Academy v. Carol Buby - Oscar resale complaint.pdf

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)

[email protected]

~ l/iD'7^

Ryan

Q. Keech Bar

No. 280306 *1~ WU^^

[email protected]

^ 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

COMPLAINT


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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.

COMPLAINT


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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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COMPLAINT


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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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COMPLAINT


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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

COMPLAINT


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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

-8 -

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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,

:

COMPLAINT


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Academy v. Carol Buby - Oscar resale complaint.pdf

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