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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`ERIC GOTTESMAN,
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`v.
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`CARLOS SANTANA, et al.,
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`Plaintiff,
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` Case No.: 16-CV-2902 JLS (JLB)
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`ORDER ON MOTIONS TO DISMISS
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`(ECF Nos. 70, 72, 73, 75, 79, 116)
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`Defendants.
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`Presently before the Court are Motions to Dismiss and Motions to Strike filed by
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`various Defendants.1 (ECF Nos. 70, 72, 73, 75, 79, 116.) Also before the Court are Plaintiff
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`1 Defendants Daniel J. Schacht, Esq. (“Shacht”) and the law firm Donahue Fitzgerald LLP (“Donahue”)
`(collectively, the “Attorney Defendants”) bring a special motion to strike Plaintiff’s FAC under
`California’s anti-SLAPP law. (“anti-SLAPP MTS,” ECF No. 77). In response, Plaintiff voluntarily
`dismissed the Attorney Defendants. (ECF Nos. 130, 132.) However, the Attorney Defendants claim that
`this “type of litigation chicanery has been overwhelmingly rejected by the courts” and argue that “when a
`plaintiff tries to avoid an adverse ruling on an anti-SLAPP motion by dismissing the moving party, a court
`must rule on the merits of the anti-SLAPP motion by identifying the prevailing party, thereby allowing
`for the mandatory recovery of attorney’s fees.” (“anti-SLAPP MTS Reply” 2, ECF No. 153 (citing
`Coltrain v. Shewalter, 66 Cal. App. 4th 94, 107 (1998)).) Plaintiff also moves to strike the Attorney
`Defendants’ Reply suggesting that the Court must rule on the merits of the anti-SLAAP motion. (“MTS,”
`ECF No. 158.) Accordingly, the Court does not in this Order consider these pending Motions to Strike
`(ECF Nos. 77, 158). The Court will address those issues in a separate Order.
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`Case 3:16-cv-02902-JLS-JLB Document 170 Filed 07/06/17 PageID.2754 Page 2 of 14
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`Eric Gottesman’s (“GMAN”) responses in opposition to, (ECF Nos. 141, 142, 143, 144,
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`145), and Defendants’ replies in support of, (ECF Nos. 152, 154, 155), these various
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`motions. After considering the parties’ arguments and the law, the Court rules as follows.
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`BACKGROUND
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`Plaintiff is a professional artist who has extensive experience in, among other things,
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`freehand airbrush, hand-drawn and digital illustration, graphic design, and photo
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`retouching. (First Am. Compl. (“FAC”) ¶ 16, ECF No. 38.) Plaintiff has produced original
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`works of art and designs for a number of clients, including, for example, Carlos Santana,
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`the Jimi Hendrix Estate, Tom Petty and the Heartbreakers, and Metallica. (Id. ¶ 15.) This
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`case concerns Plaintiff’s work for Defendant Carlos Santana.
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`After Plaintiff spent some time working at a Fullerton-based company where he
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`created graphics for bands, celebrities, casinos, and the like, (id. ¶ 21), Santana contacted
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`and engaged Plaintiff as an independent contractor to create the art and design for
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`merchandizing in connection with an event, (id. ¶ 30). Santana was so impressed with his
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`work that he invited Plaintiff to his home and said he believed Plaintiff was the artist that
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`had the ability to “turn SANTANA into a brand.” (Id. ¶ 33.) The parties entered into a
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`business relationship where Plaintiff submitted original works to Santana and his
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`management company for use in building the Santana brand. (Id. ¶ 176.) Plaintiff retained
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`ownership in these works, but each submitted work contained limited copy and distribution
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`rights. (Id.)
