Filed 7/28/21 Retro Video v. Direct Holdings Americas CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

RETRO VIDEO, INC.,

Plaintiff and Appellant,

v.

DIRECT HOLDINGS AMERICAS, 

INC., et al.,

Defendants and Respondents.

 B309882

 (Los Angeles County

 Super. Ct. No. 20STCV06971)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Rupert A. Byrdsong, Judge. Reversed and 

remanded with directions.

Law Offices of Neil J. Fraser, Neil J. Fraser and 

James C. Carr for Plaintiff and Appellant.

Dentons US, Jason R. Scheiderer, Samantha Fahr, and 

Katherine R. McMorrow for Defendants and Respondents.

____________________________
2

Retro Video, Inc. (Retro Video) is in the business of 

licensing the rights to show publicly vintage video and film clips

on behalf of the owners of the underlying footage from which the 

clips are derived. Retro Video alleges it licensed certain clips to 

respondent Direct Holdings Americas, Inc. (DHA) and Mosaic 

Media Investment Partners LLC (MMIP) for their inclusion in 

infomercials promoting Time Life (TL) Music compilations 

associated with particular genres or decades. According to Retro 

Video, its license agreements with DHA and MMIP allowed these 

clips to be used only in connection with specified music collections 

during the license terms, and the agreements did not permit 

DHA or MMIP to stream the clips on any media platform other 

than the TL Music website. Retro Video claims that DHA and 

MMIP—either directly or through their affiliates—violated these 

restrictions by streaming the clips on other media platforms, 

showing them to the public after the license terms had expired, 

and using them to promote music compilations that were not 

authorized by the licenses.

Retro Video filed suit against DHA, MMIP, several of their 

respective officers and directors, an entity that negotiated the 

licenses on behalf of DHA and MMIP, and the principals of that 

negotiating entity (collectively, respondents) for fraud and deceit, 

fraudulent concealment, civil conspiracy, breach of contract, 

breach of the implied covenant of good faith and fair dealing, 

intentional misrepresentation, negligent misrepresentation, 

unjust enrichment, constructive trust, and an accounting. The

trial court thereafter sustained respondents’ general demurrer to 

the complaint without leave to amend and dismissed the action 

with prejudice on the grounds the action is time-barred; Retro 

Video failed to plead sufficient facts to state causes of action for 
3

fraud and deceit, fraudulent concealment, civil conspiracy, 

intentional misrepresentation, negligent misrepresentation, 

unjust enrichment, constructive trust, and an accounting; 

Retro Video’s contract-based causes of action against all 

respondents other than DHA fail because the complaint did not 

plead Retro Video was in privity of contract with those 

respondents; and all causes of action are preempted by the 

federal Copyright Act. 

On appeal, we reject respondents’ argument that Retro 

Video failed to allege sufficient facts to state its fraud and deceit, 

fraudulent concealment, and intentional misrepresentation 

causes of action, along with their challenge to Retro Video’s other 

causes of action that are predicated on DHA’s and MMIP’s 

alleged misrepresentations—the causes of action for negligent 

misrepresentation, unjust enrichment, constructive trust, and an 

accounting. We also conclude that Retro Video’s breach of 

contract cause of action is preempted by federal copyright law 

because the clips come within the scope of copyright protection 

and that cause of action asserts a right equivalent to the 

exclusive rights protected by the copyright statutory scheme, and 

that Retro Video has failed to overcome the presumption of 

correctness accorded to the trial court’s conclusion that the 

breach of the implied covenant of good faith and fair dealing 

cause of action is preempted. We, however, reject respondents’ 

contention that Retro Video’s other claims are preempted.

Lastly, we conclude that because respondents’ statute of 

limitations defense targets only portions of Retro Video’s

remaining causes of action, sustaining a general demurrer on 

that defense was error.
4

We thus reverse the trial court’s order of dismissal, remand 

the matter to the trial court, and instruct it to vacate its order 

sustaining the demurrer without leave to amend and enter a new 

order: (a) sustaining the demurrer without leave to amend as to 

(i) the breach of contract cause of action, and (ii) the breach of the 

implied covenant of good faith and fair dealing cause of action; 

and (b) overruling the remainder of respondents’ general 

demurrer.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize only those facts pertinent to this appeal.

1. Retro Video’s complaint

On February 19, 2020, Retro Video, on behalf of itself and 

as the successor in interest of Research Video, Inc. (Research 

Video), filed a complaint against DHA, which is registered and 

authorized to do business in California as Direct Holdings 

Global LLC (DHG); MMIP; Universal Media, Inc. (UMI); 

Christopher Hearing (Hearing); Theodore A. MacKinney

(MacKinney); Kenneth Friedli (Friedli); Kelley Shine (Shine); 

Lisa Hollett (Hollett); Gary Newman (Newman); John Paige

(Paige); and Eric Kulberg (Kulberg). The complaint alleges the 

following causes of action: (1) fraud and deceit; (2) fraudulent 

concealment; (3) civil conspiracy; (4) breach of contract; (5) breach 

of the implied covenant of good faith and fair dealing; (6) 

intentional misrepresentation; (7) negligent misrepresentation; 

(8) unjust enrichment; (9) constructive trust; and (10) an 

accounting.1

1 The remainder of this section summarizes the pertinent 

allegations in the complaint. For the purposes of the appeal, we 
5

Retro Video “is engaged in the business of licensing video 

and film footage clips for fees for commercial use by others . . . . 

on behalf of the owners of the materials . . . .” Under Retro

Video’s contractual agreements with the footage’s owners, 

“[o]wnership of the original programming from which the footage 

clips derive remains with the owners; however, [Retro Video] has 

specific authorization from the owners of the materials to enforce 

the terms and conditions of any licensing agreement and/or seek 

damages for breach of any licensing agreement . . . .” Further, 

Retro Video’s contracts with the owners of the clips entitle Retro 

Video to “an equal percentage share of the revenue generated by 

Retro [Video] through [its] placement of clips with customers . . . 

through license agreements.” 

DHA acquired TL as a subsidiary in late 2003 or early 

2004, “and, effective August 24, 2006, the entity known as TL 

was merged into and became part of DHG and thereafter 

operated under the corporate aegis of . . . DHA.” MMIP acquired 

DHA in 2012. 

Retro Video and its predecessor in interest, Research Video, 

have licensed,2 and Retro Video continues to license, to DHA and 

MMIP “video and film footage clips for use in infomercial 

assume the truth of these allegations. (See Standard of Review, 

post.)

