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Electronically FILED by Superior Court of California, County of Los Angeles on 05/21/2019 03:02 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk

1 LEWIS BRISBOIS BISGAARD & SMITH LLP


CRAIG HOLDEN, SB# 174643
2 E-Mail: Craig.Holden@lewisbrisbois.com
SKYE DALEY, SB# 284592
3 E-Mail: Skye.Daley@lewisbrisbois.com
633 West 5th Street, Suite 4000
4 Los Angeles, California 90071
Telephone: 213.250.1800
5 Facsimile: 213.250.7900

6 Attorneys for Defendants Creative Artists


Agency, LLC, Andrew Miller and Leah
7 Yerushalaim.

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF LOS ANGELES, CENTRAL DISTRICT

11

12 JOHN MUSERO, an Individual, CASE NO. 19STCV10435

13 Plaintiff, DEFENDANTS’ NOTICE OF


DEMURRER AND DEMURRER TO
14 vs. PLAINTIFF’S COMPLAINT;
DECLARATION OF CRAIG HOLDEN IN
15 CREATIVE ARTISTS AGENCY, LLC, a SUPPORT THEREOF
Delaware limited liability company;
16 ANDREW MILLER, an individual; LEAH Date: August 5, 2019
YERUSHALAIM, an individual; and DOES 1 Time: 8:30 a.m.
17 through 10, inclusive., Dept.: 31

18 Defendant. [Assigned for All Purposes to:


The Hon. Hon. Yolanda Orozco, Dept. 31]
19
Action Filed: March 26, 2019
20 Trial Date: None Set

21 Reservation ID: 712794244001

22

23

24 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:


25 PLEASE TAKE NOTICE that on August 5, 2019, at 8:30 a.m. in Department 31 of the
26 above-captioned Court at 111 N. Hill St., Los Angeles, California 90017, Defendants Creative
27 Artists Agency, LLC (“CAA”), Andrew Miller (“Miller”), and Leah Yerushalaim (“Yerushalaim”)

28 will and hereby demur to Plaintiff John Musero’s (“Musero”) Complaint on the following
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1 grounds:

2 1. Musero’s first cause of action for Breach of Fiduciary Duty and Confidentiality

3 fails to state facts sufficient to sustain a cause of action pursuant to Cal. Code Civ. Proc. §

4 430.10(e).

5 2. Musero’s first cause of action for Breach of Fiduciary Duty and Confidentiality is

6 uncertain, as proscribed by Cal. Code Civ. Proc. § 430.10(f).

7 3. Musero’s second cause of action for Breach of Implied Covenant of Good Faith

8 and Fair Dealing fails to state facts sufficient to sustain a cause of action pursuant to Cal. Code

9 Civ. Proc. § 430.10(e).

10 4. Musero’s second cause of action for Breach of Implied Covenant of Good Faith

11 and Fair Dealing is uncertain, as proscribed by Cal. Code Civ. Proc. § 430.10(f).

12 5. Musero’s third cause of action for Breach of Contract fails to state facts sufficient

13 to sustain a cause of action pursuant to Cal. Code Civ. Proc. § 430.10(e).

14 6. Musero’s third cause of action for Breach of Contract is uncertain, as proscribed by

15 Cal. Code Civ. Proc. § 430.10(f).

16 The parties have met and conferred as required by Cal. Code Civ. Proc. § 430.41 (See

17 Declaration of Craig Holden ¶ 2, attached hereto.) This demurrer is brought pursuant to California

18 Code of Civil Procedure sections 430.10(e) and (f) and is based on this notice; the attached

19 demurrer and memorandum of points and authorities; the concurrently filed moving papers; all

20 pleadings and papers on file with the Court in this matter; and such further arguments, authorities,

21 and other matters subject to judicial notice as may be presented prior to or at the hearing hereon.

22

23 DATED: May 21, 2019 LEWIS BRISBOIS BISGAARD & SMITH LLP

24

25
By:
26 Craig Holden
Attorneys for Defendants Creative Artists Agency,
27 LLC, Andrew Miller and Leah Yerushalaim.
28
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1 DEFENDANTS’ DEMURRER TO MUSERO’S COMPLAINT

2 Defendants hereby demur to Musero’s Complaint on each of the following grounds:

3 I. DEMURRER TO THE FIRST CAUSE OF ACTION FOR BREACH OF

4 FIDUCIARY DUTY AND CONFIDENTIALITY.

5 The first cause of action for Breach of Fiduciary Duty and Confidentiality fails to state

6 facts sufficient to sustain a cause of action. (Cal. Code Civ. Proc. § 430.10(e).) To the extent the

7 Plaintiff alleges a breach of confidentiality, the first cause of action fails to plead any facts that

8 illustrate what confidential information was taken from the Plaintiff and shared inappropriately

9 with others, with whom that information was shared, or when.

10 The first cause of action for Breach of Fiduciary Duty and Confidentiality is also uncertain.

11 (Cal. Code Civ. Proc. § 430.10(f).) The first cause of action is unintelligible, and it is not clear

12 what Plaintiff means by “misappropriated.” Likewise, Plaintiff’s bare allegation that the

13 Defendants “harvested” his work is entirely unintelligible and prohibitively vague. What ideas or

14 concepts were taken by the Defendants and what concepts were shared by the Defendants? With

15 whom were his ideas shared and when? Is the Plaintiff alleging direct access to his work and

16 copying on the part of Defendants, and does he allege substantial similarities between his work

17 and the purported copied work?

