tragically wrong and the case that had been litigated in good faith for nearly two years was ready for trial the consequence of that decision was to deprive my clients of their right to a jury trial and their due process rights are violated just one housekeeping matter i'm with the court's permission reserving three minutes of my time for  going the to put decisions that are before the court today are extraordinary and indeed unprecedented the july twenty three twenty fifteen dismissal order upon which the later attorneys fee decision relies through the rule book out along with the luminous binding precedent from this very court it occurred just six weeks before trial at the end of two years of litigation the propriety of which was already confirmed in a well reasoned twenty page decision by the original district judge the decision to dismiss relied upon cooked up evidence which was far outside the pleadings even though it was technically a motion to dismiss under twelve b six that evidence was never produced during discovery and it was contradicted directly by admissions of those parties and sworn testimony from the same parties because the court completely failed to observe the requirements of rule told b six twelve the and rule fifty six my clients are deprived of the right to a jury trial and basically to process rights were violated the twenty six violations are curd in three separate ways first of all it's very clear from the decision that the district court relied upon evidence outside the pleadings in order to conclude that the second amended counter claim failed to sta a claim for copyright infringement the pleading by itself makes no reference to any co ownership it doesn't have to which leads me to the second point which is a colon or ship is it really is required as an affirmative defense and it's not plated by any of the counter defendants in any of their answers so the only way the court gets to this is to look to matters outside the pleadings mainly has cooked up evidence that materialized in may have twenty fifteen months after discovery was cut off long after there was any opportunity for cross examination and based on that cooked up evidence the court decided to dismiss under rule twelve b six it certainly wasn't amenable to judicial notice so how else do you get there and those documents which didn't even exist until may of two thousand and fifteen certainly weren't attached to the counter claim so  all the rules in all the cases about what is permissible under twelve b six if the court is going to rely on evidence outside the pleadings it must give notice under rule twelve d that it is converting it to a summary judgment motion the court did not give that notice it failed that notice is required if the court is presented with evidence pleadings and does not excluded that's the language of twelve d as in turn exception for judicially noticeable documents yes but these weren't your honor with respect these clearly were not no we cite the cases about judicial notice these are not to dish really noticeable documents they were attached to a declaration that appeared for the first time in a motion for summary judgment months after discovery cut off there's no judicial here and they were just hashed to my client's counter claim so you have a failure to give a twelve the notice which was required because what the court did and then it doesn't comply with the requirement further in twelve d that the court then consider all relevant evidence well we asked for the opportunity to present contrary evidence and to have an evidentiary hearing so that we can cross examine this declarant about this new evidence and the court refused to give us that opportunity what happened in fact was that the court de facto gave the counter defendants leave to amend their answers to the to the counter claim even though they didn't ask to do it we asked for the right to amend our crops our counter claim the court refused that the court failed to give the twelve the notice it failed to comply with their court their requirements that it consider all relevant evidence and it deprives us of an opportunity to cross examine the declarant and the other parties long after discovery had had to ed concluded on a matter that never should have come up it's never been considered by the court in the first place if the police argue in one of their briefs it's the parties agree that what really happened here was the court dismissed for lack of subject matter jurisdiction under twelve b one in twelve inch three of first of all that isn't what the order says and second of all it can not have it could not have done it even if it wanted to even if you dismiss the copyright claim you still have a original federal jurisdiction over the federal trademark claims of federal lanham act claims and judge the judge lewis already written his opinion back into late tw doesn't state a claim for relief so i'm sending the rest of it back to the spirit court now when you look out what the reason that subject matter jurisdiction could not have been the basis for this is that when you have subject matter jurisdictions basis on the one hand and the substance of the claim completely intertwined you have to allow the trier of fact a trial to make the determination court's say fair for every one case which we cite in our reply brief pages eight and nine years three seventy three fed third ten thirty five page ten thirty nine it couldn't have done that but it didn't do it anyway it s didn't well then you get to the substantive arguments even if you get past all this stuff say this was really summary judgment motion will ignore the fact that it wasn't properly presented was there a basis for doing so no there wasn't and the first major mistake the court made was to look at the underlying decisions of the superior court in corrals for some other from which mr ownership of forty nine percent of the property that he stole now that is a perversion of justice to say that a thief has the ability to convey a clear title to something that he stole particularly to people who are very well aware of the fact of the theft or were already parties to the underlying litigation the basis for this is a complete mis construction of the two appellate decisions in corrals versus other and those decisions do not change one finding of the original superior court which found him guilty of fraud conversion breach if i do sciri duty and breach of contract in awarded over two million dollars in punitive damages as well as compensatory damages prejudgment this etc the only reason for the appeal was a selection of remedies issue and the fact that the that the superior court had granted a constructive trust in addition to compensatory damages a constructive trust is an equitable remedy for fraud which had been found and the only refinement to