Case 8:22-cv-00459-RSWL-JDE Document Filed 11/17/22 Pagelof25 Page ID #:493

1 ‘QO! 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 | NKLOSURES, INC., CV 22-00459-RSWL-JDEx 13 Plaintiff, DISMISS (41) TO 14 Vv. be AVALON LODGING LLC, et 16] al., 17 Defendants. ^[3] | _ Plaintiff nKlosure, Inc. (“Plaintiff”) brought this | Action against Defendants Avalon Lodging, LLC (“Defendant Avalon”); Bipin Morari (“Defendant Morari”); | Best Western International, Inc.; W&W Land Design | Consultants, Inc.; Winston Liu, P.E.; and Tom Lau, AIA (collectively, “Defendants”) alleging copyright | infringement, breach of contract, and unfair business | practices. Currently before the Court is Defendants | Avalon and Morari’s Motion to Dismiss [41] (“Motion”). | Having reviewed all papers submitted pertaining to this Page ID #:494

Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS in part and DENIES in part Defendants’

Motion. I. BACKGROUND A. Factual Background Plaintiff’s First Amended Complaint (“FAC”) alleges as follows: On or about May 25, 2014, Plaintiff, a licensed architectural firm, contracted with Mr. Thakor Patel to provide architectural design services for a new Los Angeles hotel. First Am. Compl. (“FAC”) ¶ 12, ECF No. 39. The contract (the “Agreement”) indicated that Plaintiff was the sole author, owner, and copyright holder of the architectural drawings and plans (the “Drawings”) and that once the Planning Department approved the Drawings, Mr. Patel would retain Plaintiff as the architect for the hotel’s construction. Id. Moreover, the Drawings were stamped with language providing that they could not be copied or transmitted without Plaintiff’s express written permission. Id. ¶ 13. After the Drawings were approved, Plaintiff learned in June 2015 that Mr. Patel was selling the hotel project to Defendant Avalon. Id. ¶ 14. In response, Plaintiff’s principal, Mr. Nikhil Kamat (“Mr. Kamat”), reached out to Defendant Avalon’s principal and managing agent, Defendant Morari, to notify him that the Planning Department had approved the Drawings and Plaintiff could

Page ID #:495 continue work on the project. Id. ¶¶ 5, 15. Defendant

Morari then asked for a proposal for Plaintiff’s work.

Id. ¶ 15. Mr. Kamat made it clear that Plaintiff would only disclose the Drawings in its proposal on the condition that Defendant Avalon could not use the Drawings for the hotel unless Defendant Avalon paid Plaintiff for them and hired Plaintiff as the project architect. Id. Three weeks later, Mr. Kamat sent Defendant Morari an e-mail containing Plaintiff’s proposal. Id. ¶ 17. In the e-mail, Mr. Kamat indicated that Plaintiff was the sole owner, author, and copyright holder of the Drawings created for the hotel, and that upon execution of a contract, Plaintiff would grant Defendant Avalon a license to use the Drawings in the hotel’s construction. Id. In two subsequent phone calls, Defendant Morari told Mr. Kamat that he would review the proposal and get back to him. Id. ¶ 18. Defendant Morari understood that if he decided to use the Drawings, Defendant Avalon would have to pay for them and use Plaintiff as the architect on the project. Id. Thereafter, Defendant Morari went silent and cut off all contact with Mr. Kamat. Id. Several weeks later, Mr. Kamat sent an e-mail to follow up on the proposal, but Defendant Morari did not respond nor contact Plaintiff again. Id. ¶ 19. Mr. Kamat therefore inferred that Defendant Morari was not interested in using the Drawings for the hotel. Id.

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On or about June 22, 2020, Mr. Kamat saw an advertisement for the sale of a hotel that had since

been constructed on the property and recognized the design as his own. Id. ¶ 21. He also learned that Defendant Avalon had hired Defendant W&W Land Design Consultant, Inc. (“W&W”) for the next stage of project development and that Defendants had used Plaintiff’s preliminary schematic design and drawings in the hotel’s construction. Id. Sometime thereafter, Plaintiff learned that the Drawings were included in a Power Point presentation (the “Presentation”) marketing the property. Id. ¶ 20. On January 13, 2022, Plaintiff filed a copyright application for the Drawings and the United States Copyright Office granted Copyright Registration Certificate No. VA 2-282-647 for the Drawings five days later. Id. ¶¶ 24-25. B. Procedural Background Defendants filed the instant Motion [42] on September 8, 2022. Plaintiff opposed [48] the Motion on October 4, 2022. Defendants replied [49] on October 7, 2022. II. DISCUSSION A. Legal Standard Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of one or more claims if the pleading fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint must “contain sufficient factual matter, accepted as true, to

