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Maxwell v. Dolezal

California Court of Appeals, Second District, Seventh Division

November 4, 2014

JORDAN MAXWELL, Plaintiff and Appellant,
v.
JOSEF DOLEZAL, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, No. LC099418 Russell S. Kussman , Judge, and John P. Farrell, Judges.

Page 94

COUNSEL

Law Offices of David R. Greifinger, David R. Greifinger; and Kenneth Lipton for Plaintiff and Appellant.

Law Offices of Carolyn C. Phillips, Carolyn C. Phillips; Ferguson Case Orr Paterson, Wendy C. Lascher and John A. Hribar for Defendant and Respondent.

OPINION

ZELON, J.

Jordan Maxwell sued Josef Dolezal after their business relationship deteriorated. The trial court dismissed Maxwell’s action after sustaining Dolezal’s demurrer to all of Maxwell’s claims without leave to amend. On appeal, we conclude that Maxwell properly stated a claim for breach of

Page 95

contract and that the demurrer to that cause of action was erroneously sustained. We reverse the judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2013, Maxwell, in propria persona, filed an action alleging that Dolezal had invaded his privacy by commercial appropriation of his name, image, and website. Maxwell alleged that Dolezal had used his photograph and his website, JordanMaxwell.com, without Maxwell’s authorization or consent and for the purposes of advertising and/or soliciting purchases of merchandise. Maxwell alleged that, as a result, he had suffered injury to his business and lost income as a celebrity; he sought damages and an injunction preventing Dolezal from using his website and likeness for advertising or soliciting purchase or rental of videos.

Maxwell subsequently retained an attorney who filed a First Amended Complaint on his behalf on April 15, 2013. In the First Amended Complaint, Maxwell continued to assert a cause of action for invasion of privacy and added claims for breach of contract, the imposition of a constructive trust, negligence, interference with economic relations, interference with prospective economic advantage, and fraud.

Dolezal demurred to the First Amended Complaint. Specifically, Dolezal argued that each cause of action failed to allege sufficient acts to state a claim and was uncertain; with respect to the breach of contract claim, Dolezal also argued that it could not be ascertained from the pleading whether the contract was written, oral, or implied by conduct.

The trial court, Judge Russell Kussman, held a hearing on Dolezal’s demurrer and motion to strike. No court reporter was present. The court’s minute order from the hearing reads, “The Court reads and considers the demurrer and motion papers, all oppositions and replies. The demurrer is ...


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