Case: 11-55863

02/04/2013

ID: 8498958

DktEntry: 71

Page: 1 of 2

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
FEB 04 2013
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

LAURA SIEGEL LARSON, individually and as personal representative of the Estate of Joanne Siegel, Plaintiff-counter-claimdefendant - Appellant, v. WARNER BROS. ENTERTAINMENT, INC., a corporation; DC COMICS, a New York General Partnership, Defendants-counterclaimants - Appellees.

No. 11-55863 D.C. No. 2:04-cv-08400-ODW-RZ U.S. District Court for Central California, Los Angeles MANDATE

LAURA SIEGEL LARSON, individually and as personal representative of the Estate of Joanne Siegel, Plaintiff-counter-claimdefendant - Appellee, v. WARNER BROS. ENTERTAINMENT, INC., a corporation and DC COMICS, Defendants-counterclaimants - Appellants.

No. 11-56034 D.C. No. 2:04-cv-08400-ODW-RZ U.S. District Court for Central California, Los Angeles

Case: 11-55863

02/04/2013

ID: 8498958

DktEntry: 71

Page: 2 of 2

The judgment of this Court, entered January 10, 2013, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. FOR THE COURT: Molly C. Dwyer Clerk of Court Craig Westbrooke Deputy Clerk

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DANIEL M. PETROCELLI (S.B. #097802) dpetrocelli@omm.com MATTHEW T. KLINE (S.B. #211640) mkline@omm.com CASSANDRA L. SETO (S.B. #246608) cseto@omm.com OMELVENY & MYERS LLP 1999 Avenue of the Stars, 7th Floor Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 Attorneys for DC Comics Parties UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LAURA SIEGEL LARSON, individually and as personal representative of the ESTATE OF JOANNE SIEGEL, Plaintiff, v. WARNER BROS. ENTERTAINMENT INC., DC COMICS, and DOES 1-10, Defendants and Counterclaimants. Case No. CV 04-8400 ODW (RZx) Case No. CV 04-8776 ODW (RZx) DCS OPPOSITION TO LARSONS EX PARTE APPLICATION TO CONTINUE HEARING DATE ON MOTION FOR SUMMARY JUDGMENT DECLARATION OF MATTHEW T. KLINE FILED CONCURRENTLY HEREWITH The Hon. Otis D. Wright II Noticed Date: Noticed Time: Courtroom: March 11, 2013 1:30 p.m. 11

DCS OPPN TO LARSONS EX PARTE APP.

