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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No.CV 18-4126 PA (JEMx)DateAugust 6, 2020TitleRobin Bain v. Film Independent, Inc., et al.Present: The HonorablePERCY ANDERSON, UNITED STATES DISTRICT JUDGET. JacksonNot ReportedN/ADeputy ClerkCourt ReporterTape No.Attorneys Present for Plaintiffs:Attorneys Present for Defendants: NoneNone

Proceedings:

IN CHAMBERS – COURT ORDER

Before the Court is a Motion for Summary Judgment filed by defendant andcounterclaimant Jessica Cesaro, who is professionally known as Jessica Haid (“Haid”) (Docket No. 115). Also before the Court is a Motion for Partial Summary Judgment filed by plaintiff andcounterdefendant Robin Bain (“Bain”) (Docket No. 120). Pursuant to Rule 78 of the FederalRules of Civil Procedure and Local Rule 7-15, the Court finds that these matters are appropriatefor decision without oral argument. The hearing calendared for August 10, 2020, is vacated, andthe matters taken off calendar.

I.Background

Bain alleges that she registered the copyright for the motion picture Nowhereland, whichwas also distributed as Girl Lost (the “Film”). Bain wrote, produced, directed, and performed inthe Film, which was completed in late 2015 or early 2016. Haid appeared in the Film. Bainalleges that Haid asked Bain to allow Haid to add scenes from the Film to her acting reel, butBain refused, fearing that release of portions of the Film could hinder Bain’s efforts to obtain adistribution deal for the film. The Film was exhibited at a number of film festivals in 2016 anddistributed on streaming platforms and through other avenues beginning in 2018.

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In their respective Statements of Genuine Disputes of Material Fact by Opposing Party, both Haid and Bain “dispute” certain facts by claiming to lack sufficient knowledge to admit or deny a fact and on that basis denying the fact. While such pleading may be common when filingan Answer, it is insufficient in response to a summary judgment motion. See Local Rule 56-3(“In determining any motion for summary judgment or partial summary judgment, the Court mayassume that the material facts as claimed and adequately supported by the moving party areadmitted to exist without controversy except to the extent that such material facts are (a)included in the “Statement of Genuine Disputes” and (b) controverted by declaration or other written evidence filed in opposition to the motion.”).

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Case 2:18-cv-04126-PA-JEM Document 139 Filed 08/06/20 Page 1 of 10 Page ID #:3493



Case No.CV 18-4126 PA (JEMx)DateAugust 6, 2020TitleRobin Bain v. Film Independent, Inc., et al.

In 2017, after the Film was screened at film festivals, but before a wider commercialrelease, Haid obtained a watermarked copy of the Film. Haid retained LA Media Works, Corp.(“LA Media”)

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to edit scenes from the Film to create an acting reel she could submit to castingdirectors so that Haid could obtain additional acting roles in other productions. To create thereel, Haid shared the watermarked copy of the Film with LA Media through a Google Drive link. LA Media removed the watermark from scenes in the film in which Haid appeared when itcreated the reel. LA Media created at least two versions of the acting reel, one version wasapproximately 2 minutes and 50 seconds, and the other was approximately 3 minutes and 39seconds. The longer of the two versions of the reel includes approximately 40 clips from the 95minute film. All but 2 of the approximately 40 clips are less than 10 seconds in length. Thelonger reel includes 1 minute and 9 seconds from a 2 minute and 37 second scene. That longer scene consists of 3 separate segments from that scene edited together. LA Media’s recordsindicate that one of the versions was viewed a total of three times. It is unclear how many timesthe other version was viewed.In August 2017, Bain discovered Haid’s reel on LA Media’s website. On August 11,2017, an attorney representing Bain contacted Haid and demanded that she destroy all copies of the Film and to remove the reel from the internet. Haid did remove the reel from the internet andstated that she did not possess a copy of the Film as of August 31, 2017. Bain contends thatHaid spoliated evidence by destroying all communications concerning the receipt of thewatermarked copy of the Film and distribution of the reel. It also appears that Haid, whodescribes herself as technologically illiterate, neglected to delete the copy of the Film fromHaid’s Google Drive. The copy of the Film saved on Haid’s Google Drive listed Haid as the“owner” of the file, a designation Haid believes was generated automatically by Google. Thecopy of the Film saved on Haid’s Google Drive could be viewed by anyone who received anemail with the link and did not require a password to view.Bain commenced this action on May 16, 2018, and asserted claims for: (1) copyrightinfringement; (2) vicarious and/or contributory copyright infringement; (3) violations of theDigital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1202; and (4) conversion. The Courtgranted Haid’s Motion to Dismiss the conversion claim.

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LA Media has dismissed its Crossclaim against Haid. Although Bain has settled her claims with LA Media, she has not yet dismissed her claims against LA Media. Bain previouslydismissed her claims against Film Independent, Inc.

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Case No.CV 18-4126 PA (JEMx)DateAugust 6, 2020TitleRobin Bain v. Film Independent, Inc., et al.

Haid then filed, on August 28, 2018, a Counterclaim against Bain alleging claims for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) fraud;(4) negligent misrepresentation; (5) unfair business practices pursuant to California Business andProfessions Code section 17200; (6) failure to pay minimum wage; (7) failure to pay overtime;(8) failure to pay wages upon discharge; (9) waiting time penalties; (10) failure to provideitemized wage statements; and (11) tortious violation of OSHA and CAL/OSHA requirements to provide a safe work environment. According to the Counterclaim, among other allegations, Bainexposed Haid to unsafe conditions on the film set and, given the length of time Haid was on set,and the daily flat rate Haid was paid, Bain failed to pay Haid minimum wage for her work on theset, failed to pay her for reshoots or promotional work for the Film, and did not provide wagestatements required by California law.The matter languished in arbitration for approximately 16 months before returning to thisCourt when Bain lacked the funds to pay the required arbitration fees. See Tillman v. Tillman,825 F.3d 1069 (9th Cir. 2016) (finding an arbitration “had been had” when party could notafford arbitration fees and allowing case to proceed in district court as the only way for claim to be adjudicated). Haid, contending that the portions of the Film used in her acting reel qualify as“fair use,” seeks summary judgment on Bain’s copyright claims. Haid also claims that she isentitled to summary judgment on Bain’s DMCA claim because Bain has no evidence that Haid possessed the required intent for DMCA liability.Bain’s Motion for Partial Summary Judgment contends that Haid’s statutorycounterclaims 6-11, which allege wage and hour and safety violations, are barred by theapplicable three-year statute of limitations because Haid’s work on the Film ended on May 3,2015, and Haid did not file the Counterclaim until August 28, 2018.

II.Legal Standard

Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issueexists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett,477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party does so,the non-moving party must go beyond the pleadings and designate specific facts showing agenuine issue for trial. Id. at 324. The court does “not weigh the evidence or determine the truthof the matter, but only determines whether there is a genuine issue for trial.” Balint v. CarsonCity, 180 F.3d 1047, 1054 (9th Cir 1999). A “‘scintilla of evidence,’ or evidence that is ‘merelycolorable’ or ‘not significantly probative,’” does not present a genuine issue of material fact.

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