The Weekend in Vegas MTD

Case 2:17-cv-09132-MWF-JC Document 45 Filed 05/21/18 Page 1 of 24 Page ID #:410
1 FREEDMAN + TAITELMAN, LLP

Bryan J. Freedman (SBN 151990)
2 bfreedman@ftllp.com
Sean M. Hardy (SBN 266446)
3 smhardy@ftllp.com
1901 Avenue of the Stars, Suite 500
4 Los Angeles, CA 90067
Telephone: (310) 201-0005
5
Attorneys for Defendants,
6 GERALD A. LONGARZO, JR. and JEFF CIVILLICO
7
8 UNITED STATES DISTRICT COURT
9 FOR THE CENTRAL DISTRICT OF CALIFORNIA
10 Case No. 2:17-cv-09132-MWF-JC
ISE ENTERTAINMENT )
11 CORPORATION, a Nevada )
[Hon. Michael W. Fitzgerald, Courtroom
12 Corporation ) 5A]
)
13 Plaintiff, ) DEFENDANTS’ NOTICE OF
14 v. ) MOTION AND MOTION TO
) DISMISS SECOND AMENDED
15 GERALD A. LONGARZO, JR., an ) COMPLAINT PURSUANT TO FED.
individual; JEFF CIVILLICO, an ) R. CIV. PROC. 12(b)(6) AND 12(b)(1)
16 AND MOTION TO STRIKE NEWLY-
individual; and DOES 1 through 10, ) ADDED CLAIMS PURSUANT TO
17
inclusive, ) FED. R. CIV. PROC. 12(f);
18 ) MEMORANDUM OF POINTS AND
Defendants. ) AUTHORITIES IN SUPPORT
19 THEREOF
)
20 )
Complaint Filed: November 22, 2017
21 )
) Hearing Date: June 18, 2018
22 Hearing Time: 10:00 a.m.
23 TO PLAINTIFF AND TO ITS ATTORNEYS OF RECORD:
24 PLEASE TAKE NOTICE that on June 18, 2018, at 10:00 a.m., or as soon
25 thereafter as the matter may be heard in the above-entitled Court, located at the
26
First Street Courthouse, Courtroom 5A, 350 West 1st Street, Los Angeles,
27
California 90012, Defendants Gerald A. Longarzo, Jr. and Jeff Civillico
28
(collectively, “Defendants”) will and hereby do move, pursuant to Rule 12(b)(6),
1
DEFENDANTS’ MOTION TO DISMISS AND STRIKE SECOND AMENDED COMPLAINT
1 Rule 12(b)(1), and Rule 12(f) of the Federal Rules of Civil Procedure, for an order
2 dismissing, with prejudice, in their favor Plaintiff ISE Entertainment
3 Corporation’s (“Plaintiff”) Second Amended Complaint relative to its second
4 count for breach of implied contract and third count for rescission and restitution,
5 as well as an order striking and dismissing Plaintiff’s newly-added claim for
6 “declaratory relief” in its entirety.
7 This motion is made on the ground that Plaintiff’s claims for relief fail for
8 multiple reasons:
9 First, Plaintiff’s second count for breach of implied contract fails to allege
10 facts sufficient to state a claim upon which relief can be granted.
11 Second, Plaintiff’s third count for “rescission and restitution” fails to allege
12 facts sufficient to state a claim upon which relief can be granted.
13 Third, Plaintiff’s fourth count for declaratory relief fails because it was
14 improperly inserted without leave of this Court. This Court granted Defendants’
15 motion to dismiss Plaintiff’s declaratory relief count in its initial complaint.
16 Plaintiff voluntarily failed to re-plead its declaratory relief count in its first
17 amended complaint. This claim has therefore been waived and may not be
18 resurrected. Further, Plaintiff has failed to allege facts sufficient to state a claim
19 upon which relief can be granted.
20 This Motion is based upon this Notice of Motion; the attached
21 Memorandum of Points and Authorities; the Request for Judicial Notice and
22 accompanying exhibit; all of the pleadings and papers filed herein; and any
23 argument or evidence that may be presented to or considered by the Court prior to
24 its ruling.
25 This Motion is made following the conference of counsel pursuant to L.R.
26 7-3, which took place on May 11, 2018.
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Dated: May 21, 2018 FREEDMAN + TAITELMAN, LLP
2
3 /s/ Bryan J. Freedman
4 Attorneys for Defendants,
JEFF CIVILLICO and
5 GERALD A. LONGARZO, JR.
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1 TABLE OF CONTENTS
2 I. INTRODUCTION ........................................................................................... 1
3 II. FACTUAL AND PROCEDURAL BACKGROUND .................................... 2
4 III. STANDARD OF REVIEW ON A MOTION TO DISMISS   .................... 2
5 IV. THE SAC FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT 4
6 V. THE COMPLAINT FAILS TO STATE A CLAIM FOR RESCISSION ...... 9
7 A. “Rescission” Is Not An Independent Cause Of Action.............................. 9
8 B. Alternatively, The “Rescission” Claim Fails Under California Law ....... 10
9 VI. THE SAC FAILS TO STATE A CLAIM FOR DECLARATORY RELIEF
10 ....................................................................................................................... 12
11 A. The Fourth Claim Was Improperly Added Without Leave Of Court ...... 12
12 B. The Declaratory Relief Claim Fails For The Reasons This Court
13 Previously Held On February 2, 2018 ................................................... 13
14 VII. CONCLUSION ............................................................................................. 15
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i
1
2 TABLE OF AUTHORITIES
3 CASES
4
Babb v. Superior Court,
5
3 Cal.3d 841, 848 (1971)...................................................................................... 14
6
Bell Atlantic Corp. v. Twombly,
7
550 U. S. 544, 555-559 (2007) ........................................................................... 2, 3
8
Brecher v. Citigroup Global Mkts., Inc.,
9
09cv1344-LAB (AJB), 2010 U.S. Dist. LEXIS 31458, at *21 (S.D. Cal. Mar. 29,
10
2010) ..................................................................................................................... 13
11
Buzz Stew, LLC v. City of North Las Vegas,
12
124 Nev. 224, 228 n.6 (2008) ................................................................................ 6
13
Cal. Ins. Guarantee Ass’n v. Superior Court,
14
231 Cal.App.3d 1617, 1623-24 (1991) ................................................................ 14
15
California Trust Co. v. Gustason
16
(1940) 15 Cal.2d 268, 272.............................................................................. 10, 11
17
Clark County v. Bonanza No. 1,
18
96 Nev. 643, 650-51, 615 P.2d 939, 943-44 (1980) .............................................. 6
19
Clegg v. Cult Awareness Network,
20
18 F. 3d 752, 754 (9th Cir. 1994);.......................................................................... 3
21
Connerly v. Schwarzenegger,
22
146 Cal.App.4th 739, 746 (2007)......................................................................... 13
23
Consolidated Concessions Co. v. McConnell,
24
40 Cal.App. 443, 444 (1919) ................................................................................ 11
25
Cotati v. Cashman,
26
29 Cal.4th 69, 79, 80 (2002) ................................................................................ 14
27
28
ii
1 Del Monte Intern. GmbH v. Del Monte Corp.,

