Case 2:15-cv-08481-DDP-KS Document 238 Filed 08/10/18 Page 1 of 16 Page ID #:3124
`
`O
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. CV 15-08481 DDP (KSx)
`
`ORDER RE: DEFENDANT MICHAEL
`ROSENBLATT’S MOTION TO DISMISS
`THE THIRD AMENDED COMPLAINT
`
`[Dkt 191]
`
`)))))))))))))
`
`BRETT LAUTER,
`
`Plaintiff,
`
`v.
`MICHAEL ROSENBLATT; ECHO
`BRIDGE ENTERTAINMENT, LLC;
`PLATINUM DISC. LLC; ECHO
`BRIDGE HOME ENTERTAINMENT;,
`Defendants.
`___________________________
`
`Presently before the Court is Defendant Michael Rosenblatt
`(“Rosenblatt”)’s Motion to Dismiss the Third Amended Complaint
`(“TAC”). Having considered the submissions of the parties, the
`court grants the motion in part, denies the motion in part, and
`adopts the following Order.
`I.
`Background
`As set forth in this Court’s prior Order, Plaintiff Brett
`Lauter (“Lauter”) is the sole proprietor of Pan Global
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`O
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. CV 15-08481 DDP (KSx)
`
`ORDER RE: DEFENDANT MICHAEL
`ROSENBLATT’S MOTION TO DISMISS
`THE THIRD AMENDED COMPLAINT
`
`[Dkt 191]
`
`)))))))))))))
`
`BRETT LAUTER,
`
`Plaintiff,
`
`v.
`MICHAEL ROSENBLATT; ECHO
`BRIDGE ENTERTAINMENT, LLC;
`PLATINUM DISC. LLC; ECHO
`BRIDGE HOME ENTERTAINMENT;,
`Defendants.
`___________________________
`
`Presently before the Court is Defendant Michael Rosenblatt
`(“Rosenblatt”)’s Motion to Dismiss the Third Amended Complaint
`(“TAC”). Having considered the submissions of the parties, the
`court grants the motion in part, denies the motion in part, and
`adopts the following Order.
`I.
`Background
`As set forth in this Court’s prior Order, Plaintiff Brett
`Lauter (“Lauter”) is the sole proprietor of Pan Global
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`Entertainment (“PGE”). Plaintiff acquires distribution rights to
`movies and other media and licenses those rights to other
`distributors, such as tv channels, video on demand services,
`websites, and DVD distributors. Plaintiff alleges that Defendant
`Rosenblatt is the founder, Chairman, CEO, President, managing
`partner, member, and majority shareholder of Defendant Echo Bridge
`Entertainment (“EBE”) and related entities.
`On June 15, 2011, Plaintiff and EBE entered into a “Multi
`Picture Deal/Acquisition of Digital Rights” Agreement (“the
`Agreement”) with respect to ten films. The Agreement granted EBE a
`digital distribution license for the ten films in exchange for
`royalty payments to Lauter. Plaintiff alleges that EBE breached
`the Agreement by packaging free digital copies of the films
`together with DVD copies of the same film and other films that
`Lauter did not own, and by failing to pay royalties owed to
`Lauter.1
`Lauter obtained a default judgment against EBE in state court
`for the unpaid royalties. Lauter attempted to contact EBE
`regarding subsequent alleged breaches of the Agreement, but
`received no response. Lauter concluded that, as a result of EBE’s
`silence, continued breach, and perceived insolvency, the Agreement
`terminated in February 2014. Nevertheless, Lauter alleges, EBE and
`associated entities continue to distribute the films.
`After the initial filing of this lawsuit, Lauter alleges, EBE
`shut down its office and disconnected all phone and e-mail
`
`1 As discussed further below, Plaintiff’s TAC asserts all
`causes of action against all Defendants, including Rosenblatt.
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`accounts. Sometime later, Defendant BHCIF, one of EBE’s lenders,
`foreclosed upon EBE’s assets to satisfy a debt of $37 million.
`Lauter alleges that EBE had assets sufficient to cover its debts,
`but that BHCIF, an alleged insider, nevertheless obtained EBE’s
`assets for only $15 million in canceled debt.
`Soon after, BHCIF transferred some of EBE’s former assets to
`another entity, Defendant Echo Bridge Acquisition Corporation
`(“EBAC”). Within three months, EBAC had obtained all of EBE’s
`former assets. Lauter alleges that BHCIF and EBAC were not good
`faith transferees of EBE’s assets, but rather are EBE’s successors.
