Siegel Superman Superboy & Pacific Pictures cases - 2/8/2013 documents

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-claim-

defendant - Appellant,

v.

WARNER BROS. ENTERTAINMENT,

INC., a corporation; DC COMICS, a

New York General Partnership,

Defendants-counter-

claimants - 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-claim-

defendant - Appellee,

v.

WARNER BROS. ENTERTAINMENT,

INC., a corporation and DC COMICS,

Defendants-counter-

claimants - 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: 1 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

Case: 11-55863 02/04/2013 ID: 8498958 DktEntry: 71 Page: 2 of 2

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

DC’S OPP’N TO LARSON’S EX PARTE APP.

DANIEL M. PETROCELLI (S.B. #097802) [email protected] MATTHEW T. KLINE (S.B. #211640) [email protected] CASSANDRA L. SETO (S.B. #246608) [email protected] O’MELVENY & 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) DC’S OPPOSITION TO LARSON’S 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: March 11, 2013 Noticed Time: 1:30 p.m. Courtroom: 11

Case 2:04-cv-08400-ODW-RZ Document 705 Filed 02/08/13 Page 1 of 8 Page ID #:15292

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 1 - DC’S OPP’N TO LARSON’S EX PARTE APP.

Larson’s ex parte application should be denied. Tellingly, the application is

unsupported by a single declaration that supports Toberoff’s 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 Court’s rules.

DN 702-1. As with his numerous, prior emergency motions, e.g., Case No. CV-10-

3633, DN 222, 237, 424, Toberoff’s 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, Toberoff’s motion offers no

explanation—none—of the grounds he will argue to oppose DC’s 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 Circuit’s

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 DC’s pending summary judgment motion, Mr. Petrocelli submitted a

declaration, supported by DC’s written correspondence with Toberoff. Petrocelli’s

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 Circuit’s ruling in DC’s 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 DC’s 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 DC’s motion for entry of judgment on January 28 and February 1, 2013. My partner,


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


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 Larson’s counsel. As detailed in Mr. Kline’s follow-up email of February 6, Larson’s counsel would not identify any specific ground based on which Larson would oppose DC’s summary judgment motion or any objections Larson had to the draft proposed judgments DC had provided. Instead, Larson’s counsel said Larson reserved “all contractual and declaratory relief arguments” in opposing DC’s motion. Mr. Kline asked Larson’s counsel in a follow-up email to identify any such arguments with specificity, but Larson’s counsel declined to provide such details, and argued, as they had before, that DC’s motion was premature. Mr. Kline and I both noted in our emails that Larson’s 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 Petrocelli’s 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 because—unbeknownst to DC and the courts—he

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


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


motion. Infra at 5-7; Adams Decl. Ex. D (DN 223-1 at 17 ¶ 2). Such tactical

games and “slither[ing]” around this Court’s Local Rules, as this Court once rightly

called out Toberoff’s 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 Court’s Standing Order, Providing Larson

32-Day Notice On Its Motions, And Would Have Filed Its Motions A Week Earlier

Had Toberoff Not Engendered Delay. Toberoff’s charge that DC’s motion violates

Paragraph 6(d) of the Court’s Standing Order defies simple math. The Court’s 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

Toberoff’s bad-faith refusal to engage between January 28 and February 6

prevented DC from providing even more advance notice. Id.

3. Toberoff’s Claims About Calendar Conflicts Are Without Basis.

Toberoff’s complaints about the Court’s 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 DC’s pending fees motion, Case No.

CV-10-3633, DN 574, we submit it should not defer any briefing deadlines.

• DC’s 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.


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


• 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 Toberoff’s motion for review

of Magistrate Judge Zarefsky’s discovery ruling concerning the Toberoff

Timeline documents. DN 579. Toberoff’s 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

Zarefsky’s 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 DC’s pending

sanctions motion is resolved and discovery into Toberoff’s statute-of-

limitations defenses is complete. Infra at 5-7; FED. R. CIV. P. 56(d).

• Toberoff only needs to oppose DC’s 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 panel’s rejection of his

positions on his Siegel and SLAPP appeals, he reversed course and sought to


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


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. Toberoff’s Claims That DC’s 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 DC’s and Larson’s 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] DC’s third and fourth counterclaims in light of [its] holding

that the October 19, 2001, letter created an agreement.” Larson v. Warner Bros.

