Filed 6/19/20 Panizza v. Ron Robinson Inc CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JANIS PANIZZA,

Plaintiff and Appellant,

v.

RON ROBINSON INC., et al.,

Defendants and Respondents. B295313

(Los Angeles County

Super. Ct. No. BC644146)

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard Rico, Judge. Affirmed.

Janis Panizza, in. pro. per., for Plaintiff and Appellant.

Russ, August & Kabat, Nathan D. Meyer and Minna Y. Chan for Defendants and Respondents.

_________________________

Plaintiff Janis Panizza appeals from the summary judgment entered against her and in favor of defendants and respondents Ron Robinson, Inc. (Robinson), Sandow Media, LLC (Sandow), and Fred Segal, LLC. Panizza alleged defendants copied her perfume fragrances and idea for a series of related but contrasting perfumes to create a product they named “The Blend by Fred Segal.” She contends the trial court erred in granting summary judgment because 1) defendants’ motions were not addressed to the operative complaint; and 2) there were disputed issues of material fact about whether Sandow independently created the product at issue. She argues other disputed issues of material fact as well. Panizza also contends, somewhat indirectly, that the trial court abused its discretion in denying her motion for reconsideration of the summary judgment. We affirm the judgment.

BACKGROUND

Fred Segal started an eponymous retail business in Santa Monica in the 1960’s. He and his family obtained a trademark in the Fred Segal name, which they licensed. The name is also used by at least one corporation, Fred Segal, LLC, which is a defendant in this action. At the time of the events in this action, Fred Segal, LLC was not owned or controlled by the Fred Segal family. Appellant Panizza, who is self-represented, does not use the term “Fred Segal” with any precision.

In 2012, Panizza, a perfume designer, called the Fred Segal center on Melrose Avenue to propose that Fred Segal offer her perfumes for sale. In 2012, the Fred Segal center on Melrose was not owned by the Fred Segal family. Since 2001, the center had been owned by 8100 Melrose, LLC, an entity owned by the Brown family. The Brown family and 8100 Melrose LLC received a license to use the Fred Segal name in connection with the center.

The person who answered Panizza’s phone call to the Fred Segal center connected Panizza to someone at defendant Robinson, a retailer and a tenant of the Brown family at the center in 2012 and 2013. The Robinson manager told Panizza to send any samples to Robinson’s offices on La Cienega Boulevard for review. Panizza believed that Robinson would review the samples for Fred Segal. Her claimed basis for this belief changed during the course of the lawsuit.

Fred Segal, LLC and Sandow had no relationship with Robinson except as vendor-vendee. Robinson sometimes sold their products.

On either June 18 or 21, 2013, Panizza sent samples of five of her perfumes along with packaging and marketing materials for a contrasting perfume series to Robinson at the La Cienega address. An employee of Robinson told Panizza the company was not interested in her perfumes.

In 2014, Panizza learned of a line of perfumes called “The Blend by Fred Segal.” She believed this product was a copy of the contrasting perfume series concept she had sent to Robinson in 2013. She believed Robinson had shared her idea with Fred Segal and Sandow. She sought redress. Sandow and Fred Segal took the position that Adam Sandow had created The Blend line in Florida before June 18-21, 2013 and did so without any information about Panizza’s idea for a series of contrasting perfumes. This lawsuit followed.

In 2018, the trial court granted respondents’ motion for summary judgment. Panizza filed a motion for reconsideration which the trial court denied. This appeal followed.

DISCUSSION

Panizza contends the trial court erred in granting defendants’ motions for summary judgment and in denying her motion for reconsideration, although she does not address each motion individually. The motions have different standards of review and we consider the trial court’s ruling on each motion separately.

Panizza frequently cites evidence presented in her motion for reconsideration to support her claims that the trial court erred in granting summary judgment. We do not consider evidence presented after the trial court granted summary judgment in our review of that ruling. (See Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083.) For Panizza’s benefit, we point out this includes all evidence in the Clerk’s Transcript which appears after page 734 (including the documents attached to the Opening Brief labelled Exhibits A and B).

