Case 2:16-cv-04781-SVW-FFM Document 37 Filed 09/06/16 Page 1 of 12 Page ID #:165

ERIC BJORGUM (BAR NO. 198392)

2 Marc Karish (Bar No. 205440)
KARISH & BJORGUM, PC
3 119 E. Union St., Suite B
Pasadena, California 91103
4 Telephone: (213) 785-8070
Facsimile: (213) 995-5010
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Attorneys for DEFENDANTS Burbank High School

Vocal Music Association Boosters Club, Ellie Stockwell,
Marianne Winters, Geneva Tarandek, Lorna Consoli,
Charles Rodriguez, and their respective spouses and
THIRD PARTY PLAINTIFF Burbank High School Vocal
Music Association Boosters Club

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. CV16-04781-SVW-FFM

TRESONA MULTIMEDIA, LLC, an

Arizona limited liability company,

DEFENDANT BURBANK HIGH

SCHOOL VOCAL MUSIC
ASSOCIATION BOOSTERS
CLUBS THIRD PARTY
COMPLAINT FOR:

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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DEMAND FOR JURY TRIAL

DEFENDANTS THIRD PARTY COMPLAINT

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CONSOLI, a married couple;

CHARLES RODRIGUEZ and JANE
DOE RODRIGUEZ, a married couple;
Defendants.

_______________________________

BURBANK HIGH SCHOOL VOCAL

MUSIC ASSOCATION BOOSTERS
CLUB,

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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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COMES NOW Defendant/Third-Party Plaintiff, BURBANK HIGH

18 SCHOOL VOCAL MUSIC ASSOCATION BOOSTERS CLUB, and alleges as

19 follows:
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JURISDICTION
1.

This is an action arising under the copyright laws of the United States,

22 17 U.S.C. 101 et seq.

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2.
This Court has jurisdiction over the subject matter of this Third-Party
24 Complaint pursuant to 28 U.S.C. 1367.
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PARTIES
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3.

Third-Party Plaintiff BURBANK HIGH SCHOOL VOCAL MUSIC

27 ASSOCATION BOOSTERS (hereinafter BHSVMA), is an IRS Code Section

28 501(c)(3) organization based in Burbank, California.
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DEFENDANTS THIRD PARTY COMPLAINT

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4.

Third-Party Defendant, JOSH GREENE, (Greene) is an individual

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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5.

BHSVMA is informed and believed and based thereon alleges that

6 Third-Party Defendant, SQUAREPLAY, INC. d/b/a SQUAREPLAY

7 ENTERTAINMENT (SE), is a California corporation owned and/or operated by
8 Greene with its principal place of business in California.
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6.

The true names or capacities, whether individual, corporate, associate

10 or otherwise, of Third-Party Defendants DOES 1-10 (DOES), inclusive, are

11 unknown to BHSVMA, who therefore sues said DOES by such fictitious names.
12 BHSVMA will amend this Third-Party Complaint to allege their true names and
13 capacities when ascertained. BHSVMA is informed and believes and thereon
14 alleges that each of the fictitiously named Third-Party Defendants is liable to
15 BHSVMA as hereinafter alleged, and that BHSVMAs rights against such
16 fictitiously named Third-Party Defendants arise from such liability and
17 indebtedness.
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FIRST CLAIM FOR

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TOTAL EQUITABLE INDEMNITY AND CONTRIBUTION

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(AGAINST GREENE, SE, and DOES 1-10)

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7.

BHSVMA re-alleges each and every allegation contained in the

22 preceding paragraphs of this Third-Party Complaint and incorporates them as

23 though fully set forth herein.
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8.

Plaintiff Tresona Multimedia, LLC (Tresona), an Arizona limited

25 liability company, has filed a Complaint against BHSVMA pursuant to 17 U.S.C.

26 101 et. seq., alleging that from 2010 through 2014, the Burbank Vocal Music
27 Association and Burbank High School show choirs, at the direction of BHSVMA
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DEFENDANTS THIRD PARTY COMPLAINT

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1 and other named Defendants, infringed copyrights owned by it during that time
2 period.
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9.

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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10.

Greene, SE, and DOES were asked to provide musical arrangements

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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11.

BHSVMA has paid Greene and SE in excess of $100,000 to create

16 arrangements for the Burbank High School vocal music program, including the
17 Arrangements at issue in this litigation.
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12.

During negotiations for the Arrangements, Greene, SE, and DOES

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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DEFENDANTS THIRD PARTY COMPLAINT

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13.

BHSVMA was merely a downstream purchaser of the Arrangements

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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14.

If it should be found that BHSVMA is liable under the allegations

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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15.

If Tresona recovers judgment against BHSVMA, or if BHSVMA

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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SECOND CLAIM FOR

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PARTIAL EQUITABLE INDEMNITY

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(AGAINST GREENE, SE, AND DOES 1-10)

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16.

BHSVMA re-alleges each and every allegation contained in the

22 preceding paragraphs of this Third-Party Complaint and incorporates them as

23 though fully set forth herein.
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17.

Greene, SE, and DOES prepared the Arrangements in exchange for

25 monetary compensation.
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18.

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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DEFENDANTS THIRD PARTY COMPLAINT

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1 vocal music program would be permitted to lawfully utilize the musical

2 arrangements for performances. Furthermore, Greene, SE, and DOES represented
3 or implied that they had the right to create and sell the Arrangements to BHSVMA
4 for use by BHSVMA and the Burbank High School vocal music program, and that if
5 any permissions and licenses were necessary that Greene and SE had obtained them.
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19.

