Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant New Republic Pictures, LLC 

 

RESPONDING PARTY: Plaintiff Bradley Fischer 

 

BACKGROUND 

This action arises from breach of an alleged oral employment agreement.  Plaintiff Bradley Fischer is a film producer, while Defendant New Republic Pictures, LLC is in the business of film and television production and financing.  (Compl. ¶¶ 1-2.)  On November 1, 2019, Plaintiff and Defendant entered into a written contract for Plaintiff to serve as Defendant’s President and Chief Content Officer (the “2019 Agreement”).  (Ex. A to Compl.)  The contract had a two year term of employment, which expired by its own terms on October 31, 2021.  (Compl. ¶2; Ex. A.) 

Plaintiff alleges that in May 2021, before the expiration of the 2019 Agreement, the parties entered into a new contract for an additional two years of employment.  (Compl. ¶ 25.)  The contract was not in writing; instead, Plaintiff alleges that the parties modified and extended the prior agreement “orally.”  (Compl. ¶ 37.)  Plaintiff further alleges that the oral agreement was “confirmed in subsequent written communications.”  (Compl. ¶37, see also Compl. ¶25.)  But Plaintiff does not allege who wrote the communications or what was said in them. 

In addition to the two year extension, Plaintiff alleges the 2019 Agreement was modified to provide him with “(i) 10% up front, producer fee bonus and (ii) 10% net profit bonus” for certain films “regardless of whether that film commenced principal photography during the term of [Plaintiff’s] employment or not.”  (Compl. ¶ 36.)  This amendment was also oral and “confirmed in various written communications.”  (Ibid.)  Again, Plaintiff does not allege the content or the author of the communications.       

On June 17, 2022, Defendant terminated Fischer without cause.  (Compl. ¶7.)  Plaintiff claims the termination was in breach of the 2019 Agreement, as extended for an additional two year term.  (Compl. ¶ 8.)  The operative complaint alleges claims for (1) breach of contract, (2) declaratory relief, and (3) accounting.               

This hearing is on Defendant’s demurrer and motion to strike.  On its demurrer, Defendant argues that Plaintiff’s claim for breach of contract is barred by the statute of frauds, and the derivative claims for declaratory relief and accounting rise and fall with the breach of contract claim.  As to its motion to strike, Defendant seeks to strike (1) Plaintiff’s request for specific performance because such a remedy is not available on a personal services contract and is also expressly disallowed under the 2019 Agreement, (2) Plaintiff’s request for attorneys’ fees because there is no contractual or statutory basis for such a claim, and (3) purportedly irrelevant allegations relating to Defendant’s “silent partner”, Dmitry Rybolovlev whom Plaintiff describes as a “Russian oligarch” who “exercised functional control” over Defendant.      

 

 

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (Code Civ. Proc., § 436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Breach of Contract 

The complaint alleges breaches of both the written 2019 agreement and an oral modification to the contract.  (Compl. ¶ 39.)  Defendant’s demurrer goes only to breaches of the oral agreement and whether that agreement fails to satisfy the statute of frauds.  It is black letter law that a demurrer does not lie to only a portion of a cause of action.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 (“A demurrer does not lie to a portion of a cause of action.”); accord Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163.)  Defendant’s demurrer does not challenge the enforceability of the written agreement and therefore, lies only to a portion of the breach of contract claim, and accordingly, the demurrer to the breach of contract claim must be OVERRULED.   

Declaratory Relief and Accounting Claims 

Defendant argues that Plaintiff’s claims for declaratory relief and accounting are derivative of Plaintiff’s breach of contract claim and must fail for the same reasons as the breach of contract claim.  As the Court has overruled the demurrer on the breach of contract claim, it also OVERRULES the demurrer on the declaratory relief and accounting claims.   

Specific Performance 

Defendant moves to strike Plaintiff’s request for specific performance arguing that it is contrary to the terms of the 2019 Agreement, and that it is hornbook law that parties are not permitted to compel specific performance of the terms of an employment contract.  The Court agrees. 

