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Larry Zerner (SBN 155473) Law Offices of Larry Zerner 1801 Century Park East, Ste. 2400 Los Angeles, CA 90067 (310) 773-3623 Email: Larry@ZernerLaw.com Attorneys for Plaintiff Mark Towle, An individual and d/b/a Gotham Garage UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) v. ) ) Mark Towle, an individual and d/b/a ) Gotham Garage, and Does 1 10, ) inclusive, ) ) ) Defendants. ) ) ) ) ) ) DC Comics, I, Larry Zerner declare as follows: 1. I am an attorney admitted to practice before this Court and I am the attorney of record for Mark Towle in this action. The facts set forth in my declaration are known personally by me to be true and correct, and if called upon as a witness, I could and would competently testify thereto. Case No.: CV11-3934 RSWL (OPx) Declaration of Larry Zerner filed with Reply Brief in Support of Defendants Motion for Partial Summary Judgment: Date: January 30, 2013 Time: 10:00 a.m. Courtroom: 3 Trial Date: March 26, 2013 Pre-Trial Conference: March 12, 2013 Discovery Cut-Off: November 27, 2012

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Declaration of Larry Zerner for Reply Brief

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2. Attached hereto as Exhibit 41 are true and correct copies of the Report on the Filing or Determination of an Action or Appeal Regarding Copyright that DC filed simultaneously with their Complaint and the First Amended Complaint. 3. Because DC made it clear to me that they were not claiming infringement of

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the copyright to the TV show or movie, but were only claiming infringement of the Batmobile from the comic books, I did not conduct any discovery on the issue of ownership of the copyright to the TV show or movie. If DC is allowed to now claim infringement of the TV show and 1989 movie then these issues are important as 1) the TV show was not registered within 5 years of publication so there is no prima facie evidence of copyright and 2) there is no chain of title from Warner Brothers Production, Ltd to Warner Brothers, Inc. regarding the design of the 1989 Batmobile. 4. I also did not conduct any discovery to determine if parts of the 1989 Batmobile were directly lifted from pre-existing elements. For example, the Batmobile book states that the interior of the 1989 Batmobile is filled with fighter aircraft components. (See DCs Ex. A at 1256) If true, then the interior of the 1989 Batmobile was not actually designed by Anton Furst. 5. I am also informed and believe that the front grille of the 1989 Batmobile is actually modeled on the jet engine from a British Ram Air Turbine fighter plane,

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Declaration of Larry Zerner for Reply Brief

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also known as a RAT engine. Because DC did not inform me that it was claiming infringement of Fursts work, I did no discovery to determine if this was true. 6. DC is also claiming that the Browning Machine Guns on the 1989

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Batmobile were protected by copyright. As there are no Browning Machine Guns in the comic books, I did not conduct any discovery to show that the machine guns on the 1989 Batmobile were copied from the existing design. 7. These are just a few examples of the prejudice that would be caused if DC was allowed to now claim infringement of the TV show and 1989 movie, despite not notifying me of their intent to do so until October 23, 2012, after I had already taken the deposition of DC and Mr. Coombs had assured me that all the registrations DC was relying on in this case were already produced. 8. I am informed and believe that the Lincoln Futura car was famous prior to its appearance on the Batman TV show. It had appeared in the 1959 movie It Started With A Kiss starring Debbie Reynolds and Glenn Ford and on the cover of Life magazine. There were also model kits available for the car. 9. Attached hereto as Exhibit 42 is a true and correct copy of the cover of Life Magazine from March 30, 1959 showing Debbie Reynolds riding in the Lincoln Futura and a photo of a box showing the Revell Lincoln Futura car kit.

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Declaration of Larry Zerner for Reply Brief

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10. On January 16, 2012, I did a search of the New York State Bar Association for Cindy Nelson. The results showed that Cindy Ellen Nelson (Bar No. 1705573) is currently listed as being employed by Warner Bros. Entertainment, Inc. 11. Attached hereto as Exhibit 43 is a true and correct copy of the Designation

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of Expert Witness mailed to DC on November 28, 2012 which designates Mr. Towle as an expert on the issue of functionality and non-separability of the portions of the Batmobiles. I did not receive a counter-designation from DC. 12. I swear under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 16th day of January 2013 in Los Angeles, CA. /Larry Zerner/

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Declaration of Larry Zerner for Reply Brief

