1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRETT LAUTER, ) Case No. CV 15-08481 DDP (KSx) ) 12 Plaintiff, ) ) 13 v. ) ORDER DENYING PLAINTIFF’S MOTION ) FOR SUMMARY JUDGMENT 14 MICHAEL ROSENBLATT; ECHO )

BRIDGE ENTERTAINMENT, LLC; )

15 PLATINUM DISC. LLC; ECHO ) BRIDGE HOME ENTERTAINMENT;, ) [Dkt. 269, 275] 16 Defendants. 17 18 19 Presently before the court is pro se Plaintiff Brett Lauter’s 20 Motion for Partial Summary Judgment. Having considered the 21 submissions of the parties, the court denies the motion and adopts 22 the following Order.1 23 24 1 Plaintiff first filed a Motion for Judgment on the Pleadings raising arguments virtually identical to those raised here. (Dkt. 25 269.) Plaintiff filed the instant motion for summary judgment soon after, before Defendant filed any opposition to the initial motion 26 for judgment on the pleadings. As Defendant eventually argued, the motion for judgment on the pleadings went well outside the 27 pleadings. (See Dkt. 284.) Although Plaintiff did not concede as much, his decision to file the instant motion for summary judgment 28 on the heels of his prior filing appears to suggest an appreciation 1 I. Background 2 The lengthy factual and procedural history of this case is 3 well known to the parties, and described in detail in this Court’s 4 prior orders. (Dkt. 43, 183, 238). In short, Plaintiff, through 5 his business Pan Global Entertainment, acquires exclusive 6 distribution rights to motion pictures and then licenses those 7 rights to third parties. Plaintiff entered into agreements with 8 Defendant Echo Bridge Entertainment (“EBE”) granting EBE a license 9 to distribute several films. Plaintiff’s Third Amended Complaint 10 alleges that EBE and related entities failed to pay agreed-upon 11 royalties to Plaintiff and distributed Plaintiff’s films outside 12 the scope of the agreements, infringing upon the copyrights to the 13 films. 14 EBE ceased operations, and Plaintiff obtained default 15 judgments against it in both state court and, later, in this 16 Court.2 One of EBE’s lenders, Defendant BHC Interim Funding II, 17 L.P. (“BHCIF”), acquired EBE’s assets through a foreclosure sale. 18 BHCIF later transferred EBE’s former assets to Defendant Echo 19 Bridge Acquisition Corporation, LLC (“EBAC”). Plaintiff alleges, 20 however, that both BHCIF and EBAC are successors to EBE, and that 21 EBAC is an alter ego of EBE, and is liable for EBE’s wrongful acts 22 as well as EBAC’s own. EBAC’s counterclaim seeks a declaration 23 that EBAC did possess distribution rights to two of the films 24 listed in Plaintiff’s Third Amended Complaint. 25 1(...continued) 26 motion is also DENIED. 27 2 The term “EBE,” as used in this Order, includes related entities Platinum Disc, LLC (“Platinum”) and Echo Bridge Home 28 Entertainment (“EBHE”). 1 Plaintiff now moves for partial summary judgment against EBAC 2 on several issues related to certain of Plaintiff’s claims, EBAC’s 3 counterclaim, and EBAC’s affirmative defenses. 4 II. Legal Standard 5 Summary judgment is appropriate where the pleadings, 6 depositions, answers to interrogatories, and admissions on file, 7 together with the affidavits, if any, show “that there is no 8 genuine dispute as to any material fact and the movant is entitled 9 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party 10 seeking summary judgment bears the initial burden of informing the 11 court of the basis for its motion and of identifying those portions 12 of the pleadings and discovery responses that demonstrate the 13 absence of a genuine issue of material fact. See Celotex Corp. v. 14 Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from 15 the evidence must be drawn in favor of the nonmoving party. See 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the 17 moving party does not bear the burden of proof at trial, it is 18 entitled to summary judgment if it can demonstrate that “there is 19 an absence of evidence to support the nonmoving party's case.” 20 Celotex, 477 U.S. at 323. 21 Once the moving party meets its burden, the burden shifts to 22 the nonmoving party opposing the motion, who must “set forth 23 specific facts showing that there is a genuine issue for trial.” 24 Anderson, 477 U.S. at 256. Summary judgment is warranted if a 25 party “fails to make a showing sufficient to establish the 26 existence of an element essential to that party's case, and on 27 which that party will bear the burden of proof at trial.” Celotex, 28 477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving 2 party,” and material facts are those “that might affect the outcome 3H of the suit under the governing law.” Anderson, 477 U.S. at 248. 4!) There is no genuine issue of fact “[w]here the record taken as a 5 whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 8 It is not the court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 10/1278 (9th Cir. 1996). Counsel have an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The court “need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate 15] references so that it could conveniently be found.” Id.

