1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 1 of 16
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`EASTERN DISTRICT OF CALIFORNIA
`
`TREVOR L. SMITH,
`
`No. 2:20-cv-02441-TLN-JDP
`
`Plaintiff,
`
`v.
`
`
`
`ORDER
`
`PAUL COUNTS; SCOTT BENNETT;
`ERIC HOLMLUND; JASON BOYCE;
`COUNT ON US LLC; and SMILING
`LLAMA PRODUCTIONS LLC,
`
`Defendants.
`
`
`
`This matter is before the Court on Plaintiff Trevor L. Smith’s (“Plaintiff”) Motion to
`
`Proceed in Forma Pauperis and Ex Parte Motion for a Temporary Restraining Order (“TRO”)
`
`against Defendants Paul Counts (“Counts”), Scott Bennett (“Bennett”), Eric Holmlund
`
`(“Holmlund”), Jason Boyce (“Boyce”), Count on Us LLC, and Smiling Llama Productions LLC
`
`(collectively, “Defendants”). (ECF Nos. 2–3.) For the reasons set forth below, both of Plaintiff’s
`
`motions are GRANTED.
`
`///
`
`///
`
`///
`
`///
`
`
`
`
`
`
`
`
`1
`
`
`
`
`
`

`

`
`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 2 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`I.
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`Plaintiff seeks damages and injunctive relief for alleged copyright infringement arising
`
`from “the development, production, and post-production of a motion picture called
`
`Unbelievers . . . which was written, produced, and directed by Plaintiff and filmed in and around
`
`Sacramento, California.” (ECF No. 1 at ¶ 12.) Plaintiff wrote the novel Unbelievers (“Novel”) in
`
`2012, which was published in 2013 and copyrighted under the number TXu001849048. (Id. at ¶
`
`21.) Plaintiff subsequently wrote the screenplay for Unbelievers (“Screenplay”) based on the
`
`Novel and copyrighted it under the number Pau003975095. (Id. at ¶ 22.) Plaintiff has been the
`
`executive producer and producer for the Unbelievers motion picture (“Film”) since its inception,
`
`10
`
`and Plaintiff’s wife Kristi Smith (“Kristi”) became the second producer in 2013. (Id. at ¶¶ 23–
`
`11
`
`24.) In May 2014, Plaintiff met Counts’s wife, Kristen Counts (“Kristen”), and the following
`
`12
`
`month Kristen suggested that Plaintiff contact Counts for assistance with the Film. (Id. at ¶¶ 25–
`
`13
`
`26.) Plaintiff then invited Kristen to be a producer and Counts to be an executive producer and
`
`14
`
`producer. (Id. at ¶ 27.) Plaintiff is the sole copyright claimant for the pre-registration1 of the
`
`15
`
`Film, under the number PRE000010799. (Id. at ¶ 12.)
`
`16
`
`Plaintiff met Counts for the first time in or around December 2014, when Counts and
`
`17
`
`Kristen flew to Sacramento to work with Plaintiff on a teaser for the Film. (Id. at ¶ 28.) In
`
`18
`
`September 2015, Plaintiff authorized Counts “to start Unbelievers Movie, LLC (‘UM
`
`19
`
`LLC’) . . . fully understanding and agreeing that UM LLC was to be a temporary company in
`
`20
`
`Washington [State] and Plaintiff would start the official [Unbelievers] movie company in
`
`21
`
`California.” (Id. at ¶ 29.) Thereafter, Plaintiff alleges UM LLC was registered in Washington
`
`22
`
`State as a temporary company in order to satisfy the Screen Actors’ Guild (“SAG”) requirements
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`and for banking purposes only.2 (Id. at ¶¶ 20, 29, 31.) Plaintiff further alleges UM LLC was
`
`collectively owned and managed by Plaintiff, Kristi, Kristen, and Counts. (Id. at ¶ 30.) Plaintiff
`
`1
`The U.S. Copyright Office allows for preregistration of “works that have had a history of
`prerelease infringement. It focuses on the infringement of movies, recorded music, and other
`copyrighted materials before copyright owners have had the opportunity to market fully their
`products.” See Preregister Your Work, U.S. COPYRIGHT OFFICE, available at
`https://www.copyright.gov/prereg/ (last visited Dec. 13, 2020).
`2
`UM LLC is not a party to this suit.
`
`
`
`
`
`
`2
`
`
`
`
`
`