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`Plaintiff filed a 103-page, 473-paragraph FAC against dozens of Defendants
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`associated with Defendant Carlos Santana. (ECF No. 38.) The gravamen of Plaintiff’s
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`claims is that these Defendants infringed his copyrights in several of his works by
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`exceeding the scope of the licenses in those works. (See generally FAC.) Thus, Plaintiff
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`brings claims for: (1) copyright infringement; (2) contributory copyright infringement; (3)
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`vicarious copyright infringement; (4) inducing copyright infringement; (5) breach of
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`contract; (6) intentional misrepresentation; (7) negligent misrepresentation; (8) breach of
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`implied covenant of good faith and fair dealing; (9) unfair business practices; and (10)
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`constructive trust. (Id.)
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the
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`defense that the complaint “fail[s] to state a claim upon which relief can be granted,”
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`generally referred to as a motion to dismiss. The Court evaluates whether a complaint states
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`a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure
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`8(a), which requires a “short and plain statement of the claim showing that the pleader is
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`entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations,’ . . . it
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`[does] demand more
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`than an unadorned,
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`the-defendant-unlawfully-harmed-me
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`accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to provide
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`the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and
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`a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
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`at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A complaint will not suffice
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`“if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S.
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`at 677 (citing Twombly, 550 U.S. at 557).
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`In order to survive a motion to dismiss, “a complaint must contain sufficient factual
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`matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting
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`Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible
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`when the facts pled “allow the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at
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`556). That is not to say that the claim must be probable, but there must be “more than a
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`sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent with’
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`a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly,
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`550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained
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`in the complaint. Id. This review requires context-specific analysis involving the Court’s
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`“judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here the well-
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`pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
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`the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”
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`Id.
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`Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to
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`amend unless it determines that no modified contention “consistent with the challenged
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`pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,
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`658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d
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`1393, 1401 (9th Cir. 1986)).
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`ANALYSIS
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`Given the variety of motions considered in this order, the Court organizes its analysis
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`by each motion.
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`I. Motion to Dismiss—Breach of Contract (ECF No. 72)
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`Defendants Linton Hall and Service First Specialty Food and Marketing, LLC move
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`to dismiss Plaintiff’s cause of action against them for breach of contract. (See generally
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`“Contract MTD,” ECF No. 72-1.) Specifically, Defendants argue that Plaintiff’s
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`allegations are insufficient to state a plausible breach of contract claim. (Id.)
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`“[T]he elements of a cause of action for breach of contract are (1) the existence of
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`the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s
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`breach, and (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman,
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`51 Cal. 4th 811, 821 (2011) (citing Reichert v. Gen. Ins. Co., 68 Cal. 2d 822, 830 (1968)).
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`The Court agrees with Defendants. Plaintiff’s allegations supporting its breach of
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`contract cause of action are the following:
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`429. GMAN repeats and incorporates by this reference each and every
`allegation set forth in paragraphs 1 through 428, inclusive.
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`430. GMAN entered into a verbal contract with SERVICE FIRST which
`required this defendant to pay GMAN for the license to limited use of the salsa
`labels and associated designs, time taken to create the works, time to modify
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`same, and time to coordinate production and printing of the labels at GMAN’s
`normal and customary rates.
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`431. HALL is personally liable for SERVICE FIRST breach of contract as the
`alter-ego of SERVICE FIRST for the reasons already alleged above.
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`432. Despite GMAN’s demands for payment, these defendants breached the
`parties’ contract by continuing to refuse to pay as agreed.
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`433. GMAN has timely and fully performed all of his obligations under the
`parties’ contract.
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`434. As a direct and proximate result of SERVICE FIRST breach of contract,
`GMAN has been damaged in an amount to be proven at trial.
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`(FAC ¶¶ 429–434.)
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`These allegations are insufficient to allow Defendants to appropriately respond.
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`Among other things, these allegations do not provide any specifics regarding the material
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`terms of the verbal contract between Plaintiff and Service First, much less when this
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`contract was allegedly formed and breached. Indeed, even Plaintiff admits that his
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`“allegations for this cause of action are minimal . . . .” (“Contract MTD Opp’n” 6, ECF
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`No. 145.) In short, Plaintiff has failed to allege sufficient factual matter from which this
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`Court may infer a plausible claim for the existence and breach of a contract.2 See, e.g., N.
