## FIL ED AUG 2 8, 2 013 DEBORAH S . HUNT, Clerk NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION

F ile Nam e: 13a0798n.06 Nos. 12-3132, 13-3212 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
L.F.P .IP , LLC; LFP , INC.; LARRY C. F LYNT,
P laintif fs-App ellees,

v. HUSTL ER CINCINNA TI, INC.; JIMMY R. F LYNT, Defendan ts-Appellants. ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F ROM TH E UNITED STATE S DI STRICT COURT F OR THE SOUTH ERN DISTRICT OF OHIO

Before: G IBBO NS, SUTT ON, and KETHL EDGE, Circ uit Jud ges. JULIA SMITH GIBBONS, Circuit Judge. L arr y and J immy Fly

nt are brothers who have 1
b ee n i n v olved with the development of the Hustler enter prise. L arr

y and his corpor ate entit i es b ro u gh t this lawsuit ag ainst his brother and Hust ler Ci ncinnati, I nc. (“HCI ”), alleg ing that J i m m y violated the L anham Act, 15 U.S.C. § 1051 et seq. , by using the “Hustler” trade mark in connec tion with his reta il store in Cincinnati. L arr y alleg ed unfair competition, false desig nation of orig in, and false impression of association in violation of the L anham Act, as we ll as common law unfair competition and state law claims for brea ch of contra ct and d ec ep t i v e t rade prac tices. J immy
counter claimed, asser

ting that the brothers wer e partne rs in the Hustler enter prise and seeking an

For clar ity , we r efe r to L arr

y and Ji mmy

Fly nt by their first name s. 1 -1-Nos. 12-3132, 13-3212

L.F.P.IP, LLC

, et al. v. Hustler Cincinnati, Inc., et al.

acc ounting and d issoluti on of the partne rship. J immy also alleg ed wrong ful termination, unjust enric hment, fra

ud, brea ch of f

iduciary duty , and bre ach of

contra ct to make a

will. The district cour

t concluded tha t J immy

failed to e stablish the exi stence of an e x press or implied partne rship betwee n the brot h er s an d that J immy infring ed L arr y ’s trade mark. I t g rante d
summary judgme nt in L arr y ’s favor on all of J immy ’s counter claims. The district court perma nently enjoined J immy from using the Hustler trade mark and any other trade mark owned by L ar ry ’s
corpor ate entities. I t also require d HC I t o ch an ge its corpor ate name to remove any ref ere nce to Hustler. I n a subsequent order , the district court noted that the analy sis applicable to L arr y ’s rela ted fede ral a nd state fa lse impression and dec eptive tra de pra ctices claims “mirror s that for a claim of trade mark infr inge ment under the L anham Ac t” and dismissed those claims. Finally , it dism issed without prejudice J immy ’s claim for brea ch of contra ct to make a will beca use it found that the claim had not y et acc rued. This appea l followed. We aff irm the district court’s judgme nt in all respe cts. I

. I n 1969, L arr

y and J immy o p en ed a n ightc lub in downtown Cincinnati. J immy fronted $5,000 t o o p en t h e b ar but was repa id within a wee k. The nightc lub was known as “The Hustler Club.” I n the ear ly 1970s, the business expanded to include at least six clubs. The company applied for trade marks. Due to conce rns about L arr y ’s leg al exposure, the corpor ate structure i n cl u d ed

s ev er al separ ate entities and was intentionally obscure d to make it difficult to deter mine the true

owner s of eac h business. I n 1974, Hustler mag azine was first published. I n 1975, t h e m agazi ne purcha sed and published nude photogr aphs of J acque line Kenne dy Onassis, which drew incre ased profits to the m ag azine. Following the publ ication of this issue, L arr y soug ht to consolidate lega l -2-Nos. 12-3132, 13-3212

L.F.P.IP, LLC

, et al. v. Hustler Cincinnati, Inc., et al.

