Defs.' Reply Iso Special Mot. To Strike and Mot. To Dismiss: 3:16-cv-00935-RS

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 1 of 33
1 GLENN D. POMERANTZ (SBN 112503)

glenn.pomerantz@mto.com
2 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, Thirty-Fifth Floor
3 Los Angeles, California 90071-1560
Telephone:
(213) 683-9100
4 Facsimile:
(213) 687-3702
5 KELLY M. KLAUS (SBN 161091)
kelly.klaus@mto.com
6 ACHYUT J. PHADKE (SBN 261567)
achyut.phadke@mto.com
7 ADAM I. KAPLAN (SBN 268182)
adam.kaplan@mto.com
8 MUNGER, TOLLES & OLSON LLP
560 Mission Street, Twenty-Seventh Floor
9 San Francisco, California 94105-2907
Telephone:
(415) 512-4000
10 Facsimile:
(415) 512-4077
K. LEE MARSHALL (SBN 277092)

klmarshall@bryancave.com
ROGER MYERS (SBN 146164)
roger.myers@bryancave.com
ALEXANDRA WHITWORTH, (SBN 303046)
alex.whitworth@bryancave.com
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
11 Attorneys for Defendants Motion Picture

Association of America, Inc., Walt Disney
12 Studios Motion Pictures, Paramount Pictures
Corporation, Sony Pictures Entertainment Inc.,
13 Twentieth Century Fox Film Corporation,
Universal City Studios LLC, and Warner Bros.
14 Entertainment Inc.
15
UNITED STATES DISTRICT COURT
16
NORTHERN DISTRICT OF CALIFORNIA
17 TIMOTHY FORSYTH, individually and on

behalf of a class of similarly situated
18 individuals,
19
20
Plaintiff,
vs.
21 MOTION PICTURE ASSOCIATION

OF AMERICA, INC., et al.,
22
Defendants.
23
24
Case No. 3:16-cv-00935-RS

DEFENDANTS REPLY IN SUPPORT
OF [1] SPECIAL MOTION TO STRIKE
PURSUANT TO CALIFORNIA ANTISLAPP 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: October 27, 2016
Time: 1:30 pm
Place: Courtroom 3, 17th Floor
Judge: Hon. Richard Seeborg
25
26
27
28
3:16-cv-00935-RS
DEFS. REPLY ISO SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
TABLE OF CONTENTS
Page
3
I.
4
PLAINTIFFS ATTEMPTS TO REWRITE HIS COMPLAINT CONFIRM THE

DEFICIENCY OF THE COMPLAINT AND THE FUTILITY OF AMENDMENT ......... 2
A.
Defendants Motion Demonstrated The Defects In The Complaint, As

Confirmed By Plaintiffs Attempt To Revise His Allegations In Opposition .......... 2
B.
Plaintiffs Revised Allegations Mischaracterize The Ratings And

Certification Mark Registrations, Thereby Confirming The Futility Of
Amendment ............................................................................................................... 4
6
7
8
II.
9
10
PLAINTIFFS ARGUMENTS AGAINST APPLYING THE ANTI-SLAPP

STATUTE ON PRONG ONE OF THE ANALYSIS ARE MERITLESS ........................... 7
A.
Ratings Do Not Lose Their Protection As Speech Because They Are

Registered .................................................................................................................. 7
11
1.
Neither Use In Commerce Under The Lanham Act Nor A Profit

Motive Renders A Certification Mark Commercial Speech ......................... 8
2.
Enforcing Rights In The Marks Does Not Render Ratings

Commercial Speech....................................................................................... 8
3.
Ratings Are Not Seals Of Approval And Do Not Promote Rated

Films .............................................................................................................. 9
12
13
14
15
16
B.
Ratings Are Speech And Conduct Related To Issues Of Public Interest ................ 11
17
C.
Ratings Are Also Conduct In Furtherance of Protected Speech.......................... 12
18
D.
If Ratings Are Based On Use Of A Registered Mark, As Plaintiff Claims,

