dc + siegel heirs documents from summary judgment motion on 2-7-2013

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DC’S MOTION FOR SUMMARY JUDGMENT

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 the 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.

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,


Case No. CV 04-8400 ODW (RZx)Case No. CV 04-8776 ODW (RZx) DEFENDANT DC COMICS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT IN THE SIEGEL SUPERMAN AND SUPERBOY CASES DECLARATION OF DANIEL M. PETROCELLI, [PROPOSED] STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW, [PROPOSED] ORDER, AND [PROPOSED] FINAL JUDGMENTS FILED CONCURRENTLY HEREWITH The Hon. Otis D. Wright II

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

Case 2:04-cv-08400-ODW-RZ Document 702 Filed 02/07/13 of 12 Page ID #:15181

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- 1 - DC’S MOTION FOR SUMMARY JUDGMENT

PLEASE TAKE NOTICE that on March 11, 2013, at 1:30 p.m., or as soon

thereafter as counsel may be heard by the above-entitled court, located in

Courtroom 11 at 312 North Spring Street, Los Angeles, California 90012, the DC

Comics parties (DC Comics, Warner Bros. Entertainment Inc., Warner

Communications Inc., Warner Bros. Television Production Inc., and Time Warner

Inc.) (collectively, “DC”) will and hereby do move pursuant to Federal Rule of

Civil Procedure 56 for summary judgment in the two Siegel Superman and

Superboy cases, Case Nos. CV-04-8400 (Superman), CV-04-8776 (Superboy).

This motion is made following multiple conferences of counsel, including on

February 6, 2013, pursuant to Central District Local Rule 7-3.

In both the Superman and Superboy cases, DC’s Fourth Counterclaim seeks a

declaration that Larson transferred her Superman and Superboy copyrights to DC

pursuant to a 2001 settlement agreement, and that the parties are bound by the terms

of that agreement. In 2008, the prior judge in this case, the Hon. Stephen Larson,

held on summary judgment that no settlement agreement was reached. Case No.

04-8400, DN 293; Case No. 04-8776, DN 174. Last month, the Ninth Circuit

reversed that ruling and held, as a matter of law, that DC and Larson entered into a

settlement agreement on October 19, 2001, the terms of which are set forth in a

signed, six-page letter from Larson’s former attorney, Kevin Marks. Larson v.

Warner Bros. Entm’t, Inc., 2012 WL 6822241 (9th Cir. Jan. 10, 2013). The court

further held that the agreement constituted a valid copyright transfer. Id. at *1.

The Ninth Circuit’s binding ruling compels judgment in DC’s favor on its

Fourth Counterclaim in both Siegel cases; renders DC’s remaining counterclaims in

the cases moot (meaning they should be dismissed without prejudice); and requires

denial of Larson’s claims in the cases (meaning they should be dismissed with

prejudice). The Ninth Circuit requested that this Court resolve these questions on

remand, and the Court can and should do so now, and bring these two long-running

cases to an end.


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This motion is based on this Notice of Motion and Motion and accompanying

Memorandum of Points and Authorities; the concurrently filed Declaration of

Daniel M. Petrocelli (cited herein as “Petrocelli Decl.”); the concurrently filed

Statement of Uncontroverted Facts and Conclusions of Law (cited herein as

“SUF”); the concurrently filed Proposed Order; the concurrently filed Proposed

Final Judgment in the Siegel Superman case; the concurrently filed Proposed Final

Judgment in the Siegel Superboy case; and all exhibits, files, and records on file in

this action, matters of which judicial notice may be taken, and such additional

submissions and argument as may be presented at or before the hearing on this

motion. Dated: February 7, 2013

Respectfully submitted, By: /s/ Daniel M. Petrocelli

Daniel M. Petrocelli Attorneys for DC


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I. INTRODUCTION

After nearly a decade of litigation, the Siegel Superman (CV 04-8400) and

Siegel Superboy cases (CV 04-8776) can now come to an end. In 1997, the Siegel

heirs served copyright termination notices on DC, seeking to terminate Jerry

Siegel’s copyright grants in Superman and Superboy. After years of negotiations,

DC and the Siegels entered into a settlement agreement on October 19, 2001, under

which, inter alia, the Siegels transferred all of their rights in Superman and

Superboy to DC, in exchange for millions of dollars. But the Siegels repudiated

that agreement in 2002 and entered into a business deal with Marc Toberoff. Laura

Siegel Larson and her now-deceased mother, Joanne Siegel (collectively,

“Larson”), then filed two lawsuits against DC seeking to show she still owned

Superman and Superboy copyrights. DC counterclaimed in both cases for

declarations that the 2001 settlement agreement was valid and Larson transferred

her copyrights to DC. Judge Larson (since resigned) granted summary judgment

against DC on these claims, holding the parties never reached a binding agreement.

Last month, the Ninth Circuit reversed Judge Larson’s ruling. It held that

DC and Larson entered into a binding settlement agreement on October 19, 2001, in

which DC promised her valuable consideration and she, in turn, inter alia,

transferred any copyrights that may have been recaptured to DC. The Ninth Circuit

remanded the case to this Court to reconsider DC’s Third and Fourth

Counterclaims—which are based on the 2001 settlement agreement.

DC’s Fourth Counterclaim, asserted in both cases, sought a declaration that

the settlement agreement was enforceable and that DC owns all of the Superman

and Superboy copyrights on which Larson sued. The judicial declaration DC seeks

under these Fourth Counterclaims should now enter in both Siegel cases, and the

remaining claims in both lawsuits (both Larson’s claims and DC’s counterclaims)

can now be dismissed. This includes DC’s Third Counterclaims for breach of

contract, which DC agrees can be dismissed without prejudice, if DC prevails on its


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Fourth Counterclaims, and the Proposed Judgments it has submitted are entered. In

short, these cases are over. Any attempt by Larson to resuscitate them is futile.

II. Statement of Facts

A. Background

In 1997, Laura Siegel Larson (and her mother, Joanne) served copyright

termination notices on DC seeking to recapture copyrights in Superman and

Superboy works. DC disputed the validity of the notices and spent the next four

years negotiating a compromise with Larson’s lawyer, Kevin Marks. DC made a

settlement offer to Larson and her family on October 16, 2001, and three days later,

Marks sent DC a letter confirming that Larson and her family had “‘accepted D.C.

Comics offer.’” Larson v. Warner Bros. Entm’t, Inc., 2012 WL 6822241, at *1 (9th

Cir. Jan. 10, 2013). Marks’ October 19 letter documented the agreement’s material

terms in six, single-spaced pages, and he thanked DC for its “‘help and patience in

reaching this monumental accord.’” Id.; Case No. 04-8400, DN 644 ¶¶ 39, 49.

Larson thereafter went into business with Marc Toberoff, denied the

existence of the October 2001 agreement, and served an additional copyright

termination notice seeking to recapture rights in Superboy, even though Superboy

works had been included in her 1997 notices and the October 2001 settlement

agreement. SUF 1; Case No. 04-8400, DN 163 at 89 n.1 (1997 notice: “This Notice

of Termination applies to each and every work … reasonably associated with

SUPERMAN… such as, … Superboy”); Case No. 04-8776, DN 54 at 83-140.

Larson filed two lawsuits against DC seeking to enforce her termination

notices. In the Superman case (No. 04-8400), she asserted four claims, seeking:

1) a declaration that in 1999 she had recaptured a 50% interest in certain

Superman copyrights by virtue of her 1997 termination notice and that she

continues to own that interest (First Claim);

2) a declaration as to the profits she was entitled to from the allegedly

recaptured Superman copyrights (Second Claim);


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3) a declaration that in 1999 she had recaptured a 50% copyright interest in

the Superman shield which she continues to own (Third Claim); and

4) an accounting of DC’s post-termination Superman profits (Fourth Claim).

Case No. 04-8400, DN 644. (Larson originally asserted, but then dismissed, other

claims for unfair competition under the Lanham Act and California law. DN 376.)

DC filed counterclaims in the Superman case seeking:

1) a declaration that Larson’s “Superman notices and the Superboy notice are

ineffective” because, inter alia, they were untimely and did not terminate

all of Siegel’s prior grants to DC (First Counterclaim);

2) a declaration that Larson’s claims were time-barred (Second

Counterclaim);

3) damages for Larson’s breach of the October 19, 2001, settlement

agreement (Third Counterclaim);

4) a declaration that, by virtue of the “binding and enforceable” 2001

settlement agreement, Larson “transferred or [is] contractually obligated to

transfer to DC Comics, worldwide and in perpetuity, any and all rights,

title, and interest, including all United States copyrights, which [she] may

have in the Superman Works” (Fourth Counterclaim);

5) a declaration limiting the scope of the Superman termination notices in the

event it was found to be valid (Fifth Counterclaim); and

6) a declaration concerning the principles to be applied in any accounting,

again assuming the termination was held to be valid (Sixth Counterclaim).

Id., DN 646.