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Larsons ex parte application should be denied. Tellingly, the application is unsupported by a single declaration that supports Toberoffs false charge that DC failed to meet and confer on its summary judgment motion, when Daniel Petrocelli submitted a sworn declaration showing exactly how DC followed the Courts rules. DN 702-1. As with his numerous, prior emergency motions, e.g., Case No. CV-103633, DN 222, 237, 424, Toberoffs latest entry should be rejected because it fails to meet the heavy burden for ex parte applications, and cites no good reason either to afford Toberoff the 17-day extension he requests or to further delay the resolution of the Siegel Superman and Superboy cases. Indeed, just as he refused to do during the meet-and-confer process, DN 702-1, Toberoffs motion offers no explanationnoneof the grounds he will argue to oppose DCs short, simple, straightforward motion for judgment, which is based on a basic application of the rules governing mandate and the clear holding and logic of the Ninth Circuits ruling in Siegel. All Toberoff seeks is delay; but after nearly 10 years it is time for the Siegel cases to come to an end. 1. DC Fully Complied With The Meet-And-Confer Rules, And Toberoff Only Sought To Game Them To Cause Delay And Gain Tactical Advantage. In support of DCs pending summary judgment motion, Mr. Petrocelli submitted a declaration, supported by DCs written correspondence with Toberoff. Petrocellis declaration and the attached correspondence show that DC began meeting and conferring with defendants on this motion in mid-January and that defendants were on full notice, for weeks, that DC would file its motion seeking judgment shortly after the Ninth Circuit issued its mandate in Siegel. As Petrocelli testified: Following the Ninth Circuits ruling in DCs favor in the Siegel Superman case on January 10, 2013, I spoke on several occasions to Marc Toberoff and Richard Kendall (his counsel in the related Pacific Pictures case), about DCs intent to bring a motion asking this Court to enter final judgment in the Siegel Superman and Superboy cases. I sent Mr. Toberoff and Mr. Kendall follow-up emails regarding DCs motion for entry of judgment on January 28 and February 1, 2013. My partner,
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Matthew Kline, sent Mr. Toberoff and Mr. Kendall additional correspondence (as well as drafts of the proposed judgments DC would be submitting in connection with this motion) on February 4, and on February 6, Mr. Kline had a telephone conference with Laura Siegel Larsons counsel. As detailed in Mr. Klines follow-up email of February 6, Larsons counsel would not identify any specific ground based on which Larson would oppose DCs summary judgment motion or any objections Larson had to the draft proposed judgments DC had provided. Instead, Larsons counsel said Larson reserved all contractual and declaratory relief arguments in opposing DCs motion. Mr. Kline asked Larsons counsel in a follow-up email to identify any such arguments with specificity, but Larsons counsel declined to provide such details, and argued, as they had before, that DCs motion was premature. Mr. Kline and I both noted in our emails that Larsons counsel had created the delay here, and DC had tried on several earlier occasions to meet and confer. A true and correct copy of the parties email correspondence described above is attached hereto as Exhibit A. DN 702-1 2 & Ex. A. Toberoff asserts DC failed to meet and confer, Mot. 4-5, but his ex parte application never addresses Petrocellis declaration, and nor does he submit a competing declaration from himself, Richard Kendall, or any other witness. Nor can he. As Toberoff well knows, Petrocelli began the meet-and-confer process in mid-January, and he put Larson and Toberoff on full notice that DC would be asking the Court to enter judgment in the Siegel cases. Id.; see Adams Decl. Ex. D (DN 223-1 at 17 1). Despite this notice, Toberoff refused to speak with DC between January 28 and February 6, even though DC continued to press to finalize all meet-and-confer discussions, and even went so far as to send Toberoff drafts of the proposed judgments it sought. Id.; DN 702-1 2 & Ex. A. Toberoff went radio silent becauseunbeknownst to DC and the courtshe was hastily preparing a summary judgment motion to file in the Pacific Pictures case to get on calendar for March 11 before DC could file its dispositive motion in Siegel. Toberoff now cites his summary judgment motion in Pacific Pictures as grounds for the 17-day extension he seeks, while he also seeks to force DC to respond on shortened time to his voluminous and fact-intensive summary judgment
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motion. Infra at 5-7; Adams Decl. Ex. D (DN 223-1 at 17 2). Such tactical games and slither[ing] around this Courts Local Rules, as this Court once rightly called out Toberoffs tactics, Case No. CV-10-3633, DN 328, should not be countenanced. Cf. Yagman v. Galipo, 2013 WL 141785, at *4 (C.D. Cal. Jan. 7, 2013) (where party failed to make himself available to meet and confer, and then moved to strike motion for failure to meet and confer, district court admonished party for failing to find a practicable method of communication so as to avoid these squabbles which merely delay adjudication of both sides arguments; warning that court may relieve other party of all meet-and-confer requirements if there is a continued failure by counsel to make himself available). 2. DC Fully Complied With This Courts Standing Order, Providing Larson 32-Day Notice On Its Motions, And Would Have Filed Its Motions A Week Earlier Had Toberoff Not Engendered Delay. Toberoffs charge that DCs motion violates Paragraph 6(d) of the Courts Standing Order defies simple math. The Courts rule instructs parties to provide more than 28 days of notice for such motions. DC noticed the hearing on its motion for 32 days after it filed it, and told defendants about the motion over 50 days before the hearing date. Supra at 1-2. Only Toberoffs bad-faith refusal to engage between January 28 and February 6 prevented DC from providing even more advance notice. Id. 3. Toberoffs Claims About Calendar Conflicts Are Without Basis. Toberoffs complaints about the Courts and parties crowded schedule are of his own making and not grounds to provide him the delay he seeks. If the Court wishes to extend the hearing dates on any of the parties yet-to-be-fully-briefed motions, it should do so, but as it did with DCs pending fees motion, Case No. CV-10-3633, DN 574, we submit it should not defer any briefing deadlines. DCs terminating sanctions motion in Pacific Pictures was fully briefed last fall, and the Court already continued the hearing on that motion from March 4 to March 11. Id. DN 575. That date should not move.
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Only DC has any work left to do on its fees motion in Pacific Pictures. It will file its reply Monday, id. DN 574, and as DC told the Court, it can hear that motion when it wishes, id. DN 562 at 1. Only Toberoff presses for an immediate ruling. Id. DN 576 at 18. Yesterday, and several days early, DC opposed Toberoffs motion for review of Magistrate Judge Zarefskys discovery ruling concerning the Toberoff Timeline documents. DN 579. Toberoffs motion is frivolous, id., and if he chooses to submit a further reply, that is not grounds for delay. In all events, this Court can defer ruling on this motion, or not address it and let Judge Zarefskys ruling stand, as the Local Rules permit. See L.R. 72-2.2. Defendants have no work to do on their pending summary judgment motion in Pacific Pictures; only DC does. And as DC will demonstrate in its opposition, that motion should not be heard, if ever, until after DCs pending sanctions motion is resolved and discovery into Toberoffs statute-oflimitations defenses is complete. Infra at 5-7; FED. R. CIV. P. 56(d). Toberoff only needs to oppose DCs pending motion to compel his and his co-defendants depositions because they tactically and improperly refuse to appear in hope of racing to obtain a summary judgment in Pacific Pictures before the depositions occur. Id.; Kline Decl. Ex. F. Finally, as Toberoff knows, but does not disclose, the Ninth Circuit openly questioned his tactics in seeking further delay in the Pacific Pictures appeal. Kline Decl. Ex. E (In view, however, of Appellants earlier representation that they would move for expedited consideration and their motion to assign the appeal to this panel, the court will not look favorably on any further requests for extension of time.) (citations omitted). Toberoff originally told the Ninth Circuit he wanted an expedited appeal before the same panel that heard his prior appeals. Id. Ex. C. But following that panels rejection of his positions on his Siegel and SLAPP appeals, he reversed course and sought to
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delay the briefing. Id. Ex. D. In his application for more time, Toberoff misled the Ninth Circuit about his true motives, concealing the improper summary judgment motion he was drafting in Pacific Pictures. Id. Ex. E; Adams Decl. Ex. D (DN 223-1 at 17-18 5).1 4. Toberoffs Claims That DCs Motion Come After The Cut-Off Date Are Frivolous. Toberoff argues DC was required to wait to file its summary judgment motion until after (a) a new scheduling order in Siegel issued; and (b) this Court held scheduling conferences in the Superman cases. This claim is not well taken. First, Toberoff filed his own summary judgment motion in Pacific Pictures without waiting for the Court to hold a scheduling conference, and well before he submitted a brief case management proposal. Mot. 7. Second, in November 2012, the parties met and conferred about DCs and Larsons filing cross-summary judgment motions in the Superboy case, Kline Decl. Ex. A, and Toberoff never argued such motions would be barred by a motion Cut-Off. Mot. 7. This is a fiction Toberoff now presses to seek delay. Third, the Ninth Circuit direct[ed] the district judge to reconsider [on remand] DCs third and fourth counterclaims in light of [its] holding that the October 19, 2001, letter created an agreement. Larson v. Warner Bros. Entmt, Inc., 2012 WL 6822241, at *2 (9th Cir. Jan. 10, 2013). DCs motion provides the proper vehicle for the Court to do exactly that. 5. If The Court Defers The Hearings And Briefing On The Parties Summary Judgment Motions, Any Extension Should Be Bilateral. Toberoff argues that the lengthy summary judgment motion he filed, without any notice, should be heard March 11, and he asks that DC respond to his motion on February 15 or 18 (11 or 14 days after he filed). Mot. 7. Yet, Toberoff also demands DCs summary

