I - . FILED SUPIZRIO . 1 MICHELE L. ABERNATHY 180445 GIFFORD. DEARING ABERNATHYSTREET I 6 Qi 0 3 LOS ANGELES, CA 90017-4160 uy one Deputy Telephone: (213) 626-4481 0 4 Fax: (213) 627-3719 5 . W, Attorney For: BENJAMIN J. STEIN . 2 6 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA . 9 FOR THE COUNTY OF LOS ANGELES 10 BC 7682- 11 BENJAMIN J. STEIN CASE NO . Q) 12 . COMPLAINT FOR: Plaintiff, (R) 13 1] BREACH OF 14 2] BREACH OF COVENANT OF V. GOOD FAITH AND FAIR (R) 15 16 3] WRONGFUL DISCHARGE IN KYOCERA MITA AMERICA, INC. 6. VIOLATION OF PUBLIC 17 New Jersey corporation; SEITER lg MILLER ADVERTISING. INC . a New I York corporation; LIVINGSTON 4] STATUTORY WRONGFUL i lg MILLER, an individual; GRACE JAO, an individual; and DOES 1- 20 30 5] INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL 21 Defendants. . DISTRESS I) an 22 5 5 Time: .23 )DeptPlaintiff, Benjamin J. Stein, allegesCOMPLAINT - v2.d?c 1 - 4 I 1 GENERAL ALLEGATIONS I 2 The Partie= 3 Plaintiff 4 -Plaintiff, Benjamin J. Stein is a well known 5 . economist, actor, writer, humorist, game show host, public 6 i speaker, university teacher and lawyer. 7 1 BEN STEIN is especially well known in recent years for his . 8 9 advocacy of free speech and free inquiry on complex public issues 10 such as environmentalism and evolution. He has hosted a 11 documentary on this subject and spoken and written about it lz frequently over the last several years. He has been a spokesman for many corporations and products and services in recent years, 13 l4 including Comcast, Clear Eyes drops, Mercury automobiles, 15 Hewlett Packard office equipment and many others. He is a _l6 frequent commentator on CNN, Fox News, CBS News, in many I 17 different magazines and newspapers, and online, usually on 18 Economics. . 19 Because he played an Economics teacher in a famous scene in 20 a famous movie and really is an economist, BEN STEIN has been . 21 . . . described as most famous economics teacher in the wor1d." 22 I BEN STEIN often appears in TV commercials professorial sports jacket. Until recently he was a columnist for 24 - The New York Times Sunday Business Section, and he still_appears 25 I in other publications and very often COMPLAINT Kyocera v2.d?c 2 1 He is also extremely well known for his advocacy for animal 2 welfare and for the rights of wounded soldiers and the families I 3 of those lost in the wars in Iraq and Afghanistan. 4 He makes his primary residence in Southern California. - 5 Defendants. - 6 'Kyocera Corporation the headquarters and parent 7 company of the Kyocera group, is a very large Japanese 8- conglomerate manufacturing electronics, office equipment, daggers 9 and knives, solar electricity equipment, mobile phones, and many I is other goods and services. Its 2010 revenues were roughly $13 I2 billion. Its headquarters are in Kyoto, Japan. . 13 KYOCERA conducts business on a very large scale in the 14 United States under the names of Kyocera Mita America, Inc. and 15 Kyocera International Inc., the North American regional holding in 16 company for Kyoto, Japan based Kyocera Corporation. I 17 Kyocera Mita America, Inc., is a New Jersey 18 corporation with its corporate offices in Fairfield, New Jersey. 19 It conducts considerable business in California, has regional 20 headquarters in Irvine, California, and operates in California as 21 a foreign corporation. It has an agent for receipt of process in 22 Sacramento, California. - A 23 Mr. Tetsuo Kuba is the President of KYOCERA and supervises 24 all of its activities, and all of its 67,000 employees report to 25 him. He, along with the board of directors, sets company policycoMpLA1Nm 3 I 1 Seiter Miller Advertising, Inc. a New 2 York corporation, is a large advertising agency in New York City. g. 3 Among their major clients is KYOCERA MITA. . 