Wolf V Rickard Motion To Dismiss

1 STROOCK & STROOCK & LAVAN LLP
JAMES G. SAMMATARO (State Bar No. 204882)

2 jsammataro@stroock.com
CRYSTAL Y. JONELIS (State Bar No. 265335)
3 cjonelis@stroock.com
2029 Century Park East
4 Los Angeles, CA 90067-3086
Tel: 310.556.5800 Fax: 310.556.5959
5 Email: lacalendar@stroock.com
6 Attorneys for Defendants
JOHN RICKARD, WRIGLEY PICTURES, ALAN OU,
7 MIDNIGHT SUN, LLC and ERIC KIRSTEN
8
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12
BETHANY ASHTON WOLF, an ) Case No. 2:16-CV-09116 GW (KSX)
13 individual )
) DEFENDANTS NOTICE OF
14 Plaintiff, ) MOTION AND MOTION TO
) DISMISS PLAINTIFFS
15 v. ) COMPLAINT; MEMORANDUM OF
) POINTS AND AUTHORITIES
16 JOHN RICKARD, an individual;
WRIGLEY PICTURES, a California ) [Declarations of John Rickard, Devin
17 Corporation; ALAN OU, an individual; ) Andre and Ryan Goodell and Notice of
BOIES/SCHILLER FILM GROUP LLC, ) Lodging filed and [Proposed] Order
18 a Florida limited liability company; ) lodged concurrently herewith]
MIDNIGHT SUN, LLC, a Nevada )
19 limited liability company; ERIC ) Date: March 16, 2017
KIRSTEN, an individual; OPEN ROAD ) Time: 8:30 a.m.
20 FILMS, LLC, a Delaware limited ) Room: 9D
liability company; and DOES 1 )
21 through 20; ) Action Filed: December 8, 2016
)
22 Defendants. )
)
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DEFENDANTS NOTICE OF MOTION AND
MOTION TO DISMISS PLAINTIFFS COMPLAINT
LA 52037902
1 TO THE COURT, TO ALL PARTIES AND TO THEIR ATTORNEYS OF
2 RECORD:
3 PLEASE TAKE NOTICE that on March 16, 2017 at 8:30 a.m., in Courtroom
4 9D of this Court, before the Honorable George Wu, located at 350 West 1st Street,
5 Los Angeles, California, defendants John Rickard (Rickard), Wrigley Pictures,
6 Alan Ou (Ou), Midnight Sun, LLC (MSLLC) and Eric Kirsten (Kirsten and
7 collectively, Defendants) will and hereby do, move this Court pursuant to Federal
8 Rule of Civil Procedure 12(b)(6) for an order dismissing with prejudice the
9 Complaint filed by plaintiff Bethany Ashton Wolf (Plaintiff). This Motion is made
STROOCK & STROOCK & LAVAN LLP
10 on the following grounds:

11 First, the First Claim for Relief for Copyright Infringement fails to state a
Los Angeles, California 90067-3086
claim upon which relief can be granted because Plaintiffs claim is premised on the
12
13 wrong work, because there is no substantial similarity between any protectable
14 elements in the two works, and because the film in question is the lawful remake of
15 an original 2006 Japanese film.
16 Second, the Second Claim for Relief for Breach of Contract fails to state a
17 claim upon which relief can be granted because Plaintiffs claim is barred by the
18 statute of limitations, novation, the statute of frauds, lawful derivation and a lack of
19 privity.
20 Third, the Third Claim for Relief for Breach of the Implied Covenant of Good
21 Faith and Fair Dealing fails to state a claim upon which relief can be granted because
22 Plaintiffs claim is barred by the statute of limitations, novation, the statute of frauds,
23 lawful derivation, lack of privity and because it is legally superfluous.
24 Fourth, the Fourth Claim for Relief for Breach of Confidence fails to state a
25 claim upon which relief can be granted because Plaintiffs claim is barred by the
26 statute of limitations and because Plaintiff cannot establish a required element of the
27 claim. In addition, Plaintiff fails to plead sufficient facts of vicarious liability as to
28 Wrigley Pictures and MSLLC.
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1 Fifth, the Fifth Claim for Relief for Breach of Fiduciary Duty fails to state a
2 claim upon which relief can be granted because there is no fiduciary relationship and
3 because Plaintiff cannot establish substantial similarity. In addition, Plaintiff fails to
4 plead sufficient facts of vicarious liability as to Wrigley Pictures and MSLLC.
5 Sixth, the Sixth Claim for Relief for Fraud fails to state a claim upon which
6 relief can be granted because Plaintiffs claim is barred by the statute of limitations
7 and lacks the requisite specificity. In addition, Plaintiff fails to plead sufficient facts
8 of vicarious liability as to Wrigley Pictures and MSLLC.
9 This Motion is based upon this Notice of Motion and the accompanying
10 Memorandum of Points and Authorities, the Declarations of Devin Andre, John

11 Rickard and Ryan Goodell, the Notice of Lodging, the pleadings and records on file
herein, and such further evidence and arguments as may be presented to the Court
12
13 prior to or at the hearing on this Motion.
14 This motion is made following a conference of counsel pursuant to Local Rule
15 7.3, which took place on January 19, 2017.
16
17 Dated: February 1, 2017 STROOCK & STROOCK & LAVAN LLP
JAMES G. SAMMATARO
18 CRYSTAL Y. JONELIS
19
By: /s/ James G. Sammataro
20 James G. Sammataro
21
22 Attorneys for Defendants
JOHN RICKARD, WRIGLEY
23 PICTURES, ALAN OU, MIDNIGHT
24 SUN, LLC and ERIC KIRSTEN
25
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LA 52037902
1 TABLE OF CONTENTS
Page
2
3 I. INTRODUCTION .............................................................................................. 1
4 II. FACTUAL BACKGROUND ............................................................................ 2

5 A. Midnight Sun Is Virtually Identical to the Original Film. ....................... 2
6
B. Plaintiffs Work Includes Elements in the Original Film and
7 Midnight Sun. ........................................................................................... 5
8 C. There Are Numerous Elements Expressed Only in Plaintiffs
9 Work. ........................................................................................................ 5
10 III. LEGAL ARGUMENT ....................................................................................... 6

11
A. Plaintiffs Copyright Infringement Claim Fails as a Matter of

Law. .......................................................................................................... 6
12
13 1. The Standard for Deciding Non-Infringement on a Motion
to Dismiss....................................................................................... 6
14
15 2. Plaintiffs Claim Is Premised on the Wrong Work...................... 10
16 3. There Is No Substantial Similarity Between Any
Protectable Elements in Plaintiffs Work and Midnight
17
Sun. .............................................................................................. 11
18
a. There Is No Substantial Similarity in Plot......................... 11
19
20 b. Midnight Suns Theme Derives from the Original
Film, Not Plaintiffs Work. ............................................... 13
21
c. There Is No Substantial Similarity in Characters. ............. 14
22
23 (i) The Boy: Will Clayman versus Charlie
Reed. ........................................................................ 15
24
(ii) The Parent: Claire Morgan versus Jack
25 Price. ........................................................................ 17
26
(iii) The Absence of the Boys Parents, the Girls
27 Aunt, and the Homeless Jon-Jon. ............................ 18
28
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d. There Is No Substantial Similarity in Setting.................... 18
1
2 e. There Is No Substantial Similarity in Mood. .................... 20
3 f. There Is No Similarity in Pace. ......................................... 20

4 g. There Is No Substantial Similarity in Dialogue. ............... 21
5
h. There Is No Substantial Similarity in Sequence of
6 Events. ............................................................................... 22
7 i. Plaintiffs Chart of Alleged Similarities Should Be
8 Rejected. ............................................................................ 22
9 j. Leave to Amend Would Be Futile. .................................... 23

10 B. Plaintiffs Other Claims Are Legally Deficient. .................................... 23

11
1. The Breach of Contract Claim Is Barred by the Statute of

12 Limitations, Novation, Statute of Frauds and Lawful

Remake......................................................................................... 24
13
14 a. The Original Contract Is Barred by Time and
Novation. ........................................................................... 24
15
b. The Second Contract Is Barred by the Statute of
16
Frauds, Statute of Limitations, and Lawful
17 Derivation. ......................................................................... 25
18 c. Non-Parties to Both Alleged Contracts, Wrigley
19 Pictures and MSLLC, Cannot Be Sued for Breach
Thereof............................................................................... 26
20
21 2. The Implied Covenant Claim Is Legally Superfluous. ................ 28
22 3. Plaintiffs Breach of Confidence Claim Fails Because It Is

Time-Barred and Because Plaintiff Cannot Establish a
23 Required Element of the Claim. .................................................. 29
24
4. The Breach of Fiduciary Duty Claim Fails Absent a
25 Fiduciary Relationship and Absent Substantial Similarity. ......... 30
26 5. The Fraud Claim Is Time-Barred and Lacks Requisite
27 Specificity. ................................................................................... 30
28
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6. Boilerplate Vicarious Liability Claims Fail to Plead
1
Sufficient Facts as to Wrigley Pictures and MSLLC. ................. 32
2
IV. CONCLUSION ................................................................................................ 32
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LA 52037902
1 TABLE OF AUTHORITIES
2
Page(s)
3
Cases
4
A Slice of Pie Prods., LLC v. Wayans Bros. Entmt,
5
487 F. Supp. 2d 41 (D. Conn. 2007)...................................................................... 29
6
Ackerman v. Nw. Mut. Life Ins. Co.
7 172 F.3d 467 (7th Cir. 1999) ................................................................................. 32
8
Alexander v. Murdoch,
9 No. CV 10-5613 PAC JCF, 2011 WL 2802899 (S.D.N.Y. May 27,
2011) ................................................................................................................ 15, 19
10
11 Anderson v. Stallone,
No. 87-0592 WDK Gx, 1989 WL 206431 (C.D. Cal. Apr. 25, 1989) .................. 14
12
Apple Comput., Inc. v. Microsoft Corp.,
13
35 F.3d 1435 (9th Cir. 1994) ................................................................................... 8
14
Applied Equip. Corp. v. Litton Saudi Arabia Ltd.,
15 7 Cal. 4th 503 (1994) ............................................................................................. 26
16
Ashcroft v. Iqbal,
17 556 U.S. 662 (2009)................................................................................................. 9
18 Astor-White v. Strong,
19 2016 U.S. Dist. LEXIS 40608 (C.D. Cal. 2016) ................................................... 12
20 Beckwith v. Sheldon,
21 165 Cal. 319 (1913) ............................................................................................... 24
22 Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)........................................................................................... 9, 32
23
24 Benay v. Warner Bros. Entmt, Inc.,
607 F.3d 620 (9th Cir. 2010) ..................................................................... 12, 15, 19
25
Benjamin v. Walt Disney Co.,
26 No. CV 05-2280GPS, 2007 WL 1655783 (C.D. Cal. June 5, 2007)..................... 15
27
Bensbargains.NET, LLC v. XPbargains.Com,
28 No. 06CV1445BTM, 2007 WL 2385092 (S.D. Cal. Aug. 16, 2007) ..................... 9
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LA 52037902
Berkic v. Crichton,
1
761 F.2d 1289 (9th Cir. 1985) ............................................................................... 12
2
Bernal v. Paradigm Talent & Literary Agency,
3 788 F. Supp. 2d 1043 (C.D. Cal. 2010) ........................................................... 22, 23
4
Bionghi v. Metro. Water Dist. Of S. Cal.,
5 70 Cal. App. 4th 1358 (1999) ................................................................................ 28
6 Campbell v. Walt Disney Co.,
7 718 F. Supp. 2d 1108, 1113 (N.D. Cal. 2010) ................................................. 13, 23
8 Careau & Co. v. Sec. Pac. Bus. Credit, Inc.,