As for Toberoffs Ray Charles case, he can ask the court in that case, if need be, for an extension to file his fee application. These Superman cases have been pending for over eight years and need to be brought to an end.
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judgment motionwhich he knew about since mid-Januarybe heard March 25, and that he have until March 4 (or 25 days) to oppose. This is nonsense. DCs motion for summary judgment is nine pages long. It relies on the Ninth Circuits clear ruling, the rules governing mandate, and one statement of undisputed facta direct quote from the parties October 19, 2001, agreement that the Ninth Circuit held validly transferred Larsons copyright interests to DC. See Larson, 2012 WL 6822241, at *1; Case No. CV-04-8400, DN 702; Case No. CV-04-8776, DN 222. Toberoffs ex parte application, like his meet-and-confer correspondence, provides not a single substantive reason why DCs motion should be denied. He had three months since the Ninth Circuit oral argument and one month since it issued its ruling to cobble up any reasons, and, yet, as he did in the meet-and-confer process, he tellingly failed to articulate a single reason in his ex parte application. In contrast, Toberoffs pending summary judgment motion on DCs Fourth through Sixth Claims is a procedural and substantive mess, should be stayed and/or denied, and if anyone needs extra time, it is DC. Among other defects, Toberoffs motion is aimed at staving off DCs pending terminating sanctions motion, DN 575; it asserts the same statute-of-limitations arguments defendants lost when the Court entered summary judgment for DC on its Third Claim, Case No. CV-103633, DN 507; 468 at 12; it asks this Court to decide disputed fact issues, when discovery on these issues is ongoing, cf. supra at 4:11-19; it ignores the courts rulings rejecting Toberoffs claims about the Timeline and Consent Agreement, e.g., id. DN 579 at 7-8; and it fails to cite recent, on-point authority from the California Supreme Court rejecting Toberoffs legal arguments, e.g., Aryeh v. Canon Bus. Solutions, Inc., 2013 Cal. LEXIS 480, at *18-19 (Jan. 24, 2013). Indeed, defendants discovery misconduct is a complete bar to their motion and the limitations defense on which it is premisedDC cannot be charged with knowledge of facts Toberoff concealed. E.g., Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 357-59, 365-66 (9th Cir. 2005); 8B CHARLES ALAN
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WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE 2289, 544 n. 20 (3d ed. 2010); FED. R. CIV. P. 37(b)(2)(B); In re Orthopedic Bone Screw Prods. Liab. Litig., 1998 WL 254038, at *4 (E.D. Pa. May 5,1998); Case No. CV-10-3633, DN 507; 468 at 12. If anything, and as DC will show in its cross motion, judgment should enter in its favor on its Sixth Claim in its entirety, and on its Fourth and Fifth Claims, too, save for the issue of damages. Most fundamentally, however, Toberoff come nowhere close to meeting his most basic burden on his summary judgment motioni.e., showing no disputed issues of material fact exist on his limitations defense. Toberoffs recitation about when DC was reasonably put on notice of its claimslike his denials that he concealed evidence, or that the harms he caused were not ongoing as of May 2010, when DC filed suitare not only false, they cannot be summarily adjudicated in his favor. Case No. CV-10-3633, DN 507; 468 at 12. This point is palpably proved by the no fewer than 51 material facts Toberoff asks this Court to accept as true and undisputed in connection with his motion. DN 577-1. DC is working to file its opposition to Toberoffs summary judgment motion by February 15, as Toberoff must do on DCs pending summary judgment motion. If hearing dates or briefing deadlines are to be deferred on these two motionsand they need not be, in DCs viewany extensions should be bilateral and not reward Toberoffs gamesmanship. * * *

Toberoffs ex parte application should be denied. Dated: February 8, 2013 Respectfully Submitted, OMELVENY & MYERS LLP By /s/ Daniel M. Petrocelli Daniel M. Petrocelli Attorneys for DC Comics

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DANIEL M. PETROCELLI (S.B. #097802) dpetrocelli@omm.com MATTHEW T. KLINE (S.B. #211640) mkline@omm.com CASSANDRA L. SETO (S.B. #246608) cseto@omm.com OMELVENY & MYERS LLP 1999 Avenue of the Stars, 7th Floor Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 Attorneys for DC Comics Parties UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LAURA SIEGEL LARSON, individually and as personal representative of the ESTATE OF JOANNE SIEGEL, Plaintiff, v. WARNER BROS. ENTERTAINMENT INC., DC COMICS, and DOES 1-10, Defendants and Counterclaimants. Case No. CV 04-8400 ODW (RZx) Case No. CV 04-8776 ODW (RZx) DECLARATION OF MATTHEW T. KLINE IN SUPPORT OF DCS OPPOSITION TO LARSONS EX PARTE APPLICATION TO CONTINUE HEARING DATE ON MOTION FOR SUMMARY JUDGMENT The Hon. Otis D. Wright II Noticed Date: Noticed Time: Courtroom: March 11, 2013 1:30 p.m. 11

KLINE DECL. ISO DCS OPPN TO LARSONS EX PARTE APP.

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TABLE OF CONTENTS Description Email from Jason H. Tokoro to defense counsel dated February 6, 2013, attaching DCs portion of the joint stipulation regarding DC Comics Motion (1) For Leave To Conduct Further Deposition Of Defendants Marc Toberoff, Laura Siegel Larson, and Mark Warren Peary; and (2) To Compel Defendants Marc Toberoff and Mark Warren Peary To Respond To Deposition Questions Email chain between Matthew T. Kline and Keith Adams dated November 6-27, 2012 Appellants Mediation Questionnaire filed in DC Comics v. Pacific Pictures Corp., Appeal No. 12-57245 (Pacific Pictures Appeal), DN 3-1, dated December 19, 2012 Appellants Unopposed Motion For An Extension Of Time To File Opening Brief filed in the Pacific Pictures Appeal, DN 81, dated January 30, 2013 Declaration of Marc Toberoff In Support Of Appellants Unopposed Motion For An Extension Of Time To File Opening Brief filed in the Pacific Pictures Appeal, DN 8-2, dated January 30, 2012 Ninth Circuits order in the Pacific Pictures Appeal, DN 9, dated February 4, 2013 Page 4

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I, Matthew T. Kline, declare and state: 1. I am an attorney licensed to practice in the State of California and

admitted to the Central District of California. I am a partner at OMelveny & Myers LLP, counsel of record for plaintiff DC Comics (DC) in this case. I make this declaration in support of DCs Opposition To Larsons Ex Parte Application To Continue Hearing Date On Motion For Summary Judgment. I have personal knowledge of the matters set forth in this declaration. 2. Attached hereto as Exhibit A is a true and correct copy of an email

from my colleague Jason H. Tokoro to defense counsel dated February 6, 2013, attaching DCs portion of the joint stipulation regarding DC Comics Motion (1) For Leave To Conduct Further Deposition Of Defendants Marc Toberoff, Laura Siegel Larson, and Mark Warren Peary; and (2) To Compel Defendants Marc Toberoff and Mark Warren Peary To Respond To Deposition Questions. 3. Attached hereto as Exhibit B is a true and correct copy of an email

chain between myself and Keith Adams dated November 6-27, 2012. 4. Attached hereto as Exhibit C is a true and correct copy of Appellants

Mediation Questionnaire filed in DC Comics v. Pacific Pictures Corp., Appeal No. 12-57245 (Pacific Pictures Appeal), DN 3-1, dated December 19, 2012. 5. Attached hereto as Exhibit D is a true and correct copy of Appellants

Unopposed Motion For An Extension Of Time To File Opening Brief filed in the Pacific Pictures Appeal, DN 8-1, dated January 30, 2013. 6. Attached hereto as Exhibit E is a true and correct copy of the

Declaration of Marc Toberoff In Support Of Appellants Unopposed Motion For An Extension Of Time To File Opening Brief filed in the Pacific Pictures Appeal, DN 8-2, dated January 30, 2012. \\\ \\\ \\\
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7.