`

`
`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 3 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`authorized Counts to draft the UM LLC Operating Agreement, which all managers signed. (Id. at
`
`¶ 32.) Plaintiff also authorized Counts to submit the SAG paperwork, which Counts signed in or
`
`around October 2015 and swore under penalty of perjury that Plaintiff, Kristi, Kristen, and Counts
`
`were all managers of UM LLC. (Id. at ¶¶ 32–34.) The UM LLC Operating Agreement
`
`“evidences that no money, goods, services, property, intellectual property, or anything of value
`
`was contributed to or promised to UM LLC by Plaintiff or any of its members.” (Id. at ¶ 35.)
`
`Plaintiff authorized Counts to open an agreed-upon bank account for UM LLC in Washington
`
`State in accordance with the UM LLC Operating Agreement. (Id. at ¶ 36.) Plaintiff further
`
`alleges Counts “was fully aware and in agreement that the UM LLC bank account would be a
`
`10
`
`temporary account” until Plaintiff opened the official bank account in California. (Id.)
`
`11
`
`Plaintiff alleges Counts and Bennett3 filed a civil suit in or around January or February
`
`12
`
`2017 “that contained blatant and knowingly false claims against Plaintiff.” (Id. at ¶ 37.) Counts
`
`13
`
`and Bennett posted the civil suit online and “emailed the unverified complaint to [the
`
`14
`
`Unbelievers] cast and crew, causing swift and immediate severe and irreparable harm to
`
`15
`
`Plaintiff’s reputation, business, creative projects, physical and mental well-being and the well-
`
`16
`
`being of Plaintiff’s family.” (Id. at ¶ 38.) During the litigation of this civil suit, Plaintiff alleges
`
`17
`
`Defendants were “unlawfully editing” the Film and attempting to sell it, despite Plaintiff’s cease
`
`18
`
`and desist demands and assurance from Counts and Bennett’s attorney that neither of them would
`
`19
`
`violate Plaintiff’s legal rights to the Film. (Id. at ¶ 39.)
`
`20
`
`Plaintiff alleges Counts and Bennett voluntarily dismissed the suit in or around June 2019,
`
`21
`
`the day after Plaintiff informed Counts and Bennett’s attorney that he “intended to file a counter
`
`22
`
`lawsuit” against them. (Id. at ¶ 40.) On or around October 11, 2019, Plaintiff filed suit against
`
`23
`
`Counts, Bennett, and others with the Eastern District of California. (Id. at ¶ 41.) However,
`
`24
`
`Plaintiff subsequently dismissed this suit on or around July 27, 2020, based on his “shared
`
`25
`
`religious beliefs” with Counts and Bennett, believing they could resolve the matter out of court.
`
`26
`
`27
`
`28
`
`
`3
`Plaintiff does not introduce Bennett prior to this reference in his Complaint’s statement of
`facts, nor does Plaintiff provide further information as to who Bennett is or how Bennett is related
`to Plaintiff or Counts.
`
`
`
`
`
`
`3
`
`
`
`
`
`

