DocketNumber： Related Case Nos. 3:17-cv-06866-WHO; 3:17-cv-06867-WHO
Citation Numbers： 329 F. Supp. 3d 1000
Judges： Orrick
Filed Date： 6/28/2018
Status： Precedential
Modified Date： 7/25/2022
INTRODUCTION
This litigation is grist for its own novel. From 2009 through 2012, Emma Cline, author of the 2016 best-selling novel The Girls , was romantically involved with writer Chaz Reetz-Laiolo, who is 13 years her senior. She accuses him of domestic abuse and other terrible conduct during and after their relationship. And he accuses her of awful conduct, including stealing his work for her book and intruding into his email and bank accounts, and the email accounts of Kari Bernard, their mutual friend and former roommate, and Kristin Kiesel, a romantic partner of Reetz-Laiolo.
After a year of trying to settle their dispute out of court, the parties filed separate lawsuits, which were subsequently related. Cline, The Clegg Agency (her literary agent), and Penguin Random House LLC (publisher of The Girls ) bring claims for declaratory judgment of non-infringement and preemption of Reetz-Laiolo's conversion and civil theft claims. Cline also brings a claim for declaratory judgment on *1014certain statutes of limitations. And she asserts claims for conversion, domestic violence, intentional infliction of emotional distress, and tortious interference with prospective economic advantage. He brings claims for copyright infringement, conversion, trespass to chattels, civil theft, and intentional or reckless infliction of emotional distress. Bernard and Kiesel join him in asserting claims under the Federal Stored Communications Act, Federal Wiretap Act, Computer Fraud and Abuse Act, California Invasion of Privacy Act, California Computer Crime Law, the California Constitution, and for intrusion upon seclusion. This order addresses the parties' motions to dismiss.
BACKGROUND
I. FACTUAL BACKGROUND
A. The Relationship and The Dispute
In June 2009, Cline was a 20-year-old college student when she met 33-year-old Reetz-Laiolo, a writer and lecturer at the Academy of Art University in San Francisco. Cline Compl. ¶¶ 55, 57 (Dkt. No. 1); Reetz-Laiolo Am. Compl. ¶¶ 32-35, 38 (Dkt. No. 38). Prior to that, Cline had published short stories in various publications, including Tin House , Post Road Magazine, and The Paris Review. Cline Compl. ¶ 57; Reetz-Laiolo Am. Compl. ¶ 37. Reetz-Laiolo had also published works in publications, including The Paris Review. Cline Compl. ¶ 28; Reetz-Laiolo Am. Compl. ¶ 30. The two soon became romantically involved; she thereafter withdrew from college and moved in with Reetz-Laiolo in December 2009. Cline Compl. ¶ 55; Reetz-Laiolo Am. Compl. ¶¶ 2, 38-39. Cline lived with Reetz-Laiolo in Berkeley until the fall of 2011, when she moved to New York to begin a Masters in Fine Arts program at Columbia University. Cline Compl. ¶¶ 55, 72; Reetz-Laiolo Am. Compl. ¶¶ 39, 41 The relationship continued off and on until February 2012, after which the two remained in contact. Cline Compl. ¶¶ 55, 77; Reetz-Laiolo Am. Compl. ¶¶ 42-43.
By September 2014, Cline had completed a draft of The Girls. Cline Compl. ¶ 20; Reetz-Laiolo Am. Compl. ¶¶ 159-60. She had repeatedly asked Reetz-Laiolo to read her drafts, "both because she wanted his input and so he would be aware that certain facts from his life and their shared life had been included." Cline Compl. ¶ 20; see Reetz-Laiolo Am. Compl. ¶ 163 (explaining that he initially declined to read the draft novel because "[h]e wished to avoid further emotional entanglement with her").
On October 3, 2014, Penguin Random House LLC ("Random House") bought the rights to publish The Girls for $2 million. Cline Compl. ¶ 22; Reetz-Laiolo Am. Compl. ¶ 161. Cline called Reetz-Laiolo shortly after to tell him her novel had sold. Cline Compl. ¶ 22. According to Reetz-Laiolo, Cline sent him a G-chat message on November 28, 2014, stating "i will be exposed as a plagiarizer ... paid 40 bucks to run novel through online plagiarism detector." Reetz-Laiolo Am. Compl. ¶ 162.
On February 24, 2015, he finally agreed to read the manuscript, but days later changed his mind and asked Cline to "send him any passages she thought might concern him[.]" Cline Compl. ¶ 29. But see Reetz-Laiolo Am. Compl. (indicating that Cline refused to send the manuscript and instead sent a document with excerpts). On March 3, 2015, she sent him "eight brief *1015phrases and snippets from her draft novel, then 355-pages, that she thought he should know about." Cline Compl. ¶ 30; Reetz-Laiolo Am. Compl. ¶ 165; see also Reetz-Laiolo Am. Compl. ¶¶ 165-167.
On October 12, 2015, Reetz-Laiolo requested a draft of The Girls manuscript that was sold to Random House.
On January 15, 2016, Reetz-Laiolo sent Cline a demand letter, itemizing 36 instances of "infringement." Cline Compl. ¶ 35; Reetz-Laiolo ¶¶ 9, 177.
On June 14, 2016, The Girls was published in hardcover to widespread acclaim. Cline Compl. ¶ 43. It debuted at number three on The New York Times Hardcover Fiction Bestseller list, and remained on the list for 12 weeks. Id.
On February 21, 2017, Reetz-Laiolo's new (current) counsel sent Cline and Random House a demand letter setting forth two theories of copyright infringement. Cline Compl. ¶¶ 45-47. On February 22, 2017, the parties entered into a tolling agreement. See Reetz-Laiolo MTD at 5 (Dkt. No. 34). On March 30, 2017, Reetz-Laiolo's counsel followed up with a draft complaint (the "First Draft Complaint").
On May 26, 2017, Reetz-Laiolo's counsel provided Cline with five separate drafts of All Sea , but later claimed that portions of the challenged passages originated from only one of the five drafts, dated June 17, 2013. Cline Compl. ¶ 50; see 6/17/13 All Sea Draft (Cline Compl., Ex. A). According to Cline, Reetz-Laiolo's counsel indicated that the remainder originated from two later drafts, dated December 26, 2013 and June 24, 2014, respectively. Cline Compl. ¶ 50; see 12/26/13 All Sea Draft (Cline Compl. Ex. B); 6/24/14 All Sea Draft (Cline Compl., Ex. C). These versions were provided to Cline and Random House for the first time on July 28, 2017. Cline Compl. ¶ 50.
*1016B. The Works
1. Cline's The Girls
In 2008, Cline composed three short stories that "contained the conceptual seeds ... that would develop over the years into The Girls. " Cline Compl. ¶¶ 17, 18. Those seeds were "the close, formative relationship between adolescent girls, the setting of a Sonoma County commune in the 1960s, and the dark underbelly of violence reflected in the Manson Family story[.]" Id. ¶ 17. She also incorporated factual details from her life, including information she learned while dating Reetz-Laiolo. Id. ¶ 19. She completed a draft manuscript of The Girls in September 2014. Id. ¶ 20. That same month, Cline's literary agency (The Clegg Agency) sent the manuscript to publishers, and included the following description of the novel:
... Emma Cline returns us to the combustable [sic] summer of 1969 and drops us onto the sun-scorched sidewalks of Marin County behind the bored and troubled eyes of 14-year-old Evie. Stranded in the lonely gulf between recently divorced parents and filled with a desperate restlessness, Evie leans with obsessive abandon into an accidental friendship with an older and beguiling drifter named Suzanne. Wide-eyed and smitten, Evie is easily towed into the turbulent waters of a soon-to-be-infamous commune, quickly finding herself under the sway of a madman and closer than she knows to unthinkable violence. Emma Cline's story of how a rudderless girl finds herself at the flashpoint of a stumbling counter-culture at decade's end delivers a hauntingly precise investigation into how power is lost when we look to find it in others, how frighteningly mutable the unformed, inchoate self can be, and just how far that self will go to be seen and named.
Id. ¶ 21; see also Reetz-Laiolo Am. Compl. ¶ 160.
2. Reetz-Laiolo's Works
Reetz-Laiolo alleges that Cline stole "numerous narrative overlaps" from his All Sea manuscript. Reetz-Laiolo Am. Compl. ¶ 195. He focuses on "a sequence of scenes in which the protagonist, a teenager named Gabe, interacts with his single mother when she comes home with her boyfriend, commits burglary at the behest of a friend from whom he wants acceptance, and, after he is caught, is sent away to live with a father figure character named Ray." Reetz-Laiolo Am. Compl. ¶ 197.
He also includes several "phrase- and sentence-level instances of plagiarism in the original draft that Cline and Clegg submitted to Random House." Id. ¶ 199.
Reetz-Laiolo outlines scenes from All Sea -not included in "Fadein.doc"-that he suggests Cline incorporated into The Girls. Reetz-Laiolo Am. Compl. ¶ 198. According to him, Cline could only have obtained a copy of All Sea from her unauthorized intrusions into his Yahoo account. Id. ; see infra section I.D.2, His Version-The Spyware and The Coverup.
C. Her Version
1. The Infidelity
Cline indicates that Reetz-Laiolo was "habitually unfaithful" to her. Cline Compl. ¶ 60. Over the course of the relationship, Reetz-Laiolo's behavior turned violent and abusive. Id. He routinely read her email, text messages, Facebook messages, and personal journal. Id. ¶ 61. On at least two occasions, he emailed himself "the entirety of Cline's private journal." Id. ¶ 63. When she attempted to stand up for herself, he would threaten to humiliate her by revealing private facts to her family and friends. Id. ¶ 61.
In March 2010, she discovered that he had been sleeping with "Ms. K," his ex-girlfriend.
