Marc Henri David v. George Chiala Farms, Inc.

• Court: District Court, N.D. California
• Decided: February 3, 2026
• Docket: 3:24-cv-04040
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARC HENRI DAVID, Case No. 24-cv-04040-SI

8 Plaintiff, ORDER GRANTING PARTIAL 9 v. MOTION TO DISMISS SECOND AMENDED COMPLAINT AND 10 GEORGE CHIALA FARMS, INC, DENYING MOTION TO DISMISS SECOND AMENDED THIRD-PARTY 11 Defendant. COMPLAINT

12 Re: Dkt. Nos. 98, 100

13 14 Now pending before the Court are the motion by Catharine David and Catharine David 15 Consulting to dismiss the second amended third-party complaint and the motion by George Chiala 16 Farms, Inc. (“GCF”) to dismiss portions of Marc David’s second amended complaint. Pursuant to 17 Civil Local Rule 7-1(b), the Court found these motions suitable for resolution without oral argument 18 and vacated the hearing. 19 20 BACKGROUND 21 I. Factual Background 22 The Court largely repeats the background facts as stated in its Prior Order on the motions to 23 dismiss. See Dkt. No. 89. Two works -- the George Chiala Farms logotype, and an image titled 24 “Agricultural Field at Sunrise” -- are at the center of this copyright infringement dispute. Plaintiff 25 Marc Henri David is an artist who says that he is the sole creator of the GCF logo, which all parties 26 agree was created over twenty years ago and which GCF has used in various contexts over the years, 27 continuing through the present. Dkt. No. 95 (“Marc David SAC”) ¶¶ 11-14, 31. Mr. David states ] Mr. David filed a copyright application for the logo with the United States Copyright Office. □□□ 2 421 & Ex. A. Four days later, on May 27, 2021, general counsel for GCF, Jeff Nunes, filed a 3 || trademark registration application for the GCF logo and claimed that GCF was the owner of the 4 |} mark. Jd. 921 & Ex. E. The image of the logo is reproduced below: 5 6

9 OT See oF: es 10 “ARS oe : 1] a 12 Mr. David states that in July 2012 he created an image titled “Agricultural Field at Sunrise.”

& 13 || Jd. 433. In April 2024, Mr. David registered this image with the U.S. Copyright Office. Id. § 34 &

Y 14 || Ex.G. The image of “Agricultural Field at Sunrise” is reproduced below:

15 16 =

Z 18 19 20 21 22 23 According to the second amended complaint, “[i]n late 2000 — early 2001, George Chiala, 24 Sr. asked Marc David and his partner Catharine to create print marketing materials for his company 25 GCF.” Id. § 12. In 2009, Ms. David began working under the name Catharine David Consulting 26 || and “became GCF’s exclusive marketing team until November 2023.” Jd. ¥ 19. During the course 27 || of their business relationship, there was no signed contract. Dkt. No. 93 (“2d Am. Third-Party 28 Compl.”) § 18. In November 2023, GCF formed an internal marketing department and hired the

