KATTEN MUCHIN ROSENMAN LLP ZIA F. MODABBER (SBN 137388), Zia, modabber@kattenlaw.com ANDREW J. DEMKO (SBN 247320) andrew. demko@kattenlaw com 2029 Century Park East, Suite 2600 Los Angeles, CA 90067-3012 Telephone: 310.788.4400 Facsimile: 310.788.4471 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP HOWARD WEITZMAN (SBN 38723) hweitzman@kwikalaw.com SUANN C. MACISAAC (SBN 205659) smacisaac@kwikalaw.com 808 Wilshire Boulevard, 3"' Floor Santa Monica, California 90401 Telephone: 310.566.9800 Facsimile: 310.566.9850 Attorneys for Defendants John Branca, as Co-Executor of the Estate of Michael J. Tackson, Sony Music Entertainment, and IJ Productions, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES VERA SEROVA, an individual, on behalf of | Case No. BC 548468 herself and all others similarly situated, DEFENDANTS JOHN BRANCA, AS CO- Plaintiff, EXECUTOR OF THE ESTATE OF MICHAEL J. JACKSON, SONY MUSIC ENTERTAINMENT, AND MJJ SONY MUSIC ENTERTAINMENT, a ee CON TO STRIKE Delaware general partnership; JOHN PURSUANT TO CALIFORNIA'S ANTE: BRANCA, as Co-Executor of the Estate of Michael J. Jackson, EDWARD JOSEPH CASCIO, an individual, JAMES VICTOR PORTE, an individual; MJJ PRODUCTIONS, INC., a California Corporation; ANGELIKSON PRODUCTIONS LLC, a New York Jersey Limited Liability Company; and DOES 1 SLAPP STATUTE [Cal. Civ, Proc. Code § 425.16] [Request for Judicial Notice and [Proposed] Order filed concurrently herewith] " . Date: TBD through 50, inclusive, Tite: TBD Defendants. Dept.: 308 Case Assigned for All Purposes to Hon. Jane L., Johnson Defendants® Notice of Motion & Motion to Strike | seasoes‘TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on a future date to be set by the Court on or after a telephonic hearing to be held March 15, 2016, at 2:45 p.m., in Courtroom 308 of the above- named Court, located at 600 South Commonwealth Ave. Los Angeles, California 90005, defendants John Branca, as Co-Executor of the Estate of Michael J. Jackson (the “Estate”), Sony Music Entertainment (“Sony Music”), and MJJ Productions, Inc. (“MJJ Productions” and, collectively with the Estate and Sony Music, “Defendants") will and hereby do move pursuant to section 425.16 of the California Code of Civil Procedure to strike all causes of action against them in Plaintiff Vera Serova’s (“Plaintiff”) First Amended Complaint ‘The Motion is made on the grounds that: 1) the claims for relief against Defendants arise from conduct in furtherance of speech protected by California’s anti-SLAPP statute, namely, expressive conduct in connection with the distribution of a music album, and 2) Plaintiff cannot demonstrate a probability that she will prevail on the merits of these claims. Defendants reserve the right to move for an award of their attorneys’ fees and costs incurred in bringing this Motion pursuant to section 425,16(c) of the California Code of Civil Procedure. This motion is based upon the Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the Request for Judicial Notice, the Proposed Order, the First ‘Amended Complaint, the file and record in this matter, any matters of which the Court may or must take judicial notice, and any other matters the Court may consider at or in connection with the hearing on this Motion DATED: February 3, 2016 KATTEN MUCHIN ROSENMAN LLP 1r Defendants John Branca, as Co- ‘Executor gf the Estate of Michael J. Jackson, Sony Muste Entertainment, and MIJ Productions, Inc, Defendants" Notice of Motion & Motion to Strike 665045DATED: February 3, 2016 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP By: Dovid Web re ‘Howard Weitzman, 2 Attorneys for Defendants John Branca, 8 Co- Executor of the Estate of Michael J. Jackson, Sony Music Entertainment, and MJ Productions, Ine 11665045 Defendants’ Notice of Motion & Motion to StrikeUL. IL. IV, INTRODUCTION SUMMARY OF ALLEGATIONS. A. TheMichael Album B. Public Controversy Regarding The Cascio Tracks C. The First Amended Complaint. LEGAL STANDARD FOR ANTI-SLAPP MOTIONS STEP ONE: THE JACKSON DEFENDANTS HAVE MET THEIR BURDEN BECAUSE PLAINTIFF'S CLAIMS ARISE FROM PROTECTED ACTIVITY A. The Statements Attributed To The Jackson Defendants Were Made In A. Public Forum In Connection With An Issue Of Public Interest. 1 ‘The Jackson Defendants’ statements about Jackson’s performance of the Cascio tracks were made in a public forum. 2. The Jackson Defendants’ statements were also made in connection with an issue of public interest. B. __ Section 425.16(¢)(4) Is Also Satisfied Because The Jackson Defendants’ ‘Speech Was In Connection With An Issue Of Public Interest. STEP TWO: PLAINTIFF CANNOT ESTABLISH A LIKELIHOOD OF PREVAILING ON THE MERITS OF HER CLAIMS. A. The UCL And CLRA Claims Apply Only To Commercial Speech And ‘The Speech Attributed To The Jackson Defendants Is Noncommercial. 1. The United States Supreme Court's standard for distinguis between commercial speech and noncommercial speech 2. Statements responding to the public controversy concerning Jackson's performance of the Cascio tracks are not commercial speech, 3. Statements attributing the performances to Michael Jackson are not commercial speech. B. Alternatively, The Statements In The Press And The Video Did Not Contain Any False Or Misleading Statements About Whether Jackson Performed The Vocals On The Cascio Tracks. 1. Neither the Estate nor Sony Music claimed Jackson performed lead yocals to the press. 10 13 Defendanis® Notice of Motion & Motion to Strike res4s045wok BN So eae 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 VIL 2. Plaintiff will not prevail on her claims with respect to the video ‘because nothing in it is false or misleading, . oneneel CONCLUSION ....... foe coe coved 5 165045 Defendants” Notice of Motion & Motion to StrikeTABLE OF AUTHORITIES Page(s) Cases Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir, 2010)....ess - 3 Annette F. v. Sharon S., 119 Cal. App. 4th 1146 (2004). . aS AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). ae : sete . 1 Berger v. City of Seattle, 5369 F.3d 1029 (9th Cir. 2009) . bene i Bolger v. Youngs Drug Prods. Corp., 463 U.S, 60 (1983) passim Bruton v. Gerber Prods. Co., 961 F. Supp. 2d 1062 (N.D. Cal. Sept. 6, 2013) . — feed Cher v. Forum Int'l, Lid., 692 F.2d 634 (9th Cir. 1982). 7 . i 9 City of Costa Mesa v. D'Alessio Invs., 214 Cal, App. 4th 358 (2013)... . . = 4 Club Members For An Honest Election v. Sierra Club, 45 Cal, 4th 309 (2008)... . 4 Consol. Edison Co. of N.¥., Inc. v. Pub, Serv. Comm'n of N.¥., 447 US, 530 (1980) = : 10 Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000) a ~ : . = Dex Media West, Inc. v. City of Seattle, 696 F.3d 952 (9th Cir. 2012). — . - = 9,11 Gilbert v. Sykes, 147 Cal. App. 4th 13 (2007) 7 Haight Ashbury Free Clinics, Ine. v. Happening House Ventures, 184 Cal. App. 4th 1539 (2010). . MW Hill v. Roll Int'l Corp., 195 Cal. App. 4th 1295 (2011). . . . 14 itt Defendants” Notice of Motion & Motion to Strike rig64sots10 u 12 13 14 1s 16 17 18, ics 20 21 22 23 24 25 26 27 28 Hilton v. Hallmark Cards, 599 F.3d 894 (2009) 6 Joseph Burisyn, Ine. v. Wilson, 343 U.S. 495 (1952).... 1 Keimer v, Buena Vista Books, Inc., 75 Cal. App. 4th 1220 (1999). 7,813 Klein v, Karth Elements, Inc., 59 Cal. App. 4th 965 (1997) 2 Kronemyer v, Internet Movie Database, Inc., 150 Cal. App. 4th 941 (2007)... 6.11 Lacoff. Buena Vista Publ’g, Inc., 705 N.Y.S.2d 183 (N.Y. Sup. Ct. 2000). ao Lavie v, Procter & Gamble Co., 105 Cal. App. 4th 496 (2003). 14 Murdock v. Pennsylvania, 319 U.S. 105 (1943) 9 Navellier v. Sletten, 29 Cal, 4th 82 (2002) 4 New.Net, Inc. v. Lavasoft, 356 F, Supp. 2d 1090 (C.D, Cal. 2004) ..ooncnennennnnne 8 Nygdird, Ine. v. Uusi-Kerttula, 159 Cal. App. 4th 1027 (2008)... 5,6 O'Connor v. Super. Ct, 177 Cal, App. 34 1013 (1986). 8 Rezee v. Sony Pictures Hntm't, Ine., 116 Cal. App. 4th 135 (2004). 7,8 Riley v, Nat'l Fed'n of the Blind of N.C. Ine., 487 U.S. 781 (1988) 9, 12 Stewart v, Rolling Stone LLC, 181 Cal. App. 4th 664 (2010)... 7,8, 10 Stutzman v, Armstrong, ‘No, 2:13-CV-00116-MCE-KIN, 2013 WL 4853333 (E.D. Cal. Sept. 10, 2013) passim Tamkin v, CBS Broad, Inc., 193 Cal. App. 4th 133 2011).......csnanenennnee 5,6 116645088 Defendants” Notice of Motion & Motion to Strike10 u 12 13 4 15 16 17 18 cs 20 21 22 23 24 25 26 27 28 Terry v. Davis Cty. Church, 131 Cal, App. 4th 1534 (2005). White v. City of Sparks, 500 F.3d 953 (9th Cir. 2007)... Statutes Cal, Bus, & Prof. Code § 17200 Cal, Civ, Proc. Code § 425.16 Cal. Civ. Proc. Code § 425.17 Cal. Civ. Code § 1770 1,13 co passim pata ‘passim LiGosots Defendants" Notice of Motion & Motion to Strike10 u 12 B 14 15 16 7 18 19 20 21 22 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES | 1. INTRODUCTION Plaintiff Vera Serova is attempting to chill musical expression through consumer protection statutes aimed at addressing false advertising. Her claims arise from the release of Jackson’s first posthumous album, entitled Michael. She alleges three of the album’s ten songs (the “Cascio tracks”) feature lead vocals by an impostor. On behalf of everyone who purchased the songs in California, she seeks to hold Jackson’s Estate, Sony Music, and MJJ Productions (the “Jackson Defendants”) liable under the UCL and CLRA for saying in the press, on the CD, and in inextricably intertwined promotional materials that Jackson performed the vocals. Not only does the First Amendment bar Plaintiff's claims, it subjects her Amended Complaint to California’s anti-SLAPP statute. As demonstrated below, her claims arise out of the exercise of speech in connection with a public issue. And Plaintiff has no likelihood of success because the UCL and CLRA apply only to commercial speech, and the Jackson Defendants’ comments at issue are fully protected, noncommercial speech, Plaintiff's class action lawsuit, with its “in ferrorem” effect,’ and its advocacy for strict liability for supposedly (mis)identifying an artist, has the capacity to inhibit expression in books, music, television, films, comedy, and other performing arts should it proceed