Larson asserted five claims in the Superboy case (No. 04-8776) for:

1) an injunction preventing DC from infringing the Superboy copyrights she

said she recaptured by her November 2002 termination notice, and also

damages and an order requiring destruction of any infringing works (First

Claim);


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2) a declaration that, by virtue of the 2002 termination notice, she owned and

does own 100% of certain Superboy copyrights; that the Smallville

television series is derivative of Superboy; and that DC may not exploit

any new Smallville or Superboy derivative works on or after the

termination date in her notice, or November 17, 2004 (Second Claim);

3) an injunction under the Lanham Act requiring DC to ascribe copyright

ownership in Superboy merchandise to Larson (Third Claim);

4) damages and an injunction requiring DC to ascribe copyright ownership

in Superboy merchandise to Larson (Fourth Claim); and

5) an injunction preventing DC from exploiting new Superboy derivative

works after November 17, 2004, and requiring DC to credit Jerome Siegel

as the creator of Superboy on all such works.

Case No. 04-8776, DN 43. DC contested these claims and raised the same six

counterclaims it asserted in the Superman case. Id., DN 44.

On March 26, 2008, Judge Larson issued a partial summary judgment order

in both the Superman and Superboy cases. He rejected DC’s Third and Fourth

Counterclaims that the parties had entered into a binding settlement agreement in

2001, but found that the majority of disputed works sought by Larson in her First

Claim were non-terminable works-for-hire owned by DC. Case No. 04-8400, DN

293; Case No. 04-8776, DN 174. Larson sought an interlocutory appeal of these

rulings, Case No. 04-8400, DN 671; 674, and DC cross appealed.

B. The Ninth Circuit’s January 10, 2013, Ruling

On appeal, DC asked the Ninth Circuit to “ent[er] [] judgment [in its favor]

on all claims [in the Siegel Superman case] on the basis of an October 2001

settlement agreement.” 9th Cir. Appeal Nos. 11-55863, 56034, DN 31-1 at 5. On

January 10, 2013, the Ninth Circuit unanimously reversed Judge Larson’s March

2008, summary judgment order. See Larson v. Warner Bros. Entm’t, Inc., 2012

WL 6822241 (9th Cir. Jan. 10, 2013). The court began its opinion by noting that


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“[t]he central issue” on DC’s settlement-related counterclaims was “whether the

parties reached a binding settlement agreement during their negotiations over the

rights to Superman in 2001 and 2002.” Id. at *1.

The Court answered that question in the affirmative, explaining that Judge

Larson “failed to address whether the October 19, 2001, letter from [Kevin Marks

to DC] constituted an acceptance of terms negotiated between the parties, and thus

was sufficient to create a contract.” Id. The court explained, id.:

We hold, as a matter of law, that the October 19, 2001 letter did constitute such an acceptance. [fn. 2:] Larson, in her brief, states this question should be resolved as a matter of law. [Citations omitted.] The October 19, 2001, letter itself plainly states that the heirs have “accepted D.C. Comics offer of October 16, 2001in respect of the ‘Superman’ and ‘Spectre’ properties. The terms are as follows….” What follows is five pages of terms outlining substantial compensation for the heirs in exchange for DC’s continued right to produce Superman works. The letter ends with Larson’s attorney thanking DC’s attorney for his “help and patience in reaching this monumental accord.” Further, although it is the objective, and not subjective, understandings of the parties that determine whether they reached an agreement, extrinsic evidence of the parties’ actions may be used to determine whether the oral offer referred to in the letter had, in fact, been made. Cf. Wedeck v. Unocal Corp., 69 Cal. Rptr. 2d 501, 507-08 (Cal. Ct. App. 1997). Statements from the attorneys for both parties establish that the parties had undertaken years of negotiations, that they had resolved the last outstanding point in the deal during a conversation on October 16, 2001, and that the letter accurately reflected the material terms they had orally agreed to on that day.

We reject Larson’s arguments that either state or federal law precludes a finding that such a contract could have been created by the October 19, 2001, letter. California law permits parties to bind themselves to a contract, even when they anticipate that “some material aspects of the deal [will] be papered later.” Facebook, Inc. v. Pac. Nw. Software, Inc., 640 F.3d 1034, 1038 (9th Cir. 2011); Harris v. Rudin, Richman & Appel, 87 Cal. Rptr. 2d 822, 828 (Cal. Ct. App. 1999). This principle applies notwithstanding the lack of an express reference to an intended future agreement, as long as the terms of any contract that may have been formed are sufficiently definite that a court could enforce them (as is undoubtedly the case here). Facebook, 640 F.3d at 1038 (noting the minimal requirements to form an enforceable contract, and that California law does not require express delegation regarding potential missing terms of a contract); Patel v. Liebermensch, 197 P.3d 177, 182-83 (Cal. 2008). That Facebook involved a contract signed by


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both parties does not render it any less controlling here; under California’s statute of frauds, the only signature that is required is that of the party against whom a contract is sought to be enforced. See Ulloa v. McMillin Real Estate & Mortg., Inc., 57 Cal. Rptr. 3d 1, 4-5 (Cal. Ct. App. 2007); see also 1 B.E. Witkin, Summary of California Law, Contracts § 359 (10th ed. 2005). Nor is 17 U.S.C. § 204(a) a bar to the validity of any such contract; that statute expressly permits an agreement transferring ownership of a copyright to be signed by a “duly authorized agent” of the copyright owner, and Larson does not contest that the heirs’ attorney was such an agent. (Emphases added).

The Ninth Circuit reversed Judge Larson’s grant of summary judgment

against DC and “direct[ed] the district judge to reconsider DC’s third and fourth

counterclaims in light of our holding that the October 19, 2001, letter created an

agreement.” Id. at *2. It further noted: “Because a judgment on those claims in

DC’s favor would appear to render moot all of the other questions in this lawsuit,

we decline to address these other issues at this time.” Id. Larson did not petition

for rehearing, and the Ninth Circuit issued its mandate on February 4, 2013.

II. Summary Judgment Is Warranted On DC’s Fourth Counterclaim In

The Siegel Superman And Superboy Cases, And DC’s Remaining

Counterclaims In Those Cases Are Moot And Can Be Dismissed.

On remand, this Court is bound by the Ninth Circuit’s mandate. See FED. R.

APP. P. 41(c), and Committee Note to 1998 Amendment thereto. “When matters

are decided by an appellate court, its rulings, unless reversed by it or by a superior

court, bind the lower court.” Ins. Grp. Comm. v. Denver & R.G.W.R.R., 329 U.S.

607, 612 (1947). Summary judgment is appropriate where there is “no genuine

issue as to any material fact,” and the only issue is one of law. FED. R. CIV. P.

56(a); SCHWARZER, TASHIMA & WAGSTAFFE, CAL. PRACTICE GUIDE: FED. CIV.

PROCEDURE BEFORE TRIAL §§ 14:3, 14:207 (2012).

A. Summary Judgment Is Warranted On DC’s Fourth Counterclaim.

The Ninth Circuit’s ruling compels judgment in DC’s favor on its Fourth

Counterclaims in both Siegel cases. The claims ask the Court for a declaration

stating that under the October 2001, settlement agreement, Larson “transferred or


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[is] contractually obligated to transfer to DC Comics, worldwide and in perpetuity,

any and all rights, title, and interest, including all United States copyrights, which

[she] may have in the Superman Works.” Case No. 04-8400, DN 646 ¶ 103(a);

Case No. 04-8776, DN 44 ¶ 103(a).

The Ninth Circuit held that the October 2001 settlement agreement—the

terms of which require Larson to “transfer all of [her] rights in the ‘Superman’ and

‘Spectre’ properties (including ‘Superboy’), resulting in 100% ownership to D.C.

Comics,” SUF 1— “created an agreement” “as a matter of law,” Larson, 2012 WL

6822241, at *1. The Ninth Circuit rejected Larson’s arguments that the 2001 deal

did not contain all the necessary material terms, and the Ninth Circuit also held that

the contract satisfied all of the requirements for a valid copyright transfer under the

Copyright Act. Id. On remand, Larson is bound by these holdings. Supra at 6.

In accordance with the Ninth Circuit’s ruling, and as set forth in DC’s two

proposed judgments filed herewith, the Court should enter judgment in DC’s favor

on its Fourth Counterclaims and declare that Larson transferred her Superman and

Superboy copyrights to DC by virtue of the October 2001 settlement agreement.1

B. DC’s Five Remaining Counterclaims Are Moot.

DC’s other counterclaims are all rendered moot by the Ninth Circuit’s ruling

on DC’s case-determinative settlement defense. DC’s First, Second, Fifth, and

Sixth Counterclaims all seek relief that was only applicable if the parties did not

reach a binding settlement agreement in 2001. DC’s First Counterclaims dispute

the validity of Larson’s termination notices; its Fifth Counterclaims dispute the

termination notices’ scope; its Second Counterclaims are a now moot statute-of-

1 In the parties’ meet-and-confer discussions preceding this motion, Larson’s

counsel was deliberately opaque about what defenses she would assert, saying no more than she was reserving “all contractual and declaratory relief arguments.” Petrocelli Decl. ¶ 2; Ex. A. DC will address any such arguments, as needed, on reply. Defendants played a similar game when opposing DC’s summary judgment motion in the Pacific Pictures case, id. Ex. C at 27 (DC’s reply brief addressing this tactic), and the Court rightly rejected it, id. Ex. D at 40 (opinion; collecting cases).


