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Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 1 of 33 Page ID #:480

1 Daniel I. Small (pro hac vice)


Christopher M. Iaquinto (pro hac vice)
2 HOLLAND & KNIGHT LLP
10 Saint James Avenue, 11th Floor
3 Boston, MA 02116
Telephone: 617.573.2700
4 Fax: 617.523.6850
E-mail: dan.small@hklaw.com
5 christopher.iaquinto@hklaw.com
6 Kristina S. Azlin (SBN 235238)
Michael T. Boardman (SBN 279153)
7 HOLLAND & KNIGHT LLP
400 South Hope Street, 8th Floor
8 Los Angeles, California 90071
Tel: 213.896.2400
9 Fax: 213.896.2450
Email: kristina.azlin@hklaw.com
10 michael.boardman@hklaw.com
11 Attorneys for Defendant
Tyler Korff
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13 UNITED STATES DISTRICT COURT
14 CENTRAL DISTRICT OF CALIFORNIA
15
16 MANUELA HERZER, an individual, ) Case No.: 2:17-cv-07545-PSG
)
17 Plaintiff, ) DEFENDANT TYLER KORFF’S
) MOTION TO STRIKE
18 vs. ) SELECTED ALLEGATIONS
) FROM FIRST AMENDED
19 SHARI REDSTONE, an individual; ) COMPLAINT; MEMORANDUM
TYLER KORFF, an individual; and ) OF POINTS AND AUTHORITIES
20 DOES 1 through 10, inclusive, ) IN SUPPORT THEREOF;
) [PROPOSED] ORDER
21 Defendants. )
) [Fed. Rule. Civ. Pro. 12(f)]
22 )
)
23 ) Date: June 11, 2018
) Time: 1:30 pm
24 ) Dept.: 6A
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DEFENDANT TYLER KORFF’S NOTICE OF MOTION AND MOTION TO STRIKE


SELECTED ALLEGATIONS FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 2 of 33 Page ID #:481

1 NOTICE OF MOTION AND MOTION TO STRIKE


2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that on June 11, 2018, at 1:30 pm, or as soon
4 thereafter as the matter may be heard in Courtroom 6A of the above-entitled Court,
5 located at 350 West 1st Street, 6th Floor, Los Angeles, California 90012-4565,
6 Defendant Tyler Korff (“Mr. Korff”), by and through his attorneys of record, will
7 and does hereby move this Court for an Order, pursuant to Rule 12(f) of the
8 Federal Rules of Civil Procedure, striking immaterial, impertinent and unduly
9 prejudicial allegations contained in the First Amended Complaint filed in the
10 above-captioned action by Plaintiff Manuela Herzer (“Herzer”) and located in the
11 Court’s Docket as Doc. No. 51 (“FAC”). Specifically, Mr. Korff requests that the
12 Court strike all or part of the allegations set forth in paragraphs 3-4, 8-9, 15-21, 23-
13 25, 43-47, 49-51, 53-54, 65, 68, 149, 152, 154-73, 179, 189, and 193 of the FAC
14 on the basis that such allegations:
15 A. Constitute general allegations concerning the control and/or
16 management of Viacom and CBS (or the Sumner M. Redstone National
17 Amusements Trust (“NA Trust”) or National Amusements, Inc. (“NAI”)), as to
18 which Herzer has no right or ability to speak to, implicate legal issues and
19 documents that are far beyond any issue that is material to the claims plausibly at-
20 issue in this case, and appear to be largely poached from: (i) the complaint filed in
21 2016 by Mr. Philippe Dauman and Mr. George S. Abrams in the Massachusetts
22 Probate Court relating to an irrevocable trust that pertains to Mr. Sumner
23 Redstone’s ownership and control of National Amusements Inc., Viacom and CBS
24 (the “Dauman/Abrams Litigation”), which has been settled and dismissed; and (ii)
25 the complaint filed by Frederic Salerno (individually and on behalf of other former
26 members of the Viacom Board of Directors) relating to their removal from
27 positions within that entity (the “Salerno Litigation”), which also has been settled
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
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1 and dismissed. Herzer does not now have, and has never had, any rights in NAI,
2 the NA Trust, Viacom, or CBS (which is presumably why she was not a party, or
3 identified as an individual with any interest, in either litigation);
4 B. Purport to set forth the post-October 2015 knowledge or wishes of Mr.
5 Sumner Redstone, including after Mr. Redstone ejected Herzer from his home, and
6 for whom Herzer has no ability or authority to speak, and who has an active case
7 against Herzer for elder abuse, which is related to many of the same facts and
8 circumstances at-issue in this case; and
9 C. Concern facts and activities that purportedly took place before
10 September 2014, when Herzer alleges that the “criminal” Racketeer Influenced and
11 Corrupt Organizations Act (“RICO”) enterprise began, and after Herzer was
12 removed from Mr. Redstone’s home and estate plan in October 2015. This includes
13 allegations that do not relate to Herzer, such as the post-2015 amendments to Mr.
14 Redstone’s healthcare directive and estate plan (which are the subject of two
15 ongoing litigations in California state court), allegations about the removal of
16 trustees from Mr. Redstone’s irrevocable trust and/or directors and officers from
17 the management of NAI and Viacom (which were the subject of now-concluded
18 litigations filed in Massachusetts and Delaware state court), allegations that various
19 attorneys and others are fraudulently or falsely acting on Mr. Redstone’s behalf,
20 and allegations that Ms. Shari Redstone has allegedly restricted access to Mr.
21 Redstone and “forged” Mr. Redstone’s signature on various post-October 2015
22 communications or other documents.
23 This motion is made following a conference of counsel pursuant to Local
24 Rule 7.3, which took place on April 19, 2018.
25 This motion will be based upon this Notice of Motion and Motion to Strike,
26 the attached Memorandum of Points and Authorities, Mr. Korff’s concurrently
27 filed Motion to Dismiss, Defendants’ Joint Request for Judicial Notice and exhibits
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
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1 filed herewith, the record of this proceeding to date, and any and all evidence that
2 may be presented at or before the hearing on this matter.
3 Respectfully submitted,
4 Date: April 27, 2018 HOLLAND & KNIGHT LLP
5 By: /s/ Daniel I. Small
Daniel I. Small
6 Kristina S. Azlin
7 Attorneys for Defendant
Tyler Korff
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
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1 TABLE OF CONTENTS
2 Page

3 I. INTRODUCTION AND SUMMARY OF ARGUMENT ............................. 1

4 II. THE COURT SHOULD STRIKE IMMATERIAL, IMPERTINENT


AND PREJUDICIAL MATTERS FROM THE FAC .................................. 10
5 III. SUMMARY OF RELEVANT FACTS AND ALLEGATIONS TO
6 BE STRICKEN ............................................................................................. 13

7 IV. THE IMMATERIAL, IMPERTINENT, IRRELEVANT AND


PREJUDICIAL ALLEGATIONS IN THE FAC ARE
8 APPROPRIATE FOR STRIKING. .............................................................. 17

9 A. Allegations Concerning The Control And/Or Management Of


Viacom And CBS. 18
10 B. Allegations Purporting To Set Forth The Knowledge Or Wishes
11 Of Mr. Sumner Redstone. 19

12 1. Summary Of Allegations In Which Herzer Purports To Set


Forth The Knowledge Or Wishes Of Sumner Redstone. 20
13 2. These Allegations Are Prejudicial To Mr. Korff In
Complicating Discovery. 21
14 3. These Allegations Would Confuse The Jury And Lead To
15 Unwarranted Inferences At Trial. 22
C. Allegations Concerning Facts And Activities That Took Place
16 Before The Alleged “Scheme” Began And After Herzer Was
Removed From Mr. Redstone’s Home In October 2015 That
17 Do Not Relate To Herzer. 23
18 V. CONCLUSION ............................................................................................. 25
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
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1 TABLE OF AUTHORITIES

2 Page(s)
3 Cases
4 Benham v. Am. Servicing Co.,
5 No. C 09-01099, 2009 WL 4456386 (N.D. Cal. Nov. 30, 2009) ....................... 12
6 Bradley Trust v. Zenith Capital LLC,
7 No. C 04-02239, 2006 WL 193642 (N.D. Cal. Jan. 24, 2006) .......................... 12

