Procedural Posture

Plaintiff and counter-defendant moved to dismiss defendant’s counterclaims challenging plaintiff’s copyright applications under Fed. R. Civ. P. 12(b)(6), arguing that under Cal. Civ. Code § 47(b)(2), its applications for copyrights were absolutely privileged as communications made in judicial proceedings.

Overview

Plaintiff and defendant had a consulting services agreement. A dispute developed over the ownership of certain application software. Plaintiff claimed exclusive rights to the software, and alleged defendant sold it without permission, and plaintiff initiated copyright litigation. Defendant counterclaimed for, among other things, interference with prospective economic advantage; interference with contract; false advertising in violation of Cal. Bus. & Prof. Code §§ 17500, et seq. and unfair competition in violation of Cal. Bus. & Prof. Code §§ 17200, et seq. Plaintiff moved to dismiss on the theory that its communications in the copyright proceeding were absolutely privileged as communications in a judicial proceeding under Cal. Civ. Code § 47(b)(2). The court agreed, finding the privilege extended to publications made outside the courtroom and where no function of the court or its officers is invoked. Appellant was represented by a business attorney.

Outcome

Plaintiff’s motion to dismiss was granted as to four of the counterclaims to the extent they were based on plaintiff’s filing of a copyright application or statements in the course thereof; one of the four claims was not dismissed to the extent it alleged other conduct or communications.

Overview

HOLDINGS: [1]-There was no reason to believe that the appellate court anticipated the borrower would seek to broaden his suit on remand; [2]-The court envisioned no prejudice to defendants if the requested amendment was allowed; [3]-The borrower failed to state a basis for challenging defendants’ authority to foreclose on the loan; [4]-The delayed funding did not void the transaction; [5]-The lender’s failure to credit the first payment, to the extent it did so, did not render the deed of trust void; [6]-To the extent he argued that TILA violations rendered the note and deed of trust void for purposes of the Yvanova analysis, he was incorrect; [7]-The borrower’s reliance on the Jackson decision was misplaced; [8]-His contention that the named lender was not the true lender appeared to be based solely on speculation.