Filed 8/8/13
                        CERTIFIED FOR PARTIAL PUBLICATION*



               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               THIRD APPELLATE DISTRICT

                                            (Sacramento)

                                                ----



CIVIC PARTNERS STOCKTON, LLC,                                       C067304

                 Plaintiff and Appellant,                  (Super. Ct. No. 03AS00193)

        v.

CYRUS YOUSSEFI et al.,

                 Defendants and Respondents.




        APPEAL from a judgment of the Superior Court of Sacramento County, Kevin R.
        Culhane, Judge. Reversed with directions.

        The Law Offices of Malcolm A. Misuraca and Malcolm A. Misuraca for Plaintiff
        and Appellant.

        Wulfsberg Reese Colvig & Firstman Professional Corporation, Charles W. Reese
        and Michael J. Higgins; Law Offices of Patrick R. Sabelhaus, Patrick R. Sabelhaus
        and Joel A. Rice for Defendants and Respondents.




* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of I, II, IV, and V of the Discussion.

                                                 1
       After first contracting with plaintiff Civic Partners Stockton, LLC for the
renovation of a historic hotel in downtown Stockton, the Redevelopment Agency for the
City of Stockton (the Agency) entered into a new redevelopment agreement with
defendant Hotel Stockton Investors (HSI) for the same property. Plaintiff brought this
action against the Agency, the City of Stockton (City), and HSI for breach of contract and
related claims. Also named as defendants were Cyrus Youssefi (Youssefi) and his
company, CFY Development (CFY), the general partner of HSI. (Hereafter, Youssefi,
CFY and HSI shall be referred to collectively as the Youssefi defendants.)
       The City and the Agency demurred, and the trial court overruled the demurrers.
However, this court granted the City and the Agency‟s petition for writ of mandate and
directed the trial court to sustain the demurrers on the basis of plaintiff‟s failure to
comply with the Government Claims Act (Gov. Code, § 900 et seq.). Our decision was
later affirmed by the California Supreme Court. (City of Stockton v. Superior Court
(2007) 42 Cal.4th 730 (City of Stockton).)
       The present matter involves plaintiff‟s claims against the Youssefi defendants. The
trial court granted the Youssefi defendants‟ motions for judgment on the pleadings on
plaintiff‟s first cause of action for conversion of architectural plans, concluding such
claim is preempted by federal copyright law. The court also granted summary
adjudication on all remaining claims and entered judgment of dismissal. Plaintiff
appeals, contending the trial court erred as to each claim and further erred in refusing to
grant plaintiff leave to amend.
       We conclude the trial court erred in granting judgment on the pleadings on the first
cause of action and therefore reverse the judgment of dismissal. The first cause of action
is not one for copyright infringement but for conversion of a particular object on which a
copyrightable work is imbedded. It is therefore not preempted by federal copyright law.
However, we reject plaintiff‟s remaining contentions on appeal and conclude the trial
court properly granted summary adjudication on all remaining claims.

                                               2
                                 FACTS AND PROCEEDINGS
       Because the trial court granted the Youssefi defendants‟ motion for judgment on
the pleadings on the first cause of action, we accept as true the allegations of the
complaint on that claim for purposes of this appeal. (American Airlines, Inc. v. County of
San Mateo (1996) 12 Cal.4th 1110, 1118.) On all other claims, the trial court granted
summary adjudication. We therefore review the evidence on those claims in the light
most favorable to plaintiff. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
For some of the facts not in dispute and a portion of the procedural background of this
matter, we refer to the prior decision of the California Supreme Court in this matter.
       On or about May 2, 2000, the Agency entered into an agreement with plaintiff (the
Civic Agreement) for renovation of the Hotel Stockton (Hotel), a historic building at 133
East Weber Avenue in Stockton, California, containing five stories, an underground
basement, and 178,000 square feet of space. Under the terms of the Civic Agreement, the
Agency agreed to sell the Hotel to plaintiff for $1, provided plaintiff fulfilled all of its
conditions and obligations under that agreement. Concurrently with the Civic
Agreement, the City entered into an agreement to lease 65,000 square feet of office space
in the Hotel.
       In late 2000 and early 2001, plaintiff entered into negotiations with Paramount
Financial Group, Inc. (Paramount) for a joint venture to develop business office space in
the Hotel. However, the parties never finalized those negotiations into an agreement.
Paramount nevertheless loaned plaintiff and two others $743,000 to fund early expenses
associated with the renovation work.
       The City later repudiated the lease for office space and demanded that plaintiff
find another use for the upper floors of the Hotel. (City of Stockton, supra, 42 Cal.4th at
p. 734.) The City proposed senior housing, which required redesign of the Hotel‟s
interior and a change in the financing arrangement to include federal and state tax credits.