They Fall Within 425.16(e)(2) Because The Application Is Protected By
425(e)(1) .................................................................................................................. 13
19
20 III.
PLAINTIFF FAILS TO CARRY HIS BURDEN UNDER THE ANTI-SLAPP

STATUTE AND RULE 12(B)(6) ....................................................................................... 13
21
A.
Plaintiff Fails To Overcome The First Amendment Defenses To His Claims........ 13
B.
23
The Opposition Does Not Save Plaintiffs Negligent Misrepresentation

Claim ....................................................................................................................... 15
24
1.
Plaintiff Has Not Identified A False Or Misleading Statement Of

Fact .............................................................................................................. 15
2.
Plaintiff Cannot Convert Opinions Into Facts ............................................. 16
3.
Plaintiff Has Not Plausibly Alleged A Duty To Assign R Ratings To

Movies With Tobacco Imagery ................................................................... 17
4.
Plaintiff Has Not Plausibly Alleged Reasonable Reliance.......................... 20
22
25
26
27
28
-1DEFS. REPLY ISO SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
3:16-cv-00935-RS
TABLE OF CONTENTS
Page
5.
3
4
Plaintiff Has Not Plausibly Alleged Proximate Causation.......................... 20
C.
The Opposition Does Not Save Plaintiffs Fraudulent Misrepresentation

Claim ....................................................................................................................... 20
D.
The Opposition Grounds Negligence Claims In Duties That Do Not Exist ........... 21
E.
The Opposition Confirms That Plaintiffs Fiduciary Duty Claim Fails.................. 22
F.
The Opposition Also Confirms That Plaintiffs Nuisance Claim Fails .................. 23
G.
The Opposition Offers No Real Defense Of Plaintiffs False Advertising

Claim ....................................................................................................................... 23
H.
The Opposition Does Not Save Plaintiffs Unfair Competition Law Claim........... 24
5
6
7
8
9
10
11 CONCLUSION ............................................................................................................................... 24
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3:16-cv-00935-RS
TABLE OFAUTHORITIES
Page(s)
3 FEDERAL CASES
4 Agency for Intl Dev. v. Alliance for Open Society Intl,
133 S. Ct. 2321 (2013) ...............................................................................................................14
5
All Star Seed v. Nationwide Agribusiness Ins. Co.,
6
2014 WL 1286561 (S.D. Cal. Mar. 31, 2014) ..............................................................................4
7
Aviation Charter, Inc. v. Aviation Research Grp./US,
416 F.3d 864 (8th Cir. 2005) ......................................................................................................16
8
9 Backus v. Gen. Mills, Inc.,
122 F. Supp. 3d 909, 929 (N.D. Cal. 2015) ...............................................................................24
10
Benefiel v. Exxon Corp.,
11
959 F.2d 805 (9th Cir. 1992) ......................................................................................................20
12
BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) ...................................................................................................................15
13
14 Brown v. Entmt Merchants Assn,
564 U.S. 786 (2011) .......................................................................................................14, 15, 22
15
Browne v. Avvo Inc.,
16
525 F. Supp. 2d 1249 (W.D. Wash. 2007) .................................................................................16
17
Doe v. Gangland Prods., Inc.,

730 F.3d 946 (9th Cir. 2013) ......................................................................................................12
18
19 eCash Techs., Inc. v. Guagliardo,
210 F. Supp. 2d 1138 (C.D. Cal. 2001) ......................................................................................13
20
Ellingson v. Burlington N., Inc.,
21
653 F.2d 1327 (9th Cir. 1981) ......................................................................................................4
22 Garden Dist. Book Shop, Inc. v. Stewart,
2016 WL 1734093 (M.D. La. Apr. 29, 2016) ............................................................................15
23
24 Hodsdon v. Mars, Inc.,
-- F. Supp. 3d --, 2016 WL 627383 (N.D. Cal. Feb. 17, 2016) ............................................21, 24
25
Hynix Semiconductor Inc. v. Rambus Inc.,
26
2007 WL 4209399 (N.D. Cal. Nov. 26, 2007) ...........................................................................15
27 Intl Info. Sys. Sec. Certification Consortium, Inc. v. Sec. Univ., LLC,
823 F.3d 153 (2d Cir. 2016) .........................................................................................................8
28
-iiiDEFS. REPLY ISO SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
3:16-cv-00935-RS
TABLE OF AUTHORITIES
(continued)
Page(s)
3 Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) .....................................................................................................................1
4
Kenner Parker Toys Inc. v. Rose Art Indus., Inc.,
5
963 F.2d 350 (Fed. Cir. 1992) ......................................................................................................9
6
Mindys Cosmetics, Inc. v. Dakar,

