Rupa Marya v. Warner Chappell Music Inc

Filing 264

OPPOSITION to NOTICE OF MOTION AND MOTION to AMEND Amended Complaint, 95 Notice of Motion and Motion for Leave to Amend and File Fifth Amended Complaint 258 /Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint filed by Defendants Summy-Birchard Inc, Warner Chappell Music Inc. (Attachments: # 1 Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 2 Exhibit 1 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 3 Exhibit 2 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 4 Exhibit 3 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 5 Exhibit 4 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 6 Exhibit 5 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 7 Exhibit 6 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 8 Exhibit 7 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 9 Exhibit 8 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 10 Exhibit 9 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 11 Exhibit 10 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint, # 12 Exhibit 11 to Declaration Of Kelly M. Klaus ISO Defendants' Opposition To Plaintiffs' Motion For Leave To Amend And File Fifth Amended Complaint)(Klaus, Kelly)

1 GLENN D. POMERANTZ (State Bar No. 112503)
[e-mail]
2 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
3 MELINDA E. LeMOINE (State Bar No. 235670)
[e-mail]
4 ADAM I. KAPLAN (State Bar No. 268182)
[e-mail]
5 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
6 Thirty-Fifth Floor
Los Angeles, California 90071-1560
7 Telephone: [phone]
Facsimile: [phone]
8
Attorneys for Defendants
9 Warner/Chappell Music, Inc. and
Summy-Birchard, Inc.
10
11
12

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

13 GOOD MORNING TO YOU
PRODUCTIONS CORP.; et al.,
14
Plaintiffs,
15
v.
16
WARNER/CHAPPELL MUSIC, INC.,
17 et al.,
18
19

Defendants.

Lead Case No. CV 13-04460-GHK
(MRWx)
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR
LEAVE TO AMEND AND FILE
FIFTH AMENDED COMPLAINT

Courtroom: 650
Judge:
Hon. George H. King,
Chief Judge

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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

TABLE OF CONTENTS

1

Page

2
3
4
5

I.

Introduction ....................................................................................................... 1

II.

Background........................................................................................................ 3

III.

Argument ........................................................................................................... 5

6
7
8

A.

Legal Standard ........................................................................................ 5

B.

The Court Should Deny Plaintiffs’ Motion For Leave To Amend ......... 6
1.

9

Plaintiffs’ Proposed Class And Tolling Amendments Are
Futile ............................................................................................. 6
(a)

The Proposed Class Amendments Are Facially
Time-Barred...................................................................... 6

(b)

Warner/Chappell Does Not Need To Wait Until
Class Certification To Demonstrate The Futility
Of Plaintiffs’ New Claims ................................................ 7

(c)

14

The Untimely Claims Are Not Saved By Tolling
Rules................................................................................... 9

15

(i)

Plaintiffs Fail To Plead Equitable Tolling
Under The Delayed Discovery Rule ..................... 9

(ii)

Plaintiffs Fail To Plead Tolling Based On
Fraudulent Concealment ..................................... 13

10
11
12
13

16
17
18
19 IV.

2.

Amendment Would Be Prejudicial To Warner/Chappell........... 16

Conclusion ....................................................................................................... 18

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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1

TABLE OF AUTHORITIES
Page(s)

2
3 FEDERAL CASES

4 Acri v. Int’l Ass’n of Machinists & Aerospace Workers,
781 F.2d 1393 (9th Cir. 1986) .......................................................................... 5, 17
5
6 Campbell v. PricewaterhouseCoopers,
No. CIV. S-06-2376 LKK/GGH, 2008 WL 3836972 (E.D. Cal. Aug.
7
14, 2008) ................................................................................................................. 8
8
Deirmenjian v. Deutsche Bank, A.G.,
9
No. CV 06-00774 MMM(CWx), 2006 WL 4749756 (C.D. Cal.
Sept. 25, 2006) ...................................................................................................... 16
10
11 Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco,
792 F.2d 1432 (9th Cir. 1986) .................................................................... 6, 15, 16
12
13 Foman v. Davis,
371 U.S. 178 (1962) ............................................................................................... 5
14
Gen. Tel. Co. of Sw. v. Falcon,
15
457 U.S. 147 (1982) ............................................................................................... 7
16
Jackson v. Bank of Haw.,
17
902 F.2d 1385 (9th Cir. 1990) .......................................................................... 5, 17
18
Juniper Networks v. Shipley,
19
No. C 09-0696 SBA, 2009 WL 1381873 (N.D. Cal. May 14, 2009)................... 15
20 Kanawi v. Bechtel Corp.,
254 F.R.D. 102 (N.D. Cal. 2008) ........................................................................... 8
21
22 Kaplan v. Rose,
49 F.3d 1363 (9th Cir. 1994) ...................................................................... 6, 16, 17
23
24 Keilholtz v. Lennox Hearth Prods. Inc.,
No. C 08-00836 CW, 2009 WL 2905960 (N.D. Cal. Sept. 8, 2009) ........... 2, 8, 10
25
26 Lauter v. Anoufrieva,
No. CV 07-6811 JVS(JC), 2010 WL 3504745 (C.D. Cal. July 14,
27
2010) ..................................................................................................................... 14
28
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1

TABLE OF AUTHORITIES
(continued)

2

Page(s)

