APPENDIX TABLE OF CONTENTS
`
`RELEVANT OPINION RE
`JUDGMENT SOUGHT TO BE REVIEWED
`Memorandum Opinion, Ninth Circuit
`
`(June 7, 2022) ..................................................... 1a
`OTHER RELEVANT ORDERS
`Judgment, Case 1712, District Court,
`
`and Image of Judgment (March 15, 2021) ......... 7a 
`Judgment, Case 4167, District Court,
`
`and Image of Judgment
`
`(Entered March 18, 2021) ................................ 10a 
`Statement of Ruling Granting Motion for
`
`Summary Judgment, Filed in Case 1712 &
`
`Case 4167 (March 11, 2021) ............................. 13a 
`
`ORDERS ON REHEARING
`Order Denying Petition for Panel Rehearing,
`Ninth Circuit (June 21, 2022) .......................... 73a
`Rule 59/60 Motion for Reconsideration,
`
`Case 1712 (May 13, 2021) ................................ 75a 
`
`
`
`
`

`

`APPENDIX TABLE OF CONTENTS (Cont.)
`
`
`
`CONSTITUTIONAL AND STATUTORY PROVISIONS
`Relevant Constitutional and Statutory Provisions
`Involved ................................................................... 99a
`U.S. Const. amend. V ....................................... 99a
`17 U.S.C. § 101 ................................................. 99a
`17 U.S.C. § 102 ............................................... 112a
`28 U.S.C. § 1254 ............................................. 113a
`28 U.S.C. § 1291 ............................................. 114a
`Federal Rules of Civil Procedure Rule 42 ..... 114a
`Federal Rules of Civil Procedure Rule 59 ..... 115a
`Federal Rules of Civil Procedure Rule 60 ..... 116a
`Federal Rules of Evidence Rule 201 .............. 118a
`
`DISTRICT COURT, RELEVANT MATERIAL
`First Amended Complaint, Case 1712
`
`Relevant Excerpts (March 7, 2019) ............... 120a 
`Complaint, Case 4167,
`
`Relevant Excerpts (May 14, 2019) ................. 124a 
`Scheduling Conference Order, Case 1712
`
`(July 11, 2019) ................................................ 128a
`Substitution of Attorney, Case 1712
`
`(February 24, 2020) ........................................ 130a 
`Motion for Summary Judgment, Case 1712,
`
`Relevant Excerpts (January 31, 2020) .......... 132a
`Rule 59/60 Motion for Reconsideration, Case 1712
`
`(March 26, 2021) ............................................. 134a
`Notice of Appeal, Case 1712
`
`(June 3, 2021) ................................................. 140a 
`Electronic Filing Mailing List,
`
`Case 1712 ........................................................ 142a 
`
`

`

`APPENDIX TABLE OF CONTENTS (Cont.)
`
`Electronic Filing Mailing List,
`
`Case 4167 ........................................................ 144a
`Docket Report for
`
`Case #: 2:19-cv-01712-GW-AGR .................... 146a
`Docket Report for
`
`Case #: 2:19-cv-04167-GW-AGR .................... 202a
`
`
`NINTH CIRCUIT, RELEVANT MATERIAL
`Appellant’s Opening Brief, Relevant Excerpts
`
`(October 8, 2021) ............................................ 219a 
`Answering Brief, Relevant Excerpts
`
`(January 12, 2022) .......................................... 224a 
`Appellant’s Request for Judicial Notice
`
`(March 3, 2022) ............................................... 235a 
`Appellant’s Reply Brief, Relevant Excerpts
`
`(March 3, 2022) ............................................... 237a 
`Petition for Panel Rehearing
`
`(June 16, 2022) ............................................... 242a 
`
`
`
`
`

`

`App.1a
`
`MEMORANDUM OPINION, NINTH CIRCUIT*
`(JUNE 7, 2022)
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`________________________
`GARY FRISBY, PKA G-MONEY,
`
`Plaintiff-Appellant,
`
`v.
`SONY MUSIC ENTERTAINMENT, DBA RCA
`Records, a Delaware General Partnership; ET AL.,
`Defendants-Appellees.
`
`and
`CORTEZ BRYANT, an Individual; ET AL.,
`Defendants.
`________________________
`Nos. 21-55586, 21-55587
`D.C. Nos. 2:19-cv-01712-GW-AGR,
`2:19-cv-04167-GW-AGR
`Appeal from the United States District Court
`for the Central District of California
`George H. Wu, District Judge, Presiding
`
`
`* This disposition is not appropriate for publication and is not
`precedent except as provided by Ninth Circuit Rule 36-3.
`
`

