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ORIGINAL

QUINN EMANUEL URQUIIART & SULLIVAN, LLP
Christopher Tayback (Bar No. 145532)

christayback@quinnemanuel.com

Ryan Q. Keech (Bar No. 280306)

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ryankeech@quinnemanuel.com
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865 South Figueroa Street, 10* Floor
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Los Angeles, California 90017-2543sD6Fr- $>*
Telephone:
Facsimile:

(213)443-3000
(213)443-3100

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Attorneys for Plaintiff Academy of Motion

"Coanty (37 Los Angeles

OEC-15'2014
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Picture Arts and Sciences
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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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COUNTY OF LOS ANGELES

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CENTRAL DISTRICT

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CASE NO.

AND SCIENCES, a California non-profit
corporation,

COMPLAINT FOR

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Plaintiff,

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805 68 8 2!

ACADEMY OF MOTION PICTURE ARTS

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ssr

WITH CONTRACT;

vs.

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(1) BREACH OF CONTRACT;
(2) INTENTIONAL INTERFERENCE

CAROL SURTEES aka CAROL BUBY, an
individual, and DOES 1-50,

(3) BREACH OF EQUITABLE
SERVITUDE;
(4) DECLARATORY RELIEF

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Defendants.
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JURY TRIAL DEMANDED

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Trial Date:

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COMPLAINT

Plaintiff Academy of Motion Picture Arts and Sciences (the "Academy") alleges:

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NATURE OF THE ACTION

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In 1953, the Academy awarded to Robert Surtees an ©OSCAR® statuette for

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excellence in Black-and-White cinematography in connection for his work on a motion picture

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entitled The Badand the Beautiful (the "Surtees OSCAR"). As a member of the Academy, Robert

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Surtees was bound by the Academy's Bylaws (the "Bylaws") which provide the Academy with a

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right of first refusal to purchase OSCAR statuettes awarded to its members which they intend to

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sell. The Academy's right of first refusal means that neither the recipients of the awards nor their

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successors may sell the statuettes without first offering them to the Academy, Surtees died in 1985

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and. subsequent to that date, the Academy is informed and believes that Defendant Carol Surtees

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aka Carol Buby ("Carol Surtees") inherited or otherwise received the Surtees OSCAR. On or

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about December 12, 2014, Carol Surtees and the unknown individual or entity behind the

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"ellamackey"screen name on the online auction site eBay ("DOE 1") purported to auction the

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Surtees OSCAR for $40,500 to the unknown individuals or entities sued herein as DOES 2-50 (the

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"Purchasers"). By this action, the Academy seeks to enforce its rights with respect to the Surtees

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OSCAR, including recovering any and all profits obtained from the sale of the OSCAR, and

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obtaining equitable relief, inter alia, declaring that the SurteesOSCAR is held in constructive trust

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for the Academy and directing Defendants to offer it for sale to the Academy for the sum of

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$10.00.

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PARTIES, JURISDICTION AND VENUE

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2.

The Academy is, and at all times mentioned herein was, a non-profit corporation

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organized and existing under the laws of the State of California, with its principal place of

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business in Los Angeles County, California. The Academy was founded in 1927 by a

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distinguished group of film industry leaders for the purposes of, inter alia, advancing motion

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picture arts and sciences and promoting cultural, educational and technological progress in the

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motion picture industry.
3.

Carol Surtees is an individual who, the Academy is informed and believes, resides

in Carmel and San Francisco, California. The Academy is further informed and believes, and on

COMPLAINT

that basis alleges, that Carol Surtees is aware that OSCAR statuettes are awarded in Los Angeles
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County, the Academy is headquartered in Los Angeles County, the award of each statuette is

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conditioned upon the Academy's right of first refusal, and prospective buyers of an OSCAR

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statuette — including the Academy — reside in Los Angeles County.

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4.

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are named herein under the fictitious names DOES 1 through 50, including, without limitation, the

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unknown individual or entity behind the "ellamackey" screen name on the online auction site eBay

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sued herein as DOE 1. The Academy will seek leave of court to amend this complaint to allege

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the true names and capacities of such Defendants whenascertained. The Academy is informed

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and believes, and on that basis alleges, that each of the fictitiously named Defendants is

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responsible in some manner for the wrongful conduct alleged herein.
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The Academy is ignorant of the true names and capacitiesof the Defendants who

The Academy is informed and believes, and on that basis alleges, that each

defendant was, at all times mentioned herein, acting as the actual or ostensible agent, employee
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and/or co-conspirator of eachother defendant and, in performing the actions alleged herein, was

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acting in the course and scope of such agency, employment and/or conspiracy.

