CONEOBMED CO ORIGINAL FILEDPY Superior Court of California County of An wales OCT 09 2015 Sherri B. Carter. Executive Of?cer/Clerk By: Christopher Ruiz, Deputy FREEDMAN TAITELMAN, LLP Bryan J. Freedman (State Bar No. 151990) E-mail: Brian E. Tumauer (State Bar No. 214768) E-mail: Sean M. Hardy (State Bar No. 266466) E-mail: 1901 Avenue of the Stars, Suite 500 Los Angeles, California 90067 Telephone: (310) 201-0005 Facsimile: (310) 201?0045 Attorneys for Defendants, UNITED TALENT AGENCY, LLC, GREGORY CAVIC and GREGORY MCKNIGHT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES Case No. SC123994 [Assigned to Hon. Lisa Hart Cole] CREATIVE ARTISTS AGENCY, LLC, a Delaware limited liability company Unlimited Civil Case Amount in excess of $25,000 Plaintiff, vs. UNITED TALENT AGENCY, LLC, a Delaware limited liability compan GREGORY CAVIC, an individua GREGORY MCKNIGHT, an individual; and DOES 1 to 50, inclusive, NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT OF DEFENDANTS GREGORY CAVIC AND GREGORY MEMORANDUM OF POINTS AND Defendants AUTHORITIES IN SUPPORT THEREOF Date: May 4, 2016 Time: 8:30 am. Dept: 0 RES ID: 151009075105 Action ?led: April 2, 2015 Trial Date: None set 1 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 4, 2016, at 8:30 or as soon thereafter as the matter may be heard in Department of the above?entitled court located at 1725 Main Street, Santa Monica, California, 90401, Defendants Gregory Cavic and Gregory McKnight (collectively, ?Defendants?) will, and hereby do, move pursuant to California Code of Civil Procedure sections 435 and 436 to strike the following matters from the First Amended Complaint ?led by Plaintiff Creative Artists Agency, LLC I. The entirety of Paragraph 1 of the FAC (1i 1, 1:6-11) which states as follows: ?This case is about a lawless, midnight raid that UTA and its co-conspirators launched against CAA in a desperate attempt to steal clients and employees. Months in the making, this illegal and unethical conspiracy has resulted in a number of agents who were under contract to CAA to brazenly and abruptly breach their contractual obligations to CAA and to intentionally and deliberately interfere with existing and prospective economic relationships with its clients. In the process, UTA and its co-conspirators have tortiously in?icted damage upon 2. The entirety of Paragraph 2 of the FAC 2, 1:12-17) which states as follows: ?Acting in concert with one another and with full awareness of the indisputable illegality of their conduct, Cavic and McKnight, while still on payroll and while still accepting generous compensation and bene?ts from CAA, worked clandestiner with each other and UTA to induce a number of CAA employees to abruptly terminate their employment with CAA and to join UTA. At least three of the employees who UTA, Cavic, and McKnight induced to leave CAA had entered into enforceable, ongoing contracts with 3. The entirety of Paragraph 3 of the AC 3, 1:18-25) which states as follows: is also informed and believes that Cavic and McKnight, in direct violation of their duties to CAA, solicited existing and prospective CAA clients on behalf of UTA while still employed by delayed meetings and deals with existing and potential CAA clients in order to make it more likely that they would complete such deals after leaving CAA and becoming partners at UTA with the intent to divert as much of business to UTA as possible; encourages existing and prospective CAA clients to avoid exclusive relationships with CAA and/or to alter their existing relationships with the agency; and solicited and encouraged other CAA employees to do the same so that signi?cant economic opportunities could more easilv be diverted to 2 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT 5. follows: follows: 10. The entirety of Paragraph 4 of the PAC (11 4, 1:26-28) which states as follows: ?Defendants should not be permitted to pro?t from their illegal and unethical activities. Consequently, CAA seeks damages, injunctive relief, and restitution as a result of Defendants? willful, wanton, and malicious corporate raiding.? The following portion of Paragraph 48 of the FAC (1148, 8:14) which states as . .unlawful The entirety of Paragraph 55 of the FAC (11 55, 9:16-19) which states as follows: ?Defendants knowingly and willfully conspired and agreed amongst themselves to deliberately interfere with contractual relationships and furthered the conspiracy by cooperating clandestiner amongst themselves, by covertly aiding and encouraging one another, and by ratifying and adopting the wrongful acts of one