past this point The speech at issue here is not commercial and, therefore, is not subject to the UCL or CLRA. See Stutzman v. Armstrong, No. 2:13-CV-00116-MCE-KIN, 2013 WL 4853333, at *17-19 (ED. Cal, Sept. 10, 2013) (granting an anti-SLAPP motion on nearly identical facts); Joseph Burtsyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952) (“That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose || tiberty is safeguarded by the First Amendment.”). And that is not to say Plaintiff or the public is without a remedy, Common law fraud is an exception to the First Amendment, But it requires scienter/intent by the speaker and reliance See, e.g, AT&T Mobility LLC v. Concepcion, 563 U.S, 333, 350 (2011) (“Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims.”). Defendanis” Notice of Motion & Motion to Strike 1 ra6so45ul 12 B 14 15 7 18, 19 20 21 23 24 25 26 rus by the plaintiff, These requirements strike the proper constitutional balance between protecting the public from fraudulent statements, on the one hand, and chilling artistic (or political) expression through “strict liability” application of a UCL or CLRA class action, on the other. Cf. Klein v, Earth Elements, Inc., 89 Cal. App. 4th 965, 970 (1997) (“{tJo set the standard at perfection or no mistakes is too high a price to pay” for UCL liability). Plaintiff brought only a UCL and a CLRA claim against the Jackson Defendants, and her claims should be stricken. i SUMMARY OF ALLEGATIONS, A. The Michael Atbum Michael was released December 14, 2010, approximately eighteen months after Jackson’s death, See FAC 10, The album contains ten tracks. See id. {fj 11, 27. The album's back cover lists the titles of the songs, beneath which the following statement appears: “This album contains 9 previously unreleased vocal tracks performed by Michael Jackson. These tracks were recently completed using music from the original vocal tracks and music created by the credited producers.” See id. $27; Req, for Judicial Notice, Ex. A. Plaintiff alleges Michael was released by Sony Music, with the Estate, and that MII Productions holds the copyrights. Jd 410. Plaintiff also claims to have seen a “video ad” released on or about December 3, 2010 in Which a narrator describes Michael as “a brand new album from the greatest artist of all time.” See FAC 424, Plaintiff does not allege where or when she saw the video. Id. B. Public Controversy Regarding The Cascio Tracks Before Michael was released, the Cascio tracks became the subject of public controversy (See FAC 4911, 20-26) when several individuals close to Jackson publicly disputed that Jackson had performed the lead vocals. See FAC {| 20. On November 5, 2010, Sony “responded to questions regarding the authen city of the Cascio tracks by stating, ‘We have complete confidence in the results of our extensive research as well as the accounts of those who were in the studio with Michael that the vocals on the new album are his own.” Jd. ¥ 21, Plaintiff further alleges that, on November 11, 2010, Howard Weitzman “released a statement on behalf of Jackson’s Estate addressing the questions that had arisen regarding the authenticity of” the Cascio tracks. /d ]22. The statement identified numerous individuals, including several who 2 Defendants” Notice of Motion & Motion to Strike 66504510 Mi 12 13 14 16 17 18 19 20 21 22 2B 24 fit 26 27 28 had worked closely with Jackson during his lifetime and two forensic musicologists, who had concluded that the lead vocals on the Cascio tracks were Jackson's, Id. Although Plaintiff does not allege where the statements by Sony and Weitzman were made, from their content, it is obvious the statements were directed to the public and made in a public format, such as a press release, The issue of whether Jackson had performed the lead vocals on the Cascio tracks was also discussed by a separate defendant on “The Oprah Winfrey Show.” Id. $32. C. The First Amended Complaint Plaintiff asserts two causes of action against the Jackson Defendants: (1) violation of the | Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1770(a); and (2) violation of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof, Code § 17200, ef seg.” FAC $f] 45-59 Plaintiff bases her claims against the Jackson Defendants on four representations: (1) the statement printed on the back cover of the Michael album attributing the vocal tracks on the album to Jackson; (2) Sony Music’s public statement responding to questions about the Cascio tracks; (3) Howard Weitzman’s statement on behalf of the Estate addressing questions concerning the Cascio tracks; and (4) the statement in the video identifying the Michael album as an album “from” Jackson, ‘These statements can be categorized into two groups: (1) the Estate’s and Sony's public opinions about whether Jackson performed vocals on the Cascio tracks in response to questions from the press; and (2) the attribution of Jackson as a performer of the Cascio tracks on the album and promotional materials. As explained next, neither of these is commercial speech, and, as a result, Plaintiff's claims should be stricken. I, LEGAL STANDARD FOR ANTI-SLAPP MOTIONS California’s anti-SLAPP statute provides defendants with recourse against “Strategic Lawsuits Against Public Participation.” ‘The statute authorizes special motions to strike any “cause of action against a person arising from any act... in furtherance of the person’s right of... free speech under the United States Constitution or the California Constitution in connection with a Plaintiff asserts an additional cause of action for fraud against defendants Edward Cascio, James Porte, and Angelikson Productions, LLC. 2 Defendants’ Notice of Motion & Motion to Strike ie64s045public issue.” Cal, Civ. Proc. Code § 425.16(b)(1). Section 425.16 was enacted specifically “to provide for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional right[] of freedom of speech . ...” Club Members for an Honest Election ¥. Sierra Club, 45 Cal. 4th 309, 315 (2008). And it is “construed broadly... ..” Jd. ‘Anti-SLAPP motions require a two-step analysis. /d First, the defendant must make a threshold showing that the challenged cause of action arises from protected activity, i., that the acts of which the plaintif? complains were taken in furtherance of the defendant's right of free speech in connection with a public issue, Id The burden then shifts to the plaintiff to demonstrate the complaint is both legally sufficient and is supported by a prima facie showing of {acts sufficient to sustain a favorable judgment. See id. at 316; Navellier v. Sletten, 29 Cal. 4th 82, 88-89 (2002). Applying this two-step process to Plaintiff's claims against the Jackson Defendants, this motion should be granted IV. STEP ONE: THE JACKSON DEFENDANTS HAVE MET THEIR BURDEN BECAUSE PLAINTIFF’S CLAIMS ARISE FROM PROTECTED ACTIVITY Under the first step of the analysis, the Court determines whether Plaintiff's claims arise from one or more of the followings activities, (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any Qritten or oral statement or writing made in connection with an issue under Consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in’a place open to the public or a public forum in connection with an issue Of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest Cal. Civ. Proc, Code § 425.16(e). In making this determination, the merits are immaterial. City of Costa Mesa v. D'Alessio Invs,, LLC, 214 Cal. App. 4th 358, 371 (2013), A defendant's burden is satisfied so long as the activity the plaintiff complains about falls within at least one of the four categories. In this case, Plaintiff bases her claims on written and oral statements in a public forum on a matter of public interest, as well as conduct in furtherance of the right to free speech on a matter of public interest, See, exg., FAC $31 (“Defendants represented to the public that Michael Jackson performed the lead vocals on “Breaking News,” “Monster,” and “Keep 4 Defendanis® Notice of Motion & Motion to Strike 5045‘Your Head Up”) (emphasis added). Therefore, Plaintiff's lawsuit arises out of conduct covered in subdivisions 425.16(¢)(3) and (e)(4). ‘A. The Statements Attributed To The Jackson Defendants Were Made In A Public Forum In Connection With An Issue Of Public Interest. Plaintiff's claims arise from public statements by the Jackson Defendants regarding Jackson’s vocal performance of the Cascio tracks in the press, in promotional materials, and on the album. These statements meet both the public forum test and the public interest test; step one of the anti-SLAPP analysis is therefore easily satisfied, 1. The Jackson Defendants’ statements about Jackson’s performance of the Cascio tracks were made in a public forum. ‘The statutory phrase “public forum” is not li d to physical settings, but is interpreted broadly to include “other forms of public communication.” Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 476 (2000) (holding that a homeowners’ association newsletter is a “public forum” because it is a vehicle for discussing public issues and distributed to a large and interested community); Annette F, v. Sharon S., 119 Cal. App. 4th 1146, 1161 (2004) (holding letter to newspaper published in a public forum). The Jackson Defendants’ statements to the press, in promotional materials, and on the album itself were all made to the public in easily accessible mediums, FAC {f 21-27. Accordingly, Plaintiff's own allegations establish they were made in a public forum, The first element of section 425,16(e)(3) is thus easily satisfied. 