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8/10/2019 Academy v. Carol Buby - Oscar resale complaint.pdf
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ORIGINAL
QUINN EMANUEL URQUIIART & SULLIVAN, LLP
Christopher Tayback (Bar No. 145532)
christayback@quinnemanuel.com
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Ryan
Q. Keech Bar
No. 280306 *1~ WU^^
ryankeech@quinnemanuel.com
^ 0O%C)
865
South
Figueroa Street
10
Floor
^ ~
Los
Angeles
California
90017-2543sD6Fr-
>*
Telephone: (213)443-3000
Facsimile: (213)443-3100
Coanty
(37
LosAngeles
OEC-15'2014
,u^i uucr/C etk
j Deputy
sj&iwrJ
Sherri*
By-
Attorneys for Plaintiff Academy of Motion
Pictu re Ar ts and Sc iences
h lfiGuy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF
LOS
ANGELES
CENTRAL DISTRICT
CASE NO.
C O M P L A I N T F O R
ACADEMY OF MOTION PICTURE ARTS
AND SCIENCES, a California non-profit
corporation,
Plaintiff,
805
68 8 2
vs
CAROL
SURTEES
CAROL BUBY, an
individual, and DOES 1-50,
Defendants.
1)BREACH OF CONTRACT;
2) INTENTIONAL INTERFERENCE
WITH CONTRACT;
3) BREACH OF
EQUITABLE
SERVITUDE;
4)
DECLARATORY RELIEF
J U R Y
T R I A L
DEMANDED
Tr ia l Date : None Set
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COMPLAINT
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PlaintiffAcademy of MotionPictureArts andSciences(the Academy ) alleges:
N A T U R E OF T H E A C TI ON
1. In 1953, the Academy awarded to Robert Surtees an OSCAR statuette for
excellence in Black-and-White cinematography in connection for his work on a motion picture
entitled The Badand the eautiful(the Surtees OSCAR ). As a memberof the Academy, Robert
Surtees was bound by the Academy's Bylaws (the Bylaws ) which provide the Academy witha
rightof first refusal to purchaseOSCAR statuettes awarded to its members which they intend to
sell. The Academy's right of first refusal means that neither the recipients of the awards nor their
successorsmay sell the statuetteswithout first offering them to theAcademy, Surteesdied in
1985
and. subsequent to that date, the Academy is informedand believes that Defendant Carol Surtees
aka Carol Buby ( Carol Surtees ) inherited or otherwise received the Surtees OSCAR. On or
about December 12, 2014, Carol Surtees and the unknown individual or entity behind the
ellamackey screen
name
on theonlineauction site eBay ( DOE 1 )purported to auction the
Surtees OSCAR for 40,500 to the unknown individuals or entities sued herein as DOES 2-50 (the
Purchasers ). By this action, theAcademy seeks to enforce its rightswith respect to theSurtees
OSCAR,includingrecovering any andall profits obtainedfrom the sale of theOSCAR,and
obtaining equitable relief,
inter alia,
declaring that theSurteesOSCARis held in constructive trust
for the Academyand directingDefendants to offer it for sale to the Academyfor the sum of
$10.00.
PARTIES
JURISDICTION
AND
VENUE
2. The Academy is, and at all times mentioned herein was, a non-profit corporation
organized and existing under the lawsof the State of California, with its principal place of
business in Los Angeles County, California. The Academy was founded in 1927 by a
distinguished group of film industry leaders for the purposes of, inter alia, advancingmotion
picture arts and sciences and promoting cultural, educational and technological progress in the
motion picture industry.
3. Carol Surtees is an individual who, the Academy is informed and believes, resides
in Carmel and San Francisco, California. The Academy is further informed and believes, and on
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thatbasis alleges, thatCarol Surtees is aware thatOSCAR statuettes are awarded inLosAngeles
County, the Academy is headquartered in LosAngelesCounty, the awardof each statuette is
conditionedupon theAcademy's rightof first refusal, andprospective buyersof an OSCAR
statuette including the Academy reside in Los Angeles County.