`Lauter further alleges that EBAC now distributes some of Lauter’s
`films in violation of his exclusive distribution rights.
`Lauter’s Second Amended Complaint (“SAC”) asserted claims
`against EBE, EBAC, and BHCIF entities for (1) Breach of Contract,
`(2) Equitable Accounting, (3) Rescission of Contract, (4) Relief
`from Transfer under the Uniform Voidable Transaction Act (UVTA),
`(5) Interference with Prospective Economic Advantage, (6) Copyright
`Infringement, including contributory and vicarious infringement,
`(7) Unfair Competition in violation of California Business &
`Professions Code § 17200, and (8) unfair competition in violation
`of 15 U.S.C. §1125 (a) [Lanham Act § 43 (a)]. The SAC alleged the
`latter four claims against Defendant Rosenblatt in his individual
`capacity as well.
`On motions to dismiss brought by EBAC and Rosenblatt, this
`Court dismissed certain claims against EBAC and all claims against
`Rosenblatt. The court granted Plaintiff leave to amend, but
`limited that leave to the scope laid out in the order of dismissal.
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`Plaintiff then filed the operative Third Amended Complaint. The
`TAC alleges six causes of action for (1) Breach of Contract, (2)
`Equitable Accounting, (3) Rescission of Contract, (4) UVTA claims,
`(5) copyright infringement, including contributory and vicarious
`infringement, and (6) unfair competition in violation of California
`Business & Professions Code Section 17200. Unlike the SAC, all
`causes of action are alleged against all Defendants, including
`Rosenblatt. Rosenblatt now moves to dismiss all claims against
`him.
`Legal Standard
`II.
`A complaint will survive a motion to dismiss when it contains
`“sufficient factual matter, accepted as true, to state a claim to
`relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
`662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
`570 (2007)). When considering a Rule 12(b)(6) motion, a court must
`“accept as true all allegations of material fact and must construe
`those facts in the light most favorable to the plaintiff.” Resnick
`v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint
`need not include “detailed factual allegations,” it must offer
`“more than an unadorned, the-defendant-unlawfully-harmed-me
`accusation.” Iqbal, 556 U.S. at 678. Conclusory allegations or
`allegations that are no more than a statement of a legal conclusion
`“are not entitled to the assumption of truth.” Id. at 679. In
`other words, a pleading that merely offers “labels and
`conclusions,” a “formulaic recitation of the elements,” or “naked
`assertions” will not be sufficient to state a claim upon which
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`relief can be granted. Id. at 678 (citations and internal
`quotation marks omitted).
`“When there are well-pleaded factual allegations, a court
`should assume their veracity and then determine whether they
`plausibly give rise to an entitlement of relief.” Id. at 679.
`Plaintiffs must allege “plausible grounds to infer” that their
`claims rise “above the speculative level.” Twombly, 550 U.S. at
`555. “Determining whether a complaint states a plausible claim for
`relief” is a “context-specific task that requires the reviewing
`court to draw on its judicial experience and common sense.” Iqbal,
`556 U.S. at 679.
`III. Discussion
`A. New Causes of Action against Rosenblatt
`Rosenblatt argues that the first four causes of action against
`him should be dismissed because they were not alleged against him
`in the Second Amended Complaint. Thus, Rosenblatt contends, the
`Third Amended Complaint’s addition of these new causes of action
`against him exceeds the scope of this Court’s leave to amend the
`SAC. The court agrees.
`This Court’s prior Order explained, at length, the
`deficiencies in certain of Plaintiff’s allegations against EBAC and
`the infirmities in all of his claims against Rosenblatt. (Dkt.
`183.) The Order specifically observed in the first instance that
`only some of the SAC’s causes of action were alleged against
`Rosenblatt individually. (Dkt. 183 at 18.) Although the court
`granted Plaintiff leave to amend his complaint a third time, the
`court limited that leave “to the scope described in this Order,”
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`and specified that such limitation was applicable to amended claims
`against Rosenblatt as well. (Dkt. 183 at 22 n. 11.)
`Plaintiff suggests that the TAC does not allege any new claims
`against Rosenblatt because the SAC alleged that EBE is Rosenblatt’s
`alter ego, and therefore any claims alleged against the corporation
`in the SAC were also alleged against Rosenblatt individually.