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6.

Venue is proper in Los Angeles County because the Academy is a resident of Los

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Angeles County and the contract in issue was entered into and was to be performed in Los

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Angeles County. The county in whichDOES 1 through 50 reside is unknown to the Academy.
THE ©OSCAR®

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7.

Since 1929, as an incentive for members of the motion picture industry to strive for

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excellence in film making and as a means of recognizing persons who make outstanding

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contributions in their respective creative fields, the Academy has conferred annual "Awards of

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Merit" (known to the public as OSCARS) to artists in various categories of achievement.

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8.

The OSCAR represents the pinnacle of success and professional recognition in the

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motion picture industry. The prestige associated with the OSCAR is unparalleled by any other

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award. To maintain the award's incalculable value and uniqueness, the Academy has established

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procedures for selecting the recipients of its awards and for distributing OSCAR statuettes to their

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winners.

COMPLAINT

9.

The Academy has never intended that the OSCAR be treated as an article of trade.

OSCAR recipients

Academy Award winners - receive copies of the OSCAR statuette, the

original of which has been registered under federal copyright and trademark laws. The original
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statuette is registered under the copyright laws as an "unpublished" work of art: copies of the

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statuette are not, and never have been, distributed to the general public.

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As mandated by the Bylaws since 1951, members of the Academy who receive an

OSCAR statuette cannot sell the statuette without according the Academy a right of first refusal to

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purchase it for the sum of $10.00. Specifically, Article VIII(l)(g) of the Bylaws provides:

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THE ACADEMY BYLAWS

'"Every award shall be conditioned upon the execution and delivery to the Academy by the
recipient thereof of a receipt and agreement reading as follows:

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"Gentlemen:

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"I hereby acknowledge receipt from you of a replica of your copyrighted statuette,

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commonly known as the "Oscar," as an award for achievement in motion picture

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arts and sciences.. .. In consideration ofyour delivering said replica to me, I

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agree to comply with your rales and regulations respecting its use and not to sell

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or otherwise dispose ofit, nor permitit to be sold or disposedof by operation of

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law, withoutfirst offering to sell it to you for the sum of $10.00. Youshall have

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thirty days after any such offer is made to you within which to accept it. This

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agreement shall be binding not only on me, but also on my heirs, legatees,

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executors, administrators, estate, successors and assigns. My legatees and heirs

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shall have the right to acquire said replica, if it becomes part ofmy estate, subject

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to this agreement.

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(Signature of Recipient)

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"Any member ofthe Academy who has heretofore received any Academy trophy

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shall he bound by theforegoing receipt and agreement with the same force and

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effect as though he or she had executed and delivered the same in consideration

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ofreceiving such trophy"
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COMPLAINf

(Emphasis added.)
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THE SURTEES OSCAR FOR THE BAD AND THE BEAUTIFUL

11.

In 1953, the Academy presented Robert Surtees with the OSCAR for excellence in

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Black-and-White cinematography for his work on the motion picture entitled The Bad andthe

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Beautiful. At all relevant times, Robert Surtees and his heirs, legatees, executors, administrators,

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estate, successors and assigns agreed to be and were in fact bound by the Academy's Bylaws,

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including Article VIII(l)(g), above, and thereby agreed that they would never to sell or otherwise

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dispose of the Surtees OSCAR, nor permit the Surtees OSCAR to be soldor disposed of by

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operation of law, without first offering to sell it to the Academy for the sum of $10.00.

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The Academy is informed and believes, and on that basis alleges, that Carol Surtees

inherited or otherwise received the Surtees OSCAR after Surtees' death.
CAROL SURTEES' UNLAWFUL PURPORTED SALE OF THE SURTEES OSCAR

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Carol Surtees was and is well aware of the restrictions on the Surtees OSCAR, and

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proceeded with her unlawful puiported disposition of the Surtees OSCAR despite that knowledge.

