Case 2:21-cv-03677-FLA-MAR Document 35-1 Filed 04/27/22 Page 1 of 8 Page ID #:281

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Jay D. Ellwanger (CA Bar No. 217747)
2 ELLWANGER LAW LLLP
8310-1 N. Capital of Texas Highway, Ste. 190
3 Austin, Texas 78731
[email protected]
4 (737) 808-2260
5 Attorney for Plaintiff

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ESMÉ BIANCO, Case No. 2:21−cv−03677 FLA (MARx)
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Plaintiff, PLAINTIFF’S MEMORANDUM OF
11 POINTS AND AUTHORITIES IN
v. SUPPORT OF UNOPPOSED MOTION
12 FOR MODIFICATION OF THE
BRIAN WARNER a/k/a MARILYN SCHEDULING ORDER AND
13 MANSON, individually, MARILYN AMENDMENT OF THE COMPLAINT
MANSON RECORDS, INC.,
14 (JURY TRIAL DEMANDED)
Defendant.
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Plaintiff ESMÉ BIANCO; (“Ms. Bianco” or “Plaintiff”), by and through her attorneys,
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submits this Memorandum in Support of Plaintiff’s Unopposed Motion for Modification of the
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Scheduling Order and Amendment of the Complaint for her claims against Defendant BRIAN
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20 WARNER a/k/a MARILYN MANSON, individually (“Mr. Warner” or “Defendant Warner”),

21 MARILYN MANSON RECORDS, INC., individually (“Marilyn Manson Records” and, together

22 with Mr. Warner, “Defendants). In support thereof, Plaintiff submits the following:
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I. BACKGROUND
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A. Procedural History
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Ms. Bianco filed her Original Complaint against Defendants on April 30, 2021, alleging
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causes of action for sexual assault, sexual battery, and violations of the Trafficking Victims
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28 Protection Reauthorization Act. (Dkt. No. 1). Ms. Bianco thereafter filed her Corrected First

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Amended Complaint (“CFAC”) on July 16, 2021, to remove named defendants whose claims had
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been resolved and to add Marilyn Manson Records, Inc. as a Defendant. (Dkt. No 12). Defendants
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filed a Motion to Dismiss on July 28, 2021. (Dkt. No. 14) After full briefing and a hearing on the
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5 motion, Defendants’ motion was denied on October 7, 2021. (Dkt. No. 26).

6 Defendants filed an Answer on October 21, 2021. (Dkt. No. 27). On December 3, 2021, the

7 parties filed a satisfactory Joint Rule 269(f) Report and Scheduling Worksheet. (Dkt. No 31). On
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December 7, 2021, the Court issued a Schedule of Pretrial and Trial Dates, Trial Requirements, and
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Conduct of Attorneys and Parties (“Scheduling Order”). (Dkt. No. 34). The Scheduling Order
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includes a deadline of March 18, 2022 for hearing motions on the amendment of any pleadings.
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(Id.).
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13 Approximately two weeks ago, after this deadline had passed, Plaintiff alleges that

14 Defendant Warner committed tortious interference causing Ms. Bianco to lose out on current and
15 future business opportunities. Plaintiff moves to modify the Scheduling Order and file a Second
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Amended Complaint, attached here to as Exhibit A, including these new claims.
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B. Factual Background
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Ms. Bianco filed her original lawsuit on April 30, 2021. She brought claims against
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Defendants for sexual assault, sexual battery, and violations of the Trafficking Victims Protection
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21 Reauthorization Act. (Dkt. No. 12). The parties are currently engaged in active discovery.

22 In April 2022, Ms. Bianco entered into a contract to provide the musical group Deftones
23 with images of herself to be used during the band’s current tour. (Exhibit A, at ¶ 33). In exchange
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for these images, Ms. Bianco expected an economic benefit from the significant public exposure of
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her images during the band’s worldwide tour. (Id.). Ms. Bianco would also benefit from the
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opportunity to continue working with the highly sought-after creative director who oversaw the
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28 project. (Id.). On April 11, 2022, Ms. Bianco performed her end of the contract, by participating

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in a video shoot for the band and providing the images for the Deftones’ use. (Id. at ¶ 34). Ms.
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Bianco received approval from the creative director of the project to post about her collaboration
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with the Deftones on her Instagram story, which she did at 9:08 a.m on April 12, 2022. (Id.).
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5 Soon thereafter, Defendant Warner learned about Ms. Bianco’s involvement in the project

6 for the Deftones. (Id. at ¶ 35). Defendant Warner proceeded to contact the band and confront them

