                                                                              FILED
                            NOT FOR PUBLICATION                               APR 15 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GERALD MORAWSKI, an individual,                   No. 13-55227

              Plaintiff - Appellant,              D.C. No. 2:11-cv-10294-MMM-
                                                  JCG
  v.

LIGHTSTORM ENTERTAINMENT,                         MEMORANDUM*
INC., a California corporation; JAMES
CAMERON, an individual,

              Defendants - Appellees.


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

                      Argued and Submitted February 11, 2015
                               Pasadena, California

Before: SENTELLE,** CHRISTEN, and HURWITZ, Circuit Judges.

       Gerald Morawski appeals the district court’s grant of summary judgment on his

breach of express contract, breach of implied-in-fact contract, and fraud claims against


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable David Bryan Sentelle, Senior Circuit Judge for the U.S.
Court of Appeals for the District of Columbia Circuit, sitting by designation.
Lightstorm Entertainment, Inc. and James Cameron. We have jurisdiction under 28

U.S.C. § 1291, and affirm.

      1. “When interpreting state law, we are bound to follow the decisions of the

state’s highest court. When the state supreme court has not spoken on an issue, we

must determine what result the court would reach based on state appellate court

opinions, statutes and treatises.” Paulson v. City of San Diego, 294 F.3d 1124, 1128

(9th Cir. 2002) (en banc) (citation omitted) (quoting Hewitt v. Joyner, 940 F.2d 1561,

1565 (9th Cir. 1991)) (internal quotation marks omitted).

      2. We assume in the context of our review of the district court’s summary

judgment that evidence of access and substantial similarity gave rise to an inference

that Cameron used Morawski’s original ideas in the film Avatar. See Benay v. Warner

Bros. Entm’t, Inc., 607 F.3d 620, 630–31 (9th Cir. 2010). But Cameron presented

detailed and copious evidence of independent creation. Under California law, if a

defendant presents “clear” and “positive” evidence of independent creation, any

inference of use of another’s work arising from access and substantial similarity is

dispelled, and a plaintiff may no longer solely rely on that inference to establish

improper use. Spinner v. Am. Broad. Cos., Inc., 155 Cal. Rptr. 3d 32, 42 (Ct. App.

2013); see also Kightlinger v. White, No. B210802, 2009 WL 4022193, at *9–10 (Cal.

Ct. App. Nov. 23, 2009) (unpublished); Hollywood Screentest of Am., Inc. v. NBC


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Universal, Inc., 60 Cal. Rptr. 3d 279, 291–92 (Ct. App. 2007). Because Morawski

relies entirely on the inference here, his contract claim fails.

      3. “[I]t is well settled that an action based on an implied-in-fact or quasi-

contract cannot lie where there exists between the parties a valid express contract

covering the same subject matter.” Lance Camper Mfg. Corp. v. Republic Indem. Co.,

44 Cal. App. 4th 194, 203 (1996). Morawski’s implied-in-fact contract claim fails

because neither party disputes the existence of a valid express contract.

      4. Morawski’s fraud claim fails because of the absence of affirmative evidence

of an intent to defraud at the time of contract formation. See Tenzer v. Superscope,

Inc., 702 P.2d 212, 219 (Cal. 1985).

      AFFIRMED.




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                                                                            FILED
Morawski v. Lightstorm Entertainment, Inc., No. 13-55227                     APR 15 2015

                                                                         MOLLY C. DWYER, CLERK
CHRISTEN, Circuit Judge, dissenting:                                       U.S. COURT OF APPEALS



      I respectfully dissent from the portion of the court’s disposition affirming

the district court’s summary judgment ruling on the issue of independent creation.

Under California law, an inference of use may be rebutted by “evidence of

independent creation that is ‘clear, positive, uncontradicted and of such a nature

that it cannot rationally be disbelieved.’” Spinner v. Am. Broad. Cos., 155 Cal.

Rptr. 3d 32, 42 (Ct. App. 2013). In my view, contested issues of fact precluded

resolution of independent creation in this case, at least at the summary judgment

stage. I would reverse this portion of the district court’s order and remand for

further proceedings.




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