`

`App.2a
`
`Submitted May 19, 2022**
`Pasadena, California
`Before: OWENS and BRESS, Circuit Judges,
`and FITZWATER,*** District Judge.
`
`Plaintiff-Appellant Gary Frisby (“Frisby”) appeals
`the district court’s order granting summary judgment
`to Defendants on his sound recording and musical
`composition copyright infringement claims based on
`his beat track, Shawty So Cold (“Shawty”). He also
`appeals the denial of his motion for reconsideration
`under Federal Rules of Civil Procedure 59(e) and 60(b)
`of the judgment dismissing his sound recording copyright
`infringement claim. Frisby alleges that Defendants-
`Appellees Sony Music Entertainment, Bryson Tiller,
`and Michael Hernandez are liable for copyright infringe-
`ment based on their involvement with the platinum-
`selling hip-hop song, Exchange, which Frisby maintains
`copies key parts of Shawty.
`Frisby asserted these claims in two separate law-
`suits. The first—based on his sound recording copyright
`infringement claim—was docketed in the district court
`as Civil Action No. 2:19-cv-01712-GW-AGR (the “1712
`Action”). The second—filed later and based on his
`musical composition copyright infringement claim—
`was docketed in the district court as Civil Action No.
`2:19-cv-04167-GW-AGR (the “4167 Action”). We have
`
`** The panel unanimously concludes this case is suitable for deci-
`sion without oral argument. See Fed. R. App. P. 34(a)(2).
`*** The Honorable Sidney A. Fitzwater, United States District
`Judge for the Northern District of Texas, sitting by designation.
`
`

`

`App.3a
`
`jurisdiction under 28 U.S.C. § 1291 over the appeal of
`the judgment of dismissal entered in the 1712 Action
`and the denial of Frisby’s motion for reconsideration
`filed in that action. We lack jurisdiction over the appeal
`of the judgment of dismissal entered in the 4167 Action,
`for which no notice of appeal was filed. We affirm in
`part and dismiss in part.1
`We review de novo whether we have subject matter
`jurisdiction over Frisby’s appeals. FMC Med. Plan v.
`Owens, 122 F.3d 1258, 1260 (9th Cir. 1997). We review
`a grant of summary judgment de novo, Sandoval
`v. County of Sonoma, 912 F.3d 509, 515 (9th Cir. 2018),
`and the denial of a motion under Rule 59(e) or 60(b)
`for abuse of discretion, Ta Chong Bank Ltd. v. Hitachi
`High Technologies America, Inc., 610 F.3d 1063, 1066
`(9th Cir. 2010); Lemoge v. United States, 587 F.3d 1188,
`1191-92 (9th Cir. 2009).
`1. We lack jurisdiction over Frisby’s appeal of the
`judgment dismissing his musical composition copyright
`infringement claim asserted in the 4167 Action because
`Frisby did not file a notice of appeal from that judgment.
`See United States v. Arevalo, 408 F.3d 1233, 1236 (9th
`Cir. 2005) (“[F]ailure to file a timely or effective notice
`of appeal renders us without jurisdiction to consider
`the merits of the petitioner’s claims.”).
`
`
`1 We grant Defendants-Appellees’ Motion to Take Judicial Notice
`of documents in other proceedings.
`We deny Frisby’s Motion to Take Judicial Notice because the sub-
`ject documents are already part of the record on appeal, are
`duplicative of Defendants-Appellees’ request, or are irrelevant to
`the jurisdictional question.
`
`

