1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HEMLOCK HAT COMPANY, INC., Case No.: 19-cv-02422-AJB-AHG 12 Plaintiff, ORDER:

13 v. (1) GRANTING DEFENDANTS’ 14 DIESEL POWER GEAR, LLC, DIESEL MOTION TO DISMISS, (Doc. No. 11);

SELLERZ, LLC, 4X4 ANYTHING,

15

LLC, SPARKS MOTORS, LLC, DAVID (2) GRANTING PLAINTIFF’S

16 W. SPARKS, DAVID KILEY, JOSHUA MOTION FOR LEAVE TO AMEND STUART, AND KEATON HOSKINS, COMPLAINT, (Doc. No. 14) 17 Defendants. 18

19 Diesel Power Gear, LLC (“DPG”), DIESELSellerz.com, LLC (“DIESELSellerz”), 20 4X4 Anything, LLC (“4X4 Anything”), Sparks Motors, LLC (“Sparks Motors”), David W. 21 Sparks (“Sparks”), David Kiley (“Kiley”), Joshua Stuart (“Stuart”), and Keaton Hoskins 22 (“Hoskins”) (collectively referred to as “Defendants”) move to dismiss with prejudice 23 Hemlock Hat Company, Inc.’s (“Plaintiff”) Complaint pursuant to Federal Rule of Civil 24 Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (See Doc. 25 No. 11.) Plaintiff filed an opposition to Defendants’ motion to dismiss. (See Doc. No. 14.) 26 Defendants filed a reply in support of the motion. (See Doc. No. 17.) Pursuant to Civil 27 Local Rule 7.d.1, the Court finds the matter suitable for determination on the papers and 28 without oral argument. For the reasons discussed herein, the Court GRANTS Defendants’ 1 motion to dismiss and GRANTS Plaintiff’s motion for leave to amend. 2 I. BACKGROUND 3 Plaintiff was formed in 2016 to design, market, and sell specialty headwear and 4 apparel. (Doc. No. 1-2 at 3.) Plaintiff is a company located in Southern California that 5 “sells various hats throughout the country via its website www.hemlockhatco.com, 2000+ 6 brick and mortar retail locations, amazon.com[,] and other well-known retail channels.” 7 (Id.) According to Plaintiff, its company is distinguished in the headwear industry because 8 of “its fashionable and unique straw hats featuring under brim designs.” (Doc. No. 14 at 9 2.) Defendants are best known for their reality television show, “Diesel Brothers,” which 10 “airs on Discovery Channel and features diesel trucks being modified for recreational use.” 11 (Doc. No. 11 at 5.) 12 Plaintiff alleges that “Defendants were/are manufacturing, producing, marketing, 13 distributing, and/or offering for sale a straw hat” similar to one of Plaintiff’s straw hat 14 designs. (Doc. No. 1-2 at 4.) Plaintiff claims that Defendants intentionally copied the 15 American flag inspired design, where “instead of the parallel white-red strip combo, 16 Hemlock’s design has a red background with white stripes crossing and overlapping over 17 each other[,]” (alleged copyrighted “Design”). (Doc. No. 14 at 2.) Aside from the “near- 18 identical under the brim design,” Plaintiff adds there are numerous other similarities like 19 the “distinctive 6-sided patch on the front of the hat, the color scheme of the patch[,] and 20 the overlap of the under-brim design on the top of the hat[.]” (Doc. No. 1-2 at 4.) On July 21 26, 2019, Plaintiff sent a cease and desist letter to Defendant DPG. (Id. at 5.) Plaintiff 22 asserts Defendants are aware that they do not own the design, but still “attempt[s] to pass 23 it off as their own.” (Id. at 5.) Plaintiff asserts two claims against Defendants for (1) 24 common law copyright infringement under Cal. Civ. Code § 980, and (2) unfair business 25 practices under California’s Unfair Competition Law (“UCL”), Cal. Bus. Prof. Code 26 § 17200 et seq. 27 // 28 // 1 II. PROCEDURAL HISTORY 2 On November 12, 2019, Plaintiff filed its Complaint against Defendants in the 3 Superior Court of California, County of San Diego, alleging claims for common law 4 copyright infringement and unfair competition. (Doc. No. 1-2.) On December 17, 2019, 5 Defendants filed a notice of removal of this action to the United States District Court for 6 the Southern District of California. (Doc. No. 1 at 1.) Then on March 5, 2020, Defendants 7 filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). 8 (Doc. No. 11.) Plaintiff opposed the motion, and Defendants replied. (Doc. Nos. 14–17.) 9 This order follows. 