4. The Academy is ignorant of the truenames andcapacitiesof theDefendants who
are named herein under the fictitious names DOES 1 through 50, including, without limitation, the
unknown individualor entitybehindthe ellamackey screennameon the onlineauction site eBay
sued herein as DOE 1. The Academy will seek leave of court to amend this complaint to allege
the true names andcapacities of suchDefendants whenascertained. TheAcademy is informed
and believes, and on that basis alleges, that each of the fictitiously named Defendants is
responsible in somemannerfor thewrongful conduct alleged herein.
5. The Academy is informed and believes, and on that basis alleges, thateach
defendant was, at all times mentioned herein, acting as the actual or ostensible agent, employee
and/or co-conspirator of eachotherdefendant
and,
in performing the
actions
alleged herein, was
acting in thecourseandscopeof such agency, employment and/orconspiracy.
6. Venue is proper in Los Angeles County because theAcademy is a resident of Los
Angeles Countyand the contract in issuewas entered intoandwas to beperformed inLos
Angeles County. The county inwhich
DOES
1 through 50 resideis unknown to the
Academy.
THE OSCAR
7. Since 1929, as an incentive for members of the motion picture industry to strive for
excellence in filmmakingand as a means of recognizingpersons whomake outstanding
contributions in their respective creative fields, the Academy has conferred annual Awards of
Merit (known to the public as OSCARS) to artists in various categories
of
achievement.
8. The OSCAR represents the pinnacle of success and professional recognition in the
motion picture industry. The prestige associated with the OSCAR is unparalleled by any other
award. To maintain the award's incalculable value and uniqueness, the Academy has established
procedures for selecting the recipients of its awards and for distributing OSCAR statuettes to their
winners.
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9. The Academyhas never intended that the OSCAR be treated as an article of trade.
OSCAR recipients AcademyAward winners- receive copies of the OSCAR statuette, the
original of which has been registered under federal copyright and trademark laws. The original
statuette is registered under the copyright laws as an unpublished work of art: copies of the
statuette are not, and never have been, distributed to the general public.
THE ACADEMY BYLAWS
1.0. Asmandated by the Bylawssince 1951,members of the Academy who receive an
OSCAR statuette cannot sell the statuette without according the Academy a right of first refusal to
purchase it for the sum of $10.00. Specifically, Article VIII(l)(g) of the Bylaws provides:
' Everyaward shall be conditioned upon the execution and delivery to the Academy by the
recipient thereof
of
a receipt and agreement reading as follows:
Gentlemen:
I hereby acknowledge receipt from you of a replica of your copyrighted statuette,
commonly known as the Oscar, as an award for achievement in motion picture
arts and sciences.. .. In consideration
of
your delivering said replica tome, I
agree to comply
with
your rales and regulations respectingits use and not tosell
or otherwise disposeof it, norpermitit to besold ordisposed
of
byoperation of
law, withoutfirst offering tosell it toyou
for
the sum
of
10.00. Youshall have
thirty daysafter any such offer is madetoyou withinwhich to accept it. This
agreement shall be binding not only on me, but also on myheirs, legatees,
executors, administrators, estate,successors andassigns. My legatees and heirs
shall have the right to acquire saidreplica, if it becomespart ofmy estate, subject
to this agreement.
(Signature
of
Recipient)
Anymember
of
the Academy who has heretofore received any Academy trophy
shall he bound bytheforegoing receipt and agreement
with
the sameforce and
effect as though he or she had executed and delivered the same in consideration
of receiving such trophy
_ J :
COMPLAINf
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(Emphasis added.)
THE
SURTEES OSCAR
FOR
THE
BAD AND
THEBEAUTIFUL
11. In 1953,the AcademypresentedRobert Surtees with the OSCAR for excellence in
Black-and-White cinematography for hiswork on the motion picture entitled The adandthe
eautiful Atall
relevant
times, Robert Surtees and his heirs, legatees, executors, administrators,
estate, successors
and
assigns
agreed
tobeand
were
in
fact bound
by theAcademy's
Bylaws,
including Article VIII(l)(g), above, and
thereby agreed
that
they
would never to
sell
or otherwise
dispose
of the
Surtees OSCAR,
nor permit the
Surtees
OSCAR tobesoldor
disposed
ofby
operation of
law,
without first offering to
sell
it totheAcademy forthesumof $10.00.
12. The
Academy is informed andbelieves, andon that basisalleges, thatCarol Surtees
inherited or otherwise received the
Surtees
OSCAR after Surtees' death.
