DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH, AND SIXTH CLAIMS 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 Marc Toberoff (State Bar No. 188547) [email protected]Keith G. Adams (State Bar No. 240497) [email protected]Pablo D. Arredondo (State Bar No. 241142) [email protected]David Harris (State Bar No.255557) [email protected]TOBEROFF & ASSOCIATES, P.C. 22337 Pacific Coast Highway #348 Malibu, California 90265 Telephone: (310) 246-3333 Fax: (310) 246-3101 Attorneys for Defendants Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION DC COMICS, Plaintiff, vs. PACIFIC PICTURES CORPORATION; IP WORLDWIDE, LLC; IPW, LLC; MARC TOBEROFF, an individual; MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER; JEAN ADELE PEAVY, an individual; LAURA SIEGEL LARSON, individually and as personal representative of the ESTATE OF JOANNE SIEGEL, and DOES 1-10, inclusive, Defendants. Case No: CV 10-03633 ODW (RZx) Hon. Otis D. Wright II, U.S.D.J. Hon. Ralph Zarefsky, U.S.M.J. DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON DC’S FOURTH, FIFTH, AND SIXTH CLAIMS Statement of Undisputed Facts and Conclusions of Law; Declaration of Keith Adams; and [Proposed] Order and Statement of Decision filed concurrently herewith Complaint filed: May 14, 2010 Discovery Cutoff: None Set Trial Date: None Set Date: March 11, 2013 Time: 1:30 p.m. Place: Courtroom 11 Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 1 of 29 Page ID #:37278
February 4, 2013 motion by Marc Toberoff in Pacific Pictures case states that key issues have been decided.
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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH, AND SIXTH CLAIMS
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Marc Toberoff (State Bar No. 188547) [email protected] Keith G. Adams (State Bar No. 240497) [email protected] Pablo D. Arredondo (State Bar No. 241142) [email protected] David Harris (State Bar No.255557) [email protected] TOBEROFF & ASSOCIATES, P.C. 22337 Pacific Coast Highway #348 Malibu, California 90265 Telephone: (310) 246-3333 Fax: (310) 246-3101 Attorneys for Defendants Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
DC COMICS, Plaintiff, vs. PACIFIC PICTURES CORPORATION; IP WORLDWIDE, LLC; IPW, LLC; MARC TOBEROFF, an individual; MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER; JEAN ADELE PEAVY, an individual; LAURA SIEGEL LARSON, individually and as personal representative of the ESTATE OF JOANNE SIEGEL, and DOES 1-10, inclusive,
Defendants.
Case No: CV 10-03633 ODW (RZx) Hon. Otis D. Wright II, U.S.D.J. Hon. Ralph Zarefsky, U.S.M.J.
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON DC’S FOURTH, FIFTH, AND SIXTH CLAIMS Statement of Undisputed Facts and Conclusions of Law; Declaration of Keith Adams; and [Proposed] Order and Statement of Decision filed concurrently herewith Complaint filed: May 14, 2010 Discovery Cutoff: None Set Trial Date: None Set Date: March 11, 2013 Time: 1:30 p.m. Place: Courtroom 11
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NOTICE OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on March 11, 2013 at 1:30 p.m., or as soon
thereafter as counsel may be heard, in Courtroom 11 of the above-captioned Court,
located at 312 N. Spring Street, Los Angeles, California, 90012, defendants Mark
Warren Peary, as personal representative of the Estate of Joseph Shuster, and Jean
Adele Peavy, Laura Siegel Larson, individually and as personal representative of the
Estate of Joanne Siegel, Marc Toberoff, Pacific Pictures Corporation, IP Worldwide,
LLC and IPW, LLC (collectively, “Defendants”), will and hereby do move for
summary judgment, dismissing the Fourth, Fifth and Sixth Claims for Relief in
plaintiff DC Comics’ (“DC”) first amended complaint pursuant to Fed. R. Civ. P. 56
– the only remaining claims in this case.
Defendants Marc Toberoff and Pacific Pictures Corporation move for
summary judgment on DC’s Fourth Claim for tortious interference with contract, as it
is clearly barred by the statute of limitations. Defendant Marc Toberoff moves for
summary judgment on DC’s Fifth Claim for tortious interference with prospective
economic advantage, as it is also barred by the statute of limitations. All Defendants
moves for summary judgment on DC’s Sixth Claim for declaratory relief, under
California’s Unfair Competition Law, because it is moot, preempted by the Copyright
Act and barred, in part, by the statute of limitations.
This Motion is made following the conference of counsel pursuant to L.R. 7-3,
on November 28, 2012. This Motion is based on this Notice of Motion, the attached
Memorandum of Points and Authorities, all of the pleadings, files, and records in this
proceeding, all other matters of which the Court may take judicial notice, and any
argument or evidence that may be presented to or considered by the Court.
Dated: February 4, 2013 RESPECTFULLY SUBMITTED, /s/ Keith G. Adams
TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants Mark Warren Peary et al.
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TABLES OF CONTENTS AND AUTHORITIES
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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1 FACTUAL AND PROCEDURAL BACKGROUND .............................................. 3
A. The Shuster Termination ....................................................................... 3 B. The Siegels’ Terminations And Negotiations With DC ....................... 4
1. The Siegels Negotiate With DC ................................................. 4 2. The August 2002 Offer ............................................................... 5 3. The Siegels Regroup .................................................................. 5
C. The Siegel Litigation ............................................................................. 6 D. The Instant Action ................................................................................. 7
LEGAL STANDARD ................................................................................................ 7 ARGUMENT ............................................................................................................. 8 I. DC’S FOURTH CLAIM IS TIME-BARRED ................................................ 8
A. DC’s Claim Accrued By No Later Than 2006 And Is Barred By
The Two-Year Statute Of Limitations .................................................. 8 1. The Alleged Interference Consisted Of The 2001 And
2003 PPC Agreements And The 2003 Shuster Termination ................................................................................. 8
2. The “Delayed Discovery” Rule Is Inapplicable Because
DC Received The Shuster Termination In 2003 And The PPC Agreements In 2006 ............................................................ 9
3. The “Timeline” Does Not Invoke The Delayed Discovery
Rule ........................................................................................... 11 4. There Was No “Concealment,” And Concealment Is
Irrelevant When A Party Has Inquiry Notice ........................... 12 5. The “Continuing Harm” Doctrine Does Not Apply To
DC’s Interference Claims ......................................................... 12 II. DC’S FIFTH CLAIM IS TIME-BARRED ................................................... 13
A. The Statute Was Triggered In 2002, And DC Was On Inquiry
Notice Of Its Claim By 2006 .............................................................. 13
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TABLES OF CONTENTS AND AUTHORITIES
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1. DC Was On Inquiry Notice Since At Least 2006 ..................... 14 2. DC Read The Timeline In 2006 ................................................ 16 3. DC’s Statements And Conduct Demonstrate That It Was
On Actual Notice Of Its Interference Claims ........................... 18 B. DC’s Interference Claim Is Time-Barred Even If Amended To
Allege Interference With Contract ...................................................... 19 III. DC’S SIXTH CLAIM IS BARRED ............................................................. 19
A. DC’s Sixth Claim Is Moot ................................................................... 19 B. DC’s Sixth Claim Is Time-Barred As To The PPC Agreements ........ 21 C. DC’s Sixth Claim Is Preempted By The Copyright Act ..................... 21
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TABLES OF CONTENTS AND AUTHORITIES
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TABLE OF AUTHORITIES
