ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Dkt. 142, filed December 11, 2015)
I. INTRODUCTION
On February 6, 2014, plaintiff Alisa Wolf (“Wolf’) filed her original complaint in this lawsuit against defendant Joseph “Joey” Travolta, d.b.a. Inclusion Films (“Travolta”), asserting one claim for infringement of plaintiffs copyright in a written curriculum and program guide dated May 10, 2006 and entitled, “Practical Film Vocational Program For People with Developmental Disabilities” (the “first work” or “the May 2006 Work”). See Dkt. 1. On March 11, 2014, Wolf filed a first amended complaint adding defendants Inclusion Wear, LLC and Little Documentary Films, LLC to her copyright infringement claim. Dkt. 9. On September 2, 2014, the Court denied Wolfs motion for a preliminary injunction. Dkt. 37.
On September 29, 2014, upon stipulation by the parties, Wolf filed a second amended complaint, adding state law claims (collectively, the “state law claims”) for (1) misappropriation of trade secrets; (2) conversion; (3) interference with economic relationships; (4) breach of fiduciary duty; and (5) violation of California Business and Professions Code section 17200, et seq. (California’s unfair competition law, or the “UCL”). Dkt. 39. Also on September 29, 2014, defendants filed an Amended Answer to the First Amended Complaint and Counterclaims. Dkt. 40. On November 24, 2014, the Court dismissed defendants’ counterclaims and Wolfs claims for misappropriation and conversion, all without prejudice and with leave to amend. Dkt. 79.
On December 18, 2014, plaintiff filed a third amended complaint that did not add any parties or claims for relief. Dkt. 84. On March 8, 2015, plaintiff filed a motion for leave to file a fourth amended complaint, which sought to add over thirty new parties and over twenty new claims for relief. Dkts. 93, 94. On April 1, 2015, the Court denied plaintiffs motion , for leave to amend, thereby striking plaintiffs proposed fourth amended complaint. Dkt. 1.
On August 5, 2015, upon stipulation by the parties, Wolf filed the operative fourth amended complaint, adding co-plaintiff Actors for Autism (“AFA”) and asserting, for the first time, an additional claim for infringement of Wolfs copyright in a written work dated September 5, 2006, and entitled, “Actors for Autism Practical Film Program Proposal” (the “second work” or “the September 2006 Work”). Dkt. 132 (“FAC”). The operative complaint thus asserts two claims for copyright infringement (with one claim first asserted on February 6, 2014, and the other first asserted on August 5, 2015), and five state law claims (all first asserted on September 29, 2014).
On December 11, 2015, defendants Travolta, Inclusion Wear, LLC, and Little Documentary Films, LLC (collectively, “defendants”) filed a motion for summary judgment as to all of plaintiffs’ claims. Dkt. 142 (“Motion”). On December 21, 2015, plaintiffs filed an opposition to defendants’ motion. Dkt. 144 (“Opp’n”). On December 28, 2015, defendants filed a reply. Dkt. 146
On February 4, 2016, the Court provided the parties with a revised tentative order, advising plaintiffs that the Court was inclined, on its own motion, to grant summary judgment in favor of defendants as to the entirety of plaintiffs’ two copyright claims.
On February 25, 2016 the Court provided the parties with an additional revised tentative order, dkt. 187, and on February 29, 2016, the Court held a final oral argument on the motion. Having carefully considered the parties’ arguments, the Court finds and concludes as follows.
II. BACKGROUND
A. The Relevant Factual Background
Plaintiff Alisa Wolf met defendant Joseph “Joey” Travolta after she read an August 2003 newspaper article describing Travolta’s film classes, his prior work with disabled children, and his vision for a “practical film school.” Dkt. 142-1 (Defendants’ Statement of Undisputed Facts (“DS”)) at ¶ 1; Dkt. 175 (Plaintiffs’ Amended Statement of Undisputed Facts (“PS”)) at ¶ 1. After meeting, Wolf and Travolta worked together to incorporate autistic children, like Wolfs son, into Travolta’s acting programs. DS at ¶ 2; PS at ¶ 2. In December 2004, Wolf established Actors for Autism (“AFA”), a non-profit organization that provides performing arts and film-making programs for individuals with disabilities, including persons on the autistic spectrum. Dkt. 142-3 (February 9, 2015 Declaration of Alisa Wolf (“Wolf Decl. II”)) at ¶¶ 17, 45. Wolf served as AFA’s Executive Director, while Travolta served as its President. Id. at ¶ 45; see also DS at ¶ 3; PS at ¶ 3.
In late 2005, Wolf and Travolta met with representatives of the Lanterman Regional Center (the “Center”), including Director of Community Services Karen Ingram (“Ingram”), regarding whether the Center would “vendorize” (i.e, authorize payments towards) AFA’s own acting classes for autistic children. DS at ¶ 4; PS at ¶ 4. The parties dispute what occurred during this meeting. According to defendants, when representatives from the Center asked about potential vocational skill programs, Travolta responded by “proposing the use of his long gestating idea for a practical film school for the center’s clients.” DS at ¶ 5. In a declaration, Travolta avers that after the meeting, he “instructed [plaintiff] Wolf [to put] together documentation for
Th[e] program would be for adults on the autistic spectrum to learn skills in the technical side of film-making in order to obtain employment in the film industry. Defendant Travolta and Ms. Ingram had absolutely no input regarding my Practical Film Vocational Program for adults with disabilities, as it was solely my original concept which I was disclosing to them at the meeting for the very first time.
Wolf Decl. II at ¶ 57.