`

`App.4a
`
`Frisby did file notices of appeal in the 1712 Action
`from the judgment dismissing his sound recording
`copyright infringement claim and the order denying
`his motion for reconsideration. But the notices of appeal
`filed in the 1712 Action do not confer jurisdiction on
`this court to consider Frisby’s appeal of the separate
`judgment entered in the 4167 Action. Although the
`district court consolidated the two cases for pretrial
`purposes, the two actions remained “constituent cases
`[that] retain[ed] their separate identities.” Hall v. Hall,
`138 S. Ct. 1118, 1131 (2018).2 The Supreme Court has
`instructed that each case must be considered sepa-
`rately to determine whether a court has jurisdiction to
`consider the case’s merits. Id. at 1130-31. The Supreme
`Court has thus “dismissed an appeal because the con-
`stitutional question that supplied [its] jurisdiction had
`been raised not in the case before [it], but instead only
`in other cases with which it had been consolidated.”
`Id. at 1130 (citing Butler v. Dexter, 425 U.S. 262, 266-
`267 (1976) (per curiam)).
`We therefore dismiss Frisby’s purported appeal
`from the judgment in the 4167 Action.
`2. The district court did not err in denying Frisby’s
`motion for reconsideration in the 1712 Action.3
`Frisby fails to raise on appeal arguments raised
`in his motion for reconsideration and otherwise fails
`specifically and distinctly to challenge the denial of
`
`2 The limited scope of the consolidation is confirmed by the district
`court’s entry of a separate judgment of dismissal in each case.
`3 The motion for reconsideration only pertained to the judgment
`entered in the 1712 Action.
`
`

`

`App.5a
`
`his motion for reconsideration. See Christian Legal
`Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 485
`(9th Cir. 2010) (“We review only issues [that] are
`argued specifically and distinctly in a party’s opening
`brief.” (alteration in original) (quoting Brownfield v. City
`of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010)));
`Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)
`(“[O]n appeal, arguments not raised by a party in its
`opening brief are deemed waived.”).
`To the extent that Frisby’s arguments are not
`waived, his challenge to the denial of his motion for
`reconsideration fails because he presented arguments
`that he had already raised (or could have raised) in
`his opposition to Defendants-Appellees’ motion for
`summary judgment. Backlund v. Barnhart, 778 F.2d
`1386, 1388 (9th Cir. 1985) (“The motion [under Rule
`59(e)]was properly denied here because . . . it presented
`no arguments that had not already been raised in
`opposition to summary judgment.”). Moreover, it is
`not an abuse of discretion for a district court to deny
`a motion for reconsideration that is based on grounds
`that are only belatedly raised after summary judgment
`has been granted. See Exxon Shipping Co. v. Baker,
`554 U.S. 471, 485 n.5 (2008).
`3. Frisby’s remaining claim—his sound recording
`copyright infringement claim in the 1712 Action—
`fails because there is no genuine issue of material fact
`that Defendants-Appellees’ song does not capture actual
`sounds contained in Shawty. See 17 U.S.C. § 114(b)
`(stating that a sound recording copyright “is limited
`to the right to duplicate the sound recording in the
`form of phonorecords or copies that directly or indirectly
`recapture the actual sounds fixed in the recording”);
`
`

`

`App.6a
`
`VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 883 (9th
`Cir. 2016) (“[I]nfringement takes place whenever all
`or any substantial portion of the actual sounds that go
`to make up a copyrighted sound recording are repro-
`duced. . . . ” (emphasis omitted) (citation omitted)).
`In fact, as Frisby acknowledges in his reply brief,
`“If this appeal were limited to Frisby’s claim of copyright
`infringement of the sound recording as alleged in
`1712, his evidence of access and substantial similarity
`would be irrelevant and his appeal would be ruined.”
`AFFIRMED IN PART, DISMISSED IN PART.
`
`
`
`
`
`
`

`

`App.7a
`
`JUDGMENT, CASE 1712, DISTRICT COURT
`WITH IMAGE OF JUDGMENT
`(MARCH 15, 2021)
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`________________________
`GARY FRISBY, ETC.,
`
`Plaintiff,
`
`v.
`SONY MUSIC ENTERTAINMENT, ETC., ET AL.,
`Defendants.
`AND CONSOLIDATED ACTION
`________________________
`Case No. 2:19-cv- 01712-GW-AGRx
`Before: George H. WU, United States District Judge.
`
`The Court having granted the Motion of defend-
`ants Bryson Tiller, Michael Hernandez, and Sony
`Music Entertainment for Summary Judgment in Case
`No. 2: 19-cv-01712-GW-AGRx and Case No. 2:19-cv-
`04167-GW-AGR.x,
`IT IS ORDERED AND ADJUDGED that plaintiff
`Gary Frisby take nothing and that his First Amended
`Complaint in Case No. 2: l 9-cv-01712-GW-AGRx and
`his Complaint in Case No. 2:19-cv-04167-GW-AGRx
`
`

