Judge: Teresa A. Beaudet, Case: 23STCV03826, Date: 2024-02-07 Tentative Ruling

Case Number: 23STCV03826    Hearing Date: February 7, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On February 22, 2023, Plaintiff Cindy Rosen (“Plaintiff”) filed this action against Defendants Jay Bloom (“Bloom”), Murder Inc., LLC, The Mafia Collection, LLC, Julien Entertainment.Com, Inc. (“Julien Entertainment”) and Julien’s Auction House, LLC. The original Complaint alleged causes of action for (1) conversion, (2) unjust enrichment, (3) intentional misrepresentation, (4) financial elder abuse, (5) intentional infliction of emotional distress, and (6) unfair competition.

            Julien Entertainment demurred to the second and sixth causes of action of the original Complaint. On July 19, 2023, the Court issued an Order overruling Julien Entertainment’s demurrer to the second cause of action of the Complaint, and sustaining Julien Entertainment’s demurrer to the sixth cause of action of the Complaint, with leave to amend.

On August 24, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1) conversion, (2) unjust enrichment, (3) intentional misrepresentation, (4) financial elder abuse, (5) intentional infliction of emotional distress,

(6) unfair competition, and (7) negligence.

In the FAC, Plaintiff alleges that she is the “granddaughter of famous Los Angeles and Las Vegas personality, Benjamin Siegel.” (FAC, ¶10.) Plaintiff owns and is the beneficiary of a collection of personal items (the “Memorabilia”) once belonging to Benjamin Siegel, composed of various items including, but not limited to photos, clothing, home decor, home movies, and handwritten letters. (FAC, ¶ 10.)

The Memorabilia was on loan to Bloom for use in his show in Las Vegas, Nevada, called “The Mob Experience,” a paid admission show which displayed, among other things, actual artifacts and belongings of famous mobsters, including the Memorabilia. (FAC, ¶ 11.) “The Mob Experience” ultimately filed for bankruptcy in 2011, but Bloom continued to possess the Memorabilia. (FAC, ¶ 12.) Despite repeated requests, Bloom refused to return the Memorabilia, and ultimately “induced Plaintiff to allow him to purchase the items from her.” (FAC, ¶ 13.) To this end, on August 24, 2020, Plaintiff engaged in negotiations via text message and phone calls with Bloom to effectuate the sale of the Memorabilia. (FAC, ¶ 13.)

Plaintiff and Bloom reached a tentative agreement of $60,000 in consideration for the

Memorabilia. (FAC, ¶ 14.) On December 4, 2021, due to significant delays, Plaintiff and Bloom renegotiated the consideration for the Memorabilia, agreeing to increase it to $125,000. (FAC, ¶ 16.) In addition, on March 10, 2022, “Defendant asked Plaintiff via text, ‘What is a fair number at which you would feel that I did the right thing to close this out?’ Plaintiff responded by asking [Bloom] to confirm that $130,000…would be paid no later than March 17, 2022, to which [Bloom] agreed and confirmed.” (FAC, ¶ 20.) 

 Bloom continued to represent to Plaintiff that she would receive payment for the Memorabilia still in Bloom’s possession, but no payment was ever received. (FAC, ¶ 23.) In August 2022, Plaintiff became aware that Julien Entertainment was offering the Memorabilia for auction on behalf of Bloom. (FAC, ¶ 24.) On August 24, 2022, Plaintiff’s lawyer sent a cease-and-desist letter to Julien Entertainment “informing them that [Bloom] did not have ownership of the Memorabilia and putting [Julien Entertainment] on notice they did not have a right to auction the Memorabilia.” (FAC, ¶ 25.) On August 28, 2022, after receiving and acknowledging receipt of the cease-and-desist letter, Julien Entertainment opened auctioning for the Memorabilia, all of which was sold at the auction. (FAC, ¶ 26.)

Julien Entertainment now demurs to the sixth and seventh causes of action of the FAC. Julien Entertainment also moves to strike portions of the FAC. Plaintiff opposes both. 

Motion to Strike[1]

A.    Legal Standard

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a 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., section 436.) 