2 995 F. Supp. 2d 1107, 1124 (C.D. Cal. 2014) ..................................................... 13
3 Div. of Labor Law Enforcement v. Transpacific Transp. Co.
4 (1977) 69 Cal.App.3d 268, 275.............................................................................. 8
5 Dumas v. Kipp,
6 90 F. 3d 386, 393 (9th Cir. 1996)........................................................................... 4
7 E.D.C. Techs., Inc. v. Seidel,
8 No. 16-CV-03316-SI, 2016 WL 6216805, at *1 (N.D. Cal. Oct. 25, 2016) ......... 3
9 Ewing v. Sargent,
10 87 Nev. 74, 80 (1971) ............................................................................................ 5
11 Frederick v. Fed. Nat'l Mortg. Ass'n,
12 No. 2:11-cv-00522-GMN-CWH, 2012 U.S. Dist. LEXIS 54217, 2012 WL
13 1340801, at *6 (D. Nev. Apr. 18, 2012) ................................................................ 9
14 Great Am. Ins. Co. v. Gen. Builders, Inc.,
15 934 P.2d 257 (Nev. 1997), 113 Nev. 346 .............................................................. 9
16 Hollins v. Recontrust, N.A.,
17 2011 WL 1743291, at *2 (C.D. Cal. May 6, 2011) ............................................. 13
18 Iqbal v. Ashcroft,
19 556 U.S. 662, 667-68 (2009) .................................................................................. 3
20 Jackson v. Carey,
21 353 F. 3d 750, 758 (9th Cir. 2003)......................................................................... 4
22 Kennedy v. Full Tilt Poker,
23 No. CV 09- 07964, 2010 U.S. Dist. LEXIS 112119, 2010 WL 3984749, at *1
24 (C.D. Cal. 2010) ................................................................................................... 12
25 Klekas v. EMI Films, Inc.
26 (1984) 150 Cal.App.3d 1102, 1114........................................................................ 8
27 Knievel v. ESPN,
28 393 F.3d 1068, 1076- 77 (9th Cir. 2005) ............................................................... 4
iii
1 Lacey v. Maricopa Cty.,

2 693 F.3d 896, 927-28 (9th Cir. 2012) .................................................................. 12
3 Lai v. Quality Loan Serv. Corp.,
4 2010 WL 3419179, at *3 (C.D. Cal. Aug. 26, 2010) ........................................... 13
5 Lance Camper Manufacturing Corp. v. Republic Indemnity Co.,
6 44 Cal.App.4th 194, 203 (1996)............................................................................. 7
7 Lloyd v. Williams
8 (1964) 227 Cal.App.2d 646, 649............................................................................ 7
9 Lopez v. Smith,
10 203 F. 3d 1122, 1127 (9th Cir. 2000)..................................................................... 4
11 McKell v. Washington Mutual, Inc.
12 (2006) 142 Cal.App.4th 1457, 1489 .................................................................... 11
13 National Business Development Services, Inc. v. American Credit Education &
14 Consulting, Inc.,
15 299 Fed. App’x 509, 2008 WL 4772074 *2 (6th Cir. 2008) ................................. 3
16 Reddy v. Litton Industries, Inc.,
17 912 F.2d 291 (9th Cir.1990) ................................................................................... 8
18 Rodriguez v. Bank of Am. Corp.,
19 No. 2:11-cv-01877-ECR-CWH, 2012 U.S. Dist. LEXIS 111860, at *13-14 (D.
20 Nev. Aug. 8, 2012) ................................................................................................. 9
21 Rogers v. Am. President Lines, Ltd.,
22 291 F.2d 740, 741 (9th Cir. 1961).......................................................................... 6
23 Roginsky v. Blake,
24 131 F. Supp. 2d 715, 718 n.1 (D. Md. 2000) ....................................................... 12
25 Sanctity of Human Life Network v. California Highway Patrol,
26 105 Cal.App.4th 858, 872 (2003)......................................................................... 14
27 Schreiber Distrib. Co. v. Serv–Well Furniture Co.,
28 806 F.2d 1393, 1401 (9th Cir.1986)....................................................................... 8
iv
1 Shannon-Vail Five, Inc. v. Bunch,