`

`App.8a
`
`each be dismissed on the merits and in favor of defend-
`ants Bryson Tiller, Michael Hernandez, and Sony Music
`Entertainment favor, with those defendants to recover
`their costs.
`
`
`/s/ The Honorable George H. Wu
`United States District Judge
`
`
`Dated: March 15, 2021
`
`
`
`
`

`

`App.9a
`
`
`
`IMAGE OF JUDGMENT, CASE 1712
`
`
`
`
`
`

`

`App.10a
`
`JUDGMENT, CASE 4167, DISTRICT COURT
`AND IMAGE OF JUDGMENT
` (ENTERED MARCH 18, 2021)
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`________________________
`GARY FRISBY, ETC.,
`
`Plaintiff,
`
`v.
`SONY MUSIC ENTERTAINMENT, ETC., ET AL.,
`Defendants.
`AND CONSOLIDATED ACTION
`________________________
`Case No. CV 19-1712-GW-AGRx,
`CV 19-4167-GW-AGRx
`Date: March 2, 2020, Time: 8:30 a.m.
`Before: George H. WU, United States District Judge.
`
`JUDGMENT
`The Court having granted the Motion of defend-
`ants Bryson Tiller, Michael Hernandez, and Sony
`Music Entertainment for Summary Judgment in Case
`No. 2: 19-cv-01712-GW-AGRx and Case No. 2:19-cv-
`04167-GW-AGR.x,
`IT IS ORDERED AND ADJUDGED that plaintiff
`Gary Frisby take nothing and that his First Amended
`
`

`

`App.11a
`
`Complaint in Case No. 2: l 9-cv-01712-GW-AGRx and
`his Complaint in Case No. 2:19-cv-04167-GW-AGRx
`each be dismissed on the merits and in favor of defend-
`ants Bryson Tiller, Michael Hernandez, and Sony Music
`Entertainment favor, with those defendants to recover
`their costs.
`
`
`/s/ The Honorable George H. Wu
`United States District Judge
`
`
`Dated: March 15, 2021
`
`
`
`
`

`

`App.12a
`
`IMAGE OF JUDGMENT, CASE 4167
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`App.13a
`
`STATEMENT OF RULING GRANTING
`MOTION FOR SUMMARY JUDGMENT,
`FILED IN CASE 1712 & CASE 4167
`(MARCH 11, 2021)
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`CIVIL MINUTES - GENERAL
`________________________
`GARY FRISBY
`v.
`SONY MUSIC ENTERTAINMENT, ET AL.,
`________________________
`Case Nos. CV 19-1712-GW-AGRx,
`2:19-cv-04167-GW-(AGRx)1
`Before: George H. WU, United States District Judge.
`
`
`
`1 Plaintiff initially filed Frisby v. Sony Music Entm’t, et al., Case
`No. 2:19-cv-01712-GW-(AGRx), on March 7, 2019. On March 15,
`2019, he filed Frisby v. Sony Music Entm’t, et al., Case No. 2:19-cv-
`04167-GW-(AGRx). On July 11, 2019, the two cases were consolid-
`ated. As stated by Plaintiff’s then-counsel, the allegations in the
`complaints in both cases “are substantially the same” with the
`“only material difference” being that the first case concerns a sound
`recording copyright whereas the second concerns a musical
`composition copyright. See page 2 of Docket No. 27 in Frisby v.
`Sony Music Entm’t, et al., Case No. 2:19-cv-04167-GW-(AGRx).
`The ruling herein applies to both cases.
`
`

`

`App.14a
`
`PROCEEDINGS:
`
`Telephonic Hearing on Defendants Sony Music
`Entertainment, Bryson Tiller and Michael
`Hernandez’s Motion for Summary Judgment or
`Partial Summary Judgment [127]
`Defendants Sony Music Entertainment d/b/a/ RCA
`Records (“Sony”), Bryson Tiller (“Tiller”), and Michael
`Hernandez (“M. Hernandez”) (collectively, “the Sony
`Defendants”) have filed a motion for summary judgment/
`partial summary judgment (“Motion”) in this copyright
`infringement action brought by Gary Frisby (“Plain-
`tiff” or “Frisby”). See Docket No. 127-1. Plaintiff
`opposed the motion (the “Opposition”) (see Docket No.
`136); and the Defendants in turn filed a reply (“Reply”).
`See Docket No. 146.
`I.
`Introduction
`This action arises out of a copyright dispute between
`Plaintiff and a number of defendants regarding the
`alleged use and infringement of Plaintiff’s musical
`composition entitled Shawty So Cold (“Shawty”), which
`bears United States Copyright Registration Nos.
`SRu001240028 and Pau003965398. See Plaintiff’s
`First Amended Complaint (“FAC”) ¶¶ 1, 5, Docket No.
`79. Originally, there were a number of different
`defendants. The dispute as to the Sony Defendants
`arose out of their alleged use of copyrighted portions
`of Shawty in a song entitled “Exchange” that was
`released in March of 2016 by Tiller (the recording
`artist) and M. Hernandez (the record producer). Id.
`¶¶ 6-8. Another set of defendants included Jermaine
`Cole (“Cole”), Universal Music Group, Inc. d/b/a
`Interscope Records, Dreamville Records NY, Inc., and
`Roc Nation LLC (collectively, the “UMG Defendants”),
`
`