611 F.3d 590 (9th Cir. 2010) ......................................................................................................13
7
8 New York Times Co. v. Sullivan,
376 U.S. 254 (1964) .....................................................................................................................8
9
Pittsburg Press Co. v. Pittsburgh Commn on Human Relations,
10
413 U.S. 376 (1973) .....................................................................................................................8
11 Partington v. Bugliosi,
56 F.3d 1147 (9th Cir. 1995) ......................................................................................................14
12
13 R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ...................................................................................................................14
14
Retail Digital Network, LLC v. Applesmith,
15
810 F.3d 638 (9th Cir. 2016) ..................................................................................................7, 14
16 Rosado v. eBay Inc.,
53 F. Supp. 3d 1256, 1264 (N.D. Cal. 2014) .............................................................................23
17
18 Sarver v. Chartier,
813 F.3d 891 (9th Cir. 2016) ......................................................................................................12
19
Sprewell v. Golden State Warriors,
20
266 F.3d 979 (9th Cir. 2001) ......................................................................................................17
21 Swope v. Lubbers,
560 F. Supp. 1328 (W.D. Mich. 1983) ............................................................................... passim
22
23 In re Tam,
808 F.3d 1321 (Fed. Cir. 2015) .......................................................................................... passim
24
Team Enterprises, LLC v. W. Inv. Real Estate Trust,
25
647 F.3d 901 (9th Cir. 2011) ......................................................................................................23
26 Trindade v. Reach Media Grp., LLC,
2013 WL 3977034 (N.D. Cal. July 31, 2013) ............................................................................11
27
U.S. Olympic Comm. v. Am. Media, Inc.,
28
156 F. Supp. 2d 1200 (D. Colo. 2001) .........................................................................................8
-ivDEFS. REPLY ISO SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
3:16-cv-00935-RS
(continued)
Page(s)
3 Wilson v. HewlettPackard Co.,

668 F.3d 1136 (9th Cir. 2012) ....................................................................................................21
4
Wooley v. Maynard,
5
430 U.S. 705 (1977) ...................................................................................................................14
6
Young v. Facebook, Inc.,

2010 WL 4269304 (N.D. Cal. Oct. 25, 2010) ............................................................................18
7
8 STATE CASES
9 All One God Faith, Inc. v. Organic and Sustainable Indus. Standards, Inc.,
183 Cal. App. 4th 1186 (2010) .............................................................................................10, 16
10
Bernardo v. Planned Parenthood Fedn of Am.,
11
115 Cal. App. 4th 322 (2004) .....................................................................................................23
12
Bill v. Superior Court,

137 Cal. App. 3d 1002 (1982) ....................................................................................................22
13
14 Braun v. Chronicle Publg Co.,
52 Cal. App. 4th 1036 (1997) .....................................................................................................13
15
Broberg v. Guardian Life Ins. Co. of Am.,
16
171 Cal. App. 4th 912 (2009) .....................................................................................................20
17
Brodeur v. Atlas Entmt, Inc.,