`(Opposition at 11.) That argument, however, is inconsistent with
`the SAC itself. The first four causes of action in the SAC, in
`contrast with the latter four, specifically name only the corporate
`Defendants, while the latter four causes of action are alleged
`against “All Defendants,” including Rosenblatt. This differential
`treatment is difficult to reconcile with Lauter’s argument that the
`alter ego allegations were themselves sufficient, or intended, to
`name Rosenblatt in all of the SAC’s causes of action. Furthermore,
`apart from incorporated references to background facts, the SAC’s
`allegations regarding the first four causes of action make no
`mention of Rosenblatt, any conduct by Rosenblatt, or any alter ego
`theory. The latter four causes of action, in contrast, all
`specifically mention Rosenblatt, his actions, and Plaintiff’s alter
`ego theory.
`The Second Amended Complaint did not include causes of action
`against Rosenblatt for breach of contract, accounting, rescission,
`or voidable transactions. Thus, when the court dismissed all
`claims against Rosenblatt, with leave to amend those claims, the
`scope of the court’s grant of leave to amend did not extend so far
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`as to permit the filing of new claims against Rosenblatt.2
`Accordingly, Rosenblatt’s motion to dismiss claims one through four
`against him is granted.
`B. Copyright Infringement Claims
`Plaintiff alleges his fifth cause of action, “Copyright
`Infringement, Contributory Copyright Infringement & Vicarious
`Copyright Infringement” against all Defendants, including
`Rosenblatt. Plaintiff alleges that Rosenblatt is personally
`liable, is liable as an alter ego of EBE, and is liable pursuant to
`California Corporations Code Section 17707.07. The court addresses
`each theory of liability in turn.
`1.
`Section 17707.07
`California Corporations Code Section 17707.07(a)(3) provides
`that a cause of action against a dissolved limited liability
`company may be enforced against members of the dissolved company to
`the extent that company assets were distributed to the members upon
`dissolution. Cal. Corp. Code § 17707.07(B); CB Richard Ellis, Inc.
`v. Terra Nostra Consultants, 230 Cal. App. 4th 405, 412 (2014).
`The TAC alleges that EBE “de facto” dissolved on June 16, 2015, and
`that “contemporaneous” with that dissolution, Rosenblatt received a
`distribution of funds from EBE entities. (TAC ¶¶ 106, 109.)
`Rosenblatt argues that the allegation that he received a
`distribution of funds is not plausible, and that this Court should
`view it with “heightened scrutiny” because Lauter did not allege
`
`2 The court notes that Lauter’s opposition to Rosenblatt’s
`motion to dismiss the SAC did not request leave to add any new
`claims against Rosenblatt. (Dkt. 128.)
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`this fact in prior iterations of the TAC. (Reply at 5.) This
`argument is not persuasive. First, the fact that Lauter may only
`recently have discovered this potential basis for Rosenblatt’s
`liability has no bearing on the plausibility of Lauter’s factual
`allegations. Second, Lauter’s allegation that Rosenblatt received
`a distribution is not merely a formulaic recitation of a legal
`element, but is supported by further factual allegations that
`Rosenblatt was EBE’s sole member. (FAC ¶ 106.) As such,
`Rosenblatt might plausibly have received a distribution of EBE
`assets upon EBE’s de facto dissolution.
`Rosenblatt also asserts that this court should not accept as
`true Lauter’s allegation that at all relevant times, Rosenblatt was
`a member of EBE. (Reply at 5.) Rosenblatt bases this argument on
`the fact that his own sworn declaration states that he resigned
`from EBE effective June 1, 2015. (Mot. at 2; Dkt. 133-5.)
`Although Rosenblatt implicitly acknowledges that a dispute of fact
`would generally be irrelevant at the pleading stage, Rosenblatt
`suggests that Lauter’s allegation about Rosenblatt’s membership in
`EBE should nevertheless be rejected because the TAC itself refers
`to and incorporates Rosenblatt’s sworn declaration.