2. The Jackson Defendants’ statements were also made in connection with an issue of public interest. An xe of public interest “is any issue in which the public is interested.” Tamkin v. CBS Broad, Inc., 193 Cal. App. 4th 133, 143 (2011) (quoting Nygard, Inc. v. Uusi-Kerttula, 159 Cal, App. 4th 1027, 1042 (2008), The issue need not be a “significant” one, “it is enough that is on which the public takes an interest.” Id. (quoting Nygdird, 159 Cal. App. 4th at 1042) ‘The Michael album—which contains the first posthumously released music written and recorded by pop superstar Michael Jackson—easily qualifies as an issue in which the public takes an interest. So, too, does the related controversy surrounding the authenticity of the Cascio 5 Defendants* Notice of Motion & Motion to Strike re6asous10 int 12 14 15 16 7 tracks. The complaint illustrates that interest: it alleges that, in California alone, thousands of individuals have purchased the Cascio tracks; it identifies numerous high-profile individuals who have publicly offered their opinions on the tracks’ authenticity; and it alleges that the controversy ‘was discussed in the press and on a segment of “The Oprah Winfrey Show.” See FAC $20, 22, 23, 25, 32, 38. Moreover, Michael Jackson’s celebrity alone is enough to make his first posthumously released album an issue of public interest, See Hilton v. Hallmark Cards, 599 F.3d 894, 906-08 (6th Cir, 2009) (holding that the anti-SLAPP statute applied to claims based on a birthday card featuring the photograph and catchphrase of celebrity Paris Hilton because Hilton's career and persona were issues of public interest), Kronemyer v. Internet Movie Database, Inc., 150 Cal App. 4th 941, 948-49 (2007) (holding the anti-SLAPP statute covers a website listing credits for ‘a famous movie). ‘The second element of section 425.16(e)(3) is therefore also met easily. B. _ Section 425.16(¢)(4) Is Also Satisfied Because The Jackson Defendants’ Speech Was In Connection With An Issue Of Public Interest. Because the activity Plaintiff complains about satisfies section 425.16(e)(3), it also satisfies section 425,16(e)(4). Subsection (e)(4) dispenses with the public forum requirement and focuses on the public interest element alone, ‘The subsection therefore applies even to private communications, as long as they concern an issue of public interest. Terry v. Davis Cmty. Church, 131 Cal. App. 4th 1534, 1546 (2005), It also protects not only pure speech, but conduct in furtherance of speech. See Tamkin, 193 Cal. App. 4th at 144, Accordingly, under section 425.16(e)(4), it does not matter whether the statements at issue were public or private (though here of course they were public), All that matters is whether they involved an issue of public interest. As discussed above, the Jackson Defendants’ statements about the Cascio tracks easily meet the test. See Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 677-78 (2010) (“{Thhere is @ public interest which attaches to people who, by their accomplishments, mode of living, professional standing or calling, create a legitimate and widespread attention to their activities.”) (internal quotations and ellipses omitted); Stutzman, 2013 WL 4853333 at *7 (Ginding that Lance Armstrong’s statements concerning whether he used performance enhancing 6 Defendanis® Notice of Motion & Motion to Strike esssoasrugs, including in promotional materials for books he had written, met the public interest test). ‘The Jackson Defendants have therefore met their burden under step one of the anti-SLAPP analysis.* Y. STEP TWO: PLAINTIFF CANNOT ESTABLISH A LIKELIHOOD OF PREVAILING ON THE MERITS OF HER CLAIM! As this action falls squarely within the anti-SLAPP statute, Plaintiff must establish a probability that she will prevail on the merits. See Cal. Civ. Proc. Code § 425.16(b)(1). To meet this burden, Plaintiff must demonstrate that the FAC is both “legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment . ...” Gilbert v. Sykes, 147 Cal. App. 4th 13, 26 (2007) (internal quotations omitted), Plaintiff cannot meet her burden because the FAC fails as a matter of law as to the Jackson Defendants. A, The UCL And CLRA Claims Apply Only To Commercial Speech And The Speech Attributed To The Jackson Defendants Is Noncommercial, California courts have interpreted the CLRA and UCL to “govern only commercial speech, Noncommercial speech is beyond their reach.” Rezee v. Sony Pictures Entm’t, Inc., 116 Cal. App. 4th 135, 140 (2004); see also Keimer v. Buena Vista Books, Inc., 78 Cal. App. 4th 1220, 1231 (1999) (“The [UCL] does not seek to restrict noncommercial speech in any manner.”), This interpretation avoids constitutional overbreadth, since the First Amendment fully protects noncommercial speech. See, e.g., Keimer, 75 Cal. App. 4th at 1231 (observing that the UCL is not constitutionally overbroad because it “is tailored to protect the public from false commercial speech,” which is less valuable than “fully protected noncommercial speech”) (emphases added); O'Connor v. Super, Ct., 177 Cal. App. 3d 1013, 1019-20 (1986) (observing that the “broad sweep” of the UCL would probably render it “fatally defective” and 3 Plaintiff may argue that the anti-SLAPP statute does not apply in this case, pursuant to the provisions of section 425.17, which exempts certain actions from the ambit of section 425.16. However the exemptions of section 425.17 do not apply to actions, such as this one, that are “based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work . ...” Cal. Civ. Proc. Code § 425.17(4) (emphasis added), Defendants" Notice of Motion & Motion to Strike 1g64sous10 n 12 | 14 15 16 7 18, 19 20 21 22 23 24 25 26 27 28 “constitutionally impermissible” if applied to noncommercial speech); New.Net, Inc, v. Lavasoft, 356 F. Supp. 2d 1090, 1110 (C.D. Cal. 2004) (“Lawsuits premised on section 17200 are subject to being stricken because they are barred by the First Amendment where the speech complained of is not commercial speech.”).4 ‘The speech Plaintiff attributes to the Jackson Defendants is either entirely noncommercial or is adjunct to noncommercial speech, and thus, beyond the reach of the CLRA and UCL. 1. The United States Supreme Court’s standard for distinguishing between commercial speech and noncommercial speech California courts follow United States Supreme Court and Ninth Circuit precedent governing whether speech is commercial under the First Amendment, See, eg., Stewart, 181 Cal. App. 4th at 685-86; Rezec, 116 Cal. App. 4th at 140-42. At its core, commercial speech is “speech which does no more than propose a commercial transaction.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983) (internal quotations omitted). In Bolger, the Supreme Court idemtified the following three factors that, when combined, support the conclusion that speech is commercial: (1) the speech is a traditional “advertisement[],” (2) the speech references 4 product; and (3) there was economic motivation behind the speech. Jd. at 66-67. However, the Court made clear that these three factors are not dispositive. Jd; see also Dex Media W., Ine. v City of Seattle, 696 F.3d 952, 958 (9th Cir. 2012) Even if the speech at issue satisfies the three Bolger factors, it loses its commercial character if itis “inextricably intertwined” with noncommercial speech. Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988), Dex Media W., Inc., 696 F. 3d at 958. The Bolger Court itself recognized as much when it observed (without deciding) that material advertising “an activity itself protected by the First Amendment” may constitute noncommercial 4 Confining California’s consumer protection statutes to commercial speech is not only necessary to avoid colliding with the First Amendment, it is required by the express terms of each statutory scheme, Each statute limits its own coverage to commercial activities. See Cal. Civ. Code §1770(a) (CLRA applies to a consumer transaction involving “the sale or lease of goods or services”); Cal. Bus, & Prof. Code § 17200 (the UCL proseribes “unfair competition,” defined as an unfair, unlawful, or deceptive “business act or practice”). 8 Defendants’ Notice of Motion & Motion to Strike 504510 12 13 14 15 16 17 18. 19. 20 21 22 23 24 25 26 27 28 speech. Bolger, 463 U.S, at 67 n.14 (citing Murdock v. Pennsylvania, 319 U.S. 105 (1943)). Where commercial and noncommercial speech are inextricably intertwined, meaning the commercial speech cannot logically be separated from the noncommercial speech, all of it is, deemed noncommercial and is fully protected. See Riley, 487 U.S. at 796, Dex Media W., Inc., 696 F.3d at 958. ‘Thus, speech that is adjunct or incidental to noncommercial speech, such as an advertisement reflecting the content of a film or magazine article, is itself noncommercial speech. See Cher v. Forum Int'l, Lid., 692 F. 2d 634, 639 (9th Cir, 1982) (First Amendment protections extend to advertising that “is merely an adjunct” of protected speech) 2, Statements responding to the public controversy concerning Jackson's performance of the Cascio tracks are not commercial speech. Plaintiff challenges public statements made by Sony Music and the Estate in response to questions from the press about the performer of the Cascio tracks. As an initial matter, both statements not only do much “more than propose a commercial transaction” Bolger, 463 U.S. at 66 (internal quotations omitted), they do not propose a commercial transaction at all, Neither statement invited or encouraged fans to purchase the album, but instead directly responded to questions raised in the media as to whether Jackson sang on the Cascio tracks. Thus, neither statement was commercial speech. Both statements also fail the Bolger test for commercial speech. Neither is a traditional advertisement, And although both statements reference the Cascio tracks, the reference is to a “product” that is subject to full First Amendment protection as a work of artistic expression Thus, any arguably commercial speech concerning them should also be deemed noncommercial, especially where, as here, the speech did not occur in an advertisement. See Bolger, 463 U.S. at 67 1.14 (mate advertising “an activity itself protected by the First Amendment” may constitute noncommercial speech); Lacoff v. Buena Vista Publ'g, Inc., 705 N.Y.S.2d 183, 610 (N.Y. Sup. Ct. 2000). Finally, Plaintiff will not be able to prove that the statements were economically motivated. The Michael album was not released for more than a month afier the statements were made, Moreover, both statements, on their face, were made in response to public questions 9 Defendants” Notice of Motion & Motion to Strike e6as045|about the identity of the vocalist on the Cascio tracks. The motivation for the statements was, thus, to participate in a public dialogue and to express Sony Music and the Estate’s points of view on a disputed issue. These are classic examples of motives and expressive activity fully protected by the First Amendment, See, e.g, Consol. Edison Co. of N.