Demurrer With Motion To Strike Ccp 43010MotionCal. Super. - 2nd Dist.April 19, 2018Electronically FILED b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 uperior Court of California, County of Los Angeles on 02/15/2019 04:22 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk JDF LAW, P.C. John D. Fowler, Esq. (SBN 271827) Kevin J. Cammiso, Esq. (SBN 316540) 315 South Beverly Drive, Suite 320 Beverly Hills, CA 90212 Tel.: (323) 205-6462 Email: john@jdf-law.com kevin@jdf-law.com Attorneys for Defendant AMBI DISTRIBUTION CORP. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT THAT’S HOLLYWOOD.COM, a Nevada corporation, Plaintiff, VS. AMBI DISTRIBUTION CORP., a Delaware corporation; and DOES 1 through 100, inclusive, Defendants. Case No.: BC702711 NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN D. FOWLER [[Proposed] Order filed concurrently herewith] Hearing Date: April 16,2019 Time: 8:30 a.m. Dept.: 49 [Reservation ID: 766406318177] Hon. Stuart M. Rice Action Filing Date: April 19, 2018 Trial Date: TBD DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that at 8:30 a.m. on April 16, 2019 in Department 49 of the above- entitled court located at 111 N. Hill Street, Los Angeles, CA 90012, Defendant AMBI Distribution Corp. will and hereby does demur to the First Amended Complaint of Plaintiff That’s Hollywood.com filed on or about January 11, 2019 and each and every cause of action of the First Amended Complaint on file herein. Defendant brings this demurrer on the following grounds: First, Plaintiff has not specified a term of any contract actually breached by AMBI. Rather, Plaintiff has merely noted the fact that its alleged $100,000 producer fees were stated in a budget for the project. That does not impose liability. Second, Plaintiff has improperly attempted to transform this into a tort case by alleging causes of action for fraudulent inducement and fraudulent concealment. Third, Plaintiff has improperly attempted to impose a fiduciary duty on AMBI where no such duty actually exists. Fourth, Plaintiff has improperly requested an accounting as a cause of action. However, accounting is not an independent cause of action, and Plaintiff has not alleged any basis for why an accounting is even necessary. Fifth, Plaintiff has failed to include indispensable parties. Sixth, Plaintiff has added a meritless cause of action for breach of written settlement when the correspondence provided by Plaintiff, and attached to the FAC, clearly show that such settlement would not be effectuated until a written settlement agreement was created and signed, which did not occur. 1 1 1 1 1 1 1 i DEMURRER TO FIRST AMENDED COMPLAINT This Demurrer is brought after a good faith meet and confer conference via telephone between counsel for the parties on February 8, 2019. This Demurrer shall be based on this Notice of Demurrer and Demurrer, the accompanying Memorandum of Points and Authorities, matters that the Court may take judicial notice of, the Court’s file, and any other oral and/or documentary evidence considered at 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or before the hearing on this motion. DATED: February 15,2019 il JDF LAW, P.C. Shp . Fowler id in J. Cammiso Attorneys for Defendant AMBI Distribution Corp. DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO FIRST AMENDED COMPLAINT Defendant AMBI Distribution Corp. (“AMBI”’) demurs to the First Amended Complaint of Plaintiff That’s Hollywood.com (“Plaintiff”) as follows: I. The First Cause of Action for Breach of Contract fails to state facts sufficient to constitute any cause of action against AMBI. California Code of Civil Procedure (“CCP”) § 430.10(e); CCP § 430.50(a). Alternatively, the First Cause of Action for Breach of Contract is uncertain. CCP § 430.10(f). The Second Cause of Action for Fraudulent Inducement fails to state facts sufficient to constitute any cause of action against Defendants. CCP § 430.10(e); CCP § 430.50(a). The Third Cause of Action for Fraudulent Concealment fails to state facts sufficient to constitute any cause of action against Defendants. CCP § 430.10(e); CCP § 430.50(a). The Fourth Cause of Action for Breach of Fiduciary Duty fails to state facts sufficient to constitute any cause of action against Defendants. CCP § 430.10(e); CCP § 430.50(a). The Fifth Cause of Action for