248 Cal. App. 4th 665 (2016) ...............................................................................................11, 12
18
19 CalPERS v. Moodys Investor Serv., Inc.,
226 Cal. App. 4th 643 (2014) .....................................................................................................17
20
Camacho v. Auto. Club of S. Cal.,
21
142 Cal. App. 4th 1394 (2006) ...................................................................................................24
22 Castle Rock Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis, Inc.,
354 S.W.3d 234 (Mo. Ct. App. 2011) ........................................................................................16
23
24 Comm. On Childrens Television, Inc. v. General Foods Corp.,
35 Cal. 3d 197 (1983) .................................................................................................................22
25
Desilets on Behalf of Desilets v. Clearview Regl Bd. of Educ.,
26
630 A.2d 333 (N.J. App. Div. 1993), affd, 647 A.2d 150 (1994) .............................................23
27 Dixon v. Superior Court,
30 Cal. App. 4th 733 (1994) .......................................................................................................13
28
-vDEFS. REPLY ISO SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
3:16-cv-00935-RS
(continued)
Page(s)
3 Doran v. Milland Dev. Co.,

159 Cal. App. 2d 322 (1958) ......................................................................................................17
4
Dyer v. Childress,
5
147 Cal. App. 4th 1273 (2007) ...................................................................................................12
6
Elliott v. Rodeo Land & Water Co.,

141 Cal. App. 2d 404 (1956) ......................................................................................................20
7
8 Gentry v. eBay, Inc.,
99 Cal. App. 4th 816 (2002) .......................................................................................................15
9
Hoffman v. 162 N. Wolfe LLC,
10
228 Cal. App. 4th 1178 (2014) ...................................................................................................20
11 Holcomb v. Wells Fargo Bank, N.A.,
155 Cal. App. 4th 490 (2007) .....................................................................................................21
12
13 Jackson v. AEG Live, LLC,
233 Cal. App. 4th 1156 (2015) ...................................................................................................18
14
Jolley v. Chase Home Fin., LLC,
15
213 Cal. App. 4th 872 (2013) .....................................................................................................17
16 Kronemyer v. Internet Movie Data Base, Inc,
150 Cal. App. 4th 941 (2007) ...............................................................................................10, 12
17
18 Lafayette Morehouse, Inc. v. Chronicle Publg Co.,
37 Cal. App. 4th 855 (1995) .......................................................................................................13
19
Lennar Homes of Cal., Inc. v. Stephens,
20
232 Cal. App. 4th 673 (2014) .....................................................................................................12
21 Lopez v. Nissan N. Am., Inc.,
201 Cal. App. 4th 572 (2011) .....................................................................................................15
22
23 Melton v. Boustred,
183 Cal. App. 4th 521 (2010) .....................................................................................................23
24
Oakland Raiders v. Natl Football League,
25
131 Cal. App. 4th 621 (2005) .....................................................................................................22
26 Olivia N. v. Natl Broadcasting Corp.,
126 Cal. App. 3d 488 (1981) ......................................................................................................21
27
Persson v. Smart Inventions, Inc.,
28
125 Cal. App. 4th 1141 (2005) .............................................................................................22, 23
-viDEFS. REPLY ISO SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
3:16-cv-00935-RS
(continued)
Page(s)
3 Rezec v. Sony Pictures Entmt, Inc.,

116 Cal. App. 4th 135 (2004) .....................................................................................................10
4
Stewart v. Rolling Stone LLC,
5
181 Cal. App. 4th 664 (2010) .....................................................................................................11
6
Tamkin v. CBS Broadcasting, Inc.,

193 Cal. App. 4th 133 (2011) .....................................................................................................12
7
8 FEDERAL STATUTES
9 15 U.S.C. 1058, 1059 ..................................................................................................................13
10 15 U.S.C. 1064 ................................................................................................................................9
11 STATE STATUTES
12 Cal. Code Civ. Proc. 425.16 .................................................................................................. passim
13
14
Cal. Code Civ. Proc. 425.17(d)(2) ................................................................................................11