another.? The following portion of Paragraph 56 of the PAC (fl 56, 9:27) which states as ..unlawful The entirety of Paragraph 57 of the FAC (1157, 10: 4-7) which states as follows: ?As a direct and proximate result of Defendants? tortious conduct, CAA has been forced to protect its interests by bringing actions against third parties, including Heyman, Lesak, and Nuciforo, and has incurred, and will continue to incur, attorneys? fees and other expenditures therein.? The entirety of Paragraph 58 of the FAC 58, 10: 8-11) which states as follows: ?Defendants performed the foregoing wrong?il acts, conduct, and omissions intentionally, fraudulently, maliciously, and oppressively in willful and conscious disregard of rights and with the intent and design to damage CAA. By reason thereof, CAA is entitled to recover punitive damages in an amount to be determined at the time of trial.? The entirety of Paragraph 69 of the FAC (Tl 69, 12: 8-11) which states as follows: ?As a direct and proximate result of Defendants? tortious conduct, CAA has been forced to protect its interests by bringing actions against third parties, including Heyman, Lesak, and Nuciforo, and has incurred, and will continue to incur, attorneys? fees and other expenditures therein.? 3 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT 11. 12. follows: 13. as follows: 14. 15. follows: 16. The entirety of Paragraph 70 of the FAC 70, 12: 12-15) which states as follows: ?Defendants performed the foregoing wrongful acts, conduct, and omissions intentionally, fraudulently, maliciously, and oppressively in willful and conscious disregard of rights and with the intent and design to damage CAA. By reason thereof, CAA is entitled to recover punitive damages in an amount to be determined at the time of trial.? The following portion of Paragraph 78 of the FAC 78, 13:25-27) which states as ?Defendants knowingly and willfully conspired and agreed amongst themselves to commit the foregoing acts and to deliberately interfere with prospective economic relationship with its clients and with Nuciforo, Lesak, and Heyman.? The following portion of Paragraph 79 of the FAC 79, 13:28, 14:1-2) which states ?Defendants furthered the conspiracy by cooperating amongst themselves, by lending aid and encouragement to one another, and by ratifying and adopting the wrongful acts of one another.? The entirety of Paragraph 80 of the FAC 80, 14:15-18) which states as follows: ?Defendants performed the foregoing wronng acts, conduct, and omissions intentionally, fraudulently, maliciously, and oppressively in willful and conscious disregard of rights and with the intent and design to damage CAA. By reason thereof, CAA is entitled to recover punitive damages in an amount to be determined at the time of trial.? The following portion of Paragraph 81 of the FAC 81, 14:19) which states as . .unlawful conduct. . The entirety of Paragraph 82 of the FAC 82, 14:24-27) which states as follows: ?As a direct and proximate result of Defendants? tortious conduct, CAA has been forced to protect its interests by bringing actions against third parties, including Heyman, Lesak, 4 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT 17. follows: 18. 19. 20. 21. 22. and Nuciforo, and has incurred, and will continue to incur, attorneysI fees and other expenditures therein.? The following portion of Paragraph 89 of the FAC (11 89, 16:8) which states as . .unlawful conduct. . The entirety of Paragraph 90 of the FAC 90, 16: 13?16) which states as follows: ?As a direct and proximate result of Cavic and McKnight?s tortious conduct, CAA has been forced to protect its interests by bringing actions against third parties, including Heyman, Lesak, and Nuciforo, and has incurred, and will continue to incur, attorneys? fees and other expenditures therein.? The entirety of Paragraph 91 of the FAC 91, 6: 17-20) which states as follows: ?Cavic and McKnight performed the foregoing wrongful acts, conduct, and omissions intentionally, fraudulently, maliciously, and oppressiver in willful and conscious disregard of rights and with the intent and design to damage CAA. By reason thereof, CAA is entitled to recover punitive damages in an amount to be determined at the time of trial.? The entirety of Paragraph 99 of the FAC 99, 18:1-4) which states as follows: ?As a direct and proximate result of Cavic and McKnight?s tortious conduct, CAA has been forced to protect its interests by bringing actions against third parties, including Heyman, Lesak, and Nuciforo, and has incurred, and will continue to incur, attorneys? fees and other expenditures