Opposition Brief — Maron Pictures Ltd., Petitioner v. Sam Eigen, et al.

Supreme Court briefOct 7, 2019

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NO. 19-259

In the

Supreme Court of the United States

MARON PICTURES LTD.,

Petitioner,

SAM EIGEN ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

Court of Appeal of California, Second Appellate District

BRIEF IN OPPOSITION

RICHARD L. CHARNLEY

COUNSEL OF RECORD

ANNIE RIAN

NICOLE W. UHLMANN

CHARNLEY RIAN LLP

12121 WILSHIRE BLVD., SUITE 600

LOS ANGELES, CA 90025

(310) 321-4300

RLC@CHARNLEYRIAN.COM

COUNSEL FOR RESPONDENTS

OCTOBER 7, 2019

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

1. How can any state court make conclusions in

relation to motion picture rights without referring to the

2. Pursuant to 17 U.S.C. § 301(a), if “all legal or

equitable rights” that a plaintiff asserts under state law

are “rights that are equivalent” to those protected

“within the general scope of copyright as specified by

section 106” then doesn’t the work involved fall within

the “subject matter” of the Copyright Act?

3. How can the State of California stop a Copyright

Owner from receiving bi-annual accounting and

reporting as legally required by Federal Copyright

Law (17 U.S.C. § 119(b)),and stop him receiving his

royalties owed?

4. How can the State of California forfeit a

§ 106, thus stopping him from exploiting his copyright protected work in the remaining global territories

pursuant to 17 U.S.C. § 106(3),which is constitutionally

protected under The Copyright Act of 1976 and under

The Berne Convention Implementation Act of 1988?

CORPORATE DISCLOSURE STATEMENT

Respondents Mainsail, LLC and Shoreline Entertainment, Inc. are private companies with no parent

corporations, and there is no publicly listed corporation

that own 10% or greater of their stock. Respondent

Sam Eigen is a real person.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

CORPORATE DISCLOSURE STATEMENT ............ ii

TABLE OF AUTHORITIES ...................................... vi

BRIEF IN OPPOSITION............................................ 1

OPINIONS BELOW ................................................... 1

OBJECTION TO JURISDICTION ............................ 2

STATUTORY PROVISIONS AND

CANONS INVOLVED .......................................... 2

STATEMENT .............................................................. 3

INTRODUCTION ....................................................... 5

A. The Trial Court’s Rulings ................................ 6

1. Application of the One-Year Contractual

Limitations Period ...................................... 6

2. Petitioner’s Defective Opening Brief

and Petition for Writ of Certiorari ........... 12

ARGUMENT ............................................................. 13

THE DECISION BELOW IS CORRECT .................. 16

A. Petitioner Cannot Raise New Arguments

on Appeal .................................................. 16

B. Appellate Court’s Opinion Is Circumscribed by Issues Raised in Opening Brief . 17

II. COPYRIGHT PREEMPTION DOES NOT APPLY

TO EXTRA-TERRITORIAL CONDUCT ................... 21

TABLE OF CONTENTS – Continued

Page

III. PETITIONER’S CLAIM THAT AN OBVIOUS

CONFLICT OF AUTHORITY IN THE QUESTIONS

PRESENTED IS MISLEADING AS THE QUESTIONS PRESENTED ARE NOT LOGICALLY

RELATED TO THE SUBJECT APPELLATE

OPINION ........................................................... 22

A. The California Court of Appeals Opinion

Does Not Conflict with the First, Second

and Ninth Circuit Courts of Appeals ....... 23

B. The Court of Appeals Opinion Does Not

Conflict with Federal Copyright Law

and the Well-Established Precedents of

the Second, Third, Fourth, Ninth and

Tenth Circuit Courts of Appeals .............. 29

C. Whether Petitioner’s Copyright Rights

Have Been Forfeited ................................. 34

D. Whether the Trial Court’s Determinations Infringe Upon Petitioner’s Copyright-Protected Work Such That the State

of California and the Judges Involved

in the Lower Courts Are Liable for

Contributory Copyright Infringement .... 36

CONCLUSION.......................................................... 39

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

Judgment of the Superior Court of the State of

California (December 9, 2016) .............Res.App.1a

Sales Agency Agreement

(April 20, 2009) .....................................Res.App.3a

TABLE OF AUTHORITIES

CASES

Page

Antonick v. Electronic Arts, Inc.,

841 F.3d 1062 (9th Cir. 2016) ........................... 35

Bateman v. Mnemonics, Inc.,

79 F.3d 1532 (11th Cir. 1996) ........................... 32

Bekele v. Lyft, Inc.,

918 F.3d 181 (1st Cir. 2019) .............................. 15

Brannan v. United Student Aid Funds, Inc.,

94 F.3d 1260 (9th Cir. 1996) ............................. 26

Cardinale v. Louisiana, 394 U.S. 437,

89 S.Ct. 1161, 22 L.Ed.2d 398 (1969) ............... 15

Caterpillar v. Williams,

482 U.S. 386 (1987) ..................................... 24, 28

Close v. Sotheby’s, Inc.,

No. 16-56234 (9th Cir. 2018) ............................. 26

Cooksey v. Alexakis,

123 Cal. App. 4th 246 (2004) ............................ 11

Drop Dead Co. v. S. C. Johnson & Son, Inc.,

326 F.2d 87 (9th Cir. 1963) ............................... 16

Ferruzzo v. Superior Court,

91 Cal. App. 3d 501 (1980) ................................. 12

Filmvideo Releasing Corp. v. Hastings,

668 F.2d 91 (2d Cir.1981) .................................. 22

Folio Impressions, Inc. v. Byer California,

937 F.2d 759 (2nd Cir. 1991) ............................ 30

Fonar Corp. v. Domenick,

105 F.3d 99 (2nd Cir. 1997) ........................ 30, 31

vii

TABLE OF AUTHORITIES—Continued

Page

Gamet v. Blanchard,

91 Cal. App. 4th 1276 (2001) ............................... 12

Great North R. Co. v. Alexander,

246 U.S. 276 (1918) ........................................... 24

Gully v. First Nat’l Bank,

299 U.S. 109 (1936) ........................................... 24

Hamil Am. Inc. v. GFI,

193 F.3d 92 (2nd Cir. 1999) .............................. 30

Hasbro Bradley, Inc. v. SparkleToys, Inc.,

780 F.2d 189 (2d Cir. 1985) ............................... 31

Home Depot U.S.A. Inc. v. Jackson,

No. 17-1471, slip op., (U.S. May 28, 2019)......... 26

Jennings v. State of Ill., 342 U.S. 104,

72 S.Ct. 123, 96 L.Ed. 119 (1951) ..................... 15

Johnson v. Armored Transp. of Cal., Inc.,

813 F.2d 1041 (9th Cir. 1987) ........................... 26

Lantzy v. Centex Homes,

31 Cal. 4th 363 (2003) ....................................... 18

Lopez v. Corporacion Azucareera de

Puerto Rico, 938 F.2d 1510 (1st Cir. 1991) ...... 20

Louisville & Nashville R. Co. v. Mottley,

211 U.S. 149 (1908) ............................................ 24

Mandell v. Superior Court,

67 Cal. App. 3d 1 (1977) .................................... 11

Manfredi & Levine v. Superior Court,

66 Cal. App. 4th 1128 (1998) ............................ 11

viii

TABLE OF AUTHORITIES—Continued

Page

McClaran v. Plastic Industries, Inc.,

97 F.3d 347 (9th Cir. 1996) ............................... 36

Merrell Dow Pharmaceuticals, Inc.

v. Thompson, 478 U.S. 804 (1986) .................... 24

Metro. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987) ....................................... 24, 26