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limitations defense; and its Sixth Counterclaims concern accounting principles that

were only relevant if the termination was declared valid. Supra at 3-4.

DC’s Third Counterclaims (requesting damages for Larson’s breach of the

2001 settlement agreement) will also be mooted if the Court enters judgment on its

Fourth Counterclaims, as DC requests above. Instead of damages for breach, DC

will seek its attorney’s fees under the Copyright Act and its Fourth Claim in these

cases, and will seek damages against Toberoff in the related Pacific Pictures case.

Toberoff challenged DC’s ability to seek those attorney’s fees consistent with the

SLAPP statute. 9th Cir. Appeal No. 11-56934, DN 8 at 27; 37-1 at 37-38. The

Ninth Circuit rejected his SLAPP appeal and, with it, such arguments. Id.; DC

Comics v. Pacific Pictures Corp., 2013 WL 120807 (9th Cir. Jan. 10, 2013).

III. Summary Judgment Is Warranted On Larson’s Claims In The Siegel

Superman And Superboy Cases.

As the Ninth Circuit noted “appear[ed]” to be the case, it is indeed the case

that “a judgment [in] DC’s favor” on its settlement counterclaim “render[s] moot all

of the other questions in this lawsuit,” including Larson’s claims for relief. Larson,

2012 WL 6822241, at *2. Her four claims in the Superman case all hinge on the

validity of her termination notice and her continued ownership of the allegedly

recaptured Superman copyrights. Supra at 2-3. Larson traded any rights she had in

Superman to DC, as part of the October 19, 2001, agreement. By that agreement’s

express terms, Larson assigned to DC all of her rights and interests in Superman:

“The Property” means all Superman, Superboy and related properties (including, for example, Supergirl, Steel, Lois & Clark and Smallville), and the Spectre property, and includes all pre- and post-termination works (including the so-called Superman library), characters, names and trademarks relating to the Property. . . .

The Siegel Family would transfer all of its rights in the “Superman” and “Spectre” properties (including “Superboy”), resulting in 100% ownership to D.C. Comics, as between the Siegel Family and D.C. Comics.

SUF 1.


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Larson’s five claims in the Superboy case are equally barred. Her First

Claim—seeking an injunction to prevent copyright infringement, supra at 3—

requires that she owned the Superboy rights. “Only the copyright owner, or the

owner of exclusive rights under the copyright, as of the time the acts of

infringement occur, has standing to bring an action for infringement of such rights.”

Oskar Sys., LLC v. Club Speed, Inc., 745 F. Supp. 2d 1155, 1159 (C.D. Cal. 2010);

Maljack Prods. v. Goodtimes Home Video Corp., 81 F.3d 881, 889 (9th Cir. 1996).

Larson’s claim that an infringement resulted from DC’s exploitation of “new

derivative works or products based on the ‘Superboy’ mythology,” “on or after

November 17, 2004,” Case No. 04-8776, DN 43 ¶ 68, is barred by the 2001

settlement agreement, which specifically provides: “The Siegel Family would

transfer all of its rights in the ‘Superman’ and ‘Spectre’ properties (including

‘Superboy’).” SUF 1.

Larson’s Second through Fifth Claims similarly fail, because all four

expressly assume she owns the Superboy copyrights, supra at 4—again, rights the

Ninth Circuit held she transferred to DC in October 2001, id. at 5-6.

IV. Conclusion

DC’s motion for summary judgment should be granted, and its proposed

judgments in the Siegel Superman and Superboy cases should enter immediately.

Dated: February 7, 2013

Respectfully Submitted, O’MELVENY & MYERS LLP

By: /s/ Daniel M. Petrocelli Daniel M. Petrocelli Attorneys for DC

OMM_US:71281420


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PETROCELLI DECL. ISO DC’S MOT. SUMM. J.

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 Plaintiff DC Comics




Plaintiff,

v.




Plaintiff,

v.



Case No. CV 04-8400 ODW (RZx)Case No. CV 04-8776 ODW (RZx) DECLARATION OF DANIEL M. PETROCELLI IN SUPPORT OF DEFENDANT DC COMICS’ MOTION FOR SUMMARY JUDGMENT IN THE SIEGEL SUPERMAN AND SUPERBOY CASES The Hon. Otis D. Wright II


Case 2:04-cv-08400-ODW-RZ Document 702-1 Filed 02/07/13 Page 1 of 3 Page ID #:15193

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- 1 - PETROCELLI DECL. ISO DC’S MOT. SUMM. J.

DECLARATION OF DANIEL M. PETROCELLI

I, Daniel M. Petrocelli, declare and state:

1. I am a partner at O’Melveny & Myers LLP, counsel of record for

defendants and counterclaimants (collectively “DC”) in this case. I make this

declaration in support of DC’s Motion For Summary Judgment In The Siegel

Superman And Superboy Cases. I have personal knowledge of the matters set forth

in this declaration.

2. 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, 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.


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- 2 - PETROCELLI DECL. ISO DC’S MOT. SUMM. J.

3. Attached hereto as Exhibit B is a true and correct copy of Kevin

Marks’ October 19, 2001, letter to John Schulman, described and discussed in the

Ninth Circuit’s recent ruling. See Larson v. Warner Bros. Entm’t, Inc., 2012 WL

6822241, at *1 (9th Cir. Jan. 10, 2013).

4. Attached hereto as Exhibit C is a true and correct copy of an excerpt

from DC’s Reply In Support Of Motion For Partial Summary Judgment On Its First

And Third Claims For Relief, filed in the related Pacific Pictures case, Case No.

CV-10-3633, DN 468.

5. Attached hereto as Exhibit D is a true and correct copy of the Court’s

Order Granting Plaintiff’s Motion For Partial Summary Judgment [458] And

Denying Defendants’ Cross-Motion [478], issued in Pacific Pictures, Case No. CV-

10-3633, DN 507.

I declare under penalty of perjury under the laws of the State of California

and the United States that the foregoing is true and correct. Executed this 7th day

of February, 2013, at Los Angeles, California. _/s/ Daniel M. Petrocelli_ Daniel M. Petrocelli OMM_US:71288309


EXHIBIT A


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EXHIBIT B


Gдг6ι c, 7YRE, Rλλ ÍИER & BROWN, 1NC.APTOftNéYS A7 (AW '

ΓiflПM μ{ A. PYt1E JEFFAEY M. MANCéLLиFaыøиE κ epσwи CEии s. ымκs®ПÙCξ ς.f. FUMCA GflF66 и,πwюNGtiMfES A SCδTr NπNLY L 8O)twE1.1RONИЛ A, PДáSMйи 6дp8дpA S1LE£a8V6CNИλftO(B 1 BflбYЛi 9NGMUS JENa1N6tAиmεиa n. AбSE F

Octo6ee14,200í

^T1 Я'^COPÍ^Fit ^ιп^ ß_ _ч 1̂УlыIL

lnlцι A. 5cûlma^, Es ιl.Exøcufíve clïcc PτesidøпUCrenéral CounselWamee Hτos. PíemresΛOOO Wвmce Houλ eωa τdMaiп Admiпístratïoö, Raom 226[3urbank, CA 41522-Ot)22

Reτ

Deaz John:

âM a uM^J. EUGENE E49M^M. J0.

ι зx soω7н Aσoεo αaιvεsSVεaLY MILLS, CÅUFдa^ λA 8ex λ3-x10J

ιззet п7•ιsooFιiχ λз lm 7x7-lae l

This is co co^f^m^ ow [elephoê conversaüon of October !9, 2001. The Siegel Family(tluough Joa^me Síegel and L,au^ Sie$eî Larson, the majoríry owners of the térmiâted copy ńghtinterests} has accepted D.C. Gömícs offer of October I6, 200I ín êspe αΡt of the "Supe^âå' and"Spectre" properties. The ê^ns are as follows:

A.

"Supernr^^/Spectê Gross Revenues" means DC Comícs' worldwide grossrevenues de^íved from the Property, éxdudíng only revenues de ńved fromD.C. Comic`s pubticatío^s.

L

B.

236!72.!

o 'tiańs.

1. "The Property" means all Superman, 5uperboy and related pôpeeties(ínctudíng, for example, Superg^íl, Steol, Lois & Ci^k and Smaltvílle),and the Spectre property, and ^^cludes all pre- and post-ê^níâtô^ works(inciudíng ê so-called 5upecпιaп library), eЬaracceгs, names aлdhadem^ks reIatíng to the Property.

Fiпangial Teппs.

1. Anon-returnable, bait êco^pable advance of $2,000,000.

íдeilцι t .Y.--=--^-^ч°" μ̂μ lЯξд{'ΓSFåCf1T7t}N

DйY6D. θ. GQt.ErdAN. ΓSR ^^^+

`©Ô Yή.......,..l1ATlz l^`

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crκв aзoг

EXHIBIT B 19


CÂNCw, TYRE,' F{AMER & ORVWN, INC.John A. Scûtman, Esq.êtober19,2aa1Page 2

2: ' A aoп-remmable, non-recoupabl в sígníпg bвnus of t,000,000.