Entm’t, Inc., 2012 WL 6822241, at *2 (9th Cir. Jan. 10, 2013). DC’s 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 DC’s summary

1 As for Toberoff’s 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.


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


judgment motion—which he knew about since mid-January—be heard March 25,

and that he have until March 4 (or 25 days) to oppose. This is nonsense.

DC’s motion for summary judgment is nine pages long. It relies on the Ninth

Circuit’s clear ruling, the rules governing mandate, and one statement of undisputed

fact—a direct quote from the parties’ October 19, 2001, agreement that the Ninth

Circuit held validly transferred Larson’s 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. Toberoff’s ex parte application, like his meet-and-confer correspondence,

provides not a single substantive reason why DC’s 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, Toberoff’s pending summary judgment motion on DC’s 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, Toberoff’s

motion is aimed at staving off DC’s 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-10-

3633, 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 Toberoff’s 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 Toberoff’s 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 premised—DC 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


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


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 motion—i.e., showing no disputed

issues of material fact exist on his limitations defense. Toberoff’s recitation about

when DC was reasonably put on notice of its claims—like his denials that he

concealed evidence, or that the harms he caused were not ongoing as of May 2010,

when DC filed suit—are 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 Toberoff’s summary judgment motion

by February 15, as Toberoff must do on DC’s pending summary judgment motion.

If hearing dates or briefing deadlines are to be deferred on these two motions—and

they need not be, in DC’s view—any extensions should be bilateral and not reward

Toberoff’s gamesmanship.

* * *

Toberoff’s ex parte application should be denied.

Dated: February 8, 2013

Respectfully Submitted, O’MELVENY & MYERS LLP

By /s/ Daniel M. Petrocelli Daniel M. Petrocelli

Attorneys for DC Comics


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

KLINE DECL. ISO DC’S OPP’N TO LARSON’S EX PARTE APP.

DANIEL M. PETROCELLI (S.B. #097802) [email protected] MATTHEW T. KLINE (S.B. #211640) [email protected] CASSANDRA L. SETO (S.B. #246608) [email protected] O’MELVENY & 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



LAURA SIEGEL LARSON,individually and as personal representative of the ESTATE OF JOANNE SIEGEL,

Plaintiff,

v.



Case No. CV 04-8400 ODW (RZx)Case No. CV 04-8776 ODW (RZx) DECLARATION OF MATTHEW T. KLINE IN SUPPORT OF DC’S OPPOSITION TO LARSON’S EX PARTE APPLICATION TO CONTINUE HEARING DATE ON MOTION FOR SUMMARY JUDGMENT The Hon. Otis D. Wright II

Noticed Date: March 11, 2013 Noticed Time: 1:30 p.m. Courtroom: 11

Case 2:04-cv-08400-ODW-RZ Document 705-1 Filed 02/08/13 Page 1 of 4 Page ID #:15300

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i KLINE DECL. ISO DC’S OPP’N TO LARSON’S EX PARTE APP.

TABLE OF CONTENTS

Exhibit Description Page

A Email from Jason H. Tokoro to defense counsel dated February 6, 2013, attaching DC’s 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

4

B Email chain between Matthew T. Kline and Keith Adams dated November 6-27, 2012

C 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

D 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

E 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

F Ninth Circuit’s order in the Pacific Pictures Appeal, DN 9, dated February 4, 2013


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 1 - KLINE DECL. ISO DC’S OPP’N TO LARSON’S EX PARTE APP.

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 O’Melveny &

Myers LLP, counsel of record for plaintiff DC Comics (“DC”) in this case. I make

this declaration in support of DC’s Opposition To Larson’s 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 DC’s 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.

\\\

\\\

\\\


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 2 - KLINE DECL. ISO DC’S OPP’N TO LARSON’S EX PARTE APP.