Moore v. Kulicke & Soffa Industries, Inc.,

318 F.3d 561 (3d Cir. 2003) ............................... 37

National Secretarial Service, Inc. v. Frohlich,

21 Cal.App.3d 510 (1989) .................................. 21

OBB Personenverkehr AG v. Sachs,

577 U.S. ___, 136 S.Ct. 390,

193 L.Ed.2d 269 (2015) ............................... 33, 34

Overman v. Loesser,

205 F.2d 521 (9th Cir. 1953) ............................. 37

Peter Starr Prod. Co. v. Twin Continental

Films, Inc., 783 F.2d 1440 (9th Cir.1986) ........ 22

Reed Elsevier, Inc. v. Muchnick,

559 U.S. 164 (2010) ............................................. 32

Robert Stigwood Group, Ltd. v. O’Reilly,

530 F.2d 1096, cert. denied, 429 U.S. 848,

97 S.Ct. 135, 50 L.Ed.2d 121 (2d Cir. 1976) 21, 22

Scandinavian Satellite System, AS v. Prime

TV Ltd., 291 F.3d 839 (D.C. Cir. 2002)............. 32

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1941) ............................................. 26

TABLE OF AUTHORITIES—Continued

Page

Sickle v. Torres Advanced Enter. Sols., LLC,

884 F.3d 338 (D.C. Cir. 2018) ........................... 26

Subafilms, Ltd. v. MGM-Pathe Communications

Co., 24 F.3d 1088 (9th Cir. 1994) ................ 21, 22

Taylor v. Freeland & Kronz, 503 U.S. 638,

112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) ..... 16, 34

Teselle v. McLoughline,

173 Cal.App. 4th 156 (2009) ......................... 9, 19

The Fair v. Kohler Die & Specialty Co.,

228 U.S. 22 (1913) ............................................. 24

Urbont v. Sony Music Entm’t,

831 F.3d 80 (2nd Cir. 2016) .............................. 30

Wasatch Min. Co. v. Crescent Min. Co.,

148 U.S. 293, 13 S.Ct. 600,

37 L.Ed. 454 (1893) ............................................. 5

Webb v. Webb, 451 U.S. 493, 101 S.Ct. 1889,

68 L.Ed.2d 392 (1981) ......................................... 15

Whimsicality, Inc. v. Rubie’s Costume Co.,

Inc., 891 F.2d 452 (2d Cir. 1989) ...................... 31

STATUTES

17 U.S.C. § 101 .................................................... 16, 32

17 U.S.C. § 102 .......................................................... 27

17 U.S.C. § 103 .......................................................... 27

17 U.S.C. § 106 ................................................... passim

TABLE OF AUTHORITIES—Continued

Page

17 U.S.C. § 119(b) .................................................. i, 34

17 U.S.C. § 122 ............................................................ 5

17 U.S.C. § 301(a) ...................................... i, 25, 27, 28

17 U.S.C. § 411(a) ..................................................... 32

17 U.S.C. § 501 ............................................................ 5

17 U.S.C. § 506 ............................................................ 5

28 U.S.C. § 1257(a) ..................................................... 2

28 U.S.C. § 1331 ........................................................ 32

28 U.S.C. § 1338(a) ......................................... 25, 31, 32

28 U.S.C. § 1441 .................................................... 3, 26

28 U.S.C. § 1605(a)(2) ............................................... 33

JUDICIAL RULES

CA. St. Bar R. 5.101.1 ............................................... 29

Canon 1, California Code of Judicial Ethics ............ 38

Canon 2, California Code of Judicial Ethics ............ 38

Canon 3, California Code of Judicial Ethics ............ 38

Canon 6, California Code of Judicial Ethics ............ 38

Sup. Ct. R. 10 ................................................ 13, 14, 15

Sup. Ct. R. 14.1(g)(i) ................................................... 2

Sup. Ct. R. 15.4 ........................................................... 2

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

14B Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, FEDERAL PRACTICE

AND PROCEDURE: JURISDICTION 3D § 3722.1

(3d ed. 1998 and Supp. 2005) ............................ 28

BRIEF IN OPPOSITION

Respondents Sam (“Eigen”), Mainsail, LLC

(erroneously sued as Mainsail Entertainment, Inc.)

(“Mainsail”) and Shoreline Entertainment, Inc.

(“Shoreline”) (collectively herein “Respondents”)

respectfully submit that the Petition for Writ of Certiorari should be denied as Petitioner has failed to

present arguable grounds for review.

OPINIONS BELOW

There are no opinions issued by any circuit court

of appeal or district court in this matter. The opinion

at issue is Maron Pictures Ltd. v. Sam Eigen, B280738

(Cal. Ct. App. Feb. 15, 2019)—not certified for publication (Pet.App.13a-55a)1, which affirmed the

orders of the Los Angeles Superior Court, entered

February 10, 2016, granting Respondents’ motion for

summary adjudication as to six of seven causes of

action in Petitioner’s original complaint (Pet.App.60a73a) and December 9, 2016, granting Respondents’

motion for summary judgment as to all claims and

finding that Respondents were entitled to judgment

as a matter of law on all claims in Petitioner’s first

amended complaint (Pet.App.57a-58a).

1 “Pet.” refers to the petition for writ of certiorari. “Pet.App.” refers

to the appendix to the petition. “Res.” refers to the respondents’ brief

in opposition. “Res.App.” refers to the appendix to the brief in opposition.

OBJECTION TO JURISDICTION

The California Court of Appeal entered its opinion

on February 15, 2019. (Pet.App.13a-55a). A petition for

rehearing was denied on March 5, 2019. (Pet.

App.11a). A petition to transfer was denied on March

8, 2019. (Pet.App.6a). A petition for transfer of appellate division case was denied on March 14, 2019.

(Pet.App.4a). A petition for review to the California

Supreme Court was denied on May 15, 2019 (Pet.

App.2a).

A petition for writ of certiorari was filed on May

29, 2019. Petitioner purports to invoke the jurisdiction

of this Court under 28 U.S.C. § 1257(a).

Per Sup. Ct. R. 15.4, Respondents object to Jurisdiction. For reasons further detailed in the Argument

(Res.13), the Petitioner did not raise the federal

question in the Court of Appeal of California, Second

Division, and is therefore barred from raising it in this

Court. The petition fails the standard set out in Sup.

Ct. R. 14.1(g)(i) which requires specific citation to the

instance when the federal question was raised at each

stage of the case.

STATUTORY PROVISIONS AND

CANONS INVOLVED

Relevant provisions of the Copyright Act (17

U.S.C.) are reproduced at Pet.2-7.

Relevant provisions of the United States Supreme

Court Rules are reproduced at Res.XX.

Relevant provisions of the federal removal statute

(28 U.S.C. § 1441 et seq.) are reproduced at Res.XX,

fn. 14.

Relevant provisions of the California Code of

Judicial Ethics are reproduced at Res.XX, fn. 21.

STATEMENT

The legal relationship of Petitioner, on the one

hand, and Respondent Mainsail/Shoreline, on the other

hand, was defined by a Sales Agency Agreement (the

“SAA”) that the parties entered in April 2009. The

SAA appointed Mainsail/Shoreline as sales agent for

the film Strength and Honour (the “Film”).

In 2010, Petitioner filed an arbitration demand

with the International Film and Television Alliance

(“IFTA”) as required by the SAA. In the demand,

Petitioner alleged damages in connection with Respondents’ Mainsail/Shoreline’s activities as Petitioner’s sales agent. Petitioner chose not to include any

Petitioner deliberately chose (i.e. refused) not to not

pay the required fees.

Two years later in 2013, Petitioner filed suit, in

California state court, alleging identical claims as in the

IFTA claim—all state law causes of action. Petitioner

chose not to include any copyright claims in its complaint.

After engaging in discovery, Respondents sought

summary adjudication to dispose of certain claims

asserted in the complaint. Although Petitioner opposed

that motion, Petitioner never raised any copyright

claims or any argument that federal copyright law

should apply to its claims or that the California

courts should somehow be divested of jurisdiction on

account of copyright preemption. After the trial court

granted summary adjudication as to most of Petitioner’s

state law claims, Petitioner successfully moved to

amend its complaint in 2016 to assert additional claims.

But, in the amended complaint Petitioner again raised

no copyright claims.

