Barry Rosen v. Hollywood Show, LLC et al

Filing 18

MINUTE ORDER IN CHAMBERS by Judge Christina A. Snyder:DEFENDANTS MOTION TO DISMISS {13]. The Court finds this motion appropriate for decision without oral argument. Accordingly, the hearing date of April 9, 2018 is vacated, and the matter is hereby taken under submission.foregoing, the Court GRANTS defendants motion to dismiss. Plaintiff may file an amended complaint addressing the deficiencies identified herein on or before April 30, 2018. (lc). Modified on 4/5/2018 .(lc).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:18-cv-00215-CAS(Ex)
Date April 4, 2018
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

Present: The Honorable

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

Attorneys Present for Plaintiffs:

N/A
Tape No.

Attorneys Present for Defendants:

Not Present
Not Present
(IN CHAMBERS) - DEFENDANT’S MOTION TO DISMISS (Dkt.
Proceedings:
13, filed March 2, 2018)
The Court finds this motion appropriate for decision without oral argument. Fed.
R. Civ. P. 78; C.D. Cal. Local Rule 7-15. Accordingly, the hearing date of April 9, 2018
is vacated, and the matter is hereby taken under submission.
I.

INTRODUCTION

On January 1, 2018, plaintiff Barry Rosen filed the instant action against
defendants Hollywood Show, LLC (“defendant”), Myron Ross d/b/a “Heroes &
Legends,” and Does 1 through 10 (collectively, “defendants”). Dkt 1 (“Compl.”).
Plaintiff asserts claims for copyright infringement and contributory copyright
infringement. Plaintiff contends that he is the photographer and owner of a copyrighted
photograph (the “Subject Photograph”) of actress Gena Lee Nolin, and asserts that
defendants unlawfully reproduced and distributed an identical or substantially similar
copy (the “Accused Image”) of the Subject Photograph. See Compl.
On March 2, 2018, defendant filed a “notice of demurrer.” Dkt. 13 (“MTD”). On
March 19, 2018, plaintiff filed an opposition. Dkt. 15 (“Opp’n”). On March 26, 2018,
defendant filed a reply. Dkt. 16 (“Reply”).
Having carefully considered the parties’ arguments, the Court finds and concludes
as follows.
II.

BACKGROUND
Plaintiff alleges the following facts.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:18-cv-00215-CAS(Ex)
Date April 4, 2018
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

Plaintiff is an individual residing in California. Compl. ¶ 4. Defendant is a
California limited liability company with its principal place of business in Studio City,
California. Id. ¶ 5. Ross is an individual residing in California and doing business as
“Heroes and Legends”. Id. ¶ 6.
Plaintiff created and owns the Subject Photograph, which was registered with the
United States Copyright Office. Id. ¶¶ 1–2. Plaintiff alleges that defendants accessed the
Subject Photograph and created unauthorized prints that were allegedly published,
advertised, distributed, or monetized by defendants. Id. ¶¶ 3–4, 13. Plaintiff contends
that defendants were provided with notice of the alleged infringement in August 2017,
and asserts that the dispute could not be resolved. Id. ¶ 5.
Plaintiff further alleges that defendant and plaintiff previously entered into a
settlement agreement concerning the sale of unauthorized copies of photographs that
plaintiff owns, and that according to this agreement, plaintiff is obligated to provide
defendant with notice of any vendor’s alleged infringement at defendant’s events if
defendant advertised or identified that vendor at least seven days before the event where
the accused prints were offered for sale. Id. ¶ 6. Plaintiff asserts that defendant failed to
advertise or identify Legends as a vendor for the event in which the Subject Photograph
was allegedly reproduced, and thus defendant was not entitled to notice in advance of the
filing of this action. Id.
Plaintiff alleges that the Subject Photograph and the Accused Image are identical,
or at least substantially similar. Id. ¶ 7. Plaintiff further asserts that each defendant
distributed, marketed, and published the Accused Image. Id. ¶¶ 11–12.
Moreover, plaintiff asserts that defendants are each vicariously liable for the
alleged infringement because defendants knowingly induced and profited from the
unauthorized reproduction of the Subject Photograph. Id. ¶ 18. Plaintiff alleges that
defendants had direct financial interests in the unauthorized reproduction, publication,
and distribution of the Subject Photograph. Id. ¶¶ 18–19. Further, each defendant
allegedly had the ability to “oversee the development, publication, and distribution of the
infringing imagery at issue.” Id. ¶ 19.
III.