I. Motion For Summary Judgment

The trial court found in pertinent part: “The evidence shows that The Blend is based on fragrances sold under the label Memoire Liquide going back to the 1980’s (Defendants Separate Facts (‘DSF’) No. 1.) Memoire Liquide was acquired by Sandow in 2011. Since late 2011, Sandow had a license to the brand name ‘Fred Segal.’ Around late 2012, Sandow began developing ‘Bespoke Blends’ by Memoire Liquide, which consisted of ten pre-existing fragrances in rollerballs as a take-home kit for blending. The concept was eventually developed into The Blend. (DSF 2-4.) Around February 2013, Sandow began developing the branding, packaging, and contents of The Blend. The Blend was developed in Boca Raton, Florida. (DSF 5-6.) By March 2013, The Blend had been completed and was pitched to vendors, including QVC. Sandow continued to refine the product and presented it to customers throughout April-May 2013. (DSF 7-8.) On May 16, 2013, Sandow received the first order for The Blend, then called ‘The Blend by Memoire Liquid.’ (DSF 9-10.) On June 13, 2103, Sandow applied for a trademark for the phrase ‘The Blend by Fred Segal.’ (DSF 11.) [¶] Plaintiff provided perfumes samples to Ron Robinson on June 18, 2013. (DSF 14.)”

The court concluded: “The undisputed facts establish that Defendants’ development of The Blend commenced before Plaintiff sent her samples in June 2013.” The court also noted “Plaintiff attaches a January 30, 2017 Lab Analysis and Report . . . which purports to test Plaintiff’s fragrances with The Blend [and] specifically indicates that the products are ‘not exact matches as each sample also has components not present in the paired sample.’ This is not a helpful fact for Plaintiff.”

On appeal Panizza contends 1) defendants critiqued the wrong version of her complaint in their motion for summary judgment; and 2) there were triable issues of material fact surrounding, among other issues, Adam Sandow’s independent creation of The Blend. She also argues the independent creation defense set forth in Spinner v. American Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172 (Spinner) and Hollywood Screentest of America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th 631 (Hollywood Screentest) does not apply to the facts of this case.

A. Standard of Review.
B.
We review a trial court’s grant of summary judgment de novo to determine whether there are triable issues of material fact. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “We review the entire record, ‘considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.’ [Citation.] Evidence presented in opposition to summary judgment is liberally construed, with any doubts about the evidence resolved in favor of the party opposing the motion.” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents).)

“ ‘An issue of fact can only be created by a conflict of evidence. It is not created by “speculation, conjecture, imagination or guess work.” [Citation.] Further, an issue of fact is not raised by “cryptic, broadly phrased, and conclusory assertions” [citation], or mere possibilities [citation].’ ” (Spinner, supra, 215 Cal.App.4th at p. 183.)

“The rules of law that define the role of inferences in creating a triable issue of material fact are contained in subdivision (c) of Code of Civil Procedure section 437c. When reviewing a motion, the court shall consider the evidence set forth in the papers and ‘all inferences reasonably deducible from the evidence.’ [Citation.] Generally, when conflicting inferences can be reasonably drawn from the evidence, a triable issue of fact is deemed to exist.” (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 627.)

“A defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action.” (Regents, supra, 4 Cal.5th at p. 618.)

C. The Operative Complaint Contains a Cause of Action for Misappropriation of Trade Secrets.
D.
Panizza contends defendants relied on an incorrect version of her complaint in its motion for summary judgment. She is correct.

In the Notice of Motion and Motion for Summary Judgment, Fred Segal, LLC and Sandow refer to three causes of action: the first cause of action for fraud; the second cause of breach of the implied covenant; and the third cause of action for unfair competition. Robinson joined in this motion. Yet the trial court stated in its ruling granting summary judgment: “The operative Complaint sets forth claims for 1) fraud; 2) misappropriation of trade secrets; and 3) unfair business practices.”

Panizza did not raise this issue in the trial court, however, and has arguably forfeited any challenges based on defendants’ misidentification of the complaint. (See State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130 [doctrine of the theory of trial, a form of invited error, “might apply” to motions for summary judgment].) Even if we disregard her forfeiture, however, Panizza has not shown prejudice from the misidentification, given the trial court’s focus on the correct causes of action and its decision to grant summary judgment as to all three causes of action based on defendants’ independent creation defense, which we discuss below.

C. There Are No Triable Issues of Material Fact Surrounding Sandow’s Independent Creation of the Blend.

All three of Panizza’s causes of action in the operative complaint are based on her allegation that she provided her perfume samples and packaging to Robinson for the limited purpose of Robinson considering them for retail sale. Instead, Robinson either disclosed the samples to Sandow and Fred Segal, LLC who copied them to produce The Blend or Robinson worked with Sandow and Fred Segal, LLC to develop The Blend. She contends she did not consent to and was not compensated for the use of her ideas.

