UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
July 28, 2010
ANTHONY ORMESHER AND JOSE ALVES, PLAINTIFFS,
ROGER RASKIN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
Re: Motion for Sanctions Against Attorney Peter C. Bronstein 
On July 27, 2010, Plaintiffs' Motion for Sanctions Against Peter C. Bronstein came on for regular calendar before this Court. The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court NOW FINDS AND RULES AS FOLLOWS:
The Court hereby GRANTS Plaintiffs' Motion for Sanctions. The Court finds that Mr Bronstein's submissions of both the co-authorship and implied license defenses are sanctionable. In opposition to Plaintiff's Summary Judgment Motion, Mr. Bronstein submitted declarations and supporting argument that Defendants co-authored the song in dispute with Plaintiffs and that Defendants had an implied license to distribute the song. However, Defendants' claim of co-authorship of Plaintiffs' song is refuted by the physical evidence and Defendants' own statements in prior depositions. Specifically, the song recordings submitted to the Court with Plaintiff's Summary Judgment Motion show that the song in dispute was unchanged between 2001 and 2007. These recordings were not objected to or questioned by Defendants. Moreover, Defendants admit that they only met Plaintiffs in 2004. Thus, the physical evidence directly contradicts the claim that Defendants co-authored the song. Furthermore, Defendants specifically stated that they made no contributions to the song in their deposition testimony.
Defendant's prior deposition testimony also contradicts the implied license defense Mr. Bronstein argued in opposition to Plaintiff's Summary Judgment Motion. Defendants stated that they had no license to distribute Plaintiff's song in prior depositions. However, Mr. Bronstein submitted declarations and supporting argument contending that Defendants had an implied license to distribute the song.
By submitting Defendants' declarations pertaining to these two defenses which directly contradicted Defendants' prior deposition testimony and the available physical evidence, Mr. Bronstein violated the Sham Affidavit Rule. Under prevailing law, a party cannot create an issue of fact by an affidavit contradicting prior deposition testimony. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). A violation of the Sham Affidavit Rule is sanctionable under Federal Rule of Civil Procedure 11, Federal Rule of Civil Procedure 56(g), and 28 U.S.C. § 1927.
Federal Rule of Civil Procedure 11 provides that every pleading, motion, or other paper presented to the court must be signed by an attorney, or the party if not represented by an attorney. Fed. R. Civ. P. 11(a). The signature certifies that a pleading, motion, or other paper is to the best of the signatory's knowledge, information, and belief formed after a reasonable inquiry "warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law" or "the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed. R. Civ. P. 11(b)(2) and (3).
Federal Rule of Civil Procedure 56(g) provides that if "an affidavit under this rule is submitted in bad faith or solely for delay, the court must order the submitting party to pay the other party the reasonable expenses, including attorney's fees". Fed. R. Civ. P. 56(g).
Lastly, 28 U.S.C. § 1927 provides that "[a]ny attorney... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927.
Pursuant to each of these authorities, the Court finds that Mr. Bronstein's submission of the implied license and co-authorship defenses is sanctionable. Moreover, the Court finds that the amount of attorneys' fees requested is a fair and reasonable calculation of the expense to Plaintiffs in refuting the implied license and co-authorship defenses. Thus, Mr. Bronstein is ordered to pay Plaintiffs $8,450 within 30 days of the date of this Order.
IT IS SO ORDERED.
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