Gerritsen v. Warner Bros. Entertainment Inc. (116 F. Supp. 3d 1104, 2015)

ORDER GRANTING DEFENDANTS’ . . MOTION . TO DISMISS PLAINTIFF’S FIRST. AMENDED COMPLAINT-

MARGARET M. MORROW, District Judge.

On April 29, 2014, Terry T. Gerritsen filed this action against Katja Motion Picture Corporation (“Katja”), New Line Productions, Inc. (“New Line”), and Warner Brothers Entertainment, Inc. (“WB”) (collectively, “defendants”). On June 20, 2014, defendants filed a motion to dismiss Gerritsen’s complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court granted defendants’ motion to dismiss with leave to amend on January 30, 2015. Gerritsen filed a timely first amended complaint on February 19, 2015, which defendants moved to dismiss on March 9,2015. The same day, defendants filed a request that the court consider certain documents purportedly incorporated by reference in Gerritsen’s first amended complaint. Gerritsen opposes both defendants’ motion and their request that the court consider the allegedly incorporated documents.

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds this matter appropriate for decision without oral argument. The hearing calendared for June 15, 2015, is therefore vacated, and the matter is taken off calendar.

I. FACTUAL BACKGROUND

A. Facts Alleged in the First Amended Complaint

1. The Parties

Gerritsen is an international best-selling, award-winning author whose novels have frequently appeared on the New York Times Best Seller list.. WB is in the business of developing, producing, distributing, and marketing motion pictures, including the 2013 film Gravity (the “Film”). Robert Shaye formed New Line in 1967; Shaye and Michael Lynne operated the company as a motion picture studio until February 28, 2008. Gerritsen alleges that New Line created Katja as a wholly owned subsidiary for the purpose of acquiring literary properties and developing screenplays based on those properties. She contends that after Katja developed a screenplay, New Line decided whether to make a film based on the screenplay; if it decided to do so, New Line produced, or designated another related entity to produce, the film.

Gerritsen asserts that since its inception, Katja has been the alter ego of New Line and that there is and has been a complete unity of interest and ownership between the two companies. Katja and New Line allegedly shared and still share the same offices and employees, and operated and still operate under the direction of the same officers and directors. They also allegedly shared the same telephone number. Gerritsen contends that the records of the California Secretary of State reflected the same representative for both New Line and Katja. She also alleges that New Line allegedly made all business decisions for Katja. Gerritsen asserts, on information and belief, that New Line funded Katja’s operations and that, other than money New Line provided, Katja had no significant assets or resources and was thus undercapitalized for the business in which it was and is engaged.

Gerritsen maintains that at all times relevant to this lawsuit, WB and New Line (while it was a movie studio) have tried to shield themselves from liability by creating a web of “units” and “divisions.” Different units of WB allegedly serve different functions, such as owning the studio lot, acquiring literary material, producing films, and distributing films; Gerritsen contends that, in reality, WB totally controls all of the units. She asserts that, to mislead and frustrate creditors, WB and New Line formed several wholly owned subsidiaries, engaged in mergers, consolidations, and acquisitions with other existing companies, and periodically changed the names of the units. Gerritsen also alleges, on information and belief, that at different times New Line has used the names “New Line Productions, Inc.,” “New Line Film Productions, LLC,” “New Line Cinema Corporation,” “New Line Cinema,” “New Line Cinema, LLC,” “New Line Cinema Picturehouse Holdings, Inc.,” “New Line Distributions, Inc.,” “New Line Distribution Services, Inc.,” “New ■ Line Home Entertainment, Inc.,” “New Line International Releasing, Inc.,” “New Line International, Inc.,” and “New Line Television, Inc.,” several of which are allegedly listed in the records of the California Secretary of State and are active today. WB has allegedly operated under an even larger number of names. Gerritsen contends that WB and New Line have created a business structure so complex that individuals who run the studio frequently cannot keep the entities’ relationships and their multiple titles straight.

2. General Factual Background

In 1999, Gerritsen completed a novel titled Gravity (the “Book”), which was published by Simon and Schuster in September of that year. Gerritsen alleges that the Book, set in orbital space, features a female doctor/astronaut who is stranded alone aboard a space station after disasters kill the rest of the crew; the Book details her struggle to survive. Gerrit-sen asserts she did extensive research pri- or to and while writing the Book to ensure that her depiction .of NASA technology was .realistic. She also maintains that writing the Book was the most daunting challenge of her career, because it involved months of research, which included visiting NASA facilities and conducting interviews.

Based on a manuscript seen by their representatives before the Book was published, Katja and New Line purportedly entered into a written contract with Ger-ritsen (the “Contract”) on March 18, 1999, to purchase motion picture rights to the Book, as well as “any and all versions thereof.” The Contract provided that Katja would pay Gerritsen $1,000,000 in exchange for the, motion picture rights. It also provided that if Katja produced a motion picture based on the Book, it would pay Gerritsen (1) a $500,000 production bonus and (2) contingent .compensation equal to 2.5% of the defined net proceeds of the motion picture. Katja also agreed to give Gerritsen screen credit, on a separate card, in the main titles, and in the billing block of paid advertisements for the Film.

Gerritsen alleges that 'at the time the Contract was'signed, Katja was the alter égo of New Line. She contends that New Line used Katja as part of a comprehensive business strategy to acquire literary material and develop that material into viable motion picture screenplays ready for production; at that point, rights were purportedly assigned to New Line or an entity identified by it so that New Line or the designated entity-could produce the film. New Line and Katja allegedly never intended to have Katja produce a motion picture based on Gerritsen’s literary property at the time the Contract was signed; rather, they purportedly intended to have it’create a screenplay based on the Book under New Line’s supervision. Katja and New Line allegedly agreed that if New Line liked the screenplay, Katja would assign rights to the work to New Line or an entity chosen by it. New Line allegedly executed and delivered a Continuing Guaranty of Katja’s obligations under the Contract, which guaranteed “full and faithful performance” by Katja.

3. The Relationship Between WB, New Line, and Katja

On January 28, 1994, Turner Broadcasting System (“Turner”) purportedly purchased New Line and Katja; in 1996, Turner was allegedly purchased by Time Warner. As a result, beginning in 1996, Time. Warner allegedly owned two motion picture studios:. WB and New Line. At the time Katja and New Line, acquired the motion picture rights to Gerritsen’s book, therefore, both companies were allegedly owned by Time' Warner, which also owned WB.