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`Cty. Commc’ns Corp. v. Verizon Glob. Networks, Inc., 685 F. Supp. 2d 1112, 1122 (S.D.
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`Cal. 2010) (finding that the defendant did not adequately allege a breach of contract claim
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`where it failed to “plead, among other things, the nature of the contract, dates pertinent to
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`2 Additionally, Plaintiff argues that a “claim may be dismissed only if ‘it appears beyond doubt that the
`plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” (Contract
`MTD Opp’n 4 (citing Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citing Conley v. Gibson, 35
`U.S. 41, 45–46 (1957))). Plaintiff also relies on this legal statement for his other responses in opposition
`to Defendants’ various motions. However, nearly ten years ago in the seminal case of Bell Atlantic Corp.
`v. Twombly, the United States Supreme Court expressly abrogated this exact aspect of the Conley standard.
`550 U.S. 544, 560–62 (2007) (holding that the “no set of facts” language “has earned its retirement” and
`“is best forgotten as an incomplete, negative gloss on an accepted pleading standard”). Plaintiff’s reliance
`on Conley and its progeny is particularly strange given that he also relies on Twombly and Iqbal in his
`legal standard. (Contract MTD Opp’n 4.)
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`the contract, and other relevant terms that would put [plaintiff] on notice of the basis of”
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`the claim); cf. TreeFrog Devs., Inc. v. Seidio, Inc., No. 13CV0158-IEG KSC, 2013 WL
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`4028096, at *3 (S.D. Cal. Aug. 6, 2013) (finding that a breach of contract claim was
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`adequately pleaded where the plaintiff alleged the dates and material terms of the contract,
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`including the subject of the contract and the specific payment obligations of each party);
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`Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009) (“A plaintiff may not
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`escape dismissal on a contract claim, for example, by stating that he had a contract with
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`the defendant, gave the defendant consideration, and the defendant breached the contract.
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`What was the contract? The promises made? The consideration? The nature of the
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`breach?”).
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`To be sure, Plaintiff provides additional details about this oral agreement, including
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`supporting exhibits, in the introduction portion of his opposition brief. (See Contract MTD
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`Opp’n 2–3 (describing, among other things, the dates of certain agreements, the
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`approximate hours worked in reliance on those agreements, and the alleged money owed
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`for breaching those agreements).) Such details would likely be sufficient to state a plausible
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`claim for the existence and breach of a contract, if they appeared in the FAC. Because they
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`do not, however, the Court may not consider them in assessing the adequacy of Plaintiff’s
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`allegations. See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998)
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`(“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond
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`the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a
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`defendant’s motion to dismiss.”) (emphasis in original)). Accordingly, the Court GRANTS
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`Defendants’ Motion to Dismiss (ECF No. 72).3 Plaintiff will have an opportunity to include
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`these additional factual allegations in his amended complaint.
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`3 Plaintiff also strangely argues that his state law claims are not preempted by the Copyright Act. (See
`Contract MTD Opp’n 5.) But Defendants do not raise this argument in their motion. Thus, the Court does
`not consider these arguments in assessing the present Motion to Dismiss.
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`II. Motion to Dismiss Certain Claims (ECF No. 73)
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`Various Defendants4 seek to dismiss Plaintiff’s FAC on several grounds, including:
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`(A) Plaintiff’s copyright claims seek impermissible damages; (B) Plaintiff fails to state a
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`claim for inducing copyright infringement; (C) Plaintiff’s sixth, seventh, eighth, and ninth
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`claims are preempted by the Copyright Act; (D) Plaintiff’s sixth, seventh, and ninth claims
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`grounded in fraud fail to meet the heightened pleading standard under Rule 9(b); (E)
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`Plaintiff fails to state a claim for breach of the implied covenant of good faith and fair
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`dealing; (F) Plaintiff fails to state a claim for unfair business practices; and (G) Plaintiff
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`fails to state a claim for constructive trust. (See generally “Claims MTD,” ECF No. 73-1.)