3. D.C. Comics wí11 forgív^ the 5250,000 advance from last ê^-statedadêrwïsc, that payment will gat r^dusé the adva^s^ arboûs, narshall itb^ recoupable {co^kary tö Paragraph 3 of the January 12, 2001 løtteragrceme^t}.

4. Thera will be an aûal guarantee of $500,040 der year payable for 10yeazs beginning March 31, 2002. 'The anûai g^âta^te^ is recoupablefrom royalty payments (under S and б beinw}. Tie aûal guarantee ispaid Marsń 31" of each yeaz. If at the end of the aûai guarantee peńod(í:e., LO' years}, D.C. ^s unêcouped, the aûal guarantee will b^ reducedt^ $I00,000 or 2S% of the avaâge royalties for tlê previous three yeas(resamputed cash year}, wtîchwe^ ïs greater (for so long as D.C. is^nrecouped}. If D.C. is êco^^ped, tê^ the aûat guarantee will be 7S%of tie averago royalties for the previous three years, whícń ís recor^tputedeach year.

C

5. A ^óyatty of б°f^ of Supernân/Spectre Gross Revenues. Tis applies(without limitation} to the use of the entire Property, including the so-calledSuperman îíhâry , í^ any and all media now o^ úereafter kôw^ (excludingDC Camícs pubücatí^^s}, í^ öron mersâ^díse and ín promotions!campaigns. Tåis ^^yalry applies whey the Property ís used atone or íslísensed for matio^ pí^mré and t^levisían pro¡ вéεs iø accocdaпee with the"safe Ø^^^" motion picture and television deals discussed ^n PazagraphC(IO}, Thís б% roy^hy witl be adjusted pro-rata ώhe^ the P^pe^ty ís usedíu co^ju^ctío^ with ^têr baoh characters (other than ín a "cameo" type ofappearance), buy in no event less tha^.3°1° ex tat theôâlty çan êfu^tlser reduced to {a) I.S°!° in the,case of Justice League of Aine ńsa,"Superfńends'" and "Superhems" me^^han^íse aid iícensïng, and (b} 1°lo iê^tâordînary cases sucń as D.C. ComícslWam^r Bros. overall lícensa toSix Fiags (wi^ích involves numemús characters, í^cludíag D.C. Comíe'scharacters aαd Looney Tonnes characters}'.

^. A ôâlty of 2°^ó of the cover pńce of DC Co^^cs' publications. Tits

^ This redueüon would nit apply ô a license fora "Supe^mari 'specific ride o^ atØction.

ί

τз6ιт2.ι

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EXHIBIT B 20


C

royalty applies when the Property ís used alone , and will be adjusted p^-rata when the P^pe^ty ís used ín co^junc^íon with other comic bookchawcters (o^tlêr than í^ a "cornea" type of appeaânc^ ), but ïn ô eventless than O.5%.

Receupment 6egíus as ofJanιιary i, ?A06.

8. Duń^g thø first calendar yeør ín which advancestguara^teed payments aremade there sØ11 be ô interest . Thsreafter (that ís, begi^^ng January t ofthe followì^g year), there shall be interest at the pńme lending rate, and this

ís also recoupable. "

9. Annual guáâ^tces aid royalties (if D.C. ís filly recouped} are paíd fnr thedun^ôn of U.S: copyńght af Actéon Comics No. 1. However for motionpíctuê and television gôdu^t released near the end of the [ertn, roâîeswill contínus to be paid as follows : (aj Foy ^ motion ^ícture released nearthe end af the tern , royalties shall be pad for five years from the initialtheatríca^ release éve^ íf some part ^f that five year pcńod is atte^ the CJ.S.copyńght expires, (ü) far television series , royalties will bé paíd thoughthe full first rug o£ the seńes, plus three years tlieêafte^ (so as to pick up acleast the fast sy^dícatíon sale), even if that period ís after the U.S.copyńght tec^^ expires , and (c) for other substantial proj^ts (akin tomotío^ píciuê and televisío^ projects), royalties shall be paid for five yearsfrom the initial theatrical release ofsuch prö^ëct, sven íf some part of thatftveêaz period is after the J.S. co^^ ń̂ght expires.

( C. Otlιer Teгτпs

t. The Siegel Family would Ø^sfer all of its ńghts ín the "S^perman" and"Spectré' properties .(i^cluding "S^perboy"), resulting ín 100% ownershipto. D.C. Comics, as behveen the Siegel Family and D.C. Comics.

C

GANG, ^^YRE, RAMER ót BR^7WN, (NC.lohn A, Sehulnân, Esq.October 19, 2001Page 3

236(72.[

If Far any legal ^r^so^ , there caôt be a transfer of all ńghts nt this time,ever^thíng ín thisdeal^ppl ês as a prepayment to any future transfer,except $ í O0,000 per year would not be applicable agaí^st the compe^satíon(if any} fog a fi^tttre hansFer. This would nót result ìn addítíoâl moniesupon perfecting the "Spe^tê " te^miâfio^ . Rather, and by way of example,í^ the ^nlike^y situation that She law chańges , aid this â^sfer is somehow

GTRB 0304

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C

VA ίVÌ3 г t 7FiCϋ ι 17 APAFE'{ CX L7fiØ ίгVfV ι ^^ÌC.lohn A. Sεhulmaп, Ssη.Oatobeг (9, 2041Page 4

ínval'^dáted o^ limïted by aperatîon af law, and theré is a futwe courtûdgme^t agaí^st I7 .C. Camüs, ^hís deaf Ovnuld apply against the amount ofsuch judgem^^^ excøpt to Wø ^xrent af $IOQ,Q00 per yeas For the sake ofcla^íty, this pravísio^ wí11 nat i^^ any cí^cumstance reduce the monícs dueώø Sïegøl Fa^^íly undee this desi.

tJntiC the øxpir^tion of the ^.5. capyńght £or Action Camícs No_ 1, thørewit[ be á crcdít on "Superman" comas sad other publications , movíe^ andt^løvisia^^ pôgráms that reads: "B^ Specie! A^â^geme^t with the JerrySíegøl Family". The síu and placement of credit is to he í^ I^.C. Comics'dìsøretío^.

4. D.C. shill accord cêdít along the lines of"Supe^^â^ created by Je^ySíegel and Joe Shustør", "Created by Jerry Sôgel and Joø Shuster" ar"Based on the clâractørs created by Jemmy Siegel and Joe Shuster" or"Supørńoy created b^ Jerry Siegel " or "The Spectre created by 7e^^y Siegeland Børnard Salley" (as applícabíej oa motion îct^ês (main tíeles onscreen, paìd ads}, tetev^sío^ pingrams (mala titles), alt pu^liâ ńons, and ona!t otha^ works where edit to e^øatars ^^ customary.

5. Theaccountíng statcme^ts wilt be rendered Márch 31", and if royaltypayments are due for tØ pôvìous calendar year, ê^ will be paid at thesame tínê {along with the aûal guaranteø for the then present yøaг}.

6. íx eespect of tíê monies dua under this ńghts deal, D.C. Comics will paydêctiy 47:5%t0 J^áê Sïegel , 23.75% ta Laura Síegel Larson, 23.75 °/ato Michael Sïegel , and 5% to Cang, T^rø, Ramer & Bmwn, Inc. (counsel tothe Síegel Family).

?. Joaê, Laura ánd Michael cap assïgn o^ ^tberwise dispose of aQ or part oftheir monetary co^tâcmai entitlements u^de^ this deal (athér thaníns^ra^ce) üp to a maximum of three tïmes each.

8. ^^.Ç. Comics to provide mØícat and degyta! insurance for-Micâet andLamma, and Laura's c(^íldê^ for so fang as they are minors. Laura is also fobe reimbursed fir the costs of medical à^d dental insurance for her sad hersons since November 2000.

236[72.1

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EXHIBIT B 22


C

^ÂNG, TYRE, RAMER & BROWN, INC.John A. Schulman, Esq.Ocôber [9,200!Page 5

DC Comics to provìd^ fh^ opportunity for the Síegel Family ta he ïnfownedabout major developments {^.^., motion p^cń^res , t^êvísio^ pôgâms,theme park àmactíons , major ctâ^ge^ planned i^ publications }, and theSi^gci Family wil[ have a^^ appartuníty to gwe its Wiput, but tt^^s daas notńs^ ta the I^v^l of a ^ro^sultatíon fight. Tbr Sïog^t Family will be info^rêdof such developments early enough í^ the development process sa Wat ώeirapportu^íty to gîve input ís meaníngihl.

