fth Street, S2nd floor 633 West Gordon Rees Seully Mansukh Los Angeles, CA 90071 DEBRA ELLWOOD MEPPEN (SBN: 183885) dmexpen@grsm.com LAURIE DEYOUNG (SBN: 154796) Meyoung@ersm.com FILED GENE F. WILLIAMS (SBN: 211390) Soin C2 I Catlomia gfwilliams@grsm.com 8 Angeles. GORDON REES SCULLY MANSUKHANI, LLP FEB 2 ay 633 West Fifth Street, 52 floor Shen, 120 Los Angeles, CA 90071 y. ‘Telephone: (213) 576-5043 Facsimile: (213) 680-4470 ‘Attorneys for Defendants JAMES FRANCO; RABBITBANDINI PRODUCTIONS; RABBITBANDINI PRODUCTIONS, LLC; RABBITBANDINI FILMS, LLC; DARK RABBIT PRODUCTIONS LLC; and RABBITBANDINI PRODUCTIONS STUDIO 4 SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF LOS ANGELES SARAH TITHER-KAPLAN end TONI GAAL, on behalf of themselves and all those similarly situated, Case No: 19STCV35156 [Assigned to the Honorable Ann I. Jones, Dept. SS-11] Plaintiffs, DEFENDANTS’! NOTICE OF DEMURRER AND DEMURRER TO. PLAINTIFES’ COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT ‘THEREOF vs ) D ) ) ) ) ) JAMES FRANCO; VINCE JOLIVETTE; JAY DAVIS; RABBITBANDINI ) PRODUCTIONS; RABBITBANDINI ) PRODUCTIONS, LLC; RABBITBANDINI —) [Declaration of Gene Williams, FILMS, LLC; DARK RABBIT ) [Proposed] Order, and Defendants’ PRODUCTIONS, LLC; RABBITBANDINI) Motion to Strike Portions of Plaintiffs’ PRODUCTIONS STUDIO 4, LLC; and }) Complaint filed concurrently herewith] DOES 1-10, ) ) April 15, 2020 5) Ti 10:00 a.m. ) Dept: SS-11 ) ) Complaint Filed: October 3, 2019 Defendants. ‘The Motion is brought on behalf of Defendants James Franco, Rabbitbandini Productions, Rabbitbandini Productions, LLC, Rabbitbandini Films, LLC, Dark Rabbit Productions, LLC, and RabbitBandini Productions, LLC, and will be joined by Defendants Vince Jolivette and Jay Davis.Gordon Rees Seully Mansukhani, LLP Street, 52nd floor - z i 5 i TO THIS HONORABLE COURT AND TO ALL PARTIES AND THEIR: RESPECTIVE ATTORNEYS OF RECORD: * PLEASE TAKE NOTICE that on April 15, 2020, at 10:00 a.m. or as soon thereafter as the matter may be heard before the Honorable Anne I. Jones in Department 11 of the above- captioned Court, located at 312.N. Spring Street, Los Angeles, California 90012, Defendants JAMES FRANCO, RABBITBANDINI PRODUCTIONS, RABBITBANDINI PRODUCTIONS, LLC, RABBITBANDINI FILMS, LLC, DARK RABBIT PRODUCTIONS, LLC, and RABBITBANDINI PRODUCTIONS, LLC (together “Defendants”) will and hereby do demur to Plaintiffs SARAH TITHER-KAPLAN and TONI GAAL's (together “Plaintiffs”) Complaint, pursuant to California Code of Civil Procedure Sections 430.10(e) and (f) and 430.30(a), on the following grounds: * Plaintifis’ first cause of action for Sex Discrimination in violation of Cal, Civil Code Sections 51, 51.5, and 52 is barred by the applicable statute of limitations. Cal. Civ. Proc. § 335.1. Plaintiffs’ second cause of action for Sexual Harassment in violation of Cal. Civil Code Sections 51.9 and 52 is barred by the applicable statute of limitations. Cal. Civ. Proc. § 335.1. Plaintiff's third cause of action for interference with the Exercise of Civil Rights in Violation of the Bane Act, Cal, Civil Code Section 52.1, is barred by the applicable statute of limitations. Cal. Civ. Proc. § 335.1 In advance of filing this Demurrer, Defendants’ counsel met and conferred with Plainti counsel regarding the issues raised herein, but the parties were unable to resolve the disputed issues. See Declaration of Gene Williams, €€ 4-6; Exhs. A, B. The parties participated in an informal pre-motion conference with the Court on February 20, 2020, at which time the Court set the briefing schedule and the hearing date for the present motion. /., 7. . This Demurrer is made pursuant to Code of Civil Proc. §430.10 and is based upon this Notice of Demurrer, the Memorandum of Points and Authorities attached hereto, the Declaration of Gene Williams, the pleadings, records, papers and other documents on file in the above- referenced action, pleadings, records and papers upon which judicial notice may properly be 2. |” * DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINTGordon Rees Seully Mansukhani, LLP Street, 52nd floor 633 West, Los Angeles, CA'90071 taken, and upon such further oral and documentary evidence and argument as may be presented at or prior to the hearing on this matter. Dated: February 28, 2020 GORDON REES SCULLY MANSUKHANI, LLP : x4 Debra Ellwood Meppen Laurie DeYoung Gene F. Williams Attomeys for Defendants JAMES FRANCO; RABBITBANDINI PRODUCTIONS; RABBITBANDINI PRODUCTIONS, LLC; RABBITBANDINI FILMS, LLC; DARK RABBIT PRODUCTIONS LLC; and RABBITBANDINI PRODUCTIONS STUDIO 4 "DEFENDANTS" NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS" COMPLAINTLos Angeles, CA 90071 ts oa A n 12 13 14 15 16 7 18 19) 20 2 22 23, 24 25 26 27 28 DEMURRER Defendants JAMES FRANCO, RABBITBANDINI PRODUCTIONS, RABBITBANDINI PRODUCTIONS, LLC, RABBITBANDINI FILMS, LLC, DARK RABBIT. PRODUCTIONS, LLC, and RABBITBANDINI PRODUCTIONS, LLC (together “Defendants”) heteby demur to the Complaint of Plaintiffs SARAH TITHER-KAPLAN and TONI GAAL (together “Plaintiffs") on the following separate and distinet grounds: 1, Plaintiff's first cause of action for Sex Discrimination in violation of Cal. Civil Code Sections 51, 51.5, and 52 is barred by the applicable statute of limitations. See Cal. Civ. Proc. § 335.1; see also W. Shield Investigations & Sec. Consultants v, Superior Court (2000) 82 Cal.App.4"" 935. 