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Bagdasarian Productions, LLC, A California Limited Liability Company, and Janice v. Twentieth Century Fox Film Corporation

March 26, 2012

BAGDASARIAN PRODUCTIONS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND JANICE KARMAN, AN INDIVIDUAL,
PLAINTIFFS-APPELLANTS,
v.
TWENTIETH CENTURY FOX FILM CORPORATION, A DELAWARE CORPORATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Central District of California Jacqueline H. Nguyen, District Judge, Presiding D.C. No. No. 10-56430

The opinion of the court was delivered by: Hawkins, Senior Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

February 13, 2012-Pasadena, California

Before: Harry Pregerson, Michael Daly Hawkins, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Hawkins

OPINION

In an issue of first impression, we consider whether an order compelling enforcement of a contractual agreement to submit a dispute to a referee, and staying proceedings in the interim, is immediately appealable. The dispute stems from a written agreement between Plaintiffs Bagdasarian Productions, LLC and Janice Karman (collectively, "Plaintiffs") and Defendant Twentieth Century Fox Film Corporation ("Fox"), regarding the popular "Alvin and the Chipmunks" movies. The parties' Purchase/Producer Agreement--Literary Material (the "Agreement") granted Fox various rights to develop and produce movies based on the Alvin properties and engaged Plaintiffs to render services in connection with the pictures on a "work for hire" basis. The Agreement also contained a forum selection/choice of law provision that any dispute would be brought in California state or federal court and governed by California law. The Agreement further provided that any dispute arising out of the Agreement would be submitted to a general non-jury reference pursuant to California Code of Civil Procedure § 638.*fn1

When a dispute arose regarding certain services Karman provided in connection with Alvin and the Chipmunks, The Squeakquel ("The Squeakquel"), Plaintiffs filed this action. Fox moved to stay the case and to refer the dispute to a referee as the Agreement provided. The district court granted the motion, whereupon Plaintiffs brought this interlocutory appeal to contest the reference. Because we conclude we lack jurisdiction at this stage of the proceedings, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

In March 2004, Plaintiffs and Fox entered into the Agreement, which granted Fox rights to use pre-existing and future-created Alvin materials owned or controlled by Plaintiffs. The Agreement defines the "Property" covered by the Agreement as:

That certain pre-existing property generally known as "Alvin and the Chipmunks" a.k.a. "Chipmunks" a.k.a. "Chipmunks Go to the Movies," "Alvin and the Chipmunks Series," "The Alvin Show," including various television series produced commencing in 1961, 1983 through 1987, and 1988 through 1991, created and/or controlled by Ross-Bagdasarian, Sr., Ross Bagdasarian, Jr., Janice Karman, Bagdasarian Productions, LLC, and any and all associated characters (including Simon, Theodore, Alvin and David Seville) now or hereafter created and to the extent owned and/or controlled by Owner, and any and all other plots, themes, titles, story lines, names related thereto, and any and all other elements relating to any of the foregoing, now existing or created hereafter.

The Agreement then grants Fox the following rights in the Property: the right to develop, produce, distribute, exhibit, exploit, advertise, promote and publicize, throughout the universe, in and by any and all manner, media, devices, processes and technology now known or hereafter devised, exclusively and in perpetuity, Theatrical Motion Pictures and Home Video Motion Pictures based on the Property, Merchandising Rights and Commercial Tie-in Rights as set forth in Paragraphs 9(a),(b)(c), and (d), and the motion ...


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