Pending - Other Pending
Contract - Other Contract
CRAIG D. KARLAN
ARCHBISHOP MITTY HIGH SCHOOL
WILLIAM MORRIS ENDEAVOR ENTERTAINMENT LLC
RICHARDS RONALD NEIL
MEISELAS BENJAMIN JARED
5/19/2021: Summons - SUMMONS ON COMPLAINT
5/19/2021: Notice of Case Management Conference
5/19/2021: Notice of Case Assignment - Unlimited Civil Case
5/19/2021: Civil Case Cover Sheet
6/17/2021: Minute Order - MINUTE ORDER (COURT ORDER) OF 06/17/2021
6/17/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 06/17/2021
9/17/2021: Case Management Statement
9/23/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)
11/16/2021: Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION TO EXTEND TIME TO RESPOND TO PLAINTIFFS COMPLAINT; [PROPOSED] ORDER
6/14/2021: Notice of Related Case
Hearing01/12/2022 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Case Management Conference[+] Read More [-] Read Less
DocketStipulation and Order (JOINT STIPULATION TO EXTEND TIME TO RESPOND TO PLAINTIFFS COMPLAINT; ORDER); Filed by William Morris Endeavor Entertainment, LLC (Defendant); Chris Pearson (Defendant); Marcus Levy (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department N, Craig D. Karlan, Presiding; Case Management Conference - Not Held - Taken Off Calendar by Court[+] Read More [-] Read Less
DocketAnswer; Filed by Colin Quinn (Defendant); CQE Inc. (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department M; Case Management Conference - Held - Continued[+] Read More [-] Read Less
DocketMinute Order ( (Case Management Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketCase Management Statement; Filed by Archbishop Mitty High School (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department M; Court Order - Held[+] Read More [-] Read Less
DocketCertificate of Mailing for ((Court Order) of 06/17/2021); Filed by Clerk[+] Read More [-] Read Less
DocketMinute Order ((Court Order) of 06/17/2021); Filed by Clerk[+] Read More [-] Read Less
DocketNotice of Related Case; Filed by Archbishop Mitty High School (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by Archbishop Mitty High School (Plaintiff)[+] Read More [-] Read Less
DocketSummons (on Complaint); Filed by Archbishop Mitty High School (Plaintiff)[+] Read More [-] Read Less
DocketComplaint; Filed by Archbishop Mitty High School (Plaintiff)[+] Read More [-] Read Less
Case Number: *******0908 Hearing Date: March 8, 2022 Dept: M
CASE NAME: Archbishop Mitty High School v. Colin Quinn, et al.
CASE NO.: *******0908
SUBJECT: Demurrer to First Amended Complaint
HEARING DATE: 03/08/2022
On May 19, 2021, Plaintiff Archbishop Mitty High School filed a complaint against Defendants Colin Quinn, Chris Pearson, Marcus Levy, CQE, Inc., William Morris Endeavor Entertainment, LLC, and Does 1 – 25 for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, and (3) violation of Business and Professions Code 17200 et seq. Plaintiff filed an amended complaint on January 7, 2022. This suit arises out of a comedian’s failure to perform at a school’s charity event. Plaintiff alleges that pursuant to an agreement, “Colin Quinn was to perform on November 3, 2018 at the gala-charity fund raising event at the Fairmont Hotel hosted by the Archbishop Mitty High School for a compensation of $42,500.00” but allegedly backed out of the event because he could not curse. (See FAC 16, 17-25.) Plaintiffs allege that they “were fortunately able to engage Jay Leno to perform at the event,” however, Mr. Leno performed at a much higher cost. (See FAC 34-35.)
“Before filing a demurrer . . . the demurring party shall meet and confer in person or by telephone with the party who filed the pleading . . . for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., 430.41.) To properly file a demurrer with the court, the party must also file a declaration noting that he or she “met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. [or] (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., 430.41(A) & (B).)
A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Code Civ. Proc., 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220. The court “may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 (citing Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790).) The court treats all facts alleged in the complaint to be true. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732.)
When considering demurrers, courts “are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733 (citing Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628.)) “The burden is on the plaintiff to demonstrate the manner in which the complaint can be amended.” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 748.)