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

Circuit’s 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


EXHIBIT A


EXHIBIT A 3


EXHIBIT A 4


EXHIBIT A 5


EXHIBIT A 6


EXHIBIT A 7


EXHIBIT A 8


EXHIBIT A 9


EXHIBIT A 10


EXHIBIT A 11


EXHIBIT A 12


EXHIBIT A 13


EXHIBIT A 14


EXHIBIT A 15


EXHIBIT A 16


EXHIBIT A 17


EXHIBIT A 18


EXHIBIT A 19


EXHIBIT A 20


EXHIBIT A 21


EXHIBIT A 22


EXHIBIT A 23


EXHIBIT A 24


EXHIBIT A 25


EXHIBIT A 26


EXHIBIT A 27


EXHIBIT A 28


EXHIBIT A 29


EXHIBIT A 30


EXHIBIT A 31


EXHIBIT A 32


EXHIBIT A 33


EXHIBIT A 34


EXHIBIT A 35


EXHIBIT A 36


EXHIBIT A 37


EXHIBIT A 38


EXHIBIT A 39


EXHIBIT A 40


EXHIBIT A 41


EXHIBIT A 42


EXHIBIT A 43


EXHIBIT A 44


EXHIBIT A 45


EXHIBIT A 46


EXHIBIT A 47


EXHIBIT A 48


EXHIBIT A 49


EXHIBIT A 50


EXHIBIT B


EXHIBIT B 51


EXHIBIT B 52


EXHIBIT B 53


EXHIBIT B 54


EXHIBIT B 55


EXHIBIT B 56


EXHIBIT C


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: Central District of California, Western Division

Case Name: DC Comics v. Pacific Pictures Corporation, et al.

If District Court, docket entry number(s) of order(s) appealed from:

540

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. 04- CV-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.

Page 1 of 3

EXHIBIT C 57


7245 1211912012 ID; 8447208 rk,) , •

Page: 2 of 3

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' Anti-SLAPP 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 Anti-SLAPP 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.

Page 2 of 3

EXHIBIT C 58


C:i•c.!: 12-57245 12/19/2012 ID: 8447208 DI‘:11..olly: 3-1 Page: 3 of 3

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.

Page 3 of 3

EXHIBIT C 59


EXHIBIT D


EXHIBIT D 60


EXHIBIT D 61


EXHIBIT D 62


EXHIBIT D 63


EXHIBIT D 64


EXHIBIT D 65


EXHIBIT E


-57245 01/30/2013

ID; 8494951 DktEntry: 8-2 of 9

(7 Of 15

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 [email protected] Keith G. Adams (240497) [email protected] Pablo D. Arredondo (241142) [email protected] 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

EXHIBIT E 66


Case: 12-57245 01/30/2013 ID: 8494951 DktEntry: 8-2

of 9 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


Case: 1.2-57245 01/30/2013 ID: 84.949!4 DktEntry: 8-2 Page: 3 of 9 (9 of 13)

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

2

EXHIBIT E 68


1/30/13 C I: !15 oit ri( 0,:r0.1A N;sociatesi J9fl.cnic; t ; ', If P6ige:4 of 9 (10 •

DC Comics v. Pacific Pictures

Kline, Matthew <[email protected] > Tue, Nov 6, 2012 at 12:11 PM To: "Keith Adams ([email protected])" <[email protected]>, "Pablo Arredondo ([email protected] )" <[email protected]> Cc: "Petrocelli, Daniel" <[email protected] >, "Seto, Cassandra" <[email protected] >, "Tokoro, Jason" <[email protected]>, "Lens, Molly" <[email protected]>, "Marc Toberoff ([email protected] )" <[email protected] >, Richard Kendall <[email protected] >, "[email protected] " <[email protected] >, Nicholas Daum <[email protected] >

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

https://mail.g oog I e.com/mail/u/0/?ui = 2&i ic--8605c a3fab&vi evt pt&q = meet anffc#01t:triule&search=q uery&msg =13ad759645a693f8 1/3

EXHIBIT E 69


1/30/13 Case: 12-57245 01/ L h Associates' FX aiIgxcçmic 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

htt ps ://mai I .g oog I e.com/mail/u/0/?ui = 2&i 8605ca3fab&NA evpt&g =meet anc3r:Crit eii&4!tri$&s ear c h= g uery&msg =13ad759645a693f8

2/3

4 EXHIBIT E

70


2:a2 8fT', 1 of agPa-Ocol[.:



WESTERN DIVISION

THE RAY CHARLES FOUNDATION,

Plaintiff,

CV 12-2725 ABC (FFMx)

ORDER RE: DEFENDANTS' MOTION TO STRIKE AND MOTION TO DISMISS

V.

