Don Henley et al v. Charles S Devore et al

Filing 105

OPPOSITION re: MOTION IN LIMINE (#3) to Preclude DEFENDANTS FROM RELITIGATING UNDISPUTED FACTS OR THE COURT'S DETERMINATION OF INFRINGEMENT MOTION IN LIMINE (#3) to Preclude DEFENDANTS FROM RELITIGATING UNDISPUTED FACTS OR THE COURT'S DETERMINATION OF INFRINGEMENT 98 filed by Defendants Charles S Devore, Justin Hart, Counter Claimants Charles S Devore, Justin Hart. (Arledge, Christopher)

Don Henley et al v. Charles S Devore et al

Doc. 105

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Christopher W. Arledge (Bar No. 200767) Email: [e-mail] John Tehranian (Bar No. 211616) Email: [e-mail] ONE LLP 4000 MacArthur Boulevard West Tower, Suite 1100 Newport Beach, California 92660 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Charles S. DeVore and Justin Hart UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DON HENLEY, MIKE CAMPBELL, and DANNY KORTCHMAR Plaintiffs, v. CHARLES S. DEVORE and JUSTIN HART, Defendants. AND RELATED COUNTERCLAIMS Case No. SACV09-0481 JVS (RNBx) DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 3

Plaintiffs' third motion in limine seeks to preclude Defendants from "offering argument or eliciting evidence seeking to challenge undisputed facts in the record and/or the Court's determination of Defendants' liability for copyright infringement." A. Challenging Undisputed Facts in the Record As to challenging "undisputed facts in the record," it is not clear what Plaintiffs want. Defendants are unsure what facts Plaintiffs wish Defendants to be unable to challenge at trial--they haven't told us--so Defendants do not know whether the parties
17072.1

DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 3

1

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

have a meaningful dispute here or not. Nevertheless, it is clear that Plaintiffs have no legal support for their position. Plaintiffs seem to argue that Defendants cannot challenge any facts that Plaintiffs asserted on summary judgment that Defendants did not oppose. The legal theory for the position is unclear. They cite a case discussing how parties cannot present evidence inconsistent with a prior stipulation of the parties. See Motion at 4. But this rule clearly does not apply, because the parties never stipulated to any facts. Thus, what they seem to be arguing--albeit without authority or (we believe) any basis in logic--is that the mere failure to dispute an allegedly material fact at summary judgment means that the party is precluded under judicial estoppel principles from offering contrary evidence at trial. They offer no authority for that position. Defendants have found no authority for that position. But the traditional elements of judicial estoppel clearly stand in Plaintiffs' way. "[S]everal factors typically inform the decision whether to apply the doctrine in a particular case: First, a party's later position must be "clearly inconsistent" with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create `the perception that either the first or the second court was misled.' Absent success in a prior proceeding, a party's later inconsistent position introduces no `risk of inconsistent court determinations,' and thus no threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Hamilton v. State Firm Fire & Casualty Co., 270 F.3d 778, 783-84 (9th Cir. 2001) (internal citations omitted). In addition, "this court has restricted the application of judicial estoppel to cases where the court relied on, or "accepted," the party's previous inconsistent position." Id. None of these factors applies here. Where Defendants fail to dispute an alleged material fact at summary judgment, they have not taken a position; they have failed to take a position. A party can fail to dispute a fact because it agrees with the fact or because it 17072.1 2
DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

simply does not matter to the party's argument at summary judgment. Second, by failing to dispute an alleged material fact, a party does not succeed in persuading a court to accept its position. Failing to take a position is not equivalent to pushing the court to adopt one. Finally, Plaintiffs cannot show that it gives opposing party an unfair benefit or imposes on them an unfair detriment where a party disputes a fact at trial that it did not believe it needed to dispute at summary judgment. The judicial estoppel factors simply do not line up in Plaintiffs' favor. This portion of the motion in limine must be denied. B. Precluding Evidence Related to Liability Plaintiffs next ask that Defendants be precluded from, in essence, asking the jury to overrule this Court's decision on liability. Defendants, of course, will ask the jury to do no such thing. Defendants disagree with the ruling and intend to raise the issue on appeal. But Defendants will not ask the jury to reach an adverse finding. (Nor is it clear how the jury would do so; what verdict form would even allow it?) But Plaintiffs take the argument a step further and ask this Court to preclude Defendants from arguing "that `reasonable minds can differ'" on infringement or "that the issue of liability was a `close' one." Motion at 2. Whether this request has merit depends on what this Court allows Plaintiffs to argue when it comes to willfulness. Ninth Circuit Model Civil Jury Instruction 17.27 says "[a]n infringement is considered willful when the plaintiff has proved both of the following elements by a preponderance of the evidence: 1. the defendant engaged in acts that infringed the copyright; and 2. the defendant knew that those acts infringed the copyright." This is a purely subjective standard; the question is solely whether Defendants believed they had the right to make and display the videos when they did so. So if the Court gives the model Ninth Circuit instruction, then arguments as to what other people--this Court included--believed are not relevant, unless they served as the basis for Defendants' subjective beliefs at the time of the infringement. But Plaintiffs asked this Court at summary judgment to apply a second, objective standard as well, arguing that Defendants acted willfully if they were objectively reckless in believing fair use protected their works. That is, even if they subjectively believed they 17072.1 3
DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

had the right to make the videos, they could still be acting "willfully" if their view is deemed reckless under an objective standard. The Model Instruction does not permit such an argument to the jury, and for good reason. Once the Court asks the jury to determine whether a reasonable person could agree with Defendants' conclusion as to fair use, the opinions of other reasonable decision-makers on that same question become critical. When this Court concludes that it is a "close question" whether the "Hope of November" video is protected by the fair use doctrine, the Court is necessarily making a statement about whether a reasonable person could reach a contrary conclusion. So if the jury is tasked with determining how a reasonable person could weigh the fair use factors, the Court's view is highly relevant. Indeed, the views of other courts and commentators to look at the issue also become relevant. For example, if other district judges find fair use on facts similar to our facts, that is persuasive evidence that a reasonable person could reach the same conclusion as Defendants and they were not objectively reckless in reaching their conclusion as to whether the videos were lawful. Thus, the merit of this portion of Plaintiffs' motion in limine depends on what the jury will be asked to decide. If Plaintiffs concede that the Model Instruction is appropriate here, Defendants concede that they can only discuss their subjective bases for believing that the videos were lawful, and this Court's subsequent order is irrelevant. If, on the other hand, Plaintiffs are permitted to argue that the jury can apply an objective standard in its willfulness determination, then the motion must be denied. Dated: July 2, 2010 ONE LLP

By: /s/ Christopher W. Arledge Christopher W. Arledge Attorneys for Defendants, Charles S. Devore and Justin Hart

17072.1

DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 3

4