Professional Documents
Culture Documents
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Plaintiff,
v.
BURBANK HIGH SCHOOL VOCAL
MUSIC ASSOCIATION; BRETT
CARROLL and JOHN DOE
CARROLL, a married couple; ELLIE
STOCKWELL and JOHN DOE
STOCKWELL, a married couple;
MARIANNE WINTERS and JOHN
DOE WINTERS, a married couple;
GENEVA TARANDEK and JOHN
DOE TARANDEK, a married couple;
LORNA CONSOLI and JOHN DOE
1)
TOTAL EQUITABLE
INDEMNITY AND
CONTRIBUTION
2)
PARTIAL EQUITABLE
INDEMNITY
3)
BREACH OF IMPLIED
CONTRACT
4)
BREACH OF ORAL
CONTRACT
5)
BREACH OF IMPLIED
WARRANTIES
6)
DECLARATORY RELIEF
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Judge:
Stephen V. Wilson
Complaint Filed: June 29, 2016
Trial Date:
None
Third-Party Plaintiff,
v.
JOSH GREENE, an individual;
SQUAREPLAY, INC. d/b/a
SQUAREPLAY ENTERTAINMENT,
a California corporation; and DOES 110,
Third-Party Defendants
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JURISDICTION
1.
This is an action arising under the copyright laws of the United States,
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2 who, at all pertinent times hereto, was a resident of the State of California, and
3 during such time, provided music arrangement services for the Burbank Unified
4 School District vocal music program and the BHSVMA.
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1 and other named Defendants, infringed copyrights owned by it during that time
2 period.
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During the time period between 2010 and 2014, BHSVMA contracted
4 with Greene, SE, and DOES to prepare and provide music arrangements to the
5 Burbank High School vocal music program, which included the musical
6 compositions (Ive Had) The Time of My Life and Magic (collectively referred
7 to as the Arrangements).
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9 that could be used by the show choirs for educational purposes and during
10 performances. Accordingly, Greene, SE, and DOES chose the songs, devised the
11 arrangements, and provided the arrangements to be used by the Burbank High
12 School show choirs. Greene, SE, and DOES billed the Burbank High School Vocal
13 Music Association for their services and they received monetary compensation for
14 the Arrangements.
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16 arrangements for the Burbank High School vocal music program, including the
17 Arrangements at issue in this litigation.
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19 represented and/or implied that in exchange for the fees paid, if any licenses and
20 permissions were necessary for BHSVMA and the Burbank High School show
21 choirs to use the Arrangements, that such licenses and/or permissions had been or
22 would be obtained by Greene, SE, and/or DOES from the copyright owners and that
23 Burbank High School vocal music program would be permitted to lawfully utilize
24 the musical arrangements for performances. Because of these representations and or
25 implied assurances, BHSVMA believed that the Burbank High School vocal music
26 program was permitted to perform the Arrangements, and that any and all necessary
27 permissions and licenses had been obtained.
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2 created by Greene, SE, and DOES, and BHSVMA and the Burbank High School
3 vocal music program were merely downstream users of the Arrangements.
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5 contained in the Complaint (which allegations BHSVMA has denied and continues
6 to deny), then BHSVMA alleges that any injuries and/or damages suffered by
7 Tresona were proximately caused by the unlawful conduct of Greene, SE, and
8 DOES. Third-Party Defendants conduct and/or omissions were active, primary and
9 affirmative, as regards Tresonas alleged damages and the conduct of BHSVMA and
10 other Defendants, if any, was passive, secondary and derivative only.
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12 incurs any expense in the defense of said lawsuit, or makes any settlement with any
13 party to this lawsuit, then BHSVMA is entitled to judgment and indemnity over and
14 against Greene, SE, and DOES, and each of them, for all sums incurred by
15 BHSVMA by reason of said judgment or settlement, including but not limited to
16 expense of investigation, and expense and costs of litigation, in defending the instant
17 lawsuit.
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25 monetary compensation.
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Greene, SE, and DOES represented and/or implied that in exchange for
27 the fees paid, all necessary licenses and permissions, if any, would be obtained by
28 Greene, SE, and/or DOES from the copyright owners and that Burbank High School
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7 damages were proximately caused and contributed to by the fault, acts, and/or
8 omissions of Greene, SE, and DOES inclusive. Third-Party Defendants fault, acts,
9 and omissions must be compared with the fault, acts, or omissions, if any, of
10 BHSVMA, as well as that of any other person and parties, and any award of
11 damages to Tresona must be apportioned to, and required to be paid by, Greene, SE,
12 and/or DOES inclusive, and each of them, according to the amount and degree of
13 their fault, acts and omissions.
