Barry Rosen v. Hollywood Show, LLC et al

Filing 91

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: RE PLAINTIFFS MOTION FOR JUDGMENT ON THE PLEADINGS AND FOR TERMINATING SANCTIONS PURSUANT TO RULE37 64 AND PLAINTIFFS EX PARTE APPLICATION FOR AN ORDER (1) TO SHOW CAUSE (2) TO EXTEND SETTLEMENT COMPLETION (3) MODIFYING CASE SCHEDULING AND (4) PLAINTIFFS RENEWED MOTION TO STRIKE DEFENDANT HOLLYWOOD SHOW LLCS ANSWER 86 . The Court DENIES plaintiffs motion for judgment on the pleadings.The Court DENIES plaintiffs motion for terminating sancti ons.The Court GRANTS in part and DENIES in part plaintiffs ex parte application to modify the scheduling order. The Court hereby extends the time to complete mediation to July 1, 2019. The pretrial conference/motions in limine hearing date is contin ued to August 5, 2019, at 11:00 A.M., and the trial date is continued to August 13, 2019, at 9:30 A.M.The Court DENIES plaintiffs ex parte application for an order to show cause regarding Hollywood Shows insurance coverage.The Court DENIES plaintiffs ex parte application to renew his motion to strike Hollywood Shows answer. (lc). Modified on 6/5/2019. (lc).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:18-cv-00215-CAS (Ex)
Date  June 3, 2019
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

Present: The Honorable 
Catherine Jeang 
Deputy Clerk 

CHRISTINA A. SNYDER 
Laura Elias 
Court Reporter / Recorder 

Attorneys Present for Plaintiffs: 

N/A 

Tape No. 

Attorneys Present for Defendants: 

Barry Rosen, Pro Se 

Eric Schneider 

Proceedings:  
PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS
AND FOR TERMINATING SANCTIONS PURSUANT TO RULE
37 (Dkt. 64, filed March 18, 2019)
PLAINTIFF’S EX PARTE APPLICATION FOR AN ORDER (1)
TO SHOW CAUSE (2) TO EXTEND SETTLEMENT
COMPLETION (3) MODIFYING CASE SCHEDULING AND (4)
PLAINTIFF’S RENEWED MOTION TO STRIKE DEFENDANT
HOLLYWOOD SHOW LLC’S ANSWER (Dkt. 86, filed May 23,
2019)
I.

INTRODUCTION AND BACKGROUND

On January 9, 2018, plaintiff Barry Rosen filed the instant action against
defendants Hollywood Show, LLC (“Hollywood Show”), Myron Ross d/b/a/ “Heroes &
Legends,” and Does 1 through 10. Dkt. 1. Plaintiff asserts claims for copyright
infringement and contributory copyright infringement. Id. Plaintiff contends that he is
the photographer and owner of a copyrighted photograph of actress Gena Lee Nolin, and
asserts that defendants unlawfully reproduced and distributed an identical or substantially
similar copy of his photograph. See id. On April 4, 2018, the Court dismissed plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 8(a) for failure to allege when and
where the alleged infringement took place. Dkt. 18. Plaintiff filed an amended
complaint on April 30, 2018. Dkt. 21. Hollywood Show filed an answer on May 4,
2018. Dkt. 24. The Clerk of Court entered default against Myron Ross on July 18, 2018.
Dkt. 34. On January 17, 2019, the Court granted Doniger Burroughs APC’s motion to
withdraw as attorney of record for Barry Rosen. Dkt. 39.

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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  June 3, 2019
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