LEGAL STANDARDS

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a pleading. Under this Rule, a district court properly

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:18-cv-00215-CAS(Ex)
Date April 4, 2018
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal theory.’” Conservation Force v. Salazar,
646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t, 901 F.2d
696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must be enough to raise a
right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the pleading, as well as all reasonable inferences to be drawn from
them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The pleading must be read in
the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service, 572 F.3d 962,
969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the nonconclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the pleading (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los Angeles,
250 F.3d 668, 689 (9th Cir. 2001).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:18-cv-00215-CAS(Ex)
Date April 4, 2018
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

Federal Rule of Civil Procedure 8(a) provides that a pleading stating a claim for
relief must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). In order to meet this standard, a claim for
relief must be stated with “brevity, conciseness, and clarity.” See Charles A. Wright &
Arthur R. Miller, 5 Fed. Practice and Procedure § 1215 (3d ed.). “The Plaintiff must
allege with at least some degree of particularity overt acts which Defendants engaged in
that support the Plaintiff’s claim.” Jones v. Community Redevelopment Agency, 733
F.2d 646, 649 (9th Cir. 1984). The purpose of Rule 8(a) is to ensure that a complaint
“fully sets forth who is being sued, for what relief, and on what theory, with enough
detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
IV.

DISCUSSION

As an initial matter, plaintiff argues that defendant’s motion violates Local Rule 7–
4 because it fails to include the “date and time of the motion hearing” and the name of the
judicial officer before whom the motion has been notified. Opp’n at 2; see L.R. 7–4.
Moreover, plaintiff contends that the motion cites to “wholly inapplicable California state
law.” Id. Plaintiff further argues that the motion is improperly styled as a demurrer,
which is an “impermissible pleading in federal court,” and thus should be stricken
pursuant to Federal Rule of Civil Procedure 12(f). Id. at 3.
The Court declines to deny defendant’s motion on these bases, and although the
Court determines defendant’s motions on the merits, the Court admonishes all parties to
abide by the Local Rules in future proceedings. Accordingly, although the instant motion
is style as a demurrer, the Court construes it as a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6).
With respect to the adequacy of plaintiff’s allegations in support of his claims for
copyright infringement and contributory infringement, the United States Supreme Court
has held that “[t]o establish infringement, two elements must be proven: (1) ownership of
a valid copyright, and (2) copying of constituent elements of the work that are original.”
Feist Publications Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 361 (1991).
Defendant does not challenge plaintiff’s allegations regarding either of these elements,
and instead contends that plaintiff impermissibly fails to provide the date of the alleged
copyright infringement or where this alleged infringement occurred. See MTD at ECF 5.
In opposition, plaintiff contends that defendant’s motion fails because he sufficiently
alleges copyright infringement and contributory infringement. Id. at 4 (citing Three Boys

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:18-cv-00215-CAS(Ex)
Date April 4, 2018
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000)). Moreover, plaintiff contends
that the “exact timeline” of defendant’s infringements will be revealed in discovery, and
that plaintiff is not required to plead a “certain time period” for his infringement claims at
the pleading stage. Id. at 5.
Federal Rule of Civil Procedure 8(a) requires that a complaint contain a “short and
plain statement” that gives defendant “fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” See Conley v. Gibson, 355 U.S. 41, 47 (1957). While
plaintiff is not required to allege a precise date or location concerning defendants’ alleged
infringement, in order to satisfy Rule 8(a) and provide fair notice of plaintiff’s claim to
defendants, plaintiff should allege when, generally, the alleged infringement took place
and where, generally, this alleged infringement occurred. If plaintiff is unable to allege a
general date or location, then he should explain why he cannot do so. Moreover,
allegations concerning the date of the alleged infringement are relevant to the timeliness
of plaintiff’s claim and the availability of statutory damages, which plaintiff requests in
this case. See Zendel v. ABC Video Prods., No. 10-CV-2889-VBF-EX, 2010 WL
11549713, at *1 (C.D. Cal. Nov. 22, 2010) (dismissing complaint for failure to allege
when copyright infringements occurred). Thus, the Court concludes that plaintiff must
provide allegations as to when and where, generally, the alleged infringement occurred.
Accordingly, the Court DISMISSES without prejudice plaintiff’s complaint.
V.

CONCLUSION

In accordance with the foregoing, the Court GRANTS defendant’s motion to
dismiss. Plaintiff may file an amended complaint addressing the deficiencies identified
herein on or before April 30, 2018.
IT IS SO ORDERED.
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