Months after the meeting, in a letter dated April 13, 2006 and addressed to “Joey Travolta, Actors for Autism, 831 S. Main Street, Burbank, CA 91506,” Karen Ingram stated that the Center had approved “the film-making program” at “the rate of $10,000 for the 6 month program.” Travolta Deck, Ex. O (“April 13, 2006 letter”); see also Wolf Decl. II at ¶¶ 64-65; DS at ¶ 7, PS at ¶ 7. The letter also indicated that in order to “complete the service design,” additional information regarding the program was needed, including, inter alia, the entrance criteria, referral process, exit criteria, and out- ' comes. Travolta Decl., Ex. O.
Travolta and Wolf ended their professional collaboration in the summer of 2006. DS at ¶ 9; PS at ¶ 9. Specifically, Travolta resigned his position as President of AFA, effective July 11, 2006, and AFA moved out of the offices and performance space that Travolta had previously permitted the organization to use without payment of rent. DS at ¶¶9-10; PS at ¶¶9-10. Wolf avers that around this time, Travolta formed a separate business entity of his own. Wolf Decl. II at ¶ 94. Shortly thereafter, on August 11, 2006, Wolf registered the first of her two copyrighted works, “Practical' Film Vocational Program For People with Developmental Disabilities,” with the United States Copyright Office. DS at ¶ 11; PS at ¶ 11; Dkt. 142-3 (“Gebe-lin Deck”), Ex. E (Practical Film Vocational Program, dated May 10, 2006).
In a letter dated September 19, 2006, Wolf sent a “completed proposal for [a] practical film program” on behalf of Actors for Autism to the Center’s Karen Ingram. Gebelin, Ex. G; DS at ¶ 13; PS at ¶ 13. Wolf avers that she sent this letter “based on [the] agreement reflected in [Ingram’s] letter dated April 13, 2006.” Wolf Deck II at ¶ 97. While awaiting a response from the Center, the AFA Board of Directors held a board meeting on December 4, 2006. See id. at ¶ 108; see also Gebelin Deck, Ex. I (December 4, 20006 meeting minutes).
Roughly three weeks after the December 2006 AFA Board meeting, the Center
In the meantime, Wolf wrote a letter to the Center in response to the rejection of her practical film program design proposal. In this letter, dated January 23, 2007, Wolf asserted on behalf of AFA that (1) “[a]ll documents that [she] submitted to [the Center] regarding the film program are copy written [sic] by [her] and registered with the U.S. State Department [sic],” that (2) “Travolta broke his fiduciary duty when he continued to have conversations with [the] Lanterman Regional Center about [AFA’s] program for his own personal gain,” and that (3) after Travolta left AFA “any further conversations regarding this program should have ceased.” Wolf Deck II at ¶ 109; see also DS at ¶ 16; PS at ¶ 16. The letter also asserted that by law “any and all concepts, programs and services which are developed under a public charity belong to the charity” such that “board memberfs] [like defendant Travolta] may not take an idea, concept, program, or service for personal gain.” Wolf Deck II at ¶ 109. Eventually, Wolf met in person with representatives from the Center and decided to submit a different 2-year vocational program that would include film, television, and animation vocational training. DS at ¶ 17; PS at ¶ 17. Wolf has stated that despite having received assurances at the time from Travolta and Ingram that the program service design was not copied, she still believed that Travolta was harming plaintiffs by taking their opportunities and ideas and breaching fiduciary duties to them. DS at ¶ 18, PS at ¶ 18; see also Wolf Deck II at ¶¶ 101-102,106, 111.
Plaintiffs offer the following additional facts, all of which are disputed by defendants, in whole or in part:
Wolf avers that she spoke with Travolta in early 2007 and asked him whether he was using either of her works in developing a program for vendorization. PS at ¶ 45. Travolta purportedly denied that he was doing so, insisting that he was working with the Center to develop a “different program.” Id. Wolf also states that in early 2007 she spoke with Richard Bluth, one of Travolta’s business associates, who denied that either he or Travolta were using Wolfs works in any way. See id. at ¶¶ 46-48. Wolf accordingly avers that “despite her efforts to learn [of the alleged infringement], all of [her] suspicions disappeared regarding [Travolta’s] copying [of] her practical filmmaking program .Id. at ¶ 48. From early 2007 until November 25, 2012, Wolf asserts that she did not have “any verifiable information that Mr. Travolta had actually acquired a copy of the May 2006 Work [or the] September 2006 Work, that he provided either of them to any third party in exchange for or in order to receive money, or that Mr. Travolta was contracting with [anyone] to perform or license the program designs in the May 2006 Work or [the] September 2006
B. Plaintiffs’ Copyrighted Works and Defendants’ Allegedly Infringing Work
1.Plaintiffs’ May 2006 Work
Wolf registered the work underlying her first claim for copyright infringement on August 11, 2006. DS at ¶ 10; PS at ¶ 10; Wolf Decl. II at ¶ 4. The work, entitled “Practical Film Vocational Program For People with Developmental Disabilities,” is dated May 10, 2006. Gebelin Deck, Ex. E. The work itself is comprised of a title page and three pages of text detailing the program under the following six headings: (1) Mission Statement; (2) Entrance Criteria; (3) Referral Process; (4) Exit Criteria; (5) Participation Limits; and (6) Outcomes. See id.
Defendants contend, and plaintiffs dispute, that all of these topics besides the mission statement were prepared in direct response to a list of elements and a brief description of the required information “needed to complete the service design” detailed in a letter written by the Center to Travolta and AFA in April 2006. DS at ¶ 32. Defendants also contend that substantial portions of the language in this work are copied verbatim from other documents that defendants have uncovered during the course of this litigation. Specifically, defendants contend that the first paragraph and list of five elements from the May 2006 Work’s “Referral Process” section copies 87.5% of its 247 words verbatim from a July 18, 2005 PDF document regarding Americans with Disabilities Act compliance, created by the Texas Tech University Health Science Center’s Student Services Program. DS at ¶ 33. Defendants further assert that the remaining paragraph of the “Referral Process” section copies 36 of its 81 words from the screening section of an employment opportunity flyer published on March 8, 2006 by the College of the Siskiyous. DS at ¶ 34. In addition, defendants assert that the September 2006 Work’s “Outcomes” section shares large blocks of language verbatim with a course description published on the Internet by the London Film Academy, including identical language from that section’s opening paragraph. DS at ¶ 35.
