Preview
1 KING, HOLMES, PATERNO & SORIANO, LLP
HOWARD E. KING, ESQ., STATE BAR NO. 77012
2 JACKSON S. TRUGMAN, ESQ., STATE BAR NO. 295145
JTRUGMAN@KHPSLAW.COM
3 1900 AVENUE OF THE STARS, TWENTY-FIFTH FLOOR
LOS ANGELES, CALIFORNIA 90067-4506
4 TELEPHONE: (310) 282-8989
FACSIMILE: (310) 282-8903
5
Attorneys for Defendants Slipknot, LLC,
6 Slipknot, Inc., Knot Productions, LLC, Corey
Taylor, and Michael Shawn Crahan
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF LOS ANGELES, CENTRAL DISTRICT
11
12 STEAMROLLER, LLC, CASE NO. 23STCV13254
13 Plaintiff, REPLY IN SUPPORT OF DEFENDANTS’
MOTION TO STRIKE
14 vs.
Date: October 23, 2023
15 SLIPKNOT, LLC, et al., Time: 9:00 am
Dept.: 52
16 Defendants.
Reservation ID: 495052387255
17
Action filed: June 8, 2023
18 Trial date: Not set
19
20
21 / / /
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
KING, HOLMES,
PATERNO &
SORIANO, LLP 3838.016/1975836.1 1
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
1 I. INTRODUCTION
2 The Opposition confirms why Defendants’ Motion to Strike should be granted in its
3 entirety.
4 First, Plaintiff requests in its prayer for relief “specific performance of the Release
5 Agreement, including . . . royalties owed to Plaintiff.” Plaintiff does not dispute, however, that
6 the First Amended Complaint (“FAC”) does not contain a single allegation about royalties let
7 alone a claim seeking royalties, and the Release Agreement’s “royalties” obligations concern
8 music royalties, which this case has nothing to do with. Plaintiff’s after-the-fact justification for
9 what appears to be a clerical error or oversight—i.e., that “monetary damages” or “restitution”
10 now “could be properly characterized as ‘royalties’”—is belied by Plaintiff’s own cited dictionary
11 definitions, the Release Agreement, and the grammar of the prayer itself.
12 Second, Plaintiff seeks punitive damages supported by nothing more than conclusory and
13 non-specific allegations of “fraud,” “misrepresentation,” “concealment,” and “intentional”
14 conduct. Plaintiff must allege specific facts to plead entitlement to punitive damages, and the
15 Opposition cites no caselaw stating otherwise. Rather than identify any specific facts, Plaintiff
16 simply asserts that its conclusory allegations are enough. Other alleged conduct that Plaintiff
17 attempts to rely on, e.g., terminating former Slipknot drummer Joey Jordison in 2013 and
18 promoting a new album in 2021, have nothing to do with whether Defendants “withheld” any
19 items they were obligated to turn over in 2015, and are not, even as alleged, sufficiently
20 “despicable” to support a demand for punitive damages.
21 Third, despite boasting that a handful of specific allegations are “deeply unflattering” and
22 cause “embarrass[ment]” and “discomfort,” the Opposition does nothing to establish that they are
23 “essential” or “pertinent” to any of its claims, other than just asserting that the allegations are
24 “deeply relevant” without more.
25 II. PLAINTIFF DOES NOT PLEAD ANY ENTITLEMENT TO “ROYALTIES”
26 The Opposition does not dispute that (i) the Court may strike a prayer for relief not
27 supported by allegations of a complaint and (ii) here, “royalties” are only ever mentioned once, in
28 the FAC’s Prayer for Relief. See Mot. at 3:3-13. Plaintiff’s demand for “royalties” appears to be
KING, HOLMES,
PATERNO &
SORIANO, LLP 3838.016/1975836.1 2
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
1 a clerical error (or worse, a “gotcha”), and during the parties’ meet-and-confer leading up to the
2 Motion, Plaintiff’s counsel had no explanation for why it was demanding “royalties” and never
3 provided one. See Trugman Decl., filed Sept. 12, 2023, ¶ 2.
4 Plaintiff’s new argument is that “royalty” means “a fee paid to a property owner,” Opp. at
5 3:5-8, and therefore its demand for allegedly “ill-gotten profits” from the display of Jordison’s
6 “belongings . . . could be properly characterized as ‘royalties,’” id. at 2:10-12; see also id. at 2:12-
7 14 (“‘Royalty is effectively synonymous with both Plaintiff’s prayers for money damages and
8 restitution[.]”). This make-weight excuse, however, fails under even minimal scrutiny.
9 “Royalty” is not a generic substitute for “damages” or “restitution.” It is a term of art,
10 applicable in particular contexts. Plaintiff’s own cited dictionary definitions refer to payments
11 “for each copy of a work or article sold under a copyright or patent” or “a share of the product or
12 profit” under “an oil and mining lease.” Opp. at 3:5-8.1 Consistent with this common usage of
13 the term, the Agreement at issue (attached to the FAC) requires Defendants to pay a “prorated
14 royalty . . . on [certain Slipknot] master recordings and audio visual works” and “musical
15 compositions.” FAC, Ex. A at §§ I.2 (“Record Royalties”), I.3 (“Musical Compositions”). This
16 usage is also consistent with the structure and grammar of the Prayer for Relief itself, which seeks
17 “specific performance of the Release Agreement, including Defendant’s turnover of Jordison’s
18 property and royalties owed to Plaintiff.” FAC, at p.18. In other words, the Prayer refers to the
19 “Royalties” provision of the Agreement. However, “royalties” under the Agreement are
20 undisputedly not at issue in this action (although at one time Plaintiff may have erroneously
21
22 1
Plaintiff cited the following definitions:
23 Royalty Definition, Merriam-Webster, https://www.merriam-
webster.com/dictionary/royalty (“a share of the product or profit reserved by the
24 grantor especially of an oil or mining lease” or “a payment to an author or composer
for each copy of a work sold or to an inventor for each item sold under a patent”);
25
Royalty, Black’s Law Dictionary (11th ed. 2019) (“1. Intellectual property. A payment
26 — in addition to or in place of an up-front payment — made to an author or inventor
for each copy of a work or article sold under a copyright or patent. Royalties are often
27 paid per item made, used, or sold, or per time elapsed. . . . 2. Oil & gas. A share of the
28 product or profit from real property, reserved by the grantor of a mineral lease, in
KING, HOLMES,
exchange for the lessee's right to mine or drill on the land.”).