`This argument also fails. First, it is not clear from the
`face of the TAC that Rosenblatt had resigned as a member of EBAC by
`the time of its alleged dissolution. Even accepting Rosenblatt’s
`declaration at face value, it states only that a Separation
`Agreement with EBE “denoted [Rosenblatt’s] effective resignation
`date from EBE as June 1, 2015.” (Dkt. 133-5 ¶ 3.) The scope of
`that resignation, however, remains to be seen. Indeed, the TAC
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`alleges that Rosenblatt only resigned as President and CEO, not as
`a member. (TAC ¶ 106.) Second, no fair reading of the TAC could
`suggest that Lauter alleges that the facts contained within
`Rosenblatt’s declaration are true. The TAC alleges, in the context
`of alleging that Rosenblatt and EBE are alter egos, that Rosenblatt
`concealed and misrepresented “the identity of the responsible
`ownership, management and financial interest, or concealment of
`personal business activities. Rosenblatt refuses to reveal the
`manner of his alleged separation from EBE entities [Rosenblatt
`Declaration, Document 133-5] . . . .” TAC ¶ 114-5 (internal
`citation original). Thus, although Rosenblatt is correct that the
`TAC refers to his declaration, it is clear in context that
`Plaintiff disputes, rather than concedes, the veracity of
`Rosenblatt’s sworn statement. Whether Rosenblatt remained a member
`of EBE at the time of its dissolution, and is therefore potentially
`liable under Section 17707.07, is a question of fact that remains
`to be answered.3
`2.
`Individual Liability
`As this Court explained when dismissing the claims against
`Rosenblatt in the SAC, although corporate officers generally are
`not personally liable for corporate acts, individuals “may become
`
`3 Rosenblatt also argues that he cannot be liable under
`Section 17707.07 because the statute only allows for the recovery
`of distributed assets. (Mot. at 11-12.) Lauter, for his part,
`does not dispute that his recovery would be limited to LLC assets.
`(Opposition at 13.) See CB Richard Ellis, Inc., 230 Cal. App. 4th
`at 414-15. Any limitations on the amount of Lauter’s potential
`recovery, however, do not appear pertinent to whether Rosenblatt
`may be individually liable in the amount of the distributed company
`assets.
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`liable if they directly authorize or actively participate in
`wrongful or tortious conduct.” Taylor-Rush v. Multitech Corp., 217
`Cal. App. 3d 103, 113 (1990). This Court further explained that
`allegations that Rosenblatt “was aware of” tortious conduct and
`“had the right and ability to supervise” employees were not
`sufficient to allege Rosenblatt’s active participation in
`infringing conduct. Unlike the SAC, however, the TAC now alleges
`that Rosenblatt not only “had the right and ability” to supervise
`specifically-named EBE employees who issued false royalty
`statements, withheld royalties, and unlawfully distributed Lauter’s
`films, but also that Rosenblatt “intentionally induced and
`encouraged direct infringement” and indeed “instructed” employees
`to commit wrongful acts. (TAC ¶¶ 233-34.)
`Rosenblatt argues that this theory of liability is
`unsustainable because Plaintiff’s new allegation that Rosenblatt
`“instructed” employees to infringe is inconsistent with Lauter’s
`prior allegation in the SAC that Rosenblatt merely “had the right
`and ability” to supervise employees. As an initial matter, it is
`not clear whether an amended pleading’s inconsistency with a prior
`allegation is necessarily fatal to the former. See Royal Primo
`Corp. v. Whitewater W. Indus., Ltd, No. 15-CV-04391-JCS, 2016 WL
`1718196 at *3 (N.D. Cal. Apr. 29, 2016). Here, however, there is
`no inconsistency between the allegations of the SAC and the TAC.
`First, far from contradicting the SAC, the TAC makes an identical
`allegation that Rosenblatt had that ability and right to supervise
`EBE employees. The TAC’s new allegation, that Rosenblatt directly
`instructed employees to commit wrongful acts, does not conflict
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`with that allegation. Indeed, absent the opportunity and authority
`to direct employee activities, Rosenblatt could not possibly have
`effectively instructed EBE employees to do anything. Contrary to
`Rosenblatt’s assertion, the allegations that Rosenblatt both had
`the power to supervise employees and exercised that power is in no
`way “paradoxical.” (Reply at 13:13.)
`3.
`Alter Ego
`The TAC, like the SAC, alleges that Rosenblatt is an alter ego
`of EBE. (TAC ¶¶ 114, 247). As this Court explained when dismissing
`Lauter’s prior claims against Rosenblatt, “[t]he alter ego doctrine
`arises when a plaintiff comes into court claiming that an opposing
`party is using the corporate form unjustly and in derogation of the
`plaintiff’s interests. In certain circumstances the court will
`disregard the corporate entity and will hold the individual
`shareholders liable for the actions of the corporation.” Nielson
`v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1115 (C.D. Cal.
`2003). The purpose of the alter ego doctrine is to avoid injustice
`when there is an abuse of the corporate privilege. Id.