RAENEE ROBINSON, et al.,

Defendants.

Pending before the Court are two motions filed on July 3, 2012,

by Defendants Raenee Robinson, Ray Charles Robinson, Jr., Sheila

Robinson, David Robinson, Robert F. Robinson, Reatha Butler, and Robyn

Moffett: a Motion to Strike Plaintiff's State-Law Causes of Action

Pursuant to California's Anti-SLAPP Law (Docket No. 15); and a Motion

to Dismiss Plaintiff's Complaint (Docket No. 16). Plaintiff The Ray

Charles Foundation (the "Foundation") opposed on July 23, 2012, and

Defendants replied on August 13, 2012. The Court heard oral argument

on September 24, 2012. The parties then filed supplemental briefs on

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

Exhibit C 6

EXHIBIT E 71


AH=. 4LOcumE Th 2. 7 c; 1414 of 15) :1094

the party whose rights are at issue" or that it "has a sufficiently

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.

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

2

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

27

Exhibit C 7

EXHIBIT E 72


1/30/13 Case: 1.2-57241,Tober6o0: ,,-,,:0,-, -H-p!,-:.-pc Mail - Pt A

12- je: 9 of 9 (15 of 15) 11.41.

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

Kline, Matthew <[email protected] > Tue, Jan 29, 2013 at 11:27 AM To: "[email protected] " <[email protected] >, "Petrocelli, Daniel" <[email protected] > Cc: "Seto, Cassandra" <[email protected]>, "[email protected] " <[email protected] >, "[email protected]" <[email protected]>, "[email protected] " <[email protected]>, "[email protected]" <[email protected]>

Keith:

DC takes no position regarding defendants' request.-We defer to the panel arid its schedule.

Matt Kline

From: Keith Adams [mailto:[email protected]] Sent: Tuesday, January 29, 2013 11:01 AM To: Petrocelli, Daniel; Kline, Matthew Cc: Seto, Cassandra; David Harris <[email protected] ›; Pablo Arredondo <parredondo© toberoffandassociates.com >; Marc Toberoff <[email protected] > 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.

E2chilAt https://mail.g oog le.com/mail/u/Onui=2&ik=8605ca3fab&viept&search=inbo msg = c8, c721dbc05b2&dsg t= 1

8 1/1

EXHIBIT E 73


(.7, ;••1!: ;L! TiAtitnent 1 I22.t1 o Pac -*au

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 10-3633 ODW (RZx) Date January 22, 2013

Title DC Comics v. Pacific Pictures Corp. et al.

Present: The Honorable Otis D. Wright II, United States District Judge

Sheila English

Not Present n/a

Deputy Clerk

Court Reporter Tape No.

Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s):

Not Present 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 Motion—which 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

CIVIL Ai I ERAL Page 1 of 1

5 CV-90 (06/04)

EXHIBIT E 74


EXHIBIT F


EXHIBIT F 75


EXHIBIT F 76


REPLY IN SUPPORT OF EX PARTE APPLICATION

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Marc Toberoff (State Bar No. 188547) [email protected] Keith G. Adams (State Bar No. 240497) [email protected] Pablo D. Arredondo (State Bar No. 241142) [email protected] David Harris (State Bar. 255557) [email protected] TOBEROFF & ASSOCIATES, P.C. 22337 Pacific Coast Highway, #348 Malibu, California, 90265 Telephone: (310) 246-3333 Fax: (310) 246-3101 Attorneys for Plaintiff-Counterclaim Defendant, Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel


CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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: 04-CV-08400 ODW (RZx) Case No: 04-CV-08776 ODW (RZx) Hon. Otis D. Wright II, U.S.D.J. Hon. Ralph Zarefsky, U.S.M.J.

PLAINTIFF’S REPLY IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE OPPOSITION AND HEARING DATES RE: DC COMICS’ MOTIONS FOR SUMMARY JUDGMENT (Case No. 04-CV-08400, Dkt. 702; Case No. 04-CV-08776, Dkt. 222) Declaration of Keith Adams and [Proposed] Order Filed concurrently Noticed Date: March 11, 2013 Noticed Time: 1:30 p.m. Noticed Place: Courtroom 11 Requested Date: March 25, 2013 Requested Time: 1:30 p.m. Requested Place: Courtroom 11

LAURA SIEGEL LARSON,

individually and as personal

representative of the ESTATE OF

JOANNE SIEGEL,

Plaintiff,

v.