222 Cal. App. 3d 1371 (1990) ............................................................................... 28
9
Cavalier v. Random House, Inc.,
10
297 F.3d 815 (9th Cir. 2002) ......................................................................... 7, 8, 13
11
Chase-Riboud v. Dreamworks, Inc.,

12
987 F. Supp. 1222 (C.D. Cal. 1997) .................................................................. 7, 10
13
Christianson v. W. Pub. Co.,
14 149 F.2d 202 (9th Cir. 1945) ............................................................................... 6, 7
15
Clemens v. Am. Warranty Corp.,
16 193 Cal. App. 3d 444 (1987) ................................................................................. 27
17 D.C. Comics v. Towle,
18 802 F.3d 1012 (9th Cir. 2015), cert. denied U.S. , 136 S. Ct. 1390
(2016) ..................................................................................................................... 14
19
20 Davies v. Krasna,
14 Cal. 3d 502 (1975) ............................................................................................ 30
21
Davis v. HSBC Bank Nev., N.A.,
22 691 F.3d 1152 (9th Cir. 2012) ........................................................................... 9, 26
23
Davisson v. Faucher,
24 105 Cal. App. 2d 445 (1951) ................................................................................. 24
25 Eckart v. Brown,
26 34 Cal. App. 2d 182 (1939) ................................................................................... 24
27 Entmt Research Grp., Inc. v. Genesis Creative Grp., Inc.,
28 122 F.3d 1211 (9th Cir. 1997) ............................................................................... 29
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LA 52037902
Feist Publns, Inc. v. Rural Tel. Serv. Co.,
1
499 U.S. 340 (1991)................................................................................................. 7
2
Fox v. Ethicon Endo-Surgery, Inc.,
3 35 Cal. 4th 797 (2005) ........................................................................................... 31
4
Funky Films, Inc. v. Time Warner Entmt Co. L.P.,
5 462 F.3d 1072, 1077 (9th Cir. 2006 ........................................................ 7, 8, 13, 18
6 Gerritsen v. Warner Bros. Entmt Inc.,
7 116 F. Supp. 3d 1104, 1127 (C.D. Cal. 2015) ........................................... 27, 28, 32
8 Gilbert v. New Line Prods., Inc.,

No. CV 09-02231 RGK, 2009 WL 7422458 (C.D. Cal. Nov. 16,
9
2009) ...................................................................................................................... 23
10
Gilbert v. New Line Prods., Inc.,
11
No. CV 09-02231 RGK, 2010 U.S. Dist. LEXIS 141516 (C.D. Cal.
2010) ........................................................................................................................ 8
12
13 Guz v. Bechtel Natl, Inc.,
24 Cal. 4th 317 (2000) ........................................................................................... 28
14
15 Hollywood Screentest of Am., Inc. v. NBC Universal, Inc.,
151 Cal. App. 4th 631 (2007) .......................................................................... 26, 29
16
17 Idema v. Dreamworks, Inc.,
162 F. Supp. 2d 1129 (C.D. Cal. 2001) ............................................................... 8, 9
18
Identity Arts v. Best Buy Enter. Servs. Inc.,
19 No. C05-4656 PJH, 2007 WL 1149155 (N.D. Cal. Apr. 18, 2007) ........................ 7
20
Kouf v. Walt Disney Pictures & Television,
21 16 F.3d 1042 (9th Cir. 1994) ....................................................................... 8, 13, 23
22 Lee v. City of L.A.,
23 250 F.3d 668 (9th Cir. 2001) ................................................................................... 9
24 Lee v. Escrow Consultants, Inc.,
25 210 Cal. App. 3d 915 (1989) ................................................................................. 29
26 Litchfield v. Spielberg,
736 F.2d 1352 (9th Cir. 1984) ............................................................................... 23
27
28
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LA 52037902
Marshall v. Yates,
1
No. CV-81-1850-MML, 1983 WL 1148 (C.D. Cal. Oct. 26, 1983) ..................... 10
2
McKell v Wash. Mut., Inc.,
3 142 Cal. App. 4th 1457 (2006) .............................................................................. 26
4
Meta-Film Assocs., Inc. v. MCA, Inc.,
5 586 F. Supp. 1346 (C.D. Cal. 1984) ...................................................................... 10
6 Metro-Goldwyn-Mayer, Inc. v. Am. Hondo Motor Co., Inc.,
7 900 F. Supp. 1287 (C.D. Cal. 1995) ...................................................................... 14
8 Miller v. Universal City Studios,

650 F.2d 1365 (5th Cir. 1981) ............................................................................... 10
9
Narell v. Freeman,
10
872 F.2d 907 (9th Cir. 1989) ................................................................................... 8
11
Newton v. Diamond,
12
388 F.3d 1189 (9th Cir. 2004) ................................................................................. 8
13
Nwabueze v. AT & T Inc.,
14 No. C 09-1529 SI, 2011 WL 332473 (N.D. Cal. Jan. 29, 2011) ........................... 30
15
Olson v. Natl Broad. Co., Inc.,
16 855 F.2d 1446 (9th Cir. 1988) ......................................................................... 14, 21
17 Osei v. Countrywide Home Loans,
18 692 F. Supp. 2d 1240 (E.D. Cal. 2010) ................................................................. 26
19 Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,
20 602 F.3d 57, 64 (2d Cir. 2010) .............................................................................. 10
21 Rice v. Fox Broad. Co.,

330 F.3d 1170 (9th Cir. 2003) ........................................................................... 8, 20
22
23 Richman v. Hartley,
224 Cal. App. 4th 1182 (2014) .............................................................................. 26
24
Risdon v. Walt Disney Prods.,
25 No. 83 CIV. 6595, 1984 WL 1181 (S.D.N.Y. Nov. 2, 1984)................................ 21
26
Roberts v. Ball, Hunt, Hart, Brown & Baerwitz,
27 57 Cal. App. 3d 104 (1976) ................................................................................... 31
28
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LA 52037902
Ryder v. Lightstorm Entmt, Inc.,
1
246 Cal. App. 4th 1064 (2016), review denied (July 13, 2016) ............................ 30
2
Sams v. Yahoo! Inc,
3 713 F.3d 1175 (9th Cir. 2013) ................................................................................. 7
4
Scafidi v. W. Loan & Bldg. Co.,
5 72 Cal. App. 2d 550 (1946) ................................................................................... 31
6 Shame on You Prods. Inc. v. Banks,
7 No. CV-14-03512-MMM-JCx, 2015 WL 4885221 (C.D. Cal. Aug.
14, 2015) .......................................................................................................... 13, 23
8
Sheldon Abend Revocable Trust v. Spielberg,
9
748 F. Supp. 2d 200 (S.D.N.Y. 2010) ................................................................... 12
10
Silas v. Home Box Office, Inc.,
11
No. CV 15-9732-GW(FFMX), 2016 WL 4409191 (C.D. Cal. Aug.

17, 2016) ......................................................................................................... passim
12
13 In re Stac Elecs. Sec. Litig.,
89 F.3d 1399 (9th Cir. 1996) ................................................................................... 9
14
15 Summerhays v. Scheu,
10 Cal. App. 2d 574 (1935) ................................................................................... 25
16
17 Taguinod v. World Sav. Bank, FSB,
755 F. Supp. 2d 1064 (C.D. Cal. 2010) ................................................................. 24
18
Thomas v. Walt Disney Co.,
19 No. C-07-4392 CW, 2008 WL 425647 (N.D. Cal. Feb. 14, 2008) ....................... 15
20
In re Toyota Motor Corp.,
21 785 F. Supp. 2d 883 (C.D. Cal. 2011) ................................................................... 32
22 Walker v. Time Life Films, Inc.,
23 784 F.2d 44, 51 (2d. Cir. 1986) ............................................................................. 10
24 Walker v. Time Life Films, Inc.,
25 615 F. Supp. 430 (S.D.N.Y. 1985) .................................................................. 10, 15
26 Warner Bros. Entmt, Inc. v. X One X Prods.,

644 F.3d 584 (8th Cir. 2011) ................................................................................. 14
27
28
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Weidner v. Zieglar,
1
218 Cal. 345 (1933) ............................................................................................... 27
2
Williams v. Crichton,
3 84 F.3d 518 (2d Cir. 1996) ............................................................................ 7, 9, 23
4
Willis v. Home Box Office,
5 No. 00 CIV. 2500 (JSM), 2001 WL 1352916 (S.D.N.Y. Nov. 2,
2001) ...................................................................................................................... 13
6
7 Zella v. E.W. Scripps Co.,
529 F. Supp. 2d 1124 (C.D. Cal. 2007) ..................................................... 6, 7, 9, 23
8
Statutes
9
17 U.S.C. 102(b) ........................................................................................................ 7
10
11 Cal. Civ. Code 1530 ................................................................................................. 24
12 Cal. Civ. Code 1624(a)(1)........................................................................................ 25

13
Cal. Civ. Proc. Code 338(d) ..................................................................................... 31
14
Cal. Civ. Proc. Code 339 ......................................................................................... 24
15
Cal. Civ. Proc. Code 339(1) ..................................................................................... 29
16
17 Rules
18 Fed. R. Civ. P. 9(b) ..................................................................................................... 31
19 Fed. R. Civ. P. 12(b)(6)....................................................................................... 2, 9, 23
20
Other Authorities
21
5 Nimmer & Nimmer, Copyright (2015) The Law of Ideas, 19D.07[A] ................ 26
22
23 4 Nimmer on Copyright 13.03[D] ............................................................................ 10
24
25
26
27
28
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LA 52037902
1 I. INTRODUCTION
2 Every one of the Plaintiffs claims should be dismissed, either because the
3 claim is unfounded, time-barred, or legally flawed.
4 Plaintiffs copyright infringement claim must be dismissed because the law
5 requires a side-by-side comparison of Plaintiffs treatment to a film that Plaintiff has
6 not yet seen and, therefore, cannot in good faith allege is substantially similar. To
7 the extent that Plaintiff has alleged similarities, her claim is unsustainable because
8 the articulable similarities are negligible and are dominated by numerous, readily
9 apparent dissimilarities.
10 The copyright infringement claim is doomed by the comparison of three works

11 created according to the following chronology: (i) the 2006 Japanese film Taiyo no
Uta (Original Film); (ii) the 2010 treatment Shade a/k/a Midnight Juliet
12
13 attached as Exhibits A and B to the Complaint (Plaintiffs Work or Work); and
14 (iii) Defendants unreleased 2017 film (Midnight Sun) which, crucially, is not the
15 2013 first draft script attached as Exhibit C to the Complaint. Plaintiff alleges that
16 Midnight Sun infringes on her 2010 Work. But Midnight Sun is a licensed derivative
17 work of the 2006 Original Film and, thereby, enjoys the benefit of the Original
18 Films superior copyright for any expressive elements resident in all three works.
19 This Court should dismiss the copyright infringement claim because it fails the
20 two-step process required by the Ninth Circuits extrinsic test. First, the Court
21 must filter all uncopyrightable elements from Plaintiffs Work, including stock ideas,
22 general concepts, scenes a faire, and expressions already articulated in the Original
23 Film. Second, the Court must consider only the remaining protectable elements of
24 Plaintiffs Work when comparing it to Midnight Sun for substantial similarity.
25 Because the Midnight Sun is a faithful remake of Taiyo no Uta, it expresses
26 virtually identical plot, themes, dialogue, mood, setting, pace, characters and
27 sequence of events that pervade the Original Film. Consequently, these elements
28 legally derive from the Original Film and must be disregarded for substantial
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1 similarity purposes. After the Court filters the unprotectable elements from
2 Plaintiffs Work, all that remains is a story legally dissimilar to Midnight Sun
3 involving new characters, different situations, distinct dialogue, contrasting themes,
4 and an altered mood. Application of the extrinsic test leads to the inescapable
5 conclusion that no reasonable jury could find that Midnight Sun is substantially
6 similar to Plaintiffs Work. Consequently, Plaintiffs claim for copyright
7 infringement claim should be dismissed with prejudice pursuant to Rule 12(b)(6).
8 In addition to her failed copyright claim, Plaintiff asserts five others claims,
9 each of which is deficient. The statutes of limitations have run on the Breach of
10 Contract, Breach of Confidence, and Fraud claims. The Breach of Contract claim
11 should also be dismissed because the alleged contract at issue is invalid due to
novation, violates the statute of frauds, and is undermined by a lack of privity.

