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`DANIEL M. PETROCELLI (S.B. #097802)
` dpetrocelli@omm.com
`MATTHEW T. KLINE (S.B. #211640)
` mkline@omm.com
`CASSANDRA L. SETO (S.B. #246608)
` cseto@omm.com
`O’MELVENY & MYERS LLP
`1999 Avenue of the Stars, 7th Floor
`Los Angeles, CA 90067-6035
`Telephone: (310) 553-6700
`Facsimile:
`(310) 246-6779
`
`Attorneys for the DC Comics Parties
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. CV 04-8400 ODW (RZx)
`LAURA SIEGEL LARSON,
`Case No. CV 04-8776 ODW (RZx)
`individually and as personal
`representative of the ESTATE OF
`
`JOANNE SIEGEL,
`REPLY IN SUPPORT OF
`
`DEFENDANT DC COMICS’
`Plaintiff,
`MOTION FOR SUMMARY
`JUDGMENT IN THE SIEGEL
`SUPERMAN AND SUPERBOY
`CASES
`
`The Hon. Otis D. Wright II
`
`Hearing Date:
`
`
`
`
`
` March 25, 2013
` (Hearing Vacated)
`
`
`v.
`
`WARNER BROS. ENTERTAINMENT
`INC., DC COMICS, and DOES 1-10,
`
`Defendants and
`Counterclaimants.
`
`LAURA SIEGEL LARSON,
`individually and as personal
`representative of the ESTATE OF
`JOANNE SIEGEL,
`
`Plaintiff,
`
`
`v.
`
`TIME WARNER INC., WARNER
`COMMUNICATIONS INC.,
`WARNER BROS. ENTERTAINMENT
`INC., WARNER BROS. TELEVISION
`PRODUCTION INC., DC COMICS,
`and DOES 1-10,
`
`Defendants and
`Counterclaimants.
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`TABLE OF CONTENTS
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`I.
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`II.
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`C.
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`LARSON DISTORTS THE NINTH CIRCUIT’S RULING AND
`DC’S FOURTH COUNTERCLAIM .............................................................. 2
`LARSON’S BREACH AND OTHER NEW DEFENSES WERE
`WAIVED AND ARE BASELESS ................................................................. 5
`A.
`Larson Long Ago Waived Her New Affirmative Defenses ................. 5
`B.
`Larson’s Waived “Defenses” Fail Because She Repudiated the
`2001 Deal .............................................................................................. 6
`The Supposed “Defenses” Larson Waived Also Fail on their
`Own Terms ............................................................................................ 8
`III. LARSON TRANSFERRED ALL RIGHTS IN SUPERBOY AND
`THE ADS TO DC IN 2001 ........................................................................... 11
`IV. CONCLUSION ............................................................................................. 12
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`TABLE OF AUTHORITIES
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`CASES
`Alexander v. Angel,
`37 Cal. 2d 856 (1951) ......................................................................................... 12
`Arachnid, Inc. v. Merit Indus., Inc.,
`939 F.2d 1574 (Fed. Cir. 1991) ...................................................................... 4, 24
`Ball v. Rodgers,
`2009 WL 1395423 (D. Ariz. Apr. 24, 2009) ........................................................ 6
`Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found.,
`402 U.S. 313 (1971) ............................................................................................. 5
`Campanelli v. Bockrath,
`1997 U.S. Dist. LEXIS 7981 (N.D. Cal. June 4, 1997) ....................................... 4
`Clarke v. Fiedler,
`44 Cal. App. 2d 838 (1941) .................................................................................. 9
`Conley v. Gibson,
`355 U.S. 41 (1957) ............................................................................................... 5
`Constantino v. U.S. Bank, N.A.,
`2011 U.S. Dist. LEXIS 107795 (D. Haw. Sept. 23, 2011) .................................. 8
`DC Comics v. Pacific Pictures Corp.,
`2012 WL 4936588 (C.D. Cal. 2012) .......................................................... 5, 9, 11
`Desert European Motorcars, Ltd. v. Desert European Motorcars, Inc.,
`2011 U.S. Dist. LEXIS 96154 (C.D. Cal. Aug. 25, 2011) ................................... 6
`Edgerly v. City & County of San Francisco,
`2011 U.S. Dist. LEXIS 155192 (N.D. Cal. May 26, 2011) ................................. 6
`Facebook, Inc. v. Pac. Nw. Software, Inc.,