CAROL SURTEES' UNLAWFUL PURPORTED
SALE
OF THE
SURTEES
OSCAR
13. Carol Surtees wasand iswell aware of the restrictions on the SurteesOSCAR,and
proceeded with
her unlawful puiported disposition of the Surtees OSCAR despite thatknowledge.
OnNovember 12, 1999, the Academy sent a letter toMs. Linda Surtees,heir to Robert Surtees,
who claimed to be in
possession
of the
Surtees OSCAR and,
the
Academy
is
informed
and
believes, wasoneof RobertSurtees' heirs, legatees, executors, administrators, estate,successors
and/or
assigns.
Thisletter informed herthatthe
Surtees OSCAR
couldnotbe s[old] or otherwise
transferfred] without
first
offering them to
the Academy
for
a
nominal
sum. The
Academy
is
further informedand believes, and on that basis alleges, thatCarol Surtees came to be in
possession of the Suttees OSCAR from Linda Surtees after this letter was sent and received.
14. In December,2014, the Academy learnedthat Carol Surtees intended to conductan
auction to sell the SurteesOSCAR. The Academy is informed and believes, and thereupon
alleges, that in that same month. Carol Surtees offered the Surtees OSCAR for auction on the
eBayonline auctionwebsite in conjunction with her agent or co-conspiratorsued hereinas DOE 1
- the individual using the screen name ellamackey. The SurteesOSCARwas offered for
auction under
theeBayseller account of ellamackey. The
Academy
is
informed
and believes,
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and
thereupon
alleges
that
atall relevant
time
the individual using
the
screen
name
ellamackey
was
aware of
the restrictions
on
the Surtees
OSCAR.
15.
On December 5, 2014, the
Academy
senta letter to Carol Surtees by
Federal
Express and certified mail,
informing
her that the Surtees
OSCAR is subject
to
a right of first
refusal agreement with
and
equitable servitude
in
favor of
the
Academy, pursuant to which the
Academy
is entitled to purchase the
OSCAR in the
event that
Robert Surtees or
his heirs, legatees,
executors,
administrators, estate, successors or assigns offer it for sale. The Academy further
informed Carol Surtees that
the
Academy elected
to
exercise
its
right
of
first refusal and, therefore,
she had no right to auction the Surtees
OSCAR.
16.
The
Academy
also attempted
to communicate
with
Carol
Surtees by
telephone
on
several occasions. OnDecember 12, 201.4, a
woman
answered the phone at a number associated
withCarol Surteesand identified herself as Carol Surtees. She claimed that the auction for the
SurteesOSCARhadbeenendedand theSurtees OSCARwithdrawn. The Academy, however, is
informed and believes,
and
on
that
basis alleges,
that
onorabout December 12,
2014, the unlawful
auction for the Surtees OSCAR concluded withCarol Surtees and DOE 1 purporting to sell the
Surtees
OSCAR
to
DOES 2-50 for $40,500. The Academy
is
informed
and
believes,
and
thereupon alleges, that at all
relevant times
DOES
2-50
were aware
of
the restrictions
on
the
Surtees OSCAR. Noneof the Defendantsoffered to sell the Surtees OSCAR to the Academy
prior to the auction (or at anyother
time).
FIRST CAUSE OF
ACTION
FOR
BREACH OF
CONTRACT
(against Carol Surtees)
17.
The Academy realleges and
incorporates
herein
by
reference paragraphs
1
through
16. above, as though fully set forth herein.
18.
The
Bylaws constituted
a
binding contract between
the
Academy,
ontheone
hand,
andRobert Surtees and his heirs, legatees, executors, administrators, estate, successors and
assigns, including Carol Surtees,
on
the other hand. Pursuant
to this
agreement, Carol Surtees
was
forbidden from selling
or
otherwise
disposing
of
the Surtees OSCAR
or
permitting
ittobe
sold
or
otherwise disposed of
without first
offering
to sell
itto the
Academy for the sum
of$10.00.
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19.
The Academy is informed
and believes,
and on that basis
alleges, that Carol Surtees
is one ofRobert
Surtees'
heirs, legatees,
executors,
administrators, estate,
successors
and/or
assigns.
