Rewa Kumar v. Deepak Ji

Case Name: Kumar v. Ji, et al.

Case No.: 1-13-CV-245770

 

Defendants Deepak Ji (“Deepak”), Farah Sonan (“Sonan”) and Deepak Mantra Registered (collectively, “Defendants”) move for summary judgment, or alternatively, summary adjudication against plaintiff Rewa Kumar (“Plaintiff”).

 

Defendants’ motion for summary judgment is DENIED.

 

Defendants’ alternative motion for summary adjudication is GRANTED as to the conversion cause of action and DENIED as to the fraud cause of action.  After full consideration of the evidence, separate statements and authorities submitted by each party, the Court finds that Defendants met their initial burden with respect to the former cause of action but not the latter.

 

Plaintiff’s “third” cause of action for conversion is preempted by the Federal Copyright Act of 1976.  (See 17 U.S.C. § 301.)  Contrary to Plaintiff’s assertions, her claim for conversion under state law, as pleaded here, does not contain “the necessary qualitatively different extra element distinguishing it from copyright protection.”  (Kabehie v. Zoland (2002) 102 Cal.App.4th 513, 520, citing Balboa Ins. Co. v. Trans Global Equities (1990) 218 Cal.App.3d 1339, 1342.)  Here, Plaintiff alleges that Defendants “took unauthorized possession of the Compilation in order to take commercial use thereof” and “converted the same for their own use …, plagiarizing it in the Book and selling copies thereof for profit.”  (FAC at ¶ 29.)  Thus, the thrust of Plaintiff’s claim is that Defendants have misappropriated the contents of the Compilation.  This is “part and parcel” of a copyright claim and is therefore preempted.  (See Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 792; see also Diesel v. Falk (C.D. Cal. 1996) 916 F.Supp. 985, 992.)  Plaintiff is not alleging a claim of conversion to recover for the physical deprivation of the Compilation; instead, she is seeking to recover for damages flowing from its essential reproduction and distribution in the form of the Book .

 

With respect to the fraud claim, Defendants’ first assertion that Plaintiff admitted lacking evidence of the falsity of Sonan’s alleged misrepresentation is easily dispensed with, as it rests on the erroneous understanding that that misrepresentation was whether or not Sonan would use the Compilation to rectify her or Deepak’s homes.  When reading the FAC in toto, it is clear that the heart of Plaintiff’s fraud claim is that Sonan falsely represented to her that she would use the Compilation only for one purpose- to rectify her home or Deepak’s- and not for any other.  In other words, the issue is not whether Sonan did, in fact, use the Compilation for the stated reason, but whether she solely used it for that reason.  Consequently, whether or not Sonan actually used the Compilation on her home is irrelevant.

 

Defendants’ next assertion, that Plaintiff cannot establish that she justifiably relied on Sonan’s alleged misrepresentations, is not supported by the evidence cited.  Further, Defendants notably avoid Plaintiff’s deposition testimony that it was objectionable to her that they used the Compilation for commercial purposes.  (See Plaintiff’s Deposition, 147:25-148:16.)

 

Finally, in attempting to establish that Plaintiff lacks evidence of her alleged damages, Defendants’ fail to meet their burden under Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.)  When a defendant attempts to obtain summary judgment by demonstrating the absence of evidence on a critical element of the plaintiff’s claim, as Defendants are attempting here, it is not enough for the defendant to show that the plaintiff “has no evidence” on that key element.  (See Aguilar, supra, 25 Cal.4th at 855, fn. 23; see also Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant must also produce evidence showing that the plaintiff cannot reasonably obtain evidence to support that claim.  Defendants fail to do so here and simply cite to general sets of written discovery without reference to specific responses, leaving the Court unable to determine what specifically demonstrates Plaintiff’s lack of evidence.  Moreover, many of the responses in the requests cited are comprised solely of objections; the lack of a substantive response is not equivalent to an admission that the party lacks evidence.  (See e.g., Guggero, supra, 108 Cal.App.4th at 891-892.)

 

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