Page ID #:497 state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation

omitted). Dismissal is warranted for a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citation omitted). In ruling on a Rule 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the non-moving party. Klarfeld v. United States, 944 F.2d 583, 585 (9th Cir. 1991). The question is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence to support its claims. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 184 (2005) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). While a complaint need not contain detailed factual allegations, a plaintiff must provide more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very

Page ID #:498 remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). B. Analysis

Page ID #:499

September 3, 2021 Order in the State Case; (D) Plaintiff’s first-amended complaint in the State

Case; (E) The LASC December 16, 2021 Order in the State Case; (F) Plaintiff’s second-amended complaint, in the State case; (G) the demurrer and request for judicial notice Defendants filed in the State Case; (H) the LASC’s March 23, 2022 tentative ruling on Defendants’ demurrer; (I) Plaintiff’s voluntary dismissal of the State Case; (J) Plaintiff’s responses to Defendants’ Special Interrogatory No. 49, Request for Admission No. 32, and Form Interrogatory 17.1; (K) Plaintiff’s supplemental responses to Defendants’ Request for Admission Nos. 40-41; (L) The Presentation Plaintiff referred to in the FAC. See generally Req. for Judicial Notice (“RJN”), ECF No. 42; RJN, Exs. A-L, ECF Nos. 42-1 through 42-12. a. Documents Subject to Judicial Notice Exhibits B through I are court filings and records in related proceedings and are thus properly subject to judicial notice. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of pleadings, memoranda, and other court documents from related litigation). The Court takes judicial notice of the existence of these proceedings, their filing dates, Plaintiff’s claims, and the court’s dispositions. See Limcaco v. Wynn, No. 220CV11372RSWLMAAX, 2021 WL 5040368, at *5 (C.D. Cal. Oct. 29, 2021). The Court should not, however,

Page ID #:500 take judicial notice of these documents for the truth of the matters asserted therein. See Lee v. City of Los

Angeles, 250 F.3d 668, 690 (9th Cir. 2001); Garber v. Heilman, No. CV 08-3585-DDP (RNB), 2009 WL 409957, at *1 (C.D. Cal. Feb. 18, 2009). b. Documents Subject to Incorporation by Reference Under the judicially created incorporation by reference doctrine, “[a] court may consider evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Exhibit A is the Agreement between Plaintiff and Mr. Patel. See RJN, Ex. A. Plaintiff’s FAC also extensively referenced the Agreement. See FAC ¶¶ 12-13. Plaintiff did not question Exhibit A’s authenticity in its Opposition and instead asserted that the license it granted to Mr. Patel in the Agreement did not transfer to Defendants. See Opp’n 3:26-4:11. The Agreement is therefore central to Plaintiff’s infringement claim, so the Court may incorporate Exhibit A by reference into its analysis of the current Motion. Exhibit L is the Presentation allegedly used to market the property that included the Drawings. See FAC ¶ 20. Neither party questions Exhibit L’s authenticity,

Page ID #:501 and Plaintiff references the Presentation in its FAC.

See FAC ¶ 20. Absent direct evidence of copying, a

plaintiff asserting copyright infringement must prove that a defendant had “access” to the underlying work. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). Thus, because Plaintiff alleges that the Presentation provided Defendants with access to the Drawings, the document is central to the infringement claim. The Court may therefore also incorporate the Presentation by reference into its analysis of the current Motion. Since the Court incorporates by reference Exhibits A and L, judicial notice is not necessary. See Rainville v. Anthem Um Servs., No. 18-cv-07099-RS, 2019 WL 13203765, at *2 n.2 (N.D. Cal. Feb. 12, 2019). c. Documents Not Subject to Judicial Notice or Incorporation by Reference Exhibit J and Exhibit K purportedly contain Plaintiff’s discovery responses in the related state court proceedings, and Defendants rely on the responses to undermine Plaintiff’s allegations. See RJN, Exs. J & K; Defs.’ Mot. to Dismiss (“Mot.”). However, a court may only judicially notice an adjudicative fact if it is not subject to reasonable dispute because it: “(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A document is