*1017Id. ¶ 59. In the summer of 2010, Cline learned that Ms. K had informed Reetz-Laiolo months earlier that Ms. K had tested positive for a sexually transmitted disease, and "she had noticed him showing symptoms ... and urged him to tell Cline of her possible exposure." Id. ¶ 66. Reetz-Laiolo did not tell Cline; rather, he continued to have unprotected sex with her. Id. When Cline confronted him, he denied that he was still seeing Ms. K. Id. ¶ 67.
2. The Keylogger Software
In September 2010, "in an attempt to protect herself from Reetz-Laiolo's prying into her personal documents, the possibility of future sexual transmission of disease, and any other deceptions," Cline installed on her computer a free keylogger program from a company called "Refog." Cline Compl. ¶ 69. The keylogger program recorded keystrokes and collected screenshots on Cline's computer, including the two instances where Reetz-Laiolo emailed himself a copy of Cline's personal journal. Id. ¶¶ 69-70, 74.
In February 2011, Reetz-Laiolo promised to stop seeing other women, and Cline decided to uninstall the Refog software and stop accessing his email. Cline Compl. ¶ 71. On February 10, she told him that she had gained access to his email and that he should change his password. Id. In December 2011, as she was planning to return to Berkeley for winter break, Reetz-Laiolo told her that he had been suffering from symptoms associated with STDs. Id. ¶ 73. When she arrived in Berkeley, she downloaded on her computer a free three-day trial version of Refog's "Personal Monitor" software, which had enhanced functionality. Id.
In February 2012, Cline reviewed the activity captured by the Refog software and discovered that Reetz-Laiolo had stolen her personal journal. Id. ¶ 75. When she confronted him, he assured her he would delete the journal, but he still possesses it. Id. When he asked how she could have known about what he did, she explained the keylogger software to him. Id. The relationship ended soon after, but they remained in contact. Id. ¶¶ 76-77.
3. After the Break-Up
In July 2012, Cline visited Reetz-Laiolo in Berkeley while on summer break from Columbia. Cline Compl. ¶ 64. He looked through her text messages as she was sleeping, and became so incensed at what he perceived as flirtatious that he deleted the message, held her down on the bed and choked her so violently that she could not breathe. Id. When she said she would call the police, he again threatened to humiliate her by exposing highly personal information to family members. Id. He threw all of her possessions into the street. Id.
In December 2012, Reetz-Laiolo asked Cline to sell him her two-year-old laptop for $300, a fraction of its value, because he could not afford a new computer. Cline Compl. ¶ 77. Cline finally agreed, but indicated that she would wipe the hard drive first. Id. Reetz-Laiolo asked that she leave the computer's applications intact so that he could use her licensed copy of Microsoft Word without paying for a license for himself. Id.
In January 2013, Cline brought the computer to a tech professional to have all her personal files transferred to her new computer and deleted from the old one. Cline Compl. ¶ 78. Unbeknownst to her, the Refog software, "which she had accessed only three times in the preceding year[,]" along with all of the activity it had logged from September 2010 to February 2011 and from December 2011 until January 2013, remained on her computer when she sold it to Reetz-Laiolo. Id. ¶¶ 78-79. The records included private correspondence, journal entries, intimate web browsing history, and photographs. Id. ¶ 83. Cline has *1018made repeated requests that Reetz-Laiolo "return to her the records of her personal computer activity, which do not belong to him." Id. ¶ 98.
4. After the Book Deal
On October 22, 2014, shortly after Cline had informed Reetz-Laiolo that Random House had purchased rights to The Girls , the two met for lunch in San Francisco. Cline Compl. ¶ 26. He responded that perhaps people would be interested in nude photographs of her given her newfound literary fame. Id. He also told her that he had been contacted by a magazine to write a tell-all article about her, and he planned to do it. Id. After he had reduced Cline to sobbing in public, he told her he was just joking. Id.
In February 2015, Reetz-Laiolo informed Cline that the Refog software and the associated data were still on the computer she had sold him. Cline Compl. ¶ 81. He asked her if she had been remotely accessing the computer, and she informed him she had no way of doing that. Id.
In October 2015, after Reetz-Laiolo read the outdated version of the manuscript, he accused Cline of "vile" plagiarism and told her "I wouldn't publish this book if I were you." Cline Compl. ¶ 33. Cline informed her literary agent Bill Clegg, and Clegg informed Cline's editor at Random House. Id.
As Reetz-Laiolo "began to realize the weakness of his copyright claims against Cline," he devised a plan to use the Refog records to exploit her and "extract a financial windfall from Cline and Random House through alternative means." Cline Compl. ¶¶ 84-85. Part of this plan included a theory that Cline accessed the computer remotely, even though Reetz-Laiolo knew that the Refog software did not provide that functionality. Id. ¶¶ 87-88. The "remote access theory" was necessary because any claims Reetz-Laiolo may have had based on Cline's use of the Refog software were time-barred. Id. The theory was eventually incorporated into the First Draft Complaint, as well as Reetz-Laiolo's complaint in this action. See infra section I.D.4, His Story-The Copying.
Reetz-Laiolo also included accusations that Cline had plagiarized other writers during her coursework in the MFA program at Columbia. Cline Compl. ¶ 91. He knew that "neither of these instances arose to anything illegal or improper on Cline's part[,]" but knew that the accusations would smear Cline's reputation at a pivotal point in her career. Id. ¶ 92.
In the First Draft Complaint, Reetz-Laiolo and his counsel included screenshots of Cline highlighting and copying erotic literature from the internet into a document, and alleged that these were a further example of Cline's "plagiarism." Cline Compl. ¶ 93. But the First Draft Complaint failed to identify any corresponding passages in Cline's work; rather, according to Cline, the allegations were only included to humiliate her. Id.
Months later, Reetz-Laiolo sent a revised draft complaint (the "May 26 Draft Complaint"), which "incorporated over ten pages of screenshots of Cline's most sexually explicit chat messages (along with the full names of individuals she chatted with, calculated to identify those most likely to have recognizable names), and records of intimate details of her sexual fantasy life." Cline Compl. ¶ 94; see also Cline Decl., Ex. A.
5. The Fall Out
Since this ordeal began, Cline has suffered substantial personal and professional injury, including physical symptoms such as significant weight loss and insomnia. Cline Compl. ¶ 100. She has been forced to seek medical and psychological care, and has been prescribed medication. Id. She has also had to cancel an international book tour, and numerous other public appearances, paid speaking engagements, residencies, and travel plans. Id. She has also had to pass on opportunities to sell or option the film rights to The Girls because she was "unwilling to subject a producing partner to these harassing claims, even as frivolous as they are." Id. She has also been unable to focus on creating new work. Id.
D. His Version
1. The Loving Relationship, The Roommate, and The Close Friend
Reetz-Laiolo describes the relationship as loving, although "not, from the beginning, a monogamous one on either party's behalf." Reetz-Laiolo Am. Compl. ¶ 38. Cline herself spoke of her affectionate relationship with Reetz-Laiolo in a published article. Reetz-Laiolo Am. Compl. ¶¶ 39-40. After the relationship ended in January 2012, "Cline continued to approach Reetz-Laiolo about getting back together." Id. ¶ 42. He continued to be invited to her family dinners and parties as late as the spring of 2015. Id. ¶ 43.
During the summer of 2010, plaintiff Kari Bernard sublet a room in Reetz-Laiolo's Berkeley apartment, while Cline was also living there. Reetz-Laiolo Am. Compl. ¶ 44. In September 2010, Cline's parents hired Bernard as a farm manager at the Green String Farm in Sonoma, where she worked until November 2016. Id. ¶ 45.
In August 2010, Cline and Reetz-Laiolo took a three-week trip to Italy to help Cline's parents decorate a villa they had purchased in Cortona. Id. ¶ 46. Bernard and another friend traveled with them for a brief time during this trip. Id. ¶ 47. While abroad, Bernard occasionally used Cline's computer with her knowledge and consent. Id. ¶ 48.
Plaintiff Kristin Kiesel was romantically involved with Reetz-Laiolo from 2007 through 2009. Reetz-Laiolo ¶ 51. After the relationship ended, they remained close friends, and were occasionally intimate. Id.
2. The Spyware and The Coverup
At some point prior to the 2010 trip to Italy, Cline installed the Refog software on *1020her computer as part of "an elaborate and prolonged operation to secretly spy on [p]laintiffs." Reetz-Laiolo Am. Compl. ¶¶ 52, 56. The Refog software, marketed as a tool for parents concerned about their children's safety, describes the "Keylogger" program as follows:
Running unobtrusively and undetectable in the background of your PC, Refog Keylogger will store everything your kids, copy and paste on the computer, capture periodic snapshots of the computer's screen, log chats and social networking conversations and keep track of all Web resources and applications used on that PC.
Id. ¶ 54. Refog's website indicates that the legality of the Keylogger program "depends upon how it is being used[,]" and it "can be illegal if you are using it for criminal purposes such as stealing personal data and financial information." Id. ¶ 55.
Cline used the Keylogger program to capture passwords for various online accounts of Reetz-Laiolo, Bernard, and Kiesel, and used the passwords to "break into [those] accounts repeatedly over a period of years, without [plaintiffs'] knowledge or consent." Reetz-Laiolo Am. Compl. ¶¶ 57-58. Refog ran continuously on Cline's computer and "intercepted some of [p]laintiffs' emails, chat messages, bank account data, usernames, passwords and other sensitive information submitted and received through websites by taking screenshots of these electronic communications while they were in transit." Reetz-Laiolo Am. Compl. ¶ 60; see also id. ¶ 115-119 (describing and documenting Cline's access into Reetz-Laiolo's online Wells Fargo account).
Cline used the passwords to access the Reetz-Laiolo plaintiffs' online accounts after she and Reetz-Laiolo had separated, and years after she and Bernard ceased regular contact. Id. ¶ 71. She also "scoured through emails ... dating from many years before she had met them[,]" and "recorded ... some of [p]laintiffs' live communications-including chat messages, emails, and other data submitted and received through websites-contemporaneously with their transmission." Id. ; see also id. ¶ 82 (screenshot of email communication "contemporaneous[ ]" with its transmission); id. ¶¶ 83-86, 97-104 (describing Cline's process of keyword searches). She read thousands of emails in the Reetz-Laiolo plaintiffs' email accounts, and altered certain settings in Bernard's Gmail account. Id. ¶¶ 79-81, 87-91.