On February 28, 2008, Time Warner purportedly caused WB, New Line, and Katja to consolidate. Gerritsen asserts that the reason for the consolidation was that Time Warner did not believe it was efficient or economically viable to own and operate two separate movie studios. She contends, on information and belief, that because Time’ Warner was the sole owner of WB, New Line, and Katja, neither New Line nor Katja received any consideration in connection with the consolidation; this purportedly left “no money available” for New Line’s and Katja’s creditors following the consolidation.

On the date of the purported consolidation, Time Warner’s Chief Executive Officer (“CEO”), Jeff Bewkes, allegedly sent a publicly disclosed memorandum announcing the consolidation to Time Warner employees, which stated: “Today it was announced that New Line Cinema will be operated as a unit of Warner Bros. Entertainment.” The same day, Shaye and Lynne, New Line’s departing Co-Chairmen, announced the consolidation in a memorandum to New Line’s employees, which was purportedly published in the press. It stated: “This afternoon, Time Warner is announcing that New Line will become a unit of Warner Bros.”

Following the consolidation, New Line and Katja purportedly became units of WB. Gerritsen alleges, on information and belief, that the companies have effectively operated as a single entity since the date of the consolidation. She asserts that defendants have held themselves out as a single entity to the public; as evidence of this, she pleads that (1) Time Warner issued press releases announcing the consolidation of WB and New. Line and its impact; and (2) Time Warner’s Form 10K filed for , 2008 stated in part:“FILMED ENTERTAINMENT: ... To increase operational efficiencies and maximize performance within the Filmed Entertainment segment, the Company reorganized the New Line business in 2008 to be operated as unit of’Warner Bros.”

Gerritsen alleges that since 2008, WB has exercised complete management, control, ownership, and domination over New Line and Katja; she asserts that in acquir-' ing New Line and Katja, WB intended to control the corporations so that they could be used as agencies or instrumentalities of WB. She cites (1) the fact that Shaye and Lynne allegedly departed immediately from Katja and New Line following the-consolidation; (2) WB purportedly terminated approximately 45Ó New Line and Katja employees 'following the consolidation; and (3) WB allegedly appointed Edward Romano, WB’s Chairman, as Katja’s Chief Executive Officer.

Gerritsen asserts WB dictated that New Line no longer function as a studio, but rather operate with Katja as a production unit to develop and produce films WB assigned to it or otherwise approved. WB also allegedly caused New Line and Katja to close their New York offices and move from their principal business office at 116 North Robertson Boulevard, Los Angeles, California to a studio lot owned by a WB division at 4000 Burbank Boulevard, Burbank, California. WB, New Line, and Katja purportedly now share offices at the studio lot in Burbank and have the same business address.

Gerritsen pleads other facts to support her claim that WB has exercised, and continues to exercise, complete control over New Line and Katja. She asserts that (1) the California Secretary of State’s registry of business entities identifies Jillaine Cos-telloe, a paralegal in the WB legal department, as the contact person for New Line and Katja; (2) if one tries to access New Line’s or Katja’s websites, he or she is automatically directed to the WB website; (3) New Line and Katja have no telephone number of their own that is accessible to the public, but share WB’s main number; and (4) the Boards of Directors of New Line and Katja, on the one hand, and WB, on the other, have several members in common, including Romano, WB’s Vice Chairman, who is New Line’s Chief Financial Officer and Katja’s Chief Executive Officer; John Rogovin, WB’s Executive Vice President and General Counsel, who is Secretary of New Line and Katja; and Elizabeth Mason, WB’s Senior Vice President of Taxation, who is Katja’s Chief Financial Officer. Gerrit-sen alleges, on information and belief, that other individuals who have served as officers of New Line and Katja since the consolidation have been WB employees as well.

She asserts that (1) when a profit participant enters into a contract with New Line, the accounting statements he or she receives are issued by WB’s Financial Contract Reporting and Administration Department on WB stationery; (2) a profit participant auditing accounting statements must communicate exclusively with WB accounting staff; (3) the WB website directs individuals who desire to license a clip, still, or poster or who seek to license a remake, sequel, stage play, or dialogue rights from New Line to contact a WB department; (4) the business affairs and legal executives of New Line and Katja are located on the WB lot in Burbank and can only be reached through the WB switchboard; (5) when New Line and Katja are sued, they must be represented by attorneys chosen by WB; and (6) in 2011, the New Line logo, which appeared on screen in many New Line motion pictures, began to appear only after the viewer saw a WB shield with a “Warner Bros. Pictures” banner.

Gerritsen contends that from 2008 to the present, WB has directed New Line’s business activities. She alleges that (1) WB decides or must approve which films New Line will produce; (2) WB dictates that New Line produce certain genre-specific films; (3) WB assigns films from other genres to its other production unit, “Warner Bros. Pictures”; (4) WB determines how many films New Line will produce annually, and has altered the number periodically since consolidation; and (5) all movies produced by New Line must be distributed by WB.

WB also purportedly controls New Line’s former record label. Prior to 2008, New Line allegedly owned and operated a record label known as Néw Line Records. Gerritsen contends that in December 2010, WB announced it would assume control and change the name of the label to WaterTower Music. WB’s website purportedly states: “WaterTower Music, Warner Bros.’ in-house music label, was launched in January 2010 as a reimagining and rebranding of New Line Records to create music assets as diverse as the films, television shows, and interactive games they support. Housed on the Burbank lot, in the offices occupied by Warner Bros. Records during its heyday in the 1960s ... allows [WaterTower Music] to easily and efficiently communicate with colleagues across any Warner Bros, division.” Ger-ritsen alleges that soundtracks from all WB films and television programs, including those produced by New Line, are sold at WB’s discretion through WaterTower Music. She also asserts, on information and belief, that the music that appears in New Line productions is arranged and produced by WB employees.

