Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 1 of 20 Page ID #:39291
`
`
`
` O
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`
`Case No. 2:10-cv-03633-ODW(RZx)
`
`ORDER GRANTING
`DEFENDANTS’ MOTION FOR
`SUMMARY JUDGMENT IN PART
`[577] AND DENYING DC’S MOTION
`FOR SUMMARY JUDGMENT [588]
`
`Plaintiff,
`
`
`
`
`DC COMICS,
`
`
`v.
`
`
`PACIFIC PICTURES CPRORATION; IP
`WORLDWIDE, LLD; IPW, LLC; MARC
`TOBEROFF; MARK WARREN PEARY;
`
`JEAN ADELE PEAVY; LAURA SIEGEL
`LARSON; and DOES 1–10, inclusive,
`
`
`Defendants.
`
`
`
`
`
`I.
`INTRODUCTION
`On October 17, 2012, this Court ruled in Plaintiff DC Comics’ favor on its first
`and third claims for declaratory relief, effectively nullifying the termination notices
`Joe Shuster’s heirs had filed and served on DC. While that order is pending on
`appeal, Defendants now move for summary judgment on DC’s remaining state-law
`interference claims. In response, DC has cross-moved for summary judgment on its
`sixth claim for declaratory relief under California’s unfair-competition law. The
`Court GRANTS Defendants’ motion as to DC’s fourth and fifth claims and DENIES
`/ / /
`/ / /
`/ / /
`
`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
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 2 of 20 Page ID #:39292
`
`
`
`the parties’ cross-motions on DC’s sixth claim pending resolution of Defendants’
`appeal.1
`
`II. FACTUAL BACKGROUND
`Writer Jerome Siegel and illustrator Joe Shuster joined forces in the 1930s to
`create the character that would eventually become Superman. In 1937, they
`surrendered their copyright interests in Superman to DC Comics when they joined DC
`as independent contractors. Factually, this action weaves together the separate but
`often-convergent tales of the Siegel and Shuster heirs’ attempts—with the help of
`producer and attorney Marc Toberoff—to regain those Superman rights over the last
`16 years. DC’s fourth claim focuses on the Shuster heirs’ efforts, while its fifth claim
`confronts the Siegel heirs’ dealings.
`A. The Shuster Termination
`On October 2, 1992, following Joe Shuster’s death earlier in the year, DC
`entered into an agreement with Shuster’s surviving siblings, Frank Shuster and Jean
`Adele Peavy (the “1992 Agreement”). (Undisputed Fact (“UF”) 1.) Under the
`Agreement, Frank and Jean agreed to “settle[] all claims to any payments or other
`rights or remedies” they may have had “under any other agreement or otherwise” in
`exchange for DC’s “agreement to pay [them], collectively, a total of $25,000 a year.”
`(Adams Decl. Ex. A.)
`In 1998, Congress amended the 1976 Copyright Act to provide an author’s
`estate, “[i]n the event that the author’s widow or widower, children and grandchildren
`are not living,” the right to recover the author’s copyright by statutorily terminating
` See 17 U.S.C. § 304(c)(2)(D).
`the author’s old copyright grants.
` In
`November 2001—possibly as a result of the 1998 amendment—Jean and her son
`Mark Peary (Shuster’s nephew) entered into an agreement with Toberoff’s loan-out
`
`
`1 In light of Magistrate Judge Zarefsky’s March 13, 2013 Order denying DC’s request for leave to
`conduct further depositions and compel responses to deposition questions, the Court DENIES DC’s
`request for a Rule 56(d) continuance. In any event, the evidence DC sought by way of its Rule 56(d)
`request has no bearing on the Court’s disposition on these cross-motions.
`
`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
`
` 2
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 3 of 20 Page ID #:39293
`
`
`
`company, Pacific Pictures Corporation (PPC) (the “2001 PPC Agreement”). (UF 2.)
`The purpose of this agreement was “to investigate, retrieve, enforce and exploit”
`Shuster’s copyrights in the Superman works through “establishment of Joe Shuster’s
`estate” and the estate’s exercise of its termination rights under § 304(c). (Id.)
