Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 1 of 20 Page ID #:73 1 2 3 4 5 6 7 PAUL HASTINGS LLP ELENA R. BACA (SB# 160564) elenabaca@paulhastings.com RYAN D. DERRY (SB# 244337) ryanderry@paulhastings.com 515 South Flower Street, 25th Floor Los Angeles, CA 90071-2228 Telephone: (213) 683-6000 Facsimile: (213) 627-0705 Attorneys for Defendants VIACOM INC. and BLACK ENTERTAINMENT TELEVISION LLC 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 ZOLA MASHARIKI, 13 14 15 16 17 Plaintiff, vs. VIACOM INC.; BLACK ENTERTAINMENT TELEVISION, LLC; Stephen Hill, and DOES 1 through 50, inclusive, Defendants. CASE NO. 2:17-cv-03366 PSG (ASx) DEFENDANT BLACK ENTERTAINMENT TELEVISION LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) 19 Date: Time: Place: Judge: 20 Complaint filed: May 3, 2017 18 July 17, 2017 1:30 p.m. Courtroom 6A Hon. Philip S. Gutierrez 21 22 23 24 25 26 27 28 LEGAL_US_W # 90027121.14 BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 2 of 20 Page ID #:74 1 TABLE OF CONTENTS 2 3 4 I. II. 5 III. 6 IV. 7 8 9 10 11 12 13 14 15 16 17 V. Page INTRODUCTION AND FACTUAL BACKGROUND ................................ 1 RULE 8 REQUIRED MASHARIKI TO PLEAD FACTS DEMONSTRATING PLAUSIBLE CLAIMS AGAINST BET .................... 3 MASHARIKI’S COMPLAINT MUST BE DISMISSED BECAUSE IT IS LITTLE MORE THAN “SHOTGUN PLEADING” ............................ 4 MASHARIKI’S SECOND, EIGHTH, AND EIGHTEENTH CLAIMS SHOULD BE DISMISSED FOR ADDITIONAL REASONS ...................... 6 A. Mashariki Cannot Assert A Claim Against Hill Under Her Second and Eighth Claims For Relief ................................................... 6 B. Mashariki’s Fails To State A Legally Viable Claim of Defamation ............................................................................................ 6 1. The “Statements” Described In Paragraphs 57, 70, 72 and 207 Are Too Vague To Be Actionable As Defamation ............. 7 2. The Statements Described In Paragraphs 68 and 71, Stating Mashariki Was Leaving BET, Are Not Actionable As The Complaint Demonstrates That, When Made, They Were True ................................................................................... 9 3. Mashariki’s Defamation Claim Further Fails Because She Has Not Pled Facts Demonstrating Any Statement Was Made With Malice .................................................................... 10 C. Mashariki’s Deficient Second, Eighth, and Eighteenth Claims For Relief Should Be Dismissed Without Leave to Amend ............... 13 CONCLUSION ............................................................................................. 15 18 19 20 21 22 23 24 25 26 27 28 LEGAL_US_W # 90027121.14 -i- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 3 of 20 Page ID #:75 1 TABLE OF AUTHORITIES 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Page(s) Cases Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569 (2005) ............................................................................ 11 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................... 3, 4 Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519 (1983) ............................................................................................ 14 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................... 3, 4, 14 Destfino v. Kennedy, No. CV-F-08-1269 LJO DLB, 2009 WL 63566 (E.D. Cal. Jan. 8, 2009) ...................................................................................................................... 5 EEOC v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019 (D. Haw. 2012) ......................................................... 5 Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003) ............................................................................. 13 Foman v. Davis, 371 U.S. 178 (1962) ............................................................................................ 14 United States ex rel. Fryberger v. Kiewit Pac. Co., 41 F. Supp. 3d 796 (N.D. Cal. 2014)..................................................................... 9 21 22 23 24 25 26 27 28 Gilbert v. Sykes, 147 Cal. App. 4th 13 (2007) ................................................................................ 12 Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198 (C.D. Cal. 2004) ................................................................. 7 Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55 (1996) .................................................................................... 6 Kottle v. Northwest Kidney Ctrs., 146 F.3d 1056 (9th Cir. 1998) ............................................................................. 12 LEGAL_US_W # 90027121.14 - ii - BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 4 of 20 Page ID #:76 1 TABLE OF AUTHORITIES 2 (continued) 3 4 5 6 7 8 9 10 Page Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th Cir. 2013) ......................................................................... 