Cases Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005) ................................................................................. 22 American Rivers v. National Marine Fisheries Serv., 126 F.3d 1118 (9th Cir. 1997) ........................................................................... 19-20 Amtower v. Photon Dynamics, Inc., 158 Cal. App. 4th 1582 (2008) ................................................................................ 18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................... 7-8 Barber v. Superior Court, 234 Cal. App. 3d 1076 (1991) ................................................................................. 12 Betz v. Trainer Wortham & Co., 236 Fed. Appx. 253 (9th Cir. May 11, 2007) .......................................................... 21 Blue Nile, Inc. v. Ice.com, Inc., 478 F. Supp. 2d 1240 (W.D. Wash. 2007) .............................................................. 22 Boon Rawd Trading Int’l Co., Ltd. v. Paleewong Trading Co., 688 F. Supp. 2d 940 (N.D. Cal. 2010) ..................................................................... 13 Brodzki v. United States, 2012 WL 1536344 (N.D. Cal. May 1, 2012) ........................................................... 11 Celotex Corporation v. Catrett, 477 U.S. 317 (1986) ............................................................................................... 7-8 Conerly v. Westinghouse Elec. Corp., 623 F.2d 117 (9th Cir. 1980) ................................................................................... 12 Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4th 163 (2000) ............................................................................................. 21 Del Madera Properties v. Rhodes & Gardner, Inc., 820 F.2d 973 (9th Cir. 1987) ................................................................................... 22 DHX, Inc. v. Allianz AGF MAT, Ltd., 425 F.3d 1169 (9th Cir. 2005) ........................................................................... 19-20 Eagle Precision Techs., Inc. v. Eaton Leonard Robolix, Inc., 2006 U.S. Dist. LEXIS 98598 (S.D. Cal. Apr. 5, 2006) ................................ 8, 10, 19
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Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797 (2005) ............................................................................................. 14 Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002) ........................................................................... 12-13 Forcier v. Microsoft Corp., 123 F. Supp. 2d 520 (N.D. Cal. 2000) ................................................................. 9, 15 GO Computer, Inc. v. Microsoft Corp., 508 F.3d 170 (4th Cir. 2007) ................................................................................... 16 Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055 (9th Cir. 2012) ................................................................................. 11 Intermedics, Inc. v. Ventritex, Inc., 822 F. Supp. 634 (N.D. Cal. 1993) .......................................................................... 18 Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103 (1988) ...................................................................................... 10, 17 Karl Storz Endoscopy Am., Inc. v. Surgical Techs., Inc., 285 F.3d 848 (9th Cir. 2002) ................................................................................... 21 Kittel v. Thomas, 620 F.3d 1203 (9th Cir. 2011) ................................................................................. 21 Kodadek v. MTV Networks, 152 F.3d 1209 (9th Cir. 1998) ................................................................................. 21 M&F Fishing, Inc. v. Sea-PAC Ins. Managers, Inc., 202 Cal. App. 4th 1509 (2012) ................................................................................ 20 MEECO Mfg. Co. v. True Value Co., U.S. Dist. LEXIS 25986 (W.D. Wash. Apr. 3, 2007) ............................................. 22 Miller v. Bechtel Corp., 33 Cal. 3d 868 (1983) ........................................................................................ 17-18 Mirbeau of Geneva Lake, LLC v. City of Lake Geneva, 746 F. Supp. 2d 1000 (E.D. Wis. 2010) .................................................................. 11 Motown Record Corp. v. George A. Hormel & Co., 657 F. Supp. 1236 (C.D. Cal. 1987) ........................................................................ 22 Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) ................................................................................. 19 Norgart v. Upjohn Co., 21 Cal. 4th 383 (1999) ............................................................................................. 10
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Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) ................................................................................... 21 Sabety v. Pomona Valley Hosp. Med. Ctr., Inc., 2001 Cal. App. Unpub. LEXIS 529 (Cal. App. 2d Dist. Dec. 20, 2001) ................ 17 Samuels v. Forest, 2007 WL 3149285 (Cal. App. Oct. 30, 2007) ......................................................... 16 Stockton Citizens for Sensible Planning v. City of Stockton, 48 Cal. 4th 481 (2010) ............................................................................................... 8 Streamcast Networks, Inc. v. Skype Techs., S.A., 2006 WL 5441237 (C.D. Cal. Sept. 14, 2006) ........................................................ 10 Suckow Borax Mines Consolidated v. Borax Consolidated, 185 F.2d 196 (9th Cir. 1951) ................................................................................... 12 Tatyana Evgenievna Drevaleva v. United States, 2010 U.S. Dist. LEXIS 51687 (N.D. Cal. May 26, 2010) ...................................... 20 Trembath v. Digardi, 43 Cal. App. 3d 834 (1974) ....................................................................... 8-9, 14, 19 Trenton v. Infinity Broadcast’g Corp., 865 F. Supp. 1416 (C.D. Cal. 1994) ........................................................................ 21 Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117 (C.D. Cal. 2010) ................................................................... 12 Statutes 17 U.S.C. § 301 ........................................................................................................ 21 17 U.S.C. § 304 ................................................................................................. passim Cal. Bus. & Prof. Code § 17208 .............................................................................. 21 Cal. Code of Civ. Proc. § 339(1) ......................................................................... 8, 13 F.R.C.P. 56 ............................................................................................................. 7-8
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1 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH, AND SIXTH CLAIMS
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INTRODUCTION
This motion for summary judgment is straightforward: DC Comics’ (“DC”)
Fourth, Fifth, and Sixth Claims are time-barred. DC alleges that Defendants engaged
in tortious conduct between 2001 and 2003. The record shows that DC was on
notice of this supposedly tortious conduct by no later than 2006. And yet DC did not
file suit that year. Nor did it file in 2007, 2008, or even 2009. Instead, DC sat on its
alleged rights, and did not file suit until May 2010 – nearly a decade after the
supposed torts had occurred and nearly half a decade after it was put on notice.
These state-law claims were filed much too late, and are conclusively barred by the
statute of limitations.
DC’s Fourth Claim alleges that Mr. Toberoff and Pacific Pictures Corp.
(“PPC”) tortiously interfered with DC’s 1992 agreement with Joseph Shuster’s
siblings by entering into 2001 and 2003 agreements with Mark Warren Peary (both of
which were cancelled in 2004), and by serving notices of termination. This claim is
barred by the two-year statute of limitations applicable to interference claims, which
started to run, at the very latest, when DC had enough information to make a
reasonable person “suspicious,” thereby putting DC on inquiry notice.
Here, DC received the Shuster termination notice in 2003; and was provided
with complete, unredacted copies of both the 2001 and 2003 PPC agreements in
2006. With the termination notice and agreements in hand, DC was on actual notice
of its Fourth Claim, and the clock started ticking. The statute of limitations ran out in
2008, at the latest, two years before DC filed this suit.