PATERNO &
SORIANO, LLP 3838.016/1975836.1 3
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
1 thought they were).
2 To the extent that Plaintiff’s prayer for “royalties” could be construed as being “effectively
3 synonymous” with Plaintiff’s other “prayers for money damages and restitution,” as Plaintiff now
4 argues, the demand would be superfluous and must be stricken to avoid any ambiguity or potential
5 for abuse down the road (in the event the FAC is also not dismissed). See Ferraro v. Camarlinghi,
6 161 Cal. App. 4th 509, 528 (2008) (stating the purpose of CCP § 436(a) is “to authorize the
7 excision of superfluous or abusive allegations”).
8 Regardless of how “characterized,” Plaintiff’s request for allegedly “ill-gotten profits,”
9 Opp. at 2:10-12, is not supported by any well-pleaded claim. See Weil & Brown, Cal. Prac. Guide
10 Civ. Pro. Before Trial, ¶ 7:182 (The Rutter Group 2023) (“A motion to strike can also be used to
11 attack claims for damages that are not supported by the cause of action pleaded.”). The only cause
12 of action purporting to demand “profits derived” from the “display” of “Jordison’s property” is
13 “unjust enrichment.” FAC, ¶¶ 63-64 (“Defendants have been unjustly enriched by possession of
14 Jordison’s property and profits made from display thereof, all of which belong to Jordison and
15 Plaintiff.”). But “[u]njust enrichment is not a cause of action,” De Havilland v. FX Networks,
16 LLC, 21 Cal. App. 5th 845, 870 (2018), and even if it were, such a theory of relief “does not lie
17 where the parties have an enforceable and express contract.” Durell v. Sharp Healthcare, 183 Cal.
18 App. 4th 1350, 1370 (2010); see also Klein v. Chevron U.S.A., Inc., 202 Cal. App. 4th 1342, 1389-
19 90 (2012). There is no dispute here (in Plaintiff’s own words) that, “[t]he Release Agreement
20 constitutes a valid and binding agreement under California law, FAC, ¶ 31, and “[t]he case
21 concerns Defendants’ failure to return Jordison’s belongings pursuant to the Release Agreement,”
22 Opp. at 4:27-28.
23 Accordingly, the Court should strike Plaintiff’s prayer for “royalties” under the
24 Agreement.
25 III. PLAINTIFF’S CONCLUSORY ALLEGATIONS OF “FRAUD,”
“MISREPRESENTATION,” AND THE LIKE CANNOT SUPPORT
26 A DEMAND FOR PUNITIVE DAMAGES
27 Despite its characterization of the FAC as “robust,” the Opposition confirms that Plaintiff
28 relies on nothing more than conclusory allegations to support its demand for punitive damages.
KING, HOLMES,
PATERNO &
SORIANO, LLP 3838.016/1975836.1 4
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
1 There is no dispute that to survive a motion to strike, the FAC must contain “facts” supporting
2 Plaintiff’s generic allegations of “malice, oppression or fraud” under Civ. Code § 3294. See Mot.
3 at 3:18-4:5; Opp. at 3:16-21. Nor is it disputed that “conclusory characterization of defendant’s
4 conduct” to plead punitive damages is “patently insufficient.” Brousseau v. Jarrett, 73 Cal. App.
5 3d 864, 872 (1977); see also Turman v. Turning Point of Cent. California, Inc., 191 Cal. App. 4th
6 53, 63-64 (2010) (declining to revive punitive damages demand on reversal and remand where
7 complaint “fail[ed] to state facts sufficient to support allegations that respondent acted with
8 malice, oppression or fraud”). Yet the most Plaintiff can, and does, cite in defense of its demand
9 are conclusory allegations. Opp. at 1:12-16, 3:22-4:7.
10 Plaintiff argues there was a “fraudulent scheme” to execute the Agreement with the “intent
11 not to perform” and that Defendants “perpetrated a sham return of items” to “intentionally
12 deceive” and “conceal their nonperformance.” Opp. at 3:22-26 (citing FAC, ¶¶ 20, 20, 21). But
13 these are not “facts”—they are legal conclusions. Fraud, fraudulent intent, and concealment
14 cannot just be asserted with buzzwords, they must be pleaded with particularity, and here
15 Plaintiff’s only counter-argument is that these generic allegations are themselves sufficient. Id. at
16 3:22-4:15. Calling them “robust” does not make it so; if it were, there would be no point in the
17 particularity requirement. Id. at 4:14-15; see also Smith v. Superior Ct., 10 Cal. App. 4th 1033,
18 1042 (1992) (ordering trial court to strike prayer for punitive damages where complaint was
19 “devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud
20 or malice”); Noonan v. Rousselot, 239 Cal. App. 2d 447, 455 (1966) (“Whatever liberality may be
21 permissible in alleging malice, fraud or oppression as a basis for punitive damages . . . fraud, like
22 malice, when pleaded to support a cause of action, must be specifically pleaded.”).