                                               3
(Ibid.) By the end of 2001, plaintiff had completed new plans for the Hotel and other
work needed to apply for the tax credits, at a cost of several hundred thousand dollars.
(Ibid.)
          In January 2002, the City informed plaintiff it wanted the Youssefi defendants to
take over the upper floors in the Hotel, the senior housing, and the tax credit application.
(City of Stockton, supra, 42 Cal.4th at p. 735.) The Agency began negotiating with
plaintiff over how to protect plaintiff‟s interests upon such reassignment. (Ibid.) In
February 2002, the Agency entered into an agreement with plaintiff whereby plaintiff
would turn over to the Agency a reproducible copy of its plans for the Hotel renovation
project subject to the following understanding: “First, the plans are the property of
[plaintiff]. Second, the plans can only be used by the [Agency], City or others subject to
an agreement between the Agency and [plaintiff] regarding the future renovation of the
Hotel (including reimbursement of costs to date), as well as a cooperative agreement
between the Agency and [plaintiff] regarding other components of the Channel Head
project (including the cinema and B&M Building).”
          In March 2002, the Agency entered into a development agreement with HSI (the
HSI Agreement) for renovation of the Hotel. Under the HSI Agreement, development of
the property was to include 140 senior residence units. The HSI Agreement also
provided that, upon completion of all development work and fulfillment of all other
obligations under the agreement, the Hotel would be sold to HSI for $950,000.
          On July 9, 2002, the Agency and HSI amended the HSI Agreement to provide for
the creation of 156 affordable residential units rather than senior housing units. Also in
2002, Paramount entered into an agreement with HSI for development of the Hotel. The
Hotel was eventually renovated by HSI into a single-room occupancy apartment house.
          In January 2003, plaintiff filed suit against the City, the Agency and the Youssefi
defendants for declaratory relief to establish its rights in the Hotel plans and for damages
for breach of and interference with its contracts with the Agency and the City. The City

                                                4
and the Agency demurred and the trial court sustained the demurrer on the following
grounds: (1) plaintiff‟s rights in the Hotel plans are governed by federal copyright law
and within the exclusive jurisdiction of the federal courts, (2) the City was not a party to
the Civic Agreement, and (3) the agreement with the Agency cannot support a claim
because the statutory requirements for public contracting had not been met. (City of
Stockton, supra, 42 Cal.4th at p. 736.)
       Plaintiff thereafter amended the complaint and the City and the Agency again
demurred. The trial court sustained the demurrers on the breach of contract claims based
on uncertainty as to the form of the various contracts. On the declaratory relief claim, the
court sustained the demurrer without leave to amend based on federal copyright
preemption. (City of Stockton, supra, 42 Cal.4th at p. 736.)
       Plaintiff filed a second amended complaint that excluded the declaratory relief
claim. The City and the Agency again demurred, this time on the additional basis that
plaintiff failed to satisfy the requirements of the Government Claims Act. (City of
Stockton, supra, 42 Cal.4th at pp. 736-737.) The trial court overruled the demurrer,
concluding the contract claims were sufficiently certain and the Government Claims Act
does not apply to contract claims. (City of Stockton, at p. 737.) The City and the Agency
then filed a cross-complaint against plaintiff for breach of contract, misrepresentation and
failure of consideration. They also filed a petition for writ of mandate with this court,
seeking to overturn the order overruling their demurrers. (Ibid.)
       This court granted writ relief, concluding plaintiff‟s claims are subject to the
Government Claims Act, which plaintiff failed to satisfy. However, we further
concluded that, if the City and the Agency continue to pursue their cross-complaint,
plaintiff may file a cross-complaint of its own asserting defensive claims. (City of
Stockton, supra, 42 Cal.4th at p. 737.) The California Supreme Court granted plaintiff‟s
petition for writ of review and affirmed. (Id. at pp. 737, 748.) However, the high court



                                              5
modified our decision to include directions to the trial court to grant plaintiff leave to
amend and to omit directions to permit plaintiff to file a cross-complaint. (Id. at p. 748.)
       On March 17, 2008, plaintiff filed a third amended complaint containing eight
causes of action: (1) restitution for conversion of the Civic Agreement; (2) restitution for
conversion of the Hotel plans prepared at plaintiff‟s expense; (3) restitution for
conversion of a tax credit partnership between plaintiff and Paramount; (4) restitution for
the value of a related cinema lease; (5) inverse condemnation of the Civic Agreement; (6)
inverse condemnation of the cinema lease; (7) conversion of the B&M contract
mentioned in the February 2002 agreement between plaintiff and the Agency; and (8)
declaratory relief. The fourth through seventh causes of action were stated against the
City and the Agency alone.
       The Youssefi defendants demurred to the third amended complaint. The trial
court overruled the demurrers to the first through third causes of action but sustained the
demurrer to the eighth cause of action for declaratory relief without leave to amend.
Among other things, the court concluded the second cause of action for conversion of the
Hotel plans is not preempted by federal copyright law. The Youssefi defendants
thereafter filed an answer to the third amended complaint.
       On November 24, 2008, plaintiff filed a fourth amended complaint containing just
three causes of action: (1) restitution for conversion of the Hotel plans; (2) restitution for
conversion of the Paramount partnership; and (3) restitution for conversion of the Civic
Agreement.
       On April 15, 2009, the trial court sustained demurrers of the City and the Agency
to the fourth amended complaint and ordered dismissal of the action as to those
defendants.
       On October 25, 2010, the trial court granted the Youssefi defendants‟ motion for
judgment on the pleadings as to the first cause of action, concluding that claim is



