California Court of Appeals, Second District, Third Division
APPEAL from an order of the Superior Court of Los Angeles County No. BC456351, William F. Fahey, Judge.
Thomas W. Kielty for Plaintiff and Appellant.
Law Offices of Scott M. Richter and Scott M. Richter for Defendants and Respondents.
Plaintiff David Benitez appeals an order of dismissal of his second amended complaint (SAC) against defendants Ross Williams (Ross) and Devon Williams (Devon). The SAC set forth a copyright infringement cause of action and various state law claims. The superior court ordered plaintiff to “remove” the suit to federal court and, when plaintiff did not do so, dismissed the SAC.
The court’s order of dismissal was based on two erroneous assumptions. The first was that Benetiz could remove the case to federal court. Only a defendant, however, can file a notice of removal.
The superior court also assumed that plaintiff could not maintain concurrent state and federal actions arising out of the same facts and circumstances. Rather, the court concluded, plaintiff was required to litigate his entire lawsuit, including his state law claims, in federal court. This was error.
We conclude that the superior court’s dismissal of plaintiff’s copyright infringement cause of action was not a miscarriage of justice because the federal courts have exclusive jurisdiction over such claims. We further conclude, however, that the superior court’s dismissal of plaintiff’s state law causes of action was reversible error because the court had subject matter jurisdiction and the plaintiff had the right to pursue those claims in state court.
FACTUTAL AND PROCEDURAL BACKGROUND
Although the record is unclear, it is undisputed that the trial court adjudicated defendants’ demurrer to plaintiff’s first amended complaint (FAC). The parties agree that the court sustained the demurrer to some causes of action without leave to amend, sustained the demurrer to one cause of action with leave to amend, and overruled the demurrer to other causes of action. Defendants contend that the court’s order granted plaintiff leave to file the SAC on or before September 19, 2011. Plaintiff did not meet that alleged deadline.
On September 20, 2011, plaintiff filed a motion for leave to file the SAC. The gravamen of the SAC was that in the late 1990’s plaintiff, Devon and Phil Drazic formed a musical group known as “Osker, ” as well as a business partnership known as “The Osker Partnership, ” which received royalties from third parties. The SAC alleges that after Drazic departed from the partnership pursuant to a written agreement (Drazic agreement), plaintiff and Devon agreed to split partnership proceeds evenly. The SAC further alleges that Devon formed a conspiracy with Ross to wrongfully divert partnership proceeds to Devon. Ross is allegedly Devon’s father and an attorney who represented The Osker Partnership.
Based on these underlying allegations, the SAC set forth causes of action for (1) conspiracy to defraud by fraudulent concealment, (2) breach of fiduciary duty, (3) conversion, (4) breach of the implied partnership agreement, (5) breach of the Drazic agreement, and (6) copyright infringement. The SAC was apparently plaintiff’s first complaint to include a copyright infringement cause of action.
The trial court granted plaintiff’s motion for leave to file the SAC. The court, however, also ordered plaintiff to remove the case to federal court on the grounds that the federal court had “exclusive jurisdiction of all copyright actions, and the state courts may not preside over them, so the pending state court claims would go along with the copyright claim to the federal court.” At the hearing on the motion, plaintiff’s counsel asked whether only defendants could remove a case to federal court. The court replied, “I don’t think that’s necessarily the ...