Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV02036, Date: 2024-11-27 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV02036, Date: 2024-11-27 Tentative Ruling

Defendant Tucker Carlson (“Defendant”) demurs to the claims alleged in Plaintiff Steven E. Greer (“Plaintiff”)’s complaint on the grounds that Plaintiff’s claims are barred by the res judicata and collateral estoppel doctrines; Plaintiff’s claim for implied-in-fact contract is time barred, and he fails to allege mutual assent; and Plaintiff’s claim for violation of Business and Professions Code section 17200 fails because the statute does not support claims by a non-California resident where none of the alleged misconduct or injuries took place in California, the claim is duplicative of Plaintiff’s implied-in-fact claim, the claim is not sufficiently stated, and the claim is preempted by the United States Copyright Act. These grounds are the same as those asserted in Defendant’s demurrer to the initial complaint, and the Court provided Plaintiff with guidance as to the facts needed to continue his claims should he choose to amend. As discussed below, Plaintiff failed to amend his claims in a way that allows the Court to conclude that further amendment would cure any deficiencies in the pleading. The Court notes that much of its analysis in this demurrer is the same as the prior demurrer due to Plaintiff’s failure to amend the pleading in a way that sufficiently addressed the deficiencies identified in the Court’s prior order as to the initial complaint.

“[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 (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

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.)

On July 14, 2020, Plaintiff filed an action in United States District Court for the Southern District of New York naming Defendant Tucker Carlson, Fox News Network, LLC (“Fox News”), and other parties as defendants. (Dem., Meuser Decl. ¶ 8, Ex. 3.) In that action, Plaintiff alleged that the defendants infringed his copyrights by publishing stories on topics which had been in Plaintiff’s blogs or email blasts from his blogs. (Ibid.) The district court dismissed Plaintiff’s complaint against Defendant on jurisdictional grounds because Plaintiff and Defendant are both domiciled in Florida. (Dem., Meuser Decl. ¶¶ 11, 12, Exs. 6, 7.) Plaintiff subsequently filed another amended complaint, not naming Defendant but keeping Fox News as a party, asserting a claim with violation of Business and Professions Code section 17200 with allegations that the defendants had misappropriated Plaintiff’s ideas. (Dem., Meuser Decl. ¶ 13, Ex. 8.) The defendants moved to dismiss the action, and the district court granted the motion on the grounds that the Copyright Act preempted Plaintiff’s unfair competition claim, his misappropriation claims had been waived insofar as Plaintiff attempted to plead them as implied-in-fact contract claims, and Plaintiff had failed to state the essential elements of such a claim. (Dem., Meuser Decl. ¶¶ 14, 15, Exs. 1, 9, 10.) Plaintiff appealed, and the United States Court of Appeals for the Second Circuit affirmed the district court’s dismissal, stating that Plaintiff had failed to allege mutual assent between him and the defendants to compensate or credit Plaintiff for his tips. (Dem., Meuser Decl. ¶ 7, Ex. 2.)

Defendant argues here that Plaintiff’s claims are barred by the doctrines of res judicata and collateral estoppel. Defendant contends that he was an employee of Fox News, a prevailing defendant in the Southern District of New York action, and this action arises out of the same facts as the judgment in favor of Fox News in the Southern District of New York. Defendant also argues that collateral estoppel applies because the issues in both actions are identical, with Plaintiff asserting that Defendant used his ideas without paying him, the issue of potential liability under Business and Professions Code section 17200 or an implied-in-fact contract were raised, submitted, and determined in the prior action, Plaintiff’s proposed claims were decided on the merits, and Plaintiff was the plaintiff in both lawsuits.

Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Under the doctrine of res judicata, a judgment for the defendant serves as a bar to further litigation of the same cause of action. To operate as a bar, a judgment must be final, on the same claim or cause of action, between the same parties, and must be an adjudication on the merits.

(Hi-Desert Medical Center v. Douglas (2015) 239 Cal.App.4th 717, 731, ellipses, citations, brackets, and quotation marks omitted.) Similarly, the doctrine of collateral estoppel, “an aspect of res judicata,” provides that “an issue necessarily decided in prior litigation may be conclusively determined as against the parties or their privies in a subsequent lawsuit on a different cause of action.” (Patel v. Crown Diamonds, Inc. (2016) 247 Cal.App.4th 29, 39, italics omitted.) “[F]ive threshold requirements must be satisfied” for the doctrine to apply:

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.

As pled in the First Amended Complaint, it appears Defendant was in privity with Fox News because Defendant has been sued in his capacity as a broadcaster on Fox News, i.e., any claims against Defendant and Fox News would be identical given that Plaintiff could not have given his ideas to Fox News generally. (See First Am. Compl. ¶¶ 71, 81-86.) Plaintiff’s claim is that Plaintiff disseminated his ideas to Defendant, who broadcast the ideas during his show on Fox News, and he has sought to hold both liable in different cases. Privity in the preclusion context is described as follows:

In short, Fox News acted in a representative capacity for Defendant in the prior action, Defendant’s alleged liability here is derivative from that of Fox News in the prior action, and it appears that Plaintiff has simply switched out Fox News in the prior action in favor of Defendant in this action. Defendant has a shared interest with Fox News in the prior action, and it would be expected that the adjudication of the claims against Fox News would also be applied as to Defendant because he was acting in a representative capacity for Fox News in his television show. Plaintiff states in the First Amended Complaint that Defendant “embodies the opposite of privity with Fox News” because Defendant “was fired by Fox News” and “is on bad terms with Fox.” (First Am. Compl. ¶¶ 22, 205.) Plaintiff also points out that Defendant was fired by Fox News “before this case number was generated.” (First Am. Compl. ¶¶ 22, 28, 71.) Put simply, Defendant’s termination from Fox News is of no consequence here because Plaintiff takes issue with Defendant’s conduct while he was an employee of Fox News, such that the eventual termination does not preclude a finding that Defendant has a shared interest with Fox News in the prior action, and Defendant was acting in a representative capacity for Fox News in his television show.