`640 F.3d 1034 (9th Cir. 2011) .............................................................................. 9
`Ferguson v. Cathedral City,
`197 Cal. App. 4th 1161 (2011) ............................................................................. 7
`Freeman v. Mostafavi,
`
`2005 Cal. App. Unpub. LEXIS 10154 (Cal. App. Nov. 8, 2005) ...................... 11
`GN Hello Direct, Inc. v. Plantronics, Inc.,
`2004 WL 1775674 (Cal. App. Aug. 10, 2004) ..................................................... 7
`Gonzalez v. Preferred Freezer Servs., LBF, LLC,
`2012 U.S. Dist. LEXIS 93015 (C.D. Cal. July 5, 2012) ...................................... 6
`Grunwald-Marx, Inc. v. Los Angeles Joint Board, Amalgamated Clothing
`Workers of Am.,
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`192 Cal. App. 2d 268 (1961) .............................................................................. 11
`
`Guidiville Band of Pomo Indians v. NGV Gaming, Ltd.,
`531 F.3d 767 (9th Cir. 2008) ................................................................................ 4
`Hall v. City of Los Angeles,
`697 F.3d 1059 (9th Cir. 2012) .............................................................................. 4
`
`Honda v. Reed,
`
`156 Cal. App. 2d 536 (1958) .............................................................................. 11
`Hull v. Ray,
`
`211 Cal. 164 (1930) ............................................................................................ 10
`In re Marriage of Burkle,
`139 Cal. App. 4th 712 (2006) ........................................................................... 7, 8
`Jaunich v. Nat’l Union Fire Ins. Co.,
`
`647 F. Supp. 209 (N.D. Cal. 1986) ..................................................................... 10
`Jorst v. D’Ambrosio Bros. Inv. Co.,
`2001 WL 969039 (N.D. Cal. Aug. 13, 2001) ....................................................... 6
`Larkspur v. Marin Cnty. Flood Control Dist.,
`168 Cal.App.3d 947 (1985) .................................................................................. 9
`Larson v. Warner Bros. Entm’t Inc.,
`2012 WL 6822241 (9th Cir. Jan. 10. 2013)................................................. passim
`
`Li’l Red Barn, Inc. v. Red Barn Sys., Inc.,
`322 F. Supp. 98 (N.D. Ind. 1970) ......................................................................... 4
`McCreay v. Mercury Lumber Dists.,
`
`124 Cal. App. 2d 477 (1954) .............................................................................. 11
`Milne v. Stephen Slesinger, Inc.,
`430 F.3d 1036 (9th Cir. 2005) ............................................................................ 12
`Morrison v. Mahoney,
`399 F.3d 1042 (9th Cir. 2005) .............................................................................. 5
`N.W. Acceptance Corp. v. Lynwood Equip.,
`841 F.2d 918 (9th Cir. 1988) ................................................................................ 5
`Newman v. Phan,
`2002 WL 31421568 (Cal. App. Oct. 29, 2002) .................................................... 5
`Niss v. Columbia Pictures Indus., Inc.,
`2000 WL 1862814 (S.D.N.Y. Dec. 20, 2000) ...................................................... 4
`Ocean Air Tradeways, Inc. v. Arkay Realty Corp.,
`480 F.2d 1112 (9th Cir. 1973) .............................................................................. 8
`Odima v. Westin Tucson Hotel,
`53 F.3d 1484 (9th Cir. 1995) ................................................................................ 4
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`Paulsell v. Cohen,
`2002 WL 31496397 (D. Or. May 22, 2002) ......................................................... 5
`Penguin Grp. (USA) Inc. v. Steinbeck,
`537 F.3d 193 (2d Cir. 2008) ............................................................................... 12
`Qarbon.com Inc. v. eHelp Corp.,
`315 F. Supp. 2d 1046 (N.D. Cal. 2004) ................................................................ 6
`Rubin v. Mellvine Fuchs et al.,
`
`1 Cal. 3d 50 (1969) ............................................................................................. 10
`SCO Group, Inc. v. Novell, Inc.,
`2004 WL 4737297 (D. Utah June 9, 2004) .......................................................... 4
`Sram Corp. v. Shimano, Inc.,