Gerritsen contends that WB regularly speaks for and on behalf of New Line in the media, as evidenced by (1) WB’s announcement on May 14, 2014, that New Line would produce a film titled IT, which was originally going to be produced by WB’s other motion picture studio, WB Pictures; (2) WB’s announcement on October 15, 2014, that WB had entered into a contract with DC Comics pursuant to which New Line was going to produce films based on comic book characters; (3) WB’s announcement on May 8, 2014 that it would partner with MGM to co-produce a Reese Witherspoon/Sofia Vergara film and assign production to New Line; (4) WB’s announcement on November 18, 2014 about the success of New Line’s film, Annabelle; (5) the purported fact that domestic box office performance reports for WB films do not differentiate between WB Pictures and New Line films; and (6) the alleged fact that, since 2008, any news article that mentions New Line always notes that New Line is a unit of WB.

A written agreement dated January 1, 2010, allegedly provides that all intellectual property acquired by New Line at any time will automatically be deemed to have been transferred to and owned by WB. WB purportedly paid no consideration for this agreement and did not promise to pay any future consideration. Rather, the purported purpose of the agreement was “solely to vest in [WB] the benefits of specific rights-related provisions of Content Agreements,” and to ensure that “[WB] assume[d] no obligations under such ... Agreements.”

Based on these allegations, Gerritsen contends that a de facto merger of WB, New Line, and Katja occurred in 2008, that WB is a continuation of New Line and Katja, and that it is legally responsible for those companies’ obligations under the Contract and Guaranty. Gerritsen also asserts that New Line and Katja have been and are WB’s alter egos, She contends that- WB’s owns Katja’s and New Line’s stock so that it can control them and use them as its agencies or -instrumen-talities. -Finally, Gerritsen maintains that Katja has been and is undercapital-ized for the business in which it is engaged and that the company’s, funds and resources are commingled with WB’s funds and resources and are under.WB’s. sole and complete control.

4. Development of the Film .

Following its acquisition of motion picture rights to the Book; Katja purportedly sought to develop a film based on the Book with New Line and - Artists Production Group (“APG”); APG is the production affiliate of management company Artists Management Group (“AMG”). Gerritsen asserts it is common that, while a. screenplay is being written, a director is “attached” to the project to supervise screenplay creation; this individual has access, to the literary work upon which the screenplay is to be based. She contends, on information and belief, that writer and director Alfonso Cuarón was attached to the project of writing a screenplay based op the Book. Gerritsen asserts she was not told that Katja had attached-Cuarón to the project, and alleges, on information and belief, that Cuarón first became aware of and had access to the Book because he was a client of AMG; this allegedly entitles him to an option on films APG planned to develop.

To assist with the screenplay, Gerritsen allegedly wrote additional scenes in which satellite debris collided with the International Space Station, destroying it and leaving the female doctor/astronaut drifting in a space suit searching for ways- to return to Earth. Under terms of the Contract, Katja allegedly owned this additional written work. Gerritsen contends she delivered the additional scenes to AMG and APG, which retained possession of them, and purportedly shared them with New Line, Katja, and Cuarón. She asserts, on information and belief, that sometime after 2002, Cuarón and his son, Jonas Cuarón, wrote a screenplay titled Gravity (the “Cuarón Gravity Project”), which featured the same characters and storyline as Gerritsen’s book and the additions thereto.

On December 17, 2009, the Cuaróns allegedly granted all rights in the Cuarón Gravity Project to WB, which in turn assigned or allowed its Warner Bros. Picture unit, rather than New Line, to produce the Film. In 2011, Warner Bros. Pictures began production of the Film, with Cuarón as director. The project was allegedly supervised by Lynn Harris, WBs Executive Vice President of Production and New Line’s Vice President of Production; Harris .allegedly served as New Line’s Executive Vice President from 2000 to 2002. The Film includes scenes of satellite debris colliding with the International Space Station; as a result, a female astronaut is set adrift in space, and desperately seeks a way to return to Earth. The screenplay credit on the Film states that it was “[wjritten by Alfonso Cuarón and Jonas Cuarón.” Gerritsen alleges that,' by including such a credit, WB represented to the public that the Film’s concept and story line originated with the Cuaróns. The Film was released in the United States on October 4, 2013, and to date has reported box office gross revenue of more than $700,000,000. The Film won seven Oscars.

5. Gerritsen’s Claims

Gerritsen pleads claims for breach of written contract against Katja and WB, and breach of guaranty against New Line and WB. She seeks an accounting from all defendants.

B. Defendants’ Request That the Court Consider Documents Purportedly Incorporated by Reference in the First Amended Complaint

Defendants ask that the court consider twelve documents to which Gerritsen makes reference and on which she purportedly relies in the first amended complaint under the incorporation by refer-encé doctrine. These include (1) an Assignment Agreement dated January 1, 2010 between New Line and WB; (2) a Time Warner press release dated February 28, 2008, captioned “Time Warner Consolidates Film Entertainment Business”; (3). an article written by Nikki Finke, titled, “Toldja! New Line Folds Into Warner Bros; Bob Shaye & Michael Lynne Exit; Read All the Interoffice Memos Here,” which appeared on the Deadline Hollywood website on February 28, 2008; (4) an' article written by Peter Sciretta, titled “Breaking: Warner Bros. Absorbs New Libe Cinema,” which appeared on Slashfilm.com on February 28, 2008; (5) an article written, by Louis Hau, titled “New Line, Warner Bros, to Merge Operations,” which appeared on Forl3es.com on February 28, 2008; (6) an article by Claudia Eller, titled “New Line, Old Story: A Small Studio Fails,” which, appeared in The Los Angeles Times on February 29, 2008; (7) the Form 10-K Time Warner filed with the Securities and Exchange Commission on February 20, 2009; (8) an excerpt of a letter from WB’s Michelle Schultz to Christine Cuddy, Gerritsen’s lawyer, on April 25, 2014; (9) an article by the Hollywood Reporter’s Borys Kit, titled “Stephen King ‘It’ Moves from Warner Bros, to New Line (Exclusive),” which appeared on May 21, 2014; (10) a Time Warner press release dated October 15, 2014, captioned “Warner Bros. Details Strategic Content Plans at Time Warner Investor Conference,”; (11) a Time Warner press release dated November 18, 2014, captioned “New Line Cinema’s ‘Annabelle’ is Unstoppable, Passing $250 Million in Global Box Office”; and (12) an article by Mike Fleming Jr., titled “URGENT: Warner Bros Downsizing New Line,” which appeared on the Deadline Hollywood website on February 22, 2011. With the exception of the Assignment Agreement, Gerritsen opposes the request that the court consider these documents.