When Cline hacked into Bernard's and Kiesel's email accounts, she frequently used an online program called VTunnel, an IP address scrambler that conceals the origin of the computer used to log into accounts, so that they would not discover or trace her hacking. Id. ¶¶ 74-76. VTunnel's website describes it as:
a free proxy that acts as a middleman between your computer and the Internet. It is also a web proxy and an anonymous proxy. It is a web proxy that concentrates on facilitating your access to the World Wide Web. It acts as an anonymous proxy, which attempts to make all online activities untraceable. It hides your personal information so you can browse the web anonymously and access sites that are restricted to your network or area.
Id. ¶ 75. She rarely used the program when accessing Reetz-Laiolo's email accounts because they were living together and it was unnecessary for her to mask her location. Id. ¶ 78.
Cline's hacking of Bernard's and Kiesel's email accounts was not limited to their ties to Reetz-Laiolo; rather, she frequently reviewed communications that had nothing *1021to do with him. Id. ¶¶ 106-09. She also looked at the "previews" of messages, without opening them. Id. ¶¶ 109-113. She accessed Kiesel's account through August 2012, and Bernard's account until January 2013, just days before she sold the computer to Reetz-Laiolo. Id. ¶¶ 79-80, 131.
Shortly before the sale, Cline researched an upgraded version of Refog's Keylogger program called the "Personal Monitor," which permits remote access to activity on a computer. Id. ¶ 138. At the time of the sale, Cline "intentionally" misrepresented that she had wiped the computer, but "in fact left Refog running on the computer." Id. ¶¶ 141-42.
In 2017, through the aid of computer forensic specialists, Reetz-Laiolo discovered that "Cline had remotely surveilled his computer activity during 2013-2015, through Refog Personal Monitor or other means." Reetz-Laiolo Am. Compl. ¶ 182.
3. The Discovery
In 2015, Reetz-Laiolo discovered the Refog software and "huge cache of screen-capture files" after he asked a friend who was a computer specialist to determine why the computer was running so slowly. Id. ¶¶ 145-47. In the years since, he has "pieced together much of the shocking extent of Cline's intrusion into his private life[.]" Id. ¶ 147. The discovery "had a profound and negative impact on his well-being[,]" and lead him to experience paranoia, panic attacks, and a severe sleeping disorder. Id. ¶¶ 149-50.
In March 2016, Reetz-Laiolo told Bernard, who was "stunned and upset" at the news, and later "was shocked and distressed" after viewing the screenshots and realizing the extent to which Cline had invaded her privacy. Id. ¶¶ 151, 153. In late 2016, Reetz-Laiolo told Kiesel, who was "stunned and upset[,]" and later "shocked and distressed to discover the magnitude of Cline's intrusion." Id. ¶¶ 154-55.
4. The Copying
The Refog software captured Cline searching for messages between Reetz-Laiolo and his editors, downloading drafts of his work, opening them using Google Docs, and keeping them on her computer to use in her own work. Id. ¶¶ 91-94. After this activity, she would delete her browsing history. Id. ¶ 96. The software also captured Cline's pattern of "cop[ying] significant portions of other authors' published works and incorporat[ing] these directly into written work she held out as her own." Id. ¶ 203; see id. ¶¶ 204-223 (providing several examples, including work submitted as part of Cline's thesis for her MFA program at Columbia).
Cline secretly accessed "Reetz-Laiolo's computer and email account to steal numerous distinctive passages and phrases, scenes and scenic elements, sentence structures, and other creative expressions from his published and unpublished written work." Id. ¶ 156. Her "most critical theft of his writing-three core, chronologically ordered scenes" in The Girls -took place by breaking into his email accounts "and/or remotely accessing his computer with the Refog spyware." Id. ; see also id. ¶ 187 (explaining that Cline could only have accessed versions of the script by breaking into his online accounts). A comparison of the works "reveals that Cline stole and copied material in at least two drafts of All Sea " Id. ¶ 197; see id. (illustrating examples of stolen scenes); id. ¶ 199 (illustrating examples of "phrase- and sentence-level instances of plagiarism"); Am. Compl., Ex. 6 (6/17/13 All Sea draft); Am. Compl., Ex. 7 (12/26/13 All Sea Draft).
In April 2016, counsel for Cline revealed to Reetz-Laiolo's counsel that Cline possessed a copy of Reetz-Laiolo's manuscript for All Sea , even though the manuscript "has never been published or made publicly *1022available[, n]or has Reetz-Laiolo ever provided a copy of it to Cline." Id. ¶¶ 186-87.
5. Random House's Role
According to Reetz-Laiolo, Random House falsely represented that the eight snippets Cline sent to him in March 2015 were "added [to the draft manuscript] after the book was acquired and played no role in [Random House's] decision to buy the Book." Reetz-Laiolo Am. Compl. ¶¶ 173-75; see id. ¶ 175 (identifying where the snippets appeared in the original manuscript submitted to Random House). After Random House was put on notice that Cline possessed Reetz-Laiolo's manuscripts without his consent, it made no effort to return them; rather, it retained them and "conspired with Cline to conceal her and Random House's illegal conduct ...." Id. ¶¶ 189, 201-02.
Cline and Random House became concerned over negative publicity and pressured Reetz-Laiolo to enter a non-disclosure agreement. Id. ¶ 191. "As leverage, they threatened to make public certain facts about his sex life, and propagate a fiction about him being abusive, while making clear the financial resources they would enlist to fight any public claims he might make." Id. He declined to enter a nondisclosure agreement. Id. ¶ 192.
Random House proceeded to publish The Girls "with the crucial stolen scenes included." Id. ¶¶ 193-95.
II. PROCEDURAL HISTORY
On November 29, 2017, Cline, The Clegg Agency, and Random House filed a complaint against Reetz-Laiolo seeking declaratory relief, damages, and attorney's fees. ("Cline Compl.")(17-cv-6866, Dkt. No. 1). Counts I through III of the Complaint seek declaratory judgments that The Girls does not infringe any work by Reetz-Laiolo, that his claims for conversion and civil theft of his work are preempted, and that any claims by Reetz-Laiolo related to Cline's use of the Refog software and access to his email are time-barred. Cline Compl. ¶¶ 103-131. Cline is the only plaintiff in Counts IV through VII, which allege conversion, domestic violence pursuant to
The same day, Reetz-Laiolo, Kari Bernard, and Kristin Kiesel filed a complaint against Cline, Random House, and Scott Rudin Productions, Inc. (17-cv-6867, Dkt. No. 1).
On December 13, 2017, the cases were related (17-cv-6866, Dkt. No. 15; 17-cv-6867, Dkt. No. 7), and on December 15, 2017, they were assigned to me (17-cv-6866, Dkt. No. 20; 17-cv-6867, Dkt. No. 12). On December 22, 2017, Reetz-Laiolo filed a notice of voluntary dismissal, dismissing all claims against Scott Rudin Productions, Inc. (17-cv-6867, Dkt. No. 24). On January 29, 2018, Cline and Random House filed a motion to dismiss (17-cv-6867, Dkt. No. 33) and on February 5, 2018, Reetz-Laiolo filed his motion to dismiss counts IV through VII of Cline's complaint, as well as her claim for attorneys' fees. Def.'s Mot. to Dismiss ("Reetz-Laiolo MTD")(17-cv-6866, Dkt. No. 34).
On February 20, 2018, Reetz-Laiolo, Kiesel, and Bernard filed an amended complaint, thereby mooting the motion to dismiss filed by Cline and Random House. ("Reetz-Laiolo Am. Compl.")( 17-cv-6867, Dkt. No. 38). Their amended complaint brings claims for (1) violation of the Stored Communications Act ("SCA"), *1023
On March 5, 2018, Cline and Random House filed a motion to dismiss the amended complaint. Mot. to Dismiss Pls.' Am. Compl. ("Cline MTD")(17-cv-6867, Dkt. No. 46).
On April 11, 2018, I heard arguments on both motions to dismiss.
On April 23, 2018, Reetz-Laiolo, Bernard, and Kiesel filed a motion for leave to file a second amended complaint to add claims stemming from communications related to litigation and settlement based on my tentative ruling at the hearing that the litigation privilege would not bar such claims in this case. Mot. for Leave to Amend (17-6867, Dkt. No. 68). The potential application of the statutes of limitations and Cline's and Random House's refusal to enter a tolling agreement compelled them to file the motion prior to my resolution of the motions to dismiss.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly ,
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles ,
If the court dismisses the complaint, it "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." See Lopez v. Smith ,
DISCUSSION
I. HIS MOTION
Reetz-Laiolo argues that Cline's claim for conversion is untimely, plus she has no legal interest in the Refog records she claims Reetz-Laiolo converted. Reetz-Laiolo MTD at 1. He argues that her claims for domestic violence, intentional infliction of emotional distress, and tortious interference constitute a Strategic Lawsuit Against Public Participation (SLAPP) because they are based on litigation-related activity and thus are shielded from liability by the U.S. Constitution and by statute. Id. at 2. Lastly, he contends that her demand for attorneys' fees fails as a matter of law because it must be based on her domestic-violence claim, which fails.
A. Conversion Claim
A cause of action for conversion requires: "(1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages." Fremont Indem. Co. v. Fremont Gen. Corp. ,
1. Whether the Claim is Timely
Cline alleges that "on February 5, 2012, [she] reviewed the activity captured by the Refog software and discovered *1025Reetz-Laiolo's theft of her journal."
a. Refog Records
Cline argues that her conversion claim based on the Refog records is timely because the claim is based on a lawful taking, in which case the statute of limitations began to run when she demanded return of the property and Reetz-Laiolo refused to return it. Opp'n at 9-10. She reaches this conclusion by urging that Reetz-Laiolo was merely "entrusted" with the Refog records through an involuntary bailment or constructive trust.