owner ship of all of the businesses in himself. To do this, he formed a pare nt corpor ation, L .F.P.,
I nc., and de signa ted himself as the c orpora tion’s sole share holder. Around 1983, L arr

y beg an exhibiti ng err atic beha vior, announc ing his c andidac y for President of the United States and levy ing threa ts ag ainst President Ronald Reag an an d fede ral judge s. As a re sult of this behavior, L arr y was sente nced to f

ifteen months in prison for c ontempt of court, during which he ran the aff airs of Hustler remotely from prison. He attempted to g ive all of the corpor ate assets to the Americ an Atheist Group and to “for ce employ ees out of the company .”
I n response , J immy soug ht an d re ce i v ed a conser vatorship over the business, which lasted approximately

from Mar ch to Dec ember 1984.
L arr y later sued J immy in L os Ang eles Superior Court, allegin g t h at J immy had misappropriate d company funds during the conservatorship. The case ultimately terminated in a settlement and rele ase, rele asing all claims kn o wn and unknown up to the date of the ag ree ment, November

15, 1988.
I I

. The district court g rante d summary judgme nt to L arr y on his trade mark infring ement claims.
We revie w a g rant of summary judgme nt de novo . W hite v. Baxter Healthcare Corp. , 533 F.3d 381, 389 (6th Cir. 2008). I n doing so, we view the evidenc e in the light most favor able to the non-moving party

. Id. at 390. Howeve r, “[ n]ot just any alleg ed fa ctual dispute betwe en the pa rties wil l defe at

an otherwise proper ly supported motion for summary judgme nt; the dispute must prese nt a genuine issue of material fac t.” Rhodes v. Pit tard , 485 F. App’x 113, 114 (6th Cir. 2012). “A dispute is ‘g enuine’ only if based on evidenc e upon which a rea sonable jury could return a verdic t in favor of -3-Nos. 12-3132, 13-3212

L.F.P.IP, LLC

, et al. v. Hustler Cincinnati, Inc., et al. the non-moving p ar t y . ” Id. (citing Niemi v. NHK Spring Co., Ltd. , 543 F.3d 294, 298 (6th Cir. 2008)). As a

defe nse to L arr

y ’s claims of tra demar

k infring ement, J immy did not claim that there is no likelihood of confusion betwee n his use of the mar k and L arr

y ’s use of it. Rather, he arg ued only that the brothers wer e, in fac t, partne rs in the Hustler enter prise, ostensibly g iving him the rig ht
to use the Hustler mark. I n the alterna tive, he asser ted that L arr

y ’s failure to control the mark estops him from enfor cing the terms of Jimm y ’s implied license to use it. A. The district court found, and we ag ree , that t h e brothers wer e not partne rs in the Hustler
enter prise. I n Ohio, a partne rship ag ree ment may be either express or implied. See Madden Inv. Co.

v. Stephenson’s Apparel , 832 N.E.2d 780, 782 (Ohio Ct. App. 2005). A partne rship can be proven wher e there i s “(1) an ex press o r i m p l i ed partnership contract between the parties; (2) the s haring of profits and losses; (3) mutuality of ag ency ; (4) mutuality of control; and (5) co-ow nership of the business and of the proper ty used for partne rship purposes or acquir ed with partne rship funds.” Grende ll v. Ohio EPA , 764 N.E.2d 1067, 1077 (Ohio Ct. App. 2001) (quoting Anchor v. O ’Toole , 94 F.3d 1014, 1024 ( 6th Cir. 1996)). On appeal, J immy arg ues that t he dis trict court erre d in deter mining that J immy and L arr y did not form an express or implied partne rship ag ree ment rela ted to the Hu s t l er enter prises.
Howeve r, his only arg ument is that the court “esse ntially ignor ed the first 8 y ea rs o f J immy and
L arr y ’s business rela ti o n s h i p , failed to addre ss any of J immy ’s evidenc e, and failed to consider
J immy ’s implied partne rship claim.” J immy claims that, as the “sole monetary investor in the first Hustler club in Cincinnati in N ovember of 1969,” and beca use “eve ry