12
13 Because Midnight Sun is a lawful derivation of the pre-existing Original Film,
14 Plaintiff can never state a claim for Breach of Confidence. A fiduciary duty claim
15 cannot be stated without a fiduciary relationship, and a Breach of a Fiduciary Duty
16 claim cannot be maintained without substantial similarity. The Implied Covenant
17 claim is legally superfluous. The Fraud claim lacks specificity. Thus, all of
18 Plaintiffs claims should be dismissed pursuant to Rule 12(b)(6).
19 II. FACTUAL BACKGROUND
20 All three works the 2006 Original Film, Plaintiffs 2010 Work, and the 2017
21 Midnight Sun are coming-of-age, rite-of-passage romance stories involving a
22 teenage girl protagonist and a teenage boy.1
23 A. Midnight Sun Is Virtually Identical to the Original Film.
24 Midnight Sun is a licensed remake of the Original Film. (See Declaration of
25 Devin Andre, at 3-4). The two films are virtually identical.
26
1
For the sake of clarity, the following factual recitations refer to the girl and the
27 boy instead of the specific names ascribed to these roles in each work. In the
Original Film, Plaintiffs Work, and Midnight Sun, the name of the girl protagonist is
28 respectively Kaoru, Emma and Katie, the boy lead is Fujishiro, Will and Charlie.
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1 In both films, the protagonist is a girl of high school age living in a seaside
2 town and suffering from the genetic disorder Xeroderma Pigmentosum, or XP, for
3 which exposure to the sun is deadly. She has grown up isolated inside her family
4 home, protected from the suns rays with special UV-filtering windows and alienated
5 from the schools and social lives of her peers, except for her best friend. Her waking
6 hours are spent playing guitar, singing and writing in her bedroom. She longingly
7 peers out of her bedroom window, sees the same attractive boy pass by daily, and is
8 repeatedly frustrated because her line-of-sight for viewing him is partially-blocked.
9 The girl yearns for the boy from a distance. When the sun goes down, she carries her
10 acoustic guitar to a public transit station where she strums and sings. She has a first
11 encounter with the boy, acts awkwardly, and dashes away. The girl confides to her
best friend about her crush and they scheme about how to approach the boy.
12
13 The girl assiduously avoids her personal doctor and the hospital, so the girls
14 father visits the hospital on her behalf and updates her doctor, an XP specialist, of her
15 condition; has her prescription refilled; is reminded to be prepared because his
16 daughter is now at the age where most XP sufferers pass away; and inquires about
17 the status of an XP medical trial that could potentially cure her. In the hospital
18 lobby, the girls destiny is foreshadowed by the cameo appearance of another female
19 teen XP patient manifesting symptoms of decline (i.e., nervous tremors, skin cancer).
20 The girl begins to date the boy, but delays disclosing her deadly condition to
21 him because it affords her a rare opportunity to be normal. She seeks permission
22 from her father to go out at night and, after some protective inquiries, he grants her
23 permission. Inspired by her romantic impulse, she starts writing a special new song.
24 The boy makes money scrubbing a boat at a local marina. He takes the girl on a date
25 in the city and, after some sightseeing, she sings and plays in a public square,
26 drawing an appreciative crowd. Later that night, the boy takes the girl to his regular
27 waterfront haunt, expresses pessimism about his future, and is admonished by the
28 girl to be optimistic. When the boy casually mentions they are about to see a
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1 beautiful sunrise, the girl realizes that she lost track of time and is about to be
2 exposed to lethal UV rays. Panicked, she desperately sprints for home without him.
3 He pulls up alongside of her, picks her up and drives her home, still with no idea of
4 the emergency. Exposed to the sunrise, she dashes into her house, slams the door in
5 his face, and refuses to answer his confused pleas. The girls father and best friend
6 arrive from their desperate search for her. The father ignores the boy to check on the
7 girl, but the girls best friend stops to inform the boy that he could have killed her
8 because she is afflicted with XP. The boy goes home and researches the XP disease.
9 The girls XP specialist examines her and notes some damage from her brief
10 sun exposure. The doctor later returns with brain scan images to confirm that the
11 exposure did, in fact, trigger her disease and begin her moribund demise. The girls
father excruciatingly recounts to the doctor all he has done to protect his daughter,
12
13 never letting her go out in the sun even when she screamed and begged. The doctor
14 reminds the father that he could only do so much, that this is a genetic destiny.
15 The boy fruitlessly campaigns to contact the girl, who stubbornly refuses
16 because she is doomed and concludes that the relationship is similarly fated. While
17 playing her guitar, she realizes her hand is not working correctly, a nervous motor
18 control diminution that signals XP deterioration. She puts down the guitar. The boy
19 finally succeeds in getting an audience with the girl when her father secretly invites
20 him to the home for dinner. The girl continues to refuse him, but then relents and
21 they reunite. The boy sacrifices his savings to buy her a surprise session at a
22 professional recording studio where musicians await to accompany her in recording
23 her special song. She initially rejects the gift and objects that she cannot play guitar
24 anymore. The boy urges her to just sing, so she does. As the girls condition
25 deteriorates, she ventures with the boy to the waterfront during the daytime for a
26 final date. After she passes away, her recording plays on the radio and the grieving
27 boy and the grieving father hear the posthumous broadcast and are filled with joy.
28
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B. Plaintiffs Work Includes Elements in the Original Film and Midnight
1 Sun.
2
Plaintiffs Work shares some of the story elements that pervade the Original
3
Film. Specifically, in Plaintiffs Work: the protagonist is a girl of high school age
4
living in a seaside town and suffering from the XP genetic disorder; she has grown
5
up isolated within her family home, protected from the suns UV rays with special,
6
protective windows; at night she escapes her home to enjoy the outside world and
7
practice her artistic interest; she has an encounter with an athletic, attractive boy, acts
8
socially awkward in his presence, and dashes away from him; the girl begins to date
9
the boy, but delays disclosing her deadly condition because it affords her an
10
opportunity to be normal; the boy makes money scrubbing a boat at a local marina;
11
the boy takes the girl on a romantic date that runs too late and she gets exposed to
12
dawns sunlight, triggering her disease and leading to her demise; she refuses to see
13
the boy until his campaign to win her back prevails; they reunite until her death.
14
C. There Are Numerous Elements Expressed Only in Plaintiffs Work.
15
There are many elements in Plaintiffs Work that are in neither the Original
16
Film nor Midnight Sun which make Plaintiffs Work dissimilar from Midnight Sun.
17
For example: the girls luxurious mansion stands in sharp contrast to the boys
18
small dilapidated house in a run-down neighborhood on the poor side of town;
19
disparity in wealth is an underlying theme; the girl does not observe the boy during
20
the day from her isolated bedroom because her windows are not merely coated with
21
UV protective filters, but rather completely covered by a protective shield that
22
mechanically lowers during some sort of lockdown for blocking out any and all
23
sunlight; the protective parent is the girls mother, who deploys an unusual
24
instrument to measure and record UV readings in each room; the girl does not seek
25
permission to go out at night, she sneaks out without telling her suffocatingly over-
26
protective mother; the girl obstinately attends Camp Shield, a safe place for
27
children who suffer XP to live and play together; she does not avoid her personal
28
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1 doctor but rather shares a close bond; her doctor does not merely discuss the girls
2 physical condition with the mother: the doctor mediates to explain how the girl is in
3 love and escapes home every night; the boy repeatedly expresses that he is angry;
4 the boys parents are active characters in the storyline and struggle with poverty and
5 counsel the boy to work multiple jobs, go to junior college, and abandon his
6 scholarship hunt; the girl is friends with a sweet homeless character who plays
7 saxophone, only comes out at night because he is afraid of aliens, guides her to the
8 boys home, and accompanies her on her first bus ride; the boy arranges for the girl
9 to experience an elaborate beach mock-up at his high school pool replete with
10 sand, warm water and a hundred candles; and the boy is upset that the girl stood
11 him up at his swim meet. Finally, when the boy campaigns to re-establish contact
with her, he sits a determined vigil for three days out on her front lawn until she
12
13 relents, and the two ultimately marry in a Twilight-like inspired wedding.
14 One conspicuous and crucial difference is how Plaintiffs Work frames the
15 girls exposure to the sunrise a key plot device in the films. Unlike the Original
16 Film and Midnight Sun, the girl is not exposed because her watch stopped or because
17 she got swept up in a romantic evening. Instead, in Plaintiffs Work the boy falls off
18 a cliff and is rendered unconscious as sunrise approaches, and the girl is confronted
19 with a pre-dawn moral dilemma: run to save herself or stay and protect the boy.
20 III. LEGAL ARGUMENT
21 A. Plaintiffs Copyright Infringement Claim Fails as a Matter of Law.
22 1. The Standard for Deciding Non-Infringement on a Motion to
23 Dismiss.
24 [W]hen the copyrighted work and the alleged infringement are both before
25 the court, capable of examination and comparison, non-infringement can be
26 determined on a motion to dismiss. Christianson v. W. Pub. Co., 149 F.2d 202, 203
27 (9th Cir. 1945) (citing cases); Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1130
28
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1 (C.D. Cal. 2007).2 For fifty years, courts have followed this rather obvious
2 principle and dismissed copyright claims that fail from the face of the complaint (and
3 in light of all matters properly considered on a motion to dismiss.) Id. at 1130.
4 Copyright infringement claims are routinely dismissed at the pleading stage when a
5 comparison of the works reveals no substantial similarity in protectable expression.
6 Id. at 1130-31; Christianson, 149 F.2d at 203; Identity Arts v. Best Buy Enter. Servs.
7 Inc., No. C05-4656 PJH, 2007 WL 1149155, at *8-18 (N.D. Cal. Apr. 18, 2007).
8 To maintain a claim for copyright infringement, a plaintiff must be able to
9 establish that it owns a valid copyright and that the defendant copied elements of the
10 work that are subject to copyright protection. See Feist Publns, Inc. v. Rural Tel.
11 Serv. Co., 499 U.S. 340, 361 (1991). Copyright law protects the expression of ideas,
not the ideas themselves. See 17 U.S.C. 102(b). [C]opyright protection does not
12
13 extend to historical or contemporary facts, material traceable to common sources or
14 in the public domains, and scenes a faire. Chase-Riboud v. Dreamworks, Inc., 987
15 F. Supp. 1222, 1226 (C.D. Cal. 1997) (citation omitted). The plaintiff must
16 demonstrate that not only did copying occur, but that the two works are substantially
17 similar in those elements which are protected by the Copyright Act. See Cavalier v.
18 Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002); Williams v. Crichton, 84
19 F.3d 518, 587 (2d Cir. 1996).
20 The substantial similarity test contains an extrinsic and intrinsic component.
21 Only the extrinsic test applies at the pleading stage. See Funky Films, Inc. v. Time
22 Warner Entmt Co. L.P., 462 F.3d 1072, 1077 (9th Cir. 2006). The extrinsic test
23 objectively measures the articulable similarities between the plot, themes, dialogue,
24
2
District courts as this Court did in Silas v. Home Box Office, Inc., No. CV 15-
25 9732-GW(FFMX), 2016 WL 4409191 (C.D. Cal. Aug. 17, 2016) routinely
consider the copyrighted works at issue, irrespective of whether the materials are
26 attached to the complaint in ruling on the dismissal motion. See Zella, 529 F. Supp.
2d at 1131-32 (reviewing works on a motion to dismiss a copyright claim); Sams v.
27 Yahoo! Inc, 713 F.3d 1175, 1179 (9th Cir. 2013) (same). Defendants have filed a
Notice of Lodging, lodging the Original Film and have secured permission to submit
28 Midnight Sun via a password protected link. (D.E 40).
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1 mood, setting, pace, characters, and sequence of events. Rice v. Fox Broad. Co.,
2 330 F.3d 1170, 1174 (9th Cir. 2003). Without extrinsic similarity, a copyright claim
3 cannot survive dismissal. Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042,
4 1045 (9th Cir. 1994) (plaintiff who cannot satisfy the extrinsic [similarity] test
5 necessarily loses.).
6 In applying the extrinsic test, the Court must filter out and disregard the non-
7 protectable elements, such as stock ideas, concepts, as well as scenes a faire
8 situations and incidents that flow naturally from the general plot line. Funky Films,
9 462 F.3d at 1077. Unprotectable elements unoriginal and stock situations,
10 characters and themes must be disregarded. See Gilbert v. New Line Prods., Inc.,
11 No. CV 09-02231 RGK (RZx), 2010 U.S. Dist. LEXIS 141516, at *13 (C.D. Cal.
2010) (general similarities are not protected under federal copyright law).
12
13 After filtering and disregarding the unprotectable elements, the Court must
14 take care to inquire only whether the protectible elements, standing alone, are
15 substantially similar. Cavalier, 297 F.3d at 822; Apple Comput., Inc. v. Microsoft
16 Corp., 35 F.3d 1435, 1446 (9th Cir. 1994) ([T]he party claiming infringement may
17 place no reliance upon any similarity in expression resulting from unprotectable
18 elements.). The protectable elements must show not just similarity, but
19 substantial similarity, and such similarity must be measured at the level of the
20 concrete elements of each work, rather than at level of the basic idea, or story
21 that it conveys. Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1179 (C.D. Cal.
22 2001) (emphasis in original).
23 Merely showing that the second work is a copy is insufficient. The plaintiff
24 must also show illegality, which requires a sharper focus. See Narell v. Freeman,
25 872 F.2d 907, 910 (9th Cir. 1989) (despite defendants admission of copying,
26 plaintiffs copyright infringement claim was nonetheless defective as a matter of law
27 because the defendant did not copy protected expression); Newton v. Diamond, 388
28 F.3d 1189, 1192-93 (9th Cir. 2004) (even where the fact of copying is conceded, no
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1 legal consequences will follow from that fact unless the copying is substantial).3
2 The copying must be both quantitatively and qualitatively sufficient.
3 On a 12(b)(6) dismissal motion, a court must accept well-pleaded factual
4 allegations as true, but should not accept conclusions unsupported by the facts
5 alleged, legal conclusions, bald assertions or unwarranted inferences. See Bell Atl.
6 Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678
7 (2009) (to survive dismissal, a plaintiff must plead more than a sheer possibility that
8 a defendant has acted unlawfully). Similarly, the Court need not accept as true
9 allegations negated by either attached documents or material subject to judicial
notice.4
10
11 A court may dismiss claims of copyright infringement on a 12(b)(6) motion if
it concludes that no reasonable jury could find that the works are substantially
12
13 similar, or if it concludes that the similarities between the two works pertain only to
14 unprotected elements of the works. Zella, 529 F. Supp. 2d at 1131 (quotations
15 omitted). The determination rises and falls on a comparison of the works, not charts
16 containing skewed or scattered lists of alleged similarities such as the one created by
17 Plaintiff and attached as Exhibit D to her Complaint. See Williams, 84 F.3d at 583
18 (determination of substantial similarity requires a detailed examination of the works
19 themselves) (internal quotations omitted). The comparison is the real test.
20 3
Courts have dismissed copyright infringement claims for lack of substantial
similarity even where, unlike here, the defendants admit to using the plaintiffs work.
21 Idema, 162 F. Supp. 2d at 1129, 1143, 1171, 1174; Bensbargains.NET, LLC v.
XPbargains.Com, No. 06CV1445BTM, 2007 WL 2385092, at *3 (S.D. Cal. Aug. 16,
22 2007) (plaintiff must still prove substantial similarity regardless of how strong its
evidence is that Defendants in fact copied from [plaintiffs work] (emphasis in
23 original).
24 4
On a Rule 12(b)(6) motion, a court may consider material which is properly
submitted as part of the complaint on a motion to dismiss without converting the
25 motion to dismiss into a motion for summary judgment. Lee v. City of L.A., 250
F.3d 668, 688 (9th Cir. 2001) (citation omitted); Silas, 2016 WL 4409191, at *5
26 ([T]he court may consider documents whose contents are alleged in the complaint
and whose authenticity no party questions.); see Davis v. HSBC Bank Nev., N.A.,
27 691 F.3d 1152, 1159-60 (9th Cir. 2012) (same). A court may also consider the
contents of the works by taking judicial notice of them, without attachment to the
28 complaint. See In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405, n.4 (9th Cir. 1996).
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[T]he works themselves supersede and control contrary
1 allegations, conclusions or descriptions of the works
contained in the pleadings When a court is called upon
2 to consider whether the works are substantially similar, no
discovery or fact-finding is typically necessary, because
3 what is required is only a [ ] comparison of the works.
4 Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir.
5 2010) (internal quotations omitted); Walker v. Time Life Films, Inc., 784 F.2d 44, 51
6 (2d. Cir. 1986) (the works themselves, not descriptions or impressions of them, are
7 the real tests for claims of infringement.). The Court must compare the works.
8
2. Plaintiffs Claim Is Premised on the Wrong Work.
9 Plaintiff claims infringement, but has never seen the not-yet-released Midnight
10 Sun. Instead, she compared her Work to the first draft of the Midnight Sun screenplay
11
written by Kirsten. (See Compl., 5, The Midnight Sun screenplay deeply

