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Joel Silver; Silver Pictures, Inc.; and Silver Slate, LLC v. the Goldman Sachs Group

May 19, 2011

JOEL SILVER; SILVER PICTURES, INC.; AND SILVER SLATE, LLC, PLAINTIFFS,
v.
THE GOLDMAN SACHS GROUP, INC.; ALLIANCE FILMS INC.; AND MOMENTUM PICTURES USA, INC., DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER

On May 10, 2011, Defendants The Goldman Sachs Group, Inc., Alliance Films Inc. and Momentum Pictures USA, Inc.'s Motion to Dismiss the First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) came on for regular calendar before this Court [23]. The Court, having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:

The Court hereby DENIES Defendants' Motion to Dismiss the First Amended Complaint.

In a Rule 12(b)(6) motion to dismiss, the Court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the non-moving party. Klarfeld v. United States, 944 F.2d 583, 585 (9th Cir. 1991). A dismissal can be based on the lack of cognizable legal theory or the lack of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). However, a party need not state the legal basis for his claim, only the facts underlying it. McCalden v. California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990).

Federal Rule of Civil Procedure 9(b) demands that, when averments of fraud are made, the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct, such that they can defend against the charge and not just deny having done anything wrong. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). As such, averments of fraud must be accompanied by "the who, what, when, where, and how" of the misconduct charged. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997).

Defendants The Goldman Sachs Group, Inc., Alliance Films Inc. and Momentum Pictures USA, Inc. (collectively, "Defendants") move to dismiss Plaintiffs Joel Silver, Silver Pictures, Inc., and Silver Slate, LLC's (collectively, "Plaintiffs") First Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6).

Specifically, Defendants argue that Plaintiffs have failed to allege plausible claims with regard to the seven causes of action asserted by Plaintiffs in the First Amended Complaint: (1) Breach of Written Contract against Defendants Alliance Films Inc. ("Alliance") and Momentum Pictures USA, Inc. ("Momentum"); (2) Breach of Oral Contract against Defendant The Goldman Sachs Group, Inc. ("Goldman"); (3) Breach of Oral Contracts against Defendant Goldman; (4) Breach of Fee Agreement against Defendants Goldman and Alliance; (5) Quantum Meruit against Defendants Goldman and Alliance; (6) Promissory Fraud against Defendants Goldman and Alliance; and (7) Negligent Misrepresentation against Defendants Goldman and Alliance.

As a preliminary matter, the Court hereby DENIES Defendants' Request for Judicial Notice. Fed. R. Evid. 201.

A. Defendants' Motion To Dismiss As To The First Cause Of Action For Breach Of Written Contract

The Court DENIES Defendants' Motion to Dismiss as to Plaintiffs' claims for Breach of Written Contract against Defendants Alliance and Momentum.

To withstand a Motion to Dismiss under Rule 12(b)(6), Plaintiffs need only plead the underlying facts to support a claim upon which relief may be granted. See McCalden v. California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990). In California, in order to state a claim for breach of contract a plaintiff must plead: (1) the existence of the contract; (2) performance by the plaintiff or excuse for nonperformance; (3) breach by the defendant; and (4) damages. First Commercial Mortgage Co. v. Reece, 89 Cal. App. 4th 731, 745 (2001).

The Court finds that Plaintiffs have plead sufficient facts here to state a claim for Breach of Written Contract against Defendants Alliance and Momentum. Plaintiffs adequately set forth facts alleging the existence of a contract between Plaintiffs Silver Pictures, Inc. ("Silver Pictures") and Silver Slate, LLC ("Silver Slate") and these two Defendants, the Written Agreement, that Plaintiffs Silver Pictures and Silver Slate performed said Agreement, that Defendants Alliance and Momentum breached this Agreement due to the failure to use "commercially reasonable efforts" to arrange for the funds necessary to make the payment due pursuant to this Agreement, and that Plaintiffs have suffered damages resulting from this breach. See id.

As the Court must presume all factual allegations to be true and draw all reasonable inferences in favor of the non-moving party, Klarfeld, 944 F.2d at 585, the Court finds that Plaintiffs have pled sufficient ...


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