There is no property right in an idea under California law, and so no independent cause of action for idea theft. (Desny v. Wilder (1956) 46 Cal.2d 715, 732–733.) Idea theft is most commonly alleged as a claim for breach of an express or implied contract under the theory that the disclosure and submission of an idea “can be consideration for a promise to pay compensation.” (Spinner, supra, 215 Cal.App.4th at p. 184, citing Desny at pp. 733–734.) Plaintiff fulfills her part of the bargain by disclosing her idea and defendant breaches the contract if he uses the idea without compensating plaintiff. (Spinner, at p. 184.)

Here, Panizza’s idea theft claims were alleged as causes of action for fraud, misappropriation of trade secrets and unfair competition. These causes of action can reasonably encompass an idea theft claim, but the causes of action retain their normal pleading requirements.

Fraud must be alleged with particularity. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [“ ‘particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered” ’ ”].) In her fraud cause of action, Panizza alleged that “[b]etween June 1 and June 21, 2013,” Joanna Valadez of Robinson told her that Robinson “would not use [Panizza’s set of perfume samples] or sell or distribute them without a contract,” and that these statements were made so that Panizza would rely on them and submit her samples for review, which she did. (Complaint ¶ 16.) Panizza further alleged such statements were false. Thus, the fraud claim can only be based on the samples which Panizza submitted on June 21, 2013 in reliance on Valadez’s June statements.

Panizza alleges those samples “consisted of five (5) different scents, numbered 1, 2, 3, 4, and 10, each of which was distinctive. The perfumes were created as a series, each of a contrasting character to the next perfume, including a citrus blended perfume, followed by a floral, followed by a spicy blend of ingredients, and so on through all the samples that were shown to Defendants. Each was marked with a colorful dot, to differentiate the different type, numbered and accompanied by a written key with the names of each. These characteristics appeared in ‘The Blend Fragrance Kit’ three months later.” (Complaint ¶ 12.)

The trade secret which is the subject of a misappropriation cause of action must be identified with specificity. (See, e.g., Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 833 [“ ‘party alleging the misappropriation shall identify the trade secret with reasonable particularity’ ”].) Panizza alleged her “confidential information includes trade secrets; namely, Plaintiff’s formula for the five perfume products presented to Defendants and each of them, within the meaning of Civil Code Section 3426.1 (d).” (Complaint ¶ 20.) Panizza’s theory at all times was that Robinson obtained the formula for her perfumes by analyzing the physical samples she provided on June18-21, 2013.

The unfair competition claim was premised on the facts alleged for the fraud and misappropriation of trade secrets causes of action.

In moving for summary judgment, defendants offered evidence that The Blend was independently created before June 18–21, 2013, the dates on which Panizza alleged that she submitted her samples to Robinson. Independent creation is a defense to an idea theft claim. (Spinner, supra, 215 Cal.App.4th at p. 185.)

In an idea theft case, as in a copyright infringement case, “[c]opying is usually proven circumstantially through evidence of access and substantial similarity.” (Spinner, supra, 215 Cal.App.4th at p. 186.) “Even when the plaintiffs raise an inference of use, however, the defendants may dispel that inference with evidence that conclusively demonstrates the defendants independently created their product.” (Id. at p. 185.)

Independent creation is shown by “ ‘ “clear, positive and uncontradicted evidence” ’ ” that the defendants conceived of the idea at issue before the plaintiff disclosed her idea to them, or defendants acquired the idea from someone who conceived of it before plaintiff’s disclosure. (Spinner, supra, 215 Cal.App.4th at pp. 190–191.) As we have just discussed in some detail, Panizza’s causes of action were all founded on allegations that her idea of a contrasting perfume series was disclosed on June 18-21, 2013 when she sent samples to Robinson.

The trial court found defendants had presented undisputed evidence that The Blend was completed by Sandow in March 2013, although it was refined in April and May 2013. The court also found the evidence showed Panizza presented perfume samples to Robinson on June 18, 2013. These facts support the finding by the trial court that Sandow independently created The Blend.

Panizza contends, in effect, that she created a triable issue of material fact on the defense of independent creation by producing evidence of disclosures to Robinson in 2012 and early 2013, before or when Sandow created The Blend. Panizza asserted in her declaration in support of her opposition to summary judgment, albeit vaguely, that she discussed her products and marketing ideas with Robinson during that time. These new factual assertions raised new factual issues, however.