Attached hereto as Exhibit F is a true and correct copy of the Ninth

Circuits order in the Pacific Pictures Appeal, DN 9, dated February 4, 2013. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on the 8th day of February, 2013 at Los Angeles, California. /s/ Matthew T. Kline Matthew T. Kline

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EXHIBIT B

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EXHIBIT C

Case 2:04-cv-08400-ODW-RZ Document 705-2 Filed 02/08/13 Page 58 of 80 Page ID #:15361 Case: 12-57245 12/19/2012 ID: 8447208 DktEntry: 3-1 Page: 1 of 3

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Circuit Mediation Office Phone (415) 355-7900 Fax (415) 355-8566
courts,govirric.dinticyq

MEDIATION QUESTIONNAIRE
The purpose of this questionnaire is to help the court's mediators provide the best possible mediation service in this case; it serves no other function. Responses to this questionnaire are not confidential. Appellants/Petitioners must electronically file this document within 7 days of the docketing of the case. 9th Cir. R. 3-4 and 15-2. Appellees/Respondents may file the questionnaire, but are not required to do so.

9th Circuit Case Number(s):

12-57245

District Court/Agency Case Number(s): CV-10-3633 District Court/Agency Location: Case Name: DC Comics
If District Court, docket entry number(s) of 540 Central District of California, Western Division v. Pacific Pictures Corporation, et al.

order(s) appealed from:

Name of party/parties submitting this form: Defendants, Pacific Pictures Corp. et al.

Please briefly describe the dispute that gave rise to this lawsuit.
The Estate of Superman co-creator Joseph Shuster ("Shuster") exercised its rights under section 304(d) of the Copyright Act, to recover Shuster's Superman copyright interests by terminating his old copyright grants to DC Comics ("DC"). In 1997, the heirs of Superman's other co-creator, Jerome Siegel ("Siegel"), had served/filed a parallel termination notice which was upheld in Siegel v. Warner Bros. Entertainment Inc., C.D. Cal. Case No. 04CV-08400. DC filed this lawsuit in 2010 seeking to invalidate or limit the Shuster Termination. DC also sought, in the alternative, declaratory relief under the Copyright Act and California's Unfair Competition Law against the Shuster Estate, the Siegel heirs, and their attorney, Mr. Toberoff, regarding agreements relating to the Termination. DC also brought baseless tortious interference claims against its long-time opposing counsel, Mr. Toberoff.

Briefly describe the result below and the main issues on appeal.
On October 17, 2012, the District Court granted DC summary judgment on both its First and alternative Third Claim. On the First Claim, the Court found a 1992 agreement between DC and Joseph Shuster's siblings precluded the Estate from exercising its statutory termination right by purportedly revoking Shuster's Superman copyright grants and re-granting his copyrights, despite the lack of any such contractual language and the fact that siblings did not then and do not now hold termination rights. On the Third Claim (although pled in the alternative if the First Claim was not granted), the court invalidated three Estate agreements (two of which had been voluntarily cancelled in 2004) as violating DC's supposed exclusive right of negotiation under 17 U.S.C. 304(c)(6)(D). On December 11, 2012, the Court, on Defendants' motion, entered a Rule 54(b) judgment on DC's First and Third Claims that Defendants challenge on appeal.

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Describe any proceedings remaining below or any related proceedings in other tribunals.
The Siegel case was transferred to the current District Court on November 20, 2009. Thereafter, a Rule 54(b) judgment was entered, wherein the Siegel heirs' statutory termination was upheld, and the remainder of the case was stayed pending an appeal by both sides of the Rule 54(b) judgment, currently before this Circuit. 9th Cir. Appeal Nos, 11-55863, 11-56034. On October 25, 2011, the District Court in this case denied Defendants' AntiSLAPP motion on the grounds that DC's Fourth, Fifth and Sixth Claims were purportedly not subject to California's Anti-SLAPP statute. Defendants' appeal of that order is currently before this Circuit. 9th Cir. Appeal No. 11-56934. On November 5, 2012, oral argument was heard as to both the cross-appeals in the Siegel case and on the AntiSLAPP appeal by the Honorable Stephen R. Reinhardt, Sidney R. Thomas, and John H. Sedwick. Defendants intend to move early next year to have the same panel hear this appeal, and for expedited briefing. There are currently discovery motions pending in the District Court, and DC intends to bring a motion for fees and costs on its First and Third Claims in early 2013. Previously in this action, the District Court held that defendants had waived the attorney-client privilege on numerous documents that had been stolen from Mr. Toberoffs law firm and furnished by the thief to Warner Bros./ DC, due to the firm's sharing such documents with the government in order to investigate/prosecute the crime. Defendants' petition for a writ of mandamus on this issue was denied after full briefing and oral argument on April 17, 2012. 9th Cir. Appeal No. 11-71844.

Provide any other thoughts you would like to bring to the attention of the mediator.
The parties engaged in formal mediation sessions before the Hon. Daniel Weinstein (Ret.) in May-June 2008, September 2009, April 2010, and December 2011; however, these efforts did not result in a settlement.

CERTIFICATION OF COUNSEL I certify that: a current service list with telephone and fax numbers and email addresses is attached (see 9th Circuit Rule 3-2). I understand that failure to provide the Court with a completed form and service list may result in sanctions, including dismissal of the appeal. Signature s/ Marc Toberoff
("s/" plus attorney name may be used in lieu of a manual signature on electronically-filed documents.)

Counsel for Laura Siegel Larson, Jean Adele Peavy and Mark Warren Peary.
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Note: Use of the Appellate ECF system is mandatory for all attorneys filing in this Court, unless they are granted an exemption from using the system. To file this form electronically in Appellate ECF, complete the form, and then print the filled-in form to PDF (File > Print > PDF Printer/Creator). Then log into Appellate ECF and choose Forms/Notices/Disclosure > File a Mediation Questionnaire.

