Charter School Capital, Inc. v. Charter Asset Mgmt. Fund, L.P. ( 2019 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        APR 26 2019
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    CHARTER SCHOOL CAPITAL, INC., a                 No.    17-56601
    Delaware corporation,
    D.C. No.
    Plaintiff-Appellee,             2:14-cv-03385-GW-PLA
    v.
    MEMORANDUM*
    CHARTER ASSET MANAGEMENT
    FUND, L.P., a Delaware Limited
    Partnership; CHARTER ASSET
    MANAGEMENT GP, LLC,
    Defendants-Appellants,
    and
    PAUL IM; DAVID PARK; CHARTER
    ASSET MANAGEMENT, LLC,
    Defendants.
    CHARTER SCHOOL CAPITAL, INC., a                 No.    17-56603
    Delaware corporation,
    D.C. No.
    Plaintiff-Appellant,            2:14-cv-03385-GW-PLA
    v.
    CHARTER ASSET MANAGEMENT
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    FUND, L.P., a Delaware Limited
    Partnership; CHARTER ASSET
    MANAGEMENT GP, LLC,
    Defendants,
    and
    PAUL IM; DAVID PARK; CHARTER
    ASSET MANAGEMENT, LLC,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    George H. Wu, District Judge, Presiding
    Argued and Submitted April 8, 2019
    Pasadena, California
    Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District
    Judge.
    Defendants-Appellants Charter Asset Management Fund, L.P. and Charter
    Asset Management GP, LLC (together, “CAM”) appeal from a jury verdict finding
    CAM liable for copyright infringement and awarding $1,174,642 in profits to
    Plaintiff-Appellee Charter School Capital, Inc. (“CSC”). CSC cross-appeals the
    district court’s post-trial rulings granting a new trial and summary judgment to
    Defendants and Cross-Appellees Paul Im and David Park (together, the “Individual
    **
    The Honorable Jed S. Rakoff, United States District Judge for the
    Southern District of New York, sitting by designation.
    2
    Defendants”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1
    1.     There was sufficient evidence for the jury to find that CAM was liable
    for copyright infringement of either the 2013 form receivables purchase agreement
    (the “Form RPA”) or the 2012 receivables purchase agreement between Avance
    Academia and CSC (the “Avance RPA”). See L.A. Printex Indus., Inc. v.
    Aeropostale, Inc., 
    676 F.3d 841
    , 846 (9th Cir. 2012). There was testimony
    suggesting that the Avance RPA was covered by the assignment agreement
    because the Avance RPA was essentially the Form RPA with the blanks filled in,
    and CSC’s general counsel testified that the copyright application for the 2012
    financing documents included the Avance RPA. CSC’s counsel also testified that
    she compared CAM’s form not only to the Avance RPA, but also to the CSC
    template form and concluded they were substantially similar.
    2.     Even if the district court abused its discretion by admitting evidence
    that CAM had sued its lawyers for malpractice and then dismissed the suit, CAM
    has not demonstrated prejudice. See Ruvalcaba v. City of L.A., 
    64 F.3d 1323
    , 1328
    (9th Cir. 1995) (“District courts are granted broad discretion in admitting
    evidence,” and a “new trial is only warranted when an erroneous evidentiary ruling
    1
    We deny CAM’s motion to transmit a demonstrative exhibit, which was
    not admitted into evidence below. 17-56601, Dkt. 38; 17-56603, Dkt. 37. We also
    deny CAM’s motion for the Court to consider additional authority, which CAM
    could have cited in its briefs. 17-56601, Dkt. 69; 17-56603, Dkt. 68.
    3
    substantially prejudiced a party.”) (internal quotation marks and citations omitted).
    3.     The district court did not abuse its discretion by admitting evidence
    regarding the amount of fees that CAM and CSC paid their respective attorneys to
    draft the legal forms. In light of CAM’s argument at trial that its profits were
    attributable to its lower prices, the fee evidence was relevant to proving a causal
    nexus between CAM’s profits and the infringing form. See 17 U.S.C. § 504(b).
    CSC did not use the fees evidence to support a “sweat of the brow” theory. See
    Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 
    499 U.S. 340
    , 352-56 (1991).
    4.     The district court did not plainly err by instructing the jury that it
    should compare the forms “side-by-side.” Although the model instructions do not
    include this language, they do state that the “court and counsel [should]
    specifically craft instructions on substantial similarity based on the particular
    work(s) at issue, the copyright in question, and the evidence developed at trial.”
    See Ninth Circuit Manual of Model Civil Jury Instructions (“Model Instructions”)
    § 17.19. Moreover, the district court accurately instructed the jury regarding the
    extrinsic and intrinsic tests.
    5.     The district court did not plainly err by including a jury instruction on
    joint authorship. The instruction was legally accurate, see Model Instructions
    § 17.9, and CAM has not shown prejudice.
    6.     The district court did not abuse its discretion by denying CAM’s
    4
    motion for a new trial based on excessive damages. Once CSC presented evidence
    of CAM’s gross revenue and established a causal nexus between the revenue and
    the infringement, the burden shifted to CAM to prove its expenses and whether any
    profits were attributable to other factors. See 17 U.S.C. § 504(b). The district court
    correctly afforded the jury’s verdict “substantial deference” and concluded that
    CAM failed to carry its burden of proving that CAM’s profits were attributable to
    other factors. See Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 
    95 F.3d 1422
    , 1435 (9th Cir. 1996) (“We must uphold the jury’s finding unless the amount
    is grossly excessive or monstrous, clearly not supported by the evidence, or based
    only on speculation or guesswork.”).
    7.     The district court correctly granted the Individual Defendants’ motion
    for a new trial and summary judgment. CSC submitted no evidence showing that
    the Individual Defendants profited separately from CAM. See Model Instructions
    § 17.34 (“The defendant’s gross revenue is all of the defendant’s receipts from” the
    use of the copyrighted work. “The plaintiff has the burden of proving the
    defendant’s gross revenue by a preponderance of the evidence.”); Frank Music
    Corp. v. Metro-Goldwyn-Mayer, Inc., 
    772 F.2d 505
    , 519 (9th Cir. 1985) (“[O]ne
    defendant is not liable for the profit made by another.”).
    AFFIRMED.
    5