4 Livingston Miller is President of SEITER 5 MILLER. 6 Grace Jao is a staff member of SEITER MILLER. 7 . . . . Defendants DOES 1-30 are individuals or entities now unknown who proximately caused the wrongdoing described herein either as principals or as agents or employees of either the named 10 . defendants or of other unknown_defendants. - 11 Jurisdiction 12 . 13 Plaintiff lives and primarily works in Los Angeles County, 14 California. Defendants KYOCERA MITA and SEITER MILLER do . 15 substantial business in Los Angeles County. MILLER and JAO are 16 principals or employees of SEITER MILLER. 17 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION I 18 The Background - 19` On or about December 9, 2010, defendant JAO of SEITER i 20 MILLER contacted Marcia Hurwitz (Hurwitz) of Innovative Artists -21 Agency, BEN STEIN's agent for commercials and speaking, to 22 inquire about his availability to do several commercials for 23 computer printers made and sold by KYOCERA and KYOCERA MITA and 2 4 to give a speech at a Kyocera company event. JAO said they wanted 25 someone with an economics qualification in the public mind and 26 BEN STEIN came to mind at onceCOMPLAINT I xyocin v2.d?c -- 4 -- . - A 1 Hurwitz asked defendant JAO if this was an offer. JAO said 2 it was. 3 Negotiations went on by telephone call and e-mail for about I 4 the next 5 weeks. At the conclusion of that time, all material 5 deal points - payment to plaintiff, days of shooting the- 6 commercials, term_of usage - and all of the usual details of 7 making such a-contract had been offered by defendant KYOCERA MITA 8 and agreed to by plaintiff. The contractual sum for the work 9 agreed to under the contract is $300,000. The only points still 10 under discussion-but not in dispute-were what kind of tea and I I i; other snacks BEN STEIN would have on the set. There were no l3 outstanding deal points. 14 The nature of the contract was that for the time of the i 15 shooting and the speech, plaintiff would be an employee and under I 16 the control of KYOCERA MITA for the purposes of the commercial, - 17 which is the standard nature of such agreements. 18 Hurwitz has been in this field for 34 years and considered -- 19 the deal done. On that assurance, BEN STEIN changed his winter 20 schedule to accommodate the work contemplated in the deal. 21 The Illegal Conduct of Defendants 22 On or about February 9, 2011, defendant JAO called Hurwitz 23 to tell her that questions had been raised by defendant Kyocera I 24 about whether BEN STEIN's views on global warming and on the. I. 25 environment were sufficiently conventional and politically li; correct for Kyocera. FKYOCERA, after many years of working with 28 some of the most toxic chemicals in industry, had recently . - c0nPgAiNw . 1: Kyocera 1 adopted a posture of deep concern for the environment and 2 especially for limiting carbon emissions.) JAO said that KYOCERA I 3 MITA wanted to know more about BEN STEIN's views on global 4 lwarming and if he had questioned whether global warming as man- I 5 made could possibly not be true or could be a hoax. 6 Hurwitz told defendant JAO that she was perplexed by the 7 inquiry since as far as she was concerned, the deal was done and 8 BEN STEIN's political and scientific views on the subject were 9 not part of the contract for BEN STEIN to discuss the merits of 10 computer printers. A i; However, as a courtesy to the people by whom plaintiff 13 believed himself to be employed, plaintiff informed defendants I 14 that he was extremely concerned about the environment, had been 15 for some years, and had often spoken and written about how bad 16 for human lungs it was to put micro-particles into the air by 17 burning coal. 18 However, BEN STEIN said, he was by no means certain that 19 global warming was man-made, a position held by many scientists 20 and political conservatives. He also told Hurwitz to inform 21 defendants that as a matter of religious belief, he believed that 22 God, and not man, controlled the weather. 