MERIT HOMES, LLC, an Arizona limited liability company v. JOSEPH CARL HOMES, LLC, an Arizona limited liability company;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MERIT HOMES, LLC, an Arizona limited
liability company,
Plaintiff - Appellant,
v.
JOSEPH CARL HOMES, LLC, an
Arizona limited liability company; et al.,
Defendants - Appellees.
No. 12-15977
D.C. No. 2:10-cv-02030-SMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted April 9, 2014
San Francisco, California
Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.
Plaintiff Merit Homes, LLC, appeals from the district court’s order granting
summary judgment in favor of Defendant Joseph Carl Homes, LLC (“JCH”). We
have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de novo, we affirm.
FILED
APR 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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We need not decide whether an express license was granted by Merit Homes
to National Bank of Arizona (“NBA”), because at a minimum Merit Homes
granted to NBA, and NBA’s successors and assigns, an implied copyright license
to use the Felten Group plans in order to complete the relevant construction
project. “[G]rants of nonexclusive copyright licenses need not be in writing.”
Foad Consulting Grp., Inc. v. Azzalino, 270 F.3d 821, 825 (9th Cir. 2001) (citation
omitted). A “nonexclusive copyright license may be granted orally or by
implication,” id. at 826 (citation omitted), and a nonexclusive license supported by
consideration is irrevocable, Asset Mktg. Sys., Inc. v. Gagnon, 542 F.3d 748, 757
(9th Cir. 2008).
Merit Homes was one of two members in Arboleda Ranch, LLC, and
contracted with the Felten Group for the Felten Group to provide schematic design
and construction plans for the project. The Construction Loan Agreement between
Arboleda Ranch, with Merit Homes as guarantor, and NBA provided that, “[a]s
additional security for the payment of the Loan, [Arboleda Ranch] hereby
collaterally transfers and assigns to [NBA] . . . all of [Arboleda Ranch]’s right,
title, and interest” to the Felten Group plans. In addition, Arboleda Ranch
expressly warranted and represented that “all rights, title and interest” of “any
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predecessors to [Arboleda Ranch]’s interest with respect to the [Felten Group
plans]” had “been duly assigned and transferred” to Arboleda Ranch.
Under the Construction Loan Agreement, NBA had the right to “use the
[Felten Group plans] for any purpose relating to the improvements, including but
not limited to . . . the completion” of the project. Moreover, this right “inure[d] to
the benefit of [NBA], its successors and assigns, including any purchaser upon
foreclosure of the Deed of Trust, [and] any receiver in possession” of the relevant
real property.
Furthermore, the Construction Deed of Trust granted NBA a security interest
in “[a]ll present and future plans, specifications, [and] drawings.” In the event of
default, NBA had the right to use the “plans and specifications to be used in the
actual construction of the improvements” to complete the project. Upon “default
(and failure to cure, if applicable),” the Construction Deed of Trust also authorized
NBA “and [its] successors and assigns” to use the Felten Group plans.
Arboleda Ranch, and Merit as guarantor, defaulted on the construction loan.
Therefore, based on the loan provisions discussed above, NBA and its successors
and assigns, including JCH, had at least an implied license to use the Felten Group
plans to complete the project.
AFFIRMED.
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