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1] “self-authenticating” — and therefore deemed not subject 2] to reasonable dispute - if it requires no extrinsic 3 | evidence of genuineness to be admitted as evidence. ^[4]] United States v. Alvirez, 831 F.3d 1115, 1123 (9th Cir. 5 | 2016). Discovery responses are not self-authenticating 6 | documents. See United Safeguard Distribs. Ass’n, Inc. 7 Jv. Safeguard Bus. Sys., Inc., 145 F. Supp. 3d 932, 942 8] (C.D. Cal. 2015) (“Discovery items . . . are not proper 9 {| subjects for judicial notice because they are not ‘self- 10 | authenticating’ and thus cannot be verified.”); Garber 11] sv. Heilman, No. CV 08-3585-DDP (RNB), 2009 WL 409957, at 1249 *1 (C.D. Cal. Feb. 18, 2009); Brown v. Allstate Ins. 13] Co., 17 F. Supp. 2d 1134, 1138 (S.D. Cal. 1998) (refusing to judicially notice requests for admissions | because “[t]he court proceeds with particular caution J with respect to a request for judicial notice, when, as J] here, it is urged so to resolve a fundamental, | dispositive factual dispute”). Therefore, the Court | should deny Defendants’ request for judicial notice for | Exhibits J and K.

Page ID #:503 not need to plead “on the subject of affirmative defenses.” Rivera v. Peri & Sons Farms, Inc., 735 F.3d

892, 902 (9th Cir. 2013). Rather, only when a complaint’s allegations suffice to establish an affirmative defense can a defendant properly raise the defense in a 12(b)(6) motion. Id.; Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013). The existence of a license is an affirmative defense to a copyright infringement claim. Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1114 (9th Cir. 2000). Here, Defendants assert that the Agreement granted them an express, or at least an implied, license to use the Drawings. Mot. 11:21-24. However, Defendants were not a party to the Agreement. See RJN, Ex. A. Instead, they contend that Mr. Patel transferred the Agreement’s license to a third-party, RSP, who in turn sold the land, drawings, and license to them. Id. at 11:13-20. But the Ninth Circuit has held that a licensee cannot transfer a copyright license without authorization. Harris v. Emus Recs. Corp., 734 F.2d 1329, 1334 (9th Cir. 1984) (“A licensee, however, had no right to re- sell or sublicense the rights acquired unless he has been expressly authorized to do so.”) (quoting M. NIMMER, NIMMER ON COPYRIGHT § 10.01[c][4] (1983)). The Court should not consider the express license defense because the FAC and Agreement provide no evidence that Plaintiff

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1] authorized the license’s transfer. See generally FAC; 2] RUN, EX. A. ^[3] Alternatively, copyright owners can grant 4 | nonexclusive licenses by implication. Foad Consulting 5] Grp., Inc. v. Azzalino, 270 F.3d 821, 826 (9th Cir. | 2001). However, “implied licenses” are, by their very | nature, implied. Consequently, courts generally resolve | questions concerning implied licensing at summary | Judgment — and not on motions to dismiss — because they | require factual inquiry and analysis. Erwin v. Sestero, J No. CV143890RSWLPJWX, 2014 WL 12591480, at *3 (C.D. Cal. | Dec. 18, 2014); see, e.g., Effects Associates, Inc. v. | Cohen, 908 F.2d 555, 559 (9th Cir. 1990) (establishing | the three-element Effects Test to determine whether an | implied license exists). Here, the Court declines to determine whether | Defendants possessed an implied license to use the | Drawings because the affirmative defense is not apparent | from the FAC’s allegations and the Agreement. See Sams, □ 713 F.3d at 1179 (maintaining that to serve as a basis 21] for dismissal, affirmative defenses should be “apparent 22 | from the face of the complaint”). For example, the 23 | Effects Test’s third prong asks whether the licensor 24 | intended for the licensee to copy and distribute the 25 | work. See Asset Mktg. Sys., Inc. v. Gagnon, 542 F.3d 26] 748, 755 (9th Cir. 2008). Plaintiff explicitly alleged 274] that (1) the Agreement contained a clause restricting 28 | Mr. Patel’s right to copy or disseminate the Drawings