thing was in J immy ’s name” -4-Nos. 12-3132, 13-3212

L.F.P.IP, LLC, et al. v. Hustler Cincinnati, Inc., et al. at the company’s beginning, he was a partner in the enterprise. Jimmy concedes that there was never a written partnership agreement between the brothers. Numerous witnesses testified to Larry’s sole control over the Hustler enterprise. Allie Lee Jackson, III, Jimmy’s accountant, testified that he never received a K-1 form from Jimmy, an income tax schedule which would have indicated Jimmy’s partnership interest. Michael Cummins, an executive vice president at L.F.P., Inc. as well as an attorney and cousin of the Flynt brothers, testified before the district court as the lead contact person for the L.F.P., Inc. audit and the coordinator of both the corporate tax returns and Larry’s personal tax returns. Michael testified that, based on the corporate financial records, Larry had made $96 million in capital contributions from his personal account to the trust companies. Jimmy had made none. Regarding distributions, Michael testified that Larry had taken approximately $37 million in excess of his salary. Jimmy had taken none. Regarding loans, Michael testified that Larry made approximately $20 million in loans to the trust companies. Jimmy had made none. Finally, Michael testified that Larry had personally guarantied loans in excess of $40 million for the trust companies. Jimmy guarantied none. Jimmy’s only asserted financial relationship to the company occurred at its inception, when Jimmy claims that he contributed $5000 to purchase the first Hustler club. However, these funds were repaid to Jimmy within a week. His minimal contribution is grossly insufficient to counter the substantial contributions and financial interdependence of Larry and the Hustler enterprise. See In re Estate of Ivanchak , 862 N.E.2d 151, 155 56 (Ohio Ct. App. 2006) (no partnership existed where there was no written partnership agreement, the firm did not file partnership tax returns, and the accountant did not treat the firm as a partnership). -5-Nos. 12-3132, 13-3212

L.F.P.IP, LLC

, et al. v. Hustler Cincinnati, Inc., et al. As further evidenc e that no partne rship exis ts, J immy has testified in numerous proce eding s

over the course of Hustler’s history that he does not have a partne rship interest in the enter prise. I n J une 1978, L arr

y , J immy , and L arr

y ’s then-wife Althea wer e involved in a dispute over owner ship of the Hustler enter

prise. I n sett l i n g t h i s d ispute, J immy executed a g ener al rele ase acc epting

owner ship of L easur e Time Products, a mail-order company , and rele asing all past, prese nt, and future c laims to ownership of the other companies.
I n his petition seeking a conser vatorship over L arr

y , J i m my submitt ed a decla ration from David Kahn, the g ener al counsel of L .F.P., I nc., asser ting that L arr

y was the sole owner and direc tor of L .F.P., I nc. He also submitt ed a decla ration from Marvin Miller, the chief opera ting office r and vice president of L .F.P., I nc., in which he called L arr y the “sole share holder of L FP [which is, in turn,] the sole share holder of six separ ate corpor ations that comprise the Fly nt publishing empire.” Miller also noted that L arr y was the chair

man of the board of L .F.P., I nc. and the sole member of its board of direc tors. I n 2003, J immy g ave deposition testimony during dissoluti on of marria g e proce eding s betwee n himself and his wife. J immy testified that he worke d as a “consultant” for his brother and that he “ne ver se e[s] any

business rec ords,” “ [doesn’t] see a ny chec kbooks,” and “[doesn’t] know what g oes on business-wise, other than the idea of reta il.” J immy also testified that L arr y fired him in 1984 and that L arr

y was the sole sha

reholde r of L FP, I nc. He stated: Well, y ou have to understand, Hustler i s L ar ry Fly nt, y ou know. Every

thing that bear s that name, he has complete control of, mind, soul, and body

. So when I think of a club, when I think of a store, when I think of a mag azine, I think it’s him, 100 perc ent.

-6-Nos. 12-3132, 13-3212

L.F.P.IP, LLC

, et al. v. Hustler Cincinnati, Inc., et al. J immy testified befor e the district court in this case , claiming that he and L arr y wer e partne rs in th e Hustler enter

prise. Howeve r, these self-se rving statements in the instant litigation, when viewed in light of his numerous sworn statements disclaiming any interest in the enter prise, simply fail t o prese nt a genuine issue of fact t hat would prec lude a g rant of summary judgmen t

. I n o ther

wo rd s , J i m my prese nted no evidenc e of a partne rship contra ct, sharing of profits and losses , mutuality of ag ency and control, or co-ow nership of the business or business proper ty

. I n short, he
prese nted nothing that could be deeme d i n dicia of partne rship. See Sigmon v. Appalachian Coal Props., Inc. , 400 F. App’x 43, 49 (6th Cir. Sept. 17, 2010) (holding that “conc lusory alleg ations and bald conclusions of law

. . . are insufficient to cre at e a gen u i n e i s sue of materia l fac t as to the exis tence of an oral

. . . ag ree ment”); see also Galindo v. Precision Am. Corp. , 754 F.2d 1212, 1216 (5th Cir. 1985) (“[U]nsupported alleg ations or aff idavits setting forth ‘ultimate or conclusory fac ts and conclusions of law’ are insufficient to ei t her support or defe at a motion for summary judgme nt.”); 10B Charles Alan Wright et al., Fede ral Practice and Procedure § 2738 (3d ed. 1998 & Supp. 2013) (“[U]lt imate or conclusory fac ts and conclusions of law, as well as statements made

on belief or ‘on information and belief,’ cannot be utiliz ed on a summary -judg ment motion.”); Fe d. R. Civ. P. 56( c) (“A party asser ting that a fac t .