3 Lockheed Martin Corp. v. Network Solutions, Inc.,
175 F.R.D. 640 (C.D. Cal. 1997).......................................................................... 17
4
5 Millar v. Bay Area Rapid Transit District,
236 F. Supp. 2d 1110 (N.D. Cal. 2002)............................................................ 6, 17
6
Moore v. Kayport Package Express, Inc.,
7
885 F.2d 531 (9th Cir. 1989) .................................................................................. 5
8
Morongo Band of Mission Indians v. Rose,
9
893 F.2d 1074 (9th Cir. 1990) .............................................................................. 17
10
Ortega v. Natural Balance Inc.,
11
No. CV 13-05942 ABC(Ex), 2013 WL 6596792 (C.D. Cal. Dec. 16,
2013) ....................................................................................................................... 8
12
13 Platt Elec. Supply, Inc. v. EOFF Elec., Inc.,
522 F.3d 1049 (9th Cir. 2008) ............................................................................ 5, 6
14
Robinson v. City of San Bernardino Police Dep’t,
15
992 F. Supp. 1198 (C.D. Cal. 1998) ....................................................................... 6
16
Rutledge v. Boston Woven Hose & Rubber Co.,
17
576 F.2d 248 (9th Cir. 1978) ................................................................................ 14
18
Schramm v. JPMorgan Chase Bank, N.A.,
19
No. LA CV09-09442 JAK(FFMs), 2011 WL 5034663 (C.D. Cal.
Oct. 19, 2011) ......................................................................................................... 8
20
21 Shabaz v. Polo Ralph Lauren Corp.,
586 F. Supp. 2d 1205 (C.D. Cal. 2008) .................................................................. 7
22
23 Yumul v. Smart Balance, Inc.,
733 F. Supp. 2d 1117 (C.D. Cal. 2010) ..................................................... 2, passim
24
STATE CASES
25
26 Cnty. of Fresno v. Lehman,
229 Cal. App. 3d 340 (1991) .................................................................................. 7
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Franck v. J.J. Sugarman-Rudolph Co.,
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40 Cal. 2d 81 (1952) ............................................................................................... 7
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
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1

TABLE OF AUTHORITIES
(continued)

2

Page(s)

3 Grisham v. Philip Morris U.S.A., Inc.,
40 Cal. 4th 623 (2007) .................................................................................... 13, 15
4
5 Long v. Walt Disney Co.,
116 Cal. App. 4th 868 (2004) ............................................................................... 14
6
McKelvey v. Boeing N. Am., Inc.,
7
74 Cal. App. 4th 151 (1999) ....................................................................... 9, 10, 13
8
Nakash v. Super. Ct.,
9
196 Cal. App. 3d 59 (1987) .................................................................................... 7
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FEDERAL STATUTES
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17 U.S.C. § 507(b) ....................................................................................................... 3
12
STATE STATUTES
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14 Cal. Bus. & Prof. Code § 17208 .................................................................................. 6
15 Cal. Civ. Proc. Code § 337(1) ..................................................................................... 7
16 Cal. Civ. Proc. Code § 338 .......................................................................................... 7
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FEDERAL RULES
18
Rule 9(b) ........................................................................................................ 14, 15, 16
19
20 Rule 12 ......................................................................................................................... 4
21 Rule 15 ..................................................................................................................... 3, 5
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 I.

Introduction

2

Plaintiffs’ motion seeks to expand the class definition and toll the statute of

3 limitations by 60 years beyond the applicable dates (June 2009 forward) that
4 Plaintiffs set forth in the now-operative Fourth Amended Complaint and the four
5 complaints that preceded it. This is a transparent and cynical attempt to drive up the
6 cost and burden to Warner/Chappell of litigating this long-pending case and, of
7 course, to increase the case’s in terrorem value. The motion also is fantastical and
8 meritless. The lynchpin of Plaintiffs’ argument as to why they waited more than
9 two years from the filing of the case—and failed to avail themselves of the
10 opportunity in four other amendments—to tack on 60 years to the class period is that
11 only through Phase I discovery could Plaintiffs unearth the “newly discovered
12 evidence (unknown to Plaintiffs prior to this litigation and previously concealed by
13 Defendants)” that supposedly justifies the amendments. Mot. at 6:19-20. That is
14 simply false. The documents that Plaintiffs say could not be obtained until Plaintiffs
15 unearthed them through discovery were in fact hiding in plain sight: in, among
16 other places, the United States Copyright Office, public court records and
17 newspapers and magazines. In fact, since March 2008, many of the documents have
18 been conveniently located on a public website created and hosted by Plaintiffs’
19 litigation consultant, Prof. Robert Brauneis. Prof. Brauneis established this website
20 in 2008—more than a year before the June 2009 outside class date that Plaintiffs
21 pleaded through five consecutive complaints and more than five years before
22 Plaintiffs brought this case—as a companion to a 69-page article that Prof. Brauneis
23 wrote laying out the roadmap for Plaintiffs’ case.
24

Plaintiffs have not come close to showing that they are entitled to so

25 dramatically expand the scope of this case. The Court should deny the motion for
26 either or both of two overarching reasons:
27

[1]

The Proposed Class Definition and Tolling Amendments Are

28 Futile: Plaintiffs insist that the Court cannot consider the sufficiency of the
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 proposed amendments to their complaint until the class certification hearing,
2 currently set for February 22, 2016. Nonsense. Courts can and do dismiss plainly
3 time-barred class claims where the allegations that plaintiffs make fail to meet the
4 standards for tolling. See, e.g., Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117,
5 1130-33 (C.D. Cal. 2010); Keilholtz v. Lennox Hearth Prods. Inc., No. C 08-00836
6 CW, 2009 WL 2905960, at *3-5 (N.D. Cal. Sept. 8, 2009). That is exactly the case
7 with the proposed tolling amendments in Plaintiffs’ Fifth Amended Complaint.
8

