption for consent[.]”) (citations omitted); see also 18 U.S.C. § 2511(2)(d) (It
9 is not unlawful “to intercept a … communication where such person is a party to the
10 communication.”); Marsh v. Zaazoom Sols., LLC, 2012 WL 952226, at *17 (N.D.
11 Cal. Mar. 20, 2012) (a communication cannot be “intercepted” by one of its parties).
12 In other words, the alleged “interception” must have (i) taken place during the
13 original transmission, (ii) by someone that was not a party to that communication,
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14 (iii) without the consent of someone that was a party to the communication, (iv) been
15 achieved by using a covered “device,” and (v) for purely oral conversations, Herzer
16 must also have had a reasonable expectation of privacy in the communications.
17 Herzer has not plead even one communication that meets these requirements.
18 Herzer’s specific Wiretap Act allegations simply parrot the statutory language,
19 FAC at ¶¶ 198-200, and her allegations elsewhere in the FAC do little more. Herzer
20 alleges in conclusory fashion that Mr. Korff “directed the nurses to eavesdrop and
21 even use assorted electronic devices to secretly record private conversations Herzer
22 had with Sumner, attorneys and others, and then email, text message and use other
23 means to send those recordings to [him] in Massachusetts”—but Herzer pleads no
24 actual facts to support such bald assertions. Id. at ¶ 109. No specific recordings or
25 “assorted electronic devices” or instances of Korff directing anyone to secretly record
26 or send him private conversations are identified in any of the 212 paragraphs of the
27 FAC, despite the robust discovery undertaken in the various state court litigations.
28 Similarly, Herzer generally alleges that a nurse “recorded privileged and confidential
#56702245_v9 - 23 -
1 meetings where Sumner and Herzer met with Sumner’s lawyer Leah Bishop and Dr.
2 James Spar to discuss changes to his estate plan,” and that “[t]his information was
3 then sent to Shari and her lawyers.” Id. ¶ 122. Herzer being in the room with Mr.
4 Redstone does not transform discussions with his lawyer and doctor into confidential
5 information of Herzer. Nor do these bald allegations include any of the other facts
6 necessary to evaluate whether communications were, in fact, intercepted—including
7 how the alleged meetings were purportedly “recorded” by the nurse, whether he was
8 present and a party to the communications, or whether anyone in the room –
9 including, critically, Mr. Redstone himself – consented to such recording. It also
10 includes no facts supporting the conclusion that the recording was sent to Defendants
11 or that such recording was thereafter illegally used or disclosed by Defendants. For
12 example, when? How? By whom? Without this information, Herzer asks this Court to
13 assume that such violations took place; that is not the law.
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14 VII. THE FAC FAILS TO ALLEGE CONSPIRACY TO DEFAME.

15 California law requires that defamation and conspiracy to defame claims be
16 filed within one year of the alleged defamatory statement being made. See Cal. Civ.
17 Proc. Code § 340(c); Murphy v. Am. Gen. Life Ins. Co., 74 F. Supp. 3d 1267, 1288
18 (C.D. Cal. 2015) (“The limitations period that applies to a conspiracy claim is the
19 same as the one that applies to the underlying conduct that is purpose of the alleged
20 conspiracy.”) Exceptions are rare. “Generally, the ‘statute of limitations will begin to
21 run regardless of whether a plaintiff is aware that he has a cause of action.’” Cusano
22 v. Klein, 264 F.3d 936, 949 (9th Cir. 2001) (quoting Johnson v. Harcourt, Brace,
23 Jovanovich, Inc., 43 Cal. App. 3d 880, 896 (1974)). The alleged defamation here
24 occurred on or before October 12, 2015, when Sumner’s nurses and/or Defendants
25 allegedly told “lies” about Herzer to Sumner or others. FAC ¶¶ 205-206. The
26 “conspiracy to defame” Herzer at that point was complete, yet Herzer did not file this
27 action until two years later, on October 16, 2017.
28
#56702245_v9 - 24 -
1 Attempting to save her claim with the discovery rule, Herzer asserts that she
2 did not discover Defendants’ participation in the alleged conspiracy to defame until
3 August 2017. FAC ¶ 210. Such a claim is spurious. Herzer sued these same
4 defendants on the exact same theory 15 months before that, on May 9, 2016. See
5 Section III, supra. In her own words, that 2016 action “alleged that Sumner Redstone
6 was unduly influenced by his daughter, Shari Redstone, by his nurses, and household
7 staff in an effort to throw Herzer out of Sumner Redstone’s life and from his will
8 and/or trust, etc.” RJN Ex. 12 at Attachment 1H. And in another filing on the same
9 date, she stated that in her 2016 action, “the issue is whether Shari Redstone and the
10 other defendants [including Tyler Korff] improperly violated Herzer’s right to
11 privacy . . . and interfered with her inheritance expectations by obtaining private
12 information and using it to influence Redstone to remove Herzer as his health care
13 agent and as a beneficiary based on allegedly false information they gave