In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555- n, 19 (9th Cir.1990). A court must normally convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it “considers evidence outside the pleadings”.

The incorporation by . reference doctrine “permits a district court to consider documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiffs] pleadings.” In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970, 986 (9th Cir.1999) (citing Branch, 14 F.3d at 454); see Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005) (“[The Ninth Circuit] ha[s] extended the ‘incorporation by reference’ doctrine to situations in which the plaintiffs claim depends on the contents of the document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint,” citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998)); United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir.2003) (“A court may, however, consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment”); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (a court may consider “other sources courts ordinarily examine when'ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice”); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994) (noting that a court may consider a document whose contents are alleged in a complaint, so long as no party disputes its authenticity), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002); Kythera Biopharmaceuticals, Inc. v. Lithera, Inc., 998 F.Supp.2d 890, 897 (C.D.Cal.2014) (“The Ninth Circuit has extended the incorporation by reference doctrine to situations in which the plaintiffs claim depends on the contents of the document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document” (citations omitted)).

Gerritsen objects to defendants’ request that the court consider the documents because “the factual allegations in the FAC are supported by a multitude of sources which go far beyond those few which are identified by [defendants” and “cannot be disproved by simply citing to a handful of handpicked publications with choice phrases.” Defendants, however, do not assert that these documents, in isolation, are the only materials on which Gerritsen relies; they merely request that the court consider the entirety of the documents, which they assert Gerritsen “handpicked” to cite in her first amended complaint. The fact that Gerritsen may have relied on other information in pleading her first amended complaint does not preclude the court from considering documents whose contents are alleged in the complaint because Gerritsen’s claims depend, in part, on those contents. Kythera Biopharmaceuticals, Inc., 998 F.Supp.2d at 897.

Gerritsen next objects to “[d]efendants[’ attempt] improperly [to] carve out select portions of the [eleven] documents ... they wish the [c]ourt to ‘incorporate’ into the” first amended complaint. While it is true, as Gerritsen observes, that defendants highlight portions of the documents they contend are inconsistent with her allegations in the amended complaint, this does not require that the court decline to consider the documents. To the extent the documents have been incorporated by reference in the first amended complaint— a subject the court discusses infra — the court can consider each document in its entirety and not rely solely on the excerpts plaintiff pleads or those defendants highlight in their motion.

Finally, Gerritsen objects to each document on the grounds that “the contents of the articles are inadmissible hearsay, and at times they are double hearsay, to the extent they are introduced for the truth of the matters asserted.” To the extent a document has been incorporated by reference in a complaint, however, the court “may treat such a document as part of the- complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir.2012); see also In re Turbodyne Techs., Inc. Securities Litigation, No. CV 99-000697 MMM (BQRx), 2000 WL 33961193, *10 (C.D.Cal. Mar. 15, 2000) (“By incorporating the documents, plaintiffs have made the allegations their own, and they must thus be considered true for purposes of this motion to dismiss” (citation omitted)). Stated differently, to the extent they were incorporated by reference in the complaint, the documents are not evidence, but allegations Gerritsen has made.

Turning to the documents themselves, Gerritsen does not dispute that the 2010 Assignment Agreement was explicitly referenced and incorporated in the first amended complaint. Accordingly, the court will consider the Agreement in ruling on defendants’ motion. It is unclear whether Gerritsen agrees that she incorporated the remaining documents by reference in her - complaint. She asserts that “[mjost of the documents are not ‘explicitly’ referenced in the FAG”; - -this suggests she concedes that some were “explicitly referenced.” She fails to identify which documents were referenced/incorporated and which were not, however. Instead, she makes general objections — e.g., “in some instances, [defendants attach the wrong articles and in .others they attach one of multiple articles from which facts alleged in the FAC were derived.” The court must thus consider the documents seriatim.

The court agrees with Gerritsen that the February 28, 2008, Time Warner press release — which is Exhibit B to defendants’ request — was not incorporated by reference in the first amended complaint. Although the complaint mentions the release im passing,. it does not reference its contents, nor rely on its issuance, as affirmative support' for Gerritsen’s claims. Instead, it appears that Gerritsen’s reference to the press release merely supports her allegation that defendants consolidated the day the release was issued. As courts have recognized, merely mentioning the existence of a document does not satisfy the incorporation by reference standard: See, e.g., Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir.2010) (“[T]he mere mention of the existence of-a document is insufficient to incorporate ithe contents of a document,” citing Ritchie, 342 F.3d at 908-09); F.T.C. v. Amazon.com, Inc., 71 F.Supp.3d 1158, 1161 (W.D.Wash.2014) (declining to deem a document incorporated by reference as it was “[o]nly once ... tangentially mentioned]” in the complaint). It cannot fairly be said that Gerritsen did anything more than reference the existence of the press release in the first amended complaint. The court therefore concludes that it was not incorporated by .reference and declines to consider the document in its entirety.

Exhibit G to defendants’ request is a Deadline Hollywood article that attached internal WB and New Line memoranda regarding the pui-ported consolidation of the companies in 2008. The court agrees that the attachments to the article are properly considered under the incorporation by reference doctrine. Gerritsen cites i extensively from each memorandum in the first amended complaint. She relies on statements in the documents, moreover, as support for the vicarious liability theories she pleads. Gerritsen does not dispute the authenticity of the memo-randa, and consequently, the court will consider them in their entirety in deciding defendants’ motion to dismiss. See Kythera Biopharmaceuticals, Inc., 998 F.Supp.2d at 897.

Exhibit D is a Slashfilm.com article by Peter Sciretta published on February 28, 2008. Gerritsen referenced the existence of. the article in her complaint. Although she contends she did so “not for the. truth of [its] content but to illustrate [defendants’ characterization of the February 28, 2008, consolidation,” she relies on the truth of the article’s title — that New Line was completely absorbed by WB — in her complaint. In her opposition, moreover, she asserts that the contents of the article are consistent with the title. The court therefore concludes it is appropriate to consider the entirety of the article to provide appropriate context for the title on which Gerritsen relies. As Gerritsen does not dispute the authenticity of the document, the court deems Exhibit D incorporated by reference in the first amended complaint and will consider it in deciding defendants’ motion.