On March 18, 2019, plaintiff, acting pro se, filed a motion for judgment on the
pleadings and for terminating sanctions. Dkt. 64 (“Mot.”). Hollywood Show filed an
opposition on March 25, 2019. Dkt. 68 (“Opp’n”). Plaintiff filed a reply on April 1,
2019, dkt. 73 (“Reply”), along with a request for judicial notice of a copyright
registration certificate and the image that is the subject of that certificate, dkt. 75.1
On March 24, 2019, plaintiff filed an ex parte application seeking the following:
(1) an order to show cause regarding Hollywood Show’s alleged failure to provide
plaintiff with proof of insurance coverage; (2) an order extending the settlement
completion deadline to July 1, 2019; (3) an order modifying the scheduling order to
vacate the pre-trial conference set for July 9, 2019, as well as the trial date of July 30,
2019; and (4) an order striking Hollywood Show’s answer for its alleged failure to submit
its certificate of revivor to the Court by April 22, 2019. Dkt. 86 (“Ex Parte”).
Hollywood Show filed an opposition on May 24, 2019. Dkt. 88 (“Ex Parte Opp’n”).
Without seeking leave of court, plaintiff filed a reply on May 28, 2019. Dkt. 90 (“Ex
Parte Reply”).
The Court held a hearing on June 3, 2019. Having carefully considered the parties’
arguments, the Court finds and concludes as follows.
II.

DISCUSSION
A.

Motion for Judgment on the Pleadings

Plaintiff seeks judgment on the pleadings on the grounds that Hollywood Show’s
answer to his complaint “asserts nothing but denials and three (3) affirmative defenses . .
. and all of which are completely unsupported by any factual allegations and consist
solely of bare statements of legal doctrines and/or factually unsupported conclusions or
are incorrectly/improperly asserted.” Mot. 11.
A motion for judgment on the pleadings brought pursuant to Federal Rule of Civil
Procedure 12(c) provides a means of disposing of cases when all material allegations of
fact are admitted in the pleadings and only questions of law remain. See McGann v.
Ernst & Young, 102 F.3d 390, 392 (9th Cir. 1996). A plaintiff is not entitled to judgment

1

Although plaintiff’s copyright registration is amenable to judicial notice, the Court
need not take judicial notice of these documents to resolve the issues in this motion.
Accordingly, the Court DENIES as moot plaintiff’s request for judicial notice.

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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  June 3, 2019
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

on the pleadings if the answer raises issues of fact by disputing allegations essential to the
plaintiff’s claim or raises an affirmative defense which, if proved, would defeat plaintiff's
recovery. See Qwest Communications Corp. v. City of Berkeley, 208 F.R.D. 288 (N.D.
Cal. 2002) (quoting William W. Schwarzer et al., Federal Civil Procedure Before Trial, §
9:319).
Plaintiff argues that he is entitled to judgment as a matter of law because
Hollywood Show did not support its denials with facts. This argument fails because a
defendant does not bear the burden of disproving plaintiff’s case at the pleading stage.
Rather, “[t]he purpose of a responsive pleading is to put everyone on notice of what the
defendant admits and what [he] intends to contest.” Edelman v. Belco Title & Escrow,
LLC, 754 F.3d 389, 395 (7th Cir. 2014). Plaintiff also contends that the Court must
accept every allegation he has made as true and disregard Hollywood Show’s denials.
This contention is based on an erroneous understanding of the law. Rather, “[f]or the
purposes of the motion [for judgment on the pleadings], the allegations of the nonmoving party must be accepted as true, while the allegations of the moving party which
have been denied are assumed to be false.” Hal Roach Studios, Inc. v. Richard Feiner
and Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). Plaintiff’s motion for judgment on
the pleadings fails because Hollywood Show denied several material allegations in its
answer and those denials must be accepted as true. Thus, it cannot be said that only
questions of law remain.
Plaintiff also argues that Hollywood Show’s affirmative defenses are insufficiently
pled. Mot. at 10. The Court need not reach this issue because it finds that, even if it were
to strike each of Hollywood Show’s affirmative defenses under Federal Rule of Civil
Procedure 12(f), plaintiff would still not be entitled to judgment as a matter of law
because Hollywood Show has denied several material allegations made by plaintiff in his
complaint.
Accordingly, the Court DENIES plaintiff’s motion for judgment on the pleadings.
B.