`

`App.15a
`
`who were accused of using Shawty copyrighted
`materials in the song “Déjà Vu.” Id. at ¶¶ 2-3, 10-14.
`One defendant, i.e. Cortez Bryant (“Bryant”), defaulted.
`See Docket No. 59. Two other defendants (i.e. Matthew
`Samuels, p/k/a “BOILDA,” and Anderson Hernandez,
`p/k/a “VINYLZ”) were voluntarily dismissed by Plain-
`tiff (see Docket Nos. 89, 96). Subsequently, the UMG
`Defendants were dismissed pursuant to a stipulation
`among the parties (see Docket Nos. 132-33). Other
`than Bryant who defaulted, the Sony Defendants are
`the only remaining defendants still in this lawsuit.
`On May 13, 2019, Plaintiff filed the FAC which
`includes causes of action for direct copyright infringe-
`ment of Shawty against Tiller and Sony (see FAC
`¶¶ 93-111), and contributory infringement against M.
`Hernandez allegedly for his role in causing Shawty to
`be used as the basis for Exchange. Id. ¶¶ 154-59. Plain-
`tiff claims that, although 10% of Shawty is comprised
`of samples from the song Swing My Way (“Swing”) by
`artists K.P. and Envyi, his song is otherwise original
`and protected by applicable copyright laws. See FAC
`¶¶ 35-37. The Sony Defendants deny all allegations of
`infringement and secondary liability. See Docket Nos.
`94, 103, 113.
`The Sony Defendants are moving for summary
`judgment arguing that: (1) Plaintiff owns no valid
`copyright in the portions of Shawty which he claims
`the Defendants utilized and, accordingly, cannot sue
`for infringement; (2) even if Plaintiff does have
`ownership, he has not established that any actionable
`copying occurred; and (3) Plaintiff is seeking to enforce
`copyright protections for unprotectable parts of his
`song. See Motion at 1-2. Further, Defendants contend
`
`

`

`App.16a
`
`that Plaintiff’s claims against M. Hernandez for con-
`tributory or vicarious liability as to Exchange’s alleged
`violation of the Shawty copyright also come to naught
`because Exchange does not infringe upon any valid
`Shawty copyright. Id. at 2.
`The Court finds that Plaintiff does not have a
`valid copyright in the portions of Shawty which he
`claims were incorporated into Exchange, and the Sony
`Defendants have established (and Plaintiff has not
`demonstrated that there is a material fact in con-
`tradiction) that Exchange has not copied any appreciable
`portion of Shawty.
`II. Procedural Standard
`Summary judgment is proper when “the movant
`shows that there is no genuine dispute as to any
`material fact and the movant is entitled to judgment
`as a matter of law.” Fed. R. Civ. P. 56(a); see also
`Miranda v. City of Cornelius, 429 F.3d 858, 860 n.1
`(9th Cir. 2005). To satisfy its burden at summary judg-
`ment, a moving party without the burden of persua-
`sion—applicable to Defendants on all of the issues raised
`by this Motion—“must either produce evidence negating
`an essential element of the nonmoving party’s claim
`or defense or show that the nonmoving party does not
`have enough evidence of an essential element to carry
`its ultimate burden of persuasion at trial.” Nissan Fire
`& Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d
`1099, 1102 (9th Cir. 2000) (emphasis added); see also
`Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)
`(en banc) (“When the nonmoving party has the burden
`of proof at trial, the moving party need only point out
`‘that there is an absence of evidence to support the
`nonmoving party’s case.’”) (quoting Celotex Corp. v.
`
`