Accounting fails to state facts sufficient to constitute any cause of action against Defendants. CCP § 430.10(e); CCP § 430.50(a). The Sixth Cause of Action for Breach of Written Settlement fails to state facts sufficient to constitute any cause of action against Defendants. CCP § 430.10(e); CCP § 430.50(a). The Seventh Cause of Action for Declaratory Relief fails to state facts sufficient to constitute any cause of action against Defendants. CCP § 430.10(e); CCP § 430.50(a). WHEREFORE, AMBI prays as follows: A. That the Demurrer to the entire First Amended Complaint, and each and every cause of action contained therein, be sustained, without leave to amend. The entire First Amended Complaint be dismissed with prejudice. That AMBI be awarded its costs. For such other and further relief as this Court deems just and proper. iil DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: February 15, 2019 JDF LAW, P.C. By Np | oh D. Fowler in J. Cammiso Attorneys for Defendant AMBI Distribution Corp. 1v DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. TABLE OF CONTENTS INTRODUCTION cotter eee stents eee sate sheet estes este ebee sae en anne ens 1 ARGUMENT Lc. eee ee ee ster esee be eabes ate sb eet estates be sbte snes t ania ens 2 A. General Authorities on DeMUITETS.........ccuiriiriiriiriiie cece eee seen 2 B. The First Cause of Action for Breach of Contract Fails as a Matter of Law or is, in the Alternative, UNCEIrtaIN..........oovevuvviviieiiiiiiieiieeee cece ect eee ss re eas 2 C. The Second and Third Causes of Action for Fraudulent Inducement and Fraudulent Concealment Fail as a Matter of Law.........ccccovveeveiiiiieniininccceee, 3 D. The Fourth Cause of Action for Breach of Fiduciary Duty Fails as a Matter HE TLS mats nets to ABE 5 FSS A ANTS. 3 E. The Cause of Action for Accounting Fails as a Matter of Law ..........cccovvevieennennne. 6 F. The Cause of Action for Breach of Written Settlement Fails as a Matter of Law...7 G. The Cause of Action for Declaratory Relief Fails as a Matter of Law .................... 8 H. Plaintiff Has Failed to Include Indispensable Parties ............cccocueeeieniinniieniecnenne. 9 L Leave to Amend Would be Futile ........cccoooiviiiiiiiiiiniiiccie cece, 9 CONCLUSION... cette eesti sates estes sate sheet estes sate sees sees se esse enbe sate seeenee 9 i DEMURRER TO FIRST AMENDED COMPLAINT TABLE OF AUTHORITIES Cases Allen v. City of Sacramento (2015) 234 Cal. App.4th 41 ...ccoiiiiiiiiieee eee 8 Ankeny v. Lockheed Missile and Space Company (1979) 88 Cal. App. 531 .cevvvviieeiieiiiiieiieeis 2 Ball v. FleetBoston Fin. Corp. (2008) 164 Cal. App.4th 794 .....ccvoiiiiiieeeeeeee eee 8 Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65 .......cccoovviiiiiiiiiiiiies 6 Beck v. American Health Group Internat., Inc. (1989) 211 Cal. App. 3d 1555.....ccceieenene. 3,7-8 C&H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal. App.3d 1055 ..ocoiiiiiiiiiieeieeeeeeeeee 2 Cryolife, Inc. v. Superior Court (2003) 110 Cal. App.4th 1145 coors 2 Cusanp v. Klein (CID. Cal, 2003) 280 F.Supp2d. 1038. ssmessmonsussssmmne as e ses sss sasmosns 4 Davidson v. Superior Court (1999) 70 Cal. App.A4th S14 ......ooiiiiiiiee eee 7 Ely vi Grap{1990) 224 Cal App.3d 1257 cesswwmmmamemmmmmmamsmmsmssmsmmm amma 6 Finney v. Gomez (2003) 111 Cal. APP.Ath 527 oon eee eects eee eevee saa ees 6 Foster Poultry Farms v. Alkar-Rapidpak-MP Equipment, Inc. (E.D. Cal. 2012) BOS F.SUPP.2A 983... eee eee ees 34 Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85 .......ccoovviiiiiiiiieeieeeeeeeeeeeee, 4 Gene Autry v. Republic Productions, Inc. (1947) 30 Cal.2d 144 ........ccceeieiiiiniieeie c ter 3 Halvorsen v. Aramark Uniform Services, Inc. (1998) 65 Cal. App.4th 1383........covieiiiiiiiniies 2 Hebav, Yaeuer (1967) 251 Cal App.2d 258 i suomi amma sims aes ss suse amos 6 Khoury v. Maly’s of California. Inc. (1993) 14 Cal. App.4th 612 ......oooviiiiiiiiiiiieie cece, 2 Lawrence v. Bank of America (1985) 163 Cal. APP.3d 431 ..oooiiiiiiiieiie cece eee 9 Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4th 1 cocci, 2-3 Levy v. Superior Court (1995) 10 Cal.dth 578 ....ccuiiiiiiiieie cece 7 Merced County Mut. Fire Ins. Co. v. State of California (1991) 233 Cal. App.3d 765 ................... 