`

`
`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 4 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`(Id. at ¶ 42.)
`
`Plaintiff alleges Defendants have “continued to edit, display and try to sell [Unbelievers],”
`
`“[w]ithout legal right, Plaintiff’s consent, and against Plaintiff’s repeated demands to Defendants
`
`to cease and desist.” (Id. at ¶ 43.) On or around November 4, 2020, a Film cast member
`
`informed Plaintiff of a December 2020 release date for the Film listed on the Internet Movie
`
`Database (“IMDB”). (Id. at ¶ 44.) On or around November 6, 2020, Plaintiff called and left
`
`voicemails for Counts and Bennett, in addition to sending them emails. (Id. at ¶ 45.) Plaintiff
`
`asked to discuss “how [they] could possibly move forward together, and advised them again that
`
`Defendants have no legal rights to work on or distribute [the Film].” (Id.) Plaintiff also notified
`
`10
`
`them legal action would be taken if they attempted to release the Film, but he received no
`
`11
`
`response. (Id.) On or around the same day, Counts, Bennett, Holmlund, Lago, and Kristen were
`
`12
`
`listed as producers on IMDB. (Id. at ¶ 46.)
`
`13
`
`Plaintiff called Counts and Bennett and sent emails to them again on or around December
`
`14
`
`4, 2020, to ask about the December 16, 2020 release date for the Film. (Id. at ¶ 47.) Plaintiff
`
`15
`
`notified Defendants that if he did not receive a response from them before Monday, December 7,
`
`16
`
`2020, then “Plaintiff would be forced to file a lawsuit against them.” (Id.) Neither Counts,
`
`17
`
`Bennett, nor Holmlund responded to Plaintiff. (Id.)
`
`18
`
`Plaintiff alleges “Defendants have unlawfully altered and used Plaintiff’s [Novel] and
`
`19
`
`[Screenplay], and backup copies of Plaintiff’s [Unbelievers] raw film footage to illegally create,
`
`20
`
`display, and market [the Film], set to be distributed and publicly released on December 16, 2020.”
`
`21
`
`(Id. at ¶ 48.) Plaintiff further alleges “Defendants intended to commit fraud against Plaintiff to
`
`22
`
`profit from the [Film] they had and have no legal right to edit, sell or distribute.” (Id. at ¶ 49.)
`
`23
`
`On December 9, 2020, Plaintiff filed a Complaint in this Court, alleging six claims for: (1)
`
`24
`
`copyright infringement; (2) contributory copyright infringement; (3) fraud; (4) breach of fiduciary
`
`25
`
`duty; (5) injunctive relief to restrain Defendants from sharing, displaying, and distributing the
`
`26
`
`Film; and (6) accounting of Defendants’ financial records pertaining to the Film. (See ECF No.
`
`27
`
`1.) On the same date, Plaintiff filed the instant Motions to Proceed in Forma Pauperis and for a
`
`28
`
`TRO. (ECF Nos. 2–3.)
`
`
`
`
`
`
`4
`
`
`
`
`
`

`

`
`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 5 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`II.
`
`STANDARD OF LAW
`
`A TRO is an extraordinary remedy. The purpose of a TRO is to preserve the status quo
`
`pending a fuller hearing. See Fed. R. Civ. P. 65. In general, “[t]emporary restraining orders are
`
`governed by the same standard applicable to preliminary injunctions.” Aiello v. One West Bank,
`
`No. 2:10-cv-0227-GEB-EFB, 2010 WL 406092, at *1 (E.D. Cal. Jan. 29, 2010) (internal citations
`
`omitted); see also E.D. Cal. L.R. 231(a).
`
`Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear
`
`showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555
`
`U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The
`
`10
`
`purpose of a preliminary injunction is merely to preserve the relative positions of the parties until
`
`11
`
`a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also
`
`12
`
`Costa Mesa City Emps. Ass’n v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012) (“The
`
`13
`
`purpose of such an order is to preserve the status quo until a final determination following a
`
`14
`
`trial.”); GoTo.com, Inc. v. Walt Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo
`
`15
`
`ante litem refers not simply to any situation before the filing of a lawsuit, but instead to the last
`
`16
`
`uncontested status which preceded the pending controversy.”).
`
`17
`
`“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed
`
`18
`
`on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,
`
`19
`
`[3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
`
`20
`
`Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test
`
`21
`
`to obtain a preliminary injunction. All. for the Wild Rockies v. Cottrell (Alliance), 632 F.3d 1127,
`
`22
`
`1135 (9th Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court
`
`23
`
`may weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A
`
`24
`
`stronger showing on the balance of the hardships may support issuing a preliminary injunction
`
`25
`
`even where the plaintiff shows that there are “serious questions on the merits . . . so long as the
`
`26
`
`plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the
`
`27
`
`public interest.” Id. Simply put, a plaintiff must demonstrate, “that [if] serious questions going to
`
`28
`
`the merits were raised [then] the balance of hardships [must] tip[ ] sharply” in the plaintiff’s favor
`
`
`
`
`
`
`5
`
`
`
`
`
`

