Siegel and Shuster Attorney: It's Over.

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 1 of 29 Page ID #:37278
1 Marc Toberoff (State Bar No. 188547)
2 Keith G. Adams (State Bar No. 240497) 3 Pablo D. Arredondo (State Bar No. 241142) 4 David Harris (State Bar No.255557)
mtoberoff@toberoffandassociates.com kadams@toberoffandassociates.com
parredondo@toberoffandassociates.com dharris@toberoffandassociates.com
5 TOBEROFF & ASSOCIATES, P.C. 6 Malibu, California 90265 7 Fax:
22337 Pacific Coast Highway #348 Telephone: (310) 246-3333 (310) 246-3101
8 Attorneys for Defendants Mark Warren 9 Estate of Joseph Shuster, Jean Adele Peavy, 10 as personal representative of the Estate of
Peary, as personal representative of the Joanne Siegel
and Laura Siegel Larson, individually and
11
UNITED STATES DISTRICT COURT

12
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION Case No: CV 10-03633 ODW (RZx) DC COMICS, 14 Plaintiff, Hon. Otis D. Wright II, U.S.D.J. vs. Hon. Ralph Zarefsky, U.S.M.J. 15
13 16 PACIFIC PICTURES CORPORATION; 17 IP WORLDWIDE, LLC; IPW, LLC;
MARC TOBEROFF, an individual;
18 MARK WARREN PEARY, as personal 19 representative of the ESTATE OF 20 PEAVY, an individual; LAURA 21 SIEGEL LARSON, individually and as 22 OF JOANNE SIEGEL, and 23 DOES 1-10, inclusive, 24 25 26 27 28
DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT ON DCS 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
JOSEPH SHUSTER; JEAN ADELE
personal representative of the ESTATE
Defendants.
DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH, AND SIXTH CLAIMS
1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2
PLEASE TAKE NOTICE that on March 11, 2013 at 1:30 p.m., or as soon
3 thereafter as counsel may be heard, in Courtroom 11 of the above-captioned Court, 4 located at 312 N. Spring Street, Los Angeles, California, 90012, defendants Mark 5 Warren Peary, as personal representative of the Estate of Joseph Shuster, and Jean 6 Adele Peavy, Laura Siegel Larson, individually and as personal representative of the 7 Estate of Joanne Siegel, Marc Toberoff, Pacific Pictures Corporation, IP Worldwide, 8 LLC and IPW, LLC (collectively, Defendants), will and hereby do move for 9 summary judgment, dismissing the Fourth, Fifth and Sixth Claims for Relief in 10 plaintiff DC Comics (DC) first amended complaint pursuant to Fed. R. Civ. P. 56 11 the only remaining claims in this case. 12
Defendants Marc Toberoff and Pacific Pictures Corporation move for
13 summary judgment on DCs Fourth Claim for tortious interference with contract, as it 14 is clearly barred by the statute of limitations. Defendant Marc Toberoff moves for 15 summary judgment on DCs Fifth Claim for tortious interference with prospective 16 economic advantage, as it is also barred by the statute of limitations. All Defendants 17 moves for summary judgment on DCs Sixth Claim for declaratory relief, under 18 Californias Unfair Competition Law, because it is moot, preempted by the Copyright 19 Act and barred, in part, by the statute of limitations. 20
This Motion is made following the conference of counsel pursuant to L.R. 7-3,
21 on November 28, 2012. This Motion is based on this Notice of Motion, the attached 22 Memorandum of Points and Authorities, all of the pleadings, files, and records in this 23 proceeding, all other matters of which the Court may take judicial notice, and any 24 argument or evidence that may be presented to or considered by the Court. 25 26 27 28
Dated: February 4, 2013
RESPECTFULLY SUBMITTED, /s/ Keith G. Adams TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants Mark Warren Peary et al.
1
NOTICE OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
2 INTRODUCTION ..................................................................................................... 1 3 4 5 6 7 8 9 10 11
FACTUAL AND PROCEDURAL BACKGROUND .............................................. 3 A. B. The Shuster Termination ....................................................................... 3 The Siegels Terminations And Negotiations With DC ....................... 4 1. 2. 3. C. D. The Siegels Negotiate With DC ................................................. 4 The August 2002 Offer ............................................................... 5 The Siegels Regroup .................................................................. 5
The Siegel Litigation ............................................................................. 6 The Instant Action ................................................................................. 7
12 LEGAL STANDARD................................................................................................ 7 13 ARGUMENT ............................................................................................................. 8 14 I. 15 16 17 18 19 20 21 22 23 24 25 26 II. 27 28
DCS FOURTH CLAIM IS TIME-BARRED ................................................ 8 A. DCs 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 The Delayed Discovery Rule Is Inapplicable Because DC Received The Shuster Termination In 2003 And The PPC Agreements In 2006 ............................................................ 9 The Timeline Does Not Invoke The Delayed Discovery Rule ........................................................................................... 11 There Was No Concealment, And Concealment Is Irrelevant When A Party Has Inquiry Notice ........................... 12 The Continuing Harm Doctrine Does Not Apply To DCs Interference Claims ......................................................... 12
2.
3. 4. 5.
DCS 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
i TABLES OF CONTENTS AND AUTHORITIES
1 2 3 4 5 6 7 8 9 10
1. 2. 3. B. III.
DC Was On Inquiry Notice Since At Least 2006 ..................... 14 DC Read The Timeline In 2006................................................ 16 DCs Statements And Conduct Demonstrate That It Was On Actual Notice Of Its Interference Claims ........................... 18
DCs Interference Claim Is Time-Barred Even If Amended To Allege Interference With Contract ...................................................... 19
DCS SIXTH CLAIM IS BARRED ............................................................. 19 A. B. C. DCs Sixth Claim Is Moot................................................................... 19 DCs Sixth Claim Is Time-Barred As To The PPC Agreements ........ 21 DCs Sixth Claim Is Preempted By The Copyright Act ..................... 21
11 CONCLUSION ........................................................................................................ 22 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ii TABLES OF CONTENTS AND AUTHORITIES
1 2 3
TABLE OF AUTHORITIES Cases
Altera Corp. v. Clear Logic, Inc., 4 424 F.3d 1079 (9th Cir. 2005) ................................................................................. 22
5 American Rivers v. National Marine Fisheries Serv., 6 7 158 Cal. App. 4th 1582 (2008) ................................................................................ 18 8 Anderson v. Liberty Lobby, Inc., 10 Barber v. Superior Court, 11 9 477 U.S. 242 (1986) ............................................................................................... 7-8
126 F.3d 1118 (9th Cir. 1997) ........................................................................... 19-20
Amtower v. Photon Dynamics, Inc.,
234 Cal. App. 3d 1076 (1991) ................................................................................. 12
Betz v. Trainer Wortham & Co., 12 236 Fed. Appx. 253 (9th Cir. May 11, 2007) .......................................................... 21
13 Blue Nile, Inc. v. Ice.com, Inc., 14
478 F. Supp. 2d 1240 (W.D. Wash. 2007) .............................................................. 22
15 688 F. Supp. 2d 940 (N.D. Cal. 2010) ..................................................................... 13 16
Boon Rawd Trading Intl Co., Ltd. v. Paleewong Trading Co.,
Brodzki v. United States, 17 2012 WL 1536344 (N.D. Cal. May 1, 2012) ........................................................... 11
18 Celotex Corporation v. Catrett, 19 20 623 F.2d 117 (9th Cir. 1980) ................................................................................... 12 21 Cortez v. Purolator Air Filtration Products Co., 22
477 U.S. 317 (1986) ............................................................................................... 7-8 Conerly v. Westinghouse Elec. Corp.,
23 Cal. 4th 163 (2000) ............................................................................................. 21 820 F.2d 973 (9th Cir. 1987) ................................................................................... 22
23 Del Madera Properties v. Rhodes & Gardner, Inc., 24
DHX, Inc. v. Allianz AGF MAT, Ltd., 25 425 F.3d 1169 (9th Cir. 2005) ........................................................................... 19-20
26 Eagle Precision Techs., Inc. v. Eaton Leonard Robolix, Inc., 27 28
iii TABLES OF CONTENTS AND AUTHORITIES
2006 U.S. Dist. LEXIS 98598 (S.D. Cal. Apr. 5, 2006)................................ 8, 10, 19
1 Fox v. Ethicon Endo-Surgery, Inc., 2 3 Flowers v. Carville, 4
35 Cal. 4th 797 (2005) ............................................................................................. 14 310 F.3d 1118 (9th Cir. 2002) ........................................................................... 12-13
Forcier v. Microsoft Corp., 5 123 F. Supp. 2d 520 (N.D. Cal. 2000) ................................................................. 9, 15
6 GO Computer, Inc. v. Microsoft Corp., 7
508 F.3d 170 (4th Cir. 2007) ................................................................................... 16
8 681 F.3d 1055 (9th Cir. 2012) ................................................................................. 11
Hexcel Corp. v. Ineos Polymers, Inc.,
Intermedics, Inc. v. Ventritex, Inc., 10 822 F. Supp. 634 (N.D. Cal. 1993) .......................................................................... 18
11 Jolly v. Eli Lilly & Co., 12 13 285 F.3d 848 (9th Cir. 2002) ................................................................................... 21 14 Kittel v. Thomas, 15
44 Cal. 3d 1103 (1988) ...................................................................................... 10, 17
Karl Storz Endoscopy Am., Inc. v. Surgical Techs., Inc.,
620 F.3d 1203 (9th Cir. 2011) ................................................................................. 21 152 F.3d 1209 (9th Cir. 1998) ................................................................................. 21
16 Kodadek v. MTV Networks, 17
M&F Fishing, Inc. v. Sea-PAC Ins. Managers, Inc., 18 202 Cal. App. 4th 1509 (2012) ................................................................................ 20
19 MEECO Mfg. Co. v. True Value Co., 20
U.S. Dist. LEXIS 25986 (W.D. Wash. Apr. 3, 2007) ............................................. 22
21 33 Cal. 3d 868 (1983) ........................................................................................ 17-18 22
Miller v. Bechtel Corp.,
Mirbeau of Geneva Lake, LLC v. City of Lake Geneva, 23 746 F. Supp. 2d 1000 (E.D. Wis. 2010) .................................................................. 11
24 Motown Record Corp. v. George A. Hormel & Co., 25 26 653 F.3d 1081 (9th Cir. 2011) ................................................................................. 19 27 Norgart v. Upjohn Co., 28
657 F. Supp. 1236 (C.D. Cal. 1987) ........................................................................ 22
Pitts v. Terrible Herbst, Inc.,
21 Cal. 4th 383 (1999) ............................................................................................. 10