2 270 F.3d 1207, 1210 (9th Cir. 2001)................................................................ 5, 10
3 Sprewell v. Golden State Warriors,
4 266 F.3d 979, 990 (9th Cir.), opinion amended on denial of reh’g, 275 F.3d 1187
5 (9th Cir. 2001) ........................................................................................................ 3
6 Stearns v. Select Comfort Retail Corp.,
7 08-2746 JF (PVT), 2009 U.S. Dist. LEXIS 112971, at *17-19 (N.D. Cal. Dec. 4,
8 2009) ..................................................................................................................... 12
9 Steckman v. Hart Brewing, Inc.,
10 143 F.3d 1293, 1295 (9th Cir. 1998)...................................................................... 3
11 Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
12 551 U.S. 308, 322 (2007) ....................................................................................... 3
13 Tirabassi v. Chase Home Fin., LLC,
14 2015 WL 1402016, at *10 (C.D. Cal. 2015) ........................................................ 13
15 United States v. Zuno-Arce,
16 25 F. Supp. 2d 1087, 1113 (C.D. Cal. 1998) ....................................................... 12
17 Wal-Noon Corp. v. Hill,
18 45 Cal.App.3d 605, 613 (1975).............................................................................. 7
19 Young v. City of Mount Rainier,
20 238 F.3d 567, 572-73 (4th Cir. 2001) .................................................................. 12
21 Zella v. The E. W. Scripps Co.,
22 529 F. Supp. 2d 1124, 1127-1128 (C. D. Cal. 2007) ............................................. 3
23 Zhang v. District Court,
24 120 Nev. 1037, 1040-41 (2004) ............................................................................. 6
25 Statutes
26 17 U.S.C. § 512(f)................................................................................................ 2, 13
27 Cal. Code Civ. Proc. § 436 ...................................................................................... 14
28 California Civil Code § 1646............................................................................... 5, 10
v
1 Other Authorities
2 CACI 305 ................................................................................................................... 8
3 Rules
4 Federal Rule of Civil Procedure 12(f) ..................................................................... 12
5 Rule 12(b)(6) ......................................................................................................... 2, 3
6
Treatises
7
4 Witkin Cal. Proc. Plead § 522 (5th ed. 2010)....................................................... 11
8
5 Witkin Cal. Proc. Plead § 542 .............................................................................. 10
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10
11
12
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION
3 Defendants Gerald A. Longarzo, Jr. (“Longarzo”) and Jeff Civillico
4 (“Civillico”) (collectively, “Defendants”) move to dismiss, with prejudice,
5 Plaintiff ISE Entertainment Corporation’s (“Plaintiff”) Second Amended
6 Complaint (“SAC”) with respect to its second count for Breach of Implied
7 Contract, third count for Rescission and Restitution, and fourth count for
8 Declaratory Relief. Further, Defendants move to strike the SAC’s newly-added
9 claim for Declaratory Relief, as it was pleaded without leave of this Court.
10 On April 16, 2018, this Court granted Defendants’ motion to dismiss and
11 motion to strike Plaintiff’s First Amended Complaint (“FAC”) relative to its
12 breach of contract and rescission/restitution claims. Dkt. No. 38. This Court
13 strongly cautioned that, “[i]f ISE is unable – consistent with Rule 11 – to plausibly
14 allege a contract as described, then the Court discourages actual amendment.”
15 Dkt. No. 38 at p. 12. Consistent with this warning, the Court noted that, “[w]hile
16 there may be a Second Amended Complaint, there will be no Third. Any future
17 successful motion to dismiss the contract claims will be granted without leave to
18 amend.” Dkt. No. 38 at p. 13 (emphasis added).
19 To add insult to injury, Plaintiff has shamelessly re-pleaded its claim for
20 declaratory relief – which this Court dismissed on February 2, 2018. Dkt. No. 17
21 at p. 18. Plaintiff voluntarily failed to re-allege its declaratory relief claim in its
22 FAC, and has thus waived any right to proceed on this claim. Crucially, the
23 instant declaratory relief claim was added without leave of court, and fails for the
24 exact same reasons that this Court originally dismissed it on February 2, 2018.
25 Such pleading shenanigans cannot be condoned, and this entire count should be
26 stricken without leave to amend.
27 Accordingly, Defendants respectfully request that this Court grant the
28 instant Motion to Dismiss and Motion to Strike (the “Motion”) in its entirety.
1
1 II. FACTUAL AND PROCEDURAL BACKGROUND