Case 2:11-cv-03934-RSWL-OP Document 3

Filed 05/06/11 Page 1 of 2 Page ID #:1

Exhibit 41

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Case 2:11-cv-03934-RSWL-OP Document 3

Filed 05/06/11 Page 2 of 2 Page ID #:2

Exhibit 41

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Case 2:11-cv-03934-RSWL-OP Document 14

Filed 12/05/11 Page 1 of 4 Page ID #:107

Exhibit 41

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Case 2:11-cv-03934-RSWL-OP Document 14

Filed 12/05/11 Page 2 of 4 Page ID #:108

Exhibit 41

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Case 2:11-cv-03934-RSWL-OP Document 14

Filed 12/05/11 Page 3 of 4 Page ID #:109

Exhibit 41

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Case 2:11-cv-03934-RSWL-OP Document 14

Filed 12/05/11 Page 4 of 4 Page ID #:110

Exhibit 41

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Life Magazine Cover

Revell Model Kit

EXHIBIT 42

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Larry Zerner (SBN 155473) Law Office of Larry Zerner 1801 Century Park East, Suite 2400 Los Angeles, California 90067 Telephone: (310) 773-3623 Facsimile: (310) 388-5624 Attorney for Defendant Mark Towle, An individual and d/b/a Gotham Garage

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DC Comics, Plaintiff, v. Mark Towle, an individual and d/b/a Gotham Garage, and Does 1 10, inclusive, Defendants. ) ) Case No. CV11-3934 RSWL (OPx) ) ) DEFENDANTS DESIGNATION OF ) EXPERT WITNESSES ) ) ) ) ) ) ) )

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that pursuant to FRCP 26, Defendant Mark Towle hereby designates the following witness who may be called to testify at the trial of the above-captioned matter to give expert testimony. 1. Mark Towle, c/o Law Office of Larry Zerner. Mr. Towle will testify as to the portions of the 66 Batmobile and 89 Batmobile that are functional and/or nonseparable, namely, the following: 66 Batmobile
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Exhibit 43

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a) The front grill work. b) The jet engine exhaust pipe; c) Functional Flame Thrower d) Rear Bat-fins e) All switches and hand-throttle knob for the "turboelectric Drive" f) The "Bing-Bong Warning Bell" and "Bat-Light Flasher"; g) The Mobile Phone between the seats with Beeper and Flashing Light; h) The "Batscope,"complete with TV-like viewing screen on the dash, radar-like antenna with amiable parabolic reflector outside, and cockpit controls; i) Turn-off switch for protection systems; j) Radar-like screen that beeps and blips and points an arrow as it picks up Robin's directional signal; k) Mechanics for emergency bat turn with a red lever so named on dash, reverse thrust rockets beneath headlights, and ejection parachute mechanism at rear; l) Portable fire extinguisher; m) Color of the Batmobile; 89 Batmobile n) jet turbine engine intake grill; o) Mandible-style front fenders; p) Rear sculpted fins;
-2 Defendants Designation of Expert Witnesses

Exhibit 43

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q) Interior monitor; r) Pair of forward-facing Browning machine guns; Date: November 26, 2012 Law Office of Larry Zerner By: ____________________ Larry Zerner Attorney for Defendant Mark Towle

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Defendants Designation of Expert Witnesses

Exhibit 43

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PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action. My business address is 1801 Century Park East, Suite 2400, Los Angeles, California 90067. On November 28, 2012 I served the foregoing documents described as:

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DEFENDANTS DESIGNATION OF EXPERT WITNESSES

Said document was served on the interested party(ies) in this action as follows:

J. Andrew Coombs andy@coombspc.com Nicole L. Drey nicole@coombspc.com J. Andrew Coombs, A Prof. Corp. 517 East Wilson Ave., Suite 202 Glendale, California 91206 Telephone: (818) 500-3200 Facsimile: (818) 500-3201
X BY MAIL: I am readily familiar with the practices of this business for collection and processing of mail, and I declare that on the same day, and in the ordinary course of business, said mail is deposited in the United States Mail with postage thereon fully prepaid at Los Angeles, California. I am aware that on motion of a party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in the affidavit regarding proof of service. __X___BY ELECTRONIC MAIL: The above-referenced document was transmitted in "pdf" format by electronic ("e-mail") to each of the email addresses on the attached service list, and no errors were reported. PERSONAL SERVICE: I caused said envelope to be delivered to the offices of the addressee(s) marked with a ***. Executed on November 28, 2012 at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.

_____________________ Larry Zerner

Exhibit 43

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