5 Nguyen v. JP Morgan Chase Bank (C.D. Cal. Feb. 1, 2012) No. BACV [1-01908 DOC, TOLD. WL: 2940 BG .u.5.505555 55.5055 cam00 vm s55 55555555 55550 ss 6 Recorded Pictures Company v. Nelson Entertainment, Inc. (1997) 53 Cal.App.4th 350 ............... 5 Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal. App.4th 257.....cccovviiiiieiiiiieiieniies 5 ii DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Schonfeldt v. State of Calif. (1998) 61 CaALAPP AH 1462 ..ouvesssmees ssussmmssasmsessnsssnnsssssmsss svssaspesasasesns 9 Shvarts v. Budget Group, Inc. (2000) 81 Cal. App.4th 1153. iii 2 Smyth v. Berman (2019) 31 Cal.App.5th 183, 242 Cal.Rptr.3d 336 ....ccoovveiiviicieeciecieee 8 Star Pacific Investments, Inc. v. Oro Hills Ranch, Inc. (1981) 121 Cal.App.3d 447 .......coeveeunnne. 5 Tarmann v. State Farm Mut. Auto. Ins. Co., (1991) 2 Cal. App. 4th 153 .....ccooiiiiiiiiieeeee 5 Unterberger v. Red Bull North America, Inc. (2008) 162 Cal. App.4th 414.......cccvveiiiinienienne 4 Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal. App.4th 1171......ccceeevrennennenn. 2 Wolf v. Superior Court (Walt Disney Pictures and Television) (2003) 107 Cal. App.4th 25 ...... 5,6 Worldvision Enterprises, Inc. v. American Broadcasting Companies, Inc. (1983) 142 Cl ADT BM SBD cusses ousismrsssarssssssmesnssssss sm a saa ESS EAE ETB 6 Zumbrun v. University of Southern California (1972) 25 Cal. App.3d 1 ....coveeeiiiiiiiiieieeeene, 5-6 Statutes California Code of Civil Procedure § 389 ........coviiiiie ects eee eee 9 California Code of Civil Procedure § 430.10 .......ooooiiiiiiie ieee cece eee eee eee eee eaves 2 California Code of Civil Procedure § 6604.6 ...........cccvviiiiieieiieciie ece eee eee e e ee eee eae 7 iii DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Plaintiff That’s Hollywood.com (“Plaintiff”) alleges that it is due $60,000 out of a total $100,000 from a written Agreement and Amendment #1 relating to the feature-length motion picture entitled /n Dubious Battle. However, Plaintiff’s First Amended Complaint against Defendant AMBI Distribution Corp. (“AMBI”) is fundamentally flawed for numerous reasons. ! First, Plaintiff has not specified a term of any contract actually breached by AMBI. Rather, Plaintiff has merely noted the fact that its alleged $100,000 producer fees were stated in a budget for the project. That does not impose liability on ABMI. Second, Plaintiff has improperly attempted to transform this into a tort case by alleging causes of action for fraudulent inducement and fraudulent concealment. The Court should not permit such tactics, especially considering Plaintiff seeks the same economic damages on its tort claims and Plaintiff has not alleged it seeks to rescind the agreement. The supposed “fraud” is merely a parroted breach of contract claim. Additionally, Plaintiff has failed to plead fraud against an entity with the requisite specificity. Third, Plaintiff has improperly attempted to impose a fiduciary duty on AMBI where no such duty actually exists. Rather, the parties are merely in a contractual relationship, af best, as alleged in the FAC. Fourth, Plaintiff has improperly requested an accounting as a cause of action. However, accounting is not an independent cause of action, and Plaintiff has not alleged any basis for why an accounting is even necessary. Fifth, Plaintiff has failed to include indispensable parties. Even though Plaintiff references two other entities in its First Amended Complaint whose rights and responsibilities are implicated by Plaintiff’s allegations, Plaintiff has failed to include them as parties or explain their absence. 1 !'In response to AMBI’s demurrer to the Complaint, Plaintiff elected to file its First Amended Complaint. Instead of addressing the fundamental deficiencies raised by the demurrer to the Complaint, Plaintiff merely added a meritless cause of action for breach of written settlement and a baseless and arbitrary request for $500,000 unrelated to anything contained in the pleadings. 