III. Discussion

17 A. Whether EBE’s Rights Were Assignable 18 1. The plain language of the agreements 19 Plaintiff contends first that EBE could not assign the rights 20]}it obtained from Plaintiff without Plaintiff’s explicit consent, and therefore any purported assignment to EBAC (from BHCIF after the foreclosure sale) was invalid. There appears to be no dispute 23])}as to the applicable law: the Copyright Act “does not allow a copyright licensee to transfer its rights under an exclusive license, without the consent of the original licensor.” Gardner v. 26 Nike, Inc., 279 F.3d 774, 780 (9th Cir. 2002). EBAC contends, 271 however, that the agreements between Plaintiff and EBE did 28 || explicitly provide for a right of assignment. The integrated

1 “Acquisition of Rights” agreements granted EBE “the sole and 2 exclusive right . . . to license, sell, manufacture, advertise, 3 promote and/or distribute, including through subdistributors, the 4 VIDEO RIGHTS including retail MOD (Manufacture on Demand) rights.” 5 (Exs. 1, 2, to EBAC’s Answer and Counterclaim) (emphasis added). 6 The accompanying license, signed the same day, granted Platinum (an 7 EBE entity) “and its successors and assigns, the sole and exclusive 8 Video . . . rights of all kinds whatsoever . . . .” (Id., Ex. A) 9 (emphasis added). This language clearly supports EBAC’s argument. 10 Plaintiff argues, however, that the words “assign” and 11 “assignee” refer only to a DVD license and ultimate buyers of DVDs, 12 respectively. The thrust of Plaintiff’s argument is not entirely 13 clear to the court. The rights conveyed to EBE clearly include a 14 right to license, and the license issued to EBE refers to EBE’s own 15 assigns. Although Plaintiff asserts that those rights are limited 16 to certain DVD rights, the term “video rights” is defined to 17 include “distribution, licensing, sale, rental and/or exploitation 18 via any video medium.” (Answer and Counterclaim, Ex. 1.) 19 The only evidentiary support for Plaintiff’s contention that 20 the agreements do not mean what they appear to mean is his own 21 declaration. Although EBAC contends that the parol evidence rule 22 bars any consideration of Plaintiff’s declaration, EBAC’s argument 23 is somewhat misplaced. The authority upon which EBAC relies 24 applies Virginia law, and explicitly states that the outcome would 25 be different under California law. Wilson Arlington Co. v. 26 Prudential Ins. Co. of Am., 912 F.2d 366, 370 (9th Cir. 1990). In 27 California, extrinsic evidence may, in some cases, be considered to 28 explain the meaning of a written instrument. Foad Consulting Grp., Inc. v. Azzalino, 270 F.3d 821, 828 (9th Cir. 2001); Trident Ctr. Ziv. Connecticut Gen. Life Ins. Co., 847 F.2d 564, 569 (9th Cir. 1988); but see Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 41142 (8th Cir. 2003) (stating that although extrinsic evidence may 5} be consulted to explain contractual terms, it may not be relied upon to contradict clearly stated terms). 7 The Ninth Circuit has not addressed whether California’s Liberal parol evidence rule conflicts with the provisions of the 9} Copyright Act regarding exclusive licenses. See Foad, 270 F.3d at 828; Rivers v. Skate Warehouse, LLC, No. CV 12-9946 MMM (CWX), 2013 11} WL 12114010, at *11 n.113 (C.D. Cal. Dec. 20, 2013). This court need resolve that question, however. Plaintiff’s declaration does not so much seek to explain contractual terms as to contradict the language covering video rights “of all kinds whatsoever.” See Warren, 328 F.3d 1136 at 114. Even if Plaintiff’s declaration is merely explanatory, and therefore can be considered to resolve ambiguous terms in the license agreements, that fact alone is 18} sufficient to defeat Plaintiff’s motion, as “[s]ummary judgment is inappropriate where extrinsic evidence is needed to determine the 20])/meaning of ambiguous contract language.” Krishan v. McDonnell 21} Douglas Corp., 873 F. Supp. 345, 352 (C.D. Cal. 1994) (citing Int'l 221 Bhd. of Elec. Workers, AFL-CIO Local 47 v. S. California Edison 23 Co., 880 F.2d 104, 107 (9th Cir. 1989) (“When the meaning of an agreement is ambiguous on its face and contrary inferences as to 25]/ intent are possible, an issue of material fact exists for which summary judgment ordinarily is inappropriate.”)}). There is, 271 therefore, at least a triable issue of fact as to whether the 28