iv TABLES OF CONTENTS AND AUTHORITIES
1 Ritchie v. Williams, 2
395 F.3d 283 (6th Cir. 2005) ................................................................................... 21
3 Sabety v. Pomona Valley Hosp. Med. Ctr., Inc., 4
2001 Cal. App. Unpub. LEXIS 529 (Cal. App. 2d Dist. Dec. 20, 2001) ................ 17
Samuels v. Forest, 5 2007 WL 3149285 (Cal. App. Oct. 30, 2007) ......................................................... 16
6 Stockton Citizens for Sensible Planning v. City of Stockton, 7
48 Cal. 4th 481 (2010) ............................................................................................... 8
8 2006 WL 5441237 (C.D. Cal. Sept. 14, 2006) ........................................................ 10
Streamcast Networks, Inc. v. Skype Techs., S.A.,
Suckow Borax Mines Consolidated v. Borax Consolidated, 10 185 F.2d 196 (9th Cir. 1951) ................................................................................... 12
11 Tatyana Evgenievna Drevaleva v. United States, 12 13 43 Cal. App. 3d 834 (1974) ....................................................................... 8-9, 14, 19 14 Trenton v. Infinity Broadcastg Corp., 15 16 Yumul v. Smart Balance, Inc., 17 18 19 20 21
2010 U.S. Dist. LEXIS 51687 (N.D. Cal. May 26, 2010) ...................................... 20 Trembath v. Digardi,
865 F. Supp. 1416 (C.D. Cal. 1994) ........................................................................ 21
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
22 Cal. Code of Civ. Proc. 339(1) ......................................................................... 8, 13 23 F.R.C.P. 56 ............................................................................................................. 7-8 24 25 26 27 28

v TABLES OF CONTENTS AND AUTHORITIES
1 2
INTRODUCTION This motion for summary judgment is straightforward: DC Comics (DC)
3 Fourth, Fifth, and Sixth Claims are time-barred. DC alleges that Defendants engaged 4 in tortious conduct between 2001 and 2003. The record shows that DC was on 5 notice of this supposedly tortious conduct by no later than 2006. And yet DC did not 6 file suit that year. Nor did it file in 2007, 2008, or even 2009. Instead, DC sat on its 7 alleged rights, and did not file suit until May 2010 nearly a decade after the 8 supposed torts had occurred and nearly half a decade after it was put on notice. 9 These state-law claims were filed much too late, and are conclusively barred by the 10 statute of limitations. 11
DCs Fourth Claim alleges that Mr. Toberoff and Pacific Pictures Corp.
12 (PPC) tortiously interfered with DCs 1992 agreement with Joseph Shusters 13 siblings by entering into 2001 and 2003 agreements with Mark Warren Peary (both of 14 which were cancelled in 2004), and by serving notices of termination. This claim is 15 barred by the two-year statute of limitations applicable to interference claims, which 16 started to run, at the very latest, when DC had enough information to make a 17 reasonable person suspicious, thereby putting DC on inquiry notice. 18
Here, DC received the Shuster termination notice in 2003; and was provided
19 with complete, unredacted copies of both the 2001 and 2003 PPC agreements in 20 2006. With the termination notice and agreements in hand, DC was on actual notice 21 of its Fourth Claim, and the clock started ticking. The statute of limitations ran out in 22 2008, at the latest, two years before DC filed this suit. 23
DCs Fifth Claim alleges that Mr. Toberoff tortiously interfered with its
24 relationship with Joanne Siegel and Laura Siegel Larson when he conveyed an offer 25 to their attorney to license their Superman rights in August 2002. According to DC, 26 this offer wrongfully induced the Siegels to end their negotiations with DC (even 27 though the Siegels had called an agreement with DC impossible months earlier). 28
This claim is also barred by the applicable two-year statute of limitations. DC

