Bozzio v. EMI Group Limited et al

Filing 28

ORDER VACATING AND CONTINUING HEARING ON MOTION TO DISMISS. The Hearing on the pending Motion to Dismiss is VACATED AND RESET to October 2, 2012 at 2:00pm. Signed by Judge Yvonne Gonzalez Rogers on 8/27/12. (fs, COURT STAFF) (Filed on 8/27/2012)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 DALE BOZZIO, et al., 11 Plaintiffs, Case No.: 12-cv-2421 YGR ORDER VACATING AND CONTINUING HEARING ON MOTION TO DISMISS Northern District of California United States District Court 12 13 VS. 14 EMI GROUP LIMITED, ET AL. 15 Defendants. 16 17 The Hearing on the pending Motion to Dismiss is VACATED and RESET to October 2, 2012, 18 at 2:00 p.m. Counsel are directed to submit additional briefing of no more than 7 pages by 19 September 11, 2012, addressed to the following questions: 20 1. Has plaintiff pleaded facts sufficient to establish a basis for avoiding a specific contractual 21 bar on proceeding directly against Capitol based upon waiver or estoppel? See Intel Corp. v. 22 Hartford Acc. & Indem. Co., 952 F.2d 1551, 1559 (9th Cir. 1991). (“California courts will find 23 waiver when a party intentionally relinquishes a right, or when that party's acts are so inconsistent 24 with an intent to enforce the right as to induce a reasonable belief that such right has been 25 relinquished.”) In Clinton, the Ninth Circuit affirmed the district court’s decision that a contractual 26 limitation provision could not preclude a recording artist from seeking royalties directly against the 27 recording company where the recording company had dealt directly with the artist by sending royalty 28 checks addressed to him and by responding to his audit requests. Clinton v. Universal Music Group, 1 Inc., 376 F. App'x 780, 781 (9th Cir. 2010). The Ninth Circuit held that, “[t]aken in the light most 2 favorable to Clinton, the facts suffice to make Clinton either a third party beneficiary or a real party 3 in interest [and the record company,] UMG is estopped, as a result of its own conduct, from relying 4 on any purported waiver” of the artist’s right to proceed against the record company directly. Id. 5 2. Even if plaintiff has pleaded facts sufficient to establish a basis for avoiding any 6 contractual provisions that would preclude a direct lawsuit by plaintiff, should plaintiff be permitted 7 to proceed directly against Capitol if the loan-out company that is the party to the agreements with 8 Capitol is a suspended corporation? Kaufman & Broad Communities, Inc. v. Performance Plaster, 9 Inc., 136 Cal. App. 4th 212, 218 (2006); Amesco Exports, Inc. v. Munisoglu, 977 F. Supp. 1014, Mfg. & Sales, Inc., 87 F. Supp. 2d 1013 (C.D. Cal. 1997) (allowing individual to sue on written 12 Northern District of California 1015 (C.D. Cal. 1997) order vacated on reconsideration Amesco Exports, Inc. v. Associated Aircraft 11 United States District Court 10 contract as to which he is not a party as a third party beneficiary would create a mechanism for 13 avoiding obligations of corporate form, including bar on litigation by suspended corporation). If the 14 loan-out corporation is controlled by plaintiff, why should plaintiff be allowed to sidestep the 15 corporate form and obligations? 16 17 IT IS SO ORDERED. Date: August 27, 2012 __________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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