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LAW OFFICES OF RONALD JASON PALMIERI
• FIIJ~D
Ronald Jason Palmieri, State Bar #96953
LOS ANGELES SUPERIOR COURT
2 Robert P. Wargo, State Bar #175177
911 Linda Flora Drive
3 Los Angeles, California 90049 AUG 0 8 2001
Tel: (310) 471-1881
JOHN
g A. ClA.Ri<'E, C,;:JlERK
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4 Fax: (310)471-3511
Ad'Yn.L2;,:<~
BY D.M. $'(iVAIN, DEPUTY
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Attorneys for Defendants Cirgadyne, Inc.; ABC Escrow;
6 Craig A. Block and Cindy Block

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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II MARCIA 1. HOLTZMAN, an individual ) CASE NO.: BC254506

)
12 Plaintiff, ) NOTICE OF DEMURRER AND DEMURRER
) TO COMPLAINT; MEMORANDUM OF
13 vs. ) POINTS AND AUTHORITIES
)
14 CIRGADYNE, INC., et ai. ) Date: September 20,2001
) Time: 8:30 AM
15 Defendants ) Dept.: 32
-----------) Hon. William Highberger
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Complaint Filed: July 20, 2001
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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YOU ARE HEREBY NOTIFIED that on September 20,2001, at 8:30 AM, in
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Department 32 of this Court, located at III N. Hill Street, Los Angeles, CA, Defendants
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Cirgadyne, Inc.; ABC Escrow; Craig A. Block; and Cindy Block will, and hereby do, demur to
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both causes of action contained in the Complaint filed herein by Marcia J. Holtzman.
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The Demurrers will be made pursuant to Code of Civil Procedure §430(e) on the grollPfll;~ 1119
I'T1 ::J:: l"T1 fT1 .....,
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that each and every cause of action contained in the Complaint fails to state a caus~<lf &l;twriif01i ~ :::
::t:>- :::r:: :;e. :::c: •• ::tt: t:;::l
If,
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WIich relief can be granted. The Demurrer will be based on the instant Notice ofife~ligf.1 ~ &l '" Q
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0 ....... "
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~fmurrer and Memorandum of Points and Authorities, and such other and further eviden1!l as ~~~
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uJi: Court may deem appropriate at the hearing. C
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT

OR\G\NAL
 1 Dated: August 7, 2001
• LAW OFFICES OF RONALD
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By W
RoertP:WargO
Attorneys for Defendants Cirgady C.; ABC
Escrow; Craig A. Block; and Cindy Block
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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• DEMURRER TO COMPLAINT
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2 Defendants Cirgadyne, Inc.; ABC Escrow; Craig A. Block; and Cindy Block hereby

3 demurs generally and specifically to the Complaint of Marcia 1. Holtzman on the following
4 grounds:

5 1. The First Cause of Action fails to state facts sufficient to constitute a cause of action
6 against these Defendants. CCP §430.l O(e)
7 2. The Second Cause of Action fails to state facts sufficient to constitute a cause of action
8 against these Defendants. CCP §430.l O(e)
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Dated: August 7, 2001
:wrn:sAS NPALWEm
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~ Attorneys for Defendants Cirgadyne,
Escrow; Craig A. Block; and Cindy D'I._,
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IS
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
1
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MEMORANDUM OF POINTS AND AUTHORITIES
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2 I

3 INTRODUCTION
4 On July 21, 2001, Plaintiff Marcia J. Holtzman filed her two count Complaint for

5 Invasion of Privacy Under Common Law and Invasion of Privacy Under Civil Code §3344

6 against Cirgadyne, Inc.; ABC Escrow; Craig A. Block; and Cindy Block, among others.

7 However, Plaintiff has failed to allege sufficient facts to constitute either of these causes of

8 action against any Defendant to this action. Accordingly, the court should sustain moving

9 parties' demurrers to each cause of action of the Complaint without leave to amend.