DC’s Fifth Claim alleges that Mr. Toberoff tortiously interfered with its
relationship with Joanne Siegel and Laura Siegel Larson when he conveyed an offer
to their attorney to license their Superman rights in August 2002. According to DC,
this offer wrongfully induced the Siegels to end their negotiations with DC (even
though the Siegels had called an agreement with DC “impossible” months earlier).
This claim is also barred by the applicable two-year statute of limitations. DC
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received a September 21, 2002 letter from the Siegels formally ending negotiations.
When negotiations resumed in 2003, it became aware that the Siegels were
represented by Mr. Toberoff and Ari Emanuel. By mid-2006, DC claims it received
an anonymous, so-called “Timeline,” containing the false accusation that the August
2002 offer was fraudulent. DC disclosed the Timeline’s allegations to its outside
counsel in 2006. Its outside counsel took extensive discovery in 2006, including
deposition testimony from all relevant witnesses about the August 2002 offer, the
Siegels’ September 21, 2002 letter ending negotiations, and their subsequent October
3, 2002 agreement with IP Worldwide (Toberoff/Emanuel), which was produced to
DC in late-2006.
There is no need to speculate whether all of this was enough to put DC on
notice of its Fifth Claim – the answer is found in DC’s own briefs in the related
Siegel case. During summary judgment, in 2007, DC explicitly argued that Mr.
Toberoff had “interfered” with its relationship with the Siegels. According to DC,
the Siegels “abruptly fired [their former counsel] and terminated discussions with DC
shortly after receiving Mr. Toberoff’s ‘$15 million plus’ offer.” Statement of
Undisputed Facts (“SUF”) ¶47; see also SUF ¶46 (DC: Siegels agreed to a contract
“until [they] suddenly appeared to have second thoughts after being presented with a
seemingly more lucrative offer by their current counsel [Toberoff].”).
By no later than 2006, DC had more than sufficient information to trigger the
applicable two-year statute of limitations. DC did not file until four years later in
2010 – two years after the statute had run out.
DC’s Sixth Claim alleges that the expired 2001 and 2003 PPC agreements, as
well as a 2008 agreement between the Siegels and Shusters, ran afoul of California’s
“Unfair Competition Law.” This claim is moot. The only relief DC seeks is to have
the agreements declared invalid – relief DC already secured when the Court ruled in
DC’s favor on its Third Claim. The jurisdiction of federal courts is limited to “live”
controversies, and courts lack the authority to issue advisory opinions on moot
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3 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH, AND SIXTH CLAIMS
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claims. This claim is also preempted because it is based entirely upon an alleged
violation of the Copyright Act. Finally, to the extent it is based on the 2001 and 2003
PPC Agreements, the claim is barred by the applicable four-year statute of
limitations, which began to run on the date of supposed injury, i.e., when these
agreements were entered into.
* * *
As this Court has recognized, the central legal issue in this case was whether
the Shuster estate’s notices of termination under the Copyright Act were valid. See
Dkt. 533 at 3 (Court: “The resolution of DC’s First Claim regarding the validity of
the Shuster Termination is []‘of far greater economic importance to the parties than
any of DC’s peripheral state-law claims.’”) (citation omitted). DC’s long time-barred
Fourth, Fifth, and Sixth Claims were tacked onto its complaint in the hope of putting
pressure on the Shuster executor (Mr. Peary), his mother Ms. Peavy, Ms. Larson, and
their long-time counsel, Mr. Toberoff. Now that the Court has ruled on the validity
of the Shuster termination, these “peripheral” state-law claims are all that remain of
this case. Id. It is time to dispose of these stale secondary claims and finally bring
the DC Comics case to a close. See 9th Cir. Appeal No. 11-56934, Dkt. 66 at 3
(Ninth Circuit noting that “arguments based on the legal sufficiency of DC’s claims
… are properly directed to the district court in the form of a dispositive motion”).
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shuster Termination
After Joe Shuster’s death, DC entered into a one-page agreement dated
October 2, 1992 with his surviving siblings, Frank Shuster and Jean Adele Peavy (the
“1992 Agreement”). SUF ¶1.1 In 1998, Congress amended the 1976 Copyright Act,
and provided an author’s estate with the right to recover the author’s copyrights by
1 In 2012, this Court held that the 1992 Agreement nullified the Shuster estate’s termination right by effectively revoking Shuster’s prior Superman copyright assignments to DC and simultaneously re-assigning Shuster’s Superman copyrights to DC in a non-terminable post-January 1, 1978 grant. Dkt. 507.
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statutorily terminating the author’s old copyright grants. Pub. L. 105-298 (1998); 17
U.S.C. § 304(c)(2)(D). In November 2001, Mr. Peary and his mother, Ms. Peavy,
entered into a November 23, 2001 agreement with Mr. Toberoff’s “loan-out”
company, Pacific Pictures Corp. (the “2001 PPC Agreement”) “to investigate,
retrieve, enforce and exploit” Joe Shuster’s claims and copyrights “via the
establishment of Shuster’s estate and the estate’s termination pursuant to Section
304(c) of the U.S. Copyright Law (Title 17, U.S.C.)....” SUF ¶2. Thereafter, Joe
Shuster’s estate was probated, and Mr. Peary was appointed the estate’s executor on
October 7, 2003. SUF ¶3. The Shuster Estate entered into an agreement dated
October 27, 2003 (the “2003 PPC Agreement”) “engag[ing] PPC as its exclusive
advisor for the purpose of retrieving, enforcing and exploiting all of Joe Shuster’s,
and his estate’s, rights,” including the estate’s “copyright termination interest in
‘SUPERMAN’ pursuant to Section 304(d) of the U.S. Copyright Law.” SUF ¶4.
In November 2003, Mr. Toberoff, as attorney for the Shuster Estate, served on
DC and filed a notice of termination under 17 U.S.C. § 304(d) of Joe Shuster’s prior
Superman copyright grants to DC (the “Shuster Termination”). SUF ¶5.
In September 2004, Toberoff, Peary and Peavy voluntarily cancelled the
2001/2003 PPC Agreements, and entered into a legal retainer agreement dated as of
November 23, 2001. SUF ¶¶6-7.
B. The Siegels’ Terminations And Negotiations With DC
1. The Siegels Negotiate With DC
In 1997, Jerome Siegel’s widow, Joanne Siegel, and his daughter, Laura Siegel
Larson, filed and served on DC, pursuant to 17 U.S.C. § 304(c), notices of
termination of Siegel’s Superman copyright grants to DC (the “Siegel Termination”).
SUF ¶8. On April 15, 1999, one day before the Siegel Termination became effective,
DC contested it. SUF ¶9. The Siegels engaged in negotiations with DC, represented
by attorney Kevin Marks. SUF ¶10. On October 19, 2001, Marks sent DC a letter
outlining and purporting to accept what he believed were the terms of an oral October
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16 offer by DC (the “October 19, 2001 Letter”). SUF ¶11. On October 26, 2001, DC
sent Marks its “outline” of what it believed the terms were. SUF ¶12. Months later,
on February 1, 2002, DC sent a 56-page draft of the agreement it proposed. SUF
¶13. Angered by DC’s February 1 proposal, Joanne Siegel sent a letter to DC’s
parent company on May 9, 2002, which stated: Negotiations dragged on for four difficult years. We made painful concessions assured if we did we would arrive at an agreement. When we made these difficult concessions and reluctantly accepted [DC’s] last proposal … we were stabbed in the back by a shocking contract. Your company’s unconscionable contract dated February [1], 2002 contained new, outrageous demands that were not in the [October 19] proposal. …. After four years we have no deal and this contract makes an agreement impossible.