18 Finally, the first cause of action improperly group the defendants together by ascribing

19 alleged conduct to “Defendants,” without differentiating between the three named defendants,

20 making it impossible to understand why each person has been sued. See Complaint at ¶¶ 20, 23,

21 26-28, 35, 47, 48, 56, 59

22 II. DEMURRER TO THE SECOND CAUSE OF ACTION FOR BREACH OF

23 IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.

24 The second cause of action for Breach of Implied Covenant of Good Faith and Fair

25 Dealing fails to state facts sufficient to sustain a cause of action. (Cal. Code Civ. Proc. §

26 430.10(e).) The second cause of action fails to plead facts that show the existence of a contract
27 between Musero and any party, a prerequisite for such a claim. See Racine & Laramie, Ltd. v.

28 Department of Parks & Recreation, (1992) 11 Cal.App.4th 1026,1032.


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1 The second cause of action for Breach of Implied Covenant of Good Faith and Fair

2 Dealing is also uncertain. (Cal. Code Civ. Proc. § 430.10(f).) The second cause of action is

3 unintelligible, and it is not clear on what contract – if any - the cause of action is based. Plaintiff

4 has not pled any information regarding when a contract was entered into, or with whom, or what

5 the terms of the contract were. Nor has Plaintiff alleged requisite allegations for this claim.

6 III. DEMURRER TO THE THIRD CAUSE OF ACTION FOR BREACH OF

7 CONTRACT.

8 The third cause of action for Breach of Contract fails to state facts sufficient to sustain a

9 cause of action against all three defendants. (Cal. Code Civ. Proc. § 430.10(e).) The third cause

10 of action does not adequately plead the breach of the contract, an essential element to the claim.

11 The third cause of action for Breach of Contract is also uncertain. (Cal. Code Civ. Proc. §

12 430.10(f).) The third cause of action is unintelligible, and it is not clear on what contract – if any -

13 the cause of action is based. Plaintiff has pled the existence of an “agreement implied in fact,” but

14 does not indicate with whom the contract was entered, when it was entered into, nor does it

15 explain what the terms of the contract were.

16 WHEREFORE, Defendants pray that:

17 A. Defendants’ demurrer to the complaint be sustained and the causes of action be

18 dismissed without leave to amend and for such other and further relief as the Court deems proper.

19

20 DATED: May 21, 2019 LEWIS BRISBOIS BISGAARD & SMITH LLP

21

22
By:
23 Craig Holden
Attorneys for Defendants Creative Artists Agency,
24 LLC, Andrew Miller and Leah Yerushalaim.
25

26
27

28
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1 TABLE OF CONTENTS

2 Page

3 I. INTRODUCTION ................................................................................................................. 1

4 II. PLAINTIFF’S ALLEGATIONS ........................................................................................... 2

5 A. Plaintiff’s Allegations of Mismanagement. .............................................................. 2

6 B. Plaintiff’s Allegations of Misappropriation. ............................................................. 3

7 III. STATEMENT OF AUTHORITY ON DEMURRER. .......................................................... 3

8 IV. PLAINTIFF FAILS TO PLEAD FACTS SUFFICIENT TO SUSTAIN ANY


CAUSE OF ACTION AGAINST DEFENDANTS. ............................................................. 4
9
A. Plaintiff’s Third Cause of Action Must Fail for Want of Sufficient
10 Allegations to Constitute a Cause of Action. ............................................................ 4

11 B. Plaintiff’s Second Cause of Action Must Fail for Want of Sufficient


Allegations to Constitute a Cause of Action. ............................................................ 6
12
C. Plaintiff’s First Cause of Action Must Fail for Want of Sufficient
13 Allegations to Constitute a Cause of Action. ............................................................ 7

14 V. PLAINTIFF’S COMPLAINT, AND EACH CAUSE OF ACTION THEREIN, IS


IMPERMISSIBLY UNCERTAIN AND VAGUE. .............................................................. 8
15
A. The Plaintiff’s First Cause of Action is Fatally Uncertain. ..................................... 10
16
B. The Plaintiff’s Second Cause of Action is Fatally Uncertain. ................................ 10
17
C. The Plaintiff’s Third Cause of Action is Fatally Uncertain. ................................... 11
18
VI. CONCLUSION ................................................................................................................... 12
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1 TABLE OF AUTHORITIES

2
Cases
3
Aubry v. Tri-City Hospital District
4 (1992) 2 Cal.4th 962......................................................................................................... 6, 7

5 Berger v. California Insurance Guarantee Association,


(2005) 128 Cal.App.4th 989 ................................................................................................. 6
6
Blank v. Kirwan
7 (1985) 39 Cal.3d 311 ............................................................................................................ 4

8 Bodenhamer v. Superior Court,


(1987) 192 Cal.App.3d 1472 .............................................................................................. 10
9
City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
10 (1998) 68 Cal.App.4th 445 ................................................................................................... 7

11 Crossroads Investors LP v. Federal National Mortg. Associates,


(2017) 13 Cal.App.5th 757 ................................................................................................. 11
12
Derrick v. Ontario Community Hospital,
13 (1975) 47 Cal.App.3d 145 .................................................................................................... 9