2 At an unspecified point in time during or after 2001, 

Retro Video purchased all of Research Video’s assets, including 

Research Video’s “right to enforce any and all legal claims 

Research [Video] may have against [respondents] herein arising 

as a result of [respondents’] business dealings with Research 

[Video] before, during and after said corporation’s acquisition 

by . . . Retro [Video].” 
6

advertising and promotion of [an] extensive library of music 

compilation compact discs, marketed to the general public under 

the brand name” TL Music.

3 The clips licensed “are video/film 

footage of various music performance excerpts which directly 

correspond to and showcase the artists and tracks on a multitude 

of compact disc collections compiled and sold to the public by way 

of direct response advertising . . . .” The TL Music infomercials 

“aired on television and streamed on internet sites and 

platforms . . . .” Retro Video “was and is paid a fixed sum per 

licensed clip [that is] set forth in each license agreement . . . .” 

Each license was negotiated in Los Angeles and expressly 

limited the use of the clips identified therein for a particular 

named project, “each of which is a [TL] exclusive compact disc 

music compilation comprising multiple discs entitled in such a 

manner as to identify music genre or decade, for example 

‘Country Music of Your Life’, ‘Heart of Classic Rock’, ‘Pop 

Memories of the ‘60s’ and ‘Romancing the ‘70s.’ ” (Italics 

omitted.) Each license contained “defined limitations on the 

media outlets and platforms upon which [respondents] are 

authorized to place the infomercials containing [Retro Video’s] 

licensed materials.” From December 13, 2011 onward, the 

parties to the licenses agreed that “internet streaming use of 

3 Respondents assert that “DHA entered into the contracts 

at issue” and “[n]one of the other [respondents] did.” The 

complaint, however, avers that Retro Video or its predecessor in 

interest, Research Video, issued the licenses at issue to DHA and 

MMIP. On demurrer, we must assume the truth of this 

allegation. (See Standard of Review, post.)
7

[Retro Video’s] clips would be restricted to ‘Internet Streaming on 

[the TL] Music website only.’ ”

4 (Italics omitted.)

“During some or all of the time period of the acts 

complained of herein,” Hearing was the chief executive officer 

and president of DHA and a director of that entity; Friedli was 

the secretary, the chief financial officer, and a director of DHA; 

MacKinney was the chief financial officer of MMIP, and the 

secretary, the chief financial officer, and a chief operations officer 

of DHA; Newman was the vice-president of DHA; Hollett was a

director of production for DHA and DHG; and Shine was a 

director of production for DHA. These six respondents were

“personally involved in authorizing . . . the licensing of clips for 

infomercials from [Retro Video.]” Respondents Hearing, Friedli, 

MacKinney, Newman, and Hollett “executed some of the licenses 

and license renewals in issue herein . . . .” 

UMI is owned and operated by Paige and Kulberg. Paige, 

Kulberg, and UMI “are the agents of . . . DHA and MMIP and

act[ ] on behalf of said entities in the acquisition of licenses for 

film and video clips from [Retro Video] for use in infomercials 

promoting TL music collections on various media outlets and 

platforms as is alleged” in the complaint. 

Hearing, Friedli, MacKinney, Newman, Hollett, Shine, 

Paige, and Kulberg “participated in the creation and pursuit of a 

strategy which knowingly and willfully used [Retro Video’s] clips 

4 Retro Video acknowledges in its complaint that several 

licenses it had issued after December 2011 “inadvertently . . . 

appeared to permit unlimited internet streaming.” Retro Video 

avers that this term was “not representative of” the media terms 

included in licenses Retro Video issued in or after 

December 2011. 
8

to advertise [TL] music CD collections when [respondents] knew, 

or reasonably should have known, use of the clips was 

unauthorized because the license agreements for the projects . . . 

were . . . expired, or the license agreements expressly forbad[e] 

the use of [Retro Video’s] clips on media streaming platforms 

other than the [TL] Music website, or were not under license at 

all, having been obtained . . . for use in other projects pursuant to 

licenses specific to said other projects.” “[T]he acquisition of TL 

Music by . . . MMIP, who also acquired . . . DHA at the same 

time, authorizing . . . DHA to continue to manage, control, 

oversee and do business under the TL Music Collection banner, 

as of July 2012 coincided with the beginning of a pattern of 

behavior by . . . MMIP, through DHA, in their business dealings 

with [Retro Video] which exhibits a conscious, willing and 

intentional conspiracy by the individual [respondents] herein, 

acting as agents for their respective corporate entities, MMIP,

DHA and UMI designed to defraud and damage [Retro Video] by 

the unauthorized use of [Retro Video’s] materials provided under 

license, which acts have continued up to and including the end of 

2019 and [are] continuing.” 

For instance, DHA and MMIP “placed infomercials on new 

and emerging media platforms such as Roku and U-Verse” 

without obtaining “a new or renewed license agreement with 

[Retro Video] before” doing so; DHA and MMIP began streaming 

the infomercials “on a continual basis on Roku in October 2013 

and on AT&T U-Verse in February 2014.5 Respondents also 

5 The complaint alleges that “Roku . . . uses an Over-TheTop electronic device to stream Video-On-Demand . . . media to 

end-users over the internet from a branded streaming video 

application,” and that “AT&T’s U-Verse subscription service . . . 
9

provided TL Music infomercials to their affiliates without 

informing them of the license expiration dates or limitations on 

use, which resulted in the unauthorized placement of the clips at 

issue on platforms such as YouTube after the relevant licenses 

had expired. Further, respondents made “repeated requests 

during years 2011 through 2019 . . . for an expansion of internet 

streaming usage rights, all of which were rejected by [Retro 

Video] on the terms offered . . . .” 

Respondents “knew their decision to use [Retro Video’s] 

licensed materials in such an unlawful and unauthorized manner 

would damage [Retro Video] by diminishing the value of the 

footage, which, in part, was established by its rarity.”

Respondents also knew that Retro Video “would have charged a 

much higher per-clip licensing fee had [it] known or been told by 

[respondents] that their clips were to be used, and were in fact 

used, . . . on media platforms and outlets substantially more 

extensive than the limitations imposed by the licenses.”

Retro Video did not discover any of the violations of the 

license terms alleged in the complaint until “late-August 2017” 

when Retro Video “inadvertently stumbled” upon a TL music 

infomercial on YouTube that “had been uploaded . . . by or on 

behalf of . . . DHA[ and] MMIP . . . to promote and generate sales 

of a TL music collection.” Although Retro Video sent a cease-anddesist letter to DHA in November 2017,6 TL Music infomercials 

streams the programming offered on the linear schedules of its 

[Internet Protocol TV]-streaming channels upon-request to 

end-users through a proprietary set-top box requiring high-speed 

internet connectivity . . . .” 