1 DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH, AND SIXTH CLAIMS
1 received a September 21, 2002 letter from the Siegels formally ending negotiations. 2 When negotiations resumed in 2003, it became aware that the Siegels were 3 represented by Mr. Toberoff and Ari Emanuel. By mid-2006, DC claims it received 4 an anonymous, so-called Timeline, containing the false accusation that the August 5 2002 offer was fraudulent. DC disclosed the Timelines allegations to its outside 6 counsel in 2006. Its outside counsel took extensive discovery in 2006, including 7 deposition testimony from all relevant witnesses about the August 2002 offer, the 8 Siegels September 21, 2002 letter ending negotiations, and their subsequent October 9 3, 2002 agreement with IP Worldwide (Toberoff/Emanuel), which was produced to 10 DC in late-2006. 11
There is no need to speculate whether all of this was enough to put DC on
12 notice of its Fifth Claim the answer is found in DCs own briefs in the related 13 Siegel case. During summary judgment, in 2007, DC explicitly argued that Mr. 14 Toberoff had interfered with its relationship with the Siegels. According to DC, 15 the Siegels abruptly fired [their former counsel] and terminated discussions with DC 16 shortly after receiving Mr. Toberoffs $15 million plus offer. Statement of 17 Undisputed Facts (SUF) 47; see also SUF 46 (DC: Siegels agreed to a contract 18 until [they] suddenly appeared to have second thoughts after being presented with a 19 seemingly more lucrative offer by their current counsel [Toberoff].). 20
By no later than 2006, DC had more than sufficient information to trigger the
21 applicable two-year statute of limitations. DC did not file until four years later in 22 2010 two years after the statute had run out. 23
DCs Sixth Claim alleges that the expired 2001 and 2003 PPC agreements, as
24 well as a 2008 agreement between the Siegels and Shusters, ran afoul of Californias 25 Unfair Competition Law. This claim is moot. The only relief DC seeks is to have 26 the agreements declared invalid relief DC already secured when the Court ruled in 27 DCs favor on its Third Claim. The jurisdiction of federal courts is limited to live 28 controversies, and courts lack the authority to issue advisory opinions on moot
1 claims. This claim is also preempted because it is based entirely upon an alleged 2 violation of the Copyright Act. Finally, to the extent it is based on the 2001 and 2003 3 PPC Agreements, the claim is barred by the applicable four-year statute of 4 limitations, which began to run on the date of supposed injury, i.e., when these 5 agreements were entered into. 6 7
*** As this Court has recognized, the central legal issue in this case was whether
8 the Shuster estates notices of termination under the Copyright Act were valid. See 9 Dkt. 533 at 3 (Court: The resolution of DCs First Claim regarding the validity of 10 the Shuster Termination is []of far greater economic importance to the parties than 11 any of DCs peripheral state-law claims.) (citation omitted). DCs long time-barred 12 Fourth, Fifth, and Sixth Claims were tacked onto its complaint in the hope of putting 13 pressure on the Shuster executor (Mr. Peary), his mother Ms. Peavy, Ms. Larson, and 14 their long-time counsel, Mr. Toberoff. Now that the Court has ruled on the validity 15 of the Shuster termination, these peripheral state-law claims are all that remain of 16 this case. Id. It is time to dispose of these stale secondary claims and finally bring 17 the DC Comics case to a close. See 9th Cir. Appeal No. 11-56934, Dkt. 66 at 3 18 (Ninth Circuit noting that arguments based on the legal sufficiency of DCs claims 19 are properly directed to the district court in the form of a dispositive motion). 20 21 22
FACTUAL AND PROCEDURAL BACKGROUND A. The Shuster Termination After Joe Shusters death, DC entered into a one-page agreement dated
1
23 October 2, 1992 with his surviving siblings, Frank Shuster and Jean Adele Peavy (the 24 1992 Agreement). SUF 1. In 1998, Congress amended the 1976 Copyright Act, 25 and provided an authors estate with the right to recover the authors copyrights by 26
In 2012, this Court held that the 1992 Agreement nullified the Shuster estates termination right by effectively revoking Shusters prior Superman copyright assignments to DC and 28 simultaneously re-assigning Shusters Superman copyrights to DC in a non-terminable postJanuary 1, 1978 grant. Dkt. 507.
27
1 statutorily terminating the authors old copyright grants. Pub. L. 105-298 (1998); 17 2 U.S.C. 304(c)(2)(D). In November 2001, Mr. Peary and his mother, Ms. Peavy, 3 entered into a November 23, 2001 agreement with Mr. Toberoffs loan-out 4 company, Pacific Pictures Corp. (the 2001 PPC Agreement) to investigate, 5 retrieve, enforce and exploit Joe Shusters claims and copyrights via the 6 establishment of Shusters estate and the estates termination pursuant to Section 7 304(c) of the U.S. Copyright Law (Title 17, U.S.C.).... SUF 2. Thereafter, Joe 8 Shusters estate was probated, and Mr. Peary was appointed the estates executor on 9 October 7, 2003. SUF 3. The Shuster Estate entered into an agreement dated 10 October 27, 2003 (the 2003 PPC Agreement) engag[ing] PPC as its exclusive 11 advisor for the purpose of retrieving, enforcing and exploiting all of Joe Shusters, 12 and his estates, rights, including the estates copyright termination interest in 13 SUPERMAN pursuant to Section 304(d) of the U.S. Copyright Law. SUF 4. 14
In November 2003, Mr. Toberoff, as attorney for the Shuster Estate, served on
15 DC and filed a notice of termination under 17 U.S.C. 304(d) of Joe Shusters prior 16 Superman copyright grants to DC (the Shuster Termination). SUF 5. 17
In September 2004, Toberoff, Peary and Peavy voluntarily cancelled the
18 2001/2003 PPC Agreements, and entered into a legal retainer agreement dated as of 19 November 23, 2001. SUF 6-7. 20 21 22
B.
The Siegels Terminations And Negotiations With DC 1. The Siegels Negotiate With DC
In 1997, Jerome Siegels widow, Joanne Siegel, and his daughter, Laura Siegel
23 Larson, filed and served on DC, pursuant to 17 U.S.C. 304(c), notices of 24 termination of Siegels Superman copyright grants to DC (the Siegel Termination). 25 SUF 8. On April 15, 1999, one day before the Siegel Termination became effective, 26 DC contested it. SUF 9. The Siegels engaged in negotiations with DC, represented 27 by attorney Kevin Marks. SUF 10. On October 19, 2001, Marks sent DC a letter 28 outlining and purporting to accept what he believed were the terms of an oral October
1 16 offer by DC (the October 19, 2001 Letter). SUF 11. On October 26, 2001, DC 2 sent Marks its outline of what it believed the terms were. SUF 12. Months later, 3 on February 1, 2002, DC sent a 56-page draft of the agreement it proposed. SUF 4 13. Angered by DCs February 1 proposal, Joanne Siegel sent a letter to DCs 5 parent company on May 9, 2002, which stated: 6 7 8 9
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 [DCs] last proposal we were stabbed in the back by a shocking contract. Your companys 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. 2. The August 2002 Offer
10 SUF 14. 11 12
In late July/August 2002, three months after Joanne Siegel had declared an
13 agreement with DC impossible, Mr. Toberoff informed Marks that he was working 14 with Ari Emanuel, the CEO of Endeavor (now William Morris Endeavor) and 15 inquired whether the Siegels were interested in licensing their rights. SUF 15-16. 16 Marks, Toberoff and Emanuel then scheduled and held a conference call in August 17 2002, during which an offer was made to purchase the Siegels rights for $15 million 18 (the August 2002 Offer). SUF 17. Marks conveyed the August 2002 Offer to the 19 Siegels, but neither they nor Marks responded to it. SUF 18. 20 21
3.
The Siegels Regroup
On September 21, 2002, after years of grinding negotiations, the Siegels sent a
22 letter to Marks, with a copy to DC, terminating Marks and providing notification 23 that we are totally stopping and ending all negotiations with DC. SUF 19. On 24 October 3, 2002, the Siegels entered into an agreement with IP Worldwide, LLC (the 25 IP Worldwide Agreement), a joint venture between Mr. Toberoff and Emanuel, to 26 represent their Superman termination interest. SUF 20. The IP Worldwide 27 Agreement provided for the legal services of Marc Toberoff, Esq. and the business 28 services of Ariel Emanuel to market and negotiate the sale, license [or] settlement
1 of the [Siegel Termination] Rights. SUF 20. In 2003, Toberoff and Emanuel, on 2 the Siegels behalf, recommenced settlement negotiations with DC. SUF 22. 3 4
C.
The Siegel Litigation
After renewed negotiations with DC did not result in settlement, Mr. Toberoff
5 filed the Siegel case in October 2004 to validate the Siegel Terminations, and enforce 6 the Siegels copyrights. SUF 23. In response, DC asserted various alleged 7 defenses, and argued, for the first time in three years, that the October 19, 2001 Letter 8 was an enforceable contract. SUF 24. 9
On or before June 2006, Warner Bros. (DCs parent company and co-
10 defendant in Siegel) received packages of anonymous documents stolen from Mr. 11 Toberoffs law firm, including privileged attorney-client communications, 12 accompanied by an anonymous document entitled Superman/Marc Toberoff 13 Timeline. SUF 38. The Timeline accused Mr. Toberoff of wrongfully 14 interfering with DCs relationships and agreements with the Shuster and Siegel heirs. 15 SUF 39. Warners in-house counsel Wayne Smith (Vice President, Senior 16 Litigation and Chief Patent Counsel) and John Schulman (General Counsel), who 17 oversaw the Siegel litigation for both Warner and DC read the Timeline in June 18 2006. SUF 40-41. In July 2006 Mr. Smith informed DCs outside litigation 19 counsel of the Timelines interference allegations. SUF 42. 20
During discovery in Siegel, the 2001 and 2003 PPC Agreements with the
21 Shusters and the 2002 IP Worldwide Agreement with the Siegels were all produced 22 to DC by November 15, 2006. SUF 25. DC took extensive discovery on the 2001 23 and 2003 PPC Agreements. SUF 29-33. DC also took extensive discovery on the 24 August 2002 Offer, the Siegels cessation of negotiations and the IP Worldwide 25 Agreement. SUF 26-28, 31, 34-36. 26
In May 2007, in Siegel, both sides filed motions for partial summary judgment.
27 SUF 43. In opposition, DC argued that Mr. Toberoff had interfered with DCs 28
2
The IP Worldwide Agreement expired on April 23, 2005. SUF 21.
1 negotiations with the Siegels via the August 2002 offer[] to purchase [their] 2 Superman copyright interests for $15 million. SUF 44-47. On March 26, 2008, 3 the district court granted the Siegels motion, held that the Siegel Termination was 4 valid and rejected DCs claim that the parties had reached an agreement on October 5 19, 2001. Siegel v. Warner Bros. Ent., Inc., 542 F. Supp. 2d 1098 (C.D. Cal. 2008). 6
The Siegel case was thereafter transferred to this Court, which entered a Rule
7 54(b) judgment in May 2011. Siegel, Dkt. 669. On appeal, the Ninth Circuit found 8 that the October 19, 2001 Letter was sufficient to create a contract on October 19, 9 2001, and remanded the case for further adjudication of DCs contract claims. 9th 10 Cir. Appeal No. 11-55863, Dkt. 70-1. 11 12
D.
The Instant Action
On May 14, 2010, after the Siegel and Shuster heirs did not accept Warners