10, 13 McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97 (2007) ................................................................................ 11 Miller v. Maxwell Int’l, Inc., 991 F.2d 583 (9th Cir. 1993) ................................................................................. 6 Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999)................................................................. 12 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAI Corp. v. Integrated Sci. Sols., Inc., No. C-06-5349 JSW (JCS), 2007 WL 1229329 (N.D. Cal. Apr. 25, 2007) ...................................................................................................................... 7 Reader’s Digest Association v. Superior Court, 37 Cal.3d 244 (1984) ........................................................................................... 11 Richardson v. HRHH Gaming Senior Mezz, LLC, 99 F. Supp. 3d 1267 (D. Nev. 2015) ..................................................................... 9 Roe v. Doe, No. C 09-0682 PJH, 2009 U.S. Dist. LEXIS 59440 (N.D. Cal., Jun. 20, 2009) .............................................................................................................. 12 Rudnick v. McMillan, 25 Cal. App. 4th 1183 (1994) .............................................................................. 12 Saul v. United States, 928 F.2d 829 (9th Cir. 1991) ............................................................................... 13 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 (9th Cir. 1986) ............................................................................. 13 Smith v. Maldonado, 72 Cal. App. 4th 637 (1999) .................................................................................. 7 27 28 LEGAL_US_W # 90027121.14 - iii - BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 5 of 20 Page ID #:77 1 TABLE OF AUTHORITIES 2 (continued) 3 4 5 6 7 Page Sollberger v. Wachovia Securities, LLC, No. SACV 09-0766 AG (ANx), 2010 WL 2674456 (C.D. Cal. Jun. 30, 2010) ............................................................................................................ 4, 5 Statutes 10 Cal. Civ. Code § 45 .................................................................................................................... 7, 9 § 46 .................................................................................................................... 7, 9 § 47(c) .................................................................................................................. 10 11 Other Authorities 12 Fed. R. Civ. P. R. 8 ......................................................................................................................... 3 R. 12(b)(6) ............................................................................................................. 3 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEGAL_US_W # 90027121.14 - iv - BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 6 of 20 Page ID #:78 1 I. 2 INTRODUCTION AND FACTUAL BACKGROUND1 No one has treated Plaintiff Zola Mashariki (“Mashariki”) unfairly, let alone 3 unlawfully. For over thirty-five years, BET® has shared with the world the culture, 4 strength, varied experiences, and stories of the Black community through its 5 television, online, and mobile platforms. For more than a decade, Debra Lee 6 (Chairman and CEO of Defendant Black Entertainment Television LLC (“BET”)) 7 has been at its helm, leading an executive team largely comprised of women and 8 persons of color. Lee’s and BET’s commitment to providing opportunities and 9 advancement to women is long-standing and real.2 BET, with the support of Lee, 10 offered Mashariki a contract as BET’s Executive Vice President and Head of 11 Original Programming (“BET-EVP Contract”). See Dkt. No. 1 at ¶ 24. BET, with 12 the support of Lee, gave Mashariki an opportunity to work in television, despite 13 Mashariki’s prior experience being solely in the production of feature films, not 14 episodic television. Id. at ¶ 4. 15 By Mashariki’s own admission, her time at BET was tumultuous; peers and 16 subordinates complained about Mashariki’s behavior and management style which 17 led BET to propose that Mashariki work with a professional coach.3 Id. at ¶¶ 9, 44 18 and 46. Lee needed an effective leader for BET’s Original Programming; she came 19 to realize that Mashariki was not that person. Lee elected to exercise BET’s right to 20 end the BET-EVP Contract before its natural term. Before Lee could meet with 21 Mashariki to communicate her decision, Mashariki left work and, eventually, began 22 a leave of absence. 