6 According to the complaint, the letter stated that 

“subsequent to the first discovery of unauthorized YouTube 
10

containing clips issued under license by Retro Video continued to

appear on unauthorized media platforms and/or after license 

expiration without the knowledge or consent of Retro Video.

Paragraph 57 of the complaint identifies each of the 

licenses Retro Video claims to have been violated. Each of 

paragraph 57’s 48 subparts provides the TL Music project subject 

to the license, the number of clips licensed in connection with the 

project, the license term, the start/end date of the license, the 

renewal periods (if applicable), the media terms of the license, 

and the nature of the alleged violation (i.e., streaming the clips 

on platforms other than the TL Music website, showing clips in 

an infomercial for a project for which the underlying license had

expired, or including clips in infomercials for projects that are not 

authorized by Retro Video’s licenses).

7 For example, Retro Video 

licensed 18 clips in connection with the “We Love the Nightlife”

project from March 2, 2012 to August 1, 2013, and the TL Music 

infomercial associated with this project appeared on Roku 

between October 2013 and November 2017 and on the TL Music 

website between September 2, 2013 and March 13, 2016.

uploads of licensed materials in infomercials in August 2017, 

[Retro Video] discovered further unauthorized and unlawful 

uploads to other non-permitted media platforms such as Vimeo, 

U-Verse and Roku,” and that Retro Video “considered each such 

placement to be a material breach of the license terms issued for 

each project so shown on streaming media.” 

7 Paragraph 57 indicates that several clips appeared in 

projects for which no license had been issued. For instance, three

video clips appeared in infomercials for one of two versions of TL 

Music’s the “Golden Age of Pop” project, even though Retro Video 

had not permitted those three clips to be used in connection with 

that project. 
11

(Boldface, underscoring, & some capitalization omitted.) The 

earliest license term identified in paragraph 57 was from

September 13, 2002 to September 12, 2003, and the latest license 

term was from December 27, 2019 to December 26, 2020. The 

earliest alleged license violations occurred from January 2013 to 

September 2017, and the latest license violations identified in 

paragraph 57 transpired from December 27, 2019 to the date of 

filing of the complaint (i.e., February 19, 2020).

2. Respondents’ joint demurrer

Respondents filed a joint demurrer, arguing that each 

cause of action is time-barred, otherwise fails to state a claim, 

and is preempted by federal copyright law.8 With respect to its 

statute of limitations defense, respondents argued that all of 

Retro Video’s claims accrued no later than 2014 (i.e., when TL 

Music infomercials with Retro Video’s clips first appeared on UVerse), and that Retro Video’s fraud causes of action are barred 

by Code of Civil Procedure section 338, subdivision (d)’s threeyear limitations period and its contract causes of action are 

8 In the memorandum of points and authorities 

accompanying their demurrer, respondents argued that 

Retro Video’s claim for punitive damages should be dismissed 

because Retro Video failed to state fraud claims and punitive 

damages are not available for breach of contract. This request to 

dismiss Retro Video’s prayer for punitive damages is procedurally 

improper. (See Ramsden v. Western Union (1977) 71 Cal.App.3d 

873, 883 [“[I]t has been held that a prayer for relief is not subject 

to demurrer and the fact that a plaintiff has requested exemplary 

damages to which he may not be entitled does not affect the 

sufficiency of his complaint.”].) In any event, respondents do not 

reiterate this contention on appeal. 
12

barred by Code of Civil Procedure section 337’s four-year statute 

of limitations. Retro Video opposed respondents’ demurrer, and 

respondents filed a reply to Retro Video’s opposition. 

3. The trial court’s ruling on the demurrer

After hearing respondents’ demurrer, the trial court issued 

an order sustaining the demurrer without leave to amend and 

dismissing the action in its entirety. The order was prepared by 

defense counsel and recited the following conclusions: (1) each 

cause of action is time-barred and Retro Video has not pleaded, 

and could not plead, facts to support application of the delayed 

discovery rule; (2) Retro Video failed to “specifically plead all 

elements . . . required” to state its fraud and misrepresentationrelated causes of action, which the court identified as the causes 

of action for fraud and deceit, fraudulent concealment, civil 

conspiracy, intentional misrepresentation, negligent 

misrepresentation, unjust enrichment, constructive trust, and an 

accounting; (3) all causes of action against respondents other 

than DHA fail because Retro Video has not pleaded, and cannot 

plead, privity of contract with those respondents and because

Retro Video has not pleaded, and cannot plead, tortious conduct 

by any respondent; (4) Retro Video has failed to allege facts 

sufficient to state claims for constructive trust and an accounting; 

and (5) Retro Video’s causes of action are preempted by the 

federal Copyright Act. Apart from simply listing these 

determinations, the court did not articulate its reasoning for 

these rulings.
13

Retro Video timely appealed the trial court’s order 

dismissing the action.

9

STANDARD OF REVIEW

In their notice of demurrer and in the demurrer itself, 

respondents intimated they intended to level both a general and

a special demurrer against all causes of action. Nevertheless, 

because respondents demurred on the grounds of lack of subject 

matter jurisdiction (i.e., by claiming that Retro Video’s causes of 

action were preempted) and failure to state a claim, they raised 

only a general demurrer to the complaint.10

9 The order did not specify whether the action was 

dismissed with or without prejudice. Concurrent with the 

issuance of that order, the trial court entered a minute order 

stating the complaint was dismissed without prejudice. Eight 

days later, the trial court issued another minute order correcting 

its prior ruling to indicate the court dismissed the complaint with 

prejudice. 

10 (See Factual and Procedural Background, part 2, ante; 

Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 

1413, 1420–1421 (Holiday Matinee, Inc.) [“A general demurrer is 

appropriate where the complaint ‘does not state facts sufficient to 

constitute a cause of action.’ [Citation.] . . . [¶] [A] demurrer [for 

lack of subject matter jurisdiction] ‘is functionally similar to a 

demurrer for failure to state a cause of action, and therefore is 

deemed a “general demurrer.” [Citation.]’ [Citation.] [¶] . . . [¶] 

‘A general demurrer will lie where the complaint “has included 

allegations that clearly disclose some defense or bar to 

recovery.” [Citation.]’ [Citation.]”]; Benitez v. Williams (2013)

219 Cal.App.4th 270, 275 [indicating that a state court lacks 

subject matter jurisdiction over a claim if copyright law confers 

upon federal courts exclusive jurisdiction thereover].)
14

“The function of a demurrer is to test the sufficiency of the 

complaint as a matter of law, and it raises only a question of law. 

[Citations.] On a question of law, we apply a de novo standard of 

review on appeal.” (Holiday Matinee, supra, 118 Cal.App.4th at 

p. 1420.) “ ‘ “We treat the demurrer as admitting all material 

facts properly pleaded, but not contentions, deductions or 

conclusions of fact or law. [Citation.] We also consider matters 

which may be judicially noticed.” [Citation.]’ [Citation.]”