8 California Dep’t of Toxic Substances Control v. Alco Pac., Inc.,


217 F. Supp. 2d 1028 (C.D. Cal. 2002) .............................................................. 12
9
10 Canyon County v. Syngenta Seeds, Inc.,
519 F.3d 969 (9th Cir. 2008) .............................................................................. 14
11
Eclectic Properties East, LLC v. Marcus & Millichap Co.,
12 751 F.3d 990 (9th Cir. 2014) .............................................................................. 14
13
Fantasy, Inc. v. Fogerty,
14 984 F.2d 1524 (9th Cir. 1993) ................................................................ 10, 11, 18
15
Friedman v. 24 Hour Fitness USA, Inc.,
16 580 F. Supp. 2d 985 (C.D. Cal. 2008) ................................................................ 11
17 Ghahremani v. Borders Group, Inc.,
18 No. 10-CV-1248, 2010 WL 4008506 (S.D. Cal. Oct. 6, 2010) ......................... 12

19 McArdle v. AT&T Mobility LLC,


657 F. Supp. 2d 1140 (N.D. Cal. 2009) ....................................................... 10, 18
20
21 Sliger v. Prospect Mortg., LLC,
No. CIV. S-11-465, 2011 WL 2118913 (E.D. Cal. May 27, 2011) ................... 11
22
California ex rel. State Lands Comm’n v. United States,
23
512 F. Supp. 36 (N.D. Cal. 1981)....................................................................... 11
24
Thornton v. Solutionone Cleaning Concepts, Inc.,
25 No. 06-1455, 2007 WL 210586 (E.D. Cal. Jan. 26, 2007) ................................ 11
26
Whittlestone, Inc. v. Handi-Craft Co.,
27 618 F.3d 970 (9th Cir. 2010) ........................................................................ 10, 11
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
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1 Statutes
2 Cal. Civ. Proc. Code § 128.5 ..................................................................................... 6
3 Other Authorities
4 Fed. R. Civ. P.
5 Rule 8, 9(b), and 12(b) ......................................................................................... 1
Rule 12 ................................................................................................................ 10
6 Rule 12(f) ................................................................................................ 10, 11, 17
7 Rule 12(g)(1) ...................................................................................................... 10
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
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1 MEMORANDUM OF POINTS AND AUTHORITIES


2 I. INTRODUCTION AND SUMMARY OF ARGUMENT
3 Tyler Korff is the grandson of media mogul Sumner Redstone. Plaintiff
4 Manuela Herzer (“Herzer”), although forty (40) years Mr. Sumner Redstone’s
5 junior, was Mr. Redstone’s “20-year friend” and his some-time housemate for a
6 brief two-year period from April 2013 to October 2015 (during which time Mr.
7 Redstone purportedly showered her with millions of dollars in “gifts”). See First
8 Amended Complaint (Docket No. 51) (“FAC”) ¶¶ 7, 12-13, 57.
9 In addition to the approximately $75 million she received in cash, stock, and
10 other “gifts” from Sumner Redstone, Herzer is desperate for an additional $100
11 million payday from the Redstone family. This is the fourth lawsuit brought by
12 Herzer (and the seventh complaint filed in those lawsuits) to achieve that ultimate
13 goal in the three years since her two-year residency in Mr. Redstone’s home. Each
14 new case, however, has been filed after one of the previous Judges found against
15 her on a significant legal issue, even though each litigation has the same goal and
16 is based on the same facts and circumstances. Herzer’s strategy is clear – to shop
17 for new courts and judges by filing new litigation every time her claim for $100
18 million is imperiled. This litigation is just the latest development. 1 See FAC ¶ 30.
19 In each prior lawsuit, two of which are still pending before the California
20 state courts (the California Court of Appeal affirmed dismissal of the third in
21 January 2018), Herzer has re-characterized and recast the same facts from that two-
22 year period in an effort to recover at least $100 million, a figure that could only be
23
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24 Mr. Korff has also concurrently filed a Motion to Dismiss Herzer’s FAC pursuant
to Rules 8, 9(b), and 12(b) of the Federal Rules of Civil Procedure. See Korff
25 Motion to Dismiss (“Korff MTD”). As set forth therein, the FAC fails to
adequately state a claim upon which relief can be granted and should be dismissed
26 because, among other deficiencies, the entire FAC is barred as an improper attempt
at claim-splitting. Korff MTD at § III; see also Defendants’ Joint Request For
27 Judicial Notice (“RJN”). Where possible, Mr. Korff has attempted to avoid
unnecessary duplication between that motion and this one, but some repetition is
28 necessary due to the overlap of relevant facts and procedural history.
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
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1 based on her hoped-for inheritance under Sumner Redstone’s 2003 Personal Trust
2 (“2003 Trust”) (a revocable trust that he amended for the fortieth time in October
3 2015 to exclude her). Yet, the California Superior Court (the Honorable Judge
4 Robert L. Hess) has already concluded that Herzer’s claim to reinstate her
5 inheritance under the 2003 Trust – that is, to recover anywhere close to $100
6 million – is within the exclusive jurisdiction of the California Probate Court, a
7 conclusion that the probate court has subsequently agreed with: “[T]he probate
8 court always was the proper venue for this trust contest.” RJN, Ex. 17 at 9.
9 Apparently concerned about an unfavorable decision, Herzer will stop at nothing to
10 avoid proceeding before the probate division of the California Superior Court,
11 clearly the most appropriate court for her 2003 Trust claim. This ongoing court and
12 judge shopping spree now includes alleging an absurd RICO enterprise between
13 mother (Ms. Shari Redstone) and son (Mr. Korff), Mr. Korff’s brother and sister,
14 the nursing staff attending to Mr. Redstone, and all of Ms. Shari Redstone’s
15 lawyers and public relations professionals.
16 Herzer Case No. 1. In re: Advance Health Care Directive of Sumner M.
17 Redstone, Superior Court of California, County of Los Angeles, Probate Division,
18 Case Number BP 168725, filed on November 25, 2015 and assigned to Judge
19 David J. Cowan (the “First Action”): One month after Sumner Redstone kicked
20 Herzer out of his home, Herzer filed a petition seeking to invalidate Sumner
21 Redstone’s changes to his health care directive made after September 2015. See
22 RJN, Ex. 1. Herzer claimed that Mr. Redstone made those post-September 2015
23 changes because he acted as a result of “undue influence,” and sought to be
24 reinstated as Sumner Redstone’s primary agent. Id. at 18. In essence, Herzer
25 sought to re-inject herself into Mr. Redstone’s life (ostensibly to re-assert control
26 over Mr. Redstone and obtain the $100 million out of court). The Court dismissed
27 Herzer’s case with prejudice during trial and after hearing testimony from Sumner
28 Redstone himself, which included Mr. Redstone’s testimony, as noted by Judge
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
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1 Cowan, that “he wanted for his daughter Shari Redstone [] to serve as his agent”
2 and that he “hate[d] Manuela [and he] want[ed] Manuela out of [his] life.” RJN,
3 Ex. 4 at 2-3, 17. In January 2018 the California Court of Appeal affirmed the
4 dismissal, including the Probate Court’s conclusion that “Herzer could not serve as
5 Redstone’s agent given his lack of trust in her and desire that she not act in that
6 capacity.” See RJN, Ex. 23.
7 Undeterred by Judge Cowan’s dismissal on May 9, 2016, Herzer filed on the
8 very same day…
9 Herzer Case No. 2. Manuela Herzer v. Shari Redstone et al., Superior Court
10 of California, County of Los Angeles, Case No. BC 619766, related to Case No.
11 BC 638054, filed May 9, 2016, and assigned to Judge Robert L. Hess (the “Second
12 Action”): On the same day that Judge Cowan dismissed Herzer’s First Action with
13 prejudice, Herzer filed a complaint alleging Invasion Of Privacy and Intentional
14 Interference with Expected Inheritance (“IIEI”) against Shari Redstone, Tyler
15 Korff, Tyler’s brother Brandon Korff, and various members of Mr. Redstone’s
16 healthcare staff. RJN, Ex. 3 at 1. After Ms. Shari Redstone’s demurrer was
17 sustained on September 7, 2016 with leave to amend, Herzer filed on October 4,
18 2016 a first amended complaint alleging the same violations by the same parties
19 (the “Privacy FAC”). RJN, Ex. 7; id. Ex. 8 at 1. On April 21, 2017, the California
20 Superior Court (Judge Hess) again sustained Defendant’s demurrer to Herzer’s
21 claim for IIEI in the Privacy FAC. RJN, Ex. 13 at 68-69. Judge Hess explicitly
22 stated that Herzer’s recovery for her $100 million damages claim belonged in
23 California Probate Court:
24 [Herzer’s IIEI claim] should be brought in the probate department
under Probate Code section 17200 rather than as a separate claim for
25 intentional interference with expected inheritance … [i]t appears that
complete relief on this claim can be afforded in the Probate Court ….
26 In addition, Ms. Herzer’s Complaint seeks damages on [the invasion
of privacy] claims not for the type of injuries normally associated with
27 invasions of privacy, but rather in the form of a further request for
reinstatement of the inheritance. As such, it merely duplicates the
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FROM THE FIRST AMENDED COMPLAINT
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damages claims in the [IIEI] cause of action, which belong in Probate