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`The Court considers each argument in turn.5
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`A. Copyright Damages
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`Defendants first argue that Plaintiff’s copyright claims are defective because they
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`seek damages that precluded as a matter of law. (Claims MTD 10.) Specifically,
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`4 These Defendants include Carlos Santana; Salvador Santana; Michael Vrionis; Maria Vrionis; Steven
`Vrionis; Daniel J. Schacht, Esq.; Donahue Fitzgerald LLP; Guts & Grace Records, Inc.; Cristalino, Inc.;
`Santana IV, LLC; Santana Tesoro, LLC; Universal Tone Management, LLC; Adam Fells; Constellation
`Brands, Inc.; Dawn DeBisschop; Howard Schomer; Hi Fidelity Entertainment, Inc.; House of Blues
`Entertainment, LLC; Steven Newman; The Rock.com Group, Inc.; Walmart Stores, Inc.; Double O, LLC;
`Will Oakley; Band Tees Apparel, Inc.; Art.com; Glenn Morelli; GFM Licensing Group; Infinity 1, Inc.
`dba Rockabilia; Casa Noble Holdings LLC; Casa Noble Spirits, LLC; and MiJa Park. (See Claims MTD.)
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` Defendants Linton Hall and Service First Specialty Food and Marketing, LLC also “join in the arguments
`set forth by Defendants Carlos Santana, et al., and seek the requested relief as to Defendants Linton Hall
`and Service First Specialty Food and Marketing, LLC.” (ECF No. 70.) But the underlying motion did not
`assess the merits of Plaintiff’s FAC with regard to these claims and these Defendants. The Court agrees
`with Plaintiff’s objection that this notice of joinder “fails to give the requisite notice of the basis for
`Moving Defendants’ request for dismissal under Rule 12(b)(6)” and that it “makes it difficult at best to
`respond to their position since Plaintiff’s state claim against Moving Defendants is founded upon a
`different set of facts and legal theories than those applicable to the” other Defendants. (ECF No. 144, at
`5.) While the Court is willing to entertain some level of joinder of nonmoving Defendants in certain
`arguments, those motions of joinder must at the very least point the Court to those specific portions of the
`other motion to which the Defendants join and supply additional facts or legal theories where necessary.
`Otherwise the Court and Plaintiff are, as is the case here, left with a blanket joinder that provides no
`specific guidance. Accordingly, the Court DENIES this joinder motion (ECF No. 70). These Defendants
`are, of course, free to bring another motion to dismiss based on these arguments in response to Plaintiff’s
`amended complaint.
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`Defendants argue that Plaintiff erroneously seeks (1) punitive damages; (2) damages based
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`on a judgment that a party “injured the business reputation and business” of a plaintiff; (3)
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`damages for unfair trade practices; and (4) both profits and statutory damages. (Id.)
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`In response, Plaintiff “does not challenge the motion to the extent it seeks to dismiss
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`Plaintiff’s claim for punitive damages under the Copyright Act, attorneys’ fees pursuant to
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`Cal. Civ. Code § 3344 for claims of copyright infringement, a declaration that defendants
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`have damaged his business reputation, or that he’s entitled to damages for unfair business
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`practices.” (“Claims MTD Opp’n” 6, ECF No. 141.) Plaintiff further argues that his
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`copyright infringement claims are otherwise adequately pled and should not be dismissed
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`on this basis, (id.), which Defendants do not appear to contest, (see Claims MTD; “Claims
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`MTD Reply,” ECF No. 154). Given Plaintiff’s concessions, the Court GRANTS
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`Defendants’ Claims MTD on these points and DISMISSES WITH PREJUDICE these
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`particular claims. Plaintiff will have an opportunity to address these deficiencies in his
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`amended complaint.