therein.? The entirety of Paragraph 100 of the FAC (11 100, 16:5-8) which states as follows: ?Cavic and McKnight performed the foregoing wrongful acts, conduct, and omissions intentionally, fraudulently, maliciously, and oppressively in willful and conscious disregard of rights and with the intent and design to damage CAA. By reason thereof, CAA is entitled to recover punitive damages in an amount to be determined at the time of trial.? The following portion of Paragraph 111 of the FAC (11 111, 19:28, 20: 1?3) which states as follows: ?As a direct and proximate result of the wrongful acts substantially assisted and encouraged by Cavic, McKnight, and 5 MOTION TO STRIKE OF DEF ENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT LII-5393523. 24. follows: 25. 26. 27. 28. UTA, CAA has been forced to protect its interests by bringing actions against third parties, including Heyman, Lesak, and Nuciforo, and has incurred, and will continue to incur, attorneys? fees and other expenditures therein.? The entirety of Paragraph 112 of the PAC (11 112, 20:4-8) which states as follows: ?Cavic, McKnight, and UTA encouraged, assisted, and performed the foregoing wrongful acts, conduct, and omissions intentionally, fraudulently, maliciously, and oppressively in willful and conscious disregard of rights and with the intent and design to damage CAA. By reason thereof, CAA is entitled to recover punitive damages in an amount to be determined at the time of trial.? The following portion of Paragraph 116 of the FAC (11 116, 20:27) which states as . .unlawful conduct. . The entirety of Paragraph 117 of the PAC 117, 21 which states as follows: ?As a direct and proximate result of Cavic and McKnight?s breaches of their duty of loyalty, CAA has been forced to protect its interests by bringing actions against third parties, including Heyman, Lesak, and Nuciforo, and has incurred, and will continue to incur, attorneys? fees and other expenditures therein.? The entirety of Paragraph 118 of the PAC (11 118, 21 :8-1 1) which states as follows: ?Cavic and McKnight performed the foregoing wrong?il acts, conduct, and omissions intentionally, fraudulently, maliciously, and oppressively in willful and conscious disregard of rights and with the intent and design to damage CAA. By reason thereof, CAA is entitled to recover punitive damages in an amount to be determined at the time of trial.? The entirety of Paragraph 124 of the FAC 124, 22:10-12) which states as follows: ?As a direct and proximate result of the conspiracy, CAA has been forced to protect its interests by bringing actions against third parties, including Heyman, Lesak, and Nuciforo, and has incurred, and will continue to incur, attorneys? fees and other expenditures therein.? The entirety of Paragraph 125 of the PAC 125, 22:13-16) which states as follows: 6 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT 29. follows: 30. 31. follows: 32. follows: 33. follows: ?Cavic and McKnight performed the foregoing wrongful acts, conduct, and omissions intentionally, fraudulently, maliciously, and oppressiver in willful and conscious disregard of rights and with the intent and design to damage CAA. By reason thereof, CAA is entitled to recover punitive damages in an amount to be determined at the time of trial.? The following portion of Paragraph 135 of the FAC 135, 24:2-5) which states as ?As a direct and proximate result of the wrongful acts substantially assisted and encouraged by Cavic, McKnight, and UTA, CAA has been forced to protect its interests by bringing actions against third parties, including Heyman, Lesak, and Nuciforo, and has incurred, and will continue to incur, attorneys? fees and other expenditures therein.? The entirety of Paragraph 136 of the FAC (11 136, 24: 6-10) which states as follows: ?Defendants performed the foregoing wrongful acts, conduct, and omissions intentionally fraudulently, maliciously, and oppressively in willful and conscious disregard of rights and with the intent and design to damage CAA. By reason thereof, CAA is entitled to recover punitive damages in an amount to be determined at the time of trial.? The following portion of Paragraph 138 of the FAC 138, 24: 22) which states as . .unlawful, and/or The following portion of Paragraph 140 of the FAC 140, 24: 27) which states as . .unlawful. . The following portion of Paragraph 142 of the FAC 142, 25:8) which states as 7 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT bum 34. The entirety of the sixth prayer for relief, which prays ?For an award of punitive and exemplary damages against Defendants according to proofI.]