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

Motion granted in part and denied in part. 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.

C. Claims 4 & 5: Intentional and Negligent Misrepresentation

The elements of a claim for intentional misrepresentation are: “(1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.” Robinson Helicopter Co. v. Dana Corp., 34 Cal.4th 979, 22 Cal.Rptr.3d 352, 102 P.3d 268, 274 (2004) (citing Lazar v. Superior Court, 12 Cal.4th 631, 638, 49 Cal.Rptr.2d 377, 909 P.2d 981 (1996)). To allege a claim for negligent misrepresentation, a plaintiff must plead: “(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” Wells Fargo Bank, N.A. v. FSI, Fin. Solutions, Inc., 196 Cal.App.4th 1559, 1573, 127 Cal.Rptr.3d 589 (2011) (citation and internal quotation marks omitted).

Because a claim for misrepresentation sounds in fraud, the heightened pleading standards of Federal Rule of Civil Procedure 9(b) apply. For misrepresentation claims, this standard is met when a party specifies the time, place and specific content of the alleged fraudulent representation; the identity of the person engaged in the fraud; and “ ‘the circumstances indicating falseness' or ‘the manner in which [the] representations were false and misleading.’ ” Genna v. Digital Link Corp., 25 F.Supp.2d 1032, 1038 (N.D.Cal.1997) (quoting In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547–48 (9th Cir.1994)). However, “[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed.R.Civ.P. 9(b). But, where multiple defendants are accused of fraud, the claim “must inform each defendant of his alleged participation in the fraud.” Ricon v. Recontrust Co., No. 09cv937–IEG–JMA, 2009 WL 2407396, at *3 (S.D.Cal. Aug. 4, 2009) (quoting Di Vittorio v. Equidyne Extractive Indus., 822 F.2d 1242, 1247 (2d Cir.1987)). Moreover, merely attributing a misrepresentation to a corporate entity is inadequate; a specific person must be named, or at least identified. See Kriendler v. Chem. Waste Mgmt., Inc., 877 F.Supp. 1140, 1155 (N.D.Ill.1995).

Alexander Defendants argue that Plaintiffs' misrepresentation claims fail because they do not identify the alleged representation, nor do they allege any of the other elements of these claims with the requisite level of specificity. (MTD 11–12, ECF No. 15–1.) Plaintiffs counter that they adequately allege Alexander Defendants' fraud by stating that Alexander mailed them the signed Alexander Contract on April 14, 2012, because they have impliedly alleged that “Alexander in fact intended to align herself with Defendants Macy's and Whirlpool and to host and promote their show.” (Pls.' Resp. in Opp'n 9, ECF No. 40 (emphasis in original).)

The Court agrees with Alexander Defendants that Plaintiffs' allegations are insufficient to state a claim. Plaintiffs generally allege that Defendants, except Whirlpool, “knowingly made false statements” as alleged above. (Compl. ¶¶ 105, 112, 113, ECF No. 1.) Plaintiffs state that these false statements include:

inducing [Plaintiffs] to proceed with the Tour and taping of the TV Show and allowing them to retain temporary possession of the CCT Assets, while their intention was to take the CCT Assets and use them for their own benefit and to attempt to steal the intellectual property and other rights and interests of [Plaintiffs] for their own profit.

( Id. ¶ 105.) However, Plaintiffs fail to specify what Alexander Defendants did, and when, to induce Plaintiffs' actions in this regard. Plaintiffs make no allegations in the Complaint that Alexander was in any way involved in the alleged misappropriation of the CCT Assets, nor do they suggest that Alexander intended to defraud Plaintiffs at the time she signed her contract. ( See, e.g., id. ¶¶ 47, 75, 77–78.) Accordingly, Plaintiffs fail to allege with specificity Alexander Defendants' misrepresentations, and thus Alexander Defendants' MTD is GRANTED WITHOUT PREJUDICE

as to these claims.

D. Claim 6: Conversion

Alexander Defendants next argue that Plaintiffs' conversion claim fails because Plaintiffs fail to allege Alexander Defendants' possession of the CCT Assets at any time. (MTD 12, ECF No. 15–1.) Plaintiffs argue that they properly allege a conversion claim because “[a]n action for conversion lies not only in the taking of another's property, but also in the use of that property,” and Alexander Defendants converted Plaintiffs' property when Alexander used the CCT Assets for her own benefit, including promoting GACT and posting GACT footage on Alexander's website. (Pls.' Resp. in Opp'n 10, ECF No. 40.)

The Court agrees with Plaintiffs that they have pleaded a claim for conversion. The elements of a claim for conversion consist of (1) ownership or a right to possession, (2) wrongful disposition of the property, and (3) damages. G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 906 (9th Cir.1992). Moreover, § 229 of the Restatement (Second) of Torts provides:

One who receives possession of a chattel from another with the intent to acquire for himself or for a third person a proprietary interest in the chattel which the other has not the power to transfer is subject to liability for conversion to a third person then entitled to the immediate possession of the chattel.

California Courts have cited approvingly to § 229. See, e.g., Moore v. Regents of Univ. of Cal., 51 Cal.3d 120, 157 n. 4, 271 Cal.Rptr. 146, 793 P.2d 479 (1990); Strutt v. Ontario Sav. & Loan Ass'n, 28 Cal.App.3d 866, 874–75, 105 Cal.Rptr. 395 (1972).

Plaintiffs repeatedly assert their ownership of the GACT copyright, trademark, and content. (Compl. ¶¶ 14–16, 28, 48, 118, ECF No. 1.) Plaintiffs purportedly “consented to LEC holding the CCT Assets temporarily until it could be determined where they should be sent.” ( Id. ¶ 75.) Plaintiffs have since requested the return of the CCT Assets. ( Id. ¶ 77.) Yet, the assets have not been returned. ( Id.) Rather, Plaintiffs allege that, as of December 2012, Alexander had been, for several months, promoting “her ‘new show’—which is the ‘Great American Chefs Tour’ ”—by posting photographs and videos, “all shot during the Tour,” on her website and Facebook page. ( Id. ¶ 81.) Thus, Plaintiffs had a right to immediate possession of the CCT Assets, including the Tour footage. LEC had possession of the CCT Assets, but not the power to transfer them. And Alexander appears to have acquired the Tour footage from LEC with the intent to make it her own, as she deemed the footage to be from “her” show. That Alexander may not have ever possessed the physical tapes is of no consequence, as she did gain possession of the intellectual property contained therein.²

Alexander Defendants also contend, however, that the claim must be dismissed because Plaintiffs improperly seek compensatory damages rather than the damages for conversion mandated by California Civil Code § 3336. (MTD 12–13, ECF No. 15–1 (citing Compl. ¶¶ 122–23, ECF No. 1).) However, Plaintiffs allege that they “ha[ve] been damaged” from their loss of the CCT Assets and their inability to distribute GACT themselves, which is all that is required on a motion to dismiss. (Compl. ¶¶ 102, 122, ECF No. 1.) See Summit Tech., Inc. v. High–Line Med. Instruments, Co., 933 F.Supp. 918, 927–28 (C.D.Cal.1996) (citation, alteration, and internal quotation marks...