`

`App.17a
`
`Catrett, 477 U.S. 317, 325 (1986), and citing Fairbank
`v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th
`Cir. 2000)); Fairbank, 212 F.3d at 532 (holding that
`the Celotex “showing” can be made by “pointing out
`through argument . . .the absence of evidence to sup-
`port plaintiff’s claim”).
`If the party moving for summary judgment
`meets its initial burden of identifying for the
`court the portions of the materials on file
`that it believes demonstrate the absence of
`any genuine issue of material fact, the non-
`moving party may not rely on the mere alle-
`gations in the pleadings in order to preclude
`summary judgment[, but instead] must set
`forth, by affidavit or as otherwise provided in
`Rule 56, specific facts showing that there is
`a genuine issue for trial.
`T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass’n,
`809 F.2d 626, 630 (9th Cir. 1987) (internal citations
`and quotation marks omitted).
`The opposing party must “cit[e] to particular parts
`of materials in the record” or show that the materials
`the moving party cited do not establish the absence of
`a genuine dispute. Fed. R. Civ. P. 56(c)(1); see also
`Fed. R. Civ. P. 56(c)(3) (“The court need consider only
`the cited materials, but it may consider other materials
`in the record.”); Phillips & Stevenson, RUTTER
`GROUP PRAC. GUIDE, FEDERAL CIV. PRO.
`BEFORE TRIAL (The Rutter Group 2020) (“Phillips
`& Stevenson”), ¶¶ 14:101.10-101.12, 14:102. In addi-
`tion, under this Court’s Local Rules, where the moving
`party on a motion for summary judgment has “claimed
`and adequately supported” material facts, those facts
`“are admitted to exist without controversy except to
`
`

`

`App.18a
`
`the extent that such material facts are (a) included in
`the ‘Statement of Genuine Disputes’ [described in
`Local Rule 56-2] and (b) controverted by declaration
`or other written evidence filed in opposition to the
`motion.” See C.D. Cal. L.R. 56-3; see also Gordon v.
`Virtumundo, Inc., 575 F.3d 1040, 1058 (9th Cir. 2009)
`(“The ‘party opposing summary judgment must direct
`[the court’s] attention to specific, triable facts,’ and
`the reviewing court is ‘not required to comb through
`the record to find some reason to deny a motion for
`summary judgment.’”) (quoting S. Cal. Gas Co. v. City
`of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen
`v. San Francisco Unified Sch. Dist., 237 F.3d 1026,
`1029 (9th Cir. 2001) (“[W]hatever establishes a genuine
`issue of fact must both be in the district court file and
`set forth in the response.”).
`Factual assertions made in legal memoranda, but
`not supported by the evidence submitted, are insuffi-
`cient. See S.A. Empresa De Viacao Aerea Rio Grandense
`(Varig Airlines) v. Walter Kidde & Co., 690 F.2d 1235,
`1238 (9th Cir. 1980). Similarly, one’s own allegations
`in the pleadings are generally not suitable to create a
`genuine dispute. See Phillips & Stevenson, ¶ 14:185.
`Materials presented on summary judgment must be
`admissible under the rules of evidence. In re Sunset
`Bay Ass’n, 944 F.2d 1503, 1514 (9th Cir. 1991).
`“Only disputes over facts that might affect the
`outcome of the suit under the governing law will
`properly preclude the entry of summary judgment.
`Factual disputes that are irrelevant or unnecessary
`will not be counted.” Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242, 248 (1986). In addition, a party may not
`argue claims that are not present in the pleadings. See
`Phillips & Stevenson, ¶ 14:106.5.
`
`