B.     Untimely Filing of the FAC

First, the Court’s July 19, 2023 Order on Julien Entertainment’s demurrer pertaining to the original Complaint provides, inter alia, that “[t]he Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 30 days of this Order, Julien Entertainment is ordered to file and serve its answer within 40 days of the date of this Order.” (July 19, 2023 Order, p. 6.) Julien Entertainment notes that the FAC was filed on August 24, 2023, more than 30 days after July 19, 2023.[2]

Julien Entertainment asserts that “Plaintiff’s failure to file an amended complaint within the time specified subjects her entire action to dismissal in the Court’s discretion under CCP § 581, subdivision (f)(2).” (Mot. at p. 4:20-22.) Code of Civil Procedure section 581, subdivision (f)(2) provides that “[t]he court may dismiss the complaint as to that defendant when:…(2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” In the opposition, Plaintiff contends that “[h]ere, the breakdown in communication between both parties’ respective counsel caused unnecessary delay in the filing of the FAC. Accordingly, the FAC must be permitted in its entirety.” (Opp’n at p. 6:2-4.)[3]

The Court also notes that Julien Entertainment’s notice of motion does not state that Julien Entertainment moves for dismissal of the FAC, to the extent that is what Julien Entertainment seeks. The notice of motion states, inter alia, that “[t]his Motion is made on the ground that, under California Code of Civil Procedure §§ 436(a) and 436(b), the sixth and seventh causes of action contains irrelevant, false, or improper matters and/or is not drawn in conformity with the laws of this State and should therefore be stricken.” (Notice of Mot. at p. 1:14-17.)[4] The Court notes that “[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (Cal. Rules of Court, rule 3.1110, subd. (a).) The Court thus does not find that dismissal of the entire FAC is warranted here, but admonishes Plaintiff that any¿future filings must comply with the Court’s orders. 

C.     Sixth Cause of Action and Accompanying Prayer for Relief

Next, Julien Entertainment asserts that “[t]he Court should strike the FAC’s sixth cause of action, paragraph 66 of the FAC, and the accompanying prayer for relief for the sixth cause of action.” (Mot. at p. 5:7-9.) Julien Entertainment asserts that “[o]n July 19, 2023, the Court sustained Julien’s demurrer to the sixth cause of action with leave to amend. Plaintiff failed to amend this claim, yet still included it as part of the FAC. As such the Court should strike the sixth cause of action for unfair competition as it remains legally deficient.” (Mot. at p. 5:10-13.)

The Court notes that the asserted legal deficiency of the sixth cause of action is addressed below in connection with Julien Entertainment’s demurrer. As set forth below, the Court sustains Julien Entertainment’s demurrer to the sixth cause of action of the FAC, without leave to amend. The Court thus denies Julien Entertainment’s motion to strike the sixth cause of action, paragraph 66 of the sixth cause of action, and the prayer for relief on the sixth cause of action as moot.

D.    Seventh Cause of Action for Negligence

Julien Entertainment also asserts that “Plaintiff’s new claim for negligence contained in the seventh cause of action was filed without obtaining leave of Court and must be stricken.” (Mot. at p. 6:3-5.) Julien Entertainment asserts that accordingly, “the new seventh cause of action for negligence amounts to improper matter under CCP § 436.” (Mot. at p. 6:19-20.) 

Plaintiff’s original Complaint did not allege a cause of action for negligence. As noted by Plaintiff, “[f]ollowing an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 (internal citation omitted).) Plaintiff asserts that here, “the Seventh Cause of Action was added in support of the Sixth Cause of Action…It was clearly in the scope of the order to allow Plaintiff to plead a claim for negligence, which is in nature perfectly in line with its other claims.” (Opp’n at p. 5:9-12.) But as noted by Julien Entertainment, the Court’s July 19, 2023 Order granted Plaintiff leave to amend only as to Plaintiff’s unfair competition cause of action.  

The Court does not find that Plaintiff has shown that the new negligence cause of action

is within the scope of the July 19, 2023 Order granting leave to amend. Based on the foregoing, the Court grants Julien Entertainment’s motion to strike the seventh cause of action of the FAC.

Demurrer

A.    Legal Standard

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) 

B.     Sixth Cause of Action for Unfair Competition

Business and Professions Code section 17200, et seq. (the “Unfair Competition Law” or “UCL”) prohibits fraudulent, unlawful and unfair business practices. “By proscribing ‘any unlawful’ business act or practice . . . , the UCL ‘borrows’ rules set out in other laws and makes violations of those rules independently actionable.” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.) A “violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.” (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) However, even beyond violations of another law, “[u]nder the broad scope of the UCL, [t]he statutory language referring to ‘any unlawful, unfair or fraudulent’ practice (italics added) makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law. . . . [T]he Legislature . . . intended by this sweeping language to permit tribunals to enjoin on-going wrongful business conduct in whatever context such activity might occur.” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 678 (internal quotations and citations omitted).)