2. Plaintiffs’ second cause of action for Sexual Harassment in violation of Cal. Civil Code Sections 51,9 and 52 is barred by the applicable statute of limitations. See Cal. Civ. Proc. § 335.1; see also W. Shield Investigations & See. Consultants v. Superior Court (2000) 82 Cal_App.4” 935, 3. Plaintiff's third cause of action for Interference with the Exercise of Civil Rights in Violation of the Bane Act, Cal. Civil Code Section 52.1, is barred by the applicable statute of limitations. See Cal. Ciy. Proc. § 335.1; see also I. Shield Investigations & Sec. Consultants ¥. | Superior Court (2000) 82 Cal.App.4"" 935, Dated: February 28, 2020 GORDON REES SCULLY MANSUKHANI, LLP Debra Elhvood Meppen Laurie DeYoung Gene F. Williams Attomeys for Defendants JAMES FRANCO; RABBITBANDINI PRODUCTIONS; RABBITBANDINI PRODUCTIONS, LLC; RABBITBANDINI FILMS, LLC; DARK RABBIT PRODUCTIONS LLC; and RABBITBANDINI PRODUCTIONS STUDIO 45 | CA90071, < g 3 633 West Fifth Street, 52nd floor Gordon Rees Seully Mansukhani 27 | 28 UL sith TABLE OF CONTENTS INTRODUCTION... LEGAL ARGUMENT. A, Standard on Demurrer B. Plaintiffs’ First Three Causes of Action are Time-Barred, C. The Discovery Rule Does Not Save Plaintiffs’ First Three Causes of Action. D. The Court Should Not Grant Plaintiff Leave to Amend Unless Plaintiffs Can Provide Credible Explanation for Any Proposed Change... CONCLUSION. DEFENDANTS" NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINTGordon Rees Scully Mansukhani, LLP ifth Street, S2nd floor 633 West Los Angeles, CA'90071 10 2 13 14 15 16 "7 18 19 20 a 2 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Berman v. Bromberg (1997) 56 Cal. AppAth 936 .nenmnntnnmnnnnnnnn 18 California Dental Assn, » California Dental Hygensts' Asn (1990) 222 Cal.App.3d 49 i 18 CAMSIIY y. Hunter Technology Corp. (1991) 30 Cal.App.3d 1525. Fox v, Bthicon Bndo-Surgery, Ine (2005) 35 Cal.App.4!"797 Freis v. Soboroff (2000) 81 Cal.App.4th 1102 GD. Searle & Co,» The Superior Court of Seramento County (1975) 49 Cal.App.34 22 Gatto v, County of Sonoma (2002) 98 Cal.App.4th 744 B Grisham v, Phillip Morris US.A., Inc. (2007) 40 Cal. 4th 623 cr . = sow 1S Guayion North Bay, Ie Sup. Ch. Mayers) (2001) 94 Cal. App.4th 963 12 Hendy v. Losse (1991) 54 Cal.3d 723... : a Judd v. Weinstein No. CV-18-5724 PSG (FFMx), 2018 U.S, Dist. LEXIS 224564 15,16 Mangini v. Aerojet-General, Corp. (1991) 230 Cal.App.3é 1125 15 MeKelvy v. Boeing North American, Ine. (1999) 74 Cal.App.dth 151 veers Rivas y. Saftey-Kleen (2002) 98 Cal. App.Ath 218 vannnscssnann se iscsi 15) Salimi y. State Comp. Ins. Fund (1997) 54 Cal.Appth 216 Pettey Pa fara R Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292 Vallejo Development Co. v. Beck Development Co, (1994) 24 Cal.App.4th 929 ipessrnee venevevee 18 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS* COMPLAINTGordon Rees Scully Mansukhani, LLP (633 West Fifth Street, S2nd floor Los Angeles, CA'90071 W. Shield Investigations & See, Consultants v, Sup. Ct 82 Cal.App.4th 935, Statutes California Code of Civil Procedure, Section 430.10 sos. Civil Code Section 42... Civil Code Section $1 Civil Code Section 51.5... Civil Code Section 51.9 Civil Code. Section 52... Civil Code Section 52.1 .. Code of Civil Procedure Section 335.1 ... Code of Civil Procedure Section 338 ws. 7 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINTSi a Gordon Rees Scully Mansukhan {633 West Fifth Street, 52nd floor Los Angeles, CA 90071 u 12 13 14 16 7 18 19 20 21 22 | MEMORANDUM OF POINTS AND AUTHORITIES I+ INTRODUCTION ‘The #MeToo and Times Up movements have made tremendous and important contributions to improving not only the culture of the entertainment business but also the world asa whole. Unfortunately, while these movements have rightly brought down a number of reprehensible individuals, they have also ensnared an innocent man, James Franco (*Franco.”) ‘The salacious allegations in the Complaint have made great tabloid fodder, but like most tabloid stories, they are false and