Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 1 of 25 Page ID #:493
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`(cid:10)(cid:50)(cid:10)
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CV 22-00459-RSWL-JDE
`(cid:91)
` ORDER re: MOTION TO
`DISMISS [41]
`
`NKLOSURES, INC.,
`Plaintiff,
`
`v.
`AVALON LODGING LLC, et
`al.,
`
`Defendants.
`
`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
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`(cid:10)(cid:50)(cid:10)
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CV 22-00459-RSWL-JDE
`(cid:91)
` ORDER re: MOTION TO
`DISMISS [41]
`
`NKLOSURES, INC.,
`Plaintiff,
`
`v.
`AVALON LODGING LLC, et
`al.,
`
`Defendants.
`
`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
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 2 of 25 Page ID #:494
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`A.
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`Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the
`Court GRANTS in part and DENIES in part Defendants’
`Motion.
`
`BACKGROUND
`
`I.
`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
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 3 of 25 Page ID #:495
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`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.
`3
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 4 of 25 Page ID #:496
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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
`
`Legal Standard
`A.
`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
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 5 of 25 Page ID #:497
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`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
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 6 of 25 Page ID #:498
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`remote and unlikely.’” Id. at 556 (quoting Scheuer v.
`Rhodes, 416 U.S. 232, 236 (1974)).
`B.
`Analysis
`1.
`Judicial Notice
`Before turning to the merits of Defendants’ Motion,
`the Court should first address Defendants’ request for
`judicial notice. A court may take judicial notice of an
`adjudicative fact that 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). Matters of public record may be
`judicially noticed, but disputed facts contained therein
`may not. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d
`988, 999 (9th Cir. 2018). “[A]ccuracy is only part of
`the inquiry under Rule 201(b).” Id. “A court must also
`consider—and identify—which fact or facts it is noticing
`from” the documents. Id.
`
`Here, Defendants filed a request seeking judicial
`notice of the following twelve documents1: (A) the
`May 25, 2014 Agreement (the “Agreement”) between
`Plaintiff and Mr. Patel; (B) Plaintiff’s initial state-
`court complaint in Case No. 20BBCV00441 (the “State
`Case”); (C) The Los Angeles Superior Court (“LASC”)
`
`1 The documents are attached to the Request for Judicial
`Notice as exhibits and are referred to here by their exhibit
`letter.
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 7 of 25 Page ID #:499
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`September 3, 2021 Order in the State Case;
`(D) Plaintiff’s first-amended complaint in the State
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`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,
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`take judicial notice of these documents for the truth of
`the matters asserted therein. See Lee v. City of Los
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`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,
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 9 of 25 Page ID #:501
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`and Plaintiff references the Presentation in its FAC.
`See FAC ¶ 20. Absent direct evidence of copying, a
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`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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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 11 of 25 Page ID #:503
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`not need to plead “on the subject of affirmative
`defenses.” Rivera v. Peri & Sons Farms, Inc., 735 F.3d
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`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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`and (2) Plaintiff told Defendants that it was the “sole
`owner, author, and copyright holder” of the Drawings and
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`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.”).
`///
`///
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`b.
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`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
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`This implied promise to pay suffices as an “extra
`element” for preemption purposes. Grosso, 383 F.3d
`
`at 968.
`Plaintiff alleged that Defendants knew it disclosed
`the Drawings on the condition that Defendants could not
`use them unless Defendants paid for them and hired
`Plaintiff as the architect for construction. FAC ¶ 15.
`Taken as true, this understanding constitutes an extra
`element enabling the breach of contract claim to avoid
`preemption under the Copyright Act. See Landsberg,
`802 F.2d at 1196-97; see also Grosso, 383 F.3d at 968
`(finding a plaintiff’s disclosure of his playscript to
`defendants evidenced a bilateral expectation of
`compensation which constituted an extra element for
`preemption purposes).
`b. Plaintiff Pled Sufficient Facts to
`Establish a Prima Facie Breach of Contract
`Claim
`Under California law, a plaintiff must plead the
`same elements for a breach of an implied-in-fact
`contract claim as for the breach of an express contract.
`Marshall & Swift/Boeckh, LLC v. URS Corp., No.