? (See FAC at 26: 1-2). 35. The following portion of the eighth prayer for relief, which states as follows: ?including, to the extent permitted by law, attorneys? fees incurred in prosecuting this (See FAC at 36. The entirety of the ninth prayer for relief, which states as follows: ?For an award of attorneys? fees, to the extent permitted by law, including, without limitation pursuant to California Code of Civil Procedure Section 128.5 and 128.7 for attorneys? fees incurred by CAA in third-party actions that CAA has been required to institute as a result of Defendants? tortious (See FAC at This Motion will be made pursuant to California Code of Civil Procedure Sections 435 and 436 and on the ground that (1) the allegations regarding Defendants? illegal, unethical, and wrongful conduct are unsupported and inadequate and not drawn in conformance with the laws of this state; (2) the allegations supporting claims for punitive and/or exemplary damages are unsupported and inadequate and not drawn in conformance with the laws of this state; and (3) the allegations supporting claims for attomey?s fees are unsupported and inadequate and not drawn in conformance with the laws of this state. This Motion will be based on upon this Notice and the supporting Memorandum of Points and Authorities attached hereto, upon the pleadings, records and papers on ?le in this action, and such evidence as may be presented at the time of the hearing on the Motion to Strike. DATED: October 9, 2015 1} EDM TAITELMAN, LLP By: Brly dean Br Turnauer an M. Hardy Attorneys for Defendants United Talent Agency, LLC, Gregory Cavic, and Gregory McKnight 8 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT NOLA-PUII. IV. VI. VII. TABLE OF CONTENTS INTRODUCTION .. 1 PROCEDURAL HISTORY ..2 LEGAL AUTHORITY FOR STRIKING PORTIONS OF THE FIRST AMENDED COMPLAINT ..2 THE ALLEGATIONS THAT DEFENDAN TS HAVE COMMITTED ILLEGAL ACTS SHOULD BE STRICKEN ..3 THE REQUEST FOR PUNITIVE DAMAGES SHOULD BE STRICKEN ..4 THE PRAYER FOR FEES SHOULD BE STRICKEN ..6 CONCLUSION .. 8 i MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT TABLE OF AUTHORITIES CASES Anglo American Land Co. v. Sundberg (1924) 66 Cal.App. 331 ..2 City of Industry v. Gordon (1972) 29 Cal.App.3d 90 ..6, 7 Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1 ..6 Cyrus v. Haveson (1976) 65 Cal.App.3d 306 ..5, 6 GD. Searle Co. v. Superior Court (1975) 49 Cal.App.3d 22 ..5, 6 Grieves v. Superior Court (1984) 157 Cal.App.3d 159 .. 3 Lehto v. Underground Constr. Co. (1977) 69 Cal.App.3d 933 ..6 Mahoney v. Corralejo (1974) 36 Ca1.app.3d 966 .. 5 Santisas v. Goodin (1998) 17 Ca1.4th 599 ..7, 8 Stout v. Turney (1978) 22 Cal.3d 718 ..7 Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541 .. 8 Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53 ..6 Witte v. Kaufman (2006) 141 Cal.App.4th 1201 ..9 Xuereb v. Marcus Millichap, Inc. (1992) 3 Cal.App.4th 1338 ..7 STATUTES Code of Civil Procedure Section 128.5 .. 8, 9 Code of Civil Procedure Section 128.7 .. 8, 9 Code of Civil Procedure Section 425.16 ..9 Code of Civil Procedure Section 431.10 .. l, 2 Code of Civil Procedure Section 431.10(b) ..2 Code of Civil Procedure Section 435 ..1, 2 Code of Civil Procedure Section 436 ..1, 2 Code of Civil Procedure Section 436(a) ii MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT Code of Civil Procedure Section 436 ..3 Code of Civil Procedure Section 1717 ..6, 7 Code of Civil Procedure Section 1032 .. 8 Code of Civil Procedure Section 1032, subdivision ..7, 8 Code of Civil Procedure Section 1033.5 ..8 Code of Civil Procedure Section 1033.5, subdivision .. 8 Code of Civil Procedure Section 3294 Code of Civil Procedure Section 3294 ..4 OTHER AUTHORITIES Weil Brown, Cal. Practice Guide: Civil Procedure Before Trial 7:177 (2014) ..3 Weil Brown, Cal. Practice Guide: Civil Procedure Before Trial 7:179 (2014) ..3 Weil Brown, Cal. Practice Guide: Civil Procedure Before Trial 7:182 (2014) ..2 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This action involves a straightforward business dispute between Plaintiff Creative Artists Agency, LLC and its former employees Defendants Gregory Cavic and Gregory McKnight (collectively, ?Defendants?) and nothing more. However, CAA has attempted to turn this matter into a slander campaign against Defendants. Like its original Complaint in this action, First Amended Complaint is riddled with irrelevant statements, half-truths and downright lies. In fact, much of the FAC consists of irrelevant, false, improper or immaterial matters subject to being stricken under