Fully represented by counsel during an ensuing

state court bench trial, Petitioner again raised no

its preliminary decision in favor of Respondents and

invited objections or modifications thereto, Petitioner

was silent. In so doing, Petitioner waived any objections

and/or right to request modification of the trial court’s

preliminary decision or to invoke copyright claims

under federal copyright law.

Based on the bench trial court’s findings, Respondents moved for summary judgment on Petitioner’s entire first amended complaint, and, again, Petitioner raised no copyright issues. The motion was

granted and judgment, as a matter of law, was

entered in favor of Respondents. (Pet.App.55a;

Res.App.22a)

Hence, Petitioner had no less than seven bites at

the proverbial apple to invoke some form of copyright

protection at the trial court level, but Petitioner

failed to do so. Instead, Petitioner sought to insert

appeal and without any reference to a trial court evidentiary record.2 Petitioner’s procedural manipulation

is forbidden as a matter of law. Wasatch Min. Co. v.

Crescent Min. Co., 148 U.S. 293, 300, 13 S.Ct. 600,

602, 37 L.Ed. 454 (1893) (“The supreme court of the

territory rightfully held that the defendant should

have raised the question in the trial court, where

ample power exists to correct and amend the pleadings, and not having done so, but having gone to trial

on the merits, the defendant was precluded from

assigning error for matters so waived.”).

INTRODUCTION

Each of the five (5) “questions presented” in the

subject writ purportedly concern the Copyright Act;

however, Petitioner never asserted any copyright

claims at the trial court level. Never. In an effort to

show error on appeal, Petitioner made repeated references to “Federal Copyright Law (17 U.S.C. §§ 106,

106A, 122, 501, 506)”3 and to its “certificate of copyright.”4 However, the appellate court found nothing in

the record to support Petitioner’s claim that the subject copyright certificate had been admitted into evidence.5 Moreover, and more importantly, it held that

2 Pet.19, fn. 2.

3 Id.

4 Id.

5 Id.

“[Petitioner] may not raise Federal Copyright Law for

the first time on appeal.”6

Thus, Petitioner has made numerous stabs at

redress, each of which failed. Petitioner was intentionally unsuccessful in the arbitral arena. Petitioner

was unsuccessful in obtaining redress in state court

thereafter; Petitioner was fruitless in showing error

on appeal, as well as in seeking reconsideration of its

appellate opinion; Petitioner failed in seeking a

transfer; and, finally, Petitioner was unsuccessful in

its attempt to have the California Supreme Court

grant its Petition for Review.7

The Trial Court’s Rulings

1. Application of the One-Year Contractual Limitations Period

The SAA contained a one-year internal claims

limitation requiring that claims regarding the SAA

be brought “within one year of becoming aware of the

claim” (herein “the Contractual Limitations Period”).

In its writ request, Petitioner admits that “[d]isputes

arose between the parties within a few months of

executing the SAA, but [Petitioner] did not file [its

complaint] until four years later.” (Pet.14). Petitioner

conveniently fails to inform this Court that Petitioner

actually filed its complaint years after expiration of

the Contractual Limitations Period.

6 Id.

7 California Supreme Court denied Petitioner’s petition for review

on May 15, 2019.

The truth is thus: on October 6, 2010, Petitioner

filed its demand for IFTA arbitration as required by

the SAA (Pet.App.17a); then, Petitioner allowed the

demand to stagnate for months because Petitioner

deliberately refused to pay the filing fee required by

IFTA; finally, after asking Petitioner to pay the fees,

the IFTA arbitral agent advised that if Petitioner did

not pay by a “date certain,” the arbitration claim

would be dismissed; and, Petitioner then just chose

not to pay, and IFTA dismissed the claim.

Hence the filing date of the IFTA demand (October

6, 2010) became a “knowledge date” for purpose of

starting the Contractual Limitations Period. Accordingly, the Contractual Limitations Period (to which

Petitioner’s claims are subject) began to “run” on October 6, 2010 and expired one year later on October 6,

2011. Petitioner, however, did not file its California

court complaint until March 22, 2013 (Pet.13), by

which time any of Petitioner’s claims that arose prior

to October 6, 2010, were time-barred.

Applying the Contractual Limitations Period, the

trial court granted summary adjudication on six of

Petitioner’s seven causes of action, leaving the declaratory relief accompanied by an “accounting” cause of

action, limited to the period of time from March 22,

2012 to March 22, 2013 (the date of filing), as the

only remaining matter for the trial court to consider.8

8 It is worth noting that Petitioner’s claims actually accrued as

of January 30, 2010 according to Petitioner’s admission, both in

its opening brief and in its Petition before this Court. (Pet.9,

17). Thus, Petitioner’s claims actually became time-barred as

early as January 2011, which means that Petitioner’s claims

1. Petitioner’s Declaratory Relief Claim Was

Rejected After Trial

Petitioner sought a declaration that Respondent

Mainsail’s alleged breach of its obligation to provide

Petitioner with periodic accounting statements

(showing revenue generated by the Film) entitled

Petitioner to terminate or rescind the SAA. (Pet.

App.42a). This issue was the subject of a bench trial.

Trial court held Petitioner’s declaratory relief claim

was technically deficient, stating that “[t]o establish

a claim for declaratory relief, [Petitioner] needs to

show that there is some uncertainty with respect to

the parties’ obligation under the SAA that requires

the Court to resolve.” (Pet.App.44a). Because there

was no uncertainty in the SAA, Petitioner naturally

had no “evidence” thereof and, as the trial court

observed, presented none. The trial court, thus,

found Petitioner’s declaratory relief action had failed.

On review, the appellate court, bound by the

record, affirmed the trial court’s holding, finding that

Petitioner had failed to establish by a preponderance

of the evidence that Respondent Mainsail had violated

the terms of the SAA. (Pet.App.44a). Specifically:

Paragraph 12.2 of the SAA obligated Respondent

Mainsail to provide Petitioner with statements of

Gross Proceeds only after delivery [of all of the “film

elements” required by the SAA] was complete

(Res.App.8a); the evidence established that Petitioner

never completed delivery (Pet.App.43a); and thus,

Respondent Mainsail had no contractual obligation to

would have been time-barred under the Copyright Act’s 3-year

statute of limitations period.

provide Petitioner with statements of Gross Proceeds.

(Pet.App.47a)

2. Petitioner’s Equitable Accounting Claim

Fails

The trial court also determined whether Petitioner

was entitled to an accounting on equitable grounds.

The trial court held that “[a] plaintiff bringing a

cause of action for an equitable accounting has the

burden of showing “some balance is due the plaintiff

that can only be ascertained by an accounting.”

(Pet.App.50a (citing Teselle v. McLoughline, 173

Cal.App. 4th 156, 179 (2009)). However, as the trial

court stated, Petitioner submitted no evidence that

Respondents retained any revenues generated from

selling/licensing the Film after March 22, 2012 (one

year before Petitioner filed its complaint). (Pet.App.48a)

(likewise, the appellate court found no evidence in

the record to support “even an inference that [Respondents] must have received revenue from [the 13

showings on Turner Classic Movies (TCM) in Europe

from 2014 to 2016].”). (Pet.App.50a). Respondents, on

the other hand, established that Respondent Mainsail

had not earned any revenue from licensing the Film

since 2010. (Pet.App.43a) Thus, the trial court found

in favor of Respondents on Petitioner’s equitable

accounting claim. (Pet.App.50a) Having found no

showing of clear error in the trial court’s findings, the

appellate affirmed the trial court’s ruling.

(Pet.App.50a).

3. Petitioner’s Argument that the Trial Court’s

Ruling on the Declaratory Relief and

Accounting Claims Amounts to a Forfeiture

is Unsound

Petitioner argued, on appeal, that the trial court’s

ruling on Petitioner’s declaratory relief and accounting

causes of action indirectly amounted to a forfeiture.

This faulty thinking demonstrates Petitioner’s misunderstanding of the trial court’s ruling. To be clear

—“[t]he trial court’s ruling resulted in [Petitioner]

having no contractual right to receive periodic accounting statements from [Respondents].” (Pet.App.47a)

(emphasis added). “[Petitioner] still ha[d] a contractual right to obtain financial information from

[Respondents].” Id. The SAA put the onus on Respondents to provide periodic accounting statements to

Petitioner once delivery was complete. Where delivery

was not complete, the SAA put the onus on Petitioner

to obtain financial information from Respondents.