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EXHIBIT E

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APPELLATE CASE No. 12-57245

UNITED STATES COURT OF APPEALS FOR THE NINTH Cmcurr

DC COMICS, Plaintiff Appellee, V. PACIFIC PICTURES CORPORATION ET AL., Defendants Appellants.
DECLARATION OF MARC TOBEROFF IN SUPPORT OF APPELLANTS' UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE OPENING BRIEF

On Appeal From The United States District Court for the Central District of California, Case No. CV-10-03633 ODW (RZx), Hon. Otis D. Wright II TOBEROFF & ASSOCIATES, P.C. Marc Toberoff nitoberoff@toberoffandassociates.corn Keith G. Adams (240497) kgadams@toberoffandassociates.corn Pablo D. Arredondo (241142) parredondo@toberoffandassociates.corn 22337 Pacific Coast Highway, #348 Malibu, CA 90265 Telephone: (310) 246-3333 Facsimile: (310) 246-3101 Attorneys for Defendants-Appellants Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel

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15)

DECLARATION OF MARC TOBEROFF

I, Marc Toberoff, declare as follows:

1.

I am an attorney at the law firm of Toberoff & Associates, P.C., counsel

of record for Defendants-Appellants Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel ("Defendants"). I am also counsel of record for Defendants in the underlying case of DC Comics v. Pacific
Pictures Corp. et al., Case No. CV-10-03633 ODW (RZx) ("DC Comics") and for

appellant Laura Siegel Larson in the related case Larson v. Warner Bros.
Entertainment, Inc., C.D. Cal. Case No. 04-CV-08400 ODW (RZx) ("Larson"). I am

a member in good standing of the State Bar of California and submit this declaration in support of Appellants' Unopposed Motion For An Extension Of Time To File Opening Brief pursuant to Ninth Cir. Rule 31-2.2(b). I have personal knowledge of the facts set forth in this declaration and, if called as a witness, I could and would testify competently to such facts under oath. 2. The issues in this appeal are complex and Defendants' counsel

requires additional time to prepare an opening brief that will most effectively assist the Court in resolving the issues raised. 3. My firm, Toberoff and Associates, P.C. is a boutique copyright

litigation firm, comprised solely of myself and three associates.

EXHIBIT E 67

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4.

Attached hereto as Exhibit "A" is a true and correct copy of an e-mail

sent from Matthew Kline, counsel for DC Comics, to my colleagues Keith Adams and Pablo Arredondo, dated November 6, 2012. 5. Attached hereto as Exhibit "B" is a true and correct copy of a January

22, 2013 order of the district court in the case below, entered at Docket No. 564. 6. Attached hereto as Exhibit "C" is a true and correct copy of relevant

excerpts from the district court's January 28, 2013 order in The Ray Charles Foundation v. Raenee Robinson, et al., C.D. Cal. Case No. 12-CV-02725 ABC (FFMx), entered at Docket No. 41. 7. Attached hereto as Exhibit "D" is a true and correct copy of a January

29, 2013 e-mail chain between Keith Adams and Matthew Kline, counsel for plaintiff DC Comics. I declare under penalty of perjury that the foregoing is true and correct. Executed this 30th day of January, 2013 at Malibu, California.

Marc Toberoff

EXHIBIT E 68

Case 2:04-cv-08400-ODW-RZ Document 705-2 Filed 02/08/13 Page 72 of 80 Page ID #:15375 I: !15 oit ri( 0,:r0.1A N;sociatesi 1/30/13 J9fl.cnic; t;', C P6ige:4 of 9 (10
If

DC Comics v. Pacific Pictures

Kline, Matthew <mkline@omm.com > Tue, Nov 6, 2012 at 12:11 PM To: "Keith Adams (kgadams@ipwla.corn)" <kgadams@ipwla.corn>, "Pablo Arredondo (parredondo@ipwla.com )" <parredondo@ipwla.corn> Cc: "Petrocelli, Daniel" <dpetrocelli@omm.com >, "Seto, Cassandra" <cseto@omm.com >, "Tokoro, Jason" <jtokoro@omm.corn>, "Lens, Molly" <mlens@omm.corn>, "Marc Toberoff (mtoberoff@ipwla.com )" <mtoberoff@ipwla.com >, Richard Kendall <rkendall@kbkfirm.com >, "Ibrill@kbkfirm.com " <lbrill@kbkfirm.com >, Nicholas Daum <ndaum@kbkfirm.com >

Counsel:

We understand that defendants intend to file a Rule 54 motion this week concerning DC's First and Third Claims in the Pacific Pictures case. DC will oppose the motion because this case can, within the next few months, be brought to a final and decisive conclusion. Any appeal now would be inefficient and premature. Indeed, we are very concerned that defendants have filed so many interlocutory appeals in this case (five now)--all in an effort to forum-shop, and to stymie this case from being fully and finally adjudicated. We hope we can convince you, for the reasons below, not to file your motion. in any event, we wanted to make sure you had DC's position on these issues and that you accurately representing that position to the Court, including by submitting this letter with any filing.

The reasons for not filing a Rule 54 motion now are many. Among them:

1. DC has a pending motion concerning its Fifth Claim that ultimately could help resolve that claim That motion, which is set for hearing in a few weeks, should be resolved before we litigate whether a piecemeal appeal should be taken on DC's other claims. 2. Relatedly, since defendants will not stipulate to judgment on DC's Sixth Claim based on the Court's ruling on DC's Third Claim, DC will need to move for summary judgment on that claim as well. That issue is narrow and should be resolved before any Rule 54 appeal is taken. 3. DC's Fourth Claim could soon be resolved as well--either on summary judgment in DC's favor, or absent that, following a short trial. 4. DC intends to seek certain of its fees and costs on its First and Third Claims, as is its right. Those issues should be adjudicated before any appeal premised on those Claims is taken. 5. The Superboy case can and should be resolved now. As the remaining open issues in
ule&search=q uery&msg =13ad759645a693f8 https://mail.g oog I e.com/mail/u/0/?ui = 2&i ic- 8605c a3fab&vi evt pt&q = meet anffc#01t:tri 1/3

EXHIBIT E 69

1/30/13

Case 2:04-cv-08400-ODW-RZ Document 705-2 Filed 02/08/13 Page 73 of 80 Page ID #:15376 Case: 12-57245 01/ L h Associates' FX aiIgxcmic s -2 Page: 5 of 9 (11 of 15) that case are narrow, and DC is entitled to judgment as a matter of law, we intend to file a motion seeking summary judgment.
6. Before any appeal, including a Rule 54 appeal, is brought on DC's First and Third Claims against the Shusters, DC believes a court-ordered mediation with the Shuster family would be potentially productive. In the wake of the Court's summary judgment ruling, the family (a) no longer has to labor under the unlawful consent agreements; and (b) should now have a more sober assessment of their claims. Cf: Peary Depo. at 357:22-358:16 ("Q. So you -- you understand that given that the estate has already given up an interest in Superboy, and the estate could lose this case and the court could find that the Shuster termination notice is invalid, that you as executor could yield the estate zero. You have entertained that as a possible outcome, correct? MR. TOBEROFF: Assumes facts. Lacks foundation. You can answer in the most general fashion without going into any details__ THE WITNESS: I've only considered that like I would an asteroid hitting us and wiping out life on earth."). We will be asking the Court, pursuant to its Local Rules, to order such a mediation. We believe any appeal the Shusters take will be rejected, and the Court's summary judgnent ruling will be affirmed, but DC is willing to discuss the saved costs of not having to brief the appeal as part of a settlement discussion.