`

`
`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 6 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`in order to succeed in a request for preliminary injunction. Id. at 1134–35.
`
`III. ANALYSIS
`
`The Court first evaluates Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) and
`
`will then consider each of the Winter elements with respect to Plaintiff’s motion for a TRO (ECF
`
`No. 3).
`
`A. Plaintiff’s Motion to Proceed in Forma Pauperis
`
`Plaintiff has filed a separate motion to proceed in forma pauperis. (ECF No. 2.) The
`
`Court has carefully reviewed the documentation provided by Plaintiff and finds that Plaintiff’s
`
`application makes the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff’s
`
`10
`
`Motion to Proceed in Forma Pauperis is hereby GRANTED.
`
`11
`
`12
`
`B. Likelihood of Success on the Merits
`
`Plaintiff argues in his motion for a TRO that he “can demonstrate a strong likelihood of
`
`13
`
`success on the merits of his claim.” (ECF No. 3 at 3.) While mindful of the fact that Defendants
`
`14
`
`have not had the opportunity to submit argument in opposition to Plaintiff’s motion for a TRO,
`
`15
`
`the Court nevertheless agrees that Plaintiff has sufficiently established a likelihood of success on
`
`16
`
`the merits as to most of his claims at this time.
`
`17
`
`18
`
`i.
`
`Copyright Infringement
`
`To present a prima facie case for copyright infringement, a plaintiff must (1) show
`
`19
`
`ownership of the allegedly infringed material, and (2) demonstrate that the alleged infringer
`
`20
`
`violated at least one exclusive right granted to copyright holders under 17 U.S.C. § 106. A&M
`
`21
`
`Records, Inc. v. Napster, Inc. (A&M Records, Inc.), 239 F.3d 1004, 1013 (9th Cir. 2001) (citing
`
`22
`
`17 U.S.C. § 501(a)). The Copyright Act grants the following six exclusive rights to copyright
`
`23
`
`holders:
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare
`derivative works based on the copyrighted work; (3) to distribute copies or
`phonorecords of the copyrighted work to the public by sale or other transfer of
`ownership, or by rental, lease, or lending; (4) in the case of literary, musical,
`dramatic, and choreographic works, pantomimes, and motion pictures and other
`audiovisual works, to perform the copyrighted work publicly; (5) in the case of
`literary, musical, dramatic, and choreographic works, pantomimes, and pictorial,
`
`6
`
`
`
`
`
`

`

`
`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 7 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`graphic, or sculptural works, including the individual images of a motion picture or
`other audiovisual work, to display the copyrighted work publicly; and (6) in the case
`of sound recordings, to perform the copyrighted work publicly by means of a digital
`audio transmission.
`
`17 U.S.C. § 106.
`
`Plaintiff alleges Defendants “are fully aware that they do not have legal rights or consent
`
`from Plaintiff to produce, display, sell or distribute” the Film, and Defendants edited the Film
`
`“while being demanded by Plaintiff to cease and desist.” (ECF No. 1 ¶ 61.) Specifically,
`
`Plaintiff alleges he is the registered copyright owner of the Novel and Screenplay registered with
`
`the U.S. Copyright Office, as well as the sole copyright claimant of the Film. (Id. at ¶¶ 51–52.)
`
`Plaintiff has not “licensed, sold, granted, traded or transferred his copyrights or controlling rights
`
`to Defendants.” (Id. at ¶ 53.) Plaintiff has an exclusive right “to produce and prepare derivatives
`
`of his copyrighted works and to exclusively display his copyrighted works publicly.” (Id. at ¶
`
`54.)
`
`Plaintiff’s allegations relating to his copyright infringement claim state Defendants
`
`infringed his Novel, Screenplay, and Film by editing and selling the Film, as well as airing the
`
`first two minutes of the Film. Plaintiff alleges Counts and Bennett “wrote publicly in and around
`
`[October] 2018 and [December] 2018, that they were editing and trying to sell [Unbelievers],”
`
`and the parties were in litigation at this time. (Id. at ¶ 55.) Upon learning this information,
`
`Plaintiff demanded Defendants cease and desist these actions, “which they willfully ignored.”
`
`(Id. at ¶ 56.) Plaintiff further alleges in or around July 2019, “Defendants unlawfully completed
`
`an unauthorized edit of the [Film],” and on or around July 7, 2019, Counts “publicly broadcast the
`
`first two minutes of the unauthorized completed [Film] Defendants created without legal rights or
`
`Plaintiff’s consent.” (Id. at ¶¶ 57–58.)
`
`Plaintiff alleges Defendants changed the story and screenplay “to produce and publicly
`
`display” film footage “that was humiliating to Plaintiff and a terrible reflection of the brand of
`
`written and visual story telling that Plaintiff has worked to develop and become known for over
`
`the past 15 years.” (Id. at ¶ 59.) Further, the Film clip Defendants broadcasted “heartbreakingly
`
`revealed the biggest twist in Plaintiffs’ entire [Film].” (Id.) Counts stated publicly on social
`
`
`
`
`
`
`7
`
`
`
`
`
`