12 incorporates the effective entirety of Wolfs Midnight Juliet treatment; 72-73).

13 This is an erroneous point of comparison, and fatal to her claim.
14 To determine substantial similarity, the court considers the final version of
15 the [defendants work] as presented to the viewing public. Chase-Riboud, 987 F.
16 Supp. at 1227, n.5 (emphasis added); Walker v. Time Life Films, Inc., 615 F. Supp.
17 430, 434-35 (S.D.N.Y. 1985) (The Court considers the works as they were
18 presented to the public, not earlier drafts of the screenplay.); Marshall v. Yates,
19 No. CV-81-1850-MML, 1983 WL 1148, at *2 n.2 (C.D. Cal. Oct. 26, 1983)
20 (refusing to consider draft screenplays or the shooting script of motion picture
21 because [s]uch preliminary drafts are not relevant.); Meta-Film Assocs., Inc. v.
22 MCA, Inc., 586 F. Supp. 1346, 1360 (C.D. Cal. 1984) (citing Miller v. Universal City
23 Studios, 650 F.2d 1365, 1375 (5th Cir. 1981)) ([T]he ultimate test of infringement
24 [is] the film as broadcast rather than the underlying scripts.); 4 Nimmer on
25 Copyright 13.03[D] (courts routinely refuse to consider earlier screenplay drafts).
26 Indeed, as this Court held in Silas, because published works cause injury
27 under copyright law, courts consider the final version of a film, rather than
28
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1 unpublished scripts, when determining substantial similarity. 2016 WL 4409191, at
2 *5 (emphasis added).
3 Kirstens screenplay was only the first of many drafts. The subsequent
4 revisions resulted in a film that is remarkably different in several material aspects
5 from the screenplay which Plaintiff proffers as evidence of infringement. (See
6 Declaration of John Rickard, at 4-6). Consequently, Plaintiff has offered this
7 Court a legally irrelevant point of comparison. The Court must consider Midnight
8 Sun, and not the early draft attached as Exhibit C. For this reason alone, Plaintiffs
9 copyright claim fails as a matter of law.
10 3. There Is No Substantial Similarity Between Any Protectable

Elements in Plaintiffs Work and Midnight Sun.
11
Application of the extrinsic tests factors shows no substantial similarity exists

12
13 between the protectable elements of Plaintiffs Work and Midnight Sun.
14 a. There Is No Substantial Similarity in Plot.

15 The plot in Midnight Sun is identical to the Original Film it remade: on the
16 verge of adulthood when her genetic allergy to sunlight is likely to kill her, a
17 socially-isolated musician ventures out at night to play songs in public and meets the
18 teen boy she has been admiring from her bedroom window; but when a romantic date
19 runs late and her exposure to the sunrise triggers her demise, she must take the same
20 advice that she gave to the boy: live your dreams no matter how impossible they
21 seem.
22 In contrast, the Midnight Sun plot differs sharply from the plot of Plaintiffs
23 Work, where, on the verge of adulthood when her genetic allergy to sunlight is likely
24 to kill her, a socially-isolated writer ventures out at night to write and meets a teen
25 boy and falls for him; but when a romantic date turns tragic with the boy struck
26 unconscious in the wilderness, she must resolve a moral dilemma that tests her love:
27 abandon the boy to escape the sunrise and save herself, or stay with the boy through
28 the sunrise and trigger her deadly disease.
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1 Plaintiff cannot claim originality or protectability for plot elements in all three
2 works (one of which indisputably precedes her Work by years), such as an isolated
3 teen female suffering from XP who leaves her sheltered home, meets a boy and
4 tempts late-night fate, and the incidents and events that flow from this basic idea.
5 The Court must filter such elements from consideration before conducting the
6 substantial similarity test. General plot ideas are not protected by copyright law;
7 they remain forever the common property of artistic mankind. Berkic v. Crichton,
8 761 F.2d 1289, 1293 (9th Cir. 1985). Mere commonality in subject matter does not
9 rise to a claim for copyright infringement. Id. (plot of criminal organizations that
10 murder healthy young people, then remove and sell their vital organs to wealthy
11 people in need of organ transplants not protected because [n]o one can own the
basic idea for a story); Sheldon Abend Revocable Trust v. Spielberg, 748 F. Supp.
12
13 2d 200, 208, 210 (S.D.N.Y. 2010) (plaintiff did not own the general plot idea of a
14 male protagonist, confined to his home, who spies on his neighbors to stave off
15 boredom and, in doing so, discovers that one of his neighbors is a murderer [and]
16 [t]he voyeur is himself discovered by the suspected murderer.); Astor-White v.
17 Strong, 2016 U.S. Dist. LEXIS 40608, at *12-13 (C.D. Cal. 2016) (works involving
18 plots of a successful and wealthy African American entertainment mogul with three
19 children involved in the recording industry were at a very high level of generality
20 and therefore not protectable). Instead, when assessing substantial similarity, the
21 Court must look[ ] beyond the vague, abstracted idea of a general plot. Berkic, 761
22 F.2d at 1293.
23 In cases where plots from two works had far more similarities than the works
24 at issue -- and where there was no prior work to explain the few existing similarities
25 (i.e., the Original Film) the Ninth Circuit still found the plots to be dissimilar as a
26 matter of law. See Benay v. Warner Bros. Entmt, Inc., 607 F.3d 620, 625 (9th Cir.
27 2010) (no substantial similarity between works about American war veterans who
28 traveled to Japan to train the Japanese army to combat a samurai uprising); Funky
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1 Films, 462 F.3d at 1081 (no substantial similarity between works about [a] family-
2 run funeral home, the fathers death, and the return of the prodigal son who assists
3 his brother in maintaining the family business); Shame on You Prods. Inc. v. Banks,
4 No. CV-14-03512-MMM-JCx, 2015 WL 4885221, at *16 (C.D. Cal. Aug. 14,
5 2015) (no substantial similarity between works where the female lead breaks up with
6 her boyfriend, gets intoxicated, has a one-night stand, wakes up disoriented and, due
7 to similar conspiring events, has difficulty getting home).
8 After filtering the unoriginal and unprotectable plot elements of Plaintiffs
9 Work, including those elements contained in the lawfully-licensed Original Film, the
10 remaining plot elements are so dissimilar to those of Midnight Sun that this Court
11 must find that no substantial similarity of plots exists as a matter of law.
12 b. Midnight Suns Theme Derives from the Original Film,