23 On February 16, 2011, defendant MILLER, president of 24 defendant SEITER MILLER, sent Hurwitz an e-mail headed "Ben 25 Stein Contract". 26 The e-mail said that Kyocera had decided to "withdraw its I 27 offer" to BEN STEIN (despite the fact that there had already been 28 I v2.doc - - 6 - I ~i I A 1 offer and acceptance, and a change of a contract, 2 not simply an offer). This illegal action was being taken, 3 according to defendant MILLER, because of official I 4 positions on various policy issues, but also statements widely 5 attributed to him that appear on the web of which we have only 6 lately become . Plaintiff BEN STEIN is not an official of anything. He has 8 no "official positions" on anything and changes his views as 9 facts and analysis compel. "Statements widely attributed to him l0 - that appear on the means anonymous, unsupported gossip 11 about a famous person, any of whom will have detractors. 12 13 Almost immediately after firing BEN STEIN, defendants 14 KYOCERA MILLER approached and then hired an 15 Economics teacher at The University of Maryland to do the 16 commercials they had already hired Stein to do. Defendants, in an l7 astonishingly brazen misappropriation of BEN STEIN's persona,' 18 dressed him up as Stein often appeared in commercials (bow tie, i- 19 glasses, sports jacket). He was told to perform`the com ercials 20 and did perform them in a way so derived from BEN STEIN's well i 21 known persona that The Washington Post described Prof. Morici as I . 22 looking like an imitation of BEN STEIN in so many words. 23 This behavior on the part of defendants strikes at such 24 basic American values as the sanctity of contract, freedom speech, freedom of religion, and political freedomn and shows 26 contempt for law. tg 27 1 I COMPLAINT Kyocera v2.d?c - 7 . I I -- I 1 The Breaches of Law I 2 FIRST CAUSE OF ACTION I 3 Breach of Contract I 4 Plaintiff re--alleges each and every statement above and - I - 5 notes that there was a contract between him on the one hand and 6 KYOCERA MITA and SEITER MILLER on the other hand. Plaintiff did 3 nothing to render himself unable to act to perform his duties I 9 under the contract and was available and willing to perform as 10 required under the contract. Defendants, after making the ll contract, changed their mind based on gossip on the Internet I 12 (which they did not have the courtesy to detail). This 13 constitutes black letter law Breach of Contract. 14 SECOND CAUSE OF ACTION 15 Breach of the Covenant of Good Faith and Fair Dealing: . I 16 Plaintiff incorporates the prior paragraphs herein. I 17 Every contract entered into in California requires that the I lg parties behave in a spirit and practice of good faith and I lg fairness. To enter a contract with great enthusiasm (as KYOCERA I 20 MILLER did), repeatedly telling plaintiff's agent 21 were to work with him, to take 22 substantial time to negotiate the contract, then to walk away I ii from it on the basis that plaintiff is not sufficiently on I 25 defendants' anti-carbon wave length and on the basis of common 26 unspecified gossip, violates the spirit and practice of good I 27 faith and fair dealing! . 28 I Kyocnn v2.d?c 8- 1 THIRD CAUSE OF ACTION 2 Wrongful Discharge in Violation of Fundamental Public Policy I 3 Plaintiff incorporates the prior paragraphs herein. 