James Gencarelli v. Chernin Entertainment, LLC et al

Filing 37

ORDER DENYING DEFENDANT'S MOTION TO STRIKE, GRANTING DEFENDANT'S MOTION TO DISMISS, AND GRANTING DEFENDANT'S MOTION FOR MORE DEFINITE STATEMENT 18 by Judge Otis D. Wright, II. For the reasons discussed above, the Court GRANTS F ox's Motion to Dismiss with leave to amend unless otherwise noted, GRANTS Fox's Motion for a More Definite Statement, and DENIES Fox's Motion to Strike. Plaintiff must file an amended complaint curing these deficiencies within 30 days of the date of this Order. Failure to do so will result in the Court dismissing the action for failure to prosecute. See document for details. (lom)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JAMES GENCARELLI, Case No. 2:17-cv-02818-ODW(AJW) 11 12 13 14 15 v. Plaintiff, TWENTIETH CENTURY FOX FILM CORPORATION; JIM GIANOPULOS, CEO; CHERNIN ENTERTAINMENT, LLC; PETER CHERNIN, CEO; and JENNO TOPPING, 16 ORDER DENYING DEFENDANT’S MOTION TO STRIKE, GRANTING DEFENDANT’S MOTION TO DISMISS, AND GRANTING DEFENDANT’S MOTION FOR MORE DEFINITE STATEMENT [18] Defendants. 17 I. 18 INTRODUCTION 19 Defendant Twentieth Century Fox Film Corporation (“Fox”) moves to dismiss 20 and strike pro se Plaintiff James Gencarelli’s Second Amended Complaint.1 (ECF 21 No. 18.) In the alternative, Fox moves for a more definite statement of the case from 22 Plaintiff. (Id.) For the reasons discussed below, the Court DENIES the Motion to 23 Strike, GRANTS Defendant’s Motion to Dismiss, and GRANTS Defendant’s Motion 24 25 26 1 27 28 Plaintiff filed a Complaint on April 13, 2017 (ECF No. 1), a First Amended Complaint on May 8, 2017 (ECF No. 9), and a document simply titled “Complaint” on May 12, 2017 (ECF No. 13). The Court construes this latter complaint as a Second Amended Complaint, and the operative complaint in this action. 1 for a More Definite Statement.2 II. 2 FACTUAL BACKGROUND 3 Plaintiff performed in the movie production of “The Greatest Showman” 4 between January and March 2017. (Second Am. Compl. (“SAC”) ¶ 13, ECF No. 13.) 5 Chernin Entertainment (“Chernin”) produced this film. (Id.) Chernin maintained 6 control over the film’s production and oversaw the activities around the show. (Id. 7 ¶ 22.) Plaintiff alleges that, during his performance, he was subjected to deafening 8 music from speakers around the production set. (Id. ¶ 14.) Plaintiff claims that this 9 music exceeded the limits recommended by the Occupational Safety and Health 10 Administration. (Id. ¶ 26.) At the time of his exposure to this loud music, Plaintiff 11 claims he had to yield to the instructions of the production crew acting at the direction 12 of Chernin and did not receive auditory protection that would have prevented his 13 injuries. (Id. ¶¶ 18, 27.) Plaintiff now allegedly suffers from painful auditory injuries 14 which will require extensive medical treatment. (Id. ¶ 19.) Furthermore, Plaintiff 15 alleges he is not able to perform the duties of a husband. (Id. ¶ 31.) Plaintiff makes a 16 single general statement that all of the factual allegations and any reference to Chernin 17 also apply to Fox. (Id. at 2.) 18 Plaintiff filed the original complaint on April 13, 2017, and a First Amended 19 Complaint on May 8, 2017. (ECF Nos. 1, 9.) On May 12, 2017, Plaintiff filed 20 another complaint without leave of Court, which the Court construes as a Second 21 Amended Complaint. (ECF No. 13.) Defendant responded with these motions on 22 June 23, 2017. (ECF No. 18.) Those motions are now before the Court for decision.3 III. 23 LEGAL STANDARD A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 24 25 26 27 28 2 After carefully considering the papers filed in connection with the instant Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 3 The Court does not consider Plaintiff’s sur-replies, which were filed without leave of Court. (ECF Nos. 31, 32, 34.) 2 1 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 2 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 3 survive a motion to dismiss, a complaint need only satisfy the minimal notice pleading 4 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 5 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 6 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 7 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 9 Iqbal, 556 U.S. 662, 678 (2009). These factual allegations must provide fair notice 10 and enable the opposing party to defend itself effectively. Starr v. Baca, 652 F.3d 11 1202, 1216 (9th Cir. 2011). 12 The determination whether a complaint satisfies the plausibility standard is a 13 “context-specific task that requires the reviewing court to draw on its judicial 14 experience and common sense.” Iqbal, 556 U.S. at 679. A court is generally limited 15 to the pleadings and must construe all “factual allegations set forth in the complaint 16 . . . as true and . . . in the light most favorable” to the plaintiff. Lee v. City of L.A., 250 17 F.3d 668, 688 (9th Cir. 2001). 18 allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. 