                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 20 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KENNETH M. STERN,                                 No. 11-55436

              Plaintiff - Appellant,              D.C. No. 2:09-cv-01986-DMG-
                                                  PLA
  v.

ROBERT WEINSTEIN; SARA ANN                        MEMORANDUM *
WEINSTEIN,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                        Argued and Submitted March 7, 2013
                               Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and WOLF, Senior District
Judge.**

       Kenneth Stern appeals the district court’s (1) grant in part of defendants

Robert Weinstein and Sara Weinstein’s Rule 12(b)(6) motions to dismiss;


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Mark L. Wolf, Senior District Judge for the U.S.
District Court for the District of Massachusetts, sitting by designation.
(2) denial of Stern’s motion to amend the complaint; (3) grant of summary

judgment to the defendants on the remaining copyright claims; (4) award of

attorneys’ fees under the Copyright Act; and (5) denial of Stern’s application to

recuse District Court Judge Gee. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.1

      1.     The district court did not err in granting defendants’ Rule 12(b)(6)

motions to dismiss with respect to Stern’s invasion of privacy claim under article I,

section 1 of the California Constitution. To be actionable under the California

Constitution, “invasions of privacy must be sufficiently serious in their nature,

scope, and actual or potential impact to constitute an egregious breach of the social

norms underlying the privacy right.” Hill v. Nat’l Collegiate Athletic Ass’n, 865

P.2d 633, 655 (Cal. 1994). There is no factual or legal support for Stern’s

contention that the disclosure of his listserv post rises to this high standard.

      2.     The district court also properly granted defendants’ motions to

dismiss with respect to Stern’s claims under the Computer Fraud and Abuse Act

(CFAA), the Stored Communications Act (SCA), and California Penal Code

§ 502(c)(3). Because Stern alleged that Robert Weinstein had permission to access



      1
        Stern’s motions to certify a question to the California Supreme Court and to
strike Robert Weinstein’s excerpts of record are denied.

                                            2
the listserv, Robert Weinstein did not access a computer “without authorization” or

“exceed[] authorized access” in violation of 18 U.S.C. § 1030(a) (CFAA), nor did

he “access[] without authorization” or “exceed[] an authorization to access” a

computer in violation of 18 U.S.C. § 2701(a) (SCA). This is true even if Robert

Weinstein violated restrictions on the use of the information he accessed by

forwarding the post to Sara Weinstein. See United States v. Nosal, 676 F.3d 854,

863-64 (9th Cir. 2012) (en banc); LVRC Holdings LLC v. Brekka, 581 F.3d 1127,

1135 (9th Cir. 2009). Stern does not contend that California Penal Code

§ 502(c)(3), which prohibits “[k]nowingly and without permission us[ing] or

caus[ing] to be used computer services,” should be construed any differently than

the CFAA and the SCA.

      Because Robert Weinstein did not commit an underlying violation, Sara

Weinstein cannot be liable under any theory of derivative liability. With respect to

direct liability, Stern’s unadorned allegations that Sara Weinstein gained, was

given, was permitted, or was provided with unauthorized access to the listserv

server “amount to nothing more than a ‘formulaic recitation of the elements,’” of

the causes of action at issue here. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). They are thus

insufficient to survive a motion to dismiss. Id.


                                          3
      3.     The district court did not abuse its discretion in denying Stern’s

motion to further amend his complaint to add claims for theft, receiving stolen

property, and violations of California Business and Professions Code § 17200.

Stern had twice previously amended the complaint, his requests to amend were

procedurally improper, and his proposed amendments would have been futile. See

Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).

      4.     The district court did not err in granting summary judgment on Stern’s

copyright claims. Stern’s post is not copyrightable because it lacks the “modicum

of creativity” necessary to satisfy the originality requirement of the Copyright Act.

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) (“[O]riginality

requires independent creation plus a modicum of creativity.”); see also 17 U.S.C.

§ 102(a) (“Copyright protection subsists . . . in original works of authorship . . .”).

Because we conclude that Stern’s post is not copyrightable, we do not reach the

district court’s alternative holding that the defendants’ use was fair.

      5.     The district court did not abuse its discretion in awarding attorneys’

fees under the Copyright Act. See 17 U.S.C. § 505. The defendants’ success was

total, Stern’s claims were not objectively reasonable, and an award of attorneys’

fees in this case would deter unjustified lawsuits without undermining the value of




                                            4
copyright protection. See Love v. Associated Newspapers, Ltd., 611 F.3d 601, 614-

15 (9th Cir. 2010).

      6.     Nor did the district court abuse its discretion in denying Stern’s

application to recuse Judge Gee. The conduct complained of did not stem from an

extrajudicial source and falls far short of “display[ing] such a deep-seated

favoritism or antagonism . . . as to make fair judgment impossible.” Liteky v.

United States, 510 U.S. 540, 555 (1994).

      7.     Stern contends on appeal that his complaint states a claim for breach

of confidentiality under California law. Because Stern did not adequately raise this

argument before the district court and the district court did not decide it, we decline

to resolve the question for the first time on appeal. See Cruz v. Int’l Collection

Corp., 673 F.3d 991, 998-99 (9th Cir. 2012).

      AFFIRMED.




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