inflammatory, legally baseless and brought as a class ection with the obvious goal of grabbing as much publicity as possible for attention-hungry Plaintiffs SARAH TITHER-KAPLAN (“Tither-Kaplan”) and TONI GAAL (“Gaal”). Most importantly for the purposes of the instant demurrer, most of the conduct alleged her occurred almost six years ago and claims arising therefrom are barred by the applicable statutes of limitations. Tn January 2018, Franco won the Best Actor Golden Globe for his standout performance in The Disaster Artist and was primed for a high-profile awards season, Meanwhile, as new #MeToo allegations hit the press each day, Tither-Kaplan, a former student at James Franco’s acting school dating back to 2014, decided to jump on the bandwagon and insert herself into the media's insatiable appetite to ruin the next celebrity. Before this abrupt about face, Ms. Tither- Kaplen had always expressed gratitude for the opportunity to work in Emmy-nominated productions with Franco, one of her teachers, Tither-Kaplan was so effusive in her praise of Franco that she posted unsolicited tweets and texts extolling Franco's virtues, how much she admired him, and how much she got out of her time at Studio 4: ‘© “It was @ dream come true to play Cersei Lannister alongside these incredible artists, @jamesfrancotv ‘* “James is a gem. I'm lucky to be part of this big ol weird fam.” + “It’s.a dream to work with these beautiful weirdos.” * “Thanks for censoring my nip jamesy. Looooveeee these maniacs + “Making a Scene is nominated for an EMMY! What a dream, [Fire and heart emojis] to the wonderful cast and crew of this wild ride. I am so5 2 3 = = 3 g 2 é g 2 § grateful to have been a part of thi ‘+ “Hey! I know it’s late but I just signed with my first manager. I couldn’t have done it without the opportunities you gave me. So thank you, I owe ‘you big time.” ‘+ “Follow our moviel! @thelonghome I'm so proud to be a part of this magic.” ‘+ “Ijust wanted to say that I have had such an amazing experience being part of Studio 4 and would love to help out in any way I ean in the future, Ihave a lot of on set experience as a PA and have done script coverage and office work fora bunch of production companies and worked as a producer on my own shorts. So I just want to offer my help with pretty much any aspect of production if you guys ever need it. Rabbit Bandini is clearly the best. Also I'm even really good at getting coffee so I can do that too. I will also enroll in class again as soon as I get my January paycheck. Thank you for everything.” Now, after failing to achieve any significant professional success, over alfa decade Jater, she claims she was mistreated. Unfortunately, the unsubstantiated, false, end woefully belated allegations were, predictably bought hook, line and sinker by the Los Angeles Times and other media outlets ~ and so began Franco’s nightm: odyssey as a falsely accused man, How should Franco respond? Some accused of misconduct confidentially settled claims to avoid more adverse publicity. Some fought back in highly publicized lawsuits, Not aco, He is an ardent believer in the righteousness of the #McToo and Times Up movements. Franco is doing what is best for him: forcefully denying the scurrilous and false accusations but supporting his accusers right to their day in court. In the end, Franco is confident that he will be vindicated. Tither-Kaplan claims Franco’s behavior was ineppropriate or sexually exploitative because Franco is a celebrity, Tither-Kaplan felt an abuse of power that compelled her to appear nude (in a sex scenes class she voluntarily enrolted i and in films she voluntarily agreed to 9. + DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINTMansukhani, LLP 1633 West Fifth Street, S2nd floor i é Los Angeles, CA’ 90071 10 M 2 13 4 15 16 7 18 19 20 appear) and because her student film (in which she had, of course, agreed to appear and exploit) had been uploaded on Vimeo. Each of those allegations, which stem from alleged conduct dating back to as early as 2014, is easily debunked: (1) Tither-Kaplan knowingly engaged in the nude scenes under the terms of contracts and nudity riders that she signed; (2) no one pressured her to perform in any of| those films; (3) the casting iirector and others involved with those films have confirmed that all actresses, including Tither-Kaplan, were aware of the nudity scenes ahead of time, that they were constantly checking to make sute the actresses felt comfortable, that they signed nudity waivers, and that no one — including Tither-Kaplan — ever complained; and (4) regarding the class at Studio 4 itself, the student films were shot by the students themselves with their own crews, and ‘were