One of the core requirements to plead equitable tolling is that “the plaintiff

9 must specifically plead facts which show … the inability to have made earlier
10 discovery [of facts necessary to put the plaintiff on notice of the claim] despite
11 reasonable diligence.” Yumul, 733 F. Supp. 2d at 1130 (citation omitted). As noted
12 above, the very documents that Plaintiffs claim are foundational to the proposed
13 tolling amendments were publicly available for decades before the 2009 date, and
14 many of them were posted to a website by Prof. Brauneis in 2008. (Prof. Brauneis
15 himself appeared on network television in July 2008, proclaiming that a court would
16 likely find Happy Birthday in the public domain.) Moreover, the very allegations
17 and documents that Plaintiffs put forward in justifying an extension of the
18 limitations period back to 1949 completely undermine Plaintiffs’ assertion that
19 licensees were unable to discover the relevant facts. Those allegations and
20 documents show that for decades actual licensees that Plaintiffs seek to add to the
21 class knew and raised the same theories of invalidity that Plaintiffs say all class
22 members did not know.
23

[2]

The Proposed Class And Tolling Amendments Are Extraordinarily

24 Prejudicial: Plaintiffs’ expansion of the class and potential damages going back to
25 1949 would blow the doors off of the limited discovery necessary to bring this case
26 to closure by the May 31, 2016 trial date. Discovery requests that Plaintiffs already
27 served—and that Plaintiffs admit they would not hold in abeyance while the Court
28 considered their plea to dramatically expand the scope of this case—show that
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 Plaintiffs want to force Warner/Chappell to search for and produce licenses, revenue
2 statements, correspondence and numerous other documents going back to 1949,
3 almost 40 years before Warner/Chappell acquired Summy.
4

It is difficult to imagine more futile allegations, or allegations more

5 deliberately calculated to cause maximum prejudice to the opposing party, than
6 those Plaintiffs seek to add at this late juncture.
7

Before proceeding, it is important to note two items that are not at issue here.

8 First, Plaintiffs’ motion is not about amending their complaint to add allegations
9 about the 1922 Cable Company publication. That is a calculated distraction. This
10 publication is already in the record, and through the December 15 trial the pleadings
11 will be deemed to conform to this evidence. Fed. R. Civ. P. 15(b)(2). Second, the
12 arguments that Warner/Chappell raised in its 2013 motion to dismiss (Dkt. 42) are
13 not at issue on this motion, including whether the Copyright Act’s three-year
14 limitations period, 17 U.S.C. § 507(b), preempts any longer state-law limitations
15 period that may be applicable (the maximum being four years). Warner/Chappell
16 preserves the arguments it raised previously and on which the Court did not rule in
17 connection with the original motion to dismiss, and will present those arguments in
18 its motion to dismiss, as per the Stipulation and Order at Dkt. 262.
19 II.

Background

20

In June and July 2013, each of the named plaintiffs filed putative class action

21 complaints alleging a four-year class period. Declaration of Kelly M. Klaus (“Klaus
22 Decl.”) ¶ 2. Plaintiffs filed a consolidated first amended complaint in July 2013
23 (Dkt. 21), a second amended consolidated complaint in September 2013 (Dkt. 59), a
24 third amended consolidated complaint in November 2013 (Dkt. 72) and a fourth
25 amended consolidated complaint in April 2014 (Dkt. 95). Each of these four
26 amended complaints also alleged a putative four-year class. The class definition
27 remained at four years until the Court ruled on the cross-motions for summary
28 judgment on the evening of September 22, 2015. Just a few hours later, the Los
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 Angeles Times reported that, according to Plaintiffs’ lead counsel, “plaintiffs will
2 pursue Warner for royalties paid since ‘at least’ 1988, and could also ask the
3 company to repay royalties that have been collected all the way back to 1935.”
4 Klaus Decl. Ex. 1 at 11-12.
5

Plaintiffs sent Warner/Chappell a proposed Fifth Amended Complaint on

6 October 8, 2015, that sought to extend the putative class definition by 60 years—
7 alleging claims dating to 1949, rather than 2009 as pleaded by Plaintiffs in their first
8 five complaints—and to add allegations regarding equitable tolling. Klaus Decl.
9 ¶ 7. Plaintiffs sent Warner/Chappell a revised version on October 14, 2015. Id. ¶ 8.
10 Warner/Chappell responded that it would stipulate to the amendment, but asked for
11 a deferral of discovery relating to claims between 1949 and 2009 until the Court
12 resolved Warner/Chappell’s arguments against those new allegations by way of a
13 Rule 12 motion. Warner/Chappell also asked Plaintiffs, as part of the meet and
14 confer process, to identify the factual support for their proposed allegations. Id. ¶ 9.
15

On October 20, Plaintiffs sent Warner/Chappell another revised version of

16 their proposed Fifth Amended Complaint, which contained additional allegations
17 purportedly supporting their tolling theories. Id. ¶ 10. On October 23,
18 Warner/Chappell prepared a stipulation regarding the filing, which reiterated the
19 earlier request to defer discovery on the newly expanded class claims. Plaintiffs
20 refused to agree to the limited deferral of discovery, claiming that it was not
21 possible because of the schedule imposed by the Court at the October 19 status
22 conference. Id. ¶ 12. Plaintiffs repeat this claim in their motion. (Mot. at 4:14-22.)
23

However, at the October 19 status conference, Warner/Chappell raised the

24 possibility that a significantly expanded class definition, among other things, would
25 impose a discovery burden that would make an April 2016 cut-off unrealistic. The
26 Court said that it would “set a short discovery period,” but that “depending upon
27 what happens after the Rule 12 motions, if it turns out that this discovery completion
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 date is no longer appropriate, then you folks can call it to my attention. I’ll be
2 happy to make an appropriate extension of it.” 10/19/15 Hearing Tr. at 23:16-21.
3

On October 21, Plaintiffs served Warner/Chappell with document requests

4 and interrogatories relating to Plaintiffs’ proposed claims dating back to 1949. The
5 broad document requests ask for, inter alia, all licenses relating to Happy Birthday
6 since 1949; all revenue statements relating to Happy Birthday licenses since 1949;
7 all documents identifying agents who have collected royalties for Happy Birthday
8 since 1949; all documents showing royalties paid to the Hill Foundation since 1949;
9 and various other records dating back to 1949 or 1988. Klaus Decl. ¶ 11 & Exs. 2-3.
10 III.