11

(Holiday Matinee, at pp. 1421.)

11 In conjunction with their demurrer, respondents 

requested judicial notice of a document purporting to be one of 

Retro Video’s license agreements with DHA. There is no 

indication the trial court ruled on this request for judicial notice. 

More importantly, respondents’ request relied upon Evidence 

Code section 452, subdivision (a) and Evidence Code section 453, 

neither of which establishes that this document is a proper 

subject of judicial notice. (See Evid. Code, § 452, subd. (a) 

[“Judicial notice may be taken of the following matters to the 

extent that they are not embraced within Section 451: [¶] (a) The 

decisional, constitutional, and statutory law of any state of the 

United States and the resolutions and private acts of the 

Congress of the United States and of the Legislature of this 

state.”]; Evid. Code, § 453 [prescribing the conditions under 

which “[t]he trial court shall take judicial notice of any matter 

specified in Section 452”].) Further, notwithstanding 

respondents’ argument to the contrary, Scott v. JPMorgan Chase 

Bank, N.A. (2013) 214 Cal.App.4th 743, does not support their 

request for judicial notice. (See Scott, at pp. 746, 752–753 [taking 

judicial notice of a contract between a bank and a government 

agency as an official act of the executive branch under Evid. 

Code, § 452, subd. (c) and as “ ‘[f]acts and propositions that are 

not reasonably subject to dispute and are capable of immediate 

and accurate determination by resort to sources of reasonably 

indisputable accuracy’ ” under Evid. Code, § 452, subd. (h) 
15

“ ‘[I]t is error for a trial court to sustain a demurrer 

when the plaintiff has stated a cause of action under any 

possible legal theory. [Citation.]’ [Citations.]” (Franklin v. 

The Monadnock Co. (2007) 151 Cal.App.4th 252, 257.) “ ‘And 

when [a demurrer] is sustained without leave to amend, we 

decide whether there is a reasonable possibility that the defect 

can be cured by amendment: if it can be, the trial court has 

abused its discretion and we reverse.’ [Citations.]” (Sanowicz v. 

Bacal (2015) 234 Cal.App.4th 1027, 1035.) 

DISCUSSION

On appeal, the parties disagree on whether Retro Video has 

adequately pleaded its fraud-related causes of action and its 

other claims that are predicated on DHA’s and MMIP’s 

misrepresentations, Retro Video’s causes of action are preempted 

by the federal Copyright Act, and Retro Video’s causes of action 

are barred by the applicable statutes of limitation. As discussed 

in further detail below, we conclude that Retro Video adequately 

alleged its fraud-based causes of action and its other 

misrepresentation-based claims; Retro Video’s fourth cause of 

action for breach of contract is preempted by federal copyright 

law; Retro Video has failed to show the trial court erred in ruling 

that the fifth cause of action for breach of the implied covenant of 

good faith and fair dealing is preempted; Retro Video’s remaining 

causes of action are not preempted; and respondents’ statute of 

limitations defense is not dispositive of the entirety of any cause 

of action and thus not subject to a general demurrer. 

because the contract was posted on the agency’s website].) 

Accordingly, we disregard this document, along with respondents’ 

factual assertions that are predicated on this document.
16

A. Retro Video Adequately Pleads Its Fraud-Related 

Causes of Action and Its Other MisrepresentationBased Claims

Retro Video’s first cause of action for fraud and deceit, 

second cause of action for fraudulent concealment, and sixth 

cause of action for intentional misrepresentation are all species of 

the tort of deceit. (See 34A Cal.Jur.3d (2016) Fraud & Deceit, 

§§ 9, 38 [fraud and deceit, and fraudulent concealment]; 

Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 

1497–1498 & fn. 4 [intentional misrepresentation].) The 

essential elements of this tort are: “ ‘ “(a) misrepresentation 

(false representation, concealment, or nondisclosure); 

(b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to 

induce reliance; (d) justifiable reliance; and (e) resulting 

damage.” ’ [Citation.]” (Thrifty Payless, Inc. v. The Americana at 

Brand, LLC (2013) 218 Cal.App.4th 1230, 1239 (Thrifty Payless, 

Inc.).) 

“Each element of a fraud claim must be pleaded with 

specificity. [Citation.] ‘The specificity requirement means a 

plaintiff must allege facts showing how, when, where, to whom, 

and by what means the representations were made, and, in the 

case of a corporate defendant, the plaintiff must allege the names 

of the persons who made the representations, their authority to 

speak on behalf of the corporation, to whom they spoke, what 

they said or wrote, and when the representation was made.’ 

[Citation.] . . . The specificity requirement serves two purposes: 

‘to apprise the defendant of the specific grounds for the charge 

and enable the court to determine whether there is any basis for 
17

the cause of action.’ [Citation.]”12 (Orcilla v. Big Sur, Inc. (2016) 

244 Cal.App.4th 982, 1008.)

Respondents challenge Retro Video’s “fraud-related 

claims.”13 Specifically, they contend that “Retro[ Video’s] 

complaint failed to allege an actionable misrepresentation,” Retro 

Video cannot state a claim for fraudulent concealment because 

respondents had no duty to disclose any fact, and Retro Video has 

not alleged the element of “justifiable reliance.” We disagree.

12 Respondents apparently argue that Retro Video must 

meet this heightened pleading standard because Retro Video was 

capable of discovering the alleged falsity of the representations at 

issue, given that the TL Music infomercials were publicly 

disseminated on television and on internet streaming platforms. 

Because we ultimately conclude that Retro Video has satisfied 

this standard with regard to the elements disputed on appeal, we 

need not address whether a relaxed pleading standard is also 

available to Retro Video. Further, insofar as respondents 

contend that their public dissemination of the infomercials 

establishes that Retro Video failed to state a claim for fraudulent 

concealment, we reject that argument. (See Vega v. Jones, Day, 

Reavis & Pogue (2004) 121 Cal.App.4th 282, 295 (Vega) [“[T]he 

contention that publicly available information cannot form the 

basis for a concealment claim is mistaken. The mere fact that 

information exists somewhere in the public domain is by no 

means conclusive.”].) 

13 With the exception of the cause of action for fraudulent 

concealment, respondents do not identify which causes of action 

they consider to be “fraud-related claims.” Nonetheless, given the 

elements they have challenged on appeal and their use of the 

label “fraud-related claims[,]” it is apparent respondents are 

referring at least to the complaint’s causes of action for fraud and 

deceit, fraudulent concealment, and intentional 

misrepresentation. 
18

First, respondents argue that “Retro [Video] failed to plead 

the name of any person making the supposed misrepresentations, 

nor any medium by which they were made, nor the date of the 

representation, nor any other of the information required to put 

[respondents] on notice.” To the contrary, the complaint contains 

allegations identifying which respondents executed certain 

licenses, when they executed these licenses, and their authority 

to do so. 

