FORSYTH v MPAA: DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SPECIAL MOTION TO STRIKE, Apr 29, 2016

April 30, 2016 8:01 pm by Gene Borio

The PDF is Here

EXCERPT:

Defendants respectfully request that the Court take judicial notice of the content of three websites that discuss the attributes of particular movies, as exemplified by the screenshots in Exhibits 1–3.

Exhibit 1 consists of screenshots from the website of an entity known as Common Sense Media, which identifies itself as “the nation’s leading independent non-profit organization dedicated to empowering kids to thrive in a world of media and technology.”
www.commonsensemedia.org/ (last visited April 29, 2016).

Exhibit 2 is a screenshot from a website called “Smoke Free Movies,” which is maintained by University of California, San Francisco’s Center for Tobacco Control Research and Education. smokefreemovies.ucsf.edu/ (last visited April 29, 2016).

Exhibit 3 is a screenshot from a website called “Scenesmoking.org,” which was established by the non-profit Breathe California of Sacramento-Emigrant Trails. This website hosts a searchable movie database, called “Thumbs Up! Thumbs Down!”, which reviews movies based on the tobacco imagery therein. www.scenesmoking.org/ (last visited April 29, 2016).

For the foregoing reasons, Defendants respectfully request that the Court take judicial notice of the contents of (1) the Common Sense Media website, (2) the Smoke Free Movies website, and (3) the Scenesmoking website, as exemplified by the screenshots in Exhibits 1–3.

END EXCERPT

[NB: The Exhibit files are each over 2MB, and exceed WordPress’ limits. You can find them at UCSF:

EXHIBIT 1: smokefreemovies.ucsf.edu/…

EXHIBIT 2: smokefreemovies.ucsf.edu/…

EXHIBIT 3: smokefreemovies.ucsf.edu/…

–gb]

FULL TEXT:

GLENN D. POMERANTZ (SBN 112503)

glenn.pomerantz@mto.com

MUNGER, TOLLES & OLSON LLP

355 South Grand Avenue, Thirty-Fifth Floor

Los Angeles, California 90071-1560

Telephone: (213) 683-9100

Facsimile: (213) 687-3702
KELLY M. KLAUS (SBN 161091)

kelly.klaus@mto.com

ACHYUT J. PHADKE (SBN 261567)

achyut.phadke@mto.com

ADAM I. KAPLAN (SBN 268182)

adam.kaplan@mto.com

MUNGER, TOLLES & OLSON LLP

560 Mission Street, Twenty-Seventh Floor

San Francisco, California 94105-2907

Telephone: (415) 512-4000

Facsimile: (415) 512-4077

Attorneys for Defendants Motion Picture Association of America, Inc., The Walt Disney Company, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, and Warner Bros. Entertainment Inc.

K. LEE MARSHALL (SBN 277092)

klmarshall@bryancave.com

ROGER MYERS (SBN 146164)

roger.myers@bryancave.com

ALEXANDRA C. WHITWORTH (SBN
303046)

alex.whitworth@bryancave….

BRYAN CAVE LLP

560 Mission Street, Suite 2500

San Francisco, California 94105

Tel: (415) 675-3400 /Fax: (415) 675-3434

Attorneys for Defendant National Association of Theatre Owners

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TIMOTHY FORSYTH, individually and on behalf of a class of similarly situated individuals,
Plaintiff,

vs.

MOTION PICTURE ASSOCIATION OF AMERICA, INC., et al.,
Defendants.

Case No. 3:16-cv-00935-RS

DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF [1] SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA ANTI- SLAPP STATUTE, CAL. CIV. PROC. CODE § 425.16 ET SEQ., OR, IN THE ALTERNATIVE, [2] MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)

Date: June 9, 2016

Time: 1:30 pm

Place: Courtroom 3, 17th Floor

Judge: Hon. Richard Seeborg
Defendants Motion Picture Association of America, Inc. (“MPAA”); The Walt Disney Company, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, and Warner Bros. Entertainment Inc. (collectively the “Studio Defendants”); and National Association of Theatre Owners (“NATO,” and collectively with the MPAA and the Studio Defendants, “Defendants”) respectfully submit this request that the Court take judicial notice, pursuant to Federal Rule of Evidence 201, of the content of the three websites identified below, as exemplified by the screenshots in Exhibits 1–3 attached hereto. This Request for Judicial Notice (“Request”) is filed in support of Defendants’ Motions (1) to Strike the Complaint in its Entirety Pursuant to California’s Anti-SLAPP Statute, Cal. Civ. Proc. Code § 425.16 et seq., or (2) to Dismiss the Complaint Pursuant to Fed. R. Civ. P. 12(b)(6).1

1 Although motions to strike under California’s anti-SLAPP statute may rely on extrinsic evidence, Defendants’ anti-SLAPP motion, filed jointly with Defendants’ Rule 12(b)(6) motion, does not do so and therefore is governed by Rule 12 standards. Choyce v. SF Bay Area Indep. Media Ctr., 2013 WL 6234628, at *5 (N.D. Cal. Dec. 2, 2013); Rogers v. Home Shopping Network, Inc., 57 F. Supp. 2d 973, 980 (C.D. Cal. 1999).