`

`
`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 8 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`media on or around July 8, 2019: “I am super thankful and proud of the work our editors did on
`
`the final cut of our SAG Feature film, Unbelievers.” (Id. at ¶ 60.) Boyce stated to Plaintiff on or
`
`around September 15, 2019: “The editors we found finished the film in less than a year . . .” (Id.
`
`at ¶ 62.)
`
`As noted previously, Plaintiff alleges ownership of his copyrights in his Complaint and
`
`provides the respective copyright numbers for the Novel, the Screenplay, and the Film. (See
`
`generally ECF No. 1.) As Plaintiff has adequately alleged ownership of his copyrights, he has the
`
`exclusive right to use such copyrights. Any use by Defendants would thus be fraudulent and in
`
`violation of the Copyright Act. Therefore, Plaintiff has shown a likelihood of success on the
`
`10
`
`merits of his copyright infringement claim.
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`ii.
`
`Contributory Copyright Infringement
`
`“[W]hile the Copyright Act does not expressly impose liability on anyone other than
`
`direct copyright infringers, courts have long recognized that in certain circumstances, vicarious
`
`or contributory liability will be imposed.” In re Napster, Inc. Copyright Litigation, 377 F. Supp.
`
`2d 796, 801 (N.D. Cal. May 31, 2005) (citing Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d
`
`259, 261 (9th Cir. 1996)). Specifically, the doctrine of contributory infringement “imposes
`
`liability where one person ‘knowingly contributes to the infringing conduct of another.’” Id.
`
`(quoting Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.
`
`1971)). “The elements of contributory infringement are: (1) direct infringement by a third party;
`
`(2) actual or constructive knowledge by the defendant that third parties were directly infringing;
`
`and (3) a material contribution by the defendant to the infringing activities.” Id. (citing A&M
`
`Records, Inc., 239 F.3d at 1013 n.2, 1019–22).
`
`Here, Plaintiff alleges “Defendants induced, caused and materially contributed to the
`
`infringing acts of others by encouraging and inducing others to edit, produce, share and
`
`distribute unauthorized [Unbelievers] content derived from Plaintiff’s copyrighted [Unbelievers]
`
`works.” (ECF No. 1 at ¶¶ 71, 73.) Plaintiff suggests third parties were infringing on his
`
`copyright at the direction of Defendants by alleging “Defendants continued to edit, display and
`
`try to sell [the Film],” and “a cast member for [the Film] informed Plaintiff that there was a
`
`
`
`
`
`
`8
`
`
`
`
`
`

