Los Angeles Daily Journal (March 29, 2013)
Case/Number: Fred Fontana v. Carmen Harra Enterprises, Inc., Global Entertainment Movies LLC, Carmen Harra, and Otmar Sibilo / 2:2012-cv-10708.
Court/Date: USDC Central/March 12, 2013
Judge: Hon. Christina A. Snyder
Plaintiff – Edwin F. McPherson, Pierre Pine, Tracy Rane (McPherson & Kalmansohn LLP Los Angeles)
Defendant – Steven T. Lowe (Lowe Law, APLC, Los Angeles); Gerard P. Fox (Law Offices of Gerard P. Fox Inc., Los Angeles); Jana Moser (Law Offices of Gerard Fox, Inc., Los Angeles)
Facts: Fred Fontana filed a complaint against Carmen Harra and others, alleging that defendants planned on using a screenplay rewritten by him to make and promote a film about Carmen Harra’s life story. He alleged claims for copyright infringement, breach of implied contract, breach of contract, fraud, injunctive relief, and declaratory relief. Fontana was a screenwriter who Harra approached to write a screenplay about her life story. They orally agreed that Fontana would write the script and be paid $13,000 in advance. Fontana was paid the $13,000 but alleged that he was promised a substantially greater amount for his screenwriting and production services.
Defendants filed a motion to dismiss Fontana’s copyright claim on the basis that an affirmative defense to it – the grant of an implied license to use the screenplay – existed on the face of the complaint. Fontana filed an opposition to the motion on the basis that such a finding would be premature at the motion to dismiss stage. In addition, Fontana claimed that he never intended to allow defendants to use the script until he received payment in full, and that facts about his ongoing business relationship with defendants demonstrated that he did not intend to allow them to use the screenplay. All of the other claims, including fraud and breach of contract, remain.
Result: The court granted the motion to dismiss the copyright claim, with leave to amend. Because Fontana pled facts that gave rise to an affirmative defense, defendants could raise that defense in a motion to dismiss. The court dismissed Fontana’s argument that payment in full was an oral condition precedent to use of the screenplay. In addition, because Fontana’s complaint did not claim there was any connection between his role as a screenwriter and his role as a producer, his intent as the latter could not inform his intent as the former. The court ruled that unless Fontana could demonstrate such a connection in an amended complaint, it would dismiss his copyright claim with prejudice. In doing so, the court held that Fontana would lose his federal question jurisdiction, and his state law claims would be dismissed as well.
Other information: Carmen Harra has a pending state court action against Fred Fontana and others for multiple claims, including professoinal negligence, breach of fiduciary duty, intentional interference with contract, rescission and restitution, declaratory relief, defamation, and aiding and abetting breach of fiduciary duty.