(Pet.App.47a). Thus, the appellate court found, “the

trial court ruling did not result in [Petitioner] having

no access to financial information about its film’s

licensing, it merely shifted the cost and initiative

from [Respondents] to [Petitioner].” (Pet.App.47a).

The appellate court held that “[t]o the extent [Petitioner] contends the court’s ruling means it lost all

rights to the [F]ilm forever, [Petitioner] is mistaken.”

(Pet.App.48a).

4. Petitioner’s Argument that the Trial Court

Erred in Granting Petitioner’s Counsel’s

Motion to Withdraw and Denying Petitioner’s Informal Request to Continue the

Hearing on Respondents’ Motion for

Summary Judgment/Adjudication of Petitioner’s First Amended Complaint Fails

Petitioner’s contention that the trial court erred

in granting Petitioner’s counsel’s motion to withdraw

and in denying Petitioner’s informal request to continue the hearing on Respondents’ motion for summary

judgment/adjudication of Petitioner’s first amended

complaint is flawed. (Pet.App.51a). The appellate

court found no abuse of discretion9 by the trial court,

identifying numerous bases to support the trial court’s

determination of the existence of a complete breakdown

of the attorney-client relationship. (Pet.App.49a-51a).

The appellate court found unpersuasive Petitioner’s

argument that the “trial court should nonetheless

have required [Petitioner’s counsel] to continue his

representation until [Petitioner] found another attorney, because a corporation may not represent itself”.

(Pet.App.52a). “[A]n order [granting a motion to withdraw as attorney of record] puts pressure on the

corporation to obtain new counsel, or risk forfeiting

important rights through nonrepresentation.” (Pet.App.

52a (citing Ferruzzo v. Superior Court, 91 Cal. App.

9 Abuse of discretion is standard of review on order granting

withdrawal and on order denying request for continuance of a

motion for summary judgment. (Manfredi & Levine v. Superior

Court, 66 Cal. App. 4th 1128, 1133 (1998); Mandell v. Superior

Court, 67 Cal. App. 3d 1, 4 (1977)); and Cooksey v. Alexakis,

123 Cal. App. 4th 246, 254 (2004), respectively).

3d 501, 504 (1980); Gamet v. Blanchard, 91 Cal. App.

4th 1276, 1284, fn. 5 (2001))). Petitioner had knowledge that it needed to engage new counsel three

months before Respondents’ motion for summary

judgment hearing.10 In choosing not to engage and

retain new counsel, Petitioner bore the risk of forfeiting

important rights, such as continuing the hearing on

Respondents’ motion for summary judgment/adjudication and raising federal copyright claims.11

Petitioner claimed that it could have had raised

federal copyright claims at the hearing on Respondents’

motion for summary judgment/adjudication of Petitioner’s first amended complaint. Because such argument was not before the trial court, the trial court did

not have occasion to entertain this argument. Moreover, the raising of such claims would have necessitated Petitioner amending its complaint, which, the

appellate court reasoned, was “highly unlikely” given

the late date. (Pet.App.54a).

2. Petitioner’s Defective Opening Brief and

Petition for Writ of Certiorari

Petitioner argues that the trial court erred in its

ruling and that the appellate court erred in affirming

the trial court’s ruling. However, Petitioner ignores

10 On September 7, 2016, Petitioner’s counsel filed a substitution

of attorney form that showed Petitioner representing itself. On

October 21, 2016, the trial court granted Petitioner’s counsel’s

motion to be relieved.

11 The appellate court held that “Raising a claim under Federal

amending its complaint, and it is unlikely such an amendment

would have been permitted at such a late date.” Pet.App.54a.

the fact that both the trial court and the appellate

court are bound by the trial record. Petitioner’s

opening brief (before the California Court of Appeals)

and the subject writ are rife with defects, including:

lack of citations to the record to support factual

assertions; incorrect citations to the record; failure to

distinguish between exhibits identified during trial

and those exhibits that were actually admitted as

evidence during trial; and, citations to the record

that relied on inadmissible evidence and that were

not properly part of the record.

ARGUMENT

Rule 10 of the United States Supreme Court Rules

concerns considerations governing review on writ of

certiorari. It states as follows:

Review on a writ of certiorari is not a matter of

right, but of judicial discretion. A petition for a

writ of certiorari will be granted only for compelling reasons. The following, although neither

controlling nor fully measuring the Court’s discretion, indicate the character of the reasons

the Court considers:

(a) a United States court of appeals has entered

a decision in conflict with the decision of

another United States court of appeals on

the same important matter; has decided an

important federal question in a way that

conflicts with a decision by a state court of

last resort; or has so far departed from the

accepted and usual course of judicial proceedings, or sanctioned such a departure by

a lower court, as to call for an exercise of

this Court’s supervisory power;

(b) a state court of last resort has decided an

important federal question in a way that

conflicts with the decision of another state

court of last resort or of a United States

court of appeals;

appeals has decided an important question

of federal law that has not been, but should

be, settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely

granted when the asserted error consists of

erroneous factual findings or the misapplication

of a properly stated rule of law.

United States Supreme Court Rule 10.

The appellate opinion does not address any federal

law. It does not conflict with another the decision of

another state court of last resort or of a United

States court of appeals. It did not decide an important

question of federal law that has not been, but should

be, settled by this Court, nor did it decide an important

federal question in a way that conflicts with relevant

decisions of this Court. Thus, there is no basis for

this Court to address the merits of Petitioner’s claim

that federal copyright law (and presumably preemption)

should have applied to its claims.

Sub-section (a) of Rule 10 is inapplicable as the

case at issue was never before a U.S. court of appeals.

Sub-sections (b) and (c) of Rule 10 are inapplicable as

no federal question was decided by the California

Court of Appeals, and, with respect to sub-section (b),

the California Supreme Court never issued a decision

in this case.

This Court has long held that it will not decide

cases where the sole federal question has never been

raised, preserved, or passed upon in the state court

below. Webb v. Webb, 451 U.S. 493, 498-499, 101 S.Ct.

1889, 1893, 68 L.Ed.2d 392 (1981) (“We cannot conclude

on this record that petitioner raised the federal claim

that she now presents to this Court at any point in

the state-court proceedings. Thus, we confront in this

case the same problem that arose in Cardinale v.

Louisiana, 394 U.S. 437, 438, 89 S.Ct. 1161, 1162, 22

L.Ed.2d 398 (1969): ‘Although certiorari was granted

to consider this question, . . . the sole federal question

argued here has never been raised, preserved, or passed

upon in the state courts below.’ Citing a long history

of cases, this Court held that ‘[t]he Court has consistently refused to decide federal constitutional issues

raised here for the first time on review of state court

decisions.’ Id. (“We have had several occasions to

repeat this rule since then, and we see no reason to

deviate from it now.”); (Jennings v. State of Ill., 342

U.S. 104, 108-109, 72 S.Ct. 123, 126, 96 L.Ed. 119

(1951) (“Where, as here, a federal claim can be raised

at the trial, it may be forfeited by failure to make a

timely assertion of the claim.”); (Bekele v. Lyft, Inc.,

918 F.3d 181, 186-187 (1st Cir. 2019) (“[Appellant]

waived the contract formation issue by not raising it

in his opening brief. It is well settled that ‘we do not

consider arguments for reversing a decision of a district court when the argument is not raised in a

party’s opening brief.’”)

THE DECISION BELOW IS CORRECT

A. Petitioner Cannot Raise New Arguments on

Appeal

Petitioner raised a new theory on appeal—that

the Copyright Act should have applied to its claims.

However, Petitioner never invoked any reference to

any provision of Federal Copyright Law (17 U.S.C.

§§ 101, et seq.) and never asserted any claim related

to copyright infringement at the trial court level.

Accordingly, Petitioner cannot raise this new theory

on appeal.

In its ordinary course, this Court “does not decide

questions not raised or resolved in the lower court[s].”