1 Court. Id. at 67:23 to 68:18 (emphasis added).
2
Undeterred, Herzer amended her invasion of privacy claims for the second
3
time on May 30, 2017 (the “Privacy SAC”), this time dropping all defendants
4
except Mr. Korff and his mother. RJN, Ex. 15 at 1. Herzer’s allegations in the
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Privacy SAC are duplicated in the instant litigation, for example: “[s]tarting in
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September 2014 … Shari organized what would eventually become a successful
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campaign to turn Sumner against Herzer” and Defendants violated Herzer’s
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privacy by “listening in on and/or recording private telephone calls …, conducting
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covert surveillance of Herzer, violating valid and binding confidentiality
10
agreements with Sumner.” Compare id. at 1, 7, and 15 with FAC ¶¶ 84-100. Herzer
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again claims to have “suffered over $100 million in damages as a result of …
12
repeated and malicious invasions of privacy” during the two years that Herzer was
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Mr. Redstone’s housemate, just as she does here (FAC ¶¶ 30, 195), all with no
14
basis in reality.2
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The Privacy SAC is currently pending before Judge Hess in the California
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Superior Court. Judge Hess is also presiding over the elder abuse lawsuit filed by
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Sumner Redstone against Herzer, Case No. BC638054. See RJN, Exs. 9 and 12
18
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Any effort by Herzer to attempt to cure the defect cannot succeed, as the duplicity
20
of Herzer’s allegations in the Second Action before Judge Hess and the instant
21 action are self-evident; Herzer verified under oath that the damages she seeks to
recover pursuant to her Privacy SAC are:
22
Herzer has suffered over $100 million in damages as a result of
23 Defendants’ conduct. These damages include, but are not limited to,
the following: (1) Damages for Defendants’ repeated and malicious
24 invasions of privacy throughout the time that Ms. Herzer lived at
the Beverly Park residence; (2) Damages for Defendants’
25 unauthorized access of Ms. Herzer’s computer; (3) Damages for
Defendants’ illegal bribery, surveillance, and wire fraud … (5)
26 Damages resulting from changes in Sumner Redstone’s estate plan
….
27
See Declaration of Andrew Walsh In Support of Shari Redstone’s Motion to
28 Dismiss (“Walsh Dec.”), Ex. 2 at 4 (emphasis added).
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FROM THE FIRST AMENDED COMPLAINT
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1 (Herzer filed a notice of related case upon the filing of the elder abuse lawsuit). A
2 month after Judge Hess rejected Herzer’s Privacy FAC and the Superior Court’s
3 jurisdiction over her IIEI claim, and on the same day that Herzer filed the Privacy
4 SAC, Herzer also filed …
5 Herzer Case No. 3. In re: the Matter of the Sumner M. Redstone 2003 Trust
6 dated July 23, 2003, as amended and restated, Superior Court of California,
7 County of Los Angeles, Probate Division, Case No. 17-STPB-04740, related to
8 Case No. BP 168725 (the First Action), filed May 30, 2017 and assigned to Judge
9 David J. Cowan (the “Third Action”): Herzer filed the Third Action seeking to
10 invalidate changes to Sumner Redstone’s revocable personal trust and to reinstate
11 bequests to Herzer of $50 million and Sumner Redstone’s home, which is valued at
12 approximately $20 million. RJN, Ex. 14 at 14-15, 25-26. The case was assigned to
13 Judge Cowan (the same judge from the First Action), who set trial for July 2018.
14 Again shopping for a different judge, Herzer filed a peremptory challenge to Judge
15 Cowan (RJN, Ex. 16), which he rejected after full briefing on the issue, finding not
16 only that the Third Action is a “related” case to the First Action, but that it is
17 actually a “continuation” of the First Action because it “involves the same parties,
18 facts, and paramount legal theories.” RJN, Ex. 17 at 14. Herzer filed a petition for
19 writ of mandate with the California Court of Appeal on September 1, 2017, which
20 it summarily denied on September 15, 2017. RJN, Exs. 18 and 19. Undeterred,
21 Herzer filed a petition for review by the California Supreme Court, which it also
22 summarily denied, on November 1, 2017. RJN, Exs. 20 and 22.
23 Just three weeks after the California Court of Appeal denied Herzer’s
24 attempt to remove Judge Cowan from the case, Herzer filed the instant litigation.
25 See RJN, Ex. 19. Herzer’s blatant court-and-judge shopping does not end there.
26 Desperate to avoid proceeding in the Probate Court (the appropriate venue for
27 Herzer’s damages claims relating to her hoped-for inheritance, as articulated by
28 Judge Hess), on April 9, 2018 Herzer first moved to continue the trial date in the
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
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1 Third Action, even though the facts underlying her claims have already been the
2 subject of extensive discovery (RJN, Ex. 24); and then two days later (on April 11,
3 2018) attempted to voluntarily dismiss her claim without prejudice (RJN, Ex. 25).
4 Herzer’s effort to voluntarily dismiss her claims is currently pending before the
5 Probate Court, and is subject to a briefing schedule extending into May (with trial
6 in that matter still scheduled for July).
7 Unwilling to proceed before Judge Cowan in the Third Action, and aware of
8 Judge Hess’s commentary that “Ms. Herzer’s [Invasion of Privacy] complaint
9 seeks damages on these claims not for the type of injuries normally associated with
10 invasion of privacy, but rather in the form of a further request for reinstatement of
11 the inheritance” (see RJN, Ex. 13 at 68:13-16), Herzer filed …
12 Herzer Case No. 4. The instant litigation. Herzer’s original complaint
13 (Docket No. 2) in this matter was filed on October 16, 2017 (“Compl.”) – after two
14 years of litigation and discovery on the same facts and circumstances.
15 Nevertheless, Herzer’s original complaint was so clearly deficient that, after
16 Defendants satisfied the required meet and confer obligations in advance of filing a
17 motion to dismiss, Herzer replaced the original complaint with the even more
18 absurd FAC.
19 Herzer’s FAC is based on the same facts and circumstances as the above
20 cases. Herzer describes in the FAC “[being] illegally evicted from Sumner’s life,
21 cut out of his estate plan entirely, removed from her position as Sumner’s
22 designated health care agent and power of attorney, and prevented from ever
23 seeing Sumner again,” having “the contents of Herzer’s wire, oral and electronic
24 communications” intercepted and disclosed, and having false statements made
25 about her. FAC ¶¶ 23, 197-200, and 206. Moreover, Herzer seeks as damages the
26 “bequests to her and her children being deleted from Sumner’s trust” for each of
27 these purported violations, which she neglects to mention is the subject of her
28 Second and Third Actions. Id. ¶¶ 195, 202, and 213. Herzer also seeks as damages
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
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1 her attorneys’ fees in connection with the currently pending elder abuse case
2 brought by Sumner Redstone, on the grounds that it is frivolous. Id. ¶ 195. The
3 elder abuse case is still pending before Judge Hess in the California Superior
4 Court. Notably, Herzer has not filed a motion for attorney’s fees incurred “as a
5 result of bad-faith actions or tactics that are frivolous” in that case. See Cal. Civ.
6 Proc. Code § 128.5. She prefers to shop elsewhere.
7 The twist to the FAC, however, is Herzer’s further overreach in poaching
8 allegations from litigations involving other parties (in name and in interest) before
9 other courts, involving matters for which Herzer has no interest, and for time
10 periods for which Herzer has no independent information or knowledge. Desperate
11 to fashion a claim under RICO, Herzer blends the allegations from her prior
12 litigations with allegations from other settled and resolved lawsuits filed by third-
13 parties – blurring wild allegations about the control of large multinational
14 companies in which she has no interest. Herzer effectively concedes as much in the
15 FAC; “[t]he actions filed by Dauman and others all contain strikingly similar
16 allegations.” FAC ¶ 24. Herzer’s efforts to stretch her claims to relate to the NA
17 Trust, NAI, CBS and Viacom are transparent: in two consecutive sentences,
18 Herzer alleges that “Sumner enjoyed close and trusting relationships with long-
19 time friends such as Manuela Herzer, Phillippe [sic] Dauman, George Abrams and
20 Fred Salerno. Sumner respected each of these individuals for their business
21 acumen and, given his confidence in their business abilities and character,
22 Dauman, Abrams and Salerno served as trustees of NAI and directors of Viacom.”
23 FAC ¶ 54. Notably absent from this second sentence is any mention of Herzer –
24 who did not have any role whatsoever with respect to the NA Trust, or at NAI,
25 CBS, or Viacom. Nevertheless, Herzer seeks to stand in the shoes of those who do
26 have an interest in the control and management of those large corporate entities,
27 piggybacking on already resolved litigations to assert what she hopes might pass
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 15 of 33 Page ID #:494