For instance, Retro Video alleges that “[d]uring some or all 

of the time period of the acts complained of herein,” MacKinney 

was a chief financial officer of MMIP and a secretary, chief 

financial officer, and chief operations officer of DHA who was 

“responsible for the multi-channel television and digital 

streaming strategy of DHA,” and that he signed several licenses 

on behalf of DHA, including the “ ‘Oldies But Goodies’ ” 

agreement (which he executed on April 12, 2017 and 

January 5, 2018) and the “ ‘Time Life Presents the 60’s’ ” 

agreement (which he executed on August 22, 2017). (Italics 

omitted.) Retro Video also alleges that each of those licenses 

authorized use of the clips for only specified periods of time and 

allowed for “internet streaming . . . on [the TL] Music Website 

Only,” and that DHA violated those restrictions. (Italics 

omitted.) Further, by signing these licenses, MacKinney 

promised that DHA would adhere to the licenses’ restrictions on 

the use of the clips. (See 34A Cal.Jur.3d, supra, Fraud & Deceit, 

§ 35 [observing that a representation can give rise to both deceit 

claims (by virtue of a promissory fraud theory) and contract 

claims].) We believe that these allegations are sufficiently 

detailed to provide respondents with adequate notice to defend 
19

against Retro Video’s fraud claims and for us to assess the fraudrelated causes of action. 

Respondents further contend Retro Video cannot proceed 

on a fraudulent concealment theory because DHA and MMIP 

were under no duty to disclose any facts to Retro Video.14 As set 

forth above, by entering into contracts that restricted the time 

and manner in which the film and video clips could be used, DHA 

and MMIP represented they would adhere to those limitations. 

Yet, Retro Video maintains that at the time they made these 

representations, DHA and MMIP had no intention of complying 

with the licenses’ restrictions on dissemination, and that they 

intended to permit: The infomercials to be streamed on platforms 

other than the TL Music website, the clips to be used in 

connection with projects unauthorized by the licenses, and the 

clips to be used after the relevant licenses had expired. Indeed, 

Retro Video alleges in its complaint that “[i]n late 2010, . . . 

agents for . . . DHA [and] MMIP . . . began to press [Retro Video] 

for the rights by license to advertise the [TL] music collections 

online without restriction,” and, after Retro Video “did not accede 

to th[is] request,” DHA and MMIP later streamed infomercials on 

the other platforms anyway. Under these circumstances, Retro 

Video has sufficiently alleged the “nondisclosure” element of 

its fraudulent concealment cause of action. (See Vega, supra, 

121 Cal.App.4th at p. 294 [“[A]ctive concealment may exist where 

a party ‘[w]hile under no duty to speak, nevertheless does so, but 

14 As we noted earlier, although respondents claim that 

DHA was the only respondent that was a party to the licenses in 

question, we must assume the truth of the complaint’s allegation 

that MMIP was a party to several of them. (See fn. 3 & 

accompanying text, ante.)
20

does not speak honestly or makes misleading statements or 

suppresses facts which materially qualify those stated.’ ”].)

Lastly, respondents contend that Retro Video failed to 

plead justifiable reliance because it “does not allege that it took

any particular action in reliance,” and Retro Video continued to 

enter into “nearly identical licenses” for the clips after it 

discovered their unauthorized use. Respondents ignore the 

complaint’s allegations that Retro Video “would have charged a 

much higher per-clip licensing fee” had it been aware that DHA 

and MMIP intended to breach the licenses’ restrictions on use. 

Furthermore, because the complaint does not identify the fees 

charged for licenses issued after Retro Video discovered the 

falsity of DHA’s and MMIP’s representations, we will not 

discount or ignore Retro Video’s allegation that it would have 

charged a higher fee for the clips had it been aware of DHA’s and 

MMIP’s scheme. Because this is not “ ‘ “the rare case where the 

undisputed facts leave no room for a reasonable difference of 

opinion, the question of whether [Retro Video’s] reliance [was] 

reasonable is a question of fact.” ’ [Citation.]” (See Thrifty 

Payless, Inc., supra, 218 Cal.App.4th at p. 1239.) 

Having rejected respondents’ challenges to the first cause of 

action for fraud and deceit, the second cause of action for 

fraudulent concealment, and the sixth cause of action for 

intentional misrepresentation, we conclude the trial court erred 

in sustaining the demurrer as to these claims. (See Pack v. Kings 

County Human Services Agency (2001) 89 Cal.App.4th 821, 826, 

fn. 5 (Pack) [“ ‘Although it is the appellant’s task to show error, 

there is a corresponding obligation on the part of the respondent 

to aid the appellate court in sustaining the judgment. “[I]t is as 

much the duty of the respondent to assist the [appellate] court 
21

upon the appeal as it is to properly present a case in the first 

instance, in the court below.” [Citations.]’ [Citation.]”].)

With regard to Retro Video’s other causes of action, 

respondents’ briefing suggests they believe that (a) Retro Video’s

fourth cause of action for breach of contract and fifth cause of 

action for breach of the implied covenant of good faith and fair 

dealing fail against all respondents who are not parties to the 

licenses at issue, and (b) Retro Video’s seventh cause of action for 

negligent misrepresentation, eighth cause of action for unjust 

enrichment, ninth cause of action for constructive trust, and 

tenth cause of action for an accounting fail because the complaint 

does not “allege any specific misrepresentation (or other tort) 

made by any defendant, much less any specific defendant.” ~(See 

RB 53.)~ We need not resolve their first contention because we 

have concluded that the two contract-based causes of action are 

preempted. (See Discussion, part B.1, post.) The second 

contention fails because, as we have explained in this section, 

Retro Video has adequately pleaded the misrepresentations 

forming the basis of their claims.

Additionally, Retro Video alleges a conspiracy cause of 

action. In particular, Retro Video avers that “[t]his conspiracy, 

carried out by the individual defendants on behalf of and at the 

instruction of . . . DHA[ and] MMIP . . . was designed to, and did, 

fraudulently deprive plaintiff of income from their business of clip 

licensing and diverted, and continues to divert, profits gathered 

by defendants from their unauthorized use, including conscious 

acts constituting fraud, fraudulent concealment and intentional 

misrepresentation.” (Italics added.) It is thus apparent that 

Retro Video’s civil conspiracy allegations complement its causes 

of action for fraud and deceit, fraudulent concealment, and 
22

intentional misrepresentation. Accordingly, we do not treat the 

conspiracy count as a separate cause of action, but instead as a 

theory potentially allowing the imposition of vicarious liability on 

respondents who did not personally make the misrepresentation 

or false promise. (See City of Industry v. City of Fillmore (2011) 

198 Cal.App.4th 191, 199, 212 [“We construe the fifth count for 

fraud and the 10th count for conspiracy together as a single count 

for fraud.”].) 

