Otano v. Ocean et al

Filing 32

ORDER Re: DEFENDANTS MALAY AND BHAMBOO LLC'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) 18 by Judge Ronald S.W. Lew: Based on the above analysis, the Court GRANTS in part and DENIES in part Defendants Motion to Dismiss Plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). SEE ORDER FOR COMPLETE DETAILS. (jre)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 Micah Otano,
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)
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Plaintiff,
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vs.
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Frank Ocean, aka
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Christopher Breaux; Fresh
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Produce, LP; Malay, aka
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James Ryan Ho; Bhamboo LLC; )
UMG Recordings, Inc. dba
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The Island Def Jam Music
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Group; Universal Music
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Group Inc.,
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Defendants.
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)

CV 13-01605 RSWL (JJCx)
ORDER Re: DEFENDANTS
MALAY AND BHAMBOO LLC’S
MOTION TO DISMISS
PLAINTIFF’S FIRST
AMENDED COMPLAINT
PURSUANT TO FEDERAL RULE
OF CIVIL PROCEDURE
12(b)(6) [18]

Currently before the Court is a Motion to Dismiss

22 filed by Defendants Malay, aka James Ryan Ho, (“Malay”)
23 and Bhamboo LLC (“Bhamboo”; collectively “Defendants”)
24 [15].

The Court, having considered all papers and

25 arguments submitted pertaining to this Motion, NOW
26 FINDS AND RULES AS FOLLOWS:
27

Defendants’ Motion to Dismiss is GRANTED in part

28 and DENIED in part.
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I.

INTRODUCTION

Plaintiff and Defendant Malay are music producers

3 and songwriters.

FAC ¶ 17.

Defendant Bhamboo is

4 purported to be Malay’s loan-out company.

Opp’n 8:1-2.

5 In the summer of 2010, Plaintiff and Malay co-wrote and
6 co-produced a musical recording titled “DayLight.”
7 ¶ 17.

FAC

According to Plaintiff, he and Malay orally

8 agreed to share co-producer credit on “DayLight” and to
9 keep each other informed of their efforts to shop the
10 song to potential buyers in the music industry (“Oral
11 Agreement”).

Id.

Plaintiff asserts that Malay

12 breached the Oral Agreement after shopping “DayLight”
13 to the singer-songwriter Frank Ocean and convincing him
14 to use elements of “DayLight” in the production of his
15 song “Lost” without giving Plaintiff co-producer
16 credit, and that Malay fraudulently induced Plaintiff
17 to waive his copyright interests in the song “Lost” by
18 signing a “Certificate of Recording.”
19

Plaintiff thereafter filed suit against Defendants

20 Malay and Bhamboo, as well as Frank Ocean, a/k/a
21 Christopher Breaux, (“Ocean”); Fresh Produce, LP
22 (“Fresh Produce”); UMG Recordings, Inc. d/b/a The
23 Island Def Jam Music Group (“IDJ”); and Universal Music
24 Group, Inc. (“Universal”) for (1) breach of contract,
25 (2) fraud in the inducement, (3) rescission and
26 restitution, (4) copyright infringement, (5)
27 declaratory relief, and (6) intentional infliction of
28 emotional distress.

Defendants filed the present
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1 Motion to Dismiss on April 26, 2013, requesting that
2 the Court dismiss Defendant Bhamboo from the First
3 Amended Complaint (“FAC”) and dismiss Plaintiff’s first
4 four claims against Defendant Malay pursuant to Federal
5 Rule of Civil Procedure 12(b)(6) [18].
6

II. DISCUSSION

7 A.

Legal Standard

8

Federal Rule of Civil Procedure 12(b)(6) allows a

9 party to move for dismissal of one or more claims if
10 the pleading fails to state a claim upon which relief
11 can be granted.

Dismissal can be based on a lack of

12 cognizable legal theory or lack of sufficient facts
13 alleged under a cognizable legal theory.

Balistreri v.

14 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
15 1990).

However, a party is not required to state the

16 legal basis for its claim, only the facts underlying
17 it.

McCalden v. Cal. Library Ass’n, 955 F.2d 1214,

18 1223 (9th Cir. 1990), cert. denied, 112 S. Ct. 2306
19 (1992).

In a Rule 12(b)(6) motion to dismiss, a court

20 must presume all factual allegations of the complaint
21 to be true and draw all reasonable inferences in favor
22 of the non-moving party.

Klarfeld v. United States,

23 944 F.2d 583, 585 (9th Cir. 1991).
24

The question presented by a motion to dismiss is

25 not whether the plaintiff will prevail in the action,
26 but whether the plaintiff is entitled to offer evidence
27 in support of its claim.

Swierkiewica v. Sorema N.A.,

28 534 U.S. 506, 511 (2002).