`On October 7, 2003, the Los Angeles County Superior Court appointed Mark
`Peary to serve as executor of Shuster’s estate. (UF 3.) Then on October 27, 2003,
`Mark (as executor) entered into another agreement with Pacific Pictures signed by
`Jean, Mark, and Toberoff (the “2003 PPC Agreement”). (UF 4.) Through this second
`PPC agreement, the Shuster estate “engage[d] PPC as the exclusive advisor for the
`purpose of retrieving, enforcing and exploiting all of Joe Shuster’s, and his estate’s
`rights, claims, copyrights, property, title and interests in and to Joe Shuster’s
`creations.” (Id.) Among the rights contemplated in the 2003 PPC Agreement was the
`Shuster estate’s “termination interest in ‘SUPERMAN’ pursuant to Section 304(d) of
`the U.S. Copyright Law.” (Id.)
`On November 10, 2003, Toberoff (acting as attorney for the Shuster estate)
`served on DC Comics a notice of termination under 17 U.S.C. § 304(d). (UF 5.) This
`termination notice was the subject of DC’s first, second, and third claims in this
`action.
`On September 10, 2004, Toberoff, Jean, and Mark purported to voluntarily
`cancel the 2001 and 2003 PPC Agreements. (UF 6.2)
`On October 17, 2012, this Court held that the 1992 Agreement constituted a
`post-1976 revocation and re-grant of Shuster’s Superman rights. (ECF No. 507.) As
`a result, that revocation pulled the Shuster heirs’ November 2003 termination notice
`from the grasp of Congress’s 1998 extension of an author’s termination rights. (Id.)
`That ruling is now on appeal before the Ninth Circuit.
`/ / /
`
`
`2 DC’s dispute over the effect and effectiveness of this “cancellation” does not factor into the Court’s
`decision. The Court therefore merely notes this fact for the sake of a more complete factual record.
`
`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
`
` 3
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 4 of 20 Page ID #:39294
`
`
`
`B.
`
`The Siegel Termination
`In 1997, Jerome Siegel’s widow, Joanne Siegel, and his daughter, Laura Siegel
`Larson, filed and served on DC notices of termination of Siegel’s Superman copyright
`grants to DC. (UF 8.) DC contested the termination on April 15, 1999, and the
`Siegels thereafter began negotiating a settlement with DC through Kevin Marks, their
`attorney at the time. (UF 9–10.)
`On October 19, 2001, Marks sent DC a letter outlining and accepting what he
`believed were the terms of an oral offer DC had made on October 16, 2001. (UF 11.)
`On October 26, 2001, DC responded to Marks with what it believed was a “more
`fulsome outline” of the deal’s terms. (UF 12.) On February 1, 2002, DC’s outside
`counsel followed up with a draft long-form agreement. (UF 13.)
`
`On May 9, 2002, Joanne Siegel—angered by DC’s February draft—sent a letter
`to DC’s parent company, AOL Time Warner, Inc., objecting to the draft and declaring
`that “[a]fter four years we have no deal and this [February 1] contract makes an
`agreement impossible.” (UF 14.)
`
`Meanwhile, in February 2002 Toberoff formed a joint venture called
`IP Worldwide, LLC with Ariel Emanuel, then-CEO of the Endeavor Talent Agency.
`(UF 15; Adams Decl. Ex. G.) In late July or early August 2002—several months after
`Joanne’s May 9 letter objecting to the February 1 draft—Toberoff informed Marks
`that he was working with Emanuel and inquired whether the Siegels might be
`interested in licensing their rights to them. (UF 16.3)
`On August 8, 2002, Marks, Toberoff, and Emanuel participated in a conference
`call where Toberoff and Emanuel made a formal offer to purchase the Siegels’ rights
`for $15 million. (UF 17.) DC contends (and Toberoff and Emanuel vehemently
`dispute) that this August 2002 offer also included false representations that Toberoff
`
`
`3 DC “disputes” this fact “to the extent defendants suggest this was Toberoff’s earliest effort to
`induce the Siegels to repudiate their October 19, 2001, settlement agreement with DC and enter into
`an agreement with him instead.” (Pl.’s Statement of Genuine Disputes 16.) Because the Court does
`not reach the merits of DC’s fifth claim, DC’s dispute on this fact is irrelevant to this Order.
`
`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
`
` 4
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 5 of 20 Page ID #:39295
`
`
`
`(1) had an unnamed “billionaire investor” ready to fund the $15 million offer and
`(2) could help the Siegels produce a Superman movie to compete with DC. (Pl.’s
`Statement of Genuine Disputes (“SGD”) 17.) The following day, Marks sent a letter
`conveying the offer to the Siegels, but he cautioned them that he believed the Siegels
`had an agreement with DC that was subject only to documentation. (ECF No. 500-5,
`at 338–39.)