Code of Civil Procedure sections 435, 436 and 431.10. It is clear from even a cursory reading of the PAC that CAA only ?red off these hyperbolic and improper accusations in an attempt to publicly embarrass Defendants. After sifting through all of the irrelevant, false, improper or immaterial matters, the allegations contained in the FAC are simple. CAA alleges that Defendants somehow interfered with its business operations by soliciting several CAA employees and clients to work at a competitor of CAA, thereby causing damage to CAA. The only reason that the incendiary allegations were made was so that CAA could provide the FAC to the press, which CAA has done. There is no justi?cation for the continuing presence of these allegations in the FAC. Ultimately, as set forth herein, FAC is replete with improper allegations, including claims of ?unlawful? and ?illegal? activities. These false and abusive allegations add nothing to the claims being asserted in the AC. They are therefore ?irrelevant, false or improper matter? and should be stricken. Just as in its original Complaint, CAA attempts to prejudice Defendants by continuing a smear campaign against Defendants through its FAC, no doubt relying on the litigation privilege to protect it from defamation claims by Defendants. It is clear that much of the FAC alleges irrelevant, false, improper or immaterial matters which have absolutely nothing to do with this action but are prejudicial to Defendants and therefore should be stricken. Further, CAA has not and is unable to plead suf?cient facts to support an award of punitive or exemplary damages. 1 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT Lastly, CAA has not pleaded any facts to support the attorney?s fee claim in its eighth and ninth prayers for relief. As such, any references to such forms of relief should also be stricken. II. PROCEDURAL HISTORY On April 2, 2015, CAA initiated this action by ?ling its initial Complaint for Damages. On May 20, 2015, Defendants ?led demurrers and motions to strike as to the Complaint. Rather than Oppose these motions, CAA ?led its FAC on September 4, 2015. In its FAC, CAA has alleged the following causes of action against Defendants: Intentional Interference with Contractual Relations; (2) Inducing Breach of Contract; (3) Intentional Interference with Prospective Economic Advantage; (4) Breach of Fiduciary Duty; (5) Conspiracy to Breach Fiduciary Duty; (6) Aiding and Abetting Breach of Fiduciary Duty; (7) Breach of Duty of Loyalty; (8) Conspiracy to Breach Duty of Loyalty; (9) Aiding and Abetting Breach of Duty of Loyalty; and (10) Violations of Business Professions Code, Section 17200. Despite being the subject of Defendants? initial motion to strike, CAA retained its improper prayers for punitive damages and attorney?s fees in its FAC. CAA additionally failed to remove a host of irrelevant and improper matters from its FAC. For these reasons, and as discussed more fully below, Defendants? motion to strike should properly be granted. LEGAL AUTHORITY FOR STRIKING PORTIONS OF THE FIRST AMENDED COMPLAINT California Code of Civil Procedure sections 435 and 436 authorize a motion to strike allegations in a complaint, even if limited to phrases. (Anglo American Land Co. v. Sundberg (1924) 66 Cal.App. 331, 333.) Any ?irrelevant, false or improper matter? will be subject to a motion to strike. (Code Civ. Proc. This includes requests for remedies that are unsupported by the causes of action alleged in the complaint. (Code Civ. Proc. see also Weil Brown, Cal. Practice Guide: Civil Procedure Before Trial 7:182 (2014) motion to strike can be used to attach claims for damages that are not supported by the causes of action pleaded?) Here, CAA also seeks punitive damages on nine of its causes of action, despite alleging 2 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GR FGORV no facts to support such an award. The Court has authority to strike punitive damages from a complaint. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-168.) In the instant case, the FAC makes numerous, spurious references to an alleged illegal and/or fraudulent scheme by Defendants. However, CAA has no authority to prosecute criminal violations. Likewise, CAA does not allege, nor can it allege, a cause of action for fraud against Defendants. These allegations are specious, improper, and irrelevant to this case. They are designed for the press, which has been covering this litigation, and to obfuscate the otherwise straightforward allegations in the FAC. Likewise, CAA has not stated suf?cient facts to support its claims for punitive damages and attorneys? fees alleged in the PAC. For these reasons and those set forth herein, Defendants? Motion to Strike should be granted in its entirety. IV. THE ALLEGATIONS THAT DEFENDANTS HAVE COMMITTED ILLEGAL ACTS SHOULD BE STRICKEN A motion to strike may be used as a ?scalpel? to strike out any improper matter inserted in a pleading or any part of a pleading that is not drawn in conformity with the laws of this state. (See Weil Brown, Cal. Practice Guide: Civil Procedure Before Trial 7:177 (2014); see also Code Civ. Proc. 436(a) and This includes allegations which are not essential to the claim or defense. ?For example, in a straight promissory note action, allegations that defendant?s failure to pay was ?wrongful, malicious and illegal . . . are conclusions of the pleader and ?irrelevant matter,? subject to motion to strike.? (Weil Brown, Cal. Practice Guide: Civil Procedure Before Trial 7:179 (2014).) In this case, in a blatant attempt to gain leverage over Defendants, CAA in a civil pleading - accuses Defendants of engaging in an illegal and unethical scheme. Specifically, FAC includes an entirely super?uous ?Introduction,? alleging that Defendants ?launched? a ?lawless, midnight raid? in a ?desperate attempt to steal clients and employees.? (See generally, FAC at 1111 1- 4.) Tellingly, this ?Introduction,? with its hyperbolic prose be?tting a dime store novel, is completely divorced from the ?Factual Background,? which is contained in a separate section. (See generally, FAC at 111] 18-48.) The entire ?Introduction? is thus composed solely of 3 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY improper and irrelevant matter, and should be stricken outright. Moreover, CAA repeats these outlandish allegations of ?unlawful? activities throughout its FAC, even though CAA knows no criminal case has been ?led against Defendants and CAA never contacted any law enforcement agency regarding the allegations made in the PAC. The only reason that these incendiary allegations were made was to enable CAA to provide the PAC to the press, which it has done. In light of the foregoing, any allegations of illegality and unlawful conduct should be stricken from the FAC as such claims have no application in this case. They constitute irrelevant, false or improper matters having nothing to do with the alleged case against Defendants. V. THE REQUEST FOR PUNITIVE DAMAGES SHOULD BE STRICKEN Under California law, the recovery of exemplary or punitive damages is governed by Civil Code 3294, which speci?cally sets forth the type of conduct which justi?es their award. Civil Code 3294 provides: In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.? Civil Code 3294 The words ?oppression?, ?fraud? and ?malice? are speci?cally de?ned in Civil Code 3294: As used in this section, the following de?nitions shall apply: (1) ?Malice? means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) ?Oppression? means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) ?Fraud? means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.? Hyperbole alone is insuf?cient to support a claim for punitive damages. For instance, amount of descriptive adjectives or epithets may turn a negligence action into an action for intentional or willful misconduct.? (Mahoney v. Corralejo (1974) 36 Cal.app.3d 966, 973.) In its ?rst through ninth causes of action, CAA seeks punitive and exemplary damages against 4 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GRFGORV Defendants. (FAC, 1m 58, 70, 80, 91, 100, 112, 125, 136.) The alleged ?conduct? supporting such punitive and exemplary damages is generic boilerplate, and is ascribed to all defendants in this action in a conclusory manner. Indeed, the PAC fails to attribute any malicious, oppressive, or fraudulent acts to Defendants. Thus, allegations are insuf?cient to transform its ?rst through ninth causes of action into a punitive damages claim. prayer for punitive damages ?ies in the face of the well-settled principle that conclusory and vague allegations of malice, oppression, fraud, or intent to injure are insuf?cient as a matter of law to state a claim for punitive damages. (GD. Searle Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29; Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 317.) To plead a claim for punitive damages, CAA must assert the ultimate facts from which it can be reasonably inferred that Defendants acted with malice, oppression, or fraud against CAA within the meaning of Civil Code section 3294. (Cyrus, supra, at 316-317.) In Lehto v. Underground