SUF ¶14.
2. The August 2002 Offer
In late July/August 2002, three months after Joanne Siegel had declared an
agreement with DC “impossible,” Mr. Toberoff informed Marks that he was working
with Ari Emanuel, the CEO of Endeavor (now William Morris Endeavor) and
inquired whether the Siegels were interested in licensing their rights. SUF ¶¶15-16.
Marks, Toberoff and Emanuel then scheduled and held a conference call in August
2002, during which an offer was made to purchase the Siegels’ rights for $15 million
(the “August 2002 Offer”). SUF ¶17. Marks conveyed the August 2002 Offer to the
Siegels, but neither they nor Marks responded to it. SUF ¶18.
3. The Siegels Regroup
On September 21, 2002, after years of grinding negotiations, the Siegels sent a
letter to Marks, with a copy to DC, terminating Marks and providing “notification
that we are totally stopping and ending all negotiations with DC.” SUF ¶19. On
October 3, 2002, the Siegels entered into an agreement with IP Worldwide, LLC (the
“IP Worldwide Agreement”), a joint venture between Mr. Toberoff and Emanuel, to
represent their Superman termination interest. SUF ¶20. The IP Worldwide
Agreement provided for “the legal services of Marc Toberoff, Esq. and the business
services of Ariel Emanuel to market and negotiate the sale, license [or] settlement …
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6 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH, AND SIXTH CLAIMS
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of the [Siegel Termination] Rights.” SUF ¶20.2 In 2003, Toberoff and Emanuel, on
the Siegels’ behalf, recommenced settlement negotiations with DC. SUF ¶22.
C. The Siegel Litigation
After renewed negotiations with DC did not result in settlement, Mr. Toberoff
filed the Siegel case in October 2004 to validate the Siegel Terminations, and enforce
the Siegels’ copyrights. SUF ¶23. In response, DC asserted various alleged
defenses, and argued, for the first time in three years, that the October 19, 2001 Letter
was an enforceable contract. SUF ¶24.
On or before June 2006, Warner Bros. (DC’s parent company and co-
defendant in Siegel) received packages of anonymous documents stolen from Mr.
Toberoff’s law firm, including privileged attorney-client communications,
accompanied by an anonymous document entitled “Superman/Marc Toberoff
Timeline.” SUF ¶38. The “Timeline” accused Mr. Toberoff of wrongfully
interfering with DC’s relationships and agreements with the Shuster and Siegel heirs.
SUF ¶39. Warner’s in-house counsel – Wayne Smith (Vice President, Senior
Litigation and Chief Patent Counsel) and John Schulman (General Counsel), who
oversaw the Siegel litigation for both Warner and DC – read the Timeline in June
2006. SUF ¶¶40-41. In July 2006 Mr. Smith informed DC’s outside litigation
counsel of the Timeline’s interference allegations. SUF ¶42.
During discovery in Siegel, the 2001 and 2003 PPC Agreements with the
Shusters and the 2002 IP Worldwide Agreement with the Siegels were all produced
to DC by November 15, 2006. SUF ¶25. DC took extensive discovery on the 2001
and 2003 PPC Agreements. SUF ¶¶29-33. DC also took extensive discovery on the
August 2002 Offer, the Siegels’ cessation of negotiations and the IP Worldwide
Agreement. SUF ¶¶26-28, 31, 34-36.
In May 2007, in Siegel, both sides filed motions for partial summary judgment.
SUF ¶43. In opposition, DC argued that Mr. Toberoff had interfered with DC’s
2 The IP Worldwide Agreement expired on April 23, 2005. SUF ¶21.
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negotiations with the Siegels via the August 2002 “offer[] to purchase [their]
Superman copyright interests for $15 million.” SUF ¶¶44-47. On March 26, 2008,
the district court granted the Siegels’ motion, held that the Siegel Termination was
valid and rejected DC’s claim that the parties had reached an agreement on October
19, 2001. Siegel v. Warner Bros. Ent., Inc., 542 F. Supp. 2d 1098 (C.D. Cal. 2008).
The Siegel case was thereafter transferred to this Court, which entered a Rule
54(b) judgment in May 2011. Siegel, Dkt. 669. On appeal, the Ninth Circuit found
that the October 19, 2001 Letter was sufficient to create a contract on October 19,
2001, and remanded the case for further adjudication of DC’s contract claims. 9th
Cir. Appeal No. 11-55863, Dkt. 70-1.
D. The Instant Action
On May 14, 2010, after the Siegel and Shuster heirs did not accept Warner’s
offer in a settlement mediation, DC filed the instant action against its opposing
counsel, Mr. Toberoff, and against the Siegel and Shuster heirs. SUF ¶¶50-51.
Along with three federal claims aimed at the Shuster Termination, DC brought
California state-law claims: its Fourth and Fifth Claims, against Mr. Toberoff for
purported tortious interference, and its Sixth Claim, against all defendants for
declaratory relief under California’s unfair competition law (“UCL”). SUF ¶51.
LEGAL STANDARD
Summary judgment is appropriate where the record “show[s] that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” F.R.C.P. 56(c). The moving party bears the initial
burden of demonstrating the absence of a genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A fact is material only if it affects
the outcome. Id. at 248. The moving party need not disprove the other party’s case.
Celotex Corporation v. Catrett, 477 U.S. 317, 325 (1986). If the moving party
meets its initial burden, the “adverse party may not rest … [on its] pleadings,” and
must demonstrate by “admissible” evidence the existence of a genuine issue of
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material fact for trial. F.R.C.P. 56(c), Celotex, 477 U.S. at 323. “[T]he mere
existence of a scintilla of evidence” is insufficient. Anderson, 477 U.S. at 252.
Where claims are barred by the statute of limitations, courts must dismiss them
irrespective of their purported merits. See Stockton Citizens for Sensible Planning v.
City of Stockton, 48 Cal. 4th 481, 499 (2010) (“A statute of limitations … operates
conclusively across-the-board. It does so with respect to all causes of action….”).
ARGUMENT
I. DC’S FOURTH CLAIM IS TIME-BARRED
A. DC’s Claim Accrued By No Later Than 2006 And Is Barred By The
preempted where “constructed upon the premise” of a Copyright Act violation).
CONCLUSION
Summary judgment should be granted to Defendants as to DC’s Fourth, Fifth
and Sixth Claims, and this case brought to a close.
Dated: February 4, 2013 RESPECTFULLY SUBMITTED, /s/ Keith G. Adams
TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants Mark Warren Peary et al.