1 CEO’s niece as the new Marketing Coordinator, though Ms. David continued to manage the GCF 2 website. Marc David SAC ¶ 24. 3 Mr. David also alleges that in April 2023 Ms. David, with Mr. David’s permission, used the 4 “Agricultural Field at Sunrise” image in a PowerPoint presentation that Ms. David created for 5 George Chiala, Jr. to present to the ConAgra board of directors. Id. ¶ 35. He alleges that over the 6 years he permitted Catharine to use the image “for projects that Catharine was working on for GCF, 7 but only because Catharine was working on them” and that he never transferred ownership of the 8 image to GCF. Id. He alleges that after GCF granted the Davids access to the GCF server in 9 November 2023, Ms. David “discovered several instances of copyright infringement of the 10 ‘Agricultural Field at Sunrise’ image[,]” where GCF used the image in other presentations without 11 Mr. David’s knowledge or consent. Id. ¶ 36. 12 Mr. David alleges that, on January 18, 2024, Mr. David, Ms. David, and George Chiala, Jr. 13 met to discuss the logotype’s ownership but did not come to an agreement. Id. ¶ 27. On April 4, 14 2024, GCF sent Ms. David “a proposed ‘Media Consultant Master Agreement’ containing 15 retroactive work-for-hire provisions and an assignment of all copyright and trademark rights to 16 GCF.” Id. ¶ 29. The Davids refused to sign. Id. According to the second amended complaint, on 17 May 24, 2024, “GCF issued an ultimatum: sign the transfer agreement or terminate the business 18 relationship.” Id. On June 3, 2024, the Davids gave GCF “two weeks’ notice that, unless a licensing 19 or purchase agreement was reached, GCF must stop using the Davids’ intellectual property by 17 20 June 2024.” Id. ¶ 30 & Ex. F. Mr. David alleges that it was also in June 2024 that he discovered 21 GCF’s USPTO trademark registration for the logotype. Id. ¶ 32. 22 Mr. David alleges that, as he is the sole owner of the logo and the “Agricultural Field at 23 Sunrise” copyright, GCF is infringing on his copyrights by continuing to use these works in its 24 marketing without any ownership or license and after he told them not to use the logotype beyond 25 June 17, 2024. GCF has brought counterclaims against Mr. David and third-party claims against 26 Ms. David and Catharine David Consulting, essentially arguing that any copyright infringement, if 27 it exists, was due to actions and/or omissions by Catharine David and her business in misleading 1 II. Procedural Background 2 On July 3, 2024, Mr. David, who was self-represented at the time, filed this suit against GCF 3 and Jeff Nunes (GCF’s general counsel) for violation of the Copyright Act, 17 U.S.C. § 501. Dkt. 4 No. 1. Defendants answered the complaint and filed counterclaims against Mr. David for 5 declaratory relief. Dkt. No. 21. Defendants also filed a third-party complaint against Catharine 6 David and Catharine David Consulting. Dkt. No. 21-1. Defendants later amended the third-party 7 complaint. See Dkt. No. 49. In November 2024, Mr. David moved for a temporary restraining 8 order, which the Court denied. See Dkt. No. 45. 9 Upon Mr. David’s request, the Court stayed the case for 90 days due to Mr. David’s medical 10 issues. Dkt. Nos. 51, 54. Once the stay was lifted, the Court granted the Davids’ request to continue 11 the initial case management conference while the Davids sought counsel. Dkt. Nos. 58, 60. 12 Once counsel was retained, Mr. David moved to dismiss the three counterclaims against him 13 and to strike the affirmative defenses. Dkt. No. 70. Catharine David and Catharine David 14 Consulting moved to dismiss the amended third-party complaint. Dkt. No. 71. GCF moved to 15 dismiss three of the four claims against it from Mr. David’s first amended complaint and to strike 16 the prayer for statutory damages and attorneys’ fees.1 Dkt. No. 75. 17 On November 7, 2025, the Court ruled on the motions to dismiss. Dkt. No. 89 (“Prior 18 Order”). The Court granted Mr. David’s motion to dismiss GCF’s counterclaims for declaratory 19 judgment of non-infringement and for declaratory judgment that Mr. David’s alleged copyright in 20 the logo is invalid and unenforceable. The Court denied Mr. David’s motion to dismiss the 21 counterclaim for declaratory judgment of implied license. The Court also granted Mr. David’s 22 motion to strike GCF’s affirmative defenses from the answer, with leave to amend. The Court 23 granted CDC’s motion to dismiss from the amended third-party complaint GCF’s first cause of 24 action for restitution and unjust enrichment, with leave to amend.2 The Court denied CDC’s motion 25

26 1 Defendant Jeff Nunes, general counsel for George Chiala Farms, also moved to dismiss the claims against him from Mr. David’s FAC. Dkt. No. 76. After the matter was fully briefed, Mr. 27 David voluntarily dismissed Mr. Nunes from this action. Dkt. No. 85. 1 to dismiss the remaining causes of action. Also in its Prior Order, the Court granted GCF’s motion 2 to dismiss Mr. David’s claim under California’s Unfair Competition Law, with leave to amend. 3 On November 21, 2025, all parties amended their pleadings. Dkt. Nos. 92, 93, 95. Mr. 4 David then filed an answer to GCF’s amended counterclaims. Dkt. No. 99. CDC now moves to 5 dismiss the second amended third-party complaint and GCF moves to dismiss the second and third 6 causes of action from Mr. David’s second amended complaint. Both motions are premised on 7 Federal Rule of Civil Procedure 12(b)(6). 8 9 LEGAL STANDARD 10 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if 11 it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 12 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 13 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires 14 the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted 15 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened 16 fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to above the 17 speculative level.” Twombly, 550 U.S. at 555, 570. 18 In deciding whether to grant a motion to dismiss, the Court must assume the plaintiff’s 19 allegations are true and must draw all reasonable inferences in his favor. See Usher v. City of Los 20 Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the Court is not required to accept as true 21 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 22 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 23 24 DISCUSSION 25 I. CDC’s Motion 26 Third-party defendants Catharine David and Catharine David Consulting move to dismiss 27 George Chiala Farms’ second amended third-party complaint, which brings the same seven causes 1 Third-Party Compl. with Dkt. No. 49 (“Am. Third-Party Compl.”). In its Prior Order, the Court 2 granted CDC’s motion to dismiss the first cause of action for unjust enrichment/restitution, with 3 leave to amend, but denied CDC’s motion to dismiss the remaining causes of action. Prior Order at 4 17-25, 28. 5 CDC now moves to dismiss all seven causes of action from the second amended third-party 6 complaint, “on the grounds that newly available evidence . . . establishes that GCF had direct written 7 notice from Marc David of his sole ownership of the GCF logo beginning in 2001” and that “[t]his 8 undisputed documentary evidence defeats every claim GCF asserts against CDC as a matter of law.” 9 Dkt. No. 100 (“CDC Mot.”) at ii. CDC cites to three exhibits attached to plaintiff Marc David’s 10 recently-filed second amended complaint. See Marc David SAC, Ex. B, C, D. One is a letter dated 11 March 23, 2001, one is a photocopy of a compact disc, and one is a letter dated July 10, 2001. See 12 id. According to CDC, these are letters in which Marc David “personally and directly informed 13 George Chiala, Jr. in writing that . . . Marc David solely owned the logo[,]” among other things. 14 CDC Mot. at 1. 15 The Court denies CDC’s motion to dismiss because the evidence on which the motion is 16 based is not undisputed and is not properly before the Court at this stage. In ruling on a motion to 17 dismiss, the Court may generally consider matters properly subject to judicial notice or incorporated 18 by reference in the complaint. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 19 (2007). The Court “may judicially notice a fact that is not subject to reasonable dispute because it: 20 (i) is generally known within the trial court’s territorial jurisdiction; or (ii) can be accurately and 21 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 22 201. The incorporation-by-reference doctrine allows the Court to consider documents that were 23 either “necessarily depended on” in the complaint or referenced in the complaint and not subject to 24 reasonable dispute. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018). The 25 Ninth Circuit has cautioned that “[t]he overuse and improper application of judicial notice and the 26 incorporation-by-reference doctrine . . . can lead to unintended and harmful results.” Id. at 998. 27 Here, CDC incorrectly asserts that the very existence of the 2001 letters on the docket, as 1 the incorporation-by-reference doctrine. See CDC Mot. at 5-6. The incorporation-by-reference 2 doctrine is inapplicable to the present context. That doctrine “treats certain documents as though 3 they are part of the complaint itself. The doctrine prevents plaintiffs from selecting only portions 4 of documents that support their claims, while omitting portions of those very documents that 5 weaken—or doom—their claims.” Khoja, 899 F.3d at 1002 (citing Parrino v. FHP, Inc., 146 F.3d 6 699, 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego 7 v. Dow Chem. Co., 443 F.3d 676, 681-82 (9th Cir. 2006)). The operative complaint for purposes of 8 CDC’s motion to dismiss is GCF’s second amended third-party complaint against CDC. See Wada 9 v. Aloha King, LLC, 154 F. Supp. 3d 981, 1000 (D. Haw. 2015) (“In considering whether to dismiss 10 a crossclaim, the Court must accept the allegations of the crossclaim as true, construe the pleadings 11 in the light most favorable to the pleading party, and resolve all doubts in the pleader’s favor.”) 12 (citing Indep. Living Ctr. of S. Cal. v. City of Los Angeles, 973 F. Supp. 2d 1139, 1146 (C.D. Cal. 13 2013)). Nowhere does GCF’s second amended third-party complaint refer to any letters from Marc 14 David asserting his ownership over the logo. Rather, GCF alleges that George Chiala, Jr. hired the 15 Davids “to work with him to create a logo[,]” that GCF began using the logo in all aspects of 16 company branding around March 2000, and that “[t]here was never a discussion about licensing the 17 GCF Logo and GCF believed that [it] had purchased all rights to the GCF Logo at the outset.” 2d 18 Am. 3d-Party Compl. ¶¶ 10, 16. What CDC now seeks to have “incorporated by reference” are a 19 set of letters never referenced in GCF’s third-party complaint and that contradict GCF’s version of 20 the facts. 21 Nor are the 2001 letters properly considered under the judicial notice doctrine. “Judicial 22 notice under Rule 201 permits a court to notice an adjudicative fact if it is ‘not subject to reasonable 23 dispute.’” Khoja, 899 F.3d at 999 (quoting Fed. R. Evid. 201(b)). The letters that Marc David 24 attaches to his recent complaint are anything but undisputed. CDC contends these letters prove that 25 GCF knew since 2001 that Mr. David asserted his ownership over the GCF logo. The question of 26 who owns the logo goes to the very heart of this litigation. CDC’s assertions that the ownership of 27 the logo are no longer in dispute, in the face of these “newly available” 2001 letters, fundamentally 1 that GCF has “offer[ed] no affidavit, no declaration, and no evidence of any kind to support its 2 supposed dispute” only underscores the disputed factual nature of CDC’s motion. See Dkt. No. 105 3 (“CDC Reply”) at 1. 4 Because the 2001 letters are not properly before this Court and because CDC’s motion is 5 premised on the disputed factual position that GCF knew of Marc David’s ownership of the logo 6 since 2001, the Court DENIES CDC’s motion to dismiss the second amended third-party 7 complaint.3 8 9 II. GCF’s Motion 10 GCF moves to dismiss the second and third causes of action from Mr. David’s second 11 amended complaint. In the second amended complaint, Mr. David now brings a claim for 12 conversion and has amended his claim for unlawful, fraudulent, and unfair business practices in 13 violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq. 14 15 A. Conversion 16 1. Failure to Move to Amend 17 Mr. David asserts that GCF unlawfully converted Mr. David’s intellectual property 18 ownership in the GCF logo when, in May 2021, GCF submitted a trademark application for the GCF 19 logotype “falsely claiming that Defendant GEORGE CHIALA FARMS, INC. was the sole and 20 rightful owner of the mark and its image.” Marc David SAC ¶ 54. 21 As an initial matter, the Court agrees with GCF that the conversion claim should be 22 dismissed because Mr. David added the claim without the Court’s leave. Previously, the Court 23 dismissed Mr. David’s UCL claim, with leave to amend the UCL claim. Prior Order at 25-28. Now, 24 with his second amended complaint, Mr. David has added an entirely new claim, for conversion. 25 The deadline for amendment of the pleadings was June 13, 2025. Dkt. No. 67. The Court 26

27 3 Additionally, the Court agrees with GCF that it is improper for CDC to again move to 1 set this deadline after having granted a 90-day stay of the case and multiple continuations of the 2 initial case management conference, first due to Mr. David’s medical needs and then while he sought 3 counsel. See Dkt. No. 58. Mr. David then filed his first amended complaint—by the deadline for 4 amendment and with the assistance of counsel—bringing claims for copyright infringement, 5 fraudulent procurement of trademark registration, false designation of origin, and violation of the 6 UCL. Dkt. No. 72. After GCF moved to dismiss all but the claim for copyright infringement, Mr. 7 David voluntarily dismissed his claims for fraudulent procurement of trademark registration and 8 false designation of origin. See Dkt. No. 85. The Court then granted GCF’s motion to dismiss the 9 UCL claim because the contours of that claim were not clear in light of Mr. David’s dismissal of 10 the underlying claims that formed the predicate for the UCL claim. Prior Order at 26-27. The Court 11 granted Mr. David leave to amend the UCL claim but did not grant leave to amend other portions 12 of his complaint. See id. at 27. 13 In opposing GCF’s motion to dismiss, Mr. David argues that he “was not required to obtain 14 leave to amend to add the conversion claim.” Opp’n at 2. Mr. David cites the liberal amendment 15 policy of Federal Rule of Civil Procedure 15. See id. Even setting aside Mr. David’s misreading 16 that Rule 15 does not require the Court’s leave for amendment, the liberal amendment policy does 17 not govern here, where the deadline to amend the pleadings was laid out in a scheduling order. In 18 such instance, Rule 16 governs: “A schedule may be modified only for good cause and with the 19 judge’s consent.” See Fed. R. Civ. P. 16(b)(4). Plaintiff calls these “procedural technicalities,” 20 Opp’n at 2, but they are more than that. As the Ninth Circuit has explained, “A scheduling order is 21 not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without 22 peril. . . . Disregard of the order would undermine the court’s ability to control its docket, disrupt 23 the agreed-upon course of the litigation, and reward the indolent and the cavalier. Rule 16 was 24 drafted to prevent this situation and its standards may not be short-circuited by an appeal to those of 25 Rule 15.” See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610-11 (9th Cir. 1992) 26 (internal quotation marks and citations omitted). This case has been pending for more than a year 27 and a half, Mr. David has already amended his pleadings twice, and the deadline to amend the 1 stage, he should have filed a motion to amend the complaint.4 2 3 2. Futility of Amendment 4 Even if plaintiff had properly sought leave to amend and had shown good cause for not 5 bringing the conversion claim sooner, the Court would likely deny amendment as futile. See Hurn 6 v. Retirement Fund Tr. of Plumbing, Heating & Piping Indus., 648 F.2d 1252, 1254 (9th Cir. 1981) 7 (under Rule 15, “a motion for leave to amend is generally determined by reference to several 8 factors[,]” including futility of amendment). 9 In California, “[t]o establish conversion, a plaintiff must show (1) his ownership of or right 10 to possess the property at the time of the conversion, (2) that the defendant disposed of the plaintiff’s 11 property rights or converted the property by a wrongful act, and (3) damages.” Bank of New York 12 v. Fremont Gen. Corp., 523 F.3d 902, 914 (9th Cir. 2008) (citing Messerall v. Fulwider, 199 Cal. 13 App. 3d 1324 (1988)). “A plaintiff in a conversion action must also prove that it did not consent to 14 the defendant’s exercise of dominion.” Id. (citing Farrington v. A. Teichert & Son, Inc., 59 Cal. 15 App. 2d 468, 139 P.2d 80, 83 (1943)). 16 It remains unsettled “whether trademarks can be the objects of conversion in California law.” 17 See English & Sons, Inc. v. Straw Hat Restaurants, Inc., 176 F. Supp. 3d 904, 921 (N.D. Cal. 2016) 18 (noting “[t]he debate is not entirely closed”). Judges within this district have come out on opposite 19 sides of the issue. In Meeker v. Meeker, No. C 02-00741 JSW, 2004 WL 2554452 (N.D. Cal. Nov. 20 10, 2004), the plaintiff argued that the defendant “fraudulently register[ed] the Meeker Vineyards 21 mark with the USPTO . . . to prevent Plaintiff from exercising his rights as senior user to register 22 the mark[.]” Id. at *4. Judge White “conclude[d] that a claim for conversion should not be extended 23 to reach the intangible intellectual property rights in a trademark.” Id. at *6. Judge White 24 accordingly denied as futile the plaintiff’s motion to amend the complaint to add a conversion claim. 25 Id. By contrast, in Straw Hat Restaurants, Judge Beeler concluded that the “Straw Hat” trademark 26 could be the object of conversion under California law. See 176 F. Supp. 3d at 923. The dispute in 27 1 that case revolved around who had the right to control the Straw Hat Pizza trademark after a 2 restaurant chain dissolved its cooperative ownership model, with some members converting their 3 restaurants into franchises and others attempting to maintain the cooperative. Both Meeker and 4 Straw Hat Restaurants looked to the Ninth Circuit’s decision in Kremen v. Cohen, where the Ninth 5 Circuit found that an internet domain name could be the object of conversion under California law. 6 See 337 F.3d 1024, 1030 (9th Cir. 2003). The Kremen court likened registering a domain name to 7 “staking a claim to a plot of land at the title office” and found the plaintiff “had an intangible 8 property right to his domain name[.]” Id. 9 This Court need not conclusively determine whether a trademark may ever be the subject of 10 a conversion claim under California law. Under the facts as Mr. David alleges here, this case is 11 nearly identical to what the plaintiff argued in Meeker, where Judge White rejected an attempt to 12 add a conversion claim by a plaintiff who never alleged that he owned the trademark, who did not 13 allege that the defendant “wrongfully ‘wrested’ a registered trademark from him[,]” and who did 14 not allege that he had been prevented from using the trademark. See Meeker, 2004 WL 2554452, at 15 *6. As GCF notes, Mr. David does not allege that he is the rightful owner of the GCF trademark, 16 and Mr. David has dropped his claim for fraudulent procurement of trademark registration. This 17 Court will follow Judge White’s reasoning in Meeker that, “[e]ven if the law of conversion would 18 be extended to reach trademarks, . . . the facts of this case would not support such a claim.” See 19 2004 WL 2554452, at *6. 20 The Court GRANTS GCF’s motion to dismiss the conversion claim from Mr. David’s 21 second amended complaint, with prejudice. 22 23 B. UCL Claim 24 As noted above, following the prior round of motions to dismiss, Mr. David voluntarily 25 dismissed his claims for fraudulent procurement of trademark designation and false designation of 26 origin. See Dkt. No. 85 at 2. The Court then dismissed the UCL claim, with leave to amend, 27 explaining, “With Mr. David having now dismissed his claims for fraudulent trademark 1 still viable.” Prior Order at 26. The Court also cautioned, “To the extent that Mr. David bases his 2 UCL claim on a violation of his alleged copyright in the works, such claim may be precluded under 3 the Copyright Act.” Id. (citing Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1212 (9th Cir. 4 1998)). 5 Mr. David has now amended his UCL claim, alleging that GCF has violated the UCL in two 6 ways. He alleges a violation by GCF’s “unlawful conversion of Plaintiff’s property” in its 7 application for trademark registration for the logo. Marc David SAC ¶ 68. Additionally, he alleges 8 that GCF “engaged in unfair, deceptive, and coercive business practices in April 2024 by presenting 9 Plaintiff’s collaborator, Catharine David, with a ‘Media Consultant Master Agreement,’ which 10 falsely purported to transfer the David’s [sic] copyright and trademark ownership interests without 11 compensation.” Id. ¶ 69. 12 The UCL “prohibits any ‘unlawful, unfair or fraudulent business act or practice.’” Williams 13 v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). “Because the statute is written in the 14 disjunctive, it is violated where a defendant’s act or practice violates any of the foregoing prongs.” 15 Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1168 (9th Cir. 2012) (citation omitted). Under the 16 “unlawful” prong, the UCL “‘borrows’ violations of other laws and treats these violations . . . as 17 unlawful practices independently actionable under section 17200 et seq. . . .” Farmers Ins. Exch. v. 18 Superior Ct., 2 Cal. 4th 377, 383 (1992). 19 Because the Court has dismissed the underlying conversion claim, it follows that the 20 conversion claim cannot form the basis for Mr. David’s claim under the unlawful prong of the UCL. 21 See Dang v. Samsung Elecs. Co., Ltd., No. 14-cv-00530-LHK, 2018 WL 11348883, at *7 (N.D. Cal. 22 July 2, 2018) (“Plaintiff’s UCL unlawful prong claim therefore fails because the Court has dismissed 23 the underlying violation”) (citations omitted). 24 Although Mr. David’s UCL claim mentions fraud only in passing, see Marc David SAC 25 ¶ 70, his opposition brief makes clear that he also intends to bring a UCL claim under the fraudulent 26 prong. See Dkt. No. 103 (“Marc David Opp’n”) at 21-22. However, the allegations do not support 27 a claim of fraud, particularly under the heightened pleading standards imposed by Federal Rule of 1 with particularity the circumstances constituting fraud or mistake.”). The complaint alleges that in 2 April 2024 GCF presented Catharine David with a retroactive agreement “which falsely purported 3 to transfer the David’s [sic] copyright and trademark ownership interests without compensation” 4 and that the Davids refused. Marc David SAC ¶¶ 29, 69. There is no fraudulent conduct alleged 5 here. Mr. David does not allege that GCF made false representations or tried to coerce the Davids 6 into signing through some fraudulent act. At most, taking Mr. David’s allegations as true, the 7 complaint alleges that GCF presented an agreement that would transfer Mr. David’s rights in the 8 logo and trademark from Mr. David to GCF and that the Davids refused to sign. This is wholly 9 insufficient to sustain a fraud claim. 10 Finally, the Court finds Mr. David has failed to state a violation under the unfair prong of 11 the UCL. Plaintiff urges the Court not to apply the unfairness test articulated in Cel-Tech 12 Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163 (1999), which 13 articulated the test “[w]hen a plaintiff . . . claims to have suffered injury from a direct competitor’s 14 ‘unfair’ act or practice[.]” Marc David Opp’n at 22-23. Instead, plaintiff asks the Court to apply 15 the balancing test from South Bay Chevrolet v. General Motors Acceptance Corp., 72 Cal. App. 4th 16 861, 886-87 (1999)). Id. at 23. There, the California Court of Appeal explained that “an ‘unfair’ 17 business practice occurs when it offends an established public policy or when the practice is 18 immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” S. Bay 19 Chevrolet, 72 Cal. App. 4th at 886-87. Even applying this test, the Court finds Mr. David’s 20 allegation that GCF engaged in an unfair business practice when it presented Catharine David with 21 a retroactive work-for-hire agreement fails. Based on Mr. David’s own version of the events, 22 Catharine refused to sign the agreement. Moreover, Mr. David does not allege that GCF violated 23 any employment or other contract by refusing to give Catharine work going forward. Indeed, his 24 complaint alleges that about five months earlier, in November 2023, GCF formed an internal 25 marketing department, hired a new Marketing Coordinator, and reallocated Catharine’s previous 26 marketing responsibilities, leaving Catharine only with management of GCF’s website. Marc David 27 SAC ¶ 24. These facts do not plausibly state a claim that GCF engaged in an unfair business practice ] The Court GRANTS GCF’s motion to dismiss the UCL claim from Mr. David’s second 2 |} amended complaint. Because Mr. David has already had the opportunity to amend this claim, 3 dismissal is without further leave to amend. 4 5 CONCLUSION 6 The Court DENIES CDC’s motion to dismiss the second amended third-party complaint 7 {| (Dkt. No. 100). The Court GRANTS GCF’s motion to dismiss the conversion and UCL claims from 8 || Mr. David’s second amended complaint, without further leave to amend (Dkt. No. 98). 9 10 IT IS SO ORDERED. 11 || Dated: February 3, 2026 Site WU tee g □ □ SUSAN ILLSTON 13 United States District Judge

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