` On September 21, 2002, the Siegels sent a letter to Marks, with a copy to DC,
`terminating Marks as their legal representative and reaffirming their intent to
`discontinue “all negotiations with DC Comics.” (UF 19.)
`On October 3, 2002, the Siegels entered into an agreement with IP Worldwide
`(the “IP Worldwide Agreement”) whereby the Siegels “grant[ed] IPW the exclusive
`right to represent [them] and the Rights throughout the world in negotiating and
`assisting [them] to arrange and negotiate the sale, lease, license and all other
`dispositions or exploitations of the Rights.” (UF 20.) Also under the Agreement,
`IP Worldwide would “furnish and provide the legal services of Marc Toberoff, Esq.,
`and the business services of Ariel Emanuel and IPW’s support staff . . . to market and
`negotiate” exploitation of the Superman rights. (Id.) Defendants characterize this
`agreement as a representation agreement, while DC maintains it was in reality “an
`unlawful, rights-tying agreement.” (SGD 20.)
`C.
`Siegel Litigation and the Toberoff Timeline
`On October 8, 2004, after renewed negotiations with DC failed to result in a
`settlement, Toberoff filed suit seeking to validate the Siegels’ termination notice.
`(UF 23.) In response, DC asserted several counterclaims, including one arguing that
`the October 19, 2001 letter from Marks to DC created a legally enforceable agreement
`between the parties, notwithstanding the Siegels’ later protestations. (UF 24.) The
`Ninth Circuit has since held that the October 19 letter constituted a binding agreement
`between the parties, Larson v. Warner Bros. Entmt., Inc., Nos. 11-55863, 11-56034,
`2012 WL 1113259, at *1 (9th Cir. Jan. 10, 2012), and this Court subsequently
`
`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
`
` 5
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 6 of 20 Page ID #:39296
`
`
`
`confirmed that the October 19 agreement remains enforceable. Larson v. Warner
`Bros. Entmt. Inc., Nos. 2:04–cv–08400–ODW(RZx), 2:04–cv–08776–ODW(RZx),
`2013 WL 1164434 (C.D. Cal. Mar. 20, 2013).
`On or before June 28, 2006, during discovery in Siegel, Warner Bros. (DC’s
`affiliate) received packages of anonymous documents likely stolen from Toberoff’s
`law firm, including many documents Toberoff maintained were attorney-client
`privileged. (UF 38.) The packet was also accompanied by an anonymously drafted
`cover letter titled “Superman/Marc Toberoff Timeline.” (Id.) This Toberoff Timeline
`accused Toberoff of wrongfully interfering with DC’s relationships and agreements
`with the Siegel heirs. (UF 39.) The parties continue to contest when Warner Bros.
`actually received the Timeline, who at Warner Bros. actually received a copy of the
`Timeline, and who and to what extent certain people read and fully digested the
`contents of the Timeline. Suffice it to say for purposes of these cross-motions that the
`Timeline was ultimately produced in December 2008. (ECF No. 153-15.)
`D. This Action
`On May 14, 2010, DC filed this action against Pacific Pictures, IP Worldwide,
`Mark Peary (as representative of the Shuster estate), Jean Peavy, Joanne Siegel, and
`Laura Siegel Larson. The Complaint asserted six claims: (1) declaratory relief as to
`the invalidity of the Shuster copyright termination notice; (2) declaratory relief
`regarding the scope of the Shuster termination notice; (3) declaratory relief with
`respect to DC Comics’ exclusivity period with the Shusters; (4) interference with the
`1992 Shuster agreement; (5) interference with prospective economic advantage
`regarding the October 19, 2001 Siegel-DC Comics agreement; and (6) declaratory
`relief regarding the invalidity of the Shuster heirs’ copyright assignment and consent
`agreements. As noted, the Court has already ruled on DC’s first through third claims,
`and that order is now on appeal before the Ninth Circuit. (ECF Nos. 507, 541.)
`Defendants now move for summary judgment on DC’s fourth through sixth
`claims for intentional interference and unfair business practices under California law.
