to judgment as a matter of law. Fed.R.Civ. P. 56(c). The moving party bears the initial burden of establishing theabsence of a genuine issue of material fact.
Celotex Corp.v. Catrett
, 477 U.S. 317, 323-24 (1986). Once the movingparty has met its burden, the nonmoving party must go beyond the pleadings and identify specific facts throughadmissible evidence that show a genuine issue
; Fed.R.Civ. P. 56(c). Conclusory or speculativetestimony 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 notsignificantly probative.
Addisu v. Fred Meyer
, 198 F.3d 1130, 1134 (9th Cir. 2000). A disputed fact is "material" wherethe 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.
Where the moving and nonmoving parties' versions of events differ, courts are required toview the facts and draw reasonable inferences in the light most favorable to the nonmoving party.
Scott v. Harris
, 550U.S. 372, 378 (2007).
This case is complicated by Defendants' halfhearted defense. First, the Court entered default judgment against theband because the band, as a partnership, never responded to the allegations in the Complaint. (ECF No. 34.) Next,the individual Defendants hired lawyers to file their Answers to the Complaint, but soon thereafter, the lawyerswithdrew citing irreconcilable differences and failure to pay. (ECF No. 51.) Now, in the face of Sperske's summary- judgment Motion, the individual Defendants failed to file an opposition.Sperske's Motion for Summary Judgment essentially seeks resolution of two issues: (1) whether Sperske and theIndividual Defendants formed a partnership; and (2) whether Sperske is a co-author and co-owner of the 12compositions on the album
. The direction of the remaining causes of action—how the band's profitsshould be distributed—necessarily flow from the determination of these two issues. The Court first turns to thepartnership issue.
Under California Law, "the association of two or more persons to carry on as co-owners a business for profit forms apartnership, whether or not the persons intend to form a partnership." Cal. Corp. Code § 16202(a). If not in writing, apartnership can be inferred if parties participate in (1) profits and losses, (2) contributing money, property, or services,and (3) management of the business.
In re Lona
, 393 B.R. 1, 14 (Bankr. N.D. Cal. 2008);
, 104Cal.App.2d 311, 315 (1951) ("To participate to some extent in the management of a business is a primary element inpartnership organization, and it is virtually essential to a determination that such a relationship existed.").Sperske alleges that he and the individual Defendants entered into an oral partnership agreement, and also assertsthat his status as a partner is evidenced by his contribution of services and receipt of profits while touring with theband. (SUF ¶ 13.) Though the individual Defendants failed to file an opposition, it is obvious that they opposeSperske's assertions based upon their earlier-filed motions for reconsideration. (ECF Nos. 36, 47.)First, profit sharing is not sufficient to demonstrate partnership if such sharing could just as easily
constitute wagesfor employment with the band. Cal. Corp. Code § 16202(c)(3)(B). Sperske has not shown that his profit sharing wasanything more than wages; for example, he has not shown that he "filed partnership tax returns or made partner drawpayments."
, [2013 BL 69704], 2013 WL 1087653, at *15 (N.D. Cal. Mar.14, 2013). This suggests that Sperske is trying to retroactively claim the benefits of partnership without paying for theprivilege up front.Second, even if some of the hallmarks of a partnership are present (e.g., sharing of profits and contribution of services), Sperske has not proven the primary element of a partnership: participation in the band's management.Rather, evidence suggests that Rosenberg was the main force behind the band and controlled the band's creative and
Sperske v. Rosenberg, Case No. 2:12-cv-07034-ODW(JCx)., 2013 BL 195080 (C.D. Cal. July 23, 2013),
© 2013 Bloomberg Finance L.P. All rights reserved.Terms of ServiceView at Bloomberg Law
// PAGE 2