The Academy
is further
informed and believes,
and on
that
basis alleges,
that Carol
Surtees
received
the
Surtees
OSCAR directly or indirectly, by gift, devise, bequest or otherwise,
from Robert Surtees, his estate,or anotherof RobertSurtees' heirs, legatees, executors,
administrators, estate, successors and/or assigns.
20.
As
a result of the foregoing, there
exists
a
contractual relationship
between the
Academy and
Robert Surtees and his heirs, legatees, executors, administrators, estate, successors
and
assigns,
including Carol Surtees, which requires that
Carol
Surtees offer to sell
the
Surtees
OSCAR
to
the
Academy
for the
contractual
right
of
first
refusal price
-
$10.00
-
before
she
sells
or otherwise disposes of the statuette orpermits it to be sold orotherwise disposed of.
21.
The Academy
has
fully performed
all
conditions, covenants and promises
required
to be performed
on its
part
in
accordance with the contract
alleged
above, except to the extent that
its performance
was
waived, excused or prevented by Robert Surtees and his heirs, legatees,
executors, administrators,
estate,
successors
and assigns, including Carol Surtees.
22. The
Academy
is
informed
and believes, and
on
that
basis alleges,
that
Carol
Surtees
breached
her
contractual obligation
to
the Academy by
offering
to
sell
or
otherwise dispose
of
the
Surtees OSCAR, permitting it to be sold orotherwise disposed of, oractually selling orotherwise
disposing
of
it.
IfCarol Surtees had
offered
to
sell the
Surtees
OSCAR to the
Academy,
the
Academy would havepurchased it.
23. As an
actual
and proximate result of
the
breach of contract by
Carol
Surtees,
the
Academv
has suffered and
will
sufferdamages in
an. amount
to beprovedat trial.
SECOND
CAUSE OF ACTION
FOR
INTENTIONAL
INTERFERENCE
WITH
C O N T R A C T
(against DOES 1-50)
24.
The Academy realleges
and
incorporates
herein by
reference paragraphs 1 through
20and .17 through 23, above, as
though
fully set forth herein.
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25. The Bylaws constitute a validand binding contractbetween theAcademy and
Robert
Surtees andhis
heirs, legatees,
executors, administrators, estate, successors and assigns,
including Carol Surtees, pursuant
to
which
the
Academy
has had a
right
of first
refusal
to
purchase
the Surtees OSCAR as alleged above.
26. TheAcademy is informed and believes, andon thatbasis
alleges,
thatDOES 1-50,
including without limitation the unknown
individual
or entity behind the ellamackey screen
name
on theonlineauction site
eBay,
wereawareof thecontractbetween the
Academy
and
Robert Surteesandhis heirs, legatees, executors, administrators, estate, successors and assigns,
including Carol Surtees.
27. The Academy is informed and believes, and on that basis alleges, thatDOES
1-50,
includingwithout limitation the unknownindividual or entity behind the ellamackey screen
nameon theonlineauction site eBay, intendedto interfere with anddisrupt the performance of
said contract by auctioning and purchasing the Surtees OSCAR without the Academy having been
informed of the auction or sale or havingbeen accorded its right of first refusal.
28. The Academy is informed and believes, and on that basis alleges, that the conduct
of DOES 1-50, including without limitationthe unknown individual or entity behind the
ellamackey screen name on the online auction site eBay, has interfered with and disrupted, and
will continue to interfere with and disrupt, the performance
of
said contract because the Surtees
OSCARhas beensold and conveyed to, and is plannedto be sold and conveyed to, individuals
and/or entities other than the Academy.
29. As an actual and proximate, result of the interference with contract by the DOES 1-
50, includingwithout limitation the unknown individual or entity behind the ellamackey screen
name
on theonlineauction site eBay, the Academy has suffered andcontinues to sufferdamages
in an amount to be proved at trial.
30. In committing the acts alleged herein, the DOES 1-50, including without limitation
the unknown individual or entity behind the ellamackey screen name on the online auction site
eBay, acted despicably, with oppression and malice, and with willful and conscious disregard of
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the Academy's rights. Therefore, the Academy is entitled to recover exemplary
and
punitive
damages inan amount to be proved at trial.
THIRD CAUSE
OF
ACTION
FOR BREACH
OF
EQUITABLE SERVITUDE
(against all Defendants)
31.