`25 Fed. Appx. 626 (9th Cir. 2002) ....................................................................... 6
`Strickland v. Becks,
`95 Cal. App. 3d Supp. 18 (1979) ........................................................................ 10
`U.S. use of Building Rentals Corp. v. The W. Cas. & Sur. Co.,
`
`498 F.2d 335 (9th Cir. 1974) .............................................................................. 10
`United Brotherhood of Carpenters & Jointers v. Endicott Enters., Inc.,
`806 F.2d 918 (9th Cir. 1986) ................................................................................ 8
`Vier Const. Co., Inc. v. Local Union No. 12 of Int’l Union of Operating
`Eng’rs,
`1992 WL 317221 (9th Cir. Oct. 29, 1992) ........................................................... 8
`Vineland Homes v. Barish,
`138 Cal. App. 2d 747 (1956) ................................................................................ 8
`Wilson v. Lewis,
`
`106 Cal. App. 3d 802 (1980) .............................................................................. 10
`OTHER AUTHORITIES
`WILLISTON ON CONTRACTS § 63:31, at 548 (4th ed. 2002) ....................................... 8
`1 WITKIN SUMMARY OF CAL. LAW, CONTRACTS §§ 849, 851 (10th Ed. 2010) ......... 8
`RESTATEMENT 2D CONTRACTS § 253, cmt b (1981) .................................................. 8
`STATUTES
`17 U.S.C. § 204(a) ..................................................................................................... 3
`17 U.S.C. § 505 ..................................................................................................... 9-10
`CAL. CIV. P. CODE § 337(3) ....................................................................................... 6
`CAL. CIV. CODE § 1440 .......................................................................................... 7, 8
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`CAL. CIV. CODE § 1691 ............................................................................................ 10
`FED. R. CIV. P. 8(b)(1)(A), (c) ................................................................................... 5
`FED. R. CIV. P. 8(b)(1)(a), (c), (d) .............................................................................. 6
`FED. R. CIV. P. 8(d)(2)-(3) ......................................................................................... 6
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`Laura Siegel Larson has lost this case, and DC is ready, willing, and able to
`pay her millions of dollars under the deal DC made with her and her prior counsel
`in October 2001. AD Exs. 20, 22, 25. Despite her new counsel’s efforts to rewrite
`the deal and the Ninth Circuit’s ruling, to recast DC’s Counterclaims, and to assert
`new claims Larson never asserted for close to a decade (and thus waived), the Court
`can and should enter final judgment now in DC’s favor. Larson offers a cavalcade
`of arguments and 62 alleged “material facts” in response to DC’s motion. All are
`without basis or irrelevant, and each reduces to three erroneous points:
`1. Larson spends half her brief arguing DC needs specific performance—not
`declaratory relief—to compel her to assign her copyrights. The Ninth Circuit’s
`recent ruling and Marks’ October 19, 2001, letter, which the circuit court held is the
`parties’ agreement, forecloses this gambit. Under paragraphs C.1 and C.12 of the
`2001 deal, DC does not need Larson to execute a further copyright transfer. As the
`Ninth Circuit held, Marks executed a valid transfer in 2001 and it is “undoubtedly
`the case” that the terms of the deal “are sufficiently definite that a court could
`enforce them.” Larson, 2012 WL 6822241, at *1. Even if Marks had not made the
`transfer (and he did), the 2001 deal appoints DC “as attorney-in-fact” to execute
`such documents. AD Ex. 1 at 8. Larson cannot escape these rulings or clear terms,
`and the Court should grant DC’s declaratory relief claim affirming its rights.
`2. Eleven years after the fact—and only after defeat in the Ninth Circuit—
`Larson makes the new and contradictory argument that the parties did make a deal
`in 2001, DC breached it, she rescinded it, and DC abandoned the contract. In eight
`years of litigation involving two separate cases, Larson never pled these defenses.