10 III. LEGAL STANDARDS 11 A. Motion to Dismiss for Failure to State a Claim 12 Defendants seek Rule 12(b)(6) dismissal of the Complaint on the grounds that 13 Plaintiff does not possess a common law copyright, and that this action is preempted by 14 the Copyright Act (17 U.S.C. § 1 et seq.). (Doc. No. 11 at 8.) A motion to dismiss pursuant 15 to Rule 12(b)(6) tests the legal sufficiency of the complaint. See Navarro v. Block, 250 16 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain statement of the 17 claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Plaintiffs 18 must also plead, however, “enough facts to state a claim to relief that is plausible on its 19 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard thus 20 demands more than a formulaic recitation of the elements of a cause of action or naked 21 assertions devoid of further factual enhancement. See Ashcroft v. Iqbal, 556 U.S. 662, 678 22 (2009). Instead, the complaint “must contain sufficient allegations of underlying facts to 23 give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 24 652 F.3d 1202, 1216 (9th Cir. 2011). 25 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 26 truth of all factual allegations and must construe them in the light most favorable to the 27 nonmoving party. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 28 The court need not take legal conclusions as true “merely because they are cast in the form 1 of factual allegations.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting 2 W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, “conclusory 3 allegations of law and unwarranted inferences are not sufficient to defeat a motion to 4 dismiss.” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998). 5 B. Motion for Leave to Amend the Complaint 6 Plaintiff requests leave to file its First Amended Complaint to (1) add other causes 7 of action (i.e., trade dress infringement and business tort where competitor steals the design 8 of a competitor) and (2) add facts arising out of Defendants’ fraudulent conduct. (Doc. No. 9 14 at 9.) Federal Rule of Civil Procedure 15 mandates that leave to amend “be freely given 10 when justice so requires.” Fed. R. Civ. P. 15(a). “[T]he grant or denial of an opportunity to 11 amend is within the discretion of the District Court . . . .” Foman v. Davis, 371 U.S. 178, 12 182 (1962). The Court considers five factors when granting leave to amend: bad faith, 13 undue delay, prejudice to the opposing party, futility of amendment, and whether the 14 plaintiff has previously amended the complaint. See Johnson v. Buckley, 356 F.3d 1067, 15 1077 (9th Cir. 2004). 16 In applying the factors, “[n]ot all factors merit equal weight.” Eminence Capital, 17 LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “[I]t is the consideration of 18 prejudice to the opposing party that carries the greatest weight.” Id. Defendants bear the 19 burden of showing that they would be unduly prejudiced by the allowance of the 20 amendment. Id. “Absent prejudice, or a strong showing of any of the remaining [ ] factors, 21 there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. “A 22 district court does not abuse its discretion when it denies leave to amend where a plaintiff 23 . . . did not propose any new facts or legal theories for an amended complaint and therefore 24 give the Court any basis to allow an amendment.” Boehm v. Shemaria, 478 Fed. App’x. 25 457, 457 (9th Cir. 2012). When amendment would be futile, the district court need not 26 grant leave to amend. See Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). 27 // 28 // 1 IV. DISCUSSION 2 A. Preliminary Matters 3 The Court addresses three procedural issues before discussing the merits of the 4 motion to dismiss: (1) Plaintiff’s untimely opposition to the motion to dismiss; (2) 5 Plaintiff’s proposal to convert the motion to dismiss to a motion for summary adjudication; 6 and (3) Defendants’ motion to strike Plaintiff’s declaration. 7 First, Defendants assert that Plaintiff’s response to Defendants’ motion to dismiss 8 should be stricken pursuant to Local Rule 7.1(e)(7) because it was filed one month after 9 the deadline without leave to file an untimely response. (Doc. No. 17 at 2.) While Plaintiff’s 10 opposition was untimely, this Court will consider Plaintiff’s opposition for the sake of 11 deciding the case on the merits, and because Defendants were not prejudiced by the delay. 12 See Sanchez v. Aurora Loan Servs., LLC, No. CV1308846MMMRZX, 2014 WL 13 12589660, at *4 (C.D. Cal. June 10, 2014) (“In the interest of deciding the case on the 14 merits, however, and because defendants were able to file a sixteen-page, substantive reply 15 and do not appear to have been prejudiced by Sanchez’s untimely opposition, the court 16 elects to consider the substance of the motion.”). The Court, however, reminds Plaintiff 17 that any future filing must be timely filed to be considered. Thus, the Court accepts 18 Plaintiff’s response to Defendant’s motion to dismiss without deeming the motion 19 unopposed. 