1 rights EBAC claims to possess were assigned to EBE in the first 2 instance.3 3 2. Whether the contracts were un-assignable absent 4 consent 5 i. Personal services 6 Plaintiff argues that the EBE agreements were not assignable 7 without Plaintiff’s consent because plaintiff “relied upon [EBE’s] 8 integrity, qualifications, and skill in releasing and promoting his 9 films . . . .” (Mot. at 14:24-25.) This is a contention that the 10 contracts at issue were personal service contracts, which are 11 subject to a narrow exception to the general rule of assignability 12 of contracts. See In re Health Plan of Redwoods, 286 B.R. 407, 409 13 (Bankr. N.D. Cal. 2002). “In California, as in most other states, 14 the test is whether the contract involves a personal relation of 15 confidence between the parties or relies on the character and 16 personal ability of a party.” Id. “Whether or not a contract is a 17 personal services contract is a question of fact to be made under 18 state law after all facts and circumstances are considered.” Id. 19 Here, there is no evidence whatsoever, let alone undisputed 20 evidence, that Plaintiff relied in any way upon the EBE’s entities’ 21 character or particular abilities. 22 Although Plaintiff asserts that substitution of any assignee 23 in place of EBE materially changed his own duties, increased the 24 risk to him, impaired his chance of obtaining return performance, 25 26 3 For these same reasons, Plaintiff’s motion for partial summary judgment is denied with respect to his unfair competition 27 claim, which rests upon the theory that “EBAC profited from an unlawful, unfair assignment and mortgage of the films.” (Mot. at 28 20:3-4.) 1 and materially reduced the value of the contracts to Plaintiff, he 2 provides no explanation of how this was so, let alone evidence to 3 support his assertions. Indeed, the fact that a party contracted 4 with a corporation, rather than an individual, is often evidence 5 that the contracts at issue are not personal service contracts 6 intended to be nonassignable. See, e.g., Farmland Irr. Co. v. 7 Dopplmaier, 48 Cal. 2d 208, 223, 308 P.2d 732 (1957) (“[I]f [the 8 plaintiff] thought that control of the [contracting] corporation by 9 a particular person was essential to assure an advantageous return 10 of royalties, he would have provided against the possibility of 11 that person’s selling his interest. [The plaintiff’s] failure to do 12 so is a strong indication that he did not consider personal control 13 . . . essential.”); Haldor, Inc. v. Beebe, 72 Cal. App. 2d 357, 14 366, 164 P.2d 568 (1945) (“[T]he instant case relates to a contract 15 with a corporation which, as we have said, cannot, as such, render 16 personal service.”). Furthermore, the inclusion of licensing 17 rights in the EBE agreements suggests that Plaintiff did not rely 18 upon any characteristic particular to EBE. 19 There is no factual basis upon which to grant summary judgment 20 on the question whether Plaintiff’s agreements with EBE were 21 personal service contracts. 22 ii. Frustration of purpose 23 It is undisputed that Plaintiff did not receive notice of 24 EBAC’s acquisition of EBE’s rights via assignment. Plaintiff 25 asserts that because of that lack of notice, Plaintiff’s 26 “contractual duties were changed and all the provisions requiring 27 Platinum/EBHE’s return performance were rendered impossible,” thus 28 rendering the contracts invalid. (Mot. at 17: 15-16, 18:5.) 1 Plaintiff’s argument is predicated on characterizations of the 2 terms of the agreement, absent any specific citations, that do not 3 appear to be accurate. Plaintiff asserts, for example, that he had 4 preapproval rights regarding cover art and trailers, but no such 5 language appears in the agreements. To the contrary, the 6 contractual terms provided that EBE had “absolute discretion 7 concerning the marketing . . . of the rights,” and that the 8 “business judgment of EBHE and/or its assignees regarding any such 9 matter shall be binding and conclusive upon [Plaintiff].” (Answer 10 and Counterclaim, Ex. 1.) Despite Plaintiff’s assertion that a 11 mutual indemnification provision was rendered impossible upon 12 EBAC’s acquisition of the contract rights, the agreement appears to 13 expressly contemplate such an outcome, providing for mutual 14 indemnification of “the other party and its . . . successors, 15 licensees, [and] assigns . . . .” (Id.)