2 Plaintiff is a Nevada corporation with its principal place of business in Las
3 Vegas, Nevada. SAC ¶ 1. Defendant Civillico, also a Nevada citizen, is alleged to
4 have entered into a written “Deal Memo” with Plaintiff on or about February 7,
5 2017. SAC ¶ 8, Ex. 1. Defendant Longarzo is Defendant Civillico’s attorney. See
6 SAC, Exs. 5-6. The “Deal Memo” concerns a television program allegedly titled
7 The Weekend in Vegas (the “Program”), that aired on the Las Vegas ABC Affiliate
8 station KNTV. Id.
9 On November 22, 2017, Plaintiff filed its initial Complaint in California
10 Superior Court, alleging claims sounding in copyright. The Complaint was verified
11 under penalty of perjury by Plaintiff’s president, Mark Masoni. On December 20,
12 2017, Defendants removed this action to this Court due to federal question
13 jurisdiction. On February 2, 2018, this Court granted Defendants’ Motion to
14 Dismiss with leave to amend as to Plaintiff’s claims for breach of contract, fraud,
15 and declaratory relief. Dkt. No. 17.
16 On February 26, 2018, Plaintiff filed his FAC. Dkt. No. 20. The FAC was
17 similarly verified under penalty of perjury by Mark Masoni. Plaintiff re-pleaded
18
its claims for violation of 17 U.S.C. § 512(f) and breach of contract, but also added
19
an entirely new claim for rescission without leave of this Court. Notably, Plaintiff
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did not re-plead, and therefore waived, its claim for declaratory relief. On April
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16, 2018, this Court granted Defendants Motion to Dismiss and Motion to Strike
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Plaintiff’s claims for breach of contract and rescission, with leave to amend. Dkt.
23
No. 38.
24
III. STANDARD OF REVIEW ON A MOTION TO DISMISS  
25
Rule 12(b)(6) exists to weed out undeserving complaints before parties
26
engage in expensive discovery. Bell Atlantic Corp. v. Twombly, 550 U. S. 544,
27
555-559 (2007) (“Twombly”). This is particularly important in copyright actions,
28
2
1 which “lend[] [themselves] readily to abusive litigation, since the high cost of
2 trying such a case can force a defendant who might otherwise be successful in trial
3 to settle in order to avoid the time and expenditure of a resources intensive case.”
4 National Business Development Services, Inc. v. American Credit Education &
5 Consulting, Inc., 299 Fed. App’x 509, 2008 WL 4772074 *2 (6th Cir. 2008).
6 Thus, while Rule 8(a) only requires a “short plain statement of the claim,” a
7 copyright claim has a heightened pleading standard that requires a plaintiff to give
8 a defendant fair notice of a legally cognizable claim and the grounds upon which
9 the claim rests. Twombly, 550 U. S. at 555; Iqbal v. Ashcroft, 556 U.S. 662, 667-
10 68 (2009).
11 On a motion to dismiss, all allegations of material fact in the complaint are
12 taken as true,1 but a court “is not required to accept legal conclusions in the form
13 of factual allegations if those conclusions cannot reasonably be drawn from the
14 facts alleged.” Clegg v. Cult Awareness Network, 18 F. 3d 752, 754 (9th Cir.
15 1994); Zella v. The E. W. Scripps Co., 529 F. Supp. 2d 1124, 1127-1128 (C. D.
16 Cal. 2007). “Threadbare recitals of the elements of a cause of action, supported by
17 mere conclusory statements,” are not presumed to be true. Twombly, 550 U.S. at
18 555. Thus, a court must not accept, as pled in the Complaint, “naked assertion[s]”
19 devoid of “further factual enhancement.” Id. at 557.  
20 When ruling on a motion to dismiss, a court may consider materials referred
21 to in the complaint that form the basis of the claims, but that are not physically
22 attached to the pleading. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
23 U.S. 308, 322 (2007) (court deciding Rule 12(b)(6) motion may consider
24
1
25 However, if a document relied on in the complaint contradicts allegations in the
complaint, the document, not the allegations, control, and the court need not
26 accept the allegations in the complaint as true. Steckman v. Hart Brewing, Inc.,
143 F.3d 1293, 1295 (9th Cir. 1998); Sprewell v. Golden State Warriors, 266 F.3d
27 979, 990 (9th Cir.), opinion amended on denial of reh’g, 275 F.3d 1187 (9th Cir.
2001); E.D.C. Techs., Inc. v. Seidel, No. 16-CV-03316-SI, 2016 WL 6216805, at
28 *1 (N.D. Cal. Oct. 25, 2016).
3
1 “documents incorporated into the complaint by reference”). See also Knievel v.

2 ESPN, 393 F.3d 1068, 1076- 77 (9th Cir. 2005) (12(b)(6) motion properly granted
3 by considering web pages referred to in the complaint and attached to defendant’s
4 motion).
5 When amendment of a complaint would be futile, dismissal should be
6 ordered with prejudice. Dumas v. Kipp, 90 F. 3d 386, 393 (9th Cir. 1996); Lopez v.
7 Smith, 203 F. 3d 1122, 1127 (9th Cir. 2000); Jackson v. Carey, 353 F. 3d 750, 758
8 (9th Cir. 2003) (dismissal with prejudice should occur if amendment cannot cure
9 deficiencies).
10 IV. THE SAC FAILS TO STATE A CLAIM FOR BREACH OF
11 CONTRACT
12 Plaintiff’s second count for Breach of Implied Contract is an affront to this
13 Court’s clear warning that “[i]f ISE is unable – consistent with Rule 11 – to
14 plausibly allege a contract as described, then the Court discourages actual
15 amendment.” Dkt. No. 38 at p. 12. Before making this warning, the Court
16 expressed its “doubts about ISE’s breach of contract claim given its shifting
17 nature[.]” Id. Plaintiff had previously sworn, under oath, that Plaintiff and
18 Civillico had entered into a single written agreement: the Deal Memo. See
19 Complaint ¶¶ 8, Ex. 1; FAC ¶¶ 8, Ex. 1. Likewise, hitherto Plaintiff’s breach of
20 contract claims had all explicitly arisen from the Deal Memo itself. See
21 Complaint ¶¶ 24-28; FAC ¶¶ 20-24. Crucially, Plaintiff’s FAC alleged a very
22 specific series of acts that Plaintiff claimed constituted a breach of the Deal
23 Memo. FAC ¶ 23.
24
Now, Plaintiff has conveniently recalled it entered into a “new” contract
25
with Civillico – a supposed “implied-in-fact contract” that amazingly covers the
26
same subject matter as the Deal Memo! This expedient “contract” not only defies
27
credulity, but is inconsistent with Plaintiff’s prior allegations. Incredibly, Plaintiff
28
4
1 alleges that the exact same conduct that supposedly constituted a breach of the
2 Deal now constitutes a breach of this new “implied-in-fact contract.” Compare
3 SAC ¶ 24 with FAC ¶ 23. As a matter of law, this “new” contract cannot stand –
4 even if it existed (which it does not), it is unenforceable.
5 Nevada law clearly governs both the Deal Memo, although it does not
6 contain a specific choice of law provision. Nevada law also governs the specious
7 “implied-in-fact contract” that Plaintiff has conjured out of the ether for its SAC.
8 “To determine the law governing a contract, California courts look to the relevant
9 statute and, for further guidance, to the choice-of-law principles outlined in the
10 Restatement.” Shannon-Vail Five, Inc. v. Bunch, 270 F.3d 1207, 1210 (9th Cir.
11 2001). California Civil Code § 1646 states the traditional conflicts rule that, for
12 matters pertaining to performance, “[a] contract is to be interpreted according to
13 the law and usage of the place where it is to be performed; or, if it does not
14 indicate a place of performance, according to the law and usage of the place where
15 it is made.”
16 Here, the Deal Memo and the “implied-in-fact contract” were into entered
17 between two Nevada citizens: Plaintiff and Civillico. SAC ¶¶ 1, 3. Moreover,
18 both were to be performed in and around Las Vegas, Nevada. SAC ¶¶ 1, 2, 22,
19 Ex. 1. Both concerned the production of a local television program for the Las
20 Vegas area, entitled “The Weekend in Vegas.” Indeed, all of the allegations
21 concerning performance of the putative contracts concern the Las Vegas area and
22 its local television stations and hotel-casinos. SAC ¶¶ 22, 24.
23 Why Plaintiff filed this action in California is anyone’s guess. However, it
24 cannot be disputed that Nevada law governs the Deal Memo and the new
25 “implied-in-fact contract.” Under Nevada law, “an action does not lie on an
26 implied contract where there exists between the parties an express contract
27 covering the same subject matter.” Ewing v. Sargent, 87 Nev. 74, 80 (1971). As
28 the Nevada Supreme Court succinctly stated, “[i]t is one thing to imply an
5
1 agreement to pay for valuable goods or services rendered in anticipation of