intended to be a web series, so the final product was always intended to be shown publicly, and, indeed, Studio 4 understands that the students themselves uploaded the videos. As to Tither-Kaplan’s most sensationalistic accusation - that the vaginal guards of four other actresses were removed by Franco during filming: (1) Tither-Kaplan admitted that she was not one of the actresses using a vaginal guard; (2) all of the actresses involved confirmed that their vaginal guards were not removed, that the shooting of the film was professional, and that they did not feel mistreated, uncomfortable or taken advantage of and (3) the cameramen involved in shooting the scene have confirmed that the guards were never removed. Meanwhile, Plaintiff Gaal also seeks redress for personal grievances which have no place ina class action laws ‘including, inter alia, being upset that an audition was “filmed.” Ionically, it appears that the Plaintiffs have competing personal grievances against Franco. Gaal is suing because she was not selected for a “Master” acting class back in 2014, while Tither- Kaplan is upset that she was. Boiled down, this Complaint falsely alleges that Studio 4 was an enterprise created to allow Franco and others to exploit women sexually by having them audition nude (false), promising them acting opportunities only if they appeared nude (false), and used student films in which they appeared nude for his own personal enjoyment (false). In fact, Studio 4 was founded to provide classes for aspiring actors. Men and women attended and took classes taught by acting -10- D | DEFENDANTS’ NOTICE OF DEMUR EMURRER TO PLAIN FS" COMPLAINT.Gordon Rees Seully Mansukhani, LLP ‘633 West Fifth Street, 52nd floor Los Angeles, CA 90071 professionals. In the three years the school was open, one class, taught for one semester, concerned acting in romantic scenes. And, despite the lurid allegations in the Complaint, no students were asked to ~ or ever did ~ audition in any kind of state of undress, Even Tither- Kaplan herself has previously admitted that attempts to portray her “as a victim of sexual assault... [are] unethical and inaccurate.” Litigation is not a game. A court of law is not the proper venue for addressing personal grievances such as unzeturned phone calls. A class action lawsuit is not a vehicle for litigants to harass others by filing frivolous claims that wholly lack any conceivable merit under the existing facts or law. This lawsuit is a travesty of justice and the culmination of a meritless campaign that has unfairly tarnished a decent man’s hard-earned reputation * Before Defendants can begin the process of clearing their names by defeating this case on its merits (or lack thereof), several of Plaintiffs’ most damning claims must be eliminated on procedural grounds, because they were brought years after the applicable statutes of limitations had run, and therefore cannot survive a demurrer. Specifically, Plaintiffs’ first cause of action for Sex Discrimination, theit second cause of action for Sexual Harassment, and their third cause of action for Interference with the Exercise of Civil Rights are all governed by a two-year statute of limitations. Because Plaintiffs enrolled in Studio 4 in 2014, and allege that the conduct giving rise to these three causes of action began in 2014, Plaintiffs are time-barred from bringing these claims now. Moreover, Plaintiffs cannot rely on the Discovery Rule to toll the applicable statute of fimitations because (a) they did not allege any efforts or diligence on their part in investigating the claims at the time of the alleged misconduct, and (b) they affirmatively allege that they had knowledge of the alleged misconduct at the time it occurred, therefore preckuding any claim that they did not discover the wrongdoing until a later date. Because Plaintiffs" first three causes of action are time barved, and because Plaintifis cannot rely on the Discovery Rule to toll the applicable statutory period, Defendants’ Demuzrer should be sustained and Plaintiff5’ first three causes of action should be dismissed with prejudice. 113 DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINTMansukhani, LLP ifth Street, 52nd oor i z 2 3 E 4 Tl. LEGAL ARGUMENT A Standard on Demurrer The function of a demurrer is to test the sufficiency of the pleadings by raising questions ‘of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219.) A demurrer admits all facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Freis v. Soboroff (2000) 81 Cal.App.4th 1102, 1104.) A demurrer is properly sustained where the complaint fails to state facts sufficient to constitute a cause of action against a defendant or it discloses a defense that would bar recovery. (Code of Civ. Proc. § 430.10(e); Guardian North Bay, Inc. v. Sup. Ct. (Meyers) (2001) 94 Cal.App.4th 963, 971-972; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [demurrer should be sustained where defects cannot be cured by amendment].) “When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper.” Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1120. “[WJhen ‘the relevant facts are notin di ute, the application of the statute of limitations may be decided as a question of law.”” Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 713(quoting International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611-612.) B. Plaintiffs? First Three Causes of Action are Time-Barred Plaintiffs frst cause of action for sex discrimination in violation of California Civil Code sections 51, $1.5 and 52, their second cause of action for sexual harassment in violation of California Civil Code sections $1.9 and 42, and their third cause of aetion for interference with the exercise of civil rights in violation of the Bane Act under California Civil Code section 52.1 are all governed by the same two year statute of limitations under California Code of Civil Procedure Section 335.1, which governs personal injury claims. See W. Shield Investigations & ‘Sec. Consultants v. Sup. Ct. (82 Cal.App.4" 935, 952-953 (holding that plaintiff’s Unruh claims for sexual harassment and interference with civil rights claims, under Civil Code Sections 51.9 and 52.1, respectively, “constitute(d] a refinement and codification of the existing common law liability for violation of civil rights” and were therefore governed by the one-year statute of limitations period (which has subsequently been extended to two years under Code of Civil -12- |F DEMURRER AND DEMURRER TO PLAINTIFF DEFENDANTS’ NOTICEMansukhani, LLP Gordon Rees Seu! 633 West Fifth Street, 52nd floor Los Angeles, CA 90071 Procedure Section 335.1.); see also Gatto v. County of Sonoma (2002) 98 Cal. App.4"* 744, 760 (holding that claims for denial of full and equal access to accommodations under Civil Code Section 51 and interference with civil rights under Civil Code Section 52 are “subject to the one- year statute” for personal injury (which has subsequently been increased to two years).) «The court in Wf, Shield Investigations specifically addressed whether the one (now two) ‘year statute of limitations relating to personel injury or the three-year statute of limitations for statutory claims under Code of Civil Procedure Section 338(a) should apply. In finding that the shorter statutory period applied, the court noted that the longer three-year statutory period does not apply, even where a cause of action is besed on a statute, where that statute “did not create a neiv form of liability... but merely codified and refined existing law.” W. Shield Investigations, 82 Cal.App.4" at 952 (internal citation omitted.) The court then found that claims under the Unruh act did not create a new form of liability, because “[o}ur Supreme Court has indicated that common law contains the roots of the {Unruh] Act.” Jd. ‘The court concluded that: Because the Act, as set forth at Civil Code section 51 et. seq., constitutes a refinement and codification of existing common law liability for violation of civil rights, the applicably statute of limitations under the Act is section 340, subdivision (3), the one-year limitations period for personal injury actions, rather than the section 338, subdivision (a), the three-year limitations period for liability created upon « statute. Id, a 953. Plaintiffs allege in their complaint that Plaintiff Toni Gaal enralled in Studio 4 in or about February 2014. See Complaint at § 58. Plaintiffs further allege thet Plaintiff Sarah Tither-Kaplan| enrolled in Studio 4 in or about April 2014. See Complaint a | 59. More importantly, Plaintiffs expressly allege in their Complaint that “{iJn or around 2014 until the closure of the school in October 2017, Defendants harassed and exploited Plaintiffs and Sexual Exploitation Class Members by demanding participation in sexually exploitive auditions and classes in order to be accepted into master classes and be case in film productions.” See Complaint at 183 (emphasis added), These allegations of harassment and exploitation are the conduct that gives rise to each of Plaintiffs’ first three causes of action, Specifically, in Paragraph 175 of the Complaint, under the “13. EMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINTGordon Rees Scully Mansukhani, LLP {633 West Fifth Street, 52nd floor Los Angeles, CA'90071 first cause of action for sex discrimination, Plaintiffs specifically allege that “Defendants