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Electronically FILED by Superior Court of California, County of Los Angeles on 05/21/2019 03:06 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’ MOTION TO STRIKE


PORTIONS OF PLAINTIFF’S
14 vs. UNVERIFIED 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 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:


24 PLEASE TAKE NOTICE that on August 5, 2019, at 8:30 a.m., or as soon thereafter as the
25 matter may be heard in Department 31 of the above-entitled Court, located at 111 N. Hill Street,

26 Los Angeles, CA 90017, Defendants CREATIVE ARTISTS AGENCY, LLC, ANDREW


27 MILLER and LEAH YERUSHALAIM (collectively referred to as “Defendants”) will and hereby

28 do move to strike those portions of Plaintiff JOHN MUSERO’s Complaint seeking punitive
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1 damages. Specifically this would include the following portions of the Complaint (See Complaint,

2 attached as Exhibit A to the Declaration of Craig Holden.):

3 • Page 15, paragraph 65, in its entirety;

4 • Page 17, paragraph 71, in its entirety

5 • Page 19, paragraph 80, in its entirety;

6 • Page 19, lines 20 and 21 in their entirety.

7 Defendant brings this Motion on grounds that Plaintiff fails to allege the requisite facts to

8 support a claim for punitive damages against Defendants, and, because Plaintiff is not entitled to

9 punitive damages on his Breach of Contract claim.

10 This Motion is based on this Notice, the accompanying Memorandum of Points and

11 Authorities, the declaration of Craig Holden, the papers and records on file herein, any documents

12 of which the Court can take judicial, and such other and further evidence as may be presented at

13 the time of the hearing.

14

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

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By:
18 Craig Holden
Attorneys for Defendants Creative Artists Agency,
19 LLC, Andrew Miller and Leah Yerushalaim.
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 This action in grounded in Plaintiff John Musero’s allegation that Creative Artists Agency,

4 LLC (“CAA”), as well as two of its agents, Andrew Miller (“Miller”) and Leah Yerusalaim

5 (“Yerusalaim”) (collectively referred to as “Defendants”), provided unsatisfactory representation

6 of the Plaintiff, a lawyer-turned-aspiring TV show writer. Plaintiff further alleges that Defendants

7 misappropriated his idea for a TV show and shared it with third-parties who developed a TV show

8 with the same title. The Complaint alleges causes of action for Breach of Fiduciary Duty, Breach

9 of Contract and a Breach of the Implied Covenant of Good Faith and Fair Dealing. The Complaint

10 seeks punitive damages against all three defendants including on contract claims. See Complaint,

11 at pg. 19, ln. 20-21, attached as Exhibit A to Declaration of Craig Holden.

12 As demonstrated below, the factual allegations of the Complaint fail to allege a sufficient

13 basis to support a claim for punitive damages against Defendants. Aside from conclusory

14 allegations that Defendants acted maliciously, there are no requisite factual allegations to support

15 any malicious, oppressive or fraudulent conduct. Nor are there allegations to justify a punitive

16 damages claim against CAA as the Complaint does not allege that any CAA officer, director, or

17 managing agent, knew that any agent was unfit or ratified the allegedly tortious actions of any

18 employee. Without such allegations or evidence, Plaintiff’s claim for punitive damages fails as a

19 matter of law. Civ. Code § 3294. Moreover, Plaintiff’s claim for punitive damages on his Breach

20 of Contract claim is void as a matter of law because “[i]n the absence of an independent tort,

21 punitive damages may not be awarded for breach of contract even where the defendant's conduct

22 in breaching the contract was wilful, fraudulent, or malicious.” Cates Construction, Inc. v. Talbot

23 Partners, (1999) 21 Cal. 4th 28, 61; See also Civ. Code, § 3294(a)).

24 Plaintiff’s punitive damages allegations and prayer for punitive damages must therefore be

25 stricken in their entirety.

26 II. PLAINTIFF’S ALLEGATIONS


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

28 Miller and Yerushalaim beginning in June of 2014. Complaint, ¶¶ 11, 15, 16. The Plaintiff’s
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1 Complaint consists of two main grievances: the first is that Defendants failed to provide

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

3 creative works; a television concept called Main Justice. Neither rises to the level of oppression,

4 fraud or malice necessary to sustain a plea for punitive damages.

5 A. Plaintiff’s Allegations of Mismanagement.

6 Plaintiff alleges that he wrote and developed a television pilot called Influence in

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

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

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

10 However, the Plaintiff alleges that this effort was insufficient, and that Defendants should have

11 shopped the pilot around further, and alleges “upon information and belief” that Defendants

12 purposely restricted who saw the proposed pilot in order to benefit Storyline and harm Plaintiff.