`Only “exceptional circumstances” allow a court to disregard
`the corporate form and find liability as to individuals. Leek v.
`Cooper, 194 Cal. App. 4th 399, 411 (2011). A wide variety of
`factors may be pertinent to the alter ego inquiry, depending on the
`circumstances of the particular case. Assoc. Vendors, Inc. v.
`Oakland Meat Co., 210 Cal. App. 2d 825, 838 (1962). These factors
`include, but are not limited to, commingling of funds, unauthorized
`diversion of corporate funds to other uses, failure to maintain
`adequate corporate records, sole or family ownership of all of the
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`stock in a corporation, failure to adequately capitalize a
`corporation, use of a corporation as a conduit for the business of
`an individual, disregard of legal formalities, and diversion of
`assets from a corporation to a stockholder to the detriment of
`creditors. Schwarzkopf, 626 F.3d at 1038; Zoran Corp. v. Chen, 185
`Cal. App. 4th 799, 811-12 (2010); Assoc. Vendors, 210 Cal. App. 2d
`at 838-39; but see Leek, 194 Cal. App. 4th at 415 (“An allegation
`that a person owns all of the corporate stock and makes all of the
`management decisions is insufficient to cause the court to
`disregard the corporate entity.”). A plaintiff must allege facts
`demonstrating both a unity of interest between the corporation and
`its owner and that it would be unjust to treat the wrongful acts as
`those of the corporation alone. Gerritsen v. Warner Bros. Entm't
`Inc., 112 F. Supp. 3d 1011, 1042 (C.D. Cal. 2015).
`Rosenblatt focuses primarily on the first of these factors,
`arguing that Lauter has again failed to adequately allege a unity
`of interest between the EBE entities and Rosenblatt himself.4
`Lauter first alleges that EBE failed to maintain adequate corporate
`records because certain annual reports filed in Massachusetts
`contained false information. (TAC ¶ 114-1.) Although Rosenblatt
`does not dispute that the reports are “corporate records” of a
`sort, publicly filed reports are not the types of records pertinent
`to an alter ego analysis. Rather, the analysis looks to whether a
`corporation maintained internal documents and records, such as
`
`4 Lauter’s Opposition is not particularly responsive to
`Rosenblatt’s arguments, and largely sets forth disputes of fact
`rather than address the adequacy of the TAC’s allegations. (Opp.
`at 13-16.)
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`corporate minutes, typical of a functional and independent
`corporation. See, e.g., Mid-Century Ins. Co. v. Gardner, 9 Cal.
`App. 4th 1205, 1213, 11 Cal. Rptr. 2d 918, 922 (1992).
`Plaintiff similarly alleges that EBE disregarded legal
`formalities by filing improper paperwork with state entities and
`failing to comply with state statutes regarding payment of
`corporate debts. (TAC ¶ 114-6.) The “formalities” relevant to an
`alter ego analysis, however, typically refer to internal corporate
`processes, such holding board meetings, maintaining corporate
`records, and issuing stock and dividends. See, e.g.,
`Boeing Co. v. KB Yuzhnoye, No. CV1300730ABAJWX, 2016 WL 2851297, at
`*27 (C.D. Cal. May 13, 2016); Willig v. Exiqon, Inc., No. SA CV
`11-399 DOC RNB, 2012 WL 10375, at *10 (C.D. Cal. Jan. 3, 2012);
`Lounge 22, LLC v. Am. Furniture Rentals, Inc., No.
`CV0903330SJOVBKX, 2009 WL 10675495, at *3 (C.D. Cal. July 2, 2009).
`Lauter also points to the fact that, in the early stages of
`this litigation, Rosenblatt and EBE were both represented by the
`same attorney. (TAC ¶ 114-2.) Given Rosenblatt’s former role as
`EBE’s sole corporate officer, that fact is not illustrative of an
`alter ego relationship, particularly in light of Rosenblatt’s
`subsequent retention of independent counsel.
`Plaintiff does, however, allege some facts that give rise to
`an inference of alter ego liability. Foremost, Lauter alleges, as
`he did in the SAC, that EBE was undercapitalized. (TAC ¶¶ 114-3,
`114-4.) This is a potentially “critical fact,” if accompanied by
`other indicators of an alter ego relationship. See Katzir's Floor
`& Home Design, Inc. v. M-MLS.com, 394 F.3d 1143, 1149 (9th Cir.