1 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sixth, Plaintiff has added a meritless cause of action for breach of written settlement when the correspondence provided by Plaintiff clearly show that such settlement would not be effectuated until a written settlement agreement was created and signed, which did not occur (nor is alleged to have occurred). Overall, Plaintiff’s Complaint sets forth no facts that would impose liability on AMBI under any valid cause of action. Therefore, the Court should sustain the demurrer and dismiss this case in its entirety, with prejudice. II. ARGUMENT A. General Authorities on Demurrers. A proper ground for a demurrer is that a complaint does not state facts sufficient to constitute a cause of action. California Code of Civil Procedure (“CCP”) § 430.10(e). A proper ground for a demurrer is also that a complaint is uncertain, which includes being ambiguous or unintelligible. CCP § 430.10(f). Where a complaint is so deficient that the defendant cannot reasonably respond because he cannot determine what issues must be admitted or denied, or what claims are directed against him, a demurrer for uncertainty should be sustained. CCP §430.10(f); Khoury v. Maly’s of California. Inc. (1993) 14 Cal. App.4th 612, 616. As against a special demurrer, the facts must be alleged with sufficient clarity to inform defendants of issues to be met. Ankeny v. Lockheed Missile and Space Company (1979) 88 Cal. App. 531, 537. “A general demurrer will lie where the complaint ‘has included allegations that clearly disclose some defense or bar to recovery.” Cryolife, Inc. v. Superior Court (2003) 110 Cal. App.4th 1145, 1152. “When a complaint affirmatively alleges facts amounting to an affirmative defense, it is subject to a demurrer.” Halvorsen v. Aramark Uniform Services, Inc. (1998) 65 Cal. App.4th 1383, 1391. While the Court accepts as true only facts that are properly pleaded, it “does not . . . assume the truth of contentions, deductions or conclusions of law.” Shvarts v. Budget Group, Inc. (2000) 81 Cal.App.4th 1153, 1157. Further, “facts not alleged [in the complaint] are presumed not to exist.” C&H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062. 2 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. The First Cause of Action for Breach of Contract Fails as a Matter of Law or is, in the Alternative, Uncertain. To state a claim for breach of contract, Plaintiff must allege sufficient facts to establish: (1) a contract between the parties; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff from the breach. See e.g. Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178. “Facts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity.” Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal. App.4th 1, 5. Here, the First Amended Complaint does not specify the term(s) of the Agreement and/or Amendment #1 that was/were supposedly breached by AMBI. In fact, Plaintiff has not alleged that either the Agreement or Amendment #1 actually states that AMBI promised to pay Plaintiff anything. Rather, it merely states that AMBI approved the budget for the project that had a line item for $100,000 for producer fees for Plaintiff, and yet only paid them $40,000. See First Amended Complaint at qq 10-11. Additionally, approval of a budget is nothing more than an agreement to agree, which is not enforceable. See Gene Autry v. Republic Productions, Inc. (1947) 30 Cal.2d 144 (“There is no dispute that neither law nor equity provides a remedy for breach of an agreement to agree in the future”); see also Beck v. American Health Group Internat., Inc. (1989) 211 Cal. App. 3d 1555, 1562 (overruled by statute on other matter as stated in Epic Medical Management, LLC v. Paquette (2015) 244 Cal. App.4th 504, 516) (discussing the unenforceability of agreements to agree). Plaintiff even concedes to the amorphous nature of any Agreement, indicating that it agreed to a withholding of $40,000 of its fee before certain unnamed conditions were met, without elaborating on the conditions, or the facts and circumstances surrounding this apparently un-memorialized arrangement. See First Amended Complaint at § 13. Overall, Plaintiff’s cause of action for breach of contract fails to adequately allege any actual contractual term imposed upon and breached by AMBI, and at best alleges initial approval of a budget that may or may have not been the ultimate agreement (i.e., an agreement to agree in the future). Therefore, the breach of contract claim as pled fails, or is at least deficiently uncertain. 