4 A host of federal laws protects Americans from being 5 . discriminated against on the basis of religious belief. Neither 6 employees nor independent contractors already hired may be `7 i dismissed on the basis of their religious views. That is i 8 unequivocal Federal and California law. 9 . - BEN STEIN's questioning of whether man makes the weather or 0 ll God makes the weather is a matter of his religious belieffired because of his religious belief is a clear case I 13 of discrimination against him for religious belief in violation 14 of state and federal law. a lg, FOURTH CAUSE OF ACTION 16 Statutory Wrongful Discharge . 17 Plaintiff incorporates the prior paragraphs herein. 18 Sections 1101 and 1102 of the California Labor Code 19 specifically protect political expression and activity and 20 prohibit any behavior by employers that would inhibit political 21 . or ideological activity by an?employee or potential employee. 22 This is in accordance with a long held state public policy I 23 position encouraging free, vigorous and open political discourse. 24 Defendants' actions were clearly in retaliation for (as they put 25 26 it themselves) "policy" positions by BEN STEIN, and deprived him 27 of employment because of his positions. . ti 28 COMPLAINT Kyocera v2.doc 9 - 1 This behavior by defendants is in violation of specific 2 California statute and also public policy of the State. 3 Upon dismissing BEN STEIN, defendants, as noted, thereafter 4 hired a teacher of economics at the University of Maryland to do 5 the commercials that Stein was going to do. The com ercials 6 featured that gentleman, Mr. Peter Morici, dressed as BEN STEIN 7 I often appeared in commercials, using mannerisms so similar to Stein's that The Washington Post said the commercials reminded . 9 them of an imitation of BEN STEIN. This was an explicit. - 10 misappropriation of BEN STEIN's likeness and persona, which is an ll . explicit violation of BEN STEIN's rights of privacy and of 12 2 l3 publicity, barred by California law. 14 FIFTH CAUSE OF ACTION l5 Intentional and Negligent Infliction of Emotional Distres: 16 Plaintiff incorporates the prior paragraphs herein. I 17 By making a contract, then refusing to follow it through for. 18 clearly illegal reasons, defendants have inflicted emotional 19 distress on plaintiff. Defendants blatantly disregarded their 20 contract by using an obvious BEN STEIN imitator to fulfill his 2l contract, thereby inflicting emotional distress on the plaintiff. 22 The fact that defendants fired BEN STEIN solely due to his 23 political and religious beliefs greatly distressed plaintiffCOMPLAINT . - - E: Kyocera v2 .d?c A - 1 PRAYER FOR RELIEF 2 WHEREFORE, plaintiff prays judgment against defendants as 3 follows: 4 1. For the contractual sum for the work agree to under the 5 contract of $300,000.00; 6 I 2. For all consequential damages including all necessary 7 attorney fees; 8 . . 3. For exemplary and punitive damages; 9 4. For costs of suit; and 10 5. For such other and further relief as is just and proper. 11 12 . 13 DATED: January 9, 2011 GIFFORD, DEARING ABERNATHY, . 14 By: Iciw . 15 MICHELE L. ABERNATHY Attorneys for Plaint COMPLAINT I - - CM 1 A Foscounrusrsoriuv oirronn, oehnmc Aeermh LLP sup; FILED 700 South Flower St., Suite 1222 lttolt COURT OFCALIFORN Los Angeles, CA 90017-4160 COUNTY OF LOSANGET-ES TEr.er=rtoue rio.; (213) 626-4481 nix rio.: (2 1 3) 627-3719 imonuev ron meme); sur- ron count or churonnrs, oourmr or LOS ANGELES JAN 1 1 2012 111 N. Hill Street Mm A. Cla: e, BY Deputy cnvmozvcone: Los Angeles 90012 Mme; Central CASE NAME: STEIN v. KYOCERA MITA AMERICA, INC., a New Jerse corporation, etal. CIVIL CASE COVER SHEET Complex Case Designation WE NUMBER lEUr{Iimlted [lLirhitetr CI BG476821 (Amount (Amount Counter Jornder demanded demanded is Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) items 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case: Auto Tort Provlslonally Complex Ante (22) El Breach