19 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). But a court need not blindly accept conclusory 20 Generally, a court should freely give leave to amend a complaint that has been 21 dismissed, even if not requested by the party. See Fed. R. Civ. P. 15(a); Lopez v. 22 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). However, a court may deny 23 leave to amend when it “determines that the allegation of other facts consistent with 24 the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. 25 Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 26 Furthermore, a court may strike a pleading or portions of a pleading. See Fed. 27 Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 243 (9th Cir. 1990). A court 28 may strike an insufficient defense or any immaterial, redundant, or impertinent matter. 3 1 Fed. R. Civ. P. 12(f). Additionally, if a pleading is so vague and ambiguous that a 2 party cannot reasonably prepare a response, the party may ask for a more definite 3 statement of the pleading. Fed. R. Civ. P. 12(e). This request must be made before a 4 response is filed, and it must explain the defects of the complaint. Id. If the pleading 5 party fails to provide this statement, the court may strike the pleading. Id. IV. 6 DISCUSSION 7 Plaintiff brings five causes of action: two claims for negligence, “emotional 8 distress and duty of care,” loss of consortium, and “breach of obligation.” Fox, in 9 response, moves to strike Plaintiff’s Second Amended Complaint. Fox also moves to 10 dismiss all of Plaintiff’s claims against it for failure to allege legally sufficient claims. 11 In the alternative, Fox requests a more definite statement from Plaintiff regarding his 12 claims. The Court considers each in turn. 13 A. Motion to Strike 14 Fox argues that the Court should strike the Second Amended Complaint 15 because Plaintiff failed to obtain leave to file such. Generally, a plaintiff may amend 16 a pleading once as a matter of course within 21 days after a responsive pleading or 17 motion is served. Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its 18 pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. 19 Civ. P. 15(a)(2). “In general, if an amendment that cannot be made as of right is 20 served without obtaining the court’s leave . . . it is without legal effect and any new 21 matter it contains will not be considered unless the amendment is resubmitted for the 22 court’s approval.” Drexel Burnham Lambert, Inc. v. Marrone, No. CV 89-2329 23 JMI(Kx), 1989 U.S. Dist. LEXIS 15414, at *2. Here, Plaintiff submitted his Second 24 Amended Complaint without permission from the Court. (ECF No. 13.) While the 25 Court would normally strike such a complaint, the Court finds it unnecessary to do so 26 here. Fox admits that the First Amended Complaint and Second Amended Complaint 27 are “substantively identical” and that the same arguments and defenses would be used 28 in either case. (Mot. 4 n.1, ECF No. 18.) It seems pointless to go through the 4 1 rigmarole of granting Fox’s Motion, requiring Plaintiff to move for leave amend, 2 and—in the likely event the Court grants such—adjudicating Fox’s subsequent motion 3 to dismiss—which would likely contain the same arguments as the ones Fox presses 4 here. Thus, the Court declines to strike Plaintiff’s Second Amended Complaint, and 5 will instead consider Fox’s substantive arguments. 6 B. Motion for a More Definite Statement Plaintiff’s Complaint is vague and ambiguous with regards to which actions 7 8 Fox allegedly committed and which actions Chernin committed. Plaintiff mentions 9 Fox three times in the Complaint: to explain its corporate structure as a film studio 10 (Compl. ¶ 9), to provide its location (id. ¶ 5), and to state that “Factual Allegations 11 and All Reference to Chernin Entertainment for the Sake of Brevity will Apply to 20th 12 Century Fox-Film Corp” (id. at 2). All other allegations reference only Chernin. 13 However, it is unreasonable to infer that all the allegations apply equally to Chernin 14 and Fox. 15 cursory and neglectful in the ownership and activities of its entertainment production 16 company,” but Fox is only described as a film studio and not a production company. 17 (Id. ¶¶ 9, 25.) Plaintiff cannot rely on a single sentence attributing all allegations to 18 both Chernin and Fox where the specific allegations against Chernin make it 19 implausible to also ascribe them to Fox. In light of this, Fox cannot reasonably 20 prepare a response to this Complaint without more information about its actual role in 21 the alleged injury. Fox has yet to file a response to the Complaint and asks for more 22 information regarding the statement of Plaintiff’s claims and the causes of action 23 against Fox specifically. (Mot. 9.) Therefore, Fox’s request for a more definite 24 statement regarding the allegations and facts against it is reasonable and complies with 25 Federal Rules of Civil Procedure 12(e), and the Court grants Fox’s request. 