2 compensation, when an express agreement defining compensation cannot be
3 found or is uncertain as to the exact terms of payment; it is quite another thing to
4 imply an agreement for payment beyond that apparently bargained for by the
5 parties.” Id. See also Rogers v. Am. President Lines, Ltd., 291 F.2d 740, 741 (9th
6 Cir. 1961) (same).
7 The subject matter of the Deal Memo concerns the business relationship
8 between Plaintiff and Civillico relative to the production of the Program. In its
9 second count, Plaintiff incorporates all of the aforementioned general allegations
10 and then alleges the existence on an implied-in-fact contract covering the same
11 subject matter – the parties’ business relationship relative to the production of the
12 Program. Under Nevada law, Plaintiff’s supposed “implied-in-fact contract”
13 cannot stand, given the express contract between the parties covering the same
14 subject matter – the Deal Memo.
15 Moreover, Plaintiff cannot seek to argue that this disturbingly convenient
16 “implied-in-fact contract” is somehow a modification of the Deal Memo itself.
17 Under Nevada law, as under the common law generally, for an agreement
18 that modifies an existing contract to be enforceable, the agreement must be
19 supported by independent consideration, and a promise to perform an act the
20 promisor already owed a pre-existing duty to perform does not constitute
21 independent consideration. See, e.g., Zhang v. District Court, 120 Nev. 1037,
22 1040-41 (2004), abrogated on other grounds by Buzz Stew, LLC v. City of North
23 Las Vegas, 124 Nev. 224, 228 n.6 (2008) (holding
24 a modification without new consideration to be unenforceable); Clark County v.
25 Bonanza No. 1, 96 Nev. 643, 650-51, 615 P.2d 939, 943-44 (1980).
26 Here, Civillico was not provided any new consideration under the alleged
27 “implied-in-fact contract” separate and apart from the consideration already
28 provided under the Deal Memo – 5% of the total shares in Plaintiff. The
6
1 “implied-in-fact contract” is thus unenforceable to the extent it seeks to modify