23 Plaintiff does not attempt to plead or identify any facts showing fraud, fraudulent intent or
24 concealment. For example, Plaintiff alleges that Jordison did not know which of his own
25 “belongings” were in Defendants’ possession and that an “initial return” of certain items by
26 Defendants “intentionally deceived” Jordison into believing there were no more items to deliver.
27 See, e.g., FAC, ¶¶ 20-21 [pp.6-7]. But nowhere does Plaintiff allege that any Defendant (much
28 less all of them) knew that Jordison was supposedly ignorant of the whereabouts of his own
KING, HOLMES,
PATERNO &
SORIANO, LLP 3838.016/1975836.1 5
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
1 belongings. Nor could it. See, e.g., MPA ISO Demurrer at 9:22-10:22 (knowledge of Slipknot
2 Partnership was imputed to Jordison, a partner). Indeed, Plaintiff readily concedes that its
3 allegations of a “sham return” are devoid of any facts and argues it has no “obligation” to provide
4 such facts. Opp. to Demurrer at 14:27-15:2 (denying that FAC must state “what was included in
5 the sham return”); see also id. at 5:21-22 (“the FAC is silent as to the date of Defendants’ sham
6 return”), 11:22-23 (“the sham return occurred at some unspecified time”), 13:4-7 (denying that
7 FAC must include “what Defendants actually returned to Jordison”), 14:1-2 (“the FAC does not
8 plead the date of the sham return”).
9 Plaintiff’s apparent contention that “the goal” of withholding items in 2015 was for
10 Defendants to “profit off of the willingness of Jordison’s grieving fan base to pay to view
11 Jordison’s belongings” after he died in 2021 is as preposterous as it is unsupported. Opp. at 3:26-
12 4:1. No facts are alleged in support of this argument. Contra FAC, ¶ 24 (alleging items had been
13 displayed at a “traveling Slipknot museum . . . over the course of several years,” and that fans
14 were willing to pay because the items were “iconic”) (emphasis added). In any event, the
15 contention that Defendants were “seeking to profit from Jordison’s passing” in 2021, Opp. at 4:4-
16 5, has no bearing on whether the alleged conduct many years earlier (while Jordison was alive)
17 was oppressive, fraudulent, or malicious. See, e.g., Butte Fire Cases, 24 Cal. App. 5th 1150, 1176
18 (2018) (affirming trial court finding that “independent” acts and “post-tort conduct failed to
19 demonstrate that [defendant] acted with malice”).
20 Likewise, the allegation that Defendants “kick[ed] [Jordison] out of Slipknot over email,”
21 Opp. at 4:1-4—which is not the basis for any claim—does not warrant punitive damages. Butte
22 Fire Cases, 24 Cal. App. 5th at 1176. Even if true, such conduct does not come close to truly
23 “despicable conduct,” Civ. Code § 3294(c)(1)-(2), that must justify punitive damages. Turman,
24 191 Cal. App. 4th at 63-64. As the Agreement acknowledges, Jordison “had health issues that
25 hindered his ability to perform with the band,” so being asked to not perform is hardly
26 “malicious.” FAC, Ex. B, § 1.1; see also Picton v. Anderson Union High Sch. Dist., 50 Cal. App.
27 4th 726, 733 (1996) (courts may “consider the facts appearing in exhibits attached to the
28 complaint”).
KING, HOLMES,
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SORIANO, LLP 3838.016/1975836.1 6
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
1 At the very least, there is no basis for punitive damages given Plaintiff’s concession that
2 “[t]he case concerns Defendants’ failure to return Jordison’s belongings pursuant to the Release
3 Agreement.” Opp. at 4:27-28. Punitive damages are only recoverable in an “action for the breach
4 of an obligation not arising from contract.” Civ. Code § 3294(a); see also Myers Bldg. Indus., Ltd.
5 v. Interface Tech., Inc., 13 Cal. App. 4th 949, 962 (1993) (an alleged breach of contract “no matter
6 how gross or wilful[l]” will not justify an award of punitive damages).
7 Thus, the Court should strike Plaintiff’s demand for punitive damages.2
8 IV. PLAINTIFF CANNOT EXPLAIN THE LEGAL RELEVANCE OF ITS
ADMITTEDLY SCURRILOUS ALLEGATIONS
9
Plaintiff boasts that the four allegations discussed in the Motion at § III.C. are “deeply
10
unflattering” and cause “embarrass[ment]” and “discomfort,” yet the Opposition does nothing to
11
establish that they should not be stricken under the applicable legal standard. Opp. at 2:22, 2:28,
12
4:18, 5:12.
13
Plaintiff admits that “[t]he case concerns Defendants’ failure to return Jordison’s
14
belongings pursuant to the Release Agreement” in 2015. Opp. at 4:27-28. The FAC’s allegations
15
relating to (i) Jordison’s medical diagnosis in 2010 (FAC at 5:27-6:1), (ii) the alleged
16
circumstances of his dismissal from the band in 2013 (FAC at 6:2-7), (iii) Defendants’ alleged
17
treatment of “Jordison’s family after his passing” in 2021 (FAC at 7:19-20, 7:28-8:5), and
18
(iv) Defendants’ alleged “us[e of] Jordison’s death as marketing for [Slipknot’s] new album” in
19
2021 (FAC at 7:20-7:28, 8:6-7 (“off” through “day”)), have nothing to do with whether
20
Defendants intended to, did, or were required to turn over certain “belongings” in 2015, and must
21
be stricken under CCP § 436.
22
Plaintiff does not dispute that “irrelevant, false, or improper matter” are properly stricken.
23
CCP § 436. Nor does Plaintiff dispute that for purposes of a motion to strike, “irrelevant”
24
25
2
Defendants never “suggest[ed]” that the standard on a motion to strike is clear and convincing
26 evidence. See Opp. at 4:12-14. That is the standard at trial. Civ. Code § 3294(a). On a motion to
strike, “the adequacy of . . . punitive damage allegations” are “tested.” Grieves v. Superior Ct., 157
27 Cal. App. 3d 159, 164 (1984). And to that end, “[n]ot only must there be circumstances of
28 oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” Id.
KING, HOLMES,
at 166. Plaintiff’s FAC fails this standard.