10 II.

11 SUMMARY OF RELEVANT ALLEGATIONS

12 Plaintiff alleges that Defendants Craig and Cindy Block are the sole officers, directors

13 and/or shareholders of Defendants Cirgadyne, Inc., and ABC Escrow (Complaint, ~13).

14 Cirgadyne, Inc., is in the business of finding, for individuals and businesses who are interested n

15 selling and/or purchasing alcoholic beverage licenses and providing consulting services to those

16 who acquire assistance in preparing, completing and/or submitting the required documentation to

17 . the California Department of Alcoholic Beverage Control in connection with the purchase of new

18 alcoholic beverage licenses, or the sale, purchase and transfer of existing alcoholic beverage

19 licenses (~2). ABC Escrow is in the business of acting as an escrow agent for the private sale

20 and purchase of alcoholic beverage licenses issued by the California Department of Alcoholic

21 Beverage Control (~3).

22 Plaintiff alleges that Defendant Cirgadyne assessed its clients a finder's fee for its

23 involvement in the purchase and/or sale of alcoholic beverage licenses on behalf of its clients and

24 that in some of its transactions, other persons and/or business entities acted as independent third
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25 I:;party finders on behalf of sellers and/or purchasers of alcoholic beverage licenses that were either
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26 ~being purchased by or sold to clients of Cirgadyne. In such instances, Plaintiff alleges, both
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27 :·'Cirgadyne and the third party finder would charge their respective clients an applicable finder's
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28 !fee ranging between $1,500 and $5,000, and the escrow instructions sent to ABC Escrow, when
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
1
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said entity was acting as the escrow agent, would direct ABC Escrow to remit to both Defendant
2 Cirgadyne and the specified third party finder an applicable finder's fee from the purchase price

3 being paid for the license (~~4, 5).

4 Plaintiff alleges that between 1993 and up to and including December 2000, Defendants
5 Cirgadyne; ABC Escrow; Craig Block; Cindy Block; Louis Cano, Jr. (who Plaintiff alleges was a
6 finder employed by Cirgadyne [~8]); Amy Kwak (who Plaintiff alleges was an escrow officer

7 employed by ABC Escrow [~9]) and Kimbely Abels (who Plaintiff alleges also was an escrow

8 officer employed by ABC Escrow [~9]), and each of them, "knowingly and intentionally
9 participated in continuing series of escrow transactions wherein Plaintiffs name, signature and

10 identity were used without Plaintiff's knowledge, consent and authorization in the purported
11 capacity of an independent third party finder by the foregoing defendants solely for the purpose
12 of creating a fictitious, false and non-existent finder to charge and collect a fictitious and false
13 finder's fee from the seller and purchaser involved in alcoholic beverage license sale and

14 purchase transactions being escrowed by Defendant Cirgadyne at Defendant Escrow" (~I 0).
15 Plaintiff further alleges that Defendants, and each of them, "signed and endorsed Plaintiffs name

16 to payment checks for the foregoing finder's fees without Plaintiffs knowledge, consent or
17 authorization, and then negotiated said checks for said defendants' own financial benefit and
18 gain" (~18).

19 Plaintiff seeks damages for the "shock, emotional trauma and diminution in value of her
20 name, signature and identity by the defendants' unauthorized, unlawful, fraudulent and deceitful

21 scheme" alleged hereinabove (~20).