(emphasis added.) 16 Plaintiff also complains that the assignment to EBAC rendered it 17 impossible for him to exercise a contractual provision allowing him 18 free access to “key art campaigns and trailers, if created by 19 EBHE,” but provides no evidence than any such art existed, let 20 alone that EBAC prevented Plaintiff’s access to it. 21 Nor, despite Plaintiff’s contention that the contracts 22 required that the films “be released under EBHE’s own label” does 23 any such language appear in the agreements. This unsupported 24 assertion also underpins Plaintiff’s argument that “the whole 25 purpose of the contracts was for Platinum/EBHE to release the films 26 under the EBHE label.” (Mot. at 18:8-9.) The frustration of 27 purpose doctrine invalidates a contract when the “fundamental 28 reason of both parties for entering into the contract has been 1 frustrated by an unanticipated supervening circumstance, thus 2 destroying substantially the value of performance by the party 3 standing on the contract.” Cutter Labs., Inc. v. Twining, 221 Cal. 4 App. 2d 302, 315 (1963). “The object must be so completely the 5 basis of the contract that, as both parties understand, without it 6 the transaction would make little sense.” Restatement (Second) of 7 Contracts § 265 (1981) cmt. a. Decreased profitability to one 8 party, even to the point of a negative return, is not sufficient to 9 establish frustration of purpose. Rather, “the frustration must be 10 so severe that it is not fairly to be regarded as within the risks 11 . . . assumed under the contract.” Id. Furthermore, “[i]t is 12 settled that if the parties have contracted with reference to the 13 frustrating event or have contemplated the risks arising from it, 14 they may not invoke the doctrine of frustration.” Glenn R. Sewell 15 Sheet Metal, Inc. v. Loverde, 70 Cal. 2d 666, 676, 451 P.2d 721, 16 727 (1969). 17 With these principles in mind, it is impossible to conclude 18 that the principal purpose of the contracts between Plaintiff and 19 EBE was frustrated. The transactions would have continued to make 20 sense even without a provision requiring that the films be released 21 under EBE’s label. Plaintiff received a flat fee of $3,000 per 22 film, “with no additional payments due” to Plaintiff, regardless 23 whether EBE continued to distribute films under its own, or any 24 other, label. Moreover, the parties appear to have contemplated 25 the possibility that the purportedly frustrating event, EBE’s 26 transfer of its rights, would occur, as evidenced by contract terms 27 regarding successors, assigns, and licensing. Plaintiff’s motion 28 1 for summary judgment is, therefore, denied with respect to 2 frustration of purpose. 3 B. Whether the Secured Party Sale Was Valid 4 Next, Plaintiff argues that the foreclosure sale, through 5 which BHCIF obtained EBE’s rights before later assigning them to 6 EBAC, was invalid. 7 1. Lack of Secured Interest 8 Plaintiff argues first that “no party ever recorded a security 9 interest in the films” with the Copyright Office. Although not 10 entirely clear, the court reads this as a contention that EBAC 11 could not have obtained any rights from BHCIF because BHCIF never 12 perfected a security interest in any of the rights Plaintiff 13 granted to EBE. As an initial matter, much of Plaintiff’s argument 14 is directed to a claim that EBAC has never put forth. EBAC does 15 not claim that any party ever acquired or attempted to transfer a 16 security interest in “the films” or in the copyrights themselves. 17 Rather, EBAC asserts that BHCIF had a security interest in the 18 freely-assignable distribution agreements. 