Plaintiff asks for an order “requiring Defendants to specifically perform their obligations under the 2019 Agreement to formally cause Fischer to be attached to, and provide exclusive or non-exclusive producer services (regarding film projects) or non-exclusive executive producer services (regarding television projects) for all projects that were acquired, greenlit or in production at the time of Fischer’s termination … and that Fischer shall receive produced by credit (on film projects), executive producer credit (on television projects) as well as producer fees, executive producer fees, and contingent compensation, in accordance with Fischer’s precedent and industry practice.”  (Compl. Prayer for Relief  ¶3.) 

This request for relief is barred by the 2019 Agreement which states that Fischer would not be entitled to specific performance in the event Defendant breached the agreement:  “Fischer recognizes that in the event of any breach by [Defendant] of its obligations to Fischer, the damage (if any) caused to Fischer is not irreparable or sufficient to entitle Fischer to injunctive relief or other equitable relief.  Fischer, therefore, agrees that Fischer’s rights and remedies shall be limited to the right, if any, to obtain damages at law …”.  (Ex. A to Compl. at p. 26.)  Because Plaintiff agreed that a breach of the 2019 Agreement could be remedied only by money damages, that is all he can seek in this case.   

Plaintiff’s argument that this prohibition against specific performance applies only to past breaches is contrary to the contract’s plain language which applies to “any breach,” not only to “past breaches.”  Even if there were any merit to Plaintiff’s argument that the prohibition applies only to past breaches, Plaintiff’s prayer for specific performance should still be stricken because Plaintiff’s Complaint alleges past breaches, not future ones.  For example, Plaintiff alleges “Defendants failed to honor their obligations to Fischer, under the 2019 Agreement … [Defendant] failed to negotiate in good faith to properly attach Fischer as a producer on all projects that were acquired, greenlit or in production at the time of his termination.”  (Compl. ¶39.) 

Further, it is “well established that an employee is generally not entitled to compel specific performance of the terms of an employment contract, absent statutory authorization.”  Scott v. Pac. Gas & Electric Co. (1995) 11 Cal.4th 454, 473.  Civ. Code § 3390 provides that “[a]n obligation to render personal service” and “an obligation to employ another in personal service” cannot be specifically enforced.  In other words, an employment contract cannot be specifically enforced against the employer or the employee.  (Barndt v. Cnty. of L.A. (1989) 211 Cal.App.3d 397, 403 (“It has long been established that a contract to perform personal services cannot be specifically enforced, regardless of which party seeks enforcement.”).) 

“A fundamental reason why courts will not order specific performance of personal services contracts is because an order would impose on the courts a difficult job of enforcement and of passing judgment upon the quality of performance.”  (Id.)  Further, specific performance is disfavored “to avoid the friction and social costs that often result when employer and employee are reunited in a relationship that has already failed.”  (Id. at 404.)  Specific performance requires “a marked degree of cooperation and goodwill among the parties which an equitable decree simply cannot relegate.”  (Id.) 

All of the reasons for denying specific performance apply here.  Plaintiff seeks an order that would make him a “producer” or “executive producer” on “film projects” and “television projects” -- a position that would require a “marked degree of cooperation and goodwill” between the parties, whose relationship has already failed and indeed, resulted in litigation.  Such an order would impose on the Court the difficult task of monitoring the quality of Plaintiff’s performance and Defendant’s adherence to its obligations on each film or television project.     

Plaintiff argues he is not seeking specific performance that Defendant employ him, but rather is only seeking specific performance of Defendant’s “limited obligation to document Fischer’s attachment on projects on which he worked, as required under the terms of the 2019 Agreement.”  But as noted above, the 2019 Agreement expressly bars the request for specific performance.  And even requiring performance of the “limited obligation” requires a degree of cooperation and goodwill between the parties and requires the Court to supervise whether Defendant has properly formalized Fischer’s attachment as a producer on all projects that were required, greenlit or in production at the time of his termination. 

Plaintiff also argues that he is in the narrow category of persons for whom there is a statutory exception to the prohibition against specific performance of an employment agreement.  Civ. Code §3423(e) allows requests for injunctive relief “to prevent the breach of a contract … in writing for the rendition of personal services from one to another where the promised service is of a special, unique, unusual, extraordinary or intellectual character, which gives it peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law.”  Plaintiff has not cited to any cases which would allow invocation of §3423(e) where there is a specific contract prohibition against specific performance.      