22 III.
23 PLAINTIFFS FAIL TO PLEAD SUFFICIENT FACTS TO STATE ANY CAUSE OF
ACTION AGAINST DEFENDANT CASEY LEE KLINGER
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Code of Civil Procedure §430.l 0 states, in relevant part:
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"The party against whom a complaint or cross-complaint has been filed may object by
26 demurrer ... to the pleading on anyone or more of the following grounds: .
(e) the pleading does not state facts sufficient to constitute a cause of action "
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
1 A.
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Plaintiffs Have Failed to State a Cause of Action for Invasion of Privacy under
Common Law (First Cause of Action) against Defendants
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The elements of a common law cause of action for misappropriation of name or likeness
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may be pleaded by alleging n(l) the defendant's use of the plaintiffs identity; (2) the
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appropriation of plaintiffs name or likeness to defendant's advantage, commercially or otherwise;
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(3) lack of consent; and (4) resulting injury." Slivinsky v. Watkins-Johnson Co. (1990) 221
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Cal.App.3d 799, 807.
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Moreover, "[w]hether a legally recognized privacy interest is present in a given case is a
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question of law to be decided by the court [citations omitted]. Whether plaintiff has a
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reasonable expectation of privacy in the circumstances and whether defendant's conduct
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constitutes a serious invasion of privacy are mixed questions oflaw and fact. If the uudisputed
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material facts show no reasonable expectation of privacy or an insubstantial impact on privacy
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interests, the question of invasion may be adjudicated as a matter oflaw." Hill v. National
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Collegiate Athletic Assn. (1994) 7 Cal.4th 1,40. The facts alleged by Plaintiff, even if accepted
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as true by the Court, as it must for the purposes of this demurrer, do not demonstrate that there
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has been any substantial impact on Plaintiff's privacy interests. Thus, it is appropriate for the
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Court to adjudicate on this cause of action, as a matter of law, in Defendants' favor.
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Defendants' research has failed to reveal any California case where the mere use of a
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person's name in the context of a private financial transaction gives rise to a cause of action for
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Invasion of Privacy uuder Common Law. Indeed, recovery uuder the common law cause of
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action for misappropriation of name or likeness has been limited to situations where there has
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been a publication or utilization of a plaintiff s name or likeness before the general public. For
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example, in Fairfield v. American Photocopy Co. (1955) 138 Cal.App.2d 82, 87, the Court held
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that the plaintiff alleged a valid common law cause of action against a photocopy manufacturer
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Wpo used plaintiffs name in an advertisement that incorrectly state that the plaintiff and other
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&med persons were satisfied customers of the defendant.
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!;I In Stilson v. Reader's Digest Ass'n (1972) 28 Cal.App.3d 270,272-273, the Court held
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ttrt a magazine improperly had used plaintiffs' names to its own advantage by using them in
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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letters to solicit the neighbors of the plaintiffs to participate in a sweepstakes designed to

2 promote subscriptions.

3 In both Midler v. Ford Motor Co. (9th Cir. 1988) 849 F.2d 460, 463, and Waits v. Frito

4 Lay (9th Cir. 1992) 978 F.2d 1093, 1098-1103, the Ninth Circuit held that the plaintiffs in the

5 respective cases, singers Bette Midler and Tom Waits, had alleged valid common law causes of

6 action for misappropriation of identity against the corporate defendants for their use of singers

7 sounding like the famous plaintiffs in television commercials.

8 However, in the present action, Plaintifffaiis to allege that Defendants utilized her name

9 in any way before the general public in order to induce others to enter into a financial transaction

10 which would benefit Defendants. Plaintiff has alleged no facts to suggest that the purchasers or

11 sellers of alcoholic beverage licenses who became involved in transactions with Defendants

12 Cirgadyne or ABC Escrow did so because they became aware that "Marcia Holtzman" allegedly

13 was a third party finder in the transaction. Rather, other than as a means allegedly to obtain a

14 larger profit from the transaction, the name "Marcia Holtzman" was wholly irrelevant to the

15 overall transactions themselves, and Defendants apparently could have selected or concocted any

16 name at random, in order to accomplish the same ends alleged by Plaintiff. Moreover, Plaintiff

17 fails to plead any facts concerning any other aspect of her identity to suggest that Defendants

18 allegedly were misappropriating her identity as opposed to the identity of some other person

19 named "Marcia Holtzman" or Defendants disclosed any other identifying characteristics about

20 Plaintiff to any of the parties to the financial transactions alleged in the Complaint such that any

21 of these parties could connect Plaintiff, a woman the parties to the transactions apparently never

22 met or heard of prior to the transaction, with the name "Marcia Holtzman" which may have

23 appeared in some documentation relevant to the transaction.