Argument

11

A.

12

Under Rule 15, “leave to amend is not to be granted automatically.” Jackson

Legal Standard

13 v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990). Grounds for denying leave to
14 amend include “bad faith or dilatory motive on the part of the movant … undue
15 prejudice to the opposing party by virtue of allowance of the amendment, [and]
16 futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
17

Futility is by itself sufficient to justify denial of leave to amend. “Leave to

18 amend need not be given if a complaint, as amended, is subject to dismissal.”
19 Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). Thus,
20 leave to add new claims should be denied where those claims would be barred by
21 the applicable statute of limitations. Platt Elec. Supply, Inc. v. EOFF Elec., Inc.,
22 522 F.3d 1049, 1060 (9th Cir. 2008) (affirming denial of leave to amend because the
23 plaintiff’s proposed claims were outside the limitations period and the plaintiff
24 could not establish delayed discovery or fraudulent concealment).
25

Prejudice also suffices to deny leave to amend. Prejudice can be shown

26 where the amendments introduce new theories requiring additional discovery, which
27 may in turn result in further delays in the case. See Acri v. Int’l Ass’n of Machinists
28 & Aerospace Workers, 781 F.2d 1393, 1399 (9th Cir. 1986); Jackson, 902 F.2d at
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 1387-88 (finding that the “burden of necessary future discovery” justified denying
2 leave to amend). “Expense, delay, and wear and tear on individuals and companies
3 count toward prejudice.” Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994).
4 Other factors supporting denial of leave to amend include the plaintiff’s bad faith,
5 Millar v. Bay Area Rapid Transit District, 236 F. Supp. 2d 1110, 1113 (N.D. Cal.
6 2002), and the fact that a plaintiff has been granted leave to amend previously,
7 Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d
8 1432, 1438 (9th Cir. 1986).
9
10

B.

The Court Should Deny Plaintiffs’ Motion For Leave To Amend

11

Plaintiffs’ Proposed Class And Tolling Amendments Are
Futile

12

(a)

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1.

The Proposed Class Amendments Are Facially TimeBarred

Amendments that propose to plead time-barred claims are futile. Platt, 522
F.3d at 1060; Robinson v. City of San Bernardino Police Dep’t, 992 F. Supp. 1198,
1209 (C.D. Cal. 1998). Here, Plaintiffs’ proposed expansion of the class is timebarred on its face. Plaintiffs seek to extend the class definition by 60 years and
thereby assert claims that date back to 1949. As Plaintiffs acknowledged in
proposing a class dating to June 2009 in their first five complaints, the longest
statute of limitations that could conceivably apply to any of their claims would be
four years. That is the applicable limitations period for Plaintiffs’ Unfair
Competition Law (“UCL”) and breach of contract claims. Cal. Bus. & Prof. Code

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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 § 17208 (UCL); Cal. Civ. Proc. Code § 337(1) (breach of written contract). 1 The
2 remaining claims are subject to two- or three-year limitations periods. 2
(b)

3
4

Warner/Chappell Does Not Need To Wait Until Class
Certification To Demonstrate The Futility Of
Plaintiffs’ New Claims

Plaintiffs argue that their proposed amendments are not futile because “the

5

6 expanded class definition is properly addressed at the class certification stage, not at
7 dismissal for failure to state a claim.” Mot. at 15:5-7; id. at 7 & n.5. Plaintiffs are
8 incorrect. “Where ‘the issues are plain enough from the pleadings to determine
9 whether the interests of the absent parties are fairly encompassed within the named
10 plaintiff’s claims,’ courts may address class certification issues [such as the class
11 definition] in a 12(b)(6) motion.” Shabaz v. Polo Ralph Lauren Corp., 586 F. Supp.
12 2d 1205, 1211 (C.D. Cal. 2008) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
13 147, 160 (1982)).
In particular, courts routinely strike or dismiss class claims that are time-

14

15 barred, including where the claims fail adequately to allege delayed discovery or
16 fraudulent concealment. See id. (striking class allegations for claims outside the
17
18

1

As noted, Warner/Chappell preserves the arguments from its initial motion to
19 dismiss that the Court has not ruled upon, including its arguments relating to
preemption, the applicable limitations period, and whether various of Plaintiffs’
20 state-law causes of action state a claim under applicable law.
21 2 See Dkt. 71 at 2-3 (three-year limitations period applies to Plaintiffs’ declaratory
22 judgment claims under the Copyright Act); Franck v. J.J. Sugarman-Rudolph Co.,
40 Cal. 2d 81, 90 (1952) (two-year limitations period governs actions for money had
23 and received); Cnty. of Fresno v. Lehman, 229 Cal. App. 3d 340, 346 (1991)
24 (applying three-year limitations period of Cal. Civ. Proc. Code § 338 to false
advertising law claim); see also Nakash v. Super. Ct., 196 Cal. App. 3d 59, 70
25 (1987) (“Rescission is not a cause of action; it is a remedy.”) (emphasis in original).
26 The Court has ruled that “Plaintiffs Robert Siegel’s and Majar Productions, LLC’s
claims fall outside the three-year [limitations] period” applicable to Claim One and
27 Claim Two, and dismissed those plaintiffs’ declaratory judgment claims with leave
28 to amend. Dkt. 71 at 3.
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 applicable statute of limitations); Campbell v. PricewaterhouseCoopers, No. CIV.
2 S-06-2376 LKK/GGH, 2008 WL 3836972, at *6 (E.D. Cal. Aug. 14, 2008) (same);
3 Yumul, 733 F. Supp. 2d at 1133 (dismissing putative class action complaint “to the
4 extent it alleges conduct occurring outside the relevant statutes of limitations” and
5 finding that tolling and fraudulent concealment were not adequately alleged);
6 Keilholtz, 2009 WL 2905960, at *3-5 (same). As shown below, denial of leave to
7 amend is appropriate here because the pleadings and the record demonstrate the
8 futility of Plaintiffs’ proposed amendments.
The cases that Plaintiffs cite are inapposite. In all of them, the courts found