1 muster as a RICO scheme, in an attempt to collect money from Mr. Redstone’s


2 estate that she could not through her other litigation efforts.
3 As part of this outlandish scheme and obvious attempt at forum shopping,
4 Herzer now alleges as “predicate acts” witness tampering and witness bribery:
5 1. A litigation settled in August 2016 involving former trustees, Mr. Philippe
6 Dauman (former CEO of Viacom) and Mr. George Abrams (a former Viacom
7 director), of the NA Trust – a separate, irrevocable trust relating to the ownership
8 and control of National Amusements, Inc. – to which Herzer does not have and
9 has never had any rights or interest (the “Dauman/Abrams Litigation”) (see RJN,
10 Ex. 5 at 5, 8-9; id. Ex. 10); and
11 2. A litigation also settled in August 2016 involving Mr. Frederic V. Salerno
12 (the former Lead Independent Director of the Board of Directors of Viacom, Inc.)
13 relating to the same issues raised in the Dauman/Abrams Litigation, but as applied
14 to Viacom directors. RJN, Ex. 6 at 8. This litigation and the Dauman/Abrams
15 Litigation was settled as part of a global settlement. RJN, Ex. 37 at 17-87 (Exhibit
16 10 to Viacom, Inc.’s Form 8-K filed with the U.S. Securities and Exchange
17 Commission on August 23, 2016, and attaching the confidential settlement and
18 release agreement in these matters); see RJN, Ex. 10 (the docket in the
19 Dauman/Abrams Litigation, which indicates that an order dismissing the case with
20 prejudice was entered in October 2016).
21 Herzer claims that each of the parties in these litigations were “bought off”
22 and “bribed,” when, in reality, their claims were settled with the participation and
23 assistance of highly sophisticated counsel on all sides, and approved by the court.
24 Compare FAC ¶¶ 23-24 with RJN, Ex. 37 at 17-87 (Exhibit 10 to Form 8-K at
25 pages 1-3, 15-16, and accompanying signature pages). Indeed, the “Confidential
26 Settlement And Release Agreement” entered into by the parties in the
27 Dauman/Abrams Litigation and the Salerno Litigation was attached as an exhibit
28 Viacom’s Form 8-K filed publicly with the SEC on August 23, 2016 (id.), which
8
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 16 of 33 Page ID #:495

1 was incorporated by reference in its Form 10-Ks filed November 9, 2016 and
2 November 16, 2017. The notion that these settlements were somehow “bribe[s]”
3 and constitute witness tampering or obstruction in violation of federal law is truly
4 absurd. At bottom, not only can these publicly disclosed and court vetted
5 settlements not support a claim for federal witness tampering or bribery (for the
6 reasons set forth in the Korff MTD), but they simply could not be further from the
7 secret, back-room, “bribes” that Herzer would like to recast them as.
8 In addition, putting aside Herzer’s standing to bring her mail fraud claims
9 (Herzer does not allege that she was affected by the mailings in any way), the mail
10 fraud predicate acts concerning the May 2016 mailings postdate Herzer’s ejection
11 from Mr. Redstone’s home by seven (7) months, and are the same mailings that
12 formed the basis of the Dauman/Abrams Litigation. See RJN, Ex. 5 at 18-20. The
13 Salerno Litigation also concerned these mailings. See RJN, Ex. 6 at 30-35.
14 Moreover, as Herzer admits in the FAC, it was the Dauman/Abrams Litigation
15 that coined the term “corporate takeover” that Herzer uses here. See FAC ¶ 11.
16 Herzer’s allegations about the facts and circumstances underlying those lawsuits
17 (or the underlying irrevocable trust document) have nothing to do with the issues
18 in this lawsuit – i.e., whether Defendants violated the Racketeer Influenced and
19 Corrupt Organizations (RICO) Act, the anti-wiretapping provisions of the
20 Electronic Communications Privacy Act, or engaged in a conspiracy to defame,
21 thus causing harm to Herzer. Nor do the Dauman/Abrams or Salerno Litigations
22 relate in any way to the revocable trust under which Herzer for a short time was a
23 beneficiary (from 2011 until October 2015).
24 Nevertheless, by adding those allegations, Herzer seeks to re-litigate
25 already-concluded cases without the real parties in interest. Moreover, all of
26 Herzer’s allegations with respect to CBS and Viacom, as well as allegations
27 concerning facts before the start of the alleged “scheme” in September 2014 (and
28 certainly before 2013, when Herzer moved into Mr. Redstone’s home), and after
9
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 17 of 33 Page ID #:496

1 her removal from Mr. Redstone’s household and his trust, could not possibly form
2 the basis of Herzer’s injury in this action. As Mr. Redstone’s former housemate,
3 Herzer has no legally cognizable interests in (and thus could not suffer legally
4 cognizable harm relating to) Sumner Redstone’s property other than that which
5 Mr. Redstone purportedly granted her. As alleged by Herzer, the “illegal”
6 “scheme” (FAC ¶ 5), started in September 2014 and ended in October 2015 – no
7 other time period is relevant. As a result, for the reasons more fully explained
8 below, the allegations set forth in paragraphs 3-4, 8-9, 15-21, 23-25, 43-47, 49-51,
9 53-54, 65, 68, 149, 152, 154-73, 179, 189, and 193 of the FAC,3 in whole or in
10 part, are immaterial, impertinent, would prejudice Mr. Korff and hijack this entire
11 case, and, therefore, should be stricken.
12 II. THE COURT SHOULD STRIKE IMMATERIAL, IMPERTINENT
13 AND PREJUDICIAL MATTERS FROM THE FAC
14 Rule 12(f) of the Federal Rules of Civil Procedure authorizes the Court to
15 strike “any redundant, immaterial, impertinent, or scandalous matter” from a
16 pleading such as the FAC.4 See Fed. R. Civ. P. 12(f); see also Whittlestone, Inc. v.
17 Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (“a district court ‘may strike
18 from a pleading an insufficient defense or any redundant, immaterial, impertinent,
19 or scandalous matter’”). “Immaterial matter is that which has no essential or
20 important relationship to the claim for relief being pled.” Fantasy, Inc. v. Fogerty,
21 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517, 114
22 S.Ct. 1023, 127 L.Ed. 2d 455 (1994); McArdle v. AT&T Mobility LLC, 657 F.
23
3
24 Mr. Korff challenges the relevance of all allegations in the FAC pertaining to the
topics set forth in this Motion, including in paragraphs that are not presently
25 subject to this Motion to Strike, and reserves the right to challenge the relevance or
admissibility of such evidence should this case proceed.
26 4
The Court may strike immaterial or impertinent matter on its own, or on motion
by a party before responding to the pleading. Fed. R. Civ. P. 12(f)(1)-(2). A party
27 moving to dismiss a complaint under Rule 12 may raise any other defense or
objection under Rule 12. See Fed. R. Civ. P. 12(g)(1) (“A motion under this rule
28 may be joined with any other motion allowed by this rule”).
10
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 18 of 33 Page ID #:497