The court will also consider the next two documents — the Forbes article by Louis Hau (Exhibit E) and the Los Angeles Times article by Claudia Eller (Exhibit F). Although Gerritsen does not expressly cite the articles, she quotes extensively from each, and cites the source of the quotations as Forbes and the Los Angeles Times respectively. A comparison of the quotations in the first amended complaint with the articles attached to defendants’ request confirms that these articles were the sources Gerritsen referenced in the complaint; Gerritsen does not argue otherwise, nor does she dispute the authenticity of the documents.

The court will also consider- Exhibit G, as Gerritsen cites and relies on the contents of Time Warner’s Form 10-K report for 2008 in the complaint. The court, however, declines to consider Exhibits H and I. Defendants maintain that Exhibit H, which is an April 25, 2014, letter from WB’s Michelle Schultz to Gerritsen’s counsel, Christine Cuddy, is referenced in paragraph 56 of the first amended complaint. Gerritsen, however, disputes this, asserting that it is merely “one pre-litigation communication,” and that defendants have-“ignor[ed] others that contributed to ... the allegations in paragraph 55 and 56 of the” amended complaint. Defendants do not dispute that the letter is not the sole pre-litigation communication between the parties;’ instead, they contend it is the “primary written communication between plaintiff and defendants concerning this lawsuit.” The extent to which other communications exist that formed the basis for Gerritsen’s allegations'is unclear. Because the first amended complaint does not explicitly reference the letter, and because the allegation that apparently concerns it is not material to the court’s ultimate decision of defendants’ motion, the court declines to consider Exhibit H. Turning to Exhibit I, Gerritsen pleads that “on May H, 20H, WB announced that a film called IT,’ based on a book by Stephen King, which was originally going to be produced by WB Pictures, would be moved to and produced by New Line instead.” The Hollywood Reporter article defendants proffer is dated May 21, 2014, not May 14. Although defendants note that, the article is an “exclusive,” the date on which it appeared does not coincide with that pled in the first amended complaint. Accordingly, the court declines-to consider Exhibit 1.

Gerritsen cites' the final three documents — an October 15, 2014, Time Warner press release (Exhibit J), a. November 18, 2014, Time Warner press release (Exhibit K), and a Deadline Hollywood article published on February 22, 2011 (Exhibit L)— in the first amended complaint and relies on them as support for her breach of contract and breach of guaranty claims. She does not dispute their authenticity. She cites the content of each press release, and relies on it to demonstrate that WB routinely makes media announcements on New Line’s behalf, and does not distinguish itself from New Line. Because Gerritsen relies on the press releases, and does not dispute that the documents attached to defendants’ request are authentic, the court will consider the entirety of the press releases in deciding defendants’ motion. As for Exhibit L, although Gerritsen does not expressly cite it, she quotes from the article throughout the complaint, and relies on those allegations as support for her claims. Because the article’s authenticity is not in dispute, the court will consider the entirety of the article under the incorporation by reference doctrine.

In sum, the court grants defendants’ request to consider Exhibits A, C, D, E, F, G, J, K, and L as incorporated by reference in Gerritsen’s first amended complaint. It declines to consider Exhibits B, H, and I.

II. DISCUSSION

A. Legal Standard Governing Motions to Dismiss Under Rule 12(b)(6)

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory,” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistre v. Pa cifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988). The court must accept all factual allegations pleaded in the complaint as true, and construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir.1995).

The court need not, however, accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”). Thus, a plaintiffs complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Twombly, 550 U.S. at 545, 127 S.Ct. 1955 (“Factual allegations must be enough to raise the right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)” (citations omitted)); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.2009) (“[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief,” citing Iqbal and Twombly).

B. Gerritsen’s Breach of Contract and Breach of Guaranty Claims

1. Legal Standard Governing Breach of Contract and Breach of Guaranty Claims

To state a breach of contract claim, a party must allege the existence of a contract; performance under the contract or an excuse for. nonperformance; defendant’s breach; and resulting damages. Alvarado v. Aurora Loan Services, LLC, No. SACV 12-0524 DOC (JPRx), 2012 WL 4475330, *4 (C.D.Cal. Sept. 20, 2012) (citing McKell v. Washington Mutual, Inc., 142 Cal.App.4th 1457, 1489, 49 Cal.Rptr.3d 227 (2006)). California courts apply the same standard to breach of guaranty claims. See MRW, Inc. v. Big-O Tires, LLC, No. CIV S-08-1732 LKK/DAD, 2009 WL 3368438, *9 (E.D.Cal. Oct. 16, 2009) (“An action for breach of guaranty is a species of claim for breach of contract”); see also Harrison Ventures, LLC v. Alta Mira Treatment Center, LLC, No. C 10-00188 RS, 2010 WL 1929566, *5 (N.D.Cal. May 12, 2010) (“With regard to the breach of guaranty claim against Cartwright, such a breach occurs when a debt falls due and remains unpaid. Here, absent a breach by defendants, no such unpaid debt arises. The breach of guaranty claim against Cartwright is therefore wholly dependent upon the viability of the FAC’s breach of contract claims. As those claims have been dismissed with leave to amend, the same fate must befall the breach of guaranty claim,” citing California First Bank v. Braden, 216 Cal.App.3d 672, 677, 264 Cal.Rptr. 820 (1989)). As Gerritsen’s breach of contract and breach of guaranty claims are governed by the same standard and the parties address the claims jointly in their briefs, the court considers them in tandem below.

C. Whether Gerritsen Has. Plausibly Alleged Breach of Contract and Breach of Guaranty Claims

1. Gerritsen’s Direct Liability Theories

In its order dismissing Gerritsen’s original complaint, the court concluded that, as pled, Gerritsen’s complaint failed to state a claim for either breach of contract, or breach of guaranty on a direct liability theory. It stated:

“Even when her allegations are construed in Gerritsen’s favor, it is apparent that she cannot plausibly allege a claim under traditional contract law theories. Gerritsen pleads that she entered into contracts with Katja and New Line that entitled her to payment if Katja produced a motion picture based on her book; and that WB, not Katja, produced the Film that is allegedly “based on” the Book. No plausible inference arises from these allegations that WB was a party to the contracts or that Katja produced the Film. Thus, absent an alternative theory of liability, Gerritsen’s claims must be dismissed.”