Page ID #:505 and (2) Plaintiff told Defendants that it was the “sole

owner, author, and copyright holder” of the Drawings and would only grant them a license for their use “upon execution of [a] contract.” FAC ¶¶ 13, 17. The Agreement further provides, in pertinent part, that “[Plaintiff] is, at all times, the author, owner and copyright holder of all drawings . . . for this Project [and] . . . [Plaintiff] grants the Owner a license to use the [Drawings] for the limited purpose of this Project only.” RJN, Ex. A at 5 (emphasis added). Thus, the FAC’s allegations and incorporated Agreement do not clearly establish an implied license, particularly considering that the Agreement purported to limit the license’s scope and transferability. See id. In sum, although the Agreement granted Mr. Patel an express license to use the Drawings, the Court need not, on a motion to dismiss, determine whether he transferred (or legally could transfer) the license to Defendants when they purchased the hotel project. Additionally, the Court should refrain from determining whether Defendants possess an implied license because the FAC’s allegations and the Agreement do not obviously establish the defense. See Gomez v. Quicken Loans, Inc., 629 F. App’x 799, 801 (9th Cir. 2015) (“An affirmative defense cannot serve as a basis for dismissal unless it is obvious on the face of the complaint.”). /// ///

Page ID #:506 b. The Court Tolls the Statute of Limitations

Under the Copyright Act, a plaintiff must commence an infringement action within three years of the claim accruing. 17 U.S.C. § 507(b). The Ninth Circuit has adopted “the discovery rule,” which holds that a claim “accrues” when the copyright holder “has knowledge of a violation or is chargeable with such knowledge.” Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994). In other words, the three-year clock begins when a plaintiff discovers the infringement, so long as the plaintiff’s prior unawareness of the infringement was reasonable under the circumstances. Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 706 (9th Cir. 2004); see also Starz Ent., LLC v. MGM Domestic Television Distrib., LLC, 39 F.4th 1236, 1246 (9th Cir. 2022) ([B]ecause the discovery rule is an exception to the general incident of injury rule, . . . the three-year limitations period begins only when the copyright holder knows or should have known of the infringing act.”). Ultimately, “precisely when a claim accrues is a question of fact.” Starz Ent., LLC v. MGM Domestic Television Distrib., LLC, No. CV 20-4085-DMG (KSX), 2021 WL 566500 (C.D. Cal. Jan. 5, 2021), motion to certify appeal granted, No. CV 20-4085-DMG (KSX), 2021 WL 945237 (C.D. Cal. Feb. 22, 2021), and aff’d, 39 F.4th 1236 (9th Cir. 2022) (holding the parties should pursue discovery to determine whether the pleadings accurately reflected Case 8:22-cv-00459-RSWL-JDE Document Filed 11/17/22 Page15o0f25 Page ID #:507

1] when a claim accrued). Because factual issues cannot be 2 4] resolved at the pleadings stage, a court should only 3 | find a copyright claim time-barred on a motion to 4] dismiss if no reasonable finder of fact could conclude 5 | that a copyright plaintiff’s lack of knowledge of 6 | infringement prior to its alleged discovery was 7 | reasonable under the circumstances. Mavrix Photo, Inc. 8 FT v. Rant Media Network, LLC, No. CV197270DMGAFMX, 2020 WL 9 7 8028098, at *3 (C.D. Cal. Nov. 2, 2020). 10 In its Motion, Defendants contend that Plaintiff 11] “could have easily checked the records of the City of 12] L.A. and learned that Defendant Avalon’s new architects 13 | had submitted plans from scratch for the new 5-story 14 | hotel by August of 2015.”*% Mot. 28:9-12. Indeed, 15 J constructive knowledge can trigger the statute of 16] Limitations, and “suspicion” of infringement “place[s] 17 | upon [the plaintiff] a duty to investigate further into 18 | possible infringements of [its] copyrights.” Wood v. 19 | Santa Barbara Chamber of Commerce, Inc., 7/05 F.2d 1515, 207 1521 (9th Cir. 1983); Oracle Am., Inc. v. Hewlett 21] Packard Enter. Co., 971 F.3d 1042, 1047 (9th Cir. 2020). 22] “[A] plaintiff is deemed to have had constructive 23 24 2 Defendants assert that Plaintiff reasonably should have recognized infringement from “scratch-made” architectural plans 25 | for a hotel with a different number of stories than the one Plaintiff had designed. Mot. 28:9-12. Defendants cannot have it 26 | both ways; either Defendants’ hotel design infringed on the 27 Drawings — and thus Plaintiff should have recognized the hotel as its own design — or Defendants generated an entirely independent 299 | design.