10. Síegel Family to have full audit rights. [ntâ-company transaaô^s wül ê .c^veêd by "safö harbors" established at a level co^sìste^t with the Salkí^dS^^pemân ú^ât^ícal motion pícûr^ dial, the "Lois & Ctazk" televisionprogram deal, the WS Televísia^ Animation deal, aid We existí^g feearrangements with Warner $ros. Co^^sum^r Products. There wilt be aêxpedítod dispute resolution pôced^re f^c ^halkng^ng intro-company dealsw^ích fall ouisíd^ the safe hazbors. D.C. would also íncludo í^ the "safeharbors" the Salkí^d a^ other deals as they may be reduced, but only ^í)where another ctâract^r of comparable stature co "Supermagi ' (e.g.,"Batman") is used ín a ômparabte manner ín coêctïon with the sameprojeat; (ir} on a prorata basis with the adjustment ín the other character'sńghØ deal, and (^ü) ín all events, Wc reduction shall ê ńo less Way SO% arWe ońgíât ńgttts deal.

1 ^. At the end of the U.S. Copyńght term, the Sîege] Family agrees that ít willnot exploit the Property, even tâugh ít ^s ín the public domain.

12. The Siegel Famïly wau^d agree ro execute furtøer documents, aged D.C.Comes would be appointed as attorney -ín-fact to execute sucà documentsíf the Siegel Family faits ta do so within a reasonable pe^íod of ^íme.

13. Síegel Famïly would got make any waânti^s as to the nature of rights, butwould êprese^t that they bave not transfeêd ^íê rights to any party. TheSíegel Famí[^ would,agree Wat thore will be no interference with theSupe^nan ńgí^ts; or disparagement of D,C. Comics. D.C. Carmes andAOL Time Wa^^^ agree not to díspaâge the Síegel Far^ìly,

I4. Pull E&O and g^êral liability coverages, and Bull i^demnitíes foi JoanneSíegel, Lauri Síegel Larson, and Míehaei SíogeI against líab^líty for DC oraffiliate aetìons.

236172.1

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GANG, TvR^, RAMER & $ROWN, INC.Tahn A. Schuléna^, Esq.öctober t9, 200tPage ^

It ^s also ageced that Joanne's widow 's ênefit^ (ineludíng bath payments and ï^s^â^ce),aro to ô^tínue for her lífe , aid will not be heated as an advance agaí^st this dead and aye notrecoupable from this deal.

Jahn, íf there is any aspeat . of the above that ís somelâw misstated, please Iet me know byMø^da^ at 2:00, as I will be out oféhe office - and tíkely ^íff^cu^t to reach-far the fol[owí^gfour weeks.

Many thanks for help and patíe^^^ ín reaching this manuê^t^^ accord.

Sincerely,

GANG, ^'vÊ, íÂ^vØ^ & BROWN, INC.

ByKe4í^ S. Marks

l=

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co: Jaanê SiegeiLaura Síeg^l LarsenBûê RamerDon Eutso^^

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[PROPOSED] STATEMENT OF

UNCONTROVERTED FACTS & CONCLUSIONS OF LAW





Plaintiff,

v.




Plaintiff,

v.



Case No. CV 04-8400 ODW (RZx)Case No. CV 04-8776 ODW (RZx) [PROPOSED] STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT DC COMICS’ MOTION FOR SUMMARY JUDGMENT IN THE SIEGEL SUPERMAN AND SUPERBOY CASES The Hon. Otis D. Wright II



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- 1 - [PROPOSED] STATEMENT OF


After consideration of the papers in support of and in opposition to

defendants’ (collectively, “DC”) Motion For Summary Judgment In The Siegel

Superman And Superboy Cases, the Court hereby makes its findings of

uncontroverted facts and conclusions of law as follows:

UNCONTROVERTED FACTS

No. Uncontroverted Fact Evidence

1 The agreement set forth in Kevin Marks’ October 19,

2001, letter to John Schulman states:

“The Property” means all Superman, Superboy and related properties (including, for example, Supergirl, Steel, Lois & Clark and Smallville), and the Spectre property, and includes all pre- and post-termination works (including the so-called Superman library), characters, names and trademarks relating to the Property....

The Siegel Family would transfer all of its rights in the “Superman” and “Spectre” properties (including “Superboy”), resulting in 100% ownership to D.C. Comics, as between the Siegel Family and D.C. Comics.

Declaration of Daniel M. Petrocelli (“Petrocelli Decl.”), Ex. B at 19, 21; Larson v. Warner Bros. Entm’t, Inc., 2012 WL 6822241, at *1-2 (9th Cir. Jan. 10, 2013).

CONCLUSIONS OF LAW

As set forth in DC’s summary judgment papers, Proposed Order, and

Proposed Final Judgments:

1. On January 10, 2013, the United States Court of Appeals for the Ninth

Circuit reversed Judge Larson’s March 26, 2008, partial summary judgment order

and held that, “as a matter of law,” plaintiff Laura Siegel Larson (referred to herein

in her individual capacity and as personal representative of the Estate of Joanne

Siegel as “Larson”) entered into a settlement agreement with DC on October 19,

2001. Larson, 2012 WL 6822241, at *1. “Statements from the attorneys for both

parties establish that the parties had undertaken years of negotiations …, and that


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the letter” sent by Larson’s attorney, Kevin Marks, on October 19, 2001,

“accurately reflected the material terms they had orally agreed to.” Id. The Ninth

Circuit directed this Court to “reconsider DC’s third and fourth counterclaims in

light of our holding that the October 19, 2001, letter created an agreement.” Id. at

*2.

2. Consistent with the Ninth Circuit’s opinion and instructions on remand,

id. at *1-2, this Court may now enter final judgment in DC’s favor in the above-

entitled cases: (1) the “Siegel Superman” case, Case No. CV-04-8400; and (2) the

“Siegel Superboy” case, Case No. CV-04-8776. In the parties’ October 19, 2001,

settlement agreement, Larson (and her family) “transfer[red] all of [their] rights” to

DC, “resulting in 100% ownership to D.C. Comics.” Petrocelli Decl. Ex. B at 21;

Larson, 2012 WL 6822241, at *1. This complete transfer bars Larson’s remaining

claims in the Siegel Superman and Superboy cases and entitles DC to judgment on

its Fourth Counterclaims in the Siegel Superman and Superboy cases, which seek a

declaration confirming the October 19, 2001, settlement agreement against Larson.

DC’s remaining counterclaims are dismissed, without prejudice, as moot.

Therefore:

a. Larson’s Claims in the Siegel Superman Case

i. Larson’s First Claim for Relief, for “Declaratory Relief re: Termination,”

is DENIED, and summary judgment is hereby entered in DC’s favor and against

Larson on this claim. See also DN 293, 560.

ii. Larson’s Second Claim for Relief, for “Declaratory Relief re: Profits from

Recaptured Copyrights,” is DENIED, and summary judgment is hereby entered in

DC’s favor and against Larson on this claim. See also DN 293, 560.

iii. Larson’s Third Claim for Relief, for “Declaratory Relief re: Use of the

‘Superman’ Crest,” is DENIED, and summary judgment is hereby entered in DC’s

favor and against Larson on this claim. See also DN 293, 560.


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iv. Larson’s Fourth Claim for Relief, for “Accounting for Profits,” is

DENIED, and summary judgment is hereby entered in DC’s favor and against

Larson on this claim. See also DN 293, 560.

b. DC’s Counterclaims in the Siegel Superman Case

i. DC’s Fourth Counterclaim, for “Declaratory Relief Regarding the [2001

Settlement] Agreement,” is GRANTED, and summary judgment is hereby entered

in DC’s favor and against Larson on this counterclaim. The Court declares that,

under the parties’ October 19, 2001, settlement agreement, Larson and her family

transferred to DC, worldwide and in perpetuity, any and all rights, title, and interest,

including all copyright interests, which they may have in Superman, Superboy, and

Spectre. Petrocelli Decl. Ex. B at 19, 21; Larson, 2012 WL 6822241, at *1-2.

ii. DC’s First, Second, Third, Fifth, and Sixth Counterclaims are

DISMISSED, WITHOUT PREJUDICE, AS MOOT.

a. Larson’s Claims in the Siegel Superboy Case

i. Larson’s First Claim for Relief, for “Copyright Infringement,” is

DENIED, and summary judgment is hereby entered in DC’s favor and against

Larson on this claim. See also DN 151 at 62; 175 at 1; Sept. 17, 2007 Hr’g Tr. at

4:6-5:4, 27:21-22.

ii. Larson’s Second Claim for Relief, for “Declaratory Relief re:

Termination,” is DENIED, and summary judgment is hereby entered in DC’s favor

and against Larson on this claim. See also DN 170, 560.

iii. Larson’s Third Claim for Relief, for “Violation of the Lanham Act §

43(a)(1)(B),” is DENIED, and summary judgment is hereby entered in DC’s favor

and against Larson on this claim. See also DN 174, 560.

iv. Larson’s Fourth Claim for Relief, for “Violation of California Business

and Professions Code, §§ 17200 et seq.,” is DENIED, and summary judgment is

hereby entered in DC’s favor and against Larson on this claim. See also DN 174,

560.