¥., Inc. v. Pub. Serv. Comm'n of N.¥., 447 US. 530, $34 (1980) (concluding that a utility company’s bill containing statements on matters such as the use of nuclear power was fully protected under the First ‘Amendment because it concerned the “arena of public discussion,” even though the statements could influence consumer's choices). Accordingly, the public statements made by Sony Music and the Estate are noncommercial speech beyond the reach of the CLRA and UCL. Statements attributing the performances to Michael Jackson are not commercial speech. Plaintiff also challenges statements on the Michael album itself and in a video that suggested Jackson performed the Cascio tracks.” Specifically, she bases her claims on a statement on the album’s back cover identifying nine of the album’s ten vocal tracks as “vocal tracks performed by Michael Jackson.” FAC § 27. Musical works and similar forms of artistic expression are the most fully protected forms of noncommercial speech under the First Amendment. See Stewart, 181 Cal. App. 4th at 682 (First Amendment protections “extend to all forms of expression, including written and spoken words (fact or fiction), music, films, paintings, and entertainment, whether or not sold for a profit’), Berger v. City of Seattle, 369 F.3d 1029, 1055 (Sth Cir. 2009) (distinguishing commercial speech from “artistic and political speech”); White v. City of Sparks, 500 F.3d 953, 957 (9th Cir, 2007) (holding that artist’s paintings “do more than propose a commercial transaction and therefore are not commercial speech”). Fundamental to this right of expression is the right of attribution of that expression to its author or performer, Thus, the statement on the back cover of the Michael album attributing its contents to Jackson was noncommercial speech. 5 [As explained below, the video did not say Jackson performed the lead vocals on all ten tracks, but for purposes of this analysis, the Jackson Defendants assume it did 10 Defendants” Notice of Motion & Motion to Strike Hsaso4s10 i 12 13 14 16 17 18. 19 20 21 22 23 25 26 27 28 ‘At a minimum, the statement was inextricably intertwined with the album's protected content. To hold otherwise—by demanding perfect certainty about the nature of a deceased performer's contribution to an expressive work—would result in Jackson’s posthumous music never being released, or its release being chilled. See Haight Ashbury Free Clinies, Inc. v. Happening House Ventures, 184 Cal. App. 4th 1539, 1547, (2010) (“The purpose [of the anti-SLAPP statute] is to curtail the chilling effect meritless lawsuits may have on the valid exercise of free speech.”) Analyzing the speech under the Bolger factors, identifying the work's author is not commercial speech. First, it does not propose a transaction, Instead, it is “informational rather than directed at sales.” Kronemyer, 150 Cal. App. 4th at 948. Second, saying who performed the songs is not in the form of a traditional advertisement. See Dex Media W., Inc., 696 F. 34 at 961. Arguably, the statement refers to a product and could be considered economically motivated (although it is hard to imagine how the labeling itself is economically motivated), but barely meeting two Bolger factors should not be enough here. The informational purpose served by these descriptions overwhelms any commercial attributes. In any event, even if naming Jackson as the performer of the Cascio tracks could be considered commercial, itis inextricably intertwined with the noncommercial elements of the Cascio songs. On facts nearly identical to those at issue here, the court in Siutzman v, Armstrong found that statements on the cover of a book and related promotional materials describing the book’s contents and its authors were fully protected, noncommercial speech because they were inextricably intertwined with expression in the books, See Stutzman, 2013 WL 4853333, at *17-19. When components of speech are “inextricably intertwined” such that a court could not parcel out the noncommercial speech from the commercial speech and apply one test to one part and a second test to another, the speech asa whole must be considered noncommercial and must be fully protected. Riley, 487 U.S. at 796. Specifically, in Stutzman, a similar putative class action, the plaintiffs brought CLRA and UCL claims against cyclist Lance Armstrong and the publishers of two of his books, alleging. © Were Jackson alive, the result might be different because he would know with certainty whether he sang the songs or not. u Defendants” Notice of Motion & Motion to Strike rr66aso8s10 in 12 13 14 15 16 7 18 19 20 21 22 23 24 25 27 28 they had misrepresented the books as truthful works of nonfiction autobiography. According to the plaintiffs, the defendants misrepresented Armstrong as a “Tour de France” winner, and the books were works of fiction containing false and misleading statements concerning Armstrong’s supposed (non)use of performance enhancing drugs. Id. at *1, The plaintiffs based their claims on, among other things, supposed advertising statements contained on the flyleaves, covers, and jackets of the books, and on statements made to the media, during television interviews, on websites, and at personal appearances made by Armstrong. Jd. at *17. Analyzing the Bolger factors, the court concluded that it need not determine whether the statements were definitively commercial speech because they were “inextricably bound to the non-commercial contents of the books” and therefore fully protected under the First Amendment. ‘Stutzman, 2013 WL 4853333, at *18. Specifically, the Court found it impossible to separate the descriptions of “the contents of the [bJooks, the [bJooks’ classification {and a description of one of its] authors, Lance Armstrong,” from the fully protected contents of the books themselves. Id. Indeed, to be sold and therefore perpetuate the publishing industry and the creation and dissemination of written expression, the district court found that there had to be some leeway to describe the work and its author without transforming the expression into commercial speech. See id? Stutzman is not an outlier. The Ninth Circuit has held that the business of producing artistic works, whether it be selling paintings, as in White, 500 F.3d at 956, or running tattoo parlors, as in Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1063 (9th Cir. 2010), is intertwined with the process of producing the artistic work and therefore is also afforded full First Amendment protection as noncommercial speech, The Ninth Circuit concluded, just like the court in Stutzman, that “without the money, the plaintiffs would not have engaged in the protected expressive activity.” Anderson, 621 F.3d at 1063; see also White, 500 F.3d at 956 Z For the Court's convenience, a copy of the Stutzman opinion is attached to this motion as Exhibit A. 12 Defendants’ Notice of Motion & Motion to Strike 650451]] (holding that the sale of paintings does not “remove[] them from the ambit of protected 2|| expression”). 3 Here it is equally impossible to separate the des n of the author/performer (Jackson) 4]] fiom the musical compositions (the Cascio tracks). Just as in Stutzman, White, and Anderson, 5] “the economic reality in this age of technology is that [music] companies and authors must 6|| promote the [music] in order to sell [it], if... [music is] to continue to be sold.” Stutzman, 2013 7|| WL 4853333, at *18. Asa practical matter, it would be nearly impossible to publish or distribute 8|] a musical album without identifying the person or persons performing on its tracks. Moreover, 9)]| the musical expres n itself often draws additional meaning through the identity of the 10 author/performer and how the work fits into the artist’s personal life and work as whole. ‘Thus, 11 || even if the statement on the Michae/ album identifying Jackson as the performer of the Cascio 12] tracks could otherwise be deemed commercial speech (which it cannot), it is inextricably 13||) intertwined with the album’s noncommercial contents (ie., the musical expression). It is 14]] therefore treated as noncommercial speech under the First Amendment and the California 15 |] consumer protection statutes do not apply. . Alternatively, The Statements In The Press And The Video Did Not Contain a Any False Or Misleading Statements About Whether Jackson Performed ‘The Vocals On The Cascio Tracks, 18 1. Neither the Estate nor Sony Music claimed Jackson performed lead 19 vocals to the press. 20 With respect to Sony Music and the Estate’s statements in the press, Plaintiff attempts to 21} attribute to these defendants a statement of fact they did not make. Neither said that Jackson By contrast, in Keimer, the court held that statements printed on the cover of a book constituted commercial speech where, rather than describing the book’s author, contents, or 24]! genre, they repeated false statements made in the book itself. Keimer, 75 Cal. App. 4th at 1227- 1232. That is not at issue here. Moreover, when a New York court considered whether these same statements were commercial speech, it expressly disagreed with Keimer and determined the 26|| statements were noncommercial. See Lacoff, 705 N.Y.