2 the Deal Memo. This is black letter contract law, and Plaintiff should know
3 better.
4 Even if analyzed under California law, the second count for Breach of
5 Implied Contract still fails. Plaintiff’s second count fails because “it is well
6 settled that an action based on an implied-in-fact or quasi-contract cannot lie
7 where there exists between the parties a valid express contract covering the same
8 subject matter.” Lance Camper Manufacturing Corp. v. Republic Indemnity Co.,
9 44 Cal.App.4th 194, 203 (1996) (emphasis added).
10 “There cannot be a valid express contract and an implied contract, each
11 embracing the same subject matter, existing at the same time. … The reason for
12 the rule is simply that where the parties have freely, fairly, and voluntarily
13 bargained for certain benefits in exchange for undertaking certain obligations, it
14 would be inequitable to imply a different liability and to withdraw from one party
15 benefits for which he has bargained and to which he is entitled.” Wal-Noon Corp.
16 v. Hill, 45 Cal.App.3d 605, 613 (1975).
17 In its general allegations, Plaintiff alleges the existence of an express
18 contract between the parties – the Deal Memo. SAC, ¶¶ 8, Ex. 1. The subject
19 matter of the Deal Memo concerns the business relationship between Plaintiff and
20 Civillico relative to the production of the Program. In its second count, Plaintiff
21 incorporates all of the aforementioned general allegations and then alleges the
22 existence on an implied-in-fact contract covering the same subject matter – the
23 parties’ business relationship relative to the production of the Program. SAC, ¶¶
24 20-26. “This is internally inconsistent. [Plaintiff] must allege that the
25 express contract is void or was rescinded in order to proceed” with his implied-in-
26 fact contract claim. Lance Camper Manufacturing Corp., 44 Cal.App.4th at 203
27 (emphasis added); see also Lloyd v. Williams, 227 Cal.App.2d 646, 649 (1964)
28 (“[I]t necessarily follows that until an express contract is avoided, an action on an
7
1 implied contract cannot be maintained.”). Plaintiff has failed to allege that the
2 Deal Memo is void or was rescinded, such that an implied-in-fact contract could
3 encompass the same subject matter. No further leave to amend can be given.
4 Additionally, from a pure pleading perspective, Plaintiff has not alleged the
5 necessary element that any of the conduct that created the purported implied-in-
6 fact contract was intentional. CACI 305; Div. of Labor Law Enforcement v.
7 Transpacific Transp. Co., 69 Cal.App.3d 268, 275 (1997); Klekas v. EMI Films,
8 Inc., 150 Cal.App.3d 1102, 1114 (1984). Plaintiff has not alleged that each party
9 (or any party for that matter) knew, or had reason to know, that the other party
10 would interpret the conduct as an agreement to enter into a contract separate and
11 apart from the Deal Memo. Id.
12 Plaintiff’s breach of contract claim should be dismissed without leave to
13 amend. In Reddy v. Litton Industries, Inc., 912 F.2d 291 (9th Cir.1990), the Ninth
14 Circuit upheld the dismissal of an insufficient complaint without leave to amend
15 because no amendment consistent with prior pleadings could cure the
16 insufficiency. Reddy made its reason clear: “Although leave to amend should be
17 liberally granted, the amended complaint may only allege ‘other facts consistent
18 with the challenged pleading.’ ” Id. at 296–97 (quoting Schreiber Distrib. Co. v.
19 Serv–Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986)). Plaintiff’s SAC
20 has run afoul of this Ninth Circuit precedent, as well as this Court’s own stern
21 warning that any amendment to Plaintiff’s contract claims must be consistent with
22 Rule 11 – i.e., made with evidentiary support.
23 Plaintiff has made no attempt whatsoever to demonstrate why this “implied-
24
in-fact contract” was not alleged previously. This omission is glaring, and this
25
Court, should take heed of the sort of persons that operate Plaintiff. In a recent
26
California Superior Court action filed by Plaintiff, the trial court found that,
27
relative to Plaintiff’s principals, “the facts show Mr. Harmon and Mr. Masoni to
28
8
1 be less than credible and that they have a history of fabricating evidence in and
2 outside of court proceedings in an attempt to gain an advantage.” Request for
3 Judicial Notice (“RJN”), Ex. 1 at 11:14-16 (emphasis added). Indeed, the
4 California Superior Court noted that “it is highly unusual and suspicious that a
5 business keeps no financial records of its transactions or profits and losses.” Id. at
6 11:16-17. Mr. Masoni, this Court should note, is the individual who has
7 “verified” every version of Plaintiff’s complaint. This contract claim should be
8 dismissed once and for all.
9
V. THE COMPLAINT FAILS TO STATE A CLAIM FOR RESCISSION
10
In its order granting Defendants’ motion to dismiss and strike the FAC’s
11
rescission claim, this Court noted that Plaintiff conceded that
12
“rescission/restitution” is not an independent cause of action, but a remedy for
13
breach of contract. “Because ISE has not stated a viable breach of contract claim,
14
it has also not stated a viable rescission/restitution claim.” Dkt. No. 38 at p. 13.
15
The SAC’s rescission claim fails even moreso this time around, as Plaintiff’s
16 breach of contract claim now is based on a fictitious “implied-in-fact contract”
17 that is entirely inconsistent with the allegations of Plaintiff’s prior complaints.
18 A. “Rescission” Is Not An Independent Cause Of Action
19 “[R]escission is a remedy and not an independent cause of action under
20 Nevada law.” Rodriguez v. Bank of Am. Corp., No. 2:11-cv-01877-ECR-CWH,
21 2012 U.S. Dist. LEXIS 111860, at *13-14 (D. Nev. Aug. 8, 2012) (granting
22 motion to dismiss on this basis); see also Frederick v. Fed. Nat'l Mortg. Ass'n,
23 No. 2:11-cv-00522-GMN-CWH, 2012 U.S. Dist. LEXIS 54217, 2012 WL
24 1340801, at *6 (D. Nev. Apr. 18, 2012) (same); Great Am. Ins. Co. v. Gen.
25 Builders, Inc., 934 P.2d 257 (Nev. 1997), 113 Nev. 346 (“[R]escission is not a
26 claim, but rather a remedy.”).
27 Nevada law clearly governs the Deal Memo, although it does not contain a
28 specific choice of law provision. “To determine the law governing a contract,
9
1 California courts look to the relevant statute and, for further guidance, to the
2 choice-of-law principles outlined in the Restatement.” Shannon-Vail Five, Inc. v.
3 Bunch, 270 F.3d 1207, 1210 (9th Cir. 2001). California Civil Code § 1646 states
4 the traditional conflicts rule that, for matters pertaining to performance, “[a]
5 contract is to be interpreted according to the law and usage of the place where it is
6 to be performed; or, if it does not indicate a place of performance, according to the
7 law and usage of the place where it is made.”
8 Here, the Deal Memo and the “implied-in-fact contract” were into entered
9 between two Nevada citizens: Plaintiff and Civillico. SAC ¶¶ 1, 3. Moreover,
10 both were to be performed in and around Las Vegas, Nevada. SAC ¶¶ 1, 2, 22,
11 Ex. 1. Both concerned the production of a local television program for the Las
12 Vegas area, entitled “The Weekend in Vegas.” Indeed, all of the allegations
13 concerning performance of the putative contracts concern the Las Vegas area and
14 its local television stations and hotel-casinos. SAC ¶¶ 22, 24.
15 Why Plaintiff filed this action in California is anyone’s guess. However, it
16 cannot be disputed that Nevada law governs the Deal Memo and the implied
17 contract. Under Nevada law, no independent cause of action for rescission exists.
18 The third claim should be dismissed without leave to amend.
19 B. Alternatively, The “Rescission” Claim Fails Under California Law
20 The essential elements for pleading a cause of action for rescission are: (1)
21 a contract or other contractual instrument; (2) the grounds for rescission; and (3)
22 notice of rescission accompanied by an offer to restore the consideration received.
23 5 Witkin Cal. Proc. Plead § 542. Plaintiffs’ rescission claim has completely failed
24 to plead the first element – the terms of an existing contract of contractual
25 instrument between the parties. See California Trust Co. v. Gustason, 15 Cal.2d
26 268, 272 (1940) (vendor's action to quiet title against defaulting purchaser;
27 defensive pleading of rescission for fraud was defective for failure to set forth
28 agreement verbatim or according to legal effect); Consolidated Concessions Co.
10
1 v. McConnell, 40 Cal.App. 443, 444 (1919) (complaint was defective for failure to
2 allege that contract was made or acted upon or was subsisting at time of action).
3 As the Supreme Court held in California Trust Co, “[t]he agreements were not
4 pleaded at all, either in haec verba or according to their legal effect. No statement
5 is made as to their terms or conditions, and it cannot be determined what right or
6 title these agreements, or their alleged fraudulent procurement, conferred upon
7 defendant, or how it was conferred.” 15 Cal.2d at 272.
8 The only contract that was allegedly breached by Civillico was the second
9 count’s “implied-in-fact contract.” SAC, ¶¶ 20-26. The third count incorporates
10 all of these allegations. SAC, ¶ 27. Although Plaintiff seeks to rescind the
11 specious “implied-in-fact contract,” it has failed to set forth the terms of this
12 agreement verbatim or according to its legal effect. “In order to plead
13 a contract by its legal effect, plaintiff must ‘allege the substance of its relevant
14 terms.’” McKell v. Washington Mutual, Inc., 142 Cal.App.4th 1457, 1489 (2006).
15 This is more difficult than pleading a contract verbatim, for it requires a careful
16 analysis of the agreement, comprehensiveness in statement, and avoidance of legal
17 conclusions. Id. Where, as here, the allegations fail to plead the contract with
18 certainty, it is subject to dismissal. 4 Witkin Cal. Proc. Plead § 522 (5th ed.
19 2010). Here, it is uncertain who the parties to the agreements are. It is uncertain
20 what the respective obligations of the parties are. It is even uncertain whether
21 Plaintiff has alleged one contract or several and under which contract(s) its
22 rescission claim arise – i.e., the only grounds for rescission are allegedly the
23 breach of the “implied-in-fact contract,” but Plaintiff confusingly claims that the
24 Deal Memo somehow suffers from a failure of consideration. Simply put, Plaintiff
25 has failed to meet the high standard for pleading the alleged agreement according
26 to its legal effect. This is the direct result of Plaintiff’s opportunistic decision to
27 shift its allegations to conform to a theory of recovery, rather than to the actual
28 facts.
11
1 VI. THE SAC FAILS TO STATE A CLAIM FOR DECLARATORY