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On November 12, 1999, the Academy sent a letter to Ms. Linda Surtees, heir to Robert Surtees,

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who claimed to be in possession of the Surtees OSCAR and, the Academy is informed and

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believes, was one of Robert Surtees' heirs, legatees, executors, administrators, estate, successors

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and/or assigns. This letter informed her that the Surtees OSCAR could not be "s[old] or otherwise

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transferfred] without first offering them to the Academy for a nominal sum." The Academy is

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further informed and believes, and on that basis alleges, that Carol Surtees came to be in

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possession of the Suttees OSCAR from Linda Surtees after this letter was sent and received.

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In December, 2014, the Academy learned that Carol Surtees intended to conduct an

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auction to sell the SurteesOSCAR. The Academy is informed and believes, and thereupon

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alleges, that in that same month. Carol Surtees offered the Surtees OSCAR for auction on the

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eBay online auction website in conjunction with her agent or co-conspirator sued herein as DOE 1

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- the individual using the screen name "ellamackey." The Surtees OSCAR was offered for

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auction under the eBay selleraccount of "ellamackey." The Academy is informed and believes,

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-4.
COMPLAINT

and thereupon alleges that atall relevant time the individual using the screen name "ellamackey"
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15.

On December 5, 2014, the Academy sent a letter to Carol Surtees by Federal

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Express and certified mail, informing her that the Surtees OSCAR is subject to a right offirst

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refusal agreement with and equitable servitude in favor ofthe Academy, pursuant to which the

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Academy is entitled to purchase the OSCAR in the event that Robert Surtees orhis heirs, legatees,

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executors, administrators, estate, successors or assigns offer it for sale. The Academy further

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informed Carol Surtees that the Academy elected to exercise its right of first refusal and, therefore,

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she had no right to auction the Surtees OSCAR.

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16.

The Academy also attempted to communicate with Carol Surtees bytelephone on

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several occasions. On December 12, 201.4, a woman answered the phone at a number associated

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with Carol Surtees and identified herself as Carol Surtees. She claimed that the auction for the

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SurteesOSCAR had been ended and the Surtees OSCAR withdrawn. The Academy, however, is

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informed and believes, and on that basis alleges, that onorabout December 12, 2014, the unlawful

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auction for the Surtees OSCAR concluded with Carol Surtees and DOE 1 purporting to sell the

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Surtees OSCAR to DOES 2-50 for $40,500. The Academy is informed and believes, and

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thereupon alleges, that at all relevant times DOES 2-50 were aware ofthe restrictions on the

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Surtees OSCAR. None of the Defendants offered to sell the Surtees OSCAR to the Academy

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prior to the auction (or at any other time).

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was aware of the restrictions on the Surtees OSCAR.

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FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT

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(against Carol Surtees)

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17.

The Academy realleges and incorporates herein by reference paragraphs 1 through

16. above, as though fully set forth herein.
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18.

The Bylaws constituted a binding contract between the Academy, on the one hand,

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and Robert Surtees and his heirs, legatees, executors, administrators, estate, successors and

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assigns, including Carol Surtees, on the other hand. Pursuant to this agreement, Carol Surtees was

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forbidden from selling or otherwise disposing of the Surtees OSCAR or permitting it to be sold or

otherwise disposed of without first offering to sell it to the Academy for the sum of $10.00.
-5COMPLAINT

19.

The Academy is informed and believes, and on that basis alleges, that Carol Surtees

is one of Robert Surtees' heirs, legatees, executors, administrators, estate, successors and/or

assigns. The Academy is further informed and believes, and on that basis alleges, that Carol
Surtees received the Surtees OSCAR directly or indirectly, by gift, devise, bequest or otherwise,
from Robert Surtees, his estate, or anotherof Robert Surtees' heirs, legatees, executors,
administrators, estate, successors and/or assigns.

20.

As a result of the foregoing, there exists a contractual relationship between the

Academy and Robert Surtees and his heirs, legatees, executors, administrators, estate, successors

and assigns, including Carol Surtees, which requires that Carol Surtees offer to sell the Surtees
OSCAR to the Academy for the contractual right offirst refusal price - $10.00 - before she sells
or otherwise disposes of the statuette orpermits it to be sold orotherwise disposed of.
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The Academy has fully performed all conditions, covenants and promises required

to be performed on its part in accordance with the contract alleged above, except to the extent that

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its performance was waived, excused or prevented by Robert Surtees and his heirs, legatees,

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executors, administrators, estate, successors and assigns, including Carol Surtees.

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22.