Taylor v. Freeland & Kronz, 503 U.S. 638, 645-646,

112 S.Ct. 1644, 1649, 118 L.Ed.2d 280 (1992). This

Court’s rationale for doing so is to “help to maintain

the integrity of the process of certiorari.” Id. at 646.

“The Court decides which questions to consider through

well-established procedures; allowing the able counsel

who argue before us to alter these questions or to

devise additional questions at the last minute would

thwart this system.” Id. at 646. A claim that has not

been properly presented before the trial court cannot

be argued for the first time in the higher courts. Drop

Dead Co. v. S. C. Johnson & Son, Inc., 326 F.2d 87,

95 (9th Cir. 1963) (“On this appeal and for the first

time, appellants claim that appellee should be thrown

out of court on the ground of unclean hands because

of alleged violations of the anti-trust laws. Since this

issue was not raised below, it cannot be raised here.”).

Because Petitioner failed to raise copyright claims at

the trial court level, it cannot raise copyright claims

on appeal.

B. Appellate Court’s Opinion Is Circumscribed

by Issues Raised in Opening Brief

The appellate court’s opinion is circumscribed by

the six issues framed by Petitioner in its Opening

Brief. The appellate court ruled on these six issues,

as follows:

1. Appellate Court Rejects Petitioner’s

Argument That Contractual Limitations

Period Had Not Passed

On Petitioner’s first claim that the Contractual

Limitations Period12 had not passed on any claim, the

appellate court, limited to issues that Petitioner

raised and briefed in its opening brief, found that

“[t]he provisions of the SAA as a whole confirm paragraph 17.3 required [Petitioner] to bring and maintain

a civil action within one year of knowledge of the

violation on which the action is based.” (Pet.App.30a).

2. Appellate Court Rejects Petitioner’s Argument That Respondents Should Be Equitably Estopped from Relying on the Contractually Shortened Limitations Period

On Petitioner’s second claim that Respondents

should be equitably estopped from relying on the

12 Petitioner erroneously uses the term “statute of limitations”

to describe the Contractual Limitations Period.

Contractual Limitation Period, the appellate court,

again limited to issues that Petitioner raised and

briefed in its opening brief, found that Respondents’

alleged insincerity about mediating the claims was

apparent by the end of January 2011, well before the

one-year contractual limitations period expired.

(Pet.App.36a). The appellate court concluded that

equitable estoppel did not apply as a matter of law,

noting that the application of equitable estoppel requires a plaintiff to proceed diligently once the truth

is revealed. (Pet.App.34a) (citing Lantzy v. Centex

Homes, 31 Cal. 4th 363, 384-385 (2003)). The appellate court held that Petitioner’s inactivity in waiting

to file suit for two years was not diligence as a

matter of law. (Pet.App.36a, fn. 6) (emphasis added).

3. Appellate Court Rejects Petitioner’s Argument That the Trial Court Erred in Deciding Petitioner’s Declaratory Relief Cause

of Action

On Petitioner’s third claim related to the equitable

claims of declaratory relief, the trial court found that

Petitioner had not completed delivery of the Film,

stating that “[i]t is simply not disputed [Petitioner]

could not, and did not, make complete delivery as required by the Delivery Schedule. [Testimony of Mark

Mahon and Sam Eigen].” (Pet.App.43a). Having failed

to establish that Petitioner had completed delivery,

Petitioner could not establish by a preponderance of

the evidence that Respondents had violated the terms

of the SAA, which were contingent upon complete

delivery. Therefore, Petitioner’s declaratory relief

claim seeking a declaration that Respondents’ breach

entitled Petitioner to terminate or rescind the SAA

failed.

4. Appellate Court Rejects Petitioner’s Argument That the Trial Court Erred in Deciding Petitioner’s Equitable Accounting

Cause of Action

Petitioner’s opening brief also sought to show error

in the trial court’s ruling that Petitioner was not

equitably entitled to an accounting by Respondents. The

trial court found that Petitioner’s claims were limited

to revenues received by Respondents after March 22,

2012 (i.e. within one year of filing suit against Respondents) and that Petitioner had failed to produce

any evidence that Respondents received licensing

revenue from the Film after March 2010. Thus, the

trial court concluded, “[Petitioner] has failed to establish that it is entitled to any accounting from [Respondents].” (Pet.App.48a).

The appellate court found that substantial evidence

existed to support the trial court’s finding that Petitioner had not met its burden of showing “some balance

is due the [Petitioner] that can only be ascertained

by an accounting.” (Pet.App.49a) (citing Teselle v.

McLoughlin, 173 Cal.App.4th 156, 179 (2009)).

5. Appellate Court Rejects Petitioner’s

Argument That the Trial Court Erred in

Granting Petitioner’s Counsel’s Motion to

Withdraw and in Denying Petitioner’s

Informal Request to Continue the Hearing

on Respondents’ Motion for Summary

Judgment/Adjudication

On Petitioner’s fifth claim that the trial court

improperly granted Respondents’ motion for summary

judgment/adjudication of Petitioner’s first amended

complaint, the appellate court found no abuse of discretion in the trial court’s finding that a complete

breakdown in the attorney-client relationship had

arisen or in the trial court’s denial of Petitioner’s

informal request for a continuance in light of Petitioner’s failure to have secured counsel by December 9,

2016, the hearing date on Respondents’ motion for

summary judgment. The evidence established that

Petitioner knew that it needed to engage and retain

counsel as early as September 7, 2016. Having chosen

not to engage and retain counsel, Petitioner again

bore the risk that such decision engendered.13

13 Of note, in California, “[t]he failure of the nonmoving party to

respond to a summary judgment motion does not in itself justify

summary judgment. Rather, before granting an opposed summary judgment, the court must inquire whether the moving

party has met its burden to demonstrate undisputed facts entitling

it to summary judgment as a matter of law.” Lopez v. Corporacion

Azucareera de Puerto Rico, 938 F.2d 1510 (1st Cir. 1991).

6. Appellate Court Rejects Petitioner’s Argument That Petitioner Should Have Been

Entitled to Augment the Record

On Petitioner’s sixth claim that Petitioner’s

motion to augment should be granted because the trial

court lost the original exhibits, the appellate court

correctly held that “[i]n the absence of a reporter’s

transcript, we are unable to review the trial court’s

rulings excluding [Petitioner’s] exhibits, and so those

exhibits have no relevance on appeal.” (Pet.App.43a).

“‘It is elementary and fundamental that on a clerk’s

transcript appeal the appellate court must conclusively

presume that the evidence is ample to sustain the

findings . . . .’” (Pet.App.39a) (citing National Secretarial Service, Inc. v. Frohlich, 21 Cal.App.3d 510,

521-522 (1989)).

II.

EXTRA-TERRITORIAL CONDUCT

“United States copyright laws do not have

extraterritorial effect.” Subafilms, Ltd. v. MGM-Pathe

Communications Co., 24 F.3d 1088, 1094-1098 (9th Cir.

1994) (en banc). Thus, “each of the rights conferred

under the five section 106 categories must be read as

extending ‘no farther than the [United States’] borders.”

Id. at 1094 (See, e.g., Robert Stigwood Group, Ltd. v.

O’Reilly, 530 F.2d 1096, 1101 (2d Cir.), cert. denied,

429 U.S. 848, 97 S.Ct. 135, 50 L.Ed.2d 121 (1976)

(holding that no damages could be obtained under the

preliminary steps were taken within the United States

and stating that “[t]he Canadian performances, while

they may have been torts in Canada, were not torts

here”); see also Filmvideo Releasing Corp. v. Hastings,

668 F.2d 91, 93 (2d Cir.1981) (reversing an order of

the district court that required the defendant to

surrender prints of a film because the prints could be

used to further conduct abroad that was not proscribed

by United States copyright laws)). Thus, “infringing

actions that take place entirely outside the United

States are not actionable.” Peter Starr Prod. Co. v. Twin

Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.