7 over the Deftones’ decision to work with Ms. Bianco. (Id.). Defendant Warner used his power and
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influence in the entertainment industry to interfere with Ms. Bianco’s ability to continue to work
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with the Deftones. (Id.). Defendant Warner called the Deftones to cause the contract with Ms.
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Bianco to be breached by the Deftones by convincing them to refuse to utilize Ms. Bianco’s images.
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(Id.).
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13 Defendant Warner was successful, and on April 14, 2022, Ms. Bianco was informed that

14 the Deftones would not perform their end of the contract with her due to Defendant Warner’s
15 interference. (Id. at ¶ 36). Ms. Bianco was told that her images would not be used during the
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Deftones upcoming tour. (Id.). As a consequence, Ms. Bianco has suffered the loss of the
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opportunity to work with the highly regarded creative director, as well as the loss of exposure of
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her images being used during the Deftones world tour. (Id. at ¶ 37). Ms. Bianco’s loss of this
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20 professional relationship resulted in reputational damage and a loss of future economic opportunity

21 with the Deftones, as well as the loss of the economic benefit of the public exposure afforded by

22 the Deftones’ tour. (Id.). Defendant Warner’s interference with her professional reputation and
23 career opportunities is a recent continuation of the previously pled allegations to silence Ms. Bianco
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through threats, intimidation, and coercion.
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II. ARGUMENT
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A. There Is Good Cause to Modify the Schedule Order Pursuant to Fed. R. Civ.
3 P. 16(b)(4)
4 Federal Rule of Civil Procedure 16(b) provides that the district court must issue a scheduling
5 order that governs the timeframe to join other parties, amend the pleadings, and complete discovery.
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FED. R. CIV. P. 16(b). Federal Rule of Civil Procedure 16(d) provides that the scheduling order
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thereby issued should control the course of the action “unless the court modifies it.” FED. R. CIV.
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P. 16(d). Rule 16(b)(4) provides that a scheduling order “may be modified only for good cause and
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10 with the judge’s consent.” FED. R. CIV. P. 16(b)(4). Therefore, if a party seeks amendment of a

11 complaint after the deadline for amendment set by the court in a scheduling order has passed, Rule
12 16(b)(4) requires that “good cause” be shown by the moving party before leave to amend can be
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granted.
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The main inquiry in whether “good cause” has been met “considers the diligence of the
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party seeking the amendment.” Anthony v. Iron Mountain, Inc., 2021 WL 4355502 at *2 (C.D. Cal.
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17 2021) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-608 (9th Cir. 1992)).

18 “Specifically, the district court may modify the pretrial schedule ‘if it cannot be reasonably met

19 despite the diligence of the party seeking extension.’” Id. (quoting FED. R. CI. P. 16 advisory
20 committee’s notes (1983 amendment)). Diligence may be demonstrated by showing that (1)
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noncompliance with the scheduling order resulted from circumstances not reasonably anticipated
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at the time of the scheduling conference; and (2) a prompt request for modification was made once
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it became clear that compliance was not possible. Hood v. Hartford v. Life & Acc. Ins. Co., 567
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25 F.Supp.2d 1221, 1224 (E.D. Cal. 2008).

26 Ms. Bianco has good cause to request a modification of the scheduling order. The

27 scheduling order provides that the last day to hear a motion to amend the pleadings was March 18,
28 2022. (Dkt. No. 34). However, Defendant Warner allegedly committed the most recent offense

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against Ms. Bianco in April 2022, after Ms. Bianco’s March 18, 2022 deadline to amend her
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pleadings had passed. Less than a week later, Ms. Bianco contacted Defendant’s counsel regarding
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the instant motion to see if Defendants would be opposed. Within two weeks of the alleged tortious
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5 interference, Ms. Bianco filed this motion requesting modification of the scheduling order to allow

6 her to file a Second Amended Complaint to include these claims against Defendant Warner.

7 The focus of the diligence inquiry under Rule 16 is the time between the moving party’s
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discovery of the new facts and its asking leave of the court to file an amended pleading. G.P.P,
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Inc., v. Guardian Protection Products, Inc., 2016 WL 4041194 at *5 (E.D. Cal. 2016). Ms. Bianco
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was diligent in her request for modification within a week of discovery of the facts requiring leave
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to amend her complaint, and therefore has demonstrated good cause to amend the discovery order.
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13 See e.g., Fru-Con Const. Corp. V. Sacramento Mun. Util. Dist., 2006 WL 3733815 at *4 (E.D. Cal.