`

`
`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 9 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`[December] 2020 release date for [the Film] listed on [IMDB].” (Id. at ¶¶ 43–44.) Plaintiff
`
`further alleges “Defendants had knowledge of the infringing acts relating to Plaintiff’s
`
`copyrighted works, and . . . Defendants’ injurious acts have been willful and intentional, . . . and
`
`were a substantial factor in having caused and continuing to cause Plaintiff damage and harm.”
`
`(Id. at ¶ 75.)
`
`As Plaintiff has adequately alleged ownership of his copyrights, he has also shown a
`
`likelihood of success on the merits of his claims for contributory copyright infringement.
`
`iii.
`
`Fraud
`
`Under California law, the elements of fraud are: “(a) misrepresentation (false
`
`10
`
`representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent
`
`11
`
`to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” Lovejoy v.
`
`12
`
`AT&T Corp., 92 Cal. App. 4th 85, 93 (2001). Federal courts will apply state law to determine
`
`13
`
`whether the elements of fraud have been pled adequately to state a cause of action, but Federal
`
`14
`
`Rule of Civil Procedure (“Rule”) 9(b) requires that the circumstances establishing fraud must be
`
`15
`
`stated with sufficient particularity. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir.
`
`16
`
`2003). Specifically, Rule 9(b) requires that “[i]n alleging fraud or mistake, a party must state
`
`17
`
`with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
`
`18
`
`other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). The
`
`19
`
`allegations underlying a fraud claim must be “specific enough to give defendants notice of the
`
`20
`
`particular misconduct . . . so that they can defend against the charge.” Vess, 317 F.3d at 1106
`
`21
`
`(internal quotation marks omitted). “Averments of fraud must be accompanied by ‘the who,
`
`22
`
`what, when, where, and how’ of the misconduct charged.” Id. (citing Cooper v. Pickett, 137 F.3d
`
`23
`
`616, 627 (9th Cir. 1997)). “[A] plaintiff must set forth more than the neutral facts necessary to
`
`24
`
`identify the transaction. The plaintiff must set forth what is false or misleading about a statement,
`
`25
`
`and why it is false.” Id. (citing Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th Cir. 1994)).
`
`26
`
`First, Plaintiff alleges Counts “secretly opened an unauthorized bank account in the name
`
`27
`
`of UM LLC” while he “represented to Plaintiff and UM LLC members that the agreed upon UM
`
`28
`
`LLC bank account was opened and being used in accordance with the UM LLC Operating
`
`
`
`
`
`
`9
`
`
`
`
`
`

`

`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 10 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Agreement.” (ECF No. 1 at ¶¶ 79–80.) Plaintiff further alleges Counts signed a document and
`
`swore under penalty of perjury to SAG “that Plaintiff, Kristi, Kristen, and [Counts] are the
`
`managers of UM LLC” and “notarized and declared under penalty of perjury in a letter to
`
`Facebook, more than once, that he was one of the managing members of UM LLC and that
`
`Plaintiff was a managing member of UM LLC.” (Id. at ¶ 86 (emphasis in original).) Yet Plaintiff
`
`notes attorneys for Counts, Bennett, and non-parties Matthew R. Dardenne and John Cardot
`
`“knowingly and falsely declared under penalty of perjury to the Sacramento Superior Court,
`
`‘Since its inception, Counts has been and remains the sole manager of UM LLC.’” (Id. at ¶ 87
`
`(emphasis in original).) These allegations identify the purported misrepresentations with
`
`10
`
`sufficient clarity and particularity to satisfy the first element of Plaintiff’s fraud claim.
`
`11
`
`However, the Court finds the remainder of the elements required to plead fraud are merely
`
`12
`
`conclusory statements couched as factual allegations. With respect to the second element,
`
`13
`
`Plaintiff alleges Counts’s representation “was knowingly false,” but does not identify whether it
`
`14
`
`is the representation that he was opening a bank account in accordance with the UM LLC
`
`15
`
`Operating Agreement or the representation he made to the court that he was the sole manager of
`
`16
`
`UM LLC. (Id. at ¶ 80.) With respect to the third element, Plaintiff alleges Defendants have
`
`17
`
`“fraudulently represent[ed] that UM LLC owns [Unbelievers] and that Defendants have secured
`
`18
`
`the rights from Plaintiff to market and sell the [Film], which is blatantly and knowingly false.”
`
`19
`
`(Id. at ¶ 82.) With respect to the fourth element, “Plaintiff reasonably and justifiably relied upon
`
`20
`
`and trusted [Counts] to fill out, file, and submit paperwork concerning the Washington[-]based
`
`21
`
`UM LLC and [Unbelievers] as agreed and instructed by Plaintiff.” (Id. at ¶ 83.) Plaintiff does
`
`22
`
`not specifically identify how he “reasonably and justifiably relied upon” Counts. Finally, with
`
`23
`
`respect to the fifth element, Plaintiff alleges “[a]s a direct result of Defendants’ intentional and
`
`24
`
`injurious actions and fraudulent misrepresentations, Defendants have caused and continue to
`
`25
`
`cause severe and irreparable harm to Plaintiff in an amount to be proven at trial.” (Id. at ¶ 88.)
`
`26
`
`Accordingly, the Court finds there are no serious questions raised as to the merits of
`
`27
`
`Plaintiff’s fraud claim. However, this alone is not dispositive as to Plaintiff’s motion for a TRO,
`
`28
`
`as the Court finds Plaintiff raises serious questions as to the merits of his other claims.
`
`
`
`
`
`
`10
`
`
`
`
`
`