`During these eight years, she consistently asserted that no 2001 deal ever existed—
`an argument the Ninth Circuit has now rejected. In fact, despite pleading 11 claims
`in these two Siegel cases and 39 affirmative defenses in each case, she never once
`pled breach, non-performance, abandonment, or recission as claims or defenses,
`despite many chances to do so or to so argue to this Court or on appeal. These
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`defenses and claims were, thus, waived. Her waived defenses also fail as a matter
`of law, in any event. Among many other reasons: Larson ignores that her repeated
`repudiation of the 2001 deal starting in 2002 excused DC’s performance—which
`directly refutes her breach, recission, abandonment, and other new theories.
`3. Larson argues that at least her Superboy case must survive because she
`filed a second Superboy termination notice in 2002, after the 2001 deal. This claim
`is frivolous. To begin, her 1997 termination notice—effective in 1999—sought to
`terminate Superboy, and the later 2001 deal specifically disposed of Superboy.
`I. Larson Distorts the Ninth Circuit’s Ruling and DC’s Fourth Counterclaim.
`a. Seeking to avoid the preclusive force of the Ninth Circuit’s rulings on
`remand, Larson contends the Court did not “interpret” the parties’ October 2001
`deal, “set forth its terms,” or “determine if its terms are enforceable.” Opp. 7. All
`untrue. The Ninth Circuit held that the contract’s terms were set forth in the “five
`pages of terms outlining substantial compensation for the heirs in exchange for
`DC’s continued right to produce Superman works.” 2012 WL 6822241, at *1.
`Those five pages appear in Marks’ October 19, 2001, letter, and the Ninth Circuit
`held this letter “accurately reflected the [deal’s] material terms.” Id.; AD Ex. 1.
`The Ninth Circuit also ruled on the enforceability of the key term (paragraph
`C.1) on which DC relies in this motion—and which allows DC, in the Court’s own
`words, the “continued right to produce Superman works.” 2012 WL 6822241, at
`*1. Quoting paragraph C.1, Larson argued on appeal that Marks’ letter did not
`“transfer” her copyrights to DC because the parties contemplated a “further”
`writing in which Larson herself “would [make such] transfer” of her copyrights.1
`
`1 Here is what Larson argued to the Ninth Circuit; see also Appendix 2 at 22-24:
`D. A Final Written Agreement Signed By The Parties Was Required.
`It is equally clear from the parties’ words and conduct that, given the importance
`and complexity of the subject matter and deal points, any agreement was subject to
`documentation and would need to be reduced to a mutually-acceptable written contract
`[citing and then discussing state law].
`…. Moreover, as any such agreement would involve an assignment of the Siegels’
`recaptured copyright interests, a written contract was required as a matter of law. 17
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`This is the same losing argument about the word “would” Larson repeats now,
`trying to create fact issues. Opp. 9-11. But the court “reject[ed] [her] arguments
`that either state or federal law preclude[d] a finding” that Marks’ letter was binding.
`2012 WL 6822241, at *1. It held the letter’s terms were “sufficiently definite that a
`court could enforce them”—i.e., no further writing was required. Id. And it held
`the Copyright Act’s transfer provision, section 204(a), did not “bar[] the validity of
`[the] contract; that statute expressly permits an agreement transferring ownership of
`a copyright to be signed by a ‘duly authorized agent’…, and Larson does not
`contest that the heirs’ attorney [Marks] was such an agent.” Id. (emphasis added).
`This is the beginning and the end of the inquiry on this motion. DC’s Fourth
`Counterclaim (on which it moves) seeks a declaration that, in the 2001 deal, Larson
`“transferred or [was] contractually obligated to transfer to DC” her rights in the
`Superman and Superboy works. Mot. 3, 4. The Ninth Circuit’s ruling decided this
`issue not once, but twice. It held that the 2001 deal afforded DC the “continued
`right to produce Superman works”—the main consideration DC sought—and that
`Marks validly transferred the copyrights necessary for DC to still exploit Superman.