13 offer in a settlement mediation, DC filed the instant action against its opposing 14 counsel, Mr. Toberoff, and against the Siegel and Shuster heirs. SUF 50-51. 15 Along with three federal claims aimed at the Shuster Termination, DC brought 16 California state-law claims: its Fourth and Fifth Claims, against Mr. Toberoff for 17 purported tortious interference, and its Sixth Claim, against all defendants for 18 declaratory relief under Californias unfair competition law (UCL). SUF 51. 19 20
LEGAL STANDARD Summary judgment is appropriate where the record show[s] that there is no
21 genuine issue as to any material fact and that the moving party is entitled to 22 judgment as a matter of law. F.R.C.P. 56(c). The moving party bears the initial 23 burden of demonstrating the absence of a genuine issue of material fact. Anderson v. 24 Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A fact is material only if it affects 25 the outcome. Id. at 248. The moving party need not disprove the other partys case. 26 Celotex Corporation v. Catrett, 477 U.S. 317, 325 (1986). If the moving party 27 meets its initial burden, the adverse party may not rest [on its] pleadings, and 28 must demonstrate by admissible evidence the existence of a genuine issue of
1 material fact for trial. F.R.C.P. 56(c), Celotex, 477 U.S. at 323. [T]he mere 2 existence of a scintilla of evidence is insufficient. Anderson, 477 U.S. at 252. 3
Where claims are barred by the statute of limitations, courts must dismiss them
4 irrespective of their purported merits. See Stockton Citizens for Sensible Planning v. 5 City of Stockton, 48 Cal. 4th 481, 499 (2010) (A statute of limitations operates 6 conclusively across-the-board. It does so with respect to all causes of action.). 7 8 I. 9 10 11
ARGUMENT DCS FOURTH CLAIM IS TIME-BARRED A. DCs Claim Accrued By No Later Than 2006 And Is Barred By The Two-Year Statute Of Limitations DCs Fourth Claim (Dkt. 49, First Amended Complaint (FAC) 174-79)
12 for tortious interference with contract, based on Mr. Toberoffs alleged inducement 13 of the Shusters to breach the 1992 Agreement, is barred by the two-year statute of 14 limitations. Cal. Code of Civ. Proc. 339(1). A claim of tortious interference with 15 contract accrues on the date of the wrongful act and [can]not be later than the 16 actual breach of the contract by the party who was wrongfully induced to breach. 17 Trembath v. Digardi, 43 Cal. App. 3d 834, 836 (1974); see Eagle Precision Techs., 18 Inc. v. Eaton Leonard Robolix, Inc., 2006 U.S. Dist. LEXIS 98598, at *6-7 (S.D. Cal. 19 Apr. 5, 2006) (At the very latest, the statute of limitations beg[ins] to run on the date 20 [the plaintiff] learn[s] of the breach.). 21 22 23
1.
The Alleged Interference Consisted Of The 2001 And 2003 PPC Agreements And The 2003 Shuster Termination
Here, DC has alleged, and this Court has accepted, that the supposed actual
24 breach at issue in DCs Fourth Claim occurred when the Shuster heirs form[e]d a 25 joint venture [with] Pacific Pictures Corporation [the 2001 PPC Agreement] to 26 exploit the Shusters copyrights. Dkt. 337 at 2-3 ([T]he Pacific Pictures 27 Agreements essentially gut the 1992 Agreement, purporting to assign to Toberoff 28 those rights which were already assigned to DC Comics); see also Dkt. 304 at 13
1 (DC: [The] Fourth Claim challenges Toberoffs deals with the Shusters [the 2 2001/2003 PPC Agreements] that interfere with DCs rights under its prior 3 agreements with the Shusters); Dkt. 334 at 18 (DC: DCs Fourth Claim challenges 4 their business conduct in having Pacific Pictures enter into a contract with the 5 Shusters [the 2001 PPC Agreement].); FAC 177 (DC: Toberoffs ultimate 6 purpose was to induce them to repudiate the 1992 Agreement. Toberoff knew that 7 his actions in having his company [PPC] enter into a joint venture with the Shusters 8 [the 2001 PPC Agreement] for the purpose of terminating DCs rights [was] 9 substantially certain to interfere with [the] 1992 Agreement.). 10
DC alleged that the Shuster Termination constituted interference as well. Id.
11 See also FAC 6 (Toberoff also induced the Shuster heirs to serve a notice of 12 termination [as to] the same alleged interests they had granted to DC Comics 13 under the parties1992 agreement.), 60 (The 2001 [PPC Agreement] provided that 14 this purpose would be realized in part via the establishment of Joe Shusters estate 15 and the estates termination pursuant to 17 U.S.C. 304(c).). 16
Leaving aside the dubious nature of DCs legal theory that a joint venture to
17 exercise statutory termination rights is tortious, the Shuster heirs and PPC formed 18 their joint venture in 2001 (2001 PPC Agreement); reaffirmed it in 2003 after the 19 Shuster Estate was probated (2003 PPC Agreement); and thereafter served the 20 Shuster Termination on DC in late-2003. SUF 2, 4-5. The alleged actual breach 21 of the 1992 Agreement therefore occurred seven to nine years before DC filed this 22 suit in 2010, and the [two-year] statute of limitations [for tortious interference] 23 began to run when the contract was actually breached. Forcier v. Microsoft Corp., 24 123 F. Supp. 2d 520, 530 (N.D. Cal. 2000) (citing Trembath, supra). 25 26 27 28
2.
The Delayed Discovery Rule Is Inapplicable Because DC Received The Shuster Termination In 2003 And The PPC Agreements In 2006
DC has argued that the statute of limitations was tolled under Californias
1 delayed discovery rule. However, this rule is an exception to the general rule 2 that postpones accrual of a cause of action until the plaintiff discovers, or has 3 reason to discover, the cause of action. Eagle Precision Techs., Inc., 2006 U.S. 4 Dist. LEXIS 98598, at *8 (emphasis added) (quoting Norgart v. Upjohn Co., 21 Cal. 5 4th 383, 397 (1999)). 6
Under this rule, all that is required to trigger the statute of limitations is inquiry
7 notice, which occurs once the plaintiff has notice or information of circumstances to 8 put a reasonable person on inquiry. Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 11109 11 (1988) (citations omitted). A plaintiff need not be aware of the specific facts 10 necessary to establish the claim. Id. at 1111. Once the plaintiff has a suspicion of 11 wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or 12 sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go 13 find the facts; she cannot wait for the facts to find her. Id; Norgart, 21 Cal. 4th at 14 397-398 (interference claims accrue when plaintiff at least suspects that someone 15 has done something wrong) (citations omitted). 16
DC was unequivocally on notice four or more years before it filed this suit.
17 DC was served with the Shuster Termination on November 10, 2003. SUF 5; see 18 FAC 177 (terminating DCs rights [was] substantially certain to interfere with 19 [the] 1992 Agreement.); see Streamcast Networks, Inc. v. Skype Techs., S.A., 20 2006 WL 5441237, at *10 (C.D. Cal. Sept. 14, 2006) (interference claim accrued 21 once plaintiff knew that counterparty sought to terminate the [contract]). 22
Moreover, in Siegel, DC was provided with complete unredacted copies of
23 both the 2001 and 2003 PPC Agreements by November 15, 2006, putting DC on 24 actual notice. SUF 25; see Eagle Precision Techs., Inc., 2006 U.S. Dist. LEXIS 25 98598, at *6-7 (statute began to run on the date [plaintiff] learned of the breach 26 when it received a copy of the [interfering] Agreement). DC even introduced and 27 relied upon the PPC Agreements as exhibits in its November 17, 2006 deposition of 28 Mr. Toberoff, and extensively questioned him about both the Shuster Termination
1 and the 2001/2003 PPC Agreements. SUF 31-33. 2
The statute of limitations thus began to run at the very latest on November 15,
3 2006, when DC was on actual notice of the alleged interference and breach caused by 4 the 2001 and 2003 PPC Agreements and had long before received the 2003 Shuster 5 Termination. See Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1061 (9th 6 Cir. 2012) (plaintiff had inquiry notice once it knew of two specific [] agreements 7 underpinning the claim). DCs Fourth Claim expired at the very latest on November 8 15, 2008, and must be rejected as DC filed in 2010, long after the statute had run. 9 See Brodzki v. United States, 2012 WL 1536344, at *1 (N.D. Cal. May 1, 2012) 10 (The court must dismiss Plaintiffs complaint because the statute of limitations 11 for his claims has passed.); Mirbeau of Geneva Lake, LLC v. City of Lake Geneva, 12 746 F. Supp. 2d 1000, 1018 (E.D. Wis. 2010) (holding that the court has no choice 13 but to dismiss [tortious interference] claims where the events providing a cause of 14 action occurred well outside of the statute of limitations period). 15 16
3.
The Timeline Does Not Invoke The Delayed Discovery Rule
DC has also argued that the statute of limitations was tolled under Californias
17 delayed discovery rule because it was supposedly unaware of the facts until 18 Defendants formally produced the anonymous Timeline in 2008. This is not true. 19 First, DC has admitted that in-house counsel received and read the Timeline in 2006, 20 and then conveyed the Timelines accusations to outside counsel. SUF 40-42; see 21 section II.A.2, infra. Second, as shown directly above, the PPC Agreements and 22 Shuster Termination placed DC on actual and inquiry notice without the Timeline. 23 Indeed, DCs Fourth Claim is based directly on the PPC Agreements and the Shuster 24 Termination themselves. See, e.g., FAC 6, 60-64, 90, 177-78. At the moment DC 25 received copies of the PPC Agreements in 2006, it could have written and filed 26 almost the exact same Fourth Claim as it did in 2010, two years after the limitations 27 period had expired. 28 ///
1 2 3
4.
There Was No Concealment, And Concealment Is Irrelevant When A Party Has Inquiry Notice
DC has argued that Defendants somehow concealed the relevant facts, but
4 Defendants served and filed the Shuster Termination in 2003 and voluntarily 5 produced the allegedly tortious 2001 and 2003 PPC Agreements in 2006. Moreover, 6 the fraudulent concealment tolling provision does not come into play, whatever the 7 lengths to which a defendant has gone to conceal his wrongs, if a plaintiff is on notice 8 of a potential claim, as DC unquestionably was after it received the PPC 9 Agreements and Shuster Termination. Barber v. Superior Court, 234 Cal. App. 3d 10 1076, 1083 (1991). DC also has not pled with [the requisite] particularity 11 fraudulent concealment as to its Fourth Claim, because it does not and indeed cannot 12 show any circumstances indicating that [it] was not at fault for failing to discover 13 [the facts] earlier, and that [it] had no actual or constructive knowledge of facts 14 sufficient to put [it] on inquiry. Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 15 1117, 1133 (C.D. Cal. 2010); see Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 16 120 (9th Cir. 1980) (plaintiff must show affirmative conduct on the part of the 17 defendant which would lead a reasonable person to believe that there was no claim 18 for relief); Suckow Borax Mines Consolidated v. Borax Consolidated, 185 F.2d 196, 19 209 (9th Cir. 1951) (a bare allegation of fraudulent concealment falls far short of 20 the particularity of statement required by Rule 9(b)). 21 22 23
5.
The Continuing Harm Doctrine Does Not Apply To DCs Interference Claims
DC has erroneously argued that the statute is tolled due to purported
24 continuing harm from the 2001 and 2003 PPC Agreements cancelled in 2004. 25 The continuing harm doctrine is inapplicable because it applies only where there 26 is no single incident that can fairly or realistically be identified as the cause of 27 significant harm. Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002) 28
(citations omitted) (where lawsuit based on publication of a book, publication, not