2. Plaintiffs’ September 2006 Work
Wolf registered the work which forms the basis of her second claim for copyright infringement on June 18, 2015, shortly before the filing of her fourth amended complaint in this litigation. DS at ¶ 35; PS at ¶ 35. Wolf asserts that this work, whose title page is dated September 5, 2006, was actually created in late 2006. According to defendants, portions of this document “used material” from various third-party sources, including the Vancouver Film School’s website, Columbia College Hollywood’s “production course,” and the New York Film Academy’s website. See DS at ¶¶ 36-38.
3. Defendants’ Allegedly Infringing Work and the Allegations in the Operative Complaint
The specific infringing work plaintiff identifies in the fourth amended complaint is a “Program Service Guide” dated April 22, 2010, and entitled “Practical Film Workshop: A 20 Week Vocational Based Program For Adults with Developmental
III. LEGAL STANDARD
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each claim upon which the moving party seeks judgrpent. See Celotex Corp. v. Catrett,
If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc.,
In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
IV. DISCUSSION
In the instant motion, defendants move for summary judgment as to all of plaintiffs’ claims on two grounds. First, defendants argue (a) that portions of plaintiffs’ two copyrighted works were copied verbatim from third-party sources, (b) that such “unauthorized derivation” pervades the entire works, and (c) that plaintiffs accordingly do not hold valid copyrights in the works. Second, defendants argue that aside from any alleged copyright infringe
A. Plaintiffs’ Underlying Copyright Infringement Claims
A copyright infringement claim has two elements: “(1) [plaintiffs] ownership of a valid copyright, and (2) [defendant’s] copying of constituent elements of the work that are original.” Feist Publ’ns v. Rural Tel. Serv. Co., Inc.,
Due to the purportedly “unauthorized-derivative nature” of Wolfs works, defendants contend that “their content is not original to her, she cannot receive copyright protection, and therefore the works cannot support any infringement claims against Defendants.” Motion at 16. In opposition to the instant motion, plaintiffs lodge various objections to defendants’ evidence and further contend that such evidence should not be considered by the Court, because defendants did not properly meet and confer to resolve issues pertaining to the originality of Dr. Wolfs copyrighted works.
1. Originality and Ownership of a Valid Copyright
Copyright protection extends only to “original works of authorship.” 17 U.S.C. § 102. “Although the amount of creative input by the author required to meet the originality standard is low, it is not negligible.” Satava v. Lowry,
At bottom, defendants’ argument is that (1) the degree of similarity between portions of plaintiffs’ works and the purportedly preexisting third-party works is so substantial as to compel the conclusion that plaintiff copied these works; (2) plaintiffs’ copying was necessarily unauthorized, in light of her repeated denials that any copying occurred; and (3) plaintiffs’ copyrighted works are accordingly “unauthorized derivative works” and therefore not subject to copyright protection.
In their motion, defendants primarily rely upon Sobhani v. @Radical.Media Inc., where the court granted defendant’s motion for summary judgment as to a copyright infringement claim. See
While it is true, as defendants contend, that courts may “deny copyright
Thus, even if the Court concluded, based upon defendants’ evidence submitted in support of this motion, that Wolf did in fact copy portions of her copyrighted works from (copyrighted) third-party sources without authorization, the Court would also need to conclude, as a matter of law, that the purportedly cribbed portions so “pervade” the works that they render them completely unprotected under the Copyright Act. The Court finds that on the current record, it cannot make this finding as a matter of law. A reasonable jury could find that despite any substantial similarities between plaintiffs’ works and those of third-party sources, those additional portions of plaintiffs’ works not traceable to any third-party source demonstrate that the derivative portions do not pervade the entire works. See Shaw v. Lindheim,
Accordingly, defendants’ motion for summary judgment as to the invalidity of plaintiffs’ underlying copyrights is denied.
B. Statutes of Limitation and the Discovery Rule
Defendants contend that plaintiffs’ copyright and state law claims all accrued in 2006 or 2007, at which time Wolf was either aware or sufficiently placed on notice of defendants’ alleged conduct underlying these claims. Accordingly, defendants first argue that plaintiffs are barred from seeking any damages for alleged copyright infringement that occurred outside the relevant three-year statute of limitations. Defendants then argue that absent application of an equitable exception, all of plaintiffs’ state law claims are time barred.
1. The Relative Burdens of Proof at Summary Judgment
Because the statute of limitations is an affirmative defense, defendants bear the initial burden on a motion for summary judgment of demonstrating that plaintiffs’ claims are time barred. See Celotex,
As is relevant here, if defendants establish that plaintiffs’ claims are time barred absent application of an equitable exception, plaintiffs bear the burden of demonstrating the applicability of any such exception, including the delayed discovery rule. See O’Connor v. Boeing N. Am.,
2. Plaintiffs’ Copyright Infringement Claims
Plaintiffs’ first claim for copyright infringement relates to her May 2006 Work and was first asserted on February 6, 2014, the day on which this suit was filed. Plaintiffs’ second claim for copyright infringement relates to her September 2006 Work and was first asserted on August 5, 2015, the day on which the operative fourth amended complaint was filed. Based upon the Copyright Act’s three-year statute of limitations, see 17 U.S.C. § 507(b) (discussed infra) defendants argue that plaintiffs should be barred from seeking damages for any alleged copyright infringement that occurred before February 6, 2011 as to the first claim, or before August 5, 2012 as to the second claim. As explained in the discussion below, the Court agrees, and finds that plaintiffs are barred from seeking damages attributable to infringement occurring beyond the three years preceding plaintiffs’ assertion of the two copyright claims.
