NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`FILED
`
`
`NOV 6 2023
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`MICHAEL S. TRAYLOR,
`
`
`
`
` v.
`
`
`U.S. SMALL BUSINESS ASSOCIATION
`ET AL.,
`
`
`
`
`
`
`
`
`Plaintiffs’ Former Counsel-
`Appellant,
`
` No. 21-56093
`
`D.C. No. 5:20-cv-01280-SVW-KK
`
`
`MEMORANDUM*
`
`Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Stephen V. Wilson, District Judge, Presiding
`
`Submitted on October 17, 2023
`Pasadena, California
`
`
`Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF, District Judge.**
`
`
`This is an appeal from the grant of summary judgment and award of attorney’s
`
`fees in a case brought under the Copyright Act. The district court initially granted
`
`the motions for summary judgment of defendants Al Gohary and the Orange County
`
`*
`
`
`This disposition is not appropriate for publication and is not precedent
`except as provided by Ninth Circuit Rule 36-3.
`
`**
`The Honorable Jed S. Rakoff, United States District Judge for the
`Southern District of New York, sitting by designation.
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`FILED
`
`
`NOV 6 2023
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`MICHAEL S. TRAYLOR,
`
`
`
`
` v.
`
`
`U.S. SMALL BUSINESS ASSOCIATION
`ET AL.,
`
`
`
`
`
`
`
`
`Plaintiffs’ Former Counsel-
`Appellant,
`
` No. 21-56093
`
`D.C. No. 5:20-cv-01280-SVW-KK
`
`
`MEMORANDUM*
`
`Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Stephen V. Wilson, District Judge, Presiding
`
`Submitted on October 17, 2023
`Pasadena, California
`
`
`Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF, District Judge.**
`
`
`This is an appeal from the grant of summary judgment and award of attorney’s
`
`fees in a case brought under the Copyright Act. The district court initially granted
`
`the motions for summary judgment of defendants Al Gohary and the Orange County
`
`*
`
`
`This disposition is not appropriate for publication and is not precedent
`except as provided by Ninth Circuit Rule 36-3.
`
`**
`The Honorable Jed S. Rakoff, United States District Judge for the
`Southern District of New York, sitting by designation.
`
`
`
`Inland Empire Small Business Development Center Network (“OCIE”) based upon
`
`the failure of plaintiffs Lethia Davis and her company, Beautiful Minds
`
`Entrepreneurship, Inc., to provide the district court with a copy of the copyrighted
`
`works that were purportedly infringed. Plaintiffs filed a motion for reconsideration
`
`attaching one of the three allegedly infringed works. The district court denied that
`
`motion, finding, among other things, that even if the work had been included with
`
`the prior motion, it would not have changed the court’s conclusion. The district court
`
`then ordered plaintiffs to pay defendants’ attorney’s fees pursuant to 17 U.S.C. § 505
`
`and, sua sponte, issued an order to show cause why plaintiffs’ attorney—Michael
`
`Traylor—should not be held liable for a portion of the fee award pursuant to 28
`
`U.S.C. § 1927. The district court ultimately awarded Gohary $75,424.50 in
`
`attorney’s fees, of which Traylor was held liable for $31,006, and awarded OCIE
`
`$75,613.13 in attorney’s fees, of which Traylor was held liable for $71,056.13.
`
`Traylor is the only party remaining in this appeal. For the reasons set forth below,
`
`we affirm the district court’s grant of summary judgment and award of attorney’s
`
`fees.
`
`Traylor first argues that the district court erred in granting defendants’
`
`motions for summary judgment and denying plaintiffs’ motion for reconsideration.
`
`Without these purportedly erroneous rulings, Traylor argues, no attorney’s fee award
`
`could have been entered against him. We review a grant of summary judgment de
`
`
`
`2
`
`21-56093
`
`
`
`novo, and a denial of a motion for reconsideration for abuse of discretion. See
`
`Airlines for Am. v. City & Cnty. of San Francisco, 78 F.4th 1146, 1151 (9th Cir.
`
`2023) (summary judgment); Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207,
`
`1211 (9th Cir. 2012) (FRCP 60(b)); Smith v. Pac. Props. & Dev. Corp., 358 F.3d
`
`1097, 1100 (9th Cir. 2004) (FRCP 59(e)).
`
`“Proof of copyright infringement requires [the plaintiff] to show: (1) that he
`
`owns a valid copyright in [the work]; and (2) that [the defendant] copied protected
`
`aspects of the work.” Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir.
`
`2020) (en banc). A plaintiff “can attempt to prove [copying] circumstantially by
`
`showing that the defendant had access to the plaintiff’s work and that the two
`
`works share similarities probative of copying.” Id. (quoting Rentmeester v. Nike,
`
`Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
`
`To support their motions for summary judgment, defendants put forward
`
`substantial evidence that they did not copy the allegedly infringed work, including
`
`declarations that they had not seen the infringed work prior to the litigation, did not
`
`have access to the infringed work, and created the purportedly infringing work years
`
`before the creation of the allegedly infringed work. At this point, the burden shifted
`
`to plaintiffs to demonstrate a genuine dispute of material fact. See Celotex Corp. v.
`
`Catrett, 477 U.S. 317, 322–23 (1986).