$.2d at 610, Applying the Bolger test, the New York court recognized as “paramount that the speech is not referring to a product such as 27] condoms, as in Bolger, . . . but rather it refers to a book, the content{] of which [itself is] protected by the First Amendment.” Id. 13, Defendants’ Notice of Motion & Motion to Strike a6ss04s10 WW 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 performed the Ca io tracks, Rather, Sony and the Estate said they performed an investigation and they were confident in their opinion that it was Jackson performing. See FAC § 21 (“Sony responded[,] ‘We have complete confidence in the results of our extensive research as well as accounts of those who were in the studio with Michael that the vocals on his new album are his own,”); id. 22 (Weitzman’s statements identified people who also thought Jackson performed the vocals on the Cascio tracks), ‘These statements cannot form the basis of any CLRA or UCL, claim because by their very nature they are non-actionable opinions (in the case of Sony Music) or are not even attributable to one of the defendants (in the case of the Estate). See Bruton v. Gerber Prods, Co., 961 F. Supp. 2d 1062, 1095 (N.D. Cal. Sept. 6, 2013) (statements that amount to mere opinion are not actionable under the CLRA or UCL). Jackson had died, and none of the defendants was even in a position to have actual knowledge, nor did they represent that they did. Thus, Plaintiff will never be able to prevail based on these statements. 2. Plaintiff will not prevail on her claims with respect to the video because nothing in it is false or misleading, Plaintiff also cannot rely on the video to prevail on her CLRA and UCL claims because the video contains no false or misleading content. “The standard to be used in evaluating whether an advertisement is deceptive under the UCL is purely a question of law.” Lavie ¥. Procter & Gamble Co., 105 Cal. App. 4th 496, 503 (2003). The evaluation must be from the standpoint of a reasonable consumer. Hill v. Roll Int'l Corp., 195 Cal, App. 4th 1295, 1304 (2011). Here, the only statement in the video concerned the Michael album as a whole, See FAC 4124 (alleging that the video featured a voiceover narration stating, “a brand new album from the {greatest artist of all time”). ‘The video does not mention the Cascio tracks, or even identify any of the songs included on the album, Nor does it state how many tracks the album contains, or how many of those tracks feature a vocal performance by Jackson. The only thing the video conveyed was that Michael was a new album “from” Michael Jackson. This was true, 4 Defendants’ Notice of Motion & Motion to Strike rresasotseo It is undisputed that at least seven out of the ten songs on the album contained vocal tracks performed by Michael Jackson.” Accordingly, there is nothing false nor deceptive about a statement characterizing Michael as a Michael Jackson album, No reasonable consumer would understand such a statement to mean that Jackson performed every portion of every vocal track for every song on a ten-song album. Indeed, countless artists, including Jackson, the Beatles, Nirvana, etc., have released musical albums under their own name featuring performances by guest vocalists and musicians, ‘The video did not promise a certain number of songs performed by Jackson, nor that every sound on the album was generated by Jackson. The only thing it “promised” is that it contained music written, performed, and/or produced by Jackson. As such, it was not false or deceptive for the video to characterize the album as an album “from” Michael Jackson, To the extent Plaintiff’ claims are based on the video, they fail as a matter of law. VI. CONCLUSION ‘The Jackson Defendants have met their burden to show the anti-SLAPP statute applies because Plaintiff's claims against them arise from protected activities, The burden then shifts to Plaintiff to show the probable validity of her claims, But Plaintiff can never meet her burden. Respectfully, the motion should be granted. DATED: February 3, 2016 KATTEN MUCHIN ROSGNMAN LL] By: ws Zia F /Modabber (tomeys for The Jackson Defendants DATED: February 3, 2016 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman a ene Za ‘Attomeys for The Jackson Deféndants By ° Jackson also co-wrote and co-produced the three songs on the Cascio tracks. See FAC 11; Reg. for Judicial Notice, Ex. A. 15 Defendants® Notice of Motion & Motion to Strike Hasssu4sEXHIBIT A‘Stutzman v, Armstrong, Slip Copy (2013) 2013 WL 4853333, Only the Westlaw citation is currently available. United States District Court, ELD. California, Rob STUTZMAN, et al, Plaintifis, Lance ARMSTRONG, et al., Defendants. ‘No, 2:13-CV-00116-MCE-KIN. | Sept. 10, 2013, Attorneys and Law Firms Clyde Talbot Tumer, PHV, Tumer and Associates P.A. North Little Rock, AR, Etie J. Marcy, PHV, Kevin Roddy, Wilentz, Goldman & Spitzer, P.A., Woodbridge, NJ, Henry H, Rossbacher, The Rossbacher Firm, Los Angeles, CA, ‘Tracey Stevens Buck-Walsh, Law Office of Tracey Buck: Walsh, Healdsburg, CA, for Piaintifts Zin F. Modabber, Katten Muchin Rosenman, Los Angeles, CA, F, Matthew Ralph, PHV, Dorsey & Whitney, LLP, ‘Minneapolis, MN, Jonathan Michael Herman, PEIV, Dorsey & Whitney LLP, New York, NY, Kent Jeffrey Schmit, Katherine J, Santon, Dorsey & Whitney LLP, Costa Mesa, CA, Stephen George Contopulos, Sidley Austin, LLP, Los Angeles, CA, Robert Andrew Sacks, John Darrow Echeverria, Sullivan And Cromwell LLP, Los Angeles, CA, Mare S, Harris, Scheper Kim & Harris LLP, Los Angeles, CA, for Defendants. MEMORANDUM AND ORDER MORRISON C, ENGLAND, JR., Chief Judge. “1 ‘Through this action, Plaintiffs Rob Stutzman, Jonathan Wheeler, Gloria Lauria, David Reimers, and Scott Armstrong (ollectively “Plaintiffs") sock redress for violations of California law arising from alleged mistepresentations contained in and related to Defendant Lance Armstrong's books, including 1's Not About the Bike: My Journey Back to Life, published by Defendant Penguin Group, and Every Second Counts, published by Defendant Random House." Generally, Plaintiffs allege that Defendant Armstrong and the Publisher Defendants, along with Defendants William Stapleton and Thomas Weisel, misled consumers by WESTLAW. representing the Anmstrong Books as truthful works of nonfiction biography, when in fact these books were works ‘of fiction containing false and misleading statements Plaintiff, on behalf’ of themselves and others similarly situated, brought claims for violations of California's Consumer Legal Remedies Act, Cal. Civ.Code §§ 1750 et seg. (CCLRA"); California's Uniuir Competition Law, Cal. Bus. & Prof.Code §§ 17200 et seg. ("UCL"); California's False ‘Advertising Law, Cal. Bus, & Prof.Code §§ 17500 et seq. (PAL; negligent misropresentation; and fraud and deceit, (Pls Compl,, ECF No. 22.) Fach Defendant filed an anti- SLAPP? Motion to Strike the First Amended! Complaint, portions thereof, pursuant to California Civil Procedure Code section 425.16. (Def. Random House Mot. Strike, April 26, 2013, ECF No, 36; Def, Penguin Mot. Strike, April 26,2013, BCE No, 42; Def. Armstrong Mot, Strike, April 26, 2013, ECF No, 47; Def, Weisel Mot. Suike, June 3, 2013, ECF No. 55; Def. Stapleton Mot. Strike, June 3, 2013, ECF No. $7.) Specifically, Defendants Random House, Penguin, Weisel, and Stapleton filed anti-SLAPP motions to strike cach of | Plaintiff eauses of action pursuant to section 425.16 (ECF Nos. 36, 42, 55, 57), while Defendant Armstrong moves to strike only Plaintiff’ CLRA, UCL, and FAL claims (ECF No. 47), Plaintiffs filed a timely opposition to each motion, (Pls! Opp'n to Armstrong Mot, June 17, 2013, ECF No, ‘64; Pls! Oppin to Publisher Mots, June 17, 2013, ECF No, 65; Pls! Opp'n to Defs. Weisel & Stapleton Mots, July 8, 2013, ECE No. 76.) The Court held oral argument on the Motions to Strike on August 8 2013, and took the matters under submission, (See ECF No. 102.) For the reasons set forth below, Defendants Motions to Strike are GRANTED. BACKGROUND* ‘This class action arises ftom alleged misrepresentations contained in and disseminated about Defendant Lance Armstrong's books, 1's Not About the Bike: My Journey Back ‘o Life, published by Defendant Penguin Group beginning jn May 2000 and sold throughout Califomia since that date, and Every Second Counts, published by Defendant Random House beginning in January 2003 and sold throughout California since that date, Also at issue are Defendant Lance Armstrong's books The Lance Armstrong Program: 7 Weeks tothe Perfect Ride, published beginning in September 2000 and sold throughout California since that dat; Lance‘Stutzman v. Armstrong, Slip Copy (2013) Armstrong: Images of a Champion, published beginning in June 2004 and sold throughout California since that date; and Comeback 2.0: Up Close and Personal, published beginning in December 2009 and sold throughout California since that date, I's Not About the Bike: My Journey Back to Life was a number one best sell on the New York Times’ best seller list, ‘was on the hardcover bestseller lists for twenty-four weeks, ‘and was on the paperback best seller list for twenty-two weeks. Every Second Counts was also abest seller. According to Plaintiffs, the suecess of Every Second Counts and It * [Not About the Bike permitted Armstrong to publish and sel, and thereby profit from, the other three books at issue. *2 Plaintiffs alleged that during the Class Period the books were sold to consumers in hardback, paperback, electronic, and audio book editions. Throughout the Class Period, Defendants’ advertising, marketing, publicity, and ‘other promotional efforts for the books represented these ‘books as truthful and honest works of nonfiction biography or autobiography when, in fact, Defendants knew or should have known that these books were works of fiction, Planttis allege that they were misled by Defendants’ statements ‘and purchased the books based upon the false belief that the books were “truthful and honest works of nonfiction biography.” (ECF No. 22 at 3.) Plaintiffs would not have purchased these books, or would have not paid as much money for the books, had Plaintiffs known the truth ‘conesining Armstrong's les and misconduct and his admitted