i. Accrual of Plaintiffs Claims under 17 U.S.C. § 507(b)
Section 507(b) of the Copyright Act provides that copyright claims must be “commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). A claim “ordinarily accrues ‘when [a] plaintiff has a complete and present cause of action.’ ” Petrella v. Metro-Goldwyn-Mayer, Inc., — U.S. -,
As explained in the discussion that follows, even viewing all facts in the light most favorable to plaintiffs and resolving all factual ambiguities in their favor, the Court cannot conclude both that plaintiffs (1) were unaware of defendants’ infringement and (2) “reasonably could not have discovered” such infringement as far back as 2006 or 2007. Polar Bear Prods.,
In the more recent of her two declarations, Wolf states that it was not until November 25, 2012 that she “became aware that defendants] Travolta and Inclusion Films ... were using [her] Work without [her] permission and that Defendant Travolta was, in fact, still acting against [her] interests.” Id. at ¶ 115 (emphasis added).' Wolf avers that on that date, an acquaintance informed her that Travolta was using her curriculum to gain “substantial financial benefits” through co-defendant Inclusion Films. Id. This revelation was, in Wolfs view, “the first time that [she] learned that Defendant Travolta was, in fact, wrongfully using [her] Work.” Id.
However, Wolfs own testimony establishes that in mid-to-late 2006, she “suspected Defendant Travolta had merely changed the cover sheet to [her] program design” and submitted it to the Center. Id. at ¶ 99 (emphasis added). Indeed, Wolf states that on December 4, 2006, she “informed the [AFA] Board ... of [her] concerns about Defendant Travolta using
Wolf nonetheless contends that even though she had strong suspicions of defendants’ infringement in late 2006, she exercised due diligence at the time by initiating “[her] own independent investigation” and thereby taking “reasonable steps to find out if, in fact, Defendant Travolta was using [her] program without [her] permission.” Wolf Decl. II at ¶¶ 110-11. Thus, “having found no direct or circumstantial evidence proving [Travolta] was [infringing], [Wolf] thought there was no ‘grounds’ to pursue legal action at that time.” Id. (emphasis added). Plaintiffs “reasonable” investigation of her suspicions essentially involved confronting Travolta, his associate Richard Bluth, and Karen Ingram of the Center and asking them whether they had infringed upon her copyright by using her underlying works. See Wolf Deck II at ¶ 110. According to Wolf, all three denied that they had used Wolfs works, insisting instead that they were working to “develop a different film program.” Wolf Deck II at ¶ 110; see also PS at ¶ 48 (stating that “despite [Wolfs] efforts to learn [of the alleged infringement at the time], all of [her] suspicions disappeared regarding [Travolta’s] copying [of] her practical filmmaking program .... ”). Wolf contends that in making such denials, these individuals “concealed facts from [her] that would have informed her of acts and injury triggering the running of all statute[s] of limitations.” Opp’n at 14. Plaintiff accordingly contends that such conduct constituted “fraudulent concealment” warranting equitable tolling of the statute of limitations. Id. The Court disagrees.
Generally speaking, the doctrine of fraudulent concealment “is invoked only if the plaintiff both pleads and proves that the defendant actively misled her, and that she had neither actual nor constructive knowledge of the facts• constituting his cause of action despite her due diligence.” Grimmett v. Brown,
Plaintiffs’ opposition cites only one case, Prather v. Neva Paperbacks, Inc.,
[W]e conclude that the mere fact that plaintiff was unable to procure a copy of the book is insufficient to show the successful concealment necessary to toll the statute of limitations. This was merely ignorance of evidence, not ignorance of a potential claim. The appellant knew of the alleged infringement, but did not have in his possession the precise minutiae of the plagiarism. The bells do not toll the limitations statute while one ferrets the facts. Consequently, the plaintiff did not allege facts which if true would justify tolling the statute of limitations. The district court was therefore correct in granting summary judgment ....
Prather,
In the instant case, much as in Prather, Wolf states that she “thought there was no ‘grounds’ to pursue legal action” because she “found no evidence that [Travolta] was using [her] program without [her] permission” and was expressly told by Travolta himself that he did not use her works. Wolf. Decl. at ¶ 111. Again, this “mere[ ] ignorance of evidence” is “not ignorance of a' potential claim.” Prather,
As the Ninth Circuit has explained, fraudulent concealment “requires a showing both that the defendant used fraudulent means to keep the plaintiff unaware of his cause of action, and also that the plaintiff was, in fact, ignorant of the existence of his cause of action. [Here, plaintiff] has made no showing to prove the first prong of this test and has [arguably] disproven the second [prong]” through her own testimony regarding her decision not to file suit in 2006 or 2007.