`
`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
`
` 6
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 7 of 20 Page ID #:39297
`
`
`
`(ECF No. 577.) In response, DC filed a cross-motion for summary judgment on its
`sixth claim. (ECF No. 588.) Additional facts will be discussed as necessary.
`III. LEGAL STANDARD
`Summary judgment should be granted if there are no genuine issues of material
`fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
`P. 56(c). The moving party bears the initial burden of establishing the absence of a
`genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
`Once the moving party has met its burden, the nonmoving party must go beyond the
`pleadings and identify specific facts through admissible evidence that show a genuine
`issue for trial. Id.; Fed. R. Civ. P. 56(c). Conclusory or speculative testimony in
`affidavits and moving papers is insufficient to raise genuine issues of fact and defeat
`summary judgment. Thornhill’s Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th
`Cir. 1979).
`A genuine issue of material fact must be more than a scintilla of evidence, or
`evidence that is merely colorable or not significantly probative. Addisu v. Fred
`Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). A disputed fact is “material” where the
`resolution of that fact might affect the outcome of the suit under the governing law.
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). An issue is “genuine” if
`the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
`party. Id. Where the moving and nonmoving parties’ versions of events differ, courts
`are required to view the facts and draw reasonable inferences in the light most
`favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
`IV. DISCUSSION
`Defendants attack each of DC’s state-law claims as untimely. The thrust of
`Defendants’ argument is that these claims challenge Defendants’ allegedly tortious
`conduct between 2001 and 2003, and the record establishes that DC was on notice of
`this conduct no later than 2006. Further, while the statutes of limitations for these
`claims range from two to four years, DC waited to file suit until 2010. DC responds
`
`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
`
` 7
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 8 of 20 Page ID #:39298
`
`
`
`that the Toberoff Timeline exposed critical information Toberoff had concealed, and
`as a result the statute of limitations should have been tolled until (at the earliest)
`December 2008 when the Timeline was produced. The Court considers each of the
`parties’ arguments in turn.
`E. DC Comics’ Fourth Claim for Tortious Interference with Contract
`DC’s fourth claim for intentional interference with contract alleges that
`Toberoff’s purpose in approaching the Shuster heirs in 2001 to enter into a joint
`venture with Pacific Pictures was “to induce them to repudiate the 1992 Agreement
`and grant him the rights [the Shuster heirs] had already granted to DC Comics.”
`(FAC ¶ 177.) Defendants attack DC’s tortious-interference claim as untimely.
`The statute of limitations for tortious interference with contract in California is
`two years. Kiang v. Strycula, 231 Cal. App. 2d 809, 811–12 (1965); see Cal. Civ.
`Proc. Code § 339(1). A tortious-interference claim typically accrues “at the date of
`the wrongful act.” Trembath v. Digardi, 43 Cal. App. 3d 834, 836 (1974). But in no
`event does a claim accrue “later than the actual breach of the contract by the party
`who was wrongfully induced to breach,” because the breach is the culmination of the
`alleged wrong. Id.
`Defendants contend the actual breach at issue in DC’s fourth claim occurred
`when the Shuster heirs entered into the 2001 Agreement with Pacific Pictures.
`(Mot. 8 (citing ECF No. 337 (finding in the context of Defendants’ anti-SLAPP
`motion that the 2001 and 2003 Pacific Pictures Agreements “essentially gut the 1992
`Agreement, purporting to assign to Toberoff those rights which were already assigned
`to DC Comics”)).) Defendants also acknowledge DC’s position that two later events
`could have triggered the two-year statute of limitations: the execution of the 2003
`Agreement reaffirming the 2001 Agreement and the service of the Shuster termination
`notices in late 2003. (Mot. 9; SUF 2, 4–5.) Defendants maintain that regardless the
`date the Court looks at, DC’s fourth claim is time barred because the “alleged ‘actual
`/ / /
`
`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
`
` 8
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 9 of 20 Page ID #:39299
`
`
`
`breach’ of the 1992 Agreement therefore occurred seven to nine years before DC filed
`this suit in 2010.” (Mot. 9.)