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14 Redstone.” Id., Ex. 11 at 4 (emphasis added). According to her own court filings,
15 Herzer had knowledge of the facts underlying her claim as of at least May 2016.
16 In addition, Herzer has also not alleged any viable defamation damages. Cal.
17 Code Civ. P. § 48a(d)(2) requires damage to plaintiff’s “property, business, trade,
18 profession, or occupation.” Here, Herzer asserts only harm related to her removal
19 from Mr. Redstone’s revocable trust, but, again, this is not damage to “property”
20 under California law. Herzer fails to allege any other cognizable harm.
21 VIII. CONCLUSION
22 Despite years of discovery and having already amended her pleading once,
23 Herzer’s FAC makes clear that there is nothing she can do to rectify the legal and
24 factual deficiencies to her claims. Permitting additional amendment to add more
25 extraneous allegations would be futile. As such, Defendant Korff respectfully
26 requests that the Court grant the instant Motion and dismiss the FAC with prejudice.
27
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#56702245_v9 - 25 -
1 Dated: April 27, 2018 Respectfully submitted,

3
4 By: /s/ Daniel I. Small
Daniel I. Small (pro hac vice)
5 Kristina S. Azlin
6 Attorneys for Defendant
Tyler Korff
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#56702245_v9 - 26 -
1 PROOF OF SERVICE
2
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 400 S. Hope
4 St., 8th Floor, Los Angeles, California 90071.
5 On April 27, 2018, I served the document described as DEFENDANT TYLER

KORFF’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED
6 COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF; [PROPOSED] ORDER on the interested parties in this action
7 as follows:
8 [X] (BY Electronic Transfer to the CM/ECF System) In accordance with Federal
Rules of Civil Procedure 5(d) (3), Local Rule 5-4, and General Order 07-08, I
9 uploaded via electronic transfer a true and correct copy scanned into an electronic file
10 in Adobe “pdf” format of the above-listed documents to the United States District
Court Central District of California’ Case Management and Electronic Case Filing
11 (CM/ECF) system on this date. It is my understanding that by transmitting these
12 documents to the CM/ECF system, they will be served on all parties of record
according to the preferences chosen by those parties within the CM/ECF system. The
13 transmission was reported as complete and without error.

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Tel: 213.896.2400
14
I declare under penalty of perjury under the laws of the United States of America that
15 the above is true and correct.
16 Executed on April 27, 2018, Boston, Massachusetts.
17
18 /s/ Daniel I. Small
19 Daniel I. Small
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#56702245_v9 -1-

Herzer V Redstone (Korff MTD)

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Herzer V Redstone (Korff MTD)

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Case 2:17-cv-07545-PSG-KS Document 56 Filed 04/27/18 Page 1 of 35 Page ID #:443

1 Daniel I. Small (pro hac vice)

Los Angeles. CA 90071

13 UNITED STATES DISTRICT COURT

14 CENTRAL DISTRICT OF CALIFORNIA

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Los Angeles. CA 90071

Los Angeles. CA 90071

13 B. The FAC Fails to Allege Sufficient RICO Predicate Acts. ................ 15

14 C. The “Scheme” Directed at Herzer Is Not Sufficiently Continuous. ... 18

12 Apparel Art Intern., Inc. v. Jacobson,

967 F.2d 720 (1st Cir. 1992) .................................................................................. 18

14 Arthur Anderson, LLP v. U.S.,

3 Clark v. Yosemite Cmty. Coll. Dist.,

264 F.3d 936 (9th Cir. 2001) .................................................................................. 24

1 Hemi Group, LLC v. City of New York, N.Y.,

3 Henrichs v. Valley View Dev.,

903 F.2d 845 (1st Cir. 1990) .................................................................................. 13

14 Long v. Walt Disney Co.,

27 Murphy v. Am. Gen. Life Ins. Co.,

1 Murphy v. Wells Fargo Home Mortg.,

954 F. Supp. 2d 769 (C.D. Ill. 2013) ...................................................................... 22

14 Summerfield v. Strategic Lending Corp.,

27 Virden v. Graphics One,

13 Fed. R. Civ. P. Rule 9(b) ......................................................................................... 4, 17

Fed. R. Civ. P. Rule 12(b)(6) ......................................................................................... 4

1 I. INTRODUCTION AND FACTUAL BACKGROUND

Los Angeles. CA 90071

1 Id. at ¶¶ 30, 195, 202, 213.

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

13 A. Ms. Herzer’s Alleged Disinheritance from a Revocable Trust Does

Not Confer RICO Standing.

1 revocable, a beneficiary’s interest in it is merely potential and can evaporate in a

Los Angeles. CA 90071

14 a defect that is incurable. She therefore lacks RICO standing.

Los Angeles. CA 90071

Los Angeles. CA 90071

1 (2d Cir. 2011) (finding RICO claims to be “essentially claims of malicious

Los Angeles. CA 90071

added). Indeed, there are fatal defects as to each of these elements.

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

1 C. The “Scheme” Directed at Herzer Is Not Sufficiently Continuous.

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

Los Angeles. CA 90071

1 VI. HERZER CANNOT PLAUSIBLY STATE A CLAIM UNDER THE

Los Angeles. CA 90071

Los Angeles. CA 90071

14 VII. THE FAC FAILS TO ALLEGE CONSPIRACY TO DEFAME.

Los Angeles. CA 90071

13 agent and as a beneficiary based on allegedly false information they gave

1 Dated: April 27, 2018 Respectfully submitted,