TIME WARNER INC., WARNER

COMMUNICATIONS INC.,

WARNER BROS. ENTERTAINMENT

INC., WARNER BROS. TELEVISION

PRODUCTION INC., DC COMICS,

and DOES 1-10,

Defendants and

Counterclaimants.


1


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1. DC’s opposition to Plaintiff’s ex parte application, like all of their

filings before this Court, is larded with invective and ad hominem attacks against its

opposing counsel. The objective record is abundantly clear from the parties’ e-mail

exchange, attached to Plaintiff’s application. There was no significant delay between

DC’s January 28 e-mail, requesting a meet and confer, and February 6, when the

meet and confer was held. DC’s claim that Mr. Toberoff “refused” to participate in

the February 6 meet and confer is preposterous, as the meet and confer was held

between Keith Adams, of Mr. Toberoff’s firm, and Matt Kline, of O’Melveny, who

routinely handle such meet and confers.

2. DC’s opposition improperly asks that, if this Court continues the hearing

date on DC’s motions for summary judgment in the Siegel Superman and Superboy

cases, that the Court also continue the hearing date on the defendants’ motion for

summary judgment in the DC Comics case.

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

an ex parte opposition in these cases. More importantly, a continuance of

defendants’ dispositive motion for summary judgment in DC Comics would be

counter-intuitive and serve to complicate the Court’s tasks rather than streamline

them. Defendants’ summary judgment motion in DC Comics seeks judgment on all

remaining claims – DC’s Fourth, Fifth and Sixth Claims – on the grounds that each

of them are long time-barred by the applicable statutes of limitations. DC Comics,

Dkt. 576. It is currently set to be heard on March 11, 2013, at the same time as DC’s

motion for an evidentiary hearing re: issue preclusion sanctions on DC’s Fifth Claim

in DC Comics (Dkt. 573), which DC filed the same day. Logically, this Court should

hear the DC Comics summary judgment motion first, because if DC’s Fourth, Fifth

and Sixth claims are all time-barred, it would moot DC’s motion for an evidentiary

hearing, and bring the entire DC Comics case to a close.

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

2013, there is a substantial risk of confusion. DC’s tactical suggestion to move


2


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

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

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

management proposal by February 25, 2013 regarding all three cases. Siegel

Superman, Dkt. 701; Siegel Superboy, Dkt. 221; DC Comics, Dkt. 571 (“[T]he

parties are hereby directed to file a joint status report …. The status report should

take the format of the parties’ earlier status report … as the Court found that format

particularly helpful. … [T]he parties should devote particular attention to the affect

of the Ninth Circuit’s recent rulings on the proceedings in this Court, the status of the

pending appeals and what affect those appeals may have in this Court, and a brief

case-management proposal going forward.”).

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

re-set hearing dates, it would serve both the interests of the Court and all parties to

continue the hearing date on all outstanding motions in these three cases to April 1,

2013, or such other date as is most convenient for the Court. See Siegel Superman,

Dkt. 702; Siegel Superboy, Dkt. 222; DC Comics, Dkt. 559, 569, 573, 576.

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

address such motions; would provide the parties with some breathing room to discuss

settlement and to prepare the status report; and would permit a more orderly

resolution of both the motions and the cases as a whole.

Dated: February 8, 2013 RESPECTFULLY SUBMITTED,

Marc Toberoff

TOBEROFF & ASSOCIATES, P.C. Attorneys for Plaintiff,

Laura Siegel Larson


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


CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

LAURA SIEGEL LARSON, individually and as personal representative of the ESTATE OF JOANNE SIEGEL, Plaintiff, v.



Case No: 04-CV-08400 ODW (RZx) Hon. Otis D. Wright II, U.S.D.J. Hon. Ralph Zarefsky, U.S.M.J.

ORDER GRANTING PLAINTIFF’S EX PARTE APPLICATION TO CONTINUE OPPOSITION AND HEARING DATES RE: MOTIONS FOR SUMMARY JUDGMENT (Case No. 04-CV-08400, [Dkt. 702]

LAURA SIEGEL LARSON, individually and as personal representative of the ESTATE OF JOANNE SIEGEL, Plaintiff, v.