`

`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 11 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`iv.
`
`Breach of Fiduciary Duty
`
`“In order to plead a claim for breach of fiduciary duty, the claimant must allege (1) the
`
`existence of a fiduciary relationship giving rise to a fiduciary duty, (2) breach of that duty, and (3)
`
`damage proximately caused by the breach.” Migliaccio v. Midland Nat. Life Ins. Co., No. CV 06-
`
`1007 CASMANX, 2007 WL 316873, at * 10 (C.D. Cal. Jan. 30, 2007) (citing Pierce v. Lyman, 1
`
`Cal. App. 4th 1093, 1101 (1990)). Whether a fiduciary relationship exists is a question of
`
`fact. Id. (citing Michelson v. Hamada, 29 Cal. App. 4th 1566, 1575–76 (1994)).
`
`First, “a fiduciary relationship is any relation existing between parties to a transaction
`
`wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the
`
`10
`
`other party.” Wolf v. Superior Court, 107 Cal. App. 4th 25, 29 (2003) (internal quotations
`
`11
`
`omitted). “Traditional examples of fiduciary relationships in the commercial context include
`
`12
`
`trustee/beneficiary, directors and majority shareholders of a corporation, business partners, joint
`
`13
`
`adventurers, and agent/principal.” Id. at 30. Here, Plaintiff alleges he and Counts had an
`
`14
`
`understanding that Counts would start UM LLC and establish the agreed-upon UM LLC bank
`
`15
`
`account on a temporary basis only, and that UM LLC “owned nothing,” as Plaintiff would
`
`16
`
`eventually “start and open the official Unbelievers Movie LLC and UM LLC bank account in
`
`17
`
`California.” (ECF No. 1 at ¶¶ 91–93.) Plaintiff states he “trusted and justifiably relied upon
`
`18
`
`[Counts] to abide by the UM LLC Operating Agreement that [Counts] drafted and all managers
`
`19
`
`signed in agreement to abide by.” (Id. at ¶ 94.) Based on the foregoing, the Court finds that
`
`20
`
`Plaintiff has established a fiduciary relationship as business partners between himself and Counts.
`
`21
`
`Second, Plaintiff alleges Counts breached his fiduciary duty by, among other things:
`
`22
`
`“intentionally failing to comply with the terms of the UM LLC Operating Agreement he drafted,”
`
`23
`
`“wrongfully removing Plaintiff from UM LLC,” commingling “UM LLC funds with his own,
`
`24
`
`against his representations and in direct violation of the UM LLC Operating Agreement,”
`
`25
`
`“wrongfully remov[ing] Plaintiff and Kristi from UM LLC,” “secretly open[ing] an unauthorized
`
`26
`
`UM LLC bank account,” and “offering unauthorized ownership to ‘investors’ in [Unbelievers].”
`
`27
`
`(Id. at ¶¶ 95–99.) Plaintiff clarifies that neither he nor any of the other the UM LLC owners or
`
`28
`
`managers gave Counts permission to open a UM LLC bank account in any manner that was
`
`
`
`
`
`
`11
`
`
`
`
`
`

