Judge: Lee W. Tsao, Case: 23NWCV03065, Date: 2024-06-26 Tentative Ruling
Case Number: 23NWCV03065 Hearing Date: June 26, 2024 Dept: C
BRALA BEVERLY vs. KLOS RADIO,
LLC, ET. AL.
CASE NO: 23NWCV03065
HEARING: 6/26/24 @ 10:30 A.M.
#6
TENTATIVE RULING
Defendant’s Demurrer is OVERRULED
as to Plaintiff’s Second and Fourth Causes of Action, SUSTAINED as to the Third
Cause of Action with 20 days leave to amend, and SUSTAINED as to the First Cause
of Action without leave to amend.
Defendant to give notice.
Background
Plaintiff Brala Beverly (“Bralalalala”) alleges that Defendant Klos Radio,
LLC (“Klos”) reneged on a promise to play her music on its radio station. Plaintiff
filed a complaint against Defendant and Does 1-1000, on September 27, 2023, for
the following causes of action: (1) Violation of Civil Code section 51 (“Unruh
Act”), (2) Breach of Contract, (3) Intentional Tort, (4) General Negligence.
In a prior lawsuit, Plaintiff asserted that Klos breached two contracts
and committed other torts by failing to play Plaintiff’s music on the air, due
in part to KLOS discriminating against Plaintiff as a transgender artist.
(Request for Judicial Notice No. 2). The prior lawsuit from 2023 is titled
Brala Beverly aka Bralalalala v. KLOS Radio, LLC, Superior Court of Los
Angeles, Case No. 20TRCV00003.
Defendant Klos Radio, LLC demurs to the complaint on the grounds that
the causes of action are uncertain and fail to state claims that would
constitute causes of action.
Legal Standard
A demurrer is an objection to a pleading, the grounds for which are
apparent from either the face of the complaint or a matter of which the court
may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to
challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984)153 Cal.App.3d 280, 286.)
It is further explained that “[a]s used in this subdivision,
‘uncertain’ includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10,
subd. (f).) A demurrer for uncertainty is strictly construed, even where a
complaint is in some respects uncertain, because ambiguities can be clarified
under modern discovery procedures. (5 Witkin, California Procedure (3d ed. 1985)
Pleading, § 927, p. 364; 1 Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 1990) ¶ 7:85, p. 7–23.). However, a demurrer
for uncertainty should be sustained if the complaint is drafted in such a
manner that the defendant cannot determine what issues must be admitted or
denied, or what counts are directed against the defendant. (Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.)
In determining the merits of a demurrer, all material facts pleaded in
the complaint, and those that arise by reasonable implication, excluding
conclusions of fact or law, are deemed admitted by the demurring party. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) The
complaint must be construed liberally by drawing reasonable inferences from the
facts pleaded. (Ibid.)
Requests for Judicial Notice
Defendant requests judicial notice of the following: (1) Plaintiff’s
Second Amended Complaint in Brala Beverly aka Bralalalala v. KLOS Radio, LLC,
Superior Court of Los Angeles, Case No. 20TRCV00003; (2) Minute Order granting
demurrer of KLOS Radio, LLC to Plaintiff’s Second Amended Complaint; (3)
Plaintiff’s appeal to the California Court of Appeals, appealing the granting
of the demurrer in Case No. 20TRCV00003; and (4) ruling from the California
Court of Appeals upholding the granting of the demurrer. Defendant requests
judicial notice on the grounds that they are records of the state. (Evid. Code,
§ 452, subd. (d).)
The Court grants judicial notice of the existence of the above
documents. (Evid. Code, § 452, subd. (d); Williams v. Wraxall (1995) 33
Cal.App.4th 120, 130 n.7.)
However, the Court does not grant judicial notice of
factual findings in the above documents. Factual findings in prior judicial orders, opinions, or decisions are not a proper subject of judicial notice. (Kilroy v. State of Calif. (2004) 119 Cal.App.4th 140, 148.) But the
finding itself may be a proper subject of judicial notice if it has a res
judicata or collateral estoppel effect in a subsequent action. (Ibid.)
Thus, the Court grants judicial notice of factual findings if they
have a res judicata effect or collateral estoppel effect in this action.
Meet and Confer
Defendants
stated that they satisfied the meet-and-confer requirements, but the declaration
they submitted does not support this. (Mot., pg.1; Code. Civ. Proc., § 430.41,
subd. (a).)
Discussion
Uncertainty of the Entirety of Plaintiff’s
Complaint
First, Defendant demurs on the basis that all four of Plaintiff’s causes
of action asserted are uncertain, ambiguous, and unintelligible. Defendant
contends that the complaint is difficult to read and is out of order, and
contains too many references to the prior, already adjudicated lawsuit.
Furthermore, Defendant emphasizes that “Attachment A” of Plaintiff’s Complaint
lacks connection to the second, third, and fourth Causes of Action.
Upon closer examination of the complaint, and in consideration of the
strict scrutiny standard for a demurrer for uncertainty, the court finds
Plaintiff’s complaint to be one that is not uncertain or ambiguous regarding
the first, second, and fourth causes of action. Plaintiff submitted standard complaint
forms listing specific causes of action, with supporting exhibits for these
claims. It is thus clear here which issues are admitted or denied, or which
counts are directed against the defendant.
However, regarding the third cause of action, there appears to be no
clear indication as to which specific issue or count is directed against the
defendant. Although the Plaintiff used a standard form for an Intentional Tort,
there is no mention of, nor any indication anywhere therein, of the specific
kind of Intentional Tort that is being asserted. Although there is mention of
an alleged “emotional distress”, the language used here is unclear as to
whether this is referring to Intentional Infliction of Emotional Distress or another
intentional tort.
Thus, the Court sustains the demurrer on this ground as to the third
cause of action with leave to amend. The Court overrules the demurrer on this
ground as to the first, second, and fourth cause of action.
First Cause of Action: Violation of Unruh Act
Defendant contends that Plaintiff’s first cause of action based on the
Unruh Act fails to state facts sufficient to state a cause of action.
Furthermore, Defendant contends that this kind of action is precluded by res judicata, or alternatively, collateral
estoppel.
The “Unruh Act,” codified as California Civil Code §51, eliminates discrimination
in the provision of business services to all persons. (Harris v. Capital
Growth Investors XIV (1991) 52 Cal.3d 1142.) The act specifically provides
that “[a]ll persons within the jurisdiction of this state . . . are entitled to
the full and equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind whatsoever.” (Civ. Code,
§ 51.) The
elements of a claim for violation of the Unruh Civil Rights
Act are the following: (1) defendant is a business establishment; (2) defendant
intentionally denied plaintiff accommodations, advantages, privileges,
facilities, or services; (3) defendant was motivated to do so based on its
perception that plaintiff belonged to a statutorily defined group; (4)
plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in
causing plaintiff’s harm. (See Civ. Code, § 51; In re Cox (1970) 3
Cal.3d 205, 216.)
In opposition, the Plaintiff contends that application of the Unruh Act
is appropriate, explaining that the fact that KLOS had not aired music by a
transgender artist, coupled with how the station allegedly reneged on their
supposed 2023 promise to play the songs, are demonstrative of their motives
being purely discriminatory.
Plaintiff also contends in opposition that the claims here are not
precluded by res judicata or collateral
estoppel, because the complaint here is based on a different agreement and set
of facts altogether from the prior lawsuit.
“Res judicata
applies if (1) the decision in the prior proceeding is final and on the merits;
(2) the present proceeding is on the same cause of action as the prior
proceeding; and (3) the parties in the present proceeding or parties in privity
with them were parties to the prior proceeding.” (Fed’n of Hillside
& Canyon Associations v. City of L.A. (2004) 126 Cal.App.4th 1180, 1202.)
In the prior
lawsuit, Plaintiff sued Defendant for the following: (1) Breach of Contract;
(2) Libel; (3) Intentional Infliction of Emotional Distress; and (4)
Negligence. Because Plaintiff did not sue for Violation of the Unruh Act in the
prior lawsuit, the instant cause of action is not precluded on res judicata
grounds.
Issue preclusion,
or collateral estoppel, prevents relitigating previously decided issues, and it
applies (1) after final adjudication (2) of an identical issue litigated and
necessarily decided in the first suit, and (3) asserted against one who was a
party in the first suit or one in privity with that party. (DKN Holdings LLC
v. Faerber (2015) 61 Cal.4th 813, 819, 824.)
The history of
the Unruh Act indicates that the legislature’s objective was to prohibit
intentional discrimination in access to public accommodations. (Harris v. Capital
Growth Investors XIV, supra, 52 Cal.3d at p. 1149.) The gist of the
Plaintiff’s allegations in the prior lawsuit is not about denial of public
accommodations, but a business dispute between a radio station and a musician. (RJN,
No. 1.) Thus, the cause of action is not precluded on issue preclusion grounds
based on violation of the Unruh Act.
Further, the gist
of Plaintiff’s allegations in the instant lawsuit is also not about denial to
public accommodations, but a business dispute between a radio station and a
musician. Thus, Plaintiff has not stated sufficient facts to constitute a cause
of action.