1 Supp. 2d 1140, 1149 (N.D. Cal. 2009) (citing Fogerty, 984 F.2d at 1527 ), rev’d
2 and remanded on other grounds, 474 F. App’x 515, 516 (9th Cir. 2012); Friedman
3 v. 24 Hour Fitness USA, Inc., 580 F. Supp. 2d 985, 990 (C.D. Cal. 2008) (same).
4 “A matter is impertinent if it consists of statements that do not pertain to and are
5 not necessary to the issues in question.” Sliger v. Prospect Mortg., LLC, No. CIV.
6 S-11-465, 2011 WL 2118913, *3 (E.D. Cal. May 27, 2011) (citing Fogerty).
7 Redundant matter is defined as allegations that “constitute a needless repetition of
8 other averments or are foreign to the issue.” Thornton v. Solutionone Cleaning
9 Concepts, Inc., No. 06-1455, 2007 WL 210586, at *1 (E.D. Cal. Jan. 26, 2007)
10 (citing Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005)). The Court’s
11 decision to strike immaterial or impertinent matter pursuant to Rule 12(f) is
12 reviewed for abuse of discretion. Whittlestone, 618 F.3d at 974.
13 An important function of motions to strike is “streamlining the ultimate
14 resolution of the action and focusing the jury’s attention on the real issues in the
15 case.” Fogerty, 984 F.2d at 1528 (emphasis added); see also California ex rel.
16 State Lands Comm’n v. United States, 512 F. Supp. 36, 38 (N.D. Cal. 1981)
17 (motions to strike are “well taken” where they may have the effect of making the
18 trial of the action “less complicated” or “otherwise streamlining the ultimate
19 resolution of the action”). “The function of a Rule 12(f) motion to strike is to avoid
20 the expenditure of time and money that must arise from litigating spurious issues
21 by dispensing with those issues prior to trial.” Whittlestone, 618 F.3d at 973
22 (quoting Fogerty, 984 F.2d at 1527).
23 Prejudice to a party is a further and important consideration in motions to
24 strike. See Friedman, 580 F. Supp. 2d at 990 (Rule 12(f) motions are granted
25 where “allegations have no possible relation to the controversy and may cause
26 prejudice to one of the parties.”). Allegations that cause delay, confusion of issues,
27 and unnecessarily complicate proceedings are examples of prejudice that may
28 properly be stricken. See Fogerty, 984 F.2d at 1528. “The possibility that issues
11
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 19 of 33 Page ID #:498

1 will be unnecessarily complicated or that superfluous pleadings will cause the trier
2 of fact to draw ‘unwarranted’ inferences at trial is the type of prejudice that is
3 sufficient to support the granting of a motion to strike.” California Dep’t of Toxic
4 Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal.
5 2002) (citing Fogerty in granting motions to strike certain affirmative defenses in
6 CERCLA action); see also Ghahremani v. Borders Group, Inc., No. 10-CV-1248,
7 2010 WL 4008506 , at *3 (S.D. Cal. Oct. 6, 2010) (striking paragraph in complaint
8 as unduly prejudicial to defendants; paragraph “would only confuse and
9 unnecessarily complicate the issues between these particular parties”); Benham v.
10 Am. Servicing Co., No. C 09-01099, 2009 WL 4456386, at *8 (N.D. Cal. Nov. 30,
11 2009) (striking various allegations in plaintiff’s first amended complaint); Bradley
12 Trust v. Zenith Capital LLC, No. C 04-02239, 2006 WL 193642, at *2-*3 (N.D.
13 Cal. Jan. 24, 2006) (striking allegations in second amended complaint referring to a
14 fiduciary duty owed to plaintiff).
15 Here, Herzer is unnecessarily complicating, and sensationalizing, the issues
16 in this case by including irrelevant and immaterial allegations in the FAC. The real
17 issues in this case, as evidenced by the damages that Herzer seeks to recover, are
18 the same as in Herzer’s First, Second, and Third Actions, and involve Herzer’s
19 removal from Sumner Redstone’s home and personal trust. Herzer does not have
20 anything to do with CBS or Viacom (despite her desperate efforts to suggest
21 otherwise) and was not a party in interest, and did not have a right to participate in,
22 the Dauman/Abrams or Salerno Litigations. Herzer’s allegations against
23 Defendants here, and in the state court proceedings initiated by Herzer, are wholly
24 disconnected from CBS, Viacom, NAI, and the NA Trust. Moreover, allegations
25 concerning the time periods before September 2014 and after October 2015 cannot
26 possibly be relevant to Herzer or her alleged damages, and thus no other time
27 period is relevant or material to Herzer’s claims. The Court should strike these
28 allegations in the FAC to promote efficiency and judicial economy by narrowing
12
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 20 of 33 Page ID #:499

1 discovery and streamlining the issues for trial. Striking the allegations also will
2 avoid the prospect of severe prejudice to Mr. Korff at trial.
3 III. SUMMARY OF RELEVANT FACTS AND ALLEGATIONS TO BE
4 STRICKEN
5 On October 16, 2017, Herzer filed the first Complaint in this case alleging
6 against mother (Shari) and son (Tyler) a violation of RICO, a violation of the
7 Electronic Communications Privacy Act, violations of the Computer Fraud and
8 Abuse Act, and aiding and abetting slander. The first Complaint alleged that Mr.
9 Korff “aided and abetted and conspired with Sumner Redstone’s staff members”
10 to: (i) “eavesdrop[] on dozens of Herzer’s and Sumner’s personal and confidential
11 communications;” (ii) “[steal] Herzer’s attorney-client privileged documents …;”
12 (iii) “manipulate security cameras … so that they could be used to spy on Sumner
13 and Herzer;” (iv) “surveilled and spied on Herzer’s … private movements;” (v)
14 “intercepted and recorded Herzer’s private conversations;” and so on. Compl. ¶ 3.
15 Those allegations have now inexplicably taken a backseat in the FAC, and
16 generally have been replaced by allegations from the Dauman/Abrams and Salerno
17 Litigations. Nevertheless, Herzer’s claims continue to be predicated on having
18 “been illegally evicted from Sumner’s life, cut out of his estate plan entirely,
19 removed from her position as Sumner’s designated health care agent and power of
20 attorney, and prevented from ever seeing Sumner again,” having “the contents of
21 Herzer’s wire, oral and electronic communications” intercepted and disclosed, and
22 having false statements made about her. FAC ¶¶ 23, 197-200, and 206. Absent
23 from the FAC’s allegations about the effect of Defendants’ conduct on Herzer or
24 Herzer’s damages is any conduct that could conceivably be considered to relate to
25 the control and operations of Viacom and/or CBS, or to conduct that occurred
26 before the scheme began (September 2014) or after Mr. Redstone kicked Herzer
27 out of his home in October 2015. Such allegations are therefore immaterial and
28 should be stricken.
13
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 21 of 33 Page ID #:500

1 In order to state a civil RICO claim against Mr. Korff, Herzer must allege
2 that he “participate[d] in (1) the conduct of (2) an enterprise that affects interstate
3 commerce (3) through a pattern (4) of racketeering activity,” and that such conduct
4 was “(5) the proximate cause of harm to [Herzer].” See Eclectic Properties East,
5 LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014). In order to
6 recover in a RICO case, a plaintiff must show: “(1) that his alleged harm qualifies
7 as injury to his business or property; and (2) that his harm was ‘by reason of’ the
8 RICO violation, which requires the plaintiff to establish proximate causation.”
9 Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008) (quoting
10 18 U.S.C. § 1964(c)), (citing Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258,
11 268 (1992); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). The other
12 claims that Herzer alleges against Defendants – violations of the Electronic
13 Communications Privacy Act, and conspiracy to defame – are not specifically
14 alleged to have any relation to (and are, in fact, completely disconnected from) any
15 allegations concerning Viacom, CBS, or NAI, or conduct that occurred before
16 September 2014 or after October 2015.
17 Although Herzer engaged in extensive discovery for years and already
18 amended this complaint once, aside from the fact that Mr. Korff is his mother’s
19 son, the FAC is wholly silent on any “common” agreement between Mr. Korff and
20 his mother (or any of the other alleged “enterprise” members – his mother’s third-
21 party advisors, or his grandfather’s nursing staff) related to the “takeover” of CBS
22 or Viacom. Moreover, the FAC does not allege any plausible facts suggesting that
23 Mr. Korff (or Mr. Redstone’s healthcare staff) had anything to gain related to the
24 operation of Viacom or CBS. At best, the FAC alleges that Mr. Korff exchanged
25 text messages and other communications with the healthcare staff that worked in
26 Mr. Redstone’s home for the purpose of monitoring his grandfather’s well-being
27
28
14
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 22 of 33 Page ID #:501