20 Second, Plaintiff asserts that the Court “should consider converting the motion to 21 dismiss into a motion for summary adjudication and then deny the motion based on 22 insufficient time to respond” because Defendants attached two exhibits to their motion, and 23 Plaintiff was not afforded an opportunity for discovery. (Doc. No. 14 at 8–9.) “As a general 24 rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 25 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (2001) (internal quotation 26 marks and citations omitted). However, “[w]hen a party submits an indisputably authentic 27 copy of a document, and the document is referred to in the complaint, the Court does not 28 have to convert the motion into a summary judgment motion.” Rose v. Chase Manhattan 1 Bank USA, 396 F. Supp. 2d 1116, 1119 (C.D. Cal. 2005), aff’d, 513 F.3d 1032 (9th Cir. 2 2008). 3 Here, Defendants attached as exhibits Plaintiff’s cease and desist letter, and 4 Defendants’ response to the cease and desist letter. (Doc. No. 11, Exhibits 1–2.) Although 5 Plaintiff does not dispute the authenticity of both documents, it argues that attachment of 6 the letters warrant conversion to a summary adjudication motion. However, both these 7 documents were referenced in Plaintiff’s Complaint. First, Plaintiff expressly refers to the 8 cease and desist letter sent to Defendant DPG in the Complaint. (Doc. No. 1-2 at 8.) 9 Additionally, Defendant’s response to the cease and desist letter is also referenced when 10 Plaintiff mentioned “Defendants willingly complied with Hemlock’s request to remove the 11 Infringing Hat from Diesel Online Store[.]” (Id. at 9); see Cooper v. Pickett, 137 F.3d 616, 12 623 (9th Cir. 1997) (“[A] court ruling on a motion to dismiss may consider the full texts of 13 documents which the complaint quotes only in part.”). Thus, the Court finds that 14 Defendants’ attachment of the letters to their motion to dismiss does not warrant converting 15 the instant motion into one for summary adjudication. 16 Third, Defendants move to strike the declaration of Anthony Lora (“the Lora 17 Declaration”) attached to Plaintiff’s opposition to the motion to dismiss. (Doc. No. 17 at 18 3.) Defendants argue that “Plaintiff should not be allowed to supplement their deficient 19 complaint with a Declaration and convert this motion into one for summary judgment.” 20 (Id. at 4.) To reiterate, the Court may not consider any material beyond the pleadings. See 21 Lee, 250 F.3d at 688. “In reviewing the district court’s dismissal of the complaint [the 22 court] consider[s] only the contents of the complaint, taking as true all the allegations of 23 material fact.” Cooper, 137 F.3d at 622 (emphasis added). Here, the Lora Declaration adds 24 new facts not alleged or mentioned in the Complaint. Indeed, the declaration provides that 25 Plaintiff attempted to resolve the matter, and then proceeds to add details explaining that 26 the alleged infringing hat was of limited publication. (Doc. No. 15 at 1–2.) None of this is 27 referenced in the Complaint. Thus, the Court declines to consider the Lora Declaration and 28 GRANTS Defendants’ motion to strike. See Jones v. Carraby, No. 18-CV-1609- 1 AJB(WVG), 2019 WL 1950373, at *4 (S.D. Cal. May 1, 2019) (“However, since none of 2 these details appear in the Complaint, the Court cannot consider them because new facts 3 contained in a declaration [are] outside of the four corners of the Complaint.”). 4 B. Plaintiff’s Common Law Copyright and Unfair Competition Claims Are 5 Preempted by the Copyright Act 6 Having addressed the foregoing preliminary issues, the Court turns to the merits of 7 Defendants’ motion to dismiss. Defendants move to dismiss Plaintiff’s common law 8 copyright infringement and UCL claims because Defendants argue that the federal 9 Copyright Act preempts Plaintiff’s state law claims. It must be noted that Plaintiff does not 10 allege or set forth any facts that it has a claim under the federal statutory Copyright Act (17 11 U.S.C. § 1 et seq.) as Plaintiff does not have a registration for the Design. The Court will 12 assess the viability of Plaintiff’s common law copyright and unfair competition claims in 13 different sections below. 