“ ‘To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party’s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]’ [Citation.] ‘[T]he pleadings “delimit the scope of the issues” to be determined and “[t]he complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action.” [Citation.] [Plaintiff’s] separate statement of material facts is not a substitute for an amendment of the complaint.’ ” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 (Laabs).)

This is not a bright line rule. “[N]ew factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading, construed broadly, encompasses them. In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.” (Laabs, supra, 163 Cal.App.4th at p. 1257.)

Panizza’s pleadings, construed broadly, do not encompass her new factual claims or raise the issue of the pre-June disclosure. Panizza’s fraud cause of action identifies false statements in June by Valadez which induced reliance and disclosure of samples by Panizza on June 18-21, 2013. She alleged that details of the June 21 samples appeared in The Blend kit. Her trade secrets cause of action identifies Panizza’s perfume formulas as her trade secrets, misappropriated when defendants analyzed the perfume samples sent on June 18–21, 2103. Panizza’s new factual assertions appear to be that, contrary to the pleaded allegations, she disclosed bits and pieces of her idea to Robinson beginning in 2012.

The issue of the date of disclosure is not simply one of timing. Because Panizza does not repudiate June 18–21, 2013 as the date she first submitted physical samples to defendants, her new factual issue must involve disclosure in the form of oral or written descriptions of the products and formulas rather than submission of physical samples. Because any disclosures before June cannot have been made in reliance on Valadez’s statements in June, her new factual issue must involve reliance on some other statements, potentially by some other person. Thus, the issue of whether Panizza made disclosures before June 2013 rests on a fundamentally different factual basis than the one alleged in the operative complaint. As a result, they cannot properly be considered to create a material issue of triable fact within the scope of the operative complaint.

Further, even if we were to consider Panizza’s proffered evidence, that evidence is so broad and vague that it would not create triable issues of material fact as to whether she disclosed details of her contrasting perfume series concept before June 18 21, 2013. (See Spinner, supra, 215 Cal.App.4th at p. 183 [an issue of fact is not raised by “ ‘ “cryptic, broadly phrased, and conclusory assertions” . . . or mere possibilities’ ”].)

Panizza offered evidence by her own declaration that she spoke with and emailed Robinson employees before June 2013, but she did not offer evidence identifying any specific information she disclosed in those exchanges. In her first declaration, she states: “Most of my discussions pertaining to my perfume fragrances and marketing concepts and ideas pertaining thereto took place between late fall, 2012, and in or about July, 2013.” There is no indication of what those marketing concepts or ideas were or when exactly she disclosed them. She also states: “In 2012 and 2103, I spoke extensively with employees of Ron Robinson, Inc, such as one ‘Meredith’ about my perfume and my marketing ideas and artwork.” (Some capitalization omitted.) Again, no details are provided. Panizza also declares that in early April she left a voicemail message with Robinson employee Elena which “concerned my perfume fragrances.” No further details of the message are provided. The portions of Panizza’s deposition testimony offered in opposition to summary judgment likewise do not describe any pre-June 2103 disclosures of specific information to Robinson.

Further, although Panizza did offer some evidence that she created and named one fragrance (Love Potion No. 10) before she contacted Robinson, she does not offer any evidence showing when she developed the contrasting perfume series which she claims defendants copied. An email which Panizza sent in December 2012 to Meredith at Robinson describes Panizza’s perfume line as The Super Naturals, which are made of only natural oils and are available in three sizes of bottles. A follow-up January 2013 email transmits a document entitled The Super Naturals line sheet; the attachment is shown in the record as a thumbnail and is not legible. These vague details, however, do not match Panizza’s description of her contrasting perfumes series concept. Ultimately, these emails are not helpful to Panizza as they indicate she had more than one concept for packaging and marketing her perfumes. Given this multiplicity of ideas, it cannot reasonably be inferred that all her disclosures to Robinson necessarily related to the contrasting perfumes series concept.

In sum, Panizza did not offer evidence showing when she developed the contrasting perfume series concept or any evidence that she disclosed any detail of that concept to Robinson before June 18–23, 2013. The evidence shows she had other product ideas as well as the contrasting perfume series. Apart from three vague emails, she provided no evidence of the details or dates of her discussions with Robinson employees, and the details in those emails do not correspond with the details of the contrasting perfume series concept. Thus, her evidence would not be sufficient to create triable issues of fact as to whether Sandow independently created The Blend before Panizza’s disclosure of her contrasting perfume series concept to Robinson.