Constr. Co. (1977) 69 Cal.App.3d 933, the Court of Appeal held that it is essential that the facts and circumstances which constitute a claim for punitive damages must ?be set out clearly, concisely and with suf?cient particularity . . . to enable the Court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the fraud.? (Id. at 944.) Merely stating that a defendant?s acts were reckless, willful or intentional fails to meet the pleading requirements for the recovery of punitive damages. (Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1, 8-9.) Similarly, conclusory allegations that the defendant acted ?willfully and knowingly? are insuf?cient to plead a claim for punitive damages. (GD. Searle Co, supra, 49 Cal.App.3d at 27.) Indeed, even discriminatory conduct does not rise to the level of malice, oppression, or fraud suf?cient to state a claim for punitive damages. (See urman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64 (motion to strike punitive damages claim granted, even though complaint adequately alleged gender discrimination claim).) There are no allegations against Defendants suf?cient to establish punitive damages. Based on the foregoing, it is clear CAA has not pleaded suf?cient facts to support a claim for punitive damages. As such, the Motion to Strike request for punitive damages should be granted. 5 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVTC AND GREGORY VI. THE PRAYER FOR FEES SHOULD BE STRICKEN Attorney?s fees are not recoverable unless provided for by contract or statute. (City of Industry v. Gordon (1972) 29 Cal.App.3d 90, 93.) In its Prayer for Relief, CAA requests attorney?s fees for all of its causes of action, but fails to refer to applicable statutory authority that permits such an award. (See, AC, Prayer for Relief, 1111 8, 9.) If attorney?s fees are sought pursuant to contract, that right is governed by Civil Code section 1717, which provides: In any action on a contract, when the contract speci?cally provides that attorney?s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party speci?ed in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. (Emphasis added.) action is not based on a contract, and no contract has been alleged which would support an award of attorney?s fees. Further, no statute can support claim for attorney?s fees. CAA notably does not rely on Civil Code Section 1717, nor could it, as that statute?s applicability is ?limited [to] only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself speci?cally provides for an award of attorney fees incurred to enforce that contract.? (Xuereb v. Marcus Mtllichap, Inc. (1992) 3 Cal.App.4th 1338, 1342) (Emphasis in original.) Section 1717 does not apply to noncontract causes of action, such as ?fraud [based claims] arising out of a contract? that contains an attorney fees provision. (Stout v. Turney (1978) 22 Cal.3d 718, 730.) ?If an action asserts both contract and tort or other noncontract claims, section 1717 applies only to attorney fees incurred to litigate the contract claims.? (Santisas v. Goodin (1998) 17 Cal.4th 599, 615.) As all of claims sound in tort rather than contract, section 1717 provides no basis for attorney?s fees prayer. prayer for attorney?s fees purports to rely on Code of Civil Procedure Section 1032, subdivision That statute concerns the recovery of litigation costs and provides no independent basis for an attorney?s fee award. Code of Civil Procedure sections 1032 and 1033.5 authorize a trial court to award attorney?s fees as a form of costs only if the parties have entered into a contract that permits such an award, or if an independent statute permitting such an award. Section 1032, 6 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVTC AND GR FGORV subdivision states that ?a prevailing party? is ?entitled as a matter of right to recover costs in any action or proceeding.? Section 1033.5, subdivision in turn, ?provides . . . that attorney fees are ?allowable as costs under Section 1032? when they are ?authorized by? either ?Contract,? ?Statute,? or ?Law.? Thus, recoverable litigation costs do include attorney fees, but only when the party entitled to costs has a [contractually based right or other] legal basis, independent of the cost statutes.? (Santisas v. Goodin (1998) 17 Cal.4th 599, 606-607) (emphasis added.) To assess whether a prevailing party is entitled to fees under Section 1033.5, courts must determine whether the lawsuit: (1) involves a claim covered by a contractual attorney fee clause; and (2) is between the parties to that contract. (Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 