                                              6
preempted by federal copyright law. The court also denied leave to amend, concluding
plaintiff failed to demonstrate it could allege facts sufficient to state a claim.
       On December 21, 2010, the trial court granted the Youssefi defendants‟ motion for
summary adjudication on the remaining claims. The court also denied plaintiff‟s request
for leave to amend. On the second cause of action for conversion of the alleged
partnership with Paramount, the court concluded plaintiff admitted no such partnership
ever came into existence. Hence, there could have been no conversion of that which did
not exist. On the third cause of action for conversion of the Civic Agreement, the court
concluded a contract cannot be the subject of a conversion claim. The court further
concluded there could be no conversion of the contract because the terms of the CFI
Agreement were significantly different from those of the Civic Agreement. Thus,
according to the court, “whatever contract rights [plaintiff] allegedly had, such rights
were not transferred to” the Youssefi defendants in their contract with the Agency.
       On January 25, 2011, the trial court entered judgment for the Youssefi defendants.
Plaintiff appeals.

                                         DISCUSSION
                                               I
                                     Operative Pleading
       In its appellate briefs, plaintiff repeatedly cites the third amended complaint as the
basis for various factual assertions. However, the orders granting judgment on the
pleadings and summary adjudication that are before us on this appeal were based on the
fourth amended complaint. It is this latter pleading on which plaintiff must rely.
       Plaintiff asserts the trial court‟s rulings on the fourth amended complaint
“departed substantially from the law of the case” established in a prior ruling by that
same court overruling demurrers to the third amended complaint. To the extent plaintiff
is thereby asserting the trial court was bound by its earlier ruling, thus bringing the third


                                               7
amended complaint into play in this appeal, plaintiff is wrong. “ „The doctrine of “law of
the case” deals with the effect of the first appellate decision on the subsequent retrial or
appeal: The decision of an appellate court, stating a rule of law necessary to the decision
of the case, conclusively establishes that rule and makes it determinative of the rights of
the same parties in any subsequent retrial or appeal in the same case.‟ [Citations.]”
(Provience v. Valley Clerks Trust Fund (1984) 163 Cal.App.3d 249, 256.) The doctrine
has no application to prior rulings of the same trial court. (Ibid.)
                                               II
                                     Evidentiary Matters
       An appellant‟s brief must contain a summary of the significant facts in the record.
(Cal. Rules of Court, rule 8.204(a)(2)(C).) In addition, any reference to a matter in the
record must be supported by a citation to the volume and page number in the record
where the matter appears. (Cal. Rules of Court, rule 8.204(a)(l)(C).)
       Plaintiff makes a number of factual assertions in its opening brief that fail to
satisfy this latter requirement. In other instances, plaintiff includes citations, but those
citations do not in fact establish the matter asserted. At still other places, plaintiff
includes a citation to a document in the record but includes no citation to where or how
that document was authenticated.
       As an example of the latter, plaintiff states: “[Plaintiff] did not know that
sometime in the four months between August 28 and the end of 2001, the [A]gency and
the Youssefi defendants had begun taking [plaintiff]‟s financial planning for the [H]otel.
They planned to „break up‟ [plaintiff]‟s contract in favor of Mr. Youssefi.” In support,
plaintiff cites a document entitled, “Plaintiff‟s List of Exhibits to its Opposition to Motion
for Summary Adjudication.” That document identifies exhibit No. 3 in the list as “Email
from Steven Pinkerton to Patrick Sabelhaus, 12/24/01.” The origin of that exhibit is
stated to be the “Youssefi Document Production; Cyrus Youssefi Deposition Ex. 2.”
Exhibit No. 3 attached to the list appears to be an email message from Pinkerton to the

                                               8
address prspat@mgci.com ,which on page two of the document is identified as the email
address of “Sabelhaus.” Along with that email message are what appear to be several
prior email messages between the same parties.
       Plaintiff provides no citation to anything in the record that would authenticate that
this document is what it appears to be. Plaintiff acknowledges the Youssefi defendants
objected to this evidence based on lack of authenticity and hearsay. Plaintiff asserts the
evidence is authenticated by virtue of the fact it came from the Youssefi defendants‟
document production and was exhibit No. 2 to Youssefi‟s deposition. However, as
support for that assertion, plaintiff cites nothing more than the list of exhibits document
mentioned above which, as indicated, identifies as the origin for the email the document
production and deposition. Plaintiff does not cite the discovery itself. Thus, plaintiff
cites no sworn statement authenticating the document.
       Plaintiff contends it was not required to provide any further authenticity for the
document than the fact it was produced by the Youssefi defendants in their discovery
responses. Plaintiff cites the California Law Revision Commission comment to Evidence
Code section 1400 for the proposition that “[a]uthentication may be supplied by
reference in the pleadings.” Evidence Code section 1400 states: “Authentication of a
writing means (a) the introduction of evidence sufficient to sustain a finding that it is the
writing that the proponent of the evidence claims it is or (b) the establishment of such
facts by any other means provided by law.” The Law Revision Commission comment
states: “Under Section 1400, as under existing law, a writing may be authenticated by the
presentation of evidence sufficient to sustain a finding of its authenticity. [Citation.]
Under Section 1400, as under existing law, the authenticity of a particular writing also
may be established by some means other than the introduction of evidence of
authenticity. Thus, the authenticity of a writing may be established by stipulation or by
the pleadings.”