1 and protecting him from potential abuse – concerns that, as it turned out, were
2 well-founded.5
3 As Mr. Korff wrote to his grandfather’s attorney at the time, “I do know
4 Sydney [Holland] and Manuela [Herzer] sometimes pick and choose which
5 sentences to read to him, so upon your next call or visit with my grandfather, I
6 would appreciate if you would make sure he knows how much we all love him.”
7 FAC ¶ 119. Mr. Korff also wrote, in a separate communication, that “[s]taff have
8 risked their jobs to discuss these matters with me – and I share … all the updates I
9 receive from all household staff and what I witness first-hand.” FAC ¶ 105
10 (emphasis added). It is implausible that Mr. Korff’s communications with those
11 staff-members, coupled with his first-hand observations, were connected to any
12 purported “takeover” of NAI, Viacom, and CBS by Ms. Shari Redstone. And, in
13 any event, the Honorable David Cowan of the California Superior Court, who has
14 already examined these exact factual assertions by Herzer, “d[id] not find that [Ms.
15 Shari Redstone] was acting for improper purposes” in relation to those
16 communications.6 RJN, Ex. 4 at 16.
17 Therefore, this Motion seeks the removal of allegations that are not material
18 to the conduct that Herzer complains of and that could not be connected to any
19 5
In 2016, Mr. Redstone sued Herzer and his previous live-in girlfriend, Ms.
Sydney Holland, for elder abuse. RJN, Ex. 9. That complaint alleges, among other
20 things, that Herzer and Holland had taken advantage of Mr. Redstone – financially
and by cutting Mr. Redstone off from his family. Specifically, Holland and Herzer
21 secured for themselves more than $150 million in gifts from Mr. Redstone,
including a $45 million gift to Herzer in May 2014 that created tax obligations of
22 over $45 million alone (costing over $90 million in total), for which Mr. Redstone
needed to borrow money to satisfy. Id. at ¶¶ 39-40. The complaint also alleges that
23 both Holland and Herzer would administer Ativan to sedate Mr. Redstone when
they wanted him to sign documents. Id. at ¶ 34. Moreover, the complaint alleges
24 that Herzer and Holland told Mr. Redstone that his daughter (Ms. Shari Redstone)
and her children “were liars, hated [Mr. Redstone], never called, and never wanted
25 to visit.” Id. at ¶ 46. “Calls from [Mr. Redstone’s] family were regularly blocked.
Family members were barred from passing through the gates of Beverly Park …
26 [and] all information had to go through Holland and Herzer.” Id. at ¶ 49.
6
27 Mr. Korff was not involved – as a party or otherwise – in the dispute concerning
Mr. Redstone’s health care agent, and therefore was not mentioned in Judge
28 Cowan’s Order.
15
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 23 of 33 Page ID #:502

1 possible injury Herzer could claim in this litigation – namely, those set forth, in
2 whole or in part, in paragraphs 3-4, 8-9, 15-21, 23-25, 43-47, 49-51, 53-54, 65, 68,
3 149, 152, 154-73, 179, 189, and 193 of the FAC. These allegations, which overlap
4 in some respects, can be categorized into three general categories:
5 A. General allegations concerning the control and/or management of
6 Viacom and CBS, as to which Herzer has no right or ability to speak to, implicate
7 legal issues and documents that are far beyond any issue that is material to the
8 claims plausibly at-issue in this case, and which appear to be largely poached from
9 the resolved Dauman/Abrams and Salerno Litigations – which concerned matters
10 to which Herzer does not now have and has never had any rights or interests;7
11 B. Allegations that purport to set forth the knowledge or wishes of Mr.
12 Sumner Redstone (and in particular, allegations that purport to set forth such
13 knowledge or wishes for the time-period after Mr. Redstone ejected Herzer from
14 his home and removed Herzer from his estate plan in October 2015), for whom
15 Herzer has no ability or authority to speak and who has an active case against
16 Herzer for elder abuse, which is related to many of the same facts and
17 circumstances at issue in this case;8 and
18 C. Allegations concerning facts and activities that purportedly took place
19 before the alleged “scheme” began in September 2014 or after Herzer was
20 removed from Mr. Redstone’s home and estate plan in October 2015 and do not
21 relate to Herzer, which includes allegations concerning post-2015 amendments to
22 Mr. Redstone’s healthcare directive or estate plan (which are already the subject of
23 ongoing litigations initiated by Herzer in California state court), allegations about
24 the removal of Messrs. Dauman and Abrams as trustees of the NA Trust and
25 directors of NAI and Mr. Salerno’s removal from the Board of Directors of
26
7
FAC ¶¶ 3-4, 8-9, 15, 17-21, 23-25, 43-44, 46, 50-51, 53-54, 152, 155-67, 172-73,
27 189, 193.
28 8 FAC ¶¶ 15-21, 23-25, 65, 68, 149, 152, 154-68, 170, 179.
16
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 24 of 33 Page ID #:503

1 Viacom, allegations that various attorneys and others are fraudulently or falsely
2 acting on Mr. Redstone’s behalf, and allegations that Ms. Shari Redstone has
3 allegedly restricted access to Mr. Redstone and “forged” Mr. Redstone’s signature
4 on various post-October 2015 communications or other documents.9
5 IV. THE IMMATERIAL, IMPERTINENT, IRRELEVANT AND
6 PREJUDICIAL ALLEGATIONS IN THE FAC ARE APPROPRIATE
7 FOR STRIKING.
8 As set forth in Mr. Korff’s concurrently filed Motion to Dismiss, Herzer’s
9 claims fail for multiple and layered reasons that no amendment can cure. However,
10 even assuming arguendo that Herzer could overcome those legal defects, the FAC
11 is full of allegations that are immaterial and impertinent to any plausible claim for
12 relief that Herzer can bring, and are prejudicial to Mr. Korff. These allegations –
13 which, as set forth above, constitute three separate, but overlapping, categories –
14 should be stricken.10
15 Viewed in light of the causes of action asserted by Herzer, these allegations
16 are neither material nor pertinent to the required elements of Herzer’s claims
17 against Defendants. In sum, as more fully set forth below, they have “no essential
18 or important relationship” to Herzer’s claims, as required by Rule 12(f); they
19
20
9
FAC ¶¶ 3-4, 8-9, 15-21, 23-25, 43-47, 49-51, 53-54, 65, 68, 149, 152, 154-73,
21 179, 189, 193.
22 10 These allegations and the reasons for their exclusion are described more
specifically in the following sections. Also, for the ease of the Court’s reference,
23 accompanying the instant motion is a chart, attached as Exhibit “1” to the Azlin
Dec., ¶ 2, that quotes the allegations in the FAC subject to the instant motion, and
24 provides by category “A,” “B,” and “C” the justification for striking the
corresponding allegation. These three categories, as explained in further detail
25 herein, correspond to the section headings of this Motion. They are: (A) allegations
concerning the control and/or management of Viacom and CBS; (B) allegations
26 purporting to set forth the knowledge or wishes of Mr. Sumner Redstone; and (C)
allegations concerning facts and activities that took place before the alleged
27 scheme began (in September 2014) and after Herzer was removed from Mr.
Redstone’s home in October 2015 that do not relate to Herzer. For brevity, each
28 category is paraphrased within the chart appended hereto.
17
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 25 of 33 Page ID #:504