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1] knowledge if it had enough information to warrant an 2] investigation which, if reasonably diligent, would have 3 | led to discovery of the [claim].” Pincay v. Andrews, 4] 238 F.3d 1106, 1110 (9th Cir. 2001). 5 Here, however, Plaintiff alleged that Defendants 6 | failed to follow up on its proposal to execute a 7 | contract that would grant Defendants a license for the 8 | Drawings and make Plaintiff the lead architect for 9 | construction. FAC G7 15-19. On a motion to dismiss, 10 | the Court should not impose a duty to investigate upon a 11] plaintiff unless the complaint clearly evidences the 12 | plaintiff’s suspicion or constructive knowledge of 13 J] infringement. See Von Saher v. Norton Simon Museum of 14] Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (“[A] | complaint cannot be dismissed unless it appears beyond | doubt that the plaintiff can prove no set of facts that | would establish the timeliness of the claim.”). Unlike J in Wood, where a plaintiff had filed a similar lawsuit | many years prior, thus evidencing suspicion, the FAC | here does not demonstrate that Plaintiff suspected 7 infringement before Mr. Kamat viewed the hotel | advertisement in 2020. See Wood, 705 F.2d at 1521; FAC 237 2 21. Any evidence to the contrary can be revealed in 24 | discovery and would properly be considered on a motion 25 | for summary judgment. 26 Therefore, presuming the FAC’s factual allegations 27] as true, the Court should find that a reasonable fact 28 | finder could believe that Plaintiff first discovered the Case 8:22-cv-00459-RSWL-JDE Document Filed 11/17/22 Page17of25 Page ID #:509

1] alleged infringement on or about June 22, 2020, and that 2] its prior unawareness was reasonable. Thus, the Court 3 | applies the discovery rule, tolls the statute of 4] limitations, and holds that Plaintiff timely filed its 5 | claim under the Copyright Act. 6 In summary, the Court need not determine on the 7 | current Motion whether Defendants’ license defense has 8] merit. The Court also applies the discovery rule and tolls the statute of limitations, thus rendering the 10 J claim timely filed. The Court therefore DENIES 11] Defendants’ Motion to Dismiss the copyright infringement | claim.

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1] matter afforded protection by the Copyright Act. See 24 Kodadek, 152 F.3d at 1212. 3 Next, “[t]o survive preemption, the state cause of 4] action must protect rights that are qualitatively 5 | different from the rights protected by copyright: the 6 | complaint must allege an ‘extra element’ that changes 7 | the nature of the action.” Grosso v. Miramax Film 8] Corp., 383 F.3d 965, 968 (9th Cir. 2004), opinion 9 | amended on denial of reh’g, 400 F.3d 658 (9th Cir. 10 2005). For a breach of contract claim, courts look to 11] the rights created by the contract and determine whether ] they “differ from the prohibition of unauthorized | reproduction, performance, distribution, or display of | work protected under copyright law.” Rumble, Inc. v. J] Daily Mail & Gen. Tr. PLC, No. CV 19-08420-CJC (EX), § 2020 WL 2510652, at *3 (C.D. Cal. Feb. 12, 2020). Here, no express contract exists, but Plaintiff | alleged that its correspondence with Defendants created J an implied-in-fact contract. See FAC 7 39. ™“[W]here an | idea is furnished by one party to another, a contract 21] sometimes may be implied even in the absence of an 22 | express promise to pay.” Grosso, 383 F.3d at 967. 23 | “California law allows for recovery for the breach of an 24 | implied-in-fact contract when the recipient of a 25 | valuable idea accepts the information knowing that 26 | compensation is expected, and subsequently uses the idea 27 | without paying for it.” Landsberg v. Scrabble Crossword 28 | Game Players, Inc., 802 F.2d 1193, 1196 (9th Cir. 1986).