“While a complaint attacked
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1 by a Rule 12(b)(6) motion to dismiss does not need
2 detailed factual allegations, a plaintiff’s obligation
3 to provide the ‘grounds’ of his ‘entitle[ment] to
4 relief’ requires more than labels and conclusions, and
5 a formulaic recitation of a cause of action’s elements
6 will not do.”

Bell Atl. Corp. v. Twombly, 550 U.S.

7 544, 555 (2007) (internal citation omitted).

Although

8 specific facts are not necessary if the complaint gives
9 the defendant fair notice of the claim and the grounds
10 upon which the claim rests, a complaint must
11 nevertheless “contain sufficient factual matter,
12 accepted as true, to state a claim to relief that is
13 plausible on its face.”

Ashcroft v. Iqbal, 556 U.S.

14 662, 678 (2009) (internal quotation marks omitted).
15 B.

Analysis

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1.

17

As a preliminary matter, the Court addresses

Plaintiff’s Request for Judicial Notice

18 Plaintiff’s Request for Judicial Notice [22].
19 Plaintiff asks the Court to take judicial notice of an
20 agreement dated June 21, 2012, between Defendants
21 Bhamboo and Fresh Produce regarding Defendant Malay’s
22 services as co-producer and co-mixer of the album
23 “channel ORANGE” (“Album”), on which the song “Lost” is
24 featured (“Producer Agreement”).

Attached as an

25 exhibit to the Producer Agreement is the Certificate of
26 Recording by which Plaintiff purportedly waived his
27 copyright interest in “Lost.”
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The Court DENIES Plaintiff’s Request for Judicial
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1 Notice as to both the Producer Agreement and the
2 Certificate of Recording.

Although a Court may

3 consider material outside the complaint when ruling on
4 a motion to dismiss so long as the material is
5 “properly submitted as part of the complaint” or is
6 judicially noted pursuant to Federal Rule of Evidence
7 201, Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th
8 Cir. 2001), Plaintiff has failed to show that the
9 Producer Agreement or the Certificate of Recording,
10 neither of which are a part of or are attached to the
11 FAC, qualify for the Court’s consideration under either
12 approach.

Additionally, it is not necessary for the

13 Court to consider either document in determining the
14 outcome of this Motion.

See Yanek v. Staar Surgical

15 Co., 388 F. Supp. 2d 1110, 1126-27 (C.D. Cal. 2005)
16 (declining to consider documents that were not relevant
17 to the court’s determination of the motion to dismiss).
18 Thus, the Court DENIES Plaintiff’s Request for Judicial
19 Notice in its entirety.
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2.

Motion to Dismiss
a.

Dismissal of Defendant Bhamboo

The Court finds that Plaintiff’s allegations in the

23 FAC are insufficient to state a claim for relief
24 against Defendant Bhamboo.

Plaintiff’s allegations

25 primarily set forth legal conclusions concerning
26 Bhamboo, which the Court need not accept.

Halkin v.

27 VeriFone Inc., 11 F.3d 865, 868 (9th Cir. 1993)
28 (“Conclusory allegations of law and unwarranted
5

1 inferences are insufficient to defeat a motion to
2 dismiss for failure to state a claim.”).

Plaintiff

3 does not allege any facts to support his assertion that
4 Malay was “acting both on his own behalf and on
5 Bhamboo’s behalf with respect to the conduct alleged in
6 the FAC,” Opp’n 7:19-21; FAC 2:3-4, nor does Plaintiff
7 allege any facts to support his assertion that “each of
8 the [d]efendants was the co-conspirator, alter ego,
9 agent or principal” of one another and acted “with the
10 knowledge and consent of the other [d]efendants.”
11 ¶ 16.

FAC

Plaintiff does not clarify whether Defendant

12 Bhamboo was a party to the Oral Agreement, nor does he
13 elucidate the nature of the relationship between
14 Defendants Malay and Bhamboo at the time the
15 Certificate of Recording was executed.

Similarly,

16 Plaintiff does not indicate what role, if any, Bhamboo
17 played with regard to Malay’s alleged fraud.
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Therefore, the Court GRANTS Defendants’ Motion as

19 it pertains to the dismissal of Defendant Bhamboo.

In

20 light of Plaintiff’s offer to plead specific additional
21 facts so as to cure these deficiencies, the Court gives
22 Plaintiff twenty days leave to amend the FAC
23 accordingly.

See Lopez v. Smith, 203 F.3d 1122, 1130

24 (9th Cir. 2000).
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b.