Not Plaintiffs Work.
13
A works theme is its overarching message. Silas, 2016 WL 4409191, at
14
*16; Kouf, 16 F.3d at 1045 (describing one works theme as a celebrat[ion] [of]
15
family values and another works theme as the triumph of good over evil).
16
All three works explore themes of young adult romance, isolation, realizing
17
artistic ambitions, and dealing with pending death. All three works loosely
18
communicate the ideas of moving from darkness into light, from questioning to
19
certainty, or from longing to satisfaction. These themes arise and naturally flow
20
from the premise of a sheltered XP teen who has gone from a lifetime in darkness
21
and isolation into adventures of daytime and love. See Cavalier, 297 F.3d at 823
22
([f]amiliar stock scenes and themes that are staples of literature are not protected
23
and, hence, cannot serves as grounds for substantial similarity); Campbell v. Walt
24
Disney Co., 718 F. Supp. 2d 1108, 1113 (N.D. Cal. 2010) (themes of self-reliance
25
and the importance of friendship and teamwork not protectable because they would
26
predominate any story of competition); Willis v. Home Box Office, No. 00 CIV. 2500
27
(JSM), 2001 WL 1352916, at *2 (S.D.N.Y. Nov. 2, 2001) (rejecting claim of
28
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1 similarities based on themes common to the talent agency business, or to
2 situation comedies in general or in trivial detail that are not essential to either
3 series.).
4 After filtering and disregarding the near identical themes contained in the
5 Original Film and Midnight Sun, the remaining thematic elements between Plaintiffs
6 Work and Midnight Sun are so dissimilar (i.e., the rich-girl meets poor-boy socio-
7 economic theme pervading only Plaintiffs Work) that this Court must find that no
8 substantial similarity of themes exists as a matter of law. This factor weighs in favor
9 of a finding of non-infringement.
10 c. There Is No Substantial Similarity in Characters.

11 Copyright law provides extremely limited protection to characters, protecting
12 only the especially distinctive. Under the Ninth Circuits three-part test, characters
13 must: (1) have physical as well as conceptual qualities, (2) be sufficiently
14 delineated, and (3) be especially distinctive in order to receive copyright
15 protection. D.C. Comics v. Towle, 802 F.3d 1012, 1021 (9th Cir. 2015), cert. denied
16 U.S. , 136 S. Ct. 1390 (2016). California courts require a very high degree of
17 similarity between characters. Silas, 2016 WL 4409191, at *13.
18 Basic character types are not protected. [T]he less developed the characters,
19 the less they can be copyrighted; that is the penalty an author must bear for marking
20 them too indistinctly. Olson v. Natl Broad. Co., Inc., 855 F.2d 1446, 1452 (9th Cir.
21 1988) (citation omitted). Examples of the handful of especially distinctive
22 characters that have been found to merit copyright protection include: James Bond,
23 Superman, Scarlett OHara, Freddy Krueger, and Rocky Balboa.5
24
5
Anderson v. Stallone, No. 87-0592 WDK Gx, 1989 WL 206431 (C.D. Cal. Apr. 25,
25 1989) (Rocky Balboas character has become identified with specific character
traits ranging from his speaking mannerisms to this to his physical characteristics.);
26 Metro-Goldwyn-Mayer, Inc. v. Am. Hondo Motor Co., Inc., 900 F. Supp. 1287, 1296
(C.D. Cal. 1995) (James Bond is sufficiently delineated i.e., his cold-bloodedness;
27 his overt sexuality; his love of martinis, shaken, not stirred; his license to kill
and use of guns; his physical strength; [and] his sophistication.); Warner Bros.
28 Entmt, Inc. v. X One X Prods., 644 F.3d 584, 587 (8th Cir. 2011) (The Wizard of
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1 Characters with traits that flow naturally from the works shared premises
2 cannot serve as a basis for infringement. Benay, 607 F.3d at 626. When comparing
3 characters, courts must consider the totality of the character attributes and traits, and
4 their total concept and feel. See Walker, 784 F.2d at 50.
5 (i) The Boy: Will Clayman versus Charlie Reed.
6 Plaintiff, as she did in her opposition to defendant Open Road Film LLCs
7 dismissal motion, is likely to emphasize the purported similarities between the two
8 male leads. In both Plaintiffs Work and Midnight Sun, the boy character was a star
9 high school swimmer who lost an athletic college scholarship when an accidental
10 shoulder injury snuffed that dream and demoralized him from celebrating his high
11 school graduation. This is insufficient.
12 Setting aside that Will Clayman is neither sufficiently delineated nor

13 especially distinctive to qualify for copyright protection in the first instance, that both
14 boys are competitive swimmers with shoulder injuries who abandoned then revived
15 their dreams of a college scholarship is legally insufficient to give rise to a copyright
16 infringement claim. See Thomas v. Walt Disney Co., No. C-07-4392 CW, 2008 WL
17 425647, at *5 (N.D. Cal. Feb. 14, 2008) (Plaintiff provides nothing to support her
18 argument that an injury is a protectable characteristic ); Benjamin v. Walt Disney
19 Co., No. CV 05-2280GPS, 2007 WL 1655783, at *6 (C.D. Cal. June 5, 2007) (no
20 infringement between works featuring attractive, likable, 30-year-old females that
21 have escaped their humble past to pursue their dreams of working and living in the
22 big city.); Alexander v. Murdoch, No. CV 10-5613 PAC JCF, 2011 WL 2802899, at
23 *10 (S.D.N.Y. May 27, 2011) (stunningly beautiful, fiery, temperamental, Latina
24 mother, with a thick accent, whos in love with her Caucasian [ex-husband/husband]
25 and always makes him do the right thing, especially where her son is concerned is
26 a stock character and therefore not copyrightable.).
27
Oz and Gone With the Wind characters merit protection given their exhibition of
28 consistent, widely identifiable traits).
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1 Moreover, the similarities end at the surface. Beyond the superficial, Midnight
2 Sun and Plaintiffs Work express the boy character in fundamentally dissimilar ways.
3 In Plaintiffs Work, Will Clayman is an intense young man, bitter from the
4 loss of his scholarship, concerned with his social-economic standing, and driven to
5 attend college. Will defines himself as a swimmer, and holds disdain for having to
6 work on a shrimp boat with his father. Will is angry, an emotion he repeatedly
7 declares at the family breakfast table. When the girl does not show up at his swim
8 meet, he explodes and makes her confess her XP. When the girl will not talk to him,
9 he sits on her front lawn for three days straight until they let him in the house. When
10 he wants to go on a romantic date with his girlfriend who he knows has XP and
11 needs to be home before dawn, he drives her an hour away and then hikes her
another hour to a spot with no cell phone reception. When the girl runs from him he
12
13 tries to chase her but falls off a cliff and knocks himself out. When the girl is about
14 to die, he marries her in a chapel.
15 In sharp contrast, Midnight Suns Charlie Reed is a prince among young men.
16 He does not need a scholarship to escape his hometown, is ambivalent (but not
17 angry) about losing his scholarship, and does not define himself as a swimmer,
18 alternatively expressing a sullen demeanor and relief about not having to be that
19 guy identified simply as a swimmer. Charlie pivots plans with relative ease from
20 attending college to buying a new truck and driving it across the country. Charlie is
21 emotionally even-keeled and popular. When he walks into a nerd high school house
22 party, the host stunningly inquires What is Charlie Reed doing here? When he
23 enters a raging high school house party, all the teen revelers greet him by shouting
24 his name in unison. The popular blond cheerleader with the convertible makes a
25 flirty move on him but he takes the female leads hand instead. When they go on a
26 date to the big city, he carries her guitar case. When the girl tries to break up with
27 him, he uses humor to break the tension and win her back. When the girls hand
28 shakes from XP-related nerve deterioration during a card game, he gently grabs her
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1 hand to hold the cards steady. When he wants to buy the girl a recording session, he
2 sacrifices his truck money savings. When the girl says she can no longer play the
3 guitar, he encourages her to just sing. He helps her search for musical audiences by
4 recording her perform and then uploading it to YouTube where it garnered millions
5 of hits and radio airplay.
6 Will Clayman is no Charlie Reed. Charlie Reed is no Will Clayman.
7 (ii) The Parent: Claire Morgan versus Jack Price.
8 In both Plaintiffs Work and Midnight Sun, the protagonist girl with XP is the
9 daughter of a parent whose spouse died years earlier, who sacrificed a personal life to
10 care for the girl, who gives the girl a significant high school graduation gift, and who
11 handles a meaningful journal at the end. Though the general ideas associated with
12 the parent character are similar, the expressions of these ideas in the two works are
13 not.
14 In Plaintiffs Work: the girls living parent is the mom; the deceased dad
15 perished in a plane crash; the mom was a successful novelist who has been turning
16 away work proposed by her agent; the mom gifts the girl a Chinese silk journal for
17 writing; the mom deploys extreme protective measures (e.g., installing lock-down,
18 window shields; using the UV detection device to record copious samples); the mom
19 does not enjoy open and honest communications with her daughter; the mom fails for
20 months to detect her daughters nocturnal escapes to the beach; the mom attacks the
21 boy, saying it is his fault; the mom receives from the boy what she had previously
22 gifted to her dead daughter, the Chinese silk journal, with an abstract poem addressed
23 to nobody in particular about the authors redemption from darkness to light.
24 Contrast Plaintiffs expressions of the parent character with those expressed in
25 Midnight Sun: the girls living parent is the dad (not the mom); the deceased parent
26 died in a car accident (not a plane crash); the dad is a photographer (not a novelist)
27 who continues to work as such for a corporation (and is not on leave); the dad gifts
28 the girl her mothers acoustic guitar for playing (not a writing journal); the dad is
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1 protective of the girl but permits reasonable requests; he enjoys open and honest
2 communications with his daughter; he immediately detects the girls rambling
3 attempt to lie about going to her friends home when she is really going to see the
4 boy; the dad never attacks the boy or blames him; and dad gives the boy (not the
5 other way around) his deceased daughters songbook with two writings directed at
6 the boy: the lyrics to the hit song named after him, Charlies Song; and a personal
7 goodbye letter handwritten to him.
8 (iii) The Absence of the Boys Parents, the Girls Aunt, and
the Homeless Jon-Jon.
9
The presence of characters that do not appear in the other work also weighs in
10
favor of finding that the works are not substantially similar. See Funky Films, 462
11
F.3d at 1078-79. Characters that are prominent in Plaintiffs Work and which have
12
no counterpart in Midnight Sun include: the boys impoverished parents, the girls
13
loser-at-love aunt, and a nocturnal jazz man named Jon-Jon. Characters that are in
14
Midnight Sun but not Plaintiffs Work include: the girls best friend (Morgan),
15
Morgans nerdy boyfriend, the boys buddies who try to lift his cheer, and the blonde
16
cheerleader who tries to woo him. Morgan is a prominent figure in Midnight Sun,
17
and her character tracks that of Misaki in the Original Film.
18
Given the limited copyright protection afforded to characters, the dissimilarity
19
of the characters in Plaintiffs Work and Midnight Sun, and the differing characters
20
for which no counterpart exists, the Court must find as a matter of law that there is
21
no substantial similarity of character. This factor favors a finding of non-
22
infringement.
23
24 d. There Is No Substantial Similarity in Setting.
There is no similarity in setting. Plaintiffs Work was originally set in Delray,
25
Florida before moving to Half-Moon Bay, California. (See Compl., Ex. D-24).
26
27
28
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1 Midnight Sun is set in a seaside town outside of Seattle, Washington.6
2 The Original Film, Plaintiffs Work, and Midnight Sun all share specific
3 settings the bedroom of a teen girl XP patient; a high school; a secluded spot along
4 the waterfront; a marina; a doctors office; and a hospital. Because these unoriginal
5 settings were either previously expressed in the Original Film or naturally flow from
6 a story about any teenager with a life-threatening disease, these settings cannot be
7 considered among Plaintiffs original expressions for the purpose of the Courts
8 infringement analysis. See Benay, 607 F.3d at 627-28 (the Imperial Palace, the
9 Imperial Armys training grounds, and battle[fields] [ ] in various places in Japan
10 were unprotected settings which flowed naturally from the premise of an American
11 war veteran who travels to Japan to help the Emperor fight a samurai rebellion.).
In addition to being located in a different state, Midnight Sun has several