14 Desny v. Wilder,
(1956) 46 Cal.2d 715 ................................................................................................... passim
15
Digerati Holdings, LLC v. Young Money Entertainment, LLC
16 (2011) 194 Cal.App.4th 873 ........................................................................................... 6, 10

17 Doe v. City of Los Angeles,


(2007) 42 Cal.4th 531........................................................................................................... 8
18
Elder v. Pacific Bell Telephone Co.,
19 (2012) 205 Cal.App.4th 841 ................................................................................................. 9

20 Evans v. City of Berkeley


(2006) 38 Cal.4th 1............................................................................................................... 3
21
Faris v. Enberg,
22 (1979) 97 Cal.App.3d 309 .................................................................................................... 5

23 Foley v. Interactive Data Corp.


(1988) 47 Cal.3d 654 ............................................................................................................ 7
24
Foley v. Interactive Data Corp.
25 , (1988) 47 Cal.3d 654 ........................................................................................................... 6

26 Grosso v. Miramax Film Corp.,


(9th Cir. 2004) 383 F.3d 965 .......................................................................................... 4, 11
27
Guz v. Bechtel National, Inc.,
28 (2000) 24 Cal.4th 317..................................................................................................... 7, 10
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1 Hawley Bros. Hardware Co. v. Brownstone
(1899) 123 Cal. 643 .............................................................................................................. 9
2
Heckendorn v. City of San Marino
3 (1986) 42 Cal.3d 481 ............................................................................................................ 4

4 Kenneth Mebane Ranches v. Superior Court


(1992) 10 Cal.App.4th 276 ........................................................................................... 5, 7, 8
5
Love v. Fire Insurance Exchange
6 (1990) 221 Cal.App.3d 1136 ................................................................................................ 7

7 McKell v. Washington Mutual, Inc.,


(2006) 142 Cal.App.4th 1457 ................................................................................... 9, 10, 11
8
Montz v. Pilgrim Films & TV, Inc.,
9 (9th Cir. 2011) 649 F.3d 975 ................................................................................................ 5

10 Okun v. Superior Court


(1981) 29 Cal.3d 442 ............................................................................................................ 8
11
Pridonoff v. Balokovich,
12 (1951) 36 Cal.2d 788 ............................................................................................................ 8

13 Racine & Laramie, Ltd. v. Department of Parks & Recreation,


(1992) 11 Cal.App.4th 1026,1032 .................................................................................... 2, 6
14
Spinner v. American Broadcasting Companies, Inc.,
15 (2013) 215 Cal.App.4th 172 ............................................................................................. 5, 6

16 Tribeca Companies, LLC v. First American Title Insurance Co.,


(2015) 239 Cal.App.4th 1088 ............................................................................................... 7
17

18 Statutes

19 Code Civ. Proc., § 425.14, ................................................................................................................ 1

20 Code Civ. Proc., §§ 430.10(e) ........................................................................................................... 2

21 Code Civ. Proc., § 430.10(f) ........................................................................................................ 9, 10

22

23

24

25

26
27

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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 Plaintiff John Musero (“Musero”) is a lawyer-turned-aspiring TV show writer who filed a

4 fatally vague Complaint - perhaps intentionally so – alleging that his talent agency

5 misappropriated his TV show idea and provided insufficient representation. Plaintiff appears to

6 have arranged his Complaint in such a way as to bury his breach of contract claim at the end of the

7 pleading, despite the claim being, in reality, the foundation of this action (the Plaintiff does not get

8 around to alleging the existence of a contract until Paragraph 75). Although taking pains to avoid

9 naming it so, the Plaintiff is clearly alleging the existence of an “idea submission” or “Desny”

10 claim, so named for Desny v. Wilder, (1956) 46 Cal.2d 715, 731-732, and for good reason; but for

11 the existence of a Desny claim, the Plaintiff’s idea theft allegations would be subject to The

12 Copyright Act, and removal to federal court would be proper.

13 Presumably, the reason that the Plaintiff has hidden his Desny claim allegation in the back

14 of the Complaint and underneath layers of complaints about CAA’s alleged poor service, is

15 because he does and cannot allege that his talent agency entered into a Desny claim with him. A

16 Desny claim requires a showing that the Plaintiff provided an original idea to the defendant with

17 the pre-disclosure understanding that the defendant would pay the plaintiff for its use. Desny, 46

18 Cal.2d at 733-734. Here, the Plaintiff is quietly suggesting (never truly embracing) that he

19 submitted his original work to his agents with the expectation that his agents would pay him for

20 its use; a position the Plaintiff knows to be unsupportable, which is why the allegations are so

21 faint, and so buried. Plaintiff never intended CAA to compensate him for the use of his work and

22 does not allege that he did.

23 Elsewhere, the rest of Plaintiff’s Complaint is chalk full of suspicion, speculation,

24 conjecture, conclusory statements and guess work, but is devoid of requisite factual allegations. 1

25 For example, Plaintiff fails to plead requisite allegations for his implied-in-fact contract claim or

26
27
1
In the concurrently filed anti-SLAPP motion, Defendants wholly deny Plaintiff’s misappropriation allegation.
28
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1 provide any information regarding what portions of his work were misappropriated and by which

2 Defendants. Nor does Plaintiff plead when the supposed contract was entered into, with whom it

3 was entered into, and fails to allege any information regarding what the terms of the supposed

4 contract were. But most importantly, Plaintiff fails to allege he disclosed his idea for purposes of

5 sale of that idea to Defendants – because Defendants were his agents – yet this is an essential

6 allegation of a Desny claim. Id. at 731–732. Despite allegations that third-parties, other than

7 Defendants, wrote, produced and distributed a similar TV drama, in conclusory form, the

8 Complaint amorphously alleges the existence of some implied contract between the Plaintiff and

9 all Defendants.

