Celebrity Chefs Tour, LLC v. Macy's, Inc.

16 F.Supp.3d 1123

CELEBRITY CHEFS TOUR, LLC, a California limited liability company; and Promark Productions, LLC, a California limited liability company, Plaintiffs

v.MACY'S, INC., a Delaware corporation; Whirlpool Corporation, a Delaware corporation; LEC Media, LLC, an Illinois limited liability company; Executive Program Services, Inc., a Washington corporation; Jack O'Donnell, an individual; Scott Dummler, an individual; Devin Alexander, Inc, a California corporation; Devin Alexander, a.k.a. Renee Simone, an individual; and Does 1–10, inclusive, Defendants.

Case No. 13–CV–2714 JLS KSC.

United States District Court, S.D. California.

Signed April 25, 2014.

Richard Michael Wirtz, Wirtz Law APC, Thomas Daniel Foster, TD Foster, San Diego, CA, for Plaintiffs.

Cynthia Tsai Brady, Macy's Inc., St. Louis, MO, Christine M. LaPinta, Trevor Brian Potter, Seltzer Caplan McMahon Vitek, San Diego, CA, for Defendants.

ORDER: (1) GRANTING DEFENDANTS DEVIN ALEXANDER AND DEVIN ALEXANDER, INC.'S REQUEST FOR JUDICIAL NOTICE; (2) GRANTING PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE; AND (3) GRANTING IN PART AND DENYING IN PART DEFENDANTS DEVIN ALEXANDER AND DEVIN ALEXANDER, INC.'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

JANIS L. SAMMARTINO, District Judge.

Presently before the Court is Defendants Devin Alexander, a.k.a. Renee Simone (“Alexander”), and Devin Alexander, Inc.'s (“DAI,” and, collectively, “Alexander Defendants”) Motion to Dismiss (“MTD”) Plaintiffs Celebrity Chefs Tour, LLC (“CCT”) and Promark Productions, LLC's (“Promark,” and, collectively, “Plaintiffs”) Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 15.) Also before the Court are Alexander Defendants' Request for Judicial Notice (“RJN”) (ECF No. 15–2), Plaintiffs' RJN (ECF No. 36), and Plaintiffs' Response in Opposition to (ECF No. 40) and Alexander Defendants' Reply in Support of (ECF No. 42–1) the Motion. The hearing for the Motion was vacated and the matter taken under submission without oral argument pursuant to Civil Local Rule 7.1.d.1. (ECF No. 54.) Having considered the parties' arguments and the law, the Court GRANTS both Alexander Defendants' and Plaintiffs' RJNs and GRANTS IN PART AND DENIES IN PART Alexander Defendants' MTD.

BACKGROUND

Plaintiffs, both California limited liability companies, are the producer of a live tour (“the Tour”) and a television series filmed on the Tour called “The Great American Chef's Tour” (“GACT,” or, “the Show”). (Compl. ¶¶ 1, 2, 13, ECF No. 1.) Plaintiffs allegedly created the concept for GACT in 2008 and own all of the copyrights for GACT. (Id. ¶ 14.) Plaintiffs also own the trademark and service mark for GACT. (Id. ¶ 16.)

In August 2011, Plaintiffs and Window to the World Communications, Inc. (“WTTW”)—“a leading public television station and producer and distributor of content to public television stations nationwide”—entered into a contract whereby WTTW was to present and distribute twenty-six (26) episodes of GACT, to begin airing in the spring of 2012. (Id. ¶¶ 17, 22.) The first pilot generated generally positive feedback. (Id. ¶ 21.) Thereafter, Plaintiffs began soliciting potential sponsors for the Tour and GACT, including Macy's, Inc. (“Macy's”), a Delaware Corporation. (Id. ¶¶ 25, 3.)

In October 2011, Plaintiffs contacted Alexander about auditioning as the host of GACT. (Id. ¶ 47.) Alexander is a resident of Los Angeles who owns DAI, a California corporation. (Id. ¶¶ 9–10.) Alexander expressed her interest in the role. (Id. ) All other parties involved in GACT were pleased to have Alexander serve as the host. (Id. )

In October and November 2011, Plaintiffs presented the GACT concept to Stacy Rosenthal (“Rosenthal”), Macy's director of special events, and her superiors Amy Kuhl (“Kuhl”) and Martine Reardon (“Reardon”). (Id. ¶¶ 26–28.) Plaintiffs agreed to certain accommodations, including altering their schedule to accommodate Macy's needs and incorporating Macy's name as the title sponsor of the Tour. (Id. ¶ 28.) Macy's was cautioned that Federal Communications Commission (“FCC”) laws and regulations, however, would not permit its name to appear in the TV show. (Id. ) On November 9, 2011, Rosenthal and Kelly Lainsbury (“Lainsbury”) informed Plaintiffs that Macy's had approved a $500,000 sponsorship. (Id. ¶ 30.)

On January 6, 2012, Rosenthal requested, and Plaintiffs sent, a copy of the Tour schedule and a purchase order for the Macy's sponsorship (“the Purchase Order,” or, “the Macy's Contract”). (Id. ¶ 34.) On February 22, 2012, Macy's approved the Purchase Order and requested an invoice for a first payment of $100,000. (Id. ¶ 35.)