14 1. Plaintiff’s Common Law Copyright Infringement Claim 15 First, Plaintiff asserts it has a common law copyright infringement claim under Cal. 16 Civ. Code § 980. Defendants argue that Plaintiff lost its common law copyright protection 17 because Plaintiff affixed the Design in a tangible medium and made a “general 18 publication.” Section 980 provides: 19 (a)(1) The author of any original work of authorship that is not fixed in any tangible medium of expression has an exclusive ownership in the 20 representation or expression thereof as against all persons except one who 21 originally and independently creates the same or similar work . . . . (b) The inventor or proprietor of any invention or design, with or without delineation, 22 or other graphical representation, has an exclusive ownership therein, and in 23 the representation or expression thereof, which continues so long as the invention or design and the representations or expressions thereof made by 24 him remain in his possession. 25 26 Cal. Civ. Code § 980. Neither party disputes the Design is affixed in a tangible medium, 27 i.e., the straw hat. Plaintiff, however, appears to argue that it has exclusive ownership of 28 the Design, that the Design remains in its possession, and that it did not make a “general 1 publication” of the Design. (Doc. No. 14 at 4.) 2 Under the common law copyright protections created by section 980, an author may 3 extinguish his common law copyright protection upon “general publication.” See Zachary 4 v. W. Publ’g Co., 75 Cal. App. 3d 911, 920 (Ct. App. 1977). “General publication” is 5 “dissemination of the work of art itself among the public, as to justify the belief that it took 6 place with the intention of rendering such work common property.” Id. (internal quotations 7 and citations omitted). A limited publication, by contrast, “is one which communicates a 8 knowledge of its contents under conditions expressly or impliedly precluding its dedication 9 to the public.” Carpenter Found. v. Oakes, 26 Cal. App. 3d 784, 795 (1972). A publication 10 is limited only where the work was distributed “(1) to a ‘definitely selected group,’ and (2) 11 for a limited purpose, (3) without the right of further reproduction, distribution or sale.” 12 White v. Kimmell, 193 F.2d 744, 746–47 (9th Cir. 1952); Acad. of Motion Picture Arts & 13 Scis. v. Creative House Promotions, Inc., 944 F.2d 1446, 1452 (9th Cir. 1991). 14 As a preliminary matter, it is unclear whether Plaintiff intended to argue that 15 Defendants had made a limited publication, or if rather Plaintiff itself made a limited 16 publication. (See e.g., Doc. No. 14 at 4 (“Here, sale of the Infringing Hat was a limited 17 publication and Hemlock therefore still owns the common law copyright to the design.”).) 18 However, the Court notes that the focus of the general/limited publication analysis is on 19 Plaintiff’s conduct, and not Defendants’ activities. Cf. Zachary, 75 Cal. App. 3d at 925–26 20 (“What is relevant to the issue of publication is whether [plaintiff’s] conduct could justify 21 the belief that his intent was to render the material common property.”) (emphasis added). 22 To the extent Plaintiff meant to argue that its own publication was limited, the Court 23 concludes the Design was generally published when Plaintiff started selling and 24 distributing the Design affixed in straw hats through various online and retail channels. See 25 Fashion Originators Guild of Am. v. Fed. Trade Comm’n, 114 F.2d 80, 84 (2d Cir. 1940), 26 aff’d, 312 U.S. 457 (1941) (“To embody a design in a dress or a fabric, and offer the dress 27 for general sale was [general] ‘publication[.]’”). Conceding that straw hat manufacturers 28 do not make limited productions, (Doc. No. 1-2 at 10), Plaintiff’s selling and distribution 1 of the Design in large scale quantities “destroyed whatever rights [it] had . . . under the 2 common law copyright.” McIntyre v. Double-A Music Corp., 166 F. Supp. 681, 682 (S.D. 3 Cal. 1958) (holding plaintiff has no common law copyright cause of action because 4 plaintiff made an unlimited sale of the musical arrangement at issue). 5 Plaintiff’s attempt to argue limited publication by stating that the Design was only 6 sold to a selected group—to “only those individuals who purchased the Infringing Hat”— 7 is unavailing. (Doc. No. 14 at 4.) Even if the Court considered the stricken Lora Declaration 8 setting forth the facts for a limited publication, “[t]o qualify as a ‘selected group,’ those 9 receiving the work must be more than just customers self-selected by their desire to 10 purchase the work. Otherwise, ‘all the purchasers of the work’ would qualify as a ‘selected 11 group,’ and all publications would be limited publications.” Unix Sys. Labs., Inc. v. 12 Berkeley Software Design, Inc., No. 92-1667, 1993 WL 414724, at *13 (D.N.J. Mar. 3, 13 1993) (citations omitted). 