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SORIANO, LLP 3838.016/1975836.1 7
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
1 allegations include those that are “not essential to the statement of a claim or defense” or “neither
2 pertinent to nor supported by an otherwise sufficient claim or defense.” CCP §§ 431.10(b)(1)-(2),
3 (c). Yet the Opposition does not attempt explain why all (much less any) of these
4 “embarrass[ing]” allegations meet this standard, or explain how any of these allegations are
5 “essential to [a] claim or defense and . . . could not be stricken from the pleading without leaving it
6 insufficient as to that claim or defense.” CCP § 431.10(a). Instead, Plaintiff merely asserts that
7 they are “relevant”—or “directly relevant”—without more.
8 First, Plaintiff argues that the alleged circumstances of “Jordison’s termination from
9 Slipknot” is “directly relevant” because the Agreement was “executed as a result of Jordison’s
10 termination.” Opp. at 4:27-5:2. Full stop. These alleged circumstances, however, have no
11 bearing on Plaintiff’s causes of action or demands for relief, which purport to arise from
12 Defendants’ failure to return items under the terms of the Agreement. There are no claims based
13 on his termination. They are not “essential” to any claims.
14 Second, Plaintiff argues that Jordison’s “neurological disease” is relevant to the FAC
15 because the “diagnosis immediately preceded his termination” and his eventual death resulted in
16 Plaintiff “filing this lawsuit as successor in interest to Jordison.” But Plaintiff’s entitlement to
17 prosecute this lawsuit—which has not yet been shown despite numerous requests from
18 Defendants’ counsel—has nothing to do with Jordison’s medical condition. See CCP §§ 377.11,
19 377.32. Either it is the actual successor in interest or it is not.3 Moreover, this is not a wrongful
20 termination case, and no cause of action is based on Jordison’s condition or termination.
21 Ironically, the only thing Jordison’s medical condition is relevant to is demonstrating that Plaintiff
22 has no entitlement to punitive damages. See supra at pp. 5-6 (quoting Agreement’s statement that
23 Jordison was unable to perform with the band).
24 Third, Plaintiff argues that Defendants’ “use of Plaintiff’s tragic death as a marketing ploy”
25
26 3
There is a pending estate administration proceeding in Iowa, No. 05251 ESPR024717, so it is
unclear how Plaintiff can even assert that it has standing to prosecute claims that may have once
27 belonged to Jordison. Indeed, the declaration that Plaintiff filed pursuant to CCP § 377.32 sets
28 forth no “facts”—as it must—to explain how Plaintiff—an LLC formed after Jordison’s death—is
KING, HOLMES,
the supposed successor in interest to his estate.
PATERNO &
SORIANO, LLP 3838.016/1975836.1 8
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
1 in 2021 was part of a “larger scheme to profit from Jordison’s illness and passing. Opp. at 5:5-6.
2 These allegations, however, have nothing to do with turning over the alleged “items” at issue in
3 2015. FAC, ¶ 23. There are no facts alleged to connect “drumming up publicity and sales of the
4 new album” in 2021, with alleged conduct in 2015, id., and nothing that occurred in 2021 in
5 connection with the “new album,” is the basis of any claim. See Opp. at 4:27-28 (“[t]he case
6 concerns Defendants’ failure to return Jordison’s belongings pursuant to the Release Agreement”
7 in 2015).
8 Fourth, the Opposition does not attempt to defend the vicious (and false) allegations
9 concerning Defendants’ alleged treatment of “Jordison’s family after his passing” in 2021. FAC
10 at 7:19-20, 7:28-8:5. These allegations are not discussed in the Opposition, and thus opposition to
11 the Motion on this point is waived.
12 Accordingly, because Plaintiff fails to explain how any of these allegations are not
13 “irrelevant, false, or improper matter,” they are properly stricken. CCP § 436.
14 V. CONCLUSION
15 For the foregoing reasons, the Court should grant Defendants’ Motion to Strike (i) the
16 FAC’s prayer for an order instructing Defendants to “turnover . . . royalties owed to Plaintiff,”
17 because no claim or allegation in the FAC supports such a prayer; (ii) Plaintiff’s requests and
18 prayer for punitive damages, because the FAC fails to plead entitlement to punitive damages under
19 Civ. Code § 3294(a); and (iii) allegations contained at 5:27-6:7, 7:19-8:5, 8:6-7 (“off” through
20 “day”), because they are “irrelevant, false, or improper matter.”
21 DATED: September 12, 2023 Respectfully submitted,
22 KING, HOLMES, PATERNO & SORIANO, LLP
23
24
By: /s/ Jackson S. Trugman
25 JACKSON S. TRUGMAN
Attorneys for Defendants Slipknot, LLC, Slipknot, Inc.,
26 Knot Productions, LLC, Corey Taylor, and Michael
27 Shawn Crahan
28
KING, HOLMES,
PATERNO &
SORIANO, LLP 3838.016/1975836.1 9
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
1 PROOF OF SERVICE
2 Steamroller, LLC v. Slipknot, LLC et al.
Case No. 23STCV13254
3
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
4
At the time of service, I was over 18 years of age and not a party to this action. I am
5 employed in the County of Los Angeles, State of California. My business address is 1900 Avenue
of the Stars, Twenty-Fifth Floor, Los Angeles, CA 90067-4506.
6
On October 16, 2023, I served true copies of the following document(s) described as
7 REPLY IN SUPPORT OF DEFENDANTS' MOTION TO STRIKE on the interested parties
in this action as follows:
8
Jeremiah Reynolds Attorneys for Plaintiff STEAMROLLER, LLC
9 Katherine Pierucci
EISNER, LLP
10 433 North Camden Drive, 4th Floor
Beverly Hills, CA 90210
11 Telephone: 310-855-3200
Email: jreynolds@eisnerlaw.com
12 Email: kpierucci@eisnerlaw.com
13
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
14 document(s) to be sent from e-mail address Dwebb@khpslaw.com to the persons at the e-mail
addresses listed in the Service List.
15
I declare under penalty of perjury under the laws of the State of California that the
16 foregoing is true and correct.