                                              9
       The fact that plaintiff attached a copy of an email message to its list of exhibits
filed in opposition to summary judgment does not thereby provide authentication for that
email within the meaning of Evidence Code section 1400. Code of Civil Procedure
section 420 defines the “pleadings” as “the formal allegations by the parties of their
respective claims and defenses, for the judgment of the court.” In other words, pleadings
are the complaint, the answer and similar documents. The fact that a complaint may
allege the authenticity of a document and the answer may fail to deny it, thereby
authenticating the document for purposes of the litigation, does not mean that any
document filed with the court can have this effect.
       Plaintiff also cites Evidence Code section 1414, which reads: “A writing may be
authenticated by evidence that: . . . (a) The party against whom it is offered has at any
time admitted its authenticity; or . . . (b) The writing has been acted upon as authentic by
the party against whom it is offered.” Plaintiff cites this section for the proposition that
“[a] document is authenticated by evidence that the party against whom it is offered has
admitted its authenticity, as for example by producing it in discovery.” However,
whether production of a document in discovery would amount to an admission of its
authenticity necessarily depends on the nature of the discovery request. For example, in
the case of the purported email mentioned above, if a discovery request to the Youssefi
defendants had sought all communications generated by Steven Pinkerton, the fact the
document was produced by the Youssefi defendants would thereby establish its
authenticity as an email from Pinkerton, at least as against the Youssefi defendants.
       But in the present matter, plaintiff does not provide any citation to the discovery
request to which the document purportedly responded. Nor does plaintiff cite any
declaration or other evidence establishing that the document was produced by the
Youssefi defendants in response to the discovery request. All we have is plaintiff‟s
unsworn submission of an exhibits list asserting that to be the case.



                                              10
       Plaintiff cites Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519 (Ambriz), in which
the Court of Appeal held the trial court erroneously sustained objections to various pieces
of evidence submitted by the plaintiff in opposition to summary judgment. One such
document was a single page from the deposition of Detective Pitcher. The defendant
objected to the evidence on the grounds that the plaintiff failed to include a reporter‟s
certificate and the attorney for the plaintiff failed to submit a declaration of personal
knowledge, failed to lay a foundation, and failed to present any basis for contending the
excerpt was what it purported to be. (Id. at p. 1526.) The Court of Appeal rejected these
objections for a number of reasons: “First, the objections based on Ambriz‟s attorney‟s
failure to attest to personal knowledge of the deposition excerpt, lay a foundation, or
authenticate the excerpt are without merit. Respondents presented excerpts from the
same deposition in support of their motion for summary judgment. [Citation.]
Respondents admitted the authenticity of the transcript of Detective Pitcher‟s deposition
by seeking to use portions of that deposition in support of their motion for summary
judgment. Raising an objection as to lack of authentication of an excerpt from the same
deposition defendants themselves relied upon in their motion is disingenuous, unless
defendants can establish that the excerpt Ambriz offered was not part of the deposition
transcript. Respondents made no such allegation. Further, Ambriz‟s attorney attested,
under penalty of perjury, that the copies of the documents lodged constituted „true and
correct copies of what they purport to be.‟ This was sufficient to overcome respondents‟
generic objections to this evidence.” (Id. at p. 1527, fn. omitted.)
       Obviously, Ambriz has no application here. Plaintiff presents nothing to suggest
the Youssefi defendants used the purported email from Pinkerton themselves or
otherwise authenticated the document. Nor is there any attestation by plaintiff or its
attorney that the email is what it appears to be.
       For purposes of this appeal, we consider only those factual assertions of the parties
that are supported by proper citations to the record and for which the citation provided in

                                              11
fact supports the assertion. As for documentary evidence, we consider only that which
has been properly authenticated.
                                              III
                                    Copyright Exclusivity
       The trial court granted judgment on the pleadings on the first cause of action of the
fourth amended complaint. A motion for judgment on the pleadings is subject to the
same rules governing a general demurrer. (Ponderosa Homes, Inc. v. City of San Ramon
(1994) 23 Cal.App.4th 1761, 1767.) The court must accept as true the allegations of the
challenged pleading and all matters subject to judicial notice. (American Airlines, Inc. v.
County of San Mateo, supra, 12 Cal.4th at p. 1118.) Like a demurrer, the grounds for the
motion must appear on the face of the challenged pleading or from any matter of which
the court is required to take judicial notice. (Code Civ. Proc., § 438, subd. (d); Evans v.
California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548; Ponderosa Homes, supra,
23 Cal.App.4th at p. 1767.) On appeal, we review the judgment on the pleadings de
novo, applying the same test applied by the trial court. (Gerawan Farming, Inc. v. Lyons
(2000) 24 Cal.4th 468, 515-516; Rolfe v. California Transportation Comm. (2002) 104
Cal.App.4th 239, 242.)
       In the first cause of action, plaintiff waives its tort claim for conversion of the
architectural plans for the Hotel and seeks restitution for its investment in those plans and
any profits obtained by the Youssefi defendants from the Hotel renovation project.
“ „There are several potential bases for a cause of action seeking restitution. For
example, restitution may be awarded in lieu of breach of contract damages when the
parties had an express contract, but it was procured by fraud or is unenforceable or
ineffective for some reason. [Citations.] Alternatively, restitution may be awarded
where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or
similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to
seek restitution on a quasi-contract theory . . . . [Citations.] In such cases, where