Ultimately, therefore, the Court cannot conclude that plaintiffs both (1) did not discover and (2) reasonably could not have discovered defendants’ alleged infringement before November 2012. Polar Bear Prods.,
As the Supreme Court explained in Petrella, “when a defendant has engaged (or is alleged to have engaged) in a series of discrete infringing acts, the copyright holder’s suit ordinarily will be timely under § 507(b) with respect to more recent acts of infringement (i.e., acts within the three-year window), but untimely with respect to prior acts of the same or similar kind.” Petrella,
In response, plaintiffs filed a supplemental brief that largely rehashes arguments made in opposition to the instant motion. See P’s Supp. Brief at 2-15. Plaintiffs also provided three additional documents that were produced by various non-party regional centers in response to a subpoena: (1) a revised version of defendants’ program design, dated April 19, 2011, that was produced by the Westside Regional Center (which apparently is not related to Travolta); (2) what appears to be a significantly modified version of defendants’ allegedly infringing program design, dated July 28, 2014, that was produced by the Alta Regional Center (which apparently is not related to Travolta); and (3) a copy of defendants’ program design, dated February 4, 2008, that appears to have been faxed to an unknown entity by the Lanter-man Regional Center on November 16, 2011, based on a time stamp on the document. See Dkt. 184-1. Plaintiffs argue these documents demonstrate that “[defendants, either through themselves or through the [Lanterman Regional Center], were distributing copies of their infringing program design to the other regional centers between 2011 and 2014.” P’s Supp. Brief at 2. In support of this contention, plaintiffs do not cite any testimony from defendants or the regional centers themselves. Rather, plaintiffs cite only to a supplemental declaration of their attorney in which he makes conclusory statements regarding defendants’ purported distribution of these three documents. See Dkt. 184-1 (Chisvin Supp. Deck) at ¶¶ 2 (stating document “was copied and distributed in 2011 as it states ‘DRAFT UPDATED: April 19, 2011’ ”), 3 (stating document “was copied and distributed in 2014, as it is dated ‘July 28, 2014’ ”), 5 (stating document “was copied and distributed in 2011, as it was faxed by [the Lanterman Regional Center] on November 16, 2011.”).
In response, defendants contend that they did not instruct any third-party regional centers to distribute copies of the allegedly infringing program design
Crucially, a defendant is only liable for “his acts of infringement committed within three years prior to [a plaintiffs] lawsuit.” Makedwde Publ’g Co. v. Johnson,
Accordingly, because the Court finds that plaintiffs have failed to cite admissible evidence in the record that creates a genuine dispute as to material facts regarding alleged infringement by defendants within the relevant three-year window, the Court concludes that summary judgment in favor of defendants as to plaintiffs’ copyright claims is warranted. See Roley,
3. Plaintiffs’ State Law Claims
It is undisputed that plaintiffs’ five state law claims stem from conduct that began in 2006, in the wake of defendant Travolta’s resignation from Actors for Autism— specifically, Travolta’s allegedly unlawful appropriation in 2006 of plaintiffs’ copyrighted works and defendants’ interference with plaintiffs’ existing and future economic relationships in the years following the alleged misappropriation.
Although plaintiffs concede that the state law claims stem from Travolta’s conduct in the wake of his 2006 resignation from AFA, plaintiffs nonetheless contend these claims are not time barred because Wolf did not know that Travolta “unlawfully took property belonging to AFA” until November 2012, in part due to defendants’ purported fraudulent concealment. Opp’n at 15. Applying the delayed discovery rule, plaintiffs contend that although the conduct underlying their claims began in 2006, the statutes of limitation were not triggered until 2012, such that plaintiffs’ assertion of these claims in 2014 permits recovery for damages as far back as 2006. In the alternative, plaintiffs appear to suggest — -albeit without any supporting authority — that either the continuing violation doctrine or the related theory of continuous accrual apply and therefore preclude summary judgment. See Opp’n at 16. The Court addresses the merits of these arguments in the discussion that follows.
i. Allegations of State Law Claims in the Fourth Amended Complaint
Plaintiffs assert state law claims for misappropriation of trade secrets, conversion, interference with economic relationships, breach of fiduciary duty, and violation of the UCL. See generally FAC. Plaintiffs’ misappropriation and conversion claims are closely related: plaintiffs’ conversion claim alleges that “[u]pon his resignation from AFA [in 2006],” Travolta “intentionally and substantially interfered with Plaintiffs’ property by taking possession of their assets and converting such assets to Defendants’ own use and benefit.” FAC at ¶ 179. More specifically, defendants purportedly converted plaintiffs’ “computer equipment, computer files[ ] and the intellectual property contained [therein], confidential information, client lists, business strategies, and trade secrets, all of which constitute plaintiffs’s assets.” Id. at ¶ 176. Similarly, plaintiffs’ claim for misappropriation of trade secrets alleges that “upon his resignation [in 2006],” Travolta “took [plaintiffs’ trade secrets] without permission,” including “copyrighted work[s], business strategies, and client lists.” Id. at ¶¶ 159,162.
Plaintiffs’ claim for interference with economic relationships alleges that Travolta interfered with Wolfs existing and prospective economic relationships with regional centers. Id. at ¶126. In purportedly disrupting plaintiffs’ economic relationships, Travolta is alleged to have “[wrongfully used Dr. Wolfs confidential information that [he] was provided in confidence” in or around 2006, including “program ven-dorization information, potential clients, California regional centers information, and editable draft of Dr. Wolfs copyrighted work.” Id. Plaintiffs’ breach of fiduciary duty claim alleges that “[a]s President and board member of AFA, Defendant Travolta had fiduciary duties to Dr. Wolf and AFA,” including, inter alia, duties of undivided loyalty, good faith, confidentiality, reasonable care, and a duty to refrain from using his position for his own benefit and to the detriment of AFA. Id. at ¶ 139. Plaintiffs thus allege that Travolta’s use of plaintiffs’ “copyrighted work, business strategies, and client lists” constitutes a breach of his fiduciary duties. Id. at ¶ 144. Finally, plaintiffs’ UCL claim is premised upon defendants’ “unfair, deceptive, and fraudulent” (1) misappropriation and misuse of plaintiffs’ copyrighted works, (2) improper diversion of and interference with plaintiffs’ business relationships, and
ii. Applicability of the Discovery Rule
As with the foregoing analysis regarding accrual of copyright claims, an important exception under California law .to the “general rule for defining the accrual of a cause of action — indeed, the ‘most important’ [exception] — is the discovery rule,” which “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” Norgart v. Upjohn Co.,
As explained supra, Wolf avers that first “became aware” or “learned” that Travolta was using her works without her permission on November 25, 2012. Wolf Deck at ¶ 115. Crucially, however, under California law, “[s]o long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” Jolly,
Furthermore, Wolf avers that during a December 4, 2006 Board meeting, she “thought it seemed clear that Defendant Travolta was using the program,” and accordingly “informed the [AFA] Board ...