involvement in a sports doping scandal that has led to his recent public exposure and fll from glory. Plaintiffs further allege that prior to and during the Class Period, Defendants engaged in a scheme to deftaud ‘consumers, inchiding Plaintiffs and Class Members, by creating and perpetuating the Lance Armstrong “brand” to enable Defendants to reap millions of dollars in unlawfal profits, According to Plaintiffs, beginning in 1998, if not earlier, the Lance Armstrong “brand” was created by Defendant Armstrong, his financier and cycling team owner, Defendant Thomas W. Weisel, and his agent-manager, Defendant William J. Stapleton Plaintiffs llege that an integral part of the “multi- faceted scheme to defraud Plaintiffs” was the publication, advertising, marketing, and sale of the books throughout California, On the books’ covers and flyleaves, as well as in advertisements, marketing, and promotional materials, Defendants portrayed Armstrong asa “regular, hardworking, motivated, complicated, occasionally pissed-oft, T-shirt WESTLAW © 2075 Thains wearing guy," and as a devoted advocate for cancer patients. (ECF No. 22 at 22.) Plaintiffs claim that during the period from 1999 through 2012, Defendants knew that if the public believed that Armstrong had used performance ‘enhancing drugs, Defendants would be unable to sell these ‘books and the books would not be best sellers. Thus, according to Plaintiffs, another integral part of the seheme to deftaud Plaintiffs, while maintaining and growing the Lance Armstrong “brand,” was to vociferously and publicly deny any charge that Armstrong used performance enhancing drugs. Both Defendants Armstrong and Stapleton made such public denials from July 1999 through August 2012. Plaintiffs allege that such false and misleading denials were made uring interviews broadcast on television worldwide, in print ‘media, and in sworn testimony. Furthermore, Plaintiffs claim that “another part ofthe scheme ‘was the agreement, tacit or otherwise, on the part of the ‘book publishers” Random House and Penguin “to ignore and! or avoid conducting a careful investigation into the merits of the doping charges that were repeatedly leveled against Amnstrong during 1999 through 2012." (ECF No, 22 at 5.) Plaintiffs allege that the Publisher Defendants refused to make such an investigation so that they could continue advertising, marketing, and selling t's Not About the Bike and very Second Counts and thereby continue to profit. 3 “Sometime between 2001 and 2003,” Plaintiff Stutzman “leamed about the book I's Not About the Bike.” (ECF No. 22 at 7.) Plaintiff Stutzman bought the book and read it cover to ‘cover; he found the book compelling and recommended the book to several friends. Plaintiff Wheeler followed Defendant ‘Armstrong's eatly eyeling career and his cancer diagnosis and treatment, and purchased a copy of Ie Not About the Bike shorly after it was published. Plaimiff Wheeler purchased the book aftr “learning through the media about [Defendant] Armstrong's supposedly truthful and inspiting account of his triumphant return to dominate the world of eyeling after his dovastating bout with testicular cancer.” (d. at 8.) Wheeler “was so impressed with 1's Not About the Bike .. that he bought Armstrong's follow-up book, Every Second Counts (Ud. at &-9.) Plaintiff Lauria currently has breast cancer, and “was inspired by advertising featuring eports of Armstrong's -successfil battle against cancer, which moved her to purchase [Defendant] Armstrong!s books.” (Id. at 9.) Having learned that Armstrong took performance enhancing drugs to win races has left Plaintiff Lauria “bitterly angry,” and she would not have purchased either book had she known that Defendant Armstrong had used such drugs, (Id.)‘Stutzman v. Armstrong, Stip Copy (2013) Plaintiff Reimers purchased 1s Not About the Bike after seeing “advertisements regarding Armstrong's remarkable comeback t ‘win’ the Tour de France cycling race after conquering testicular cancer..." (Jd) Finally, Planttt Scott Armstrong ("S.Armstrong”) followed Defendant Armstrong's caresr, found Defendant Armstrong's career inspiring, and believed Defendant Armstrong's claims that he did not use performance enhancing drugs. “Relying on Defendant Armstrong's representations as to his drug-free life and cycling carece, [Plaintiff] S. Armstrong purchased and read It's Not About the Bike.” (Id. at 10.) Because Plaintiff ‘8, Armstrong belicved that Defendant Armstrong had told the truth in this book, Plaintiff $. Armstrong recommended the book to his friends, “[Plaintiff] $. Armstrong also read Every Second Counts due to his belief in Armstrong's false and misleading representations as to his drug-ffee life and cycling career.” (Id) Plaintiff S. Armstrong would not have purchased or read ether book had he known that Armstrong's representations regarding his use of performance enhancing, drugs were false. STANDARD California's anti-SLAPP (strategie lawsuit against public participation) statute is designed to discourage suits that masquerade as ordinary lawsuits but are brought to deter ccotnmon citizens from exercising their political or legal rights ‘or to punish them for doing so.” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir.2003). The statute provides: ‘A cause of action against a person arising from any act of that person in furtherance of the person's right Of petition or free speech under the United States Constitution or the California Constitution in connection ‘with a public issue shall be subject to 44 special motion to strike, unfess the ‘court determines that the plaintiff has established that thore is @ probability that the plaintiff will prevail on the claim, “4 Cal.Civ-ProcCode § 425.16(b)1). The anti-SLAPP statute “was enacted to allow early dismissal of meritless first amendment eases aimed at chilling expression through costly, time-consuming litigation.” Metabollfe Int J, Inc. v Wornick, 264 F.3d 832, 839 (9th Cir-2001). In pat California Legislature found: ar the ‘There has been a disturbing increase in lawsuits brought primarily to chill the valid exercise ofthe constitutional rights of freedom of speech and petition forthe redress of grievances. ‘The Legislarure finds and declares that it is im the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. Cal.Civ-Proe.Code § 425.16(a). The California Lezislature specifically provided that the anti-SLAPP statute should be “construed broadly." Id. see Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1119, 81 CalRptr2d 471, 969 P.2d S64 (1999), ‘The anti-SLAPP motion is available in federal court. Thomas ». Fry's Elecs., Inc., 400 F.34 1206 (9th Cir2005) (per curiam), The court must evaluate an anti-SLAPP motion in two steps, First, the defendant moving to strike must make “a threshold showing ... that the act or aets of which the plaintiff complains were taken ‘in furtherance of the [defendant] right af petition or fee speech under the United States or California Constitution in connection with a public issue,’ as defined in [subsection (¢) of] the statute.” sition Hallmark Cards, $99 F.3d 894, 903 (9th Cit 2010) (quoting Cal.Civ.Prov.Code § 425.16(0)(1)) Second, “[iJf the court finds that such a showing bas been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim, Navellier v. Sleten, 29 CalAth 82, 124 Cal.Rptr.24 530, 52 P.3d 703 (2002); see also US, ex rel. Newsham v. Lockheed Missiles & Space Co, In., 190 F.3d 963, 971 (9th Cir. 1999), “Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment ifthe evidence submitted by the plaintift is credited." Wilson v. Parker, Covert & Chidester, 28 Cal ath 811, 821, 123 Cal.Rptr.2d 19, 50 P.3d 733 (2002) (internal ‘quotation marks omitted); Barcel v. Smith, 333 F.3d 1018, 1024 (9th Cir.2003).“[T]hough the court does not weigh the credibility or comparative probative strength of competing cevidence, it should grant the motion if, a8 a matter of law, the defendant's evidence supporting the motion defeats the‘Stutzman v. Armstrong, Slip Copy (2013) plaintis attempt to establish evidentiary support for the claim,” Wilson, 28 al.4that 821, 123 Cal. Rpt. 2d 19, 50P.34 733; Cal.Civ.Proc-Code § 425.16(b)(2). Thus, “(the statute “subjects to potential dismissal only those actions in which the plaintiff cannot state and substantiate a legally sufficient claim.’ " Navellier, 29 Cal-th at 92, 124 Cal. Rpt.24 530, 52 P.3d 703, “Only a cause of action that satisfies both prongs of the antiSLAPP statute—ie, that arises from protected speech ‘or petitioning and lacks even minimal merit—is a SLAP, subject to being stricken under the statute.” Navellier, 29 Cal.Ath at 89, 124 Cal Rptr.26 530, $2 P.3d 703. ANALYSIS. 5 In deciding the instant anti-SLAPP motions to strike, the Court must address three major issues. First, the Court must determine whether Defendants have met their burden by ‘making a threshold showing thatthe acts of which Plaintifis ‘complain were taken in furtherance of Defendants’ right of fiee speech in connection with a public issue. Second, the Court must address Plaintiffs! contention that the First, ‘Amended Complaint is exempt from anti-SLAPP motions pursuant to California Civil Procedure Code § 425.17 Finally, the Coust must determine whether Plants have met their burden of making a threshold showing that Plaintiff’ First Amended Complaint is legally sufficient and supported showing of facts. Each issue is addressed in A, Defendants! Burden 1. Protected Conduet Fitst, the activity the plaintiff challenges must have been conducted “in furtherance” of the exercise of free specch rights, Hilton, $99 F.3d at 903. “By its terms, this language includes not merely actual exercises of free speech rights but also conduct that furthers such rights.” Id. (citing Cal.Civ-Proe.Code § 425.16(e)(4); Navellier, 29 Cal-th at 94, 124 CalRpir.2d 530, $2 P.3d 703 ("The [California) [Ijegislature did not intend that in order to invoke the special ‘motion to strike the defendant must first establish her actions are constitutionally protected under the First Amendment as ‘a matter oflaw.”)), As used in the anti-SLAPP statute, an “act in furtherance of 1 person's right of petition or free speech under the United States of California Constitution in connection with a public issue” includes: (1) any written or oral statement or waiting made before a legislative, exeeutive, or judicial proceeding, ‘or any other official proceeding authorized by law; (2) any ‘written of oral statement or writing made in connect ‘with an isue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made ina place open to the public or « public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in ‘connection with « public issue or an issue of public interest. Doe v. Gangland Prods, Ine., 802 F.Supp.2d 1116, 1119-20 (CD.Cal.2011) (quoting Cal.Civ.Proe.Code § 425.16(¢) Here, each Defendant contends that the activity alleged by Plaintiffs was “conduct in furtherance of the exercise of. the constitutional right of free speech in connection with a public issue or an issue of public interest,” this meeting the fourth type of actin furtherance of the right to free speech in connection with a public issue. See Cal.Civ.Proe.Code § 425.16(€¥4). “Section 425.16 does not define ‘public interest” or ‘public issue.’ Those terms are inherently amorphous and thus do not lend themselves to a precise, all-encompassing definition." Clampus Vitus ¥, Steiner, 2:12-CV-01381-GEB, 2012 WL. {6608612 (E.D.Cal, Dec.18, 2012) (quoting Crass v. Cooper, 197 Cal App.dth 357, 371, 127 Cal Rptr3d 903 (2011). However, “[Jhe California intermediate appellate courts have developed multiple fests to determine whether a defendant's activity is in connection with a public issue.” Hilton, $99 F.3d at 906. In Hilton, the Ninth Circuit applied two tess one from Rivero v. American Federation of State, County, «and Municipal Employees, AFL—CIO, 105 Cal.App.Ath 913, 130 Cal.Rptr-2d 81 (2003), a case from the Court of Appeal for the First District, and one from Weinberg v. Feissal, 110 CalApp-lth 1122, 2 Cal. Rptr.3d 385 (2008), a ease from the Court of Appeal for the Third District. fd 6 In Rivero, the Court of Appeal for the Fitst District surveyed the appellate cases and formulated three categories ff public issues: (1) statements “concernfing] @ person ‘or ently in the public eye"; (2) “conduct that could directly affect a large number of people beyond the direct participants”; (3) “ora topie of widespread, public interest.” Gangland Prods., 802 F Supp.24 at 1123 (citing Rivero, 105 CaLAppath at 924, 130 Cal.Rptr.2d 81; Comm. EnergyStutzman v, Armstrong, Slip Copy (2013) Corp. v. Investor Data Exch, 110 Cal.App.sth 26, 33, I CalRptr-3d 390 (2003) (describing Rivero as the first systematic eatment of the “public issue-public interest aspect” ofthe anti-SLAPP statue), Hero, it is without question that statements concerning Lance ‘Amstrong “concern a person or entity in the public eye” and/or are “a topic of widespread, public interest.” Lance Armstrong is a famous cyclist and his career is a topic of interest worldwide. See Hallmark, 599 F.3d at 907 (finding Paris Hilton a “person in the public eye” and a “topic of ‘widespread, public interes,” and she was before the lawsuit ‘began). The Armstrong Books also attained the status of New York Times Bestsellers, The Court therefore concludes that the Books, and Defendant Armstrong himself, were a topic of widespread public interest, See Wallace v. Hen derson, CIV (09CV1603-L(WMC), 2010 WE 1290911 (S.D.Cal. Mar. 30, 2010) (finding book on New York Times best seller list a topic of widespread public intorest) (citing Kronemyer v. Internet Movie Data Base, Inc, 150 Cal.App.4th 941,949, 59 Cal.Rptr 3d 48 (2007) (information about the motion picture “My Big Fat Greek Wedding” was a topic of widespread public interest because it was a successful independent ‘motion picture) In Weinberg, the Court of Appeal for the Third Distrit articulated a “somewhat more restrictive test, designed to distinguish benween issues of ‘public, rather than merely private, interest. " Hilton, $99 F.3d at 906 (quoting Weinberg, \N0 Cal.App.Ath at 1132, 2 Cal-Rptr-3d 385). First, “public interest” does not equate ‘with mere curiosity. Second, 2 matter ‘of public interest should be something ‘of concem to a substantial number ‘of people, Thus, a matter of concert to the speaker and a relatively small, specifie audience is not a matter of public interest. Third, there should be ‘some degree of closeness between the challenged statements and the asserted publi interest; the assertion ofa broad and amorphous public interest is not sufficient, Fourth, the focus of the speaker's conduct should be the public interest rather than a mere effort to gather ammunition for another round (of private controversy. Finally, . [a] person cannot turn otherwise private information into a matter of public NESTLAW © 2016 Thomeon Reuters. Ne inerest simply by communicating ito «large number of people.” Hilton, 599 F.3d at 906-07 (quoting Weinberg, 110 Cal.App 4th at 1132-33, 2 Cal Rptt.3d 385) In Hilton the Nisth Circuit found that it need not decide between these two tests, as both were met. The same is true here. As in Hilton, there is no dispute that Lance Armstrong's career, and the Books, which he wrote about his career and which Defendants published, are “something ‘of concem to a substantial number of people.” Weinberg, 110 Cal.App.tth at 1132, 2 Cal.Rptr.34 385. The conection between “the challenged statements""—portions of the Books and the promotional materials conceming the Books, as well as statements Armstrong and other Defendants made publicly denying his use of performance enhancing drugs—and “the asserted public interest”—Armstrong’s life, image, eyeling careet, and doping—is direct. See Hilton, 599 F.3d at 907. ‘After all, the Books and statements concer Armstrong's public image, career, and the doping issue. Because there ‘was no preexisting controversy between any of Defendants and Plaintiffs, “the fourth and fifth considerations that the Weinberg court considered are inapposite.” See Hilton, 599 F.3d at 907 (citing Weinberg, 110 Cal. App ath at 1132-33, 2 Cal Rptr3d 385). #7 In Hilton, the Ninth Circuit emphasized that * ‘public interest” does not equate with mete curiosity.” 599 F.3d at 907 (citing 110 Cal.App. 4th at 1132). However, the Ninth Circuit observed that “this warning comes in the context ‘of Weinberp’s insistence that courts apply the anti-SLAPP ‘statute only to public, not fo private matters. Thus, Weinberg elaborated that “a ‘public controversy” does not equate with any controversy of interest to the public.” Id. (quoting 110 CaLApp th at 1132, 2 Cal.Rptr3d 385). Accordingly, the [Ninth Cinouit “read this to mean that a private controversy, ‘even between famous people, that interests the public is not enough, Under Weinberg, for the activities of celebrities to be a public issue, the activities, as well as the personages involved must be public.” Jd, at 907-08, 2 Cal-Rptr.3d 385 (iting 110 Cal. App.4th at 1132, 2 Cal Rptr.3d 385). This Himitation doos not apply in this ease, however, as the Armstrong Books do not concem only the personal details of Armstrong's life—they concer his public eycling career ‘and cheating in the Tour de Franoe—publie activities, “which are the very things that interest people about [him]." See Hilton, $99 ¥.36 at 908. While the Books do address certain aspects of Armstrong's private life, such as his battle withStutzman v, Armstrong, Slip Copy (2013) cancer, his marriage, and the birth of his children, the books focus on Armstrong's cycling career and his return to eycling to.win the Tour de France. Thus, Weinberg also supports 2 finding thatthe conduct Plaintiffs allege was “in furtherance of the exercise of. the constitutional right of five speech in ‘connection witha public ise or an issue of public interest.” Cal.Civ. Proc Code § 425.1642), (€)(4). ‘As such, under both tests used by the Ninth Circuit, the alleged conduet—including the speech in the Books, about the Books, and the conduct in furtherance of that speech, such as the alleged aiding and abetting by Defendants Weise! and Stapleton—was in furtherance of the exercise of the constitutional right of free speech in connection with public issue or an issue of public interest. The alleged ‘conduct therefore meets the requirements of California Civil Procedure Code section 425.16(e)4). As such, Defendants ‘meet thei threshold burden under the anti-SLAPP statute, Defendants also argue that the actions at issue are written ‘or oral statements or writings made in a place open to the public or in a public forum in connection with an issue of public interest, thus meeting the requirements of section 425.16(e)3). However, the Court need not analyze whether the requirements of subsection (e) (3) are satisfied, as the requirements of subsection (e)(4) are met. See supra 2. Megal Conduct Plaintiffs contend that California's ant-SLAPP statute docs not provide a shield for speech made in furtherance of ‘Armstrong’ illegal activity. (ECE No. 64 at 15. Its true that “the anti-SLAPP statute cannot be invoked by a defendant whose assertedly protected activity is illegal as matter ‘of law, and for that reason, not protected by constitutionel ‘guarantees of free speech and petition.” Lauter v. Anoufrieva, {642 F Supp.2d 1060, 1108 (C.D.Cal.2009) (citing Flarley v. ‘Mauro, 39 Cal.Ath 299, 317, 46 Cal pir 3d 606, 139 P3d 2 (2006)), However, under California state law, conduct that ‘would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage simply because it is alleged to have been unlawful oF unethical. 