`DC responds that its fourth claim isn’t based on a single breach occasioned by
`the 2001 or 2003 Agreements, but rather “a series of contracts Toberoff induced the
`Shusters to sign” that “violated DC’s rights under its 1992 agreement with Joe
`Shuster’s heirs.” (Opp’n 6.) According to DC, its FAC also challenged additional
`consent agreements that remained in effect until October 2012 “when the Court
`declared Toberoff’s agreements invalid.” (Opp’n 7–8.) In other words, DC primarily
`invokes California’s common-law continuing-wrong tolling rules. DC alternatively
`contends that the discovery rule, codified in California Code of Civil Procedure
`section 339, tolled its fourth claim until December 2008 when it received the Toberoff
`Timeline. (Opp’n 10.)
`1.
`Continuing-wrong principles do not apply to DC’s tortious-interference
`claims
`There are two main branches of the continuing-wrong accrual principals in
`California: the continuing-violation doctrine and the theory of continuous accrual.
`Aryeh v. Canon Bus. Solutions, Inc., 55 Cal. 4th 1185, 1197 (2013). The continuing-
`violation doctrine (or the continuing-tort doctrine, as the Ninth Circuit has referred to
`it), “applies where there is no single incident that can fairly or realistically be
`identified as the cause of significant harm.” Flowers v. Carville, 310 F.3d 1118, 1126
`(9th Cir. 2002) (emphasis added) (internal quotation marks omitted); see Aryeh, 55
`Cal. 4th at 1197 (“Some injuries are the product of a series of small harms, any one of
`which may not be actionable on its own.”).
`In contrast, “continuous accrual applies whenever there is a continuing or
`recurring obligation: When an obligation or liability arises on a recurring basis, a
`cause of action accrues each time a wrongful act occurs, triggering a new limitations
`period.” Aryeh, 55 Cal. 4th at 1199 (internal quotation marks omitted). Unlike
`continuing violations, where each alleged wrong may not itself create a legal right of
`
`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
`
` 9
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 10 of 20 Page ID
` #:39300
`
`
`
`action, continuing accrual concerns situations where each alleged action “provides all
`the elements of a claim—wrongdoing, harm, and causation—[such that] each may be
`treated as an independently actionable wrong with its own time limit for recovery.”
`Id. Thus, while the continuing-violation doctrine “renders an entire course of conduct
`actionable, the theory of continuous accrual supports recovery only for damages
`arising from those breaches falling within the limitations period.” Id.
`DC concedes that “it remains an open question under California law whether
`the ‘continuing harm’ doctrine applies to intentional interference claims.” (Mot. 8;
`see also Reply 6 (“The ‘continuing harm’ or ‘continuing accrual’ doctrine has never
`been applied by a California court to a tortious interference claim.”).) Indeed, the
`parties cite no cases, and the Court has found none, directly applying either of
`California’s continuing-wrong principles to tortious-interference claims.4 Undeterred,
`DC points to a recent California Supreme Court decision, Aryeh v. Canon Business
`Solutions, Inc., as reflecting that court’s “receptiveness to applying all common-law
`tolling doctrines to plaintiff’s California-law claims.” (Opp’n 8 (citing Aryeh, 55 Cal.
`4th at 1196–97).) But DC reads Aryeh too broadly.
`In Aryeh, the California Supreme Court considered whether to apply common-
`law tolling doctrines to California’s Unfair Competition Law, Cal. Bus. & Prof. Code
`§§ 17200–17210, where the UCL was silent on “what it means for a UCL claim to
`accrue.” Aryeh, 55 Cal. 4th at 1192–93. The court noted that such silence
`“trigger[ed] a presumption in favor of permitting settled common law accrual rules to
`apply” and concluded that “the UCL is governed by common law accrual rules to the
`same extent as any other statute.” Id. at 1193.
`/ / /
`
`4 At least one other federal court in California was likewise unable to find authority supporting
`application of the continuing-violation theory to a claim for tortious interference with prospective
`economic advantage, which shares the identical statute of limitations. See Boon Rawd Trading Int’l
`v. Paleewong Trading Co., Inc., 688 F. Supp. 2d 940, 952 (N.D. Cal. 2010) (“Indeed, based upon an
`examination of California decisions that have applied the ‘continuing tort’ doctrine, none have
`extended the doctrine to the tort of intentional interference with prospective economic advantage.”)