The Academy hereby
realleges and incorporates by reference paragraphs 1
through
20. 17 through
23,
and
24 through
30,
above,
as though
fully
set
forth
at length.
32.
The
Surtees
OSCAR
is personal property that
was
in the possession of
Robert
Surtees
and his
heirs,
legatees,
executors, administrators, estate, successors
and
assigns, including
Carol Surtees, pursuant to an
agreed
restriction
that
it would
not
be sold
or disposed ofwithout
first
offering
it
to
the
Academy
for
the
sum
of
$10.00.
The
restriction
constitutes
an
equitable
servitude,
which is enforceable against all who
acquire
the
Surtees
OSCAR either without giving
fair value or with knowledge of the restriction.
33.
The Academy
is informed and
believes, and on that basis
alleges, that all
Defendants knew that
they
acquired possession of the Surtees OSCAR subject
to
the tenns,
conditions
and
obligations
of
the
Bylaws
and,
in
particular, knew
that they
acquired
the
Surtees
OSCAR without giving fair value
and
subject to
the restriction relating
to the Academy's right of
first
refusal.
In
breach
of
that
restriction,
Carol
Surtees
and
DOE
1offered
the
Surtees
OSCAR
for sale without first offering
it to
the Academy, and DOES 2-50 purchased
orotherwise acquired
the Surtees OSCAR.
34. As a resultof Defendants' breach of the foregoing equitableservitude, the
Academy is entitled to an order
that Defendants
hold the Surtees
OSCAR
in constructive
trust
for
the Academy.
35.
Furthermore, unless theAcademy's
right
of
first refusal
is enforced, theAcademy
will
suffer substantial irreparable
injury in that the
Surtees
OSCAR isa unique
property
and
monetary damages will not
provide
adequate
compensation.
Therefore, the
Academy
is
entitled to
preliminary
and permanent injunctive
relief (a) enjoining
Defendants,
during the
pendency
ofthis
action
and permanently thereafter, from directly or indirectly
transferring,
selling, assigning,
pledging, encumbering,
hypothecating,
or
in
any
way
disposing of the Surtees OSCAR without
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first
offering to sell it to the
Academy
for thesumof
$10.00;
and(b) directing
Defendants
tosell
the Surtees OSCAR,to the Academy for the sum of 10.00.
FOURTH CAUSE OF ACTION FOR
D E C L A R A T O R Y
RELIEF
(against all Defendants)
36. TheAcademy hereby realleges and incotporates by reference paragraphs 1 through
16,
17through 23, 24 through 30,
and 31
through35,
above,
as thoughfully set forth herein.
37. Anactualcontroversy has arisenand nowexistsbetween the Academy, on theone
hand,
and theDefendants, on theother
hand,
concerning their respective rightsand interests in the
Surtees
OSCAR.
The
Academy
contends that the Surtees
OSCAR
is subject to theAcademy's
right of first refusal and that the Academy has the right to purchasethe SurteesOSCAR for the
sumof
$10.00.
TheAcademy is informed and believes, andon that
basis
alleges, thatthe
Defendants deny the Academy's contentions.
38. The Academy seeks a judicial determinationof its rights and interests in the Surtees
OSCAR, i.e. that the Surtees OSCAR is subject to the Academy's right of first refusal and that the
Academy has the right to purchase the Surtees OSCAR for the sum of 10.00. The Academy seeks
a furtherjudicial declaration that if the Surtees OSCAR is ever offered for sale or other
disposition, the Academy is entitled to purchase it for the sum of 10.00.
39. A judicial declaration is necessary and appropriate at this timeunder the
circumstances so that theAcademy and theDefendants mayascertaintheir rights, interests,
obligations and duties with respect to the Surtees OSCAR including their respectiveclaims of
right to possessionof the SurteesOSCARand to avoid a multiplicityof actions.
PRAYER FOR R E L I E F
WHEREFORE, the Academy prays for judgment in its favor and against Defendants, and
each, o f t hem, a s
follows:
1. For compensatory damages in an amount not less than 40,500;
2. For punitive and exemplary damages in an amount to be proved at trial;
3. For an order that (a) Defendants hold the Surtees
OSCAR
in constructive trust for
the Academy, and (b) Defendantsmust offer the Surtees OSCAR for sale to the Academy and,
:
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