Motion for Terminating Sanctions

Plaintiff also moves for terminating sanctions under Federal Rule of Civil
Procedure 26(a) because Hollywood Show did not provide him with initial disclosures
prior to the close of discovery on March 1, 2019. Mot. at 14. Hollywood Show contends
that it did not provide plaintiff with initial disclosures because a Rule 26(f) conference—
which determines the deadline for making initial disclosures—was never held, but that it
nonetheless provided plaintiff with initial disclosures on March 19, 2019. Dkt. 69,

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
‘O’
2:18-cv-00215-CAS (Ex)
Date  June 3, 2019
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

Case No. 
Title 

Declaration of Eric A. Schneider, at ¶ 17. Hollywood Show also argues that plaintiff has
not experienced any prejudice because it disclosed all its known witnesses in a Rule 26(f)
report filed on June 1, 2018, and because the only two documents Hollywood Show
disclosed were referenced in the first amended complaint, Opp’n at 4. Defendant also
asserts that, to the extent initial disclosures were due in June 2018 after the Rule 26(f)
report was filed, plaintiff was also untimely because he did not deliver his initial
disclosures until January 31, 2019. Id.
The Court finds that sanctions are not warranted. To the extent Hollywood Show’s
initial disclosures were untimely, any delay was harmless because the initial disclosures
did not contain any information that was previously unknown to plaintiff. Accordingly,
the Court DENIES plaintiff’s motion for terminating sanctions.
C.

Ex Parte Application
i.

Insurance Coverage

Plaintiff seeks an order to show cause by this Court requiring Hollywood Show to
produce evidence demonstrating that it was covered by insurance at the time it allegedly
infringed plaintiff’s copyright, and in the absence of that evidence, the plaintiff seeks to
preclude Hollywood Show’s insurance company from providing Hollywood Show with
“continued intervention and financial support.” Ex Parte at 10–11. The status of
Hollywood Show’s insurance coverage, as well as the source of funds for Hollywood
Show’s defense, are well outside of the purview of the Court. Accordingly, the Court
declines to issue the order to show cause requested by plaintiff.
ii.

Modifying the Scheduling Order

It appears that the parties are unable to reschedule their mediation until the week of
June 17, 2019. In light of this scheduling issue, the Court hereby extends the time to
complete mediation to July 1, 2019. The pretrial conference/motions in limine hearing
date is continued to August 5, 2019, at 11:00 A.M., and the trial date is continued to
August 13, 2019, at 9:30 A.M.
iii.

Motion to Strike

Plaintiff seeks to renew its motion to strike Hollywood Show’s answer, claiming
that Hollywood Show remains suspended by the State of California for failure to pay its
taxes. Hollywood Show has provided evidence demonstrating that it is in “active” status

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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  June 3, 2019
BARRY ROSEN v. HOLLYWOOD SHOW, LLC ET AL.

with the State of California and is in good standing with the Franchise Tax Board.2 Dkt.
77 at 7 (a copy of the Business Search-Entity detail page from the California Secretary of
State website indicating that Hollywood Show is in “active status”); Dkt. 89 at 18 (entity
status letter indicating that Hollywood Show is in good standing with the Franchise Tax
Board). Although the Court previously instructed Hollywood Show to obtain a certificate
of revivor to demonstrate its compliance with the revival statute, see dkt. 63, the Court is
nonetheless satisfied that Hollywood Show is no longer suspended and that it may appear
to defend this action.
III.

CONCLUSION

In accordance with the foregoing, the Court DENIES plaintiff’s motion for
judgment on the pleadings.
The Court DENIES plaintiff’s motion for terminating sanctions.
The Court GRANTS in part and DENIES in part plaintiff’s ex parte application to
modify the scheduling order.
The Court DENIES plaintiff’s ex parte application for an order to show cause
regarding Hollywood Show’s insurance coverage.
The Court DENIES plaintiff’s ex parte application to renew his motion to strike
Hollywood Show’s answer.
IT IS SO ORDERED.
Initials of Preparer 

: 
00 
                       CMJ 

14 

2

Hollywood Show explains that it was required to change its name to “The New
Hollywood Show, LLC” because plaintiff registered Hollywood Show’s name while it
was in suspended status. Opp’n at 5. Considering that Hollywood Show’s Secretary of
State Entity Number (#200901010105) has remained the same throughout its suspension
and reinstatement, the Court finds that Hollywood Show’s change in name has no bearing
on whether it may appear to defend this action.

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