In the demurrer, Julien Entertainment asserts that “Julien’s demurrer to the sixth cause of action was sustained with leave to amend on July 19, 2023, and Plaintiff failed to amend.” (Demurrer at p. 4:12-13.) In the opposition, Plaintiff does not appear to dispute that the FAC’s sixth cause of action for unfair competition was not amended following the Court’s July 19, 2023 Order.  Julien Entertainment asserts that accordingly, “the FAC still fails to allege with any certainty, let alone with ‘reasonable particularity,’ any facts that would support a conclusion of unfair or fraudulent business conduct by Julien’s.” (Demurrer at p. 5:4-6.)

In Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 618-619, cited again by Julien Entertainment, the Court of Appeal noted that “[a]ppellant’s fourth cause of action alleges: ‘California Business and Professions Code Sections 17000, et seq., and 17200, et seq., states [sic] that unfair competition shall mean and include unlawful, unfair or fraudulent business practices. [P] . . . Defendants breached this statute by refusing to sell [the JPM products] to plaintiff, for the purpose of ruining and interfering with his beauty and supply business, with the effect of misleading plaintiff’s customers.’” The Court of Appeal in Khoury found that “[a] plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. Demurrer was properly sustained as to this cause of action because the second amended complaint identifies no particular section of the statutory scheme which was violated and fails to describe with any reasonable particularity the facts supporting violation.” (Id. at p. 619 [internal citations omitted].)

In the sixth cause of action for unfair competition, Plaintiff again alleges that “Defendants’ acts of offering the Memorabilia for sale and auction and retention of the proceeds of that sale constituted an unlawful, unfair, and fraudulent business practice.” (FAC, ¶ 63.) Plaintiff further alleges that “[Bloom’s] representation of himself as the rightful owner of the Memorabilia and JULIEN’S auctioning of the Memorabilia despite being on notice that it would be unlawful to do so, were deceitful and this conduct was undertaken with the intention of deceiving the public as to the true ownership of the Memorabilia.” (FAC, ¶ 65.)

As set forth above, the Khoury Court found, in reference to the appellant’s cause of action pertaining to California Business and Professions Code Sections 17000, et seq., that “[d]emurrer was properly sustained as to this cause of action because the second amended complaint identifies no particular section of the statutory scheme which was violated and fails to describe with any reasonable particularity the facts supporting violation.” (Id. at p. 619.) Here, Plaintiff’s sixth cause of action still does not identify any “particular section of the statutory scheme” that was allegedly violated. (Khoury v. Maly's of California, Inc., supra, at page 619.)

In addition, Plaintiff still does not address the Khoury case in the opposition.[5]

Based on the foregoing, the Court sustains the demurrer to the sixth cause of action, without leave to amend. As discussed, the Court sustained Julien Entertainment’s demurrer to this cause of action in the original Complaint. In addition, Plaintiff has not proffered any basis for any amendment to cure the foregoing deficiencies. ¿¿¿

C.     Seventh Cause of Action for Negligence

Julien Entertainment also demurs to the seventh cause of action for negligence. As set forth above, the Court grants Julien Entertainment’s motion to strike the seventh cause of action. Thus, the Court finds that Julien Entertainment’s demurrer to the seventh cause of action is moot.

Conclusion

Based on the foregoing, Julien Entertainment’s motion to strike the seventh cause of action is granted. The remainder of Julien Entertainment’s motion to strike is denied as moot.

In addition, the Court sustains Julien Entertainment’s demurrer to the sixth cause of action, without leave to amend. Julien Entertainment’s demurrer to the seventh cause of action is overruled as moot.

The Court orders Julien Entertainment to file and serve an answer to the FAC within 10 days of the date of this Order.¿¿ 

Lastly, the Court notes that in its reply in support of the demurrer, Julien Entertainment asserts that “Plaintiff’s counsel fails to inform the Court that his client passed away sometime in October or November 2023…Plaintiff’s counsel has not shown that an estate has been established in Nevada, where Plaintiff lived, or, if an estate has been established, that Plaintiff’s counsel has been engaged by the estate to pursue this lawsuit.” (Reply at p. 1:5-8.) The Court sets a status conference regarding these issues for _____________, 2024 at 10:00 a.m. in Dept. 50. The Court orders Plaintiff to file and serve a status report 5 days before such status conference.

Julien Entertainment is ordered to give notice of this Order.¿ 

DATED:  February 7, 2024                            ________________________________

Hon. Teresa A. Beaudet