Macy's had previously asked Plaintiffs if it could present its potential involvement to other companies, and Plaintiffs had agreed. (Id. ¶ 33.) On March 14, 2012, Rosenthal informed Plaintiffs that Macy's had entered into an agreement with Whirlpool Corporation (“Whirlpool”), a Delaware corporation, which would be a promotional partner of Macy's, but not Plaintiffs. (Id. ¶ 38.)

On April 14, 2012, Plaintiffs received a signed contract from Alexander (“the Alexander Contract”), who had agreed to host GACT. (Id. ¶ 47.) On April 16, 2012, Plaintiffs staged a live event that provided the footage for the second pilot of GACT, with Alexander as the host. (Id. ¶ 42.) The same day, Plaintiffs signed and returned to Macy's the Purchase Order. (Id. ¶ 43.) Rosenthal acknowledged receipt of the signed Purchase Order and informed Plaintiffs that “she would have Kuhl sign it as soon as possible.” (Id. )

On April 19, 2012, Plaintiffs contacted LEC Media, LLC (“LEC”), an Illinois limited liability company, and Scott Dummler (“Dummler”), an Illinois resident and LEC executive, to “discuss[ ] the possibility of hiring them to do the editing of Pilot No. 2 and to and do [sic ] the filming of the Tour as well as the possible post-production work on [GACT].” (Id. ¶¶ 5, 8, 48.) In or about April 2012, the parties allegedly reached an agreement, never reduced to a formal written contract, whereby LEC would be the independent contractor editor of Pilot No. 2 and the independent contractor production company for the filming of the Tour. (Id. ) Plaintiffs allege that there was a mutual understanding that all intellectual property was to remain Plaintiffs' exclusive property. (Id. )

On April 26, 2012, Plaintiffs received Macy's first $100,000 sponsorship payment. (Id. ¶ 45.) On May 4, 2012, Lainsbury informed Plaintiffs that Kuhl was insisting that chefs associated with Macy's be included at each Tour stop, and that the Tour events be held in Macy's stores whenever possible. (Id. ¶ 49.) Plaintiffs explained that FCC laws and regulations would not permit Macy's to have editorial control over content. (Id. ) Lainsbury cautioned Plaintiffs that they should “never say no to” Kuhl, who was “used to getting her way.” (Id. )

On May 8, 2012, Plaintiffs met with Dummler and representatives of WTTW to discuss the show and some of the problems Plaintiffs were having with Macy's. (Id. ¶ 50.) Dummler acknowledged that he and LEC would ensure that Macy's specifically and GACT generally remained in compliance with the applicable laws. (Id. )

The Tour was scheduled to begin in Seattle on May 30, 2012, and to end in Chicago in mid-July. (Id. ¶ 51.) Throughout May, Plaintiffs contacted Macy's, without much success, “about the need to confirm Tour venues, cities, chefs and other arrangements.” (Id. ) On May 13, 2012, Plaintiffs sent Macy's its second $100,000 invoice. (Id. ¶ 52.)

On May 17, 2012, Plaintiffs learned that Macy's had created the logo “Macy's Great American Chef's Tour,” and warned Macy's that Plaintiffs owned the GACT trademark and that the logo Macy's designed would not be used on the Tour or in the show. (Id. ¶ 53.) On May 18, 2012, Plaintiffs spoke to Rosenthal, who confided that she was thinking about quitting Macy's because Kuhl was “intolerable.” (Id. ¶ 54.) Rosenthal purportedly warned Plaintiffs that Kuhl was scheming to take control, and possibly ownership, of GACT. (Id. )

On May 21, 2012, Plaintiffs were informed that Rosenthal had quit and that Jodi Riddick (“Riddick”), Rosenthal's former assistant, would be taking over her position. (Id. ¶ 56.) Plaintiffs worked with Whirlpool, at Macy's request, to make changes to the stage kitchen to include Whirlpool appliances. (Id. ¶ 57.) Whirlpool was informed that it could not be a sponsor because its appliances would be visible. (Id. )

On May 22, 2012, Kuhl called Plaintiffs and accused them of changing their deal with Macy's and insisted on having Macy's name appear on the Tour and in the show, leading Plaintiffs to threaten to cancel the Tour. (Id. ¶ 58.) Later that same day, Riddick called and told Plaintiffs that Macy's would comply with its agreement and all applicable laws, and that Macy's would send the second sponsorship payment immediately. (Id. ¶ 59.) Yet, on May 30, 2012, Plaintiffs learned that Macy's had issued a national press released touting “Macy's Great American Chefs Tour.” (Id. ¶ 60.) Nonetheless, the Tour commenced as scheduled, with eight (8) events resulting in the filming of fourteen (14) episodes of GACT between May 30, 2012 and June 10, 2012. (Id. ¶ 61.) During this time, however, Plaintiffs' problems with Macy's continued. (Id. )

On June 10, 2012, Plaintiffs sent Macy's the third sponsorship invoice. (Id. ¶ 63.) On June 15, 2012, Kuhl called Plaintiffs and threatened to pull out of the sponsorship unless Plaintiffs agreed to comply with her demands. (Id. ¶ 65.) Plaintiffs stated that they would, “within the limits permitted by the Governing Laws,” accommodate her requests, but threatened to suspend the Tour if Macy's did not make its second and third payments and return the signed Purchase Order. (Id. ) Kuhl told Plaintiffs that she would send the documents by overnight delivery. (Id. ) However, the draft version of the Purchase Order that Plaintiffs received later that day ...