3 See also Blue Nile, Inc. v. Ice.com, Inc., 478 F. Supp. 2d 1240, 1250 (W.D. Wash. 2007) (“Plaintiff's [UCL] claim is dismissed as preempted because by incorporating the copyright claims by reference, the [UCL] claim is based on rights equivalent to those protected by copyright.”); MEECO Mfg. Co. v. True Value Co., 2007 U.S. Dist. LEXIS 25986 at *14 (W.D. Wash. Apr. 3, 2007) (same).
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Marc Toberoff (State Bar No. 188547) [email protected] Keith G. Adams (State Bar No. 240497) [email protected] Pablo D. Arredondo (State Bar No. 241142) [email protected] David Harris (State Bar No. 255557) [email protected] TOBEROFF & ASSOCIATES, P.C. 22337 Pacific Coast Highway #348 Malibu, California 90265 Telephone: (310) 246-3333 Fax: (310) 246-3101 Attorneys for Defendants Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
DC COMICS, Plaintiff,
vs. PACIFIC PICTURES CORPORATION; IP WORLDWIDE, LLC; IPW, LLC; MARC TOBEROFF, an individual; MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER; JEAN ADELE PEAVY, an individual; LAURA SIEGEL LARSON, individually and as personal representative of the ESTATE OF JOANNE SIEGEL, and DOES 1-10, inclusive,
Defendants.
Case No: CV 10-03633 ODW (RZx) Hon. Otis D. Wright II, U.S.D.J. Hon. Ralph Zarefsky, U.S.M.J. DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT ON DC’S FOURTH, FIFTH AND SIXTH CLAIMS Notice of Motion and Motion; Declaration of Keith Adams; and [Proposed] Order and Statement of Decision filed concurrently herewith Complaint filed: May 14, 2010 Discovery Cutoff: None Set Trial Date: None Set Date: March 11, 2013 Time: 1:30 p.m. Place: Courtroom 11
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DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS
No. Statement Of Undisputed Fact Defendants’ Evidence
1 On October 2, 1992, DC entered into a one-page
agreement with Joe Shuster’s surviving siblings,
Frank Shuster and Jean Adele Peavy (the “1992
Agreement”).
Dkt. 49 (First Amended
Complaint; “FAC”) ¶55;
Declaration of Keith G.
Adams (“AD”), Ex. A
2 In November 2001, Joe Shuster’s nephew, Mark
Warren Peary, and Ms. Peavy entered into an
agreement (the “2001 PPC Agreement”) with
Pacific Pictures Corporation (“PPC”). That
agreement stated in part: In consideration of the mutual covenants contained herein and other good and valuable consideration, PPC and Claimants hereby form a joint venture (the “Venture”) to investigate, retrieve, enforce and exploit the Rights, including without limitation, via the establishment of Joe Shuster’s estate and the estate’s termination pursuant to Section 304(c) of the U.S. Copyright Law (Title 17, U.S.C.) of any and all grant or transfers by Joe Shuster of any copyright interest in his creations.
FAC ¶60; AD, Ex. D at
21
3 On October 7, 2003, the Los Angeles Superior
Court appointed Mr. Peary as executor of the
estate of Joseph Shuster (the “Shuster Estate”).
AD, Ex. J
4 On October 27, 2003, the Shuster Estate and
PPC entered into an agreement (the “2003 PPC
Agreement”). That agreement stated in part: Client hereby engages PPC as its exclusive advisor for the purpose of retrieving, enforcing and exploiting all of Joe Shuster’s, and his estate’s rights, claims, copyrights, property, title and interests in and to Joe Shuster’s creations (hereinafter,
AD, Ex. K at 102
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No. Statement Of Undisputed Fact Defendants’ Evidence such rights, property and claims, are individually and collectively referred to as the “Rights”). The Rights shall include without limitation, all current and future rights, claims, title, copyrights and interests of Client in and to each character, story element, and indicia associated with, and all rights to proceeds from “SUPERMAN,” or the “SUPERMAN” stories and comic books, including, without limitation, Client’s copyright termination interest in “SUPERMAN” pursuant to Section 304(d) of the U.S. Copyright Law.
5 In November 2003, Mr. Toberoff, on behalf of
the Shuster Estate, served on DC Comics
(“DC”) and filed a notice of termination under
17 U.S.C. § 304(d) of Joe Shuster’s prior
Superman copyright grants to DC (the “Shuster
Termination”).
AD, Ex. M
6 On September 10, 2004, Toberoff, Peary and
Peavy voluntarily cancelled the 2001 and 2003
PPC Agreements.
AD, Ex. N; Ex. O
7 In September 2004, Toberoff, Peary and Peavy
entered into a legal retainer agreement dated as
of November 23, 2001.
AD, Ex. P, Ex. FF at
473:1-8, 474:4-7
8 In 1997, Jerome Siegel’s widow, Joanne Siegel,
and his daughter, Laura Siegel Larson (the
“Siegels”), served on DC and filed notices of
termination under 17 U.S.C. § 304(c) of Siegel’s
Superman copyright grants to DC (the “Siegel
Termination”).
FAC ¶67
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No. Statement Of Undisputed Fact Defendants’ Evidence
9 By letter dated April 15, 1999, DC contested the
Siegel Termination.
Siegel v. Warner Bros.
Entm’t Inc., 542 F. Supp.
2d 1098, 1114 (C.D. Cal.
2008)
10 The Siegels thereafter engaged in negotiations
with DC, represented by attorney Kevin Marks.
FAC ¶68
11 On October 19, 2001, Marks sent DC a letter
outlining and purporting to accept what he
believed were the terms of an oral October 16,
2001 offer by DC.
AD, Ex. B
12 On October 26, 2001, DC sent Marks its
“outline” of what it believed the terms were.
AD, Ex. C at 13
13 On February 1, 2002, DC sent a 56-page draft of
the agreement it proposed.
AD, Ex. E
14 On May 9, 2002, Joanne Siegel sent a letter to
DC’s parent, AOL Time Warner, Inc. That
letter stated in part:
…. Negotiations dragged on for four difficult years. We made painful concessions assured if we did we would arrive at an agreement. When we made these difficult concessions and reluctantly accepted [DC’s] last proposal…we were stabbed in the back by a shocking contract. Your company’s unconscionable contract dated February [1], 2002 contained new, outrageous demands that were not in the [October 19] proposal. …. After four years we have no deal and this contract makes an agreement impossible.
AD, Ex. F at 82, 84
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No. Statement Of Undisputed Fact Defendants’ Evidence
15 In 2002, Mr. Toberoff formed a joint venture
with Ariel Emanuel, the CEO of the Endeavor
Talent Agency (now William Morris Endeavor),
called IP Worldwide, LLC.
AD, Ex. G, Ex. FF at
472:10-24
16 In late July/August 2002, Mr. Toberoff informed
Mr. Marks that he was working with Mr.
Emanuel and inquired whether the Siegels were
interested in licensing their rights.
AD, Ex. S at 147:6-148:6;
Ex. W at 249:10-250:2
17 In August 2002, Marks, Toberoff and Emanuel
scheduled and held a conference call, in which
an offer was made to purchase the Siegels’
rights for $15 million (the “August 2002
Offer”).
AD, Ex. S at 149:2-150:5,
Ex. W at 253:24-258:9
18 Marks conveyed the August 2002 offer to the
Siegels, but neither they nor Marks responded to
it.