The Academy is informed and believes, and onthat basis alleges, that Carol Surtees

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breached her contractual obligation to the Academy by offering to sell orotherwise dispose ofthe

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Surtees OSCAR, permitting it to be sold orotherwise disposed of, oractually selling orotherwise

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disposing ofit. IfCarol Surtees had offered to sell the Surtees OSCAR to the Academy, the

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Academy would have purchased it.

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23.

As anactual and proximate result of the breach of contract by Carol Surtees, the

Academv has suffered and will sufferdamages in an. amount to be proved at trial.
SECOND CAUSE OF ACTION FOR INTENTIONAL INTERFERENCE WITH
CONTRACT

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(against DOES 1-50)
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24.

The Academy realleges and incorporates herein by reference paragraphs 1 through

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20 and .17 through 23, above, as though fully set forth herein.
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-6COMPLAINT

25.

The Bylaws constitute a valid and binding contract between the Academy and

Robert Surtees and his heirs, legatees, executors, administrators, estate, successors and assigns,
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The Academy is informed and believes, and on that basis alleges, that DOES 1-50,

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name on the online auction site eBay, were aware of the contract between the Academy and

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Robert Surtees and his heirs, legatees, executors, administrators, estate, successors and assigns,

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including Carol Surtees.

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The Academy is informed and believes, and on that basis alleges, that DOES 1-50,

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including without limitation the unknown individual or entity behind the "ellamackey" screen

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name on the online auction site eBay, intended to interfere with and disrupt the performance of

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said contract by auctioning and purchasing the Surtees OSCAR without the Academy having been

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informed of the auction or sale or having been accorded its right of first refusal.

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28.

The Academy is informed and believes, and on that basis alleges, that the conduct

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of DOES 1-50, including without limitation the unknown individual or entity behind the

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"ellamackey" screen name on the online auction site eBay, has interfered with and disrupted, and

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will continue to interfere with and disrupt, the performance of said contract because the Surtees

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OSCAR has been sold and conveyed to, and is planned to be sold and conveyed to, individuals

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and/or entities other than the Academy.

29.

As an actual and proximate, result of the interference with contract by the DOES 1-

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50, including without limitation the unknown individual or entity behind the "ellamackey" screen

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name on the online auction site eBay, the Academy has suffered and continues to suffer damages

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in an amount to be proved at trial.

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including without limitation the unknown individual or entity behind the "ellamackey" screen

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.•—•.

the Surtees OSCAR as alleged above.

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including Carol Surtees, pursuant to which the Academy has had a right of first refusal to purchase

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30.

In committing the acts alleged herein, the DOES 1-50, including without limitation

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the unknown individual or entity behind the "ellamackey" screen name on the online auction site

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eBay, acted despicably, with oppression and malice, and with willful and conscious disregard of

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COMPLAINT

the Academy's rights. Therefore, the Academy is entitled to recover exemplary and punitive
damages in an amount to be proved at trial.
THIRD CAUSE OF ACTION FOR BREACH OF EQUITABLE SERVITUDE

(against all Defendants)

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31.

The Academy hereby realleges and incorporates by reference paragraphs 1through

20. 17 through 23, and 24 through 30, above, as though fully set forth at length.
32.

The Surtees OSCAR is personal property that was in the possession of Robert

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Surtees and his heirs, legatees, executors, administrators, estate, successors and assigns, including

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Carol Surtees, pursuant to an agreed restriction that it would not be sold or disposed ofwithout

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first offering itto the Academy for the sum of$10.00. The restriction constitutes an equitable

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servitude, which is enforceable against all who acquire the Surtees OSCAR either without giving

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fair value or with knowledge of the restriction.

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33.

The Academy is informed and believes, and on that basis alleges, that all

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Defendants knew that they acquired possession ofthe Surtees OSCAR subject to the tenns,

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conditions and obligations ofthe Bylaws and, in particular, knew that they acquired the Surtees

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OSCAR without giving fair value and subject to the restriction relating to the Academy's right of

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first refusal. In breach of that restriction, Carol Surtees and DOE 1offered the Surtees OSCAR

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for sale without first offering it to the Academy, and DOES 2-50 purchased orotherwise acquired

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the Surtees OSCAR.

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34.

As a result of Defendants' breach of the foregoing equitableservitude, the

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Academy is entitled to an order that Defendants hold the Surtees OSCAR in constructive trust for

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the Academy.

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35.