3 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. The Second and Third Causes of Action for Fraudulent Inducement and Fraudulent Concealment Fail as a Matter of Law. First, as an initial matter, Plaintiff’s fraud causes of action are barred by the economic loss rule. Plaintiff is improperly attempting to assert fraud causes of action in a contract case. The economic loss rule prohibits the recovery of tort damages in a breach of contract case. Foster Poultry Farms v. Alkar-Rapidpak-MP Equipment, Inc. (E.D. Cal. 2012) 868 F.Supp.2d 983, 991 (“Quite simply, the economic loss rule prevents the law of contract and the law of tort from dissolving one into the other. Courts have applied the economic loss rule to bar [tort] claims where the damages plaintiffs seek are the same economic losses arising from the alleged breach of contract. In such cases, permitting a [tort] claim to proceed would open the door to tort claims in virtually every case in which a party promised to make payments under a contract but failed to do so.”) (citations and quotations omitted); see also Cusano v. Klein (C.D. Cal. 2003) 280 F.Supp.2d 1035, 1043 (holding that the plaintiff’s claim for conversion could not be maintained if it was “predicated on a mere breach of contract”). Here, Plaintiff’s fraud causes of action allege harm resulting from AMBI’s failure to pay the producer fee, and Plaintiff's alleged damages amount is the exact remaining amount of the producer fee. See First Amended Complaint at 9 22, 31; see also First Amended Complaint at 9 14, 20 (alleging same exact damages for breach of contract cause of action). Therefore, Plaintiff should not be permitted to transform this case from a contract case to a fraud case. See Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 95 (holding that a plaintiff is precluded from tort recovery for contract breach absent violation of an independent duty arising from principles of tort law); see also Unterberger v. Red Bull North America, Inc. (2008) 162 Cal. App.4th 414 (affirming summary adjudication of fraud cause of action - “The claim is merely a breach of contract claim dressed in the language of fraud.”). Plaintiff makes absolutely no effort to conceal the fact that the two purported fraud claims are simply a regurgitation of its breach of contract claim. Aside from (not coincidentally) the exact same dollar amount sought for each claim, Plaintiff pleads that the fraud occurred when Defendants “...falsely represented to Plaintiff. ..that Plaintiff would be paid producer fees in the total amount of 4 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 $100,000.” 14, Complaint § 22. Plaintiff also alleges fraud as a “...plan to avoid paying Plaintiff the entirety of the amount owed Plaintiff for producer fees...” 14, Complaint § 31. These are facially redundant of the breach of contract claim and cannot stand on their own. Second, Plaintiff has not adequately alleged fraud against an entity. Where a fraud claim is against an entity, as here, the plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” Tarmann v. State Farm Mut. Auto. Ins. Co., (1991) 2 Cal. App. 4th 153, 157. Plaintiff instead pleads in vast generalities, and fails to plead a single name, their authority, to whom they spoke on Plaintiff’s side, what was said and/or written, or when. Plaintiff has thereby failed to meet the most basic requirements of pleading fraud against an entity. Third, Plaintiff’s fraud causes of action have no allegations confirming rescission of contract, further barring it from pursuing its tort claims. If Plaintiff truly wants to assert that AMBI fraudulently induced Plaintiff into the agreement, then there is no valid contract, and Plaintiff must rescind, seek restitution, and return everything of value to AMBI - none of which has been done by Plaintiff or asserted will be done. See Merced County Mut. Fire Ins. Co. v. State of California (1991) 233 Cal. App.3d 765, 771; Star Pacific Investments, Inc. v. Oro Hills Ranch, Inc. (1981) 121 Cal.App.3d 447, 457. D. The Fourth Cause of Action for Breach of Fiduciary Duty Fails as a Matter of Law. A fiduciary relationship is a recognized legal relationship that typically only arises out of special relationships, such as guardian and ward, trustee and beneficiary, or attorney and client. See Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 271 (differentiating fiduciary duty relationship from a confidential relationship). There is no fiduciary relationship where the parties are merely in contract with