In her opposition to defendants’ motion to dismiss the first amended complaint, Gerritsen advances two bases on which each defendant is directly liable for breach of contract and/or breach of guaranty. She argues first that “Katja and New Line are liable ... for breach of the implied covenant of good faith and fair dealing because they failed to take necessary- actions to ensure Gerritsen received the benefits of the Contract.” She states that she, Katja, and New Line “all understood at the time the Contract was executed that if a ‘Picture’ .. was produced, Katja would not produce it.” As a result, she contends, “Katja and New Line knew -Ger-ritsen would rely on them to secure and enforce [her] right to credit and payment under the Contact if a third party, e.g., W.B., made a film based on the-Book.” Defendants contend that Gerritsen’s breach of the implied covenant claims are “new claims” that exceed the scope of leave to amend granted by the court in its prior order. The court agrees.

Although Gerritsen does not plead the claims as independent causes of action, California law is clear that breach of implied covenant claims are independent of claims- for breach of the underlying contract. See, e.g., Boyd v. Avanquest North America Inc., No. 12-cv-04391-WHO, 2014 WL 7183988, *2 (N.D.Cal. Dec. 16, 2014) (“Under California law, ‘[t]he elements of a cause of action for breach of contract are:' (1) a contact; (2) plaintiffs performance; (3) defendant’s -breach and (4) damage to plaintiff therefrom;’ Regarding the fourth cause of action, ‘[u]nder California law, a breach of the implied covenant-of good faith and fair dealing involves something beyond breach of the contractual duty itself” (citations omitted)); May v. Semblant, Inc., No. 5:13-CV-01576-EJD, 2013 WL 5423614, *6 (N.D.Cal. Sept. 27, 2013) (“In California, breach of contact and breach of the implied covenant of good faith and fair dealing are two distinct claims,” citing Swearengin v. Continental Ins. Co., No. CV 02-5281 EFS (SHx), 2002 WL 34439648, *3 (C.D.Cal. Oct. 3, 2002)); Bilodeau v. McAfee, Inc., No. 12-CV-04589-LHK, 2013 WL 3200658, *13 (N.D.Cal. June 24, 2013) (analyzing a breach of the implied covenant claim separately from a breach of contract claim); Black & Veatch v. Modesto Irr. Dist., No. CV F 11-0695 LJO SKO, 2011 WL 2636218, *6 (E.D.Cal. July 5, 2011) (“Under California law, a breach of the [implied] covenant may be pleaded and adjudicated as a distinct cause of action,” citing State Farm Mutual Automobile Ins. Co. v. Superior Court, 114 Cal.App.4th 434, 453, 8 Cal.Rptr.3d 56 (2003)); Ledwidge v. Ziehm Imaging, Inc., No. EDCV 11-00217 VAP (OPx), 2011 WL 836446, *1 (C.D.Cal. Mar. 9, 2011) (“[I]t appears that although Plaintiffs state expressly only a breach of contract claim, Plaintiffs’ claim contains two separate claims: (1) breach of the express contract; and (2) breach of the implied covenant of good faith and fair dealing”); Greenwich Ins. Co. v. Rodgers, 729 F.Supp.2d 1158, 1162-64 (C,D.Cal. 2010) (analyzing breach of contract and breach of the implied covenant claims as distinct causes of action).

As a result, and notwithstanding Gerritsen’s suggestions to the contrary, the breach of implied covenant claims she now seeks to pursue against Katja and New Line — which were not pled-in her original complaint — are “new claims” that exceed the scope of leave, to amend granted by the court. The court cautioned Ger-ritsen that “[she could] not plead .new claims” and that, “[s]hould the scope of any amendment exceed the leave to amend granted ..., the court [would] strike the offending portions of the pleading under Rule 12(f).” Because Gerritsen pleads new breach of the implied covenant claims against Katja and New Line that exceed the leave to amend granted, the court strikes these -.portions, of Gerritseris breach of contract and breach of guaranty claims. See DeLeon v. Wells Fargo Bank, N.A., No. 10-CV-01390-LHK, 2010 WL 4285006, *3 (N.D.Cal. Oct. 22, 2010) (“In cases like this one ... where leave to amend is given to cure deficiencies in certain specified claims, courts have agreed that new claims alleged for the first time in the amended pleading should be dismissed or stricken”); see also Kennedy v. Full Tilt Poker, No. CV 09-07964 MMM (AGRx), 2010 WL 3984749, *1 (C.D.Cal. Oct. 12, 2010) (noting that the court had stricken a third amended, complaint because plaintiffs’ new claims and the addition of new defendants “exceeded the authorization to amend the court granted” and plaintiffs had not sought leave to add new claims or defendants as required by Rule 15); Barker v. Avila, No. 2:09-cv-0001 GEB-JFM, 2010 WL -3171067, *1-2 (E.D.Cal. Aug. 11, 2010). (striking an amendment to a federal law claim where the court had granted leave to amend only state law claims); PB Farradyne, Inc. v. Peterson, No. C 05-3447 SI, 2006 WL 2578273, *3 (N.D.Cal. Sept. 6, 2006) (striking, without leave to amend, a new theory of liability alleged in third amended complaint because the new claim was “outside the scope of the leave to amend granted” when the court, dismissed the second amended complaint);. Serpa v. SBC Telecommunications, Inc., No. C 03-4223 MHP, 2004 WL 2002444, *3 (N.D.Cal. Sept. 7, 2004) (striking a claim asserted for the first time in an amended complaint, since the new claim exceeded the scope of the court’s order granting limited leave to amend).