544.) In the instant case, the answer to both questions is a resounding Simply put, CAA has not alleged any written agreement with Defendants exists let alone an agreement containing an attorney?s fee provision. reliance on Section 1032 is thus entirely misplaced. That statute has no applicability to the case at bar and provides no basis for an award of attorney?s fees to CAA. Finally, CAA alleges that it is entitled to attorney?s fees ?pursuant to California Code of Civil Procedure Section 128.5 and 128.7 for attorneys? fees incurred by CAA in third-patty actions that CAA has been required to institute as a result of Defendants? tortious conduct.? (See, FAC, Prayer for Relief, 11 9.) Such a prayer has no legal basis whatsoever. Apparently, CAA would have this Court award it attorney?s fees based on conduct that occurs in an unrelated, third party action despite there being no written agreement between Defendants and CAA. As this Court is well aware, Section 128.5 and 128.7 allow courts discretion to award monetary sanctions to punish bad- faith litigation conduct, pursuant to a duly-noticed motion. These statutes do not provide for the recovery of attomey?s fees generally to the prevailing party in an action. ?An award of sanctions [under sections 128.5 or 128.7] is markedly different from an award of attorney fees under Section 425.16. Like a punitive damages award in civil litigation, an award of sanctions is intended to punish a party for bad faith conduct, not to compensate or reward the opposing party.? (Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1209.) Clearly, these two statutes do not support meritless prayer for attorney?s fees. 7 MOTION TO STRIKE OF GREGORY CAVTC AND GR Since CAA cannot demonstrate a right to attorney's fees as to all causes of action if it should prevail on its FAC either under statute or contract, this Court should issue an order striking request for attorney?s fees and all allegations related thereto as improper and not drawn in conformity with California law. VII. CONCLUSION Based on the foregoing, Defendants respectfully request that the Court grant this Motion to LLP By. Br J. Ffeedman? Tumauer M. Hardy Attorneys for Defendants United Talent Agency, LLC, Gregory Cavic, and Gregory McKnight Strike in its entirety. DATED: October 9, 2015 8 MOTION TO STRIKE OF DEFENDANTS GREGORY CAVIC AND GREGORY MCKNIGHT PROOF OF SERVICE STATE OF CALIFORNIA ]ss. COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 1901 Avenue of the Stars, Suite 500, Los Angeles, California 90067. On October 9, 2015, I served the foregoing document(s) described as: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS 0F FIRST AMENDED COMPLAINT 0F DEFENDANTS GREGORY CAVIC AND GREGORY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action by placing the original OR true copies thereof enclosed in sealed envelopes addressed as follows: Anthony J. Oncidi Keith A. Goodwin PROSKAUER ROSE LLP 2049 Century Park East, Suite 3200 Los Angeles, CA 90067 aoncidi@Droskauer.com kgoodwin@proskauer.com (310) 557?2900 Telephone (310) 557-2193 Fax Attorneys for Plaintiff Creative Artists Agencv. LLC By United States Mail: I am readily familiar with the ?rm's practice for collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date deposit for mailing in af?davit. DE State. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 9, 2015 at Los Angeles, 'stina Puello 10/912015 CR5 RECEIPT Reservation INSTRUCTIONS Please print this receipt and attach it to the corresponding motion/document as the last page. Indicate the Reservation ID on the motion/document face page (see example). The document will not be accepted without this receipt page and the Reservation ID. ALIFDILNIA, WDF L05 ANOHLES ms: nu.- acumen mutton or! ?arm 131112001085 Hus?lwuvu RESERVATION INFORMATION Reservation ID: Transaction Date: Case Number: Case Title: Party: Courthouse: Department: Reservation Type: Date: Time: 151009075105 October 9, 2015 80123994 CREATIVE ARTISTS AGENCY, LLC VS UNITED TALENT AGENCY. LLC CAVIC GREGORY (Defendant) Santa Monica Courthouse 0 Motion to Strike (not - without Demurrer 5/4/2016 08:30 am FEE are non-refundable) First Paper Fee: Party asserts ?rst paper was previously paid. Description Fee Motion to Strike (not - without Demurrer $60.00 Total Fees: Receipt Number: 1151009K1409 $60.00 PAYMENT Name on Credit Card: Credit Card Number: Michael Taitelman A COPY OF THIS RECEIPT MUST BE ATTACHED TO THE CORRESPONDING MOTIONIDOCUMENT AS THE LAST PAGE AND THE RESERVATION ID INDICATED ON THE MOTIONIDOCUMENT FACE PAGE. 111