1986) (citing Robert Stigwood Group, Ltd. v. O’Reilly,

530 F.2d 1096, 1101 (2d Cir.), cert. denied, 429 U.S. 848,

97 S.Ct. 135, 50 L.Ed.2d 121 (1976)). This applies to

preemption of copyright claims as well. Subafilms,

supra, at 1091 (citing Peter Starr, supra).

Here, the SAA provided that “[t]he territory in

which [Mainsail] may exercise its rights hereunder is

the entire world, excluding the North America and

Ireland (the “Territory”). (Res.App.2a). Thus, Respondents’ grant of license of the Film was limited to

territories outside the United States. Thus, there is

no basis for this Court to address the merits of Petitioner’s alleged copyright claims because any alleged

infringement occurred outside the United States.

III. PETITIONER’S CLAIM THAT AN OBVIOUS CONFLICT

OF AUTHORITY IN THE QUESTIONS PRESENTED IS

MISLEADING AS THE QUESTIONS PRESENTED ARE

NOT LOGICALLY RELATED TO THE SUBJECT

APPELLATE OPINION

Petitioner claims that this Court should grant

certiorari because “there is an obvious conflict of

authority in the questions presented.” (Pet.19). However, the issue is not whether there is an obvious

conflict of authority in the questions presented; rather,

the issue is whether there is an obvious conflict of

authority in the questions presented that derive from

the subject appellate opinion. The trial court’s grounds

of decision to support its judgment and the appellate

court’s affirmation thereof do not concern copyright

law whereas each of the subject questions presented

does. Moreover, Petitioner neither raised nor preserved

review due to this “obvious” procedural defect.

A. The California Court of Appeals Opinion Does

Not Conflict with the First, Second and Ninth

Circuit Courts of Appeals

Petitioner claims that review by this Court is

warranted because the subject appellate opinion

conflicts with previous decisions of the First, Second

and Ninth Circuits. (Pet.20). To reiterate, the appellate

opinion does not concern federal copyright law or

Petitioner in section “I.A.” of the writ concern copyright

preemption (Pet.App.20a-24a). Thus, there is no

conflict.14

1. Well Pleaded Complaint Doctrine

Petitioner’s complaint and first amended complaint

fail to raise any federal claims, including, specifically,

any copyright claims. Petitioner is master of its complaint—not only substantively (in terms of content) but

also procedurally (in terms of where to file). Petition14 Parenthetically, Petitioner’s reference to the Second Circuit

is confusing as there is no citation to the Second Circuit regarding preemption under the Copyright Act in Section I.A. Rather,

the only citation is to a California district court case that, in

turn, cites a New York district court case.

er failed to assert any federal claims, which is ostensibly why Petitioner’s complaint, which was limited

to state law claims, was filed in California state

court. Having failed to assert any copyright claim in

its complaint or first amended complaint, Petitioner

posits that the mere introduction of a copyright

certificate during trial or discovery somehow magically

converted Petitioner’s claim to a federal copyright

law claim. Petitioner is wrong. First, to be part of the

record, a copyright certificate, properly authenticated,

must be admitted. Assuming arguendo that this had

happened (it did not), producing the certificate does

not render each cause of action in Petitioner’s complaint a copyright claim.

Under the long established “well pleaded complaint” rule, a cause of action arises under federal law

only when the face of the complaint raises a federal

issue. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63

(1987) (citing Gully v. First Nat’l Bank, 299 U.S. 109

(1936); Louisville & Nashville R. Co. v. Mottley, 211

U.S. 149 (1908)); Caterpillar v. Williams, 482 U.S. 386,

392 (1987) (The well-pleaded complaint rule “makes

the plaintiff the master of the claim; he or she may

avoid federal jurisdiction by exclusive reliance on

state law.”). “Jurisdiction may not be sustained on a

theory that the plaintiff has not advanced.” Merrell

Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804,

809, n. 6 (1986); see also, The Fair v. Kohler Die &

Specialty Co., 228 U.S. 22, 25 (1913) (“Of course, the

party who brings a suit is master to decide what law

he will rely upon”) (Holmes, J.); see also Great North

R. Co. v. Alexander, 246 U.S. 276, 282 (1918) (“[T]he

plaintiff may by the allegations of his complaint

determine the status with respect to removability of

a case”).

Thus, this Court should not entertain Petitioner’s

writ because Petitioner failed, at the trial court level,

to allege copyright claims and failed to make any

argument that federal copyright law applied to its

claims.

2. Preemption

Petitioner claims that the trial court erred in not

applying federal copyright law to its claims despite

not pleading federal copyright claims. (Pet.23 (“[T]he

judge should have preempted the case pursuant to 17

U.S.C. § 301(a) and 28 U.S.C. § 1338(a) . . . .”)). Petitioner further contends that the trial court’s ruling “set

incorrect parameters for all the other wrong determinations that followed.” (Pet.23-24). What Petitioner

argues poorly is that complete preemption should

have applied to its claims. However, even here, at this

Court of last resort, Petitioner fails to address the

complete preemption doctrine at all.

Nonetheless, Respondents will address the narrow

inquiry of whether Petitioner’s state law claims are

inherently federal such that the complete preemption

doctrine mandates the Copyright Act apply to its claims.

a. Ordinary or Defensive Preemption

Ordinary preemption or “defensive preemption”

concerns substantive jurisdiction and affords a

defendant a basis to remove a state law action, containing state law claims, to federal court. Ordinary

preemption is not available to Petitioner, who was

plaintiff in the underlying action, because federal

preemption is an affirmative position available to

defendants. Metro. Life Ins. Co. v. Taylor, 481 U.S.

58, 63 (1987); Close v. Sotheby’s, Inc., No. 16-56234

(9th Cir. 2018) (citing Sickle v. Torres Advanced

Enter. Sols., LLC, 884 F.3d 338, 345 (D.C. Cir. 2018)

(“Preemption ordinarily is an affirmative defense

forfeitable by the party entitled to its benefit.”)); see

also, Brannan v. United Student Aid Funds, Inc., 94

F.3d 1260, 1266 (9th Cir. 1996); Johnson v. Armored

Transp. of Cal., Inc., 813 F.2d 1041, 1043-44 (9th Cir.

1987). The preemption doctrine affords a defendant

the right to remove a cause of action15 that otherwise

appears to lack federal question jurisdiction by asserting

that federal law preempts the state law claim.

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100

(1941); Home Depot U.S.A. Inc. v. Jackson, No. 17-1471,

slip op. at 1 (U.S. May 28, 2019).16

In the present case, it is Petitioner, plaintiff in

the underlying action, who seeks a determination

that its state-law causes of action are preempted by

federal copyright law. Petitioner fails to provide any

15 The removal statute, 28 U.S.C. § 1441, provides: “(a) Generally.—Except as otherwise expressly provided by Act of Congress,

any civil action brought in a State court of which the district

courts of the United States have original jurisdiction, may be

removed by the defendant or the defendants, to the district court

of the United States for the district and division embracing the

place where such action is pending.” (emphasis added).

16 Justice Thomas, writing for a five-Justice majority that included

Justices Ginsburg, Breyer, Sotomayor and Kagan, noted that

neither the general removal statute nor the removal provision

of the Class Action Fairness Act (CAFA) provides any support

for the theory that the term “defendant” in those statutes also

encompasses “counterclaim defendant.” Home Depot, supra.

authority that suggests that a plaintiff is entitled to

have its state-law causes of action adjudicated through

the lens of federal copyright law despite failing to

plead federal copyright claims and despite failing to

raise such argument at any time at the trial court level.

b. Complete Preemption

Section 301 of the Copyright Act provides:

On and after January 1, 1978, all legal or

equitable rights that are equivalent to any

of the exclusive rights within the general

scope of copyright as specified by section

106 in works of authorship that are fixed in

a tangible medium of expression and come

within the subject matter of copyright as

specified by sections 102 and 103, whether

created before or after that date and whether

published or unpublished, are governed exclusively by this title. Thereafter, no person is

entitled to any such right or equivalent right

in any such work under the common law or

statutes of any State.17

Complete preemption requires a more explicit

finding of Congressional intent to control an area of

the law than ordinary preemption. Therefore, lower

courts must find that ordinary preemption applies

before considering whether “Congress desired to control

the adjudication of the federal cause of action to such

an extent” that it not only provided preemption as a

defense, but “replaced the state law with federal law

and made it clear that the defendant has the ability

17 17 U.S.C. § 301(a).

to seek adjudication of the federal claim in a federal

forum.”18 Petitioner’s inability to satisfy the requirements of ordinary preemption precludes this Court

from finding complete preemption.

c. Application to Petitioner’s Claims

Petitioner contends that the subject matter of its

complaint consists of claims for which copyright protection could have been can be obtained. (Pet.23).