24 Accordingly, even accepting Plaintiffs' alleged facts as true, the alleged use of Plaintiffs
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25 !,rame in the financial transactions alleged in the Complaint clearly had no substantial impact on

26 ~?laintiffs privacy interests. Thus, Plaintiff has not alleged sufficient facts to constitute a cause
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27 10 f action for Invasion of Privacy under Common Law, and the Court should sustain the demurrer
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28 ~:l:his cause of action without leave to amend.
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
 1 B.
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Plaintiffs Have Failed to State a Cause of Action for Invasion of Privacy under Civil
Code §3344 (Second Cause of Action) against Defendants
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A person or entity may be liable for commercial misappropriation if it "knowingly uses
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another's name, voice, signature, photograph or likeness in any manner, on or in products,
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merchandise, or goods or for purposes of advertising or selling, or soliciting purchases of
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products, merchandise, good or services, without such person's prior consent." Civil Code
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§3344(a). Courts of this state have emphasized that in order to plead a cause of action under this
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statute, "there must also be an allegation of a knowing use of the plaintiffs name ... for purposes
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of advertising or solicitation of purchases." Slivinsky v. Watkins-Johnson Co. (1990) 221
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Cal.App.3d 799, 807. (Emphasis added).
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However, Plaintiff merely alleges that Defendants used her name, signature and identity
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"in the purported capacity of an independent third party finder ... for the purpose of creating a
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fictitious, false and non-existent finder to charge and collect a fictitious and false finder's fee
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from the seller and purchaser involved in alcoholic beverage license sale and purchase
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transaction being escrowed by Defendant Cirgadyne and Defendant Escrow." (Complaint, ~10).
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The Complaint contains no allegations that any Defendant used Plaintiffs signature for purposes
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of advertising or solicitation of purchases. Accordingly, Plaintiff has failed to state a cause of
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action for Invasion of Privacy Under Civil Code §3344, and the Court should sustain the
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demurrer thereto without leave to amend, as Plaintiff will be unable to amend this cause of
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action, even with the addition of more facts, to state such a cause of action.
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IV.
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CONCLUSION
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As demonstrated above, Plaintiff has failed to state sufficient facts to state either of her
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causes of action against any Defendant to this action. As Plaintiff will be unable to amend her
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l.complaint by adding additional allegations in order to state these two causes of action, the Court
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~~hould sustain these demurrers, without leave to amend.
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
 1 Dated: August 7, 2001
• Respectfully submitted,
•
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By: +-~--"L=-,=-'t------=---=---I-­
4 Robert P. W go
Attorneys for Defendants Ci gady ,Inc.; ABC
5 Escrow; Craig A. Block; an . y Block

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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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• PROOF OF SERVICE
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2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,
I am employed in the County of Los Angeles, State of California. I am over the age of 18
3 and not a party to the within action; my business address is 911 Linda Flora Drive, Los Angeles,
CA 90049.
4 On August~, 2001, I served the following documents described as NOTICE OF
DEMURRER AND DEMURRER TO COMPLAINT on the interested parties in this action by as
5 follows:

6 Lawrence M. Adelman, Esq.

Law Offices of Lawrence M. Adelman
7 5850 Canoga Avenue #400
Woodland Hills, CA 91367-6554
8 FAX: 8181710-3844

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BY MAIL
10 As follows: "I am readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Under that practice, it would be deposited with the U.S.
11 Postal Service on that same day with postage thereon fully prepaid at Los Angeles,
California, in the ordinary course of business. I am aware that on motion of the party
12 served, service is presumed invalid if the postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.
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BY FACSIMILE
14 I faxed copies of such document listed above to the persons whose name, address and
facsimile number appears above.
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BY PERSONAL SERVICE
16 I caused such envelope to be delivered by hand to the individual(s) whose name(s)
appear(s) above.
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Executed on August ~, 2001, at Los Angeles, California.
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..lL (STATE) I declare under penalty of perjury under the laws of the State of California that
19 the foregoing is true and correct.

20 (FEDERAL) I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT