Behany Ashton Wolf v. John Rickard et alNOTICE OF MOTION AND MOTION to Dismiss CaseC.D. Cal.February 1, 20171 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 STROOCK & STROOCK & LAVAN LLP JAMES G. SAMMATARO (State Bar No. 204882) jsammataro@stroock.com CRYSTAL Y. JONELIS (State Bar No. 265335) cjonelis@stroock.com 2029 Century Park East Los Angeles, CA 90067-3086 Tel: 310.556.5800 Fax: 310.556.5959 Email: lacalendar@stroock.com Attorneys for Defendants JOHN RICKARD, WRIGLEY PICTURES, ALAN OU, MIDNIGHT SUN, LLC and ERIC KIRSTEN UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BETHANY ASHTON WOLF, an individual Plaintiff, v. JOHN RICKARD, an individual; WRIGLEY PICTURES, a California Corporation; ALAN OU, an individual; BOIES/SCHILLER FILM GROUP LLC, a Florida limited liability company; MIDNIGHT SUN, LLC, a Nevada limited liability company; ERIC KIRSTEN, an individual; OPEN ROAD FILMS, LLC, a Delaware limited liability company; and DOES 1 through 20; Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-CV-09116 GW (KSX) DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES [Declarations of John Rickard, Devin Andre and Ryan Goodell and Notice of Lodging filed and [Proposed] Order lodged concurrently herewith] Date: March 16, 2017 Time: 8:30 a.m. Room: 9D Action Filed: December 8, 2016 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 1 of 45 Page ID #:590 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 TO THE COURT, TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 16, 2017 at 8:30 a.m., in Courtroom 9D of this Court, before the Honorable George Wu, located at 350 West 1st Street, Los Angeles, California, defendants John Rickard (“Rickard”), Wrigley Pictures, Alan Ou (“Ou”), Midnight Sun, LLC (“MSLLC”) and Eric Kirsten (“Kirsten” and collectively, “Defendants”) will and hereby do, move this Court pursuant to Federal Rule of Civil Procedure 12(b)(6) for an order dismissing with prejudice the Complaint filed by plaintiff Bethany Ashton Wolf (“Plaintiff”). This Motion is made on the following grounds: First, the First Claim for Relief for Copyright Infringement fails to state a claim upon which relief can be granted because Plaintiff’s claim is premised on the wrong work, because there is no substantial similarity between any protectable elements in the two works, and because the film in question is the lawful remake of an original 2006 Japanese film. Second, the Second Claim for Relief for Breach of Contract fails to state a claim upon which relief can be granted because Plaintiff’s claim is barred by the statute of limitations, novation, the statute of frauds, lawful derivation and a lack of privity. Third, the Third Claim for Relief for Breach of the Implied Covenant of Good Faith and Fair Dealing fails to state a claim upon which relief can be granted because Plaintiff’s claim is barred by the statute of limitations, novation, the statute of frauds, lawful derivation, lack of privity and because it is legally superfluous. Fourth, the Fourth Claim for Relief for Breach of Confidence fails to state a claim upon which relief can be granted because Plaintiff’s claim is barred by the statute of limitations and because Plaintiff cannot establish a required element of the claim. In addition, Plaintiff fails to plead sufficient facts of vicarious liability as to Wrigley Pictures and MSLLC. Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 2 of 45 Page ID #:591 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Fifth, the Fifth Claim for Relief for Breach of Fiduciary Duty fails to state a claim upon which relief can be granted because there is no fiduciary relationship and because Plaintiff cannot establish substantial similarity. In addition, Plaintiff fails to plead sufficient facts of vicarious liability as to Wrigley Pictures and MSLLC. Sixth, the Sixth Claim for Relief for Fraud fails to state a claim upon which relief can be granted because Plaintiff’s claim is barred by the statute of limitations and lacks the requisite specificity. In addition, Plaintiff fails to plead sufficient facts of vicarious liability as to Wrigley Pictures and MSLLC. This Motion is based upon this Notice of Motion and the accompanying Memorandum of Points and Authorities, the Declarations of Devin Andre, John Rickard and Ryan Goodell, the Notice of Lodging, the pleadings and records on file herein, and such further evidence and arguments as may be presented to the Court prior to or at the hearing on this Motion. This motion is made following a conference of counsel pursuant to Local Rule 7.3, which took place on January 19, 2017. Dated: February 1, 2017 STROOCK & STROOCK & LAVAN LLP JAMES G. SAMMATARO CRYSTAL Y. JONELIS By: /s/ James G. Sammataro James G. Sammataro Attorneys for Defendants JOHN RICKARD, WRIGLEY PICTURES, ALAN OU, MIDNIGHT SUN, LLC and ERIC KIRSTEN Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 3 of 45 Page ID #:592 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................. 1 II. FACTUAL BACKGROUND ............................................................................ 2 A. Midnight Sun Is Virtually Identical to the Original Film. ....................... 2 B. Plaintiff’s Work Includes Elements in the Original Film and Midnight Sun. ........................................................................................... 5 C. There Are Numerous Elements Expressed Only in Plaintiff’s Work. ........................................................................................................ 5 III. LEGAL ARGUMENT ....................................................................................... 6 A. Plaintiff’s Copyright Infringement Claim Fails as a Matter of Law. .......................................................................................................... 6 1. The Standard for Deciding Non-Infringement on a Motion to Dismiss. ...................................................................................... 6 2. Plaintiff’s Claim Is Premised on the Wrong Work. ..................... 10 3. There Is No Substantial Similarity Between Any Protectable Elements in Plaintiffs’ Work and Midnight Sun. .............................................................................................. 11 a. There Is No Substantial Similarity in Plot. ........................ 11 b. Midnight Sun’s Theme Derives from the Original Film, Not Plaintiff’s Work. ............................................... 13 c. There Is No Substantial Similarity in Characters. ............. 14 (i) The “Boy”: Will Clayman versus Charlie Reed. ........................................................................ 15 (ii) The “Parent”: Claire Morgan versus Jack Price. ........................................................................ 17 (iii) The Absence of the Boy’s Parents, the Girl’s Aunt, and the Homeless Jon-Jon. ............................ 18 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 4 of 45 Page ID #:593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 d. There Is No Substantial Similarity in Setting. ................... 18 e. There Is No Substantial Similarity in Mood. .................... 20 f. There Is No Similarity in Pace. ......................................... 20 g. There Is No Substantial Similarity in Dialogue. ............... 21 h. There Is No Substantial Similarity in Sequence of Events. ............................................................................... 22 i. Plaintiff’s Chart of Alleged Similarities Should Be Rejected. ............................................................................ 22 j. Leave to Amend Would Be Futile. .................................... 23 B. Plaintiff’s Other Claims Are Legally Deficient. .................................... 23 1. The Breach of Contract Claim Is Barred by the Statute of Limitations, Novation, Statute of Frauds and Lawful Remake. ........................................................................................ 24 a. The Original Contract Is Barred by Time and Novation. ........................................................................... 24 b. The Second Contract Is Barred by the Statute of Frauds, Statute of Limitations, and Lawful Derivation. ......................................................................... 25 c. Non-Parties to Both Alleged Contracts, Wrigley Pictures and MSLLC, Cannot Be Sued for Breach Thereof. .............................................................................. 26 2. The Implied Covenant Claim Is Legally Superfluous. ................ 28 3. Plaintiff’s Breach of Confidence Claim Fails Because It Is Time-Barred and Because Plaintiff Cannot Establish a Required Element of the Claim. .................................................. 29 4. The Breach of Fiduciary Duty Claim Fails Absent a Fiduciary Relationship and Absent Substantial Similarity. ......... 30 5. The Fraud Claim Is Time-Barred and Lacks Requisite Specificity. ................................................................................... 30 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 5 of 45 Page ID #:594 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 6. Boilerplate Vicarious Liability Claims Fail to Plead Sufficient Facts as to Wrigley Pictures and MSLLC. ................. 32 IV. CONCLUSION ................................................................................................ 32 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 6 of 45 Page ID #:595 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iv- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 TABLE OF AUTHORITIES Page(s) Cases A Slice of Pie Prods., LLC v. Wayans Bros. Entm’t, 487 F. Supp. 2d 41 (D. Conn. 2007) ...................................................................... 29 Ackerman v. Nw. Mut. Life Ins. Co. 172 F.3d 467 (7th Cir. 1999) ................................................................................. 32 Alexander v. Murdoch, No. CV 10-5613 PAC JCF, 2011 WL 2802899 (S.D.N.Y. May 27, 2011) ................................................................................................................ 15, 19 Anderson v. Stallone, No. 87-0592 WDK Gx, 1989 WL 206431 (C.D. Cal. Apr. 25, 1989) .................. 14 Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994) ................................................................................... 8 Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503 (1994) ............................................................................................. 26 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................. 9 Astor-White v. Strong, 2016 U.S. Dist. LEXIS 40608 (C.D. Cal. 2016) ................................................... 12 Beckwith v. Sheldon, 165 Cal. 319 (1913) ............................................................................................... 24 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................... 9, 32 Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620 (9th Cir. 2010) ..................................................................... 12, 15, 19 Benjamin v. Walt Disney Co., No. CV 05-2280GPS, 2007 WL 1655783 (C.D. Cal. June 5, 2007) ..................... 15 Bensbargains.NET, LLC v. XPbargains.Com, No. 06CV1445BTM, 2007 WL 2385092 (S.D. Cal. Aug. 16, 2007) ..................... 9 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 7 of 45 Page ID #:596 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -v- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985) ............................................................................... 12 Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043 (C.D. Cal. 2010) ........................................................... 22, 23 Bionghi v. Metro. Water Dist. Of S. Cal., 70 Cal. App. 4th 1358 (1999) ................................................................................ 28 Campbell v. Walt Disney Co., 718 F. Supp. 2d 1108, 1113 (N.D. Cal. 2010) ................................................. 13, 23 Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371 (1990) ............................................................................... 28 Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) ......................................................................... 7, 8, 13 Chase-Riboud v. Dreamworks, Inc., 987 F. Supp. 1222 (C.D. Cal. 1997) .................................................................. 7, 10 Christianson v. W. Pub. Co., 149 F.2d 202 (9th Cir. 1945) ............................................................................... 6, 7 Clemens v. Am. Warranty Corp., 193 Cal. App. 3d 444 (1987) ................................................................................. 27 D.C. Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015), cert. denied – U.S. –, 136 S. Ct. 1390 (2016) ..................................................................................................................... 14 Davies v. Krasna, 14 Cal. 3d 502 (1975) ............................................................................................ 30 Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152 (9th Cir. 2012) ........................................................................... 9, 26 Davisson v. Faucher, 105 Cal. App. 2d 445 (1951) ................................................................................. 24 Eckart v. Brown, 34 Cal. App. 2d 182 (1939) ................................................................................... 24 Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211 (9th Cir. 1997) ............................................................................... 