26 C. For example, the Complaint alleges that “Chernin Entertainment was Motion to Dismiss 27 Fox argues that Plaintiff’s entire complaint fails to state a claim and should be 28 dismissed. (Mot. 5.) Plaintiff argues, without specifically addressing Fox’s concerns, 5 1 that he has appropriately pleaded the claims. (Opp’n 1, ECF No. 24.) The Court will 2 consider each in turn. 3 i. First and Second Claims for Negligence 4 Plaintiff has sufficiently pleaded a negligence claim against Chernin. A cause 5 of action for negligence has four elements: duty, breach, causation, and damages. 6 Body Jewelz, Inc. v. Valley Forge Ins. Co., No. 217CV00140ODWPLA, 2017 WL 7 985636, at *4 (C.D. Cal. Mar. 14, 2017). Every person is under a general duty to use 8 reasonable care not to cause physical harm to another person. 9 McGettigan v. Bay Area Rapid Transit Dist., 57 Cal. App. 4th 1011, 1017 (1997). 10 Chernin breached that duty by playing music that was loud enough to cause damage to 11 Plaintiff’s hearing. Of course, as noted above, a negligence claim against Chernin 12 does not necessarily state a negligence claim against Fox. It is unclear whether 13 Plaintiff seeks to impose some form of vicarious liability as against Fox, or whether 14 Fox’s conduct was somehow independently wrongful. Thus, the Court dismisses this 15 claim with leave to amend to clarify exactly what conduct Plaintiff seeks to hold Fox 16 responsible for. See generally 17 Plaintiff’s second cause of action for negligence is more or less duplicative of 18 the first cause of action. The Court therefore dismisses this claim. However, the 19 Court grants leave to amend in the event Plaintiff is actually seeking to plead a 20 different theory of negligence in this second claim. 21 ii. Fourth Claim for Loss of Consortium 22 Plaintiff alleges that due to his injuries, his wife suffers from loss of society and 23 consortium. (Compl. ¶ 31.) California law provides that a spouse, rather than the 24 injured party, must make the claim for loss of consortium. Rodriguez v. Bethlehem 25 Steel Corp., 12 Cal. 3d 382, 408 (1974) (deciding that each spouse has a cause of 26 action for loss of consortium caused by a negligent or intentional injury to the other 27 spouse by a third party); see also Martinez v. Navy League of the United States, No. 28 2:13-cv-5533-ODW(FFMx), 2014 U.S. Dist. LEXIS 17976, at *7 (C.D. Cal. Feb. 12, 6 1 2014) (“Loss of consortium is only available to the spouse of the directly injured 2 party”). Plaintiff’s wife is not a party in this suit. Plaintiff cannot seek to recover for 3 loss of consortium arising from his own injuries. Therefore, Plaintiff’s claim is 4 legally insufficient. The Court dismisses this claim without leave to amend. 5 iii. Third and Fifth Claims 6 Fox argues that Plaintiff’s third claim for “emotional distress and duty of care” 7 and the fifth claim for “breach of obligation” are not legally cognizable causes of 8 action. (Mot. 7.) The Court agrees. “Breach of Obligation” is not a recognized cause 9 of action, and even construing the complaint in the light most favorable to Plaintiff, 10 the Court cannot discern what claim Plaintiff is pleading here. Similarly, “emotional 11 distress and duty of care” is not a cognizable claim. That said, Plaintiff can recover 12 for emotional distress as part of his negligence claim, or he can independently assert a 13 claims for intentional or negligent infliction of emotional distress. 14 therefore dismisses these two claims with leave to amend to state a viable cause of 15 action. The Court 16 iv. 17 Fox asserts that if these allegations against Chernin apply to Fox then Plaintiff’s 18 claims are barred by the exclusive remedy of worker’s compensation because Plaintiff 19 would be an employee of Fox. (Mot. 8.) Because the Court cannot conclude based on 20 the current state of the complaint that Plaintiff is in fact asserting that he is a Fox 21 employee, the Court declines to address this argument at this time. 22 Worker’s Compensation Exclusivity V. CONCLUSION 23 For the reasons discussed above, the Court GRANTS Fox’s Motion to Dismiss 24 with leave to amend unless otherwise noted, GRANTS Fox’s Motion for a More 25 Definite Statement, and DENIES Fox’s Motion to Strike. Plaintiff must file an 26 amended complaint curing these deficiencies within 30 days of the date of this Order. 27 Failure to do so will result in the Court dismissing the action for failure to prosecute. 28 Finally, the Court advises Plaintiff that a Federal Pro Se Clinic is located in the 7 1 United States Courthouse at 312 N. Spring Street, Room 525, Fifth Floor, Los 2 Angeles, California 90012. The clinic is open for appointments on Mondays, 3 Wednesdays, and Fridays from 9:30 a.m. to 12:00 p.m. and 2:00 p.m. to 4:00 p.m. 4 The Federal Pro Se Clinic offers free, on-site information and guidance to individuals 5 who are representing themselves in federal civil actions. 6 Defendants may visit http://www.cacd.uscourts.gov/ and follow the link for 7 “Pro Se Clinic—Los Angeles” or contact Public Counsel at 213–385–2977, extension 8 270. Plaintiffs are encouraged to visit the clinic, or seek the advice of an attorney, as 9 this case proceeds. For more information, 10 11 IT IS SO ORDERED. 12 13 July 31, 2017 14 15 16 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 8

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