Wolfs letter of appeal to the Center, dated January 23, 2007, further reveals her suspicions regarding the conduct underlying her five state law claims:
When the [Actors For Autism] film program was submitted to you [i.e., the Center] and approved, Joey Travolta was the President of our organization and the liaison between Lanterman Regional Center and Actors for Autism. Mr. Travolta resigned as a board member [o]n July 11th of 2006. As a result of his resignation he no longer represented the organization and any further conversations regarding this program should have ceased.
All documents that I submitted to you regarding the film program are copy written [sic] by me and registered with the U.S. State Department [sic].
California Non-Profit law is very specific stating that any and all concepts, programs and services which are developed under a public charity belong to the charity. Further, a board member may not take an idea, concept, program or service for personal gain.
Mr. Travolta broke his fiduciary duty when he continued to have conversations with Lanterman Regional Center about our program for his own personal gain.
Wolf Decl. II at ¶ 109.
As with plaintiffs copyright claims, discussed supra, the fact that Wolfs “independent investigation” purportedly produced no “direct or circumstantial evidence proving” Travolta’s wrongdoing does not justify tolling of the relevant statutes of limitation. Wolf Decl. II at ¶ 111 (noting that plaintiff “thought there was no ‘grounds’ to pursue legal action at that time”). “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim [in order for the claim to accrue]; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights.” Jolly,
Accordingly, the Court concludes that even under the discovery rule, all of plaintiffs’ state law claims accrued no later than early 2007. Therefore, all of these claims would be time barred, unless plaintiffs can demonstrate the applicability of an alternative equitable ground for denying defendants’ motion.
In addition to arguing applicability of the discovery rule, plaintiffs’ opposition makes cursory reference to additional grounds for finding an equitable exception to the running of the statute of limitations. See Opp’n at 14-15 (noting the fact that “California courts have developed a handful of equitable exceptions to and modifications of the usual rules governing limitations periods”). The Court construes plaintiffs’ reference to unspecified “equitable exceptions” as seeking to invoke either the continuing violation doctrine or the theory of continuous accrual. See FAC at ¶¶ 107 (UCL claim), 124 (interference with economic relationships claim), 138 (breach of fiduciary duty claim) (alleging that defendants’ “continuous acts and omissions constitute a ‘continuous course of conduct’ and, under the ‘accrual theory,’ each of Defendants’] acts and omissions constitutes a separate, recurring invasion of Plaintiffs’ rights which, thereby, triggers a separate and distinct statute of limitations period”).
The continuing violation doctrine “aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them.” Aryeh v. Canon Bus. Solutions, Inc.,
Some injuries are the product of a series of small harms, any one of which may not be actionable on its own. Those injured in such a fashion should not be handicapped by the inability to identify with certainty when harm has occurred or has risen to a level sufficient to warrant action ... Allegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period.
Id. at 1198,
Under the related but distinct theory of continuous accrual, “a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a suit for relief may be partially time-barred as to older events” — like those occurring in 2006 or 2007 — “but timely as to those within the applicable limitations period.” Id. at 1192,
Thus, for continuous accrual to apply to a particular claim here, defendants’ wrongful conduct within the relevant limitation period must have violated a particular “continuing or recurring obligation” to plaintiffs, such that a more recent breach of that obligation “may be treated as an independently actionable wrong with its own time limit for recovery.” Aryeh,
a. Continuous Accrual and Misappropriation of Trade Secrets
The theory of continuous accrual in inapplicable to plaintiffs’ claims for misappropriation of trade secrets. Under section 3426.6 of the California Civil Code, an action for misappropriation “must be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered” — more importantly, “a continuing misappropriation constitutes a single claim.” Cal. Civ. Code § 3426.6. Interpreting this provision, the California Supreme Court has held that “the continued improper use or disclosure of a trade secret after defendant’s initial misappropriation is viewed ... as part of a single claim of ‘continuing misappropriation’ accruing at the time of the initial misappropriation.” Cadence Design Sys., Inc. v. AvantA Corp.,
b. Continuous Accrual and Conversion
With respect to plaintiffs’ claim for conversion, the operative complaint alleges that “[u]pon his resignation from AFA [in 2006],” Travolta “intentionally and substantially interfered with Plaintiffs’ property by taking possession of their assets and converting such assets to Defendants’ own use and benefit.” FAC at ¶ 179. Under California Code of Civil procedure 338(c), “which applies to the conversion of personal property, there is a three-year limitations period for ‘action[s] for taking, detaining, or injuring any goods or chattels.’ ” AmerUS Life Ins. Co. v. Bank of Am., N.A.,
Plaintiffs’ claim for interference with economic relationships is subject to a two-year statute of limitations. Augusta v. United Serv. Auto. Assn.,
Furthermore, plaintiffs’ operative complaint contains only vague allegations of “continuous” interference with economic relationships, failing to specifically allege that defendants have interfered with any particular economic relationships in the two years preceding plaintiffs’ assertion of this claim. See, e.g., FAC at ¶¶ 127 (“Defendants continue to interfere with Dr. Wolfs economic relationships by continuing to exploit her intellectual property ... without her permission.”), 131 (“Travolta, through his instruction, manipulation, and/or undue influence of others, has engaged in a continuous court of conduct of interfering with Dr. Wolfs existing and prospective business relations.”). Plaintiffs have also failed in their separate statement to point to any genuine dispute of material fact regarding any alleged interference with economic relationships in recent years. See generally PS. Accordingly, on the record before the Court, the theory of continuous accrual does not appear to apply to this claim.
d. Continuous Accrual and Breach of Fiduciary Duty
Plaintiffs’ breach of fiduciary duty claim alleges that “[a]s President and board member of AFA, Defendant Travolta had fiduciary duties to Dr. Wolf and AFA,” including, inter alia, duties of undivided loyalty, good faith, confidentiality, reasonable care, and a duty to refrain from using his position for his own benefit and to the detriment of AFA. FAC at ¶ 139. Plaintiffs thus allege that Travolta’s use of plaintiffs’ “copyrighted work, business strategies, and client lists” constitutes a breach of the aforementioned fiduciary duties. FAC at ¶ 144. “The statute of limitations for breach of fiduciary duty is three years or four years, depending on whether the breach is fraudulent or non-fraudulent.” American Master Lease LLC v. Idanta Partners, Ltd.,
Here, however, as with their interference with economic relationships claim, plaintiffs’ operative complaint provides only conclusory allegations of a continuous breach of fiduciary duties without reference to any specific breaches that fall within three or four years of the assertion of this claim. See, e.g., FAC at ¶ 149 (“Travolta’s fiduciary duties owed to Dr. Wolf continue regarding the information he held in confidence [while he was President of AFA], specifically the curricula to which he had access by virtue of his former position with Actors for Autism ... [and] each act of using Dr. Wolfs work without her permission is a new and independent injury”); see also id. at ¶ 150. Nor have plaintiffs pointed the Court to any evidence in an affidavit, deposition, or elsewhere that would create a triable issue of fact as to whether any such breaches of fiduciary duty occurred in recent years. See Lujan,
e. Continuous Accrual and the UCL
Plaintiffs’ UCL claim is governed by the four-year statute of limitations set forth in section 17208. Cal. Bus. & Prof. Code § 17208 (“Any action to enforce any cause of action pursuant to this chapter shall be commenced within four years after the cause of action accrued.”). In Aryeh, the California Supreme Court clarified that the UCL “is governed by common law accrual rules to the same extent as any other statute,” such that “ ‘the nature of the right sued upon’ and the circumstances attending its invocation control the point of accrual.” Aryeh,
As explained supra, the UCL claim in the instant action is premised upon defendants’ “unfair, deceptive, and fraudulent” (1) misappropriation and misuse of plaintiffs’ copyrighted works, (2) improper diversion of and interference with plaintiffs’ business relationships, and (3) false and misleading representations about Wolf and her work. See, e.g., FAC at ¶¶ 109, 110, 113. Plaintiffs have failed sufficiently to allege that any such acts occurred in the four years preceding plaintiffs’ September 29, 2014 assertion of the UCL claim. Accordingly, reliance upon the continuous accrual theory is, based upon the current record and briefing, unavailing.
Thus, in accordance with the foregoing, all of plaintiffs’ state law claims are time barred, as plaintiffs were on sufficient notice of these claims in early 2007, and plaintiffs cannot, based upon the current record, avail themselves of either the discovery rule or the theory of continuous accrual.
V. CONCLUSION
In accordance with the foregoing, defendants’ motion for summary judgment is hereby DENIED in part and GRANTED in part.
Specifically, defendants’ motion is DENIED insofar as it seeks to invalidate plaintiffs’ two underlying copyrights. The motion is GRANTED insofar as (1) it argues that all of plaintiffs’ state law claims are time-barred, and (2) it seeks to bar damages from copyright infringement beyond the three years preceding plaintiffs’ assertion of the two copyright claims in this suit.
IT IS SO ORDERED.
Notes
. Both parties also filed objections to the evidence presented in support of and in opposition to the instant motion. See Dkts. 144-2 (Plaintiffs' Objections), 148 (Defendants’ Objections). To the extent the parties object to any evidence not discussed in this order, these objections are OVERRULED AS MOOT because the Court does not rely on the objected-to evidence in ruling on the instant motion. The parties may renew any and all such evidentiary objections at a later date in this proceeding.
. "After giving notice and a reasonable time to respond, the court may ... consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.” Fed. R. Civ. P. 56(f)(3); see also Nunley v. City of Los Angeles,
. These board minutes read, in relevant part, as follows:
[Wolf] stated that she contacted the attorney, Shannon Nash[,] to get her opinion regarding the vocational academy. It was clear that Joey Travolta could be sued for taking the program. In addition, he would be responsible for any money due for attorneys fees and any money received for the program should we win the case. However, [Wolf] stated that she was also advised about the other issues that would arise and the press given to Actors for Autism and Joey Travolta. It was decided by the board not to pursue a law suit [sic] at this time, rather to write a different program to submit to the regional center. [Board members] Adam [Shawn] and Robyn [Eastman] agreed that was the best approach to take in this situation.
Gebelin Deck, Ex. I. Although Wolf initially offered these board minutes as an exhibit to a
Here, the statements — i.e., that "[i]t was clear that Joey Travolta could be sued for taking the program,” but the board "decided ... not to pursue a law suit [sic] at th[at] time” and instead to "write a different program to submit to the regional center” — are not hearsay, as they are offered only to demonstrate what was discussed at the meeting, not for the truth of the matters asserted. In other words, these statements are offered only to demonstrate that AFA Board members, including Wolf, attended a 2006 Board meeting wherein Travolta’s alleged infringement was expressly discussed.
Nonetheless, it is unclear whether the document itself (as opposed to the statements contained therein) is admissible pursuant to an exception to the rule against hearsay. See Fed. R. Evid. 803. On the one hand, neither party has submitted “testimony of [a] custodian or another qualified witness” regarding the preconditions to the document's admission as a record of a regularly conducted activity pursuant to FRE 803(6). See Fed. R. Evid. 803(6)(a)-(e). On the other hand, defendants argue that the document itself constitutes an admission of a party opponent and therefore does not constitute hearsay at all, pursuant to FRE 801(d). Under FRE 801(d), an opposing party's statement being offered against the party is not hearsay if it: "(A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party's coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(A)-(E). Here, the board minutes arguably constitute a statement by party opponent Actors for Autism, as they appear to • have been "made by a person whom the party authorized to make a statement on the subject,” see FRE 801(d)(2)(C), or were otherwise "made by the party's agent or employee on a matter within the scope of that relationship and while it existed,” FRE 801(d)(2)(D). Nonetheless, because the Court concludes that it need not rely upon the board minutes for purposes of the instant motion, the Court does not consider them.