. . is g enuinely disputed must support the asser tion by

. . . citing to particula

r parts of materia ls in the rec ord

. . . or showing that the materia ls cited do
not establish the absenc e . . . of a g enuine dispute.”) Be cause J immy faile d t o d em o n s t ra te the require d elements of a partne rship under Ohio law, and b ec au s e his conclusory asser tions of partne rship do not c rea te a g enuine dispute, g iven the signific ant specific evidenc e to the contra ry , the district court prope rly conclude d that no partne rship exis ted betwe en the br others.

-7-Nos. 12-3132, 13-3212

L.F.P.IP, LLC, et al. v. Hustler Cincinnati, Inc., et al.

B. In ruling on the trademark claims, the district court concluded that Larry and Jimmy had entered into an implied licensing arrangement by their conduct. In his cross-motion, Jimmy did not contest the existence of such a relationship, but argued only that the license was “naked” that the licensor (Larry or L.F.P.) failed to control the mark and therefore is estopped from enforcing the terms of the license. Jimmy argues that the district court improperly granted summary judgment to Larry because disputed issues of fact remain on the trademark claims. However, he does not develop this claim. Rather, he relies on the assertion that, despite Jimmy’s payments to L.F.P., Inc. beginning in 2005, “those payments were not true licensing fees” and “no licensing agreement was ever in place.” Because this issue is not fully developed and argued, we deem it waived. Dillery v. City of Sandusky , 398 F.3d 562, 569 (6th Cir. 2005). C. Jimmy asserts that the district court erred in granting a permanent injunction against Jimmy’s use of trademarks that is “overbroad” and “vague.” He claims that the injunction improperly enjoined Jimmy and HCI from using the slogan, “Relax . . . it’s just sex,” which had not been part of any prior pleadings, and that the injunction was not limited in geographic scope or to specific goods, services, or activities. He claims that the injunction restricts use not only of Hustler marks, but “other” trademarks, which are not specifically identified. Finally, he alleges that the injunction improperly requires HCI to change its corporate name. -8-Nos. 12-3132, 13-3212

L.F.P.IP, LLC

, et al. v. Hustler Cincinnati, Inc., et al. This court revie ws the scope of injunctive relie f fo r an ab use of discretion. W orldwide Basketball & Sport Tours, Inc. v. Nat’l Collegiate Athletic Ass’n , 388 F.3d 955, 958 (6th Cir. 2004).
“A plaintiff seeking a perma nent injunction must demonstrate that it has suffe red irrepa rable injury , there is no adequate reme dy at law, ‘that, considering the balanc e of hardships betwee n the plaintiff and defe ndant, a reme dy in equity is war rante d,’ an d t h at i t i s in the public’s interest to issue the injunction.” Audi AG v. D’Amato , 469 F.3d 534, 550 (6 t h C i r. 2006) (quoting eBay Inc. v. Merc Exch a n g e, L

. L .C. , 547 U.S. 388, 391 (2006))

. The district court’s injunction appropr iately enjoined J immy ’s prac tice of willfully infring ing L arr y ’s trade marks and protec ted the public from confusion arising from his use of the marks. To the extent that J i m m y arg ues that the perma nent injunction is overly broad and improperly includes the sloga n, “Relax

. . . it’s just sex,” his claim is without merit. J immy arg ues onl y that he coine d the phra se and doe s not dispute that L arr y is the
reg istered owner of the “Relax . . . it’s just sex” mark. Fur ther, the injunction includes onl y those marks “owned” by

L arr y and the Hustler

enter prise. J immy does not provide any leg itimate basis for thi s co u rt t o vaca

te a perma

nent injunction that proper ly prec ludes J immy from willfully infring ing L arr

y ’s trade marks.
I I I

. J immy also claims that L arr y wrong fully

terminated him from Hustl er, arg uing that “ther e is sufficie nt evidenc e in the rec ord for a jury to conclude that J immy could not be terminated without

cause based on an express and/or implied employ ment ag ree ment and/or the doctrine of promissory estoppel.” He points to a decla ration indicating that L arr y told J immy “expressly and impliedly ” betwee n November 16, 1988 and ear ly 2009, “that he would keep him on the company pay roll, that -9-Nos. 12-3132, 13-3212