10 The Complaint allegations are grossly insufficient to support any cause of action.

11 II. PLAINTIFF’S ALLEGATIONS

12 Plaintiff alleges that he is a professional writer, who was represented by CAA agents

13 Miller and Yerushalaim beginning in June of 2014. Complaint, ¶¶ 11, 15, 16. The Plaintiff’s

14 Complaint consists of two main grievances: the first is that Defendants failed to provide

15 satisfactory services as his agents. The second is that Defendants misappropriated one of his

16 creative works; a television concept called Main Justice.

17 A. Plaintiff’s Allegations of Mismanagement.

18 Plaintiff’s Complaint alleges he was given inadequate attention and deficient services by

19 his talent agency. Plaintiff alleges that he wrote and developed a television pilot called Influence

20 in September of 2014. Id. at ¶ 18. Plaintiff acknowledges that Miller and Yerusalaim assisted him

21 in refining the show and submitted it to “a handful of producers,” eventually catching the attention

22 of Storyline Entertainment, which expressed an interest in producing the pilot. Id. at ¶¶ 18, 19.

23 However, the Plaintiff alleges that this work was insufficient, and that in some undefined manner

24 Defendants should have shopped the pilot around further, and alleges “upon information and

25 belief” that Defendants purposely restricted who saw the proposed pilot in order to benefit

26 Storyline and harm Plaintiff. Id. at ¶ 21.


27 The Plaintiff goes on to allege that a similar set of events took place with his second pilot,

28 Main Justice, a TV drama about the United States Department of Justice Id. at ¶ 22-36. In the
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1 case of Main Justice, the Plaintiff again admits that Defendants “worked with Musero to refine

2 Main Justice and prepare it for consideration and sale to buyers,” and they “compiled a list of

3 buyers to whom” they would submit Main Justice. Id. at ¶ 23. Again, a production company, The

4 Mark Gordon Co., took an interest in Musero’s work and obtained a one year option for the rights

5 to Main Justice. Id. at ¶ 32. Musero then alleges that Defendants failed to adequately negotiate the

6 Plaintiff’s pay, or to obtain a high enough value for Main Justice, and did not provide adequate

7 assistance when Musero ran into trouble being paid by The Mark Gordon Company. Id. at ¶¶ 31,

8 35.

9 Finally, the Plaintiff alleges that Defendants never submitted Musero for open positions on

10 television series, despite promising that they would. Id. at ¶¶ 49, 50, 57.

11 B. Plaintiff’s Allegations of Misappropriation.

12 Plaintiff next alleges, generally, that his Main Justice script was taken by Miller and shared

13 with Miller’s other clients who “harvested” Musero’s work in order to create their own version of

14 the show – essentially copying Musero’s work as their own. Id. at ¶¶ 37-48. The Plaintiff appears

15 to assume that CAA was the source of the “leak” of his work, even while acknowledging that he –

16 not CAA - shared Main Justice with the Dan Jinks Company, a CBS Studios affiliate, and that

17 Plaintiff “on his own accord” – not CAA – also shopped Main Justice around to Robert Katz and

18 Nick Pepper at The Mark Gordon Company. Id. at ¶¶ 24, 25. Despite acknowledging that the

19 Plaintiff put Main Justice in the hands of two studios, and thus potentially their countless

20 producers, writers, and employees, the Complaint alleges “on information and belief” that it was

21 Miller who shared Main Justice with the individuals who would later go on to write a TV drama

22 about the United States Department of Justice. Id. at ¶ 41.

23 III. STATEMENT OF AUTHORITY ON DEMURRER.

24 A demurrer tests the legal sufficiency of a claim. (5 Witkin, California Procedure (4th ed.

25 1997) Pleading § 899.) A court may accept only properly pleaded allegations of fact and

26 judicially noticed matters, and not mere contentions, deductions, or conclusions of fact or law or
27 assertions contradicted by judicially noticeable facts. (Evans v. City of Berkeley (2006) 38 Cal.4th

28 1, 20.) If there is no “reasonable possibility” that a plaintiff can cure a defect by amendment, a
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1 court should sustain the demurrer with prejudice. (Heckendorn v. City of San Marino (1986) 42

2 Cal.3d 481, 486.) A plaintiff must prove such reasonable possibility. (Blank v. Kirwan (1985) 39

3 Cal.3d 311, 318 (citation omitted).)

4 IV. PLAINTIFF FAILS TO PLEAD FACTS SUFFICIENT TO SUSTAIN ANY CAUSE

5 OF ACTION AGAINST DEFENDANTS.

6 Because the Plaintiff has arranged his Complaint so as to bury his primary allegations, this

7 Memorandum of Points and Authorities will address the three causes of action in reverse order.

8 The Memorandum will then address the fatal uncertainty that permeates the pleadings.

9 A. Plaintiff’s Third Cause of Action Must Fail for Want of Sufficient Allegations

10 to Constitute a Cause of Action.