An involuntary bailment or "deposit" is made "[b]y the accidental leaving or placing of personal property in the possession of any person, without negligence on the part of its owner."
Cline's argument on constructive trust fares better. A constructive trust "is not an independent cause of action but merely a type of remedy for some categories of underlying wrong[,]" and "is subject to the statute of limitations governing the nature of the underlying wrong." Glue-Fold, Inc. v. Slautterback Corp. ,
Under a constructive trust theory, Cline's cause of action for conversion based on mistake began to accrue in February 2015, when Reetz-Laiolo told her the software and records remained on the computer. See Cline Compl. ¶¶ 79-81. Since the three year statute-of-limitations began to run in February 2015, her conversion claim based on the Refog records is timely.
b. Personal Journal
Cline contends that her conversion claim based on her personal journal was tolled because Reetz-Laiolo falsely represented that he would delete his copy of the journal. Cline Compl. ¶ 75.
"A statute of limitations may be tolled if the defendant fraudulently concealed the existence of a cause of action in such a way that the plaintiff, acting as a reasonable person, did not know of its existence." Hexcel Corp. v. Ineos Polymers, Inc. ,
As Reetz-Laiolo highlights, Cline only alleges that he "did not delete her journal and he now continues to unlawfully possess it." Cline Compl. ¶ 75. Even if I accept Cline's allegation that in 2012 Reetz-Laiolo told her he would delete the journal and she has thus demonstrated that he "affirmatively misled" her, she has not included any allegations of her diligence to uncover the misrepresentation. See Conmar ,
In the absence of these allegations, her conversion claim based on her personal diary is untimely.
*10272. Whether Cline has a Protectable Interest in the Refog Records
Reetz-Laiolo argues that Cline has not alleged that she retained any "property right" in the computer after she sold it, nor has she established a "right to possession" of the screenshots containing images of private information belonging to others. Reetz-Laiolo MTD at 7-8. It is clear from Cline's allegations that the Refog records were not a part of the bargained for agreement when she sold the computer to Reetz-Laiolo. See Cline Compl. ¶¶ 77-79. She has thus established a property right in the records under a constructive trust theory as discussed above.
As for her right to possess the records containing the private information of others, Cline emphasizes that her claim is based on her right to the records of her own activity on her personal computer. Opp'n at 13; see Cline Compl. ¶ 133. Reetz-Laiolo interprets this as an admission "that she does not have a legal 'right to possession' of those Refog screenshots which contain deeply sensitive and private information belonging to others that she possessed only in violation of law." Reply at 7. I am not as convinced as Reetz-Laiolo that Cline's representation means that she is not claiming a right to the private information belonging to others. While she may not claim a right to the records logging the activity of others on her laptop, from which she gathered the information necessary to subsequently log into their accounts, any ensuing activity by her still seems to fall within her claim.
Regardless of what her representation means for the scope of her claim, Reetz-Laiolo maintains that she has no right to possession because (1) she relinquished any rights when she sold the computer, (2) even if she did not relinquish rights with the sale, she effectively abandoned them by claiming she intended to destroy them, and (3) she cannot be entitled to the return of screenshots of her illegal behavior and the private information belonging to others. Reply at 7. He further urges that it would be impractical to undergo a massive document review to determine who was using the computer when each screenshot was captured, and then isolate those screenshots over which Cline may have a legitimate interest, which will further exacerbate the intrusions into the privacy of others. Id. at 7-8. Reetz-Laiolo's arguments may prove meritorious down the line, but he has not convinced me that they impact Cline's ability to state a claim for conversion based on the Refog records of her own computer activity that she unknowingly left on her computer.
Reetz-Laiolo's motion to dismiss the conversion claim is DENIED.
B. Claims for Domestic Violence, Intentional Infliction of Emotional Distress, and Tortious Interference
Reetz-Laiolo contends that Cline's claims for domestic violence, intentional infliction of emotional distress, and tortious interference with prospective economic advantage are each based on his pre-suit litigation related activities, including correspondence related to settlement negotiations, and are therefore barred by California's Anti-SLAPP and protected by the litigation privilege. Reetz-Laiolo MTD at 8-14.
*10281. Whether Claims Constitute Strategic Lawsuit Against Public Participation (SLAPP)
a. Choice-of-Law Analysis
California applies the three-step governmental interest analysis in resolving choice-of-law issues. Kearney v. Salomon Smith Barney, Inc. ,
First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law "to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state" [citation], and then ultimately applies "the law of the state whose interest would be the more impaired if its law were not applied."
Id. at 107-08,
The parties agree that the anti-SLAPP laws of California and New York differ. Opp'n at 14; Reply at 8-9. California's anti-SLAPP generally protects prelitigation conduct, whereas New York's anti-SLAPP does not. Compare Flatley v. Mauro ,
Cline asserts that New York's interest in applying its law to these claims is "decidedly greater" because: "(1) Cline is a resident of New York; (2) all of the conduct relevant to the anti-SLAPP issue-communications by Reetz-Laiolo's New York-based lawyers with Cline's New York based lawyers-occurred in New York; and (3) Cline's injuries from that conduct occurred in New York, including her physical and emotional harm, financial injury, and damage to her existing business relationships with multiple third parties based in New York, including her publisher, agent, and the purchaser of the option for film rights to The Girls. " Opp'n at 15.
Reetz-Laiolo responds that Cline has not provided a compelling reason to displace California law. To the contrary, he argues, the most important factor is the residence of the defendant because California's anti-SLAPP is designed to protect the first amendment rights of its residents. See Competitive Techs. v. Fujitsu Ltd. ,
That said, "New York has a compelling interest in policing tortious conduct committed in New York, by a New York attorney, with reference to future or pending litigation in New York." Block v. First Blood Assocs. ,
2. Whether the Litigation Privilege Provides Absolute Immunity
Cline argues that state law privileges do not apply in federal question cases where the evidence relates to both federal and state claims, citing several Ninth Circuit decisions. Opp'n at 20. But those cases are not on point.
Reetz-Laiolo raises the litigation privilege as a complete bar to Cline's state law claims.
3. Choice-of-Law Analysis
Cline insists that if any state litigation privilege applies, it is New York's, and New York's privilege does not extend to prelitigation conduct. For the same reasons I concluded that New York's anti-SLAPP regime applies, New York's litigation privilege applies.
New York's litigation privilege extends to the prelitigation stage, but it only applies "to statements pertinent to a good faith anticipated litigation." Front, Inc. v. Khalil ,
Cline insists that Reetz-Laiolo's choice to excise the most intrusive and outrageous allegations from the complaint, including sexually explicit communications, a nude photograph, and references to erotica sites, demonstrates that those allegations had no logical relationship to the litigation. Reetz-Laiolo counters that Cline's sexual history was relevant to her claims that he infected her with HPV, the screenshots were necessary to rebut her claims that her hacking should be excused by her youth and naiveté, and the erotica sites were relevant to his copyright claim. But Cline underscores that the inclusion of sexually explicit communications post-dating her relationship with Reetz-Laiolo could not be relevant to any potential claims.
Under these circumstances, the applicability of New York's qualified privilege protecting prelitigation communications presents a question of fact better left for resolution at a later stage of the proceedings. Reetz-Laiolo's motion to dismiss these claims on the grounds of an absolute litigation privilege is DENIED.
C. Whether Cline Has Stated a Claim for IIED
The statute of limitations for the intentional infliction of emotional distress is two years. See
D. Whether Cline Has Stated a Claim for Domestic Violence
Cline bases her domestic violence claim on her allegations that Reetz-Laiolo stole a couch in late 2011, choked her in July 2012, and threatened to release nude photos of her in 2014. Cline Compl. ¶ 139. She also alleges abuse in the form of "extortionate demands made directly and through counsel, failure to return [her] private materials, and [Reetz-Laiolo's] use of those materials to threaten, harass, disturb the peace of, and humiliate [her]." Id. ¶ 140; see also Opp'n at 24 (explaining that this conduct began in January 2016 and continued through May 2017).
In California, "[a] person is liable for the tort of domestic violence if the plaintiff proves both of the following elements: (1) [t]he infliction of injury upon the plaintiff resulting from abuse, as defined in *1031subdivision (a) of Section 13700 of the Penal Code [,]" and "(2) [t]he abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in subdivision (b) of Section 13700 of the Penal Code [,]" which includes cohabitants.
Reetz-Laiolo argues that the alleged threat to release nude photos and "extortionate demands" do not relate to "bodily injury" and therefore do not constitute domestic violence. Reetz-Laiolo MTD at 12-13. He concedes that the allegations concerning their period of cohabitation fall within the statutory definition of "domestic violence," but insists that the claim nonetheless fails because those acts occurred outside the statute of limitations.
Absent a delayed discovery of injury, "[i]n any civil action for recovery of damages suffered as a result of domestic violence, the time for commencement of the action shall be ... [w]ithin three years from the date of the last act of domestic violence by the defendant against the plaintiff."
Cline contends that her domestic violence claim is timely because it is extended by the additional acts of abuse as defined by the Family Code, which occurred during the three years prior to the tolling agreement. Opp'n at 23-25. The Family Code's definition of abuse is "not limited to the actual infliction of physical injury or assault[,]" and includes "behavior that has been or could be enjoined pursuant to Section 6320[,]" which lists threatening, harassing, or "disturbing the peace of [another]" as examples of conduct that a court can enjoin.
Cline cites to Pugliese v. Superior Court ,
Pugliese dealt with a plaintiff's ability to recover damages for acts of domestic violence outside of the limitations period. See
As Reetz-Laiolo points out, the conduct listed in section 6320 includes acts such as "telephoning," "contacting, either directly or indirectly, by mail or otherwise," and "coming within a specified distance of ... the other party."