each other. See generally, Wolf'v. Superior Court (Walt Disney Pictures and Television) (2003) 107 Cal. App.4th 25, 29-36 (sustaining demurrer to fiduciary duty breach claim by plaintiffs, who had contracted with a studio to produce merchandise using plaintiffs’ novel and characters); see also Recorded Pictures Company v. Nelson Entertainment, Inc. (1997) 53 Cal.App.4th 350, 370 (stating that “the typical 5 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 distribution contract, negotiated at arm’s length, does not create a fiduciary relationship between the owner of a product and the distributor”). A bare allegation that a defendant assumed a fiduciary relationship is conclusory. Zumbrun v. University of Southern California (1972) 25 Cal. App.3d 1, 13. Further, “[t]he mere placing of a trust in another person does not create a fiduciary relationship.” 1d.; see also Worldvision Enterprises, Inc. v. American Broadcasting Companies, Inc. (1983) 142 Cal.App.3d 589, 595 (no fiduciary relationship simply because one reposes trust and confidence in another). Here, no allegations support the imposition of a fiduciary duty. Plaintiff merely alleges that it and AMBI had a joint venture contractual relationship pursuant to the Agreement. See First Amended Complaint at 9 37-38. Nothing falls outside of the basic contractual arrangement to impose additional fiduciary duties on AMBI. Therefore, Plaintiff’s breach of fiduciary duty cause of action fails as a matter of law, Plaintiff does not plead that any such special relationship exists. E. The Cause of Action for Accounting Fails as a Matter of Law. First, accounting is not an independent cause of action. Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 67 (holding that accounting “is not an independent cause of action but merely a type of remedy, an equitable remedy at that”); see also Nguyen v. JP Morgan Chase Bank (C.D. Cal. Feb. 1, 2012) No. SACV 11-01908 DOC, 2012 WL 294936, at *3 (“Plaintiff asserts separate causes of action for accounting, injunctive relief and unjust enrichment. Courts in California have consistently classified these claims as remedies and not valid causes of action.”). Second, an accounting is available only when there is a fiduciary relationship or there is no adequate remedy at law. See Finney v. Gomez (2003) 111 Cal.App.4th 527, 543; Batt v. City and County of San Francisco, supra, 155 Cal. App.4th at 82. For the reasons set forth above, a mere contractual relationship does not create any fiduciary duty. Wolf'v. Superior Court (Walt Disney Pictures and Television) (2003) 107 Cal.App.4th 25, 29-36. Additionally, there is clearly an adequate remedy at law in that Plaintiff seeks an exact dollar amount that it (albeit erroneously) believes it is owed. Third, an accounting is not necessary because the amount Plaintiff seeks can be determined from the face of the contract itself. If the amounts due can be determined without an accounting, there 6 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is no right to an accounting. Ely v. Gray (1990) 224 Cal.App.3d 1257, 1261-1262. Moreover, an accounting is available only when there is a dispute as to the accuracy of the defendant’s books or where the amount sought is “unliquidated and unascertained.” Id. at 1262; Heber v. Yaeger (1967) 251 Cal.App.2d 258, 265. Here, Plaintiff has alleged that the Agreement and Amendment #1 set forth specific amounts allegedly due Plaintiff. There is therefore simply no basis for an accounting even if it were a valid cause of action. F. The Cause of Action for Breach of Written Settlement Fails as a Matter of Law. Plaintiff now claims that the parties entered into a binding settlement of this action on August 24,2018. Plaintiff’s new claim fails for numerous reasons. First, Plaintiff has not, and cannot, shown that any settlement agreement was signed by the parties. A settlement between parties to pending litigation can only be enforced if that agreement is “in a writing signed by the parties outside the presence of the court or orally before the court.” CCP § 664.6. Here, Plaintiff merely alleges that the parties entered into a settlement of this action “through their respective legal counsel.” First Amended Complaint at § 47. The California Supreme Court has clearly stated that the term “parties” means the litigants themselves