In short, we suggest that we all take a pause this week and consider the best schedule and way to manage and fully resolve these cases. To that end, we hereby request a meet and confer on the issues set Ibrth above on Tuesday, November 13, at 10 a.m. We can have that meeting in our office. At all events, the parties should strive to bring this case to a final, decisive end on all of the claims presented. Further piecemeal appeals are only a distraction and will delay matters and increase costs.

All of DC's rights are reserved.

Thanks,

Matt Kline ****************************************** Matthew T. Kline O'Melveny & Myers LLP 1999 Avenue of the Stars, 7th Floor Los Angeles, CA 90067 Phone: (310) 246 6840 Fax: (310) 246-6779 unk linekornm.com \vvvw.0inni,corn
-

r:Crit htt ps ://mai I .g oog I e.com/mail/u/0/?ui = 2&i 8605ca3fab&NA evpt&g =meet anc3 eii&4!tri$&s ear c h= g uery&msg =13ad759645a693f8

2/3

EXHIBIT E 70

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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Pending before the Court are two motions filed on July 3, 2012, 19 by Defendants Raenee Robinson, Ray Charles Robinson, Jr., Sheila 20 21 Moffett: a Motion to Strike Plaintiff's State-Law Causes of Action 22 23 24 Charles Foundation (the "Foundation") opposed on July 23, 2012, and 25 Defendants replied on August 13, 2012. The Court heard oral argument 26 27 28 on September 24, 2012. The parties then filed supplemental briefs on Pursuant to California's Anti-SLAPP Law (Docket No. 15); and a Motion to Dismiss Plaintiff's Complaint (Docket No. 16). Plaintiff The Ray Robinson, David Robinson, Robert F. Robinson, Reatha Butler, and Robyn V. RAENEE ROBINSON, et al., Defendants. THE RAY CHARLES FOUNDATION, Plaintiff, CV 12-2725 ABC (FFMx) ORDER RE: DEFENDANTS' MOTION TO STRIKE AND MOTION TO DISMISS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

EXHIBIT E 71

Exhibit C 6

Case 2:04-cv-08400-ODW-RZ Document 705-2 Filed 02/08/13 Page 75 of 80 Page ID #:15378 7 AH=. 4LOcumE Th 2. c; 1414 of 15) :1094
the party whose rights are at issue" or that it "has a sufficiently
2

close connection to [Warner/Chappell] to assert claims on that party's behalf." Pony v. Cnty. of Los Angeles, 433 F.3d 1138, 1147 (9th Cir.

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

2006). The Foundation also has not shown that Warner/Chappell is unable to assert its own interests here, if it so chooses. Thus, the Foundation does not have standing to assert Warner/Chappell's interests in seeking to invalidate the termination notices. CONCLUSION The Court GRANTS Defendants' Motion to Strike and STRIKES the Foundation's state-law claims. The Court also GRANTS Defendants' motion to dismiss the Foundation's federal claim for lack of standing. Because all of the flaws identified are legal, any amendment would be futile and leave to amend is DENIED. See Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Defendants are ORDERED to lodge a proposed judgment dismissing this case with prejudice within 10 days of the date of this Order. Moreover, because attorney's fees are mandatory under the anti-SLAPP statute, Defendants' request for attorney's fees is GRANTED. Defendants are ORDERED to file an application for fees no later than February 11, 2013. The Foundation may respond no later than February 18, 2013, and Defendants may reply no later than February 25, 2013. Once briefing is completed, the Court will take the matter under submission. IT IS SO ORDERED.
=4,, t,

DATED: January 25, 2013 AUDREY B. COLLINS UNITED STATES DISTRICT JUDGE

27

EXHIBIT E 72

Exhibit C 7

Case 2:04-cv-08400-ODW-RZ Document 705-2 Filed 02/08/13 Page 76 of 80 Page ID #:15379 1/30/13 Pt A 12Case: 1.2-57241,Tober6o0: ,,-,,:0,-,-H-p!,-:.-pc Mail (15 of 15) je: 9 of 9
11.41.

DC Comics v. Pacific Pictures Corp., Appeal 12-57245

Kline, Matthew <mkline@omm.com > Tue, Jan 29, 2013 at 11:27 AM To: "kadams@toberoffandassociates.com " <kadams@toberoffandassociates.com >, "Petrocelli, Daniel" <dpetrocelli@omm.com > Cc: "Seto, Cassandra" <cseto@omm.corn>, "dharris@toberoffandassociates.com " <dharris@toberoffandassociates.com >, "parredondo@toberoffandassociates.corn" <parredondo@toberoffandassociates.corn>, "mtoberoff@toberoffandassociates.com " <mtoberoff@toberoffandassociates.corn>, "rkendall@kbkfirrn.corn" <rkendall@kbkfirm.corn>

Keith: DC takes no position regarding defendants' request.-We defer to the panel arid its schedule. Matt Kline
From: Keith Adams [mailto:kadarns@toberoffandassociates.corn] Sent: Tuesday, January 29, 2013 11:01 AM To: Petrocelli, Daniel; Kline, Matthew Cc: Seto, Cassandra; David Harris <dharris@toberoffandassociates.com ; Pablo Arredondo <parredondo toberoffandassociates.com >; Marc Toberoff <rntoberoff@toberoffandassociates.com > Subject: DC Comics v. Pacific Pictures Corp., Appeal 12-57245 Counsel: Please note that, pursuant to Circuit Rule 31-2.2(b) and the Clerk's January 14, 2013 directive, Appellants intend to file a motion to extend their time to file their opening brief and excerpts of record by 18 days, from February 15, 2013 to March 5, 2013. Additional time is required due to the importance of the issues involved, as well as counsel's calendar. Please let us know whether DC will oppose this procedural motion by the close of business today. Sincerely, Toberoff & Associates, P.C. 22337 Pacific Coast Highway, #348 Malibu, California 90256 (t) 310.246.3333

(f) 310.246,3101 toberoffandassociates.com

Toberoff & Associates, P.C. has changed its website and e-mail addresses. Please update your records accordingly.