14 Thus, because the Court finds Plaintiff does not own a common law copyright, 15 Plaintiff’s claim for common law copyright infringement must be dismissed. The Court 16 GRANTS Defendants’ motion to dismiss as to Plaintiff’s common law copyright 17 infringement claim WITHOUT LEAVE TO AMEND. 18 2. Plaintiff’s Unfair Competition Law (“UCL”) Claim 19 Second, Defendants argue that Plaintiff’s UCL claim is preempted by the federal 20 Copyright Act (17 U.S.C. § 1 et seq.). (Doc. No. 11 at 4.) In opposition, Plaintiff asserts 21 “Defendants were/are passing off the Infringing Hat as if it belongs to them[,]” (Doc. No. 22 1-2 at 11), thereby arguing its claim survives preemption because “passing off” is based on 23 the additional element of fraud not present in the federal Copyright Act. (Doc. No. 14.) 24 There is a two-part test to determine whether a state law claim is preempted. “First, 25 the content of the protected right must fall within the subject matter of copyright as 26 described in 17 U.S.C. §§ 102 and 103. Second, the right asserted under state law must be 27 equivalent to the exclusive rights contained in section 106 of the Copyright Act.” Downing 28 v. Abercrombie & Fitch, 265 F.3d 994, 1003 (9th Cir. 2001). “To survive preemption, the 1 state cause of action must protect rights which are qualitatively different from the copyright 2 rights. The state claim must have an extra element which changes the nature of the action.” 3 Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1116 (W.D. Wash. 2010). 4 In light of the Court’s conclusion that Plaintiff has failed to state a claim under 5 common law copyright, the protected right Plaintiff asserts falls within the subject matter 6 of the federal Copyright Act. Therefore, the remaining issue involves the second part of 7 the preemption test. Plaintiff relies primarily on Defendants’ alleged fraudulent conduct as 8 an extra element different from the federal Copyright Act. (Doc. No. 14 at 6.) However, 9 the acts underlying Defendants’ alleged wrongdoing “in essence merely assert a protectable 10 copyright interest” in the Design. Trenton v. Infinity Broad. Corp., 865 F. Supp. 1416, 1428 11 (C.D. Cal. 1994). Plaintiff has no claim under the UCL because it is based entirely upon 12 Plaintiff owning a common law copyright of the Design. Accordingly, the nature of 13 Plaintiff’s UCL claim is not qualitatively different from its copyright infringement claim, 14 and thus preempted by the Copyright Act. See Lanard Toys Ltd. v. Novelty Inc., 511 F. 15 Supp. 2d 1020, 1030 (C.D. Cal. 2007) (“According to the Ninth Circuit, to the extent that 16 a claim for unfair competition is not qualitatively different from a copyright claim, it is 17 preempted by federal copyright law.”). 18 For the reasons set forth above, the Court GRANTS Defendants’ motion to dismiss 19 Plaintiff’s UCL claim based on common law copyright infringement WITHOUT LEAVE 20 TO AMEND. 21 C. Plaintiff Requests Leave to Amend to Add New Facts and a New Cause of 22 Action 23 Having dismissed both of Plaintiff’s claims, the Court turns to Plaintiff’s request for 24 leave to amend. Plaintiff requests leave to add new facts arising out of Defendants’ 25 fraudulent conduct, and new causes of action such as trade dress infringement and/or other 26 business tort claims. (Doc. No. 14 at 9.) Defendants argue generally that “dismissal should 27 be with prejudice since any amendment would be futile because the underlying facts to this 28 lawsuit require Hemlock to possess a registered copyright, which it does not own.” (Doc. 1 No. 17 at 5.) 2 As this is Plaintiff’s first request to amend its Complaint, and Defendants do not 3 explain how an amendment would be prejudicial, the Court will allow an amendment at 4 this early stage of litigation. Moreover, amendment is not necessarily futile because 5 Plaintiff could plead additional facts in support of a new cause of action, such as a trade 6 dress infringement claim, which does not require a registered trademark. See Two Pesos, 7 Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992); Metabyte, Inc. v. NVIDIA Corp., No. 8 12-0044 SC, 2013 WL 1729808, at *6 (N.D. Cal. Apr. 22, 2013) (“Plaintiff may seek leave 9 to amend under Rule 15 if it wishes to assert a different theory of Defendants’ liability[.]”). 