TIME WARNER INC., WARNER COMMUNICATIONS INC., WARNER BROS. ENTERTAINMENT INC., WARNER BROS. TELEVISION PRODUCTION INC., DC COMICS, and DOES 1-10,



1

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

The Court has received Plaintiff’s ex parte application to continue the hearing

and briefing dates on Defendants’ pending motions for summary judgment in the

related Superman and Superboy matters, filed on February 7, 2013. (Case No. 04-

CV-08400, ECF No. 703; Case No. 04-CV-08776, ECF No. 223.) Plaintiff contends

that Defendants failed to comply with Local Rule 7-3’s requirement that the movant

meet and confer regarding the substance of a contemplated motion at least 10 days

prior to filing the motion.

While the Court readily acknowledges that Plaintiff had more than sufficient

notice that Defendants would move for summary judgment following the entry of the

Ninth Circuit’s mandate relating to its January 10, 2013 memorandum disposition, it

must also acknowledge that Defendant has failed to comply with the letter of Local

Rule 7-3. Indeed, Exhibit A to Plaintiff’s ex parte application reveals that counsel

for Defendants began the formal meet-and-confer process on January 28, 2013, by

noting his “inten[t] to immediately move the Court to enter judgment in favor of [his]

clients in both the Superman and Superboy cases based on the Ninth Circuit’s recent

decision regarding the 2001 agreement between the parties” and requesting a

response to their request for “a time to promptly meet and confer” no later than

Thursday, January 31, 2013. (Ex. A, at 6.) Following Plaintiff’s response on January

31, Defendants again indicated on February 1 that they “would like to meet and

confer with you on Monday[, February 4] or Tuesday[, February 5].” (Ex. A, at 5.)

This suggests that on February 1, Defendants anticipated a formal forthcoming

meeting as late as February 5. But Defendants proceeded to file their motion for

summary judgment on February 7—fewer than 10 days following the February 1

exchange.

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

Court hereby CONTINUES the noticed hearing date (and all associated briefing

dates) on Defendants’ motions for summary judgment in the Superman and Superboy

cases (Case No. 04-CV-08400, ECF No. 702; Case No. 04-CV-08776, ECF No. 222)


2

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

to March 25, 2013. Plaintiff’s opposition is therefore due no later than March 4,

and Defendants’ reply (if any) is due no later than March 11. Nevertheless, the

Court hereby VACATES the hearing on these motions, and no appearances will be

necessary unless otherwise ordered by the Court on a later date. The Court will

likewise vacate all March 11 hearing dates in all related Superman matters (Case

Nos. 04-CV-08400, 04-CV-8776, and 10-CV-03633) in a forthcoming minute order.

No appearances will be necessary on any pending motions in any of these matters

unless otherwise ordered by the Court. All other briefing schedules related to all

other pending motions remain fixed.

IT IS SO ORDERED.

Dated: February 8, 2013 Hon. Otis D. Wright II.


UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA


Case No. CV 10-03633-ODW (RZx) Date February 8, 2013

Title DC Comics v. Pacific Pictures Corporation et al

Present: TheHonorable

Otis D. Wright II, United States District Judge

Sheila English None Present

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None Present None Present

Proceedings: (IN CHAMBERS) Order Vacating Hearing on MOTION for AttorneyFees [559]; MOTION for Attorney Fees / Amended [562]; MOTION forReview 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 herebyVACATED 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.

: 00


CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 1


UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA


Case No. CV 10-03633-ODW (RZx) Date February 8, 2013

Title DC Comics v. Pacific Pictures Corporation et al

Present: TheHonorable

Otis D. Wright II, United States District Judge

Sheila English None Present

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None Present None Present

Proceedings: (IN CHAMBERS) Order Vacating Hearing on MOTION for PartialSummary Judgment [577]

The hearing on the above-referenced motion, scheduled for May 14, 2013 at 1:30 p.m., is herebyVACATED 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.

: 00


CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 1


Date post:	14-Apr-2015
Category:	Documents
Upload:	jeff-trexler
View:	69 times
Download:	1 times

Siegel Superman Superboy & Pacific Pictures cases - 2/8/2013 documents

Documents