1 simply do not pertain, and are not necessary, to the issues in question. Fogerty, 984
2 F.2d at 1527; McArdle v. AT&T Mobility LLC, 657 F. Supp. 2d at 1149.
3 A. Allegations Concerning The Control and/or Management of
4 Viacom and CBS.
5 The FAC contains allegations poached from the Dauman/Abrams Litigation
6 relating to their role as trustees of the NA Trust, and the Salerno Litigation relating
7 to his role as a director of Viacom. These allegations are wholly irrelevant to
8 whether Defendants violated RICO, the Electronic Communications Privacy Act,
9 or conspired to defame Herzer. For example, the terms of the settlement
10 agreements resolving the Dauman/Abrams and Salerno Litigations have nothing
11 whatsoever to do with whether Herzer suffered damages by “having bequests to
12 her and her children being deleted from Sumner’s trust.” Compare FAC ¶ 193 with
13 id. ¶ 195. Likewise, the business negotiations between Mr. Redstone and his
14 daughter in 2007 (when Mr. Korff was in his early twenties) is wholly unrelated to
15 whether Mr. Korff or the other alleged “enterprise” members knowingly entered an
16 association-in-fact enterprise with Ms. Redstone in 2014. Compare id. ¶ 50 with id.
17 ¶ 184.
18 Not only are these settled allegations impertinent and immaterial to Herzer’s
19 claims, their continuing inclusion in the FAC would seriously prejudice
20 Defendants – especially Mr. Korff – by unnecessarily complicating discovery and
21 creating a side show about sensationalized subject areas bearing no relationship to
22 conduct that could possibly serve as the basis for Herzer’s claims in this action. A
23 comparison of the FAC’s allegations proves the point. On one hand, Herzer
24 complains of conduct that culminated in Herzer having “been illegally evicted
25 from Sumner’s life, cut out of his estate plan entirely, removed from her position
26 as Sumner’s designated health care agent and power of attorney, and prevented
27 from ever seeing Sumner again.” Id. ¶ 23. On the other hand, Herzer purports to
28 allege a scheme implicating a corporate takeover, via a criminal enterprise, of two
18
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 26 of 33 Page ID #:505

1 international Fortune 500 media companies. See id. ¶¶ 4-5, 39-40. Whether or not
2 Herzer was illegally “evicted from Sumner’s life [and] cut out of his estate plan
3 entirely” is not in any way plausibly related to the affairs of the NA Trust, NAI,
4 CBS, or Viacom (and especially to the extent those affairs have already been
5 litigated and resolved by the parties-in-interest). Keeping such allegations in the
6 FAC will burden Defendants (especially Mr. Korff) and third parties with
7 significant expense and inconvenience in document and deposition discovery. It
8 will waste the time of the Court and all parties, lead to unnecessary discovery
9 disputes and motion practice, and cost the parties an enormous amount of money.
10 Unless removed, these allegations risk creating a greater range of issues for trial to
11 which Mr. Korff would have to respond than is necessary for disposition of
12 Herzer’s claims relating to her brief time living in Mr. Redstone’s home and
13 inclusion in Mr. Redstone’s estate plan. Worse yet, there will be a serious risk of
14 jury confusion and prejudice if Herzer is permitted to go forward at trial with such
15 allegations, which make it seem like Herzer has the power or ability to speak for
16 those companies or their shareholders – and she does not. Keeping these
17 allegations in the FAC would also expand the breadth and scope of discovery from
18 facts and circumstances that occurred in Mr. Redstone’s household from over a
19 two-year period, 2013 to 2015, to facts and circumstances concerning the overall
20 control and management of two Fortune 500 international media companies –
21 fanciful facts that, as of right now, purport to pertain to a broad, vaguely defined
22 time-frame, and are alleged to still be continuing. It is self-evident that discovery
23 concerning the latter would add unnecessary time and expense to a case where the
24 only possible hope for recovery is based on the former.
25 B. Allegations Purporting To Set Forth The Knowledge Or Wishes
26 Of Mr. Sumner Redstone.
27 The FAC’s wide-ranging allegations concerning the knowledge or wishes of
28 Mr. Redstone, and especially after Mr. Redstone ejected Herzer from his home and
19
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 27 of 33 Page ID #:506

1 during which Herzer had absolutely no contact with Mr. Redstone, are also wholly
2 irrelevant as to whether Defendants caused Herzer to have “been illegally evicted
3 from Sumner’s life, cut out of his estate plan entirely, removed from her position
4 as Sumner’s designated health care agent and power of attorney, and [to be]
5 prevented from ever seeing Sumner again.” FAC ¶ 23.
6 1. Summary Of Allegations In Which Herzer Purports To Set
7 Forth The Knowledge Or Wishes Of Sumner Redstone.
8 Herzer makes certain allegations concerning Mr. Redstone and his
9 knowledge and wishes, even though Herzer has no ability or authority to speak for
10 Mr. Redstone. Even worse, Mr. Redstone has an active case against Herzer for
11 elder abuse related to the very same facts and circumstances at-issue in this case.
12 Nevertheless, Herzer alleges that every action taken by Mr. Redstone without her
13 involvement that she dislikes is in fact part of an illegal scheme to “usurp[] control
14 of Sumner’s life.” Id. ¶ 23. Specifically, the FAC alleges:
15  Ms. Shari Redstone improperly removed Philippe Dauman and George
16 Abrams from their role with the NA Trust, id.
17  “Shari Redstone has kept Sumner a hostage in his own home and prevented
18 him from meeting with anyone …,” id. at ¶ 15;
19  “Purportedly in Sumner’s name – which was impossible given his physical
20 and mental condition – through emails which he did not author and
21 documents he could not have understood, signed or approved,” Ms. Shari
22 Redstone sent a communication on December 11, 2015 that it was
23 “Sumner’s intention that [Shari] succeed [him] as the on-executive Chair of
24 the Boards of Directors of Viacom and CBS after my death,” id. at ¶¶ 17-18,
25 152-53;
26  Ms. Shari Redstone sent a letter on January 12, 2016 “fraudulent[ly]
27 purported to have been prepared and approved by Sumner,” id. at ¶ 154;
28
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 28 of 33 Page ID #:507

1  Ms. Shari Redstone sent a fraudulent communication in May 2016


2 purporting to express Sumner’s desire to replace Dauman and Abrams as the
3 trustees of the NA Trust and lied to attorneys in connection with the drafting
4 of that letter, which “falsely represented Sumner’s own words,” id. at ¶¶
5 156-164;
6  After May 20, 2016, following the sending and distribution of this letter,
7 Abrams, Dauman, and the Viacom Board of Directors issued competing
8 statements in public, see id. at ¶¶ 159-160;
9  On May 24, 2016, Ms. Shari Redstone directed her spokesperson to issue a
10 statement about replacements for Dauman and Abrams, and did not allow
11 the Viacom Board of Directors to visit Mr. Redstone, id. at ¶¶ 162-164; and
12  Ms. Shari Redstone hired spokespersons and lawyers “to purportedly speak
13 on Sumner’s behalf,” id. at ¶ 188.
14 2. These Allegations Are Prejudicial To Mr. Korff In
15 Complicating Discovery.
16 First, the substantive factual allegations relating to the knowledge or wishes
17 of Mr. Redstone do not reference Mr. Korff, anywhere. Second, a California court
18 has already resolved many of these issues by addressing allegations concerning
19 Mr. Redstone’s wishes to have Shari Redstone serve as his agent – a decision that
20 was made at the same time as the changes to his revocable trust that appear to form
21 the basis of this case (and most of the related state court actions). In the First
22 Action, Judge Cowan concluded that Mr. Redstone was “asked … what he wanted
23 the judge to do and the Court heard what he wanted – for his daughter Shari
24 Redstone to serve as his agent.” RJN, Ex. 4 at 6. Judge Cowan also found that
25 “[Mr.] Redstone made crystal clear at his deposition that the reason he did not want
26 Herzer as his agent was that he had kicked her out of his home. He did not trust her
27 because he believed she had lied to him and stolen money from him. He also
28 recalled what she had lied to him about…” Id. Third, the FAC’s allegations about
21
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 29 of 33 Page ID #:508