L.F.P.IP, LLC, et al. v. Hustler Cincinnati, Inc., et al. he would have secure employment, and that he would otherwise be financially taken care of and that Jimmy was in the trust which was set up to hold legal title to the entire company.” He continually asserts that he “was not an at will employee . . . and did not sign any documentation saying that he was,” and that “Larry never once called Jimmy ‘at-will’.” However, this reverses the presumption of Ohio law that, absent an employment contract, an employee is an at-will employee. Blackburn v. Am. Dental Ctrs. , No. 10AP-958, 2011 WL 5825391, at *3 (Ohio Ct. App. Nov. 17, 2011) (citing Mers v. Dispatch Printing Co. 483 N.E.2d 150, 153 n. 1 (Ohio 1985)). Although an employment contract may be implied, the party asserting an implied contract must “prove the existence of all elements necessary for the formation of a contract.” Moore v. Kings Island Co. , No. CA97-09-097, 1998 WL 230038, at *4 (Ohio Ct. App. Apr. 6, 1998). Jimmy’s assertions that Larry’s promises of payment to him indicate some entitlement to employment are unavailing. In each case, Larry promised payment, not continued employment. Larry’s purported statement to his parents that “as long as Jimmy works and does his job, I’ll take care of him and I’ll see that he has a job” is not to the contrary Larry’s promise to his parents of brotherly protection is not the equivalent of an entitlement by Jimmy to employment at Hustler . As noted by the district court in its opinion and order, there is no evidence that the brothers ever expressed “a mutual intent that Larry would employ Jimmy for life or that there was any meeting of the minds as to what the material terms of such an arrangement would be.” Further, Ohio courts have addressed “indefinite” employment contracts and note that: Generally speaking, a contract for permanent employment, for life employment, or for other terms purporting permanent employment, where the employee furnishes no consideration additional to the services incident to the employment, amounts to an -10-Nos. 12-3132, 13-3212

L.F.P.IP, LLC, et al. v. Hustler Cincinnati, Inc., et al. indefinite general hiring terminable at the will of either party, and a discharge without cause does not constitute a breach of such contract justifying recovery of damages. Henkel v. Educ. Research Council of Am. , 344 N.E.2d 118, 121 22 (Ohio 1976) (quoting Forrer v. Sears, Roebuck & Co. , 153 N.W.2d 587, 589 (Wisc. 1967)). In the alternative, Jimmy argues that he was terminated in violation of public policy because Larry fired him for being “unable to alter the outcome of litigation between Larry and Larry’s nephews, and also because Jimmy was unwilling to comply with Larry’s fraudulent request for a $400,000 loan.” He also asserts that he was terminated in violation of Larry’s fiduciary duty to him “at a time when he was a minority owner within the Hustler Enterprise.” So long as an employee serves at will, the employment relationship may be terminated by either party “for any or no reason, provided that the termination is not otherwise unlawful.” Curren v. City of Greenfield , 978 N.E.2d 632, 638 (Ohio Ct. App. 2012) (internal quotation omitted). In other words, termination would only be precluded if the employee were discharged “in violation of a public policy clearly expressed in either the state or federal constitutions, state statutes, administrative rules and regulations, or the common law.” Id. at 639 (internal quotation omitted). Jimmy has not asserted any source of Ohio law that would render his termination in violation of public policy. Regarding his argument that he was terminated in violation of Larry’s fiduciary duty, he has failed to allege that he was, in fact, a minority shareholder in the enterprise at the time of his termination, so that any fiduciary duty would exist. Therefore, Jimmy has failed to demonstrate a genuine issue of material fact and the district court’s grant of summary judgment was proper.

