Facts
- Ralph W. Baker, Jr. sued Ta-Nehisi Coates and others, alleging copyright infringement of his memoir, "Shock Exchange" [lines="58-66"].
- Baker claimed similarities between his work and Coates's novels, providing extensive side-by-side comparisons in his complaint [lines="69-72"].
- The magistrate judge recommended dismissing Baker's complaint due to a lack of substantial similarity between the works [lines="94-95"].
- The district court adopted the magistrate's recommendation and dismissed the complaint on September 27, 2023 [lines="99-100"].
- Baker, proceeding pro se, contested the dismissal and filed additional motions against opposing counsel [lines="101-102"].
Issues
- Did the district court err in concluding there was no substantial similarity between Baker's "Shock Exchange" and Coates's works? [lines="129-130"].
- Did the district court correctly dismiss Baker's copyright claims against a subset of defendants for insufficient service of process? [lines="160-161"].
Holdings
- The court affirmed the district court's dismissal, agreeing that Baker failed to demonstrate substantial similarity, as the works were dramatically different in content and feel [lines="127-134"].
- The court held that even if there was an error in dismissing claims based on insufficient service of process, it was not prejudicial due to the lack of substantial similarity [lines="169-172"].
OPINION
Case Information
*1 Before: WARDLAW, HURWITZ, and DESAI, Circuit Judges.
*2
Luis and Dorothy Torres (“Petitioners”) seek a writ of mandamus directing the district court to vacate its March 6, 2024, order granting a motion to transfer venue. The motion was based on an Indiana forum-selection clause in a warranty agreement between Jayco, Inc. (“Jayco”) and Petitioners covering a motorhome. We have jurisdiction under 28 U.S.C. § 1651, and we deny the petition.
Petitioners fail to show that they are entitled to the “drastic and extraordinary remedy” of mandamus. , 654 F.3d 838, 840 (9th Cir. 2011) (internal citation and quotations omitted). Although we consider five factors in determining whether to issue the writ, the dispositive factor is “ whether t he district court’s order is clearly erroneous as a matter of law.” In re Boon Glob. Ltd. , 923 F.3d 643, 649 (9th Cir. 2019) (quoting Bauman v. U.S. Dist. Court F.2d 650, 654 55 (9th Cir. 1977) (listing factors)) . Absent clear error, we may not disturb a district court’s order. In re Swift Transp. Co. Inc. , 830 F.3d 913, 916 (9th Cir. 2016).
The district court ’s grant of Jayco’s motion was not clearly erroneous as a matter of law. , 923 F.3d at 649. When the district court issued its order, the law was unclear as to whether the anti-waiver provision of the *3 Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790.1, established that enforcement of the warranty’s forum-selection clause violated California public policy when accompanied by a stipulation to apply California law in Indiana. Compare Frisby v. Thor Motor Coach, Inc. , No. CV-22-2047-MWF (SHKx), 2023 WL 1420434, at *4 (C.D. Cal. Jan. 24, 2023) (concluding that the same forum- selection clause at issue here did not violate Song- Beverly’s anti -waiver provision and noting that defendant’s stipulation to apply California law in Indiana “diminishes the argument that a state’s public policy interest in enforceme nt of its laws is sufficient to overcome a valid forum- selection clause”) , with Gorga v. Thor Motor Coach, Inc. , No. 23-cv-03603-RFL, 2024 WL 1090650, at *1 2 (N.D. Cal. Feb. 6, 2024) (finding the same forum-selection clause unenforceable as in contravention of California public policy); see also Verdugo v. Alliantgroup, L.P. 187 Cal. Rptr. 3d 613, 627 (2015), as modified on denial of reh’g (June 25, 2015) (acknowledging, without deciding, that a stipulation like Jayco’s could have altered the court’s analysis of whether the forum -selection clause at issue was enforceable).
It was not until October 7, 2024, seven months after the district court’s order, that the California Court of Appeal issued a decision holding that the same forum-selection clause violated California public policy as established by Song- Beverly , and that Jayco’s proffered stipulation does not cure this violation. *4 Lathrop v. Thor Motor Coach, Inc. , 326 Cal. Rptr. 3d 159, 168 69 (2024). Before Lathrop , “[n] o California case [had] directly addressed whether a stipulation to apply California law renders an otherwise unenforceable forum selection clause enforceable ,” id. at 169, and multiple district courts applying California law had previously reached the same conclusion as the district court here in cases involving the very same warranty and stipulation , see, e.g. , Frisby , 2023 WL 1420434, at *4; Zastawnik v. Thor Motor Coach, Inc. , No. CV 22-08663-PSG-AS, 2023 WL 5167363, at *2 (C.D. Cal. June 16, 2023); Derosa v. Thor Motor Coach, Inc. , No. 2:20-cv-04895-SVW-PLA, 2020 WL 6647734, at *4 (C.D. Cal. Sept. 30, 2020). Thus, we are not left with the “ definite and firm conviction” that the district court erred in light of then-existing California and federal precedent. 654 F.3d at 841 (quoting DeGeorge v. U.S. Dist. Court for Cent. Dist. of Cal. F.3d 930, 936 (9th Cir. 2020)). Therefore, Petitioners fail to show that they are entitled to mandamus relief. , 923 F.3d at 649.
PETITION DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[1] California Civil Code Section 1790.1 provides that “[a]ny waiver by the buyer of consumer goods of the provisions of this chapter, except as expressly provided in this chapter, shall be deemed contrary to public policy and shall be unenforceable and void. ”
[2] This decision does not foreclose Petitioners from seeking relief from the district court’s order from the transferee court.