`The law of mandate prohibits Larson from recycling her contrary arguments
`on appeal, Mot. 6, but she reasserts them nonetheless. Yet her own cited cases hold
`that a “mandate is controlling as to all matters within its compass,” including issues
`“expressly and impliedly disposed of on appeal.” Opp. 8:13-15. Here, the Ninth
`Circuit rejected her copyright “transfer” arguments, supra n.1, and asked this Court
`to consider one issue on remand: how its rulings impacted DC’s Third and Fourth
`
`U.S.C. § 204(a) [the copyright Act’s “transfer” provision]….
`Marks’ October 19 Letter cannot possibly qualify as the required “writing.” While
`“[n]o magic words must be included in a document to satisfy § 204(a) .... the parties’
`intent as evidenced by the writing must demonstrate “transfer of the copyright.” The
`October 19 Letter is not “a transfer” of the Siegels’ copyrights to Warner: rather, it
`contemplates that the Siegels “would [make such] transfer” in a final executed
`agreement….. [quoting paragraph C.1 of the October 19, 2001 agreement].
`Here, a signed written agreement assigning the Siegels’ copyrights was both
`contemplated by the parties and required, but never approved and executed.
`Kline Decl. (“KD”) Ex B at 123-24 (bolded brackets in original; emphases added).
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`Counterclaims. 2012 WL 6822241, at *2. As DC has shown, if judgment is
`entered in its favor on its Fourth Claim (and it must be under the Circuit’s ruling),
`then its Third Claim (for breach of the 2001 deal) is moot, and DC will only need to
`assert such a claim in a new lawsuit if Larson breaches the 2001 deal.2
`b. Larson spends 12 pages attacking a straw man, arguing DC had to prove a
`claim for specific performance to prevail on this motion. Opp. 11-23. DC does not
`need a court order requiring Larson to transfer anything: Marks made the transfer in
`2001, as the Ninth Circuit held; and even if he had not, and even if Larson refuses
`to do so now, Larson fully empowered DC to make the transfer. The 2001 deal
`foreclosed the game she now plays and provided DC, in paragraph C.12, the right
`to act as “attorney-in-fact” for the Siegels and execute “further documents” the
`Siegels failed to sign, AD Ex. 1 at 8. Cf., e.g., Niss v. Columbia Pictures Indus.,
`Inc., 2000 WL 1862814, at *6 (S.D.N.Y. Dec. 20, 2000) (party properly executed
`copyright assignment in reliance on a contractual attorney-in-fact provision after
`other party refused). Larson, of course, never addresses this key provision.3
`
`2 Page limits prevent DC from addressing all of Larson’s recycled fact arguments, but
`as Appendix 2 shows, all of her claims—about how to read Marks’ letter; how it was not a
`valid copyright transfer, etc.—were unsuccessfully made on appeal and are barred, too.
`Nor do her cited remand cases help her. Opp. 7-8. She cites Guidiville’s dissent; in
`Doe, the Eighth Circuit asked the trial court to consider a new case; in Lancaster, the
`Ninth Circuit forbade a party from taking a position contrary to years of conduct; in
`Edgerly, the court had “more to do” in light of a new issue raised on appeal. Campinelli,
`Odima, and Hall confirm that, on remand, a district court may address issues not decided.
`Here, there is no indication the Ninth Circuit asked this Court to revisit copyright transfer
`arguments it rejected or the “central issue” the court said it decided: “whether the parties’
`reached a binding settlement.” 2012 WL 6822241. All the Ninth Circuit asked this Court
`to do is to apply the logic of its opinion to DC’s Third and Fourth Counterclaims, and the
`parties’ summary judgment arguments, to see if this case could be finally resolved—
`thereby mooting Larson’s other arcane copyright arguments. Compare id., with Opp. 11.
`3 The copyright assignment cases she cites instead, Opp. 9-10, have no bearing. None
`involved contracts with attorney-in-fact provisions. Moreover:
`• Arachnid involved assignments of future inventions and implicated specific patent
`law that legal title to inventions passes only after the invention becomes patentable.
`• Li’l Red Barn involved a clause conditioning transfer of trademarks on plaintiff’s
`future, possible default under a purchase agreement.
`• And in SCO Group, the court held at the motion to dismiss stage that it could not
`resolve the parties’ competing interpretations about an “excluded assets” provision.