10 After review of the proposed amendment, the Court finds it appropriate to GRANT 11 Plaintiff’s request for leave to amend its Complaint. See Knappenberger v. City of Phoenix, 12 566 F.3d 936, 942 (9th Cir. 2009) (“Where dismissal is appropriate, a court should grant 13 leave to amend unless the plaintiff could not possibly cure the defects in the pleading.”). 14 D. Other Pleading Deficiencies 15 Finally, although the Court has already determined that both Plaintiff’s claims fail, 16 for the sake of judicial economy, the Court will note other general deficiencies Plaintiff 17 must avoid in any Amended Complaint. Defendants maintain “[t]he Court should dismiss 18 the Complaint and require Plaintiff to refile it with a more definite statement of its claims 19 under Rule 12(e).” (Doc. No. 11 at 17.) Defendants argue that, aside from DPG, there is 20 “[n]o cognizable injury alleged against Sparks Motors, DIESELSellerz, and 4x4 Anything” 21 (collectively referred to as “Other Company Defendants”). (Doc. No. 11 at 13.) 22 Additionally, Defendants assert that Sparks, Kiley, Stuart, and Hoskins (collectively 23 referred to as “Individual Defendants”) are not personally liable for actions taken on behalf 24 of the companies. (Id. at 15.) 25 First, the Complaint only names these Other Company Defendants, (Doc. No. 1-2 at 26 5,) and does not provide any specificity as to how they are implicated in the production and 27 selling of the alleged infringing straw hats. Plaintiff merely offer conclusory allegations 28 that “Defendants copied, used, and/or reproduced copyrighted Design on the Infringing 1 Hat, which it sold to customers via the Diesel Online Store[.]” (Doc. No. 1-2 at 10.) This 2 improper lumping of all defendants together is insufficient for the Court to “draw the 3 reasonable inference that the [Other Company Defendants are] liable for the misconduct 4 alleged.” Ashcroft, 556 U.S. at 678. 5 Second, Defendants correctly argue that the Complaint does not allege personal 6 liability as to Individual Defendants because the Complaint is vague in alleging specific 7 activities that were done outside the scope of Individual Defendants’ employment. (Doc. 8 No. 11 at 16.) In response, Plaintiff advances its argument under the respondeat superior 9 doctrine, arguing that “[k]nowledge of the agents/employees is imputed to the [I]ndividual 10 Defendants[.]” (Doc. No. 14 at 7.) Plaintiff alleges that an employee or agent of Individual 11 Defendants, or one of Individual Defendants themselves, decided to intentionally copy the 12 Design. (Id. at 8.) Under respondeat superior, “[a] master is subject to liability for the torts 13 of his servants committed while acting in the scope of their employment.” Restatement 14 (Second) of Agency § 219 (1958). “A common application of this doctrine is the liability 15 of an employer for a tort committed by one of its employees acting within the scope of his 16 employment, or for a misleading statement made by an employee or other agent who has 17 actual or apparent authority.” Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1577 n.28 18 (9th Cir. 1990). Here, Plaintiff presented conflicting arguments because it is unclear 19 whether Plaintiff alleges Individual Defendants were acting as the principal or the agent, 20 and additionally what actions were taken by which individual. (See e.g., Doc. No. 1-2 ¶ 21 21 (“Upon information and belief, Defendants, or some of them, use their fame and brash 22 personas to drive traffic to the Diesel Online Store to sell various products.”). 23 Accordingly, the Other Company Defendants and Individual Defendants are 24 DISMISSED. Should Plaintiff include any claims against these Defendants in the 25 Amended Complaint, Plaintiff must avoid the foregoing deficiencies noted above. 26 V. CONCLUSION 27 For the reasons stated herein, the Court: (1) GRANTS Defendants’ motion to 28 dismiss the common law copyright infringement claim WITHOUT LEAVE TO 1 ||} AMEND; (2) GRANTS Defendants’ motion to dismiss the UCL claim based on common 2 copyright infringement WITHOUT LEAVE TO AMEND; (3) GRANTS 3 || Defendants’ motion to dismiss Individual and Other Company Defendants WITH LEAVE 4 ||TO AMEND; and (4) GRANTS Plaintiffs motion for leave to file an Amended Complaint 5 ||to add facts regarding the fraud claim, and a trade dress infringement claim. Plaintiff will 6 ||have twenty-one (21) days from the date of this Order to file its Amended Complaint 7 || addressing the deficiencies noted herein. Failure to file an Amended Complaint will result 8 |/in dismissal of this case. 9 10 IT IS SO ORDERED. 11 || Dated: November 25, 2020 © 12 Hon. Anthony J. attaglia 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13