1 continuing distribution, triggered the statute; [t]he only thing continuing about this 2 tort was [the plaintiffs] protracted failure to bring a lawsuit when she had the 3 chance). The continuing harm doctrine has no application here, where the PPC 4 Agreements can be fairly and realistically identified as the supposed cause of, 5 and basis for, DCs claim. Id. See also Dkt. 337 (Courts order, holding that the 6 gravamen of DCs claim is that Mr. Toberoff reach[ed] out to, and form[ed] a 7 joint venture between the Shusters and Pacific Pictures Corporation). 8
Moreover, the courts have expressly rejected continuing harm theories with
9 respect to claims for tortious interference. See Boon Rawd Trading Intl Co., Ltd. v. 10 Paleewong Trading Co., 688 F. Supp. 2d 940, 952 (N.D. Cal. 2010). Indeed, DC can 11 cite no case applying the continuing harm doctrine to interference claims. Id. 12 (noting that no California case has extended the doctrine [of continuing harm] to the 13 tort of intentional interference with prospective economic advantage or contract). 14 II. 15 16 17
DCS FIFTH CLAIM IS TIME-BARRED A. The Statute Was Triggered In 2002, And DC Was On Inquiry Notice Of Its Claim By 2006 Like its Fourth Claim, DCs Fifth Claim (FAC 180-86) for interference with
18 prospective economic advantage, filed in 2010, is barred by the two-year statute of 19 limitations. Cal. Code of Civ. Proc. 339(1). 20
DCs Fifth Claim alleges that Mr. Toberoff tortiously interfered with DCs
21 relationship with the Siegels by conveying an August 2002 offer to the Siegels then22 counsel, Kevin Marks, to purchase their Superman copyrights for $15 million. FAC 23 77-79 (On August 8, 2002, Toberoff conveyed an offer to Marks for presentation 24 to the Siegels. Toberoff claimed the investor would give the Siegel Heirs $15 25 million cash up front. [A]s a result of Toberoffs fraudulent inducements, the 26 Siegel Heirs stated that they would repudiate their agreement with DC Comics and 27 accept Toberoffs [August 2002] offer.). DC alleges that this interference caused 28 the Siegels to end negotiations and repudiate their agreement and business
1 relationship with DC (FAC 185-86), even though Joanne Siegel had already 2 declared an agreement impossible months earlier. SUF 14. This is all alleged to 3 have occurred in 2002, eight years before DC filed this suit. FAC 77-84. As set 4 forth above, the date of accrual [can] not be later than the actual breach of the 5 contract by the party who was wrongfully induced to breach, Trembath, 43 Cal. 6 App. 3d at 836, which DC alleged was in 2002. FAC 77-84, 185-86. 7 8
1.
DC Was On Inquiry Notice Since At Least 2006
As with its Fourth Claim, DC previously attempted to salvage its time-barred
9 Fifth Claim by pleading ignorance. However, the delayed discovery rule does not 10 save DCs claim from the statute of limitations. 11
By 2006 DC had actual notice of most of the alleged facts underlying its
12 Fifth Claim and the type of wrong allegedly done, and was therefore on inquiry 13 notice of its claim as a whole. As the California Supreme Court has explained, 14 [r]ather than examining whether the plaintiffs suspect facts supporting each specific 15 legal element of a particular cause of action, we look to whether the plaintiffs have 16 reason to at least suspect that a type of wrongdoing has injured them. Fox v. 17 Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807-08 (2005). 18
First, DC received a letter from the Siegels terminating their counsel, Kevin
19 Marks, and formally ending all negotiations on September 21, 2002. See SUF 19; 20 FAC 79-80 (On or around September 21, 2002, the Siegel Heirs sent a letter to 21 Marks terminating him as their attorney. On or around September 21, 2002, based on 22 Toberoffs inducements and other acts of interference described above, the Siegel 23 Heirs sent a letter to DC Comics repudiating the Siegel-DC Comics Agreement.). 24
Second, by 2003, Emanuel and Toberoff had informed DC that they now Third, on October 7, 2006, DC deposed the Siegels former attorney, Kevin
25 represented the Siegel interest, and recommenced negotiations with DC. SUF 22. 26
27 Marks, who testified that Emanuel and Toberoff had made an offer in August 2002 28 to purchase the Siegels Superman rights for $15 million. SUF 26-28; see FAC
1 77-79 (quoted above). 2
Fourth, by November 15, 2006, DC received a full unredacted copy of Laura
3 and Joanne Siegels October 3, 2002 agreement with IP Worldwide, LLC, retaining 4 Emanuel and Toberoff to arrange and negotiate the sale, lease, license, and all other 5 dispositions or exploitations of the Siegels Superman rights, shortly after the 6 Siegels had formally terminated negotiations with DC on September 21, 2002. SUF 7 20, 25; FAC 81 (On October 23, 2002, the Siegel Heirs formalized an agreement 8 with defendant IP Worldwide.). 9
Fifth, on November 17, 2006, DC deposed Mr. Toberoff , questioning him at
10 length about the August 2002 Offer and IP Worldwide Agreement. SUF 31, 34-36. 11 In fact, DCs deposition of Mr. Toberoff in 2006 tracks its Fifth Claim. SUF 37. 12
By late 2006 then, DC knew (1) all about the August 2002 Offer to license the
13 Siegels Superman copyrights; (2) that the Siegels had formally terminated 14 negotiations on September 21, 2002 and (3) that by October 3, 2002, the Siegels had 15 entered into an agreement with Emanuel/Toberoff to market their Superman rights. 16 See FAC, 78 (On August 8, 2002, Toberoff conveyed an offer to Marks for 17 presentation to the Siegels.); Fifth Claim, 185 (Toberoff knew his actions [the 18 August 2002 offer] were substantially certain to interfere with the Siegel Heirs 19 agreement and ongoing business dealings with DC Comics.); 186 (As a direct 20 result of Toberoffs misdeeds, the Siegel Heirs repudiated the Siegel-DC Comics 21 Agreement.). 22
This juxtaposition of events was more than sufficient to have at least put DC
23 on inquiry notice as to its Fifth Claim that Mr. Toberoff interfered with DCs alleged 24 prospective economic relationship or agreement with the Siegels by conveying the 25 August 2002 Offer to purchase the Siegels rights. See Forcier, 123 F. Supp. 2d at 26 531 (where plaintiff knew that allegedly misappropriated technology had been sold to 27 a company, that knowledge alone triggered inquiry notice as to any interference 28 claims against that company, even if plaintiff did not know any additional facts to
1 support interference); Samuels v. Forest, 2007 WL 3149285, at *8 (Cal. App. Oct. 2 30, 2007) (tortious interference claim accrued when the plaintiff knew as of June 26 3 that [Defendant] was no longer interested in negotiating with him, and as of July 9 4 that the Buyout Agreement had been breached); GO Computer, Inc. v. Microsoft 5 Corp., 508 F.3d 170, 172 (4th Cir. 2007) (affirming summary judgment where 6 plaintiff was on inquiry notice of their claims as of 1992, when enough red flags had 7 flown that a reasonably diligent person would have investigated and acted.). 8 9
2.
DC Read The Timeline In 2006
According to DC, it did not know enough to put it on notice of its Fifth Claim
10 until 2008 when the Court held in Siegel that privilege had been waived on the 11 Timeline. Not true. DC received, read and investigated the Timeline in 2006. 12
DC alleged that Warner, its parent-company, and DCs co-defendant in Siegel,
13 received the Timeline in June 2006. SUF 38. And Warner admitted that when it 14 received the anonymous Timeline, at least two of its attorneys in charge of the Siegel 15 litigation (Wayne Smith and John Schulman, its General Counsel) read the Timeline. 16 SUF 41-3 (Smith: I looked at what might be characterized as the cover letter that 17 came with the [Stolen] Documents. The cover letter, which was not signed 18 referenced the documents enclosed, providing an overview of their contents and their 19 connection to Plaintiffs counsels alleged wrongdoing. I also thumbed through the 20 [stolen] Documents contained with the letter, but did not read any of them in 21 detail.), 41-4 (I told Mr. Schulman that based on the contents of the cover letter 22 and my brief thumbing through the documents, it appeared that certain of the 23 documents in the package were privileged. . Mr. Schulman advised me that he 24 had only looked at the cover letter that came with the documents .). 25
In fact, DCs outside counsel testified that on July 5, 2006, Wayne Smith
26 called him and informed him of the unsigned cover letter [the Timeline] alleging, 27 among other things, various types of ethical misconduct on the part of Plaintiffs 28 counsel [Mr. Toberoff] in connection with present litigation and that the cover
1 letter also explained how the enclosed [stolen] documents related to the misconduct 2 allegations. SUF 42. DC/Warner cannot read the Timelines allegations, convey 3 them to outside counsel, and now pretend that it was not on notice. 4
That Defendants asserted privilege over the Timeline, and were not held to
5 have waived privileged until 2008, did not toll the statute of limitations. See Sabety 6 v. Pomona Valley Hosp. Med. Ctr., Inc., 2001 Cal. App. Unpub. LEXIS 529, at *16 7 (Cal. App. 2d Dist. Dec. 20, 2001) (rejecting argument that statute of limitations 8 should be tolled since [plaintiff] lacked the means of discovery of the actual 9 information [to support his claim] because the defendants asserted a privilege against 10 discovery of [the information]). 11
As set forth in Jolly, 44 Cal 3d at 1110-11, the statute of limitations is not
12 tolled while all of the facts and evidence are gathered. Rather, the statute begins to 13 run when a reasonable person has suspicion of wrongdoing and is thus put on inquiry 14 notice. Having already read and conveyed the Timelines contents to outside counsel 15 in 2006, DC did not need the Timeline to investigate its suspicions of interference. 16 In fact, after conveying the Timelines allegations to outside counsel in 2006, DC 17 immediately did just that it investigated its suspicions by taking extensive 18 discovery in Siegel as to Mr. Toberoffs communications with Marks, the August 19 2002 Offer, the IP Worldwide Agreement, etc. SUF 26-31, 34-36. 20
Moreover, even without this discovery, DC, after reading the Timeline in 2006,
21 could have filed suit, basing its interference claim on known, non-privileged events 22 (e.g., the Siegels ending of negotiations, and their retention of Toberoff / Emanuel 23 shortly thereafter) and included its other allegations on the basis of information and 24 belief, as is routine legal practice and as DC actually did in the untimely complaint it 25 filed four years later in this case. See also Jolly, 44 Cal. 3d at 1111 (A plaintiff need 26 not be aware of the specific facts necessary to establish the claim; that is a process 27 contemplated by pretrial discovery.); Miller v. Bechtel Corp., 33 Cal. 3d 868, 875 28 (1983) (fraud claim accrued when party had serious doubts and suspicions, even
