\l 3? IQ JAMES G. BOHM (Cali bmia Bar No. 132430) BOHM WILDISH ATSEN. LLP 695 TOWN CENTER DRIVE. SUITE 700 COSTA MESA. CA 92626 Telephone: 714) 384-6500 Facsnmilc: I4) 384-6501 Attorneys for Plaintiff. J. ROE SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES J. ROE. asc Number: Plaintiff. v. M. ORTH. T. SMITH F. X. NETWORKS, L.L.C.. COMPLAINT TO ENFORCE NETFLIX. INC. and CONFIDENTIAL SETTLEMENT DOES I through 100. AND FOR OTHER Defendants. JURY DEMAND ACTION FILED: MARCH 20 I 9 TRIAL DATE: Not sci. COMPLAINT TO EN FORCE CONFIDENTIAL SETTLEMENT AGREEMENT AND FOR OTHER RELIEF: JURY DEMAND - PAGE I I9 0? G- JURISDICTION I. This Court has jurisdiction over the claims for relief asserted herein [pursuant to Article 6. Section 10 of the Constitution of the State of California. VENUE 2. Venue of this civil action is properly ?xed in Los Angeles County. ICalifomia. pursuant to Code of Civil Procedure sections 395 and 395.5. PARTIES 3. Plaintiff. Roe (hereinafter ?Plainti??), is a citizen of the United States of America. and of the State of California. Roe is a fictitious name used by Plaintiff to protect Plaintiff?s legitimate privacy rights. as well as to seek to mitigate damages to the extent possible. Cf: Doe v. Linen/n Uni?ed Selma! Dist. (20l0) 188 Cal.App.4th 758. 766-767. 4. Plaintiff is informed and believes. and thereupon avers. that Defendant. M. Orth (hereinafter ?Orth?). is a citizen ofthe United States of America. but not of the State of California. 5. Plaintiff has no information regarding the citizenship or domicile of Defendant. T. Smith (hereinafter ?Smith?). 6. Plaintiff is informed and believes. and thereupon avers. that Defendant. F. X. Networks, L.L.C. (hereinafter is a limited liability company whose principal place of business is within the State of California. 7. Plaintiff is informed and believes. and thereupon avers. that Defendant. Net?ix. Inc. (hereinafter ?Net?ix?), is a corporations whose principal place of business is within the State of California. 8. Plaintiff is informed and believes. and thereupon avers. that DOES 1 through 100 are other natural persons. corporations. limited liability companies. general partnerships. limited partnerships. limited liability partnerships. trusts. COMPLAINT TO ENFORC CONFIDENTIAL SETTLEMENT AG RE EM ENT AND FOR OTHER JURY DEMAND - PAGE 2 IQ \lO?Mb 0c unincorporated associations. and/or other entities of any kind or character. whor'which have incurred liability to Plaintiff in relation to the transactions and'or occurrences which are the subject of the instant Complaint. and/or who/which have any interest in the subject of the instant Complaint. 9. Except as may be described herein. Plaintiff is as yet ignorant of the true names. capacities. and nature and extent of participation in the course of conduct alleged herein of the persons sued as DOES I through 100 inclusive, and Plaintiff is as yet ignorant of the nature and extent of any interest which the persons sued as 9 DOES I through 100 inclusive may have in the subject of the instant Complaint; Plaintiff therefore sues these defendants by such ?ctitious names. Plaintiff will amend Ithis complaint to allege the true names and capacities of the DOE defendants when ascertained. FIRST CLAIM FOR RELIEF (against I through 100) l0. The averments contained in paragraphs I through 9 hereof are incorporated herein by reference. I . In or about the year 2000. Plaintiff sued Orth (inter alia) for recovery of actual and exemplary damages as a remedy for invasion of privacy and/or defamation. l2. Plaintiff and Orth (inter alia) entered into a con?dential settlement agreement (hereinafter the in June of 2000; one object of the CSA was to protect Plaintiff from further loss of privacy, further injury to reputation. and further emotional distress. beyond that suffered by Plaintiff as a result of the tons committed by Orth prior to the parties? entry into the SA. l3. Plaintiff will file a motion seeking leave of court to ?le the CSA under seal. l4. The contains numerous covenants by Orth. including an implied covenant of good faith and fair dealing. COMPLAINT TO ENFORC CONFIDENTIAL SETTLEMENT AGREEMENT AND FOR OTHER JURY DEMAND PAGE 3 15. Orth?s entry into the CSA necessarily implied an intention to perform Ithose covenants. l6. Orth subsequently breached the primary covenant of the CSA (set out at Sections 3 and 4 thereof). I7. Plaintiff ?rst became aware of the breach in early 2019. 18. In February of 20 9, Plaintiff requested that Orth provide documents and information which might have explained the reasons Orth breached the primary covenant of the CSA. Orth. through counsel. has refused. and continues to refuse, to 9 provide the requested documents and information. l9. Plaintiff is presently unaware of any reason for Orth to have breached the CSA. and can imagine no possible reason other than out of Orth?s malice toward Plaintiff malice that preoexisted Orth?s entry into the CSA. 20. The facts and circumstances of the breach, and the refusal to provide the requested documents and infomiation, strongly imply that Orth never intended to perform the primary covenant of the CSA. and Plaintiff thereupon avers that Orth never intended to perfomi the primary covenant of the CSA. 21 . Plaintiff would not have entered into the CSA if Plaintiff had known that Orth had no intention to perform the primary covenant of the CSA. 22. Plaintiffs entry into the CSA was induced by fraud. and/or fraud and deceit, and/or promissory fraud. 23. Plaintiff did not discover. and could not in the exercise of reasonable diligence have discovered, that Plaintiff had been defrauded until early 2019. 24. Plaintiff has sustained actual damages as a result of the above-described fraudulent conduct of()rth. 25. Orth is guilty of oppression, fraud. and/or malice. for purposes of Civil Code section 3294. and Plaintiff is therefore entitled to recover exemplary damages for the sake of example and by way of punishing Orth. COMPLAINT TO ENFORC CONFIDENTIAL SETTLEMENT AGREEMENT AND FOR OTHER JURY DEMAND PAGE 4 IQ \lO?Mb 0e 26. The facts set forth hereinabove establish that Plaintiff is entitled to judgment over and against Defendants. Orth. and DOES I through IOO. jointly and severally. awarding recovery of actual and exemplary damages. WHEREFORE. Plaintiff requests relief as set forth hereinbelow. UMWIOQ (against Defendants, Orth. Smith, . Net?ix. and DO I through 100) 27. The averments contained in paragraphs I through 26 hereof are incorporated herein by reference. 28. Orth?s breach of the primary covenant of the also constituted defamation. 29. At a point in time presently unknown to Plaintiff. Orth. Smith. and FXN jointly collaborated on the publication of matter concerning Plaintiff which is both false. and defamatory per se. including a false implication that Plaintiff is a chronic abuser of alcohol who consumes alcohol throughout the day. 30. Commencing in early 201 8. and Orth. Smith. and FXN have published and republished the defamatory matter. 31. Commencing in early 20l9. and continuously thereafter. Orth. Smith. FXN. and Net?ix republished the defamatory matter in a manner that was undoubtedly intended to. and did. reach a new group of persons; this effected a repetition by Net?ix of Onh?s. Smith's. earlier defamatory statements. and a recirculation of their earlier defamatory statements to a new audience; said repetition by Netflix was reasonably foreseeable to Orth. Smith. and FXN. 32. In or about February of 20l9. Plaintiff requested that FXN cease and desist from the ongoing defamation; in doing so. Plaintiff specified the exact words of the defamation: FXN has refused. and continues to refuse. to cease and desist. 33. Orth. Smith. and FXN are guilty of oppression. fraud. and/or malice. for purposes of Civil Code section 3294. and Plaintiff is therefore entitled to recover COMPLAINT TO ENFORC CONFIDENTIAL SETTLEMENT AGREEMENT AND FOR OTHER JURY DEMAND PAGE 5 \lO?Utb exemplary damages for the sake of example and by way of punishing Orth. Smith. and FXN. 34. The facts set forth hereinabovc establish that Plaintiff is entitled to judgment over and against Defendants, Orth. Smith. and FXN. and DOES I through l00. jointly and severally. awarding recovery of actual and exemplary damages; and that Plaintiff is entitled to judgment over and against Defendant, Netflix. awarding recovery of actual damages. WHEREFORE. Plaintiff requests relief as set forth hereinbelow. (for recovery Won of rivacy) (against Defendants. Orth. Smith. FXN. and DOES rough 100) 35. The averments contained in paragraphs 1 through 34 hereof are incorporated herein by reference. 36. The above-stated facts also constitute the elements of the tort of false light invasion of privacy. 37. The ongoing defamation places Plaintiff before the public in a false light Ithat would be highly offensive to a reasonable person: Defendants. Orth. Smith. and FXN. each knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the Plaintiff would be placed. Orth has personal knowledge that the defamatory matter was false. because she fabricated it herself. Neither Smith. nor FXN. even bothered to make inquiry of Plaintiff. 38. The facts set forth hereinabove establish that Plaintiff is entitled to judgment over and against Defendants. Orth. Smith. and FXN. and DOES I through IOO. jointly and severally. awarding recovery of actual and exemplary damages. WHEREFORE. Plaintiff requests relief as set forth hereinbelow. COMPLAINT TO ENFORC CONFIDENTIAL SETTLEMENT AG RE EM ENT AND FOR OTHER JURY DEMAND - PAGE 6 IQ \lO?Utb FOURTH CLAIM FOR RELIEF (for speci?c pet?'iormanee ol seiilemenf a reement) (against Defendants, Orth. Smith. FXN. and DO 8 I through 100) 39. The averments contained in paragraphs I through 38 hereof are incorporated herein by reference. 40. A remedy at law for Orth?s future and continuing breach ofthe primary covenant of the CSA would be inadequate. at a minimum. because Orth is unlikely to Ihave sufficient assets to respond fully in damages. In addition. damages for Orth?s future and continuing breach of the primary covenant of the CSA may be irreparable 9 and may only be prevented by specific performance. The SA is just and reasonable. and is supported by adequate consideration. 42. The CSA is subject to speci?c performance by both of the contracting parties. 43. The terms of the SA are sutTieiently de?nite for the Court to know what to enforce. 44. As set out above. Orth has refused to provide certain documents and information to Plaintiff. Plaintiff is informed and belies that Orth is in contractual privity to both Smith and FXN. and that Orth has a contractual right of control over Smith?s and ongoing publication of the defamatory matter. 45. The facts set forth hereinabove establish that Plaintiff is entitled to judgment over and against Defendants. Orth. Smith. and FXN. ordering that they comply prospectively (126.. as to all future re-publication) with the primary covenant of the (SA: alternatively, if this Court finds that it cannot order Smith and FXN to speci?cally perform such covenants. then Plaintiff is entitled to judgment over and against Defendant. Orth. ordering that she use her contractual powers over Smith and FXN to prevent them prospectively as to all future republication) from engaging in conduct contrary to the primary covenant of the SA. COMPLAINT TO ENFORC CONFIDENTIAL SETTLEMENT AG RE EM ENT AND FOR OTHER JURY DEMAND - PAGE 7 IQ \lO?Utb WHEREFORE. Plaintiff requests relief as set forth hereinbelow. FIFTH CLAIM FOR RELIEF (for recovery of dams es for Breach of contract (against Defendant. Ort . and DOES I through 1 0) 46. The averments contained in paragraphs I through 45 hereof are incorporated herein by reference. 47. This Fifth Claim for Relief seeks recovery ofdamages for breaches ofthe CSA which were committed prior to the date on which the (?ourt orders specific performance of the SA. 48. Plaintiff has sustained actual damages as a direct and proximate result of Orth?s breach of the CSA. 49. The facts set forth hereinabove establish that Plaintiff is entitled to judgment over and against Defendants. Orth. and DOES I through IOO. jointly and severally. awarding damages as a remedy for breach of the CSA. WHEREFORE. Plaintiff requests relicfas set forth hereinbelow. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests the following relief: a. On the First Claim for Relief. judgment over and against Defendants. Orth. and DOES I through 100. jointly and severally. awarding recovery of actual and exemplary damages; b. 0n the Second Claim for Relief. judgment over and against Defendants. ()rth. Smith. and and DOES I through l00. jointly and severally. awarding recovery of actual and exemplary damages: and judgment over and against Defendant. Netflix. awarding recovery of actual damages; c. On the Third Claim for Relief. judgment over and against Defendants. Onh. Smith. and FXN. and DOES 1 through IOO. jointly and severally. awarding recovery of actual and exemplary damages; COMPLAINT TO ENFORC CONFIDENTIAL SETTLEMENT AG RE EM ENT AND FOR OTHER JURY DEMAND - PAGE 8 \l 3? DJ lo d. On the Fourth Claim for Relief. judgment over and against Defendants. Orth. Smith. and FXN. ordering that they comply prospectively (tie. as to all future re-publication) with the primary covenant of the alternatively. if this Court ?nds that it cannot order Smith and FXN to speci?cally perform such covenants, judgment over and against Defendant, Orth. ordering that she use her contractual powers over Smith and FXN to prevent them prospectively as to all future re- publication) from engaging in conduct contrary to the primary covenant of the CSA: e. 0n the Fifth Claim for relief. judgment over and against Defendants. Onh. and DOES I through 100. jointly and severally. awarding damages as a remedy for breach of the and f. such other and further relief. at law or in equity. to which this Court finds Plaintiffto bejustly entitled. Dated: l9 March 2019 Respectfully submitted. JAMES G. BOHM BOHM WILDISH MATSEN, LLP 89830 MESANEEIBPRIVE SUITE 700 Telephone: 714 )384-6500 Facsgmile: l4) 384-6501 mitigaale?Pho. 132430 Attorneys for Plaintiff. J. ROE ircmipLAtNT ?led COMPLAINT TO EN FORCE CONFIDENTIAL SETTLEMENT AGREEMENT AND FOR OTHER JURY DEMAND PAGE 9 2 Plaintiff hereby demands trial by jury of all issues triable by a jury. pursuant to 3 applicable law. including. but not necessarily limited to Article 1. Section 16 of the 4 California Constitution. and/or Section 592 of the California Code oI?Civil Procedure. 5 6 Dated: 19 March 2019 Respectfully submitted. 7 JAMES C. BOHM BOHM WILDISH MATSEN, LLP 8 70" 9 Telephone: 714) 384-6500 10 l4) . 12 By: i?h'li?igr?iaB??QPiqq. 132430 Attumeys for Plaintiff2t) ?led COMPLAINT TO ENFORCE CONFIDENTIAL SETTLEMENT AGREEMENT AND FOR OTHER JURY DEMAND PAGE 10