19 The authorities upon which Plaintiff relies are, therefore, 20 inapposite. EBAC does not dispute that the Copyright Act governs 21 transfers of copyright ownership, or that securitization of a 22 copyright interest requires recordation with the Copyright Office, 23 rather than through any state-prescribed procedure. See In re 24 Cybernetic Servs., Inc., 252 F.3d 1039, 1056 (9th Cir. 2001); In re 25 Peregrine Entm't, Ltd., 116 B.R. 194, 201 (C.D. Cal. 1990). EBAC 26 has submitted evidence, however, of a security agreement between 27 EBE and BHIC that included the rights ultimately conveyed to EBAC, 28 as well evidence of UCC filings in several states referencing that 1 agreement. (Eisenberg Decl., Ex. 1, Leichter Decl. in support of 2 opposition, Ex. A.) Although Plaintiff argues in his reply that 3 BHIC was required to record even a secured interest in the 4 distribution agreements with the Copyright Office, he provides no 5 clear authority to support that contention.4 EBAC, for its part, 6 also fails to provide any authority establishing that the action it 7 took “obviated the need for a recordation with the Copyright 8 Office.” Accordingly, Plaintiff’s motion for partial summary 9 judgment with respect to this issue is denied, without prejudice. 10 2. Whether the sale to BHCIF was commercially 11 unreasonable 12 A defaulting secured party may dispose of collateral through 13 sale, lease, license, or “otherwise dispose of any or all of the 14 collateral.” U.C.C. § 9-610(a). “Every aspect” of any such 15 disposition, however, must be “commercially reasonable.” Id., § 9- 16 610(b). Plaintiff argues that the secured party sale by which 17 BHCIF acquired EBE’s rights was not commercially reasonable because 18 (1) BHCIF was the only bidder, (2) BHCIF won the auction with a 19 cashless credit bid (i.e., cancellation of debt rather than cash), 20 (3) BHCIF canceled only 17% of the debt owed to BHCIF, (4) there 21 was only one advertisement in one publication about the sale, and 22 Plaintiff received no notification of the sale, and (5) the sale 23 purported to include several movies in the public domain. Plaintiff 24 does not support his arguments with citations to any authority, nor 25 is the court aware of any support for the proposition that any of 26 4 In re Franchise Pictures LLC, 389 B.R. 131, 142 (Bankr. C.D. 27 Cal. 2008), does not state that the only way a party seeking to record a security interest such as that at issue here is via the 28 Copyright Office. 1 these aspects of the secured party sale is necessarily 2 unreasonable.5 To the contrary, “[t]here is no settled or 3 universally accepted definition of the term ‘commercially 4 reasonable efforts,’” which will vary with the performing parties’ 5 business interests. Citri-Lite Co. v. Cott Beverages, Inc., 721 F. 6 Supp. 2d 912, 926 (E.D. Cal. 2010). “[W]hether a sale of 7 collateral is conducted in a commercially reasonable manner is 8 generally a question of fact.” Aspen Enters., Inc. v. Bodge, 37 9 Cal. App. 4th 1811, 1827, 44 Cal. Rptr. 2d 763, 774 (1995); see 10 also Apex LLC v. Sharing World, Inc., 206 Cal. App. 4th 999, 1019, 11 142 Cal. Rptr. 3d 210, 225 (2012). Because such questions are 12 usually “factually intense,” summary judgment on commercial 13 reasonableness is generally improper. Citri-Lite, 721 F. Supp. 2d 14 at 926; Preci-Dip SA v. Tri-Star Elecs. Int'l, Inc., No. CV 17-5052 15 GW (ASX), 2018 WL 6521500, at *3 (C.D. Cal. Sept. 5, 2018). 16 Plaintiff’s motion for partial summary judgment is, therefore, 17 denied with respect to commercial unreasonableness. 18 C. EBAC’s Affirmative Defenses 19 1. Adequacy of Remedy at Law 20 EBAC’s Fifth Affirmative Defense states that Plaintiff is not 21 entitled to injunctive relief because he has an adequate remedy at 22 law and will not suffer any irreparable harm that cannot be 23 remedied by monetary damages. Although not stated in EBAC’s 24 pleading, the defense appears to be based upon a contractual waiver 25 of injunctive relief. The agreements state, “In no event shall 26 27 5 EBAC also points to evidence establishing that Plaintiff’s characterization of the limited notice of sale is simply 28 inaccurate. [Plaintiff] be entitled to seek or obtain any specific performance or injunctive relief with respect to this Agreement, it being 31 agreed that the only remedy of [PLaintiff] related to this Agreement shall be an action at law for monetary damages.” (Answer, Ex. 1.) Plaintiff’s reply makes no mention of this waiver provision, nor addresses EBAC’s argument. The motion for summary 7 judgment is denied with respect to EBAC’s Fifth Affirmative 8 || Defense. 