AD, Ex. S at 150:23-
151:24, Ex. W at 263:20-
264:8
19 On September 21, 2002, the Siegels sent a letter
to Marks, with a copy to DC, terminating Marks
and ending negotiations with DC Comics. The
letter stated in part: As we previously discussed with you and hereby affirm, we rejected DC Comics' offer for the Siegel Family interest in Superman and other characters sent to us by you on February 4, 2002. We similarly reject your redraft of the February 4, 2002 document which you sent to us on July 15, 2002. Therefore due to irreconcilable differences, after four years of painful and unsatisfying negotiations, this letter serves as formal notification that we are totally stopping and ending all negotiations with
AD, Ex. H at 92
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No. Statement Of Undisputed Fact Defendants’ Evidence DC Comics, Inc., its parent company AOL Time Warner and all of its representatives and associates, effective immediately.
20 On October 3, 2002, the Siegels entered into an
agreement with IP Worldwide, LLC to represent
the Siegels’ Superman termination interest (the
“IP Worldwide Agreement”). That agreement
stated in part:
1. In consideration for IPW’s services set forth below, the mutual covenants contained herein and other good and valuable consideration, Owner hereby grants IPW the exclusive right to represent Owner and the Rights throughout the world in negotiating and assisting Owner to arrange and negotiate the sale, lease, license and all other dispositions or exploitations of the Rights, for the Term set forth below. 2. IPW will furnish and provide the legal services of Marc Toberoff, Esq., and the business services of Ariel Emanuel and IPW's support staff and employ its network of business relationships and resources to market and negotiate the sale, license, settlement and/or other disposition of the Rights on your behalf, and will advise you and consult with you with respect thereto. ….
AD, Ex. I at 93
21 The IP Worldwide Agreement expired on April
23, 2005.
AD, Ex. I, Ex. N
22 In 2003, Mr. Toberoff and Mr. Emanuel, on the
Siegels’ behalf, recommenced settlement
negotiations with DC.
AD, Ex. L, Ex. T at
158:12-165:2, Ex. EE at
461-62
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No. Statement Of Undisputed Fact Defendants’ Evidence
23 On October 8, 2004, Mr. Toberoff, as attorney
for the Siegels, filed the Siegel v. Warner Bros.
Entertainment, Inc. case (C.D. Cal. Case No.
04-CV-08400, ODW (RZx) (“Siegel”) which
sought to validate the Siegel Termination, and to
enforce the Siegels’ copyright interests.
FAC ¶91
24 On February 17, 2005, DC counterclaimed in
Siegel, that the October 19, 2001 letter
constituted an enforceable contract.
AD, Ex. AA at 425-428
25 During discovery in Siegel, the 2001 PPC
Agreement, the 2003 PPC Agreement and the
2002 IP Worldwide Agreement, were all
produced to DC by November 15, 2006.
AD, Ex. V at 200, Ex. BB
at 444, Ex. CC at 449
26 In Siegel, DC took the deposition of Kevin
Marks on October 7, 2006.
AD, Ex. S
27 Mr. Marks testified at his October 7, 2006
deposition about his communications with Mr.
Toberoff.
AD, Ex. S at 146:11-
151:24
28 Mr. Marks testified at his October 7, 2006
deposition about the August 2002 Offer to the
Siegels.
AD, Ex. S at 149:10-
150:5
29 In Siegel, DC took the deposition of Mark
Warren Peary on November 11, 2006.
AD, Ex. U
30 Mr. Peary testified at his November 11, 2006
deposition about the 2001 and 2003 PPC
Agreements.
AD, Ex. U at 171:6-
196:13
31 In Siegel, DC took the deposition of Marc AD, Ex. W
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No. Statement Of Undisputed Fact Defendants’ Evidence
Toberoff on November 17, 2006.
32 At the deposition of Mr. Toberoff on November
17, 2006, DC introduced the 2001 and 2003
PPC Agreements as exhibits.
AD, Ex. W at 204:18-20,
223:17-19
33 Mr. Toberoff testified at his November 17, 2006
deposition about the 2001 and 2003 PPC
Agreements and the Shuster Termination.
AD, Ex. W at 204:18-
230:8
34 Mr. Toberoff testified at his November 17, 2006
deposition about his 2002 communications with
Kevin Marks.
AD, Ex. W at 240:17-
260:11
35 Mr. Toberoff testified at his November 17, 2006
deposition about the August 2002 Offer to the
Siegels.
AD, Ex. W at 257:14-
259:14
36 Mr. Toberoff testified at his November 17, 2006
deposition about the 2002 IP Worldwide
Agreement.
AD, Ex. W at 266:23-
268:16
37 DC’s deposition of Mr. Toberoff in 2006
tracked the Fifth Claim.
FAC ¶¶180-186; AD, Ex.
W at 244:13-264:25
38 On or before June 2006, DC’s parent, Warner
Bros. Entertainment Inc. (“Warner”), received
packages of documents stolen from Mr.
Toberoff’s law firm, including privileged
attorney-client communications, accompanied
by an anonymous document entitled
“Superman-Marc Toberoff Timeline” (the
“Timeline”).
AD, Ex. X at 278 ¶2
39 The Timeline accused Mr. Toberoff of AD, Ex. R
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No. Statement Of Undisputed Fact Defendants’ Evidence
wrongfully interfering with DC’s relationships
and agreements with the Shuster and Siegel
heirs.
40 Warner’s in-house counsel, Wayne Smith (Vice
President, Senior Litigation and Chief Patent
Counsel) and John Schulman (General Counsel),
who oversaw the Siegel litigation, read the
Timeline in June 2006.
AD, Ex. X at 278-79 ¶¶3-
4
41 In a March 27, 2007 declaration, Wayne Smith
testified, in part, that: 2. During the afternoon of June 28, 2006, I received a telephone call from John A Schulman, General Counsel of Warner Bros., who asked that I come to his office. Upon arriving at his office, Mr. Schulman advised me that a set of documents (the “Superman Documents”) addressed to him and apparently relating to the Siegel litigation had arrived from an anonymous source at his office that day. Mr. Schulman informed me that the cover letter contained with the documents indicated that other executives at Warner Bros. may have received the same set of documents, and that he had called the offices of those executives to see if they had received anything. He further advised me that he had asked those executives to send the documents to his office without reviewing them, and that one set of documents had already been delivered to him. Mr. Schulman handed me the stack (approximately an inch high) of Superman Documents that he had received and asked me to wait outside his office while he completed a meeting, after which we would discuss them. The stack did not include any envelope or packaging in which the documents may have arrived. This was not unusual as it has been my experience that the practice of Mr. Schulman’s office staff is to dispose of envelopes and packaging upon
AD, Ex. X at 278-79
¶¶2-4
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No. Statement Of Undisputed Fact Defendants’ Evidence opening mail. 3. While I was waiting, I looked at what might be characterized as the “cover letter” that came with the Superman Documents. The cover letter, which was not signed, alleged various types of ethical misconduct on the part of Plaintiffs’ counsel in connection with the Siegel litigations. The cover letter also asserted ethical misconduct – violating the terms of a confidentiality agreement by leaking settlement information to the press – in connection with another litigated matter where Plaintiffs’ counsel had also represented a party adverse to Warner Bros. The letter appeared designed to right wrongs caused by Plaintiffs’ counsel’s misconduct. The letter also referenced the documents enclosed, providing an overview of their contents and their connection to Plaintiffs’ counsel’s alleged wrongdoing. I also thumbed through the Superman Documents contained with the letter, but did not read any of them in detail. …. 4. I then met with Mr. Schulman. …. Mr. Schulman agreed with this approach, gave me one set of the documents, retained the other two sets that he had received, and advised me that he had only looked at the cover letter that came with the documents and would not review the documents at all.