E. Whether Cline has Stated a Claim for Tortious Interference
A plaintiff alleging tortious interference with prospective economic advantage must show: "(1) the existence of a prospective business relationship containing the probability of future economic rewards for plaintiff; (2) knowledge by defendant of the existence of the relationship; (3) intentional acts by defendant designed to disrupt the relationship; (4) actual causation; and, (5) damages to *1033plaintiff proximately caused by defendant's conduct." PMC, Inc. v. Saban Entm't, Inc. ,
Reetz-Laiolo argues that Cline has not alleged that he engaged in any "independently wrongful act," nor has she adequately pleaded that his actions "proximately caused" her injury. See Reetz-Laiolo MTD at 14. An independently wrongful act is any "unlawful" act "proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard." Korea Supply ,
To the extent the litigation privilege does not ultimately protect this conduct, Cline has sufficiently pleaded a claim for intentional interference with prospective economic advantage. She has sufficiently pleaded the probability of future economic rewards. To show an economic relationship, "the cases generally agree that it must be reasonably probable the prospective economic advantage would have been realized but for defendant's interference." Youst v. Longo ,
The closer question is whether she would have received those benefits "had it not been for the defendant's interference." See
F. Cline's Demand for Attorneys' Fees
Reetz-Laiolo argues that Cline's demand for attorneys' fees should be stricken because the only basis for fee-shifting in her action is her claim for domestic violence, which she has not adequately pleaded. Reetz-Laiolo MTD at 16. Cline contends that Reetz-Laiolo ignores her declaratory copyright claim, under which the court may award fees to both plaintiffs and defendants. Opp'n at 27. Under the Copyright Act, the court, in its discretion, may "award a reasonable attorney's fee to the prevailing party as part of the costs."
Reetz-Laiolo contends that Cline's claim for declaratory relief "mirrors the affirmative copyright claims [he] has filed in [his] action." Reply at 20. He therefore concludes that Cline will not incur fees that are specific to her action. Since fees associated with the copyright claim may be awarded to the prevailing party, whether it be plaintiff or defendant, those fees may be awarded to either party as part of Reetz-Laiolo's complaint. While that is true, I see no need to strike Cline's demand for fees, since it does not "fail[ ] as a matter of law." See Reply at 20 (capitalization omitted).
II. HER MOTION
A. Copyright Infringement
Reetz-Laiolo brings two claims for copyright infringement-one based on Cline's draft manuscript that she distributed to Random House and Scott Rudin Productions, Reetz-Laiolo Am. Compl. ¶¶ 289-294, and the other based on the publication and distribution of The Girls , Reetz-Laiolo Am. Compl. ¶¶ 295-300. In their motion to dismiss, defendants reference only the published version of The Girls "[b]ecause the challenged portions of these two works are the same[.]"
1. The Framework
It is a well-established principle that "[n]ot all copying ... is copyright *1035infringement." Feist Publications, Inc. v. Rural Tel. Serv. Co. ,
As for the second element, the Ninth Circuit recently made "explicit," that it "has two distinct components: 'copying' and 'unlawful appropriation.' " Rentmeester v. Nike, Inc. ,
Confusion arises, as it has here, because the Ninth Circuit "ha[s] used the same term-'substantial similarity'-to describe both the degree of similarity relevant to proof of copying and the degree of similarity necessary to establish unlawful appropriation."
To prove copying, the similarities between the two works need not be extensive, and they need not involve protected elements of the plaintiff's work. They just need to be similarities one would not expect to arise if the two works had been created independently. Laureyssens v. Idea Group, Inc. ,964 F.2d 131 , 140 (2d Cir. 1992) ; 4 Nimmer on Copyright § 13.01[B]. To prove unlawful appropriation, on the other hand, the similarities between the two works must be "substantial" and they must involve protected elements of the plaintiff's work.
There is no doubt, and Cline barely disputes, that Reetz-Laiolo has plausibly alleged the "copying" component of the second element necessary to state a claim for copyright infringement. He alleges that he shared with Cline a previous draft of the All Sea manuscript (the "Fadein.doc"), and Cline admits to possessing at least one version of the All Sea manuscript (although the parties dispute how she came into possession). This is enough to establish her access to Reetz-Laiolo's screenplay. That access, combined with the similarity in certain scenes, phrases, and sentences, Reetz-Laiolo Am. Compl. ¶¶ 198-99, "is sufficient to create a presumption ... of copying rather than independent creation." Rentmeester ,
2. Intermediate Copying
At the hearing, Reetz-Laiolo clarified (seemingly for the first time) that his complaint also alleges literal or intermediate copying in Cline's act of downloading *1036the All Sea manuscript and incorporating portions of it into The Girls , and under these circumstances he need not prove substantial similarity. Opp'n at 25; see Reetz-Laiolo Am. Compl. ¶¶ 186-192 (explaining that Cline "possessed a copy" of All Sea , that Reetz-Laiolo never provided a copy to her, so she "could only have accessed versions of the script by improper means"). In Sega Enterprises Ltd. v. Accolade, Inc. , the Ninth Circuit explained "that the Copyright Act does not distinguish between unauthorized copies of a copyrighted work on the basis of what stage of the alleged infringer's work the unauthorized copies represent."
Reetz-Laiolo now focuses on this theory to substantiate his copyright claims. See 4/11/18 Hr'g Tr. at 28:23-29:6 ("Let me start with copyright. The threshold question on copyright is not substantial similarity. It's whether we allege that she made a literal copy of All Sea , the screenplay. We do. We allege, at paragraphs 186 to '87, through paragraphs 192, that she downloaded the screenplay.... When you download a file, you make a literal copy of it. That's a copyright violation."). But his amended complaint does not clearly allege this theory of infringement because it focuses on the two versions of The Girls , not her possession of the literal copy of the All Sea manuscript. This may be because intermediate copying is generally limited to cases involving software. E.g., Sega ,
In Sega , the Ninth Circuit rejected the defendant's argument that intermediate copying is lawful because "[m]ost of the cases [it cited] involved the alleged copying of books, scripts, or literary characters."
*1037Because the parties devote much energy to the issue of substantial similarity, I will proceed to address his claims under that theory.
3. Whether the Works are Substantially Similar
a. Motion to Dismiss Stage
As a preliminary matter, "[t]here is ample authority for holding that when the copyrighted work and the alleged infringement are both before the court, capable of examination and comparison, non-infringement can be determined on a motion to dismiss." Christianson v. W. Pub. Co. ,
In essence, the court is tasked with determining the issue of "substantial similarity" as a matter of law, as if on a motion for summary judgment. See Funky Films, Inc. v. Time Warner Entm't Co., L.P. ,
In arguing that this case is not an appropriate one for resolution at the motion to dismiss stage, Reetz-Laiolo makes two missteps. First, he argues that he "does not need to satisfy a test of substantial similarity because his claim may be proven by direct evidence of copying." Opp'n at 27 n.16. I addressed that argument above. And second, he relies on the "inverse ratio" rule to support his claim of substantial similarity. As the Ninth Circuit recently reiterated, however, the "inverse ratio rule" does not help Reetz-Laiolo "because it assists only in proving copying, not in proving unlawful appropriation, the only element at issue in this case." Rentmeester ,
b. The Test for Substantial Similarity
In the Ninth Circuit, "determining whether works are substantially similar involves a two-part analysis consisting of the 'extrinsic test' and the 'intrinsic *1038test.' " Rentmeester ,
[T]he court must "filter out" the unprotectable elements of the plaintiff's work-primarily ideas and concepts, material in the public domain, and scènes à faire (stock or standard features that are commonly associated with the treatment of a given subject). [citation] The protectable elements that remain are then compared to corresponding elements of the defendant's work to assess similarities in the objective details of the works.
The intrinsic test involves "a more holistic, subjective comparison of the works to determine whether they are substantially similar in 'total concept and feel.' "
c. Application of Extrinsic Test
Before comparing the works, a court must filter out the unprotectable elements, such as:
(1) "ideas" as opposed to the "expression" of those ideas; (2) facts, historical events, or other information over which no party is entitled to claim a monopoly; (3) elements borrowed from another creator or from the "public domain"; (4) instances in which a particular "expression" at issue "merges" with the "idea" being expressed; and (5) a similar instance in which the form of the "expression" is so standard" in the treatment of a given "idea" that it constitutes scenes a faire.
Capcom Co. v. MKR Grp., Inc. , No. C 08-0904 RS,
Cline and her fellow defendants argue that Reetz-Laiolo's claim is premised on Cline's alleged copying of ideas, such as plot concepts and premises and scenes a faire. Cline MTD at 10. They also emphasize the Ninth Circuit's warning to be "particularly cautious where, as here, [a] list [of similarities] emphasizes random similarities scattered throughout the works." Litchfield v. Spielberg ,
Reetz-Laiolo insists that his claims are not based on unprotectable elements. Rather, his complaint alleges that Cline "copied heavily from a sequence of scenes in which the protagonist, a teenager named Gabe, interacts with his single mother when she comes home with her boyfriend, commits burglary at the behest of a friend from whom he wants acceptance, and, after he is caught, is sent away to live with a father figure character named Ray." Reetz-Laiolo Am. Compl. ¶ 197. He then compares the works in a chart, which includes dialogue that he contends demonstrates the substantial similarity between the works.