11 In the absence of an actionable copyright claim, the law does not afford any property right

12 in an idea. See Desny, 46 Cal.2d at 731– 732. California’s Supreme Court, however, has

13 recognized that there may, under limited circumstances, be either an express or implied contract

14 concerning the defendant’s use of a plaintiff’s idea. See Desny, 46 Cal.2d at 733-734. Under this

15 narrow exception, a plaintiff’s initial disclosure of an idea can serve as consideration for a

16 defendant’s promise of payment for that idea if used. See Desny, 46 Cal.2d at 733 (“That

17 disclosure may therefore be consideration for a promise to pay .. . .”); Grosso v. Miramax Film

18 Corp., (9th Cir. 2004) 383 F.3d 965, 967. A Desny implied contract “is justified on the theory

19 that the bargain is not for the idea itself, but for the services of conveying that idea.” Grosso, 383

20 F.3d at 967; Desny, 46 Cal.2d at. at 737-38 (“[C]onveyance of an idea can constitute valuable

21 consideration and can be bargained for before it is disclosed to the proposed purchaser, but once

22 it is conveyed, i.e., disclosed to him and he has grasped it, it is henceforth his own and he may

23 work with it and use it as he sees fit.”). Thus, an implied contract may exist where there is a

24 mutual understanding that the plaintiff will be compensated if the defendant uses the plaintiff’s

25 idea. See Desny, 46 Cal.2d at 739.

26 The Complaint fails to allege, however, the formation of an implied contract between

27 plaintiff and these defendants or that these defendants agreed to pay for and used Plaintiff’s

28 idea. First, the Complaint does not allege facts supporting the conclusion that Plaintiff and
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1 Defendants entered into an implied contract whereby there was a mutual understanding that

2 Defendants would purchase Main Justice. Specifically, Plaintiff has failed to allege facts that he

3 disclosed his Main Justice idea for sale to Defendants, that he conditioned his disclosure of

4 Main Justice on Defendants’ payment for any use of that idea, and that Defendants agreed to

5 such terms in advance. See Mann v. Columbia Pictures, Inc., (1982) 128 Cal.App.3d 628, 647

6 n.6; Faris v. Enberg, (1979) 97 Cal.App.3d 309, 318. Critically, Plaintiff must have “clearly

7 conditioned” his disclosure of Main Justice on an obligation by Defendants to pay for its use.

8 See Desny, 46 Cal.2d at 739; Mann, 128 Cal.App.3d at 646; Spinner v. American Broadcasting

9 Companies, Inc., (2013) 215 Cal.App.4th 172. That the Complaint alleges that Main Justice was

10 provided to or misappropriated by Defendants is grossly insufficient as a matter of law. See

11 Desny, 46 Cal.2d at 739. (“The law will not imply a promise to pay for an idea from the mere

12 facts that the idea has been conveyed, is valuable, and has been used for profit; this is true even

13 though the conveyance has been made with the hope or expectation that some obligation will

14 ensue.”). Rather, there must be a “bilateral understanding of payment” for the plaintiff’s

15 disclosure of his idea. Montz v. Pilgrim Films & TV, Inc., (9th Cir. 2011) 649 F.3d 975, 976.

16 Here, the Complaint vaguely concludes, without any factual allegations, the existence of

17 an implied agreement between Plaintiff and all Defendants, including CAA. Complaint, ¶ 75.

18 This, however, is nothing more than the kind of conclusory allegations that California courts

19 find insufficient to plead a claim. “[A]llegations constituting legal conclusions are not

20 provisionally admitted for the purposes of a demurrer. Moreover, a demurrer does not admit a

21 conclusion of law…” Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276,

22 291. Notably, the Complaint fails to allege facts supporting critical elements that would be

23 required to support a Desny claim. Plaintiff has failed to allege any factual allegations that

24 Plaintiff submitted his Main Justice idea to Defendants for the purpose of selling that idea to

25 Defendants and that the disclosure of that idea was clearly conditioned on Defendants

26 agreement to pay for Main Justice if used by them. Rather, the Complaint alleges that third
27 parties produced and distributed a similar TV show titled Main Justice. Complaint ¶¶ 37-39, 41,

28 43-46, 63(f), 68(f), 77. Accordingly, absent from the Complaint is any factual allegations that
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1 would support the conclusion that Defendants, including each of them, entered into an implied

2 contract with Plaintiff to pay for the use of his idea Main Justice.

3 Second, and equally fatal to Plaintiff’s claim for breach of implied contract is the

4 absence of any allegations that Defendants themselves actually used any of the ideas Plaintiff

5 submitted to them – as opposed to third parties, as required by Desny. See Spinner, 215

6 Cal.App.4th at 184; Mann, 128 Cal.App.3d at 646–647. Again, the Complaint alleges that third

7 parties, not Defendants themselves, produced a show with the same title Main Justice.

8 Complaint ¶¶ 37-39, 41, 43-46, 63(f), 68(f), 77. At most, Plaintiff alleges on information and

9 belief the bald conclusion that Defendants purportedly shared his idea for Main Justice with

10 another writer represented by Defendants who wrote a TV drama also titled Main Justice.

