1 2 3 4 5 6 7 8 9 DEBRA ELLWOOD MEPPEN (SBN: 183885) dmeppen@grsm.com LAURIE DEYOUNG (SBN: 154796) Ideyoung@grsm.com GENE F. WILLIAMS (SBN: 211390) gfwilliams@grsm.com GORDON REES SCULLY MANSUKHANI, LLP 633 West Fifth Street, 52nd floor Los Angeles, CA 90071 Telephone: (213) 576-5043 Facsimile: (213) 680-4470 Attorneys for Defendants JAMES FRANCO; RABBITBANDINI PRODUCTIONS; RA, BBITBANDINI PRODUCTIONS, LLC; RABBITBANDINI FILMS, LLC; DARK RABBIT PRODUCTIONS LLC; and RABBITBANDINI PRODUCTIONS STUDIO 4 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF LOS ANGELES 12 13 SARAH TITHER-KAPLAN and TONI GAAL, on behalf of themselves and all those similarly situated, Case No: 19STCV35156 [Assigned to the Honorable Ann I. Jones, Dept. SS-11] 14 Gordon Rees Sc Plaintiffs, DEFENDANTS" NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 15 vs. 16 17 18 19 20 21 JAMES FRANCO; VINCE JOLIVETTE; JAY DAVIS; RABBITBANDINI PRODUCTIONS; RABBITBANDINI PRODUCTIONS, LLC; RABBITBANDINI FILMS, LLC; DARK RABBIT PRODUCTIONS, LLC; RABBITBANDINI PRODUCTIONS STUDIO 4, LLC; and DOES 1-10, [Declaration of Gene Williams, [Proposed] Order, and Defendants' Motion to Strike Portions of Plaintiffs' Complaint filed concurrently herewith] Date: Time: Dept.: Defendants. April 15, 2020 10:00 a.m. SS-11 22 Complaint Filed: October 3, 2019 23 24 25 26 27 28 The Motion is brought on behalf of Defendants James Franco, Rabbitbandini Productions, Rabbitbandini Productions, LLC, Rabbitbandini Films, LLC, Dark Rabbit Productions, LLC, and RabbitBandini Productions, LLC, and will be joined by Defendants Vince Jolivette and Jay Davis. -1DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 2 TO THIS HONORABLE COURT AND TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on April 15, 2020, at 10:00 a.m. or as soon thereafter as 4 the matter may be heard before the Honorable Anne I. Jones in Department 11 of the above- 5 captioned Court, located at 312 N. Spring Street, Los Angeles, California 90012, Defendants 6 JAMES FRANCO, RABBITBANDINI PRODUCTIONS, RABBITBANDINI 7 PRODUCTIONS, LLC, RABBITBANDINI FILMS, LLC, DARK RABBIT PRODUCTIONS, 8 LLC, and RABBITBANDINI PRODUCTIONS, LLC (together "Defendants") will and hereby 9 do demur to Plaintiffs SARAH TITHER-KAPLAN and TONI GAAL's (together "Plaintiffs") Complaint, pursuant to California Code of Civil Procedure Sections 430.10(e) and (f) and 11 430.30(a), on the following grounds: • 10 12 Plaintiffs' first cause of action for Sex Discrimination in violation of Cal. Civil Code 13 Sections 51, 51.5, and 52 is barred by the applicable statute of limitations. Cal. Civ. Proc. § 14 335.1. 15 16 17 Plaintiffs' second cause of action for Sexual Harassment in violation of Cal. Civil Code Sections 51.9 and 52 is barred by the applicable statute of limitations. Cal. Civ. Proc. § 335.1. Plaintiffs third cause of action for Interference with the Exercise of Civil Rights in 18 Violation of the Bane Act, Cal. Civil Code Section 52.1, is barred by the applicable statute of 19 limitations. Cal. Civ. Proc. § 335.1. 20 In advance of filing this Demurrer, Defendants' counsel met and conferred with 21 Plaintiffs counsel regarding the issues raised herein, but the parties were unable to resolve the 22 disputed issues. See Declaration of Gene Williams, ¶¶ 4-6; Exhs. A, B. The parties participated 23 in an informal pre-motion conference with the Court on February 20, 2020, at which time the 24 Court set the briefing schedule and the hearing date for the present motion. Id., ¶ 7. 25 This Demurrer is made pursuant to Code of Civil Proc. §430.10 and is based upon this 26 Notice of Demurrer, the Memorandum of Points and Authorities attached hereto, the Declaration 27 of Gene Williams, the pleadings, records, papers and other documents on file in the above- 28 referenced action, pleadings, records and papers upon which judicial notice may properly be -2DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 taken, and upon such further oral and documentary evidence and argument as may be presented 2 at or prior to the hearing on this matter. 3 4 Dated: February 28, 2020 GORDON REES SC LLY MANSUKHANI, LLP 5 6 By: Debra Ellwood Meppen Laurie DeYoung Gene F. Williams Attorneys for Defendants JAMES FRANCO; RABBITBANDINI PRODUCTIONS; RABBITBANDINI PRODUCTIONS, LLC; RABBITBANDINI FILMS, LLC; DARK RABBIT PRODUCTIONS LLC; and RABBITBANDINI PRODUCTIONS STUDIO 4 7 8 9 10 11 12 13 Gordon Rees Sc 14 Q 15 n 16 Abu 17 18 19 20 21 22 23 24 25 26 27 28 -3DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 2 DEMURRER Defendants JAMES FRANCO, RABBITBANDINI PRODUCTIONS, 3 RABBITBANDINI PRODUCTIONS, LLC, RABBITBANDINI FILMS, LLC, DARK RABBIT 4 PRODUCTIONS, LLC, and RABBITBANDINI PRODUCTIONS, LLC (together "Defendants") 5 heteby demur to the Complaint of Plaintiffs SARAH TITHER-KAPLAN and TONI GAAL 6 (together "Plaintiffs") on the following separate and distinct grounds: 7 1. Plaintiffs first cause of action for Sex Discrimination in violation of Cal. Civil 8 Code Sections 51, 51.5, and 52 is barred by the applicable statute of limitations. See Cal. Civ. 9 Proc. § 335.1; see also W. Shield Investigations & Sec. Consultants v. Superior Court (2000) 82 10 Cal.App.4th 935. 