I will now turn to an analysis of any "articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events" in the works. Berkic v. Crichton ,
i. The Plot and Sequence of Events
" 'Plot' is defined at the 'sequence of events by which the author-expresses his theme or idea' that is sufficiently concrete to warrant a finding of substantial similarity if it is common in both works." Zella v. E.W. Scripps Co. ,
There are undeniable similarities between the works, but they are predominantly isolated to a few intermittent scenes and general plot ideas. "General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind." Berkic v. Crichton ,
Both stories are "coming of age" tales of sorts. But they vary significantly in detail, breadth, and texture. The Girls shifts between 1969 and present day, and culminates in violent murders that are foreshadowed in the book's first pages. It is told from the perspective of Evie, the teenage protagonist who becomes enthralled with an older teenage girl (Suzanne) and the "family" of young women with whom she lives on a compound under the leadership of a charismatic older man. The scenario is meant to emulate the true story of Charles Manson and his cult following. Approximately three-quarters through the novel, Evie joins the girls in their practice of breaking into a private residence and moving the occupant's possessions. The girls escape, but the home owner recognizes Evie. Her mother is angered and sends her to live with her father in Palo Alto. Evie misses Suzanne, and hitchhikes back to the ranch. She joins the group as they are preparing a violent act, but Suzanne orders Evie out of the car and saves her from participating in the murderous rampage. The novel ends with adult Evie walking on a beach.
All Sea is told in chronological order from the perspective of Gabe, the male teenage protagonist during the 1990s. Very early in the screenplay, Gabe is caught breaking into a place (a house or a liquor store, depending on the version), and his single mother sends him to live with an Uncle in Oregon, where he stays for the remainder of the story.
Reetz-Laiolo identifies the following scenes as evidence of the substantial similarity between the plots:
A. Both teenage protagonists are left home alone, idling away the summer, while their single mother is out on a date.
B. Both single mothers come home tipsy from a night out, resulting in both teen protagonists interacting with adults uncomfortably, detachedly observing their single mother arriving home from a date.
C. Both teenage protagonists are drawn further into the unrestrained life of an older social group and begin to feel the thrill of acceptance, resulting in both teenage protagonists agreeing to participate in a burglary, and are caught in the act of this burglary.
D. Both teenage protagonists are sent to live with their father/father figure by their single mothers.
E. Both teenage protagonists endure an uncomfortable conversation with *1040their father/father figure in the car ride to their new home.
But Cline persuasively highlights differences in the way these scenes are expressed in each work-the timing (early in All Sea , later in The Girls ), and the setting (in Gabe's bedroom in an apartment that does not "look 'lived in' ... there are boxes still half-packed ... the walls are blank," Evie at home in the living room in her grandfather's chair).
Reetz-Laiolo's attempts to liken the concepts in each story of a teenager who gets caught stealing at "the behest of a social group" ignore the precise manner in which these concepts are expressed in each work. The social groups are different-in The Girls it is expressed as a "family" of young women, in All Sea it is a largely undefined group of older teenagers. The "stealing" is dissimilar-in The Girls there is no actual theft. And the remainder of the storyline differs significantly-Evie stays "away" for only two weeks before returning to the ranch, whereas Gabe spends the remainder of the story at his Uncle's in Oregon. The commonalities Reetz-Laiolo identifies-an alienated youth, in the care of a single parent, falling in with a bad crowd and/or committing a crime, and being sent away as a result-are merely "[f]amiliar stock scenes and themes that are staples of literature are not protected." Cavalier v. Random House, Inc. ,
ii. The Dialogue
From the isolated scenes Reetz-Laiolo extracted in an attempt to demonstrate the similarities in plot and sequence, he highlights many overlaps in the dialogue, including:
Cathy says, "you think he's even listening to you? Do you think he's listening now?"; Jean says, "You think I haven't asked her? You think I haven't tried?"
In All Sea , Cathy states "You're going to my brother's for the summer." In The Girls , Evie narrates the decision: "And so I was sent to Palo Alto."
Ray and Carl's initial jokes are nearly identical. Ray's gesture: "We're not gonna have any stealing up here, eh?" is 12 syllables long, and ends in a subordinate second clause meant to mitigate the gravity of the subject. Carl's gesture: "I don't have to lock you in your room, do I?" is 11 syllables long, and ends in a similarly amiable subordinate clause.
Ray and Carl both continue after neither Gabe nor Evie responds, this time less gently. Ray says, "You were stealing from people"; Carl says, "No breaking into anyone's house?" Neither uses a softening second clause this time. Both Gabe and Evie respond by nodding.
Ray says, "let's get this outta the way"; Carl visibly relaxes "like he'd gotten something out of the way."
In the context of labels, the Ninth Circuit has indicated that "short phrases or expressions cannot be copyrighted, even if they are distinctively arranged or printed." Ets-Hokin v. Skyy Spirits, Inc. ,
iii. The Characters and The Setting
Reetz-Laiolo underscores that Evie is 14 years old, while Gabe is a "couple of weeks" away from turning 14, and both live in agricultural towns in the farm belt of northern California, approximately one hour from the Bay Area. Opp'n at 32. Both teens feel a sense of isolation and both are experiencing an "evolving fascination with sexuality[.]"
*1041As the story proceeds, the teenagers become enthralled with an older social group, and each is given a nickname-"Little King" for Gabe and "Little doll" for Evie. Id. at 34. The older figures encourage the teenage protagonists to break into an unlocked home-neither takes (or attempts to take) anything of value, both hear the homeowners come home, and both attempt escape by running from the kitchen-Gabe is caught, while Evie escapes, but she is identified. Id. Both single mothers are angered by their child's trespasses, and send each to a father (in The Girls ) or father figure (in All Sea ). In each story, a young woman lives with and works for the father figure, and the teenage protagonist bonds with this woman. Id. at 36-37.
In the Ninth Circuit, only characters that are "sufficiently delineated" and "especially distinctive" can be protected by copyright. DC Comics v. Towle ,
iv. The Mood and The Theme
The Girls is focused on female-centric themes, such as their need for attention and belonging, the intense relationships between them, and the ways in which men seek to manipulate them. All Sea centers around a male coming-of-age story, and his growing maturity despite the lack of a mature father figure to guide him. There is little similarity aside from the coming-of-age.
Reetz-Laiolo has identified some similarities between the works. But when I parse through the protectable expressions underlying the general ideas highlighted by Reetz-Laiolo, I find that there are few objective similarities, and no substantial ones. Defendants' motion to dismiss Reetz-Laiolo's copyright claims is GRANTED. To the extent that Reetz-Laiolo intends to state a claim based on intermediate copying, he may include those allegations in his amended complaint.
B. Conversion and Civil Theft Claims are Not Preempted, But Fail to Allege Requisite Damages
State laws are subject to federal pre-emption if they create "legal or equitable rights that are equivalent to any of the exclusive rights within the scope of copyright as specified in Section 106."
*1042Reetz-Laiolo argues that his conversion claim is not preempted because the state law claim contains an additional element-"the right to exclude others" from access to his private manuscripts. "Conversion of tangible property involves actions different from those proscribed by the copyright laws, and thus is not preempted." Oddo v. Ries ,
I need not wrestle with that question yet, however, because Reetz-Laiolo fails to allege any actual damages. To establish a claim for conversion, "a plaintiff must show ownership or right to possession of property, wrongful disposition of the property right and damages." Kremen v. Cohen ,
These claims are DISMISSED WITH LEAVE TO AMEND.
C. Stored Communications Act Claims
Section 2701 of the SCA provides a private cause of action for the "[u]nlawful access to stored communications" when one "intentionally accesses without authorization [or exceeds an authorization to access] a facility through which an electronic communication service is provided ... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system ...."
Cline argues that the Reetz-Laiolo plaintiffs fail to state a claim because they have not alleged that their emails were "in electronic storage" within the meaning of the SCA. Cline MTD at 25. She also contends that they are not entitled to recover statutory damages because they have failed to allege actual damages.
1. Electronic Storage
The SCA refers back to the Wiretap Act for definitions,
The parties agree that the Reetz-Laiolo plaintiffs' SCA claim is premised on Cline's unauthorized access of plaintiffs' web-based email accounts. Cline insists that *1043their claims must fail because they do not allege that she accessed any electronic communications while they were in "temporary, intermediate storage" or "for purposes of backup protection" as courts have interpreted that statutory language. Cline MTD at 26.
a. "Temporary, intermediate storage"
Cline cites to Theofel for the proposition that "[t]he Ninth Circuit has held that subsection (A) of this definition is limited 'to messages not yet delivered to their intended recipient.' " MTD at 26 (quoting Theofel ,
I read Theofel differently. It noted that "[s]everal courts" have limited their interpretation of subsection (A) to "messages not yet delivered to their intended recipient." Theofel ,
Regardless of Theofel 's holding, the Reetz-Laiolo plaintiffs argue that they have alleged "electronic storage" under subsection (A) because "Cline's ability to access Plaintiffs' accounts in real time also enabled her to access their emails while they were in 'temporary, intermediate storage' pending delivery[,]" and "because their allegations demonstrate that Cline also accessed their unopened emails." Opp'n at 7. They do not elaborate on the former point, and, as Cline underscores, the latter point is not alleged in their complaint. See Reply at 8. Rather, their complaint includes allegations that Cline accessed "previews" of their emails without opening them herself. Reetz-Laiolo Am. Compl. ¶¶ 109-112. This says nothing of whether the messages were "unopened."
That said, several courts have found that "[a] defendant may be liable under the SCA for accessing a plaintiff's emails without authorization." Band Pro Film & Digital, Inc. v. ARRI Inc. , No. CV 12-03226-CJC(ANX),
I agree with these secondary sources that "electronic storage" under the SCA is much narrower than interpreted by some courts and the definition under subsection (A) requires that Cline accessed plaintiffs' emails pending delivery to their intended recipient. For pleading purposes, it is reasonable to infer from plaintiffs' allegations that Cline did just that.
b. "For purposes of backup protection"
The Reetz-Laiolo plaintiffs never allege that they used their web-based email applications "for purposes of backup protection," but they nonetheless argue that emails stored on an internet service provider's (ISP) server following delivery are "stored for purposes of backup protection."
2. Damages
Cline argues that even if the Reetz-Laiolo plaintiffs stated a claim under the SCA, they are not entitled to statutory damages because they have not alleged actual damages. Cline MTD at 27. They contend that Cline "urge[s] the Court ... to ignore the unbroken line of authority" holding that a plaintiff may recover statutory damages without proving actual damages. Opp'n at 9.