Although Retro Video points out in its opening brief that it 

has invoked the doctrine of civil conspiracy to establish liability 

against respondents who did not personally make the 

misrepresentation or false promise, respondents do not claim the 

pleading fails to allege sufficient facts to impose liability via a 

conspiracy theory. We thus do not address this issue further. 

(See Pack, supra, 89 Cal.App.4th at p. 826, fn. 5.)

B. Although Retro Video’s Causes of Action for Breach 

of Contract and Breach of the Implied Covenant of 

Good Faith and Fair Dealing Are Preempted by the 

Copyright Act, Retro Video’s Other Causes of Action 

Survive Preemption

“In addressing a question of preemption, we start with the 

presumption that the historic police powers of the states are not 

to be superseded by federal law unless there is a clear and 

manifest purpose on the part of Congress to do so.” (United 

States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 

607, 620; see id. at pp. 619–620 [invoking this principle in 

addressing the argument that a plaintiff’s claims were preempted 

by the federal Copyright Act].) “[T]he party asserting 

preemption” has the “burden” of rebutting this presumption.
23

(See Solorzano v. Superior Court (1992) 10 Cal.App.4th

1135, 1139.)

Title 17 United States Code section 301(a) provides: “On or 

after January 1, 1978, all legal or equitable rights that are 

equivalent to any of the exclusive rights within the general scope 

of copyright as specified by section 106 in works of authorship 

that are fixed in a tangible medium of expression and come 

within the subject matter of copyright as specified by sections 102 

and 103, whether created before or after that date and whether 

published or unpublished, are governed exclusively by this title.

Thereafter, no person is entitled to any such right or equivalent 

right in any such work under the common law or statutes of any 

State.” (17 U.S.C. § 301(a).)

“ ‘[F]or preemption to occur under [this provision of] the 

[Copyright] 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.]” (See Kabehie v. Zoland (2002) 

102 Cal.App.4th 513, 520 (Kabehie).)

Title 17 United States Code section 102(a)(6) extends 

copyright protection to “motion pictures and other audiovisual 

works” that are “fixed in any tangible medium of expression, now 

known or later developed, from which they can be perceived, 

reproduced, or otherwise communicated, either directly or with 

the aid of a machine or device.” (See 17 U.S.C. § 102(a)(6).) 

Respondents posit that the “video and film footage clips” that 

Retro Video licenses constitute “motion pictures” and 

“audiovisual works” that come within the subject matter of 
24

copyright for the purposes of title 17 United States Code 

section 102. Retro Video does not contest that assertion. 

Accordingly, Retro Video has in effect conceded that respondents 

have satisfied the first condition for preemption under title 17 

United States Code section 301(a). (Rudick v. State Bd. of 

Optometry (2019) 41 Cal.App.5th 77, 89–90 (Rudick) [concluding 

that the appellants made an implicit concession by “failing to 

respond in their reply brief to the [respondent’s] argument on 

th[at] point”].) 

Regarding the second condition for preemption, “ ‘a right 

that is “equivalent to copyright” is one that is infringed by the 

mere act of reproduction, performance, distribution, or display.’ 

[Citation.] If the act of reproduction, performance, distribution or 

display will in itself infringe the state-created right, then such 

right is preempted. [Citation.] . . . ‘But if qualitatively other 

elements are required, instead of, or in addition to, the acts of 

reproduction, performance, distribution, or display, in order to 

constitute a state-created cause of action, then the right does not 

lie “within the general scope of copyright,” and there is no preemption.’ [Citation.] [¶] . . . ‘In a proper case, the same conduct 

may support relief under multiple theories. Preemption law, 

however, requires analysis of each theory to determine whether it

contains the necessary qualitatively different extra element 

distinguishing it from copyright protection.’ [Citation.]” 

(Kabehie, supra, 102 Cal.App.4th at pp. 520–521.) 

1. Retro Video’s breach of contract and breach of the

implied covenant of good faith and fair dealing claims

are preempted 

Retro Video’s fourth cause of action for breach contract fails 

this “extra element” test. In its complaint, Retro Video alleges 
25

that DHA and MMIP violated the terms and conditions of 

Retro Video’s licenses by disseminating (and, in some cases, 

allowing their affiliates to disseminate) infomercials containing 

video and film clips: (a) on media streaming platforms other than 

the TL Music website; and/or (b) that pertain to (i) projects

governed by licenses that had expired, or (ii) projects that were 

not authorized by the licenses associated with the clips at issue.

In essence, Retro Video avers that DHA and MMIP violated its 

licenses’ restrictions on the “public performance” of these video 

and film clips, which is an exclusive right contained in title 17 

United States Code section 106.15 Because Retro Video’s breach 

of contract cause of action is based on the “promise . . . simply to 

refrain from copying the material or infringing the rights 

protected by copyright,” this claim does not satisfy the “extra 

element” test and is preempted by title 17 United States Code

section 301(a). (See Kabehie, supra, 102 Cal.App.4th at p. 526.)

Retro Video resists this conclusion, arguing that it “licensed 

clip footage in return for a promise of payment,” and that “[t]he 

promise of payment provides the ‘extra element’ which changes 

the nature of an action . . . and thereby nullifies preemption.” 

15 (See 17 U.S.C. § 106(4) [“[T]he owner of copyright under 

this title has the exclusive rights to do and to authorize any of the 

following: [¶] . . . [¶] [I]n the case of . . . motion pictures and 

other audiovisual works, to perform the copyrighted work 

publicly[.]”]; id., § 101 [“To perform or display a work ‘publicly’ 

means [¶] . . . [¶] to transmit or otherwise communicate a 

performance or display of the work . . . to the public, by means of 

any device or process . . . .”]; Disney Enterprises, Inc. v. VidAngel, 

Inc. (C.D. Cal. 2019) 371 F.Supp.3d 708, 713, 718 [holding that a 

defendant publicly performed certain motion pictures by 

streaming them to its customers].) 
26

We acknowledge that “a right to payment” is “[a] right that is 

qualitatively different from copyright” and that a contract claim 

premised on the breach of a promise to pay can survive 

preemption. (See Kabehie, supra, 102 Cal.App.4th at p. 528.) 

The breach of a promise to pay is not what Retro Video alleges. 