While that may be, in having failed to allege copyright

claims on the face of its complaint and its first

amended complaint, Petitioner waived this argument.

There is no preemption based solely on the introduction

of a copyright. See, e.g., Caterpillar, Inc. v. Williams,

482 U.S. 386 (1987). In Caterpillar, employees, who

were subject to a collective bargaining agreement,

had brought breach of contract claims in state court

against their employer. The employer sought to remove

the case to federal court on the basis that § 301 of the

Labor Management Relations Act conferred federal

jurisdiction as to suits for violations of collective

bargaining agreements. This Court held that a plaintiff’s complaint must present a federal question on its

face for federal jurisdiction to be proper. Id. at 398399 (“The presence of a federal question, even a § 301

question, in a defensive argument does not overcome

the paramount policies embodied in the well-pleaded

complaint rule.”).

18 14B Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 3D

§ 3722.1 (3d ed. 1998 and Supp. 2005) (discussing the difference

in ordinary and complete preemption).

Here, Petitioner did not raise copyright claims.

Petitioner did not assert that that federal copyright

law ought to apply to its state-law claims. Petitioner

never provided evidence that it was indeed the owner

of the copyright, then moved to admit that affirming

evidence into the court record. (California State Rules

of State Bar Rule 5.101.1) (“A proposed exhibit which

is withdrawn or not offered into evidence will not

become part of the official record.”).19 Thus, Petitioner’s argument that the trial court erred in not applying

federal copyright law to its claims, which is based on

the mere existence of a copyright, is unfounded.

B. The Court of Appeals Opinion Does Not Conflict

with Federal Copyright Law and the WellEstablished Precedents of the Second, Third,

Fourth, Ninth and Tenth Circuit Courts of

Appeals

Petitioner claims that “federal copyright law and

the Second, Third, Fourth, Ninth and Tenth Circuit

Courts of Appeal have well-established precedents,”

ostensibly to support its argument that its state law

causes of action are preempted by the Copyright Act.

(Pet.24). However, Petitioner must still show that

these “well-established precedents” in the Second,

Third, Fourth, Ninth and Tenth Circuits are actually

in conflict with the California appellate court’s

opinion. This Petitioner cannot do. On one hand, the

appellate opinion does not address federal copyright

19 Petitioner referenced and introduced copyrights to the Film

and the underlying screenplay, but Petitioner never presented

the trial court with a copyright certificate and never caused its

copyrights to be admitted into the record.

law, while on the other hand each of “precedents”

cited by Petitioner in section I.B. of its writ petition

does.

The “precedents” relied upon in this section (I.B.)

by Petitioner are as follows:

“A certificate of registration from the United

States Register of Copyrights constitutes

prima facie evidence of the valid ownership

of a copyright.” Pet.25 (citing Hamil Am.

Inc. v. GFI, 193 F.3d 92, 98 (2nd Cir. 1999);

Folio Impressions, Inc. v. Byer California,

937 F.2d 3d 759, 763 (2nd Cir. 1991); Fonar

Corp. v. Domenick, 105 F.3d 99, 104 (2nd

Cir. 1997); Urbont v. Sony Music Entm’t,

831 F.3d 80, 88 (2nd Cir. 2016)).

Petitioner’s copyright is not part of the record.

Moreover, there is no evidence that Petitioner’s

opinion neither invalidated Petitioner’s ownership

rights nor infringed upon Petitioner’s rights to the

subject copyright work—either directly or indirectly.

Likewise, the appellate court’s affirmance of the trial

court’s ruling did not invalidate or infringe upon

Petitioner’s copyrights. The protections afforded Petitioner by virtue of the 2006 and 2008 copyright registrations in and to the Film have not been jeopardized

by the trial court’s rulings or the appellate court’s affirmation thereof.

“A certificate of copyright registration is

prima facie evidence that the copyright is

valid.” (Pet.26) (citing Fonar Corporation v.

Domenick, 105 F.3d 99, 104 (2dCir. 1997)).

The question of whether Petitioner’s copyright

certificate is valid is not properly before this Court as

Petitioner’s copyright certificate is not part of the

trial record and, thus, cannot be considered. Even if

the subject copyright certificate were part of the trial

record, it is irrelevant in determining whether the

appellate court erred with regard to Petitioner’s

preemption argument raised here for the first time.

“Possession of a registration certificate creates

a rebuttable presumption that the work in

question is copyrightable.” (Pet.26) (citing

Whimsicality, Inc. v. Rubie’s Costume Co.,

Inc., 891 F.2d 452, 455 (2d Cir. 1989).

Whether the Film is copyrightable is irrelevant.

Petitioner includes this statement of law ostensibly

to support its proposition that the certificate of

of proving the invalidity of the copyright. (Pet.26)

(citing Hasbro Bradley, Inc. v. SparkleToys, Inc., 780

F.2d 189, 192 (2d Cir. 1985); Fonar Corporation v.

Domenick, 105 F.3d 99, 104 (2d Cir.1997)). However,

as explained above, the issue of the validity of Petitioner’s copyright certificate was never before the

trial court.

Title 28 U.S.C. § 1338(a) provides, in pertinent part, for original and exclusive federal

district court jurisdiction over any civil action

arising from an act of Congress relating to

copyrights. “(federal courts have subject mat-

ter jurisdiction over matters “arising under

any Act of Congress relating to patents, plant

variety protection, copyrights and trademarks”). Scandinavian Satellite System, AS

v. Prime TV Ltd., 291 F.3d 839, 842 (D.C.

Cir. 2002).

It is undisputed that no federal claims are stated

on the face of Petitioner’s complaint or first amended

complaint. Nonetheless, Petitioner argues that “once

the certificate of copyright registration was presented

to the trial court, the action was thereby preempted

by the Federal Copyright Act of 1976, 17 U.S.C. § 101

et seq. (the “Copyright Act”).” (Pet.27). Petitioner

states that “[t]he Copyright Act expressly provides

for exclusive Federal jurisdiction over any action

involving Copyright. 17 U.S.C. § 106.” (Pet.27). This is

false. First, Petitioner failed to have its copyright

authenticated and admitted into the record. Second,

while registration is a prerequisite to federal litigation under 17 U.S.C. § 411(a), a federal court’s jurisdiction is not conditioned on a registration. See Reed

Elsevier, Inc. v. Muchnick, 559 U.S. 164-65 (2010)

(finding no conditional jurisdiction for copyright

infringement actions based on 28 U.S.C. §§ 1331 and

1338). Original Appalachian, 684 F.2d at 821, 27-28

(“While the burden of persuasion as to the validity of

the copyright rests with the plaintiff in an infringement

action, once he produces a copyright certificate he

establishes a prima facie case of validity of his

defendant to introduce evidence of invalidity.”) (internal

citations omitted); see also Bateman v. Mnemonics,

Inc., 79 F.3d 1532, 1541 (11th Cir. 1996) (“Once the

plaintiff produces a certificate of copyright, the

burden shifts to the defendant to demonstrate why

the claim of copyright is invalid.”). Having failed to

have its copyright certificate admitted, Petitioner has

waived any claim based thereon.

Petitioner never alleged a federal copyright claim

throughout any of the prior proceedings and has failed

to proffer any substantial evidence that indicates

otherwise. Thus, Petitioner should not be permitted

to raise new arguments to support federal copyright

claims that were never asserted in the first instance.

Not only does Petitioner improperly raise a federal

presents a multitude of arguments in a desperate effort

to fit and lump his already existing claims into the

sphere and scope of a federal copyright claim. In the

case of OBB Personenverkehr AG v. Sachs, 577 U.S.

___, 136 S.Ct. 390, 397, 193 L.Ed.2d 269 (2015),20 a

similar situation arose. This Court explained in turn:

Sachs raises a new argument in this Court

in an attempt to fit her claims within

§ 1605(a)(2). . . . That argument was never

presented to any lower court and is therefore

forfeited . . . Absent unusual circumstances—

none of which is present here—we will not

entertain arguments not made below.

20 As of February 2019, final bound volumes for the U.S. Supreme

Court’s United States Reports have been published through

volume 569. Newer cases from subsequent volumes do not yet

have official page numbers and typically use three underscores

in place of the page number.

Id. (emphasis added) (citing Taylor v. Freeland &

Kronz, 503 U.S. 638, 645-646, 112 S.Ct. 1644, 118

L.Ed.2d 280 (1992)).

Plainly said, the arguments of Sachs in OBB

Personenverkehr AG and the arguments of Petitioner

in this action are likened to that of forcing a misplaced

puzzle piece to fit in a jigsaw puzzle board—regardless

of whatever angle the piece is positioned in, or the

amount of exertion taken to lodge it in the slot, the

puzzle piece simply will not fit.

Here, similar to OBB Personenverkehr AG, where

Sachs raises new arguments to fit her claims within

another statute, Petitioner in this action attempts to

bundle its state law claims into a federal copyright

claim under 17 U.S.C. § 119(b)Error! Bookmark not

defined.. And, just as this Court rejected Sachs’

attempt to raise a new argument to fit her claims

within a statute, this Court should also disallow Petitioner from raising a new argument to fit its claims,

questions, and causes of action into a federal

Bookmark not defined..

C. Whether Petitioner’s Copyright Rights Have

Been Forfeited

Petitioner’s copyright rights have not been forfeited

by virtue of the trial court’s rulings and the appellate

court’s affirmance thereof. Petitioner still has complete

ownership rights of its copyrights and every incident

thereto. Petitioner had, and continues to have, rights

to accountings—albeit after a showing that Respondents

have earned revenue from licensing the Film within

the one-year period.

Petitioner also contends that its royalties and

distribution rights have been forfeited. (Pet.42). Petitioner further states, with no citation to any admissible evidence or record, that:

[T]he [trial] court and appellate [court] were

made aware that Petitioner’s ‘copyright protected film is still being commercially

exploited by major global corporations around

the world even today, (MTA pp. 84-128, 141155, 157-165, 190-192, 6 CT:1256, 1258,

1269),21 including but not limited to Apple,

Amazon, Google, EOne, You Tube, to name

a few, despite Respondents contending that

the film was never delivered to them . . . it

[has] never being withdrawn from the global

marketplace, it continues to infringe Appellant’s exclusive rights . . .

(Pet.43).

Petitioner failed to present any evidence that

Respondents had received revenue after 2010 whereas

Respondents were able to present evidence that the

trial court deemed credible that Respondents had not

received revenue after 2010. Petitioner’s unsubstantiated claims are insufficient to establish its claim of

forfeiture. See, e.g., Antonick v. Electronic Arts, Inc.,

841 F.3d 1062, 1069 (9th Cir. 2016) (“The district

court dismissed this claim because Antonick offered

no evidence of purported damages . . . Instead, Antonick

cited only the report of his damages expert, which

21 Petitioner’s reference to its Motion to Augment is misleading

and defective as it included incomplete documents, incorrect documents, and documents never filed or lodged in the action.

simply made generic royalty calculations based on

existing sales without explaining how those calculations were relevant to the Development Aid claim.

The district court correctly kept this unsubstantiated

claim from the jury.”). Petitioner must prove its

damages and cannot liberally speculate the extent of

damages from lost royalties. See McClaran v. Plastic

Industries, Inc., 97 F.3d 347, 356-357 (9th Cir. 1996)

(overturned the jury award for royalty damages

because plaintiff was unable to provide sufficient

proof of damages. The proof provided in the trial

court was deemed to be too speculative.).

D. Whether the Trial Court’s Determinations

Infringe Upon Petitioner’s Copyright-Protected

Work Such That the State of California and

the Judges Involved in the Lower Courts Are

Liable for Contributory Copyright Infringement

Petitioner claims that its copyright-protected work

was infringed upon by Respondents and that the trial

and appellate courts deprived Petitioner of its claim

for copyright infringement. Based thereon, Petitioner

claims that the trial court, the appellate court and the

State of California are liable for secondary contributory

The trial court found that Petitioner had no viable

claims against Respondent. No copyright infringement

was found as copyright infringement was not even

before the trial court. Thus, if the trial court’s, appellate court’s and State of California’s liability stems

from that of Respondents, then because there is no

viable claim for copyright infringement against

Respondents, there can be no secondary infringement

as to the trial court, appellate court and State of

California.

Petitioner unabashedly argues that the trial court

and the appellate district had “‘actual knowledge and

‘ha[d] reason to know’ of direct infringement.’” (Pet.44).

Quite frankly, Petitioner has the order of things

backwards. It is well-established that when prosecuting

a claim, the plaintiff bears the burden of proof and

persuasion. (Moore v. Kulicke & Soffa Industries,

Inc., 318 F.3d 561, 566 (3d Cir. 2003) (“At the outset

of a trial, the plaintiff has both the burden of production

and the burden of persuasion for each element of the

prima facie case.”); Overman v. Loesser, 205 F.2d

521, 523 (9th Cir. 1953) (“The burden of proof, i.e.,

the risk of non-persuasion, remains on the plaintiff

throughout the presentation of the case, unless it is

declared to be elsewhere by statute or practice. In a

suit for copyright infringement, the plaintiff must

prove that his copyrighted composition has been copied

by the defendant, that is, he has the burden of establishing the requisites of the case.”)

Petitioner’s job was to bring its claims before the

proper court and invoke appropriate jurisdiction.

With respect to the “copyright claim,” Petitioner did

neither. Then, after losing every claim at the trial

level, it became Petitioner’s responsibility to sway the

lower courts to accept its claims, arguments and

theories pertaining to copyright infringement. Petitioner was unable to successfully do so and is

undertaking efforts that demand the lower courts

recognize its infringement claim in spite of the absence

of clear facts and evidence. Without compelling facts

and evidence, the trial court and the appellate court

should not be forced to recognize and accept Petitioner’s failed infringement claims, arguments, and

theories. Furthermore, because the courts did not

cast Petitioner’s contentions in a favorable light,

Petitioner is aberrantly uncouth and unsavory in

declaring that the trial court and the appellate district are knowingly and intentionally infringing on

the copyrights of the Film out of some harbored bias

and ill-will. This notion is utterly absurd and must

not be entertained. Moreover, such argument mandates

a finding that the judges breached Canons 1, 2, 3 and

6 of the California Code of Judicial Ethics,22 which

the record simply does not support.

22 Canon 1 of the California Code of Judicial Ethics states that

“[a] judge shall uphold the integrity and independence of the

judiciary.” California Code of Judicial Ethics (2018).

Canon 2 of the California Code of Judicial Ethics states that “[a]

judge shall avoid impropriety and the appearance of impropriety

in all of the judge’s activities.” California Code of Judicial Ethics

(2018).

Canon 3 of the California Code of Judicial Ethics states that “[a]

judge shall perform the duties of judicial office impartially, competently, and diligently.” California Code of Judicial Ethics

(2018).

Canon 6 of the California Code of Judicial Ethics requires

judges be in compliance with the Code of Judicial Ethics.

California Code of Judicial Ethics (2018).

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

RICHARD L. CHARNLEY

COUNSEL OF RECORD

ANNIE RIAN

NICOLE W. UHLMANN

CHARNLEY RIAN LLP

12121 WILSHIRE BLVD., SUITE 600

LOS ANGELES, CA 90025

(310) 321-4300

RLC@CHARNLEYRIAN.COM

COUNSEL FOR RESPONDENTS

OCTOBER 7, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.