Plaintiff previously alleged claims for Business and Professions Code section 17200 and implied-in-fact contract against Fox News in the Southern District of New York action, those claims were adjudicated in favor of Fox News and against Plaintiff, and that judgment is final. Plaintiff states in the First Amended Complaint that res judicata and collateral estoppel do not apply here because no form of contract law was used as a cause of action in the prior action, and he did not assert a claim under Business and Professions Code section 17200. As to contract claims, the district court took note of Plaintiff’s assertion that “an implied-in-fact contract existed between him and Fox,” even if such a claim had not been brought as a cause of action in the pleading, and both the district court and the United States Court of Appeals for the Second Circuit concluded that Plaintiff had no claim for an implied-in-fact contract. (Dem., Meuser Decl. ¶¶ 6, 7, Exs. 1, 2.) As to whether Plaintiff asserted a claim under Business and Professions Code section 17200, the Court need only look to the pleadings in the federal court action, which asserted a claim for unfair competition, specifically under Business and Professions Code section 17200, against Fox News. (Dem., Meuser Decl. ¶¶ 8, 9, 13, Exs. 3, 4, 8.) Thus, it is clear that Plaintiff’s claims are barred by both the doctrine of res judicata, as Plaintiff is attempting to relitigate the same causes of action previously decided against him in favor of a party in privity with Defendant, and by the doctrine of collateral estoppel, as the same issues were litigated and decided against Plaintiff in the prior action, the decision was final and on the merits, and Defendant is in privity with Fox News from the prior action. In amending the complaint, Plaintiff has provided the Court with no facts that would persuade the trier of fact to conclude that Defendant was not in privity with Fox News in the prior action. Accordingly, Defendant’s demurrer in SUSTAINED without leave to amend on this basis, as there is no basis to conclude that amendment would cure this deficiency.

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.) “The only distinction between an implied-in-fact contract and an express contract is that, in the former, the promise is not expressed in words but is implied from the promisor’s conduct. Under the theory of a contract implied in fact, the required proof is essentially the same as under the first count upon express contract with the exception that conduct from which the promise may be implied must be proved.” (Chandler v. Roach (1957) 156 Cal.App.2d 435, 440, italics and citations omitted.) “The essential elements of an implied-in-fact contract and an express contract are the same, namely, mutual assent and consideration.” (Ibid.)

As the Court previously stated, much of Plaintiff’s claim appears to be barred by the two-year statute of limitations set forth in Code of Civil Procedure section 339, as this action was not filed until May 9, 2023; many of Plaintiff’s tips were sent, and Defendant broadcasted the same ideas, before May 9, 2021; and there are no facts indicating a tolling of the statute of limitations. This is not a question of fact for the trier of fact to decide, as Plaintiff argues, when the issue with the claim is clear on the face of the pleading. Further, whether the federal courts issued a decision related to statute of limitations is inapposite where the statute of limitations issue is apparent on the fact of the pleading before this Court.

Insofar as Plaintiff attempts to invoke the continuing violation or relation back doctrines, Plaintiff has alleged independently actionable wrongs, i.e., each of the purported uses of Plaintiff’s ideas stands alone, and there is no basis to determine that the relation back doctrine applies here. (See Wassman v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 850 [“Under the continuing violation doctrine, a plaintiff may recover for unlawful acts occurring outside the limitations period if they continued into that period”]; San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1549-1550, citations omitted [“The relation-back doctrine typically applies where an amendment identifies a defendant previously named as a Doe defendant or adds a new cause of action asserted by the same plaintiff on the same general set of facts”].)

Second, Plaintiff has not alleged any facts showing an agreement by Defendant to compensate Plaintiff for his ideas, nor are there facts showing mutual assent by Defendant; rather, Plaintiff simply disseminated his ideas to Defendant and has brought this action based on similarities between the purported tips he sent to Defendant and the content on Defendant’s television show. This does not show the existence of an implied-in-fact contract, and Defendant’s purported use of Plaintiff’s ideas where Plaintiff unilaterally expected compensation does not show mutual assent because the assent must be mutual, not the subjective belief of a single party to the purported contract. (Civ. Code, § 1580 [“Consent is not mutual, unless the parties all agree upon the same thing in the same sense”].) Accordingly, Defendant’s demurrer to the first cause of action is also SUSTAINED without leave to amend on these grounds.

Notably, a cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.) Plaintiff’s claim for violation of Business and Professions Code section 17200 is duplicative of his breach of contract claim, as he again alleges that Defendant used his ideas for his television program without providing proper payment to Plaintiff. Further, under title 17 United States Code section 301, a cause of action is preempted by the United States Copyright Act where (1) “the rights that a plaintiff asserts . . . are equivalent to those protected by the Copyright Act” and (2) “the work involved [falls] within the subject matter of the Copyright Act.” (See Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 791.) “[C]ourts have held that copyright protection does, in fact, extend to ideas” (id. at p. 793), such that Plaintiff’s claims are within the purview of the Copyright Act, particularly because Plaintiff disseminated the ideas on his website and in email and radio broadcasts, and are preempted by federal law. Thus, Defendant’s demurrer to the second cause of action is also SUSTAINED without leave to amend on these grounds.