`
`
`
`3
`
`21-56093
`
`
`
`In response, plaintiffs argued that access to the copyrighted works combined
`
`with their substantial similarity to the infringing work was sufficient to satisfy the
`
`element of copying. But plaintiffs failed to actually identify or provide the district
`
`court with a copy of any work that was purportedly infringed, and thus the district
`
`court correctly concluded that no reasonable juror could evaluate whether the work
`
`was substantially similar such that it was copied.1 And when an allegedly infringed
`
`work was submitted with plaintiffs’ motion for reconsideration, it became clear that
`
`the infringed and infringing works were, as the district court ultimately held, “not
`
`remotely similar.” Further, plaintiffs’ only evidence of defendants’ access to the
`
`infringed work was the bare assertion that the work was available on plaintiffs’
`
`website, which was insufficient to create a dispute of fact as to access in the face of
`
`defendants’ contrary evidence. See Art Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d
`
`1138, 1143 (9th Cir. 2009) (“To prove access, a plaintiff must show a reasonable
`
`possibility, not merely a bare possibility, that an alleged infringer had the chance to
`
`view the protected work.”). Accordingly, the district court did not err in granting
`
`
`1
`On appeal, Traylor asserts that the allegedly infringed work was attached as
`an exhibit to a deposition transcript filed in support of OCIE’s motion for summary
`judgment. But the PowerPoint slides Traylor cites are the allegedly infringing work
`created by Gohary, not the infringed work purportedly created by plaintiffs. The fact
`that, even on appeal, Traylor is unable to clearly identify what work was purportedly
`infringed further demonstrates the correctness of the district court’s rulings.
`
`
`
`4
`
`21-56093
`
`
`
`defendants’ motions for summary judgment and denying plaintiffs’ motion for
`
`reconsideration.
`
` Traylor next argues that the district court erred by awarding attorney’s fees
`
`pursuant to the Copyright Act. See 17 U.S.C. § 505. The Copyright Act “grants
`
`courts wide latitude to award attorney’s fees based on the totality of circumstances
`
`in a case.” Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197, 203 (2016). Such an
`
`award is reviewed for abuse of discretion. See Maljack Prods., Inc. v. GoodTimes
`
`Home Video Corp., 81 F.3d 881, 889 (9th Cir. 1996). Here, the district court
`
`correctly identified the six non-exclusive factors to be considered and found that
`
`each weighed in favor of awarding attorney’s fees. Traylor simply asserts that the
`
`district court was wrong in making these findings but offers no real explanation as
`
`to why this is so. Accordingly, we hold that the district court’s award of attorney’s
`
`fees was not an abuse of discretion.
`
`Finally, Traylor argues that the district court abused its discretion by requiring
`
`him to personally satisfy a portion of the attorney’s fee award as a sanction.
`
`Imposition of sanctions pursuant to 28 U.S.C. § 1927 is appropriate “when an
`
`attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious
`
`claim for the purpose of harassing an opponent.” B.K.B. v. Maui Police Dep’t, 276
`
`F.3d 1091, 1107 (9th Cir. 2002) (quoting In re Keegan Mgmt. Co., Sec. Litig., 78
`
`
`
`5
`
`21-56093
`
`
`
`F.3d 431, 436 (9th Cir. 1996)). We review such an award for abuse of discretion.
`
`See Wages v. I.R.S., 915 F.2d 1230, 1235 (9th Cir. 1990).
`
`The district court’s imposition of sanctions was supported by substantial
`
`evidence in the record. The district court found that Traylor never produced two of
`
`the three allegedly copyrighted works that form the basis of this litigation, produced
`
`the third over a year after the case was commenced, and continued to litigate the case
`
`even though the work Traylor produced was nothing like the allegedly infringing
`
`work. From this, the district court concluded that “Traylor either deliberately refused
`
`to produce the alleged ‘works’ at the heart of this case or . . . he deliberately
`
`continued to litigate long after it became clear the ‘works’ never existed in the first
`
`place. In either scenario, his conduct is unreasonable and vexatious . . . [and] evinces
`
`bad faith.”
`
`The district court also identified numerous other instances of unreasonable
`
`conduct by Traylor. For example, Gohary had previously sought and obtained
`
`summary judgment because Traylor failed to respond to certain requests for
`
`admission that were then deemed admitted. The district court granted plaintiffs’ first
`
`motion for relief from judgment based on Traylor’s representation that then-
`
`unserved defendant OCIE had critical information. Traylor promised to “pursue this
`
`matter with diligence” going forward, but then made no attempt to depose OCIE and
`
`obtained no useful evidence from OCIE.
`
`
`
`6
`
`21-56093
`
`
`
`To date, Traylor has offered no valid explanation for the conduct described in
`
`the district court’s sanctions order. Instead, he argues on appeal that the positions he
`
`raised in the litigation were not entirely frivolous, and so sanctions were
`
`inappropriate absent a finding of an intent to harass. See B.K.B., 276 F.3d at 1107
`
`(“[R]eckless nonfrivolous filings, without more, may not be sanctioned.”). But even
`
`assuming arguendo that the case was not entirely frivolous from the outset and that
`
`at least some of the litigation positions Traylor initially advanced were non-
`
`frivolous, this fact is reflected in the fee award, which required Traylor only to pay
`
`those fees incurred after the district court granted plaintiffs’ first motion for relief
`
`from judgment. The district court did not abuse its discretion in concluding Traylor’s
`
`conduct past that point “multiplie[d] the proceedings in [this] case unreasonably and
`
`vexatiously.” 28 U.S.C. § 1927.
`
`AFFIRMED.
`
`
`
`7
`
`21-56093
`
`
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