If BHSVMA is liable as alleged in the Complaint, any such injuries or

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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20.

BHSVMA was merely a downstream purchaser of the Arrangements

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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21.

BHSVMA is therefore entitled to be held harmless and indemnified by

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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DEFENDANTS THIRD PARTY COMPLAINT

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THIRD CLAIM FOR

BREACH OF IMPLIED CONTRACT

(AGAINST GREENE, SE, AND DOES 1-10)

22.

BHSVMA re-alleges each and every allegation contained in the

5 preceding paragraphs of this Third-Party Complaint and incorporates them as

6 though fully set forth herein.
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23.

Greene, SE, and DOES agreed to prepare and provide the

8 Arrangements to the Burbank High School vocal music program in exchange for
9 monetary compensation.
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24.

BHSVMA is informed and believes, and thereupon alleges, that by

11 entering into an agreement to prepare the Arrangements and by selling those

12 Arrangements to the BHSVMA for use by BHSVMA and the Burbank High School
13 vocal music program for good and valuable consideration, Greene, SE, and DOES
14 implied that they had the right and authority to engage in such actions pursuant to 17
15 U.S.C. 101 et seq.
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25.

If it is found that BHSVMA is liable as alleged in the Complaint, any

17 such injuries or damages were proximately caused by Third-Party Defendants

18 breach of their implied agreement to comply with 17 U.S.C. 101 et seq.
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26.

BHSVMA is entitled to be indemnified by Third Party Defendants, and

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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DEFENDANTS THIRD PARTY COMPLAINT

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FOURTH CLAIM FOR

BREACH OF ORAL CONTRACT

(AGAINST GREENE, SE, AND DOES 1-10)

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BHSVMA re-alleges each and every allegation contained in the

6 preceding paragraphs of this Third-Party Complaint and incorporates them as

7 though fully set forth herein.
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28.

BHSVMA is informed and believes, and based thereon alleges, that

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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29.

If it is found that BHSVMA is liable as alleged in the Complaint,

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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30.

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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31.

BHSVMA is entitled to damages from Greene, SE, and DOES in the

22 form of any amount recovered by Tresona against BHSVMA, as well as any

23 settlement, judgments, attorneys fees, costs of suit, cost of repair, and such other
24 and further relief as the court may deem appropriate.
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DEFENDANTS THIRD PARTY COMPLAINT

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FIFTH CLAIM FOR

BREACH OF IMPLIED WARRANTIES

(AGAINST GREENE, SE, AND DOES 1-10)

32.

BHSVMA re-alleges each and every allegation contained in the

6 preceding paragraphs of this Third-Party Complaint and incorporates them as

7 though fully set forth herein.
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33.

17 U.S.C. 101 et seq. govern and dictate the rights of copyright

9 holders, as well as lay out the limitations on third party uses of copyrighted material.
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34.

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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35.

BHSVMA is informed and believes and thereupon alleges, that if the

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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36.

As a result of the foregoing breach, among others, BHSVMA has

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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DEFENDANTS THIRD PARTY COMPLAINT

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SIXTH CLAIM FOR DECLARATORY RELIEF

(AGAINST GREENE, SE, AND DOES 1-10)

37.

BHSVMA realleges and incorporates each and every allegation

4 contained in the preceding paragraphs of this ThirdParty Complaint and

5 incorporates them as though fully set forth herein.
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38.

An actual controversy exists between the parties concerning their

7 respective rights and duties because BHSVMA, Greene, and DOES, inclusive,
8 dispute the allegations in this ThirdParty Complaint.
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39.

BHSVMA requests a judicial declaration of the rights, responsibilities,

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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PRAYER FOR RELIEF

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WHEREFORE Third-Party Plaintiff, Burbank High School Vocal Music

14 Association Boosters Club, prays for judgment as follows:

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1.

For judgment against Third-Party Defendants, and each of them, in the

16 amount of any judgment entered against this Third-Party Plaintiff;

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2.

For judgment against Third-Party Defendants, and each of them, in an

18 amount appropriate according to the degree and percentage of fault attributable to

19 each such Third-Party Defendant;
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3.

For contribution against Third-Party Defendants, and each of them, in

21 an amount appropriate according to the degree and percentage of fault attributable to

22 each such Third-Party Defendant;
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4.

For indemnity, whether total or partial, equitable or express, for all

24 damages arising out of or relating to Plaintiff TRESONA MULTIMEDIA, LLCs

25 claims;
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5.

For compensatory damages as alleged herein and according to proof;

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6.

For costs of suit incurred herein;

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DEFENDANTS THIRD PARTY COMPLAINT

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For exemplary and punitive damages; and

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For such other and further relief as the Court may deem just and proper.

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Respectfully submitted:

7 DATED: September 6, 2016

KARISH & BJORGUM, PC

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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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DEFENDANTS THIRD PARTY COMPLAINT

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DEMAND FOR JURY TRIAL

This Party Plaintiff Burbank High School Vocal Music Association Boosters Club,
through its undersigned counsel, hereby demand Trial by Jury of all issues so
triable.

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Dated: September 5, 2016

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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DEFENDANTS THIRD PARTY COMPLAINT