`Here, the Ninth Circuit ruled on a full summary judgment record that Marks—as Larson’s
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`II. Larson’s Breach and Other New Defenses Were Waived and Are Baseless.
`A. Larson Long Ago Waived Her New Affirmative Defenses. Larson had 11
`years to raise the defenses she asserts for the first time in her opposition. She pled
`39 defenses in these cases, see infra Appendix 1, but never pled or argued breach,
`rescission, or abandonment—not in her answer, not in discovery responses, not in
`her various complaints, not on summary judgment on DC’s settlement defense, and
`not on appeal, SAF 24. Tellingly, she never cites where she pled these defenses,
`but rather suggests they can be intuited from letters she wrote DC in 2002, Opp. 20-
`22, or are relevant to DC’s Third Claim on which DC does not move, id. 12-13.
`No matter these sleights of hand, the law is clear: Larson’s failure to plead or argue
`these defenses—in over eight years of litigation—bars her from raising them now.4
`Rule 8 requires parties to “affirmatively state any avoidance or affirmative
`defense,” in “short and plain terms.” FED. R. CIV. P. 8(b)(1)(A), (c). “The purpose”
`of the pleading standards for affirmative defenses “is to give the opposing party
`notice of the plea,” Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S.
`313, 350 (1971), and to prevent surprise, Conley v. Gibson, 355 U.S. 41, 47 (1957).
`Where a party fails to plead an affirmative defense or raise it by motion early
`on, it is waived. See Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th Cir. 2005);
`N.W. Acceptance Corp. v. Lynwood Equip., 841 F.2d 918, 924 (9th Cir. 1988).
`This is true in contract and copyright cases, just like all others. E.g., Paulsell v.
`Cohen, 2002 WL 31496397, at *14 (D. Or. May 22, 2002) (party “precluded from
`making” arguments on summary judgment that no agreement existed, and if it
`existed plaintiff repudiated it, when it “never alleged any such affirmative
`defenses”); Newman v. Phan, 2002 WL 31421568, at *5 (Cal. App. Oct. 29, 2002)
`(breach defense to contract waived when not alleged in cross-complaint or answer).
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`duly appointed agent—validly assigned her copyrights to DC, and it rejected her claim
`that a “further” writing was required. Supra at 2-4; see also 2012 WL 6822241, at *1 n.2.
`4 As for the 39 defenses Larson did plead, she waived them by not arguing them here.
`See DC Comics v. Pacific Pictures Corp., 2012 WL 4936588, at *9 (C.D. Cal. 2012).
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`Larson argued for eight years she did not make a contract with DC in 2001—
`she did not contend DC breached the deal, she rescinded it, or DC abandoned it.
`Rule 8(d) allowed her to plead inconsistent defenses in the alternative; she never
`did so. FED. R. CIV. P. 8(d)(2)-(3). Allowing her to raise such defenses now—
`when DC was deprived discovery on them or the chance to litigate them before—
`would violate Rule 8, prejudice DC, and be an affront to the multiple courts that
`spent years adjudicating DC’s settlement claim and Larson’s defense that no deal
`was ever made. Cf. Jorst v. D’Ambrosio Bros. Inv. Co., 2001 WL 969039, at *9
`(N.D. Cal. Aug. 13, 2001) (holding party waived defense when he tried to assert it
`after “parties have proceeded through almost a year of litigation, including the
`depositions of multiple witnesses and preparing [] summary judgment motions”)
`(emphasis added); accord Ball v. Rodgers, 2009 WL 1395423, at *3 (D. Ariz. Apr.
`24, 2009); Sram Corp. v. Shimano, Inc., 25 Fed. Appx. 626, 629 (9th Cir. 2002).5
`B. Larson’s Waived “Defenses” Fail Because She Repudiated the 2001 Deal.
`Larson’s untimely defenses are all premised on the notion that DC had a duty to
`perform under the 2001 agreement but failed to do so. Even had she preserved the
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`5 Larson’s answer, when listing boilerplate defenses—e.g., estoppel, laches, unclean
`hands, infra Appendix 1—did assert that DC’s counterclaims “are barred by the doctrine
`of acquiescence,” id. Larson provided no grounds for this defense or any facts to support
`it. Id. She only addressed facts related to the 2001 agreement in other, later defenses—all
`defenses the Ninth Circuit rejected, like her 37th (lack of authority), 38th (statute of
`frauds), and 39th (no deal consummated) defenses. Compare id., with 2012 WL 6822241.