takes place in those two orders and i was there i was lee counsel on both appeals i know of what i speak the issue was whether there was a duplications in the compensatory damages on the one hand and the imposition of the constructive trust ok and by the time you get to the end of the second of those  fashioned decision ok just very finally so so the idea that mr souther as a shareholder owns forty nine percent of the assets of the corporation makes an abomination of california law the law of every state has any right into the property and and god knows those decisions don't give it to him because they say and affirm that he was a thief and he stole the stuff so you have a thief trying to convey it to his wife there are second generation fraudulent terms free to say oh now we have co owners of of intellectual property and guess what all during discovery all mr souther discovery in order to defeat our having a claim they concoct this evidence which is a complete one eighty from their entire position this case is just like the second circuit case of davis versus blige which we provided to the court in our supplemental letter you can't concoct evidence of co ownership after the fact to defeat a claim for copyright infringement and that's exactly what these people mr souther did was to can continue to perpetuate the theft which is an established fact from the decisions in corollas versus other and none of these people have rights to anything he never had it in the first place as a shareholder he didn't have it the court found that he stole it and now he's trying to convey it to other people to give them ownership rights as one final that ok that's easy but what's more remarkable is that there are a quota prevailing party even though it wasn't their motion this is the court's own motion but they still get awarded attorney's fees as a prevailing party what's interesting beyond that is that their motion for summary judgment was pending and the district court specifically refused to rule on it so we don't know how they were prevailing party even if there is somehow an affirmative here but if you reverse there is no longer prevailing my clients in this case to address the points that were raised you know or a larger point number one this is somehow cooked up evidence and the whole thing needs to be reversed because in a footnote in a portion of a footnote judge o ted owen in what can best be understood as a make weight argument said well the allegations in the sac second amended counter claim for now by the fact that i had in front of me a memorandum of transfer executed by mr souther granting a non exclusive license confirming the grant of a non exclusive license to his wife to her company to my client's mr thomas joel joel media corporation to utilize only his portion not one hundred percent only his portion forty nine percent of the intellectual property issue in this case  if judge otero was wrong in considering that and for all the reasons stated in our brief we don't think he was this was a case that was the luminously brief there were one hundred twenty one exhibits multiple declarations existing prior to our raising the jurisdiction failure to state a copyright claim in our reply brief on our summary judgment motion that after southers response to the order to show cause and the issue of the memorandum of transfer all of that is an irrelevance to the right result in this case because that particular piece of evidence if it allegations in their second to amend the counter claim that the website the intellectual property the copyrights were transferred by my client to a new website owned by mr southers wife by her company at mr southers express direction as the owner of get flipped incorporated in fact f disputing that in their reply brief in this case pages eleven and fourteen they reiterate the point that was made in oral argument when mr southers stole all the stuff he took all the stuff he personally had it in which he own forty nine percent in so doing he worked a corporate dissolution as the first appellate order said he can't steal one hundred percent when he owns forty nine percent so you only get you the state of corral us only get fifty one percent of these assets they said in the first the pallies order by the time the second appeal came around mr cameron who as you says was lead counsel in both appeals conceded at oral argument in front of the california dignity to this court the california court of appeal has rendered not once but twice a final on appeal judgment saying sure he stole it he took it we agree but forty nine percent of what he stole belongs to him and you the estate of corollas don't get any more than fifty one percent it's somewhat ironic that that issue was so obvious in front of the california court of appeal that the state conceded it but they now argue that it's a perversion of justice for the same result to be given respect and dignity in this court our position i think is no stretch of fact or law in this case you don't is unconstitutional i give them all the same advice when the i r s comes calling make sure you know how to do this it is constitutional because the supreme court said so thanks we have a final decision court of appeal decided  people's opinions as to that opinion frankly are relevant point number two no affirmative defense was ever raised by any party as to the six in our answer to the second and then the counter claim our answer was filed almost a year before the second appellate order came down making it crystal clear that there was no  i don't know how more clearly we could have played it particularly given the fact that at the time that answer was filed we had a case where the judgment of the superior court presumptively correct had in fact eroni asli awarded one hundred percent of the intellectual property assets to the estate a fact that they conceded was incorrect on the second appeal and oral argument next point that is raised is that well the court somehow allowed us to amend our answer to make that point not so the point was made we raised it we argued we did so successfully as  in that circumstance there simply cannot be a withdrawal or a backing down from the allegation that my client knew what was going on and took the  electoral property move the intellectual property of knowledge if the allegation is anything other than that the cause fails and its withdrawal is a strategic  to the concept that there was other original federal jurisdiction in this case absolutely wrong this is not in the original complaint filed in federal district court this was a complaint filed removed to the district court solely on that basis and because it's a removal case if copyright fails so fails the rest of federal jurisdiction judge lose order to show cause i reluctant accepted this case and as far as i know this was one of