of contractiwarranty (ns) (Cal. Rules of Court, nrles 3.400-shes) Cl Uninsured motorist (46) El Rule 3.740 collections (09) lj Antitrustfl'rade regulation (03) Other (Personal lnjuryiProperty lj Other collections (09) Construction defect (10) math) nm Insurance coverage (18) Mass fort (40) I EI (Of) Other eehtrset (37) [Il Securities iitigatieh (za) G4) rmi Property ehvirehmeritevrexie tert (30) (45) El In::`I:rIpo i?overape CIAIIJIS arisIng from the they (23) a is provisions comp ex case Meh-mtporwo (Other) rert lj ?vI?Ii?? (33) lj Business tort/unfalr business practice (07) CI other mal (26) ?fJ"d?m?"t I Civil rights (os) Unlawful Detalner Enforcement of judgment (20) cetsmetreh (13) l31l &eerrsheeus civrt Fraud (15) Residential (32) RICO rhterteetesr property (19) El Druss (S8) Other eempreiht (het speeirierr above) (42) I Professional negligence (25) Judicial Review I CMI Potmoo I Ig Wi (35) rd Im Partnership and corporate govemance (21) mp oyme ron reWrongful tennination (36) Writ of mandate (02) ar pcmlon (no sp"' 8 WM I Other employment (15) Other 'udicial review 39 I 2. This case is is not complex under rule 3.400 of the Califomia Rules of Court. lf the case is complex. mark the I factors requiring exceptional judicial mana ement: a. lj Large number of separately represented parties d. El Large number of witnesses b. El Extensive motion practice raising difficult or novel e. lj Coordination with related actions pending in one or more murts issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court c. Substantial amount of documentary evidence f. Substantial postjudgment judicial supervision 3. Remedies sought (check all that apply): ag] monetary bl;] nonmonetary; declaratory or injunctive relief c. Elpunitive 4. Number of causes of action (specify): FIVE (5) 5. This case El is IEI is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: January 9, 2012 . I MICHLE L. ABERNATHY IQ . I I I (TYPE on anim NAME) 0 on rroauev ron mt NOTICE Plaintiff must file this cover sheet with the first paper filed in the action or proceedin (except small claims cases or ca filed A under the Probate Code, Family Code. or Welfare and Institutions Code). (Cal. Rules of C_ourt, rule 3.220.) Failure to fil lnay result in sanctions. - I: File this cover sheet in addition to any cover sheet required by local court rule. ti If this case is complex under rule 3.400 et seq. ofthe Califomia Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or pmceeding. Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes envCIVIL CASE CCVER CIIEET July 1, 2m?] Automated California Jirrlicial ouncil om: mm EHHS 1121100 asvo TIAIO gm ., gn, W, mm . 1au0gssgu1wog L. In 10qs1-gsaddV;0 aog;0gq 1 1 131110 1111?3111? #13111311 1?1?1?nr 131110 11?11g1?11 111110 13510 mgm; - - ..11 11.111 111-11 NWN ;1n03 pa;1u11?g ua 1aq;g a11g;s1;sgugu1pV-;g1M a0g;os1dgs;11; gs5a1 ua uamqfi (zc1?1?nu?w 13 IDM (gz) aouahgghap; gsu0gssa;01d Hgjalog wzigvgga (1 11 11?11113a (an Auadws .9110:1 IWW pns1 ;g - mma lamp"'. . .. . ??1111o?1 1=111? 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KYOCERA MITA AMERICA, INC., a New .Iersey corporation, etalCIVIL CASE COVER SHEET ADDENDUM AND STATEMENT OF LOCATION (CERTIFICATE OF GROUNDS FOR ASSIGNMENT TO COURTHOUSE LOCATION) This form Is required pursuant to Local Rule 2.0 In all new civil case In the Los Angeles Superior Court. Item I. Check the types of hearing and till in the estimated length of hearing expected for this case: - JURY YES CLASS EI YES LIMITED EYES TIME ESTIMATED FOR Item II. Indicate the correct district and courthouse location (4 steps - If you checked "Limited Case", skip to Item Pg. 4): Step 1: After first completing the Civil Case Cover Sheet fomr, find the main Civil Case Cover Sheet heading for your case in the left margin below, and, to the right in Column A, the Civil Case Cover Sheet case type you selected. Step 2: Check Superior Court type of action in Column below which best describes the nature of this o~ se. Step 3: In Column C, circle the reason for the court location choice that applies to the type of action you have checked. For any exception to the court location, see Local Rule 2.0. Applicable Reasons for Choosing Courthouse Location (see Column below) 1. Class actions must be liled in the Stanley Mosl; Courthouse, central district. 