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Gottesman v. Santana

United States District Court, S.D. California

July 6, 2017


          ORDER ON MOTIONS TO DISMISS (ECF NOS. 70, 72, 73, 75, 79, 116)

          Hon. Janis L. Sammartino United States District Judge

         Presently before the Court are Motions to Dismiss and Motions to Strike filed by various Defendants.[1] (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.


         Plaintiff 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.

         After 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.)

         Plaintiff 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.)


         Federal 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 unadorned, the-defendant-unlawfully-harmed-me 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).

         In 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.

         Where a 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)).


         Given the variety of motions considered in this order, the Court organizes its analysis by each motion.

         I. Motion to Dismiss-Breach of Contract (ECF No. 72)

         Defendants 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.)

         "[T]he 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, 830 (1968)).

         The Court agrees with Defendants. Plaintiffs allegations supporting its breach of contract cause of action are the following:

429. GMAN repeats and incorporates by this reference each and every allegation set forth in paragraphs 1 through 428, inclusive.
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 ...

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