9

10 that the plaintiffs adequately alleged delayed discovery and/or fraudulent
11 concealment—and that they did so with respect to both the named plaintiffs and
12 absent class members. 3 Here, by contrast, Plaintiffs have failed to allege that the
13 named plaintiffs are entitled to tolling. More importantly, Plaintiffs’ proposed
14 amendments conclusively prove that other putative class members had actual notice
15 of their claims outside the limitations period. Cf. Schramm, 2011 WL 5034663, at
16 *10-11 (certifying class where there was “no significant individual issues” as to
17 when class members should have known basis of claims and there was “no evidence
18 that any potential class member had actual notice outside the statutory period”).
19
3

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Ortega v. Natural Balance Inc., No. CV 13-05942 ABC(Ex), 2013 WL 6596792,
at *5 (C.D. Cal. Dec. 16, 2013) (finding that “Plaintiffs sufficiently pled delayed
discovery as to their own claims” and “[a]s to the class, Plaintiffs pled generalized
allegations consistent with the elements of the delayed discovery rule”); Schramm v.
JPMorgan Chase Bank, N.A., No. LA CV09-09442 JAK(FFMs), 2011 WL
5034663, at *10-11 (C.D. Cal. Oct. 19, 2011) (granting class certification where
there were “no significant individual issues related to when members should have
known” the bases of their claims and “no evidence that any potential class member
had actual notice outside the statutory period”); Kanawi v. Bechtel Corp., 254
F.R.D. 102, 112 (N.D. Cal. 2008) (finding adequate allegations of fraud and
concealment and citing Taylor v. United Technologies Corp., No. 3:06-CV-1494,
2008 WL 2333120 (D. Conn. June 3, 2008), which found that the operative
complaint was “replete with allegations of fraud and concealment”).
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

(c)

1
2

The Untimely Claims Are Not Saved By Tolling Rules

Plaintiffs’ argument on tolling is summed up in a single sentence in their

3 motion: Plaintiffs assert that “the detailed allegations regarding delayed discovery
4 and concealment of the truth about Defendants’ limited copyright in Happy Birthday
5 are sufficient on their face to provide a basis for equitable tolling and are not futile.”
6 Mot. at 15:7-9. Plaintiffs do not even recite the legal standards for the tolling that
7 they seek. As Warner/Chappell demonstrates, Plaintiffs’ own allegations—both
8 express and as communicated through the documents they incorporate by
9 reference—show that the delayed discovery and fraudulent concealment allegations
10 are futile.
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(i)

Plaintiffs Fail To Plead Equitable Tolling Under
The Delayed Discovery Rule

“In order to invoke [the delayed discovery exception] to the statute of
limitations, the plaintiff must specifically plead facts which show (1) the time and
manner of discovery and (2) the inability to have made earlier discovery despite
reasonable diligence.” Yumul, 733 F. Supp. 2d at 1130 (alteration in original). “The
burden is on the plaintiff to show diligence, and conclusory allegations will not
withstand demurrer.” McKelvey v. Boeing N. Am., Inc., 74 Cal. App. 4th 151, 160
(1999). In McKelvey, the court affirmed the dismissal with prejudice of class action
complaints that failed adequately to allege delayed discovery. The court
emphasized that the plaintiffs “have not alleged facts about the time or manner of
discovery” and “have not alleged facts showing their inability to have made earlier
discovery despite reasonable diligence.” Id. at 161 (emphasis in original).
Plaintiffs’ proposed amendments suffer from these same deficiencies.
Plaintiffs’ allegations as to how and when the named plaintiffs learned of their
purported claims are conclusory, and insufficient as a matter of law. In order to
justify Siegel’s and Majar’s assertion of time-barred claims, for example, Plaintiffs
simply allege that “[a]fter the commencement of this action in 2013, [Siegel and

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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 Majar] thereafter discovered additional facts sufficient to challenge whether
2 Defendants’ copyrights cover the Song’s familiar lyrics.” Fifth Am. Compl. ¶¶
3 136(b), 138(b). Similarly, in order to establish that these plaintiffs could not have
4 discovered their claims earlier, Plaintiffs simply allege that legal conclusion:
5 “Before licensing Happy Birthday to You from Defendants and paying fees for
6 synchronization licenses to Defendants, [Siegel and Majar] did not know, and in the
7 exercise of reasonable care, could not have known, that Defendants’ copyrights in
8 fact did not cover the Song’s familiar lyrics.” Id. ¶¶ 136(a), 138(a). As in
9 McKelvey, 74 Cal. App. 4th at 161, the Fifth Amended Complaint is bereft of any
10 facts supporting these mere conclusions. See also Keilholtz, 2009 WL 2905960, at
11 *4-5 (discovery rule inapplicable where plaintiffs did “not adequately alleged how
12 and when the class members with time-barred claims discovered the alleged fraud”).
13

More important, when a plaintiff “has the opportunity to obtain knowledge

14 from sources open to his investigation (such as public records or corporation
15 books), the statute commences to run.” McKelvey, 74 Cal. App. 4th at 160 n.11
16 (emphasis in original). Here, the named plaintiffs and absent class members alike
17 could have learned about their purported claims from records that have been
18 available publicly since the 1930s and 1940s.
19