17 Executed on October 16, 2023, at Los Angeles, California.
18
19 /s/ Dina Webb
Dina Webb
20
21
22
23
24
25
26
27
28
KING, HOLMES,
PATERNO &
SORIANO, LLP 3838.016/1975836.1 10
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
Preview
1 KING, HOLMES, PATERNO & SORIANO, LLP HOWARD E. KING, ESQ., STATE BAR NO. 77012 2 JACKSON S. TRUGMAN, ESQ., STATE BAR NO. 295145 JTRUGMAN@KHPSLAW.COM 3 1900 AVENUE OF THE STARS, TWENTY-FIFTH FLOOR LOS ANGELES, CALIFORNIA 90067-4506 4 TELEPHONE: (310) 282-8989 FACSIMILE: (310) 282-8903 5 Attorneys for Defendants Slipknot, LLC, 6 Slipknot, Inc., Knot Productions, LLC, Corey Taylor, and Michael Shawn Crahan 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES, CENTRAL DISTRICT 11 12 STEAMROLLER, LLC, CASE NO. 23STCV13254 13 Plaintiff, REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 14 vs. Date: October 23, 2023 15 SLIPKNOT, LLC, et al., Time: 9:00 am Dept.: 52 16 Defendants. Reservation ID: 495052387255 17 Action filed: June 8, 2023 18 Trial date: Not set 19 20 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / KING, HOLMES, PATERNO & SORIANO, LLP 3838.016/1975836.1 1 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 1 I. INTRODUCTION 2 The Opposition confirms why Defendants’ Motion to Strike should be granted in its 3 entirety. 4 First, Plaintiff requests in its prayer for relief “specific performance of the Release 5 Agreement, including . . . royalties owed to Plaintiff.” Plaintiff does not dispute, however, that 6 the First Amended Complaint (“FAC”) does not contain a single allegation about royalties let 7 alone a claim seeking royalties, and the Release Agreement’s “royalties” obligations concern 8 music royalties, which this case has nothing to do with. Plaintiff’s after-the-fact justification for 9 what appears to be a clerical error or oversight—i.e., that “monetary damages” or “restitution” 10 now “could be properly characterized as ‘royalties’”—is belied by Plaintiff’s own cited dictionary 11 definitions, the Release Agreement, and the grammar of the prayer itself. 12 Second, Plaintiff seeks punitive damages supported by nothing more than conclusory and 13 non-specific allegations of “fraud,” “misrepresentation,” “concealment,” and “intentional” 14 conduct. Plaintiff must allege specific facts to plead entitlement to punitive damages, and the 15 Opposition cites no caselaw stating otherwise. Rather than identify any specific facts, Plaintiff 16 simply asserts that its conclusory allegations are enough. Other alleged conduct that Plaintiff 17 attempts to rely on, e.g., terminating former Slipknot drummer Joey Jordison in 2013 and 18 promoting a new album in 2021, have nothing to do with whether Defendants “withheld” any 19 items they were obligated to turn over in 2015, and are not, even as alleged, sufficiently 20 “despicable” to support a demand for punitive damages. 21 Third, despite boasting that a handful of specific allegations are “deeply unflattering” and 22 cause “embarrass[ment]” and “discomfort,” the Opposition does nothing to establish that they are 23 “essential” or “pertinent” to any of its claims, other than just asserting that the allegations are 24 “deeply relevant” without more. 25 II. PLAINTIFF DOES NOT PLEAD ANY ENTITLEMENT TO “ROYALTIES” 26 The Opposition does not dispute that (i) the Court may strike a prayer for relief not 27 supported by allegations of a complaint and (ii) here, “royalties” are only ever mentioned once, in 28 the FAC’s Prayer for Relief. See Mot. at 3:3-13. Plaintiff’s demand for “royalties” appears to be KING, HOLMES, PATERNO & SORIANO, LLP 3838.016/1975836.1 2 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 1 a clerical error (or worse, a “gotcha”), and during the parties’ meet-and-confer leading up to the 2 Motion, Plaintiff’s counsel had no explanation for why it was demanding “royalties” and never 3 provided one. See Trugman Decl., filed Sept. 12, 2023, ¶ 2. 4 Plaintiff’s new argument is that “royalty” means “a fee paid to a property owner,” Opp. at 5 3:5-8, and therefore its demand for allegedly “ill-gotten profits” from the display of Jordison’s 6 “belongings . . . could be properly characterized as ‘royalties,’” id. at 2:10-12; see also id. at 2:12- 7 14 (“‘Royalty is effectively synonymous with both Plaintiff’s prayers for money damages and 8 restitution[.]”). This make-weight excuse, however, fails under even minimal scrutiny. 9 “Royalty” is not a generic substitute for “damages” or “restitution.” It is a term of art, 10 applicable in particular contexts. Plaintiff’s own cited dictionary definitions refer to payments 11 “for each copy of a work or article sold under a copyright or patent” or “a share of the product or 12 profit” under “an oil and mining lease.” Opp. at 3:5-8.1 Consistent with this common usage of 13 the term, the Agreement at issue (attached to the FAC) requires Defendants to pay a “prorated 14 royalty . . . on [certain Slipknot] master recordings and audio visual works” and “musical 15 compositions.” FAC, Ex. A at §§ I.2 (“Record Royalties”), I.3 (“Musical Compositions”). This 16 usage is also consistent with the structure and grammar of the Prayer for Relief itself, which seeks 17 “specific performance of the Release Agreement, including Defendant’s turnover of Jordison’s 18 property and royalties owed to Plaintiff.” FAC, at p.18. In other words, the Prayer refers to the 19 “Royalties” provision of the Agreement. However, “royalties” under the Agreement are 20 undisputedly not at issue in this action (although at one time Plaintiff may have erroneously 21 22 1 Plaintiff cited the following definitions: 23 Royalty Definition, Merriam-Webster, https://www.merriam- webster.com/dictionary/royalty (“a share of the product or profit reserved by the 24 grantor especially of an oil or mining lease” or “a payment to an author or composer for each copy of a work sold or to an inventor for each item sold under a patent”); 25 Royalty, Black’s Law Dictionary (11th ed. 2019) (“1. Intellectual property. A payment 26 — in addition to or in place of an up-front payment — made to an author or inventor for each copy of a work or article sold under a copyright or patent. Royalties are often 27 paid per item made, used, or sold, or per time elapsed. . . . 