mark towle law suit

7/30/2019 Mark Towle Law suit

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Page 1Declaration of Larry Zerner for Reply Brief

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Larry Zerner (SBN 155473)Law Offices of Larry Zerner1801 Century Park East, Ste. 2400Los Angeles, CA 90067

(310) 773-3623Email: [email protected]

Attorneys for Plaintiff Mark Towle,An individual and d/b/a Gotham Garage

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DC Comics,

Plaintiff,

v.

Mark Towle, an individual and d/b/aGotham Garage, and Does 110,inclusive,

Defendants.

)))))))))))))

))))

Case No.: CV11-3934 RSWL (OPx)

Declaration of Larry Zerner filed withReply Brief in Support of DefendantsMotion for Partial Summary Judgment:

Date: January 30, 2013Time: 10:00 a.m.Courtroom: 3

Trial Date: March 26, 2013

Pre-Trial Conference: March 12, 2013Discovery Cut-Off: November 27, 2012

I, Larry Zerner declare as follows:

1.I am an attorney admitted to practice before this Court and I am the attorneyof record for Mark Towle in this action. The facts set forth in my declaration are

known personally by me to be true and correct, and if called upon as a witness, I

could and would competently testify thereto.


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2.Attached hereto as Exhibit 41 are true and correct copies of the Report onthe Filing or Determination of an Action or Appeal Regarding Copyright that DC

filed simultaneously with their Complaint and the First Amended Complaint.

3.Because DC made it clear to me that they were not claiming infringement ofthe copyright to the TV show or movie, but were only claiming infringement of the

Batmobile from the comic books, I did not conduct any discovery on the issue of

ownership of the copyright to the TV show or movie. If DC is allowed to now

claim infringement of the TV show and 1989 movie then these issues are important

as 1) the TV show was not registered within 5 years of publication so there is no

prima facie evidence of copyright and 2) there is no chain of title from Warner

Brothers Production, Ltd to Warner Brothers, Inc. regarding the design of the 1989

Batmobile.

4.I also did not conduct any discovery to determine if parts of the 1989Batmobile were directly lifted from pre-existing elements. For example, the

Batmobilebook states that the interior of the 1989 Batmobile is filled with fighter

aircraft components. (See DCs Ex. A at 1256) If true, then the interior of the

1989 Batmobile was not actually designed by Anton Furst.

5.I am also informed and believe that the front grille of the 1989 Batmobile isactually modeled on the jet engine from a British Ram Air Turbine fighter plane,


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also known as a RAT engine. Because DC did not inform me that it was

claiming infringement of Fursts work, I did no discovery to determine if this was

true.

6. DC is also claiming that the Browning Machine Guns on the 1989Batmobile were protected by copyright. As there are no Browning Machine Guns

in the comic books, I did not conduct any discovery to show that the machine guns

on the 1989 Batmobile were copied from the existing design.

7.These are just a few examples of the prejudice that would be caused if DCwas allowed to now claim infringement of the TV show and 1989 movie, despite

not notifying me of their intent to do so until October 23, 2012, after I had already

taken the deposition of DC and Mr. Coombs had assured me that all the

registrations DC was relying on in this case were already produced.

8.I am informed and believe that the Lincoln Futura car was famous prior to itsappearance on the Batman TV show. It had appeared in the 1959 movieIt Started

With A Kiss starring Debbie Reynolds and Glenn Ford and on the cover of Life

magazine. There were also model kits available for the car.

9.Attached hereto as Exhibit 42 is a true and correct copy of the cover of LifeMagazine from March 30, 1959 showing Debbie Reynolds riding in the Lincoln

Futura and a photo of a box showing the Revell Lincoln Futura car kit.


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10.On January 16, 2012, I did a search of the New York State Bar Associationfor Cindy Nelson. The results showed that Cindy Ellen Nelson (Bar No. 1705573)

is currently listed as being employed by Warner Bros. Entertainment, Inc.

11.Attached hereto as Exhibit 43 is a true and correct copy of the Designationof Expert Witness mailed to DC on November 28, 2012 which designates Mr.

Towle as an expert on the issue of functionality and non-separability of the

portions of the Batmobiles. I did not receive a counter-designation from DC.