This message and any attached documents may contain information from Toberoff & Associates, P.C. that is confidential and/or privileged. If you are not the intended recipient, you may not read, copy, distribute, or otherwise use this information. If you have received this transmission in error, please notify the sender immediately by reply e-email and then delete this message.

https://mail.g oog le.com/mail/u/Onui=2&ik=8605ca3fab&viept&search=inbo msg = c8, c721dbc05b2&dsg t= 1

EXHIBIT E 73

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. Title

CV 10-3633 ODW (RZx) DC Comics v. Pacific Pictures Corp. et al.

Date January 22, 2013

Present:

The Honorable Otis D. Wright II, United States District Judge Sheila English Deputy Clerk Not Present Court Reporter n/a Tape No.

Attorneys Present for Plaintiff(s): Not Present

Attorneys Present for Defendant(s): Not Present

Proceedings (In Chambers): Order Withdrawing ECF No. 563

ON THE COURT'S OWN MOTION, the Court's January 22, 2013 Minute Order (ECF No. 563) Striking Docket Number 562 is hereby WITHDRAWN. Plaintiff DC Comics's Amended Motion for Attorneys' Fees (ECF No. 562) is hereby ACCEPTED for filing. Accordingly, DC Comics's Amended Motionwhich only advances the hearing date from July 1, 2013 (see ECF No. 559), to February 25, 2013 at 1:30pm supersedes DC Comics's originally filed Motion for Attorneys Fees (ECF No. 559). Defendants' Opposition is therefore due no later than February 4,2013, and DC Comics's Reply (if any) is due no later than February 11, 2013.

IT IS SO ORDERED.
00 Initials of Preparer SE

CV-90 (06/04)

CIVIL Ai

ERAL

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EXHIBIT F

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EXHIBIT F 75

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EXHIBIT F 76

Case 2:04-cv-08400-ODW-RZ Document 706

Filed 02/08/13 Page 1 of 3 Page ID #:15384

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. 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 Defendant, Laura Siegel Larson, of the Estate of Joanne Siegel

8 Attorneys for Plaintiff-Counterclaim 9 individually and as personal representative 10

UNITED STATES DISTRICT COURT

11 12 13 14 15 16 17 18 19 20

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION Case No: 04-CV-08400 ODW (RZx) LAURA SIEGEL LARSON, Case No: 04-CV-08776 ODW (RZx) individually and as personal representative of the ESTATE OF Hon. Otis D. Wright II, U.S.D.J. JOANNE SIEGEL, Hon. Ralph Zarefsky, U.S.M.J. Plaintiff, PLAINTIFFS REPLY IN SUPPORT v. OF EX PARTE APPLICATION TO OPPOSITION WARNER BROS. ENTERTAINMENT CONTINUEDATES RE: DCAND HEARING COMICS MOTIONS FOR INC., DC COMICS, and DOES 1-10, SUMMARY JUDGMENT (Case No. Defendants and 04-CV-08400, Dkt. 702; Case No. 04Counterclaimants. CV-08776, Dkt. 222) Declaration of Keith Adams and [Proposed] Order Filed concurrently Noticed Date: Noticed Time: Noticed Place: March 11, 2013 1:30 p.m. Courtroom 11

LAURA SIEGEL LARSON, individually and as personal 21 representative of the ESTATE OF JOANNE SIEGEL, 22 Plaintiff, 23 v.
24 TIME WARNER INC., WARNER

Requested Date: March 25, 2013 Requested Time: 1:30 p.m. Requested Place: Courtroom 11

COMMUNICATIONS INC., WARNER BROS. ENTERTAINMENT 26 INC., WARNER BROS. TELEVISION PRODUCTION INC., DC COMICS, 27 and DOES 1-10, Defendants and 28 Counterclaimants.
25
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1.

DCs opposition to Plaintiffs ex parte application, like all of their

2 filings before this Court, is larded with invective and ad hominem attacks against its 3 opposing counsel. The objective record is abundantly clear from the parties e-mail 4 exchange, attached to Plaintiffs application. There was no significant delay between 5 DCs January 28 e-mail, requesting a meet and confer, and February 6, when the 6 meet and confer was held. DCs claim that Mr. Toberoff refused to participate in 7 the February 6 meet and confer is preposterous, as the meet and confer was held 8 between Keith Adams, of Mr. Toberoffs firm, and Matt Kline, of OMelveny, who 9 routinely handle such meet and confers. 10

2.

DCs opposition improperly asks that, if this Court continues the hearing

11 date on DCs motions for summary judgment in the Siegel Superman and Superboy 12 cases, that the Court also continue the hearing date on the defendants motion for 13 summary judgment in the DC Comics case. 14

It is obviously improper for DC to seek a continuance in DC Comics through

15 an ex parte opposition in these cases. More importantly, a continuance of 16 defendants dispositive motion for summary judgment in DC Comics would be 17 counter-intuitive and serve to complicate the Courts tasks rather than streamline 18 them. Defendants summary judgment motion in DC Comics seeks judgment on all 19 remaining claims DCs Fourth, Fifth and Sixth Claims on the grounds that each 20 of them are long time-barred by the applicable statutes of limitations. DC Comics, 21 Dkt. 576. It is currently set to be heard on March 11, 2013, at the same time as DCs 22 motion for an evidentiary hearing re: issue preclusion sanctions on DCs Fifth Claim 23 in DC Comics (Dkt. 573), which DC filed the same day. Logically, this Court should 24 hear the DC Comics summary judgment motion first, because if DCs Fourth, Fifth 25 and Sixth claims are all time-barred, it would moot DCs motion for an evidentiary 26 hearing, and bring the entire DC Comics case to a close. 27

Given the above and the sheer number of motions set for hearing on March 11,

28 2013, there is a substantial risk of confusion. DCs tactical suggestion to move

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1 certain motions on a piecemeal basis is not a good one. 2

The Court has ordered the parties to submit a status report containing a case-

3 management proposal by February 25, 2013 regarding all three cases. Siegel 4 Superman, Dkt. 701; Siegel Superboy, Dkt. 221; DC Comics, Dkt. 571 ([T]he 5 parties are hereby directed to file a joint status report . The status report should 6 take the format of the parties earlier status report as the Court found that format 7 particularly helpful. [T]he parties should devote particular attention to the affect 8 of the Ninth Circuits recent rulings on the proceedings in this Court, the status of the 9 pending appeals and what affect those appeals may have in this Court, and a brief 10 case-management proposal going forward.). 11

