United States District Court, S.D. California
ORDER ON MOTIONS TO DISMISS (ECF NOS. 70, 72, 73, 75,
Janis L. Sammartino United States District Judge
before the Court are Motions to Dismiss and Motions to Strike
filed by various Defendants. (ECF Nos. 70, 72, 73, 75, 79,
116.) Also before the Court are Plaintiff Eric
Gottesman's ("GMAN") responses in opposition
to, (ECF Nos. 141, 142, 143, 144, 145), and Defendants'
replies in support of, (ECF Nos. 152, 154, 155), these
various motions. After considering the parties' arguments
and the law, the Court rules as follows.
is a professional artist who has extensive experience in,
among other things, freehand airbrush, hand-drawn and digital
illustration, graphic design, and photo retouching. (First
Am. Compl. ("FAC") ¶ 16, ECF No. 38.)
Plaintiff has produced original works of art and designs for
a number of clients, including, for example, Carlos Santana,
the Jimi Hendrix Estate, Tom Petty and the Heartbreakers, and
Metallica. (Id. ¶ 15.) This case concerns
Plaintiffs work for Defendant Carlos Santana.
Plaintiff spent some time working at a Fullerton-based
company where he created graphics for bands, celebrities,
casinos, and the like, (id. ¶ 21), Santana
contacted and engaged Plaintiff as an independent contractor
to create the art and design for merchandizing in connection
with an event, (id. ¶ 30). Santana was so
impressed with his work that he invited Plaintiff to his home
and said he believed Plaintiff was the artist that had the
ability to "turn SANTANA into a brand."
(Id. ¶ 33.) The parties entered into a business
relationship where Plaintiff submitted original works to
Santana and his management company for use in building the
Santana brand. (Id. ¶ 176.) Plaintiff retained
ownership in these works, but each submitted work contained
limited copy and distribution rights. (Id.)
filed a 103-page, 473-paragraph FAC against dozens of
Defendants associated with Defendant Carlos Santana. (ECF No.
38.) The gravamen of Plaintiffs claims is that these
Defendants infringed his copyrights in several of his works
by exceeding the scope of the licenses in those works.
(See generally FAC.) Thus, Plaintiff brings claims
for: (1) copyright infringement; (2) contributory copyright
infringement; (3) vicarious copyright infringement; (4)
inducing copyright infringement; (5) breach of contract; (6)
intentional misrepresentation; (7) negligent
misrepresentation; (8) breach of /// implied
covenant of good faith and fair dealing; (9) unfair business
practices; and (10) constructive trust. (Id.)
Rule of Civil Procedure 12(b)(6) permits a party to raise by
motion the defense that the complaint "fail[s] to state
a claim upon which relief can be granted, " generally
referred to as a motion to dismiss. The Court evaluates
whether a complaint states a cognizable legal theory and
sufficient facts in light of Federal Rule of Civil Procedure
8(a), which requires a "short and plain statement of the
claim showing that the pleader is entitled to relief."
Although Rule 8 "does not require 'detailed factual
allegations, ' ... it [does] demand more than an
accusation." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Ail. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). In other words, "a plaintiffs
obligation to provide the 'grounds' of his
'entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555 (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). A complaint will not suffice "if it tenders
'naked assertion[s]' devoid of'further factual
enhancement.'" Iqbal, 556 U.S. at 677
(citing Twombly, 550 U.S. at 557).
order to survive a motion to dismiss, "a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Id. (quoting Twombly, 550
U.S. at 570); see also Fed. R Civ. P. 12(b)(6). A
claim is facially plausible when the facts pled "allow
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Iqbal,
556 U.S. at 677 (citing Twombly, 550 U.S. at 556).
That is not to say that the claim must be probable, but there
must be "more than a sheer possibility that a defendant
has acted unlawfully." Id. Facts
'"merely consistent with' a defendant's
liability" fall short of a plausible entitlement to
relief. Id. (quoting Twombly, 550 U.S. at
557). Further, the Court need not accept as true "legal
conclusions" contained in the complaint. Id.
This review requires context-specific analysis involving the
Court's "judicial experience and common sense."
Id. at 678 (citation omitted). "[W]here the
well- pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged-but it has not 'show[n]'-'that the
pleader is entitled to relief.'" Id.
complaint does not survive 12(b)(6) analysis, the Court will
grant leave to amend unless it determines that no modified
contention "consistent with the challenged pleading . .
. [will] cure the deficiency." DeSoto v. Yellow
Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992)
(quoting Schriber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).
the variety of motions considered in this order, the Court
organizes its analysis by each motion.
Motion to Dismiss-Breach of Contract (ECF
Linton Hall and Service First Specialty Food and Marketing,
LLC move to dismiss Plaintiffs cause of action against them
for breach of contract. (See generally
"Contract MTD, " ECF No. 72-1.) Specifically,
Defendants argue that Plaintiffs allegations are insufficient
to state a plausible breach of contract claim. (Id.)
elements of a cause of action for breach of contract are (1)
the existence of the contract, (2) plaintiffs performance or
excuse for nonperformance, (3) defendant's breach, and
(4) the resulting damages to the plaintiff." Oasis
W. Realty, LLC v. Goldman, 51 Cal.4th 811, 821 (2011)
(citing Reichert v. Gen. Ins. Co., 68 Cal. 2d 822,
Court agrees with Defendants. Plaintiffs allegations
supporting its breach of contract cause of action are the
429. GMAN repeats and incorporates by this reference each and
every allegation set forth in paragraphs 1 through 428,
430. GMAN entered into a verbal contract with SERVICE FIRST
which required this defendant to pay GMAN for the license to
limited use of the salsa labels and associated designs, time
taken to create the works, time to modify same, and time to
coordinate production and printing of the labels at
GMAN's normal and customary rates.
431. HALL is personally liable for SERVICE FIRST breach of
contract as the alter-ego of SERVICE FIRST for the reasons
already alleged above.
432. Despite GMAN's demands for payment, these defendants
breached the parties' contract by continuing to ...