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`Case 2:15-cv-08481-DDP-KS Document 238 Filed 08/10/18 Page 14 of 16 Page ID #:3137
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`2004); Mid-Century Ins., 9 Cal. App. 4th at 1213. The TAC does
`include such supporting allegations. Lauter alleges, for example,
`that Rosenblatt was EBE’s sole member and manager, and that any
`resignation that took effect prior to EBE’s dissolution pertained
`only to Rosenblatt’s corporate duties, not his membership. (TAC ¶
`106.) Furthermore, unlike the SAC, the TAC alleges that Rosenblatt
`used EBE as a vehicle for copyright infringement. (TAC ¶ 114-9.)
`Although the SAC did not allege that Rosenblatt engaged in any non-
`corporate acts, the TAC, as discussed above, does allege that
`Rosenblatt personally directed EBE employees to engage in
`infringing activities. (TAC ¶¶ 233-34.) The TAC further alleges
`that when Lauter sued, EBE transferred its assets to other entities
`and closed up shop, and that Rosenblatt’s counsel “boasted to
`Lauter that ‘any judgment [he] would get against the EBE entities
`would get in line with all other unsecured creditors.’” (TAC ¶¶
`114-8, 114-9.)
`Thus, although some of the TAC’s allegations are not
`reflective of an alter ego relationship between EBE and Rosenblatt,
`on balance, Plaintiff has plausibly alleged the existence of such a
`relationship and the inequitable result that would flow from
`treating EBE’s acts as the corporation’s alone.
`C.
`Copyright Act Preemption
`Lastly, Rosenblatt argues that Lauter’s Sixth Cause of Action
`for unfair competition under California Business & Professions Code
`Section 17200 is preempted by the Copyright Act. The Copyright Act
`preempts rights under common law or state statutes that “are
`equivalent to any of the exclusive rights within the general scope
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`Case 2:15-cv-08481-DDP-KS Document 238 Filed 08/10/18 Page 15 of 16 Page ID #:3138
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`of copyright . . . .” 17 U.S.C. § 301(a). In conducting a
`preemption analysis, the reviewing court must first determine
`whether the subject matter of the arguably preempted claim falls
`within the subject matter of copyright and, if so, determine
`whether the rights asserted are equivalent to the copyright rights
`set forth in 17 U.S.C. § 106. Lions Gate Entm't Inc. v. TD
`Ameritrade Servs. Co., Inc., 170 F. Supp. 3d 1249, 1264 (C.D. Cal.
`2016).
`Here, Plaintiff’s unfair competition claim against Rosenblatt
`centers on Rosenblatt’s alleged unauthorized distribution of
`Lauter’s films and fabrication of royalty statements related
`thereto. (TAC ¶¶ 259-60.) The subject matter of these allegations
`falls within the subject matter of copyright and seeks to vindicate
`the same rights. Although Lauter’s opposition argues that his
`claims involve an “extra element” unrelated to copyright, those
`“extra elements” pertain to breach of contract, voidable transfer,
`and other causes of action against Rosenblatt that, for the reasons
`discussed above, must be dismissed. Because Lauter’s unfair
`business practices claim under California Business & Professions
`Code Section 17200 is predicated upon other unlawful activity, and
`his only remaining claim against Rosenblatt is the copyright claim,
`the two claims are duplicative, and the former is preempted by the
`Copyright Act.
`IV. Conclusion
`For the reasons stated above, Rosenblatt's Motion to Dismiss
`is GRANTED in part and DENIED in part. Rosenblatt's motion is
`granted with respect to Plaintiff's first four causes of action for
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`Case 2:15-cv-08481-DDP-KS Document 238 Filed 08/10/18 Page 16 of 16 Page ID #:3139
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`(1) Breach of Contract, (2) Equitable Accounting, (3) Rescission
`of Contract, and (4) Relief from Transfer under the Uniform
`Voidable Transaction Act. Those claims against Rosenblatt are
`DISMISSED. Rosenblatt's motion is also granted with respect to
`Plaintiff's Sixth Cause of Action. PLaintiff's Sixth Cause of
`Action against Rosenblatt for unfair competition is DISMISSED.
`Rosenblatt's motion is DENIED with respect to Plaintiff's Fifth
`Cause of Action.
`No further amendment of the Third Amended Complaint shall be
`permitted, absent leave of the court.
`
`IT IS SO ORDERED.
`
`Dated:August 10, 2018
`
`DEAN D. PREGERSON
`United States District Judge
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