-11-Nos. 12-3132, 13-3212

L.F.P.IP, LLC

, et al. v. Hustler Cincinnati, Inc., et al. I V.
J imm y also asser

ts claims under Ohio law for unjust enric hment and fra ud. Unjust enric hment require s proof of “(1) a benef it confe rre d by a plaintiff upon a defe ndant; (2) knowledg e by the defe ndant of the benef it; and (3) rete ntion of the benef it by the defe ndant under circ umstances wher e it would be unjust to do so without pay ment.” Crawf

ord v. Ha wes , --- N.E.2d

--- -, Nos. 25178, 25180, 2013 WL 3816664, at *8 (Ohio Ct. App. J uly 19, 2013). Fr aud occ urs wher e ther e is (a) a re prese ntation or , wher e ther e is a duty to disclose, conce alment of a fac t, (b) which is ma terial to the transac tion at hand, (c) made falsely , with knowledg e of its falsity , or with suc h utter disreg ard a nd rec klessness as to w hether it is true or false that knowledg e may be inferr ed, (d) with the intent of misleading another into rely ing upon it, (e) justifiable relianc e upon the repr esenta tion or conce alment, and (f) a resulting injury

proxi mately

cause d by

the re liance. McCauley v. LaY

acona , No. 12-COA-047, 2013 WL 3941098, at *3 (Ohio Ct. App. J uly 26, 2013).
J immy alleg es that he made asset transfe rs to L arr y “base d on his d et ri mental relianc e of his brother’ s promises to him.” Howeve r, as noted by the district court, “J i m m y h as identified no specific instances in which L arr y made materia l misstatements known by him to be false in order to mislead and harm J immy .” He has also fa iled to specify an instance when L arr

y unjustly reta ined

a benef it g iven by J immy

. His g ener alized asser tions about L arr

y ’s undue influence causing him to
pay for the brothers’ leg al defe nse, to pay “excessive” rent, and to make other assorted wire transfe rs

are insufficient to survive summar y judgme nt.

-12-Nos. 12-3132, 13-3212

L.F.P.IP, LLC

, et al. v. Hustler Cincinnati, Inc., et al. V.
J i m m y al s o asser

ts a claim for brea ch of fiduciar y duty

. Under Ohio law, a brea ch o f fiduciar y duty arises if there is: “(1) the exis tence of a duty arising from a fiduciar y rela tionship; (2)

a failure to observe the duty ; and (3) an injury resulting proxi mately there from.” Thomas v. Fletche r , No. 17-05-31, 2006 WL 3702699, at *2 (Ohio Ct. App. Dec

. 18, 2006) (interna l quotation omitted).
J immy claims that the district court imp r o perly g rante d summary judgme nt on his brea ch of fiduciar y duty claim because J immy “alleg ed facts spanning the cour se of 40+ y ear s which demonstrate hi s unique sibling and business rela tionship with his brother.” Howeve r, a fiduciar y rela tionship does
not emer g e out of a simple familial connec tion. Fur ther, as noted above, J imm y h as fa i l ed to demonstrate that he was a minority share holder in t he Hustler enter prise. J immy ’s owner ship of HCI , a company not connec ted to the Hustler enter prise, does not indicate any owner ship or business rela tionship with his brother in the companies in which he is involved. There fore , summary judgme nt on this claim was proper

. VI

. J immy also arg ues that L arr y breach ed a p ro m i se that he would include J immy as a fifty
perc ent benef

iciary of L arr

y ’s trust or will and that L arr y has brea ched that ag ree ment by removing
J immy from his trust. The parties ag ree that California law go v er n s t h i s cl aim. I n California, “a
contra ct to make a will cannot be specific ally enfor ced befor e the promisor’s death.” In re Marriage of Drake , 62 Cal. Rptr. 2d 466, 483 (Cal. Ct. App. 1997). J immy is corr ect to note that an exception applies “whe re the promisor has made an inter vivos transfe r of proper ty specific ally cover ed by the
contra ct.” Battuello v. Battuello , 75 Cal. Rptr. 2 d 5 4 8 , 5 5 0 (Cal. Ct. App. 1998). J immy -13-Nos. 12-3132, 13-3212

L.F.P.IP, LLC

, et al. v. Hustler Cincinnati, Inc., et al. acknow ledg es that no evidenc e exis ts in the rec ord of such a transfe r, but asser ts that “within the last month there was a public media repor t that L arr

y has rea ched an ag ree ment to sell the company headqua rters in Be verly Hills, owned by the trust, for $82 milli on dollars.” Be cause J immy conce des that such a transfe r, if it occur red, is outside the scope of this rec ord, the district court dismiss ed the claim without prejudice . We ag ree . VI I

. For the fore g oing r easons, we aff irm the district court’s judg ment in all respec ts.

-14-