. Specifically, plaintiffs object to these documents under Federal Rules of Evidence 601 (competency to testify), 602 (need for personal knowledge), 701 (opinion testimony by lay witnesses), 801 (hearsay), and 901 (failure to authenticate), as well as Federal Rule of Civil Procedure 26(e)(1)(A) (untimely service of exhibit). See Dkt. 144-2 (Plaintiffs’ Objections). In light the Court’s finding that consideration of this evidence does not inform a different result in the instant motion, plaintiffs’ objections are OVERRULED AS MOOT. The Court also notes that these documents are the subject of a motion in limine that is currently pending before the Court. See Dkt. 157.
. The Court notes that defendants do not argue that even absent any alleged unauthorized copying, plaintiffs' works would nonetheless not be subject to copyright protection. For example, defendants do not contend that plaintiff is improperly attempting to extend copyright protection of her written works to an idea, concept, process, system, or other
. In Petrella v. Metro-Goldwyn-Mayer, Inc., the United States Supreme Court noted that "[ajlthough [it] ha[s] not passed on the question, nine Courts of Appeals have adopted, as an alternative to the incident of injury rule, a 'discovery rule,' which starts the limitations period when 'the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim.’ ”- U.S. -,
. Plaintiffs contend that "there is a significant difference between ‘developing’ an unspecified ‘program’ and Defendants actually copying Dr. Wolf's works and submitting them in the vendorization process.” Opp'n at 13. Even if the Court were to recognize such a distinc-lion, this would not warrant a different result here, as Wolf repeatedly states that she suspected Travolta was in fact using her specific program design materials. See Wolf Deck II at ¶ 99
. The Court notes that Travolta denies that Wolf ever approached him in 2007 to ask whether he was using any of her works. See Dkt. 146-1 (December 25, 2015 Declaration of Joseph “Joey” Travolta ("Travolta Decl. II”)) at ¶¶ 5-6. Travolta further denies that he ever made any representations or gave Wolf any assurances that he was not using program materials' that she created (i.e., the copyrighted works that are the subject of this litigation). Id. In granting the instant motion, the Court resolves such factual disputes and ambiguities in favor of plaintiffs (as the non-moving parties).
. To the extent Wolf argues that the statute of limitations should be tolled due to the legal advice she received from AFA’s attorney, Shannon Nash, the Court rejects this argument. According to Wolf, Nash advised her that she "should not file a frivolous lawsuit," but "if [she] could find evidence and proof, [she] could file a lawsuit against Defendant Travolta for taking [her] program.” Wolf Decl. II at ¶ 107. Wolf further avers that at the time she "thought it seemed clear that Defendant Travolta was using the program,” but Nash nonetheless advised her — seemingly without reference to the risks associated with delay — that "more evidence was needed before any legal action” could be taken. Ih at ¶ 108. The fact that Nash, in her capacity as counsel to AFA, did not apprise AFA or Wolf of the need timely to litigate such an action upon actual or constructive notice of infringement does not constitute grounds for tolling the statute of limitations. See Booth v. Carnival Corp.,
.Plaintiffs’ supplemental brief cites additional cases involving alleged fraudulent concealment, including the opinion of Judge Posner in Taylor v. Meirick,
. The Court notes that plaintiffs’ reliance upon the Third Circuit’s decision in William A. Graham Co. v. Haughey,
. The Ninth Circuit's decision in Wood v. Santa Barbara Chamber of Commerce, Inc.,
. The fact that the allegedly infringing document — published in 2010, outside the relevant three-year window — remained on defendant’s website through 2014 does not give rise to a discrete claim accruing within the three-year window. The Court in Petrella “specifically distinguish[ed] the separate-accrual rule established in § 507(b) from the ‘continuing violation' doctrine.” Chicago Bldg. Design, P.C. v. Mongolian House, Inc.,
. See DS at ¶¶ 23-24; PS at ¶¶ 23-24 (undisputed that plaintiffs’ UCL claim is “based on the alleged infringement and exploitation of the works set forth in the first and second causes of action and also of unspecified trade secrets”; and further undisputed that plaintiffs’ fourth claim for interference with economic relationships is "based on the same alleged infringement and exploitation of the works and unspecified trade secrets”); DS at V 25; PS at ¶ 25 (undisputed that plaintiffs’ fifth claim "is based on allegations of [Travolta’s] Breach of Fiduciary Duty ... for his alleged taking of business opportunities that allegedly belonged to AFA, information that belonged to Wolf, and his use of knowledge gained while on the board of directors of AFA in competition with Plaintiffs”); DS at ¶ 26; PS at ¶ 26 (undisputed that plaintiffs’ sixth claim "is based on allegations of Misappropriation of Trade Secrets comprised of the registered works, client lists, and business strategies held by Plaintiffs at the time that Travolta left his association with AFA”); DS at ¶ 27; PS at ¶ 27 (undisputed that plaintiffs’ seventh claim "is based on allegations of Conversion of physical property, intangible (intellectual) property and/or ideas allegedly belonging to Plaintiffs at the time that Travolta left his association with AFA”).
. As a reminder, plaintiffs' claims were first asserted in this action on the following dates: February 6, 2014 (first claim for copyright infringement of the May 2006 Work); September 29, 2014 (five state law claims); and August 5, 2015 (second claim for copyright infringement of the September 2006 Work).