First, Plaintiffs allege that knowledge of the terms of the 1934 and 1935

20 assignment from Jessica Hill to Summy allowed Warner/Chappell and its
21 predecessors to know that this assignment transferred “only the rights to various
22 piano arrangements to the musical composition Good Morning to All,” and that
23 Warner/Chappell and its predecessors “did not acquire any rights to the Happy
24 Birthday to You lyrics.” Fifth Am. Compl. ¶ 142. Plaintiffs further allege that, due
25 to “misrepresentations and concealment of material fact” and “the complexity of the
26 historical record surrounding the song” they “did not know, had no reason to know,
27 and in the exercise of reasonable care could not know that Defendants and their
28 predecessors-in-interest did not own a copyright to the Song itself, but rather only to
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 two piano arrangements composed by Summy Co.’s employees for hire.” Id.
2 ¶¶ 160-61; see also id. ¶ 162.
3

This is absurd. To discover Plaintiffs’ theory about the limited scope of the

4 1934 and 1935 assignment, Plaintiffs—and absent class members—need only have
5 looked at the court files for the Southern District of New York. J.A. 50-51; see also
6 Dkt. 182 at 3:4-6, 23:4-5 (arguing that the 1942 pleadings prove that
7 Warner/Chappell acquired only “limited rights to ‘various piano arrangements’”)
8 (emphasis in original).
9

Second, Plaintiffs allege that Warner/Chappell and its predecessors

10 “concealed the fact that the 1935 copyrights covered only the piano arrangements
11 composed by Summy Co.’s employees-for-hire and did not cover the Happy
12 Birthday to You lyrics”—and encouraged others to do the same—and that, as a
13 result of that concealment and the “complexity of the historical record,” Plaintiffs
14 did not know, had no reason to know, and could not reasonably have known of the
15 true scope of those 1935 copyrights. Fifth Am. Compl. ¶¶ 158-62 (underline
16 added).
17

This, too, is specious. Plaintiffs and absent class members could have

18 discovered Plaintiffs’ theory about the limited claim of the 1935 registrations simply
19 by going to the United States Copyright Office. J.A. 44, 48; see also Dkt. 251 at
20 7:14-23 (arguing that registration E51990 proves that Summy did not register the
21 Happy Birthday lyrics).
22

Third, Plaintiffs allege that knowledge of the terms of the 1944 assignment

23 from Patty and Jessica Hill to Summy (“via the Hill Foundation”) allowed
24 Warner/Chappell and its predecessors to know that “they did not acquire any rights
25 to the Happy Birthday to You lyrics from Patty Hill, Jessica Hill, or the Hill
26 Foundation.” Fifth Am. Compl. ¶ 142. Plaintiffs further allege that they did not
27 know, had no reason to know, and could not reasonably have known of the true
28 scope of Defendants’ rights in Happy Birthday. See id. ¶¶ 160-62.
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1

This contention, too, is preposterous. To discover Plaintiffs’ theory about

2 what the 1944 assignment transferred, Plaintiffs and absent class members only had
3 to go to the United States Copyright Office, where the 1944 transfers from the Hill
4 Sisters to the Hill Foundation and from the Hill Foundation to Summy had been
5 recorded as of November 1944. J.A. 113, 115; see also Dkt. 251 at 10:16-11:2
6 (arguing that the recorded transfer from the Hill Foundation to Summy proves that
7 Summy did not obtain the common law copyright to the Happy Birthday lyrics in
8 1944).
Notably, since March 2008, Plaintiffs and absent class members have also

9

10 been able to educate themselves about their purported claims against
11 Warner/Chappell through publications by Prof. Robert Brauneis. Prof. Brauneis,
12 who serves as Plaintiffs’ litigation consultant, first released his article analyzing the
13 Happy Birthday copyright and made public his online repository of records relating
14 to Happy Birthday in 2008. Klaus Decl. ¶¶ 15-18 & Ex. 4 at 32, Ex. 5 at 2 n.10, Ex.
15 6. 4 Prof. Brauneis’s article, published more than five years before this lawsuit was
16 brought, concluded that it was “doubtful” that Happy Birthday was still under
17 copyright. Id. Ex. 5 at 37. Indeed, Plaintiffs’ initial complaints appear to have been
18 based in large part on that very article. 5 Prof. Brauneis was not shy about
19 publicizing his theories in 2008. The press reported on his article at the time, and
20 Prof. Brauneis even went on network television in July 2008 to proclaim that a court
21 likely would find Happy Birthday in the public domain. Klaus Decl. Ex. 7 at 12822 29, Ex. 8 at 133.
23
24
25

4

Concurrently with this opposition, Warner/Chappell has filed a request that the
Court take judicial notice of publicly available web pages and publications and of
26 documents incorporated into Plaintiffs’ proposed Fifth Amended Complaint by
reference.
27 5
Compare Second Am. Compl. (Dkt. 59) ¶¶ 16-110, with Klaus Ex. 5 at 45-46, 5590.
28
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1

Finally, not only did Plaintiffs and absent class members have ample

2 opportunity to learn from public records the bases for their purported claims, but
3 Plaintiffs’ own allegations show that absent class members actually did know the
4 bases for those claims. Plaintiffs’ proposed amendments make this crystal clear.
5 Plaintiffs allege that in 1964, for example, an absent class member concluded that
6 the Happy Birthday copyright covered “only the particular [piano] arrangement,”
7 and not the lyrics. Fifth Am. Compl. ¶ 147 (alteration in original); Klaus Decl. Ex.
8 9. Of course, that is Plaintiffs’ precise argument here. Plaintiffs also allege that, as
9 of 1971, another absent class member “firmly believe[d]” that it would prevail in an
10 infringement action, but was willing to pay a “tribute” instead. Fifth Am. Compl. ¶
11 152; Klaus Decl. Ex. 10. Similarly, Plaintiffs allege that in 1983, an absent class
12 member believed the song was “in the public domain around the world” (as do
13 Plaintiffs), but chose instead to pay a “tribute” rather than pursue a legal claim.
14 Fifth Am. Compl. ¶ 153; Klaus Decl. Ex. 11. These and other allegations
15 demonstrate that as far back as at least the 1960s, absent class members had actual
16 notice of the various bases on which to challenge the Happy Birthday copyright.
17 Fifth Am. Compl. ¶¶ 147-53; Klaus Decl. Exs. 9-11. This forecloses any argument
18 that Plaintiffs or absent class members were unable, with the exercise of reasonable
19 diligence, to discover the facts supporting their purported claims until 2009. See
20 Yumul, 733 F. Supp. 2d at 1130; McKelvey, 74 Cal. App. 4th at 160 n.11. As a
21 matter of law, the delayed discovery rule does not apply.
22
23
24
25
26
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28