42 On July 5, 2006, Wayne Smith informed DC’s
then-outside counsel, Michael Bergman, of
allegations in the Timeline, as confirmed by Mr.
Bergman’s declaration dated September 25,
2007, which stated, in part: On July 5, 2006, I received a call from Wayne Smith, Vice President, Senior Litigation and Chief Patent Counsel of Warner Bros. Entertainment Inc., informing me that three Warner Bros. employees, including General Counsel John Schulman, had received packages on June 28, 2006 containing documents relating to the present litigation
AD, Ex. Z at 382-383
¶4
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No. Statement Of Undisputed Fact Defendants’ Evidence that had been sent by an anonymous source … Mr. Smith told me that the packages, apparently identical, each contained an unsigned cover letter alleging, among other things, various types of ethical misconduct on the part of Plaintiffs’ counsel in connection with the present litigation and another previously litigated case. The cover letter also explained how the enclosed documents related to the misconduct allegations.
43 In May 2007, in the Siegel case, both sides filed
motions for partial summary judgment.
Siegel, 542 F. Supp. 2d at
1116; AD, Ex. Y
44 In DC’s summary judgment briefing in Siegel,
DC argued that Mr. Toberoff had interfered with
DC’s alleged agreement with the Siegels.
AD, Ex. Y at 319-20,
363-64, 372
45 In DC’s summary judgment briefing in Siegel,
DC stated the following:
On July 30, Mr. Toberoff again contacted Mr. Marks to inquire as to the status of Plaintiffs’ dealings with DC on the Superman property. (Bergman Decl. Exh. S (Marks Tr.) at 165:25-167:3.) When informed that there was a confidentiality agreement in place and that Mr. Marks would not speak with him about DC, Mr. Toberoff asked if Mr. Marks would be willing to enter into separate negotiations with him regarding the sale of the Siegels’ Superman interests. (Id.) Mr. Marks declined to do so, but told Mr. Toberoff that if he had an offer to make, Mr. Marks would present it to his clients. (Id.) Accordingly, in early August, 2002, Mr. Toberoff’s company, IPW [IP Worldwide], offered to purchase Plaintiffs’ Superman copyright interests for $15 million and “a meaningful back-end.” (Id. at 167:7-169:25.) Mr. Marks communicated that offer to his clients. (Id. at 169:21-170:12.) On September 21, 2002, Plaintiffs abruptly terminated Mr. Marks’ and Gang Tyre’s representation of them, without any prior notice, via a letter copied to Paul Levitz,
AD, Ex. Y at 319-20
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No. Statement Of Undisputed Fact Defendants’ Evidence DC’s President and Publisher. (Bergman Decl. Exh. S (Marks Tr.) at 202:1-202:16; Id. Exh. DD.) On the same day, Plaintiffs sent a separate letter to DC repudiating the parties’ October 19 agreement and purporting to break off all further negotiations, and claiming that February Draft contained “outrageous, never discussed, unacceptable demands.” (Bergman Decl. Exh. BB.) Plaintiffs then promptly retained Mr. Toberoff to represent them (id. Exh. X (Toberoff Tr. at 106:1-107:4; 132:4-134:7), and after being advised by Mr. Toberoff’s business partner that DC’s offer for their Superman copyright interest was “ridiculously low” (id. Exh. EE (Laura Siegel Larson Tr.) at 28:15-28:18), entered into an agreement with IPW [IP Worldwide] dated October 3, 2002 pursuant to which Plaintiff’s retained IPW [IP Worldwide] to be their exclusive representative in connection with their Superman interests. (Bergman Decl. Exh. FF.)
46 In DC’s summary judgment briefing in Siegel,
DC also stated the following:
Moreover, as demonstrated below, Defendants have presented sufficient admissible evidence for a trier of fact to conclude that in October, 2001, (i) the parties’ attorneys Mr. Schulman and Mr. Marks, with full authority from their respective clients, reached a meeting of the minds on all material terms pursuant to which Plaintiff would convey their Superman copyright interests to DC, (ii) that this agreement was contemporaneously memorialized and affirmed in a writing executed by Plaintiffs’ counsel on October 19, 2001, and (iii) that the parties intended and expected to be bound by the terms of that agreements notwithstanding the fact that they contemplated negotiating and executing a more formal contract thereafter. In fact, the parties were proceeding along that basis, with the drafting and re-drafting of their more formal documentation, until Plaintiffs suddenly appeared to have second thoughts after being
AD, Ex. Y at 363-64
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No. Statement Of Undisputed Fact Defendants’ Evidence presented with a seemingly more lucrative offer by their current counsel, and abruptly jettisoned both the deal and their attorneys who negotiated it.
47 In DC’s summary judgment briefing in Siegel,
DC also stated the following: Indeed, the evidence supports the conclusion that Plaintiffs’ belated claim that the Schulman Letter changed the deal or that the February Draft was “unacceptable” is nothing other than an ex post facto excuse for Plaintiffs to reject the deal they had already made for the promise of a much more lucrative payday from their current counsel and the companies he controlled: Mr. Marks never disputed anything in the Schulman Letter, and similarly voice no concern about the February Draft until after he learned about his client’s complaining letter to Time Warner’s Chief Executive Officer; and even then he acknowledged to Mr. Schulman that although the draft was “very aggressive” and contained some things which had not been discussed it was not contrary to what the parties had agreed to. (Schulman Decl. ¶ 11.) Mr. Marks even tried his hand at re-crafting the draft into a form that would be acceptable to his client. (Bergman Decl. Exh. S (Marks Tr.) at 196:21-197:15, 198:25-199:3; id. Exh. BB.), but the effort came to naught when Plaintiffs abruptly fired Mr. Marks and terminated discussions with DC shortly after receiving Mr. Toberoff’s “$15 million plus” offer. (Id. Exh. S (Marks Tr.) at 168:1-169:20.).
AD, Ex. Y at 372
48 In 2008, during the Siegel litigation, an
agreement was entered into by Joanne Siegel,
Laura Siegel Larson, Mark Warren Peary, and
Jean Adele Peavy (the “2008 Agreement”) to
collectively negotiate with DC.
Dkt. 160 at 50-51, 63,
Dkt. 209 at 1-2, 4-5; AD,
Ex. FF at 475:10-480:4
49 The district court granted, in part, the Siegels’ Siegel, 542 F. Supp. 2d at
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No. Statement Of Undisputed Fact Defendants’ Evidence
summary judgment motion, holding that the
Siegel Termination was valid as to Action
Comics, No. 1, and rejecting DC’s claim that the
parties had reached an agreement on October 19,
2001.
