Wolf et al v. Futures Explored, a California Corporation, dba "Futures Explored, Inc.", dba "Golden Hills Films" et al

Filing 54

ORDER re 34 Motion to Dismiss, 35 Motion to Strike. Amended pleadings due by 10/23/2017. Signed by Judge James Donato on 9/22/2017. (jdlc3S, COURT STAFF) (Filed on 9/22/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALISA WOLF, et al., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 12 Case No. 3:16-cv-03297-JD ORDER RE MOTION TO DISMISS AND MOTION TO STRIKE v. FUTURES EXPLORED, A CALIFORNIA CORPORATION, DBA “FUTURES EXPLORED, INC.”, DBA “GOLDEN HILLS FILMS”, et al., Re: Dkt. No. 34, 35 Defendants. 13 14 The operative complaint, Dkt. No. 32, brings four claims against defendants. Claims 1 and 15 2 allege copyright infringement. Id. at 14-19. Claims 3 and 4 allege violations of California’s 16 Unfair Competition Law (“UCL”), CAL. BUS. & PROF. CODE §§ 17200 et seq., and interference 17 with prospective economic relations. Id. at 19-23. 18 Plaintiff Wolf alleges that she is the registered copyright owner of two curricula titled 19 “Practical Film Vocational Program for People with Developmental Disability” (the “program 20 curriculum”) and “Actors for Autism Practical Film Program Proposal” (the “practical film 21 program”). Id. at 6-7. Claims 1 and 2 allege that defendants have published program guides 22 infringing on Wolf’s program curriculum and practical film program. 23 Defendant Futures Explored contends that plaintiffs have failed to state a claim because 24 any substantial similarities between their guides and Wolf’s curricula are generic. Dkt. No. 34 at 25 16. This is not persuasive. Plaintiffs have identified entire paragraphs in Wolf’s program 26 curriculum, as well as sentences and paragraphs in Wolf’s practical film program, that are 27 duplicated in Futures Explored’s “Practical Film and Media Workshop” program. See Dkt. No. 28 32-2 at 3; Dkt. No. 32-4 at 4, 9; Dkt. No. 32-16 at 3, 10. 1 Claim 3 and 4 allege violations of California law based on the same facts as the copyright 2 claim. In an effort to avoid preemption by the Copyright Act, see Kodadek v. MTV Networks, Inc., 3 152 F.3d 1209 (9th Cir. 1998), plaintiffs allege that defendants have made “fraudulent 4 misrepresentations, including inflating rates and records of attendance of their vendored film- 5 making program.” Dkt. No. 32 at 20, 22. 6 In our circuit, allegations of fraudulent conduct “sound in fraud” and must be pled with particularity under Rule 9(b). Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 8 2003); FTC v. D-Link Systems, No. 17-cv-00039-JD, 2017 WL 4150873, at *1-*2 (N.D. Cal. Sept. 9 19, 2017). Claims 3 and 4 are inadequate under Rule 9(b) because they neither provide “the who, 10 what, when, where and how of the misconduct charged,” Ebeid ex rel. United States v. Lungwitz, 11 United States District Court Northern District of California 7 616 F.3d 993, 998 (9th Cir. 2010), nor show why those facts are known only to the defendants, 12 Concha v. London, 62 F.3d 1493, 1503 (9th Cir. 1995). 13 Conclusion 14 Claims 3 and 4 are dismissed without prejudice. The motion to dismiss is denied in all 15 other respects. If plaintiffs would like to amend, they should file an amended complaint consistent 16 with this order by October 23, 2017. 17 18 19 Futures Explored’s motion to strike the operative complaint, Dkt. No. 35, is denied without prejudice. Futures Explored may renew its motion to strike after the deadline to amend passes. IT IS SO ORDERED. 20 21 Dated: September 22, 2017 22 23 JAMES DONATO United States District Judge 24 25 26 27 28 2

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