1 though party did not secure the documentary evidence until later); Intermedics, Inc. v. 2 Ventritex, Inc., 822 F. Supp. 634, 641 (N.D. Cal. 1993) (noting it simply is not the 3 law that a cause of action does not accrue until a plaintiff is in a position to present 4 evidence which will establish facts which make liability a legal certainty) (emph. 5 added). For the purposes of the statute of limitations, all that matters is that DC read 6 the Timeline in 2006 and that document triggered the statute by placing DC on 7 inquiry notice of its interference claims. See Amtower v. Photon Dynamics, Inc., 158 8 Cal. App. 4th 1582, 1596-97 (2008) (claim barred where plaintiff admittedly read all 9 the pertinent documents outside the statute of limitations period). 10 11 12
3.
DCs Statements And Conduct Demonstrate That It Was On Actual Notice Of Its Interference Claims
Demonstrating that DC was well-aware of its interference claim long before it
13 now argues, DC claimed throughout its 2007 summary judgment briefs in Siegel that 14 Mr. Toberoff had interfered with DCs alleged agreement with the Siegels by 15 conveying the August 2002 Offer. SUF 44, 45 (referencing Mr. Toberoffs 16 contacts with Marks and discussing the August 2002 offer[] to purchase [the 17 Siegels] Superman copyright interests for $15 million and the Siegels subsequent 18 agreement with IP Worldwide), 46 (claiming the Siegels agreed to be bound by the 19 October 19, 2001 Letter until [they] suddenly appeared to have second thoughts 20 after being presented with a seemingly more lucrative offer by their current counsel 21 [Toberoff]). 22
In fact, DC pointedly argued in 2007 that Mr. Toberoffs purported
23 interference had caused the end of its alleged agreement: [T]he effort [to draft an 24 acceptable long-form] came to naught when [the Siegels] abruptly fired Mr. Marks 25 and terminated discussions with DC shortly after receiving Mr. Toberoffs $15 26 million plus offer. SUF 47. This, like DCs complaint here, mirrored the 27 Timelines accusations (read by DC in 2006) of interference. Given that DC made 28 these arguments in 2007, based solely on information it had in 2002-2003, its reading
1 of the Timeline in 2006, and its pre-2007 discovery, DC cannot now evade the two2 year statute of limitations by feigning ignorance until 2008. 3 4 5
B.
DCs Interference Claim Is Time-Barred Even If Amended To Allege Interference With Contract
A footnote in DCs complaint states [i]f DC Comics claims [about an
6 enforceable agreement] are accepted, it will amend this Complaint to include a claim 7 for interference with contract. FAC at 57 181 n.6. Such amendment would be 8 futile, because the claim still fails. As set forth above, the accrual date for a claim 9 of interference with contract is the actual breach of the contract (Trembath, 43 Cal. 10 App. 3d at 836), or, at the very latest, when the plaintiff learns of the breach. Eagle 11 Precision Techs., Inc., 2006 U.S. Dist. LEXIS 98598, at *6-7. DC alleged that the 12 Siegels May 9, 2002 and September 21, 2002 letters repudiated and thereby 13 breached the October 19, 2001 agreement, triggering the statute on any claim for 14 interference with contract. FAC 185-86. Nor can the delayed discovery rule 15 save this claim because, as shown above, DC had knowledge by 2006 of the August 16 2002 Offer the crux of its interference claim(s). SUF 25-28, 31, 34-36, 40. In 17 short, an amended claim for interference with contract would be barred for all of 18 the same reasons its current claim for interference with prospective economic 19 advantage is barred. 20 III. 21 22
DCS SIXTH CLAIM IS BARRED A. DCs Sixth Claim Is Moot DCs Sixth Claim (FAC 187-189) for unfair competition is moot. The
23 doctrine of mootness requires that an actual, ongoing controversy exist at all 24 stages of federal court proceedings. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 25 1086 (9th Cir. 2011). A claim is moot if it has lost its character as a present, live 26 controversy, and if the claim is moot [it] must be dismissed. American Rivers 27 v. National Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997). See DHX, 28 Inc. v. Allianz AGF MAT, Ltd., 425 F.3d 1169, 1174 (9th Cir. 2005) (It has long
1 been settled that we have no authority to give opinions upon moot questions.) 2 (citations omitted). 3
Here, summary judgment to DC on its Third Claim rendered DCs Sixth Claim
4 moot, as the Court already held that the long-cancelled 2001/2003 PPC Agreements 5 and the 2008 Agreement are invalid and unenforceable. See Dkt. 540 ([T]he 2001 6 Pacific Pictures agreement, 2003 Pacific Pictures agreement, and 2008 consent 7 agreement are deemed invalid and unenforceable.). This is the same relief 8 indeed, the only relief that DC seeks in its Sixth Claim. FAC 188-89 (the 9 various copyright assignment and consent agreements between Toberoff and/or his 10 companies, the Siegel Heirs, and the Shuster Heirs are void and unenforceable). 11
There is no live controversy (American Rivers, 126 F.3d at 1123) between
12 the parties, because the agreements that DC alleged unfairly violate DC Comics 13 rights and interests (FAC 188) have already been declared invalid. See Tatyana 14 Evgenievna Drevaleva v. United States, 2010 U.S. Dist. LEXIS 51687, at *4 (N.D. 15 Cal. May 26, 2010) (claim is moot when party has obtained the relief [it] sought); 16 DHX, Inc, 425 F.3d at 1174 (It has long been settled that we have no authority to 17 give opinions upon moot questions or abstract propositions, or to declare principles 18 or rules of law which cannot affect the matter in issue in the case before [us].) 19 (citations omitted). 20
DCs Sixth Claim is also moot as a practical matter because the Court granted
21 DC summary judgment on its First Claim, declaring that the Shuster Termination was 22 invalid and that the Shuster Estate recovered no Superman copyrights. Dkt. 507 at 23 13, 16. DC could not have been denied an alleged right to exclusively negotiate 24 over copyrights that the Shuster Estate did not recover, and which DC still owned. 25
Furthermore, DC cannot seek damages or attorney fees on its Sixth Claim. See
26 M&F Fishing, Inc. v. Sea-PAC Ins. Managers, Inc., 202 Cal. App. 4th 1509, 1522-23 27 (2012) ([A]ttorney fees and damages, including punitive damages, are not available 28 under Californias UCL). Because there is no live controversy or relief to grant,
1 DCs claim must be rejected as moot. See Kittel v. Thomas, 620 F.3d 1203, 1206 2 (9th Cir. 2011) (The Constitution limits the jurisdiction of the federal courts to live 3 controversies, and as such, the federal courts may not issue advisory opinions.). 4 5
B.
DCs Sixth Claim Is Time-Barred As To The PPC Agreements
The bulk of DCs Sixth Claim is also barred by the statute of limitations.
6 Actions under the UCL must be brought within four years of accrual of the cause of 7 action. Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4th 163, 179 8 (2000); Cal. Bus. & Prof. Code 17208. Although in California state court it 9 remains an open question whether [and to what extent] the discovery rule 10 applies to UCL Claims (Betz v. Trainer Wortham & Co., 236 Fed. Appx. 253, 256 11 (9th Cir. May 11, 2007)), the Ninth Circuit has held that UCL claims are subject to a 12 four-year statute of limitations which beg[ins] to run on the date the cause of action 13 accrued, not on the date of discovery. Karl Storz Endoscopy Am., Inc. v. Surgical 14 Techs., Inc., 285 F.3d 848, 857 (9th Cir. 2002) (emphasis added). 15
DCs Sixth Claim targets the 2001 and 2003 PPC Agreements. FAC 188.
16 Under Karl Storz, DCs claim accrued when those agreements were entered into. DC 17 cannot assert continuing harm because the PPC Agreements were cancelled in 18 2004. SUF 6. DCs UCL claim is time-barred as to the PPC Agreements. 19 20
C.
DCs Sixth Claim Is Preempted By The Copyright Act
The Copyright Act broadly preempts state law claims like DCs Sixth Claim
21 under Californias UCL for violation of a purported right under the Copyright Act 22 (FAC 187-88). Ritchie v. Williams, 395 F.3d 283, 285 (6th Cir. 2005); see 17 23 U.S.C. 301(a). If a state law unfair competition claim is based solely on rights 24 equivalent to those protected by the federal copyright laws, it is preempted. 25 Kodadek v. MTV Networks, 152 F.3d 1209, 1213 (9th Cir. 1998). See also Trenton v. 26 Infinity Broadcastg Corp., 865 F. Supp. 1416, 1428 (C.D. Cal. 1994) (The fact that 27 the state-created right is either broader or narrower than its federal counterpart will 28 not save it from preemption.) (citation omitted).
To avoid preemption, the plaintiff must demonstrate that its state law claim
2 includes an extra element that makes the right asserted qualitatively different from 3 those protected under the Copyright Act. Altera Corp. v. Clear Logic, Inc., 424 4 F.3d 1079, 1089-90 (9th Cir. 2005). 5
DCs state-law Sixth Claim merely reformulates DCs Third Claim under the
6 Copyright Act. Compare FAC 172 (Third Claim: to establish the parties 7 respective rights and obligations with respect to the copyright interest in the 8 Superman material) with 189 (Sixth Claim: to establish the parties respective 9 rights and obligations with respect to the copyright interest in the Superman 10 material). DCs Sixth Claim, like the Third Claim, is based on a purported violation 11 of DCs alleged right under the Copyright Act, 17 U.S.C. 304(c)(6)(D); it 12 incorporates such Third Claim allegations by reference and makes no additional 13 substantive allegations. See FAC 187-88; Motown Record Corp. v. George A. 14 Hormel & Co., 657 F. Supp. 1236, 1239 (C.D. Cal. 1987) (dismissing UCL claim 15 that incorporated by reference copyright allegations). As DCs UCL claim is based 16 on and intertwined with its Copyright Act claim, it is preempted. See Del Madera 17 Properties v. Rhodes & Gardner, Inc., 820 F.2d 973, 977 (9th Cir. 1987) (UCL claim 18 preempted where constructed upon the premise of a Copyright Act violation). 19 20
3
CONCLUSION Summary judgment should be granted to Defendants as to DCs Fourth, Fifth Dated: February 4, 2013 RESPECTFULLY SUBMITTED, /s/ Keith G. Adams TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants Mark Warren Peary et al.
21 and Sixth Claims, and this case brought to a close. 22 23 24 25 26
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 27 claims by reference, the [UCL] claim is based on rights equivalent to those protected by 28 copyright.); MEECO Mfg. Co. v. True Value Co., 2007 U.S. Dist. LEXIS 25986 at *14 (W.D. Wash. Apr. 3, 2007) (same).
Case 2:10-cv-03633-ODW-RZ Document 577-1 Filed 02/04/13 Page 1 of 18 Page ID #:37307
1 Marc Toberoff (State Bar No. 188547)
2 Keith G. Adams (State Bar No. 240497) 3 Pablo D. Arredondo (State Bar No. 241142) 4 David Harris (State Bar No. 255557) 5 TOBEROFF & ASSOCIATES, P.C. 6 Malibu, California 90265 7 Fax:
mtoberoff@toberoffandassociates.com kadams@toberoffandassociates.com
parredondo@toberoffandassociates.com dharris@toberoffandassociates.com
22337 Pacific Coast Highway #348 Telephone: (310) 246-3333 (310) 246-3101
8 Attorneys for Defendants Mark Warren 9 Estate of Joseph Shuster, Jean Adele Peavy, 10 personal representative of the Estate of
Peary, as personal representative of the Joanne Siegel
and Laura Siegel Larson, individually and as
11