2. Oil & gas. A share of the 28 product or profit from real property, reserved by the grantor of a mineral lease, in KING, HOLMES, exchange for the lessee's right to mine or drill on the land.”). PATERNO & SORIANO, LLP 3838.016/1975836.1 3 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 1 thought they were). 2 To the extent that Plaintiff’s prayer for “royalties” could be construed as being “effectively 3 synonymous” with Plaintiff’s other “prayers for money damages and restitution,” as Plaintiff now 4 argues, the demand would be superfluous and must be stricken to avoid any ambiguity or potential 5 for abuse down the road (in the event the FAC is also not dismissed). See Ferraro v. Camarlinghi, 6 161 Cal. App. 4th 509, 528 (2008) (stating the purpose of CCP § 436(a) is “to authorize the 7 excision of superfluous or abusive allegations”). 8 Regardless of how “characterized,” Plaintiff’s request for allegedly “ill-gotten profits,” 9 Opp. at 2:10-12, is not supported by any well-pleaded claim. See Weil & Brown, Cal. Prac. Guide 10 Civ. Pro. Before Trial, ¶ 7:182 (The Rutter Group 2023) (“A motion to strike can also be used to 11 attack claims for damages that are not supported by the cause of action pleaded.”). The only cause 12 of action purporting to demand “profits derived” from the “display” of “Jordison’s property” is 13 “unjust enrichment.” FAC, ¶¶ 63-64 (“Defendants have been unjustly enriched by possession of 14 Jordison’s property and profits made from display thereof, all of which belong to Jordison and 15 Plaintiff.”). But “[u]njust enrichment is not a cause of action,” De Havilland v. FX Networks, 16 LLC, 21 Cal. App. 5th 845, 870 (2018), and even if it were, such a theory of relief “does not lie 17 where the parties have an enforceable and express contract.” Durell v. Sharp Healthcare, 183 Cal. 18 App. 4th 1350, 1370 (2010); see also Klein v. Chevron U.S.A., Inc., 202 Cal. App. 4th 1342, 1389- 19 90 (2012). There is no dispute here (in Plaintiff’s own words) that, “[t]he Release Agreement 20 constitutes a valid and binding agreement under California law, FAC, ¶ 31, and “[t]he case 21 concerns Defendants’ failure to return Jordison’s belongings pursuant to the Release Agreement,” 22 Opp. at 4:27-28. 23 Accordingly, the Court should strike Plaintiff’s prayer for “royalties” under the 24 Agreement. 25 III. PLAINTIFF’S CONCLUSORY ALLEGATIONS OF “FRAUD,” “MISREPRESENTATION,” AND THE LIKE CANNOT SUPPORT 26 A DEMAND FOR PUNITIVE DAMAGES 27 Despite its characterization of the FAC as “robust,” the Opposition confirms that Plaintiff 28 relies on nothing more than conclusory allegations to support its demand for punitive damages. KING, HOLMES, PATERNO & SORIANO, LLP 3838.016/1975836.1 4 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 1 There is no dispute that to survive a motion to strike, the FAC must contain “facts” supporting 2 Plaintiff’s generic allegations of “malice, oppression or fraud” under Civ. Code § 3294. See Mot. 3 at 3:18-4:5; Opp. at 3:16-21. Nor is it disputed that “conclusory characterization of defendant’s 4 conduct” to plead punitive damages is “patently insufficient.” Brousseau v. Jarrett, 73 Cal. App. 5 3d 864, 872 (1977); see also Turman v. Turning Point of Cent. California, Inc., 191 Cal. App. 4th 6 53, 63-64 (2010) (declining to revive punitive damages demand on reversal and remand where 7 complaint “fail[ed] to state facts sufficient to support allegations that respondent acted with 8 malice, oppression or fraud”). Yet the most Plaintiff can, and does, cite in defense of its demand 9 are conclusory allegations. Opp. at 1:12-16, 3:22-4:7. 10 Plaintiff argues there was a “fraudulent scheme” to execute the Agreement with the “intent 11 not to perform” and that Defendants “perpetrated a sham return of items” to “intentionally 12 deceive” and “conceal their nonperformance.” Opp. at 3:22-26 (citing FAC, ¶¶ 20, 20, 21). But 13 these are not “facts”—they are legal conclusions. Fraud, fraudulent intent, and concealment 14 cannot just be asserted with buzzwords, they must be pleaded with particularity, and here 15 Plaintiff’s only counter-argument is that these generic allegations are themselves sufficient. Id. at 16 3:22-4:15. Calling them “robust” does not make it so; if it were, there would be no point in the 17 particularity requirement. Id. at 4:14-15; see also Smith v. Superior Ct., 10 Cal. App. 4th 1033, 18 1042 (1992) (ordering trial court to strike prayer for punitive damages where complaint was 19 “devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud 20 or malice”); Noonan v. Rousselot, 239 Cal. App. 2d 447, 455 (1966) (“Whatever liberality may be 21 permissible in alleging malice, fraud or oppression as a basis for punitive damages . . . fraud, like 22 malice, when pleaded to support a cause of action, must be specifically pleaded.”). 23 Plaintiff does not attempt to plead or identify any facts showing fraud, fraudulent intent or 24 concealment. For example, Plaintiff alleges that Jordison did not know which of his own 25 “belongings” were in Defendants’ possession and that an “initial return” of certain items by 26 Defendants “intentionally deceived” Jordison into believing there were no more items to deliver. 