23 24 25 26 27 28 1 For the purposes of this Motion, where relevant, BET accepts, as “true”, Mashariki’s factual allegations. Nonetheless, BET adamantly denies that anyone treated Mashariki unlawfully, including Defendant Stephen Hill. 2 See, e.g. Request for Judicial Notice dated May 30, 2017, filed concurrently herewith (“RJN”), Ex. A (BET Networks’ Leading Women Defined Summit, established and led by Lee) available at http://www.bet.com/topics/l/leadingwomen-defined.html. 3 One BET employee who worked for Mashariki retained an attorney and accused Mashariki of pregnancy discrimination. LEGAL_US_W # 90027121.14 -1- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 7 of 20 Page ID #:79 1 On February 28, 2017, the day before Mashariki’s scheduled return-to-work 2 date, Mashariki was informed (through her counsel) that her employment was being 3 terminated and she need not report to work the next day. Dkt. No. 1 at ¶ 63. 4 During the ensuing discussions, Mashariki’s lawyer said that Mashariki had 5 planned to extend her leave to April 11, 2017; out of compassion and empathy, 6 BET said it would therefore make the effective date of the termination April 11, 7 2017. See Dkt. No. 1 at 16 FN 1, ¶ 66. The BET-EVP Contract contemplated a 60 8 day period following termination during which health benefits and salary continued 9 and Mashariki could consider whether to execute a standard separation and general 10 release agreement in the form that was attached to the BET-EVP Contract. 11 One month later, on March 29, 2017, Lee announced in two internal 12 communications that Stephen Hill, President of Programming (and Mashariki’s 13 supervisor), had resigned; in the interim his duties would be assumed by Connie 14 Orlando, a female senior executive at BET. Dkt. No. 1 at ¶¶ 67-68. Lee also 15 mentioned in one of those communications that Mashariki “will also be departing 16 the network.” Id. Inexplicably, Mashariki sent dozens of BET employees a 17 deceptive, if not dishonest, email: despite having received notice February 28, 18 2017 and multiple communications thereafter that her BET-EVP Contract and 19 employment was terminated, Mashariki implied to the world that she was, in fact, 20 still employed by BET and would be returning to her position following her 21 medical leave. Id. at ¶ 70. The confusion Mashariki’s email caused, accompanied 22 by her lawyer’s statements to the press, triggered an alleged “media storm” and 23 required BET to respond. Id. at ¶¶ 72; see, e.g., Request for Judicial Notice 24 (“RJN”) Ex. B. 25 Mashariki then sued—filing a complaint designed more with an eye towards 26 securing press coverage than framing legally cognizable claims. The Complaint is 27 filled with inflammatory argument and unsupported legal conclusion. For example, 28 Mashariki claims BET, under Debra Lee’s leadership, fosters a “good old boys’ LEGAL_US_W # 90027121.14 -2- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 8 of 20 Page ID #:80 1 club” and “misogynistic culture [that] oppresses women in the workplace.” Dkt. 2 No. 1 at 8:14, ¶ 29. Mashariki included rumors and sensational descriptions of 3 alleged events that do not appear to relate to any of her listed eighteen claims. For 4 example, Mashariki describes an unidentified female co-worker as being “in a ‘dark 5 place,’” and another unidentified female co-worker who purportedly told Mashariki 6 that Hill’s micromanaging felt as though Hill was “‘keeping his boot on the back of 7 her neck.’” Id. at ¶¶ 33, 52. Worse still, Mashariki conflates parties and, within her 8 claims, does little more than list the legal elements. Ultimately, Mashariki places 9 this Court—and BET—in the impermissible position of not actually knowing what 10 the alleged factual basis is for her eighteen claims, or whether they can be validly 11 stated. 12 Accordingly, BET moves to dismiss the entire complaint, with its “shotgun 13 pleading.” BET also requests that three other claims be dismissed with prejudice 14 because two that are asserted against BET’s former executive, Hill, cannot be 15 asserted against him as a matter of law; and, as for the eighteenth claim, Mashariki 16 has not and will not be able to state a legally cognizable claim for defamation. 17 II. 18 RULE 8 REQUIRED MASHARIKI TO PLEAD FACTS DEMONSTRATING PLAUSIBLE CLAIMS AGAINST BET 19 Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case 20 where the complaint fails to state a claim upon which relief can be granted. In 21 reviewing a motion to dismiss under Rule 12(b)(6), a court must accept the 22 allegations in the complaint as true and draw all reasonable inferences in favor of 23 the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 24 However, to survive a challenge to the legal sufficiency of the claims under 25 Rule 12(b)(6), a plaintiff must allege “more than labels and conclusions.” Twombly, 26 550 U.S. at 555. Courts “are not bound to accept as true a legal conclusion couched 27 as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 28 Twombly, 550 U.S. at 555) (internal quotation marks omitted). Naked assertions LEGAL_US_W # 90027121.14 -3- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 9 of 20 Page ID #:81 1 devoid of further factual enhancement or “threadbare recitals of the elements of a 2 claim for relief, supported by mere conclusory statements,” are insufficient to 3 survive a motion to dismiss. Id. at 663. Instead, a plaintiff’s factual allegations 4 must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 556, 5 570. 6 III. 7 8 9 10 11 MASHARIKI’S COMPLAINT MUST BE DISMISSED BECAUSE IT IS LITTLE MORE THAN “SHOTGUN PLEADING” Beyond containing sufficient factual allegations, a complaint must also demonstrate clarity regarding the interplay of factual allegations, the respective claims for relief, and alleged wrongdoer. Courts in the Ninth Circuit are intolerant of what has been colloquially 12 termed “shotgun pleadings.” Such offending pleadings are “where the plaintiff 13 recites a collection of general allegations toward the beginning of the Complaint, 14 and then ‘each count incorporates every antecedent allegation by reference [.]’”). 15 Sollberger v. Wachovia Securities, LLC, No. SACV 09-0766 AG (ANx), 2010 WL 16 2674456, at *4 (C.D. Cal. Jun. 30, 2010) (citations omitted). Courts have found 17 them “unacceptable”, in that they “overwhelm defendants with an unclear mass of 18 allegations and make it difficult or impossible for defendants to make informed 19 responses to the plaintiff’s allegations.” Id. 20 Imprecision results in uncertainty regarding each claim—unfairly limiting 21 defendants’ and the court’s ability to adjudicate (much less, understand) the issues 22 before it: 23 24 25 26 27 Simply put, then, the problem with a shotgun pleading is that it prevents the parties and the court from understanding what the case is really about because the pleadings are cluttered with irrelevant and unrelated facts. The consequence is that discovery becomes a fool’s errand in which parties seek out facts relating to claims whose parameters are so fuzzy, amorphous and ill-defined as to be utterly indeterminate. 28 LEGAL_US_W # 90027121.14 -4- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 10 of 20 Page ID #:82 1 Destfino v. Kennedy, No. CV-F-08-1269 LJO DLB, 2009 WL 63566 at *6 (E.D. 2 Cal. Jan. 8, 2009) (citations omitted). 3 Here, Mashariki does precisely that. The first 19 pages of the Complaint (75 4 paragraphs to be precise) purport to provide the factual support of each of 5 Mashariki’s eighteen claims. See generally Dkt. No. 1. The initial paragraph in 6 each claim then states: “Ms. Mashariki re-alleges and incorporates by each and 7 every allegation in this Complaint as if fully set forth herein.” See, e.g., Dkt. No. 1, 8 at ¶¶ 76, 85, 94. What then follows is little more than the legal elements of each 9 claim. See, e.g., Dkt. No. 1, at ¶¶ 77-78, 86-89, 95-103. As a result, it is unclear 10 from her Complaint which allegation(s) is/are intended to support which claim(s) 11 for relief. 12 Mashariki compounds the confusion—likely to mask the fact that Viacom 13 has been improperly joined—by conflating Viacom and BET (collectively referring 14 to both as “the Company”) throughout the Complaint. See, e.g., Dkt. No. 1 at ¶ 3 15 (“[T]he Company unlawfully terminated Ms. Mashariki . . .”); ¶ 27 (“[T]he 16 Company has discriminated and retaliated against her . . .”); ¶ 35 (“The Company 17 also denied . . .”). 18 Mashariki, impermissibly, has made it impossible to discern the alleged 19 misconduct of each party, as required. See Sollberger, 2010 WL 2674456 at *4 20 (explaining improper use of the omnibus term ‘Defendants,’ without identifying 21 specific alleged wrongs); EEOC v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019, 22 1046 (D. Haw. 2012) (“[T]he majority of the Complaint refers collectively to 23 ‘Defendants’ without distinction between the two parties. . . . [Plaintiff] must 24 allege specifically what wrongdoing it is assigning to each Defendant.”). No one 25 should have to guess. Indeed, due process compels that Mashariki provide 26 sufficient notice of what facts she contends support her claims as to each of the 27 named Defendants. Accordingly, while certain claims should be dismissed with 28 LEGAL_US_W # 90027121.14 -5- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 11 of 20 Page ID #:83 1 prejudice (as discussed below), at a minimum, Mashariki should be required to 2 eliminate the imprecision and guesswork required by her present Complaint. 3 IV. 4 MASHARIKI’S SECOND, EIGHTH, AND EIGHTEENTH CLAIMS SHOULD BE DISMISSED FOR ADDITIONAL REASONS 5 Setting aside, momentarily, that the current pleading fails to provide 6 sufficient notice of her alleged claims, Mashariki’s second claim (for hostile work 7 environment based on sex under Title VII) and eighth claim for (for gender 8 discrimination under the California Fair Employment and Housing Act [“FEHA”]) 9 as asserted against Hill, and eighteenth claim as asserted against Viacom and BET 10 11 (for defamation) should be dismissed with prejudice on other grounds. A. 12 13 Mashariki Cannot Assert A Claim Against Hill Under Her Second and Eighth Claims For Relief Although BET’s former executive (and Mashariki’s former supervisor), Hill, 14 has not yet appeared, Mashariki has asserted claims against him, individually, in her 15 second claim for relief alleging hostile work environment under Title VII and 16 eighth claim for relief alleging gender discrimination under FEHA. See Dkt. No. 1 17 at 21:24-26 (“Count II”); 26:22-24 (“Count VIII”). 18 Hill, an individual, cannot be liable for a violation of Title VII. See, e.g., 19 Miller v. Maxwell Int’l, Inc., 991 F.2d 583, 587 (9th Cir. 1993) (holding no 20 individual liability under Title VII). Nor can he be held liable for gender 21 discrimination under FEHA. See Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55 22 (1996) (holding that a plaintiff cannot assert a claim for gender discrimination 23 under FEHA against an individual employee supervisor). 24 25 Accordingly, as a matter of law, Hill should be dismissed with prejudice from the second and eighth claims for relief. 26 B. 27 In her eighteenth claim for relief, Mashariki contends BET defamed her. See 28 Mashariki’s Fails To State A Legally Viable Claim of Defamation Dkt. No. 1 at ¶¶ 206-212. Defamation requires that Mashariki plead facts showing LEGAL_US_W # 90027121.14 -6- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 12 of 20 Page ID #:84 1 that someone authorized to speak on behalf of BET: (i) intentionally published 2 (ii) a statement of fact (iii) that is false, (iv) unprivileged, and (v) “has a natural 3 tendency to injure or which causes special damage.” Smith v. Maldonado, 72 Cal. 4 App. 4th 637, 645 (1999); see also Cal. Civ. Code §§ 45, 46. 5 In Paragraph 207, Mashariki appears to premise her defamation claim on 6 BET’s alleged statements to the press “that Ms. Mashariki’s March 30, 2017 email 7 to her team misrepresented the facts and were without merit.” Dkt. No. 1 at ¶ 207. 8 Paragraph 206, the first paragraph listed in her defamation claim, however, also 9 incorporates every other paragraph in the Complaint. See Dkt. No. 1 at ¶ 206. In 10 so doing, it becomes anyone’s guess whether the defamation statement is solely 11 within Paragraph 207 or something found in the other 211 paragraphs of 12 Mashariki’s Complaint. 13 BET has combed through the Complaint. At best, it finds another five 14 statements that Mashariki claims are untrue and, thus, may (or may not) be 15 incorporated into her defamation claim. Regardless of whether she intended to rely 16 on one or all of them, none states an actionable claim of defamation. 17 18 19 1. The “Statements” Described In Paragraphs 57, 70, 72 and 207 Are Too Vague To Be Actionable As Defamation A defamation claim cannot be premised on an ambiguous alleged statement: 20 “[A]lthough a plaintiff need not plead the allegedly defamatory statement verbatim, 21 the allegedly defamatory statement must be specifically identified, and the plaintiff 22 must plead the substance of the statement.” Jacobson v. Schwarzenegger, 357 F. 23 Supp. 2d 1198, 1216 (C.D. Cal. 2004). A plaintiff must also “specifically identify 24 who made the statements, when they were made and to whom they were made.” 25 PAI Corp. v. Integrated Sci. Sols., Inc., No. C-06-5349 JSW (JCS), 2007 WL 26 1229329, at *9 (N.D. Cal. Apr. 25, 2007). 27 28 Of the six alleged statements that Mashariki may be relying on for her defamation claim, four are too vague to be actionable. Mashariki alleges: LEGAL_US_W # 90027121.14 -7- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 13 of 20 Page ID #:85 1 2 Paragraph 57 “Upon information and belief . . . a senior BET executive 3 defamed Ms. Mashariki by telling employees that she was 4 ‘faking’ her condition. . . . these untrue and defamatory 5 comments were rampant throughout the Company.” Dkt. No. 1 6 at ¶ 57. 7 Paragraph 70 “In response to press inquiries about Ms. Mashariki’s email, the 8 Company commented that, ‘These claims misrepresent the facts 9 and are without merit. We strongly deny any allegation of 10 wrongdoing. In addition, we will not comment on specific 11 employee matters.’ Carlos Greer, Exec shake-up at BET is 12 ‘next-level crazy’, Page Six, March 31, 2017.” Dkt. No. 1 at 13 ¶ 70. 14 Paragraph 72 “In the media storm that ensued, several anonymous ‘insiders’ 15 made comments to the press that supported the Company’s 16 implied messaging. For instance, a network insider informed 17 Page Six that, ‘[Ms. Mashariki] was terminated as a result of her 18 own performance prior to taking medical leave. They then 19 allowed her to keep her contract, so she was able to keep her 20 salary and benefits after being diagnosed. She is definitely 21 terminated.’ Carlos Greer, Exec shake-up at BET is ‘next-level 22 crazy’, Page Six, March 31, 2017.” Dkt. No. 1 at ¶ 72. 23 Paragraph 207 “BET harmed Ms. Mashariki by falsely telling reporters that 24 Ms. Mashariki’s March 30, 2017 email to her team 25 misrepresented the facts and were without merit.” Dkt. No. 1 at 26 ¶ 207. 27 28 LEGAL_US_W # 90027121.14 -8- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 14 of 20 Page ID #:86 1 In each of these four statements, Mashariki fails to plead sufficient (critical) 2 facts such as who the purported speaker was, and to whom, in what context, or when 3 the statement was purportedly made. The lack of specifics forecloses a 4 determination of whether each alleged statement is opinion, true, or subject to any 5 potential privileges. See, e.g., United States ex rel. Fryberger v. Kiewit Pac. Co., 6 41 F. Supp. 3d 796, 814-15 (N.D. Cal. 2014) (dismissing plaintiff’s defamation 7 claim without leave to amend because the Second Amended Complaint “repeat[ed] 8 the same” “impermissibly vague and conclusory” allegations that “did not permit 9 the Court to identify the statements at issue, nor to conclude whether the statements 10 11 were permissible ‘opinion’ statement” as in the First Amended Complaint.). Without such information, neither Defendants nor the Court can “reasonably 12 infer” that Mashariki was defamed. See Richardson v. HRHH Gaming Senior 13 Mezz, LLC, 99 F. Supp. 3d 1267, 1278 (D. Nev. 2015) (“Because ‘Plaintiff fail[ed] 14 to identify the persons that made the allegedly defamatory statements, who the 15 statements were published to, and when the statements were made,’” the Court 16 could not “reasonably infer” that Defendant had defamed Plaintiff[;]” defamation 17 claim dismissed). Accordingly, to the extent Mashariki’s defamation claim is 18 based on these statements, it fails. 19 20 21 22 2. The Statements Described In Paragraphs 68 and 71, Stating Mashariki Was Leaving BET, Are Not Actionable As The Complaint Demonstrates That, When Made, They Were True This leaves Mashariki with two of her original six potentially allegedly 23 defamatory statements to support her claim. They fail because, as Mashariki’s 24 Complaint reveals, when made—the statements were true. It is Hornbook law that 25 truth is an absolute defense to a claim of defamation. See, e.g., Cal. Civ. Code 26 §§ 45-46 (requiring “false publications” for libel or slander). 27 Those two relevant statements are: 28 LEGAL_US_W # 90027121.14 -9- BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 15 of 20 Page ID #:87 1 Paragraph 68 2 “[On March 29, 2017,] . . . Ms. Lee falsely claimed that, ‘Additionally, Zola Mashariki, EVP, and Head of Original 3 Programming, will also be departing the network.’” Dkt. No. 1 4 at ¶ 68 (see also ¶ 65, referencing statement generally). 5 Paragraph 71 6 “The Company later repeated its false statement that Ms. Mashariki was no longer an employee: ‘BET rep Tracy 7 McGraw, who confirms that Mashariki is no longer with the 8 network, insists that they did nothing wrong.’ . . . .” Dkt. No. 1 9 at ¶ 71. 10 Here, Mashariki admits she was told on February 28, 2017, that her 11 12 employment was being terminated. Dkt. No. 1 at ¶ 63. Thus, BET’s CEO’s 13 statement that Mashariki would be “departing the network” and, later, 14 Ms. McGraw’s alleged “confirmation” that Ms. Mashariki was “no longer with the 15 network” were both true statements. Because a required element of defamation is 16 that the statement be untrue—and neither described comment on its face is untrue— 17 these alleged statements cannot be considered defamatory.4 3. 18 19 Mashariki’s Defamation Claim Further Fails Because She Has Not Pled Facts Demonstrating Any Statement Was Made With Malice 20 Finally, it is axiomatic that a defamation cause of action cannot be 21 maintained against a “public figure” unless the plaintiff sufficiently pleads facts 22 demonstrating the alleged false statement(s) was/were made with malice. See 23 Makaeff v. Trump Univ., LLC, 715 F.3d 254, 270 (9th Cir. 2013) (applying 24 California law: “Because Trump University is a limited purpose public figure, to 25 prevail on its defamation claim it must establish that Makaeff made her statements 26 4 27 28 Moreover, the alleged statement in Paragraph 68 is also privileged under the common interest privilege. See Cal. Civ. Code 47(c). Lee sent the email referenced in Paragraph 68 to personnel of BET and there is no claim of malice. See id. LEGAL_US_W # 90027121.14 - 10 - BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 16 of 20 Page ID #:88 1 with ‘actual malice,’ i.e., knowledge of their falsity or reckless disregard of their 2 truth.”) (citations omitted). California recognizes that an individual need not be a 3 general public figure, but may be a limited purpose (or “vortex”) public figure with 4 respect to the underlying alleged statements. See Ampex Corp. v. Cargle, 128 Cal. 5 App. 4th 1569, 1577 (2005) (“The limited purpose public figure is an individual 6 who voluntarily injects him or herself or is drawn into a specific public controversy, 7 thereby becoming a public figure on a limited range of issues.”). The California 8 Supreme Court explained the rationale behind the limited purpose public figure rule 9 in Reader’s Digest Association v. Superior Court, 37 Cal.3d 244 (1984): 10 11 12 13 14 15 16 17 [P]ublic figures are generally less vulnerable to injury from defamation because of their ability to resort to effective “self help.” Such persons ordinarily enjoy considerably greater access than private individuals to the media and other channels of communication. This access in turn enables them to counter criticism and to expose the fallacies of defamatory statements. . . . [P]ublic figures are [also] less deserving of protection than private persons because public figures, like public officials, have “voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” 37 Cal.3d at 253 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974)). 18 Here, Mashariki, as she describes herself, is “one of the entertainment 19 industry’s most sought-after creative minds.” Dkt. No. 1 at ¶ 1. She worked as an 20 Executive Vice President and Head of Original Programming for BET (Dkt. No. 1 21 at ¶ 17)—a household name and the premier television network focused on Black 22 audiences. See also Dkt. No. ¶ 5 (alleging Mashariki joined BET because “BET’s 23 brand spoke to her.”) By doing so, Mashariki invited and accepted the potential 24 media attention and public commentary that would follow. See, e.g., McGarry v. 25 Univ. of San Diego, 154 Cal. App. 4th 97, 115 (2007) (“[O]ne’s voluntary decision 26 to pursue a career in sports, whether as an athlete or a coach, ‘invites attention and 27 comment’ regarding his job performance and thus constitutes an assumption of the 28 risk of negative publicity.”) (citing Barry v. Time, Inc., 584 F. Supp. 1110, 1119 LEGAL_US_W # 90027121.14 - 11 - BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 17 of 20 Page ID #:89 1 (N.D. Cal. 1984). Indeed, as Mashariki alleges, the press was interested in her 2 employment status, and the attention it received, due to the confusion Mashariki’s 3 email caused, accompanied by her lawyer’s statements to the press, resulted in a 4 “media storm.” Dkt. No. 1 at ¶¶ 68-70, 72; RJN B. 5 Given Mashariki’s high-profile position at BET, there should be no dispute 6 she is a public figure or, at the very least, a limited purpose public figure. See, e.g., 7 Roe v. Doe, No. C 09-0682 PJH, 2009 U.S. Dist. LEXIS 59440, at *35 (N.D. Cal., 8 Jun. 20, 2009) (holding a basketball coach/general manager for NBA franchises 9 was a limited-purpose public figure for purposes of statements regarding 10 performance); Gilbert v. Sykes, 147 Cal. App. 4th 13, 26 (2007) (holding a plastic 11 surgeon plaintiff became a limited purpose public figure by injecting himself into 12 the public debate regarding plastic surgery and personal enhancement); Rudnick v. 13 McMillan, 25 Cal. App. 4th 1183, 1190 (1994) (holding plaintiff was a limited 14 public figure by speaking to a publisher about his concerns regarding publicly held 15 reserved land and working with the publisher to edit an article for publication). 16 Accordingly, Mashariki must plead facts sufficiently demonstrating any or all 17 of the six allegedly defamatory statements were made with actual malice. See 18 Nicosia v. De Rooy, 72 F. Supp. 2d 1093, 1108 (N.D. Cal. 1999) (“Public figures 19 must prove actual malice in order to recover on defamation claims); see also 20 Kottle v. Northwest Kidney Ctrs., 146 F.3d 1056, 1063 (9th Cir. 1998) (“[W]hen ‘a 21 plaintiff seeks damages . . . for conduct which is prima facie protected by the First 22 Amendment, the danger that the mere pendency of the action will chill the exercise 23 of First Amendment rights requires more specific allegations than would otherwise 24 be required.’”) (quoting Franchise Realty Interstate Corp. v. Bd. of Culinary 25 Workers, 542 F.2d 1076, 1083 (9th Cir. 1976)). 26 Mashariki, however, does not even come close—relying again on legal 27 conclusions that do not meet the minimum pleading requirements, let alone the 28 elevated standard for malice. See e.g., Dkt. No. 1 at ¶ 211 (“Defendants’ conduct LEGAL_US_W # 90027121.14 - 12 - BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 18 of 20 Page ID #:90 1 has been deliberate, willful, oppressive, malicious, fraudulent, and conducted in 2 callous disregard of Ms. Mashariki’s rights[.]”) Such conclusive allegations do not 3 satisfy her pleading requirement. See, e.g., Makaeff, 715 F.3d at 270 (a limited- 4 purpose public figure “must show by clear and convincing evidence that 5 [defendant] ‘entertained serious doubts as to the truth’ of [its] statements.”) 6 (citations omitted). Accordingly, for this independent reason, Mashariki’s 7 defamation claim should be dismissed. 8 9 C. Mashariki’s Deficient Second, Eighth, and Eighteenth Claims For Relief Should Be Dismissed Without Leave to Amend 10 As the Ninth Circuit has recognized, a dismissal of a complaint with 11 prejudice is proper when a court finds that “allegation[s] of other facts consistent 12 with the challenged pleading could not possibly cure the deficiency.” Schreiber 13 Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see 14 also Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) 15 (recognizing that dismissal with prejudice is appropriate where it is clear “that the 16 complaint could not be saved by amendment.”); Saul v. United States, 928 F.2d 17 829, 843 (9th Cir. 1991) (denying plaintiff leave to amend, despite his offer of 18 proof to add injunctive and class relief to his prayer for relief: “A district court 19 does not err in denying leave to amend where the amendment would be futile, or 20 where the amended complaint would be subject to dismissal.”) (citations omitted). 21 Here, Mashariki’s second and eighth claims, as asserted against Hill and her 22 eighteenth claim cannot be cured by amendment. Neither Title VII nor FEHA 23 allow for individual liability, as asserted in the second and eighth claims. As for 24 her defamation (eighteenth claim)—even if Mashariki were to try to clarify the 25 vagueness of her Complaint and specifically incorporate the alleged comments 26 about which she complains—it will still fail for three reasons. 27 28 First, presumably if Mashariki had known the names of the alleged speakers or could have provided more detail as to the four vague allegations, she would have LEGAL_US_W # 90027121.14 - 13 - BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 19 of 20 Page ID #:91 1 so pled. Second, as for the two statements that are demonstratively true, she cannot 2 cure that. Third, as for malice, again, if Mashariki had facts that would suggest that 3 any of the statements were made out of malice, presumably she would have 4 asserted those facts. Nor does it seem likely that any facts demonstrating malice by 5 the alleged speaker at the time the statement was made exists: (i) three of the 6 identified statement are denials of her allegations of wrongdoing (thus invited by 7 her email to her “team” and statements to the press); (ii) two were Lee’s vanilla 8 statement that Mashariki would be leaving BET; and (iii) the last is asserted on 9 “information and belief” and may never have happened, at all. 10 Accordingly, absent a legitimate offer of proof as to how Mashariki could 11 possibly cure these defects—something Mashariki will be unable to provide—the 12 Court should dismiss her second and eighth claims asserted against Hill and her 13 eighteenth claim of defamation, without leave to amend. See Foman v. Davis, 371 14 U.S. 178, 183 (1962) (leave to amend is unnecessary where any such amendment 15 would be “futile.”). Anything less would unfairly require BET to expend additional 16 financial and other resources defending against insufficiently pled (and, ultimately, 17 not legally cognizable) claims. See Twombly, 550 U.S. at 546 (in analyzing the 18 sufficiency of plaintiff’s allegations, “[i]t is one thing to be cautious before 19 dismissing a[] . . . complaint in advance of discovery, but quite another to forget 20 that proceeding to . . . discovery can be expensive.”); Associated Gen. Contractors 21 of Cal., Inc. v. Carpenters, 459 U.S. 519, 528, n. 17 (1983) (“[A] district court must 22 retain the power to insist upon some specificity in pleading before allowing a 23 potentially massive factual controversy to proceed.”). That, in turn, would allow 24 Mashariki to misuse the judicial process—something this Court should not allow. 25 26 27 28 LEGAL_US_W # 90027121.14 - 14 - BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 2:17-cv-03366-PSG-AS Document 14 Filed 05/30/17 Page 20 of 20 Page ID #:92 1 2 V. CONCLUSION For the foregoing reasons, BET respectfully request that the Court dismiss 3 Mashariki’s Complaint in its entirety, and, as for Mashariki’s second and eighth 4 claims, as asserted against Hill, and her eighteenth claim for defamation, that these 5 claims be dismissed with prejudice. 6 7 DATED: May 30, 2017 8 PAUL HASTINGS LLP ELENA R. BACA RYAN D. DERRY 9 By: /s/ Elena R. Baca ELENA R. BACA 10 11 Attorneys for Defendants VIACOM INC. and BLACK ENTERTAINMENT TELEVISION LLC 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEGAL_US_W # 90027121.14 - 15 - BET’S POINTS AND AUTHORITIES ISO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)