12
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION Case No: CV 10-03633 ODW (RZx) DC COMICS, 14 Plaintiff, Hon. Otis D. Wright II, U.S.D.J. vs. Hon. Ralph Zarefsky, U.S.M.J. 15
13 16 PACIFIC PICTURES CORPORATION; DEFENDANTS STATEMENT OF UNDISPUTED FACTS AND 17 IP WORLDWIDE, LLC; IPW, LLC; 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW
CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR MARC TOBEROFF, an individual; MARK WARREN PEARY, as personal PARTIAL SUMMARY JUDGMENT ON DCS FOURTH, FIFTH AND representative of the ESTATE OF SIXTH CLAIMS JOSEPH SHUSTER; JEAN ADELE Notice of Motion and Motion; PEAVY, an individual; LAURA Declaration of Keith Adams; and SIEGEL LARSON, individually and as [Proposed] Order and Statement of personal representative of the ESTATE Decision filed concurrently herewith OF JOANNE SIEGEL, Complaint filed: May 14, 2010 and DOES 1-10, inclusive, Discovery Cutoff: None Set Trial Date: None Set Defendants. Date: March 11, 2013 Time: 1:30 p.m. Place: Courtroom 11
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
DEFENDANTS STATEMENT OF UNDISPUTED FACTS No. 1 Statement Of Undisputed Fact Defendants Evidence
On October 2, 1992, DC entered into a one-page Dkt. 49 (First Amended agreement with Joe Shusters surviving siblings, Complaint; FAC) 55; Frank Shuster and Jean Adele Peavy (the 1992 Agreement). Declaration of Keith G. Adams (AD), Ex. A
In November 2001, Joe Shusters nephew, Mark FAC 60; AD, Ex. D at 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 Shusters estate and the estates 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. 21
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
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 Shusters, and his estates rights, claims, copyrights, property, title and interests in and to Joe Shusters creations (hereinafter,
AD, Ex. K at 102
1 DEFENDANTS STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW
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
No.
Statement Of Undisputed Fact 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, Clients copyright termination interest in SUPERMAN pursuant to Section 304(d) of the U.S. Copyright Law. 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 Shusters prior Superman copyright grants to DC (the Shuster Termination).
Defendants Evidence
AD, Ex. M
On September 10, 2004, Toberoff, Peary and Peavy voluntarily cancelled the 2001 and 2003 PPC Agreements.
AD, Ex. N; Ex. O
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
In 1997, Jerome Siegels 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 Siegels Superman copyright grants to DC (the Siegel Termination).
FAC 67
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No. 9
Statement Of Undisputed Fact Siegel Termination.
Defendants Evidence Entmt Inc., 542 F. Supp. 2d 1098, 1114 (C.D. Cal. 2008)
By letter dated April 15, 1999, DC contested the Siegel v. Warner Bros.
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 AD, Ex. E the agreement it proposed.
14
On May 9, 2002, Joanne Siegel sent a letter to DCs 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 [DCs] last proposalwe were stabbed in the back by a shocking contract. Your companys 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. 15
Statement Of Undisputed Fact 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.
Defendants Evidence AD, Ex. G, Ex. FF at 472:10-24
16
In late July/August 2002, Mr. Toberoff informed AD, Ex. S at 147:6-148:6; Mr. Marks that he was working with Mr. Emanuel and inquired whether the Siegels were interested in licensing their rights. 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 it.
AD, Ex. S at 150:23264:8 AD, Ex. H at 92
Siegels, but neither they nor Marks responded to 151:24, Ex. W at 263:20-
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
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
No.
Statement Of Undisputed Fact DC Comics, Inc., its parent company AOL Time Warner and all of its representatives and associates, effective immediately. 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 IPWs 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. .
Defendants Evidence
20
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. 23
Statement Of Undisputed Fact 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.
Defendants Evidence 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 146:11151:24
28
Mr. Marks testified at his October 7, 2006 deposition about the August 2002 Offer to the Siegels.
AD, Ex. S at 149:10150:5
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 171:6196:13
31
In Siegel, DC took the deposition of Marc
AD, Ex. W
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
No. 32
Statement Of Undisputed Fact Toberoff on November 17, 2006. At the deposition of Mr. Toberoff on November 17, 2006, DC introduced the 2001 and 2003 PPC Agreements as exhibits.
Defendants Evidence
AD, Ex. W at 204:18-20, 223:17-19
33
Mr. Toberoff testified at his November 17, 2006 AD, Ex. W at 204:18deposition about the 2001 and 2003 PPC Agreements and the Shuster Termination. 230:8
34
Mr. Toberoff testified at his November 17, 2006 AD, Ex. W at 240:17deposition about his 2002 communications with Kevin Marks. 260:11
35
Mr. Toberoff testified at his November 17, 2006 AD, Ex. W at 257:14deposition about the August 2002 Offer to the Siegels. 259:14
36
Mr. Toberoff testified at his November 17, 2006 AD, Ex. W at 266:23deposition about the 2002 IP Worldwide Agreement. 268:16
37
DCs deposition of Mr. Toberoff in 2006 tracked the Fifth Claim.
FAC 180-186; AD, Ex. W at 244:13-264:25 AD, Ex. X at 278 2
38
On or before June 2006, DCs parent, Warner Bros. Entertainment Inc. (Warner), received packages of documents stolen from Mr. Toberoffs law firm, including privileged attorney-client communications, accompanied by an anonymous document entitled Superman-Marc Toberoff Timeline (the Timeline).
39
The Timeline accused Mr. Toberoff of
AD, Ex. R
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
No.
Statement Of Undisputed Fact wrongfully interfering with DCs relationships and agreements with the Shuster and Siegel heirs.
Defendants Evidence
40
Warners 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 34
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. Schulmans office staff is to dispose of envelopes and packaging upon
AD, Ex. X at 278-79 2-4
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
No.
Statement Of Undisputed Fact 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 counsels misconduct. The letter also referenced the documents enclosed, providing an overview of their contents and their connection to Plaintiffs counsels 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.
Defendants Evidence
42
On July 5, 2006, Wayne Smith informed DCs then-outside counsel, Michael Bergman, of allegations in the Timeline, as confirmed by Mr. Bergmans 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 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. In May 2007, in the Siegel case, both sides filed motions for partial summary judgment.
Defendants Evidence
43
Siegel, 542 F. Supp. 2d at 1116; AD, Ex. Y AD, Ex. Y at 319-20,
44
In DCs summary judgment briefing in Siegel, DCs alleged agreement with the Siegels.
DC argued that Mr. Toberoff had interfered with 363-64, 372
45
In DCs 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. Toberoffs 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 Tyres 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 DCs 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. Toberoffs business partner that DCs 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 Plaintiffs retained IPW [IP Worldwide] to be their exclusive representative in connection with their Superman interests. (Bergman Decl. Exh. FF.) In DCs 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
Defendants Evidence
46
AD, Ex. Y at 363-64
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No.
Statement Of Undisputed Fact presented with a seemingly more lucrative offer by their current counsel, and abruptly jettisoned both the deal and their attorneys who negotiated it. In DCs 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 clients complaining letter to Time Warners 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 recrafting the draft into a form that would be acceptable to his client. (Bergman Decl. Exh. S (Marks Tr.) at 196:21-197:15, 198:25199:3; id. Exh. BB.), but the effort came to naught when Plaintiffs abruptly fired Mr. Marks and terminated discussions with DC shortly after receiving Mr. Toberoffs $15 million plus offer. (Id. Exh. S (Marks Tr.) at 168:1-169:20.).
Defendants Evidence
47
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 summary judgment motion, holding that the Siegel Termination was valid as to Action Comics, No. 1, and rejecting DCs claim that the parties had reached an agreement on October 19, 2001.
Defendants Evidence 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
1 2
CONCLUSIONS OF LAW 1. Summary judgment should be granted in Defendants favor on DCs
3 Fourth Claim for Relief (Dkt. 49 (FAC) 174-79) for tortious interference with 4 contract. The Fourth Claim, brought in 2010, is barred by the applicable two-year 5 statute of limitations (Cal. Code of Civ. Proc. 339(1)), which expired no later than 6 2008. 7
Tortious interference claims accrue at the date of the wrongful act and [can]
8 not be later than the actual breach of the contract by the party who was wrongfully 9 induced to breach. Trembath v. Digardi, 43 Cal. App. 3d 834, 836 (1974). [T]he 10 statute of limitations [for tortious interference] began to run when the contract was 11 actually breached. Forcier v. Microsoft Corp., 123 F. Supp. 2d 520, 530 (N.D. Cal. 12 2000). Here, the alleged breach consisted of the 2001 and 2003 PPC Agreements, 13 and the resulting 2003 Shuster Termination, both well outside the statute of 14 limitations period. 15
DC cannot invoke the delayed discovery rule because all that is required to
16 trigger the statute of limitations is inquiry notice, which occurs once the plaintiff has 17 notice or information of circumstances to put a reasonable person on inquiry. Jolly 18 v. Eli Lilly & Co., 44 Cal. 3d 1103, 1110-11 (1988) (citations omitted). DC was 19 served with the Shuster Termination in 2003; and DC was on actual and inquiry 20 notice by November 15, 2006, when it was provided with complete and unredacted 21 copies of both the 2001 and 2003 PPC Agreements. Defendants Statement of 22 Undisputed Facts (SUF) 25; see Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 23 1055, 1061 (9th Cir. 2012). 24
Because DC had actual and inquiry notice by 2006, any allegations by DC of
25 fraudulent concealment are irrelevant. Barber v. Superior Court, 234 Cal. App. 3d 26 1076, 1083 (1991). The continuing harm doctrine does not apply to DCs 27 interference claims. Boon Rawd Trading Intl Co., Ltd. v. Paleewong Trading Co., 28 688 F. Supp. 2d 940, 952 (N.D. Cal. 2010).
2.
Summary judgment should be granted in Defendants favor on DCs
2 Fifth Claim for Relief (FAC 180-86) for interference with prospective economic 3 advantage. The Fifth Claim, brought in 2010, is barred by the applicable two-year 4 statute of limitations (Cal. Code of Civ. Proc. 339(1)), which expired no later than 5 2008. 6
7 not be later than the actual breach of the contract by the party who was wrongfully 8 induced to breach. Trembath, 43 Cal. App. 3d at 836. [T]he statute of limitations 9 [for tortious interference] began to run when the contract was actually breached. 10 Forcier v. Microsoft Corp., 123 F. Supp. 2d at 530. DCs Fifth Claim alleges that the 11 tortious interference occurred in August 2002, when Mr. Toberoff informed the 12 Siegels counsel of an offer to purchase their Superman rights, and the alleged breach 13 occurred no later than September 21, 2002, when the Siegels formally ended 14 negotiations with DC. 15
Plaintiff cannot invoke the delayed discovery rule because all that is required
16 to trigger the statute of limitations is inquiry notice, which occurs once the plaintiff 17 has notice or information of circumstances to put a reasonable person on inquiry. 18 Jolly, 44 Cal. 3d at 1110-11. On September 21, 2002, the Siegels formally 19 terminated their counsel, Kevin Marks, and ended his negotiations with DC. SUF 20 19. By 2003, DC knew that Mssrs. Toberoff and Emanuel represented the Siegel 21 termination interest when they resumed negotiations with DC. SUF 22. By 2006, 22 DC received, read and investigated the Timelines allegations of interference by 23 Mr. Toberoff and DC proceeded in Siegel to take extensive depositions and 24 document discovery, revealing by late 2006 that: (1) Mssrs. Emanuel and Toberoff 25 had made an August 2002 offer to Mr. Marks to purchase the Siegels Superman 26 copyrights, and (2) shortly after the Siegels ended Marks negotiations with DC on 27 September 21, 2002, the Siegels entered into an agreement dated October 3, 2002 28 with Emanuel/Toberoffs venture, IP Worldwide, LLC, to market the Siegels
1 Superman rights. SUF 15-22, 25-28, 34-37. Knowledge of the Timelines 2 accusations of interference and of these events was sufficient to raise suspicion, 3 putting DC on inquiry notice. See Norgart v. Upjohn Co., 21 Cal. 4th 383, 397 4 (1999); GO Computer, Inc. v. Microsoft Corp., 508 F.3d 170, 172 (4th Cir. 2007). 5 Demonstrating that DC was on actual or inquiry notice of its Fifth Claim, it explicitly 6 argued on summary judgment in Siegel that by a seemingly more lucrative offer 7 Mr. Toberoff had interfered with DCs relationship with Siegels. SUF 43-47. 8
3.
Summary judgment should be granted in Defendants favor on DCs (a). DCs Sixth Claim is moot. The Court has already granted the
9 Sixth Claim for Relief (FAC 187-189) for unfair competition. 10
11 relief sought by DCs Sixth Claim in connection with DCs Third Claim. Dkt. 507, 12 540. There is no longer a live controversy and therefore the claim is moot 13 [and] must be dismissed. American Rivers v. National Marine Fisheries Serv., 126 14 F.3d 1118, 1123 (9th Cir. 1997). 15
(b).
DCs Sixth Claim is preempted by the Copyright Act. If a state
16 law unfair competition claim is based solely on rights equivalent to those protected 17 by the federal copyright laws, it is preempted. Kodadek v. MTV Networks, 152 F.3d 18 1209, 1213 (9th Cir. 1998). DCs state-law Sixth Claim merely reformulates DCs 19 Third Claim (FAC 165-73) under the Copyright Act and is premised on the same 20 alleged Copyright Act violation, which it incorporates by reference. The claim is 21 therefore preempted. See Motown Record Corp. v. George A. Hormel & Co., 657 F. 22 Supp. 1236, 1239 (C.D. Cal. 1987); Del Madera Properties v. Rhodes & Gardner, 23 Inc., 820 F.2d 973, 977 (9th Cir. 1987). 24
(c).
DCs Sixth Claim is also largely barred by the applicable four-
25 year statute of limitations. Cal. Bus. & Prof. Code 17208. Unfair competition 26 claims begin to run on the date the cause of action accrued, not on the date of 27 discovery. Karl Storz Endoscopy Am., Inc. v. Surgical Techs., Inc., 285 F.3d 848, 28 857 (9th Cir. 2002). Insofar as it is based on the 2001 and 2003 PPC Agreements,
1 which were cancelled in 2004, the claim is barred by the statute of limitations. 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
Dated: February 4, 2013
RESPECTFULLY SUBMITTED, /s/ Keith G. Adams TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants Mark Warren Peary et al.
Case 2:10-cv-03633-ODW-RZ Document 577-2 #:37325
Filed 02/04/13 Page 1 of 5 Page ID
1 2 3 4 5 6 7 8 9
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION Case No: CV 10-03633 ODW (RZx) 10 DC COMICS, Plaintiff, Hon. Otis D. Wright II, U.S.D.J. 11 vs. Hon. Ralph Zarefsky, U.S.M.J.
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER AND STATEMENT OF DECISION RE: DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH AND SIXTH CLAIMS FOR RELIEF
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.
[PROPOSED] ORDER AND STATEMENT OF DECISION RE: DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT ON DCS 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
Good cause appearing, IT IS HEREBY ORDERED that Defendants Motion
2 For Partial Summary Judgment On DCs Fourth, Fifth and Sixth Claims For Relief Is 3 GRANTED. 4
1.
5 Fourth Claim for Relief (Dkt. 49 (FAC) 174-79) for tortious interference with 6 contract. The Fourth Claim, brought in 2010, is barred by the applicable two-year 7 statute of limitations (Cal. Code of Civ. Proc. 339(1)), which expired no later than 8 2008. 9
10 not be later than the actual breach of the contract by the party who was wrongfully 11 induced to breach. Trembath v. Digardi, 43 Cal. App. 3d 834, 836 (1974). [T]he 12 statute of limitations [for tortious interference] began to run when the contract was 13 actually breached. Forcier v. Microsoft Corp., 123 F. Supp. 2d 520, 530 (N.D. Cal. 14 2000). Here, the alleged breach consisted of the 2001 and 2003 PPC Agreements, 15 and the resulting 2003 Shuster Termination, both well outside the statute of 16 limitations period. 17
DC cannot invoke the delayed discovery rule because all that is required to
18 trigger the statute of limitations is inquiry notice, which occurs once the plaintiff has 19 notice or information of circumstances to put a reasonable person on inquiry. Jolly 20 v. Eli Lilly & Co., 44 Cal. 3d 1103, 1110-11 (1988) (citations omitted). DC was 21 served with the Shuster Termination in 2003; and DC was on actual and inquiry 22 notice by November 15, 2006, when it was provided with complete and unredacted 23 copies of both the 2001 and 2003 PPC Agreements. Defendants Statement of 24 Undisputed Facts (SUF) 25; see Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 25 1055, 1061 (9th Cir. 2012). 26
Because DC had actual and inquiry notice by 2006, any allegations by DC of
27 fraudulent concealment are irrelevant. Barber v. Superior Court, 234 Cal. App. 3d 28 1076, 1083 (1991). The continuing harm doctrine does not apply to DCs
1 [PROPOSED] ORDER AND STATEMENT OF DECISION RE: DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON FOURTH, FIFTH AND SIXTH CLAIMS FOR RELIEF
1 interference claims. Boon Rawd Trading Intl Co., Ltd. v. Paleewong Trading Co., 2 688 F. Supp. 2d 940, 952 (N.D. Cal. 2010). 3
2.
4 Fifth Claim for Relief (FAC 180-86) for interference with prospective economic 5 advantage. The Fifth Claim, brought in 2010, is barred by the applicable two-year 6 statute of limitations (Cal. Code of Civ. Proc. 339(1)), which expired no later than 7 2008. 8
9 not be later than the actual breach of the contract by the party who was wrongfully 10 induced to breach. Trembath, 43 Cal. App. 3d at 836. [T]he statute of limitations 11 [for tortious interference] began to run when the contract was actually breached. 12 Forcier v. Microsoft Corp., 123 F. Supp. 2d at 530. DCs Fifth Claim alleges that the 13 tortious interference occurred in August 2002, when Mr. Toberoff informed the 14 Siegels counsel of an offer to purchase their Superman rights, and the alleged breach 15 occurred no later than September 21, 2002, when the Siegels formally ended 16 negotiations with DC. 17
Plaintiff cannot invoke the delayed discovery rule because all that is required
18 to trigger the statute of limitations is inquiry notice, which occurs once the plaintiff 19 has notice or information of circumstances to put a reasonable person on inquiry. 20 Jolly, 44 Cal. 3d at 1110-11. On September 21, 2002, the Siegels formally 21 terminated their counsel, Kevin Marks, and ended his negotiations with DC. SUF 22 19. By 2003, DC knew that Mssrs. Toberoff and Emanuel represented the Siegel 23 termination interest when they resumed negotiations with DC. SUF 22. By 2006, 24 DC received, read and investigated the Timelines allegations of interference by 25 Mr. Toberoff and DC proceeded in Siegel to take extensive depositions and 26 document discovery, revealing by late 2006 that: (1) Mssrs. Emanuel and Toberoff 27 had made an August 2002 offer to Mr. Marks to purchase the Siegels Superman 28 copyrights, and (2) shortly after the Siegels ended Marks negotiations with DC on
1 September 21, 2002, the Siegels entered into an agreement dated October 3, 2002 2 with Emanuel/Toberoffs venture, IP Worldwide, LLC, to market the Siegels 3 Superman rights. SUF 15-22, 25-28, 34-37. Knowledge of the Timelines 4 accusations of interference and of these events was sufficient to raise suspicion, 5 putting DC on inquiry notice. See Norgart v. Upjohn Co., 21 Cal. 4th 383, 397 6 (1999); GO Computer, Inc. v. Microsoft Corp., 508 F.3d 170, 172 (4th Cir. 2007). 7 Demonstrating that DC was on actual or inquiry notice of its Fifth Claim, it explicitly 8 argued on summary judgment in Siegel that by a seemingly more lucrative offer 9 Mr. Toberoff had interfered with DCs relationship with Siegels. SUF 43-47. 10
3.
11 Sixth Claim for Relief (FAC 187-189) for unfair competition. 12
(a).
DCs Sixth Claim is moot. The Court has already granted the
13 relief sought by DCs Sixth Claim in connection with DCs Third Claim. Dkt. 507, 14 540. There is no longer a live controversy and therefore the claim is moot 15 [and] must be dismissed. American Rivers v. National Marine Fisheries Serv., 126 16 F.3d 1118, 1123 (9th Cir. 1997). 17
(b).
DCs Sixth Claim is preempted by the Copyright Act. If a state
18 law unfair competition claim is based solely on rights equivalent to those protected 19 by the federal copyright laws, it is preempted. Kodadek v. MTV Networks, 152 F.3d 20 1209, 1213 (9th Cir. 1998). DCs state-law Sixth Claim merely reformulates DCs 21 Third Claim (FAC 165-73) under the Copyright Act and is premised on the same 22 alleged Copyright Act violation, which it incorporates by reference. The claim is 23 therefore preempted. See Motown Record Corp. v. George A. Hormel & Co., 657 F. 24 Supp. 1236, 1239 (C.D. Cal. 1987); Del Madera Properties v. Rhodes & Gardner, 25 Inc., 820 F.2d 973, 977 (9th Cir. 1987). 26
(c).
DCs Sixth Claim is also largely barred by the applicable four-
27 year statute of limitations. Cal. Bus. & Prof. Code 17208. Unfair competition 28 claims begin to run on the date the cause of action accrued, not on the date of
1 discovery. Karl Storz Endoscopy Am., Inc. v. Surgical Techs., Inc., 285 F.3d 848, 2 857 (9th Cir. 2002). Insofar as it is based on the 2001 and 2003 PPC Agreements, 3 which were cancelled in 2004, the claim is barred by the statute of limitations. 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
IT IS SO ORDERED. Dated: _____________ Hon. Otis D. Wright II.