`

`App.19a
`
`Generally speaking, in judging evidence at the
`summary judgment stage, the court does not make
`credibility determinations or weigh conflicting evidence,
`and views all evidence and draws all inferences in the
`light most favorable to the non-moving party. See T.W.
`Elec., 809 F.2d at 630-31 (citing Matsushita Elec. Indus.
`Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986));
`Motley v. Parks, 432 F.3d 1072, 1075 n.1 (9th Cir. 2005)
`(en banc); Miranda, 429 F.3d at 860 n.1. Conclusory,
`speculative testimony in affidavits and moving papers
`is insufficient to raise genuine issues of fact and
`defeat summary judgment. See National Steel Corp.
`v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir.
`1997); Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d
`730, 738 (9th Cir. 1979); Lewis v. Philip Morris Inc.,
`355 F.3d 515, 533 (6th Cir. 2004) (“‘In order to survive
`a motion for summary judgment, the non-moving party
`must be able to show sufficient probative evidence [that]
`would permit a finding in [his] favor on more than
`mere speculation, conjecture, or fantasy.’”) (omitting
`internal quotation marks) (quoting Godfrey v. Pulitzer
`Publ’g Co., 276 F.3d 405, 412 (8th Cir. 2002)); see
`also Phillips & Stevenson ¶ 14:171.
`With all of these considerations in mind, the court
`must then determine whether “a reasonable jury could
`return a verdict for the nonmoving party.” Anderson,
`477 U.S. at 248; see also Triton Energy Corp. v. Square
`D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere
`existence of a scintilla of evidence in support of the
`non-moving party’s position is not sufficient.”).
`
`

`

`App.20a
`
`III. Evidentiary Objections2
`
`to Plaintiff’s
`A. Defendants’ Objections
`Declaration (see Docket Nos. 138, 146-2)
`1. Sustain.
`2. Sustain.
`3. Sustain except as to his personal knowledge
`about his own experiences as a producer in
`the industry.
`4. Sustain.
`5. Sustain.
`6. Sustain.
`7. Sustain.
`8. Sustain.
`9. Sustain except for his reflections that the
`man with whom he was dealing was the
`actual Cortez Bryant.
`10. Sustain.
`11. Sustain.
`12. Sustain.
`13. Sustain except for Plaintiff’s statements that
`he was aware that producers Boilda and
`Vinylz had produced beat tracks for Drake.
`14. Overrule except for the quoted description
`from the Youtube posting.
`
`2 The Court does not consider evidentiary objections that do not
`comply with its Standing Order regarding Summary Judgment
`Motions. See Docket No. 130.
`
`

`

`App.21a
`
`15. Sustain except for Plaintiff’s understanding
`that the Youtube posting description was a
`solicitation to submit his work to the video
`uploader.
`16. Overrule.
`17. Sustain.
`18. Sustain.
`19. Overrule.
`20. Overrule. Pursuant to Fed. R. Evid. 801(d)
`(2)(A) and 803(20).
`21. Overrule.
`22. Overrule.3
`23. Sustain.
`24. Sustain.
`25. Sustain except for Plaintiff’s statement that
`he is aware that Bryant is a personal manager
`and not a creative artist, thereby establishing
`
`3 The Sony Defendants’ Objection No. 22 is overruled for two
`reasons. First, it refers to “page 8, paragraph 18, lines 10-13.”
`See Docket No.146-2 at 15 of 29. However, page 8 lines 10-13 are
`in paragraph 17 and not 18. Second, Defendants cite to Peter
`Anderson’s Reply Declaration in Support of Defendants’ Motion
`(“Anderson Reply Decl.”), referencing “Exh. 20 (Frisby Depo.) at
`68:7-71:18.” however none of those pages were included in that
`document. See Docket No. 146-1 at 10-11 of 23, Ex. 20—Deposi-
`tion of Gary Frisby in Support of Peter Anderson (“Frisby Depo.
`ISO AR”). Instead, Exhibit 20 skips from page 26 to page 76. Id.
`Likewise, the Frisby deposition attached to the Motion (Ex. 19)
`only includes page 68. See Docket No. 127-29, Ex. 19, Deposition
`of Gary Frisby in Support of the Motion (“Frisby Depo ISO
`Motion”), 29-30. Accordingly, there is insufficient evidence to
`justify sustaining Defendants’ objections to this paragraph.
`
`

`

`App.22a
`
`that he was not involved in the artistic
`creation of the beats at issue.
`26. Sustain except for Plaintiff’s last sentence (“I
`have settled with the Déjà vu defendants”).
`27. Sustain, pursuant to 17 U.S.C. §§ 102(a)(2)
`& 114(a)-(b).
`28. Sustain.
`29. Sustain.
`30. Sustain.
`31. Sustain.
`32. Sustain.
`33. Sustain.
`34. Sustain.
`35. Sustain.
`36. Sustain.
`37. Sustain. Frisby submitted no rebuttal expert
`report and has no musicological training.
`38. Sustain except for Plaintiff’s admission that
`his claim relates only to the parts of Defend-
`ants’ song which allegedly use the four-bar
`melody from Swing.
`39. Sustain. Plaintiff has no expert foundation to
`state that Sony’s expert “is demonstrably so
`incorrect that it could be considered musico-
`logically incompetent.”
`40. Overrule. Though he may not provide expert
`testimony, he may still speak based on his
`personal knowledge as a layperson on social
`media platforms (twitter, Youtube, etc.) who
`
`