Instead, it complains of the unauthorized use of its video clips. 

Because Retro Video concedes that it was paid “a fixed sum per 

licensed clip set forth in each license,” rather than a variable fee 

tied in some way to the extent to which the clips were 

disseminated, the complaint is not susceptible to Retro Video’s 

description of its breach of contract claim.

Retro Video argues that it is without a remedy if its breach 

of contract claim is preempted. It reasons that it lacks standing 

to bring a copyright claim because the owners of the video and 

film clips at issue have retained the exclusive rights to that 

material. Whether Retro Video may recover under the federal 

Copyright Act, however, has no bearing on whether a claim 

satisfies the “extra element” test for copyright preemption. (See 

Kabehie, supra, 102 Cal.App.4th at p. 520; ibid. [“[A] state right 

[may be] preempted even if the state-created right is broader or 

narrower than the comparable federal right.”]; Sybersound 

Records, Inc. v. UAV Corp. (9th Cir. 2008) 517 F.3d 1137, 1150–

1151 [holding that state-law claims were preempted by the 

Copyright Act even though the plaintiff lacked standing to bring 

an infringement claim].)

Retro Video does not suggest in its appellate briefing how it 

could amend its breach of contract claim to avoid preemption. 

We, moreover, cannot discern any such amendment that would 

not change the theory of its contract claim. (See Community 

Water Coalition v. Santa Cruz County Local Agency Formation 
27

Com. (2011) 200 Cal.App.4th 1317, 1329 [“It is the rule that when 

a trial court sustains a demurrer with leave to amend, the scope 

of the grant of leave is ordinarily a limited one. It gives the 

pleader an opportunity to cure the defects in the particular 

causes of action to which the demurrer was sustained, but that is 

all.”].) 

In order to state a breach of contract claim that would 

avoid federal copyright preemption, Retro Video would need to 

allege new facts establishing that DHA and/or MMIP breached a 

term of the licenses other than a restriction on the use of the 

video and film clips. (See Kabehie, supra, 102 Cal.App.4th at 

p. 528.) Such an amendment would not simply remedy a defect 

in its contract cause of action, it would constitute an entirely new 

factual theory that is absent from the complaint before us. Thus, 

the trial court did not abuse its discretion in declining to grant 

Retro Video leave to amend to replead its fourth cause of action 

for breach of contract.

Additionally, we acknowledge that some contractual 

promises may escape preemption because they are “qualitatively 

different from copyright,” and that, in order to determine 

whether a contract claim is preempted, we must conduct “a factspecific analysis of the particular promise alleged to have been 

breached and the particular right alleged to have been violated.”

(See Kabehie, supra, 102 Cal.App.4th at pp. 521, 528.) A claim 

for breach of the implied covenant of good faith and fair dealing 

relies on a contracting party’s representation that it “will [not] do 

anything to destroy or injure the right of the other to receive the 

benefits of the contract.” (See 14A Cal.Jur.3d (2016) Contracts,

§ 249.) 
28

In connection with the preemption issue, Retro Video does 

not address its fifth cause of action specifically, and a fortiori, 

whether it has alleged an extra element defeating preemption of 

that cause of action. Consequently, Retro Video has failed to 

overcome the presumption of correctness accorded to the trial 

court’s ruling sustaining the demurrer without leave to amend as 

to Retro Video’s claim for breach of the implied covenant of good 

faith and fair dealing. (See Yu v. University of La Verne (2011) 

196 Cal.App.4th 779, 787 [“ ‘ “A judgment or order of the lower 

court is presumed correct. All intendments and presumptions are 

indulged to support it on matters as to which the record is silent, 

and error must be affirmatively shown.” ’ ”]; Needelman v. DeWolf 

Realty Co., Inc. (2015) 239 Cal.App.4th 750, 762 [“It is not this 

court’s role to construct arguments that would undermine the 

lower court’s judgment and defeat the presumption of 

correctness. Rather, an appellant is required to present a 

cognizable legal argument in support of reversal of the judgment 

and when the appellant fails to support an issue with pertinent 

or cognizable argument, ‘it may be deemed abandoned and 

discussion by the reviewing court is unnecessary.’ [Citation.]”].) 

2. Retro Video’s fraud and other claims are not 

preempted

“ ‘Under the extra element test, it is clear that federal 

copyright law does not preempt state causes of action alleging 

fraud . . . . Fraud involves “the extra element of 

misrepresentation.” [Citation.]’ [Citation.]” (Kabehie, supra, 

102 Cal.App.4th at p. 530, quoting Gladstone v. Hillel (1988) 

203 Cal.App.3d 977, 987.) In Kabehie, plaintiffs, producers of 

music cassettes, videotapes, and compact discs, brought, inter 

alia, a fraud cause of action against defendants from whom 
29

plaintiffs had purchased exclusive rights, title, and interests in 

certain music albums. (See Kabehie, at p. 518.) The agreements

also required the defendants to deliver the master recordings of 

the albums. (See ibid.) In derogation of their agreements, 

defendants themselves started producing, duplicating, 

advertising, and selling the “musical materials” covered by the 

agreements, and they did not deliver the master recordings. (See 

ibid.)

The Kabehie court rejected defendants’ preemption defense

to the fraud cause of action. (Kabehie, supra, 102 Cal.App.4th at 

pp. 529–530.) The court found the extra element defeating 

preemption in defendants’ misrepresentation that they owned the 

interests in each of the musical works, promised to transfer the 

rights to the musical works, including the master recordings, to 

plaintiffs exclusively, and promised not to duplicate or sell the 

music in any form. (See ibid.) As the court concluded, 

defendants had “made the misrepresentations with the intent to 

defraud [plaintiffs].” (Id. at p. 530.) 

The Ninth Circuit Court of Appeals has also held that “the 

element of misrepresentation” constitutes an “ ‘extra element’ ” 

that “distinguishes” a fraud claim “from one based on copyright” 

such that it “is not substantially equivalent to a claim for 

copyright infringement.” (See Valente-Kritzer Video v. Pinckney

(9th Cir. 1989) 881 F.2d 772, 776 (Valente-Kritzer Video).) There, 

the circuit court held that the Copyright Act did not preempt a 

fraud claim predicated on an “intentional[ ] misrepresent[ation of 

the defendants’] intent to perform [a] contract” obligating them to 

transfer to the plaintiff “the right to co-produce, distribute, and 

sell [a] videocassette” of a film. (See id. at pp. 773–774, 776.)