9 2. Unjust Enrichment 10 Plaintiff challenges EBAC’s unjust enrichment defense on the 11] ground that EBAC claims to have obtained EBE’s contractual rights, and there can be no unjust enrichment where a contract covers the same subject matter. See Zepeda v. PayPal, Inc., 777 F. Supp. 2d 1215, 1223 (N.D. Cal. 2011). EBAC raises unjust enrichment not as 15]/a counterclaim, however, but rather as a “prospective” affirmative defense. (Opp. at 21:17.) %In other words, EBAC asserts that if plaintiff were to recover any monetary damages, he would be 18] unjustly enriched because he already received the $3,000 per film flat fee contemplated by the agreements between Plaintiff and EBE. The court notes that the authority cited by EBAC does not appear to support EBAC’s contention that unjust enrichment can be raised as 22\|an affirmative defense, and some courts have expressed some 23] skepticism that such a defense exists under California law. See, 24]/e.g., Okada _v. Whitehead, No. 815CV01449JLSKES, 2017 WL 1237969, at 257 *5 (C.D. Cal. Apr. 4, 2017), aff'd, 759 F. App'x 603 (9th Cir. 26/2019). Other courts, however, have suggested that under certain circumstances, such a defense may be proper. See, e.g., Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 14

1 1167, 1172-74 (N.D. Cal. 2010); Snap! Mobile, Inc. v. Croghan, No. 2 18-CV-04686-LHK, 2019 WL 884177, at *7 (N.D. Cal. Feb. 22, 2019);p 3 VenVest Ballard, Inc. v. Clockwork, Inc., No. EDCV1400195MWFEX, 4 2014 WL 12589647, at *5 (C.D. Cal. Oct. 6, 2014); Joe Hand 5 Promotions, Inc. v. Garcia, No. 1:11CV02030 LJO DLB, 2012 WL 6 1413940, at *4 (E.D. Cal. Apr. 23, 2012).6 Because Plaintiff fails 7 to provide any factual basis for his argument, and does not address 8 EBAC’s contention his reply, the motion for summary judgment is 9 denied. 10 3. Estoppel 11 EBAC’s estoppel defense alleges that Plaintiff granted 12 Platinum (an EBE entity) permission to license or assign the rights 13 EBAC claims to have obtained and exercised. Plaintiff argues that 14 summary judgment is warranted becasuse “EBAC alleges only that 15 [Plaintiff] made a promise to Platinum, not to EBAC.” (Mot. at 16 23:2-3.) As discussed above, whether that promise included a 17 transfer of assignable rights presents at least a triable question 18 of fact. The motion is denied with respect to the estoppel 19 defense. 20 4. Good Faith Transferee 21 Plaintiff’s argument regarding EBAC’s good faith transferee 22 defense essentially restates his other arguments, including those 23 regarding the alleged unreasonableness of the secured sale of EBE’s 24 assets to BHCIF, the lack of a recorded interest in the films, and 25 26 6 This court denied Plaintiff’s Motion to Strike EBAC’s unjust enrichment defense solely on the basis that, contrary to 27 Plaintiff’s argument, EBAC pleaded sufficient facts to put Plaintiff on notice of the nature of the asserted defense. See Dkt. 28 250. 1 the lack of Plaintiff’s consent. The motion is denied as to the 2 good faith transferee defense, for the reasons stated above. 3 5. Real Party in Interest 4 EBAC’s Ninth Affirmative Defense asserts that Plaintiff, an 5 individual, is not the real party in interest because the 6 agreements with EBE were signed by Pan Global Entertainment, not 7 Plaintiff in his individual capacity. Plaintiff seeks summary 8 judgment on this defense because it is undisputed that EBE paid 9 license fees directly to Plaintiff, and because one of EBAC’s 10 lawyers in a declaration characterized the agreements as involving 11 an EBE entity and Plaintiff, individually. Plaintiff further 12 asserts, without any citation to the record, that Pan Global 13 Entertainment is not, and never was, a corporation. Plaintiff also 14 acknowledges, however, that at least one of the agreements in the 15 record explicitly states that “Pan Global Entertainment is a 16 corporation domiciled in California,” and that Pan Global 17 Entertainment “represents and warrants that . . . it is a 18 corporation or LLC or other entity . . . duly formed and validly 19 existing in good standing under the laws of its state.” (Answer, 20 Ex. 1.). Although it is certainly possible that Plaintiff is 21 correct that language was erroneous, its existence precludes a 22 grant of summary judgment on EBAC’s real party in interest defense. 23 24 25 26 27 28 1 IV. Conclusion 2 For the reasons stated above, Plaintiff’s Motion for Partial 3 Summary Judgment is DENIED. 4 5 IT IS SO ORDERED. 6 7 8 9 Dated: June 30, 2020 DEAN D. PREGERSON 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28