29 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 8 of 45 Page ID #:597 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -vi- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) ................................................................................................. 7 Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797 (2005) ........................................................................................... 31 Funky Films, Inc. v. Time Warner Entm’t Co. L.P., 462 F.3d 1072, 1077 (9th Cir. 2006 ........................................................ 7, 8, 13, 18 Gerritsen v. Warner Bros. Entm’t Inc., 116 F. Supp. 3d 1104, 1127 (C.D. Cal. 2015) ........................................... 27, 28, 32 Gilbert v. New Line Prods., Inc., No. CV 09-02231 RGK, 2009 WL 7422458 (C.D. Cal. Nov. 16, 2009) ...................................................................................................................... 23 Gilbert v. New Line Prods., Inc., No. CV 09-02231 RGK, 2010 U.S. Dist. LEXIS 141516 (C.D. Cal. 2010) ........................................................................................................................ 8 Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317 (2000) ........................................................................................... 28 Hollywood Screentest of Am., Inc. v. NBC Universal, Inc., 151 Cal. App. 4th 631 (2007) .......................................................................... 26, 29 Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129 (C.D. Cal. 2001) ............................................................... 8, 9 Identity Arts v. Best Buy Enter. Servs. Inc., No. C05-4656 PJH, 2007 WL 1149155 (N.D. Cal. Apr. 18, 2007) ........................ 7 Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir. 1994) ....................................................................... 8, 13, 23 Lee v. City of L.A., 250 F.3d 668 (9th Cir. 2001) ................................................................................... 9 Lee v. Escrow Consultants, Inc., 210 Cal. App. 3d 915 (1989) ................................................................................. 29 Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984) ............................................................................... 23 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 9 of 45 Page ID #:598 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -vii- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Marshall v. Yates, No. CV-81-1850-MML, 1983 WL 1148 (C.D. Cal. Oct. 26, 1983) ..................... 10 McKell v Wash. Mut., Inc., 142 Cal. App. 4th 1457 (2006) .............................................................................. 26 Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp. 1346 (C.D. Cal. 1984) ...................................................................... 10 Metro-Goldwyn-Mayer, Inc. v. Am. Hondo Motor Co., Inc., 900 F. Supp. 1287 (C.D. Cal. 1995) ...................................................................... 14 Miller v. Universal City Studios, 650 F.2d 1365 (5th Cir. 1981) ............................................................................... 10 Narell v. Freeman, 872 F.2d 907 (9th Cir. 1989) ................................................................................... 8 Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004) ................................................................................. 8 Nwabueze v. AT & T Inc., No. C 09-1529 SI, 2011 WL 332473 (N.D. Cal. Jan. 29, 2011) ........................... 30 Olson v. Nat’l Broad. Co., Inc., 855 F.2d 1446 (9th Cir. 1988) ......................................................................... 14, 21 Osei v. Countrywide Home Loans, 692 F. Supp. 2d 1240 (E.D. Cal. 2010) ................................................................. 26 Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) .............................................................................. 10 Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003) ........................................................................... 8, 20 Richman v. Hartley, 224 Cal. App. 4th 1182 (2014) .............................................................................. 26 Risdon v. Walt Disney Prods., No. 83 CIV. 6595, 1984 WL 1181 (S.D.N.Y. Nov. 2, 1984) ................................ 21 Roberts v. Ball, Hunt, Hart, Brown & Baerwitz, 57 Cal. App. 3d 104 (1976) ................................................................................... 31 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 10 of 45 Page ID #:599 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -viii- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Ryder v. Lightstorm Entm’t, Inc., 246 Cal. App. 4th 1064 (2016), review denied (July 13, 2016) ............................ 30 Sams v. Yahoo! Inc, 713 F.3d 1175 (9th Cir. 2013) ................................................................................. 7 Scafidi v. W. Loan & Bldg. Co., 72 Cal. App. 2d 550 (1946) ................................................................................... 31 Shame on You Prods. Inc. v. Banks, No. CV-14-03512-MMM-JCx, 2015 WL 4885221 (C.D. Cal. Aug. 14, 2015) .......................................................................................................... 13, 23 Sheldon Abend Revocable Trust v. Spielberg, 748 F. Supp. 2d 200 (S.D.N.Y. 2010) ................................................................... 12 Silas v. Home Box Office, Inc., No. CV 15-9732-GW(FFMX), 2016 WL 4409191 (C.D. Cal. Aug. 17, 2016) ......................................................................................................... passim In re Stac Elecs. Sec. Litig., 89 F.3d 1399 (9th Cir. 1996) ................................................................................... 9 Summerhays v. Scheu, 10 Cal. App. 2d 574 (1935) ................................................................................... 25 Taguinod v. World Sav. Bank, FSB, 755 F. Supp. 2d 1064 (C.D. Cal. 2010) ................................................................. 24 Thomas v. Walt Disney Co., No. C-07-4392 CW, 2008 WL 425647 (N.D. Cal. Feb. 14, 2008) ....................... 15 In re Toyota Motor Corp., 785 F. Supp. 2d 883 (C.D. Cal. 2011) ................................................................... 32 Walker v. Time Life Films, Inc., 784 F.2d 44, 51 (2d. Cir. 1986) ............................................................................. 10 Walker v. Time Life Films, Inc., 615 F. Supp. 430 (S.D.N.Y. 1985) .................................................................. 10, 15 Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584 (8th Cir. 2011) ................................................................................. 14 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 11 of 45 Page ID #:600 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ix- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Weidner v. Zieglar, 218 Cal. 345 (1933) ............................................................................................... 27 Williams v. Crichton, 84 F.3d 518 (2d Cir. 1996) ............................................................................ 7, 9, 23 Willis v. Home Box Office, No. 00 CIV. 2500 (JSM), 2001 WL 1352916 (S.D.N.Y. Nov. 2, 2001) ...................................................................................................................... 13 Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124 (C.D. Cal. 2007) ..................................................... 6, 7, 9, 23 Statutes 17 U.S.C. § 102(b) ........................................................................................................ 7 Cal. Civ. Code § 1530 ................................................................................................. 24 Cal. Civ. Code § 1624(a)(1) ........................................................................................ 25 Cal. Civ. Proc. Code § 338(d) ..................................................................................... 31 Cal. Civ. Proc. Code § 339 ......................................................................................... 24 Cal. Civ. Proc. Code § 339(1) ..................................................................................... 29 Rules Fed. R. Civ. P. 9(b) ..................................................................................................... 31 Fed. R. Civ. P. 12(b)(6) ....................................................................................... 2, 9, 23 Other Authorities 5 Nimmer & Nimmer, Copyright (2015) The Law of Ideas, § 19D.07[A] ................ 26 4 Nimmer on Copyright § 13.03[D] ............................................................................ 10 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 12 of 45 Page ID #:601 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 I. INTRODUCTION Every one of the Plaintiff’s claims should be dismissed, either because the claim is unfounded, time-barred, or legally flawed. Plaintiff’s copyright infringement claim must be dismissed because the law requires a side-by-side comparison of Plaintiff’s treatment to a film that Plaintiff has not yet seen and, therefore, cannot in good faith allege is substantially similar. To the extent that Plaintiff has alleged similarities, her claim is unsustainable because the articulable similarities are negligible and are dominated by numerous, readily apparent dissimilarities. The copyright infringement claim is doomed by the comparison of three works created according to the following chronology: (i) the 2006 Japanese film Taiyo no Uta (“Original Film”); (ii) the 2010 treatment “Shade” a/k/a “Midnight Juliet” attached as Exhibits A and B to the Complaint (“Plaintiff’s Work” or “Work”); and (iii) Defendants’ unreleased 2017 film (“Midnight Sun”) – which, crucially, is not the 2013 first draft script attached as Exhibit C to the Complaint. Plaintiff alleges that Midnight Sun infringes on her 2010 Work. But Midnight Sun is a licensed derivative work of the 2006 Original Film and, thereby, enjoys the benefit of the Original Film’s superior copyright for any expressive elements resident in all three works. This Court should dismiss the copyright infringement claim because it fails the two-step process required by the Ninth Circuit’s “extrinsic test.” First, the Court must filter all uncopyrightable elements from Plaintiff’s Work, including stock ideas, general concepts, scenes a faire, and expressions already articulated in the Original Film. Second, the Court must consider only the remaining protectable elements of Plaintiff’s Work when comparing it to Midnight Sun for substantial similarity. Because the Midnight Sun is a faithful remake of Taiyo no Uta, it expresses virtually identical plot, themes, dialogue, mood, setting, pace, characters and sequence of events that pervade the Original Film. Consequently, these elements legally derive from the Original Film and must be disregarded for substantial Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 13 of 45 Page ID #:602 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 similarity purposes. After the Court filters the unprotectable elements from Plaintiff’s Work, all that remains is a story legally dissimilar to Midnight Sun – involving new characters, different situations, distinct dialogue, contrasting themes, and an altered mood. Application of the extrinsic test leads to the inescapable conclusion that no reasonable jury could find that Midnight Sun is substantially similar to Plaintiff’s Work. Consequently, Plaintiff’s claim for copyright infringement claim should be dismissed with prejudice pursuant to Rule 12(b)(6). In addition to her failed copyright claim, Plaintiff asserts five others claims, each of which is deficient. The statutes of limitations have run on the Breach of Contract, Breach of Confidence, and Fraud claims. The Breach of Contract claim should also be dismissed because the alleged contract at issue is invalid due to novation, violates the statute of frauds, and is undermined by a lack of privity. Because Midnight Sun is a lawful derivation of the pre-existing Original Film, Plaintiff can never state a claim for Breach of Confidence. A fiduciary duty claim cannot be stated without a fiduciary relationship, and a Breach of a Fiduciary Duty claim cannot be maintained without substantial similarity. The Implied Covenant claim is legally superfluous. The Fraud claim lacks specificity. Thus, all of Plaintiff’s claims should be dismissed pursuant to Rule 12(b)(6). II. FACTUAL BACKGROUND All three works – the 2006 Original Film, Plaintiff’s 2010 Work, and the 2017 Midnight Sun – are coming-of-age, rite-of-passage romance stories involving a teenage girl protagonist and a teenage boy.1 A. Midnight Sun Is Virtually Identical to the Original Film. Midnight Sun is a licensed remake of the Original Film. (See Declaration of Devin Andre, at ¶¶ 3-4). The two films are virtually identical. 1 For the sake of clarity, the following factual recitations refer to “the girl” and “the boy” instead of the specific names ascribed to these roles in each work. In the Original Film, Plaintiff’s Work, and Midnight Sun, the name of the girl protagonist is respectively Kaoru, Emma and Katie, the boy lead is Fujishiro, Will and Charlie. Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 14 of 45 Page ID #:603 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 In both films, the protagonist is a girl of high school age living in a seaside town and suffering from the genetic disorder Xeroderma Pigmentosum, or “XP,” for which exposure to the sun is deadly. She has grown up isolated inside her family home, protected from the sun’s rays with special UV-filtering windows and alienated from the schools and social lives of her peers, except for her best friend. Her waking hours are spent playing guitar, singing and writing in her bedroom. She longingly peers out of her bedroom window, sees the same attractive boy pass by daily, and is repeatedly frustrated because her line-of-sight for viewing him is partially-blocked. The girl yearns for the boy from a distance. When the sun goes down, she carries her acoustic guitar to a public transit station where she strums and sings. She has a first encounter with the boy, acts awkwardly, and dashes away. The girl confides to her best friend about her crush and they scheme about how to approach the boy. The girl assiduously avoids her personal doctor and the hospital, so the girl’s father visits the hospital on her behalf and updates her doctor, an XP specialist, of her condition; has her prescription refilled; is reminded to be prepared because his daughter is now at the age where most XP sufferers pass away; and inquires about the status of an XP medical trial that could potentially cure her. In the hospital lobby, the girl’s destiny is foreshadowed by the cameo appearance of another female teen XP patient manifesting symptoms of decline (i.e., nervous tremors, skin cancer). The girl begins to date the boy, but delays disclosing her deadly condition to him because it affords her a rare opportunity to be normal. She seeks permission from her father to go out at night and, after some protective inquiries, he grants her permission. Inspired by her romantic impulse, she starts writing a special new song. The boy makes money scrubbing a boat at a local marina. He takes the girl on a date in the city and, after some sightseeing, she sings and plays in a public square, drawing an appreciative crowd. Later that night, the boy takes the girl to his regular waterfront haunt, expresses pessimism about his future, and is admonished by the girl to be optimistic. When the boy casually mentions they are about to see a Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 15 of 45 Page ID #:604 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 beautiful sunrise, the girl realizes that she lost track of time and is about to be exposed to lethal UV rays. Panicked, she desperately sprints for home without him. He pulls up alongside of her, picks her up and drives her home, still with no idea of the emergency. Exposed to the sunrise, she dashes into her house, slams the door in his face, and refuses to answer his confused pleas. The girl’s father and best friend arrive from their desperate search for her. The father ignores the boy to check on the girl, but the girl’s best friend stops to inform the boy that he could have killed her because she is afflicted with XP. The boy goes home and researches the XP disease. The girl’s XP specialist examines her and notes some damage from her brief sun exposure. The doctor later returns with brain scan images to confirm that the exposure did, in fact, trigger her disease and begin her moribund demise. The girl’s father excruciatingly recounts to the doctor all he has done to protect his daughter, never letting her go out in the sun even when she screamed and begged. The doctor reminds the father that he could only do so much, that this is a genetic destiny. The boy fruitlessly campaigns to contact the girl, who stubbornly refuses because she is doomed and concludes that the relationship is similarly fated. While playing her guitar, she realizes her hand is not working correctly, a nervous motor control diminution that signals XP deterioration. She puts down the guitar. The boy finally succeeds in getting an audience with the girl when her father secretly invites him to the home for dinner. The girl continues to refuse him, but then relents and they reunite. The boy sacrifices his savings to buy her a surprise session at a professional recording studio where musicians await to accompany her in recording her special song. She initially rejects the gift and objects that she cannot play guitar anymore. The boy urges her to just sing, so she does. As the girl’s condition deteriorates, she ventures with the boy to the waterfront during the daytime for a final date. After she passes away, her recording plays on the radio and the grieving boy and the grieving father hear the posthumous broadcast and are filled with joy. Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 16 of 45 Page ID #:605 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 B. Plaintiff’s Work Includes Elements in the Original Film and Midnight Sun. Plaintiff’s Work shares some of the story elements that pervade the Original Film. Specifically, in Plaintiff’s Work: the protagonist is a girl of high school age living in a seaside town and suffering from the XP genetic disorder; she has grown up isolated within her family home, protected from the sun’s UV rays with special, protective windows; at night she escapes her home to enjoy the outside world and practice her artistic interest; she has an encounter with an athletic, attractive boy, acts socially awkward in his presence, and dashes away from him; the girl begins to date the boy, but delays disclosing her deadly condition because it affords her an opportunity to be normal; the boy makes money scrubbing a boat at a local marina; the boy takes the girl on a romantic date that runs too late and she gets exposed to dawn’s sunlight, triggering her disease and leading to her demise; she refuses to see the boy until his campaign to win her back prevails; they reunite until her death. C. There Are Numerous Elements Expressed Only in Plaintiff’s Work. There are many elements in Plaintiff’s Work that are in neither the Original Film nor Midnight Sun which make Plaintiff’s Work dissimilar from Midnight Sun. For example: the girl’s “luxurious mansion” stands in sharp contrast to the boy’s “small dilapidated house in a run-down neighborhood” on the “poor side of town”; disparity in wealth is an underlying theme; the girl does not observe the boy during the day from her isolated bedroom because her windows are not merely coated with UV protective filters, but rather completely covered by a “protective shield” that mechanically lowers during “some sort of lockdown” for “blocking out any and all sunlight”; the protective parent is the girl’s mother, who deploys an unusual instrument to measure and record UV readings in each room; the girl does not seek permission to go out at night, she sneaks out without telling her suffocatingly over- protective mother; the girl obstinately attends “Camp Shield,” a safe place for children who suffer XP to live and play together; she does not avoid her personal Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 17 of 45 Page ID #:606 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 doctor but rather shares a “close bond”; her doctor does not merely discuss the girl’s physical condition with the mother: the doctor mediates to explain how the girl is in love and escapes home every night; the boy repeatedly expresses that he is “angry”; the boy’s parents are active characters in the storyline and struggle with poverty and counsel the boy to work multiple jobs, go to junior college, and abandon his scholarship hunt; the girl is friends with a “sweet homeless” character who plays saxophone, only comes out at night because he is afraid of aliens, guides her to the boy’s home, and accompanies her on her first bus ride; the boy arranges for the girl to experience an elaborate “beach” mock-up at his high school pool replete with sand, warm water and “a hundred candles”; and the boy is upset that the girl stood him up at his swim meet. Finally, when the boy campaigns to re-establish contact with her, he sits a determined vigil for three days out on her front lawn until she relents, and the two ultimately marry in a Twilight-like inspired wedding. One conspicuous and crucial difference is how Plaintiff’s Work frames the girl’s exposure to the sunrise – a key plot device in the films. Unlike the Original Film and Midnight Sun, the girl is not exposed because her watch stopped or because she got swept up in a romantic evening. Instead, in Plaintiff’s Work the boy falls off a cliff and is rendered unconscious as sunrise approaches, and the girl is confronted with a pre-dawn moral dilemma: run to save herself or stay and protect the boy. III. LEGAL ARGUMENT A. Plaintiff’s Copyright Infringement Claim Fails as a Matter of Law. 1. The Standard for Deciding Non-Infringement on a Motion to Dismiss. “[W]hen the copyrighted work and the alleged infringement are both before the court, capable of examination and comparison, non-infringement can be determined on a motion to dismiss.” Christianson v. W. Pub. Co., 149 F.2d 202, 203 (9th Cir. 1945) (citing cases); Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1130 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 18 of 45 Page ID #:607 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 (C.D. Cal. 2007).2 “For fifty years, courts have followed this rather obvious principle and dismissed copyright claims that fail from the face of the complaint (and in light of all matters properly considered on a motion to dismiss.)” Id. at 1130. Copyright infringement claims are routinely dismissed at the pleading stage when a comparison of the works reveals no substantial similarity in protectable expression. Id. at 1130-31; Christianson, 149 F.2d at 203; Identity Arts v. Best Buy Enter. Servs. Inc., No. C05-4656 PJH, 2007 WL 1149155, at *8-18 (N.D. Cal. Apr. 18, 2007). To maintain a claim for copyright infringement, a plaintiff must be able to establish that it owns a valid copyright and that the defendant copied elements of the work that are subject to copyright protection. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Copyright law protects the expression of ideas, not the ideas themselves. See 17 U.S.C. § 102(b). “[C]opyright protection does not extend to historical or contemporary facts, material traceable to common sources or in the public domains, and scenes a faire.” Chase-Riboud v. Dreamworks, Inc., 987 F. Supp. 1222, 1226 (C.D. Cal. 1997) (citation omitted). The plaintiff must demonstrate that not only did copying occur, but that the two works are substantially similar in those elements which are protected by the Copyright Act. See Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002); Williams v. Crichton, 84 F.3d 518, 587 (2d Cir. 1996). The substantial similarity test contains an extrinsic and intrinsic component. Only the extrinsic test applies at the pleading stage. See Funky Films, Inc. v. Time Warner Entm’t Co. L.P., 462 F.3d 1072, 1077 (9th Cir. 2006). The extrinsic test objectively measures the “articulable similarities between the plot, themes, dialogue, 2 District courts – as this Court did in Silas v. Home Box Office, Inc., No. CV 15- 9732-GW(FFMX), 2016 WL 4409191 (C.D. Cal. Aug. 17, 2016) – routinely consider the copyrighted works at issue, irrespective of whether the materials are attached to the complaint in ruling on the dismissal motion. See Zella, 529 F. Supp. 2d at 1131-32 (reviewing works on a motion to dismiss a copyright claim); Sams v. Yahoo! Inc, 713 F.3d 1175, 1179 (9th Cir. 2013) (same). Defendants have filed a Notice of Lodging, lodging the Original Film and have secured permission to submit Midnight Sun via a password protected link. (D.E 40). Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 19 of 45 Page ID #:608 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 mood, setting, pace, characters, and sequence of events.” Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003). Without extrinsic similarity, a copyright claim cannot survive dismissal. Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994) (“plaintiff who cannot satisfy the extrinsic [similarity] test necessarily loses.”). In applying the extrinsic test, the Court must “filter out and disregard the non- protectable elements,” such as stock ideas, concepts, as well as scenes a faire – situations and incidents that flow naturally from the general plot line. Funky Films, 462 F.3d at 1077. Unprotectable elements – unoriginal and stock situations, characters and themes – must be disregarded. See Gilbert v. New Line Prods., Inc., No. CV 09-02231 RGK (RZx), 2010 U.S. Dist. LEXIS 141516, at *13 (C.D. Cal. 2010) (“general similarities … are not protected under federal copyright law”). After filtering and disregarding the unprotectable elements, the Court “must take care to inquire only whether ‘the protectible elements, standing alone, are substantially similar.’” Cavalier, 297 F.3d at 822; Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1446 (9th Cir. 1994) (“[T]he party claiming infringement may place ‘no reliance upon any similarity in expression resulting from’ unprotectable elements.”). The protectable elements must show “not just ‘similarity,’ but substantial similarity,’ and such similarity must be measured at the level of the concrete ‘elements’ of each work, rather than at level of the basic ‘idea,’ or ‘story’ that it conveys.” Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1179 (C.D. Cal. 2001) (emphasis in original). Merely showing that the second work is a copy is insufficient. The plaintiff must also show illegality, which requires a sharper focus. See Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989) (despite defendant’s admission of copying, plaintiff’s copyright infringement claim was nonetheless defective as a matter of law because the defendant did not copy protected expression); Newton v. Diamond, 388 F.3d 1189, 1192-93 (9th Cir. 2004) (“even where the fact of copying is conceded, no Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 20 of 45 Page ID #:609 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 legal consequences will follow from that fact unless the copying is substantial”).3 The copying must be both quantitatively and qualitatively sufficient. On a 12(b)(6) dismissal motion, a court must accept well-pleaded factual allegations as true, but should not accept conclusions unsupported by the facts alleged, legal conclusions, bald assertions or unwarranted inferences. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to survive dismissal, a plaintiff must plead “more than a sheer possibility that a defendant has acted unlawfully”). Similarly, the Court need not accept as true allegations negated by either attached documents or material subject to judicial notice.4 A court may dismiss claims of copyright infringement “on a 12(b)(6) motion if it concludes that no reasonable jury could find that the works are substantially similar, or if it concludes that the similarities between the two works pertain only to unprotected elements of the works.” Zella, 529 F. Supp. 2d at 1131 (quotations omitted). The determination rises and falls on a comparison of the works, not charts containing skewed or scattered lists of alleged similarities such as the one created by Plaintiff and attached as Exhibit D to her Complaint. See Williams, 84 F.3d at 583 (“determination of substantial similarity requires a detailed examination of the works themselves”) (internal quotations omitted). The comparison is the real test. 3 Courts have dismissed copyright infringement claims for lack of substantial similarity even where, unlike here, the defendants admit to using the plaintiff’s work. Idema, 162 F. Supp. 2d at 1129, 1143, 1171, 1174; Bensbargains.NET, LLC v. XPbargains.Com, No. 06CV1445BTM, 2007 WL 2385092, at *3 (S.D. Cal. Aug. 16, 2007) (plaintiff must still prove substantial similarity “regardless of how strong its evidence is that Defendants in fact copied from [plaintiff’s work]” (emphasis in original). 4 On a Rule 12(b)(6) motion, a court “may consider material which is properly submitted as part of the complaint on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment.” Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted); Silas, 2016 WL 4409191, at *5 (“[T]he court may consider documents ‘whose contents are alleged in the complaint and whose authenticity no party questions.’”); see Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1159-60 (9th Cir. 2012) (same). A court may also consider the contents of the works by taking judicial notice of them, without attachment to the complaint. See In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405, n.4 (9th Cir. 1996). Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 21 of 45 Page ID #:610 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 [T]he works themselves supersede and control … contrary allegations, conclusions or descriptions of the works contained in the pleadings … When a court is called upon to consider whether the works are substantially similar, no discovery or fact-finding is typically necessary, because what is required is only a [ ] comparison of the works. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (internal quotations omitted); Walker v. Time Life Films, Inc., 784 F.2d 44, 51 (2d. Cir. 1986) (“the works themselves, not descriptions or impressions of them, are the real tests for claims of infringement.”). The Court must compare the works. 2. Plaintiff’s Claim Is Premised on the Wrong Work. Plaintiff claims infringement, but has never seen the not-yet-released Midnight Sun. Instead, she compared her Work to the first draft of the Midnight Sun screenplay written by Kirsten. (See Compl., ¶ 5, “The ‘Midnight Sun’ screenplay deeply incorporates the effective entirety of Wolf’s ‘Midnight Juliet’ treatment; ¶¶ 72-73). This is an erroneous point of comparison, and fatal to her claim. To determine substantial similarity, the court considers “the final version of the [defendant’s work] as presented to the viewing public.” Chase-Riboud, 987 F. Supp. at 1227, n.5 (emphasis added); Walker v. Time Life Films, Inc., 615 F. Supp. 430, 434-35 (S.D.N.Y. 1985) (“The Court considers the works as they were presented to the public,” not “earlier drafts of the screenplay.”); Marshall v. Yates, No. CV-81-1850-MML, 1983 WL 1148, at *2 n.2 (C.D. Cal. Oct. 26, 1983) (refusing to consider “draft screenplays or the shooting script” of motion picture because “[s]uch preliminary drafts are not relevant.”); Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp. 1346, 1360 (C.D. Cal. 1984) (citing Miller v. Universal City Studios, 650 F.2d 1365, 1375 (5th Cir. 1981)) (“[T]he ‘ultimate test of infringement [is] the film as broadcast’ rather than the underlying scripts.”); 4 Nimmer on Copyright § 13.03[D] (courts routinely refuse to consider earlier screenplay drafts). Indeed, as this Court held in Silas, “because published works cause injury under copyright law, courts consider the final version of a film, rather than Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 22 of 45 Page ID #:611 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 unpublished scripts, when determining substantial similarity.” 2016 WL 4409191, at *5 (emphasis added). Kirsten’s screenplay was only the first of many drafts. The subsequent revisions resulted in a film that is remarkably different in several material aspects from the screenplay which Plaintiff proffers as evidence of infringement. (See Declaration of John Rickard, at ¶¶ 4-6). Consequently, Plaintiff has offered this Court a legally irrelevant point of comparison. The Court must consider Midnight Sun, and not the early draft attached as Exhibit C. For this reason alone, Plaintiff’s copyright claim fails as a matter of law. 3. There Is No Substantial Similarity Between Any Protectable Elements in Plaintiffs’ Work and Midnight Sun. Application of the extrinsic test’s factors shows no substantial similarity exists between the protectable elements of Plaintiff’s Work and Midnight Sun. a. There Is No Substantial Similarity in Plot. The plot in Midnight Sun is identical to the Original Film it remade: on the verge of adulthood when her genetic allergy to sunlight is likely to kill her, a socially-isolated musician ventures out at night to play songs in public and meets the teen boy she has been admiring from her bedroom window; but when a romantic date runs late and her exposure to the sunrise triggers her demise, she must take the same advice that she gave to the boy: live your dreams no matter how impossible they seem. In contrast, the Midnight Sun plot differs sharply from the plot of Plaintiff’s Work, where, on the verge of adulthood when her genetic allergy to sunlight is likely to kill her, a socially-isolated writer ventures out at night to write and meets a teen boy and falls for him; but when a romantic date turns tragic with the boy struck unconscious in the wilderness, she must resolve a moral dilemma that tests her love: abandon the boy to escape the sunrise and save herself, or stay with the boy through the sunrise and trigger her deadly disease. Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 23 of 45 Page ID #:612 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Plaintiff cannot claim originality or protectability for plot elements in all three works (one of which indisputably precedes her Work by years), such as an isolated teen female suffering from XP who leaves her sheltered home, meets a boy and tempts late-night fate, and the incidents and events that flow from this basic idea. The Court must filter such elements from consideration before conducting the substantial similarity test. “General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.” Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985). Mere commonality in subject matter does not rise to a claim for copyright infringement. Id. (plot of “criminal organizations that murder healthy young people, then remove and sell their vital organs to wealthy people in need of organ transplants” not protected because “[n]o one can own the basic idea for a story”); Sheldon Abend Revocable Trust v. Spielberg, 748 F. Supp. 2d 200, 208, 210 (S.D.N.Y. 2010) (plaintiff did not own the general plot idea of “a male protagonist, confined to his home, who spies on his neighbors to stave off boredom and, in doing so, discovers that one of his neighbors is a murderer [and] [t]he voyeur is himself discovered by the suspected murderer.”); Astor-White v. Strong, 2016 U.S. Dist. LEXIS 40608, at *12-13 (C.D. Cal. 2016) (works involving plots of “a successful and wealthy African American entertainment mogul with three children involved in the recording industry” were at “a very high level of generality” and therefore not protectable). Instead, when assessing substantial similarity, the Court must “look[ ] beyond the vague, abstracted idea of a general plot”. Berkic, 761 F.2d at 1293. In cases where plots from two works had far more similarities than the works at issue -- and where there was no prior work to explain the few existing similarities (i.e., the Original Film) – the Ninth Circuit still found the plots to be dissimilar as a matter of law. See Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 625 (9th Cir. 2010) (no substantial similarity between works about American war veterans who traveled to Japan to train the Japanese army to combat a samurai uprising); Funky Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 24 of 45 Page ID #:613 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Films, 462 F.3d at 1081 (no substantial similarity between works about “[a] family- run funeral home, the father’s death, and the return of the ‘prodigal son’ who assists his brother in maintaining the family business”); Shame on You Prods. Inc. v. Banks, No. CV-14-03512-MMM-JCx, 2015 WL 4885221, at *16 (C.D. Cal. Aug. 14, 2015) (no substantial similarity between works where the female lead breaks up with her boyfriend, gets intoxicated, has a one-night stand, wakes up disoriented and, due to similar conspiring events, has difficulty getting home). After filtering the unoriginal and unprotectable plot elements of Plaintiff’s Work, including those elements contained in the lawfully-licensed Original Film, the remaining plot elements are so dissimilar to those of Midnight Sun that this Court must find that no substantial similarity of plots exists as a matter of law. b. Midnight Sun’s Theme Derives from the Original Film, Not Plaintiff’s Work. “A work’s theme is its overarching message.” Silas, 2016 WL 4409191, at *16; Kouf, 16 F.3d at 1045 (describing one work’s theme as a “celebrat[ion] [of] family values” and another work’s theme as “the triumph of good over evil”). All three works explore themes of young adult romance, isolation, realizing artistic ambitions, and dealing with pending death. All three works loosely communicate the ideas of moving from darkness into light, from questioning to certainty, or from longing to satisfaction. These themes arise and naturally flow from the premise of a sheltered XP teen who has gone from a lifetime in darkness and isolation into adventures of daytime and love. See Cavalier, 297 F.3d at 823 (“[f]amiliar stock scenes and themes that are staples of literature are not protected” and, hence, cannot serves as grounds for substantial similarity); Campbell v. Walt Disney Co., 718 F. Supp. 2d 1108, 1113 (N.D. Cal. 2010) (“themes of self-reliance and the importance of friendship and teamwork” not protectable because they would predominate any story of competition); Willis v. Home Box Office, No. 00 CIV. 2500 (JSM), 2001 WL 1352916, at *2 (S.D.N.Y. Nov. 2, 2001) (rejecting claim of Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 25 of 45 Page ID #:614 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 similarities based on “themes … common to the talent agency business, or to situation comedies in general or in trivial detail that are not essential to either series.”). After filtering and disregarding the near identical themes contained in the Original Film and Midnight Sun, the remaining thematic elements between Plaintiff’s Work and Midnight Sun are so dissimilar (i.e., the rich-girl meets poor-boy socio- economic theme pervading only Plaintiff’s Work) that this Court must find that no substantial similarity of themes exists as a matter of law. This factor weighs in favor of a finding of non-infringement. c. There Is No Substantial Similarity in Characters. Copyright law provides extremely limited protection to characters, protecting only the “especially distinctive.” Under the Ninth Circuit’s three-part test, characters must: (1) have “physical as well as conceptual qualities,” (2) be “sufficiently delineated,” and (3) be “especially distinctive” in order to receive copyright protection. D.C. Comics v. Towle, 802 F.3d 1012, 1021 (9th Cir. 2015), cert. denied – U.S. – , 136 S. Ct. 1390 (2016). California courts require “a very high degree of similarity between characters.” Silas, 2016 WL 4409191, at *13. Basic character types are not protected. “[T]he less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” Olson v. Nat’l Broad. Co., Inc., 855 F.2d 1446, 1452 (9th Cir. 1988) (citation omitted). Examples of the handful of “especially distinctive” characters that have been found to merit copyright protection include: James Bond, Superman, Scarlett O’Hara, Freddy Krueger, and Rocky Balboa.5 5 Anderson v. Stallone, No. 87-0592 WDK Gx, 1989 WL 206431 (C.D. Cal. Apr. 25, 1989) (Rocky Balboa’s character “… has become identified with specific character traits ranging from his speaking mannerisms to this to his physical characteristics.”); Metro-Goldwyn-Mayer, Inc. v. Am. Hondo Motor Co., Inc., 900 F. Supp. 1287, 1296 (C.D. Cal. 1995) (James Bond is sufficiently delineated – “i.e., his cold-bloodedness; his overt sexuality; his love of martinis, ‘shaken, not stirred;’ … his ‘license to kill’ and use of guns; his physical strength; [and] his sophistication.”); Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584, 587 (8th Cir. 2011) (“The Wizard of Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 26 of 45 Page ID #:615 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Characters with “traits that flow naturally from the works’ shared premises” cannot serve as a basis for infringement. Benay, 607 F.3d at 626. When comparing characters, courts must consider the totality of the character attributes and traits, and their total concept and feel. See Walker, 784 F.2d at 50. (i) The “Boy”: Will Clayman versus Charlie Reed. Plaintiff, as she did in her opposition to defendant Open Road Film LLC’s dismissal motion, is likely to emphasize the purported similarities between the two male leads. In both Plaintiff’s Work and Midnight Sun, the boy character was a star high school swimmer who lost an athletic college scholarship when an accidental shoulder injury snuffed that dream and demoralized him from celebrating his high school graduation. This is insufficient. Setting aside that Will Clayman is neither sufficiently delineated nor especially distinctive to qualify for copyright protection in the first instance, that both boys are competitive swimmers with shoulder injuries who abandoned then revived their dreams of a college scholarship is legally insufficient to give rise to a copyright infringement claim. See Thomas v. Walt Disney Co., No. C-07-4392 CW, 2008 WL 425647, at *5 (N.D. Cal. Feb. 14, 2008) (“Plaintiff provides nothing to support her argument that an injury is a protectable characteristic …”); Benjamin v. Walt Disney Co., No. CV 05-2280GPS, 2007 WL 1655783, at *6 (C.D. Cal. June 5, 2007) (no infringement between works featuring “attractive, likable, 30-year-old females that have escaped their humble past to pursue their dreams of working and living in the big city.”); Alexander v. Murdoch, No. CV 10-5613 PAC JCF, 2011 WL 2802899, at *10 (S.D.N.Y. May 27, 2011) (“stunningly beautiful, fiery, temperamental, Latina mother, with a thick accent, who’s in love with her Caucasian [ex-husband/husband] and always makes him do the right thing, especially where her son is concerned … is a stock character and therefore not copyrightable.”). Oz” and “Gone With the Wind” characters merit protection given their exhibition of consistent, widely identifiable traits). Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 27 of 45 Page ID #:616 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Moreover, the similarities end at the surface. Beyond the superficial, Midnight Sun and Plaintiff’s Work express the boy character in fundamentally dissimilar ways. In Plaintiff’s Work, Will Clayman is an intense young man, bitter from the loss of his scholarship, concerned with his social-economic standing, and driven to attend college. Will defines himself as a swimmer, and holds disdain for having to work on a shrimp boat with his father. Will is “angry,” an emotion he repeatedly declares at the family breakfast table. When the girl does not show up at his swim meet, he explodes and makes her confess her XP. When the girl will not talk to him, he sits on her front lawn for three days straight until they let him in the house. When he wants to go on a romantic date with his girlfriend who he knows has XP and needs to be home before dawn, he drives her an hour away and then hikes her another hour to a spot with no cell phone reception. When the girl runs from him he tries to chase her but falls off a cliff and knocks himself out. When the girl is about to die, he marries her in a chapel. In sharp contrast, Midnight Sun’s Charlie Reed is a prince among young men. He does not need a scholarship to escape his hometown, is ambivalent (but not angry) about losing his scholarship, and does not define himself as a swimmer, alternatively expressing a sullen demeanor and relief about “not having to be that guy” identified simply as a swimmer. Charlie pivots plans with relative ease from attending college to buying a new truck and driving it across the country. Charlie is emotionally even-keeled and popular. When he walks into a nerd high school house party, the host stunningly inquires “What is Charlie Reed doing here?” When he enters a raging high school house party, all the teen revelers greet him by shouting his name in unison. The popular blond cheerleader with the convertible makes a flirty move on him but he takes the female lead’s hand instead. When they go on a date to the big city, he carries her guitar case. When the girl tries to break up with him, he uses humor to break the tension and win her back. When the girl’s hand shakes from XP-related nerve deterioration during a card game, he gently grabs her Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 28 of 45 Page ID #:617 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 hand to hold the cards steady. When he wants to buy the girl a recording session, he sacrifices his truck money savings. When the girl says she can no longer play the guitar, he encourages her to just sing. He helps her search for musical audiences by recording her perform and then uploading it to YouTube where it garnered millions of hits and radio airplay. Will Clayman is no Charlie Reed. Charlie Reed is no Will Clayman. (ii) The “Parent”: Claire Morgan versus Jack Price. In both Plaintiff’s Work and Midnight Sun, the protagonist girl with XP is the daughter of a parent whose spouse died years earlier, who sacrificed a personal life to care for the girl, who gives the girl a significant high school graduation gift, and who handles a meaningful journal at the end. Though the general ideas associated with the parent character are similar, the expressions of these ideas in the two works are not. In Plaintiff’s Work: the girl’s living parent is the mom; the deceased dad perished in a plane crash; the mom was a successful novelist who has been turning away work proposed by her agent; the mom gifts the girl a “Chinese silk journal” for writing; the mom deploys extreme protective measures (e.g., installing lock-down, window shields; using the UV detection device to record copious samples); the mom does not enjoy open and honest communications with her daughter; the mom fails for months to detect her daughter’s nocturnal escapes to the beach; the mom attacks the boy, saying it is his fault; the mom receives from the boy what she had previously gifted to her dead daughter, the Chinese silk journal, with an abstract poem addressed to nobody in particular about the author’s redemption from darkness to light. Contrast Plaintiff’s expressions of the parent character with those expressed in Midnight Sun: the girl’s living parent is the dad (not the mom); the deceased parent died in a car accident (not a plane crash); the dad is a photographer (not a novelist) who continues to work as such for a corporation (and is not on leave); the dad gifts the girl her mother’s acoustic guitar for playing (not a writing journal); the dad is Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 29 of 45 Page ID #:618 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 protective of the girl but permits reasonable requests; he enjoys open and honest communications with his daughter; he immediately detects the girl’s rambling attempt to lie about going to her friend’s home when she is really going to see the boy; the dad never attacks the boy or blames him; and dad gives the boy (not the other way around) his deceased daughter’s songbook with two writings directed at the boy: the lyrics to the hit song named after him, “Charlie’s Song;” and a personal goodbye letter handwritten to him. (iii) The Absence of the Boy’s Parents, the Girl’s Aunt, and the Homeless Jon-Jon. The presence of characters that do not appear in the other work also weighs in favor of finding that the works are not substantially similar. See Funky Films, 462 F.3d at 1078-79. Characters that are prominent in Plaintiff’s Work and which have no counterpart in Midnight Sun include: the boy’s impoverished parents, the girl’s loser-at-love aunt, and a nocturnal jazz man named Jon-Jon. Characters that are in Midnight Sun but not Plaintiff’s Work include: the girl’s best friend (Morgan), Morgan’s nerdy boyfriend, the boy’s buddies who try to lift his cheer, and the blonde cheerleader who tries to woo him. Morgan is a prominent figure in Midnight Sun, and her character tracks that of Misaki in the Original Film. Given the limited copyright protection afforded to characters, the dissimilarity of the characters in Plaintiff’s Work and Midnight Sun, and the differing characters for which no counterpart exists, the Court must find as a matter of law that there is no substantial similarity of character. This factor favors a finding of non- infringement. d. There Is No Substantial Similarity in Setting. There is no similarity in setting. Plaintiff’s Work was originally set in Delray, Florida before moving to Half-Moon Bay, California. (See Compl., Ex. D-24). Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 30 of 45 Page ID #:619 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Midnight Sun is set in a seaside town outside of Seattle, Washington.6 The Original Film, Plaintiff’s Work, and Midnight Sun all share specific settings – the bedroom of a teen girl XP patient; a high school; a secluded spot along the waterfront; a marina; a doctor’s office; and a hospital. Because these unoriginal settings were either previously expressed in the Original Film or naturally flow from a story about any teenager with a life-threatening disease, these settings cannot be considered among Plaintiff’s original expressions for the purpose of the Court’s infringement analysis. See Benay, 607 F.3d at 627-28 (“the Imperial Palace, … the Imperial Army’s training grounds, and battle[fields] [ ] in various places in Japan” were unprotected settings which flowed naturally from the premise of “an American war veteran who travels to Japan to help the Emperor fight a samurai rebellion.”). In addition to being located in a different state, Midnight Sun has several specific settings that do not exist in Plaintiff’s Work, including: a train station platform; an outdoor high school graduation ceremony; a nerd high school house party; a popular high school house party; an ice cream shop; a photographer’s dark room; a train; streets of a big city; a crowded, urban concert venue; a state-of-the-art professional recording studio; and a sailboat sailing before sunset. Because these settings are in Midnight Sun but not in Plaintiff’s Work, these must be counted among the dissimilar settings for the purposes of the Court’s infringement analysis. Plaintiff’s Work has many specific settings that are not in Midnight Sun, including: a luxurious mansion on the wealthy side of town; a small, dilapidated house in a run-down neighborhood on the poor side of town; a private section of a “rich beach;” a stuffed gym for a high school graduation ceremony; Camp Shield for XP children; a public transit bus; a high school swimming pool mocked up as a hot, sandy beach; an ocean cliff an hour’s drive and another hour’s hike from Delray; 6 The setting in the 2017 film Midnight Sun is not, as Plaintiff incorrectly alleges, “Morro Bay, a small California coastal town and fishing community.” (Id. at D-25). This mistake is attributable to Plaintiff’s reliance on the 2013 draft script which, as discussed above, is irrelevant to the present substantial similarity analysis. Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 31 of 45 Page ID #:620 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 hospital surgery room; a small, candlelit wedding chapel; a sailboat sailing after sunrise; and a swim meet at UCLA in sunny southern California. Because these settings are in Plaintiff’s Work but not in Midnight Sun, these must be counted among the dissimilar settings for the purposes of the Court’s infringement analysis. After filtering and disregarding the many unoriginal and unprotectable settings of Plaintiff’s Work, the remaining settings are so few and dissimilar to those of Midnight Sun that this Court must find that no substantial similarity of setting exists. This factor weighs in favor of a finding of non-infringement. e. There Is No Substantial Similarity in Mood. To the extent all three works exhibit varying moods of escapism, romance, melancholy and redemption, the Original Film exhibits them first so they cannot be original to or protectable by Plaintiff’s Work and these moods arise naturally from the premise of a sheltered XP teen aching to get out of the house, pursuing whoever and whatever life offers for attraction, experiencing the hurt of a break-up, knowing that time is running out, and creating art that expresses her journey. Rice, 330 F.3d at 1177 (concluding that the moods of secrecy and mystery in the magic genre are “generic [and] constitute scenes a faire”) (emphasis in original). Moreover, these moods develop differently in the two works. Midnight Sun maintains a lighter, more buoyant mood with the temperamentally-balanced boy and dad roles orbiting the protagonist; whereas Plaintiff’s Work summons a heavier, more dramatic mood with the hyper-protective mom and intense boy pressing on the protagonist. Given the unprotectable and dissimilar moods, this Court must find as a matter of law that no substantial similarity of moods exists. This factor favors a finding of non-infringement. f. There Is No Similarity in Pace. Plaintiff fails to allege any similarity between the pace of her work and Midnight Sun. The pace of Plaintiff’s truncated 31-page treatment inevitably differs Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 32 of 45 Page ID #:621 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 from the pace of a completed film with an approximate running time of 86 minutes. Nonetheless, even the most charitable review reveals a substantially different pace. The girl-boy storyline is linear and streamlined from the beginning of Midnight Sun when she watches him from her window to her posthumous letter to him at the end, sparingly broken up with medical scenes showing her health decline over the course of the film. In contrast, the boy-girl story in Plaintiff’s Work is broken up more frequently with non-medical scenes, trips to Camp Shield, a focus on the boy’s home life, including several scenes with the boy’s poor parents, and the time spent by the girl receiving wisdom and getting advice from the homeless sage, Jon-Jon. Given the dissimilar paces, this Court must find that no substantial similarity of pace exists and weigh the dissimilarities in favor of a finding of non-infringement. g. There Is No Substantial Similarity in Dialogue. The Complaint fails to allege any similarities in the dialogue – a failing which is fatal to her claim. See Olson, 855 F.2d at 1450 (“[E]xtended similarity of dialogue [is] needed to support a claim of substantial similarities.”); Risdon v. Walt Disney Prods., No. 83 CIV. 6595, 1984 WL 1181, at *3 (S.D.N.Y. Nov. 2, 1984) (“Aside from the substance of the stories in the two works, the dialogue is an important basis of comparison.”). The complete lack of any alleged similarity in dialogue underscores the dissimilarity of the works. Moreover, most of the dialogue in Plaintiff’s Work is spoken by characters or about subject matter wholly absent from Midnight Sun. (See, e.g., Compl., Ex. A at p. A5 (the boy grunts through breakfast with his parents), A16 (girl’s mom wakes her up for a doctor visit), A17 (homeless man counsels the girl about love), A18 (girl and boy have a spirited spat about love and her failure to attend his swim meet), A19 (boy’s mom affirms to the boy his goodness), A20 (doctor runs interference for girl with her mom, explaining that the girl is in love), A21 (girl discusses with her mom how they tried to get deceased dad to stop smoking), A21 (boy challenges his dad to follow his own advice), A23 (girl’s aunt “blubbering away” about her own dating life Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 33 of 45 Page ID #:622 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 and checking in on girl), A24 (girl persuading her mom to resume writing novels), A27-28 (girl converses with her aunt in hospital waiting room because the boy had a concussion), A29 (girl apologizes to mom for lying, describes “glorious” feeling of watching the sun rise for twenty minutes), A30-31 (girl’s aunt argues to girl’s mom about the boy on the front lawn screaming to get an audience), and A32 (the boy tells deceased girl’s mom that girl wanted mom to have her writing journal)). Plaintiff’s failure to allege any similarities in dialogue is no accident. None exist. Consequently, this factor weighs in favor of a finding of non-infringement. h. There Is No Substantial Similarity in Sequence of Events. “The sequence of events refers to the actual sequence of the scenes, not just having similar scenes out of sequence.” Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043, 1072 (C.D. Cal. 2010). The sequencing of events in the Original Film and Midnight Sun are virtually identical. (See II.A, supra). Paragraph 28 of the Complaint alleges a sequence of twenty-one (21) events that define the Original Film, a sequence that holds true for nearly all of Midnight Sun. To the extent the sequence of events of Plaintiff’s Work align only in the most general way (XP girl sees boy, meets boy, dates boy, suffers exposure on date with boy, rejects boy, reunites with boy), it was previously expressed in the Original Film, is not protectable in Plaintiff’s Work, and must be filtered from consideration when performing the substantial similarity test. To the extent Plaintiff’s Work and Midnight Sun have similar events absent from the Original Film, those events must be in the same sequence, not out of order, but they are not. Given the overall dissimilarity of sequenced events, this Court must find that no substantial similarity of sequence of events exists and that this factor favors a finding of non-infringement. i. Plaintiff’s Chart of Alleged Similarities Should Be Rejected. Courts have consistently rejected endeavors to manufacture the appearance of a valid copyright claim by pointing to a skewed, self-serving chart of plucked-out Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 34 of 45 Page ID #:623 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 purported similarities between two works. See, e.g., Bernal, 788 F. Supp. 2d at 1061 (rejecting “a 133-page chart indicating a side-by-side comparison of certain events, dialogue, and characters”); Kouf, 16 F.3d at 1045-46 (finding works not to be substantially similar despite a “compilation of ‘random similarities scattered throughout the works’”). Courts are “particularly cautious” in finding infringement based on a list of “random similarities scattered throughout works.” Shame on You, 2015 WL 4885221, at *16. Scattershot lists of random fragments and characteristics are “inherently subjective and unreliable,” Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984), and “cannot support a finding of substantial similarity.” Williams, 84 F.3d at 590. j. Leave to Amend Would Be Futile. The scales tilt toward dissimilarity in the weighing of every legal factor within the extrinsic test. No additional pleadings can influence the lopsided tilt of this heavy reality. Plaintiff’s infringement claim should therefore be dismissed with prejudice. See Zella, 529 F. Supp. 2d at 1130-31; Gilbert v. New Line Prods., Inc., No. CV 09-02231 RGK (RZx), 2009 WL 7422458, at *6 (C.D. Cal. Nov. 16, 2009) (dismissing plaintiff’s claim with prejudice after determining that there was no substantial similarity because “no additional facts would allow [plaintiff] to prevail in her claim”); Campbell, 718 F. Supp. 2d at 1156 (denying leave to amend where works were not substantially similar as a matter of law). As this Court previously held in Silas, “[i]n the context of copyright, when a plaintiff is unable to demonstrate that a defendant’s work is substantially similar to its copyrighted work, the court may dismiss a plaintiff’s case with prejudice.” 2016 WL 440919, at *20. B. Plaintiff’s Other Claims Are Legally Deficient. Plaintiff alleges – but fails to state – other claims in addition to her copyright infringement claim. The Court must dismiss these claims pursuant to Rule 12(b)(6). Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 35 of 45 Page ID #:624 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -24- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 1. The Breach of Contract Claim Is Barred by the Statute of Limitations, Novation, Statute of Frauds and Lawful Remake. Plaintiff alleges that two oral contracts were breached. First, Plaintiff alleges that she entered into an oral contract with Rickard and Ou wherein: Plaintiff would deliver her treatment; in exchange, Rickard and Ou would attach her as writer/director (“Original Contract”). (Compl., ¶ 95). Second, Plaintiff alleges that she entered into a subsequent oral contract with Rickard and Ou wherein: Plaintiff would forego bringing her alleged claims for breach of the Original Contract based on Rickard and Ou’s failure to attach her to the project; in exchange, Rickard and Ou would promise not to use or disclose Plaintiff’s Work (“Second Contract”). (Id., ¶¶ 61, 96). Plaintiff cannot maintain a claim for breach of either contract. a. The Original Contract Is Barred by Time and Novation. Under California law, a claim for breach of an oral contract is subject to a two- year statute of limitations. Cal. Civ. Proc. Code § 339; see Taguinod v. World Sav. Bank, FSB, 755 F. Supp. 2d 1064, 1072 (C.D. Cal. 2010). Here, Plaintiff alleges the oral Original Contract was breached, at the latest, in “early 2013” when Rickard informed her – expressly, unequivocally and in writing – that she would not be attached as the director of Midnight Sun. (Compl., ¶ 57). The claim expired in early 2015. The complaint was filed in December 2016. Consequently, the Original Contract is barred by California’s two-year statute of limitations. “Novation is the substitution of a new obligation for an existing one.” Cal. Civ. Code § 1530. “The effect of a novation is to make the original agreement a nullity (that is, void and of no effect), and the rights of the new parties are governed solely by the new agreement.” Eckart v. Brown, 34 Cal. App. 2d 182, 187 (1939); see also Davisson v. Faucher, 105 Cal. App. 2d 445, 447 (1951) (“By the novation the old oral contract, and all obligations arising out of it, were ‘canceled and obliterated as completely as though it had never had existence.’”) (quoting Beckwith Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 36 of 45 Page ID #:625 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -25- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 v. Sheldon, 165 Cal. 319, 323 (1913)). Here, Plaintiff alleges that she “would forego pursuing” her claims for breach of the Original Contract in exchange for entering the Second Contract. (Compl., ¶ 61 (emphasis added)). This is a novation. Plaintiff admits she agreed to nullify the Original Contract when she entered into the Second Contract. Having voided the Original Contract, Plaintiff is barred by the doctrine of novation from claiming breach of the Original Contract. b. The Second Contract Is Barred by the Statute of Frauds, Statute of Limitations, and Lawful Derivation. Plaintiff’s claim of breach of the Second Contract equally fails. The Statute of Frauds requires that any contract which cannot be performed within one year must be in writing. See Cal. Civ. Code § 1624(a)(1) (“[a]n agreement that by its terms is not to be performed within a year from the making thereof” must be reduced to writing). The Second Contract is unenforceable under the Statute of Frauds, as it requires Rickard and Ou to refrain from using or disclosing Plaintiff’s Work indefinitely. (Compl., ¶ 61). Such a permanent obligation cannot be performed within one year. Because the Second Contract was not reduced to writing, it is barred by the Statute of Frauds and cannot give rise to a viable breach claim. See Summerhays v. Scheu, 10 Cal. App. 2d 574, 576-77 (1935) (oral agreement to refrain from use of inventions cannot be performed within one year, and thus barred by the statute of frauds). Plaintiff’s Complaint alleges that the Second Contract was breached no later than July 11, 2013 – the date when Rickard’s legal representatives sent her a letter claiming that Plaintiff’s Work was derived from the Original Film, and that Rickard possessed the exclusive right to exploit all of the underlying rights in the Original Film. (“Letter”). (Compl., ¶ 65). This Letter unequivocally placed Plaintiff on notice of Rickard’s view that she possesses no rights in her Work and was incapable of restricting Rickard and Ou from developing Midnight Sun. (See Declaration of Ryan Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 37 of 45 Page ID #:626 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -26- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Goodell (“Goodell Decl.”), at ¶ 3, Ex. 1).7 This Letter triggered the two-year statute of limitations which expired in July of 2015. Consequently, Plaintiff’s claim for breach of the Second Contract, filed in December 2016, should be dismissed. Finally, the validity of Plaintiff’s claim for breach of the Second Contract depends on establishing that Rickard and Ou actually used her Work. For all the reasons discussed above, Midnight Sun is a lawful and faithful remake derived from the Original Film, which is not substantially similar to Plaintiff’s Work. Plaintiff cannot, therefore, establish a breach of the Second Contract. See Hollywood Screentest of Am., Inc. v. NBC Universal, Inc., 151 Cal. App. 4th 631, 649 (2007) (granting summary judgment on express and implied contract claims because evidence of independent creation prevented the required element of use); 5 Nimmer & Nimmer, Copyright (2015) The Law of Ideas, § 19D.07[A], p. 19D–86 (rel. 72– 4/2007) (“Regardless of the legal theory used to impose an obligation on the idea- recipient, the recipient is legally obligated to pay only if the idea that the recipient used was the one actually received from plaintiff.”). c. Non-Parties to Both Alleged Contracts, Wrigley Pictures and MSLLC, Cannot Be Sued for Breach Thereof. Under California law, a claim for breach of contract, by its very nature, requires a binding agreement between the parties. See Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 514 (1994) (“Contract law exists to enforce legally binding agreements between parties”); Richman v. Hartley, 224 Cal. App. 4th 1182, 1186 (2014) (“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.”); McKell v Wash. Mut., Inc., 142 Cal. App. 4th 1457, 1489 (2006) (“cause of action for breach of contract requires pleading of a contract”); see also Osei v. 7 While not attached to the Complaint, the Court may incorporate the Letter by reference into the complaint for purposes of deciding a dismissal motion. See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1159-60 (9th Cir. 2012). Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 38 of 45 Page ID #:627 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -27- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 Countrywide Home Loans, 692 F. Supp. 2d 1240, 1253 (E.D. Cal. 2010) (“A cause of action for breach of contract requires: (1) that a contract exists between the parties”) (emphasis added). Accordingly, as a matter of law (and common-sense), a non-party to a contract cannot be held liable for a breach of that contract. See Clemens v. Am. Warranty Corp., 193 Cal. App. 3d 444, 452 (1987) (“Under California law, only a signatory to a contract may be liable for any breach.”). Here, Wrigley Pictures and MSLLC were not parties to either the Original Contract or Second Contract and, therefore, cannot be held liable for breaching those contracts. While Plaintiff endeavors to dodge this fatal fact by claiming that Rickard and Ou assigned rights in the Midnight Sun project to Wrigley Pictures and MSLLC (Compl., ¶ 97), “the mere assignment of rights under an executory contract does not cast upon the assignee any of the personal liabilities imposed by the contract upon the assignor.” Weidner v. Zieglar, 218 Cal. 345, 349 (1933). Stated otherwise, even if Rickard and Ou assigned rights in the Original Contract and Second Contract to Wrigley Pictures and MSLLC, that does not equate to a finding that Rickard and Ou assigned the attendant obligations to Wrigley Pictures and MSLLC. Moreover, “[t]o 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).’” Gerritsen v. Warner Bros. Entm’t Inc., 116 F. Supp. 3d 1104, 1127 (C.D. Cal. 2015). Here, Plaintiff has pled neither the terms of express assumption nor facts giving rise to implied assumption. Instead, Plaintiff merely alleges “on information and belief” that Wrigley Pictures and MSLLC became bound as successors in interest by “either by the express terms of the assignments or by operation of law.” (Compl., ¶ 97). Plaintiff’s “conclusory allegations regarding unspecified terms of a purported agreement are insufficient to allege a plausible successor liability claim” under either an express or implied Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 39 of 45 Page ID #:628 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -28- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 assumption of liability. See Gerritsen, 116 F. Supp. 3d at 1128 (finding book author failed to allege plausible claims of successor-in-interest liability against motion picture company’s parent corporation). 2. The Implied Covenant Claim Is Legally Superfluous. Plaintiff’s Breach of the Implied Covenant of Good Faith and Fair Dealing claim is based on allegations identical to those made in support of the accompanying breach of contract claim. Consequently, this claim should be dismissed for the same reasons the breach of contract claim should be dismissed; specifically, it is barred by the statute of limitations, the doctrine of novation and the statute of frauds, and also inapplicable to Wrigley Pictures and MSLLC. Moreover, even if Plaintiff’s Breach of Contract claim were not defective (it is), the claim for breach of the implied covenant of good faith and fair dealing should nonetheless be disregarded as “superfluous.” See Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 327 (2000) (“where breach of an actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous.”). “[Where] allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.” Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1400-01 (1990) (affirming trial court’s sustaining of demurrer without leave to amend); see also Bionghi v. Metro. Water Dist. Of S. Cal., 70 Cal. App. 4th 1358, 1370 (1999) (affirming dismissal of implied covenant claim that “relies on the same acts, and seeks the same damages” as contract breach claim). Because it is a replica of the Breach of Contract claim, the Breach of Implied Covenant claim is “superfluous” and should be dismissed. Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 40 of 45 Page ID #:629 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -29- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 3. Plaintiff’s Breach of Confidence Claim Fails Because It Is Time- Barred and Because Plaintiff Cannot Establish a Required Element of the Claim. Plaintiff’s Breach of Confidence claim is governed by a two-year statute of limitations. See Cal. Civ. Proc. Code § 339(1) (limitations period for an obligation “not founded upon an instrument of writing” is two years). This is premised on the same conduct alleged in connection Plaintiff’s breach of the Second Contract claim: that Rickard and Ou used Plaintiff’s Work in connection with Midnight Sun. (Cf. Compl., ¶ 96 with ¶ 112). As discussed above, the Letter unequivocally advised of Rickard’s position that Plaintiff possessed no rights in her Work, and demanded that she “immediately cease and desist from distributing the Treatment as it utilizes the underlying rights to the Picture controlled by Mr. Rickard.” This Letter triggers the two-year statute of limitations, and Plaintiff’s claim for Breach of Confidence is time-barred. Lee v. Escrow Consultants, Inc., 210 Cal. App. 3d 915, 921 (1989) (“once the plaintiff becomes aware of facts which would make a reasonably prudent person suspicious, the duty to investigate arises, and he may then be charged with knowledge of facts that would have been discovered by such an investigation.”). Plaintiff’s Breach of Confidence further fails in that she must establish that Rickard and Ou disclosed or used confidential information. Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1227 (9th Cir. 1997). As discussed above, Plaintiff is incapable of establishing that Rickard and Ou used her Work as Midnight Sun was lawfully derived from the pre-existing Original Film. See Hollywood Screentest of Am., Inc., 151 Cal. App. 4th at 649 (granting summary judgment on breach of confidence claim because evidence of independent creation prevented the required element of use). Additionally, Plaintiff’s inability to establish substantial similarity precludes her from establishing that Rickard and Ou used any confidential information. See A Slice of Pie Prods., LLC v. Wayans Bros. Entm’t, 487 F. Supp. 2d 41, 52 (D. Conn. 2007) (applying California law) (“given the Court’s assessment of lack of substantial similarity between the works with respect Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 41 of 45 Page ID #:630 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -30- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 to, inter alia, their respective plots, elements, and themes, which assessment is used to infer use, plaintiff has insufficient evidence of use by defendants of plaintiff’s screenplay and/or the ideas therein.”). Because Plaintiff cannot establish an essential element of her Breach of Confidence claim, the Court should dismiss the claim. 4. The Breach of Fiduciary Duty Claim Fails Absent a Fiduciary Relationship and Absent Substantial Similarity. Under California law, not every “pitch” triggers a heightened fiduciary obligation. See Davies v. Krasna, 14 Cal. 3d 502, 511 (1975) (noting that a pitch to a “prospective purchaser” who is not otherwise a fiduciary “may impose upon defendant a duty to refrain from unauthorized disclosure of the idea, but [is] insufficient to impose upon him the fiduciary-like duties that arise from a confidential relationship.”); Nwabueze v. AT & T Inc., No. C 09-1529 SI, 2011 WL 332473, at *20 (N.D. Cal. Jan. 29, 2011) (dismissing breach of fiduciary duty claim where plaintiff’s passing of confidential information to defendant did not by itself create fiduciary relationship). Here, like in Davies, Rickard and Ou were not fiduciaries to Plaintiff; rather, Rickard and Ou were merely prospective purchasers of Plaintiff’s treatment. Plaintiff’s Complaint alleges insufficient facts to establish a fiduciary relationship. Moreover, the Breach of Fiduciary claim fails because the works at issue are not substantially similar. See Ryder v. Lightstorm Entm’t, Inc., 246 Cal. App. 4th 1064, 1073 (2016), review denied (July 13, 2016) (stating that for “fiduciary duty claims, the works must be substantially similar”) (emphasis in original). 5. The Fraud Claim Is Time-Barred and Lacks Requisite Specificity. Plaintiff premises her fraud claim on three statements and/or omissions allegedly made by Rickard and Ou: that they would attach her as a writer or director if they used one of the ideas she pitched (“First Statement”) (Compl., ¶ 123(a)); that they would attach her as the writer/director if they used her Treatment in remaking Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 42 of 45 Page ID #:631 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -31- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 the Original Film (“Second Statement”) (Id., ¶ 123(b)); and that they made “affirmative representations and/or misleading omissions and/or false promises” about their alleged intent to use Midnight Juliet (“Third Statement”) (Id., ¶ 125 (emphases added).) Plaintiff’s fraud claim is subject to a three-year statute of limitations. See Cal. Civ. Proc. Code § 338(d) (stating “[a]n action for relief on the ground of fraud or mistake” is three years). The limitations period starts to run from the time when the plaintiff discovers or could have discovered the alleged fraud. See Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807 (2005). Here, Plaintiff discovered the alleged fraud no later than July 11, 2013 – the date she was expressly advised: (i) that she would not be attached as a writer/director and (ii) of Rickard’s position that Plaintiff’s Work was derived from rights he already held in the Original Film. (See Compl., ¶ 57 (stating that in “early 2013” Rickard informed Plaintiff that she “would not be attached as writer-director”) (emphasis in original), ¶ 65 (stating that on “July 11, 2013” Rickard’s representatives sent a letter “claiming that Midnight Juliet was derived from rights held by Rickard in Midnight Sun.”); see also Goodell Decl., Ex. 1). The statute of limitations expired on July 11, 2016, so Plaintiff’s Fraud claim is time-barred. Pursuant to both California and federal law, fraud allegations must be pled with “sufficient specificity to allow [a] defendant to understand fully the nature of the charge made.” Roberts v. Ball, Hunt, Hart, Brown & Baerwitz, 57 Cal. App. 3d 104, 109 (1976); see Fed.R.Civ.P. 9(b) (“[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”). When pleading fraud, “[i]t is essential that the facts and circumstances which constitute the fraud should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” Scafidi v. W. Loan & Bldg. Co., 72 Cal. App. 2d 550, 553 Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 43 of 45 Page ID #:632 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -32- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 (1946) (emphases added). In order to meet this heightened pleading standard, a plaintiff must allege facts that show “the who, what, where, and when of the alleged fraud.” Ackerman v. Nw. Mut. Life Ins. Co. 172 F.3d 467, 469 (7th Cir. 1999). Here, the Third Statement lacks the requisite particularity because it fails to specify whether the alleged fraud was perpetuated through a representation or an omission and, thus, fails to apprise Rickard and Ou, at the very least, if they did something or did not do something. Accordingly, Plaintiff’s Fraud claim lacks the requisite specificity and must be dismissed. 