1d (citing Birkner v, Lam, 156 Cal.App Ath 275, 285, 67 Cal.Rptr-3d 190 (2007). ‘The question of whether a defendants underlying conduet \vas illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing. Md. (citing Flatley, 39 Cal.dth at 320, 46 Cal Rptr,3d 606, 139 P.3d 2). The asserted protectod speech or petition activity loses protection only ifitis established through defendant's concession or by WESTLAW 2016 Thamison Reuters. No dali to on luncontroverted and conclusive evidence that the conduct is itlegal asa mater of law, 1d, at 1108, 46 Cal. Rptr.34 606, 139) P.3d 2 (citing Flatley, 39 Cal 4th at 320, 46 Cal.Rptr. 3 606, 13934 2; Salma v. Capon, 161 Cal.App.4th 1275, 1287, 74 Cal Rptr3d 873 (2008). *8 In this case, there are two issues with respect to Plaintiff argument that the criminal exception to the anti- SLAPP statute applies. First, Plaintiff argues that the Court ‘must accept as true Plaintiffs’ allegations that Armstrong's ‘underlying conduc is illegal. (ECF No. 64 at 16.). However, Plaintiffs fail to provide conclusive evidence thatthe conduct at issue—Armstrong’s statements that he did not dope, the content of the book, and the promotional materials for the ‘book-—is criminally illegal. Second, the so-called “criminal exception” applies only if the underlying protected conduct at issue is itself criminal. Plaintiffs focus on Armstrong's illegal conduct in smuggling or trafficking drugs. (ECF No. 64 (*[I]here is already evidence of USADA'S uncontested cchaeges of drug trafficking and criminal conspiracy against Armstrong... and a national TV interview in which ‘Armstrong confessed to years of lies”).) However, drug trafficking and eriminel conspiracy is simply not the conduct tissue in this case, The conduct at issue is the speech about the book and Armstrong's speech about whether he used drugs. Armstrong’ les about his use of drugs are simply not criminal conduct ‘Thus, Plaintiff’ argument that Defendants are not entitled to the protection of the anti-SLAPP statute because the underlying conduct is illegal is without merit. B, Statutory Exemptions 1m 2003, the California Legislature enacted section 425.17 to curb the “disturbing abuse” of the anfi-SLAPP statute, CalCiv.ProeCode § 425.17(a). “This exception statute covers both public interest lawsuits, under subdivision (b), and “commercial speech,” under subdivision ().” Club ‘Members For An Honest Election v. Sierra Club, 45 Cal. Ath 309, 316, 86 Cal Rpwr.3d 288, 196 P.3d 1094 (2008). In this ease, Plaintiffs contend that both section 425.17(b) and (© exempt Plainsf’ First Amended Complaint from an anti-SLAPP motion, However, Defendants respond that even if these statutory exemptions apply, Defendants meet the statutory exception to the exemptions, set out in section 425.178), ‘Unvler California Civil Procedure Code section 425.17(b), the anti-SLAPP procedure “does not apply fo any action brought‘Stutzman v, Armstrong, Slip Copy (2013) solely inthe public interest oron behalfofthe general public.” CalCiv.Proc.Code § 425.17(b). The exemption of section 425.17(b) applies only if each of the following conditions is met (1) the plaintiff does not seek any relief greater than oF different from the relief sought for the general public or ® class of which the plaintiff is a member; (2) the action, if successful, would enforee an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons; and 3) private enforcement is necessary and places a isproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter. Cal. Civ-ProcCode § 425.17(b). To be exempt, the action must be “brought solely in the public interest or on behalf of the general public” and meet the three conditions set forth in section 425.17(b). Strathmann v. Acacia Research Corp, 210 Cal.Appath 487, 499, 148 Cal Rptr3d 361 (2012). “[TIhe term ‘public interest’ is used to define suits brought for the public's good or on behalf of the public.” Ja. (quoting Club Members, 45 Cal.4th at 318, 86 Cal Rptr3d 288, 196 P.3d 1094), The term “solely” as used in section 425.17(b) “expressly convoys the Legislative intent that section 425.17(b) not apply to an action that secks @ more narrow advantage for a particular plaintiff.” Jd. (quoting Club ‘Members, 45 Cal.sth at 316-17, 86 Cal.Rptr.34.288, 196 P.3d 1094), *9 Califomia Civil Procedure Code section 425.17(¢) lays cout the so-called “commercial speech exemption” tothe anti SLAPP procedure, Cal,Civ-Proc.Code § 425.17(6); see also TYR Sport Inc. v. Warnaco Swimwear Inc., 619 ¥.Supp.2d 1120, 1142 (C.D.Cal.2009); Weiland Sliding Doors & Windows, Inc v, Pan da Windows & Doors, LLC, 814 F.Supp. 1033, 1036 ($.D.Cal.2011). Under subsection (c), causes of | action arising from commercial speech are exempt from the anti-SLAPP law when: 1) The cause of action is against a person primarily engaged in the business of selling or leasing goods or services; 2) The cause of action arses from a statement or conduct by that person consisting of representations of fact about that person's ora business competitor's business operations, goods, orservices; 3) The statement or conduct was made either for the purpose of obtaining approval for, promoting, of securing sales ot leases of, of commercial transactions in, the person's goods or serviees or inthe course of delivering the person's goods or services; and 4) The intended audience is an actual or potential buyer fo customer, or person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or censtomer, Weiland Sliding Doors & Windows, In, 814 F.Supp. at 1037 (iting Simpson Strong-Tie Co. v. Gore, 49 Calsth 12, 30, 109 Cal Rpte.34 329, 230 P.3d 1117 (2010) “The exemptions of sections 425.17(b) and (c) do not apply to “any person engaged in the dissemination of ideas or ‘expression in any book or academic journal, while engaged in the gathering, receiving, or processing of information for communication t0 the public.” Cal.Civ.Proc.Code § 425.17(@)(1} Likewise, subdivisions (b) and (c) do not apply to “[alny setion against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, politcal, orartstie wor, including, but net limited to, a motion picture or television program, or an article published in a newspaper ‘or magazine of general circulation." Cal. Civ.ProcCode § 425.17%(€)(2). Thus, claims falling within the parameters of subsection (d) are “excepted fiom the section 425.16 exemption” of subsections (b) and (@). Ingels v, Westwood ‘One Broadcasting Services, Inc, 129 Cal.App.ath 1050, 1067, 28 Cal. Rptr.34 933 (2005); see also Club Members, 45 Cal,4th at 320 n, 9, 86 Cal Rptr3d 288, 196 P.3d 1094 Few cases have dealt with the application of subsection (@), and the parties present no cases determining whether subseetion (d) applies to publishers and individuals connected ‘withthe creation and distribution of published book. Where there is no binding authority, s court must undertake to ascertain the meaning of the statute by use of statutory interpretation. See, eg, Tellov. MeMahon, 677 F Supp. 1436, 1441. (E.D.Cal.1988). Thus, the issue before the Court is the proper interpretation of this statute. Major v. Silna, 134 CalApp-th 1485, 1493, 36 Cal.Rptr3d 875 (2005) (citing R & P Capital Resources, Inc. v. Cal. State Lottery, 31 CaLAppath 1033, 1086, 37 Cal Rptr.24 436 (1995)), More specifically, the question before the Court is the scope of | subsection (€)2)Stutzman v, Armstrong, Slip Copy (2013) #10 “Statutes must be interpreted, if possible, to give exch ‘word some operative effect." Walters v. Metro. Educ. Enters., Ine., 519 US. 202, 209, 117 $.Ct, 660, 136 L.Ed.24 644 (1007). In the Ninth Cireut, a federal court applying state las mastutilize the tools of statutory interpretation prescribed by the relevant state supreme court. See Or. Advocacy Ctr vy Mink, 322 F.3d 1101, 1114 n, 7 (9th Cir 2003) (applying, interpretive framework announced by Oregon Supreme Court to Oregon statute); Nike, nc. v. McCarthy, 379 F.3d $76, S81 14 (9th Cir-2004) (same), The California Supreme Court as set forth the following principles of statutory construction: Under settled canons of statutory constriction, in construing a statute ‘we ascertain the Legislature's intent in order to effectuate the law's purpose, We must look to the statute's words and give them their usual and ordinary ‘meaning. The statute's plain meaning controls the courts interpretation unless its words are ambiguous, If the words in the statute do not, by themselves, provide a reliable indicator of legislative inten, statutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to hatmonize the statute internally and with related stattes. [.. ] If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute's purpose, and public policy People v. Arias, 45 Cal:4th 169, 177, 85 Cal.Rptr.3d 1, 195 P.3d 103 (2008) (internal citations and quotations omitted), “To determine the most reasonable interpretation of statute, \we look to its legislative history and background.” Goodman vy. Lozano, 47 Caltth 1327, 1332, 104 Cal.Rptr.3d 219, 223 P.3d 77 (2010), 1. Plain Meaning “The Court's interpretation begins withthe text of the statute, Campbell, 6642 F.3d at $26 (citing Martinez, 49 Cal 4th 35, 109 Cal.Rptr.3d S14, 231 P-3d 259; Jimenez v. Quarterman, 555 US. 113, 129, 129 $.Ct, 681, 172 L.Bd.2d 475 (2009). ‘The statute's words must be assigned their“usual and ordinary meanings” and evaluated in context. Id. (quoting Martinez, 49 Cal.tth 35, 109 Cal.Rpte3d 514, 231 P.3d.259), “this plain ‘meaning is unambiguous, the inquiry ends there and we need not consider further interpretive aids (c.g, drafting history).” i Here, the questions the Court must resolve in interpreting the statute isthe meaning of the word “work” as i is used in subseetion (4)2), and whether the Armstrong Books are jneluded within that meaning, In interpreting subsection (d) (2), the Second District for the California Court of Appeal stated that “[f]he word ‘work,’ as ordinarily understood, ‘means ‘something produced or accomplished by effort, exertion, of exercise of skill,” or ‘something produced by the exercise of creative talent or expenditure of creative effort.” * Major, 134 Cal.App.4th at 1494, 36 Cal Rptr 34 875 (quoting Merriam—Webste’s Collegiate Diet. (10th 04.195) (analyzing whether (d)2) applies to actions against individuals engaged in the distribution of politial literature

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