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15 created by Greene, SE, and DOES, and BHSVMA and the Burbank High School
16 vocal music program were merely downstream users of the Arrangements.
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18 Greene, SE, and DOES inclusive, and each of them, in the same amount as may be
19 paid or rendered against BHSVMA on the Complaint herein, by virtue of settlement
20 or judgment, according to the relative fault or percentage of fault of Third-Party
21 Defendants, and each of them, which proximately caused or contributed to the injury
22 or damages, if any suffered by Tresona. BHSVMA is further entitled to be held
23 harmless and indemnified by Greene, SE, and DOES inclusive, and each of them,
24 for the reasonable costs incurred in defending the main action and prosecuting the
25 Third-Party Complaint, and for reasonable attorney's fees.
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8 Arrangements to the Burbank High School vocal music program in exchange for
9 monetary compensation.
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20 each of them, for any recovery that Tresona, may realize against BHSVMA
21 including, but not limited to, any settlement, judgments, attorneys fees, costs of
22 suit, cost of repair, and such other and further relief as the court may deem
23 appropriate.
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9 Greene, SE, and DOES entered into an oral contract with the BHSVMA for the
10 preparation of the Arrangements for their use by BHSVMA and the Burbank High
11 School vocal music program. This oral contract required that Greene, SE, and
12 DOES comply with all requirements of 17 U.S.C. 101 et seq. and, if any licenses
13 and permissions were required to obtain such licenses and permissions, when
14 Greene and SE prepared the Arrangements and provided them to BHSVMA and the
15 vocal music program (Oral Contract).
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17 BHSVMA claims that Greene, SE, and DOES breached the Oral Contract by failing
18 to comply with 17 U.S.C. 101.
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BHSVMA also claims that this breach of Oral Contract by Greene, SE,
20 and DOES caused harm to BHSVMA for which Greene, SE, and DOES should pay.
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9 holders, as well as lay out the limitations on third party uses of copyrighted material.
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By entering into a contract with Greene, SE, and DOES to prepare and
11 sell the Arrangements for use by the Burbank High School vocal music program,
12 Greene, SE, and DOES impliedly warranted to BHSVMA that all work and services
13 provided would be in good faith, to the best practices of the trade as judged by
14 industry standards, and in compliance with the provisions of the 17 U.S.C. 101 et
15 seq.
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17 allegations of Tresonas Complaint are accepted by the trier of fact, Greene, SE, and
18 DOES, and each of them, breached said implied warranties, by failing to perform
19 their duties and/or work in a good and fair manner and according to the best
20 practices of the trade as judged by industry standards, and in compliance with the
21 provisions of the 17 U.S.C. 101 et seq.
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23 suffered damages in the way of costs including, but not limited to, additional fees,
24 penalties, interest on outstanding fees, the retention of attorneys and experts to
25 respond to the claims asserted by Tresona and to investigate and evaluate said
26 claims, potential liability to Tresona on its Complaint, as well as other expenses to
27 be determined by the trier of fact at the time of trial.
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7 respective rights and duties because BHSVMA, Greene, and DOES, inclusive,
8 dispute the allegations in this ThirdParty Complaint.
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10 and obligations of Greene, SE, and DOES, inclusive, and each of them, as to the
11 rights and obligations herein alleged.
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For such other and further relief as the Court may deem just and proper.
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Respectfully submitted:
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By: /s/ Eric Bjorgum
Eric Bjorgum
Attorney for DEFENDANTS
Burbank High School Vocal
Music Association Boosters,
Ellie Stockwell, Marianne
Winters, Geneva Tarandek,
Lorna Consoli, Charles
Rodriguez, and their respective
spouses and THIRD PARTY
PLAINTIFF Burbank Vocal Music
Association Boosters Club
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Respectfully submitted,
By: /s/ A. Eric Bjorgum
A. Eric Bjorgum
KARISH & BJORGUM, PC
119 E. Union St., Suite B
Pasadena, CA 91103
Phone: (213) 785-8070
Fax: (213) 995-5010
Attorneys for Defendant and Third Party Plaintiff
Burbank High School Vocal Music Association
Boosters Club
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