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1] contract,? a plaintiff must allege that the plaintiff 2 (1) prepared the work, (2) disclosed the work to the 3 | defendant for sale, and (3) did so under circumstances 4] from which it could be concluded that the defendant 5 | voluntarily accepted the disclosure knowing the 6 | conditions on which it was tendered and the reasonable 7} value of the work. Grosso, 383 F.3d at 967. 8 Here, Plaintiff alleges the following: (1) it 9 | created the Drawings; (2) Mr. Kamat disclosed the 10 | Drawings to Defendant Morari in its June 26, 2015, 11] proposal; and (3) Mr. Kamat told Defendant Morari over | the phone and in his June 26, 2015 e-mail that if | Defendant Avalon wanted to use the Drawings, it would | have to pay for them and hire Plaintiff as the hotel J architect. FAC @@ 12-13, 17-18. Plaintiff further J alleges that on the phone calls, the two principals | discussed what drawings would be provided. Id. Given | Plaintiff’s allegations regarding the parties’ telephone | communication and Mr. Kamat’s e-mail indicating that | Plaintiff would only grant a license for the Drawings 3The Supreme Court of California originally created the | concept of implied-in-fact contracts to protect film writers from being deprived of the ideas they pitch to studio producers 23 without just compensation. See Desny v. Wilder, 299 P.2d 257 (Cal. 1956). Courts have since applied the concept to various 24 | types of intellectual property disclosure, including patent technology, website designs, and toys. See, e.g., JBF Interlude 25 2009 Ltd. v. Quibi Holdings LLC, No. 220CV02250CASSKX, 2020 WL 6203555 (C.D. Cal. Oct. 19, 2020); Riggs v. MySpace, Inc., 444 F. 26 App’x 986 (9th Cir. 2011); Gunther-Wahl Prods., Inc. v. Mattel, Inc., 128 Cal. Rptr. 2d 50 (2002). Therefore, the Court should 27 find that architectural design disclosure can also form an implied-in-fact contract. 28

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1] 7:22-24. In its Reply, Defendants accepted the 2] concession. Reply 10:1. Therefore, the Court GRANTS 3 | Defendants’ motion to dismiss Plaintiff’s UCL claim. ^[4] Plaintiff requested that the Court dismiss the UCL 5 | claim with leave to amend. Opp’n 7:23. “Where a motion 6 | to dismiss is granted, a district court must decide 7 | whether to grant leave to amend.” Winebarger v. 8 | Pennsylvania Higher Educ. Assistance Agency, 411 F. 97 Supp. 3d 1070, 1082 (C.D. Cal. 2019). “The court should 10 | give leave [to amend] freely when justice so requires.” 11] Fed. R. Civ. P. 15(a) (2). In the Ninth Circuit, “Rule 12 7 15’s policy of favoring amendments to pleadings should 13 | be applied with ‘extreme liberality.’” United States v. 14 | Webb, 655 F.2d 977, 979 (9th Cir. 1981). Against this 15 | extremely liberal standard, the Court may consider “the 16 | presence of any of four factors: bad faith, undue delay, 17 | prejudice to the opposing party, and/or futility.” 18 | Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 199 712 (9th Cir. 2001). 20 Here, leave to amend should be denied. Plaintiff 21 7 admits it cannot “identify any material relief uniquely 22 | available under the UCL that would justify extensive 23 | argument and litigation activity to carry forward this 24 | separate cause of action” and therefore it is “unlikely” 25] to reassert the UCL claim in the future. See Opp’n 26] 7:18-23. Given these statements and Plaintiff's 27 | previous amendment, it is clear that amendment would be 28 | futile.

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“The district court’s discretion to deny leave to amend is particularly broad where plaintiff has

previously amended the complaint.” Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Here, Plaintiff filed three state court complaints alleging its unfair business practices claim, and it has already amended its complaint in federal court once. See RJN, Exs. B, D, F, ECF Nos. 42-2, 42-4. Thus, Plaintiff has had multiple opportunities to refine its claim. Yet Plaintiff concedes that despite its amendment, its claim should not proceed and that is unlikely it can cure its claim. Opp’n 7:23-24. Plaintiff’s statements ring true. It is unlikely Plaintiff would reassert its UCL claim, because amending Plaintiff’s claim would not make available relief that is not already sought under Plaintiff’s other claims. Therefore, the Court should find that granting leave to amend would be futile. See In re Vantive Corp. Sec. Litig., 283 F.3d 1079 (9th Cir. 2002) (holding that because plaintiffs had three opportunities to plead their case, it was not unreasonable for the district court to conclude that it would be pointless to provide another chance to amend). The Court therefore GRANTS Defendants’ Motion to Dismiss the UCL claim without leave to amend. /// /// /// ///

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III. CONCLUSION Based on the foregoing, the Court DENIES

Defendants’ Motion to Dismiss the copyright infringement and breach of contract claims and GRANTS Defendants’ Motion to Dismiss the UCL claim without leave to amend.

IT IS SO ORDERED.

DATED: November 17, 2022 _ _ _ _ _ _ _ _/S_/ _R_O_N_A_L_D_ S_.W__. _LE_W________ HONORABLE RONALD S.W. LEW 10 Senior U.S. District Judge