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`As to requesting both statutory damages and profits, Plaintiff argues he “is entitled
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`to recover profits from one defendant and statutory damages from another and his prayer
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`for relief can be read as requesting one or the other from each Defendant.” (Claims MTD
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`Opp’n 6.) Thus, Plaintiff appears to understand that statutory damages and actual damages
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`(including profits) are alternative damages bases under the Copyright Act. See 17
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`U.S.C. § 504(a) (noting that a copyright infringer is liable for either actual damages or
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`statutory damages). So cabined, the Court finds that Plaintiff’s FAC does not
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`impermissibly seek both statutory and actual damages against each alleged infringer. See
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`also 17 U.S.C. § 504(c)(1) (noting that a copyright owner “may elect, at any time before
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`final judgment is rendered,” to recover either actual or statutory damages). Accordingly,
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`the Court DENIES this portion of Defendants’ Claims MTD.
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`B. Inducing Copyright Infringement
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`Defendants argue that Plaintiff fails to state a claim for inducing copyright
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`infringement. (Claims MTD 11.)
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`Induced infringement is a species of contributory infringement since “one
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`contributorily infringes when he (1) has knowledge of another’s infringement and (2) either
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`(a) materially contributes to or (b) induces that infringement.” Perfect 10, Inc. v. Visa Int’l
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`Serv. Ass’n (“Perfect 10 I”), 494 F.3d 788, 795 (9th Cir. 2007). “The Supreme Court has
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`held that ‘one who distributes a device with the object of promoting its use to infringe
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`copyright, as shown by clear expression or other affirmative steps taken to foster
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`infringement, is liable for the resulting acts of infringement by third parties.’” Perfect 10,
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`Inc. v. Giganews, Inc. (“Perfect 10 II”), 847 F.3d 657, 672 (9th Cir. 2017) (quoting Metro-
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`Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 936–37 (2005)). In the Ninth
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`Circuit, a claim for inducement has “four elements: (1) the distribution of a device or
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`product, (2) acts of infringement, (3) an object of promoting its use to infringe copyright,
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`and (4) causation.” Id. (quoting Columbia Pictures Indust., Inc. v. Fung, 710 F.3d 1020,
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`1032 (9th Cir. 2013)).
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`The Court agrees with Defendants. Among other things, Plaintiff’s fourth cause of
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`action for inducing copyright infringement fails to identify any service, device, or product
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`that encourages another person to commit copyright infringement. (See FAC ¶¶ 420–28.)
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`Moreover, Plaintiff concedes that he “will not be pursing . . . inducement claims against
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`the defendants bringing this motion . . . .” (Claims MTD Opp’n 9.) Accordingly the Court
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`GRANTS this portion of Defendants’ Claims MTD and DISMISSES WITH
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`PREJUDICE Plaintiff’s claim for induced copyright infringement against these moving
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`C. Preemption Under the Copyright Act
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`Defendants argue that Plaintiff’s sixth through ninth claims for intentional
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`misrepresentation, negligent misrepresentation, breach of the implied covenant of good
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`faith and fair dealing, and unfair business practices are all preempted by the Copyright Act.
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`Case 3:16-cv-02902-JLS-JLB Document 170 Filed 07/06/17 PageID.2762 Page 10 of 14
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`(Claims MTD 11–14.) But as with his inducement cause of action, Plaintiff concedes that
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`he “will not be pursing his state court . . . claims against defendants bringing this
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`motion . . . .” (Claims MTD Opp’n 9.) Accordingly, the Court GRANTS this portion of
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`Defendants’ Claims MTD and DISMISSES WITH PREJUDICE Plaintiff’s state court
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`causes of action6 against these moving Defendants.7
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`III. Motion to Dismiss Certain Individual Defendants (ECF No. 75)
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`Defendants also move to dismiss certain individual Defendants8 because Plaintiff
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`fails to state copyright infringement claims against them. (“Indiv. Def.’s MTD,” ECF No.