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v. Larson’s Fifth Claim for Relief, for “Injunctive Relief,” is DENIED, and

summary judgment is hereby entered in DC’s favor and against Larson on this

claim. See also DN 174, 560.

b. DC’s Counterclaims in the Siegel Superboy Case

i. DC’s Fourth Counterclaim, for “Declaratory Relief Regarding the [2001

Settlement] Agreement,” is GRANTED, and summary judgment is hereby entered

in DC’s favor and against Larson on this counterclaim. The Court declares that,

under the parties’ October 19, 2001, settlement agreement, Larson and her family

transferred to DC, worldwide and in perpetuity, any and all rights, title, and interest,

including all copyright interests, which they may have in Superman, Superboy, and

Spectre. Petrocelli Decl. Ex. B at 19, 21; Larson, 2012 WL 6822241, at *1-2.

ii. DC’s First, Second, Third, Fifth, and Sixth Counterclaims are


Dated: ______________________ Honorable Otis D. Wright, II Judge, United States District Court

OMM_US:71281336


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[PROPOSED] ORDER GRANTING DC’S MOT. FOR SUMM. J.





Plaintiff,

v.




Plaintiff,

v.



Case No. CV 04-8400 ODW (RZx)Case No. CV 04-8776 ODW (RZx) [PROPOSED] ORDER GRANTING DEFENDANT DC COMICS’ MOTION FOR SUMMARY JUDGMENT IN THE SIEGEL SUPERMAN AND SUPERBOY CASES The Hon. Otis D. Wright II



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- 1 - [PROPOSED] ORDER GRANTING DC’S MOT. FOR SUMM. J.

IT IS HEREBY ORDERED that DC Comics’ Motion For Summary

Judgment In The Siegel Superman And Superboy Cases is GRANTED.

The Court will enter DC Comics’ proposed judgments in Case Nos. CV-04-

8400 and CV-04-8776.

IT IS SO ORDERED.

Dated: __________________ ____________________________________ Honorable Otis D. Wright, II

Judge, United States District Court


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[PROPOSED] FINAL JUDGMENT

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




Plaintiff,

v.



Case No. CV 04-8400 ODW (RZx) [PROPOSED] FINAL JUDGMENT IN THE SIEGEL SUPERMAN CASE The Hon. Otis D. Wright II


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- 1 - [PROPOSED] FINAL JUDGMENT

[PROPOSED] JUDGMENT

On January 10, 2013, the United States Court of Appeals for the Ninth

Circuit reversed Judge Larson’s March 26, 2008, partial summary judgment order

and held that, “as a matter of law,” plaintiff Laura Siegel Larson (referred to herein

in her individual capacity and as personal representative of the Estate of Joanne

Siegel as “Larson”) entered into a settlement agreement with defendants

(collectively, “DC”) on October 19, 2001. Larson v. Warner Bros. Entm’t Inc.,

2012 WL 6822241, at *1 (9th Cir. Jan. 10, 2013). “Statements from the attorneys

for both parties establish that the parties had undertaken years of negotiations …,

and that the letter” sent by Larson’s attorney, Kevin Marks, on October 19, 2001,

“accurately reflected the material terms they had orally agreed to.” Id. The Ninth

Circuit directed this Court to “reconsider DC’s third and fourth counterclaims in

light of our holding that the October 19, 2001, letter created an agreement.” Id. at

*2.

Consistent with the Ninth Circuit’s opinion and instructions on remand, id. at

*1-2, this Court may now enter final judgment in DC’s favor in two of three long-

running Superman cases presently before this Court: (1) the above-entitled “Siegel

Superman” case, Case No. CV-04-8400; and (2) the related “Siegel Superboy” case,

Case No. CV-04-8776 (addressed in a separate Final Judgment filed concurrently

herewith). In the parties’ October 19, 2001, settlement agreement, Larson (and her

family) “transfer[red] all of [their] rights” to DC, “resulting in 100% ownership to

D.C. Comics.” Declaration of Daniel M. Petrocelli (“Petrocelli Decl.”) Ex. B at 21;

Larson, 2012 WL 6822241, at *1. This complete transfer bars Larson’s remaining

claims in this case and entitles DC to judgment on its Fourth Counterclaim in this

case, which seeks a declaration confirming the October 19, 2001, settlement

agreement against Larson. DC’s remaining counterclaims are dismissed, without

prejudice, as moot. Therefore:


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A. Larson’s Claims

IT IS ORDERED AND ADJUDGED that Larson’s First Claim for Relief, for

“Declaratory Relief re: Termination,” is DENIED, and judgment is hereby entered

in DC’s favor and against Larson on this claim. See also DN 293, 560.

IT IS FURTHER ORDERED AND ADJUDGED that Larson’s Second

Claim for Relief, for “Declaratory Relief re: Profits from Recaptured Copyrights,”

is DENIED, and judgment is hereby entered in DC’s favor and against Larson on

this claim. See also DN 293, 560.

IT IS FURTHER ORDERED AND ADJUDGED that Larson’s Third Claim

for Relief, for “Declaratory Relief re: Use of the ‘Superman’ Crest,” is DENIED,

and judgment is hereby entered in DC’s favor and against Larson on this claim. See

also DN 293, 560.

IT IS FURTHER ORDERED AND ADJUDGED that Larson’s Fourth Claim

for Relief, for “Accounting for Profits,” is DENIED, and judgment is hereby

entered in DC’s favor and against Larson on this claim. See also DN 293, 560.

B. DC’s Counterclaims

IT IS ORDERED AND ADJUDGED that DC’s Fourth Counterclaim, for

“Declaratory Relief Regarding the [2001 Settlement] Agreement,” is GRANTED,

and judgment is hereby entered in DC’s favor and against Larson on this

counterclaim. The Court declares that, under the parties’ October 19, 2001,

settlement agreement, Larson and her family transferred to DC, worldwide and in

perpetuity, any and all rights, title, and interest, including all copyright interests,

which they may have in Superman, Superboy, and Spectre. Petrocelli Decl. Ex. B

at 19, 21; Larson, 2012 WL 6822241, at *1-2.

IT IS ACCORDINGLY FURTHER ORDERED, ADJUDGED, and

DECREED that DC’s First, Second, Third, Fifth, and Sixth Counterclaims are



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IT IS SO ORDERED.

Dated: __________________ ____________________________________ Honorable Otis D. Wright, II

Judge, United States District Court OMM_US:71247304


EX PARTE APPLICATION

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Marc Toberoff (State Bar No. 188547) [email protected] Keith G. Adams (State Bar No. 240497) [email protected] Pablo D. Arredondo (State Bar No. 241142) [email protected] David Harris (State Bar. 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 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




JOANNE SIEGEL,

Plaintiff,

v.

TIME WARNER INC., WARNER

COMMUNICATIONS INC.,


INC., WARNER BROS. TELEVISION

PRODUCTION INC., DC COMICS,

and DOES 1-10,

Defendants and

Counterclaimants.

Case 2:04-cv-08400-ODW-RZ Document 704 Filed 02/07/13 Page 1 of 9 Page ID #:15262

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that plaintiff-counterclaim defendant Laura Siegel

Larson (“Plaintiff”) hereby respectfully applies to this Court ex parte to reschedule

the hearing date from March 11, 2013 to March 25, 2013 on the two motions for

summary judgment (Case No. 04-CV-08400, Dkt. 702; Case No. 04-CV-08776, Dkt.

222) improperly and prematurely filed today by defendant-counterclaimant DC

Comics (“DC”).

Good cause exists to grant this application: (1) under Local Rule 7-3’s express

terms, the first date for DC to have filed its motions was February 19, 2013 – not

February 7, 2013 – for hearing on March 25, 2013, because the parties’ meet-and-

confer occurred on February 6, 2013, and Rule 7-3 requires that such conference be

held “at least ten (10) days prior to the filing of the motion”; (2) this Court’s Standing

Order expressly states that “the court expects that the party moving for summary

judgment will provide more than the minimum twenty‐eight (28) day notice,” and

DC’s rushed motion provides only eight days for Plaintiff to prepare oppositions to

the two summary judgment motions; (3) there are already four substantive motions

set for hearing before this Court on March 11, 2013 in the DC Comics case (Case No.

10-CV-03633 ODW (RZx)); (4) DC’s jammed schedule conflicts with numerous

other commitments of Plaintiff’s counsel; and (5) pursuant to the governing

scheduling orders, the motion cut-off date in both cases passed in 2007, and DC

should have waited for a new scheduling order following the parties’ submission of a

joint status report per the Court’s order. Case No. 04-CV-08400, Dkt. 122, 701; Case

No. 04-CV-08776, Dkt. 115, 221.

In light of the above, Plaintiff respectfully requests a brief continuance of the

hearing date from the noticed date of March 11, 2013, to the correct date of March

25, 2013, or to any time thereafter convenient for the Court, and a continuance of

Plaintiff’s associated opposition deadlines.

In accordance with Local Rule 7-19.1, on February 7, 2013, Plaintiff’s counsel


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advised DC’s counsel Matt Kline, of O’Melveny & Myers, LLP, 1999 Avenue of the

Stars, 7th Floor, Los Angeles, California 90017; Tel: (310) 553-6700; e-mail:

[email protected], of this ex parte application. Declaration of Keith Adams, Ex. C.

Mr. Kline stated that DC would oppose this application. Id., Ex. D.