The SCA provides, "[t]he court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000."
The Reetz-Laiolo plaintiffs counter that "[c]ourts in the Ninth Circuit have held plaintiffs aggrieved by a violation of Section 2707(c) can obtain minimum statutory damages without proving actual damages." Gallagher v. United States , No. 17-CV-00586-MEJ,
I will follow the seemingly unanimous view of my fellow district courts in this circuit to conclude that actual damages are not necessary for a plaintiff to recover statutory damages under the SCA. E.g. , Aguiar v. MySpace LLC , No. CV1405520SJOPJWX,
*1046Hahn v. Rothman , No. CV090249ODWFFMX,
Accordingly, plaintiffs need not allege actual damages to state claims for relief under the SCA.
D. Federal Wiretap Act Claims
The Federal Wiretap Act prohibits any person from "intentionally intercept[ing] ... any wire, oral, or electronic communication[.]"
The Reetz-Laiolo plaintiffs base their claims on Cline's "knowing and intentional installation and operation of Refog on Reetz-Laiolo's computer." Reetz-Laiolo Am. Compl. ¶ 237. But throughout their complaint, they acknowledge that Refog operates by "captur[ing] periodic snapshots of the computer's screen." E.g. , id. ¶ 54. The Refog software, therefore, only recorded communications while they were "in electronic storage" on Cline's computer, not "during transmission." Konop ,
The Reetz-Laiolo plaintiffs attempt to creatively plead and argue their way around this seemingly inevitable conclusion. E.g. , Am. Compl. ¶¶ 60 ("Because Refog was running continuously while Cline hacked into Plaintiffs' accounts, the spyware intercepted some of Plaintiffs' emails, chat messages, bank account data, usernames, passwords and other sensitive information submitted and received through websites by taking screenshots of these electronic communications while they were in transit."); Opp'n at 11 ("Plaintiffs' allegations detail how the Refog software functioned to intercept and capture data while it was being transmitted to another computer."). Cline highlights the myriad of cases finding no wiretap claim under similar circumstances. See United States v. Barrington ,
The Reetz-Laiolo plaintiffs distinguish those cases because they dealt only with a keylogger, whereas Refog also captured screenshots of activity on Cline's computer. They highlight the decision in Shefts v. Petrakis , in which the court addressed the issue of whether defendants monitoring of plaintiff's work email account, web-based Yahoo! personal email account, and text messages on his Blackberry device constituted "interception" under the Wiretap Act (referred to in the case as the Electronic Communications Privacy Act or "ECPA").
[T]he SpectorPro software caused images of Plaintiff's computer activity, including his communications via his Yahoo! email account, to be simultaneously captured by SpectorPro. Such simultaneous capture included moments when Yahoo! was transmitting messages to or from Plaintiff's account, as shown by Plaintiff's exhibit of a Yahoo! email between himself and his attorney, which was captured by SpectorPro. Notably, any emails sent by Plaintiff on his Yahoo! account via his desktop computer would have been captured by SpectorPro as they were transmitted to Yahoo! via the internet. Therefore, SpectorPro contemporaneously captured Plaintiff's electronic communications within the meaning of the ECPA, and Defendants were able, if they were at the monitoring station while Plaintiff was using his Yahoo! email account, to view Plaintiff's communications as he viewed them.
Id. at *9.
More recently, the court in Krise v. SEI/Aaron's, Inc. ,
I am skeptical that the Federal Wiretap Act applies here. For one thing, the Refog software seems most similar to the Detective Mode software analyzed by the Krise court. However, both Krise and Shefts resolved the issue on summary judgment. See also Boudreau v. Lussier , No. CV 13-388 S,
E. Computer Fraud And Abuse Claims
"The CFAA prohibits a number of different computer crimes, the majority of which involve accessing computers without authorization or in excess of authorization, and then taking specified forbidden actions, ranging from obtaining information to damaging a computer or computer data." LVRC Holdings LLC v. Brekka ,
"[T]o bring an action successfully under
1. Losses
"Damage" under the CFAA includes "any impairment to the integrity or availability of data, a program, a system, or information."
According to Cline, Bernard and Kiesel "do not allege any losses whatsoever[,]" and Reetz-Laiolo's alleged losses of "computer performance issues" are insufficient to state a claim. Cline MTD at 31. Bernard and Kiesel apparently concede that they did not suffer any losses because they raise no arguments in opposition.
Reetz-Laiolo insists that he has sufficiently pleaded the requisite losses in his allegations that the computer was "essentially unusable" for over a month, during which time he suffered lost productivity. Reetz-Laiolo Am. Compl. ¶ 252. In addition, he alleges that it "took over ten hours for an expert computer consultant to repair the machine[.]"
2. Unauthorized Access
The parties dispute whether the unauthorized access prohibited by the statute must be through physical or remote access of the victim's computer. The Reetz-Laiolo plaintiffs contend that they need not allege "a literal invasion of [their] personal computer"; instead, an invasion into the computer *1050systems on which their data or communications are stored suffices to state a claim.
The cases they cite do not support this broad proposition. In Facebook, Inc. v. Power Ventures, Inc. ,
We are in a much different situation here, where Cline vehemently disputes unauthorized access to a "computer." The Reetz-Laiolo plaintiffs' allegations based on Cline's use of the Refog software on her own computer do not establish that element. But the issue of whether their allegations of remote access sufficiently state a claim presents a much closer question. They underscore their allegations that Cline researched running Refog in "hidden mode" and researched Refog's "Personal Monitor," which has a remote access feature. Opp'n at 16 (citing Am. Comp. ¶¶ 136, 138-39). They also allege that Cline obtained copies of Reetz-Laiolo's All Sea manuscript that he had not provided to her. Reetz-Laiolo Am. Compl. ¶ 140. According to plaintiffs, these allegations are sufficient to support the reasonable inference that Cline remotely accessed the laptop after selling it to Reetz-Laiolo, thereby establishing that she accessed a "computer" without authorization.
Once again, I need to await motions for summary judgment, or perhaps trial, to see if the facts bear out the Reetz-Laiolo plaintiffs' claims; the allegations, taken as true, are sufficient at this stage.
F. California Invasion of Privacy Act Claims
1. Section 631
"CIPA is violated when a person 'reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable.' " Matera v. Google Inc. , No. 15-CV-04062-LHK,
Defendants argue that Reetz-Laiolo's CIPA claim is time-barred because he learned of Cline's use of Refog software "no later than 2015." Cline MTD at 34 (citing Reetz-Laiolo Am. Compl. ¶ 145). While Reetz-Laiolo counters that "it took him years to piece together the full extent of the intrusions[,]" that does not make his claim timely. The discovery rule "postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action." Grisham v. Philip Morris U.S.A., Inc. ,
For the same reason their claims under the Federal Wiretap Act survive, Bernard's and Kiesel's CIPA claims under section 631 survive.
2. Section 632
Under Section 632, "a conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded." Flanagan v. Flanagan ,
Cline argues that the Reetz-Laiolo plaintiffs' claims based on section 632 fail because the email communications at issue are not "confidential" communications under CIPA. The Reetz-Laiolo plaintiffs contend that they had an objectively reasonable expectation of privacy in their emails and other electronic messages sent to "a family member or significant other with whom that person has a longstanding relationship of trust, especially where the messages concern private medical and financial information." Opp'n at 18. This may be true, but they fail to identify any case law supporting their position. In contrast, Cline highlights numerous cases finding that "Internet-based communications are not 'confidential' within the meaning of section 632, because such communications can easily be shared by, for instance, the recipient(s) of the communications."
*1052Campbell v. Facebook Inc. ,
Since the Reetz-Laiolo plaintiffs fail to offer any support for their theory that internet-based communications can be considered "confidential" under CIPA, their claims under section 632 must be dismissed.
G. California Computer Crime Law Claims
The Reetz-Laiolo plaintiffs allege that Cline's knowing installation and operation of Refog violated multiple provisions of the California Computer Crime Law (CCCL). Reetz-Laiolo Am Compl. ¶ 273. California Penal Code section 502(e)(1) provides a private cause of action for an individual "who suffers damage or loss" from a violation of the CCCL. "[T]he necessary elements of Section 502 do not differ materially from the necessary elements of the CFAA for purposes of this action[.]" Multiven, Inc. v. Cisco Sys., Inc. ,
Since there is no minimum loss requirements, these claims survive.
H. California's Constitution and Intrusion Upon Seclusion Claims
"The right to privacy in the California Constitution sets standards similar to the common law tort of intrusion." Hernandez v. Hillsides, Inc. ,
"[T]here is no legally protected privacy interest and reasonable expectation of privacy in emails as a general matter[,]" rather, a plaintiff must "plead specific email content in specific emails" to demonstrate a reasonable expectation of privacy in the subject matter. In re Yahoo Mail Litig. ,
I. Trespass to Chattels Claim
Reetz-Laiolo alleges that "Cline intentionally interfered with [his] use of his computer by operating Refog." Reetz-Laiolo *1053Am. Compl. ¶ 311. His trespass to chattels claim is entirely based on Cline's alleged remote access to the computer and continued operation of Refog after Cline sold him the computer. Id. ¶¶ 309-314.
California law requires an electronic trespass to chattels claim to allege "measurable loss" in the "use of [the] computer system." Intel Corp. v. Hamidi ,
J. Intentional or Reckless Infliction of Emotional Distress Claim
To state a claim for intentional infliction of emotional distress, a plaintiff must plausibly allege: "(1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by plaintiff; and (3) plaintiff's emotional distress is actually and proximately the result of defendant's outrageous conduct." Conley v. Roman Catholic Archbishop of San Francisco ,
Cline argues that this claim must be dismissed because Reetz-Laiolo fails to allege that she had the requisite intent, and fails to offer anything other than conclusory allegations of extreme emotional distress. Cline MTD at 38-39. To the extent the claim is based on her alleged misappropriation of his work, she contends that those allegations are implausible and that federal copyright law preempts any related emotional distress claim.