12. I swear under penalty of perjury under the laws of the State of Californiathat the foregoing is true and correct.

Executed this 16th day of January 2013 in Los Angeles, CA.

/Larry Zerner/


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Case 2:11-cv-03934-RSWL-OP Document 3 Filed 05/06/11 Page 1 of 2 Page ID #:1

Exhibit 41 Page 5


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EXHIBIT 42

Page 11

Life Magazine Cover

Revell Model Kit


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Larry Zerner (SBN 155473)Law Office of Larry Zerner1801 Century Park East, Suite 2400Los Angeles, California 90067Telephone: (310) 773-3623Facsimile: (310) 388-5624

Attorney for Defendant Mark Towle,An individual and d/b/a Gotham Garage

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DC Comics,

Plaintiff,

v.

Mark Towle, an individual and d/b/aGotham Garage, and Does 110,inclusive,

Defendants.

)))))))))))))

Case No. CV11-3934 RSWL (OPx)

DEFENDANTS DESIGNATION OFEXPERT WITNESSES

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:

PLEASE TAKE NOTICE that pursuant to FRCP 26, Defendant Mark Towle

hereby designates the following witness who may be called to testify at the trial of

the above-captioned matter to give expert testimony.

1. Mark Towle, c/o Law Office of Larry Zerner. Mr. Towle will testify as to the

portions of the 66 Batmobile and 89 Batmobile that are functional and/or non-

separable, namely, the following:

66 Batmobile

Exhibit 43 Page 12


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-2 Defendants Designation of Expert Witnesses

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a) The front grill work.b) The jet engine exhaust pipe;c) Functional Flame Throwerd) Rear Bat-finse) All switches and hand-throttle knob for the "turboelectricDrive"

f) The "Bing-Bong Warning Bell" and "Bat-Light Flasher";g) The Mobile Phone between the seats with Beeper and Flashing Light;h) The "Batscope,"complete with TV-like viewing screen on the dash, radar-like

antenna with amiable parabolic reflector outside, and cockpit controls;

i) Turn-off switch for protection systems;j) Radar-like screen that beeps and blips and points an arrow as it picks up Robin's

directional signal;

k) Mechanics for emergency bat turn with a red lever so named on dash, reversethrust rockets beneath headlights, and ejection parachute mechanism at rear;

l) Portable fire extinguisher;m)Color of the Batmobile;

89 Batmobile

n)jet turbine engine intake grill;o) Mandible-style front fenders;p) Rear sculpted fins;

Exhibit 43 Page 13


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q) Interior monitor;r) Pair of forward-facing Browning machine guns;Date: November 26, 2012 Law Office of Larry Zerner

By: ____________________

Larry Zerner

Attorney for Defendant Mark Towle

Exhibit 43 Page 14


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PROOF OF SERVICE

I am employed in the County of Los Angeles, State of California. I am over the age of 18

years and not a party to the within action. My business address is 1801 Century Park East, Suite

2400, Los Angeles, California 90067.

On November 28, 2012 I served the foregoing documents described as:

DEFENDANTS DESIGNATION OF EXPERT WITNESSES

Said document was served on the interested party(ies) in this action as follows:

J. Andrew Coombs [email protected] L. Drey [email protected]. Andrew Coombs, A Prof. Corp.517 East Wilson Ave., Suite 202Glendale, California 91206

Telephone: (818) 500-3200Facsimile: (818) 500-3201

X BY MAIL: I am readily familiar with the practices of this business for collection and

processing of mail, and I declare that on the same day, and in the ordinary course of business, saidmail is deposited in the United States Mail with postage thereon fully prepaid at Los Angeles,

California. I am aware that on motion of a party served, service is presumed invalid if postal

cancellation date or postage meter date is more than one day after date of deposit for mailing in theaffidavit regarding proof of service.

__X___BY ELECTRONIC MAIL: The above-referenced document was transmitted in "pdf"

format by electronic ("e-mail") to each of the email addresses on the attached service list, and no

errors were reported.

PERSONAL SERVICE: I caused said envelope to be delivered to the offices of theaddressee(s) marked with a ***.

Executed on November 28, 2012 at Los Angeles, California.

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.

_____________________

Larry Zerner

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