`By merely invoking the term “acquiescence” in her answer, Larson failed to plead or
`preserve it. See FED. R. CIV. P. 8(b)(1)(a), (c), (d); Qarbon.com Inc. v. eHelp Corp., 315
`F. Supp. 2d 1046, 1049-50 (N.D. Cal. 2004) (striking defenses because a “reference to a
`doctrine, like a reference to statutory provisions, is insufficient notice”); Gonzalez v.
`Preferred Freezer Servs., LBF, LLC, 2012 U.S. Dist. LEXIS 93015, at *8 (C.D. Cal. July
`5, 2012) (striking “laundry list” of 37 defenses for “failure to link [them] to the particular
`claims for relief” or “any facts supporting [them]”); Desert European Motorcars, Ltd. v.
`Desert European Motorcars, Inc., 2011 U.S. Dist. LEXIS 96154, at *4-22 (C.D. Cal. Aug.
`25, 2011) (same; striking defenses of acquiescence, waiver, etc.).
`Any attempt to amend her answers or complaints now to assert these defenses or style
`them as claims is too late by many years. Rule 8 forbids this as shown above, as does the
`statute of limitations on breach, recission, and related contract claims. Larson says DC
`breached in October 2001, when John Schulman sent his letter, or in March 2002, when
`DC allegedly failed to pay her. Opp. 16-20. Larson had four years (or until 2010, at best)
`to assert such claims. See CAL. CIV. P. CODE § 337(3). She is three years too late, at least.
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`defenses (and she did not), each is barred as a matter of law because she openly and
`repeatedly repudiated the 2001 deal—excusing any obligation DC had to perform.
`See Mot. 1; CAL. CIVIL CODE § 1440; In re Marriage of Burkle, 139 Cal. App. 4th
`712, 751 (2006); Ferguson v. Cathedral City, 197 Cal. App. 4th 1161, 1169 (2011).
`In the first May 2002 letter she cites, Opp. 21, Larson never demanded DC
`perform under the 2001 deal; rather, she complained about DC’s draft long-form.
`AD Ex. 3. She then abandoned long-form negotiations, despite Marks’ warnings
`not to, and she fired Marks. KD Ex. C at 194-95; AD Ex. 6. In November 2002,
`she filed a new termination notice purporting to capture Superboy works she
`assigned to DC in the 2001 deal. AD Ex. 7; Ex. 1 ¶¶ A.1, C.1. She filed these
`lawsuits in 2004, and DC immediately cross-claimed that the parties’ October 2001
`deal barred her copyright claims. Mot. 3. When DC deposed Larson, she testified:
`“We never reached a final agreement.” KD Ex. E at 214:4-5. In other sworn
`discovery, she denied she “intended to settle all claims concerning [her termination
`notices] in accordance with the terms set forth in the October 19 Letter.” DN 184 at
`350 (RFA No. 73). And in briefing here and in Shuster, she repeatedly denied
`making the 2001 deal. E.g., DN 77 at 26 (“no agreement was made or executed by
`the parties”); KD Ex. A at 23 (“By 2002, these discussions broke down, and no
`agreement was consummated….”); Case No. 10-3633, DN 75 at 23-24.
`Here, Larson not only openly challenged the 2001 agreement in 2002, she
`fought its existence in eight years of subsequent litigation and filed a termination
`notice in 2002 that sought to capture the same Superboy works she assigned to DC
`in the 2001 deal. It is hard to imagine a more unequivocal repudiation. See
`Ferguson, 197 Cal. App. 4th at 1169 (holding, as matter of law, that once plaintiff
`called agreement “null and void,” defendant “excused from further performance”);
`GN Hello Direct, Inc. v. Plantronics, Inc., 2004 WL 1775674, at *16 (Cal. App.
`Aug. 10, 2004) (defendant’s performance excused by plaintiff’s repudiation where
`plaintiff “agree[d] to engage in an action that was expressly prohibited by the
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`Case 2:04-cv-08400-O