Case 2:16-cv-09116-GW-KS Document 49 Filed 02/06/17 Page 1 of 7 Page ID #:675

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 16-9116-GW(KSx) Date February 6, 2017
Title Behany Ashton Wolf v. John Rickard, et al.

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez Katie Thibodeaux
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Edward Muir Anderson Crystal Jonelis
Laura R. Washington
Marvin S. Putnam
PROCEEDINGS: DEFENDANT OPEN ROAD FILMS, LLC'S MOTION TO DISMISS
PLAINTIFF'S COMPLAINT [25]

Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Courts Final
Ruling. Defendants motion is GRANTED WITH LEAVE TO AMEND.

: 05
Initials of Preparer JG
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 1
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Wolf v. Rickard, et al., Case No. 2:16-cv-09116-GW (KSx)

Tentative Ruling on Motion to Dismiss Plaintiffs Complaint

Bethany Ashton Wolf (Plaintiff) sues John Rickard (Rickard), Wrigley

Pictures (Wrigley), Alan Ou (Ou), Boies/Schiller Film Group LLC (B/S),1
Midnight Sun, LLC (Midnight), Eric Kirsten (Kirsten), and Open Road Films, LLC
(ORF) for: 1) copyright infringement (against all defendants) pursuant to 17 U.S.C.
101, et seq.; 2) breach of contract (against Rickard, Ou, Wrigley and Midnight); 3)
breach of the implied covenant of good faith and fair dealing (against Rickard, Ou,
Wrigley and Midnight); 4) breach of confidence (against all defendants other than
ORF); 5) breach of fiduciary duty (constructive fraud) (against all defendants other than
ORF); 6) fraud (against all defendants other than ORF); and 7) negligence (against all
defendants other than ORF).2 Now before the Court is ORFs motion to dismiss the
single claim pled against it, for copyright infringement. A brief summary of the
Complaints general allegations follows, considering that most of those allegations do
not pertain to ORF. The Court will then address those allegations that do relate to ORF.
Plaintiff is an award-winning motion picture writer-director and producer.
Complaint 2; see also id. 12. One of the projects she developed was entitled
Midnight Juliet. Id. 2; see also id. 32, 35 & Exh. B. After Plaintiff pitched
Midnight Juliet to Rickard and Ou in an attempt to have them take it on as part of an
effort to remake a 2006 Japanese film, with Plaintiff attached to the project as writer-
director, negotiations fell apart when Rickard and Ou indicated they only wanted
Plaintiff to be the writer, not the director. See id. 3, 13-14, 24, 40-43, 47-50, 57; see
also id. 28, 38, 123-24. Notwithstanding their promise not to use Midnight Juliet,
Rickard and Ou in fact did so in connection with a remake titled Midnight Sun. See
id. 6, 19, 58-60, 83. The screenplay for Midnight Sun purports to have been
written by Kirsten. See id. 5-6, 18-19, 69, 83 & Exh. C. In fact, the screenplay

1
Plaintiff voluntarily dismissed B/S without prejudice on January 30, 2017. See Docket No. 41.
2
Though not raised by this motion, the Court might strongly consider asking all parties not just those on
this motion, as ORF is only a defendant on the lone claim based on federal law why the Court should not
conclude that the six state law claims in this action predominate within the meaning of 28 U.S.C.
1367(c)(2) such that the Court should decline supplemental jurisdiction over those claims.

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deeply incorporates the effective entirety of Plaintiffs Midnight Juliet treatment.

See id. 5, 73, 84 & Exh. D. On October 13, 2016, industry trades reported that ORF
had acquired a Rickard-produced Midnight Sun film for U.S. theatrical distribution in
the summer of 2017. See id. 6, 19, 83.
Rule 12(b)(6) Standards
Under Rule 12(b)(6), concerning whether a complaint has properly stated a
claim, a court is to (1) construe the complaint in the light most favorable to the plaintiff,
and (2) accept all well-pleaded factual allegations as true, as well as all reasonable
inferences to be drawn from them. See Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir.), amended on denial of rehg, 275 F.3d 1187 (9th Cir. 2001); Pareto
v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998); see also Fleming v. Pickard, 581 F.3d
922, 925 (9th Cir. 2009). The court need not accept as true legal conclusions merely
because they are cast in the form of factual allegations. Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). A complaint does not suffice if
it tenders naked assertion[s] devoid of further factual enhancement. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
556 (2007)).

Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a lack
of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable
legal theory. Balistreri v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 1990);
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008); see
also Twombly, 550 U.S. at 562-63 (dismissal for failure to state a claim does not require
the appearance, beyond a doubt, that the plaintiff can prove no set of facts in support
of its claim that would entitle it to relief). However, a plaintiff must also plead
enough facts to state a claim to relief that is plausible on its face. Johnson, 534 F.3d
at 1122 (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.
In its consideration of the motion, the court is limited to the allegations on the
face of the complaint (including documents attached thereto), matters which are
properly judicially noticeable and documents whose contents are alleged in a

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complaint and whose authenticity no party questions, but which are not physically
attached to the pleading. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th
Cir. 2001); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other
grounds in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); see also
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (indicating that a court may
consider a document on which the complaint necessarily relies if: (1) the complaint
refers to the document; (2) the document is central to the plaintiffs claim; and (3) no
party questions the authenticity of the copy attached to the 12(b)(6) motion).
Analysis
No extensive analysis is necessary here, because the Court will be granting
Plaintiff leave to amend. In brief, in order for Plaintiff to succeed in defending against
this motion, the Court would have to conclude one of two things: 1) that she
successfully pled a claim for direct copyright infringement against ORF; or 2) that the
Court can make a series of rather detailed inferences in her favor in support of a
determination that she adequately pled the vicarious and/or contributory infringement
claims that she undoubtedly did attempt to plead against ORF. For many of the reasons
addressed in ORFs motion and reply papers, the Court is not inclined to reach a
conclusion favorable to Plaintiff with respect to either of these issues.
As to direct copyright infringement, Plaintiffs first claim for relief alleges that
all defendants have infringed and are infringing [her] exclusive rights in the works in
violation of 17 U.S.C. 106, including without limitation engaging in a list of
particular acts. Complaint 90. These identified acts include the assertion that all
defendants engaged in unauthorized copying and distributionto the extent that there
has been any commercial distribution of the KIRSTEN Midnight Sun screenplay and
resulting Midnight Sun motion picture. Id. 90(c). But elsewhere the Complaint
admits that the film is not slated to be released until July 2017. See, e.g., id. 83. The
Complaint also specifically identifies ORF in a sub-paragraph that sets forth allegations
of liability under the doctrines of vicarious liability and contributory infringement.
See id. 90(e). ORF is not otherwise mentioned in paragraph 90s sub-paragraphs. In
other words, there is no claim for direct infringement by ORF in the Complaints first
claim for relief.

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Plaintiff relies on: 1) the general rule of interpreting a plaintiffs complaint to

state any claim that is warranted by the allegations, even if the plaintiff uses the wrong
label for the claim, and 2) the language in paragraph 90 that states the particular list of
infringement allegations was made without limitation. See id. 90. For several
reasons, the Court does not find these arguments persuasive here. First, there is no error
in the label of the claim in general: the first claim for relief is labeled a claim for
copyright infringement, and that is what it is. Second, Plaintiffs list of infringing
activities includes allegations of direct infringement, but not against ORF. Third, the
Court is not contemplating dismissing this claim without leave to amend. There is
nothing preventing Plaintiff from clearing up, by amendment, any confusion regarding
her intent to proceed against ORF under a theory of direct infringement. Absent such
amendment, she is left only with the allegation that ORF acquired distribution rights,
nothing more. She has not presented the Court with any authority indicating that this
act alone the mere acquisition of distribution rights is sufficient to state a claim for
copyright infringement, under any theory, direct or otherwise.3
Danjaq, LLC v. Universal City Studios, LLC, No. CV 14-02527 SJO (Ex), 2014
WL 7882071 (C.D. Cal. Oct. 2, 2014), does not demonstrate otherwise. Plaintiffs own
quotation from that case demonstrates that the plaintiff in that case had actually alleged
the existence of other transitory steps in preparation for actual distribution. See
Docket No. 35, at 20:13-22; see also Danjaq, 2014 WL 7882071, at *6 (indicating that
claims in the case for direct, contributory and vicarious copyright infringement center
on the allegation that Universal purchased the rights to the Section 6 screenplay,
engaged in the preparation, duplication, and distribution of the Section 6 screenplay,
hired writers, actors and producers to work on the Section 6 project, and derived benefit
from it); id. at *7 (Although the film has not been made, Plaintiffs have alleged that
the project has been publicized.).
Her claim against ORF otherwise only survives if the Court is prepared to make
a series of inferences that Plaintiff outlines in her Opposition brief (but that are not

3
ORF does not dispute that actual distribution of an infringing work might constitute direct (rather than
secondary) copyright infringement. Docket No. 25, at 9 n.5. It simply contests whether or not Plaintiff
has even pled a direct infringement claim against it and whether the allegations contain anything other than
an assertion that ORF acquired distribution rights.

