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