                                              12
appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to
the parties‟ intent, in order to avoid unjust enrichment.‟ [Citation.]” (Durell v. Sharp
Healthcare (2010) 183 Cal.App.4th 1350, 1370.)
       The fourth amended complaint alleges that, in January 2002, plaintiff was in the
process of preparing an application for federal and state tax credits for elderly housing on
the upper floors of the Hotel. However, that same month, the Agency told plaintiff it
“wished to substitute Cyrus Youssefi and his company for [plaintiff] in the upper floors
of the [H]otel.” According to the complaint, the Agency informed plaintiff that it needed
the latter‟s consent for such substitution and that, in exchange, the Agency would pay
plaintiff for its investment in the Hotel.
       The complaint further alleges that, on February 19, 2002, the Agency asked
plaintiff for its Hotel architectural plans “which the [A]gency wished to give Mr.
Youssefi for his use in his [H]otel tax credit application.” According to the complaint,
“[plaintiff] transferred the plans in trust to the [A]gency on that day, pending the
[A]gency‟s formal agreement to restore [plaintiff‟s] investment.” The Agency signed an
agreement providing that the plans are the property of plaintiff and can be used by the
Agency, the City or others subject to an agreement with plaintiff that included
reimbursement of costs incurred by plaintiff to date.
       According to the complaint, the Agency thereafter transferred plaintiff‟s Hotel
renovation contract “to Mr. Youssefi and his company.” In addition, “[t]he [A]gency
gave [plaintiff‟s] plans to Youssefi without [plaintiff‟s] consent in violation of the”
February agreement described above. Youssefi‟s architects then used the plans to
prepare Youssefi‟s application for tax credits. Plaintiff alleges that Youssefi and his
attorney, Patrick Sabelhaus, knew that when Youssefi “used [plaintiff‟s] plans to make
Youssefi‟s tax credit application on March 25, 2002 that the [A]gency had not honored
the commitments the [A]gency, Youssefi, and Sabelhaus had made . . . .”



                                             13
       The trial court granted the Youssefi defendants‟ motion for judgment on the
pleadings on the first cause of action, concluding the court had no subject matter
jurisdiction over such claim because it is based on federal copyright law. According to
the court: “[T]he Fourth Amended Complaint alleges that the Agency made a deal with
[plaintiff] to obtain a copy of [plaintiff‟s] architectural plans; that the Agency then
provided a copy of the plans to the Youseffi [sic] defendants; and that the Youseffi [sic]
defendants used the copy of [plaintiff‟s] architectural drawings to prepare part of a tax
credit application. The allegations are therefore for wrongful use of the plans, through
copying, display and/or use of the plans to prepare the tax credit application. . . . Such
allegations clearly assert legal and equitable rights that are equivalent to the exclusive
rights within the general scope of copyright . . . .”
       On plaintiff‟s argument that it is not alleging the copying of copyrighted material
but the conversion of a given representation of that material, the court explained:
“[P]laintiff sought to avoid the foregoing conclusion [of copyright preemption] by
asserting that in 17 U.S.C. [section] 202, a distinction is drawn between ownership of the
copyright and ownership of any material object in which the copyrightable work is
imbedded. Using the example of a coffee cup with a hotel chain‟s logo embedded
thereon, plaintiff contended that an action for conversion of the cup would not be
preempted by federal copyright law simply because the item converted (the cup)
contained a copyrighted logo on its face.
       “The argument proves too much[.] In this case plaintiff does not assert conversion
of the paper on which the copyrightable work is printed[.] To the contrary, plaintiff‟s
complaint specifically alleges that [plaintiff] caused the preparation of the hotel plans[;]
that [plaintiff] transferred the plans to the Agency „in trust;‟ that the tax credit application
required an accurate set of plans; and that the Youseffi [sic] defendants used [plaintiff‟s]
architectural drawings to prepare part of the tax credit application[.] As noted above, the
alleged wrong was therefore accomplished through the wrongful copying, display and/or