Furthermore, unless the Academy's right of first refusal is enforced, the Academy

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will suffer substantial irreparable injury inthat the Surtees OSCAR is a unique property and

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monetary damages will not provide adequate compensation. Therefore, the Academy is entitled to

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preliminary and permanent injunctive relief (a) enjoining Defendants, during the pendency ofthis

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action and permanently thereafter, from directly orindirectly transferring, selling, assigning,

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pledging, encumbering, hypothecating, or in any way disposing ofthe Surtees OSCAR without
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first offering to sell it to the Academy for the sum of $10.00; and (b) directing Defendants to sell
the Surtees OSCAR, to the Academy for the sum of $10.00.
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FOURTH CAUSE OF ACTION FOR DECLARATORY RELIEF

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(against all Defendants)

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36.

The Academy hereby realleges and incotporates by reference paragraphs 1 through

16, 17 through 23, 24 through 30, and 31 through 35, above, as though fully set forth herein.
37.

An actual controversy has arisen and now exists between the Academy, on the one

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hand, and the Defendants, on the other hand, concerning their respective rights and interests in the

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Surtees OSCAR. The Academy contends that the Surtees OSCAR is subject to the Academy's

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right of first refusal and that the Academy has the right to purchase the Surtees OSCAR for the

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sumof $10.00. The Academy is informed and believes, and on that basis alleges, that the

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Defendants deny the Academy's contentions.

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38.

The Academy seeks a judicial determination of its rights and interests in the Surtees

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OSCAR, i.e. that the Surtees OSCAR is subject to the Academy's right of first refusal and that the

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Academy has the right to purchase the Surtees OSCAR for the sum of $10.00. The Academy seeks

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a further judicial declaration that if the Surtees OSCAR is ever offered for sale or other

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disposition, the Academy is entitled to purchase it for the sum of $10.00.

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39.

A judicial declaration is necessary and appropriate at this time under the

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circumstances so that the Academy and the Defendants may ascertain their rights, interests,

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obligations and duties with respect to the Surtees OSCAR including their respective claims of

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right to possession of the Surtees OSCAR and to avoid a multiplicityof actions.

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PRAYER FOR RELIEF

WHEREFORE, the Academy prays for judgment in its favor and against Defendants, and
each, of them, as follows:

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For compensatory damages in an amount not less than $40,500;

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2.

For punitive and exemplary damages in an amount to be proved at trial;

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3.

For an order that (a) Defendants hold the Surtees OSCAR in constructive trust for

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the Academy, and (b) Defendants must offer the Surtees OSCAR for sale to the Academy and,
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COMPLAINT

upon the Academy's tender of the sum of $10.00, deliver immediate possession of the Surtees
OSCAR to the Academy;

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officers, agents, servants, employees, affiliates, representatives, successors, assigns, heirs,

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legatees, executors, administrators and all persons acting in. concert with any such persons, during

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the pendency of this action and permanently thereafter, from directly or indirectly transferring,

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selling, assigning, pledging, encumbering, hypothecating, or in any way disposing of the Surtees

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OSCAR without first offering to sell it to the Academy for the sum of $10.00; and (b) directing

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Defendants and their officers, agents, servants, employees, affiliates, representatives, successors,

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assigns, heirs, legatees, executors, administrators and all persons acting in concert with any such

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persons to sell the Surtees OSCAR to the Academy for the sum of $10.00.

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5.

For a judicial declaration of the parties' rights and interests in the Surtees OSCAR,

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i.e. that (a) the Surtees OSCAR is subject to the Academy's right of first refusal; (b) the Academy

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has the right to purchase the Surtees OSCAR for the sum of $10.00; and (c) if the Surtees

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OSCAR, is ever offered for sale or other disposition, the Academy is entitled to purchase it for the

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sum of $10.00.

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For preliminary and permanent injunctive relief(a) enjoining Defendants and their

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6.

For its costs of suit incurred herein; and

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7.

Forsuch otherand further reliefas the Court may deem just and proper.

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DEMAND FOR JURY TRIAL

The Academy hereby demands a jury trial of all issues in this Complaint which are triable

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to a jury.

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DATED: December 15. 2014

QUINN EMANUEL URQUIIART &
SULLIVAN, LLP

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Christopr
Ryan Q. Keech
Attorneys for Plaintiff Academy of Motion
Picture Arts and Sciences

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COMPLAINT