(ii)

Plaintiffs Fail To Plead Tolling Based On
Fraudulent Concealment

Plaintiffs also fail to allege that the statute of limitations should be tolled
based on alleged fraudulent concealment. “A defendant’s fraud in concealing a
cause of action against him will toll the statute of limitations, and that tolling will
last as long as a plaintiff’s reliance on the misrepresentations is reasonable.”
Grisham v. Philip Morris U.S.A., Inc., 40 Cal. 4th 623, 637 (2007). “In order to

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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 establish fraudulent concealment, the complaint must show: (1) when the fraud was
2 discovered; (2) the circumstances under which it was discovered; and (3) that the
3 plaintiff was not at fault for failing to discover it or had no actual or presumptive
4 knowledge of facts sufficient to put him on inquiry.” Yumul, 733 F. Supp. 2d at
5 1131 (citation omitted). A claim that fraudulent concealment should toll a statute of
6 limitations must be pled with particularity under Rule 9(b). Id. at 1132-33.
7 Moreover, “[a]bsent a fiduciary relationship, nondisclosure is not fraudulent
8 concealment—affirmative deceptive conduct is required.” Long v. Walt Disney Co.,
9 116 Cal. App. 4th 868, 874 (2004). “Silence or passive conduct of the defendant is
10 not deemed fraudulent, unless the relationship of the parties imposes a duty upon the
11 defendant to make disclosure.” Rutledge v. Boston Woven Hose & Rubber Co., 576
12 F.2d 248, 250 (9th Cir. 1978). Plaintiffs’ fraudulent concealment theory fails for a
13 number of reasons.
14

First, because there is no fiduciary relationship between Warner/Chappell and

15 its licensees, or Warner/Chappell’s predecessors and their licensees, Plaintiffs must
16 allege with particularity affirmative acts of concealment. Plaintiffs cannot rely on
17 mere silence or nondisclosure. Id. at 250; Lauter v. Anoufrieva, No. CV 07-6811
18 JVS(JC), 2010 WL 3504745, at *22 (C.D. Cal. July 14, 2010) (“Unless a defendant
19 has a fiduciary duty to disclose information to the plaintiff, passive concealment is
20 insufficient for a court to grant equitable tolling.”). As a result, Plaintiffs’
21 allegations that Summy failed to disclose to licensees that other licensees had
22 challenged the Happy Birthday copyright are unavailing. Fifth Am. Compl. ¶¶ 14723 53. Also unavailing are Plaintiffs’ allegations that Summy concealed, and
24 encouraged others to conceal, the fact that Preston Ware Orem did not write the
25 Happy Birthday lyrics and the (alleged) fact that the E51990 copyright did not cover
26 those lyrics. Id. ¶¶ 156-59. Moreover, Plaintiffs offer no evidence that any of these
27 alleged nondisclosures were intended to deceive anyone and offer no explanation as
28 to how they could have deceived anyone.
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CASE NO. CV 13-04460-GHK (MRWx)

1

The only affirmative conduct that Plaintiffs allege is that “[a]t various times

2 relevant hereto,” Warner/Chappell and Summy (1) “claimed that Summy Co.’s
3 employee Orem may have written the familiar Happy Birthday to You lyrics, either
4 alone, together [sic], or with Mildred or Patty Hill” and (2) “claimed that Mildred
5 Hill wrote the familiar Happy Birthday to You lyrics, either alone or together with
6 Patty Hill or with Summy Co.’s employee Orem.” Id. ¶¶ 154-55. These allegations
7 also cannot support a fraudulent concealment claim. Critically, there is not a single
8 allegation—let alone one that would satisfy Rule 9(b)—regarding: to whom these
9 alleged statements were made, by whom they were made, when (during the last
10 seven decades) they were made, or how they were made. Yumul, 733 F. Supp. 2d at
11 1133.6 Nor is there a single allegation that Plaintiffs or any absent class member
12 actually relied on any such alleged statement by Warner/Chappell or Summy, and
13 reasonably so relied. Grisham, 40 Cal. 4th at 637. And even if Plaintiffs did plead
14 these allegations about the authorship of the Happy Birthday lyrics with sufficient
15 specificity—which they plainly have not done—how could this possibly be
16 relevant? Plaintiffs do not explain how these alleged statements served to
17 fraudulently conceal the basis for any claim that Plaintiffs have actually asserted in
18 this case.
Second, Plaintiffs’ conclusory allegations as to when and how Plaintiffs

19

20 discovered the alleged fraud are fatally flawed, for the same reasons shown above.
21 Fifth Am. Compl. ¶¶ 135-38. This avenue for tolling is even less plausible than
22 tolling based on delayed discovery. Here, Plaintiffs must plead with particularity
23 the “who, what, when, where, and how of the alleged fraudulent concealment.”
24 Yumul, 733 F. Supp. 2d at 1133; see Juniper Networks v. Shipley, No. C 09-0696
25 SBA, 2009 WL 1381873, *5 (N.D. Cal. May 14, 2009) (allegation that a website
26