Meet and confer
Plaintiffs failed to meaningfully respond to Defendants’ meet and confer request. (See Kintzele Decl. 2, Ex. C.) Defendants have satisfied their obligations under section 430.41.
Defendant William Morris Endeavor Entertainment, LLC (“WME”), Chris Pearson, and Marcus Levy (collectively, “WME Defendants”) demur to the third cause of action in the first amended complaint.
Violation of Business and Professions Code section 12700, et seq (“UCL”)
WME Defendants contend that the UCL claim fails for three separate reasons. First, AMHS fails to allege any required “unlawful, unfair or fraudulent” conduct by the WME Defendants that could support a violation of the UCL. Second, the WME Defendants are not proper parties to any claim arising out of the contract because they were not parties to the contract. Third, the claim fails because Plaintiff cannot allege an entitlement to an available remedy under the UCL, as there is no basis for an injunction or restitution. Fourth, WME Defendants contend that Plaintiff lacks standing to bring this claim.
Sufficiency of Allegations concerning Fraudulent, unlawful, and unfair prongs
To state a claim for a violation of the UCL, a plaintiff “must allege that the defendant committed a business act that is either fraudulent, unlawful, or unfair” and “must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1136 [emphasis added]; Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619 [citations omitted].) In addition, a “UCL action is equitable in nature; damages cannot be recovered. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266, 10 Cal.Rptr.2d 538, 833 P.2d 545 (Bank of the West).)” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144.) Instead, remedies are “generally limited to injunctive relief and restitution.” (Id., quoting Cel–Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179 (Cel–Tech).) In 2004, Proposition 64 amended the UCL to impose standing requirements. (See In re Tobacco II Cases (2009) 46 Cal.4th 298, 314.) However, “Proposition 64 did not amend the remedies provision of section 17203. This is significant because under section 17203, the primary form of relief available under the UCL to protect consumers from unfair business practices is an injunction, along with ancillary relief in the form of such restitution ‘as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.’ ( 17203.)” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 319.) “An order for restitution “compel[s] a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken.” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 950, as modified (May 22, 2002).)
Defendants argue that Plaintiff has not alleged a violation of a law under the UCL. A business practice is “unlawful” if it is “forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. (People v. McKale (1979) 25 Cal.3d 626, 632, 159 Cal.Rptr. 811, 602 P.2d 731.)” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 838–839.) The UCL uses or “‘borrows’ violations of other laws and treats them as unlawful practices independently actionable under section 17200, et seq. (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383, 6 Cal.Rptr.2d 487, 826 P.2d 730.)” (Id. at 839.) Defendants argue that AMHS fails to allege that the WME Defendants violated any predicate law. Here, the Court agrees. There are no alleged violations of any law in the FAC. Therefore, Plaintiff has not alleged sufficient facts to state a UCL claim under the unlawful prong.
Defendants also argue that Plaintiff has not alleged facts that show that Defendants’ conduct was fraudulent. “‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud.” (South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 888 [internal quotation marks omitted] [quoting Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 839].) Instead, a plaintiff must allege that the defendant engaged in conduct that is likely to deceive the public. (Id.) Defendants argue that Plaintiff makes no claim that the WME Defendants’ alleged conduct is likely to deceive the public. Defendants also argue that Plaintiff also fails to allege any purportedly fraudulent conduct with the requisite particularity. Here, Plaintiff alleges misrepresentation but does not allege fraudulent conduct under the UCL. Therefore, Plaintiff has not alleged sufficient facts to state a UCL claim under the fraudulent prong.
As to the unfair prong, Defendants argue that Plaintiffs have not alleged an unfair business practice under the UCL. Defendants argue that Plaintiff has not claimed that the WME Defendants’ alleged conduct violated any antitrust or consumer law, violated the policy or spirit of any such law, or harmed competition or consumers in any way. Defendants cite Cel-Tech, supra 20 Cal.4th at 187, arguing that Plaintiff has not alleged “conduct that threatens an incipient violation of an antitrust law [or consumer law], or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition [or consumers].” (Cel-Tech, supra 20 Cal.4th at 187 [alterations by Defendants].) Defendants also cite Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1270 and Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 857 in support of the argument that Plaintiff has not pled sufficient facts under the unfair prong of the UCL.