Gerritsen also argues that Warner Brothers is directly liable for breach of the Contract. She contends that because WB benefited from the Contract by purportedly making the Film based on the Book, it is estopped from disclaiming liabilities incurred under the Contract under California Civil Code §§ 1589 and 3521. As defendants note, this theory of “direct liability” is not pled; the allegations in the first amended complaint concern various vicarious liability theories. Indeed* Gerritsen expressly disclaims other theories, stating that “WB and Katja [or New Line] are liable to Gerritsen under the Contract [or Guaranty] based on the following theories” — she then lists vicarious liability theories. As courts routinely recognize, it is improper for a plaintiff to assert an unpled theory of liability in opposition to a defendant’s 'Rule 12(b)(6) motion to dismiss. See, e.g., Nathanson v. Polycom, Inc., 87 F.Supp.3d 966, 985 (N.D.Cal.2015) (“Plaintiff argues in his opposition brief that Item 402 of SEC Regulation SK required Polycom to discldse all compensation provided to Miller in Form 10-Ks and proxy statements. However, Plaintiff has not pleaded these allegations in his Complaint. As a result, the Court does not address them,” citing Bruton v. Gerber Prods. Co., 961 F.Supp.2d 1062, 1078 (N.D.Cal.2013)); Elizabeth L. v. Aetna Life Insurance Co., No. CV 13-2554 SC, 2014 WL 2621408, *4 (N.D.Cal. June 12, 2014) (refusing to consider unpled theories of liability raised for the first time in opposition to defendant’s motion to dismiss). Cf. Bates v. Bankers Life and Cas. Co., 993 F.Supp.2d 1318, 1336 (D.Or.2014) (considering a plaintiff s'“novel, unpled theory” of liability only after plaintiff filed an amended complaint incorporating the theory). The court therefore declines to consider Gerritsen’s unpled theories as to why WB is directly liable for breach of contract and/or breach of guaranty. This is particularly appropriate as the first amended complaint explicitly identifies the theories on which the claims are based.

2. Gerritsen’s Vicarious Liability Theories

Gerritsen asserts that WB is liable for Katja’s obligations under the Agreement and New Line’s obligations under the Guaranty ' on (1) a successor-in-interest theory'; (2) an alter ego theory; and (3) an agency theory. The court considers each in turn.

a. Successor-in-interest Liability

(1) Legal Standard Governing Successor-in-interest Liability

Gerritsen alleges that WB is the parent company of Katja and New Line. Parent corporations can be held liable for their own unlawful acts, the unlawful acts of subsidiary companies that act as their agents, and the unlawful acts of predecessor companies. See United States v. Bestfoods, 524 U.S. 51, 64-65, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998); Doe v. Unocal Corp., 248 F.3d 915, 926 (9th Cir.2001); Monaco v. Bear Stearns Cos., No. CV 09-05438-SJO (JCx), 2011 WL 4059801, *19 (C.D.Cal. Sept. 12, 2011).

Under California law, “a successor company has liability for a predecessor’s actions if: (1) the successor expressly or impliedly agrees to assume the subject liabilities ... [;] (2) the transaction amounts to a consolidation or merger of the successor and the predecessor[;] (3) the successor is the mere continuation of the predecessor[;] or (4) the transfer of assets to the successor is for the fraudulent purpose of escaping liability for the predecessor’s debts.” No Cost Conference, Inc. v. Windstream Communications, Inc., 940 F.Supp.2d 1285, 1299 (S.D.Cal.2013) (citing CenterPoint Energy, Inc, v. Superior Court, 157 Cal.App.4th 1101, 1120, 69 Cal.Rptr.3d 202 (2007)); see City of Los Angeles v. Wells Fargo & Co., 22 F.Supp.3d 1047, 1062 (C.D.Cal.2014).

(2) Whether Gerritsen Has Adequately Alleged Successor-in-interest Liability

(a) Assumption

To allege that a company is a successor-in-interest because it expressly or impliedly agreed to assume the liabilities of a predecessor, plaintiff “must not only plead the existence of an assumption of liability but either the terms of that assumption of liability (if express) or the factual circumstances giving rise to an assumption of liability (if implied).” No Cost Conference, 940 F.Supp.2d at 1300 (citing Winner Chewolet, Inc. v. Universal Underwriters Ins. Co., No. CIV S-08-539 LKK/JFM, 2008 WL 2693741, *4 (E.D.Cal. July 1, 2008)). In her first amended complaint, Gerritsen alleges that WB both expressly and impliedly assumed Katja’s and New Line’s respective obligations under the Contract and Guaranty.

.Although Gerritsen pleads express assumption, she appears to have abandoned the theory-because she does not address defendants’ arguments concerning it in her opposition. Moreover, express assumption is not adequately pled in the first amended complaint. Gerritsen alleges only that “[u]nder the terms of the contracts and related documents that were signed on or about February 28, 2008, ... WB expressly ... assumed the obligations in the [Contract and Guaranty].” She does not plead the specific terms of the purported assumption as she must do. No Cost Conference, 940 F.Supp.2d at 1300 (plaintiff must plead the express “terms of that assumption of liability”).

As noted in the court’s prior order, conelusory allegations regarding unspecified terms of a pm-ported agreement are insufficient to allege a plausible successor liability claim based on an express assumption. of liabilities. See, e.g., id. at 1299 (concluding that plaintiffs “conelusory” allegation that “as a result of the [corporate] merger, [defendant] assumed all right[s] and responsibilities” under a contract with plaintiff was “insufficient” because plaintiff had to plead “the existence of a contract, and ... terms ... establishing] the obligation in issue”); Pacini v. Nationstar Mortgage, LLC, No. C 12-04606 SI, 2013 WL 2924441, *4 (N.D.Cal. June 13, 2013) (“[Plaintiffs point to the DOTs for the properties, which state that a change in the holder of the note ‘might result in a change in the entity (known as the ‘Loan Servicer’) that collects Periodic Payments due under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the Note, this Security Instrument, and Applicable Law.’ From this statement, plaintiffs conclude that ‘the lender’s contractual obligations were assigned by’Aurora Bank FSB to Nationstar.’ Plaintiffs, however, cite no provision by which Aurora’s liabilities were expressly transferred along with the trusteeship. Simply because the contract contemplates that changes in the loan servicer may occur does not imply that a transfer of liability also automatically occurs. Lacking any specific factual allegations, the Court finds that plaintiffs have not sufficiently pled an express 'assumption of liability” (citation omitted)); Brockway v. JP Morgan Chase Bank, No. 11CV2982 JM (BGS), 2012 WL 4894253, *3 (S.D.Cal. Oct. 15, 2012) (“The SAC simply alleges that Wells Fargo ‘expressly or impliedly agreed to assume all of DREXEL’s liabilities under the Deed of Trust---- Such conelusory allegations do ‘not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.’ While an allegation that Defendants either ‘expressly or impliedly agreed to assume all of DREXEL’s liabilities’ raises the possibility of an assumption of liabilities, it does not show that Plaintiff is entitled to relief under [Rule] 8(a)(2)”); Pantoja v. Countrywide Home Loans, Inc., 640 F.Supp.2d 1177, 1192 (N.D.Cal.2009) (holding that a plaintiff who alleged that Bank of America was “responsible and liable for the actions of Countrywide,” and who pled “no facts beyond the purchase of Countrywide by Bank of America,” had failed to plead sufficient facts to support a claim against the .bank). See also Owens v. Bank of America, N.A., No. 11-cv-4580-YGR, 2012 WL 5340577, *5 (N.D.Cal. Oct. 25, 2012) (“Plaintiffs argue that it can be ‘reasonably assumed that’ there are agreements between BANA and JPM about rights and obligations with respect to the transferred loan, and that they should be given a chance to learn the terms of those agreements, including whether they support successor liability, in discovery. Plaintiffs misunderstand then-pleading obligations”).