intentionally denied such rights when they sexually harassed and exploited PlaintiffS and the Sexual Exploitation Class Members ...” Likewise, the language cited above from Paragraph 183 is contained in the allegations supporting Plai fs’ second cause of action for sexual harassment. Finally, in Plaintiffs’ third cause of action for interference with the exercise of civil rights, Plaintiffs again allege that the same conduct, occurring from 2014 through 2017, gives rise fo the cause of action: “Defendants intimidated and coerced Plaintiffs and the Sexual Exploitation Class Members by demanding participating in sexually exploitive auditions and clsses in order to be accepted into master classes and be cast in film productions...” See Complaint, J 191. From the face of Plaintiffs Complaint it is clear that the alleged misconduct that gave ri to Plaintiffs’ first, second, and third causes of action occurred “in or around 2014 until the closure of the school in October 2017.” Therefore, Plaintiffs’ first three causes of action had to be raised by 2016. Instead, Plaintiffs waited three additional years before bringing these claims. ‘These claims are time-barred and Defendants’ demurrer to these causes of action should be sustained, C. The Discovery Rule Does Not Save Plaintiffs” First Three Causes of Action * Plaintiffs make a half-hearted effort to save their first three causes of action by nominally} asserting the Discovery Rule. Specifically, paragraphs 177, 186, and 195 contain the following identical language: “Plaintiffs and Sexual Exploitation Class Members did not recognize the extent of the harm caused until the productions they worked on were never released and the extent of the fraudulent promises made became clear.” See Complaint, $ 177, 186, 195. First, by relying on the Discovery Rule in their Complaint as a means to avoid the applicable statute of limitations, Plaintiffs concede that their claims are time-barred without application of the Discovery Rule. See MeKelvy v, Boeing North American, Inc. (1999) 74 Cal.App.4® 151, 160. In McKelvy, the court held that “by their reliance on the ‘Discovery Rule,” Plaintiffs concede by implication that, without| it, their claims are barred by one or more statutes of limitations. Jd. Mare importantly, this language is woefully inadequate for Plaintififs to meet the standard di “l4- Di ENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS COMPLAINTMansukha Gordon Rees Seu (633 West Fifth Street, 52nd floor wgeles, CA 90071 4 necessary to assert the Discovery Rule as a defense to the running of the statute of limitations. The Discovery Rule itself is a “judicially recognized exception to the strict operation of the statute of limitations.” Saliter v, Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 296. The rule is a special defense to the statue of limitations, which delays acervl of the statute of limitations unt “a Plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue . Kleen (2002) 98 Cal.App.Ath 218, 224. Rivas v. Saftey- The California Supreme Court clarified the plaintiff's burden of pleading facts sufficient to-wacrant application of the Discovery Rule in Grisham v. Phillip Morris U.S.A., Ine. (2007) 40 Cal.4'" 623, 638: California law recognizes a general, rebuttable assumption that plaintiffs have “knowledge of the wrongful cause of injury.” In order to rebut that presumption, “[a] plaintiff whose complaint shows on its fact that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery, and : Q) the inability to have made earlier discovery despite reasonable diligence.” In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to “show diligence;” “conclusory allegations will not withstand demurrer.” Jd. (emphasis added) (internal citations omitted); see also McKelvy, supra, at 160 (applying the same rule as to burden of proof) This same standard was echoed most recently in Judd v, Weinstein, No, CV-18-5724 PSG (FFMx), 2018 U.S. Dist. LEXIS 224564, at *10 (holding that “to successfully invoke the discovery rule, ‘the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.”) Plaintiffs’ cursory and conch sory statement does not come close to meeting this standard, and is insufficient to withstand a demurrer. See, e.g. CAMSI IV v. Hunter Technology Corp. (1991) 30 Cal. App.3d 1525, 1536-1537 ("Mere conclusory assertions that the delay in discovery > “Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.” Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.App.4!