Plaintiff’s Claim for Breach of Contract

In support of their Motion to Dismiss, Defendants

27 argue that the Court should dismiss Plaintiff’s breach
28 of contract claim because the Oral Agreement, which
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1 Defendants are alleged to have breached, only pertains
2 to the song “Daylight” and not to “Lost,” and that even
3 if the Oral Agreement does extend to “Lost,” it was
4 effectively extinguished when Plaintiff signed the
5 Certificate of Recording, which acts as a novation of
6 the Oral Agreement.
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However, whether the Oral Agreement extends to

8 “Lost” and whether it was extinguished by the
9 Certificate of Recording concerns the underlying merits
10 and substance of Plaintiff’s breach of contract claim.
11 As noted by the Supreme Court, these are inappropriate
12 issues to address at the motion to dismiss stage.

See

13 Swierkiewica v. Sorema N.A., 534 U.S. 506, 511 (2002)
14 (stating that for purposes of a motion to dismiss, the
15 issue is not whether the plaintiff will ultimately
16 prevail in the action, but whether the plaintiff is
17 entitled to offer evidence in support of its claims).
18 Accordingly, because Defendants have not shown that
19 Plaintiff otherwise failed to state a claim on which
20 relief can be granted, the Court DENIES Defendants’
21 request to dismiss Plaintiff’s breach of contract
22 claim.
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c.

Plaintiff’s Claims for Fraud in the

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Inducement and for Rescission and

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Restitution

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Defendants argue that Plaintiff’s claims for fraud

27 in the inducement and for rescission and restitution
28 should be dismissed because Malay’s alleged
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1 misrepresentation to Plaintiff was not “material”
2 within the meaning of a claim for fraud under
3 California law and because Plaintiff has not
4 established that he “justifiably relied” on Malay’s
5 purported misrepresentation.

However, the issues of

6 materiality and justified reliance are not issues to be
7 decided at this stage of the litigation.
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Materiality of misrepresentation is ordinarily a

9 question of fact to be determined by a trial court or
10 jury.

See, e.g., Engalla v. Permanente Med. Grp.,

11 Inc., 15 Cal. 4th 951, 977 (Cal. 1997) (“[M]ateriality
12 is generally a question of fact.”).

Materiality may be

13 decided as a matter of law only if the “fact
14 misrepresented is so obviously unimportant that the
15 jury could not reasonably find that a reasonable man
16 would have been influenced by it.”

Id.

Although

17 Defendants argue that Malay’s alleged misrepresentation
18 to Plaintiff that his “Daylight” performances were not
19 used in “Lost” is not material because Plaintiff was
20 unable to tell the difference between his performances
21 on “DayLight” and the performances on “Lost,”
22 Defendants fail to indicate how Plaintiff’s inability
23 to determine the difference in performances renders
24 Malay’s alleged misrepresentation immaterial as a
25 matter of law.

Absent additional evidence, the Court

26 is not persuaded by Defendants’ argument that Plaintiff
27 failed to sufficiently allege material
28 misrepresentation.
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Similarly, the issue of justifiable reliance is

2 ordinarily a question of fact to be determined by a
3 trial court or jury.

See, e.g., Gray v. Don Miller &

4 Assoc., Inc., 35 Cal. 3d 498, 503 (1984); Guido v.
5 Koopman, 1 Cal. App. 4th 837, 843 (1991)
6 (“[J]ustifiable reliance is an essential element of a
7 claim for fraudulent misrepresentation, and the
8 reasonableness of the reliance is ordinarily a question
9 of fact.”).

Whether a party’s reliance was justified

10 may be decided as a matter of law if reasonable minds
11 can come to only one conclusion based on the facts.
12 Guido, 1 Cal. App. 4th at 843.

Here, Defendants fail

13 to indicate how Plaintiff’s consent to relinquish his
14 rights to “DayLight” despite knowing that significant
15 elements of “DayLight” were used in “Lost” renders his
16 reliance on Malay’s aforementioned statements
17 unjustifiable as a matter of law.

Absent further proof

18 beyond Defendants’ bald assertions, it is unlikely that
19 reasonable minds would only come to the conclusion that
20 Plaintiff’s purported reliance was unjustified.
21 Accordingly, the Court DENIES Defendants’ request to
22 dismiss Plaintiff’s claims for fraud in the inducement
23 and for rescission and restitution.
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d.

Plaintiff’s Claim for Intentional

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Infliction of Emotional Distress

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Defendants contend that the Court should dismiss

27 Plaintiff’s claim for intentional infliction of
28 emotional distress (“IIED”), which stems from an
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1 alleged death threat that Malay made to Plaintiff.
2 Defendants maintain that Plaintiff has not sufficiently
3 alleged two of the elements required for such a claim
4 under California law: (1) extreme and outrageous
5 conduct, and (2) severe emotional distress.
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With regard to the severe emotional distress

7 element, Defendants’ reliance on Bogard v. Employers
8 Casualty Co., 164 Cal. App. 3d 602 (1985), is
9 misplaced.

Unlike the plaintiff in Bogard, Plaintiff

10 alleges here that he is in constant fear for his safety
11 and that of his immediate family.

Cf. Bogard, 164 Cal.