11 Complaint ¶ 39. The elements of a Desny claim are not satisfied by alleging a third party

12 used Plaintiff’s idea, without alleging use by Defendants.

13 B. Plaintiff’s Second Cause of Action Must Fail for Want of Sufficient Allegations

14 to Constitute a Cause of Action.

15 The second cause of action fails to state a claim because there is no allegation that the

16 supposed breach is grounded in contract. “There is no obligation to deal fairly or in good faith

17 absent an existing contract.” Racine & Laramie, Ltd. v. Department of Parks & Recreation,

18 (1992) 11 Cal.App.4th 1026,1032; see also Foley v. Interactive Data Corp., (1988) 47 Cal.3d 654

19 (“An allegation of breach of the implied covenant of good faith and fair dealing is an allegation of

20 breach of an ‘ex contractu’ obligation, namely one arising out of the contract itself.”). “Although

21 breach of the implied covenant often is pleaded as a separate count, a breach of the implied

22 covenant is necessarily a breach of contract.” Digerati Holdings, LLC v. Young Money

23 Entertainment, LLC (2011) 194 Cal.App.4th 873, 885.

24 Plaintiff’s Complaint only states that “[d]uring Defendants’ representation of Plaintiff

25 there was an implicit covenant of good faith and fair dealing.” Complaint, ¶ 67. This is merely an

26 unsupported legal conclusion and is insufficient. While the Court must accept the facts alleged as
27 true, the Court may not “assume the truth of contentions, deductions or conclusions of law.”

28 Berger v. California Ins. Guarantee Assn., (2005) 128 Cal.App.4th 989, 998 (citing Aubry v. Tri-
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1 City Hospital Dist. (1992) 2 Cal.4th 962, 967). Where an “allegation states only a legal

2 conclusion, rather than pleading facts [ ] such is inadequate.” Id. at 1006 (citing Kenneth Mebane

3 Ranches v. Superior Court (1992) 10 Cal.App.4th 276, 291

4 Plainly, the Plaintiff does not allege the existence of a contract at any point through

5 paragraph 71, the final paragraph of the second cause of action. The first allegation of the

6 existence of a contract is in paragraph 75 (in the third cause of action). Thus, there is no allegation

7 either actually in the second cause of action or incorporated into the second cause of action by

8 reference, alleging the existence of an underlying contract. Without an underlying contract from

9 which the Covenant of Good Faith and Fair Dealing must spring, this cause of action fails to state

10 a claim. See Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 349 (“The covenant [of good

11 faith and fair dealing] cannot be endowed with an existence independent of its contractual

12 underpinnings.”) (quoting Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153); see

13 also Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683–684, 689–690 (“The implied

14 covenant of good faith and fair dealing rests upon the existence of some specific contractual

15 obligation.”).

16 C. Plaintiff’s First Cause of Action Must Fail for Want of Sufficient Allegations

17 to Constitute a Cause of Action.

18 The first cause of action for Breach of Fiduciary Duty and Confidentiality fails to state a

19 claim because there are no facts pled that illustrate what confidential information was taken from

20 the Plaintiff and shared inappropriately with others, with whom that information was shared, or

21 when.

22 “The elements of a cause of action for breach of fiduciary duty are: (1) existence of a

23 fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the

24 breach.” Tribeca Companies, LLC v. First American Title Ins. Co., (2015) 239 Cal.App.4th 1088.

25 113 (internal citations omitted). “In order to plead a cause of action for breach of fiduciary duty,

26 there must be an adequate showing of each of these elements.” City of Atascadero v. Merrill
27 Lynch, Pierce, Fenner & Smith, Inc., (1998) 68 Cal.App.4th 445, 483. Assuming the Plaintiff has

28 pled the existence of a fiduciary relationship, and has adequately pled that he was damaged as a
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1 result of a breach of this duty, the Plaintiff has failed to allege adequate facts to satisfy the second

2 element: the breach of the duty.

3 Plaintiff’s conclusory allegation that Defendants “misappropriated Plaintiff’s original and

4 creative work” is entirely insufficient. See Complaint, ¶ 63(f). The Plaintiff fails to allege what

5 elements of his work were misappropriated, when, or how. “[A]llegations constituting legal

6 conclusions are not provisionally admitted for the purposes of a demurrer. Moreover, a demurrer

7 does not admit a conclusion of law…” Kenneth Mebane Ranches v. Superior Court (1992) 10

8 Cal.App.4th 276, 291. Plaintiff’s bare allegation that the Defendants “harvested” (i.e., which is

9 commonly defined as “gathering” or “collecting”) his work is entirely unintelligible and

10 prohibitively vague. Is the Plaintiff alleging written or verbally-conveyed ideas or concepts were

11 taken and, if so, by what Defendants and for what concepts and with whom were they shared and

12 when? Is the Plaintiff alleging direct access to his work and copying on the part of Defendants and

13 third parties, and if so, what third parties (e.g., Sascha Penn, CBS, Bruckheimer)? If copying is

14 alleged, what specific content was copied, and is Plaintiff alleging substantial similarities between

15 his work and the purported copied work? If so, is the copied work that is substantially similar a

16 treatment, script or pilot? The Plaintiff’s conclusory allegation of “misappropriation” without

17 more simply fails to state a claim.