FEDERAL RULES OF CIVIL PROCEDURE
15
Rule 8 .................................................................................................................................................2
16
Rule 12(b)(6) ............................................................................................................................ passim
17
18
19
FEDERAL REGULATIONS
37 C.F.R. 2.45(a)(4)(i)(A),(B).....................................................................................................4, 6
20 CONSTITUTIONAL PROVISIONS
21 U.S. Const. amend. I ................................................................................................................ passim
22 OTHER AUTHORITIES
23 Entertainment: Public Pressures and the Law: Official and Unofficial Control of
the Content and Distribution of Motion Pictures and Magazines, 71 Harv. L.
24
Rev. 326 (1957) ............................................................................................................................9
25
26
27
28
-viiDEFS. REPLY ISO SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
3:16-cv-00935-RS
INTRODUCTION
Plaintiffs Opposition does not defend his filed Complaint so much as seek to rewrite it.
3 But, whether looking at Plaintiffs pleaded allegations or the new ones in his Opposition, dismissal
4 remains appropriate under both the anti-SLAPP statute and Rule 12(b)(6).
5
In his Opposition, Plaintiff insists that his claims are not based on public statements by the
6 Classification and Rating Administration (CARA) about its ratings system, what ratings mean,
7 how they are assigned, and why CARA believes the mandatory R rule Plaintiff wants is not
8 appropriate. Instead, Plaintiff now contends that his claims are based entirely on certification
9 trademarks, which he calls a special type of speech that is immune from the anti-SLAPP
10 statute, First Amendment scrutiny, or any other defense.1 He is wrong as a matter of law. In re
11 Tam, 808 F.3d 1321, 1338 (Fed. Cir. 2015) (registered marks protected by First Amendment).
12
In any event, Plaintiffs new certification trademarks theory fails for the same reasons as
13 the pleaded claims. Plaintiff does not allege any misrepresentation. Plaintiff still seeks to premise
14 liability on opinions, which are First Amendment-protected and not actionable as
15 misrepresentations. Plaintiff does not and cannot allege the existence of a duty (assumed or
16 imposed by law), reliance, or many other elements required to state any of his multiple claims.
17
Plaintiffs effort to avoid the anti-SLAPP statute likewise fails, as it primarily relies on the
18 same fatally flawed theory that ratings based on certification marks constitute unprotected speech.
19 Plaintiff argues that defendants here are not newspapers, booksellers or any sort of publisher
20 engaged in the type of noncommercial speech the First Amendment protects. Opp. 15. But the
21 Studio defendants release and the ratings apply to movies, which have received full First
22 Amendment protection for more than 60 years. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
23 501-02 (1952). Even if that statute did not apply, Plaintiff would still fail to plead a claim for
24 relief, and so the action must be dismissed. The Opposition confirms the Complaint both as pled
25 and as Plaintiff seeks to rewrite it is fatally flawed and amendment would be futile.
26
27
The term certification trademarks appears over 70 times in the Opposition, but not at all in the
28 Complaint. (Certification mark appears once in a quotation from CARAs rules. Compl. 60.)
3:16-cv-00935-RS
ARGUMENT
This reply argument has three parts. Part I shows that Plaintiffs Opposition revises the
3 claims as pled; in the process, Plaintiff has mischaracterized what the ratings and certification
4 mark registrations say, and thus confirmed the futility of amendment. Part II demonstrates the
5 failure of Plaintiffs multiple arguments at prong one of the anti-SLAPP analysis i.e., the
6 Complaint aris[es] from acts in furtherance of First Amendment rights in connection with a
7 public issue. Cal. Code Civ. Proc. 425.16(b)(1). Plaintiff is wrong that the ratings are
8 commercial speech, but even if they were, the Complaint still would be subject to the anti9 SLAPP statute. Part III shows that Plaintiffs claims, even as revised, fail at prong two of the
10 anti-SLAPP analysis. Plaintiff cannot establish that he has a reasonable probability of prevailing
11 (as required by the anti-SLAPP statute), and he has not plausibly alleged any claim (as required by
12 Rules 8 and 12(b)(6)).
13 I.
PLAINTIFFS ATTEMPTS TO REWRITE HIS COMPLAINT CONFIRM THE

DEFICIENCY OF THE COMPLAINT AND THE FUTILITY OF AMENDMENT
14
Although Plaintiff protests that Defendants Motion misdescribed his claims, it is
15
Plaintiffs Opposition that attempts substantially to revise the Complaint as well as the ratings
16
themselves and the certification mark registrations (Part A). The Opposition confirms the futility
17
of any amendment (Part B).
18
A.
19
20
Defendants Motion Demonstrated The Defects In The Complaint, As