`
`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
`
`
`10
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 11 of 20 Page ID
` #:39301
`
`
`
`Unlike the UCL, California Code of Civil Procedure section 339 (which
`supplies the statute of limitations for both of DC’s tortious-interference claims)
`expressly provides that a claim on a contract does not accrue until “discovery of the
`loss or damage suffered by the aggrieved party.” Cal. Civ. Proc. Code § 339(1). As
`the Court in Aryeh noted, a statute must be construed in light of common-law
`decisions, “unless its language clearly and unequivocally discloses an intention to
`depart from, alter, or abrogate the common-law rule concerning the particular subject
`matter.” Aryeh, 55 Cal. 4th at 1193. By expressly providing for the common-law
`discovery rule and no other common-law tolling principles, section 339 appears to
`reflect the legislature’s clear and unequivocal intent to preclude application of
`common-law tolling mechanisms other than the discovery rule. See Wildlife Alive v.
`Chickering, 18 Cal. 3d 190, 195 (1976) (“Under the familiar rule of construction,
`expressio unius est exclusio alterius, where exceptions to a general rule are specified
`by statute, other exceptions are not to be implied or presumed.”). The Court therefore
`has serious reservations about whether continuing-wrong principles could ever toll the
`statute of limitations on claims for tortious interference with contract.
`But the Court need not go so far as to hold that the continuing-wrong doctrines
`unequivocally do not apply to intentional-interference claims, as neither principle
`applies on the facts here. With respect to continuing violations, DC contends
`“Toberoff induced the Shusters to enter into a series of illicit, subsisting, rights-tying
`contracts that continued to interfere with DC’s rights through the filing of DC’s
`lawsuit.” (Opp’n 9.) But DC’s position now directly contradicts its fourth claim,
`which alleges that “Toberoff’s ultimate purpose in approaching the Shuster Heirs was
`to induce them to repudiate the 1992 Agreement and grant him the rights they had
`already granted to DC Comics.” (FAC ¶ 177.) DC goes on to allege that Toberoff
`carried out this purpose by forming a joint venture with the Shusters and Pacific
`Pictures “for the express purpose of ‘exploiting all of Joe Shuster’s, and his estate’s
`/ / /
`
`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
`
`
`11
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 12 of 20 Page ID
` #:39302
`
`
`
`rights, claims, copyrights, property, title and interests in and to Joe Shuster’s
`creations’ through” termination of Shuster’s grant to DC under 17 U.S.C. § 304. (Id.)
`As this Court has already found, “the Pacific Pictures Agreements essentially
`gut[ted] the 1992 Agreement, purporting to assign to Toberoff those rights which were
`already assigned to DC Comics.” (ECF No. 337, at 3.) These agreements therefore
`constituted at least an implied repudiation of the 1992 Agreement—a discrete act for
`which DC could have filed suit. Then on November 10, 2003, the Shusters served DC
`with termination notices for the copyrights subject to the 1992 Agreement—another
`overt act of repudiation for which DC could have filed suit. And so on. The Court
`need not address each of Defendants’ allegedly wrongful actions to convey the
`obvious: DC’s harm was not the result of small harms that may not have been
`actionable on their own. Rather, each was an independently actionable act. The
`continuing-violation doctrine therefore cannot apply here.
`Neither can continuing-accrual principles apply. In assessing the applicability
`of continuing-accrual tolling, the court in Aryeh looked “to the nature of the obligation
`allegedly breached.” 55 Cal. 4th at 1200. There, the court found that the defendant, a
`lessor of copier machines, owed plaintiff, the lessee, a continuing “duty not to impose
`unfair charges in monthly bills—[] a continuing one, susceptible to recurring
`breaches.” Id.
`In contrast, here the 1992 Agreement—a purported one-time transfer of
`Shuster’s rights to DC—did not create a continuing obligation. And while contracts
`between parties often are capable of multiple minor, actionable breaches that alone
`would be insufficient to invalidate the entire contract, DC complains of Toberoff’s
`aim to induce the Shusters’ repudiation of the 1992 agreement entirely. (FAC ¶ 177.)
`As noted, continuing accrual addresses cases where each allegedly wrongful act
`provides all the elements of a claim. The elements of a claim for intentional
`interference with contract are “(1) a valid contract between plaintiff and a third party;
`(2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed
`
`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
`
`
`12
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 13 of 20 Page ID
` #:39303
`
`
`
`to induce a breach or disruption of the contractual relationship; (4) actual breach or
`disruption of the contractual relationship; and (5) resulting damage.” Pac. Gas &
`Electric Co. v. Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (1990). At the latest, the
`termination notices the Shuster heirs served on DC in November 2003 evidence the
`heirs’ unequivocal intention to have conclusively repudiated the 1992 agreement.