the cases of first impression regarding whether the district court had to take the counter claim alleging copyright and remove that and keep yours diction of it i believe it was one of the first and it's certainly one of the first cases where the district court having expressed grave concerns about manufactured federal jurisdiction and then later went on to determin going litigation in the state court now there is ongoing litigation on in fact we have a trial next month commencing in l a superior court on all remaining issues as we point out arena and under those circumstances or a reversal in this case would r settlement of we as to my clients your honor that is we have hopes but it's not been finalized yet a couple of other points no tender the balance of my time to my co defendants was mentioned the only relevance of that case which involved an exclusive license of one hundred percent ownership by somebody who might not have even been a co owner if the allegations of the complaint were given effect is the relevance to this case this case factually falls squarely within those within that footnote i'm not even sure why it was cited as to attorney's fees i'll be very brief we raise the issue and we raised it on behalf of a web developer who lives project projects and it took the case believing that there would be a fast exit due to very aggressive litigation by the other side which i think has been capably demonstrated today he's been forced to file numerous motions numerous briefs he's been full force to show up here in the court of appeal on again what i think is a case of if not first impressions certainly one of the first in the country where an improperly removed case based soley on copyright waste the federal courts time for two years and then has to get sent back i had is an issue of national importance we raised it we prevailed on it we're still arguing it here and we  the intellectual property right now as the court is most likely familiar copyright the ability to use a copyright or intellectual property occurs when that copyright is actually created the intellectual property was created by mr sutherland and by mr corellas who is no longer with us the intellectual property was then licensed to my client who is the wife former wife now there since  divorced because of this implied license new fly production now has the ownership right to use to explain that intellectual property and they have been doing so at this point  the issue of co ownership that was brought up by our opposing counsel what they would try to argue is that the california court was absolutely incorrect in awarding a fifty one forty nine percent ownership right of that intellectual property to mr solder and to the cross a state however that is exactly what the court did do and as my distinguished co counsel has already mentioned that is a court of co equal dignity to this court we don't believe it would be proper for that decision to be overturned after the award forty nine fifty one percent mr sonner then licensed the use of that intellectual property to my client to use and exploit in this  lenticular imaging it's a photo event business and that is where we are with the issue right now ownership the ownership it's very very clear now that any questions from the court appeal i am here to let you know that in my opinion the reason this case was moved to district court was simply a case of prevalence ness and fraud they had absolutely no intention of this case even going james cameron's the only reason he wanted to do this was to make it easy to push us in the bankruptcy and then pick through the assets so i don't think the federal district court is a dumping ground for copyright cases that could easily and he knows that they can be handled in superior court had they been handled in superior court i wouldn't be losing my house today i have a few more a good chance of keeping the business going i bet it will be healthy so that's my that in conclusion i just want to let you that it's frustrating it has been going on for ten years and i think it's more a billable hours type of thing than really a copyright issue because they don't really care about the copyrights thank you you thank  of the corporation was fifty one percent of the estate forty nine percent in this year souther where this argument is that he's shareholder automatically owns the underlying assets of the corporation if it's completely contrary to other than mr souther who was involved in those appeals mr walton wasn't counsel at that time i know what the issue was it was in the election of remedies issue constructive trust is a remedy in addition to monetary damages and the only thing they wanted to make clear was you can't if you're going to get the property back the a constructive trust you can't award compensatory damages for the value of that property you can award compensatory damages as it was twice affirmed by the court of appeal for loss of income and you can award pre judgment interest and you can ward punitive damages it is if you're getting the property back you can't also get damages for the value of their property right now because the estate was a fifty one percent shareholder it ended up that it could only get in a constructive trust remedy for fraud on fifty one percent of the assets  there is nothing in any of those decisions said mr southers entitled to anything it is affirmed that he was a thief he stole the stuff if that were not the case how did we get two million dollars in punitive damages which is  twice ok it's non logical it's contrary to california law a couple of other points very briefly argument completely ignores the language in rule twelve d which says that if the court is presented with an fails to exclude evidence outside the pleadings it must convert a twelve b six motion to a motion for summary judgment that's the first thing the twelve does which they admit it's in judge otero's footnote he admits he went outside the record he had to convert it to rule fifty six and that it says at that point the court must consider all relevant evidence and the court did not we asked for the opportunity to present rebuttal we were denied we asked for the opportunity for cross examination in the jury hearing we were denied and what they're relying on are these may twenty eighth two thousand and fifteen memoranda supposedly confirming oral licenses that were given three and a half years prior conveniently the day before the original superior court judgment came down isn't that a coincidence and there's been no mention of it before and they've consistently denied until the month before that they own the stuff they admitted in their opposition to the summary judgment motion mr souther testified that way mr this past relatives defied that if these licenses are valid then they've committed perjury it's that basic