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Sperske v Rosenberg, Case No 21~

Sperske v Rosenberg, Case No 21~

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Published by Mark H. Jaffe
Ariel Pink's Haunted Graffiti
Ariel Pink's Haunted Graffiti

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Categories:Types, Business/Law
Published by: Mark H. Jaffe on Jul 30, 2013
Copyright:Attribution Non-commercial


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Sperske v. Rosenberg, Case No. 2:12-cv-07034-ODW(JCx)., 2013 BL 195080(C.D. Cal. July 23, 2013), Court Opinion
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TOR EKELAND on Monday, July 29, 2013 - 1:07 PM
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Sperske v. Rosenberg, Case No. 2:12-cv-07034-ODW(JCx)., 2013 BL 195080 (C.D. Cal. July 23, 2013)Pagination
*BLUnited States District Court, C.D. California AARON SPERSKE, Plaintiff, v. ARIEL ROSENBERG a/k/a ARIEL PINK; KWANG NAM KOH p/k/a TIM KOH;KENNETH JOHN GILMORE; and ARIEL PINK'S HAUNTED GRAFFITI, Defendants.Case No. 2:12-cv-07034-ODW(JCx).July 23, 2013.
Otis D. Wright, II, District JudgeIn May 2012, band members Ariel Rosenberg, Kwang Nam Koh, and Kenneth John Gilmore ousted drummer AaronSperske from the band Ariel Pink's Haunted Graffiti. Shortly thereafter, the band released the album
Mature Themes 
and had moderate business success. Having been slighted, Sperske brought this action against the band and theindividual band members. Sperske's Complaint alleges four claims for relief: (1) declaratory relief and an accountingunder the Copyright Act for 25% ownership of the copyrights to the compositions on the album
Mature Themes 
; (2)declaratory relief under the California Uniform Partnership Act; (3) an accounting of partnership assets and proceeds;and (4) breach of fiduciary duty.The Court entered default judgment against Ariel Pink's Haunted Graffiti on October 23, 2012. (ECF No. 34.) Sperskenow moves the Court for summary judgment against the individual Defendants. (ECF No. 62.) After considering thepapers filed by Sperske and the oral arguments presented at the hearing, the Court
Sperske's Motion for Summary Judgment. The Court also
the earlier-issued default judgment against Ariel Pink's HauntedGraffiti.
 Ariel Rosenberg started the band Ariel Pink's Haunted Grafitti in 1996. (Rosenberg Decl. ¶ 2 (ECF No. 36-1).) In about2008, the members of the band consisted of Ariel Rosenberg, Kwang Nam Koh, Kenneth John Gilmore, AaronSperske, and a fifth individual. (SUF ¶ 1.) In late 2009, the band entered into a recording contract with 4AD Records.(SUF ¶ 5.) Each band member signed the 4AD contract. (SUF ¶ 6.) The band released two albums under therecording contract:
Before Today 
in 2010 and
Mature Themes 
in 2012. (SUF ¶ 7.)On May 15, 2012, Rosenberg, Koh, and Gilmore ousted Sperske from the band. (Compl. ¶ 13.) After Sperske'sdeparture, the band continued its business, earning a total of $219,498, from touring revenue and merchandise sales.(SUF ¶ 23.)Earlier in this case, the Court granted Sperske's Motion for Default Judgment against Ariel Pink's Haunted Graffiti.(ECF No. 34.) After conducting discovery, Sperske filed this Motion for Summary Judgment against Rosenberg, Koh,and Gilmore in their individual capacities.
Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled
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 1
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
for trial.
; 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
Mature Themes 
. 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.
A. Partnership
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);
Dickensonv. Sample
, 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."
Fredianelliv. Jenkins 
, No.
C-11-3232 EMC 
, [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

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