14 2006) (finding good cause and reasonable diligence was shown where the party moved to amend
15 within two months of learning new facts); G.P.P., Inc., 2016 WL 4041194 at *5 (finding plaintiff
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“diligent in seeking to amend” when plaintiff moved to amend less than four weeks after
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discovering all the facts that form the basis for the amendment).
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B. Ms. Bianco May Amend the Complaint Pursuant to FED. R. CIV. P. 15(a)
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Once the court has determined that there is good cause to modify the scheduling order, the
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21 court must then determine if the amendment sought should be granted pursuant to Federal Rule of

22 Civil Procedure 15(a). G.P.P., Inc., 2016 WL 4041194 at *3. Rule 15 requires that the “court should
23 freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). The “policy is to be applied
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with extreme liberality.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014);
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Rivera v. Optimus Prop., LLC (2018 WL 5906903 at *3 (C.D. Cal. 2018). There is a strong
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presumption in favor of granting leave to amend under Rule 15(a). Carlin v. Dairyamerica, Inc.,
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28 2016 WL 232315 at *1 (E.D. Cal. 2016).

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The Ninth Circuit requires the consideration of five factors in deciding whether to grant
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leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of the amendment
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and whether the plaintiff has previously amended the complaint. Kaneka Corp. v. SKC Kolon PI,
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5 Inc., 2013 WL 11237203 at *2 (C.D. 2013). Of these factors, “the consideration of prejudice to the

6 opposing party carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

7 1052 (9th Cir. 2003) (internal citations omitted). In conducting its analysis, the court must grant all
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inferences in favor of allowing amendment. See Griggs v. Pace Am. Group, Inc., 17 F.3d 877, 880
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(9th Cir. 1980).
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First, there is no prejudice to Defendant that would impede Ms. Bianco’s ability to amend.
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See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 188-189 (9th Cir. 1987) (finding there is no
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13 prejudice where the case is still in the early stages and discovery has not ended). Indeed, Defendant

14 does not oppose Plaintiff’s request for leave to amend.

15 Nor are any of the other factors present here. Ms. Bianco requests leave to file a Second
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Amended Complaint to add claims deriving from facts that she has just fully learned of this month.
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Further, it is only a month after the deadline for amending pleadings in the scheduling order. (Dkt.
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No. 34). There is still ample time to develop these claims, and the defenses thereto, as fact discovery
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20 runs through the end of October and there is no set trial date. (Id.). There is no undue delay or bad

21 faith. See e.g., Aardwolf Industries, 2017 WL 6888242 at *5 (finding that since the plaintiff

22 diligently pursued amendment of the complaint once learning about the new facts there leave to
23 amend should be granted).
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Finally, Ms. Bianco’s amendment is not futile. While the validity of the proposed
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amendments should not be considered by the court to grant leave, amendment may be denied if the
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proposed amendment is clearly futile. G.P.P., Inc., 2016 WL 4041194 (E.D. Cal. 2016). This is
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28 not the case here. Plaintiff’s Second Amended Complaint seeks to add new claims regarding

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Defendant Warner’s tortious interference with her contract with the Deftones, and the significant
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publicity and economic losses that Defendant Warner has caused Ms. Bianco through his unlawful
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actions. These claims are not futile and have been stated with particularity in Plaintiff’s attached
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5 Second Amended Complaint. See e.g. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th

6 Cir. 2003) (reversing district court’s denial of leave to amend where even though plaintiff had

7 previously had “three bites of the apple” and plaintiff’s ability to add new details to their complaint
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was not made in bad faith or for an improper purpose).
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Ms. Bianco should be granted leave to amend her complaint to include new claims against
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Defendant Warner that Ms. Bianco just learned about due to Defendant’s recent unlawful conduct.
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Rule 15 requires that the “court should freely give leave when justice so requires” and justice
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13 requires it here.

14 III. CONCLUSION
15 Plaintiff respectfully requests that the Court grant Plaintiff’s unopposed motion to amend
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the scheduling order and permit Plaintiff to file a Second Amended Complaint.
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Dated: April 27, 2022
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Jay D. Ellwanger
20 California Bar No. 217747
ELLWANGER LAW LLLP
21 8310-1 N. Capital of Texas Highway
Suite 190
22 Austin, Texas 78731
[email protected]
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(737) 808-2260
24 (737) 808-2262 (facsimile)
Attorney for Plaintiff
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CERTIFICATE OF SERVICE
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I hereby certify that on the 27th day of April 2022, all counsel of record who are deemed to
3 have consented to electronic service are being served with a copy of this document via the Court’s
CM/ECF system.
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5 /s/ Jay D. Ellwanger_____
Jay D. Ellwanger
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