6. Boilerplate Vicarious Liability Claims Fail to Plead Sufficient Facts as to Wrigley Pictures and MSLLC. Although Plaintiff alleges no interaction with Wrigley Pictures and MSLLC, she has nevertheless named them as defendants to the Breach of Confidence, Breach of Fiduciary Duty and Fraud claims “under one or more applicable theories of vicarious liability, including agency, ratification, concert of action, aiding and abetting, and/or successor liability by principles of assignment.” (Compl., ¶¶ 113, 120, 131, 138). These open-ended boilerplate allegations of vicarious liability are insufficient as a matter of law. See Gerritsen, 116 F. Supp. 3d at 1146-48 (finding plaintiff failed to plead sufficient facts of agency or ratification); In re Toyota Motor Corp., 785 F. Supp. 2d 883, 911 (C.D. Cal. 2011) (striking boilerplate agency/ratification allegations as running afoul of Twombly). Accordingly, the Court should dismiss these claims as to Wrigley Pictures, MSLLC and Kirsten. IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Complaint by dismissed with prejudice. Dated: February 1, 2017 STROOCK & STROOCK & LAVAN LLP JAMES G. SAMMATARO By: /s/ James G. Sammataro James G. Sammataro Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 44 of 45 Page ID #:633 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- CERTIFICATE OF SERVICE LA 52037902 S T R O O C K & S T R O O C K & L A V A N L L P 20 29 C en tu ry P ar k E as t Lo s A ng el es , C al ifo rn ia 9 00 67 -3 08 6 CERTIFICATE OF SERVICE I hereby certify that on February 1, 2017, a copy of the foregoing DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s EM/ECF System. /s/ James G. Sammataro James G. Sammataro Case 2:16-cv-09116-GW-KS Document 44 Filed 02/01/17 Page 45 of 45 Page ID #:634 1 STROOCK & STROOCK & LAVAN LLP JAMES G. SAMMAT ARO (State Bar No. 204882) 2 jsammataro(ii)stroock. com CRYSTAL Y. JONELIS (State Bar No. 265335) 3 cjonelis@stroock.com 2029 Century Park East 4 Los Angeles, CA 90067-3086 Tel: 310.556.5800 Fax: 310.556.5959 5 Email: lacalendar@stroock.com 6 Attorneys for Defendants JOHN RICKARD, WRIGLEY PICTURES, ALAN OU, 7 MIDNIGHT SUN, LLC and ERIC KIRSTEN 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 11 BETHANY ASHTON WOLF, an ) 12 individual ); Plaintiff, 13 ) 14 v. ) JOHN RICKARD, an individual; ) 15 WRIGLEY PICTURES, a California ) Comoration; ALAN OU, an individual; )) 16 BOIES/SCHILLER FILM GROUP LLC, a Florida limited liabili!y company; ) 17 MIDNIGHT SUN, LLC, a Nevada ) limited liability company; ERIC ) 18 KIRSTEN, an individual; OPEN ROAD ) FILMS, LLC, a Delaware limited ) 19 liability company; and DOES 1 through ) 20; ) 20 21 22 24 25 26 Defendants. ~ j Case No. 2:16-CV-09116 GW (KSX) RON. GEORGE H. WU DECLARATION OF JOHN RICKARD IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT fDefendants' Notice of Motion and Motion to Dismiss Plaintiffs Complaint, Declarations of Devin Andre and Ryan Goodell and Notice of Lodging filed and fPropqsed] Order lodged concurrently herewith] Date: March 16, 2017 Time: 8:30a.m. Room: 9D Action Filed: December 8, 2016 Case 2:16-cv-09116-GW-KS Document 44-1 Filed 02/01/17 Page 1 of 4 Page ID #:635 p.., ~ ~ z <: ~ 00 > 0 <: <') I ' ~ [' I- ~ \D ~ 1.'-l g .24 0'> ~ ~ ~ u 0... ·;:: 0 (:;· § 0 ~ :~ ~-a: ;; u [--< u "' f./). (.i\ v 01 v Od 0 bf.; 01 :::::: ~ < u 0 0 ,__; 0 a: r v; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 DECLARATION OF JOHN RICKARD I, John Rickard, under penalty of perjury, swear pursuant to 28 U.S.C. § 1746, that the following is true and correct: 1. I am over the age of eighteen, have personal knowledge of the facts stated herein and am otherwise sui juris. 2. I am one of the producers of the film, Midnight Sun, and submit this declaration in support of the motion to dismiss filed on behalf of the defendants, BSFG, Midnight Sun, LLC, John Rickard, Wrigley Pictures, Alan Ou and Eric Kirsten ("Kirsten") (collectively, "Defendants"). If called as a witness, I could and would testify competently to the matters stated herein. 3. I have reviewed the complaint filed by the plaintiff, Bethany Ashton Wolf ("Complaint"), as well as the accompanying exhibits. 4. Exhibit C to the Complaint is a preliminary draft of the screenplay authored by Kirsten ("Draft Screenplay"). The initial version of the Draft Screenplay was submitted by Kirsten in May of 2013. 5. The initial version was subsequently edited and materially revised prior to the commencement of principal photography for the film, Midnight Sun. For example, two additional writers were engaged by MSLLC to further develop the script, and the Draft Screenplay was revised on multiple occasions between June of 2014 and November of 2015, prior to evolving into a shooting script ("Shooting Script"). 1 6. Additionally, the Shooting Script was further revised during the such as an opening monologue, not contained withm any subsequent 25 revisions of the Draft Screenplay, or the resulting Shooting Script. 26 I I I Case 2:16-cv-09116-GW-KS Document 44-1 Filed 02/01/17 Page 2 of 4 Page ID #:636 1 7. The version of the Film which the Defendants request to file in support 2 of their motion to dismiss is the "sold" version of the Film and the version currently 3 intended for theatrical release. 4 I declare under the penalty of perjury under the laws of the United States of 5 America that the foregoing is true and correct 6 Executed on January_, 2017 in Los Angeles, California. 7 8 Printed Name: Signature 9 10 17 18 19 20 21 22 Case 2:16-cv-09116-GW-KS Document 44-1 Filed 02/01/17 Page 3 of 4 Page ID #:637 p... ;-I ;-I z < '-0 OC! > 0 < "' I ' ~ ['--...... ~ \[) 0 i-Ll 8 ;.:~':: u p... ·a 0 c· .1;1 0 ;:l ·~ ~-,.... ~ ::>:: 0 u r-- u V'l~ Vl 0"\ 0 0l 0 «3 0 ~ ('] ;.: ..;:: u 0 0 ....) 0 ::>:: ,..., (/] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 25 26 CERTIFICATE OF SERVICE I hereby certify that on February 1, 2017, a copy of the foregoing DECLARATION OF JOHN RICKARD IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court's EM/ECF System. Is/ James G. Sammataro James G. Sammataro Case 2:16-cv-09116-GW-KS Document 44-1 Filed 02/01/17 Page 4 of 4 Page ID #:638 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 1 of 20 Page ID #:639 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 2 of 20 Page ID #:640 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 3 of 20 Page ID #:641 Exhibit 1 - Page 2 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 4 of 20 Page ID #:642 Exhibit 1 - Page 3 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 5 of 20 Page ID #:643 Exhibit 1 - Page 4 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 6 of 20 Page ID #:644 Exhibit 1 - Page 5 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 7 of 20 Page ID #:645 Exhibit 1 - Page 6 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 8 of 20 Page ID #:646 Exhibit 1 - Page 7 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 9 of 20 Page ID #:647 Exhibit 1 - Page 8 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 10 of 20 Page ID #:648 Exhibit 1 - Page 9 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 11 of 20 Page ID #:649 Exhibit 1 - Page 10 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 12 of 20 Page ID #:650 Exhibit 1 - Page 11 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 13 of 20 Page ID #:651 Exhibit 1 - Page 12 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 14 of 20 Page ID #:652 Exhibit 1 - Page 13 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 15 of 20 Page ID #:653 Exhibit 1 - Page 14 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 16 of 20 Page ID #:654 Exhibit 1 - Page 15 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 17 of 20 Page ID #:655 Exhibit 1 - Page 16 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 18 of 20 Page ID #:656 Exhibit 1 - Page 17 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 19 of 20 Page ID #:657 Case 2:16-cv-09116-GW-KS Document 44-2 Filed 02/01/17 Page 20 of 20 Page ID #:658 1 STROOCK & STROOCK & LAVAN LLP JAMES G. SAMMAT ARO (State Bar No. 204882) 2 i sammataro{j:iJstroock. com CRYSTAL Y. JONELIS (State Bar No. 265335) 3 gonelis@stroock.com 2029 Century Park East 4 Los Angeles, CA 90067-3086 Tel: 310.556.5800 Fax: 310.556.5959 5 Email: lacalendar@stroock.com 6 Attorneys for Defendants JOHN RICKARD, WRIGLEY PICTURES, ALAN OU, 7 MIDNIGHT SUN, LLC and ERIC KIRSTEN 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 11 BETHANY ASHTON WOLF, an ) 12 individual Plaintiff, l 13 ) 14 v. ) JOHN RICKARD, an individual; ) 15 WRIGLEY PICTURES, a California ) Corporation; ALAN OU, an individual; )) 16 BOIES/SCHILLER FILM GROUP LLC, a Florida limited liability company; ) 17 MIDNIGHT SUN, LLC, a Nevada ) limited liability company; ERIC ) 18 KIRSTEN; an individual; OPEN ROAD ) FILMS, LLC, a Delaware limited ) 19 liability company; and DOES 1 through ) 20; ) 20 21 22 24 25 26 Defendants. l l Case No. 2:16-CV-09116 GW (KSX) HON. GEORGE H. WU DECLARATION OF RYAN GOODELL IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT rDefendants' Notice of~1otion and Motion to Dismiss Plaintiffs Complaint, Declarations of John Rickard and Devin Andre and Notice of Lodging filed and rPropqsed] Order lodged concurrently herewith] Date: March 16, 2017 Time: 8:30a.m. Room: 9D Action Filed: December 8, 2016 Case 2:16-cv-09116-GW-KS Document 44-3 Filed 02/01/17 Page 1 of 5 Page ID #:659 1 DECLARATION OF RYAN GOODELL 2 I, Ryan Goodell, under penalty of perjury, swear pursuant to 28 U.S.C. § 1 3 that the following is true and correct: 4 1. I am over the age of eighteen, have personal knowledge of the 5 stated herein and am otherwise sui juris. 6 2. I am an attorney admitted to practice before this Court and am a 7 with Morris Yom Barnes Levine Krintzman Rubenstein Kohner & Gellman 8 Firm. I submit this declaration in support of the motion to dismiss filed on behalf 9 the defendants, BSFG, Midnight Sun, LLC, John Rickard, Wrigley Pictures, Alan 1 0 and Eric Kirsten. If called as a witness, I could and would testify competently to matters stated herein. 3. 13 regarding my client, John Rickard. A true and correct copy of that letter is .... ~ .. e~. ........... u 14 hereto as Exhibit 1. I declare under the penalty of perjury under the laws of the United States 16 America that the foregoing is true and correct. Executed on January 18 19 Printed Name: 20 21 22 2017 in Los Angeles, California. Signature Case 2:16-cv-09116-GW-KS Document 44-3 Filed 02/01/17 Page 2 of 5 Page ID #:660 EXHIBIT 1 Case 2:16-cv-09116-GW-KS Document 44-3 Filed 02/01/17 Page 3 of 5 Page ID #:661 MORRIS BARNES VIA U.S. MAIL & E-MAIL bob@magnetmanagement.com Bob Sobhani ~agnet~anagement 11704 Wilshire Blvd., Suite 295 Los Angeles, CA 90025 July 11,2013 Re: John Rickard I "~idnight Sun" Dear Bob: ?. KEVIN MORRIS KEVIN YORN STEPHEN D. BARNES JARED E. LEVINE DAVID A. KRINTZMAN TODD RUBENSTEIN ALEXANDER P. KOHNER GREGG GELLMAN LAWRENCE M. KOPEIKIN JEFFREY ENDLICH CORINNE FARLEY NICK GLADDEN ASHlEY NISSENSERG RYAN PASTOREK lOGAN ClARE RYAN GOODEll DAVID R. HillER PAUl l. CAZERS Of Counsel JIM KliCK JONATHAN S. POLLACK MARVIN A. DEMOFF AlliSON D. JACOBY I am writing to you on behalf of our client, John Rickard ("~r. Rickard"), in connection with the rights to the motion picture entitled "~idnight Sun" (the "Picture"). This letter is in response to your e- mail to~. Rickard dated February 11, 2013. ~r. Rickard exclusively controls the underlying rights to the Picture. As you are aware, ~r. Rickard is in the process of remaking the Picture. The treatment your client gave to ~r. Rickard entitled "~idnight Juliet" (the "Treatment") is derived from the underlying rights to the Picture held by ~r. Rickard. In remaking the Picture, ~r. Rickard has not utilized anything created by your client. Please be advised that your client should immediately cease and desist from distributing the Treatment as it utilizes the underlying rights to the Picture controlled by ~r. Rickard. Nothing herein contained or herefrom omitted shall be construed as an acknowledgement or omission of any fact or issue or as a compromise statement of any relevant facts in connection with this matter nor shall this letter be construed as a release, waiver or relinquishment of any right, remedy or defense which may be available to my client at law or in equity, including without limitation, the right to recover all of our client's damages and attorney's fees as well as any other rights, all of which are hereby expressly reserved. cc: John Rickard Exhibit 1, Page 2 Case 2:16-cv-09116-GW-KS Document 44-3 Filed 02/01/17 Page 4 of 5 Page ID #:662 1 CERTIFICATE OF SERVICE 2 I hereby certify that on February 1, 2017, a copy of the foregoing 3 DECLARATION OF RYAN GOODELL IN SUPPORT OF DEFENDANTS' 4 MOTION TO DISMISS PLAINTIFF'S COMPLAINT was filed electronically. 5 Notice of this filing will be sent by e-mail to all parties by operation of the court's 6 electronic filing system or by mail to anyone unable to accept electronic filing as 7 indicated on the Notice of Electronic Filing. Parties may access this filing through 8 the court's EM/ECF System. 9 10 18 19 20 21 24 25 26 Is/ James G. Sammataro James G. Sammataro Case 2:16-cv-09116-GW-KS Document 44-3 Filed 02/01/17 Page 5 of 5 Page ID #:663 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER LA 52037941 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BETHANY ASHTON WOLF, an individual Plaintiff, v. JOHN RICKARD, an individual; WRIGLEY PICTURES, a California Corporation; ALAN OU, an individual; BOUSCHILLER FILM GROUP LLC, a Florida limited liability company; MIDNIGHT SUN, LLC, a Nevada limited liability company; ERIC KIRSTEN, an individual; OPEN ROAD FILMS, LLC, a Delaware limited liability company; and DOES 1 through 20; Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-CV-09116 GW (KSX) [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Case 2:16-cv-09116-GW-KS Document 44-4 Filed 02/01/17 Page 1 of 2 Page ID #:664 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER LA 52037941 [PROPOSED] ORDER Defendants John Rickard, Wrigley Pictures, Alan Ou, Midnight Sun, LLC and Eric Kirsten’s (collectively, “Defendants”) Motion to Dismiss the Complaint filed by Plaintiff Bethany Ashton Wolf (“Plaintiff”), pursuant to Federal Rule of Civil Procedure 12(b)(6), came on regularly for hearing on March 16, 2017 at 8:30 a.m. Defendants and Plaintiff appeared through counsel and presented arguments at the hearing. Having thoroughly considered the briefs of the parties, the pleadings, files and records in this action, and the arguments presented at the hearing, and good cause appearing therefrom: IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss is hereby GRANTED. The Complaint fails to state a claim against Defendants upon which relief can be granted. IT IS FURTHER ORDERED that each cause of action against Defendants contained in the Complaint be dismissed. IT IS SO ORDERED. DATED: _____________________ _______________________________ George H. Wu, U.S. District Judge Case 2:16-cv-09116-GW-KS Document 44-4 Filed 02/01/17 Page 2 of 2 Page ID #:665
