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

16 F.Supp.3d 1141

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 DEFENDANT MACY'S, INC.'S REQUEST FOR JUDICIAL NOTICE; AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT MACY'S, INC.'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) (ECF No. 19)

JANIS L. SAMMARTINO, District Judge.

Presently before the Court is Defendant Macy's, Inc.'s (“Macy's”) 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. 19.) Also before the Court are Macy's Request for Judicial Notice (“RJN”) (ECF No. 19–2), Plaintiffs' RJN (ECF No. 36),¹ and Plaintiffs' Response in Opposition to (ECF No. 39) and Macy's Reply in Support of (ECF No. 42) 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 Macy's RJN and GRANTS IN PART AND DENIES IN PART Macy's MTD.

BACKGROUND

The Court thoroughly summarized the factual and procedural background of this case in ruling on a related motion to dismiss, and accordingly the Court hereby incorporates by reference the background as set forth therein. (See Order 2–7, ECF No. 78.)

REQUEST FOR JUDICIAL NOTICE

Federal Rule of Evidence 201 provides that “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” “Judicially noticed facts often consist of matters of public record.” Botelho v. U.S. Bank, N.A., 692 F.Supp.2d 1174, 1178 (N.D.Cal.2010) (citations omitted); see also W. Fed. Sav. & Loan Ass'n v. Heflin Corp., 797 F.Supp. 790, 792 (N.D.Cal.1992). While “a court may take judicial notice of the existence of matters of public record, such as a prior order or decision,” it should not take notice of “the truth of the facts cited therein.” Marsh v. Cnty. of San Diego, 432 F.Supp.2d 1035, 1043 (S.D.Cal.2006).

Macy's asks the Court to judicially notice the eleven (11) documents the Court judicially noticed in its April 25, 2014 Order. (RJN 2–4, ECF No. 19–2; see Order 8–9, ECF No. 78.) In addition, Macy's requests that the Court judicially notice the following two (2) documents: (1) State Bar of California Attorney Search for Gary Ravet; and (2) California Secretary of State Business Entity Detail for Promark Productions, LLC. (See RJN 4, ECF No. 19–2.) All of these documents are available to the public and are certified and maintained by an official office. Their accuracy cannot therefore be reasonably disputed. Accordingly, the Court GRANTS Macy's RJN as to all thirteen (13) documents. However, the Court does not take notice of the truth of the facts asserted therein.

MOTION TO DISMISS

I. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted,” generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations,’ ... it [does] demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ); see also Fed.R.Civ.P. 12(b)(6). A claim is facially plausible when the facts pled “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “ ‘merely consistent with’ a defendant's liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). Further, the Court need not accept as true “legal conclusions” contained in the complaint.Id. This review requires context-specific analysis involving the Court's “judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937 (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id.

Where a motion to dismiss is granted, “leave to amend should be granted ‘unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’ ” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.1992) (quoting Schreiber Distrib. Co. v. Serv–Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986) ). In other words, where leave to amend would be futile, the Court may deny leave to amend.

II. Analysis

Plaintiffs assert the following seventeen claims: (1) breach of contract (Macy's); (2) breach of contract (Dummler, LEC, and O'Donnell); (3) breach of contract (Alexander); (4) intentional misrepresentation (Alexander, DAI, Dummler, LEC, Macy's, and O'Donnell); (5) negligent misrepresentation (Alexander, DAI, Dummler, LEC, Macy's, and O'Donnell); (6) conversion (all Defendants); (7) trademark infringement (all Defendants); (8) false designation of origin (all Defendants); (9) trademark dilution (all Defendants); (10) common law unfair competition (all Defendants); (11) unfair competition in violation of California Business and Professions Code § 17200 (all Defendants); (12) misappropriation of ideas (all Defendants); (13) intentional interference with contractual relations (EPS, Dummler, LEC, Macy's, O'Donnell, and Whirlpool); (14) intentional interference with prospective economic advantage (EPS, Dummler, LEC, Macy's, O'Donnell, and Whirlpool); (15) negligent interference with contractual relations (EPS, Dummler, LEC, Macy's, O'Donnell, and Whirlpool); (16) negligent interference with prospective economic advantage (EPS, Dummler, LEC, Macy's, O'Donnell, and Whirlpool); and (17) declaratory relief (EPS, LEC, Macy's, and Whirlpool).² The Court addresses each in turn.³

A. Claim 1: Breach of Contract

Macy's first argues that Promark⁴ fails to allege all of the elements required for a breach-of-contract claim. “Under California law, the elements required to establish actionable breach of contract are the existence and terms of the contract, plaintiff's performance, defendant's breach, and damages therefrom.”

Student Loan Mktg. Ass'n v. Hanes, 181 F.R.D. 629, 633 (S.D.Cal.1998) (citing M.G. Chamberlain & Co. v. Simpson, 173 Cal.App.2d 263, 343 P.2d 438 (1959) ).

In its MTD, Macy's concedes that Promark alleges the existence of a contract. (MTD 12, ECF No. 19–1 (“Promark alleges it entered into a contract with Macy's.”).) In its Reply, however, Macy's argues that the Declaration of Gary Ravet (“the Ravet Declaration”), which the Court has judicially noticed, establishes that Promark was not a party to any contract with Macy's. (Reply 6, ECF No. 42; see Order 8–9, ECF No. 78.) The Court finds it somewhat puzzling that Macy's makes this argument in light of its contention, also found in its Reply, that the Court may not actually consider in deciding this MTD the “lengthy recitation of questionable remembrances with no foundation” that is the Ravet Declaration. (Reply 3, ECF No. 42.) As the Court has already acknowledged, it can notice the existence of the Ravet Declaration, but not the disputed facts contained therein. (See supra p. 1147.) See also Rezentes v. Sears, Roebuck & Co., 729 F.Supp.2d 1197, 1206 (D.Haw.2010) (explaining that a court may only take judicial notice of the existence of a prior declaration). Accordingly, the Court disregards Macy's spurious argument—which seemingly questions the merits of Promark's claim rather than the...