6. Location of pennanently garaged vehicle. I EEIISI 4: Location where bodily Injury, death ordamage occurred. 9: Location where one or more of Riggarties reside. 5. Location where performance required or de ndant resides. 10. Locatron of Labor Commissioner ree Step 4: Fill inthe information requested on page 4 in Item complete Item IV. Sign the declaration. . A Civil Case Cover Sheet Type of Action Applicable Reasons - Calegory_No. (Check only one) See Step 3 Above Auto (22) C1 Motor Vehlcle - Personal In|uryIProperty DamageNVrongful Death '5 Uninsured Motorist (45) A7110 Personal In]uryl'Property Damagelwrongful Death - Uninsured Motorlst Asbestos (04) El A6070 Asbestos Property Damage 1: EI A7221 Asbestos- Personal Death ai Product Liability (24) El A7260 Product Liability (not asbestos or toxlclenvlronmentalA7210 Medical Malpractice - Physicians Surgeons .E Medical Malpractrce (45) 5 A7240 Other Professional Health Care Malpractice El A7250 Premises Liability slip and fall) 1 4 it pengzfiniuw El A7230 Intentional Bodily lniuryIProperty Damagelwrongful Death 1 4 ,2 assault, vandalism, etc.) . 6 Property Damage Cl A7270 Intentional Infliction of Emotional Distress 1" 3' I Cl A7220 Other Personal In)uryIProperty DamageNVrongfuI Death 1" 4' - lg Automated Callgormb Coung Forma ulcrv 109 (Rev. cam; CIVIL CASE COVER SHEET ADDENDUM Local Rule 2.0 use Apprevee os-oe AND STATEMENT OF LOCATION Page 1 ?f4 v1? 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KYOCERA MITA AMERICA INC. aNew Jersc co oration ct al - -B .- - Civil Case Cover Sheet Type ofActlon Reasons - Category No. (Check only one) See Step 3 Above Asset Forfeiture (05) . El A6108 Asset Forfeiture Case - Petition re Arbitration (11) E1 A6115 Petltlon to CompeIIConlirmNacate Arbitration Cl A6151 Writ -AdministratIve Mandamus . ..2 Writ of Mandate (02) Cl A6152 Writ - Mandamus on Limited Court Case Matter 2; Cl A6153 Writ - Other Limited Court Case Review Other Judicial Review (3 Cl A6150 Other Writ lJudlcla| Review 2., 8. - 5 Regulation los) El A6003 Regulation Construction Defect (10) A6007 Construction Defect Ll tant lvlaas nn 2 Securities Litigation (28) Cl A6035 Securities Litigation Case 1., 2., 8. Toxic Tort . . a nn. . IL A6014 Insurance Coveragelsubrogatlon (complex case only) A6141 Sister State Judgment 2., 9. A6160 Abstract of Judgment 0 0 E. Enformmant El Confession of Judgment (non-domestic relations) 2., 9. El A614o Administrative Agency Award (nat unpaid tam) *6 Cl A6114 PetitionICertilicate for Entry of Judgment on Unpaid Tax 2., 8. El A6112 Other Enforcement of Judgment Case 8 RICO lz?) A6033 Racketeering (RICO) Case I .5 2 El A6030 Declaratoly Relief Only El A6040 injunctive Relief Only (not (Not MM) (42) AQO11 other- Commercial Complaint case (non-tortlnon-complex) 1.. 2.. 8. Cl A6000 Other Civil Complaint (non-tortlnon-complex) C1 A6113 Partnership and Corporate Governance Case E1 A6121 Civil Harassment 2., 3., 9. ID Cl A6123 Workplace Harassment - 2., 3., 9. t: - - AIA other Pomona er pendent dut buse Case 2 ,3,9 3 (Not Specified Above) El A6190 Election Contest 2. 0 (43) Cl A6110 Petition for Change of Name A6170 Petition for Relief from Late Claim Law 2., 3., 4., 8. 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