Cusano

MEMORANDUM **

1. The district court was correct in applying the law of New York to *1000 Cusano’s claim for an open book account. New York law does not recognize a cause of action for an open book account. See Waldman v. Englishtown Sportswear, Ltd., 92 A.D.2d 833 , 460 N.Y.S.2d 552, 556 (N.Y.App.Div.1983). Nor does Cusano’s account qualify as “mutual, open and current,” as it lacks both openness and mutuality. See Rodgers v. Roulette Records, Inc., 677 F.Supp. 731, 735 (S.D.N.Y.1988).

2. Cusano misreads our opinion in Cusano v. Klein, 264 F.3d 936 (9th Cir. 2001) (“Cusano /”), which held only that Cusano had standing to raise some of his claims. Id. at 945 . Cusano I did not rule in favor of Cusano on the merits of any of his claims to royalty rights or copyrights, and did not invalidate any of the agreements between the parties. To defeat appellees’ summary judgment motion on remand, Cusano had to produce evidence demonstrating inaccuracies in the accounting. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). Cusano “utterly failed” to carry this burden. See Cusano v. Klein, 280 F.Supp.2d 1035, 1040 (C.D.Cal.2003).…