18 V. PLAINTIFF’S COMPLAINT, AND EACH CAUSE OF ACTION THEREIN, IS

19 IMPERMISSIBLY UNCERTAIN AND VAGUE.

20 Although pleading “on information and belief” is not improper, per se, it is proper only so

21 long “as the pleading gives notice of the issues sufficient to enable preparation of a defense.” Doe

22 v. City of Los Angeles, (2007) 42 Cal.4th 531, 549-550 (citing Okun v. Superior Court (1981) 29

23 Cal.3d 442, 458). Further, facts pled upon information and belief, without stating the basis for that

24 belief, is improper. Id. at fn. 5; see also Pridonoff v. Balokovich, (1951) 36 Cal.2d 788, 792

25 (Defendants must be “informed of the exact nature of the claim of special damages and afforded

26 an opportunity to prepare a defense against it. That is all that is required of the allegation.”).
27 “Each element must be pleaded with particularity so as to apprise the defendant of the

28 specific grounds for the charge and enable the court to determine whether there is any basis
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1 for the cause of action, although less specificity is required if the defendant would likely have

2 greater knowledge of the facts than the plaintiff.” Elder v. Pacific Bell Telephone Co., (2012) 205

3 Cal.App.4th 841, 848 (emphasis added). “A pleading is adequate so long as it apprises the

4 defendant of the factual basis for the plaintiff's claim." McKell v. Washington Mut., Inc., (2006)

5 142 Cal.App.4th 1457, 1469-1470

6 The Complaint is so uncertain as to the gravamen of the Complaint’s misappropriation

7 allegation that it does not apprise Defendants of the basis for Musero’s claims, thereby denying

8 Defendants an ability to adequately respond or prepare a defense. For example:

9 (1) The Complaint is prohibitively vague as to what elements of Sascha Penn’s Main
Justice were copied, and, if so, what they were copied from (e.g., oral conversation,
10 script, treatment or pilot);
11 (2) The Complaint does not explain what contract the second cause of action is based
12 upon; and

13 (3) The Complaint does not explain what contract implied in fact was breached (cause of
action three), who the parties to the contract were, what the terms of the contract were,
14 or when the contract was created.

15 Code of Civil Procedure § 430.10(f) (a complaint is subject to demurrer where it is


16 “uncertain,” “ambiguous,” or “unintelligible.’)

17 Further, all three causes of action improperly group the defendants together by ascribing
18 alleged conduct to “Defendants,” making it impossible to understand why each person has been

19 sued. See Complaint at ¶¶ 20, 23, 26-28, 35, 47, 48, 56, 59, 63(a)-(g), 64, 65, 68(a)-(g), 69-71, 73-

20 75, 77-80; See also Derrick v. Ontario Community Hospital, (1975) 47 Cal.App.3d 145, 149

21 (noting that failure to differentiate between defendants rendered complaint uncertain and

22 ambiguous and necessitated amendment); Hawley Bros. Hardware Co. v. Brownstone (1899) 123

23 Cal. 643, 645-648 (holding that a demurrer should have been sustained for uncertainty where the

24 complaint indiscriminately used “defendant” to refer to several possible parties);. As a result,

25 these causes of action are fatally uncertain under Code of Civil Procedure § 430.10(f). The

26 Complaint almost never differentiates between the Defendants, making it impossible to know
27 which defendants are accused of what wrongdoing. See Complaint, ¶¶ 21, 28, 31, 40-47, 50, 52.

28 For example, Paragraph 77 alleges that “Defendants breached the agreement” without explaining
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1 which defendant breached and what each defendant did to constitute a breach.

2 For the reasons, discussed in more detail herein, all three causes of action fail for want of

3 certainty and sufficient allegations to constitute a cause of action.

4 A. The Plaintiff’s First Cause of Action is Fatally Uncertain.

5 The first cause of action for Breach of Fiduciary Duty and Confidentiality is also uncertain.

6 (Cal. Code Civ. Proc. § 430.10(f).) The first cause of action is unintelligible, and it is not clear

7 what Plaintiff means by “misappropriated.” “A pleading is adequate so long as it apprises the

8 defendant of the factual basis for the plaintiff's claim." McKell v. Washington Mut., Inc., (2006)

9 142 Cal.App.4th 1457, 1469-1470. Plaintiff’s complaint does nothing to apprise defendants “of

10 the factual basis for the Plaintiff’s claim.” Plaintiff’s bare allegation that the Defendants

11 “harvested” his work is entirely unintelligible and prohibitively vague. See Complaint, ¶¶ 43,

12 63(f), 68(f), 77/ What ideas or concepts were taken by the Defendants and what concepts were

13 shared by the Defendants? With whom were his ideas shared and when? What does “harvest”

14 mean; is the Plaintiff alleging direct access to his work and copying on the part of Defendants, are

15 does he allege substantial similarities between his work and the purported copied work? What are

16 the similarities?