and does not include their attorneys. Levy v. Superior Court (1995) 10 Cal.4th 578, 586; see also Davidson v. Superior Court (1999) 70 Cal.App.4th 514, 528 (holding that settlement agreement unenforceable because based on stipulated settlement signed only by attorneys). Therefore, Plaintiff has not alleged a valid settlement between the parties to this pending litigation. Second, similar to Plaintiff’s cause of action for Breach of Written Contract, Plaintiff’s own allegations and correspondence (attached to the First Amended Complaint) show that the alleged settlement was nothing more than an agreement to agree pending the finalization of terms, which is not enforceable. When it is clear, both from a provision that the proposed written contract would become operative only when signed by the parties as well as from any other evidence presented by the parties that both parties contemplated that acceptance of the contract’s terms would be signified by signing it, 7 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the failure to sign the agreement means no binding contract was created. Beck v. American Health Group Intern., Inc., supra, 211 Cal. App.3d at 1562. Beck is instructive. There, the Court of Appeal affirmed the trial court’s order sustaining a demurrer to a breach of written contract claim, where the writing on its face showed it constituted an agreement to agree. There, the writing at issue stated, “ ‘It is a pleasure to draft the outline of our future agreement...” ” Id. After outlining the terms, it concluded: ©“ “When we have a draft, we will discuss it and hopefully shall have a completed contract and operating unit in the very near future.” ” Id. at 1563. The Court held the terms of the writing demonstrated a manifest “intention of the parties that no binding contract would come into being until the terms of the letter were embodied in a formal contract to be drafted by corporate counsel.” Id. Here, counsel for AMBI specifically stated (in the email chain attached to the First Amended Complaint): “If the foregoing accurately reflects what you believe to be our understanding, let’s move to drafting of a settlement agreement. [9] All rights reserved until full execution of a settlement agreement.” First Amended Complaint at Ex. 2 (emph. added). In response, counsel for Plaintiff stated that “this seems consistent with our discussion so please prepare, or have your counsel prepare, a draft settlement agreement.” Id. The plain language from both parties could not be clearer - there was no agreement until the parties executed a formal, written settlement agreement, just like in Beck. Plaintiff does not allege that any such agreement was ever created or signed by the parties. Therefore, Plaintiff cannot enforce what amounts to an agreement to agree pending further details. G. The Cause of Action for Declaratory Relief Fails as a Matter of Law. A “demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly derivative’ of another cause of action. Ball v. FleetBoston Fin. Corp. (2008) 164 Cal.App.4th 794, 800; Smyth v. Berman (2019) 31 Cal. App.5th 183, 242 (same); Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 54, as modified on denial of reh'g (Mar. 6, 2015) (same). Here, Plaintiff’s cause of action for Declaratory Relief is purely duplicative and derivative of its fatally defective cause of action for Breach of Written Settlement. By its own allegations, Plaintiff acknowledges that its cause of action for Declaratory Relief seeks a determination that AMBI 8 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 breached the alleged written settlement - “Plaintiff specifically seeks a declaration and determination that the August 24, 2018 settlement agreement is a valid and binding agreement pursuant to which Defendants, and each of them, have an obligation to make payment to Plaintiff as provided therein.” First Amended Complaint at 9 56. Because Plaintiff’s cause of action for Breach of Written Settlement fails as a matter of law, Plaintiff cannot maintain its derivative cause of action for Declaratory Relief. H. Plaintiff Has Failed to Include Indispensable Parties. Plaintiff must join as parties to the action all persons whose interests are so directly involved that the Court cannot render a fair adjudication in their absence. See CCP § 389. If any such