Reetz-Laiolo's allegations regarding Cline's campaign of spying and repeated intrusions into his privacy constitute independent wrongdoing that is not subsumed by the Copyright Act's protections. But the closer question is whether he has plausibly pleaded the requisite intent. He argues that she engaged in egregious conduct over the course of years, which she attempted to conceal, demonstrating her knowledge that her actions were likely to cause distress. Opp'n at 23. "A plaintiff seeking to recover for intentional infliction of emotional distress may also demonstrate that the defendant acted with 'reckless disregard of the probability of causing' severe emotional distress." Inland Mediation Bd. v. City of Pomona ,
Reetz-Laiolo has plausibly pleaded this claim; Cline's motion is DENIED.
CONCLUSION
In accordance with the foregoing, the motions are GRANTED IN PART AND DENIED IN PART.
Cline's claim for conversion based on Refog records survives and based on her personal diary is dismissed as untimely with leave to amend. Her claim for domestic violence is also dismissed with leave to *1054amend. Her claims for intentional or reckless infliction of emotional distress (to the extent based on litigation-related activity not protected by qualified privilege) and tortious interference with prospective advantage survive.
Reetz-Laiolo's, Bernard's, and Kiesel's claims for violation of the SCA, violation of the Federal Wiretap Act, violation of the CCCL, invasion of the right to privacy embodied in the California Constitution, intrusion upon seclusion, trespass to chattels, and intentional or reckless infliction of emotional distress all survive. Certain claims under the CFAA and CIPA are dismissed with leave to amend. Reetz-Laiolo's copyright infringement claims under
As discussed in the discussion on copyright, Reetz-Laiolo may amend his copyright claim if he can plausibly state a claim for intermediate copying. Any amended pleading shall be filed within 30 days of the date of this Order.
IT IS SO ORDERED.
Most of the factual allegations in this section are common to both complaints.
Reetz-Laiolo indicates the relationship ended in January 2012. Reetz-Laiolo Am. Compl. ¶ 42.
Reetz-Laiolo indicates that he became concerned that Cline may have plagiarized his work after he discovered her intrusions into his online accounts. Reetz-Laiolo Am. Compl. ¶ 164; see infra sections I.D.2, His Version-The Spyware and The Coverup and I.D.4, His Version-The Copying.
Reetz-Laiolo's complaint initially references 35 instances, Am. Compl. ¶ 9, but later references 36 "phrases, sentences, and scenes ...." Am. Compl. ¶ 177.
She alleges that she made this "concession ... purely in the interest of resolving the dispute, and neither Random House nor Cline at any point accepted that Reetz-Laiolo held prior rights to the material, or that there was in fact any actionable similarity between his and Cline's work." Cline Compl. ¶ 39.
See infra section I.C.4, Her Story-After the Book Deal, for additional allegations regarding the First Draft Complaint.
Exhibit A is the May 26 Draft Complaint that was served upon Cline by Reetz-Laiolo's counsel during the settlement negotiations that preceded this action. McNamara Decl. ¶ 3. Cline filed an administrative motion to seal portions of exhibit A that contain highly sensitive, private records and correspondence, names of individuals unrelated to this action, or personally identifying and financial information. Admin Mot. to Seal at 1-2 (17-6866, Dkt. No. 43); see McNamara Decl. ¶¶ 4-6. Because Cline has demonstrated compelling reasons to seal her narrowly tailored request, her motion is GRANTED. See Kamakana v. City & Cty. of Honolulu ,
Throughout this Order, I refer to Reetz-Laiolo, Bernard, and Kiesel as "Reetz-Laiolo plaintiffs" when Reetz-Laiolo, Bernard and Kiesel are alleging claims concerning the same cause of action.
This background focuses on the allegations pertaining to the parties, but plaintiffs also allege Cline's "long history of breaking into other people's online accounts[.]" Am. Compl. ¶¶ 122-128 (capitalization omitted).
Reetz-Laiolo indicates that he had sent Cline "a much-earlier version of the script, Fadein, but this version did not contain the infringed excerpts." Reetz-Laiolo Am. Compl. ¶ 187.
Cline argues that the motion for leave to amend should be denied because the proposed amendment is futile, untimely, dilatory, and sought in bad faith. (Dkt. No. 71). She also asks that I resolve the motion now. While there may be some merit to Cline's futility arguments, I grant Reetz-Laiolo, Bernard, and Kiesel leave to amend their complaint consistently with this Order because "[t]he court should freely give leave when justice so requires[,]" Fed. R. Civ. P. 15(a)(2). They may include the claims added in the draft complaint attached to their motion for leave to amend unless barred by this Order.
He expressly reserved his right to answer the remaining claims upon resolution of his motion to dismiss. Reetz-Laiolo MTD at 5 n.2; see, e.g. , Palantir Techs., Inc. v. Palantir.net, Inc. , No. C 10-04283 CRB,
Cline argues that New York law applies to Cline's claim based on her New York residency and her demands for return of the property, which were made in New York. Opp'n to Reetz-Laiolo MTD at 8-9 (Dkt. No. 44). But, she acknowledges that "New York also has a three-year statute of limitations [citation] and similar elements of the tort ," so "the Court need not address the choice-of-law issue for this claim at this time." Id. at 9. She proceeds to present both New York and California law when arguing her ability to state a claim. See Opp'n at 9-12.
If there is no "challenge" to the choice of law on a particular issue, however, I fail to see the need to embark on a choice-of-law analysis. See In re Miller ,
Reetz-Laiolo also argues that Cline's unclean hands bar her from seeking equitable relief. Reply at 4 n.4. That may prove true, but it does not impact her ability to state a claim.
Cline attached a declaration to her opposition in which she avers, "[i]n the summer of 2017, in the course of negotiations that preceded this litigation, I learned for the first time that Chaz had also surreptitiously used my computer to email himself a copy of my journal on October 4, 2010." Cline Decl. ¶ 10. This contention is not included in her complaint, and therefore, cannot be considered when determining the sufficiency of her allegations on a motion to dismiss. Reetz-Laiolo argues that even if this new allegation were added to Cline's complaint, it would not save her claim "because 2010 precedes 2012." Reply at 6 n.9. According to him, the inquiry notice that attached in 2012 applies to the alleged 2010 taking as well. I need not address this argument at this time.
Neither are the district court cases that Cline cites for the proposition that federal courts apply federal common law in federal question cases with pendant state law claims, "even if the evidence solely relates to state law claims." Opp'n at 20. In each of those cases, the court was tasked with deciding whether a privilege precluded discovery of certain evidence. See Garedakis v. Brentwood Union Sch. Dist. , No. 14-cv-04799PJHDMR,
As Reetz-Laiolo correctly notes, it is irrelevant whether the prelitigation communications are "relevant to Cline's federal claims as well as her state law claims." Opp'n at 20; see Reply at 13 n.21. His invocation of the privilege does not depend on the theory of relevance for any particular evidence, because he is not using it to keep out evidence at all. Cf. Love ,
Cline asserts that this "claim is governed by New York law, since that is where Cline resides and works, that is where Reetz-Laiolo's extortionate threats occurred, and that is where Cline established and maintains her business relationships with her publisher, her agent, and a film production company, and hence where much of the harm has occurred." Opp'n at 25-26. But she acknowledges that New York and California tortious interference claims have the same elements,
The same holds true for her alleged loss from being unable to sell the film rights to The Girls. As Reetz-Laiolo underscores, she was already compensated for the option rights sold to Scott Rudin Productions. She alleges that "[d]irectors and producers have been clamoring to option the rights," Cline Compl. ¶ 100, but she has not identified "an existing relationship with an identifiable buyer." Westside Ctr. Assocs. ,
Reetz-Laiolo insists that defendants do not appear to argue that the distinct claims rise or fall together. Opp'n at 24 n.15. He insists that the claims are distinct, that they are each plausibly pleaded, and each "may have distinct damages."
Although, Cline moves to strike his requests for statutory damages and attorney's fees under the Copyright Act since the registrations have yet to issue. Cline MTD at 7 n.6. Under the Act, "no award of statutory damages or of attorney's fees ... shall be made for ... any infringement of copyright in an unpublished work commenced before the effective date of its registration[.]"
She cites the superseded opinion, but I will cite the amended opinion for consistency.
The Fifth Circuit, when presented with the issue of "electronic storage" under the SCA, noted the following:
It is not always easy to square the decades-old SCA with the current state of email technology. One commentator has observed that the definition of "electronic storage" "is better understood in light of the e-mail delivery system in place at the time [of the SCA's enactment in the mid-1980s], which required multiple service providers to store communications briefly before forwarding them on to their next destination or while awaiting download by the recipient." Robison, Free at What Cost? , 98 Geo. L.J. at 1206. By contrast, today's predominant web-based email services, like Gmail, allow users to "access their email over the web from any computer, and [users] do not automatically download their messages to their own computers as non-web-based email service users do. Instead, if [web-based] users save a message, they generally leave it on the [web-based email] server and return to [the email service] via the web to access it on subsequent occasions." United States v. Weaver ,636 F.Supp.2d 769 , 772 (C.D. Ill. 2009) (citation omitted). Of course, web-based email users may still download emails to their computers through email client programs, which complicates the picture. See Cheng v. Romo ,2013 WL 6814691 , at *4-5 (D. Mass. Dec. 20, 2013) (slip copy).
Anzaldua v. Ne. Ambulance & Fire Prot. Dist. ,
See discussion of Shefts below.
The factors set forth in § 1030(a)(5)(B)(i)-(v) are:
(i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value;
(ii) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals;
(iii) physical injury to any person;
(iv) a threat to public health or safety; or
(v) damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security....
By referencing the computer systems on which their data is stored, they are essentially articulating a theory of liability based on Cline's unauthorized access of the email provider's computers. They footnote a case cited by defendants, Ins. Safety Consultants LLC v. Nugent ,