12
13 specific settings that do not exist in Plaintiffs Work, including: a train station
14 platform; an outdoor high school graduation ceremony; a nerd high school house
15 party; a popular high school house party; an ice cream shop; a photographers dark
16 room; a train; streets of a big city; a crowded, urban concert venue; a state-of-the-art
17 professional recording studio; and a sailboat sailing before sunset. Because these
18 settings are in Midnight Sun but not in Plaintiffs Work, these must be counted
19 among the dissimilar settings for the purposes of the Courts infringement analysis.
20 Plaintiffs Work has many specific settings that are not in Midnight Sun,
21 including: a luxurious mansion on the wealthy side of town; a small, dilapidated
22 house in a run-down neighborhood on the poor side of town; a private section of a
23 rich beach; a stuffed gym for a high school graduation ceremony; Camp Shield for
24 XP children; a public transit bus; a high school swimming pool mocked up as a hot,
25 sandy beach; an ocean cliff an hours drive and another hours hike from Delray;
26
6
The setting in the 2017 film Midnight Sun is not, as Plaintiff incorrectly alleges,
27 Morro Bay, a small California coastal town and fishing community. (Id. at D-25).
This mistake is attributable to Plaintiffs reliance on the 2013 draft script which, as
28 discussed above, is irrelevant to the present substantial similarity analysis.
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1 hospital surgery room; a small, candlelit wedding chapel; a sailboat sailing after
2 sunrise; and a swim meet at UCLA in sunny southern California. Because these
3 settings are in Plaintiffs Work but not in Midnight Sun, these must be counted
4 among the dissimilar settings for the purposes of the Courts infringement analysis.
5 After filtering and disregarding the many unoriginal and unprotectable settings
6 of Plaintiffs Work, the remaining settings are so few and dissimilar to those of
7 Midnight Sun that this Court must find that no substantial similarity of setting exists.
8 This factor weighs in favor of a finding of non-infringement.
9 e. There Is No Substantial Similarity in Mood.
10 To the extent all three works exhibit varying moods of escapism, romance,
11 melancholy and redemption, the Original Film exhibits them first so they cannot be
12 original to or protectable by Plaintiffs Work and these moods arise naturally from
13 the premise of a sheltered XP teen aching to get out of the house, pursuing whoever
14 and whatever life offers for attraction, experiencing the hurt of a break-up, knowing
15 that time is running out, and creating art that expresses her journey. Rice, 330 F.3d
16 at 1177 (concluding that the moods of secrecy and mystery in the magic genre are
17 generic [and] constitute scenes a faire) (emphasis in original).
18 Moreover, these moods develop differently in the two works. Midnight Sun
19 maintains a lighter, more buoyant mood with the temperamentally-balanced boy and
20 dad roles orbiting the protagonist; whereas Plaintiffs Work summons a heavier,
21 more dramatic mood with the hyper-protective mom and intense boy pressing on the
22 protagonist. Given the unprotectable and dissimilar moods, this Court must find as a
23 matter of law that no substantial similarity of moods exists. This factor favors a
24 finding of non-infringement.
25 f. There Is No Similarity in Pace.
26 Plaintiff fails to allege any similarity between the pace of her work and
27 Midnight Sun. The pace of Plaintiffs truncated 31-page treatment inevitably differs
28
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1 from the pace of a completed film with an approximate running time of 86 minutes.
2 Nonetheless, even the most charitable review reveals a substantially different pace.
3 The girl-boy storyline is linear and streamlined from the beginning of Midnight Sun
4 when she watches him from her window to her posthumous letter to him at the end,
5 sparingly broken up with medical scenes showing her health decline over the course
6 of the film. In contrast, the boy-girl story in Plaintiffs Work is broken up more
7 frequently with non-medical scenes, trips to Camp Shield, a focus on the boys home
8 life, including several scenes with the boys poor parents, and the time spent by the
9 girl receiving wisdom and getting advice from the homeless sage, Jon-Jon.
10 Given the dissimilar paces, this Court must find that no substantial similarity
11 of pace exists and weigh the dissimilarities in favor of a finding of non-infringement.
12 g. There Is No Substantial Similarity in Dialogue.

13 The Complaint fails to allege any similarities in the dialogue a failing which
14 is fatal to her claim. See Olson, 855 F.2d at 1450 ([E]xtended similarity of dialogue
15 [is] needed to support a claim of substantial similarities.); Risdon v. Walt Disney
16 Prods., No. 83 CIV. 6595, 1984 WL 1181, at *3 (S.D.N.Y. Nov. 2, 1984) (Aside
17 from the substance of the stories in the two works, the dialogue is an important basis
18 of comparison.). The complete lack of any alleged similarity in dialogue
19 underscores the dissimilarity of the works.
20 Moreover, most of the dialogue in Plaintiffs Work is spoken by characters or
21 about subject matter wholly absent from Midnight Sun. (See, e.g., Compl., Ex. A at
22 p. A5 (the boy grunts through breakfast with his parents), A16 (girls mom wakes her
23 up for a doctor visit), A17 (homeless man counsels the girl about love), A18 (girl and
24 boy have a spirited spat about love and her failure to attend his swim meet), A19
25 (boys mom affirms to the boy his goodness), A20 (doctor runs interference for girl
26 with her mom, explaining that the girl is in love), A21 (girl discusses with her mom
27 how they tried to get deceased dad to stop smoking), A21 (boy challenges his dad to
28 follow his own advice), A23 (girls aunt blubbering away about her own dating life
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1 and checking in on girl), A24 (girl persuading her mom to resume writing novels),
2 A27-28 (girl converses with her aunt in hospital waiting room because the boy had a
3 concussion), A29 (girl apologizes to mom for lying, describes glorious feeling of
4 watching the sun rise for twenty minutes), A30-31 (girls aunt argues to girls mom
5 about the boy on the front lawn screaming to get an audience), and A32 (the boy tells
6 deceased girls mom that girl wanted mom to have her writing journal)).
7 Plaintiffs failure to allege any similarities in dialogue is no accident. None
8 exist. Consequently, this factor weighs in favor of a finding of non-infringement.
9 h. There Is No Substantial Similarity in Sequence of Events.
10 The sequence of events refers to the actual sequence of the scenes, not just
11 having similar scenes out of sequence. Bernal v. Paradigm Talent & Literary
12 Agency, 788 F. Supp. 2d 1043, 1072 (C.D. Cal. 2010). The sequencing of events in
13 the Original Film and Midnight Sun are virtually identical. (See II.A, supra).
14 Paragraph 28 of the Complaint alleges a sequence of twenty-one (21) events that
15 define the Original Film, a sequence that holds true for nearly all of Midnight Sun.
16 To the extent the sequence of events of Plaintiffs Work align only in the most
17 general way (XP girl sees boy, meets boy, dates boy, suffers exposure on date with
18 boy, rejects boy, reunites with boy), it was previously expressed in the Original Film,
19 is not protectable in Plaintiffs Work, and must be filtered from consideration when
20 performing the substantial similarity test. To the extent Plaintiffs Work and
21 Midnight Sun have similar events absent from the Original Film, those events must
22 be in the same sequence, not out of order, but they are not. Given the overall
23 dissimilarity of sequenced events, this Court must find that no substantial similarity
24 of sequence of events exists and that this factor favors a finding of non-infringement.
25 i. Plaintiffs Chart of Alleged Similarities Should Be Rejected.
26 Courts have consistently rejected endeavors to manufacture the appearance of
27 a valid copyright claim by pointing to a skewed, self-serving chart of plucked-out
28
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1 purported similarities between two works. See, e.g., Bernal, 788 F. Supp. 2d at 1061
2 (rejecting a 133-page chart indicating a side-by-side comparison of certain events,
3 dialogue, and characters); Kouf, 16 F.3d at 1045-46 (finding works not to be
4 substantially similar despite a compilation of random similarities scattered
5 throughout the works). Courts are particularly cautious in finding infringement
6 based on a list of random similarities scattered throughout works. Shame on You,
7 2015 WL 4885221, at *16. Scattershot lists of random fragments and characteristics
8 are inherently subjective and unreliable, Litchfield v. Spielberg, 736 F.2d 1352,
9 1356 (9th Cir. 1984), and cannot support a finding of substantial similarity.
10 Williams, 84 F.3d at 590.

11
j. Leave to Amend Would Be Futile.

12 The scales tilt toward dissimilarity in the weighing of every legal factor within
13 the extrinsic test. No additional pleadings can influence the lopsided tilt of this
14 heavy reality. Plaintiffs infringement claim should therefore be dismissed with
15 prejudice. See Zella, 529 F. Supp. 2d at 1130-31; Gilbert v. New Line Prods., Inc.,
16 No. CV 09-02231 RGK (RZx), 2009 WL 7422458, at *6 (C.D. Cal. Nov. 16, 2009)
17 (dismissing plaintiffs claim with prejudice after determining that there was no
18 substantial similarity because no additional facts would allow [plaintiff] to prevail
19 in her claim); Campbell, 718 F. Supp. 2d at 1156 (denying leave to amend where
20 works were not substantially similar as a matter of law).
21 As this Court previously held in Silas, [i]n the context of copyright, when a
22 plaintiff is unable to demonstrate that a defendants work is substantially similar to
23 its copyrighted work, the court may dismiss a plaintiffs case with prejudice. 2016
24 WL 440919, at *20.
25 B. Plaintiffs Other Claims Are Legally Deficient.
26 Plaintiff alleges but fails to state other claims in addition to her copyright
27 infringement claim. The Court must dismiss these claims pursuant to Rule 12(b)(6).
28
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1. The Breach of Contract Claim Is Barred by the Statute of
1 Limitations, Novation, Statute of Frauds and Lawful Remake.
2
Plaintiff alleges that two oral contracts were breached. First, Plaintiff alleges
3
that she entered into an oral contract with Rickard and Ou wherein: Plaintiff would
4
deliver her treatment; in exchange, Rickard and Ou would attach her as
5
writer/director (Original Contract). (Compl., 95).
6
Second, Plaintiff alleges that she entered into a subsequent oral contract with
7
Rickard and Ou wherein: Plaintiff would forego bringing her alleged claims for
8
breach of the Original Contract based on Rickard and Ous failure to attach her to the
9
project; in exchange, Rickard and Ou would promise not to use or disclose Plaintiffs
10
Work (Second Contract). (Id., 61, 96).
11
Plaintiff cannot maintain a claim for breach of either contract.