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contained in her Complaint) concerning what she describes as post-acquisition, pre-

distribution preparatory activities: things such as causing vendors to make and edit
digital prints of the picture, create trailers and other marketing and advertising
materials, and create closed captioning text and subtitles. Docket No. 26, at 1:16-19;
see also id. at 5:21-25 (describing what Plaintiff believes are the quite reasonable
inference that, after acquiring distribution rights in Midnight Sun, and after receiving
notice of [Plaintiffs] claims, and before [Plaintiff] filed suit (and on an ongoing basis
since [Plaintiff] filed), ORF has moved forward with the ordinary industry preparations
for an imminent theatrical release.); id. at 5:25-6:14; id. at 11:13-26; id. at 21:15-22:7;
id. at 23:17-22; id. at 24:24-27; id. at 25:13-16. Only then could she be said to even be
close to alleging any of the elements for either vicarious or contributory copyright
infringement (beyond conclusory allegations that do not withstand scrutiny under
Twombly and Iqbal). See Luvdarts, LLC v. AT & T Mobility, LLC, 710 F.3d 1068, 1071
(9th Cir. 2013) (Vicarious liability attaches if the Carriers had both the (1) right and
ability to supervise the infringing activity and (2) a direct financial interest in the
activity.) (quoting A & M Records, Inc. v. Napster Inc., 239 F.3d 1004, 1022 (9th Cir.
2001)); id. at 1072 (Liability for contributory copyright infringement attaches if the
Carriers (1) knew of the direct infringement; and (2) they either induced, caused, or
materially contributed to the infringing conduct.); see also id. at 1071 (Vicarious
infringement occurs when one profits from direct infringement while declining to
exercise a right to stop or limit it, and contributory infringement liability requires
inducing or encouraging direct infringement.) (quoting Metro-Goldwyn-Mayer
Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005)); Range Road Music, Inc. v. E.
Coast Foods, Inc., 668 F.3d 1148, 1155 (9th Cir. 2012) (A defendant exercises
control over a direct infringer when he has both a legal right to stop or limit the directly
infringing conduct, as well as the practical ability to do so.) (quoting Perfect 10, Inc.
v. Amazon.com, Inc., 487 F.3d 701, 729 (9th Cir. 2007)); Ellison v. Robertson, 357 F.3d
1072, 1076, 1078 (9th Cir. 2004).
Plaintiff cites no cases actually applying the reasonable inferences rule, let
alone one doing so in as liberal a fashion as she advocates here. Stating that [i]t is
quite fair to say that the inferences are reasonable for those familiar with film

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acquisition and distribution arrangements like this one (as all of the parties to this case
and/or their legal teams are), Docket No. 26, at 11:17-19, Plaintiff seemingly presumes
that this is all that matters on a Rule 12(b)(6) motion such as this. But it is the Court,
not the parties, that applies the Rule 12(b)(6) standard and, therefore, the Court that
decides what inferences are reasonable from the mere allegation that, in October 2016,
it was announced that ORF acquired distribution rights for a film set for theatrical
release in July 2017.
Asking the Court to conclude that all of Plaintiffs suggested inferences are
reasonable because she says the parties would find that they are reasonable is not far off
from asking the Court to somehow take judicial notice of all of the steps that make up
the traditional task of movie distribution in advance of a theatrical release. This Court
may be located in Los Angeles, but it does not necessarily mean that it is an expert in,
or presumes familiarity with, for instance, surfing techniques. The outcome is no
different simply because the subject matter is film distribution.4
In sum, the Court is not prepared to take the reasonable inferences rule that
far, especially when as noted above Plaintiff will be given leave to amend. If she
has facts that she can allege to bolster one or more theories of copyright infringement
against ORF, Plaintiff may add those facts in the next version of her Complaint.
The Court grants ORFs motion, with leave to amend.

4
Nor would this be an instance of the Court clarify[ing] allegations in her complaint whose meaning is
unclear. Pegram v. Herdrich, 530 U.S. 211, 230 n.10 (2000). The Court would plainly be adding
allegations that are not there.