                                              14
use of the plans as such to prepare the tax credit application. [Citation.] To construe
such a claim as outside the reach of federal preemption would defeat the intent of
Congress to create a uniform national copyright law protecting reproduction,
performance, distribution, and display of copyrightable works. [Citation.]”
       Plaintiff contends the trial court erred in concluding the first cause of action is
preempted by federal copyright law. Federal preemption has been recognized in three
general areas: (1) where the federal law expressly so states, (2) where the federal law is
so comprehensive that it leaves “ „ “no room” for supplementary state regulation,‟ or (3)
where the federal and state laws „actually conflict[]‟ [Citation.]” (Tidewater Marine
Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 567.) As to the latter, an actual
conflict arises “when „compliance with both federal and state regulations is a physical
impossibility,‟ [citation] or when state law „stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress . . . .‟ ” (Fidelity Federal
S. & L. Assn. v. de la Cuesta (1982) 458 U.S. 141, 153 [73 L.Ed.2d 664, 675].)
       “[17 United States Code] [s]ection 301(a) of the [1976 Copyright Act (the Act)]
expressly preempts state laws that protect „legal or equitable rights that are equivalent to
any of the exclusive rights within the general scope of copyright as specified by [section
106].‟ [Citation.] Section 301(b) represents the obverse of subsection (a), allowing states
to regulate „activities violating legal or equitable rights that are not equivalent to any of
the exclusive rights within the general scope of copyright as specified by [section 106].‟
[Citation.] The Act does not preempt all state common law affecting copyright material,
but only state common law meeting two conditions. [Citation.] „Thus, for preemption to
occur under the Act, two conditions must be met: first, the subject of the claim must be a
work fixed in a tangible medium of expression and come within the subject matter or
scope of copyright protection . . ., and second, the right asserted under state law must be
equivalent to the exclusive rights contained in section 106.‟ [Citations.]” (Kabehie v.
Zoland (2002) 102 Cal.App.4th 513, 520, fn. omitted.)

                                              15
       In the present matter, it is undisputed the first condition is met. The architectural
plans are a work fixed in a tangible medium that falls within the scope of copyright
protection. The issue here is whether the right asserted in the first cause of action is
equivalent to the exclusive rights contained in federal copyright law.
       Plaintiff contends that, because it is not the holder of the copyright for the
architectural plans, its claim stemming from use of those plans by the Youssefi
defendants cannot be subject to copyright preemption. According to plaintiff, only the
copyright holder, i.e., the architect, can sue for copyright infringement. As in the court
below, plaintiff relies on 17 United States Code section 202, which reads: “Ownership of
a copyright, or of any of the exclusive rights under a copyright, is distinct from
ownership of any material object in which the work is embodied. Transfer of ownership
of any material object, including the copy or phonorecord in which the work is first fixed,
does not of itself convey any rights in the copyrighted work embodied in the object; nor,
in the absence of an agreement, does transfer of ownership of a copyright or of any
exclusive rights under a copyright convey property rights in any material object.”
       Plaintiff argues the court below mistook its claim as one based on taking of the
paper on which the architectural plans were drawn. However, plaintiff argues, it “did not
pay several hundred thousand dollars for paper; it paid for plans.” Nevertheless, in
purchasing the plans, plaintiff did not purchase the copyright. That remained with the
architect. Thus, plaintiff argues, its claim is not one for copyright infringement.
       The Youssefi defendants counter that, however characterized by plaintiff, the gist
of the claim is that the Youssefi defendants improperly reproduced and distributed the
architectural plans as part of their credit application, and such claim falls within the
exclusive ambit of federal copyright law. As for plaintiff‟s claim that its action cannot be
for copyright violation because plaintiff is not the copyright holder, the Youssefi
defendants assert that “courts regularly apply [c]opyright pre-emption against plaintiffs
who do not own the copyright of the work in dispute.” (See Fleet v. CBS, Inc. (1996) 50

                                              16
Cal.App.4th 1911, 1913, 1916; Laws v. Sony Music Entertainment, Inc. (9th Cir. 2006)
448 F.3d 1134, 1135-1136, 1142-1143.) The Youssefi defendants argue copyright law
does not preempt certain individuals, i.e., copyright holders, but certain causes of action,
i.e., those based on rights encompassed by the copyright act.
       Plaintiff disagrees that federal copyright law preempts claims asserted by anyone
other than the copyright holder. It cites Silvers v. Sony Pictures Entertainment, Inc. (9th
Cir. 2005) 402 F.3d 881, at page 884, which includes the following quote from a treatise
on commercial litigation in federal court: “ „If a claimant is not a proper owner of
copyright rights, then it cannot invoke copyright protection stemming from the exclusive
rights belonging to the owner, including infringement of the copyright.‟ ” (Accord Smith
v. Jackson (9th Cir. 1996) 84 F.3d 1213, 1218 [“To establish a successful copyright
infringement claim, a plaintiff must show that (1) she owns the copyright, and (2)
defendant copied protected elements of the copyrighted work”].)
       The fact that one may not successfully sue for copyright infringement because he
or she is not the copyright holder does not mean he or she is not preempted from
attempting to sue on a claim that amounts to copyright infringement. As argued by the
Youssefi defendants, it is the nature of the action not the identity of the plaintiff that
controls. If one sues another for making unauthorized copies of a protected work, and the
alleged basis for precluding such copying is that the work is protected by copyright, then
that action is subject to copyright preemption. The federal court has exclusive
jurisdiction to decide who is entitled to enforce the copyright.
       Nevertheless, we agree with plaintiff its claim in the first cause of action does not
fall within the exclusive ambit of federal copyright law. The trial court suggested
plaintiff‟s claim is not one for conversion of the paper on which a copyrightable work is
printed. That is true. However, the court went on to conclude the claim must therefore
be for infringement of the copyrightable work. However, there is a third option. Using
the coffee cup analogy, an action can be for conversion of a plain cup, for conversion of a