12
a. The Original Contract Is Barred by Time and Novation.
13
Under California law, a claim for breach of an oral contract is subject to a two-
14
year statute of limitations. Cal. Civ. Proc. Code 339; see Taguinod v. World Sav.
15
Bank, FSB, 755 F. Supp. 2d 1064, 1072 (C.D. Cal. 2010). Here, Plaintiff alleges the
16
oral Original Contract was breached, at the latest, in early 2013 when Rickard
17
informed her expressly, unequivocally and in writing that she would not be
18
attached as the director of Midnight Sun. (Compl., 57). The claim expired in early
19
2015. The complaint was filed in December 2016. Consequently, the Original
20
Contract is barred by Californias two-year statute of limitations.
21
Novation is the substitution of a new obligation for an existing one. Cal.
22
Civ. Code 1530. The effect of a novation is to make the original agreement a
23
nullity (that is, void and of no effect), and the rights of the new parties are governed
24
solely by the new agreement. Eckart v. Brown, 34 Cal. App. 2d 182, 187 (1939);
25
see also Davisson v. Faucher, 105 Cal. App. 2d 445, 447 (1951) (By the novation
26
the old oral contract, and all obligations arising out of it, were canceled and
27
obliterated as completely as though it had never had existence.) (quoting Beckwith
28
-24-
LA 52037902
1 v. Sheldon, 165 Cal. 319, 323 (1913)). Here, Plaintiff alleges that she would forego
2 pursuing her claims for breach of the Original Contract in exchange for entering the
3 Second Contract. (Compl., 61 (emphasis added)). This is a novation. Plaintiff
4 admits she agreed to nullify the Original Contract when she entered into the Second
5 Contract. Having voided the Original Contract, Plaintiff is barred by the doctrine of
6 novation from claiming breach of the Original Contract.
7 b. The Second Contract Is Barred by the Statute of Frauds,
Statute of Limitations, and Lawful Derivation.
8
9 Plaintiffs claim of breach of the Second Contract equally fails. The Statute of
Frauds requires that any contract which cannot be performed within one year must be
10
11 in writing. See Cal. Civ. Code 1624(a)(1) ([a]n agreement that by its terms is not
to be performed within a year from the making thereof must be reduced to writing).
12
13 The Second Contract is unenforceable under the Statute of Frauds, as it
14 requires Rickard and Ou to refrain from using or disclosing Plaintiffs Work
15 indefinitely. (Compl., 61). Such a permanent obligation cannot be performed
16 within one year. Because the Second Contract was not reduced to writing, it is
17 barred by the Statute of Frauds and cannot give rise to a viable breach claim. See
18 Summerhays v. Scheu, 10 Cal. App. 2d 574, 576-77 (1935) (oral agreement to refrain
19 from use of inventions cannot be performed within one year, and thus barred by the
20 statute of frauds).
21 Plaintiffs Complaint alleges that the Second Contract was breached no later
22 than July 11, 2013 the date when Rickards legal representatives sent her a letter
23 claiming that Plaintiffs Work was derived from the Original Film, and that Rickard
24 possessed the exclusive right to exploit all of the underlying rights in the Original
25 Film. (Letter). (Compl., 65). This Letter unequivocally placed Plaintiff on notice
26 of Rickards view that she possesses no rights in her Work and was incapable of
27 restricting Rickard and Ou from developing Midnight Sun. (See Declaration of Ryan
28
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LA 52037902
1 Goodell (Goodell Decl.), at 3, Ex. 1).7 This Letter triggered the two-year statute
2 of limitations which expired in July of 2015. Consequently, Plaintiffs claim for
3 breach of the Second Contract, filed in December 2016, should be dismissed.
4 Finally, the validity of Plaintiffs claim for breach of the Second Contract
5 depends on establishing that Rickard and Ou actually used her Work. For all the
6 reasons discussed above, Midnight Sun is a lawful and faithful remake derived from
7 the Original Film, which is not substantially similar to Plaintiffs Work. Plaintiff
8 cannot, therefore, establish a breach of the Second Contract. See Hollywood
9 Screentest of Am., Inc. v. NBC Universal, Inc., 151 Cal. App. 4th 631, 649 (2007)
10 (granting summary judgment on express and implied contract claims because

11 evidence of independent creation prevented the required element of use); 5 Nimmer
& Nimmer, Copyright (2015) The Law of Ideas, 19D.07[A], p. 19D86 (rel. 72
12
13 4/2007) (Regardless of the legal theory used to impose an obligation on the idea-
14 recipient, the recipient is legally obligated to pay only if the idea that the recipient
15 used was the one actually received from plaintiff.).
16 c. Non-Parties to Both Alleged Contracts, Wrigley Pictures and
MSLLC, Cannot Be Sued for Breach Thereof.
17
18 Under California law, a claim for breach of contract, by its very nature,
19 requires a binding agreement between the parties. See Applied Equip. Corp. v. Litton
20 Saudi Arabia Ltd., 7 Cal. 4th 503, 514 (1994) (Contract law exists to enforce legally
21 binding agreements between parties); Richman v. Hartley, 224 Cal. App. 4th 1182,
22 1186 (2014) (To prevail on a cause of action for breach of contract, the plaintiff
23 must prove (1) the contract, (2) the plaintiffs performance of the contract or excuse
24 for nonperformance, (3) the defendants breach, and (4) the resulting damage to the
25 plaintiff.); McKell v Wash. Mut., Inc., 142 Cal. App. 4th 1457, 1489 (2006) (cause
26 of action for breach of contract requires pleading of a contract); see also Osei v.
27 7
While not attached to the Complaint, the Court may incorporate the Letter by
reference into the complaint for purposes of deciding a dismissal motion. See Davis
28 v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1159-60 (9th Cir. 2012).
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LA 52037902
1 Countrywide Home Loans, 692 F. Supp. 2d 1240, 1253 (E.D. Cal. 2010) (A cause
2 of action for breach of contract requires: (1) that a contract exists between the
3 parties) (emphasis added). Accordingly, as a matter of law (and common-sense), a
4 non-party to a contract cannot be held liable for a breach of that contract. See
5 Clemens v. Am. Warranty Corp., 193 Cal. App. 3d 444, 452 (1987) (Under
6 California law, only a signatory to a contract may be liable for any breach.).
7 Here, Wrigley Pictures and MSLLC were not parties to either the Original
8 Contract or Second Contract and, therefore, cannot be held liable for breaching those
9 contracts. While Plaintiff endeavors to dodge this fatal fact by claiming that Rickard
10 and Ou assigned rights in the Midnight Sun project to Wrigley Pictures and MSLLC
11 (Compl., 97), the mere assignment of rights under an executory contract does not
cast upon the assignee any of the personal liabilities imposed by the contract upon
12
13 the assignor. Weidner v. Zieglar, 218 Cal. 345, 349 (1933). Stated otherwise, even
14 if Rickard and Ou assigned rights in the Original Contract and Second Contract to
15 Wrigley Pictures and MSLLC, that does not equate to a finding that Rickard and Ou
16 assigned the attendant obligations to Wrigley Pictures and MSLLC.
17 Moreover, [t]o allege that a company is a successor-in-interest because it
18 expressly or impliedly agreed to assume the liabilities of a predecessor, plaintiff
19 must not only plead the existence of an assumption of liability but either the terms
20 of that assumption of liability (if express) or the factual circumstances giving rise to
21 an assumption of liability (if implied). Gerritsen v. Warner Bros. Entmt Inc., 116
22 F. Supp. 3d 1104, 1127 (C.D. Cal. 2015). Here, Plaintiff has pled neither the terms
23 of express assumption nor facts giving rise to implied assumption. Instead, Plaintiff
24 merely alleges on information and belief that Wrigley Pictures and MSLLC
25 became bound as successors in interest by either by the express terms of the
26 assignments or by operation of law. (Compl., 97). Plaintiffs conclusory
27 allegations regarding unspecified terms of a purported agreement are insufficient to
28 allege a plausible successor liability claim under either an express or implied
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LA 52037902
1 assumption of liability. See Gerritsen, 116 F. Supp. 3d at 1128 (finding book author
2 failed to allege plausible claims of successor-in-interest liability against motion
3 picture companys parent corporation).
4 2. The Implied Covenant Claim Is Legally Superfluous.
5 Plaintiffs Breach of the Implied Covenant of Good Faith and Fair Dealing
6 claim is based on allegations identical to those made in support of the accompanying
7 breach of contract claim. Consequently, this claim should be dismissed for the same
8 reasons the breach of contract claim should be dismissed; specifically, it is barred by
9 the statute of limitations, the doctrine of novation and the statute of frauds, and also
10 inapplicable to Wrigley Pictures and MSLLC.

11 Moreover, even if Plaintiffs Breach of Contract claim were not defective (it
12 is), the claim for breach of the implied covenant of good faith and fair dealing should
13 nonetheless be disregarded as superfluous. See Guz v. Bechtel Natl, Inc., 24 Cal.
14 4th 317, 327 (2000) (where breach of an actual term is alleged, a separate implied
15 covenant claim, based on the same breach, is superfluous.). [Where] allegations
16 do not go beyond the statement of a mere contract breach and, relying on the same
17 alleged acts, simply seek the same damages or other relief already claimed in a
18 companion contract cause of action, they may be disregarded as superfluous as no
19 additional claim is actually stated. Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222
20 Cal. App. 3d 1371, 1400-01 (1990) (affirming trial courts sustaining of demurrer
21 without leave to amend); see also Bionghi v. Metro. Water Dist. Of S. Cal., 70 Cal.
22 App. 4th 1358, 1370 (1999) (affirming dismissal of implied covenant claim that
23 relies on the same acts, and seeks the same damages as contract breach claim).
24 Because it is a replica of the Breach of Contract claim, the Breach of Implied
25 Covenant claim is superfluous and should be dismissed.
26
27
28
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LA 52037902
3. Plaintiffs Breach of Confidence Claim Fails Because It Is Time-
1 Barred and Because Plaintiff Cannot Establish a Required Element
2 of the Claim.
Plaintiffs Breach of Confidence claim is governed by a two-year statute of
3
limitations. See Cal. Civ. Proc. Code 339(1) (limitations period for an obligation
4
not founded upon an instrument of writing is two years). This is premised on the
5
same conduct alleged in connection Plaintiffs breach of the Second Contract claim:
6
that Rickard and Ou used Plaintiffs Work in connection with Midnight Sun. (Cf.
7
Compl., 96 with 112). As discussed above, the Letter unequivocally advised of
8
Rickards position that Plaintiff possessed no rights in her Work, and demanded that
9
she immediately cease and desist from distributing the Treatment as it utilizes the
10
underlying rights to the Picture controlled by Mr. Rickard. This Letter triggers the
11
two-year statute of limitations, and Plaintiffs claim for Breach of Confidence is