Given the overlap between the various motions, if the Court were inclined to

12 re-set hearing dates, it would serve both the interests of the Court and all parties to 13 continue the hearing date on all outstanding motions in these three cases to April 1, 14 2013, or such other date as is most convenient for the Court. See Siegel Superman, 15 Dkt. 702; Siegel Superboy, Dkt. 222; DC Comics, Dkt. 559, 569, 573, 576. 16

This would provide the Court with a more reasonable amount of time to

17 address such motions; would provide the parties with some breathing room to discuss 18 settlement and to prepare the status report; and would permit a more orderly 19 resolution of both the motions and the cases as a whole. 20 21 22 23 24 25 26 27 28

Dated: February 8, 2013

RESPECTFULLY SUBMITTED, Marc Toberoff TOBEROFF & ASSOCIATES, P.C. Attorneys for Plaintiff, Laura Siegel Larson

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION Case No: 04-CV-08400 ODW (RZx) LAURA SIEGEL LARSON, individually and as personal Hon. Otis D. Wright II, U.S.D.J. representative of the ESTATE OF Hon. Ralph Zarefsky, U.S.M.J. JOANNE SIEGEL, ORDER GRANTING PLAINTIFFS Plaintiff, EX PARTE APPLICATION TO v. CONTINUE OPPOSITION AND HEARING DATES RE: MOTIONS WARNER BROS. ENTERTAINMENT FOR SUMMARY JUDGMENT (Case No. 04-CV-08400, [Dkt. 702] INC., DC COMICS, and DOES 1-10, Defendants and Counterclaimants.

17 LAURA SIEGEL LARSON, 18 individually and as personal 19 JOANNE SIEGEL, 20 21

representative of the ESTATE OF Plaintiff, v. TIME WARNER INC., WARNER

22 COMMUNICATIONS INC., 23 WARNER BROS. ENTERTAINMENT

INC., WARNER BROS. TELEVISION

24 PRODUCTION INC., DC COMICS, 25 and DOES 1-10, 26 27 28

Defendants and Counterclaimants.

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The Court has received Plaintiffs ex parte application to continue the hearing

2 and briefing dates on Defendants pending motions for summary judgment in the 3 related Superman and Superboy matters, filed on February 7, 2013.

(Case No. 04-

4 CV-08400, ECF No. 703; Case No. 04-CV-08776, ECF No. 223.) Plaintiff contends 5 that Defendants failed to comply with Local Rule 7-3s requirement that the movant 6 meet and confer regarding the substance of a contemplated motion at least 10 days 7 prior to filing the motion. 8

While the Court readily acknowledges that Plaintiff had more than sufficient

9 notice that Defendants would move for summary judgment following the entry of the 10 Ninth Circuits mandate relating to its January 10, 2013 memorandum disposition, it 11 must also acknowledge that Defendant has failed to comply with the letter of Local 12 Rule 7-3. Indeed, Exhibit A to Plaintiffs ex parte application reveals that counsel 13 for Defendants began the formal meet-and-confer process on January 28, 2013, by 14 noting his inten[t] to immediately move the Court to enter judgment in favor of [his] 15 clients in both the Superman and Superboy cases based on the Ninth Circuits recent 16 decision regarding the 2001 agreement between the parties and requesting a 17 response to their request for a time to promptly meet and confer no later than 18 Thursday, January 31, 2013. (Ex. A, at 6.) Following Plaintiffs response on January 19 31, Defendants again indicated on February 1 that they would like to meet and 20 confer with you on Monday[, February 4] or Tuesday[, February 5]. (Ex. A, at 5.) 21 This suggests that on February 1, Defendants anticipated a formal forthcoming 22 meeting as late as February 5. But Defendants proceeded to file their motion for 23 summary judgment on February 7fewer than 10 days following the February 1 24 exchange. 25

In light of Defendants failure to comply with the letter of Local Rule 7-3, the

26 Court hereby CONTINUES the noticed hearing date (and all associated briefing 27 dates) on Defendants motions for summary judgment in the Superman and Superboy 28 cases (Case No. 04-CV-08400, ECF No. 702; Case No. 04-CV-08776, ECF No. 222)

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1 to March 25, 2013. Plaintiffs opposition is therefore due no later than March 4, 2 and Defendants reply (if any) is due no later than March 11. Nevertheless, the 3 Court hereby VACATES the hearing on these motions, and no appearances will be 4 necessary unless otherwise ordered by the Court on a later date. The Court will 5 likewise vacate all March 11 hearing dates in all related Superman matters (Case 6 Nos. 04-CV-08400, 04-CV-8776, and 10-CV-03633) in a forthcoming minute order. 7 No appearances will be necessary on any pending motions in any of these matters 8 unless otherwise ordered by the Court. All other briefing schedules related to all 9 other pending motions remain fixed. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS SO ORDERED. Dated: February 8, 2013 Hon. Otis D. Wright II.

Case 2:10-cv-03633-ODW-RZ Document 580

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title CV 10-03633-ODW (RZx) DC Comics v. Pacific Pictures Corporation et al Date February 8, 2013

Present: The Honorable

Otis D. Wright II, United States District Judge Sheila English Deputy Clerk None Present Court Reporter / Recorder Attorneys Present for Defendants: None Present

Attorneys Present for Plaintiffs: None Present Proceedings:

(IN CHAMBERS) Order Vacating Hearing on MOTION for Attorney Fees [559]; MOTION for Attorney Fees / Amended [562]; MOTION for Review of January 16, 2013 Order [569]; MOTION for Hearing [Evidentiary] [573]

The hearing on the above-referenced motion, scheduled for March 11, 2013 at 1:30 p.m., is hereby VACATED and taken off calendar. No appearances are necessary. The matter stands submitted, and will be decided upon without oral argument . An order will issue. IT IS SO ORDERED.

: Initials of Preparer SE

00

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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Case 2:10-cv-03633-ODW-RZ Document 581

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title CV 10-03633-ODW (RZx) DC Comics v. Pacific Pictures Corporation et al Date February 8, 2013

Present: The Honorable

Otis D. Wright II, United States District Judge Sheila English Deputy Clerk None Present Court Reporter / Recorder Attorneys Present for Defendants: None Present

Attorneys Present for Plaintiffs: None Present Proceedings:

(IN CHAMBERS) Order Vacating Hearing on MOTION for Partial Summary Judgment [577]

The hearing on the above-referenced motion, scheduled for May 14, 2013 at 1:30 p.m., is hereby VACATED and taken off calendar. No appearances are necessary. The matter stands submitted, and will be decided upon without oral argument . An order will issue. IT IS SO ORDERED.

: Initials of Preparer SE

00

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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