                                              17
cup with a protected hotel logo on it, or for infringement of the copyright for the hotel
logo. The fact that one may not be suing for conversion of a plain cup does not thereby
mean the suit is for infringement of the copyright for the logo thereon. It may instead be
for conversion of a cup whose value is enhanced by the presence of the logo.
       In the present matter, plaintiff is not suing the Youssefi defendants for conversion
of a plain piece of paper. Nor is plaintiff suing them for having copied or used the
architectural plans in violation of the architect‟s copyright. Rather, plaintiff is suing for
conversion of a particular object on which the copyrighted work is embodied. As alleged
in the fourth amended complaint, plaintiff obtained a copy of the architectural plans from
the architect, the copyright owner, for use in plaintiff‟s credit application. That copy was
then given to the Agency who in turn gave it to the Youssefi defendants. The latter used
the copy of the architectural plans to prepare part of its own credit application for the
same building project. Thus, the copy of the plans was used as the architect intended, but
by a different party. This does not state a claim for copyright violation but for conversion
of a particular object containing a copyrightable work. (See 17 U.S.C. § 202.) We
therefore conclude the trial court erred in granting judgment on the pleadings on the first
cause of action of the fourth amended complaint on the basis of federal copyright
preemption.
                                              IV
                                   Evidentiary Objections
       Plaintiff contends the Youssefi defendants filed boilerplate objections to every
piece of evidence plaintiff presented in opposition to the summary adjudication motion.
Although not expressly identified, we assume plaintiff is referring to the written
objections filed by the City, the Agency and the Youssefi defendants on November 18,
2010, which challenged 78 pieces of documentary evidence submitted by plaintiff.
Plaintiff argues those objections were “unarticulated” except to mention “authentication,
hearsay, or another touchstone” and are the type condemned by the state high court in

                                              18
Reid v. Google, Inc. (2010) 50 Ca1.4th 512. After citing a few examples, plaintiff argues
the documents in question were sufficiently authenticated by having been produced by
one or more of the defendants in this matter.
       As discussed earlier, plaintiff has failed to present any citations to the record
where at least some of the documents in question were authenticated through discovery
or otherwise. Plaintiff‟s assertion to that effect in its list of exhibits in opposition to
summary judgment will not suffice.
       At any rate, plaintiff fails to explain the significance of its evidentiary argument in
the present litigation. For example, plaintiff does not cite to the trial court‟s ruling on the
objections. Although plaintiff asserts the court sustained the objections, the citation it
provides does not so indicate. We are therefore left to assume the court did so. But even
if the objections were sustained, plaintiff makes no attempt to suggest that, if the court
had instead overruled the objections, this would have changed the outcome of the motion
for summary adjudication. A determination in the trial court will not be set aside for the
improper exclusion of evidence unless such exclusion resulted in a miscarriage of justice.
(Evid. Code, § 354.) A miscarriage of justice occurs where a different result would have
been probable if the error had not occurred. (Pannu v. Land Rover North America, Inc.
(2011) 191 Cal.App.4th 1298, 1317.) Because plaintiff makes no attempt to suggest that
is the case here, we need not consider his evidentiary argument.
                                               V
                                        Leave to Amend
       In the fourth and final section of its opening brief on appeal, plaintiff asserts the
trial court erred in denying plaintiff leave to amend.
       At oral argument on November 23, 2010, on the Youssefi defendants‟ motion for
summary adjudication, plaintiff sought leave to amend the complaint to allege
interference with both its contract with the Agency and its contract with Paramount.
Plaintiff also explained to the court that it intended to submit a verified complaint with

                                               19
various critical documents attached in order to provide authentication for them. Plaintiff
acknowledged trial of the case was set for the following month but offered to stipulate to
continue the trial date or expedite filing of the amended complaint. The court took the
matter under submission. That same day, plaintiff filed a written motion to amend.
       On December 21, 2010, the trial court issued its order on the Youssefi defendants‟
motion for summary adjudication. Among other things, the court denied the motion to
amend, explaining: “Defendants are correct in observing that this matter is on the Fourth
Amended Complaint, having been filed over 7 years ago, and that the motion now comes
only weeks in advance of trial. Moreover, Plaintiff does not provide specific facts to
support a new and/or different claim, or how such a claim, even if otherwise appropriate,
could overcome the bar of the period of limitations.”
       Notwithstanding the foregoing, on December 23, 2010, plaintiff filed a further
motion to amend the complaint. Attached to the motion was a proposed fifth amended
complaint. The first cause of action of this fifth amended complaint seeks declaratory
relief that plaintiff holds equitable title to the Hotel. The second cause of action alleges
intentional interference with the Civic Agreement. In the third and final cause of action,
plaintiff seeks an accounting. Attached to this proposed complaint are various key
documents purportedly claimed by the Youssefi defendants not to have been properly
authenticated.
       The trial court denied plaintiff‟s motion to file a fifth amended complaint. The
court concluded the Youssefi defendants would be prejudiced by the late amendment and,
in any event, the motion to amend did not comply with California Rules of Court,
rule 3.1324. That rule requires a motion to amend to include a statement of the
allegations in the previous pleading that are proposed to be deleted and a statement of the
allegations proposed to be added.
       Plaintiff recites the foregoing procedural posture of the case in its opening brief.
Plaintiff further argues: “California for more than a hundred years has followed the