`CV0804375GAFSSX, 2009 WL 10668449, at *21 (C.D. Cal.
`Aug. 26, 2009). Therefore, Plaintiff must plead
`(1) that a valid contract existed; (2) Plaintiff’s
`performance, or excused nonperformance, of the contract;
`(3) Defendants’ breach; and (4) resulting damages. To
`state a Desny claim for breach of an implied-in-fact
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 20 of 25 Page ID #:512
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 21 of 25 Page ID #:513
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`use upon execution of a contract, the Court should find
`that the FAC sufficiently alleged that Defendant Morari
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`understood the condition on which Plaintiff tendered the
`Drawings. See id. ¶¶ 17-18; JBF, 2020 WL 6203555, at *6
`(holding that a defendant’s interest in “purchasing”
`disclosed technology sufficiently implied that he knew
`he had to pay for it).
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`In sum, Plaintiff sufficiently alleged it formed an
`implied-in-fact contract, it performed by delivering the
`Drawings in the proposal, and Defendants breached the
`implied-in-fact contract by using the Drawings without
`compensating Plaintiff for their use. See FAC ¶¶ 17-19,
`21, 23. Plaintiff also alleged Defendants’ breach
`caused Plaintiff harm and damages in an amount to be
`proved at trial. FAC ¶¶ 41-42. Therefore, Plaintiff
`has sufficiently pled a prima facie breach of contract
`case to survive a motion to dismiss.
`c. Plaintiff’s Breach of Implied-in-Fact
`Contract Claim Is Plausible on Its Face
`In the Motion, Defendants asserted that Plaintiff’s
`own statements prove that Plaintiff never provided the
`Drawings to Defendant Avalon at all. Id. at 22:28-23:1.
`Defendants relied on two purported excerpts from
`Plaintiff’s discovery responses in the previous state
`action to undermine the FAC.4 Id. 21:4-26. However,
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`4 Defendants’ first contention – that in its response to
`Special Interrogatory No. 49, Plaintiff said it failed to take
`steps to protect the Drawings because it “was unaware that
`Defendants had possession of the [D]rawings” - appears in Exhibit
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`because the discovery responses in Exhibits J and K are
`not properly subject to judicial notice, the Court
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`should not determine whether the statements therein
`render Plaintiff’s breach of contract claim implausible.
`See Swartz, 476 F.3d at 763 (“In ruling on a 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.”); Safeguard, 145 F. Supp. 3d at 942 (“Discovery
`items . . . are not proper subjects for judicial notice
`because they are not ‘self-authenticating’ and thus
`cannot be verified.”). Presuming all the factual
`allegations in the FAC to be true – including that
`Plaintiff e-mailed the Drawings to Defendant Morari –
`Plaintiff has pled a breach of implied-in-fact contract
`claim that is plausible on its face. Consequently, the
`Court DENIES Defendants’ motion to dismiss Plaintiff’s
`implied-in-fact contract claim.
`4. The Court Dismisses Plaintiff’s Unfair
`Competition Law Claim Without Leave to Amend
`In its Opposition, Plaintiff requested that the
`Court dismiss its unfair competition law (“UCL”) claim,
`“subject to the unlikely scenario of [P]laintiff seeking
`leave from the Court to reassert [the] claim.” Opp’n
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 22 of 25 Page ID #:514
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`J. Id. at 21:12-13. However, Defendants’ second example – that
`in response to form interrogatory 17.1, Plaintiff claimed it “did
`not know and could not have known that Defendants had obtained
`[the Drawings]” – did not appear in the documents attached to the
`Motion. See RJN, Ex J & K.
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 23 of 25 Page ID #:515
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 24 of 25 Page ID #:516
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`“The district court’s discretion to deny leave to
`amend is particularly broad where plaintiff has
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`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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`///
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`Case 8:22-cv-00459-RSWL-JDE Document 51 Filed 11/17/22 Page 25 of 25 Page ID #:517
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`CONCLUSION
`III.
`Based on the foregoing, the Court DENIES
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`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/ RONALD S.W. LEW
` HONORABLE RONALD S.W. LEW
` Senior U.S. District Judge
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