Plaintiff opposes the demurrer arguing that Plaintiff has sufficiently alleged unfair conduct of the Defendants. Plaintiffs contend that under the unfair prong of the UCL, a plaintiff may pursue a claim for an unfair practice, even if such practice is not otherwise prohibited by law, provided that the practice is “immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 530.) Plaintiff also argues that “the UCL sweeps within its scope acts and practices not specifically proscribed by any other law.” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.)
Here, a close reading of Cel-Tech shows that the Supreme Court limited its definition of “unfair” to claims by direct competitors. (See Cel-Tech, supra 20 Cal.4th at 187, fn. 12.) Defendants also gloss over the fact that the Court in Bardin acknowledged that after Cel-Tech, appellate courts have been divided over the proper definition of “unfair,” and after applying two different tests (which depended on whether the plaintiff was a competitor or a consumer), found that the complaint in Bardin did not state sufficient facts under either test to allege unfair practices. (Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1267–1273.) Here, Defendants have not argued that Plaintiff failed to state a claim under either test articulated in Bardin. As such, Defendants have not shown that the allegations for unfairness are insufficient.
Allegation of Available Remedy
Defendants also argue that the UCL claim fails because it improperly seeks compensatory damages, not the available remedies of restitution or injunctive relief. Defendants argue that compensatory damages are not unavailable under a UCL claim. Defendant also argues that the allegation that WME withheld the deposit is not sufficient to support a UCL claim. Plaintiff opposes arguing that the UCL claim is sufficient, and that Plaintiff has alleged WME Defendants engaged in unfair conduct. Plaintiff also generally argues that it is entitled to an available remedy under the UCL, and that such a remedy would be damages. (See Opp. at 8:6-16.)
Here, compensatory damages are not available under the UCL. (See Cel-Tech, supra 20 Cal.4th at 180.) Plaintiff has not alleged that it seeks injunctive relief or restitution. Indeed, Plaintiff alleges that it seeks compensatory damages in this claim. (See FAC 58.) Since such damages are not available under a UCL claim, Plaintiff has failed to state sufficient facts to state a claim. The Court does not reach Defendants’ remaining arguments as to the UCL claim. Since Plaintiff has not alleged facts indicating that it is seeking relief that can be afforded under the UCL, and since Plaintiff admits in the opposition that it is only seeking compensatory damages, the demurrer is sustained to the UCL claim without leave to amend.
Case Number: *******0908 Hearing Date: January 21, 2022 Dept: M
CASE NAME: Archbishop Mitty High School v. Colin Quinn, et al.
CASE NO.: *******0908
SUBJECT: Demurrer to Complaint
HEARING DATE: 01/21/2022
A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Code Civ. Proc., 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. [Citations.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See Code Civ. Proc., 435, 436 & 437.) “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. . . .” (Code Civ. Proc., 472(a).)
On May 19, 2021, Plaintiff Archbishop Mitty High School filed a complaint against Defendants Colin Quinn, Chris Pearson, Marcus Levy, CQE, Inc., William Morris Endeavor Entertainment, LLC, and Does 1 – 25 for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, and (3) violation of Business and Professions Code 17200 et seq.
Defendant William Morris Endeavor Entertainment, LLC (“WME”), Chris Pearson, and Marcus Levy (collectively, “WME Defendants”) filed a demurrer to the third cause of action in the complaint on November 29, 2021, with a hearing date of May 3, 2022. On December 13, 2021, the Court set the hearing on the demurrer to January 21, 2022.
On January 7, 2022, Archbishop Mitty High School filed a first amended complaint prior to the due date for the opposition, as is permitted by Code of Civil Procedure section 472(a). WME Defendants filed a reply in support of their demurrer. WME Defendants acknowledge that Plaintiff filed an amended pleading on the day its opposition was due, however, WME Defendants argues in reply that the amended complaint is still deficient. “Because there is but one complaint in a civil action (Ford v. Superior Court (1973) 34 Cal.App.3d 338, 343, 109 Cal.Rptr. 844), the filing of an amended complaint moots a motion directed to a prior complaint. (See Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054, 18 Cal.Rptr.3d 882 [filing of first amended complaint rendered moot demurrer to original complaint].)” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) Here, the demurrer is to the original complaint and not to the first amended complaint. WME Defendants’ demurrer to the complaint is now MOOT. Therefore, the demurrer is off calendar.
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