persons are not named as parties to the lawsuit, the complaint must state their names (if known) and the reasons why they have not been joined. CCP § 389(c). Here, Plaintiff has alleged that its Agreement and Amendment #1 was with Rabbit Bandini Productions (“RBP”), and Plaintiff alleges Dubious Productions, Inc. (the “Company”) assumed and agreed to perform all of AMBI’s executory obligations under the Agreement. See First Amended Complaint at qf 7-8 and 12. However, Plaintiff has not named these entities as parties. Further, Plaintiff has not explained why the entities are not parties given their apparent crucial involvement in the matter, and their obligations which appear to supplant those of AMBI. IL. Leave to Amend Would be Futile. “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” Lawrence v. Bank of America (1985) 163 Cal. App.3d 431, 436; Schonfeldt v. State of Calif. (1998) 61 Cal. App.4th 1462, 1465 (holding that if no liability as a matter of law, leave to amend should not be granted). Here, Plaintiff’s First Amended Complaint is fundamentally flawed as set forth, and Plaintiff has already taken one opportunity to amend. Therefore, leave to amend should be denied. III. CONCLUSION For all of the foregoing reasons, the Court should dismiss this case in its entirety with prejudice, and without leave to amend. 9 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: February 15, 2019 JDF LAW, P.C. By Uhr . Fowler in J. Cammiso Attorney for Defendant AMBI Distribution Corp. 10 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOHN D. FOWLER I, John D. Fowler, declare: I. I am an attorney duly licensed to practice law in the State of California. Iam counsel of record for Defendant AMBI Distribution Corp. (“Defendant”). I make this declaration in support of Defendant’s Demurrer to Plaintiff That’s Hollywood.Com’s First Amended Complaint. I have personal knowledge of the matters stated herein, and, if called as a witness, I could and would testify competently as to the matters stated below. 2. Pursuant to California Code of Civil Procedure § 430.41, on February 8, 2019, I met and conferred by telephone with Plaintiff’s counsel, Kenneth A. Kotarski. Mr. Kotarski indicated that Plaintiff would not be amending the First Amended Complaint. Accordingly, Defendant has proceeded with filing this Demurrer and concurrently filed Motion to Strike. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 15th day of February 2019, at Beverly Hills, California. 7 Johfr). Fowler, Esq. 11 DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 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. On February 15, 2019, I served the foregoing document described as: NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN D. FOWLER on the following interested party in this action: A. Raymond Hamrick, I11 Kenneth A. Kotarski HAMRICK & EVANS, LLP 2600 West Olive Avenue, Suite 1010 Burbank, CA 91505 Attorneys for Plaintiff That’s Hollywood.com X BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 15, 2019, at Los Angeles, California. . Kevin J. Cathmiso Make a Reservation | Journal Technologies Court Portal 2/15/19, 3:34 PM os Journal Technologies Court Portal Make a Reservation THAT'S HOLLYWOOD.COM VS AMBI DISTRIBUTION CORP Case Number: BC702711 Case Type: Civil Unlimited Category: Other Breach of Contract/Warranty (not frauc Date Filed: 2018-04-19 Location: Stanley Mosk Courthouse - Department 49 Reservation Case Name: Case Number: THAT'S HOLLYWOOD.COM VS AMBI DISTRIBUTION CORP BC702711 Type: Status: Demurrer - with Motion to Strike (CCP 430.10) RESERVED Filing Party: Location: Ambi Distribution Corp. (Defendant) Stanley Mosk Courthc Date/Time: Number of Motions: 04/16/2019 8:31 AM 1 Reservation ID: Confirmation Code: 766406318177 CR-WSEAHUPTYZCN Fees Description Demurrer - with Motion to Strike (CCP 430.10) Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: Type: $123.30 Visa Account Number: Authorization: https://portal-lasc.journaltech.com/public-portal/?g=calendar/reserve Page 1 of 2 Make a Reservation | Journal Technologies Court Portal 2/15/19, 3:34 PM AXXXE10VU Uv6/7G = Print Receipt = Reserve Another Hearing 4 View My Reservations Copyright © Journal Technologies, USA. All rights reserved. https://portal-lasc.journaltech.com/public-portal/?g=calendar/reserve Page 2 of 2