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Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 1 of 29 Page ID #:37278

1 Marc Toberoff (State Bar No. 188547)

5 TOBEROFF & ASSOCIATES, P.C. 6 Malibu, California 90265 7 Fax:

Peary, as personal representative of the Joanne Siegel

and Laura Siegel Larson, individually and

UNITED STATES DISTRICT COURT

MARC TOBEROFF, an individual;

JOSEPH SHUSTER; JEAN ADELE

personal representative of the ESTATE

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 2 of 29 Page ID #:37279

1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2

Defendants Marc Toberoff and Pacific Pictures Corporation move for

Dated: February 4, 2013

NOTICE OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 3 of 29 Page ID #:37280

The Siegel Litigation ............................................................................. 6 The Instant Action ................................................................................. 7

12 LEGAL STANDARD................................................................................................ 7 13 ARGUMENT ............................................................................................................. 8 14 I. 15 16 17 18 19 20 21 22 23 24 25 26 II. 27 28

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 4 of 29 Page ID #:37281

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 5 of 29 Page ID #:37282

TABLE OF AUTHORITIES Cases

126 F.3d 1118 (9th Cir. 1997) ........................................................................... 19-20

Amtower v. Photon Dynamics, Inc.,

234 Cal. App. 3d 1076 (1991) ................................................................................. 12

478 F. Supp. 2d 1240 (W.D. Wash. 2007) .............................................................. 22

15 688 F. Supp. 2d 940 (N.D. Cal. 2010) ..................................................................... 13 16

Boon Rawd Trading Intl Co., Ltd. v. Paleewong Trading Co.,

23 Del Madera Properties v. Rhodes & Gardner, Inc., 24

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 6 of 29 Page ID #:37283

1 Fox v. Ethicon Endo-Surgery, Inc., 2 3 Flowers v. Carville, 4

508 F.3d 170 (4th Cir. 2007) ................................................................................... 16

8 681 F.3d 1055 (9th Cir. 2012) ................................................................................. 11

Hexcel Corp. v. Ineos Polymers, Inc.,

44 Cal. 3d 1103 (1988) ...................................................................................... 10, 17

Karl Storz Endoscopy Am., Inc. v. Surgical Techs., Inc.,

16 Kodadek v. MTV Networks, 17

U.S. Dist. LEXIS 25986 (W.D. Wash. Apr. 3, 2007) ............................................. 22

21 33 Cal. 3d 868 (1983) ........................................................................................ 17-18 22

Miller v. Bechtel Corp.,

657 F. Supp. 1236 (C.D. Cal. 1987) ........................................................................ 22

Pitts v. Terrible Herbst, Inc.,

21 Cal. 4th 383 (1999) ............................................................................................. 10

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 7 of 29 Page ID #:37284

395 F.3d 283 (6th Cir. 2005) ................................................................................... 21

3 Sabety v. Pomona Valley Hosp. Med. Ctr., Inc., 4

48 Cal. 4th 481 (2010) ............................................................................................... 8

8 2006 WL 5441237 (C.D. Cal. Sept. 14, 2006) ........................................................ 10

Streamcast Networks, Inc. v. Skype Techs., S.A.,

865 F. Supp. 1416 (C.D. Cal. 1994) ........................................................................ 21

22 Cal. Code of Civ. Proc. 339(1) ......................................................................... 8, 13 23 F.R.C.P. 56 ............................................................................................................. 7-8 24 25 26 27 28

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 8 of 29 Page ID #:37285

INTRODUCTION This motion for summary judgment is straightforward: DC Comics (DC)

This claim is also barred by the applicable two-year statute of limitations. DC

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 9 of 29 Page ID #:37286

There is no need to speculate whether all of this was enough to put DC on

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 10 of 29 Page ID #:37287

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 11 of 29 Page ID #:37288

In September 2004, Toberoff, Peary and Peavy voluntarily cancelled the

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 12 of 29 Page ID #:37289

The Siegels Regroup

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 13 of 29 Page ID #:37290

The Siegel Litigation

The IP Worldwide Agreement expired on April 23, 2005. SUF 21.

Case 2:10-cv-03633-ODW-RZ Document 577 Filed 02/04/13 Page 14 of 29 Page ID #:37291