27 See, e.g., FAC, ¶¶ 20-21 [pp.6-7]. But nowhere does Plaintiff allege that any Defendant (much 28 less all of them) knew that Jordison was supposedly ignorant of the whereabouts of his own KING, HOLMES, PATERNO & SORIANO, LLP 3838.016/1975836.1 5 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 1 belongings. Nor could it. See, e.g., MPA ISO Demurrer at 9:22-10:22 (knowledge of Slipknot 2 Partnership was imputed to Jordison, a partner). Indeed, Plaintiff readily concedes that its 3 allegations of a “sham return” are devoid of any facts and argues it has no “obligation” to provide 4 such facts. Opp. to Demurrer at 14:27-15:2 (denying that FAC must state “what was included in 5 the sham return”); see also id. at 5:21-22 (“the FAC is silent as to the date of Defendants’ sham 6 return”), 11:22-23 (“the sham return occurred at some unspecified time”), 13:4-7 (denying that 7 FAC must include “what Defendants actually returned to Jordison”), 14:1-2 (“the FAC does not 8 plead the date of the sham return”). 9 Plaintiff’s apparent contention that “the goal” of withholding items in 2015 was for 10 Defendants to “profit off of the willingness of Jordison’s grieving fan base to pay to view 11 Jordison’s belongings” after he died in 2021 is as preposterous as it is unsupported. Opp. at 3:26- 12 4:1. No facts are alleged in support of this argument. Contra FAC, ¶ 24 (alleging items had been 13 displayed at a “traveling Slipknot museum . . . over the course of several years,” and that fans 14 were willing to pay because the items were “iconic”) (emphasis added). In any event, the 15 contention that Defendants were “seeking to profit from Jordison’s passing” in 2021, Opp. at 4:4- 16 5, has no bearing on whether the alleged conduct many years earlier (while Jordison was alive) 17 was oppressive, fraudulent, or malicious. See, e.g., Butte Fire Cases, 24 Cal. App. 5th 1150, 1176 18 (2018) (affirming trial court finding that “independent” acts and “post-tort conduct failed to 19 demonstrate that [defendant] acted with malice”). 20 Likewise, the allegation that Defendants “kick[ed] [Jordison] out of Slipknot over email,” 21 Opp. at 4:1-4—which is not the basis for any claim—does not warrant punitive damages. Butte 22 Fire Cases, 24 Cal. App. 5th at 1176. Even if true, such conduct does not come close to truly 23 “despicable conduct,” Civ. Code § 3294(c)(1)-(2), that must justify punitive damages. Turman, 24 191 Cal. App. 4th at 63-64. As the Agreement acknowledges, Jordison “had health issues that 25 hindered his ability to perform with the band,” so being asked to not perform is hardly 26 “malicious.” FAC, Ex. B, § 1.1; see also Picton v. Anderson Union High Sch. Dist., 50 Cal. App. 27 4th 726, 733 (1996) (courts may “consider the facts appearing in exhibits attached to the 28 complaint”). KING, HOLMES, PATERNO & SORIANO, LLP 3838.016/1975836.1 6 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 1 At the very least, there is no basis for punitive damages given Plaintiff’s concession that 2 “[t]he case concerns Defendants’ failure to return Jordison’s belongings pursuant to the Release 3 Agreement.” Opp. at 4:27-28. Punitive damages are only recoverable in an “action for the breach 4 of an obligation not arising from contract.” Civ. Code § 3294(a); see also Myers Bldg. Indus., Ltd. 5 v. Interface Tech., Inc., 13 Cal. App. 4th 949, 962 (1993) (an alleged breach of contract “no matter 6 how gross or wilful[l]” will not justify an award of punitive damages). 7 Thus, the Court should strike Plaintiff’s demand for punitive damages.2 8 IV. PLAINTIFF CANNOT EXPLAIN THE LEGAL RELEVANCE OF ITS ADMITTEDLY SCURRILOUS ALLEGATIONS 9 Plaintiff boasts that the four allegations discussed in the Motion at § III.C. are “deeply 10 unflattering” and cause “embarrass[ment]” and “discomfort,” yet the Opposition does nothing to 11 establish that they should not be stricken under the applicable legal standard. Opp. at 2:22, 2:28, 12 4:18, 5:12. 13 Plaintiff admits that “[t]he case concerns Defendants’ failure to return Jordison’s 14 belongings pursuant to the Release Agreement” in 2015. Opp. at 4:27-28. The FAC’s allegations 15 relating to (i) Jordison’s medical diagnosis in 2010 (FAC at 5:27-6:1), (ii) the alleged 16 circumstances of his dismissal from the band in 2013 (FAC at 6:2-7), (iii) Defendants’ alleged 17 treatment of “Jordison’s family after his passing” in 2021 (FAC at 7:19-20, 7:28-8:5), and 18 (iv) Defendants’ alleged “us[e of] Jordison’s death as marketing for [Slipknot’s] new album” in 19 2021 (FAC at 7:20-7:28, 8:6-7 (“off” through “day”)), have nothing to do with whether 20 Defendants intended to, did, or were required to turn over certain “belongings” in 2015, and must 21 be stricken under CCP § 436. 22 Plaintiff does not dispute that “irrelevant, false, or improper matter” are properly stricken. 23 CCP § 436. Nor does Plaintiff dispute that for purposes of a motion to strike, “irrelevant” 24 25 2 Defendants never “suggest[ed]” that the standard on a motion to strike is clear and convincing 26 evidence. See Opp. at 4:12-14. That is the standard at trial. Civ. Code § 3294(a). On a motion to strike, “the adequacy of . . . punitive damage allegations” are “tested.” Grieves v. Superior Ct., 157 27 Cal. App. 3d 159, 164 (1984). And to that end, “[n]ot only must there be circumstances of 28 oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” Id. KING, HOLMES, at 166. Plaintiff’s FAC fails this standard. PATERNO & SORIANO, LLP 3838.016/1975836.1 7 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 1 allegations include those that are “not essential to the statement of a claim or defense” or “neither 2 pertinent to nor supported by an otherwise sufficient claim or defense.” CCP §§ 431.10(b)(1)-(2), 3 (c). Yet the Opposition does not attempt explain why all (much less any) of these 4 “embarrass[ing]” allegations meet this standard, or explain how any of these allegations are 5 “essential to [a] claim or defense and . . . could not be stricken from the pleading without leaving it 6 insufficient as to that claim or defense.” CCP § 431.10(a). Instead, Plaintiff merely asserts that 7 they are “relevant”—or “directly relevant”—without more. 8 First, Plaintiff argues that the alleged circumstances of “Jordison’s termination from 9 Slipknot” is “directly relevant” because the Agreement was “executed as a result of Jordison’s 10 termination.” Opp. at 4:27-5:2. Full stop. These alleged circumstances, however, have no 11 bearing on Plaintiff’s causes of action or demands for relief, which purport to arise from 12 Defendants’ failure to return items under the terms of the Agreement. There are no claims based 13 on his termination. They are not “essential” to any claims. 