                                             20
common law rule that equitable title passes to the buyer on the execution of a land sale
contract.” By implication, plaintiff asserts it obtained equitable title to the Hotel upon
execution of the Civic Agreement.
       Assuming plaintiff is correct on the law of equitable title, that is not the issue
before us. Even if plaintiff has a viable claim, the question here is whether the trial court
erred in denying leave to amend. On that issue, plaintiff provides no argument
whatsoever.
       An application to amend a pleading is addressed to the sound discretion of the trial
court, which discretion shall be upheld absent a manifest or gross abuse of discretion.
The burden is on the plaintiff to demonstrate such abuse. (Sullivan v. City of Sacramento
(1987) 190 Cal.App.3d 1070, 1081.) “ „ “When a request to amend has been denied, an
appellate court is confronted by two conflicting policies. On the one hand, the trial
court‟s discretion should not be disturbed unless it has been clearly abused; on the other,
there is a strong policy in favor of liberal allowance of amendments. This conflict „is
often resolved in favor of the privilege of amending, and reversals are common where the
appellant makes a reasonable showing of prejudice from the ruling.‟ ” [Citation.] If the
original pleading has not framed the issues in an articulate and precise manner, a plaintiff
should not be precluded from having a trial on the merits.‟ [Citation.] „[I]t is an abuse of
discretion to deny leave to amend where the opposing party was not misled or prejudiced
by the amendment.‟ ” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)
       In the present matter, plaintiff essentially sought to defeat the Youssefi
defendants‟ motion for summary adjudication by presenting new claims. One of the
claims asserted in the fourth amended complaint was for conversion of the Civic
Agreement. Plaintiff sought to recast that claim as one in which it retained rights in the
Civic Agreement and thereby has an equitable interest in the Hotel. In the alternative,
plaintiff sought to allege intentional interference with the Civic Agreement.



                                              21
       However, “ „[a] party cannot generally defeat a summary judgment by pointing to
a theory of liability or defense that has no basis in the pleadings.” (Dang v. Smith (2010)
190 Cal.App.4th 646, 664.) “If a party seeks to avoid summary judgment by going
outside the pleadings, it is incumbent upon him to move to amend in a timely fashion.”
(Ibid., italics omitted.) “ „[E]ven if a good amendment is proposed in proper form,
unwarranted delay in presenting it may--of itself--be a valid reason for denial.‟ ” (Record
v. Reason (1999) 73 Cal.App.4th 472, 486.)
       To the extent plaintiff has good claims for equitable ownership of the Hotel or
intentional interference with contract, it was well aware of the facts giving rise to such
claims long before attempting to assert them on the eve of having its case eliminated on
summary adjudication. Nevertheless, plaintiff did not raise the matter until oral argument
on the summary adjudication motion and did not present a proposed amendment until
after the court granted summary adjudication to the Youssefi defendants. In other words,
plaintiff waited until the court rejected its existing claims before trying to assert new
ones. Under these circumstances, we cannot say the trial court abused its discretion in
denying leave to amend.

                                        DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court with
directions to vacate its order granting and enter a new order denying the Youssefi
defendants‟ motion for judgment on the pleadings on the first cause of action of the
fourth amended complaint. Summary adjudication on the remaining claims of the fourth
amended complaint is affirmed. Defendants‟ request for judicial notice of Local Rule
6.02 of the Superior Court of Sacramento is denied as irrelevant to the issue that resolves




                                              22
the case on appeal. In light of the mixed result achieved in this matter, the parties shall
bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)



                                                         HULL                  , J.



I concur:



      DUARTE                , J.




                                             23
RAYE, J.
       I concur fully in the judgment and in the holding that plaintiff‟s claim in its first
cause of action was never intended to nor did it state a claim for copyright infringement.
I write separately only to note that the interest sought to be vindicated was not the
creative efforts of the architect, whose copyright would be unaffected by the litigation,
but plaintiff‟s ownership interest in the plans. Had the plans not been copyrighted,
plaintiff could still state a claim for conversion. The fact that they are does not transform
a prosaic state law conversion action into a federal case for copyright infringement.
Regrettably, plaintiff‟s effort to bring clarity to the issue by analogizing to copyrighted
images on a coffee cup may indeed have “prove[d] too much” as suggested by the trial
judge. Notwithstanding the imperfect analogy, the essence of plaintiff‟s cause of action
is clear and federal preemption has no application here.



                                                                RAYE                , P. J.




                                              1