This application is based on this Notice, the attached memorandum of points

and authorities, the Declaration of Keith Adams, all of the pleadings, files and

records in this proceeding, all matters of which this Court may take judicial notice,

and any argument or evidence that may be presented to or considered by the Court.

Dated: February 7, 2013

RESPECTFULLY SUBMITTED,

Marc Toberoff

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

Laura Siegel Larson, individually and as

personal representative of the Estate of

Joanne Siegel


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MEMORANDUM OF LAW

INTRODUCTION

Plaintiff Laura Siegel Larson (“Plaintiff”) hereby respectfully applies to this

Court ex parte to reschedule the hearing date on the two motions for summary

judgment (C.D. Cal. Case No. 04-CV-08400 ODW (RZx) (“Siegel Superman”), Dkt.

702; C.D. Cal. Case No. 04-CV-08776 ODW (RZx) (“Siegel Superboy”), Dkt. 222;

“Motions”) that were improperly filed by defendant-counterclaimant DC Comics

(“DC”) in violation of Local Rule 7-3 and this Court’s Standing Order.

DC’s improper filings reflect a concerted strategy to jam Plaintiff’s time to

respond and rush these two cases to a premature judgment. With a hearing date of

March 11, 2013, Plaintiff’s oppositions to the two motions for summary judgment

would be due February 15, 2013, giving Plaintiff only eight days to prepare

oppositions.

The hearing date should be reset, as DC’s filing and noticed hearing date: (a)

are blatantly improper under Local Rule 7-3; (b) violate this Court’s Standing Order

as to the timing of summary judgment motions; (c) willfully create an unwieldy

logjam of motions on March 11, when four other motions are set for hearing in the

closely-related case, DC Comics v. Pacific Pictures Corp., et al., C.D. Cal. Case No.

10-CV-03633 ODW (RZx) (“DC Comics”), and (d) conflict with numerous other

commitments of Plaintiff’s counsel. The Motions were also filed well after the 2007

motion cut-off date in both cases, and DC should have waited for a new scheduling

order following the parties’ submission of a joint status report per the Court’s

February 1, 2013 order. Siegel Superman, Dkt. 701; Siegel Superboy, Dkt. 221.

Plaintiff respectfully requests that the hearing date of the Motions (and all

associated deadlines) be continued by a mere two weeks, from March 11, 2013 to

March 25, 2013, or to a date thereafter convenient for the Court.

///

///


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ARGUMENT

1. DC’s Filing and Hearing Date Violate Local Rule 7-3: Local Rule 7-

3 requires that meet-and-confers on motions occur “at least ten (10) days prior to the

filing of the motion.” The meet-and-confer on DC’s Motions occurred on February

6, 2013. See Declaration of Keith Adams (“AD”), Ex. A at 5 (DC: requesting “a

time to meet and confer”), 3-4 (Plaintiff: “We are available this Wednesday

[February 6, 2013] at 11:00 a.m., or this Thursday at 12:00 p.m., to meet and

confer.”), 4 (DC: “We’ll speak to you at 11am tomorrow.”), Ex. C.

Accordingly, the first day for DC to file its motion pursuant to Local Rule 7-3

was February 19, 2013 (given the President’s Day holiday). Under the Rules, a

motion filed on February 19, 2013 could be set for hearing no earlier than March 25,

2013. L.R. 6-1. DC’s filing of two summary judgment motions on February 7, 2013,

one day after the parties’ February 6 meet-and-confer, for hearing on March 11,

2013, was blatantly improper and well outside the dates mandated by the Local

Rules.

DC’s stated justification for this willful failure was the patently false notion

that its counsel, Daniel Petrocelli, had supposedly already met and conferred in

telephone conversations with Plaintiff’s counsel, Marc Toberoff, and Richard

Kendall, Mr. Toberoff’s counsel in the DC Comics case. AD, Ex. A at 3.

In reality, Mr. Petrocelli had stated in a largely unrelated telephone

conversation with Mr. Toberoff about organizing settlement talks that DC would file

a “motion for entry of judgment,” pretending that the Ninth Circuit had remanded

with directions to enter judgment, when it expressly had not done so. Id., Ex. A at 2-

3. Mr. Petrocelli then wrote a follow-up e-mail on January 28, reiterating that DC

intended to “move the Court to enter judgment.” Id., Ex. A at 6-7. On January

31, Mr. Petrocelli had a telephone conversation with Mr. Kendall (who does not

represent any party in these two cases) about coordinating a settlement meeting. Id.,

Ex. A at 2. When Mr. Kendall asked Mr. Petrocelli whether DC intended to file a


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summary judgment motion, Mr. Petrocelli responded that it “might seek summary

judgment,” but that he was frankly not yet sure of what motion it would file. Id.

Obviously, DC cannot use casual references in settlement conversations to

evade its meet-and-confer obligations under Local Rule 7-3, especially when DC was

openly vague about the sort of motion it intended to file, and did not even specify the

claim or claims on which it intended to move.

On January 31, Mr. Toberoff therefore asked for clarification of DC’s planned

motion and “the claim or claims” that DC intended to move on. AD, Ex. A at 6. On

February 1, Mr. Petrocelli responded by clarifying for the very first time that DC

would move “for summary judgment” – but despite plaintiff’s request, again failed to

state which claim(s) DC would move on. AD, Ex. A at 5. On February 4, DC’s

counsel, Matt Kline, informed Plaintiff for the first time that DC would move for

summary judgment on its Fourth Counterclaim only, and move to dismiss its

remaining counterclaims as allegedly moot. AD, Ex. A at 4-5.

On February 5, the parties then expressly scheduled a meet-and-confer

pursuant Local Rule 7-3 for February 6, 2012 which occurred at 11 a.m. that day.

DC filed two summary judgment motions at noon the next day, February 7, 2013, in

willful violation of the 10-day grace period mandated by Local Rule 7-3.

2. The Hearing Date Violates This Court’s Standing Order: Paragraph

6(d) of this Court’s Standing Order states that “the court expects that the party

moving for summary judgment will provide more than the minimum twenty‐eight

(28) day notice for motions” (emphasis added).

Given the importance of a potentially dispositive summary judgment motion,

the Standing Order provides both the Court with more time to review summary

judgment briefing, and the opposing party with a more reasonable amount of time

than the mere seven days allotted for ordinary motions (see L.R. 6-1, 7-9) to prepare

its opposition.

Accordingly, in filing prior summary judgment motions in the DC Comics


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case, both sides have set hearing dates that provided the other side with more time to

file their oppositions. DC Comics, Dkt. 458 (14 days), 478 (35 days), 577 (11 days).

Nonetheless, DC improperly filed its two summary judgment motions with a March

11, 2013 hearing date, affording Plaintiff only 8 days – from February 7 to February

15, 2013 – to prepare two oppositions, willfully violating the spirit of this Court’s

Standing Order.

3. The Hearing Date Creates Severe Calendar Conflicts: DC’s improper

March 11, 2013 hearing date burdens the Court’s already congested calendar on that

date, and presents considerable scheduling conflicts for Plaintiff’s counsel as well.

There are four separate, substantive motions, all set for hearing before this

Court on March 11, 2013 in the DC Comics case. DC Comics, Dkt. 559, 574 (DC’s

motion for attorney’s fees), 569 (defendants’ motion for review), 576 (defendants’

motion for summary judgment); 573, 575 (DC’s motion for an evidentiary hearing re:

sanctions).

On January 6 at 9:30 pm DC also served a 34-page discovery motion in DC

Comics. AD, Ex. B. That motion has an opposition deadline of February 13, 2013

(id.; Local Rule 37-1) and is set for hearing before Magistrate Zarefsky on March 11,

2013.

In the pending DC Comics appeal, Plaintiff’s counsel must submit an opening

brief and excerpts of record by March 5, 2013, which will consume a considerable

amount of time. Plaintiff’s counsel also represents the children of recording artist

Ray Charles, in The Ray Charles Foundation v. Raenee Robinson, et al., C.D. Cal.

Case No. 12-CV-02725 ABC (FFMx), and has been ordered to submit a fee

application by no later than February 11, 2013 (AD, ¶2), after the Court dismissed all

claims on a Rule 12(b)(6) motion and motion to strike under California’s anti-SLAPP

law.

DC’s improper scheduling of its Motions for March 11, 2013, in violation of

Local Rule 7-3 and this Court’s Standing Order, was made with the obvious intent to


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jam Plaintiff Laura Siegel Larson on her time to respond to DC’s two summary

judgment motions, and in total disregard for this Court’s already-congested March 11

calendar.

4. The Motions Were Filed After The Cut-Off Date: The deadline to file

summary judgment motions passed long ago, on April 30, 2007, in both cases. Siegel

Superman, Dkt. 122; Siegel Superboy, Dkt. 115. Given the Ninth Circuit’s January

10, 2013 ruling in the Siegel Superman case, it makes sense to enter a new scheduling

order for both cases, so that they may be resolved in an orderly fashion. This Court

sensibly ordered the parties to submit a status report by February 25, 2013, with a

“brief case-management proposal going forward.” Siegel Superman, Dkt. 701; Siegel

Superboy, Dkt. 221. Instead, DC barreled ahead without waiting for the Court to set

a new schedule.