2 RELIEF
3 A. The Fourth Claim Was Improperly Added Without Leave Of Court
4 Plaintiff’s putative fourth count for “Declaratory Relief” fails for several
5 reasons. First, and most glaringly, this claim was wrongfully inserted without
6 leave of this Court. In its FAC, Plaintiff omitted its claim for declaratory relief
7 that had been pleaded in its original Complaint. The Court had dismissed this
8 claim with leave to amend. Plaintiff elected not to amend this claim. It is a rule
9 of law in that a plaintiff waives all causes of action alleged in the original
10 complaint that are “voluntarily” not alleged in the amended complaint. Lacey v.
11 Maricopa Cty., 693 F.3d 896, 927-28 (9th Cir. 2012); Young v. City of Mount
12 Rainier, 238 F.3d 567, 572-73 (4th Cir. 2001). Plaintiff has waived its declaratory
13 relief claim by voluntarily omitting it from its FAC, and may not resurrect it now.
14
15 Plaintiff ignored this rule and willfully inserted a declaratory relief claim in its
16 SAC without leave of court. When a court gives leave to file an amended
17 complaint for a limited purpose, as was done here, the addition of a new claim in
18 the amended pleading is improper. E.g., Roginsky v. Blake, 131 F. Supp. 2d 715,
19 718 n.1 (D. Md. 2000) (“As the tort claim of civil conspiracy is a new claim
20 offered without leave of court, the Court will not entertain that claim.”); United
21 States v. Zuno-Arce, 25 F. Supp. 2d 1087, 1113 (C.D. Cal. 1998); Kennedy v. Full
22 Tilt Poker, No. CV 09- 07964, 2010 U.S. Dist. LEXIS 112119, 2010 WL
23 3984749, at *1 (C.D. Cal. 2010) (stating that court previously struck amended
24 complaint because plaintiffs failed to seek leave to add new claims or defendants).
25 Pursuant to Federal Rule of Civil Procedure 12(f), a court may strike
26 “newly-alleged” claims in an amended complaint. Stearns v. Select Comfort Retail
27 Corp., 08-2746 JF (PVT), 2009 U.S. Dist. LEXIS 112971, at *17-19 (N.D. Cal.
28 Dec. 4, 2009); see Brecher v. Citigroup Global Mkts., Inc., 09cv1344-LAB (AJB),
12
1 2010 U.S. Dist. LEXIS 31458, at *21 (S.D. Cal. Mar. 29, 2010).
2 Plaintiff failed to obtain leave of Court to add any new claims to its SAC.
3 Indeed, the order on the motion to dismiss and strike Plaintiff’s FAC
4 conspicuously did not grant Plaintiff leave to include any new claims in its SAC.
5 The fourth count for “Declaratory Relief” should be stricken in its entirety,
6 without leave to amend.
7 B. The Declaratory Relief Claim Fails For The Reasons This Court
8 Previously Held On February 2, 2018
9 Declaratory relief is a form of relief and not a cause of action. Del Monte
10 Intern. GmbH v. Del Monte Corp., 995 F. Supp. 2d 1107, 1124 (C.D. Cal. 2014);
11 Tirabassi v. Chase Home Fin., LLC, 2015 WL 1402016, at *10 (C.D. Cal. 2015);
12 Hollins v. Recontrust, N.A., 2011 WL 1743291, at *2 (C.D. Cal. May 6, 2011).
13 “The object of [declaratory relief] is to afford a new form of relief where needed
14 and not to furnish a litigant with a second cause of action for determination of
15 identical issues.” Lai v. Quality Loan Serv. Corp., 2010 WL 3419179, at *3 (C.D.
16 Cal. Aug. 26, 2010). As a result, this Court routinely dismisses claims where
17 plaintiffs attempt to state an independent cause of action for declaratory relief but
18 the claim “merely replicate[s]” other causes of action. See, e.g., Del Monte Intern.
19 GmbH, 995 F. Supp. 2d at 1124; Tirabassi, 2015 WL 1402016, at *10-11;
20 Hollins, 2011 WL 1743291, at *2; Lai, 2010 WL 3419179, at *3. Here, Plaintiff
21
seeks a declaration that it is “the rightful owner of the Program.” See SAC, ¶ 37.
22
This claim simply replicates the SAC’s first claim for “false DMCA” notice,
23
which assumes Plaintiff is the “copyright owner” of the work at issue. See 17
24
U.S.C. § 512(f).
25
Declaratory relief is only suitable where there is an actual controversy, not
26
simply an abstract or academic dispute. Connerly v. Schwarzenegger, 146
27
Cal.App.4th 739, 746 (2007). Specific pleading of an actual controversy is
28
13
1 necessary, and a plaintiff cannot establish the existence of an actual, present