* 797, 806. “The traditional rule is that a statute of limitations begins to run upon the occurrence of the last element essential to the eause of action, even if the Plaintiff is unaware of the cause of action.” Mangini v. Aerojet-General, Corp. (1991) 230 Cal. App.3d 1125, 1149-1150. Ina personal injury case, “the period of limitations [generally] commences when the wrongfill act, takes place.” G.D. Searle & Co. v. The Superior Court of Sacramento County (1975) 49 Cal.App.3¢ 22, 25. -15- DEFENDANTS: NOTICE OF DEMURRER AND |URRER TO PLAINTIFFS" COMPLAINT1 || was reasonable are insufficient and will not enable the complaint to withstand general demurrer.”) 2 || The Discovery Rule is not intended to encourage dilatory tactics, and “[iJn order to employ the 3 || Discovery Rule to delay accrual of a cause of action, a plaintiff must demonstrate that he or she_ 4 condusteal a reasonable investigation of all potential causes of his or her injury.” Fox v. Ethicon 5 |] Endo-Surgery, Inc., supra, 35 Cal.4" at 811. 6 In fect, in their effort to use the Complaint to engage in character assassination of the 7 |]Defendants, they make numerous (false and salacious) allegations that completely undermine any| 8 || attempt to argue that they should be entitled to the benefits of the Discovery Rule. First, nowhere 9 |] in the Complaint do Plaintiffs specifically allege the time and manner of discovery of the conduct 10 |] that gives rise to Plait fl? Unruh Act claims, Given the two year statute of limitations, Plaintiffs 11 || must allege in their Complaint that they did not discover the facts that would give rise to their 12 || claims until October 3, 2017 or later (two yeers prior to filing their Complaint). There is no such 13 || language in the Complaint. Even more damning is the fact that Plaintiffs do not even attempt to 14 [claim that they engaged in reasonable diligence, including a “diligent investigation of the cireumstances of the injury,” but that despite that diligence they “could not have reasonably 2 é bs . a 16 | discovered facts supporting the cause of action within the applicable statute of limitations period.” 17 || See Judd, supra, 2018 U.S. Dist. LEXIS 224564, at *10. z 3 2 8 g g é é 18 In Judd, the plaintiff, in a successful bid to assert the discovery rule to avoid the applicable 19 statute of limitations, alleged that she did not become aware of the statements by Defendant that 20 |} would give rise to her claim until December 2017 (nearly 20 years after the statements were| 21 || allegedly made), that she would not have been able to discover the statements by conducting a| 22 |] reasonable investigation, and that had she inquired atthe time the statements were allegedly made, 23 || the Defendants would not have disclosed the statements, rendering any investigation file, Ja, at 24 |/*11. Based on these allegations, the Court held that the plaintiff had made sufficient allegations 25 ||to assert the discovery rule at the pleading stage, since the allegations in the complaint must be| 26 || treated as true. Id, At *10. | 7 Here, conversely, Plaintiffs are not entitled to any such presumption, because Plaintiffs do 28 || not even allege that they engaged in reasonable diligence, or that to conduct a reasonable and| 2163 JURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT, DEFENDANTS" NOTIK2 3 2 8 z i a u 2 3B 14 15 16 17 18 19 20 21 2 24 25 26 27 28 diligent investigation would have been impossible or futile, Instead, Plaintiffs allege throughout the Complaint that they knew that Defendants were engaged in misconduct throughout the time they attended Studio 4, and even complained about the misconduct. For example, Plaintiffs allege in Paragraph 65 that they and others “experienced intimidation and sexual objectification, while also discovering that the most assured way of currying favor with the Defendants and male- dominated production crew was by evidencing a willingness to disrobe and agree to the sexual adyances of Franco and others.” Plaintiffs allege that they (or other students) complained about the sexual harassment in Paragraph 94. ‘They allege in Paragraph 95 that they “clearly understood that being a team player who was willing to participate in sexually exploitive auditions was| required for acceptance and approval.” Plaintiffs even allege that Plaintiff Gaal expressed| concerns about the audition process at the time: : When Plaintiff Gaal expressed concems about the audition process and that those chosen were primarily those students willing to engage in simulated sexual acts that were far beyond normal expectations, she as told by a male employee that she needed to “grow thicker skin” and “stop being so sensitive.” See Complaint, 196. Plaintiffs then allege that asa result of Plaintiff Gaal expressing her concerns, shg was not accepted into the Sex Scenes Master Class. See Complaint, 102. Similarly, Plaintiffs allege that Plaintiff