13 Id. at ¶ 21.

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

15 Main Justice, a drama which takes place at the United States Justice Department Id. at ¶ 22-36. In

16 the case of Main Justice, the Plaintiff again admits that Defendants “worked with Musero to refine

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

18 buyers to whom” they would submit Main Justice. Id. at ¶ 23. A prominent Emmy Award

19 winning production company, The Mark Gordon Co., took an interest in Musero’s work and

20 obtained a one year option for the rights to Main Justice. Id. at ¶ 32. Musero then alleges that

21 Defendants failed to adequately negotiate the Plaintiff’s pay, or to obtain a high enough value for

22 Main Justice, and did not provide adequate assistance when Musero ran into trouble being paid by

23 The Mark Gordon Company. Id. at ¶¶ 31, 35.

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

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

26 B. Plaintiff’s Allegations of Misappropriation.


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

28 with Miller’s other clients who “harvested” Musero’s work in order to create their own version of
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1 the show – essentially copying Musero’s work as their own. Id. at ¶¶ 37-48. The Plaintiff appears

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

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

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

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

6 Plaintiff put Main Justice in the hands of two studios, and potentially their countless producers,

7 writers, and employees, “on information and belief,” the Plaintiff alleges that it was Miller, alone,

8 who shared Main Justice with the individuals who would later go on to write a show about the

9 United States Justice Department. Id. at ¶ 41.

10 C. Plaintiff’s Punitive Damages Claims.

11 The Plaintiff alleges conclusively that the aforementioned acts “constitutes oppression,

12 fraud and/or malice” “entitling Plaintiff to an award of punitive damages.” Id. at ¶¶ 65, 71, 80.

13 III. LEGAL STANDARD

14 Courts are permitted to strike from any pleading irrelevant, false, or improper matters as

15 long as appropriate notice requirements have been met. Code Civ. Proc. § 435. Specifically,

16 Section 435 provides in pertinent part that “[a]ny party, within the time allowed to respond to a

17 pleading may serve and file a notice of motion to strike the whole or any part thereof.”

18 Further, Code of Civil Procedure § 436 provides that “[t]he court may, upon any motion

19 made pursuant to section 435, or at any time in its discretion, and upon terms it deems proper; (a)

20 strike out any irrelevant, false, or improper matter inserted in any pleading,” and “(b) strike out all

21 of any part of any pleading not drawn or filed in conformity with the law of this state, or court

22 rule, or any order of the court.”

23 IV. PLAINTIFF HAS NOT ALLEGED SUFFICIENT FACTS TO SUPPORT A CLAIM

24 FOR PUNITIVE DAMAGES AGAINST DEFENDANTS

25 Plaintiff fails to allege sufficient facts showing that Defendants engaged in oppression,

26 fraud, or malice as those terms are defined in California Civil Code § 3294, subdivision (c); see
27 Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. Plaintiff’s claims against Defendants

28 similarly fail to allege sufficient facts allowing for the recovery of punitive damages because
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1 plaintiff has not alleged facts showing that an officer, director, or managing agent engaged in,

2 authorized, or ratified the oppression, fraud, or malice alleged by the Plaintiff. See Cal. Civ.

3 Code, § 3294, subd. (b).

4 A. Plaintiff Has Not Alleged Facts Showing Oppression, Fraud, or Malice

5 The mere allegation an intentional tort was committed is not sufficient to warrant an award

6 of punitive damages. See Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894, citing Prosser, Law

7 of Torts (4th ed. 1971) § 2, at pp. 9-10. "Not only must there be circumstances of oppression,

8 fraud or malice, but facts must be alleged in the pleading to support such a claim." Grieves v.

9 Superior Court (1984)157 Cal. App. 3d 159, 166, citing G. D. Searle & Co. v. Superior Court

10 (1975) 49 Cal.App.3d 22, 29. Even alleging the "magic language" of California Civil Code §3294

11 without factual support is insufficient. See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-

12 7 (Pleading in the language of the statute is not objectionable when sufficient facts are alleged to

13 support the allegation); see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 (punitive

14 damages allegation stricken due to lack of alleged facts to support fraud, oppression or malice).

15 Indeed, because the defendant is entitled to notice of the specifics of the punitive damages

16 claim, the requirement of specificity in the allegation of punitive damages is a rigid one, not

17 subject to California's rule of liberal construction of pleadings. See G. D. Searle & Co. v. Superior

18 Court (1975) 49 Cal. App. 3d 22, 29 ("Notwithstanding relaxed pleading criteria, certain tortious

19 injuries demand firm allegations… Vague, conclusory allegations of fraud or falsity may not be

20 rescued by the rule of liberal construction… When a defendant must produce evidence in defense

21 of an exemplary damage claim; fairness demands that he receive adequate notice of the kind of

22 conduct charged against him.").

23 “[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit

24 an award of punitive damages. . . The mere carelessness or ignorance of the defendant does not

25 justify the imposition of punitive damages. . . Punitive damages are proper only when the tortious

26 conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens
27 should not have to tolerate.” Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co., (1986)

28 185 Cal. App. 3d 1149, 1154 ; see also Duffy v. Cavalier, (1989) 259 Cal. Rptr. 162, 176 (noting:
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1 “[w]e recognize that a breach of fiduciary duty, by itself, does not justify an award of punitive

2 damages.”) Even if an actor has acted unreasonably or inappropriately, it need not follow that he

3 or she also acted with malice. Duffy, 259 Cal. Rptr at 176 (citing Silberg v. California Life Ins. Co.

4 (1974) 11 Cal.3d 452, 462-463).

5 Plaintiff’s complaint fails to allege any specific facts that can lead to the sustaining of a

6 finding of malice, oppression or fraud. Although the complaint contains the "magic language" of

7 Civil Code § 3294 (i.e. malice and oppression), it fails to present any facts which actually support

8 these conclusory allegations. Plaintiff is alleging that, in retrospect, he was unhappy with his

9 representation by Defendants, that Defendants neglected him (Complaint ¶¶ 20, 35, 50, 52, 56,

10 63(a)(g), 68(a)(g)) or pursued a strategy in his representation with which he now disagrees

11 (Complaint ¶¶ 28, 63(b)(c), 68(b)(c)), and he now believes they did not adequately fight for the

12 realization of his ideas (Complaint ¶¶ 28, 31, 35, 63(e), 68(e)). At worst, and even if taken as true

13 for pleading purposes, the Plaintiff is also alleging that Miller passed on Musero’s idea to another

14 writer, who used the idea as the basis for his own work. These claims are, at their core, creative

15 and commercial disagreements in the entertainment industry, and allegations of neglect. They do

16 not rise to the level of “malice, oppression or fraud,” or constitute an “extreme indifference”

17 which “decent citizens should not tolerate” as required by the statute and case law. Nor do the

18 allegations come close to meeting any standard of specificity; they are based entirely on

19 “information and belief.”

20 In short, Plaintiff’s Complaint, which gives rise to the issues to be adjudicated at trial, does

21 not comply with California statutory requirements that allow for punitive damages. Even if all

22 factual allegations as to his claims were proven true, Plaintiff would not be entitled to recover

23 punitive damages as a matter of law.

24 1. As a Matter of Law, Plaintiff is not Entitled to Punitive Damages on his

25 Breach of Contract Claim.

26 Plaintiff seeks punitive damages on his Breach of Contract claim (paragraph 80). This is

27 improper. "Punitive or exemplary damages, which are designed to punish and deter statutorily

28 defined types of wrongful conduct, are available only in actions 'for breach of an obligation not
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1 arising from contract.' In the absence of an independent tort, punitive damages may not be

2 awarded for breach of contract 'even where the defendant's conduct in breaching the contract was

3 wilful, fraudulent, or malicious.” Cates Construction, Inc. v. Talbot Partners, (1999) 21 Cal. 4th

4 28, 61; See also Civ. Code, § 3294(a)).

5 Thus, paragraph 80 should be stricken.

6 B. Plaintiff Has Not Alleged Sufficient Facts Showing That CAA Officers,

7 Directors, or Managing Agents Were Involved In Any Wrongful Acts

8 In addition to the general failure to allege any specific facts regarding acts of malice,

9 oppression or fraud, the Complaint also fails to allege any facts to show that CAA management

10 was somehow connected to the incident that would allow for the recovery of punitive damages.

11 To recover punitive damages against a corporate employer, a plaintiff must allege facts showing

12 involvement in the wrongful conduct by an officer, director or managing agent. Civil Code § 3294

13 provides:

14
(b) An employer shall not be liable for damages pursuant to
15 subdivision (a), based upon acts or an employee of the employer,
unless the employer had advance knowledge of the unfitness of the
16 employee and employed him or her with a conscious disregard of
the rights or safety of others or authorized or ratified the wrongful
17 conduct for which the damages are awarded or was personally guilty
of oppression, fraud, or malice. With respect to a corporate
18 employer, the advance knowledge and conscious disregard, fraud, or
malice must be on the part of an officer, director, or managing agent
19 of the corporation.

20 “By so confining liability, the statute avoids punishing a corporation for malice of low-

21 level employees which does not reflect the corporate ‘state of mind’ or the intentions of corporate

22 leaders. This assures that punishment is imposed only if the corporation can fairly be viewed as

23 guilty of the evil intent sought to be punished’ [T]o award [punitive] damages against the master

24 for the criminality of the servant is to punish a man for that of which he is not guilty.” Cruz v.

25 HomeBase (2000) 83 Cal.App.4th 160, 167. The Cruz court noted that actual knowledge of the

26 malicious conduct and its outrageous character was required to impose punitive damages on a
27 corporate employer based on ratification of the actions of an employee who is not an officer,

28 director, or managing agent. Id. at 168.


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1 Plaintiff has not met this requirement here. Plaintiff has not pled any facts to show that an

2 officer, director or managing agent of CAA had advance knowledge of, authorized or ratified any

3 of the alleged wrongful acts of its employees. Without such allegations, Plaintiff’s Complaint

4 fails as a matter of law to support a claim for punitive damages against CAA. Plaintiff’s improper

5 allegations regarding punitive damages against CAA should be stricken in the entirety.

6 V. CONCLUSION

7 Based on the foregoing, Defendants respectfully request that the Court grant this motion to

8 strike plaintiff’s allegations and prayer for punitive damages as set forth above.

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

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By:
13 Craig Holden
Attorneys for Defendants Creative Artists Agency,
14 LLC, Andrew Miller and Leah Yerushalaim.
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