“Leave to
amend should be denied where
the facts are not in dispute and the nature of the claim is clear, but no
liability exists under substantive law.” (Lawrence
v. Bank of America (1985) 163 Cal.App.3d 431, 436.)
The Court
further does not grant leave to amend because the nature of the claim is not
about denial to public accommodations.
Accordingly, Defendant’s demurrer as to the First Cause of Action is
SUSTAINED without leave to amend.
Second Cause of Action: Breach of Contract
The elements of a cause of action for breach of contract are the
following: (1) the existence of the contract; (2) plaintiff's performance or
excuse for nonperformance; (3) defendant's breach; and (4) the resulting damage
to the plaintiff. (Oasis W. Realty,
LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
Plaintiff alleges breach of implied contract. An implied contract is
one where the existence and terms are manifested by conduct. (Civ. Code, §
1621.)
Here, Defendant contends that neither of the attached exhibits to the complaint
show evidence of an actual contract. Defendant also contends that even if
Plaintiff’s alleged contract happens to be one that is implied by conduct, it is
still not compliant with the standard set forth in McKell vs. Washington Mutual, Inc. (2006) 142 Cal.App.4th
1457 as to alleging the substance of its relevant terms. Furthermore, Defendant
points to the language of the negligence cause of action, arguing that
Plaintiff had admitted to there being no real agreement or meeting of the
minds. Lastly, Defendant contends that there appears to be a lack of
consideration for the alleged contract.
In opposition, Plaintiff contends that this type of contract falls
under one that has a sufficient cause, which according to the California Civil
Code § 1550, is an alternative to consideration.
Plaintiff also contends that there indeed was a meeting of the minds,
since the statement that there were “no terms” only was in reference to there
being no terms laid out beyond submitting music for consideration through the
Reverbnation website. By this reasoning, once KLOS sent the email approving
Plaintiff’s music, Plaintiff’s subsequent approval of the offer was, by his
contention, one that triggered a valid and binding contract as a result.
Here, the court finds that Plaintiff has stated a valid claim as to the
breach of contract cause of action. “Attachments A-B” to the complaint show
what appears to be an email correspondence from KLOS to Plaintiff, in which
KLOS accepts the submission of Plaintiff’s song for a segment on a KLOS radio
broadcast. The email also shows KLOS’s request for Plaintiff’s contact
information in a reply email, to confirm the acceptance of the submission.
Based on this, it appears that Plaintiff has alleged the substance of the
contract’s terms and demonstrates what appears to be a meeting of minds.
Moreover, as stated in the Complaint, and later substantiated in the Opposition
to the Demurrer, Plaintiff did not in any way admit to there being “no terms.”
(See Opposition at pages 3-4.) Rather
Plaintiff stated that “[n]o were terms were disclosed upon application
submission beyond sending music for approval.” (See Complaint at p.11.)
Additionally, Plaintiff alleged consideration when she stated,
“Whenever an artist is played on the radio, they receive royalties for their
work and promotion of their music product for sale.” The royalties and
promotion of her work is the bargained-for exchange for the radio station ‘s
right to play her music.
Accordingly, the demurrer as to the Breach of Contract cause of action
is overruled.
Fourth Cause of Action: General Negligence
Defendant contends that Plaintiff’s Fourth Cause of Action for
negligence fails to state facts sufficient for a negligence cause of action and
is barred by the economic loss rule.
In opposition, Plaintiff contends that the Complaint contains a valid
cause of action as to negligence, arguing that KLOS had an obligation of
conducting its radio airplay contest based on the quality of music, and not
discriminatory practices. Plaintiff furthermore cites Civil Code section 3294,
arguing that even if a promise for an airplay is not deemed to be a contract,
there is a duty to honor promises in agreements.
The economic loss rule states that “in general, there is no recovery in
tort for negligently inflicted ‘purely economic losses,’ meaning financial harm
unaccompanied by physical or property damage.” (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922.)
But a contract for performance carries with it the reasonable expectation and
implied promise that the parties will perform it with reasonable care. (North
American Chemical Co. v. Super. Ct. (1997) 59 Cal.App.4th 764, 785.) Thus,
the economic loss rule does not apply to actions for negligent performance of
contract for services which results in foreseeable economic loss. (Id.
at 784.)
Here Defendant reneged on a promise to play Plaintiff’s music on the
radio. It is foreseeable that Plaintiff would lose royalties and other economic
opportunities that would arise from radio airtime.
Accordingly, the Demurrer is overruled as to the General Negligence
cause of action.