6

Plaintiffs provided no factual support for these allegations when Warner/Chappell
requested it during the meet and confer process, and they should not be afforded yet
27
another opportunity to re-plead their allegations now. Klaus Decl. ¶¶ 9-10; Fid. Fin.
28 Corp., 792 F.2d at 1438.
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 represented that a firewall was functioning despite knowledge that the statement was
2 untrue was “too vague to comply with the particularity requirements of Rule 9(b)”);
3 Deirmenjian v. Deutsche Bank, A.G., No. CV 06-00774 MMM(CWx), 2006 WL
4 4749756, *43 (C.D. Cal. Sept. 25, 2006) (to establish fraudulent concealment, the
5 plaintiff “must plead with particularity the circumstances surrounding the
6 concealment and state facts showing his due diligence in trying to uncover the
7 facts”). Plaintiffs should not be given yet another bite at the apple to re-plead their
8 deficient allegations. Kaplan, 49 F.3d at 1370; Fid. Fin. Corp., 792 F.2d at 1438.
9

Third, Plaintiffs do not adequately allege that Plaintiffs or absent class

10 members were not at fault for failing to exercise reasonable diligence to discover the
11 bases of their purported claims from public records. On the contrary, Plaintiffs’
12 allegations affirmatively prove that absent class members had actual knowledge of
13 purported claims against Warner/Chappell’s predecessors, based on the absent class
14 members’ review of decades-old public records. Plaintiffs cannot establish
15 fraudulent concealment in these circumstances. Yumul, 733 F. Supp. 2d at 1131.
16
17

2.

Amendment Would Be Prejudicial To Warner/Chappell

The Court also should deny Plaintiffs’ motion for leave to amend because

18 Plaintiffs’ attempt to expand the class definition by 60 years and to assert new legal
19 theories of fraudulent concealment and legal tolling would cause undue prejudice to
20 Warner/Chappell. “Expense, delay, and wear and tear on individuals and companies
21 count toward prejudice.” Kaplan, 49 F.3d at1370 (citation omitted).
22

Plaintiffs’ proposed amendments, if allowed, would impose a crushing

23 discovery burden upon Warner/Chappell. Plaintiffs’ pending document requests
24 make this clear. Plaintiffs have requested, for example, all licenses relating to
25 Happy Birthday since 1949; all revenue statements relating to Happy Birthday
26 licenses since 1949; all documents identifying agents who have collected royalties
27 for Happy Birthday since 1949; all documents showing royalties paid to the Hill
28 Foundation since 1949; and numerous other onerous requests for records dating
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 back seven decades. Klaus Decl. ¶ 11 & Ex. 2 at 16-19; see also id. Ex. 3 at 27-28.
2 See Kaplan, 49 F.3d at 1370; Jackson, 902 F.2d at 1387-88 (finding that the “burden
3 of necessary future discovery” justified denying leave to amend); Acri, 781 F.2d at
4 1398-99 (affirming denial of leave to amend when allowing amendment would
5 prejudice the defendant “because of the necessity for further discovery”).
6 Moreover, while the Court expressed willingness to entertain a request to extend the
7 present deadlines, it also stated its interest in moving ahead, and established a tight
8 schedule for discovery on the remaining issues in the case. Denial of leave to
9 amend is appropriate in these circumstances. See, e.g., Kaplan, 49 F.3d at 1370
10 (addition of new claims would be unreasonably prejudicial where trial was close,
11 protracted discovery had been completed, the complaint previously had been
12 amended, and the basis for the amendment had long been known).
13

Denial of leave to amend is particularly justified here because, in addition to

14 the significant burden the proposed amendments would place on Warner/Chappell,
15 Plaintiffs’ fraudulent concealment and tolling claims are also “tenuous at best.”
16 Lockheed Martin Corp. v. Network Solutions, Inc., 175 F.R.D. 640, 646 (C.D. Cal.
17 1997) (finding that “[s]uch a tenuous claim” did not “merit the delay and prejudice”
18 its addition would cause); see also Morongo Band of Mission Indians v. Rose, 893
19 F.2d 1074, 1079 (9th Cir. 1990) (denying leave to amend and emphasizing the
20 “tenuous nature” of the proposed claims).
21

Finally, while Plaintiffs deny any ill motive in seeking to expand the class

22 definition by 60 years, the timing of this tactic and the feebleness of the claims
23 suggest that Plaintiffs are seeking to burden Warner/Chappell intentionally and to
24 gain leverage. See Millar, 236 F. Supp. 2d at 1113 (factors supporting denial of
25 leave to amend include bad-faith motive, such as “us[ing] the motion to … impose
26 additional expense on the opposing party, or gain additional leverage in settlement
27 negotiations”). Although Plaintiffs indisputably have been in possession of the
28 documents allegedly supporting their tolling theories since May 2014—and in
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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)

1 reality have been in possession of facts to assist their causes of action for many
2 years—Plaintiffs have not, until now, raised the possibility of asserting claims
3 dating back many decades. They began touting this idea in the press only after the
4 Court ruled on the cross-motions for summary judgment. Klaus Decl. ¶ 6 & Ex. 1.
5 IV.

Conclusion

6

Plaintiffs’ proposed amendments are futile and prejudicial. Warner/Chappell

7 respectfully requests that the Court deny Plaintiffs’ motion for leave to file a Fifth
8 Amended Complaint.
9
10
11
12
13

DATED: November 9, 2015

MUNGER, TOLLES & OLSON LLP

By:

/s/ Kelly M. Klaus
KELLY M. KLAUS

14
15

Attorneys for Defendants Warner/Chappell
Music, Inc. and Summy-Birchard, Inc.

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OPP’N TO PLS.’ MOT. FOR LEAVE TO AMEND
CASE NO. CV 13-04460-GHK (MRWx)