Tither-Kaplan learned that her “willingness to push boundaries and do whatever it took to create a scene that Franco would approve of led to additional opportunities | ovkick were then revoked after she voiced her concerns.) See Complaint, 101 (emphasis added), These allegations, while asserted in an effort to smear Defendants as much as possible, demonstrate without a doubt that Plaintiffs knew of alleged facts during their time at Studio 4 that} ‘would have given rise to their Unruh causes of action. Plaintiffs go to such great lengths to smear Defendants, describing them as overtly and unabashedly “sexually hostile, predatory and exploitive” that it would be impossible for a reasonable person, faced with such treatment, to fail to understand that Defendants actions were wrong and actionable. As a result, itis impossible for Plaintiffs to argue that they were unaware of the alleged misconduct or that they could not have Jearned of the misconduct through reasonable investigation, which explains why they do not even “11 DEFENDANTS" NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT —Gordon Rees Seully Mansukh {633 West Fifth Street, S2nd floor ‘Los Angeles, make a serious effort to assert such an argument in their Complaint. D. The Court Should Not Grant Plaintiffs Leave to Amend Unless Plaintiffs Can Provide a Credible Explanation for Any Proposed Change To avoid demurrer, Plaintiffs may not “discard factual allegations of a prior complaint, avoid them by contradictory averments, in a superseding, amended pleading.” California Dental Assn. v. California Dental Hygenists’ Assn. (1990) 222 Cal.App.3d 49, 53, fh. 1; accord, Hendy v, Losse (1991) 54 Cal.3d 723, 742-743 (holding that plaintisfS cannot cure defective pleadings by| omitting allegations without explanation.) “[I]nconsistencies with prior pleadings must be explained.” Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4* 929, 946, ‘This rule was designed to probibit plaintiffs from filing sham pleadings to avoid demurrers. See Berman y. Bromberg (1997) 56 Cal.App.4" 936, 945-946. Here, PlaintiffS have alleged in no uncertain terms that they were aware of the alleged misconduct by the Defendants at the time the misconduct was alleged to have occurred, suffered negative consequences at the time, and even complained about what they believed to be improper conduct. They cannot now be permitted to amend their Complaint to allege ignorance of the same facts they have already acknowledged being aware of. Therefore, if this Court considers granting leave to amend, it must not do so unless Plaintiffs first provide a credible explanation for any amendment they propose. 1, CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court sustain their demurrer to Plaintifis’ first three causes of action on statute of limitations ground, without leave to amend. Dated: February 28, 2020 GORDON REES SCULLY MANSUKHANI, LLP By: Debra Ellwood Meppen Laurie DeYoung Attorneys for Defendants JAMES FRANCO; RABBITBANDINI PRODUCTIONS; RABBITBANDINI PRODUCTIONS, LLC; RABBITBANDINI FILMS, LLC; DARK RABBIT PRODUCTIONS LLC; and RABBITBANDINI PRODUCTIONS STUDIO 4 -18- DEFENDANTS” NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINTSoe rxrauneon LP 633 West Fifth Street, S2nd floor Los Angeles, CA'90071 Gordon Rees Scully Mansukhani -19- ~ DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ COMPLAINT1 PROOF OF SERVICE 2 | am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP 633 West 3 |] Fifth Street, 52" Moor, Los Angeles, CA 90071. On February 28, 2020, | served the within documents DEFENDANTS" NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS” 5 || COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 6 VIA ELECTRONIC FILING/SERVICE: Complying with Code of Civil Procedure section 1010.6, my electronic business address is stello@yrsm.com and [ caused such document(s) to be electronically served through the Case Anpwhere system for the 8 above-entitled case to the parties on the Service List maintained on Case Anywhere’s website for this case, ‘The file transmission was reported as complete and a copy of 9 |], the Case Anywhere Receipt will be maintained with the original document(s) in our 10 |} i lare under penalty of perjury under the laws of the State of California that the above is true and correct, mi ae 3. Eceuted on February 28, 2020at Los Angeles Califia. Be ai fh aa: My. 775) fs AM. TEI a 16 ® 7 g 18 é 19 "The Mation is brought on behalf Defendants James Franco, Rabbitbandini Productions, Rabbitbandin sa Productions, L1.C, Rabbitbandini Films, LLC, Dark Rabbit Productions, LLC, and RabbitBandini Productions, LLC and sill be joined by Defendants Vine Jolivtte and Jay Davis,