11 2. Plaintiffs' second cause of action for Sexual Harassment in violation of Cal. Civil 12 Code Sections 51.9 and 52 is barred by the applicable statute of limitations. See Cal. Civ. Proc. 13 § 335.1; see also W Shield Investigations & Sec. Consultants v. Superior Court (2000) 82 14 Cd1.App.4`1) 935. 15 3. Plaintiffs third cause of action for Interference with the Exercise of Civil Rights 16 in Violation of the Bane Act, Cal. Civil Code Section 52.1, is barred by the applicable statute of 17 limitations. See Cal. Civ. Proc. § 335.1; see also W Shield Investigations & Sec. Consultants v. 18 Superior Court (2000) 82 Cal.App.4th 935. 19 Dated: February 28, 2020 GORDON REES SCULLY MANSUKHANI, LLP 20 21 By: Debra Ellwood Meppen Laurie DeYoung Gene F. Williams Attorneys for Defendants JAMES FRANCO; RABBITBANDINI PRODUCTIONS; RABBITBANDINI PRODUCTIONS, LLC; RABBITBANDINI FILMS, LLC; DARK RABBIT PRODUCTIONS LLC; and RABBITBANDINI PRODUCTIONS STUDIO 4 22 23 24 25 26 27 28 -4- DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 TABLE OF CONTENTS INTRODUCTION 2 3 II. 4 5 6 7 9 LEGAL ARGUMENT 12 A. Standard on Demurrer 12 B. Plaintiffs' First Three Causes of Action are Time-Barred 12 C. The Discovery Rule Does Not Save Plaintiffs' First Three Causes of Action 14 The Court Should Not Grant Plaintiffs Leave to Amend Unless Plaintiffs Can Provide a Credible Explanation for Any Proposed Change 18 D. 8 III. 8 CONCLUSION 18 10 ta. 11 .4' 12 c • 9 .--.= • = cc `CD 13 z u • ch' " icf cr. Ca1) GPJ • 8 14 15 .0O• re) re) 17 16 18 19 20 21 22 23 24 25 26 27 28 -5DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT TABLE OF AUTHORITIES 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Cases Berman v. Bromberg (1997) 56 Ca1.App.4th 936 18 California Dental Assn. v. California Dental Hygenists' Assn. (1990) 222 Ca1.App.3d 49 18 CAMSI IV v. Hunter Technology Corp. (1991) 30 Cal.App.3d 1525 15 Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.App.4th 797 15, 16 Freis v. Soboroff (2000) 81 Ca1.App.4th 1102 12 G.D. Searle & Co. v. The Superior Court of Sacramento County (1975) 49 Ca1.App.3d 22 15 Gatto v. County of Sonoma (2002) 98 Ca1.App.4th 744 13 Grisham v. Phillip Morris USA., Inc. (2007) 40 Ca1.4th 623 15 Guardian North Bay, Inc. v. Sup. Ct. (Meyers) (2001) 94 Ca1.App.4th 963 12 Hendy v. Losse (1991) 54 Ca1.3d 723 18 Judd v. Weinstein No. CV-18-5724 PSG (FFMx), 2018 U.S. Dist. LEXIS 224564 Mangini v. Aerojet-General, Corp. (1991) 230 Cal.App.3d 1125 15, 16 15 McKelvy v. Boeing North American, Inc. (1999) 74 Ca1.App.4th 151 14, 15 Rivas v. Saftey-Kleen (2002) 98 Cal.App.4th 218 15 Salimi v. State Comp. Ins. Fund (1997) 54 Ca1.App.4th 216 12 Saliter v. Pierce Brothers Mortuaries (1978) 81 Ca1.App.3d 292 15 Vallejo Development Co. v. Beck Development Co. (1994) 24 Ca1.App.4th 929 18 28 -6DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 W. Shield Investigations & Sec. Consultants v. Sup. Ct. 82 Cal.App.4th 935 12, 13 2 Statutes 3 California Code of Civil Procedure, Section 430.10 12 Civil Code Section 42 12 Civil Code Section 51 12, 13 4 5 6 7 8 9 Civil Code Section 51.5 12 Civil Code Section 51.9 12 10 11 12 Civil Code Section 52 12, 13 Civil Code Section 52.1 12 13 14 15 Code of Civil Procedure Section 335.1 12, 13 Code of Civil Procedure Section 338 13 16 17 18 19 20 21 22 23 24 25 26 27 28 -7DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 2 3 I. INTRODUCTION The #MeToo and Times Up movements have made tremendous and important 4 contributions to improving not only the culture of the entertainment business but also the world 5 as a whole. Unfortunately, while these movements have rightly brought down a number of 6 reprehensible individuals, they have also ensnared an innocent man. James Franco ("Franco.") 7 The salacious allegations in the Complaint have made great tabloid fodder, but like most tabloid 8 stories, they are false and inflammatory, legally baseless and brought as a class action with the 9 obvious goal of grabbing as much publicity as possible for attention-hungry Plaintiffs SARAH 10 TITHER-KAPLAN ("Tither-Kaplan") and TONI GAAL ("Gaal"). Most importantly for the 11 purposes of the instant demurrer, most of the conduct alleged her occurred almost six years ago 12 and claims arising therefrom are barred by the applicable statutes of limitations. 13 Gordon Rees Sc MEMORANDUM OF POINTS AND AUTHORITIES In January 2018, Franco won the Best Actor Golden Globe for his standout performance 14 in The Disaster Artist and was primed for a high-profile awards season. Meanwhile, as new 15 #MeToo allegations hit the press each day, Tither-Kaplan, a former student at James Franco's 16 acting school dating back to 2014, decided to jump on the bandwagon and insert herself into the 17 media's insatiable appetite to ruin the next celebrity. Before this abrupt about face, Ms. Tither- 18 Kaplan had always expressed gratitude for the opportunity to work in Emmy-nominated 19 productions with Franco, one of her teachers. Tither-Kaplan was so effusive in her praise of 20 Franco that she posted unsolicited tweets and texts extolling Franco's virtues, how much she 21 admired him, and how much she got out of her time at Studio 4: 22 • 23 "It was a dream come true to play Cersei Lannister alongside these incredible artists. @jamesfrancotv;" 24 • "James is a gem. I'm lucky to be part of this big of weird fam." 25 • "It's a dream to work with these beautiful weirdos." 26 • "Thanks for censoring my nip jamesy. L0000veeee these maniacs"; 27 • "Making a Scene is nominated for an EMMY! What a dream. [Fire and 28 heart emojis] to the wonderful cast and crew of this wild ride. I am so -8DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 grateful to have been a part of this." 2 • 3 have done it without the opportunities you gave me. So thank you. I owe 4 you big time." 5 • 6 "Follow our movie!! @thelonghome I'm so proud to be a part of this magic." • 7 Gordon Rees Sc "Hey! I know it's late but I just signed with my first manager. I couldn't "I just wanted to say that I have had such an amazing experience being part 8 of Studio 4 and would love to help out in any way I can in the future. I have 9 a lot of on set experience as a PA and have done script coverage and office 10 work for a bunch of production companies and worked as a producer on my 11 own shorts. So I just want to offer my help with pretty much any aspect of 12 production if you guys ever need it. Rabbit Bandini is clearly the best. Also 13 I'm even really good at getting coffee so I can do that too. I will also enroll 14 in class again as soon as I get my January paycheck. Thank you for 15 everything." 16 Now, after failing to achieve any significant professional success, over half a decade 17 later, she claims she was mistreated. Unfortunately, the unsubstantiated, false, and woefully 18 belated allegations were, predictably bought hook, line and sinker by the Los Angeles Times and 19 other media outlets — and so began Franco's nightmarish odyssey as a falsely accused man. 20 How should Franco respond? Some accused of misconduct confidentially settled claims 21 to 'avoid more adverse publicity. Some fought back in highly publicized lawsuits. Not Franco. 22 He is an ardent believer in the righteousness of the #MeToo and Times Up movements. Franco 23 is doing what is best for him: forcefully denying the scurrilous and false accusations but 24 supporting his accusers right to their day in court. In the end, Franco is confident that he will be 25 vindicated. 26 Tither-Kaplan claims Franco's behavior was inappropriate or sexually exploitative: 27 because Franco is a celebrity, Tither-Kaplan felt an abuse of power that compelled her to appear 28 nude (in a sex scenes class she voluntarily enrolled in, and in films she voluntarily agreed to -9DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 appear) and because her student film (in which she had, of course, agreed to appear and exploit) 2 had been uploaded on Vimeo. 3 Each of those allegations, which stem from alleged conduct dating back to as early as 4 2014, is easily debunked: (1) Tither-Kaplan knowingly engaged in the nude scenes under the 5 terms of contracts and nudity riders that she signed; (2) no one pressured her to perform in any of 6 those films; (3) the casting director and others involved with those films have confirmed that all 7 actresses, including Tither-Kaplan, were aware of the nudity scenes ahead of time, that they were 8 constantly checking to make sure the actresses felt comfortable, that they signed nudity waivers, 9 and that no one — including Tither-Kaplan — ever complained; and (4) regarding the class at 10 Studio 4 itself, the student films were shot by the students themselves with their own crews, and 11 were intended to be a web series, so the final product was always intended to be shown publicly, 12 and, indeed, Studio 4 understands that the students themselves uploaded the videos. 13 As to Tither-Kaplan's most sensationalistic accusation - that the vaginal guards of four 14 other actresses were removed by Franco during filming: (1) Tither-Kaplan admitted that she was 15 not one of the actresses using a vaginal guard; (2) all of the actresses involved confirmed that 16 their vaginal guards were not removed, that the shooting of the film was professional, and that 17 they did not feel mistreated, uncomfortable or taken advantage of; and (3) the cameramen 18 involved in shooting the scene have confirmed that the guards were never removed. 19 Meanwhile, Plaintiff Gaal also seeks redress for personal grievances which have no place 20 in 'a class action lawsuit, including, inter alia, being upset that an audition was "filmed." 21 Ironically, it appears that the Plaintiffs have competing personal grievances against Franco. Gaal 22 is suing because she was not selected for a "Master" acting class back in 2014, while Tither- 23 Kaplan is upset that she was. 24 Boiled down, this Complaint falsely alleges that Studio 4 was an enterprise created to 25 allow Franco and others to exploit women sexually by having them audition nude (false), 26 promising them acting opportunities only if they appeared nude (false), and used student films in 27 which they appeared nude for his own personal enjoyment (false). In fact, Studio 4 was founded 28 to provide classes for aspiring actors. Men and women attended and took classes taught by acting -10DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 professionals. In the three years the school was open, one class, taught for one semester, 2 concerned acting in romantic scenes. And, despite the lurid allegations in the Complaint, no 3 students were asked to — or ever did — audition in any kind of state of undress. Even Tither- 4 Kaplan herself has previously admitted that attempts to portray her "as a victim of sexual 5 assault... [are] unethical and inaccurate." 6 7 grievances such as unreturned phone calls. A class action lawsuit is not a vehicle for litigants to 8 harass others by filing frivolous claims that wholly lack any conceivable merit under the existing 9 facts or law. This lawsuit is a travesty of justice and the culmination of a meritless campaign 10 11 Gordon Rees Sc Litigation is not a game. A court of law is not the proper venue for addressing personal that has unfairly tarnished a decent man's hard-earned reputation. Before Defendants can begin the process of clearing their names by defeating this case on 12 its merits (or lack thereof), several of Plaintiffs' most damning claims must be eliminated on 13 procedural grounds, because they were brought years after the applicable statutes of limitations 14 had run, and therefore cannot survive a demurrer. Specifically, Plaintiffs' first cause of action 15 for Sex Discrimination, their second cause of action for Sexual Harassment, and their third cause 16 of action for Interference with the Exercise of Civil Rights are all governed by a two-year statute 17 of limitations. Because Plaintiffs enrolled in Studio 4 in 2014, and allege that the conduct giving 18 rise to these three causes of action began in 2014, Plaintiffs are time-barred from bringing these 19 claims now. Moreover, Plaintiffs cannot rely on the Discovery Rule to toll the applicable statute 20 oflimitations because (a) they did not allege any efforts or diligence on their part in investigating 21 the claims at the time of the alleged misconduct, and (b) they affirmatively allege that they had 22 knowledge of the alleged misconduct at the time it occurred, therefore precluding any claim that 23 they did not discover the wrongdoing until a later date. 24 Because Plaintiffs' first three causes of action are time barred, and because Plaintiffs 25 cannot rely on the Discovery Rule to toll the applicable statutory period, Defendants' Demurrer 26 should be sustained and Plaintiffs' first three causes of action should be dismissed with 27 prejudice. 28 -11DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT Gordon Rees Sc 1 II. LEGAL ARGUMENT 2 A. 3 The function of a demurrer is to test the sufficiency of the pleadings by raising questions Standard on Demurrer 4 of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219.) A demurrer admits 5 all'facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Preis v. 6 Soboroff (2000) 81 Cal.App.4th 1102, 1104.) A demurrer is properly sustained where the 7 complaint fails to state facts sufficient to constitute a cause of action against a defendant or it 8 discloses a defense that would bar recovery. (Code of Civ. Proc. § 430.10(e); Guardian North 9 Bay, Inc. v. Sup. Ct. (Meyers) (2001) 94 Cal.App.4th 963, 971-972; see also Blank v. Kirwan 10 (1985) 39 Ca1.3d 311, 318 [demurrer should be sustained where defects cannot be cured by 11 amendment].) "When a ground for objection to a complaint, such as the statute of limitations, 12 appears on its face or from matters of which the court may or must take judicial notice, a 13 demurrer on that ground is proper." Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1120. 14 "[W]hen 'the relevant facts are not in dispute, the application of the statute of limitations may be 15 decided as a question of law."' Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 713(quoting 16 International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Ca1.4th 606, 611-612.) 17 B. Plaintiffs' First Three Causes of Action are Time-Barred 18 Plaintiffs' first cause of action for sex discrimination in violation of California Civil Code 19 sections 51, 51.5 and 52, their second cause of action for sexual harassment in violation of 20 California Civil Code sections 51.9 and 42, and their third cause of action for interference with 21 the exercise of civil rights in violation of the Bane Act under California Civil Code section 52.1 22 are all governed by the same two year statute of limitations under California Code of Civil 23 Procedure Section 335.1, which governs personal injury claims. See W. Shield Investigations & 24 Sec. Consultants v. Sup. Ct. (82 Cal.App.4th 935, 952-953 (holding that plaintiff's Unruh claims 25 for sexual harassment and interference with civil rights claims, under Civil Code Sections 51.9 26 and 52.1, respectively, "constitute[d] a refinement and codification of the existing common law 27 liability for violation of civil rights" and were therefore governed by the one-year statute of 28 limitations period (which has subsequently been extended to two years under Code of Civil -12DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 Procedure Section 335.1.); see also Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 760 2 (holding that claims for denial of full and equal access to accommodations under Civil Code 3 Section 51 and interference with civil rights under Civil Code Section 52 are "subject to the one- 4 year statute" for personal injury (which has subsequently been increased to two years).) 5 The court in W Shield Investigations specifically addressed whether the one (now two) 6 year statute of limitations relating to personal injury or the three-year statute of limitations for 7 statutory claims under Code of Civil Procedure Section 338(a) should apply. In finding that the 8 shorter statutory period applied, the court noted that the longer three-year statutory period does 9 not apply, even where a cause of action is based on a statute, where that statute "did not create a 10 new form of liability... but merely codified and refined existing law." W. Shield Investigations, 11 82 Cal.App.4`h at 952 (internal citation omitted.) The court then found that claims under the 12 Unruh act did not create a new form of liability, because "[o]ur Supreme Court has indicated that 13 common law contains the roots of the [Unruh] Act." Id. The court concluded that: Because the Act, as set forth at Civil Code section 51 et. seq., constitutes a refinement and codification of existing common law liability for violation of civil rights, the applicably statute of limitations under the Act is section 340, subdivision (3), the one-year limitations period for personal injury actions, rather than the section 338, subdivision (a), the three-year limitations period for liability created upon a statute. Gordon Rees Sc 14 15 16 17 18 Id., at 953. 19 Plaintiffs allege in their complaint that Plaintiff Toni Gaal enrolled in Studio 4 in or about 20 February 2014. See Complaint at ¶ 58. Plaintiffs further allege that Plaintiff Sarah Tither-Kaplan 21 enrolled in Studio 4 in or about April 2014. See Complaint at ¶ 59. More importantly, Plaintiffs 22 expressly allege in their Complaint that: 23 24 25 26 "[i]n or around 2014 until the closure of the school in October 2017, Defendants harassed and exploited Plaintiffs and Sexual Exploitation Class Members by demanding participation in sexually exploitive auditions and classes in order to be accepted into master classes and be case in film productions." See Complaint at ¶ 183 (emphasis added). 27 These allegations of harassment and exploitation are the conduct that gives rise to each of 28 Plaintiffs' first three causes of action. Specifically, in Paragraph 175 of the Complaint, under the -13DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 first cause of action for sex discrimination, Plaintiffs specifically allege that "Defendants 2 intentionally denied such rights when they sexually harassed and exploited Plaintiffs and the 3 Sexual Exploitation Class Members ..." Likewise, the language cited above from Paragraph 183 4 is contained in the allegations supporting Plaintiffs' second cause of action for sexual 5 harassment. Finally, in Plaintiffs' third cause of action for interference with the exercise of civil 6 rights, Plaintiffs again allege that the same conduct, occurring from 2014 through 2017, gives 7 rise to the cause of action: "Defendants intimidated and coerced Plaintiffs and the Sexual 8 Exploitation Class Members by demanding participating in sexually exploitive auditions and 9 cldsses in order to be accepted into master classes and be cast in film productions..." See 10 Complaint, ¶ 191. Gordon Rees Se 11 From the face of Plaintiffs Complaint it is clear that the alleged misconduct that gave rise 12 to Plaintiffs' first, second, and third causes of action occurred "in or around 2014 until the 13 closure of the school in October 2017." Therefore, Plaintiffs' first three causes of action had to 14 be raised by 2016. Instead, Plaintiffs waited three additional years before bringing these claims. 15 These claims are time-barred and Defendants' demurrer to these causes of action should be 16 sustained. 17 C. 18 • The Discovery Rule Does Not Save Plaintiffs' First Three Causes of Action Plaintiffs make a half-hearted effort to save their first three causes of action by nominally 19 asserting the Discovery Rule. Specifically, paragraphs 177, 186, and 195 contain the following 20 identical language: "Plaintiffs and Sexual Exploitation Class Members did not recognize the extent 21 of the harm caused until the productions they worked on were never released and the extent of the 22 fraudulent promises made became clear." See Complaint, TT 177, 186, 195. First, by relying on 23 the Discovery Rule in their Complaint as a means to avoid the applicable statute of limitations, 24 Plaintiffs concede that their claims are time-barred without application of the Discovery Rule. See 25 McKelvy v. Boeing North American, Inc. (1999) 74 Cal.App.4°' 151, 160. In McKelvy, the court 26 held that "by their reliance on the 'Discovery Rule," Plaintiffs concede by implication that, without 27 it, their claims are barred by one or more statutes of limitations. Id. 28 More importantly, this language is woefully inadequate for Plaintiffs to meet the standard -14DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT necessary to assert the Discovery Rule as a defense to the running of the statute of limitations. The 2 Discovery Rule itself is a "judicially recognized exception to the strict operation of the statute of 3 limitations." Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 296. The rule is a 4 special defense to the statute of limitations, which delays accrual of the statute of limitations until 5 "a Plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue . . ." Rivas v. Saftey- 6 Kleen (2002) 98 Cal.App.4th 218, 224.2 7 The California Supreme Court clarified the plaintiff's burden of pleading facts sufficient 8 to warrant application of the Discovery Rule in Grisham v. Phillip Morris U.S.A., Inc. (2007) 40 9 Ca1.01 623, 638: 14 California law recognizes a general, rebuttable assumption that plaintiffs have "knowledge of the wrongful cause of injury." In order to rebut that presumption, "[a] plaintiff whose complaint shows on its fact that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery, and (2) the inability to have made earlier discovery despite reasonable diligence." In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to "show diligence;" "conclusory allegations will not withstand demurrer." 15 Id. (emphasis added) (internal citations omitted); see also McKelvy, supra, at 160 (applying the 16 same rule as to burden of proof.) This same standard was echoed most recently in Judd v. 17 Weinstein, No. CV-18-5724 PSG (FFMx), 2018 U.S. Dist. LEXIS 224564, at *10 (holding that 18 "to successfully invoke the discovery rule, 'the plaintiff must plead that, despite diligent 19 investigation of the circumstances of the injury, he or she could not have reasonably discovered 20 facts supporting the cause of action within the applicable statute of limitations period.") 10 11 12 Gordon Rees Se 13 21 Plaintiffs' cursory and conclusory statement does not come close to meeting this standard, 22 and is insufficient to withstand a demurrer. See, e.g. CAMSI IV v. Hunter Technology Corp. 23 (1991) 30 Cal.App.3d 1525, 1536-1537 ("Mere conclusory assertions that the delay in discovery 24 25 26 27 28 2 "Generally speaking, a cause of action accrues at 'the time when the cause of action is complete with all of its elements.' Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.App.4th 797, 806. "The traditional rule is that a statute of limitations begins to run upon the occurrence of/he last element essential to the cause of action, even if the Plaintiff is unaware of the cause of action." Mangini v. Aerojet-General, Corp. (1991) 230 Cal.App.3d 1125, 1149-1150. In a personal injury case, "the period of limitations [generally] commences when the wrongful act takes place." G.D. Searle & Co. v. The Superior Court of Sacramento County (1975) 49 Cal.App.3d 22, 25. -15DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 was reasonable are insufficient and will not enable the complaint to withstand general demurrer.") 2 The Discovery Rule is not intended to encourage dilatory tactics, and "[i]n order to employ the 3 Discovery Rule to delay accrual of a cause of action, a plaintiff must demonstrate that he or she 4 conducted a reasonable investigation of all potential causes of his or her injury." Fox v. Ethicon 5 Endo-Surgery, Inc., supra, 35 Cal.4th at 811. 6 In fact, in their effort to use the Complaint to engage in character assassination of the 7 Defendants, they make numerous (false and salacious) allegations that completely undermine any 8 attempt to argue that they should be entitled to the benefits of the Discovery Rule. First, nowhere 9 in the Complaint do Plaintiffs specifically allege the time and manner of discovery of the conduct 10 that gives rise to Plaintiffs' Unruh Act claims. Given the two year statute of limitations, Plaintiffs 11 must allege in their Complaint that they did not discover the facts that would give rise to their 12 claims until October 3, 2017 or later (two years prior to filing their Complaint). There is no such 13 language in the Complaint. Even more damning is the fact that Plaintiffs do not even attempt to 14 claim that they engaged in reasonable diligence, including a "diligent investigation of the 15 circumstances of the injury," but that despite that diligence they "could not have reasonably 16 discovered facts supporting the cause of action within the applicable statute of limitations period." 17 See Judd, supra, 2018 U.S. Dist. LEXIS 224564, at *10. 18 In Judd, the plaintiff, in a successful bid to assert the discovery rule to avoid the applicable 19 statute of limitations, alleged that she did not become aware of the statements by Defendant that 20 would give rise to her claim until December 2017 (nearly 20 years after the statements were 21 allegedly made), that she would not have been able to discover the statements by conducting a 22 reasonable investigation, and that had she inquired at the time the statements were allegedly made, 23 the Defendants would not have disclosed the statements, rendering any investigation futile. Id., at 24 *11. Based on these allegations, the Court held that the plaintiff had made sufficient allegations 25 to assert the discovery rule at the pleading stage, since the allegations in the complaint must be 26 treated as true. Id. At *10. 27 Here, conversely, Plaintiffs are not entitled to any such presumption, because Plaintiffs do 28 not even allege that they engaged in reasonable diligence, or that to conduct a reasonable and -16DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 diligent investigation would have been impossible or futile. Instead, Plaintiffs allege throughout 2 the Complaint that they knew that Defendants were engaged in misconduct throughout the time 3 they attended Studio 4, and even complained about the misconduct. For example, Plaintiffs allege 4 in Paragraph 65 that they and others "experienced intimidation and sexual objectification, while 5 also discovering that the most assured way of currying favor with the Defendants and male- 6 dominated production crew was by evidencing a willingness to disrobe and agree to the sexual 7 adyances of Franco and others." Plaintiffs allege that they (or other students) complained about 8 the sexual harassment in Paragraph 94. They allege in Paragraph 95 that they "clearly understood 9 that being a team player who was willing to participate in sexually exploitive auditions was 10 required for acceptance and approval." Plaintiffs even allege that Plaintiff Gaal expressed 11 concerns about the audition process at the time: 14 When Plaintiff Gaal expressed concerns about the audition process and that those chosen were primarily those students willing to engage in simulated sexual acts that were far beyond normal expectations, she as told by a male employee that she needed to "grow thicker skin" and "stop being so sensitive." 15 See Complaint, ¶ 96. Plaintiffs then allege that as a result of Plaintiff Gaal expressing her concerns, 16 she was not accepted into the Sex Scenes Master Class. See Complaint, ¶ 102. Similarly, Plaintiffs 17 allege that Plaintiff Tither-Kaplan learned that her "willingness to push boundaries and do 18 whatever it took to create a scene that Franco would approve of led to additional opportunities 19 (which were then revoked after she voiced her concerns.) See Complaint, ¶ 101 (emphasis 20 added). 12 13 21 These allegations, while asserted in an effort to smear Defendants as much as possible, 22 demonstrate without a doubt that Plaintiffs knew of alleged facts during their time at Studio 4 that 23 would have given rise to their Unruh causes of action. Plaintiffs go to such great lengths to smear 24 Defendants, describing them as overtly and unabashedly "sexually hostile, predatory and 25 exploitive" that it would be impossible for a reasonable person, faced with such treatment, to fail 26 to understand that Defendants actions were wrong and actionable. As a result, it is impossible for 27 Plaintiffs to argue that they were unaware of the alleged misconduct or that they could not have 28 learned of the misconduct through reasonable investigation, which explains why they do not even -17DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 make a serious effort to assert such an argument in their Complaint. 2 D. Gordon Rees Sc 3 The Court Should Not Grant Plaintiffs Leave to Amend Unless Plaintiffs Can Provide a Credible Explanation for Any Proposed Change 4 To avoid demurrer, Plaintiffs may not "discard factual allegations of a prior complaint, 5 avoid them by contradictory averments, in a superseding, amended pleading." California Dental 6 Assn. v. California Dental Hygenists' Assn. (1990) 222 Cal.App.3d 49, 53, fn. 1; accord., Hendy 7 v. Losse (1991) 54 Ca1.3d 723, 742-743 (holding that plaintiffs cannot cure defective pleadings by 8 omitting allegations without explanation.) 9 explained." Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946. 10 This rule was designed to prohibit plaintiffs from filing sham pleadings to avoid demurrers. See 11 Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945-946. Here, Plaintiffs have alleged in no 12 uncertain terms that they were aware of the alleged misconduct by the Defendants at the time the 13 misconduct was alleged to have occurred, suffered negative consequences at the time, and even 14 complained about what they believed to be improper conduct. They cannot now be permitted to 15 amend their Complaint to allege ignorance of the same facts they have already acknowledged 16 being aware of. Therefore, if this Court considers granting leave to amend, it must not do so unless 17 Plaintiffs first provide a credible explanation for any amendment they propose. 18 III. 19 "[I]nconsistencies with prior pleadings must be CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court sustain their 20 demurrer to Plaintiffs' first three causes of action on statute of limitations ground, without leave 21 to amend. 22 23 Dated: February 28, 2020 GORDON RE SCULLY MANSUKHANI, LLP By: Debra Ellwood Meppen Laurie DeYoung Attorneys for Defendants JAMES FRANCO; RABBITBANDINI PRODUCTIONS; RABBITBANDINI PRODUCTIONS, LLC; RABBITBANDINI FILMS, LLC; DARK RABBIT PRODUCTIONS LLC; and RABBITBANDINI PRODUCTIONS STUDIO 4 24 25 26 27 28 -18- DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 a. 6 =g 12 ANC g 13 g -te ) i fs 0t ca. .te it' 73 o ca o s- rn C 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1198606/50323644v,I -19DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT 1 3 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP 633 West Fifth Street, 52" floor, Los Angeles, CA 90071. On February 28, 2020, I served the within documents: 4 5 KFENDANTS'l NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 6 7 8 9 VIA ELECTRONIC FILING/SERVICE: Complying with Code of Civil Procedure section 1010.6, my electronic business address is stello@grsm.com and I caused such document(s) to be electronically served through the Case Anywhere system for the above-entitled case to the parties on the Service List maintained on Case Anywhere's website for this case. The file transmission was reported as complete and a copy of the Case Anywhere Receipt will be maintained with the original document(s) in our office. 10 11 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 28, 2020 at Los Angeles, o 13 O t; c) cli) 14 USANA M. TELLO 15 16 o 6, V 17 I8 19 20 71 77 24 25 26 27 28 FSINS/1198606/50330254v I The Motion is brought on behalf of Defendants James Franco, Rabbitbandini Productions, Rabbitbandini Productions, LLC, Rabbitbandini Films, LLC, Dark Rabbit Productions, LLC, and RabbitBandini Productions, LLC, and will be joined by Defendants Vince Jolivette and Jay Davis.