Accordingly, the Court GRANTS the motion to strike Plaintiff’s request for specific performance without leave to amend.   

Attorneys’ Fees 

Defendant moves to strike Plaintiff’s request for attorneys’ fees because there is no contract or statute entitling Plaintiff to such fees.  Plaintiff does not oppose the motion to strike his prayer for attorneys’ fees. 

California follows the American rule which “provides that each party to a lawsuit must ordinarily pay his own attorney fees.”  (Trope v. Katz (1995) 11 Cal.4th 274, 278.)  The rule is codified in Code Civ. Proc. § 1021, which states: “Except as attorney’s fees are specifically provided by statute, the measure and mode of compensation of attorneys … is left to the agreement, express or implied, of the parties[.]” 

No statute provides for an award of attorneys’ fees in breach of contract actions—except where the contract itself provides for an award of attorneys’ fees.  (See Civ. Code §1717(a) (providing for an award of attorneys’ fees in contract actions only “where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party”).) 

The parties in this case did not agree to an award of attorneys’ fees.  There is no provision for an award of attorneys’ fees to one of the parties or to the prevailing party in the 2019 Agreement.  Notably, the indemnification provision in the 2019 Agreement does refer to attorneys’ fees with respect to third party claims, which is not applicable here.  But the provision shows the parties knew how to provide for attorneys’ fees had they intended to do so.  (See e.g., Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1135 (explaining that where parties use a term in one provision but not another, the choice of language is “highly significant” because “[w]hen the parties intended” to include a term, “they knew how to do so”).)  

Accordingly, the Court GRANTS the motion to strike Plaintiff’s request for attorneys’ fees without leave to amend. 

Allegations as to Defendant’s Silent Partner 

Defendant seeks to strike Plaintiff’s allegations regarding Mr. Rybolovlev, who is alleged by Plaintiff to be a silent partner in Defendant and to have functional control of Defendant.  Defendant argues that the allegations (including that Defendant is a Russian oligarch) are wholly irrelevant and risk unnecessary confusion and prejudice.  Defendant argues that Plaintiff’s  allegations are solely designed to make a factfinder view Defendant unfavorably given Russia’s invasion of Ukraine.  The Court agrees. 

Plaintiff alleges that Mr. Rybolovlev is a Russian billionaire; Russia invaded Ukraine, and the “international community responded with harsh sanctions against both Russia and its wealthy elite.”  (See, e.g., Compl. ¶¶2, 5, 16.)  None of these facts are relevant to this breach of contract case.  (Cf. Fantasy Inc. v. Fogerty (9th Cir. 1993) 984 F.2d 1524, 1526, rev’d on other grounds, 510 U.S. 517 (1994) (granting motion to strike allegations that defendant’s shareholder fraudulently induced plaintiff to enter into an illegal tax scheme which were irrelevant to plaintiff’s claim for breach of music publishing agreements; the allegations were not “relevant background and foundational facts” and created “serious risks of prejudice to [defendant], delay and confusion of the issues”).)    

Plaintiff does allege that as a result of the invasion of Ukraine, he and Defendant engaged in negotiations in 2022 regarding a different agreement because he claimed Mr. Rybolovlev “perceived a threat to his own assets and moved to minimize his exposure in the west.”  (Id. ¶¶ 28-29.)  But that agreement is not at issue in this case.  Plaintiff’s lawsuit is not for breach of any 2022 agreement that was negotiated but never reached. 

 

 

CONCLUSION 

Based on the foregoing, the Court OVERRULES Defendant’s demurrer and GRANTS its motion to strike.  The motion to strike the request for specific performance and attorney’s fees is granted without leave to amend, but Plaintiff’s allegations regarding Mr. Rybolovlev are stricken with 20 days’ leave to amend, in the event Plaintiff can allege a connection between his allegations regarding Mr. Rybolovlev and his claims.   

 

IT IS SO ORDERED. 

 

DATED: May 4, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court