17 B. The Plaintiff’s Second Cause of Action is Fatally Uncertain.

18 Even if the Court were to assume incorporation of paragraph 75 into the second cause of

19 action, the “agreement implied in fact” alleged to have existed in paragraph 75 is not pled with

20 sufficient specificity. For example, there is no information anywhere in the Complaint concerning

21 when this alleged contract implied in fact was formed, what its terms were or who the parties

22 were. This is critical to the second cause of action because “the specific nature of the obligations

23 imposed by the implied covenant of good faith and fair dealing are dependent upon the

24 nature and purpose of the underlying contract and the legitimate expectations of the parties

25 arising from the contract . . .” Bodenhamer v. Superior Court, (1987) 192 Cal.App.3d 1472,

26 1478 (emphasis added); see also Digerati Holdings, LLC 194 Cal.App.4th at 885 (“The scope of
27 conduct prohibited by the implied covenant depends on the purposes and express terms of

28 the contract.”); Guz, 24 Cal.4th at 349 (noting that the covenant of good faith and fair dealing
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1 “cannot impose substantive duties or limits on the contracting parties beyond those incorporated

2 in the specific terms of their agreement.”). Thus, without knowing what the underlying contract

3 was, we cannot ascertain whether or not the corresponding implied covenant of good faith and fair

4 dealing was actually breached. Without any knowledge as to what contract and terms underlie the

5 second cause of action, Defendants are not apprised of the claim, and cannot mount a defense or

6 analyze the contract for purposes of the statute of frauds or the statute of limitations.

7 For this reason, the second cause of action both fails to state a claim (because it fails to

8 allege the existence of an underlying contract) and in uncertain (because the only contract alleged

9 in the Complaint – in paragraph 75, cause of action three – is so uncertain as to make it impossible

10 to understand the “scope of the conduct prohibited by the [alleged] implied covenant”).

11 C. The Plaintiff’s Third Cause of Action is Fatally Uncertain.

12 Finally, even if the Complaint alleged facts sufficient to support a Desny breach of contract

13 cause of action, the claim remains prohibitively uncertain. “A cause of action for breach of

14 contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform,

15 defendant's breach and damage to plaintiff resulting therefrom.” Crossroads Investors LP v. Fed.

16 Nat’l Mortg. Assoc., (2017) 13 Cal.App.5th 757, 792 (citing McKell v. Washington Mutual, Inc.

17 (2006) 142 Cal.App.4th 1457, 1489. The pleading has not provided the Defendants with any

18 information regarding this alleged contract. With whom was it entered into? When? What were the

19 terms? To be adequate, a cause of action must apprise “the defendant of the factual basis for the

20 plaintiff's claim." McKell v. Washington Mut., Inc., (2006) 142 Cal.App.4th 1457, 1469-1470.

21 To establish a breach of a Desny claim, “the plaintiffs must prove that: (1) the defendants

22 had access to the plaintiffs' ideas; and (2) at least one material idea used to produce the defendants'

23 work was similar to an idea disclosed to them by the plaintiffs.” Miller v. Miramax Film Corp.,

24 2001 U.S. Dist. LEXIS 25967, *40. Plaintiff has not identified “any material idea used to produce

25 the defendants’ work” which was “similar to an idea disclosed to them” by Musero. Indeed, the

26 Plaintiff merely alleges, conclusively, that his work was “misappropriated.” Misappropriated how?
27 Which element of his work constitutes the basis for breach of his Desny claim? The Plaintiff has

28 failed to allege the essential factual element of a breach of contract claim: the breach. Again, the
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1 Plaintiff’s complaint fails to state requisite elements of a breach of an implied in fact contract

2 cause of action.

3 Without any information regarding the alleged contract, the Defendants are unable to

4 address the Plaintiff’s breach of contract claim. Without this information it is impossible to know

5 if the statute of limitations has expired, or if the contract falls within the statute of frauds.

6 VI. CONCLUSION

7 For the above reasons, Defendants respectfully request that this Court grant this demurrer,

8 in toto.

10 DATED: May 21, 2019 LEWIS BRISBOIS BISGAARD & SMITH LLP

11

12
By:
13 Craig Holden
Attorneys for Defendants Creative Artists Agency,
14 LLC, Andrew Miller and Leah Yerushalaim.
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1 DECLARATION OF CRAIG HOLDEN

2 I, Craig Holden, declare as follows:

3 1. I am an attorney duly admitted to practice in all of the courts of the State of

4 California and I am a partner with Lewis Brisbois Bisgaard & Smith LLP, attorneys of record for

5 Creative Artists Agency, LLC, Andrew Miller and Leah Yerushalaim herein. The facts set forth

6 herein are of my own personal knowledge, and if sworn I could and would competently testify

7 thereto.

8 2. On April 26, 2019, the parties stipulated in writing to extend the deadline to file

9 responsive pleadings to the Complaint until May 17, 2019.

10 3. On May 16, 2019, the parties stipulated in writing to extend the deadline to file

11 responsive pleadings to the Complaint until May 21, 2019.

12 4. On Tuesday, May 7, 2019, in accordance with Code of Civil Procedure Section

13 425.14, I drafted and caused to be served a letter to counsel for Plaintiff outlining the grounds my

14 demurrer to the Complaint. In that letter, I asked to set up a time to discuss my client’s position

15 over the phone.

16 5. On Thursday, May 9, 2019, Jessica Philips, counsel for Plaintiff, emailed me back

17 and stated “It is our position that the Complaint is sufficiently plead and if you intend to move

18 forward with the motion, you should do so and we will respond accordingly.” Thus, this demurrer

19 was necessary.

20 I declare under penalty of perjury under the laws of the State of California that the

21 foregoing is true and correct and that this declaration was executed on May 20, 2019, at Los

22 Angeles, California.

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24
Craig Holden
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