14 Second, Plaintiff argues that Jordison’s “neurological disease” is relevant to the FAC 15 because the “diagnosis immediately preceded his termination” and his eventual death resulted in 16 Plaintiff “filing this lawsuit as successor in interest to Jordison.” But Plaintiff’s entitlement to 17 prosecute this lawsuit—which has not yet been shown despite numerous requests from 18 Defendants’ counsel—has nothing to do with Jordison’s medical condition. See CCP §§ 377.11, 19 377.32. Either it is the actual successor in interest or it is not.3 Moreover, this is not a wrongful 20 termination case, and no cause of action is based on Jordison’s condition or termination. 21 Ironically, the only thing Jordison’s medical condition is relevant to is demonstrating that Plaintiff 22 has no entitlement to punitive damages. See supra at pp. 5-6 (quoting Agreement’s statement that 23 Jordison was unable to perform with the band). 24 Third, Plaintiff argues that Defendants’ “use of Plaintiff’s tragic death as a marketing ploy” 25 26 3 There is a pending estate administration proceeding in Iowa, No. 05251 ESPR024717, so it is unclear how Plaintiff can even assert that it has standing to prosecute claims that may have once 27 belonged to Jordison. Indeed, the declaration that Plaintiff filed pursuant to CCP § 377.32 sets 28 forth no “facts”—as it must—to explain how Plaintiff—an LLC formed after Jordison’s death—is KING, HOLMES, the supposed successor in interest to his estate. PATERNO & SORIANO, LLP 3838.016/1975836.1 8 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 1 in 2021 was part of a “larger scheme to profit from Jordison’s illness and passing. Opp. at 5:5-6. 2 These allegations, however, have nothing to do with turning over the alleged “items” at issue in 3 2015. FAC, ¶ 23. There are no facts alleged to connect “drumming up publicity and sales of the 4 new album” in 2021, with alleged conduct in 2015, id., and nothing that occurred in 2021 in 5 connection with the “new album,” is the basis of any claim. See Opp. at 4:27-28 (“[t]he case 6 concerns Defendants’ failure to return Jordison’s belongings pursuant to the Release Agreement” 7 in 2015). 8 Fourth, the Opposition does not attempt to defend the vicious (and false) allegations 9 concerning Defendants’ alleged treatment of “Jordison’s family after his passing” in 2021. FAC 10 at 7:19-20, 7:28-8:5. These allegations are not discussed in the Opposition, and thus opposition to 11 the Motion on this point is waived. 12 Accordingly, because Plaintiff fails to explain how any of these allegations are not 13 “irrelevant, false, or improper matter,” they are properly stricken. CCP § 436. 14 V. CONCLUSION 15 For the foregoing reasons, the Court should grant Defendants’ Motion to Strike (i) the 16 FAC’s prayer for an order instructing Defendants to “turnover . . . royalties owed to Plaintiff,” 17 because no claim or allegation in the FAC supports such a prayer; (ii) Plaintiff’s requests and 18 prayer for punitive damages, because the FAC fails to plead entitlement to punitive damages under 19 Civ. Code § 3294(a); and (iii) allegations contained at 5:27-6:7, 7:19-8:5, 8:6-7 (“off” through 20 “day”), because they are “irrelevant, false, or improper matter.” 21 DATED: September 12, 2023 Respectfully submitted, 22 KING, HOLMES, PATERNO & SORIANO, LLP 23 24 By: /s/ Jackson S. Trugman 25 JACKSON S. TRUGMAN Attorneys for Defendants Slipknot, LLC, Slipknot, Inc., 26 Knot Productions, LLC, Corey Taylor, and Michael 27 Shawn Crahan 28 KING, HOLMES, PATERNO & SORIANO, LLP 3838.016/1975836.1 9 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE 1 PROOF OF SERVICE 2 Steamroller, LLC v. Slipknot, LLC et al. Case No. 23STCV13254 3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 4 At the time of service, I was over 18 years of age and not a party to this action. I am 5 employed in the County of Los Angeles, State of California. My business address is 1900 Avenue of the Stars, Twenty-Fifth Floor, Los Angeles, CA 90067-4506. 6 On October 16, 2023, I served true copies of the following document(s) described as 7 REPLY IN SUPPORT OF DEFENDANTS' MOTION TO STRIKE on the interested parties in this action as follows: 8 Jeremiah Reynolds Attorneys for Plaintiff STEAMROLLER, LLC 9 Katherine Pierucci EISNER, LLP 10 433 North Camden Drive, 4th Floor Beverly Hills, CA 90210 11 Telephone: 310-855-3200 Email: jreynolds@eisnerlaw.com 12 Email: kpierucci@eisnerlaw.com 13 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 14 document(s) to be sent from e-mail address Dwebb@khpslaw.com to the persons at the e-mail addresses listed in the Service List. 15 I declare under penalty of perjury under the laws of the State of California that the 16 foregoing is true and correct. 17 Executed on October 16, 2023, at Los Angeles, California. 18 19 /s/ Dina Webb Dina Webb 20 21 22 23 24 25 26 27 28 KING, HOLMES, PATERNO & SORIANO, LLP 3838.016/1975836.1 10 REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE