Trevor L. Smith v. Paul Counts, et al.

• Court: District Court, E.D. California
• Decided: September 15, 2025
• Docket: 2:20-cv-02441
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TREVOR L. SMITH, Case No. 2:20-cv-2441-TLN-JDP (PS) 12 Plaintiff, 13 v. ORDER 14 PAUL COUNTS, et al., 15 Defendants. 16 17 Plaintiff brings this action against fifteen defendants, alleging claims for violation of 18 federal copyright and state laws. Defendants Scott Bennett, Paul Counts, John Cardot, Matthew 19 Dardenne, and Matthew Quall have filed motions to dismiss the second amended complaint for 20 failure to state a claim. ECF Nos. 83, 95, & 96. Cardot, Dardenne, and Quall have also moved to 21 strike plaintiff’s state law claims under California’s Strategic Lawsuit Against Public 22 Participation (“anti-SLAPP”) provisions set forth in in California Civil Procedure Code section 23 425.16, ECF No. 87, and Bennett has moved for sanctions, ECF No. 78. For the reasons 24 explained below, Cardot, Dardenne, and Matthew’s motion to dismiss is granted, and the 25 remaining motions are denied. 26 27 28 1 Bennett’s Motion for Sanctions 2 Bennett argues that sanctions should be imposed against plaintiff due to his failure to 3 comply with the court’s July 8, 2024 order. ECF No. 78. 4 In that order, the court found service of the second amended complaint appropriate 5 because, for purposes of screening under 28 U.S.C. § 1915(e), the complaint stated a claim upon 6 which relief could be granted. ECF No. 74. Plaintiff was ordered to provide the U.S. Marshal, 7 within sixty days, all information needed to effect service of process, including a completed copy 8 of the summons, a USM-285 form, and a copy of the endorsed complaint for each defendant. Id. 9 at 3-4. Plaintiff was also ordered to file, within twenty-one days of furnishing the required 10 documents, a declaration stating the date on which plaintiff submitted the required documents to 11 the U.S. Marshal. On October 2, 2024, the court received a declaration from plaintiff, dated 12 September 27, 2024, stating that he had submitted the required service documents on September 13 9, 2024, to the U.S. Marshal. 14 Bennett argues that sanctions are appropriate because the court’s order required plaintiff 15 to provide the U.S. Marshal with the service documents by September 6, 2024. ECF No. 78. 16 As a threshold matter, defendant Bennett failed to properly notice his motion for hearing 17 as required by the court’s local rules. See E.D. Cal. L.R. 230(a) (providing that all motions shall 18 be noticed for hearing on the motion calendar of judge “before whom the motion is to be heard 19 not less than thirty-five (35) days after service and filing of the motion”). That failure alone 20 warrants denial of his motion. E.D. Cal. L.R. 110 (Failure of counsel or of a party to comply with 21 these Rules or with any order of the Court may be grounds for imposition by the Court of any and 22 all sanctions authorized by statute or Rule or within the inherent power of the Court.”); E.D. Cal. 23 L.R. 183(a) (“Any individual representing himself or herself without an attorney is bound by the 24 Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law.”). 25 More fundamentally, Bennett has failed to demonstrate that sanctions are appropriate. 26 Because September 6, 2024, was a Saturday, plaintiff had until the following Monday, or 27 September 8, 2024, to provide the required documents. See Fed. R. Civ. P. 6(a)(1)(C). And 28 while plaintiff’s September 9 submission was untimely, the court does not find that the one-day 1 delay warrants imposition of sanctions. This is especially true considering that Bennett does not 2 claim to have been prejudiced by this nominal delay. Accordingly, Bennett’s motion for 3 sanctions, ECF No. 78, is denied. 4 Motions to Dismiss 5 I. Background 6 In his second amended complaint, plaintiff alleges that he is the owner of a copyright 7 registration for “Unbelievers,” a novel that he authored in 2012. ECF No. 72. In 2013, he 8 adapted the novel into a screenplay—which he also registered with the U.S. Copyright Office— 9 and began taking steps to make a motion picture. Id. ⁋ 34. In May 2014, plaintiff attended a film 10 festival and met defendant Kristen Stryker, who recommended that plaintiff contact her husband, 11 defendant Paul Counts, about assisting with the film project. Id. ⁋⁋ 37-38. Counts subsequently 12 accepted plaintiff’s offer to be an executive producer, and in December 2014 Counts flew from 13 his home in Washington to Sacramento to begin filming a teaser for the Unbelievers film. Id. ⁋ 14 41. 15 The following year, plaintiff authorized Counts to form Unbelievers Movie, LLC, a 16 temporary Washington State limited liability company formed for the purpose of complying with 17 the Screen Actors Guild requirements. Id. ⁋ 43. Plaintiff alleges that at the time it was formed, 18 Counts understood that plaintiff would subsequently form the official entity in California. Id. ⁋⁋ 19 43-44. Plaintiff authorized Counts to draft the LLC’s operating agreement, which plaintiff, 20 Stryker, and Counts—the owners and managers of the LLC—all signed. Id. ⁋⁋ 45-46. That 21 agreement allegedly reflected that no member contributed any money, intellectual property, or 22 other assets to the LLC. Id. ⁋ 46. 23 Plaintiff was subsequently introduced to defendant Bennett, and in February 2016 plaintiff 24 entered into investment agreements with both Bennett and Counts. Id. ⁋⁋ 54, 59. Under these 25 agreements, Bennett and Counts agreed to invest in plaintiff’s company, Usherance Studios LLC 26 (“Usherance”), in exchange for the right to share in the profits from the company’s projects. Id. ⁋ 27 59. The agreements included plans to complete other creative projects, but plaintiff emphasizes 28 1 that the agreements did not convey to Bennett or Counts an ownership interest in “Unbelievers.” 2 Id. ⁋⁋ 59-61. 3 In the ensuing months, plaintiff worked with Counts on various projects. Id. ⁋⁋ 60, 63. 4 Their relationship, however, soured, and in January 2017 Counts and Bennett filed a civil 5 complaint in state court against plaintiff, his wife, and Usherance, which allegedly “contained 6 blatant, knowingly false, and provably false material claims and allegations.” Id. ⁋⁋ 64-65. 7 Shortly after that lawsuit was filed, defendants allegedly orchestrated a campaign to undermine 8 him, which included creating a private Facebook group for Unbelievers cast and crew where they 9 allegedly posted false statements about plaintiff. Id. ⁋⁋ 67-69. For example, plaintiff alleges that 10 Counts and Bennett posted to the Facebook group “blatant and provably false claims against 11 [p]laintiff” and “published their unverified LAWSUIT online.” Id. ⁋ 68. According to plaintiff, 12 this online activity resulted in several actors and locations withholding or revoking permission to 13 use their likenesses, ultimately leading to the “termination” of the Unbelievers film. Id. ⁋ 69. 14 Plaintiff further alleges that while the state lawsuit was pending, defendants, with the knowledge 15 and support of their attorneys—defendants Quall, Dardenne, and Cardot—began editing a version 16 of the Unbelievers film using plaintiff’s copyrighted work and without his knowledge or 17 approval. Id. ⁋ 150. Defendants also allegedly publicized their intent to finish and distribute the 18 film, with planned release dates, in part via social media and updates to IMDB. 19 In June 2019, after two years of litigation, Counts and Bennett voluntarily dismissed the 20 state court action “without any form of settlement, condition, or agreement with Plaintiff.” Id. ⁋ 21 150. However, a few weeks later, defendants publicly broadcast a portion of the edited film, id. 22 ⁋⁋ 90-91, which led to plaintiff, on October 11, 2019, to file suit in this district against Counts, 23 Bennett, and others. Id. ⁋ 76; see Smith v. Counts, No. 2:19-cv-2038-KJM-DB. Believing that 24 his, Counts’, and Bennett’s shared religious beliefs would allow the parties to reach an informal 25 resolution, plaintiff voluntarily dismissed that suit. ECF No. ⁋ 76. Within weeks, plaintiff 26 learned that Counts and Bennett had set a release date for Unbelievers, id. ⁋ 77, leading him to 27 file the instant action. 28 1 The second amended complaint alleges eleven claims styled as: (1) copyright 2 infringement; (2) contributory copyright infringement; (3) fraud and intentional 3 misrepresentation; (4) aiding and abetting fraud; (5) breach of fiduciary duty; (6) malicious 4 prosecution; (7) abuse of process; (8) intentional and negligent infliction of emotional distress; 5 (9) declaratory relief; (10) injunctive relief; and (11) accounting. Id. at 18-61. 6 Defendants Quall, Dardenne, and Cardot move to dismiss each of the claims brought 7 against them, primarily arguing that the second amended complaint’s limited allegations against 8 them fail to state a claim for relief.1 ECF No. 83. Defendants Counts and Bennet have also filed 9 their own motions to dismiss. ECF Nos. 95 & 96. 10 II. Legal Standard 11 Pursuant to 28 U.S.C. § 1915(e)(2), the court must dismiss the case at any time if it 12 determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to 13 state a claim on which relief may be granted, or seeks monetary relief against an immune 14 defendant. Under Rule 12, a complaint may be dismissed for “failure to state a claim upon which 15 relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to 16 state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its 17 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility 18 when the plaintiff pleads factual content that allows the court to draw the reasonable inference 19 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 20 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 21 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 22 Iqbal, 556 U.S. at 678. 23 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 24 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 25 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 26 1 Plaintiff’s claims for aiding and abetting (fourth cause of action) and malicious 27 prosecution are brought only against Quall, Dardenne, and Cardot, while his breach of fiduciary duty claim (fifth cause of action) is brought only against Counts. Plaintiff’s remaining claims are 28 directed at all defendants. ECF No. 72 at 18-61. 1 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 2 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 3 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 4 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d 5 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the 6 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984). 7 III. Analysis 8 A. Defendants Counts and Bennett’s Motions to Dismiss 9 Defendants Counts and Bennett filed letters in which they argue that the claim against all 10 defendants should be dismissed. To the extent that Counts and Bennett intended these letters to 11 serve as motions to dismiss under Rule 12(b)(6), the motions are denied. 12 As an initial matter, neither motion was noticed for hearing as required by Local Rule 13 230(a). More importantly, both filings primarily address the viability of plaintiff’s claims against 14 other defendants. For instance, Counts and Bennett appear to argue that five of the individual 15 defendants—Charles Lago, Ryan Hudson, Franco Zampetti, KK Chan, and Richard Mortimer— 16 should be dismissed for failure to timely effect service of process and that three of the business 17 entity defendants—Unbelievers Movie, LLC; Smiling Llama Productions, LLC; and Count of Us, 18 LLC—have no relation to the dispute alleged in plaintiff’s complaint. Counts and Bennett, who 19 are both proceeding without counsel, are not permitted to represent other defendants’ legal 20 interests. See Johns v. Cnty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (“While a non- 21 attorney may appear pro se on his own behalf, he has no authority to appear as an attorney for 22 others than himself”) (internal quotations and citation omitted).2 23 2 Counts and Bennett appear to argue that plaintiff’s copyright infringement claims are 24 barred by the applicable statute of limitation. ECF No. 95 at 6-7; ECF No. 96 at 6-7. Although Counts and Bennett are permitted to challenge the copyright infringement claims alleged against 25 them, their timeliness argument is not based on the second amended complaint’s allegations. 26 Instead, it is based on their contention that filming for Unbelievers concluded in November 2015. However, plaintiff’s copyright infringement claims are not based on the actual filming of the 27 movie. Instead, his claims are based on defendants’ attempted use of footage without his authorization. Accordingly, even had Counts and Bennett properly noticed their motion for 28 hearing, they would not have not shown that any of plaintiff’s claims are subject to dismissal. 1 B. Defendants Quall, Dardenne, and Cardot Motion to Dismiss 2 i. Copyright Infringement 3 Plaintiff alleges that all defendants are liable for copyright infringement because they 4 edited, sold, broadcast a portion of, and attempted to sell, the Unbelievers film without his 5 permission. ECF No. 72 at 5, 18-19. 6 To state a claim for copyright infringement, a plaintiff must allege: “(1) ownership of the 7 allegedly infringed work and (2) copying of the protected elements of the work by the defendant.” 8 Pasillas v. McDonald’s Corp., 927 F.2d 440, 442 (9th Cir. 1991); Skidmore v. Led Zeppelin, 952 9 F.3d 1051 (9th Cir. 2020) (en banc). The second element includes “two distinct components: 10 ‘copying’ and ‘unlawful appropriation.’” Woodland v. Hill, 136 F.4th 1199, 1206 (9th Cir. 2025). 11 The first component is straightforward: plaintiff must allege that defendants copied the work at 12 issue. Id. Once that is shown, plaintiff must then provide “unlawful appropriation.” Id. A 13 copyright does not protect ideas and concepts in the plaintiff’s work; instead, its protection 14 “extends only to the plaintiff’s ‘particular expression’ of” those ideas.” Id. (quoting Sid & Marty 15 Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1163 (9th Cir. 1977)). Thus, 16 “[t]o show unlawful appropriation, the plaintiff must prove that the defendant copied enough of 17 the protected expression in the work ‘to render the two works substantially similar.’” Id. (quoting 18 Rentmeester v. Nike, 883 F.3d 1111, 1117 (9th Cir. 2018). 19 Plaintiff alleges that he is the registered copyright owner of the Unbelievers novel and 20 screenplay, which have both been registered with the U.S. Copyright Office. ECF No. 72 ⁋ 85. 21 He also alleges that he is the sole copyright claimant of the “Unbelievers motion picture,” which 22 has been pre-registered with the U.S. Copyright Office. Id. ⁋ 86. Plaintiff further alleges that he 23 has not “licensed, sold, granted, traded, or transferred his various Unbelievers copyrights or 24 controlling rights to Defendants,” id., which include the “exclusive right to produce and prepare 25 derivatives of his copyrighted works and to exclusively display his copyrighted works publicly,” 26 id. See 17 U.S.C. § 106. Plaintiff has sufficiently alleged ownership in the film that was 27 allegedly infringed. 28 Plaintiff’s allegations, however, are insufficient to show that defendants Quall, Dardenne, 1 and Cardot copied plaintiff’s protected works. Plaintiff does allege that defendants, including 2 Quall, Dardenne, and Cardot, “knowing violated [plaintiff’s] rights and edited completed, shared 3 and displayed an awful edit of [unbelievers], with their ATTORNEYS knowledge.”3 Id. ⁋ 104. 4 He also vaguely alleges that “defendants” infringed copyrights to his novel, screenplay, and film 5 by editing and selling an ownership interest in the film. ECF No. 72 ⁋⁋ 93. These statements, 6 which amount to little more than an unsupported conclusion that all defendants infringed 7 plaintiff’s rights, are insufficient to put defendants Quall, Dardenne, and Cardot on notice of the 8 factual basis of plaintiff’s copyright claims against them. See Yoakam v. Warner Music Grp. 9 Corp., No. 2:21-cv-01165, 2021 WL 3774225, at *10 (C.D. Cal. July 12, 2021) (“Because ‘[e]ach 10 defendant is entitled to know what he or she did that is asserted to be wrongful . . . [a] complaint 11 based on a theory of collective responsibility must be dismissed.’”) (quoting Bank of America, 12 N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013); Karkanen v. California, No. 17-cv-06967, 13 2018 WL 3820916, at *7 (N.D. Cal. Aug. 10, 2018) (“Courts consistently conclude that a 14 complaint which ‘lump[s] together . . . multiple defendants in one broad allegation fails to satisfy 15 [the] notice requirement of Rule 8(a)(2).’”). 16 Critically, plaintiff provides no specific facts suggesting that defendants Quall, Dardenne, 17 and Cardot were involved in producing, editing, or attempting to distribute the film. Instead, the 18 complaint’s factual allegations pertaining to plaintiff’s copyright infringement claims focus 19 primarily on defendants Counts and Bennett’s actions. See id. ⁋ 88 (alleging that in late 2018, 20 Counts and Bennett publicly announced that they were editing and trying to sell the film); ⁋ 104 21 (alleging that in December 2018, Counts and Bennett posted on the Unbelievers Facebook Group 22 that film editing was near completion and that they anticipated being ready to discuss selling the 23 film to distributors in mid-January 2019). Accordingly, plaintiff has failed to state a copyright 24 infringement claim against defendants Quall, Dardenne, and Cardot. 25 ii. Contributory Infringement 26 Plaintiff’s allegations are also insufficient to support a contributory infringement claim 27 3 The second amended complaint collectively refers to defendants Quall, Dardenne, and 28 Cardot as “ATTORNEYS.” 1 against defendants Quall, Dardenne, and Cardot. 2 “[W]hile the Copyright Act does not expressly impose liability on anyone other than 3 direct copyright infringers, courts have long recognized that in certain circumstances, vicarious or 4 contributory liability will be imposed.” In re Napster, Inc. Copyright Litigation, 377 F. Supp. 2d 5 796, 801 (N.D. Cal. May 31, 2005) (citing Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 6 261 (9th Cir. 1996)). “Traditionally, one who, with knowledge of the infringing activity, induces, 7 causes or materially contributes to the infringing conduct of another, may be held liable as a 8 ‘contributory’ infringer.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019-22 (9th Cir. 9 2001). “To be liable for contributory copyright infringement, the defendant must have knowledge 10 or reason to have knowledge of direct infringement and must provide material assistance to the 11 infringer.” Id. To state a contributory infringement claim, a plaintiff must allege: “(1) direct 12 infringement by a third party; (2) actual or constructive knowledge by the defendant that third 13 parties were directly infringing; and (3) a material contribution by the defendant to the infringing 14 activities.” In re Napster, 377 F. Supp. 2d at 801 (citing A&M Records, Inc., 239 F.3d at 1013 15 n.2, 1019-22). 16 The second amended complaint includes allegations suggesting that defendants Quall, 17 Dardenne, and Cardot were aware that defendants Bennett and Counts were infringing plaintiff’s 18 copyrights. For example, plaintiff alleges that in Bennett and Counts’ Facebook post about being 19 ready to discuss finding a distributor for the purchase of the film, they stated, “We are thrilled to 20 be making this post with our attorneys [sic] permission and support!” ECF No. No. 72 ⁋ 104. 21 Even assuming plaintiff’s allegations are sufficient and that defendants Quall, Dardenne, and 22 Cardot had knowledge of Bennett and Counts’ direct infringement of plaintiff’s copyrights, 23 plaintiff’s allegations fall short of establishing the third element of his contributory infringement 24 claim. Specifically, plaintiff provides no factual allegations demonstrating how Quall, Dardenne, 25 and Cardot materially contributed to the infringement. Instead, plaintiff provides only his vague 26 and conclusory statements that all defendants contributed to the infringement of his copyrights. 27 See, e.g., ⁋ 105 (alleging that defendants “induced, caused and materially contributed to the 28 infringing acts of others by encouraging and inducing others to edit, produce, share, and distribute 1 unauthorized UNBELIEVERS content derived from Plaintiff’s registered copyrighted 2 Unbelievers works.”). 3 iii. Fraudulent Misrepresentation and Aiding and Abetting Fraud 4 Plaintiff’s third and four causes of action are styled as “Fraud and Intentional 5 Misrepresentation” and “Aiding and Abetting Fraud,” respectively.4 ECF No. 72 at 21-46. 6 To state a claim for fraud, a plaintiff must plead “(a) misrepresentation; (b) knowledge of 7 falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and 8 (e) resulting damage.” Small v. Fritz Cos., 30 Cal. 4th 167, 173 (2003); see also Cal. Civ. Code 9 §§ 1709-10. Federal Rule of Civil Procedure 9(b) requires fraud claims to be pled with 10 particularity. A plaintiff’s allegations must be “specific enough to give defendants notice of the 11 particular misconduct . . . so that they can defend against the charge and not just deny that they 12 have done anything wrong.” Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) 13 (internal quotation marks omitted) (quoting Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 14 1993)). The complaint must include “an account of the ‘time, place, and specific content of the 15 false representations as well as the identities of the parties to the misrepresentations.’” Depot, 16 Inc. v. Caring for Montanans, Inc., 915 F.3d 643, 668 (9th Cir. 2019) (quotation marks omitted) 17 (quoting Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007)). Lastly, a plaintiff must 18 explain what is false or misleading about the defendant’s statements and why those statements are 19 false. Cafasso, United States ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th 20 Cir. 2011). 21 Plaintiff’s complaint presents a laundry list of allegedly false statements by defendants. 22 With respect to defendants Quall, Dardenne, and Cardot, plaintiff alleges that they “intentionally 23 and maliciously communicated constant false and misleading statements against plaintiff through 24 group emails, public Facebook posts, and through the UNBELIEVERS FACEBOOK GROUP, in 25 their relentless and fraudulent effort to force plaintiff into giving up his legal rights to his FILM.” 26

27 4 Plaintiff’s “Fraud and Intentional Misrepresentation” claim is asserted against all defendants, while his aiding and abetting fraud claim is brought against defendants Quall, 28 Dardenne, and Cardot. 1 ECF No. 72 ⁋ 130. These defendants also allegedly filed a document in state court that falsely 2 represented that Counts was the sole owner of an LLC that was actually jointly managed by 3 plaintiff. Id. ⁋ 142. Plaintiff further claims that Quall, Dardenne, and Cardot falsely represented 4 that their clients, defendants Counts and Bennett, “would not violate Plaintiff’s rights to his” film. 5 Id. ⁋ 150. Lastly, he alleges that he justifiably relied on these misrepresentation—as well 6 numerous other false statements made by other defendants—which were made in an effort to 7 defraud plaintiff of his rights to his film. 8 Plaintiff’s complaint identified the statements that that were allegedly false or misleading. 9 Plaintiff, however, provides only his unsupported conclusion that defendants’ statements were 10 made with the intent to defraud and that he justifiably relied on these statements. Such 11 conclusory allegations do not satisfy Rule 9’s heightened pleading requirements. Accordingly, 12 plaintiff’s third and four causes of action are dismissed with leave to amend. 13 iv. Malicious Prosecution 14 Plaintiff also alleges a malicious prosecution claim against Quall, Dardenne, and Cardot 15 based on the lawsuit they filed in January 2017 on behalf of Counts and Bennett. ECF No. 72 at 16 12, 48-51. Cardot, Quall, and Dardenne argue that this claim should be dismissed as untimely. 17 ECF No. 83-1 at 22-23 18 Under California law, to allege malicious prosecution, a plaintiff must allege that a “prior 19 proceeding, commenced by or at the direction of the malicious prosecution defendant was, 20 (1) pursued to a legal termination favorable to the plaintiff; (2) brought without probable cause; 21 and (3) initiated with malice.” Villa v. Cole, 4 Cal. App. 4th 1327, 1335 (1992). “[A] resolution 22 of the underlying litigation that leaves some doubt as to the defendant’s innocence or liability is 23 not a favorable termination, and bars that party from bringing a malicious prosecution action 24 against the underlying plaintiff. Thus, a dismissal resulting from negotiation, settlement or 25 agreement is generally not deemed a favorable termination of the proceedings.” Id. Additionally, 26 in California, the statute of limitations for malicious prosecution claims is two years. See Cal. 27 Civ. Proc. Code § 335.1; see also Scannell v. Cnty. of Riverside, 152 Cal. App. 3d 596 (1984) 28 (holding that malicious prosecution is subject to § 335.1). “[A] party’s voluntary dismissal is 1 considered a favorable termination for the opposing party unless there is a reason for the 2 dismissal not having to do with the merits of the action.” Fabbrini v. City of Dunsmuir, 544 F. 3 Supp. 2d 1044, 1048 (E.D. Cal. 2008) (citing MacDonald v. Joslyn, 275 Cal. App. 2d 282, 289 4 (1969). 5 Relying on Vafi v. McCloskey, 193 Cal. App. 4th 874, 880 (2011), Cardot, Quall, and 6 Dardenne contend that malicious prosecution claims alleged against attorneys are subject to a 7 one-year statute of limitations. ECF No. 93-1 at 22. They note that plaintiff specifically alleges 8 that the state-court suit was voluntarily dismissed on June 10, 2019, see ECF No. 72 ⁋ 68, but 9 plaintiff did not initiate this action until December 2020. Accordingly, they argue that plaintiff’s 10 malicious prosecution claim is barred by the statute of limitations. ECF No. 83-1 at 22. 11 After Cardot, Quall, and Dardenne filed their motion to dismiss, the California Supreme 12 Court held, as a matter of first impression, that the one-year statute of limitations period in 13 California Code of Civil Procedure § 340.6 “does not apply to claims against attorneys brought 14 by parties who were never their clients or the intended beneficiaries of their clients.” Escamilla v. 15 Vannucci, 17 Cal. 5th 571, 575 (2025). Instead, for malicious prosecution claims brought by a 16 formerly adverse party, like the instant case, the general two-year limitation period for tort claims 17 applies. Id. at 590. Accordingly, defendants have failed to show that plaintiff’s malicious 18 prosecution claim is untimely. 19 Nevertheless, I find that plaintiff’s allegations fail to state a claim for malicious 20 prosecution, and therefore the claim should be dismissed under 28 U.S.C. § 1915(e)(2). 21 Plaintiff’s malicious prosecution claim is based largely on conclusory allegations. For example, 22 plaintiff alleges that “Defendants’ LAWSUIT was filed with absence of reasonable or probable 23 cause, because the facts and evidence in their possession or easily obtainable, did not support any 24 of the false claims in” the lawsuit. ECF 72 ⁋ 188. He further alleges that the suit “was filed with 25 malicious and . . . fraudulent intent . . . to give Defendants the opportunity to unlawful[ly] edit 26 [the Unbelievers film] and force Plaintiff into giving up all his rights to the” film. Id. He does 27 not, however, provide any details about the state court action or include factual allegations that 28 support his conclusion that defendants filed the suit with malice and without probable cause. The 1 absence of any context renders plaintiff’s malicious prosecution claim non-compliant with Rule 8, 2 which demands more than unadorned conclusions. Iqbal, 556 U.S. at 678 (“The pleading 3 standard Rule 8 announces does not require detailed factual allegations, but it demands more than 4 an unadorned, the-defendant-unlawfully-harmed-me accusation.”). 5 v. Abuse of Process 6 Plaintiff alleges an abuse-of-process claim against Cardot, Quall, and Dardenne based on 7 their actions in prosecuting the state-court lawsuit. ECF No. 72 at 51-55. Specifically, he alleges 8 that Cardot, Quall, and Dardenne made several false statements to the state court, including that 9 Counts was the sole manager of Unbelievers Movie, LLC, and that the lawsuit was not filed in an 10 effort to deprive plaintiff of his rights to the film. Id. 11 Cardot, Quall, and Dardenne argue that plaintiff’s abuse of process claim fails because it 12 is based on making statements during the course of ligation, which are protected by the litigation 13 privilege. ECF No. 83-1 at 23. 14 “The common law tort of abuse of process arises when one uses the court’s process for a 15 purpose other than that for which the process was designed.” Rusheen v. Cohen, 37 Cal. 4th 16 1048, 1057 (2006). “To succeed in an action for abuse of process, a litigant must establish that 17 the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a 18 willful act in the use of the process not proper in the regular conduct of the proceedings.” Id. 19 California’s litigation privilege “applies to any communication (1) made in judicial or quasi- 20 judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the 21 objects of the litigation; and (4) that have some connection or logical relation to the action.” Id. 22 “The principal purpose of [the privilege] is to afford litigants and witnesses the utmost freedom of 23 access to the courts without fear of being harassed subsequently by derivative tort actions.” 24 Silberg v. Anderson, 50 Cal. 3d 205, 213 (1990) (citation omitted). Generally, “the privilege 25 applies to applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by 26 litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and 27 (4) that have some connection or logical relation to the action.” Id.; see Rubin v. Green, 4 Cal. 28 4th 1187, 1193 (1993) (“For well over a century, communications with ‘some relation’ to judicial 1 proceedings have been absolutely immune from tort liability by the [litigation privilege].”). 2 Cardot, Quall, and Dardenne’s acts of filing and maintaining the state suit against plaintiff 3 are not sufficient to support an abuse-of-process claim. See Oren Royal Oaks Venture v. 4 Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal. 3d 1157, 1169 (1986) (“[W]hile a 5 defendant’s act of improperly instituting or maintaining an action may, in an appropriate case, 6 give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a 7 lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.”). 8 Moreover, Cardot, Quall, and Dardenne’s allegedly false statements, which were all made in 9 relation to a judicial proceeding, cannot form a basis of liability based on a theory of abuse of 10 process. See Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1242 (2007) 11 (observing that the litigation privilege has “been held to immunize defendants from tort liability 12 based on [a] theor[y] of abuse of process . . . .”). Accordingly, plaintiff’s abuse-of-process claim 13 against defendants Cardot, Quall, and Dardenne is dismissed with leave to amend. 14 vi. Intentional and Negligent Infliction of Emotional Distress 15 Cardot, Quall, and Dardenne argue that plaintiff’s intentional and negligent infliction of 16 emotional distress claims should be dismissed because both rely solely on vague and conclusory 17 allegations asserted generally against all defendants. ECF No. 83-1 at 24. 18 “A claim of negligent infliction of emotional distress is not an independent tort but the tort 19 of negligence to which the traditional elements of duty, breach of duty, causation, and damages 20 apply.” Wong v. Jing, 189 Cal. App. 4th 1354, 1378 (2010); see Huggins v. Longs Drug Stores 21 Cal., Inc., 6 Cal. 4th 124 (1993). Where the plaintiff does not allege personal, physical injury 22 accompanying the emotional distress, she must allege that the distress was “serious.” Wong, 189 23 Cal. App. 4th at 1378. Serious distress is mental distress that a reasonable, normally constituted 24 person would be unable to adequately cope with. Id. 25 “[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must 26 show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or 27 reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering 28 severe or extreme emotional distress; and (4) actual and proximate causation of the emotional 1 distress by the defendant’s outrageous conduct.” Voss v. Baker, No. 1:17-CV-00626-DAD-EPG- 2 PC, 2017 WL 6406044, at *6 (E.D. Cal. Dec. 15, 2017), report and recommendation adopted, 3 No. 1:17-CV-00626-DAD-EPG-PC, 2018 WL 489292 (E.D. Cal. Jan. 19, 2018) (quoting 4 Gabrielle A. v. Cnty. of Orange, 10 Cal. App. 5th 1268, at *14 (2017), as modified, (Apr. 18, 5 2017). It is not enough that a defendant act with an intent to inflict emotional distress or even that 6 he act in a way that would entitle plaintiff to damages. Id. “Liability has been found only where 7 the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all 8 possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized 9 community.” Id. (quoting Jackson v. Mayweather, 10 Cal. App. 5th 1240 (2017), as modified 10 (Apr. 19, 2017)). 11 In support of his intentional and negligent infliction of emotional distress claims, plaintiff 12 makes only conclusory allegations. For instance, he alleges that “Defendants presented their 13 horrendously false case to the UNBELIEVERS cast and crew and the public, for years making 14 horrific false claims and allegations against Plaintiff and subjecting Plaintiff and his 15 family to years of fear, terror, and incalculable loss . . . .” ECF No. 72 ⁋ 206. He further alleges 16 that “Defendants’ outrageous conduct resulted in severe emotional distress to Plaintiff, and 17 the devaluation of Plaintiff’s life.” As previously discussed, such general allegations fail to 18 comport with Rule 8’s pleading requirements. See Karkanen, 2018 WL 3820916, at *7 (“Courts 19 consistently conclude that a complaint which ‘lump[s] together . . . multiple defendants in one 20 broad allegation fails to satisfy [the] notice requirement of Rule 8(a)(2).’”). 21 vii. Declaratory and Injunctive relief 22 Plaintiff’s ninth and tenth causes of actions are styled as claims for declaratory and 23 injunctive relief, respectively. ECF No. 72 at 57-60. With respect to his claim for declaratory 24 relief, plaintiff alleges that there is a controversy over whether he or Counts is the owner of the 25 Unbelievers film. Id. ⁋⁋ 214-21. In his tenth cause of action, plaintiff asks that defendants be 26 enjoined “from sharing, displaying and distributing the FILM.” Id. ⁋ 235. 27 Declaratory and injunctive relief are types of remedies, not independent causes of actions. 28 See, e.g., Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 975 (N.D. Cal. 2010) 1 (“declaratory and injunctive relief are not causes of action; rather, they are remedies”); Sherman 2 v. Wells Fargo Bank, N.A., No. CIV S-11-0054-KJM-EFB, 2011 WL 1833090, at *2 (E.D. Cal. 3 May 12, 2011) (“The third and fourth claims are for injunctive and declaratory relief, which are 4 not causes of action but rather must be based on other, viable causes of action.”). Although these 5 forms of relief might be available to plaintiff should he succeed on his substantive claims, 6 declaratory and injunctive relief are not standalone causes of action. Accordingly, without 7 deciding whether such forms of relief will be available should plaintiff succeed on any of his 8 claims, I find that plaintiff cannot maintain standalone claims for declaratory and injunctive relief. 9 See Bailey Venture Partners XVI, LLC v. Myall, No. 22-cv-05874-SK, 2013 WL 1420429, at *2 10 (N.D. Cal. Jan. 17, 2023) (“[T]he Court concludes that declaratory relief is not a standalone cause 11 of action.”); Smith v. U.S. Bank Nat’l Ass’n, CV 12-2743-WF(VBKx); 2012 WL 12887913, *2 12 (C.D. Cal. 2012) (dismissing separate claim for injunctive relief because injunctive relief “is a 13 judicial remedy, not a cause of action”). 14 Accordingly, plaintiff’s ninth and tenth causes of action will also be dismissed with leave 15 to amend. 16 viii. Accounting 17 Plaintiff’s final claim seeks an accounting from all defendants. He alleges that defendant 18 Counts deposited money in Unbelievers Movie, LLC’s bank account that he received from 19 investors. ECF No. 72 ⁋ 239. He claims that, since defendants did not have an ownership interest 20 in the film, he is entitled to an accounting of Unbelievers Movie, LLC, Counts, and Bennett’s 21 “financial matters.” Id. ⁋⁋ 241-43. 22 Under California law, an accounting is generally an equitable remedy. Batt v. City & 23 County of San Francisco, 155 Cal. App. 4th 65, 82 (2007). An accounting may be sought to 24 compel a defendant to account to a plaintiff for money where (1) a fiduciary duty exists; or 25 (2) where no fiduciary duty exists, “the accounts are so complicated that an ordinary legal action 26 demanding a fixed sum is impracticable.” Civic W. Corp. v. Zila Indus., Inc., 66 Cal. App. 3d 1, 27 14 (1977) (“A suit for an accounting will not lie where it appears from the complaint that none is 28 necessary or that there is an adequate remedy at law.”) (quoting St. James Church v. Super. Ct., 1 135 Cal. App. 2d 352, 359 (1955)); see also 5 Witkin, Cal. Procedure, Pleading § 819, p. 236 (4th 2 || ed. 1997). 3 Although plaintiff brings this claim against all defendants, his allegations are limited to 4 | funds that Counts deposited in an account held by Unbelievers Movie, LLC. There are no 5 || allegations that could support an accounting of Cardot, Quall, and Dardenne’s financial records. 6 || This is also true of the non-moving defendants, with the exception of defendant Unbelievers 7 | Movie, LLC. Accordingly, this claim is subject to dismissal. 8 Accordingly, it is hereby ORDERED that: 9 1. Defendant Bennett’s motion for sanctions, ECF No. 78, is DENIED. 10 2. Defendants Cardot, Dardenne, and Quall’s motion to dismiss, ECF No. 83, is 11 | GRANTED. 12 3. All claims against defendants Cardot, Dardenne, and Quall are dismissed with leave to 13 | amend. 14 4. Defendants Cardot, Dardenne, and Quall’s motion to strike under California’s anti- 15 || SLAPP statute, ECF No. 87, is DENIED as moot. 16 5. Defendants Counts and Bennet’s motions to dismiss, ECF Nos. 95 & 96, are DENIED 17 || without prejudice. 18 6. Plaintiff is granted twenty-eight days from the date of this order to file a third amended 19 | complaint. Failure to do so will result in a recommendation that this action be dismissed. 20 IT IS SO ORDERED.

Dated: __ September 15, 2025 23 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE

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