The court observed that not preempting such a fraud claim 
30

“appears to be consistent with congressional intent.” (Id. at 

p. 776; ibid. [“ ‘[T]he general laws of defamation and fraud, would 

remain unaffected as long as the causes of action contain 

elements . . . that are different in kind from copyright 

infringement[,]’ ” quoting H.R. Rep. No. 94–1476, 94th Cong., 2d 

Sess. 132, reprinted in 1976 U.S. Code Cong. & Admin. News 

5659, 5748]. )

Retro Video alleges the “extra element” of

misrepresentation in its first cause of action for fraud and deceit, 

second cause of action for fraudulent concealment, and sixth

cause of action for intentional misrepresentation. As we have 

described in Discussion, part A, ante, Retro Video’s causes of 

action for fraud and deceit, fraudulent concealment, and 

intentional misrepresentation each rely on the theory that by 

executing the licenses in question, DHA and MMIP represented 

they would adhere to the licenses’ limitations on the 

dissemination of the clips. Retro Video alleges that these 

representations were false when DHA and MMIP made them

because these respondents intended (either directly, or in some 

cases, through their affiliates) to use the clips in connection with 

projects for which the licenses had expired, stream the clips on 

platforms other than the TL Music website, and include the clips 

in infomercials for projects that “were not under license at all” 

but had “been obtained by . . . DHA and/or MMIP for use in other 

projects pursuant to licenses specific to said other projects.” 

Under Kabehie and Valente-Kritzer Video, these allegations are 

sufficient to defeat preemption under the federal Copyright Act.16

16 Respondents claim that an unpublished federal district 

court decision “held fraud and misrepresentation causes of action 

preempted when the plaintiff failed to identify a 
31

Respondents do not explain why the claim for negligent 

misrepresentation should be treated any differently than Retro 

Video’s fraud claims, even though both types of claims are 

predicated on the same “extra element” of a misrepresentation.

(See Borman v. Brown (2021) 59 Cal.App.5th 1048, 1060 [stating 

that an element of negligent misrepresentation is “ ‘the 

misrepresentation of a past or existing material fact’ ”].) 

Furthermore, as pleaded, the eighth cause of action for unjust 

enrichment, the ninth cause of action for constructive trust, and 

the 10th cause of action for an accounting are based on 

respondents’ alleged “fraudulent” conduct. Respondents fail to 

explain why, notwithstanding the aforesaid allegations of fraud, 

the eighth, ninth, and 10th causes of action should be treated any 

differently than Retro Video’s fraud and deceit, fraudulent 

concealment, and intentional misrepresentation claims.17 

misrepresentation beyond unauthorized use of the work, as here.” 

(Citing McCormick v. Sony Pictures Entertainment (C.D. Cal. 

Nov. 17, 2008) No. CV 07-05697 MMM (PLAx) [2008 WL 

11336160, at p. *10].) Respondents’ reliance on McCormick is 

unavailing because the plaintiff in that case did not allege the 

defendant had made any false promises to him at all; instead, the 

plaintiff claimed the defendant simply used his screenplay 

without authorization. (See id. at pp. *1, *10.) 

17 Indeed, Retro Video and respondents both seem to treat 

the complaint’s causes of action as if they fall into two distinct 

categories: (1) contract claims, and (2) misrepresentation claims. 

As discussed in this section, we conclude that the second category

(misrepresentation claims) is not preempted because the claims 

therein contain the extra element of misrepresentation.

Additionally, as we explained Discussion, part A, ante, we 

do not consider Retro Video’s third cause of action for conspiracy 

to be a standalone claim, but rather a means to impose vicarious 
32

In sum, although we do not disturb the trial court’s rulings

sustaining, without leave to amend, respondents’ demurrer to the 

fourth cause of action for breach of contract and the fifth cause of 

action for breach of the implied covenant of good faith and fair 

dealing, the trial court erred in finding that Retro Video’s other 

causes of action are preempted.

C. Respondents’ Statute of Limitations Defense Cannot 

Be Raised on Demurrer Because It Does Not Dispose 

of the Entirety of any Cause of Action

Respondents assert—and Retro Video does not dispute—

that all of Retro Video’s remaining causes of action are governed 

by Code of Civil Procedure section 338, subdivision (d)’s threeyear statute of limitations.18 (Rudick, supra, 41 Cal.App.5th at 

pp. 89–90.) 

Code of Civil Procedure section 338, subdivision (d) 

provides that “[a]n action for relief on the ground of fraud or 

mistake” does not accrue “until the discovery, by the aggrieved 

party, of the facts constituting the fraud or mistake.” (See Code 

Civ. Proc., § 338, subd. (d).) As noted in our Factual and 

Procedural Background, part 1, ante, Retro Video alleges that 

liability on certain respondents for the fraud and deceit, 

fraudulent concealment, and intentional misrepresentation 

causes of action.

18 Because we have concluded Retro Video’s breach of 

contract and breach of the implied covenant of good faith and fair 

dealing causes of action are preempted, we do not address 

whether the trial court erred in sustaining the demurrer on 

statute of limitations grounds as to these claims. (See

Discussion, part B.1, ante.) 
33

certain breaches of Retro Video’s licenses occurred within the 

three-to-four-year period preceding the commencement of this 

action on February 19, 2020. In fact, several of the licenses in 

question did not even become operative until after 

February 19, 2017. It is therefore unsurprising that respondents 

argue that Retro Video’s claims are “partially time-barred” and 

that “all fraud related claims that accrued prior to 

February 19, 2017 . . . are barred by the applicable statutes of 

limitations.” (Italics added.)

“[A] general demurrer may not be sustained . . . as to a 

portion of a cause of action. [Citation.] . . . [D]efendants may 

attack any portion of a cause of action that is ‘substantively 

defective on the face of the complaint . . . by filing a motion to 

strike.’ [Citation.]” (See Daniels v. Select Portfolio Servicing, Inc.

(2016) 246 Cal.App.4th 1150, 1167.) Respondents did not file a 

motion to strike. Accordingly, the trial court erred in sustaining 

the demurrer to Retro Video’s remaining causes of action based 

on respondents’ statute of limitations defense. (See id. at p. 1167, 

fn. 9 [“Because a demurrer may not be sustained as to a portion 

of a cause of action, we decline to address respondents’ 

arguments that appellants’ intentional misrepresentation, 

negligent misrepresentation, and promissory estoppel claims are 

partially time-barred.”].) 
34

DISPOSITION

We reverse the trial court’s judgment of dismissal, and 

remand with instructions to vacate its order sustaining the 

demurrer without leave to amend and issue a new order: 

(a) sustaining the demurrer without leave to amend as to (i) the 

complaint’s fourth cause of action for breach of contract, and

(ii) the complaint’s fifth cause of action for breach of the implied 

covenant of good faith and fair dealing; and (b) overruling the 

remainder of the demurrer. Appellant Retro Video, Inc. is 

awarded its costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.