12 App. 3d at 607 n.2 (plaintiffs alleged that they had
13 “suffered mental anguish and emotional distress, and
14 became ill, nervous and upset.”).

Such an allegation

15 sufficiently sets forth the nature and extent of
16 Plaintiff’s distress and, thus, Plaintiff has
17 adequately pleaded severe emotional distress.
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However, Plaintiff has not adequately alleged

19 “extreme and outrageous conduct” as required under
20 California law.

Malay’s statement is akin to the

21 statement at issue in Cochran v. Cochran, 65 Cal. App.
22 4th 488 (1998), in that it was a mere threat, which,
23 without more, cannot constitute outrageous conduct.
24 See Cochran, 65 Cal. App. 4th at 496.

See also Cole v.

25 Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 155 n.7
26 (1987).

Specifically, Malay’s threat, to the extent

27 that it can be characterized as such, is unclear and
28 lacks immediacy.

Although the statement appears to
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1 indicate Malay’s desire to kill Plaintiff, it is
2 unclear from the statement alone whether such desire
3 necessarily reflected his immediate intention to do so.
4 The statement’s imminency is further undermined by the
5 fact that it was made to a third-party and not to
6 Plaintiff himself.

Additionally, there is no

7 indication that Malay took any steps to either carry
8 out his alleged threat or make the threat appear more
9 real.

See Cochran, 65 Cal. App. 4th at 498.

Malay’s

10 subsequent assertion that his statement was “for real”
11 does nothing more than emphasize that his desire to
12 kill Plaintiff was not idle.

Such an assertion does

13 not establish Malay’s actual intent to kill Plaintiff
14 or an attempt by Malay to follow-through on his desire
15 to do so.
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Moreover, Malay’s statement does not fall within

17 the ambit of conduct that courts have generally found
18 to meet the extreme and outrageous standard.

Threats

19 typically rise to the level of “outrageous” conduct
20 when considered in light of other acts committed
21 concurrently.

See, e.g., Alcorn v. Anbro Eng’g, Inc.,

22 2 Cal. 3d 493, 496 (1970) (finding that the defendant
23 supervisor’s conduct of shouting insulting epithets,
24 terminating plaintiff’s employment, and humiliating
25 plaintiff, when taken together, was “outrageous”);
26 Newby v. Alto Riviera Apartments, 60 Cal. App. 3d 288,
27 297–98 (1976) (finding that threats made in the course
28 of continuous harassment and intimidation comprised a
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1 “total course of conduct” that met the test for
2 outrageous conduct) superseded by statute on other
3 grounds as recognized in W. Land Office, Inc. v.
4 Cervantes, 175 Cal. App. 3d 724 (1985).

Furthermore,

5 although Plaintiff and Malay were engaged in an ongoing
6 dispute, Malay’s statement was not part of a series of
7 threats made for the purpose of compelling Plaintiff
8 into specific behavior.

Cf. Kiseskey v. Carpenters’

9 Trust for Southern California, 144 Cal. App. 3d 222,
10 232 (1983).

As such, Malay’s statement, as alleged in

11 the FAC, does not constitute an actionable threat
12 because it does not rise to the level of extreme or
13 outrageous conduct.
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Therefore, the Court GRANTS Defendants’ request to

15 dismiss Plaintiff’s claim for IIED.

Because counsel

16 for Plaintiff indicated at the hearing on this Motion
17 that essentially all of the relevant facts related to
18 Plaintiff’s IIED claim have already been pled, the
19 Court dismisses Plaintiff’s IIED claim without leave to
20 amend because allowing Plaintiff leave to amend here
21 would be futile.

See Albrecht v. Lund, 845 F.2d 193,

22 195 amended, 856 F.2d 111 (9th Cir. 1988).
23

IV. CONCLUSION

24

Based on the above analysis, the Court GRANTS in

25 part and DENIES in part Defendants’ Motion to Dismiss
26 Plaintiff’s First Amended Complaint pursuant to Federal
27 Rule of Civil Procedure 12(b)(6).
28 Court:
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Specifically, the

1

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GRANTS Defendants’ Motion to Dismiss

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Plaintiff’s FAC as to Defendant Bhamboo and

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allows Plaintiff twenty days leave to amend

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accordingly;

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DENIES Defendants’ Motion to Dismiss as to
Plaintiff’s breach of contract claim;

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DENIES Defendants’ Motion to Dismiss as to

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Plaintiff’s fraud in the inducement claim and

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rescission and restitution claim; and

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GRANTS Defendants’ Motion to Dismiss as to

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Plaintiff’s IIED claim without leave to amend.

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Additionally, the Court DENIES Plaintiff’s Request

13 for Judicial Notice.
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15 IT IS SO ORDERED.
16 Dated: May 30, 2013.
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HONORABLE RONALD S. W. LEW
U.S. District Court Judge

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