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`75.) Plaintiff has since dismissed all moving Defendants except Casa Noble Spirits, LLC
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`(“Casa Noble”). (See “Indiv. Def.’s MTD Opp’n” 2, ECF No. 142.) Accordingly, the Court
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`assesses Defendants’ arguments solely with respect to Casa Noble.9
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`Defendants argue that Plaintiff fails to state a copyright infringement claim against
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`Casa Noble. (Indiv. Def.’s MTD 20–21.) “To establish a prima facie case of direct
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`infringement, a plaintiff ‘must show ownership of the allegedly infringed material’ and
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`‘demonstrate that the alleged infringers violated at least one exclusive right granted to
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`copyright holders under 17 U.S.C. § 106.’” Perfect 10 II, 847 F.3d at 666 (quoting A&M
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`6 These claims include Plaintiff’s sixth claim for intentional misrepresentation, seventh claim for negligent
`misrepresentation, eighth claim for breach of implied covenant of good faith and fair dealing, ninth claim
`for unfair business practices, and tenth claim for constructive trust.
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`7 For this reason the Court need not reach Defendants’ additional arguments, since they all pertain to the
`deficiencies of Plaintiff’s state causes of actions against Defendants. (See also Claims MTD Reply 3
`(noting that Plaintiff stated he will not be pursing state law claims against the moving Defendants).)
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` These moving Defendants include Maria Vrionis, Adams Fells, Steve Vrionis, MiJa Park, Will Oakley,
`Glen Morelli, Steven Newman, House of Blues Entertainment, LLC, and Casa Noble Spirits, LLC. (Indiv.
`Def.’s MTD 4.)
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` As above, supra note 5, Defendants Linton Hall and Service First Specialty Food and Marketing, LLC
`“join in the arguments set forth by Defendants Carlos Santana, et al., and seek the requested relief as to
`Defendants Linton Hall and Service First Specialty Food and Marketing, LLC.” (ECF No. 79.) But the
`underlying motion did not assess the merits of Plaintiff’s FAC with regard to these claims and these
`Defendants. And Plaintiff’s response in opposition to this motion focused on the only remaining moving
`Defendant—Casa Noble Spirits, LLC. Accordingly, the Court DENIES this joinder motion for the same
`reasons discussed above.
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`Case 3:16-cv-02902-JLS-JLB Document 170 Filed 07/06/17 PageID.2763 Page 11 of 14
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`Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)). In this case the
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`exclusive rights include the right of reproduction, the right to prepare derivate works, and
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`the right of distribution. 17 U.S.C. § 106. “In addition, direct infringement requires the
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`plaintiff to show causation (also referred to as ‘volitional conduct’) by the defendant.” Id.
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`(quoting Fox Broad. Co., Inc. v. Dish Network L.L.C., 747 F.3d 1060, 1067 (9th Cir.
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`2013)).
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`The Court agrees with Defendants. The sole allegation against Casa Noble is that it
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`is listed as a registrant of the domain name www.casanoble.com and that some of Plaintiff’s
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`registered works appear on that site. (FAC 35 (providing chart noting that two of Plaintiff’s
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`registered works appear on the website).) But there are no actual allegations that satisfy the
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`causation element of direct infringement (e.g., that Casa Noble posted those works on its
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`site, created derivative versions of the copyrighted works, or offered for sale the allegedly
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`infringing merchandise). Merely alleging that an entity owns or operates a domain name is
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`not enough to plausibly demonstrate that the entity caused, for example, a copy of
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`Plaintiff’s copyrighted work to appear on its site. See, e.g., Perfect 10 II, 847 F.3d at 668
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`(“The sole evidence Perfect 10 points to in support of its argument that Giganews was not
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`merely a passive host shows only that images and thumbnails were accessed through the
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`Giganews platform. The evidence does not demonstrate that Giganews—as opposed to the
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`user who called up the images—caused the images to be displayed.”); Carell v. Shubert
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`Org., Inc., 104 F. Supp. 2d 236, 271 (S.D.N.Y. 2000) (dismissing direct copyright
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`infringement claims against certain defendants because the complaint failed to provide
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`“any description of acts that could lead to the conclusion of direct copyright”
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`infringement).