`And importantly, DC identifies no other agreements it had with Shuster or the Shuster
`heirs for which the later Shuster-Toberoff consent agreements could have caused new
`and separate harms to DC. Thus, the Court cannot find that any of Defendants’
`actions after November 16, 2003, constituted a new and actionable harm for which a
`new tortious-interference-with-contract claim could have accrued.
`2.
`The discovery rule does not save DC’s fourth claim
`DC also invokes section 339’s discovery rule. To this end, DC maintains that
`“Toberoff’s misconduct became actionable, at the very earliest, when Judge Larson
`ordered the Timeline produced to DC in December 2008—17 months before DC filed
`suit.” (Opp’n 10.) Not so.
`As noted, California Code of Civil Procedure section 339 expressly provides
`that a claim on a contract does not accrue until “discovery of the loss or damage
`suffered by the aggrieved party.” Cal. Civ. Proc. Code § 339(1). This so-called
`“discovery rule” “postpones accrual of a cause of action until the plaintiff discovers,
`or has reason to discover, the cause of action.” Nogart v. Upjohn Co., 21 Cal. 4th
`383, 463 (1999). A plaintiff “discovers” the cause of action the moment “he at least
`suspects a factual basis, as opposed to a legal theory,” for the elements of the claim—
`in other words, when plaintiff suspects “that someone has done something wrong to
`him.” Id. (emphasis added) (internal quotation marks omitted).
`DC is correct that “the discovery rule postpones accrual of a cause of action
`until plaintiff discovers the facts underlying its claims.” (Opp’n 10.) But a plaintiff
`need not suspect facts “supporting each specific legal element of a particular cause of
`action” to have discovered that cause of action; rather, California courts “look to
`
`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
`
`
`13
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 14 of 20 Page ID
` #:39304
`
`
`
`whether the plaintiffs have reason to at least suspect that a type of wrongdoing has
`injured them.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807 (2005)
`(emphasis added). “So long as a suspicion exists, it is clear that the plaintiff must go
`find the facts; she cannot wait for the facts to find her.” Jolly v. Eli Lilly & Co., 44
`Cal. 3d 1103, 1111 (1988).
`Defendants contend that DC was on inquiry notice of its tortious-interference
`claim no later than November 10, 2003, when Toberoff filed termination notices on
`the Shuster heirs’ behalf. (Mot. 10; SUF 5.) This is a close call. But the Court need
`not resolve this issue because DC received actual notice of a potential claim on
`November 15, 2006, when it received complete, unredacted copies of both the 2001
`and 2003 Agreements. (Mot. 10; SUF 25); Eagle Precision Techs., Inc. v. Eaton
`Leonard Robolix, Inc., No. 03CV352-BEN (WMc), 2006 WL 6544087, at *4 (S.D.
`Cal. Apr. 6, 2006) (plaintiff in intervention “had sufficient information to ‘at least
`suspect’ wrongdoing” when it “received a copy of the [interfering] Agreement”).
`Thus, by November 16, 2006, DC was equipped with the knowledge that
` In November 2001, the Shuster heirs entered into an agreement with Toberoff’s
`production company, Pacific Pictures, “to investigate, retrieve, enforce and
`exploit” the Superman copyrights via “termination pursuant to Section 304(c)
`of the U.S. Copyright Law” (SUF 2);
` In October 27, 2003, the Shuster estate entered into a second agreement with
`Pacific Pictures for the same purpose (see SUF 4); and
` In November 2003, Toberoff served copyright termination notices on DC
`Comics (SUF 5).
`With this information, DC should have far more than suspected “that a type of
`wrongdoing ha[d] injured” it. Fox, 35 Cal. 4th at 807.
`It does not matter, as DC tries to argue, that it didn’t receive the Toberoff
`Timeline until 2008 or that “important new evidence concerning Toberoff’s web of
`illicit consent agreements has come to light” in discovery in this matter. (Opp’n 10.)
`
`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
`
`
`14
`
`

`
`Case 2:10-cv-03633-ODW-RZ Document 613 Filed 04/04/13 Page 15 of 20 Page ID
` #:39305
`
`
`
`That the Toberoff Timeline supplied additional information supporting one of many
`elements of its tortious-interference claim does not change the fact that DC had
`enough information pri