Gerritsen v. Warner Bros. Entm't Inc.

Decision Date30 January 2015
Docket NumberCase No. CV 14–03305 MMM (CWx).
Citation112 F.Supp.3d 1011
Parties Terry T. GERRITSEN, an individual, Plaintiff, v. WARNER BROS. ENTERTAINMENT INC., a Delaware corporation; Katja Motion Picture Corp., a California corporation; and New Line Productions, Inc., a California corporation, Defendants.
CourtU.S. District Court — Central District of California

Glen L. Kulik, Natalie N. Mutz, Kulik Gottesman and Siegel LLP, Sherman Oaks, CA, for Plaintiff.

Ashley K. Pearson, Laura E. Lorenz, Matthew T. Kline, O'Melveny and Myers LLP, Los Angeles, CA, Michelle Inouye Schultz, Warner Bros. Entertainment Inc., Burbank, CA, for Defendants.


MARGARET M. MORROW, District Judge.

On April 29, 2014, Terry T. Gerritsen filed this action against Katja Motion Picture Corporation ("Katja"), New Line Productions, Inc. ("New Line"), and Warner Bros. Entertainment, Inc. ("WB") (collectively, "defendants").1 On June 20, 2014, defendants filed a motion to dismiss Gerritsen's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.2 Gerritsen opposes the motion,3 and objects to a declaration submitted by defense counsel and the exhibits attached thereto.4 Defendants filed a response to Gerritsen's objection on September 15, 2014.5 On September 8, 2014, Gerritsen filed two separate requests for judicial notice, which in combination seek to have the court judicially notice 48 exhibits.6 Defendants opposed the requests on September 15, 2014.7

On September 26, 2014, the court took defendants' motion to dismiss under submission pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7–15.8 For the reasons that follow, the court grants the motion.


Gerritsen is an international best-selling, award-winning author whose novels have frequently appeared on the New York Times Best Seller list.9 WB is in the business of developing, producing, distributing, and marketing motion pictures, including the 2013 film Gravity (the "Film").10 In 1999, Gerritsen completed a novel titled Gravity (the "Book"), which was published by Simon and Schuster in September of that year.11 Gerritsen alleges that the Book, set in orbital space, features a female doctor/astronaut who is stranded alone aboard a space station after a series of disasters kill the rest of the crew; the book details her struggle to survive.12 Gerritsen asserts she did extensive research prior to and while writing the Book to ensure that her depiction of NASA technology was realistic.13 Based on a manuscript it saw before the Book was published, Katja entered into a written contract (the "contract") with Gerritsen on March 18, 1999, to purchase motion picture rights to the Book, as well as "any and all versions thereof."14 The contract provided that Katja would pay Gerritsen $1,000,000 in exchange for these rights. It further provided that, if a motion picture based on the Book were produced, Katja would pay Gerritsen (1) a $500,000 production bonus and (2) contingent compensation in the amount of 2.5% of the defined net proceeds of the motion picture. It also agreed to give her (3) onscreen credit and credit in paid advertisements that read "Based on the book by Terri Gerritsen."15 New Line executed and delivered a continuing guaranty, guaranteeing "full and faithful performance" by Katja of its obligations under the contract.16 Gerritsen alleges on information and belief that, at the time the contract was signed, Katja was a wholly-owned subsidiary of New Line, and was a shell entity that was completely dominated and controlled by New Line.17 She asserts that Katja regularly used New Line to acquire literary material it could use to produce viable motion picture screenplays.18 She contends, on information and belief, that after a screenplay was written and produced, Katja assigned rights in the work to New Line or another entity controlled by New Line; this entity ultimately produced and distributed the film.19 For this reason, she alleges, the parties understood and intended at the time of contracting that, if a motion picture were to be produced based on the Book, Katja would assign its rights to New Line or an entity controlled by New Line.20

Following its acquisition of the motion picture rights to the Book, Katja sought to develop a film with New Line and Artists Production Group ("APG").21 Gerritsen asserts that while a screenplay is being written, a director is often "attached" to the project to supervise screenplay creation; this individual has access to the literary work upon which the screenplay is to be based.22 She contends, on information and belief, that writer and director Alfonso Cuarón was attached to the project of writing a screenplay based on the Book.23 Gerritsen was purportedly not told that Katja had attached Cuarón to the project.24 To assist with the writing of the screenplay, Gerritsen wrote additional scenes in which satellite debris collided with the International Space Station, leaving the female doctor/astronaut drifting in a space suit searching for ways to return to Earth.25 Under terms of the contract, Katja owned this additional written work.26

Gerritsen alleges on information and belief that, sometime after 2002, Cuarón and his son Jonas Cuarón, wrote a screenplay titled Gravity (the "Cuarón Gravity Project"), which featured the same characters and storyline as the Book and Gerritsen's additions thereto.27 In 2008, WB acquired control of New Line and Katja.28 Gerritsen asserts on information and belief that, by virtue of the WB–New Line transaction, WB assumed Katja's and New Line's rights and duties under the contract.29

On December 17, 2009, the Cuaróns granted all rights in the Cuarón Gravity Project to WB.30 In or about 2011, WB began production of the Film, with Cuarón as its director.31 The Film includes scenes of satellite debris colliding with the International Space Station; as a result, a female astronaut is set adrift in space, and desperately seeks a way to return to Earth.32 The screenplay credit for the Film states that it was "written by Alfonso Cuarón and Jonas Cuarón."33 Gerritsen alleges that, by including such a credit, WB represented to the public that the Film was based on the Cuaróns' original work.34 The Film was released in the United States on October 4, 2013, and to date has reported box office gross revenue of more than $700,000,000.35 The Film won seven Oscars.36

Gerritsen alleges that Katja should have objected to WB's production of the Film because it was based on a literary property owned by Katja.37 Katja purportedly did not object, however, because it is controlled by WB and WB thus effectively owned the motion picture rights to the Book.38 More specifically, she alleges, on information and belief, that subsequent to 2008, New Line and Katja became shell corporations wholly owned by WB, and mere conduits through which WB conducts business.39 She asserts that to the extent Katja and New Line transact any business at all, it is at the sole discretion and for the sole benefit of WB.40 Gerritsen contends that WB manages, controls, and dominates New Line and Katja, and that there is a complete unity of interest among them. She asserts that an inequitable result will follow if Katja and New Line are not treated as WB's alter egos.41

Gerritsen pleads claims for breach of written contract against Katja and WB, and breach of guaranty against New Line and WB. She seeks an accounting from all defendants.42

A. Exhibits Submitted With Defendants' Motion to Dismiss and Gerritsen's Requests for Judicial Notice
1. Legal Standard for Judicial Notice

In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002) ; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). A court must normally convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it "considers evidence outside the pleadings.... A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir.2003). See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (a court may consider "other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice"); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994) (noting that a court may consider a document whose contents are alleged in a complaint, so long as no party disputes its authenticity), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002).

Thus, in ruling on a motion to dismiss, the court can consider material that is subject to judicial notice under Rule 201 of the Federal Rules of Evidence. FED.R.EVID. 201. Under Rule 201, the court can judicially notice "[o]fficial acts of the legislative, executive, and judicial departments of the United States," and "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." FED.R.EVID. 201.

2. Exhibits Submitted with Defendants' Motion to Dismiss

In support of their motion to dismiss, defendants proffer the declaration of their attorney, Ashley Pearson.43 Pearson's declaration attaches the following exhibits: (1) a copy of the outside and inside front cover, first page, and outside back cover of the Book (Exhibit A); (2) a copy of an "Assignment Agreement," dated January 1, 2010 (Exhibit B); (3) a copy of the...

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