2 controversy merely by pointing to the lawsuit in which he seeks declaratory relief.
3 Cotati v. Cashman, 29 Cal.4th 69, 79, 80 (2002). The purpose of a declaratory
4 relief action is to determine and declare rights and obligations of the parties to the
5 dispute. The claim functions prospectively, and is not available to redress past
6 wrongs. Babb v. Superior Court, 3 Cal.3d 841, 848 (1971). The controversy has
7 to be of a character which acknowledges specific and definite relief by judgment
8 within the field of judicial determination, as distinguished from an advisory
9 opinion upon a particular or hypothetical set of facts. Sanctity of Human Life
10
Network v. California Highway Patrol, 105 Cal.App.4th 858, 872 (2003).
11
Plaintiff has not alleged sufficient facts showing an actual or justiciable
12
controversy. As Plaintiff has not alleged the existence of a registered copyright, it
13
is impossible for Defendants to ascertain what specific rights and obligations of
14
the parties are being challenged by Plaintiff. In addition, the claim fails as a
15
matter of law because it would serve only to determine the identical issues that
16
must be resolved with respect to Plaintiff’s other claims. See Cal. Ins. Guarantee
17
Ass’n v. Superior Court, 231 Cal.App.3d 1617, 1623-24 (1991) (purpose of
18
declaratory relief is not to furnish a litigant with a second claim for the
19
determination of identical issues); Cal. Code Civ. Proc. § 436. Therefore, the
20
SAC does not state a viable claim for declaratory relief, and this claim should be
21
22 dismissed.
23 This Court dismissed this claim for these very reasons on February 2, 2018.
24 This Court stated that, in order to resolve Plaintiff’s DMCA claim, “the Court or a
25 jury will need to determine whether Defendants made misrepresentations about
26 the parties’ respective rights in the Program and their communications with
27 Amazon Video, and thus who has what rights in the Program.” Dkt. No. 17 at p.
28 18. This remains the case, but Plaintiff has chosen to waste the Court’s time – and
14
1 Defendants’ money – by speciously re-alleging its Declaratory Relief claim. This

2 nonsense cannot stand. The Court should admonish Plaintiff for its frivolous
3 behavior and dismiss this claim with prejudice.
4 VII. CONCLUSION
5 For the foregoing reasons, Defendants respectfully request that the Court
6 grant the instant motion to dismiss Plaintiff’s SAC as to its second, third, and
7 fourth counts, and strike the fourth count for Declaratory Relief, without leave to
8 amend.
9
Dated: May 21, 2018 FREEDMAN + TAITELMAN, LLP
10
11
/s/ Bryan J. Freedman
12 Bryan J. Freedman
13 Sean M. Hardy
Attorneys for Defendants,
14
GERALD A. LONGARZO, JR. and
15 JEFF CIVILLICO
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Case 2:17-cv-09132-MWF-JC Document 45 Filed 05/21/18 Page 1 of 24 Page ID #:410

1 FREEDMAN + TAITELMAN, LLP

1 Del Monte Intern. GmbH v. Del Monte Corp.,

1 Lacey v. Maricopa Cty.,

1 Shannon-Vail Five, Inc. v. Bunch,

1 MEMORANDUM OF POINTS AND AUTHORITIES

1 II. FACTUAL AND PROCEDURAL BACKGROUND

1 “documents incorporated into the complaint by reference”). See also Knievel v.

1 agreement to pay for valuable goods or services rendered in anticipation of

1 “implied-in-fact contract” is thus unenforceable to the extent it seeks to modify

1 VI. THE SAC FAILS TO STATE A CLAIM FOR DECLARATORY

1 necessary, and a plaintiff cannot establish the existence of an actual, present

1 Defendants’ money – by speciously re-alleging its Declaratory Relief claim. This

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