Judge: Mark A. Young, Case: 20SMCV01886, Date: 2022-10-19 Tentative Ruling
Case Number: 20SMCV01886 Hearing Date: October 19, 2022 Dept: M
CASE NAME: Miller, et al., v. Universal Music Publishing Group, et al.
CASE NO.: 20SMCV01886
MOTION: Demurrer to the Fourth Amended Complaint
HEARING DATE: 10/19/2022
BACKGROUND
On December 7, 2020, Plaintiff filed this breach of contract action against Defendant Universal Music Publishing Group Inc. (UMPG) and Jody Gerson. The operative fourth amended complaint (4AC) claims two causes of action for: 1) breach of contract, and 2) common count for services rendered.
Generally, Plaintiff alleges that he owned, operated, and produced music for a Seattle based internet recording service company, Five Guys with Laptops (FGWL). In April 2016, Plaintiff’s agent negotiated an agreement with UMPG. According to Plaintiff, UMPG agreed to acquire all FGWL assets including recording equipment, studio leases, music licenses, copyrights and personal services contracts of several musicians and producers. The parties modified the contract so that UMPG would correct each prior recordings metadata by replacing various pseudonyms and stage names with Miller’s real name and not interfere with Miller’s copyright publishing rights in the future. UMPG claimed to have lost the original modified documents. UMPG later denied that a valid modification ever existed and that Plaintiff made any of the recordings. Thus, Plaintiff alleges that UMPG has not paid Miller for his work and none of Plaintiffs' metadata has been corrected. UMPG also blocked Plaintiff’s accounts with two music royalties’ distribution companies. Plaintiff claims that he has a copyright interest in over 1,254 recordings (including such hit songs as Don’t Worry be Happy by Bobby McFerrin [p. 205], Happy by Pharrell Williams [p. 70], and I’m So Fancy by Iggy Azalea [p. 72].)
On July 27, 2022, UMPI filed the instant demurrer against the 4AC. Plaintiff filed a response, arguing for leave to amend to file a fifth amended complaint.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)
Analysis
The 4AC includes allegations demonstrating that UMPG is not a party to the alleged contract. The 4AC alleges that “Universal Music Publishing Group” is a large multinational music publishing and recording company, which includes multiple record and publishing labels. (4AC, “Parties” at p. 5.) Universal Music Group is the parent company of UMPG. (Id., at p. 6.) Plaintiff also refers to UPMP and UMG Doe, though these allegations are less clear. (Id., at p. 7.) In the 4AC, Plaintiff states that “in order to determine the correct identities of Defendants [he] will also serve Defendant with a request for production of documents.” (4AC, at 7.) In addition, on June 27, 2022, Plaintiff filed an amendment to the complaint substituting “UMPG Defendant Doe” for “Universal Music Publishing Group” in the 4AC. (6/27/22 Amend. Cmplt.)
According the 4AC, in April 2016, Plaintiff’s unnamed agent negotiated an agreement where UMPG/UMPG Doe agreed to acquire all 5GWL assets, amongst other terms. (See 4AC, First Cause of Action, at p. 9.) These entities appear distinct from Defendant UMPG. Plaintiff further argues that UMPG is a holding company, is a “part of UMPG,” and that “a yet unnamed Doe Defendant is responsible for publication and payments for Plaintiffs claimed 1,254 electronic recordings including the 42 recordings offered as selections for forensic analysis.” Plaintiff further acknowledges that UMPG is not the “SOLE” defendant. Plaintiff requests that the court sustain the demurrer with leave so that he may first conduct discovery on which entity he contracted with and should be named as the correct defendant. In opposition, Defendant contends that they responded to the identical discovery (Request for Production, Set One) on August 1, 2022. (Reply Gutierrez Decl., ¶ 3, Exh. B.)
Given that this case has been pending for two almost years, Plaintiff not only had an opportunity to conduct such discovery, but appears to have conducted this discovery with responses served on August 1, 2022. Moreover, the 4AC alleges facts that show UMPG is not a party to the contract. Plaintiff only alleges that UMPG and/or an unnamed doe is the correct party. Plaintiff makes allegations regarding Universal Music Publishing, but does not provide charging allegations beyond being “a part” of UMPG. There are no facts with respect to defendant Gerson.
Accordingly, UMPI’s demurrer is SUSTAINED without leave to amend. Plaintiff has had multiple opportunities to properly allege his causes of action and to conduct discovery regarding unknown parties. Despite being granted prior leave to amend, Plaintiff admits that he still has not named the correct parties or states a valid cause of action.
Request for Sanctions
On July 13, 2022, Plaintiff filed an ex parte application for additional time to file an amended complaint. In denying the application on July 14, 2022, the Court concluded that the filing of that ex parte application was frivolous and potentially in bad faith. Therefore, the Court set an OSC re sanctions hearing pursuant to Code of Civil Procedure 128.5.
The evidence before the Court is that the ex parte application was filed in bad faith and was utterly frivolous. Previously, the Court had sustained Defendant’s demurrer to the Second Amended Complaint on May 18, 2022, and given Plaintiff until June 7, 2022, to file an amended complaint. Plaintiff failed to do so, but on June 20, 2022, Plaintiff filed his Third Amended Complaint. The Court struck that complaint on June 21, 2022, but gave Plaintiff until June 27, 2022, to file his 4AC. That complaint was filed on June 27, 2022. Despite this filing, Plaintiff sought ex parte relief from the Court on July 13, 2022, for additional time to file an amended complaint. Since that was accomplished on June 27, 2022, the ex parte application was frivolous and made in bad faith. Plaintiff’s October 14, 2022, reply to the request for fees further justifies sanctions in this matter. As an initial matter, any opposition to the imposition of fees was due by August 12, 2022. Moreover, despite what Plaintiff represents in his papers, there was no conference call with the parties and the Court on June 28, 2022, or a June 6, 2022 ex parte hearing.
Thus, the Court find sanctions warranted under Code of Civil Procedure § 128.5, and imposes sanctions against Plaintiff and payable to Defendant in the amount of $3,500. The Court concludes that these are the reasonable attorney’s fees spent in opposing the July 11, 2022, and July 13, 2022, ex parte applications, and appearing at the July 14, 2022, hearing. Sanctions are payable within 60 days.
Defendant to give notice and prepare a proposed judgment.