`

`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 12 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`inconsistent with the UM LLC Operating Agreement. (See id. at ¶ 104.) Accordingly, the Court
`
`finds that Plaintiff has established a breach of the fiduciary relationship.
`
`Third, Plaintiff alleges “[a]s a direct result of [Counts’s] deliberate, injurious, and self-
`
`serving actions, Plaintiff has been and continues to be severely and irreparably harmed in an
`
`amount to be proven at trial.” (Id. at ¶ 106.) Plaintiff seeks both “general and compensatory
`
`damages,” as well as “exemplary and punitive damages” with respect to this claim. (Id. at ¶ 123.)
`
`Plaintiff has not specifically pleaded the exact damages he has suffered, but suggests monetary
`
`damages stemming from Counts’s commingling UM LLC funds with his own, opening an
`
`unauthorized UM LLC bank account, and offering investment opportunities. Accordingly, the
`
`10
`
`Court finds Plaintiff has established damages.
`
`11
`
`As Plaintiff has adequately alleged the existence of a fiduciary relationship, as well as
`
`12
`
`Defendants’ breach and subsequent damages, Plaintiff has shown a likelihood of success on the
`
`13
`
`merits of this claim.
`
`14
`
`15
`
`v.
`
`Accounting
`
`“A cause of action for an accounting requires a showing that a relationship exists between
`
`16
`
`the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff
`
`17
`
`that can only be ascertained by an accounting.” Teselle v. McLoughlin, 173 Cal. App. 4th 156,
`
`18
`
`179 (2009). Here, Plaintiff alleges there is a copyright owner-infringer relationship giving rise to
`
`19
`
`a claim for damages and injunctive relief. (See generally ECF No. 1); cf. Hinson v. Cavalry
`
`20
`
`Records, Inc., 2018 WL 3740540, at *6 (E.D. Cal. Aug. 3, 2018). Thus, Plaintiff has sufficiently
`
`21
`
`raised serious questions as to the merits of this claim.
`
`22
`
`23
`
`C. Irreparable Harm
`
`The Court finds Plaintiff has adequately demonstrated a likelihood of imminent and
`
`24
`
`irreparable harm absent injunctive relief. Specifically, Plaintiff argues Defendants have already
`
`25
`
`caused him, his family, his reputation, his brand, and his intellectual property irreparable harm
`
`26
`
`“by broadcasting video footage from the [Film] showing the images and likeness of locations and
`
`27
`
`individuals who have not given legal consent to be in the [Film], including minors.” (ECF No. 3
`
`28
`
`at ¶ 36 (emphasis in original).) Plaintiff clarifies “[t]hese individuals have not signed release of
`
`
`
`
`
`
`12
`
`
`
`
`
`

`

`
`Case 2:20-cv-02441-TLN-JDP Document 4 Filed 12/14/20 Page 13 of 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`liability forms granting irrevocable rights to their image, likeness, or locations in the [Film],” and
`
`thus Defendants’ actions expose all parties who made the Film to liability. (Id. at 16.) Plaintiff
`
`and “others” have been caused irreparable harm by Defendants “showing individuals and
`
`locations in the [Film] who have stated as early as [March] 2017 that they refused to be associated
`
`with this [Film].” (Id. at ¶ 37.) Plaintiff also notes “Defendants completed and broadcast the first
`
`two minutes of [the Film], heartbreakingly revealing the biggest twist [he] wrote in [his] story,
`
`screenplay, and [Film].” (Id. at ¶ 34.)
`
`Plaintiff suggests future immediate and irreparable harm, as “Defendants are willingly and
`
`recklessly exposing Plaintiff, Defendants, potential distributors, and all involved in the making of
`
`10
`
`the [Film], to lawsuits.” (Id. at ¶ 37.) Plaintiff notes “Defendants have and continue to devalue
`
`11
`
`and destroy [his] protected copyrighted intellectual property and brand by horrifically changing
`
`12
`
`and rewording [his] Unbelievers story and screenplay to unlawfully create an unauthorized
`
`13
`
`Unbelievers movie that is simply awful.” (ECF No. 3 at 15.) Plaintiff also notes “every
`
`1