As respects implied assumption, Gerritsen argues it “is evident [from WB’s] ‘complete management, control, ownership, and domination over New Line and Katja’ with regard to virtually every business decision” that “WB impliedly assumed [Katja’s and New Line’s] liabilities following the 2008 consolidation.” As an initial matter, the case cited by Gerritsen in support of this assertion — United States v. Iron Mountain Mines, Inc., 987 F.Supp. 1233, 1239-41 (E.D.Cal.1997) — applied federal successor law to conclude that, under the express terms., of - two assignment agreements, the assignee had accepted the “obligations and .liabilities” of-the assignors. Iron Mountain Mines is inapposite both because it applies federal, rather than California, successor liability rules, and because there was an express -assumption of liability in that case.

More fundamentally, the court cannot agree that WB’s exercise of control over Katja and New Line plausibly suggests that it intended to assume all of Katja’s and New Line’s liabilities- and obligations following the purported consolidation. Indeed, as discussed infra, the facts Ger-ritsen plead to show “total control” suggest only that WB, as parent, engaged in routine oversight of its subsidiaries, and provided support for their activities. The court previously concluded that this was. not-sufficient to state a claim for implied assumption of liabilities. Moreover, Gerritsen does not plead facts demonstrating “that liabilities were not limited in the transfer ... and- that the intent of the parties, was that [all liabilities]' should be transferred,” Pacini, 2013 WL 2924441 at *5 (“Plaintiffs have alleged no facts to support an implied assumption of liability theory. To do so, plaintiffs must allege that liabilities were not limited in the transfer of assets, and that the intent of the parties was that they should be transferred. Here, plaintiffs have only provided the conclusory allegation that ‘Defendant NATIONSTAR acquired all of Aurora Loan Services, LLC’s assets and liabilities____’ Plaintiffs have not directed the Court to any provisions in the DOT or other documents that address the parties’ intent or the transfer of liabilities. Accordingly, the Court finds that plaintiffs have not sufficiently pled facts .to show that Nationstar impliedly assumed Aurora’s liabilities to plaintiffs,” citing Schwartz v. Pillsbury Inc., 969 F.2d 840, 845-46 (9th Cir.1992)).

Indeed, Gerritsen pleads no facts that give rise to any inference concerning the parties’ intent at the time of the purported consolidation in 2008. She does not, for example, allege facts suggesting that WB acquired all of Katja’s and New Line’s assets in connection with the 2008 consolidation, or that it knew of the 1999 Contract and Guaranty at the time of the consolidation. While such facts might give rise to a plausible inference that WB impliedly assumed Katja’s and New Line’s liabilities at the time it acquired their assets, United States v. Sterling Centrecorp., Inc., 960 F.Supp.2d 1025, 1088 (E.D.Cal.2013) (“Courts have emphasized that an implied assumption of liabilities is like an express assumption, an agreement between parties with the intent of transferring liability; it ‘may be inferred from the conduct, situation, or mutual relation of the parties’ outside the parties’ official agreement,” citing Truck Ins. Exchange v. Amoco Corp., 35 Cal.App.4th 814, 824-25, 41 Cal.Rptr.2d 551 (1995)), they have not been pled. See, e.g., Carter v. CMTA-Molders & Allied Workers Health & Welfare Trust, 563 F.Supp. 244, 247 (N.D.Cal.1983) (“Whether Carter, who did not expressly assume those agreements, can be found to have assumed them impliedly is a question of state law____The undisputed facts establish that Carter was unaware of the agreements when he purchased the assets from Romero. The purchase and sale agreement was silent with respect to the assumption of contractual or other liabilities, and there is no evidence that Carter and Romero discussed the matter,.., The evidence does not support a finding that Carter consented to be bound by his predecessor’s agreements” (citations omitted)). For all these reasons, the court concludes that Gerritsen has failed adequately to allege an implied assumption of liabilities sufficient to impose successor liability on WB.

(b) Consolidation or Merger

Under California law, successor liability can be imposed following consolidation or merger; this is sometimes called the de facto merger exception. Under this exception, liability can attach “where one corporation takes all of another’s assets without providing any consideration that could be made available to meet claims of the other creditors.” Franklin, 87 Cal.App.4th at 626, 105 Cal.Rptr.2d 11 (citing Ray v. Alad Corp., 19 Cal.3d 22, 28, 136 Cal.Rptr. 574, 560 P.2d 3 (1977)). Gerritsen argues the first amended complaint alleges that “WB acquired New Line’s and Katja’s principal assets for inadequate consideration,” citing allegations on information and belief that “no consideration was paid to New Line or Katja in connection with the consolidation,” and “thus no money was made available for creditors of New Line and Katja.” These allegations are conclusory, and -Gerritsen pleads no facts to support them other than that Time Warner was the sole owner of. WB, New Line, and Katja at the time. This does not suffice to meet Gerritsen’s burden under Twombly and Iqbal.

The allegations, moreover, reveal a more fundamental problem with Gerritsen’s arguments regarding WB’s purported liability as a successor-in-interest. As noted, a corporation can be held liable under the de facto merger exception if it takes a transfer of all of a second corporation’s assets ivithout providing consideration that can satisfy the claims of other creditors. Franklin, 87 Cal.App.4th at 626, 105 Cal.Rptr.2d 11. Gerritsen bases her successor liability argument on the purported 2008 consolidation of WB, Katja, and New Line. She does not plead that the 2008 consolidation involved or resulted in an asset sale or transfer, however. Indeed, the allegations in the complaint appear to suggest that the consolidation was effected by a stock purchase. Successor liability has its roots in assets sales and transfers, and California courts routinely decline to apply suc