1145
50 On April 26, 2010, Joanne Siegel, Laura Siegel
Larson and Mark Warren Peary, along with their
attorney, Marc Toberoff, held a settlement
mediation with DC, but the parties did not reach
a settlement.
AD, Ex. DD
51 On May 14, 2010, DC filed the instant action
against Laura Siegel Larson, Joanne Siegel, and
Mark Warren Peary, as personal representative
of the Estate of Joseph Shuster and their
counsel, Marc Toberoff.
Dkt. 1
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CONCLUSIONS OF LAW
1. Summary judgment should be granted in Defendants’ favor on DC’s
Fourth Claim for Relief (Dkt. 49 (“FAC”) ¶¶ 174-79) for tortious interference with
contract. The Fourth Claim, brought in 2010, is barred by the applicable two-year
statute of limitations (Cal. Code of Civ. Proc. § 339(1)), which expired no later than
2008.
Tortious interference claims accrue “at the date of the wrongful act” and “[can]
not be later than the actual breach of the contract by the party who was wrongfully
induced to breach.” Trembath v. Digardi, 43 Cal. App. 3d 834, 836 (1974). “[T]he
statute of limitations [for tortious interference] began to run when the contract was
actually breached.” Forcier v. Microsoft Corp., 123 F. Supp. 2d 520, 530 (N.D. Cal.
2000). Here, the alleged breach consisted of the 2001 and 2003 PPC Agreements,
and the resulting 2003 Shuster Termination, both well outside the statute of
limitations period.
DC cannot invoke the “delayed discovery” rule because all that is required to
trigger the statute of limitations is inquiry notice, which occurs “once the plaintiff has
notice or information of circumstances to put a reasonable person on inquiry.” Jolly
v. Eli Lilly & Co., 44 Cal. 3d 1103, 1110-11 (1988) (citations omitted). DC was
served with the Shuster Termination in 2003; and DC was on actual and inquiry
notice by November 15, 2006, when it was provided with complete and unredacted
copies of both the 2001 and 2003 PPC Agreements. Defendants’ Statement of
Undisputed Facts (“SUF”) ¶25; see Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d
1055, 1061 (9th Cir. 2012).
Because DC had actual and inquiry notice by 2006, any allegations by DC of
fraudulent concealment are irrelevant. Barber v. Superior Court, 234 Cal. App. 3d
1076, 1083 (1991). The “continuing harm” doctrine does not apply to DC’s
Third Claim (FAC ¶¶165-73) under the Copyright Act and is premised on the same
alleged Copyright Act violation, which it incorporates by reference. The claim is
therefore preempted. See Motown Record Corp. v. George A. Hormel & Co., 657 F.
Supp. 1236, 1239 (C.D. Cal. 1987); Del Madera Properties v. Rhodes & Gardner,
Inc., 820 F.2d 973, 977 (9th Cir. 1987).
(c). DC’s Sixth Claim is also largely barred by the applicable four-
year statute of limitations. Cal. Bus. & Prof. Code § 17208. Unfair competition
claims begin to run “on the date the cause of action accrued, not on the date of
discovery.” Karl Storz Endoscopy Am., Inc. v. Surgical Techs., Inc., 285 F.3d 848,
857 (9th Cir. 2002). Insofar as it is based on the 2001 and 2003 PPC Agreements,
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which were cancelled in 2004, the claim is barred by the statute of limitations.
Dated: February 4, 2013 RESPECTFULLY SUBMITTED, /s/ Keith G. Adams
TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants Mark Warren Peary et al.
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[PROPOSED] ORDER AND STATEMENT OF DECISION RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH AND SIXTH CLAIMS FOR RELIEF
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
DC COMICS,
Plaintiff,
vs.
PACIFIC PICTURES CORPORATION;
IP WORLDWIDE, LLC; IPW, LLC;
MARC TOBEROFF, an individual;
MARK WARREN PEARY, as personal
representative of the ESTATE OF
JOSEPH SHUSTER; JEAN ADELE
PEAVY, an individual; LAURA
SIEGEL LARSON, individually and as
personal representative of the ESTATE
OF JOANNE SIEGEL, and DOES 1-10,
inclusive,
Defendants.
Case No: CV 10-03633 ODW (RZx) Hon. Otis D. Wright II, U.S.D.J. Hon. Ralph Zarefsky, U.S.M.J. [PROPOSED] ORDER AND STATEMENT OF DECISION RE: DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON DC’S FOURTH, FIFTH AND SIXTH CLAIMS FOR RELIEF Complaint filed: May 14, 2010 Discovery Cutoff: None Set Trial Date: None Set Date: March 11, 2012 Time: 1:30 p.m. Place: Courtroom 11
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1 [PROPOSED] ORDER AND STATEMENT OF DECISION RE: DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT ON FOURTH, FIFTH AND SIXTH CLAIMS FOR RELIEF
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Good cause appearing, IT IS HEREBY ORDERED that Defendants’ Motion
For Partial Summary Judgment On DC’s Fourth, Fifth and Sixth Claims For Relief Is
GRANTED.
1. Summary judgment should be granted in Defendants’ favor on DC’s
Fourth Claim for Relief (Dkt. 49 (“FAC”) ¶¶ 174-79) for tortious interference with
contract. The Fourth Claim, brought in 2010, is barred by the applicable two-year
statute of limitations (Cal. Code of Civ. Proc. § 339(1)), which expired no later than
2008.
Tortious interference claims accrue “at the date of the wrongful act” and “[can]
not be later than the actual breach of the contract by the party who was wrongfully
induced to breach.” Trembath v. Digardi, 43 Cal. App. 3d 834, 836 (1974). “[T]he
statute of limitations [for tortious interference] began to run when the contract was
actually breached.” Forcier v. Microsoft Corp., 123 F. Supp. 2d 520, 530 (N.D. Cal.
2000). Here, the alleged breach consisted of the 2001 and 2003 PPC Agreements,
and the resulting 2003 Shuster Termination, both well outside the statute of
limitations period.
DC cannot invoke the “delayed discovery” rule because all that is required to
trigger the statute of limitations is inquiry notice, which occurs “once the plaintiff has
notice or information of circumstances to put a reasonable person on inquiry.” Jolly
v. Eli Lilly & Co., 44 Cal. 3d 1103, 1110-11 (1988) (citations omitted). DC was
served with the Shuster Termination in 2003; and DC was on actual and inquiry
notice by November 15, 2006, when it was provided with complete and unredacted
copies of both the 2001 and 2003 PPC Agreements. Defendants’ Statement of
Undisputed Facts (“SUF”) ¶25; see Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d
1055, 1061 (9th Cir. 2012).
Because DC had actual and inquiry notice by 2006, any allegations by DC of
fraudulent concealment are irrelevant. Barber v. Superior Court, 234 Cal. App. 3d
1076, 1083 (1991). The “continuing harm” doctrine does not apply to DC’s
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2 [PROPOSED] ORDER AND STATEMENT OF DECISION RE: DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT ON FOURTH, FIFTH AND SIXTH CLAIMS FOR RELIEF