Demurrer CLM

Cal. Super. - 2nd Dist.March 9, 2015

123 Judge SUPERIOR COURT OF CALIFORNIA, TENTATIVE RULINGS EVENT DATE: EVENT TIME: VENTURA DIVISION June 16, 2015 07/20/2015 08:20:00 AM DEPT.: 43 COUNTY OF VENTURA JUDICIAL OFFICER: Kevin DeNoce CASE NUM: CASE CATEGORY: EVENT TYPE: CASE TITLE: CASE TYPE:Civil - Unlimited PI/PD/WD - Other 56-2015-00464821-CU-PO-VTA LIND VS. GRETHER Demurrer (CLM) CAUSAL DOCUMENT/DATE FILED: Demurrer, 05/13/2015 stolo With respect to the below scheduled tentative ruling, no notice of intent to appear is required. If you wish to submit on the tentative decision, you may submit a telefax to Judge DeNoce's secretary, Hellmi McIntyre at 805-662-6712, stating that you submit on the tentative. Do not call in lieu of sending a telefax, nor should you call to see if your telefax has been received. If you submit on the tentative without appearing and the opposing party appears, the hearing will be conducted in your absence. This case has been assigned to Judge DeNoce for all purposes. Absent waiver of notice and in the event an order is not signed at the hearing, the prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a), (b), (d) and (e). The signed order shall be served on all parties and a proof of service filed with the court. A "notice of ruling" in lieu of this procedure is not authorized. ______________________________________________ The court's tentative ruling is as follows: Overrule demurrer as to preemption issue and uncertainty based on the absence of a prayer. Discussion: The primary issue raised by the demurrer is whether federal law, the Visual Artists Rights Act (VARA), preempts Civil Code section 987 (CAPA). In support of preemption, the Defendant relies upon Lubner v. City of L.A (1996) 45 Cal. App. 4th 525, 531. However, Lubner did not clearly and unequivocally resolve the issue as to whether Civil Code section 987 is preempted by VARA. Preemption applies only where there is a ' "clear and manifest purpose of Congress" ' to foreclose a particular field to state legislation. ( Jones v. Rath Packing Co. (1977) 430 U.S. 519, 525 [51 L. Ed. 2d 604, 614, 97 S. Ct. 1305], quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230 [91 L. Ed. 1447, 1459, 67 S. Ct. 1146].)" ( Fenning v. Glenfed, Inc. (1995) 40 Cal. App. 4th 1285, 1290-1291 [47 Cal. Rptr. 2d 715].) "Courts are reluctant to infer preemption, and it is the burden of the party claiming that Congress intended to preempt state law to prove it." ( Elsworth v. Beech Aircraft Corp. (1984) 37 Cal. 3d 540, 548 [208 Cal. Rptr. 874, 691 P.2d 630].) A preemption analysis begins with the presumption that federal statutes do not supersede the historic police powers of the state unless Congress has manifested a clear intent to do so. ( Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516 [112 S. Ct. 2608, 2617, 120 L. Ed. 2d 407].)." (Vinnick v. Delta Airlines, Inc (2001) 93 Cal. App. 4th 859, 863.) A federal statute or regulation may preempt state law in three situations, commonly referred to as (1) express preemption, (2) field preemption, and (3) conflict preemption. . . . [P] A state law actually conflicts with federal law 'where it is impossible for a private party to comply with both state and federal requirements [citation], or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."'" (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815.) It is well recognized that "'courts are reluctant to infer preemption, and it is the burden of the party claiming that Congress intended to preempt state law to prove it.' [Citation.] TENTATIVE RULINGS Page: 1 CASE NUMBER: CASE TITLE: LIND VS. GRETHER 56-2015-00464821-CU-PO-VTA Where Congress has legislated in a field traditionally occupied by the states, 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' [Citation.] 'This assumption provides assurance that "the federal-state balance" [citation] will not be disturbed unintentionally by Congress or unnecessarily by the courts.'" (Ibid.) The court's statement in Lubner that "it appears that section 987 has been preempted by the Visual Artists Rights Act of 1990..." is not a definitive statement on the issue. (Lubner v. City of L.A (1996) 45 Cal. App. 4th 525, 531.) Title 17 USCS section 301 provides in part that it does not annul or limit the rights or remedies under the common law or statutes of any states under certain circumstances. (See, Massachusetts Museum Contemp. v. Buchel (1st Cir. 2010) 593 F.3d 38, 55-56.) It appears that Congress did not intend for the Visual Artists Rights Act to preempt Civil Code section 987. In enacting the Visual Artists Rights Act of 1990, see H.R. 514, 1990 Cong U.S. HR 514 (Lexis), the Committee on the Judiciary commented as follows on federal preemption: "State artists' rights laws that grant rights not equivalent to those accorded under the proposed law are not preempted, even when they relate to works covered by [VARA]." (Id.). Based on Title 17 U.S.C.A. section 301(f)(1)), both state common law and state statutes are preempted under the following circumstances: (1) the rights conferred are "equivalent" to the rights conferred by § 106A; (2) the works protected are works of visual art as defined by the act; and (3) the works of visual art are those to which § 106A applies. The House of Representatives Report gave some examples of the effect of this provision: "State artists' rights laws that grant rights not equivalent to those accorded under the proposed law are not preempted, even when they relate to works covered by [the bill]. For example, the law will not preempt a cause of action for a misattribution of a reproduction of a work of visual art or for a violation of a right to a resale royalty. Further, State law causes of action such as those for misappropriation, unfair competition, breach of contract, and deceptive trade practices, are not currently preempted under section 301 [of the Copyright Act], and they will not be preempted under the proposed law." (H.R. Rep. No 514, 101st Cong., 2d Sess. 21 (1990).) The act clarifies that there is no preemptive effect with respect to state common law or statutes for legal and equitable rights that are "not equivalent to any of the rights conferred by section 106A" (See, 17 U.S.C.A. § 301(f)(2)(B).) As is clear from the foregoing, certain aspects of existing state moral rights legislation may be preempted by the Visual Artists Rights Act of 1990 and other aspects are not preempted. Because the scope of protections provided to visual artists under VARA and CAPA are different, the Court is not convinced that Civil Code section 987 is preempted. Civil Code section 987 requires proof of intentional conduct or gross negligence (defined differently than VARA) which is not "equivalent" to the rights conferred by Title 17 USC section 106A. The rights at issue must be "equivalent to any of the exclusive rights within the general scope of copyright as specified by [17 U.S.C. § 106]." Del Madera Props., 820 F.2d at 976 (citing 17 U.S.C. § 301(a)); Chesler/Perlmutter Prods. v. Fireworks Entm't, Inc., 177 F.Supp.2d 1050, 1057 (C.D.Cal.2001) ("The Copyright Act only has complete preemptive force if the rights asserted in the state law claims are rights that could have been asserted under the Copyright Act."). Further, the Copyright Act does not preempt a state law with an "'extra element' that makes the right asserted qualitatively different from those protected under the Copyright Act ." Altera Corp., 424 F.3d at 1089 (citing Summit Mach. Tool Mfg. v. Victor CNC Sys., 7 F.3d 1434, 1439-40 (9th Cir.1993); Bowers v. Baystate Techs. Inc., 320 F.3d 1317, 1323-24 (Fed.Cir.2003)). Preemption does not apply because CAPA does not infringe on the exclusive rights delineated in VARA. Defendant also demurrers on the grounds that the complaint is uncertain because it contains no prayer. A prayer for relief is not considered to be part of the complaint itself, and the failure to include one does not support a general demurrer. (See County of Riverside v. Butcher (1901) 133 Cal. 324, 327; Kohler v. Agassiz (1893) 99 Cal. 9, 16; Greenup v. Rodman (1986) 42 Cal.3d 822, 826.) TENTATIVE RULINGS Page: 2