EXHIBIT

DESCRIPTION

1
Screenshots of Common Sense Media Website,

www.commonsensemedia.org/ (last visited April 28,
2016)

2
Screenshot of Smoke Free Movies Website,

smokefreemovies.ucsf.edu/ (last visited April 28, 2016)

3
Screenshot of Scenesmoking Website,

www.scenesmoking.org/ (last visited April 28, 2016)

Federal Rule of Evidence (“Rule”) 201 provides that a “court may judicially notice a fact that is not subject to reasonable dispute because it … can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court may consider facts subject to judicial notice at the dismissal stage without converting the motion into one for summary judgment. Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987).

Rule 201 “permit[s] the court to take judicial notice of facts contained in websites,” including their contents. United States v. Kane, 2013 WL 5797619, at *8 (D. Nev. Oct. 28, 2013); see also O’Toole v. Nothrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (“It is not uncommon for courts to take judicial notice of factual information found on the world wide web.”) (citations omitted). “[A] court may take judicial notice of publicly available … web pages that ‘indicate what was in the public realm at the time, not whether the contents of those articles [or web pages] were in fact true.’” Tarantino v. Gawker Media, LLC, 2014 WL 2434647, at *1 n.1 (C.D. Cal. Apr. 22, 2014) (quoting Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.2010)); Kane, 2013 WL 5797619, at *9 (same).

Defendants respectfully request that the Court take judicial notice of the content of three websites that discuss the attributes of particular movies, as exemplified by the screenshots in Exhibits 1–3. This Request does not ask the Court to take notice of the truth of any statement in these websites or in Exhibits 1–3, but rather to take judicial notice that the content of these websites is “in the public realm.” Tarantino, 2014 WL 2434647, at *1 n.1. The content of the websites and exemplar screenshots and the fact that this content is publicly available on the internet “is not subject to reasonable dispute,” because the Court can go to these websites and readily determine the same. See Fed. R. Evid. 201(b); see e.g., Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1084 n.2 (C.D. Cal. 2001) (“[T]he Court takes judicial notice of www.eBay.com and the information contained therein pursuant to Federal Rule of Evidence 201.”). Plaintiff has no reasonable basis on which to object to Defendants’ limited Request.

Exhibit 1 consists of screenshots from the website of an entity known as Common Sense Media, which identifies itself as “the nation’s leading independent non-profit organization dedicated to empowering kids to thrive in a world of media and technology.”
www.commonsensemedia.org/ (last visited April 29, 2016).

Exhibit 2 is a screenshot from a website called “Smoke Free Movies,” which is maintained by University of California, San Francisco’s Center for Tobacco Control Research and Education. smokefreemovies.ucsf.edu/ (last visited April 29, 2016).

Exhibit 3 is a screenshot from a website called “Scenesmoking.org,” which was established by the non-profit Breathe California of Sacramento-Emigrant Trails. This website hosts a searchable movie database, called “Thumbs Up! Thumbs Down!”, which reviews movies based on the tobacco imagery therein. www.scenesmoking.org/ (last visited April 29, 2016).

For the foregoing reasons, Defendants respectfully request that the Court take judicial notice of the contents of (1) the Common Sense Media website, (2) the Smoke Free Movies website, and (3) the Scenesmoking website, as exemplified by the screenshots in Exhibits 1–3.

DATED: April 29, 2016

MUNGER, TOLLES & OLSON LLP
By:

/s/ Kelly M. Klaus
KELLY M. KLAUS
Attorneys for MPAA and Studio Defendants
BRYAN CAVE LLP
By:

/s/ K. Lee Marshall
K. LEE MARSHALL
Attorneys for NATO
* * *

In accordance with Civil Local Rule 5-1(i), the filer attests that each of the above signatories have concurred in the filing of this document.
DATED: April 29, 2016

By:

/s/ Kelly M. Klaus
KELLY M. KLAUS

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