`

`App.23a
`
`has seen public conversations on those
`platforms.
`41. Sustain except for Plaintiff’s assertion that
`he settled his claims against the Déjà Vu
`Defendants.
`42. Sustain, pursuant to Fed. R. Evid. 602 and
`Fed. R. Civ. P. 37(c)(1).
`43. Sustain.
`44. Sustain.
`B. Defendants’ Objections to James Belt’s
`Declaration (Docket Nos. 140, 146-2)
`45. Sustain. Belt’s declaration is stricken pursu-
`ant to the Court’s November 26 Order (see
`Docket No. 123) and FRCP 37(c)(1).
`46. Sustain.
`to Brian
`C. Defendants’ Objections
`McBrearty’s Declaration (Docket Nos. 139,
`146-2)
`47. Overrule.4
`
`
`4 The Sony Defendants object to this Court’s consideration of any
`portion of Plaintiff’s expert’s (i.e. Brian McBrearty) October 9,
`2019 declaration (see Docket No. 139) because portions of the dec-
`laration conflict with said expert’s December 20, 2019 deposition
`testimony. It has been noted by the Supreme Court that a party
`cannot create a genuine issue of fact sufficient to survive a sum-
`mary judgment motion simply by contradicting a previously sworn
`statement with a later-made sworn statement without explaining
`the contradiction or attempting to resolve the disparity. See, e.g.
`Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806
`
`

`

`App.24a
`
`IV. Factual Background
`
`A. Defendants’ Statement of Undisputed
`Facts and Plaintiff’s Response
`C.D. Cal. L.R. 56-1 provides that: “A party filing
`a notice of motion for summary judgment or partial
`summary judgment shall lodge a proposed ‘Statement
`of Uncontroverted Facts and Conclusions of Law.’
`
`(1999). Here, however, there is not really a contradiction, or at
`least not an unexplained contradiction.
`While McBrearty does state in his declaration that the question
`of whether Déjà Vu or Exchange actually sampled Shawty was
`inconclusive, his justification does not establish a clear contradic-
`tion to his deposition testimony. See Docket No. 139, McBrearty
`Declaration in Opposition of the Motion (“McBrearty Decl.”), at
`3-4 (“While it appears possible that [Defendants] could have both
`sampled four bars of Shawty . . . includ[ing] the [Swing] Samples,
`there is no proof to negate the possibility they obtained their
`sample of [Swing] from another source.”). This is not inconsistent
`with his clarification that, while he has not definitively conclu-
`ded that Shawty was sampled by Defendants, he still opines that
`it is unlikely that sampling occurred. See Docket No. 127-28,
`McBrearty Depo. in Support of the Motion (“McBrearty Depo.”),
`Ex. 18, at 6:2-8; see also McBrearty Depo. at 7:19-8:3 (“[I]t is my
`opinion that it is unlikely . . . that [Shawty] contains elements
`simultaneously along with [the Swing] sample . . . And [also]
`unlikely . . . that the Exchange material is the Shawty material[,]
`because I don’t hear the . . . other elements in that ensemble.”).
`In short, McBrearty is simply stating that he is reluctant to
`provide a definite answer to an open question. Thus, viewing
`this evidence in light most favorable to Plaintiff, McBrearty’s
`declaration is not necessarily contradictory to his deposition.
`Nevertheless, as discussed infra, because McBrearty is Plain-
`tiff’s sole expert witness on an essential issue which requires
`expert testimony (at least Plaintiff’s sole expert witness on the
`topic whose testimony is admissible in this litigation), even
`though the Court does consider McBrearty’s testimony, it does
`not salvage Plaintiff’s case.
`
`

`

`App.25a
`
`Such proposed statement shall set forth the material
`facts as to which the moving party contends there is
`no genuine dispute.” C.D. Cal. L. R. 56-2 states that:
`“Any party who opposes the motion shall serve and file
`with the opposing papers a separate document con-
`taining a concise ‘Statement of Genuine Disputes’
`setting forth all material facts as to which it is contended
`there exists a genuine di