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`To be sure, Plaintiff provides additional allegations and exhibits against a group of
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`Defendants he labels “CASA NOBLE” Defendants. (FAC ¶ 113 (labeling Casa Noble
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`Holdings LLC and Casa Noble Holding, LLC as “CASA NOBLE”).) But this group does
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`not include Casa Noble Spirits, LLC. Indeed, as discussed, the only references to Casa
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`Noble Spirits, LLC are in the case caption and regarding its status as a domain name
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`Case 3:16-cv-02902-JLS-JLB Document 170 Filed 07/06/17 PageID.2764 Page 12 of 14
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`registrant for www.casanoble.com. The Court will entertain a reasonable level of group
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`pleading in assessing the adequacy Plaintiff’s FAC, but a prerequisite to that, of course, is
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`that the group actually include the moving Defendant. And here it does not. Accordingly,
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`the Court GRANTS this portion of Defendants’ MTD and DISMISSES WITHOUT
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`PREJUDICE Plaintiff’s copyright infringement claims10 against Casa Noble Spirits, LLC.
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`IV. DPC Defendants’ Motion to Dismiss (ECF No. 116)
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`As above, supra Part II, various Defendants (hereinafter, the “DPC Defendants”11),
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`move to dismiss Plaintiff’s FAC on several grounds, including: (A) failure to state claims
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`for copyright infringement; (B) Plaintiff’s ninth cause of action is preempted by the
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`Copyright Act; and (C) Plaintiff’s tenth cause of action for constructive trust is not a cause
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`of action. (See generally “DPC MTD,” ECF No. 116-1.) However, Plaintiff concedes that
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`he “will not be pursuing [his state court claims] against the moving Defendants.”12 (“DPC
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`MTD Opp’n” 9, ECF No. 143.) Accordingly, the Court only considers the DPC
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`Defendants’ arguments regarding Plaintiff’s claims for copyright infringement.13
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`10 Because Plaintiff fails to state a direct infringement claim against Casa Noble Spirits, LLC, and because
`Plaintiff fails to allege that Casa Noble Spirits, LLC was otherwise aware of or encouraged another’s
`direct infringement, his secondary infringement claims against this Defendant also fail. See, e.g., Louis
`Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 591 F. Supp. 2d 1098, 1104 (N.D. Cal. 2008) (“All theories
`of secondary liability for copyright and trademark infringement require some underlying direct
`infringement by a third party.” (citing Perfect 10 I, 494 F.3d at 795, 807)).
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`11 These moving Defendants include Dorfman-Pacific Co., Inc. (sued herein as Dorfman Pacific Co.);
`Shawn Daniel (sued herein as Shawn Daniel doing business as www.dorfmanpacific. com); Steven Singer
`(sued herein as Steven Singer doing business as Hartford York); Hats.com, LLC (sued herein as Hats.com,
`LLC doing business as www.hats.com); Bel-Born Management Corp. (sued herein as Bel- orn
`Management Corp. doing business as www.villagehatshop.com); Gary Monds (sued herein as Gary
`Monds doing business as Phoenix Leather Goods dba www.beltoutlet.com); and Phoenix Leather Goods
`LLC (sued herein as Phoenix Leather Goods doing business as www.beltoutlet.com). (DPC MTD 7.)
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`12 Additionally, Plaintiff has since dismissed Defendant Shawn Daniel. (DPC MTD Opp’n 9.)
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`13 Also, as above, supra Part II, Defendants argue that (1) Plaintiff impermissibly seeks punitive damages
`under the Copyright Act, (2) Plaintiff impermissibly seeks punitive damages and fees under the California
`Civil Code based on copyright claims, (3) the Copyright Act does not allow a remedy for injury to business
`reputation, and (4) Plaintiff impermissibly seeks both profits and statutory damages under the Copyright
`Act. (DPC MTD 15–16.) Plaintiff does not respond to these arguments in this particular motion, but he
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`Case 3:16-cv-02902-JLS-JLB Document 170 Filed 07/06/17 PageID.2765 Page 13 of 14
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`Defendants argue that Plaintiff fails to state a claim for direct copyright infringement
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`against each DPC Defendant. (DPC MTD 10–12.) The Court partially agrees.
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`To begin, the Court finds that Plaintif