5. DC’s Pretexts for Opposing This Application: DC gave several faint

pretexts for opposing this application. AD, Ex. D. None have merit.

a. DC argued that the parties had already met and conferred prior to

February 6 (id. at 17), but this is false as set forth above.

b. DC complained that because President’s Day falls on Monday, February

18, DC has 11 days, rather than 14, to oppose defendants’ motion for summary

judgment in DC Comics (which complied with Local Rule 7-3). AD, Ex. D at 17;

DC Comics, Dkt. 577. DC never asked for an extension. Had it done so, Defendants

would have been happy to stipulate, subject to the Court’s approval, to DC

electronically filing its opposition on February 18, so as to give DC a full 14 days to

prepare its opposition. In any event, both of these dates afford DC far more time

than the mere 8 days it gave Ms. Larson to oppose two summary judgment motions,

and do nothing to relieve DC’s violation of Local Rule 7-3.

c. To distract from its misconduct, DC oddly argued that counsel somehow

“misled the Ninth Circuit about its time commitments.” AD, Ex. D at 17-18. In

connection with the pending appeal in DC Comics, Plaintiff (among others) moved


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for a brief, 18-day extension of time to file her opening brief, which the Ninth Circuit

granted. 9th Cir. Appeal No. 12-57245, Dkt. 9. DC’s ridiculous accusation is that

counsel misled the Circuit simply because counsel did not list this summary

judgment motion in DC Comics among its sampling of conflicting time

commitments. The truth is that the parties met and conferred on that summary

judgment motion back in November 2012 (Dkt. 577 at 1), and much of the drafting of

that motion had been completed in the interim. AD, Ex. C at 16. There was no

misleading of the Ninth Circuit.

d. DC also cited the power of this Court to control its own docket, which

Plaintiff has never contested. AD, Ex. D at 17.

CONCLUSION

In light of the foregoing, Plaintiff respectfully requests that this Court continue

the March 11, 2013 hearing date (and all associated deadlines) on DC’s Motions to

March 25, 2013, or to any time thereafter that is convenient for the Court.

Dated: February 7, 2013 RESPECTFULLY SUBMITTED,

Marc Toberoff

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

Laura Siegel Larson, individually and as

personal representative of the Estate of

Joanne Siegel


DECLARATION OF KEITH ADAMS IN SUPPORT OF EX PARTE APPLICATION

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Marc Toberoff (State Bar No. 188547) [email protected] Keith G. Adams (State Bar No. 240497) [email protected] Pablo D. Arredondo (State Bar No. 241142) [email protected] David Harris (State Bar. 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






JOANNE SIEGEL,

Plaintiff,

v.



Defendants and

Counterclaimants.


DECLARATION OF KEITH ADAMS IN SUPPORT OF PLAINTIFF’S 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) Ex Parte Application 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




JOANNE SIEGEL,

Plaintiff,

v.






and DOES 1-10,

Defendants and

Counterclaimants.


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DECLARATION OF KEITH ADAMS IN SUPPORT OF EX PARTE APPLICATION

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DECLARATION OF KEITH G. ADAMS

I, Keith G. Adams, declare as follows:

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

of record for plaintiff-counterclaim defendant Laura Siegel Larson, individually and

as personal representative of the Estate of Joanne Siegel (“Plaintiff”), in the above-

captioned actions, and submit this declaration in support of Plaintiff’s Ex Parte

Application To Continue Opposition And Hearing Dates.

2. Plaintiff’s counsel represents the defendants, the children of recording

artist Ray Charles, in The Ray Charles Foundation v. Raenee Robinson, et al., C.D.

Cal. Case No. 12-CV-2725 ABC (FFMx), and has been ordered to submit a fee

application by no later than February 11, 2013.

3. Attached hereto as Exhibit “A” is a true and correct copy of a January 28

– February 6, 2013 e-mail chain among Marc Toberoff, counsel for Plaintiff, Daniel

Petrocelli, counsel for defendants-counterclaimants DC Comics and Warner Bros.

Entertainment Inc. (“Warner”), and others.

4. Attached hereto as Exhibit “B” is a true and correct copy of a February

6, 2013 e-mail and a notice of motion attached thereto from Jason Tokoro, counsel

for Warner, to me, in the related case, DC Comics v. Pacific Pictures Corp., et al.,

Case No. 10-CV-03633 ODW (RZx).

5. Attached hereto as Exhibit “C” is a true and correct copy of a February

7, 2013 letter from me to Matt Kline, counsel for Warner.

6. Attached hereto as Exhibit “D” is a true and correct copy of a February

7, 2013 e-mail from Matt Kline to me.

I declare under penalty of perjury under the laws of the United States that the

foregoing is true and correct. Executed on February 7, 2013, at Malibu, California.

Keith G. Adams


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DC’S NTC OF MOT. & MOT. FOR LEAVE

TO CONDUCT DEPO & COMPEL RESP.

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 Plaintiff DC Comics



DC COMICS,

Plaintiff,

v.

PACIFIC PICTURES CORPORATION, IP WORLDWIDE, LLC, IPW, LLC, MARC TOBEROFF, an individual, MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER, JEAN ADELE PEAVY, an individual, LAURA SIEGEL LARSON, an individual and as personal representative of the ESTATE OF JOANNE SIEGEL, and DOES 1-10, inclusive,

Defendants.

Case No. CV 10-3633 ODW (RZx)

DISCOVERY MATTER

DC COMICS’ NOTICE OF MOTION AND 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

Judge: Hon. Otis D. Wright II Magistrate: Hon. Ralph Zarefsky

Hearing Date: March 11, 2013 Hearing Time: 10:00 a.m. Courtroom: 540

EXHIBIT B

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- 1 - DC’S NTC OF MOT. & MOT. FOR LEAVE


TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on March 11, 2013, at 10:00 a.m., or as soon

thereafter as the matter may be heard by the above-entitled court, located at 255

East Temple Street, Los Angeles, California in Courtroom 540, plaintiff DC

Comics will and hereby does move the Court for leave to depose: (1) Defendant

Marc Toberoff for one full day not to exceed seven hours; (2) Defendant Laura

Siegel Larson for one full day not to exceed seven hours; and (3) Defendant Mark

Warren Peary for up to four hours. In addition, DC will and hereby does move the

Court for an order compelling (1) Toberoff to respond to deposition questions

regarding his discovery conduct on behalf of himself, his entertainment companies,

and the Siegel and Shuster heirs; and (2) Peary to respond to deposition questions

regarding the Pacific Pictures joint venture and related agreements, and Peary’s role

as executor of the Shuster Estate.

This motion is made pursuant to Rules 26, 30, and 37 of the Federal Rules of

Civil Procedure and Rule 37-2 of the Local Rules of this Court, as well as its prior

rulings in these matters cited in DC’s accompanying moving papers. Good cause

exists to permit DC extra deposition time with these witnesses (given, e.g., the

complexity of this case, and new documents that have emerged). Defendants’

objections misread privilege and relevancy rules, and should be overruled.

Pursuant to Local Rule 37-1, DC attempted unsuccessfully to resolve these disputes

and, now, respectfully seek the assistance of the Court.

This motion is based on this Notice of Motion and Motion; DC’s portion of

the accompanying 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; the accompanying

Declaration of Matthew T. Kline and exhibits in support thereof; any supplemental

memoranda that may be filed pursuant to Local Rule 37; all exhibits, files, and

EXHIBIT B

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- 2 - DC’S NTC OF MOT. & MOT. FOR LEAVE


records on file in this action; matters of which judicial notice may be taken; and

such additional submissions and argument as may be presented at or before the

hearing on this motion.

Dated: February 6, 2013 Respectfully Submitted,

O’MELVENY & MYERS LLP

By: /s/ Daniel M. Petrocelli Daniel M. Petrocelli Attorneys for Plaintiff DC Comics

EXHIBIT B

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EXHIBIT D

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EXHIBIT D

18


[PROPOSED] ORDER GRANTING EX PARTE APPLICATION

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JOANNE SIEGEL,

Plaintiff,

v.



Defendants and

Counterclaimants.


[PROPOSED] 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; Case No. 04-CV-08776, Dkt. 222)




JOANNE SIEGEL,

Plaintiff,

v.






and DOES 1-10,

Defendants and

Counterclaimants.


1

[PROPOSED] ORDER GRANTING EX PARTE APPLICATION

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Good cause appearing, IT IS HEREBY ORDERED that Plaintiff’s Ex Parte

application is GRANTED. The hearing date on the motions for summary judgment

(Case No. 04-CV-08400, Dkt. 702; Case No. 04-CV-08776, Dkt. 222) filed by

defendants and counterclaimants, DC Comics and Warner Bros. Entertainment Inc.,

is rescheduled to March 25, 2013. Plaintiff’s oppositions are due on March 4, 2013.

Defendants’ replies are due on March 11, 2013.

IT IS SO ORDERED.

Dated: _____________

Hon. Otis D. Wright II.


dc + siegel heirs documents from summary judgment motion on 2-7-2013

Documents