12
time-barred. Lee v. Escrow Consultants, Inc., 210 Cal. App. 3d 915, 921 (1989)
13
(once the plaintiff becomes aware of facts which would make a reasonably prudent
14
person suspicious, the duty to investigate arises, and he may then be charged with
15
knowledge of facts that would have been discovered by such an investigation.).
16
Plaintiffs Breach of Confidence further fails in that she must establish that
17
Rickard and Ou disclosed or used confidential information. Entmt Research Grp.,
18
Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1227 (9th Cir. 1997). As
19
discussed above, Plaintiff is incapable of establishing that Rickard and Ou used her
20
Work as Midnight Sun was lawfully derived from the pre-existing Original Film. See
21
Hollywood Screentest of Am., Inc., 151 Cal. App. 4th at 649 (granting summary
22
judgment on breach of confidence claim because evidence of independent creation
23
prevented the required element of use). Additionally, Plaintiffs inability to establish
24
substantial similarity precludes her from establishing that Rickard and Ou used any
25
confidential information. See A Slice of Pie Prods., LLC v. Wayans Bros. Entmt,
26
487 F. Supp. 2d 41, 52 (D. Conn. 2007) (applying California law) (given the
27
Courts assessment of lack of substantial similarity between the works with respect
28
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LA 52037902
1 to, inter alia, their respective plots, elements, and themes, which assessment is used
2 to infer use, plaintiff has insufficient evidence of use by defendants of plaintiffs
3 screenplay and/or the ideas therein.). Because Plaintiff cannot establish an essential
4 element of her Breach of Confidence claim, the Court should dismiss the claim.
5 4. The Breach of Fiduciary Duty Claim Fails Absent a Fiduciary
Relationship and Absent Substantial Similarity.
6
7 Under California law, not every pitch triggers a heightened fiduciary
8 obligation. See Davies v. Krasna, 14 Cal. 3d 502, 511 (1975) (noting that a pitch to a
9 prospective purchaser who is not otherwise a fiduciary may impose upon

defendant a duty to refrain from unauthorized disclosure of the idea, but [is]
10
11 insufficient to impose upon him the fiduciary-like duties that arise from a
confidential relationship.); Nwabueze v. AT & T Inc., No. C 09-1529 SI, 2011 WL

12
13 332473, at *20 (N.D. Cal. Jan. 29, 2011) (dismissing breach of fiduciary duty claim
14 where plaintiffs passing of confidential information to defendant did not by itself
15 create fiduciary relationship).
16 Here, like in Davies, Rickard and Ou were not fiduciaries to Plaintiff; rather,
17 Rickard and Ou were merely prospective purchasers of Plaintiffs treatment.
18 Plaintiffs Complaint alleges insufficient facts to establish a fiduciary relationship.
19 Moreover, the Breach of Fiduciary claim fails because the works at issue are not
20 substantially similar. See Ryder v. Lightstorm Entmt, Inc., 246 Cal. App. 4th 1064,
21 1073 (2016), review denied (July 13, 2016) (stating that for fiduciary duty claims,
22 the works must be substantially similar) (emphasis in original).
23 5. The Fraud Claim Is Time-Barred and Lacks Requisite Specificity.

24 Plaintiff premises her fraud claim on three statements and/or omissions
25 allegedly made by Rickard and Ou: that they would attach her as a writer or director
26 if they used one of the ideas she pitched (First Statement) (Compl., 123(a)); that
27 they would attach her as the writer/director if they used her Treatment in remaking
28
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LA 52037902
1 the Original Film (Second Statement) (Id., 123(b)); and that they made
2 affirmative representations and/or misleading omissions and/or false promises
3 about their alleged intent to use Midnight Juliet (Third Statement) (Id., 125
4 (emphases added).)
5 Plaintiffs fraud claim is subject to a three-year statute of limitations. See Cal.
6 Civ. Proc. Code 338(d) (stating [a]n action for relief on the ground of fraud or
7 mistake is three years). The limitations period starts to run from the time when the
8 plaintiff discovers or could have discovered the alleged fraud. See Fox v. Ethicon
9 Endo-Surgery, Inc., 35 Cal. 4th 797, 807 (2005).
10 Here, Plaintiff discovered the alleged fraud no later than July 11, 2013 the
11 date she was expressly advised: (i) that she would not be attached as a writer/director
and (ii) of Rickards position that Plaintiffs Work was derived from rights he
12
13 already held in the Original Film. (See Compl., 57 (stating that in early 2013
14 Rickard informed Plaintiff that she would not be attached as writer-director)
15 (emphasis in original), 65 (stating that on July 11, 2013 Rickards representatives
16 sent a letter claiming that Midnight Juliet was derived from rights held by Rickard
17 in Midnight Sun.); see also Goodell Decl., Ex. 1). The statute of limitations expired
18 on July 11, 2016, so Plaintiffs Fraud claim is time-barred.
19 Pursuant to both California and federal law, fraud allegations must be pled
20 with sufficient specificity to allow [a] defendant to understand fully the nature of
21 the charge made. Roberts v. Ball, Hunt, Hart, Brown & Baerwitz, 57 Cal. App. 3d
22 104, 109 (1976); see Fed.R.Civ.P. 9(b) ([i]n alleging fraud or mistake, a party must
23 state with particularity the circumstances constituting fraud or mistake.). When
24 pleading fraud, [i]t is essential that the facts and circumstances which constitute the
25 fraud should be set out clearly, concisely, and with sufficient particularity to apprise
26 the opposite party of what he is called on to answer, and to enable the court to
27 determine whether, on the facts pleaded, there is any foundation, prima facie at least,
28 for the charge of fraud. Scafidi v. W. Loan & Bldg. Co., 72 Cal. App. 2d 550, 553
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LA 52037902
1 (1946) (emphases added). In order to meet this heightened pleading standard, a
2 plaintiff must allege facts that show the who, what, where, and when of the alleged
3 fraud. Ackerman v. Nw. Mut. Life Ins. Co. 172 F.3d 467, 469 (7th Cir. 1999).
4 Here, the Third Statement lacks the requisite particularity because it fails to
5 specify whether the alleged fraud was perpetuated through a representation or an
6 omission and, thus, fails to apprise Rickard and Ou, at the very least, if they did
7 something or did not do something. Accordingly, Plaintiffs Fraud claim lacks the
8 requisite specificity and must be dismissed.
9 6. Boilerplate Vicarious Liability Claims Fail to Plead Sufficient Facts
as to Wrigley Pictures and MSLLC.
10
11 Although Plaintiff alleges no interaction with Wrigley Pictures and MSLLC,
she has nevertheless named them as defendants to the Breach of Confidence, Breach
12
13 of Fiduciary Duty and Fraud claims under one or more applicable theories of
14 vicarious liability, including agency, ratification, concert of action, aiding and
15 abetting, and/or successor liability by principles of assignment. (Compl., 113,
16 120, 131, 138). These open-ended boilerplate allegations of vicarious liability are
17 insufficient as a matter of law. See Gerritsen, 116 F. Supp. 3d at 1146-48 (finding
18 plaintiff failed to plead sufficient facts of agency or ratification); In re Toyota Motor
19 Corp., 785 F. Supp. 2d 883, 911 (C.D. Cal. 2011) (striking boilerplate
20 agency/ratification allegations as running afoul of Twombly). Accordingly, the Court
21 should dismiss these claims as to Wrigley Pictures, MSLLC and Kirsten.
22 IV. CONCLUSION
23 For the foregoing reasons, Defendants respectfully request that the Complaint
24 by dismissed with prejudice.
25 Dated: February 1, 2017 STROOCK & STROOCK & LAVAN LLP

JAMES G. SAMMATARO
26
27 By: /s/ James G. Sammataro
28 James G. Sammataro
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LA 52037902
1 CERTIFICATE OF SERVICE
2 I hereby certify that on February 1, 2017, a copy of the foregoing
3 DEFENDANTS NOTICE OF MOTION AND MOTION TO DISMISS
4 PLAINTIFFS COMPLAINT; MEMORANDUM OF POINTS AND
5 AUTHORITIES was filed electronically. Notice of this filing will be sent by e-mail
6 to all parties by operation of the courts electronic filing system or by mail to anyone
7 unable to accept electronic filing as indicated on the Notice of Electronic Filing.
8 Parties may access this filing through the courts EM/ECF System.
9
10 /s/ James G. Sammataro

James G. Sammataro
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CERTIFICATE OF SERVICE
LA 52037902

Wolf V Rickard Motion To Dismiss

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Wolf V Rickard Motion To Dismiss

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1 STROOCK & STROOCK & LAVAN LLP

JAMES G. SAMMATARO (State Bar No. 204882)

10 on the following grounds:

10 Memorandum of Points and Authorities, the Declarations of Devin Andre, John

4 II. FACTUAL BACKGROUND ............................................................................ 2

10 III. LEGAL ARGUMENT ....................................................................................... 6

A. Plaintiffs Copyright Infringement Claim Fails as a Matter of

3 f. There Is No Similarity in Pace. ......................................... 20

9 j. Leave to Amend Would Be Futile. .................................... 23

10 B. Plaintiffs Other Claims Are Legally Deficient. .................................... 23

1. The Breach of Contract Claim Is Barred by the Statute of

12 Limitations, Novation, Statute of Frauds and Lawful

22 3. Plaintiffs Breach of Confidence Claim Fails Because It Is

22 Bell Atl. Corp. v. Twombly,

8 Careau & Co. v. Sec. Pac. Bus. Credit, Inc.,

Chase-Riboud v. Dreamworks, Inc.,

8 Gilbert v. New Line Prods., Inc.,

8 Miller v. Universal City Studios,

21 Rice v. Fox Broad. Co.,

No. CV 15-9732-GW(FFMX), 2016 WL 4409191 (C.D. Cal. Aug.

26 Warner Bros. Entmt, Inc. v. X One X Prods.,

12 Cal. Civ. Code 1624(a)(1)........................................................................................ 25

10 The copyright infringement claim is doomed by the comparison of three works

novation, violates the statute of frauds, and is undermined by a lack of privity.

written by Kirsten. (See Compl., 5, The Midnight Sun screenplay deeply

12 incorporates the effective entirety of Wolfs Midnight Juliet treatment; 72-73).

10 3. There Is No Substantial Similarity Between Any Protectable

Application of the extrinsic tests factors shows no substantial similarity exists

14 a. There Is No Substantial Similarity in Plot.

12 b. Midnight Suns Theme Derives from the Original Film,

10 c. There Is No Substantial Similarity in Characters.

12 Setting aside that Will Clayman is neither sufficiently delineated nor

In addition to being located in a different state, Midnight Sun has several

12 g. There Is No Substantial Similarity in Dialogue.

10 Williams, 84 F.3d at 590.

j. Leave to Amend Would Be Futile.

Plaintiff cannot maintain a claim for breach of either contract.

14 requires Rickard and Ou to refrain from using or disclosing Plaintiffs Work

15 indefinitely. (Compl., 61). Such a permanent obligation cannot be performed

10 (granting summary judgment on express and implied contract claims because

10 inapplicable to Wrigley Pictures and MSLLC.

two-year statute of limitations, and Plaintiffs claim for Breach of Confidence is

9 prospective purchaser who is not otherwise a fiduciary may impose upon

confidential relationship.); Nwabueze v. AT & T Inc., No. C 09-1529 SI, 2011 WL

14 where plaintiffs passing of confidential information to defendant did not by itself

15 create fiduciary relationship).

17 Rickard and Ou were merely prospective purchasers of Plaintiffs treatment.

18 Plaintiffs Complaint alleges insufficient facts to establish a fiduciary relationship.

22 the works must be substantially similar) (emphasis in original).

23 5. The Fraud Claim Is Time-Barred and Lacks Requisite Specificity.

14 vicarious liability, including agency, ratification, concert of action, aiding and

15 abetting, and/or successor liability by principles of assignment. (Compl., 113,

17 insufficient as a matter of law. See Gerritsen, 116 F. Supp. 3d at 1146-48 (finding

18 plaintiff failed to plead sufficient facts of agency or ratification); In re Toyota Motor

20 agency/ratification allegations as running afoul of Twombly). Accordingly, the Court

21 should dismiss these claims as to Wrigley Pictures, MSLLC and Kirsten.

24 by dismissed with prejudice.

25 Dated: February 1, 2017 STROOCK & STROOCK & LAVAN LLP

10 /s/ James G. Sammataro

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