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Fontana v Harra

Fontana v Harra

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Published by propertyintangible
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Published by: propertyintangible on Mar 27, 2013
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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.CV 12-10708 CAS (JCGx)DateMarch 12, 2013TitleFRED FONTANA V. CARMEN HARRA, ET AL.Present: The HonorableCHRISTINA A. SNYDECatherine JeangNot PresentN/ADeputy ClerkCourt Reporter / RecorderTape No.Attorneys Present for Plaintiffs:Attorneys Present for Defendants Not presentNot present
Proceedings:
(IN CHAMBERS): DEFENDANTS’ MOTION TO DISMISSPLAINTIFF’S FIRST AMENDED COMPLAINT (filed January30, 2013)
I.INTRODUCTION
On December 14, 2012, plaintiff Fred Fontana filed the instant action in this courtagainst Carmen Harra (“Harra”), Carmen Harra Enterprises, Inc. (“Carmen HarraEnterprises”), Otmar Sibilo, Global Entertainment Movies, LLC (“GlobalEntertainment”), and Sibilo & Harra Entertainment, LLC (“Sibilo & HarraEntertainment”). The subject of this case is plaintiff’s screenplay, entitled “DecodingHer Destiny – The Carmen Harra Story,” which was registered with the U.S. CopyrightOffice on October 17, 2012, Registration No. TX 7-589-639. Plaintiff alleges thatdefendants are using his screenplay without his consent to make and promote a film aboutdefendant Carmen Harra’s life story (“the film”).On December 27, 2012, plaintiff filed his first amended complaint. Plaintiff’sFAC alleges the following claims for relief: (1) copyright infringement, (2) breach of implied contract, (3) breach of contract, (4) fraud, (5) injunctive relief, and (6)declaratory relief. On January 30, 2013, defendants filed a motion to dismiss plaintiff’scopyright claim. Plaintiff filed an opposition on February 11, 2013, and defendantsreplied on February 15, 2013.The Court held a hearing on March 4, 2013, and tentatively indicated to the partiesthat defendants’ motion was likely to be denied. After further considering the case lawand the parties’ arguments, however, the Court finds that the motion should be granted,for the reasons enumerated below.
CV-12-10708 (3/13)
CIVIL MINUTES - GENERAL
Page 1 of 14
!ase 2:12-cv-10708-!AS-J!G Document 21 Filed 03/12/13 Page 1 of 14 Page ID #:192
 
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.CV 12-10708 CAS (JCGx)DateMarch 12, 2013TitleFRED FONTANA V. CARMEN HARRA, ET AL.
II.BACKGROUND
Plaintiff Fred Fontana is a screenwriter and producer who has worked in theentertainment industry for over twenty years. FAC ¶ 14. Defendant Carmen Harra is a psychic, and has written several books and appeared on television. Id. ¶ 20. InDecember 2011, defendant Harra approached plaintiff to rewrite a screenplay aboutHarra’s life story. Id. ¶ 21. Plaintiff and Harra orally agreed that plaintiff would writethe script, and Harra would pay plaintiff an advance of $13,000.00, with unspecifiedadditional fees to be paid out of the first funds invested in the film. Id. The parties alsoagreed that no portion of the script would be used by any defendant for any purposeunless and until plaintiff was paid the full amount that he was owed. Id. DefendantHarra gave two separate checks to plaintiff in the amounts of $10,000.00 and $3,000.00,which plaintiff cashed. Plaintiff completed a draft of the screenplay (“plaintiff’sscreenplay”) in February 2012, and delivered it to defendants, who were pleased with theresult. Id. 22–25.Additionally, the parties agreed that plaintiff would be employed on the film as a“co-producer.” Id. ¶ 21. In his capacity as co-producer, plaintiff prepared schedules and budgets for the film, and also contacted actors, agents, and managers. Id. ¶ 38. Plaintiff has been paid $5,000 for his work as a co-producer. Id.Plaintiff alleges that although he was promised a substantially greater amount of money for his screenwriting and production services, he has not been paid. Id. ¶ 39.Plaintiff alleges that he is to be paid between $140,000 and $180,000 for his scriptwriting services, and between $60,000 and $170,000 for his production services,depending on the overall size of the film’s budget. Id. ¶¶ 26 – 27. Plaintiff also claimsrights to a portion of the film’s net profits and gross revenues. Id. ¶ 32. Moreover, plaintiff alleges that his screenwriting fee was to be paid out of the first funds invested inthe film, and that he has not received payment even though $1.1 million has beeninvested in the film. Id. ¶¶ 36 – 37. Additionally, plaintiff claims that defendant Harrahas refused to sign a written document setting out the terms of their agreement regardinghis screenwriting fees. Id. ¶¶ 33 – 37.Plaintiff alleges that defendant Harra has been attending film festivals andshopping plaintiff’s screenplay to potential investors, producers, and other members of 
CV-12-10708 (3/13)
CIVIL MINUTES - GENERAL
Page 2 of 14
!ase 2:12-cv-10708-!AS-J!G Document 21 Filed 03/12/13 Page 2 of 14 Page ID #:193
 
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.CV 12-10708 CAS (JCGx)DateMarch 12, 2013TitleFRED FONTANA V. CARMEN HARRA, ET AL.the entertainment industry without any authorization from plaintiff. Id. ¶ 40. Plaintiff also alleges that a film created using his screenplay will be released next year. Id. ¶ 44.Plaintiff seeks money damages and an injunction preventing defendants from using hisscreenplay to promote or produce the film.
III.LEGAL STANDARDA.Motion to Dismiss
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in acomplaint. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does notneed detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his‘entitlement to relief’ requires more than labels and conclusions, and a formulaicrecitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must be enough to raise aright to relief above the speculative level.” Id.In considering a motion pursuant to Rule 12(b)(6), a court must accept as true allmaterial allegations in the complaint, as well as all reasonable inferences to be drawnfrom them. Pareto v. F.D.I.C., 139
 
F.3d 696, 699 (9th Cir. 1998). The complaint must beread in the light most favorable to the nonmoving party. Sprewell v. Golden State
 
Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Parks Sch. of Bus., Inc. v. Symington, 51F.3d 1480, 1484 (9th Cir. 1995). However 
 
, “[i]n keeping with these principles a courtconsidering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.While legal conclusions can provide the framework of a complaint, they must besupported by factual allegations.” Ashcroft v. Iqbal
 
, 556 U.S. 662, 129 S.Ct. 1937, 1950(2009); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[F]or acomplaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ andreasonable inferences from that content, must be plausibly suggestive of a claim entitlingthe plaintiff to relief.”) (citing Twombly
 
and Iqbal
 
); Sprewell
 
, 266 F.3d at 988; W.Mining Council v. Watt
 
, 643 F.2d 618, 624 (9th Cir. 1981). Ultimately, “[d]eterminingwhether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”Iqbal, 129 S.Ct. at 1950.
CV-12-10708 (3/13)
CIVIL MINUTES - GENERAL
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!ase 2:12-cv-10708-!AS-J!G Document 21 Filed 03/12/13 Page 3 of 14 Page ID #:194

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