1 the knowledge or wishes of Mr. Redstone with respect to the removal of trustees
2 from the NA Trust and directors from the Viacom Board of Directors – matters
3 that have already been litigated and resolved by those interested parties, and which
4 concern a trust and/or corporate entity in which Herzer does not have, and has
5 never had, any rights or interests – are simply allegations intended to sensationalize
6 this case and are wholly unrelated to her claims in this case against these
7 Defendants. See FAC ¶ 23. The allegations would serve as a “back door” to re-
8 litigating issues and cases that are already resolved (and to which Herzer was not a
9 party in interest), which would include wide-ranging, time-consuming, and
10 expensive discovery that is not relevant to Herzer’s claims.
11 Mr. Redstone’s knowledge and wishes after October 20, 2015 are unrelated
12 to whether the Defendants violated the law in “illegally evict[ing] [Herzer] from
13 Sumner’s life, cut[ting] [Herzer] out of [Sumner’s] estate plan entirely, remov[ing]
14 [Herzer] from her position as Sumner’s designated health care agent and power of
15 attorney, and prevent[ing] [Herzer] from ever seeing Sumner again.” See FAC ¶
16 23. Herzer’s inability to speak to facts and circumstances after Mr. Redstone
17 ejected her from his home is exacerbated by Herzer’s (failed) efforts to recast Mr.
18 Redstone’s 2016 deposition testimony in the First Action as “orchestrated,”
19 “completely incoherent,” and “a fraud” – when a court has already come to the
20 opposite conclusion. Compare FAC ¶ 16 with RJN, Ex. 4 at 5-6 (Judge Cowan
21 noted “[t]he Court was able to see the strong conviction [Mr. Redstone] had about
22 what he said. [Mr. Redstone] seemed very alert. [Mr. Redstone] was composed and
23 did not appear angry.”).
24 3. These Allegations Would Confuse The Jury And Lead To
25 Unwarranted Inferences at Trial.
26 If Herzer is allowed to go forward to trial with her RICO, Electronic
27 Communications Privacy Act, and conspiracy to defame claims, the allegations
28 concerning Mr. Redstone’s post-October 2015 relationship with his attorneys,
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 30 of 33 Page ID #:509

1 communications with Ms. Shari Redstone (or others), or wishes regarding the
2 removal of Mr. Dauman and Mr. Abrams as trustees of the NA Trust, would
3 unnecessarily complicate any trial in this case and lead to the serious risk of jury
4 confusion and unwarranted and unfair inferences against Mr. Korff. Groundless
5 allegations that Mr. Korff and his mother are somehow the puppeteers of an
6 elaborate scheme to control NAI, CBS, and Viacom are utterly immaterial to the
7 limited factual issues of whether the alleged conduct occurred, and if so, whether
8 such conduct amounts to a violation of Herzer’s property and/or confidentiality
9 rights as protected under the law. Extensive trial testimony and documentary
10 evidence regarding Herzer’s allegations concerning communications that occurred
11 between various stakeholders in NAI, CBS, and Viacom (not Herzer) would create
12 a confusing side-show at trial. Litigation of these extraneous allegations at trial
13 would distract the jury from the core issues in the case and run the risk of unfairly
14 prejudicing Mr. Korff.
15 C. Allegations Concerning Facts And Activities That Took Place
16 Before The Alleged “Scheme” Began And After Herzer Was
17 Removed From Mr. Redstone’s Home In October 2015 That Do
18 Not Relate To Herzer.
19 The third general category consists of allegations concerning facts and
20 conduct that either occurred before the alleged scheme began in September 2014,
21 or after Mr. Redstone removed Herzer from his home and personal trust in October
22 2015. This omnibus category encompasses all of the allegations to be stricken in
23 the categories analyzed above, but for additional reasons. First, with respect to the
24 alleged “scheme,” the FAC clearly alleges that such scheme “start[ed] on or before
25 September 2014.” FAC ¶ 5. The fact that no predicate act is alleged to have
26 occurred before October 28, 2014, provides further support that allegations prior to
27 that time period are immaterial. See FAC ¶ 187. Second, allegations concerning
28 facts and conduct after October 2015, when Herzer was ejected from Mr.
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FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 31 of 33 Page ID #:510

1 Redstone’s home and removed from his estate plan, cannot form the basis of
2 Herzer’s recovery as alleged in the FAC. As the California Superior Court
3 concluded in the First Action, Mr. “Redstone made crystal clear at his deposition
4 that the reason he did not want Herzer as his agent was that he had kicked her out
5 of his home. He did not trust her because he believed she had lied to him and
6 stolen money from him.” RJN, Ex. 4 at 6.
7 The FAC’s allegations concerning pre-2014 and post-October 2015 conduct
8 should therefore be stricken on this basis for two reasons. First, any allegation
9 before September 2014 and after October 2015 is wholly irrelevant to any claim in
10 this action against either Defendant, especially Mr. Korff. Indeed, this point is
11 proved by the fact that there are no factual allegations in the FAC about any
12 alleged actions by Mr. Korff after October 2015, and only one allegation
13 concerning Mr. Korff before September 2014 (his receipt of a June 2014 e-mail
14 from his mother, which was also sent to various other third-parties). See FAC ¶ 71.
15 Second, any conduct that occurred after October 2015 is temporally
16 disconnected such that it could not possibly have caused Herzer that harm. Put
17 simply, Herzer alleges that conduct occurred during the time period that she lived
18 in Mr. Redstone’s home and, in relation to the changing of the trust, in the four
19 days immediately thereafter, and that that conduct caused her harm. Whatever
20 happened after Herzer was kicked out of Mr. Redstone’s house has no bearing on
21 whether she is able to recover “compensatory damages” of $100 million under the
22 law for allegedly being “illegally evicted from Sumner’s life, cut out of his estate
23 plan entirely, removed from her position as Sumner’s designated health care agent
24 and power of attorney, and prevented from ever seeing Sumner again.” See FAC ¶¶
25 23, 30. The FAC’s allegations regarding “forged” signatures further proves the
26 point. See FAC ¶¶ 168-172. There is simply no connection (let alone a material
27 connection) on the one hand between purportedly “forged” letters sent on
28 Sumner’s behalf (not Herzer’s) to others (not to Herzer) about corporate entities or
24
DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 32 of 33 Page ID #:511

1 trusts in which Herzer has no rights or interests, and whether, on the other hand:
2 (i) Herzer is able to recover “compensatory damages” of $100 million under RICO
3 for allegedly being “illegally evicted from Sumner’s life, cut out of his estate plan
4 entirely, removed from her position as Sumner’s designated health care agent and
5 power of attorney, and prevented from ever seeing Sumner again;” (ii) Herzer’s
6 computer or electronic communications were improperly intercepted under the
7 Wiretap Act (which Herzer again alleges caused her damage “by being disinherited
8 and removed from Sumner’s estate plan”); and (iii) Mr. Korff and his mother
9 conspired to defame Herzer by making false statements, all of which preceded
10 Herzer’s ejection from Sumner’s home and, therefore, the purportedly “forged”
11 signatures. See FAC ¶¶ 23, 30, 195, 202, and 206. Such allegations are plainly
12 immaterial and impertinent.
13 V. CONCLUSION
14 The Court should strike all the allegations contained in the FAC that are
15 immaterial and impertinent to the claims at issue. Accordingly, for the foregoing
16 reasons, the Court should grant Mr. Korff’s motion to strike in its entirety.
17
18 Respectfully submitted,
19 Date: April 27, 2018 HOLLAND & KNIGHT LLP
20 By: /s/ Daniel I. Small
Daniel I. Small
21 Kristina S. Azlin
22 Attorneys for Defendant
Tyler Korff
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DEFENDANT TYLER KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS
FROM THE FIRST AMENDED COMPLAINT
Case 2:17-cv-07545-PSG-KS Document 57 Filed 04/27/18 Page 33 of 33 Page ID #:512

PROOF OF SERVICE
1
2
I am employed in the County of Los Angeles, State of California. I am over
3 the age of 18 and not a party to the within action. My business address is 400 S.
Hope St., 8th Floor, Los Angeles, California 90071.
4
On April 27, 2018, I served the document described as DEFENDANT TYLER
5 KORFF’S MOTION TO STRIKE SELECTED ALLEGATIONS FROM FIRST
AMENDED COMPLAINT; MEMORANDUM OF POINTS AND
6 AUTHORITIES IN SUPPORT THEREOF; [PROPOSED] ORDER on the
interested parties in this action as follows:
7
[X] (BY Electronic Transfer to the CM/ECF System) In accordance with
8 Federal Rules of Civil Procedure 5(d) (3), Local Rule 5-4, and General Order 07-
9 08, I uploaded via electronic transfer a true and correct copy scanned into an
electronic file in Adobe “pdf” format of the above-listed documents to the United
10 States District Court Central District of California’ Case Management and
11 Electronic Case Filing (CM/ECF) system on this date. It is my understanding that
by transmitting these documents to the CM/ECF system, they will be served on all
12 parties of record according to the preferences chosen by those parties within the
13 CM/ECF system. The transmission was reported as complete and without error.
14 I declare under penalty of perjury under the laws of the United States of America
15 that the above is true and correct.
16 Executed on April 27, 2018, Boston, Massachusetts.
17
18 /s/ Daniel I. Small
Daniel I. Small
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PROOF OF SERVICE