Panizza also attempts to create triable issues of fact about independent creation by questioning the credibility of defendants’ declarants. She argues a jury should be able to decide if the declarants are believable. She claims, for example, that Adam Sandow’s declaration that he developed The Blend in Florida is not believable. Generally, “ ‘summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations.’ ” (Spinner, supra, 215 Cal.App.4th at pp.183–184, quoting Code Civ. Proc., § 437c, subd. (e).)

D. Disputed Issues of Fact Unrelated to the Independent Creation Defense Do Not Preclude Summary Judgment.

Panizza also points to disputed issues that do not implicate the independent creation defense. She maintains, for example, that there is a disputed issue of material fact as to whether her product concept was substantially similar to The Blend.

“A defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action.” (Regents, supra, 4 Cal.5th at p. 618.) Here, as was the case in Hollywood Screentest, each of Panizza’s causes of action require a finding that defendants wrongfully used her ideas. Because defendants “presented undisputed evidence of independent creation, thus preventing a finding of use, none of appellants’ causes of action can survive.” (Hollywood Screentest, supra, 151 Cal.App.4th at p. 649.)

If Panizza were correct that there were disputed issues of fact as to whether her product was substantially similar to The Blend and whether Sandow and Fred Segal, LLC could be liable for Robinson’s statements to Panizza in June 2013, the existence of those issues would not defeat summary judgment. We note substantial similarity of products is generally present in cases involving the independent creation defense and still does not defeat the defense.

E. The Reasoning of Spinner and Hollywood Screentest Is Applicable to the Facts of This Case.

Panizza also attacks the applicability of the independent creation defense to the facts of this case. She contends the reasoning of Spinner and Hollywood Screentest cannot be applied because, unlike here, there was no evidence that defendants had access to the plaintiff’s script idea. She also points out there was a lengthy time lapse between plaintiffs’ alleged submission of script ideas and defendants’ alleged use of copied material.

As we have just explained, we find, like in Spinner and Hollywood Screentest, that there is no evidence of access here during Sandow’s pre-June creative period. Specifically, there is no evidence here Panizza shared her contrasting perfume series idea with Robinson during that pre-June time frame.

While time lapse between submission and use may be a factor to consider in evaluating an idea theft claim, Spinner holds that independent creation depends on when disclosure occurs, (that is, after independent creation), not on a specific time gap between independent creation and disclosure. In Teich v. General Mills, Inc. (1959) 170 Cal, App.2d 791, which we discussed with approval in Spinner, the time lapse was several weeks. (Spinner, supra, 215 Cal.App.4th at p. 190.)

II. Motion To Reconsider

Panizza filed a motion to reconsider, contending that “relevant information was inadvertently omitted” and claiming to include “a combination of new and previously submitted evidence that may have been overlooked.” The court denied the motion, explaining, “Upon review of the purported ‘relevant information,’ the court finds that Plaintiff fails to establish any new or different ‘facts, circumstances, or law’ unavailable at the time of the prior hearing. Moreover, Plaintiff fails to provide a satisfactory explanation for failing to provide the information earlier. [Citation.] There remains no evidence contradicting Defendants’ independent development of The Blend.”

We review the trial court’s ruling on a motion for reconsideration under the abuse of discretion standard. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) We find no abuse of discretion.

Much of the “new” information was in Panizza’s possession when she filed her opposition to summary judgment. She does not coherently explain her failure to offer this evidence in support of her opposition.

Other information does not yet exist. She claims: “New information about another third-party fragrance is forthcoming” from someone who “may be my third expert witness.” This is far too speculative to serve as the basis for a motion to reconsider.

Some of the information, particularly information related to Sandow employee Elena Severin, may have been newly discovered, but Panizza acknowledges she was aware of Elena Severin’s existence during the discovery phase of this action. Exhibit B is Severin’s LinkedIn profile; Panizza does not explain why she failed to discover this profile until after summary judgment was granted. Further, as respondents note, although the profile shows Severin was involved in the development of The Blend and she worked in both Santa Monica and Florida, Panizza’s claim that the profile disproves the development timeline or location is pure speculation.

DISPOSITION

The judgment is affirmed. Costs are awarded to respondents Ron Robinson, Inc. Sandow Media, LLC and Fred Segal, LLC.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

GRIMES, J.