Confirmed By Plaintiffs Attempt To Revise His Allegations In Opposition
Plaintiff argues that Defendants misrepresented the speech his Complaint target[s]. Opp.
21 1-2, 7-9. He asserts that the certification trademarked ratings assigned to the individual films
22 with tobacco imagery are the only speech the claims are based on, and that his claims are not
23 based on defendants opinions or beliefs about what the appropriate rating should be for films with
24 tobacco imagery, or opinions about anything relating to the rating system. Id. 7-8.
25
In fact, Defendants Motion was directed to the filed Complaint. The Complaint is not
26 limited to the content within the individual ratings box. The Complaint extensively quotes
27 portions of CARAs guidelines that explain the meanings of the ratings, and attaches the
28 guidelines as well as CARAs public statements about the rating system. Compl. 19-22 & Exs.
3:16-cv-00935-RS
1 1-2, 5. The Complaint makes numerous allegations about what Plaintiff claims the purpose is of
2 the ratings system, as defendants themselves describe it and hold it out to the consuming
3 public, and argues it is foreseeable that Defendants have a duty to accurately assign ratings to
4 film[s] featuring tobacco imagery. Id. 68-69.2 The Complaint further alleges that according
5 to defendants own written rules, defendants issued their ratings and certifications with the intent
6 and purpose of informing, guiding and inducing parents to rely on the ratings. Id. 158. And the
7 Complaint alleges that significant harm will result unless and until defendants change their rating
8 system for films with tobacco imagery and rate films with tobacco imagery with an R rating.
9 Id. 53, 99.
10
Indeed, these and similar allegations form the basis of Plaintiffs legal claims as pled.
11 Among other things, the Complaint contends that imposing a duty upon defendants to include
12 depiction of tobacco imagery as a criteri[on] requiring the assignment by the MPAA of an R
13 rating is foreseeable. Id. at 22 (Heading X) (all caps omitted). This allegation, in turn, is critical
14 to Plaintiffs contentions that defendants have voluntarily assumed the duty and responsibility to
15 act as the guardians of the film industry for the benefit of parents and children under the age of
16 seventeen, id. 84, and that Defendants refusal to assign an R-rating to films with tobacco
17 imagery is negligent and a breach of fiduciary duty, id. at 32 (Heading XIII) (all caps omitted)).
18
Defendants Motion explained why the claims as pleaded could not succeed. CARA has
19 clearly stated that it does not apply ratings to prescribe socially-appropriate values but rather to
20 assign[] the rating [it] believes would best reflect the opinion of most American parents about the
21 suitability of that motion picture for viewing by their children. Compl. Ex. 1 at 1, 6. CARA also
22 has been clear that it will not apply the mandatory R rule that Plaintiff demands, because CARA
23 do[es] not believe such a step would further the specific goal of providing information to
24 parents. Id. Ex. 5 at 6. Plaintiffs attempt to mischaracterize and revise the Complaint through
25 his Opposition underscores the many defects in the as-filed Complaint.
26
27
28
All emphases are added, and internal citations omitted unless otherwise noted.
3:16-cv-00935-RS
B.
Plaintiffs Revised Allegations Mischaracterize The Ratings And Certification

Mark Registrations, Thereby Confirming The Futility Of Amendment
2
Plaintiffs revised allegations focusing on the use of ratings certification marks present the
3
same basic failings as his initial claims in the Complaint.
4
First, Plaintiff does not identify any misrepresentations in the ratings. The marks that
5
Plaintiff says are false PG and PG-13 do not say, as Plaintiff contends, that movies so
6
rated contain[] no content inappropriate for unaccompanied children under seventeen. Opp. 25.
7
They do say that some material may not be suitable for children or some material may be
8
inappropriate for children under 13. Compl. 60. Plaintiff cannot rewrite the ratings to say what
9
he wants them to say, and then claim misrepresentation. A warning that some material may not
10
be suitable for children cannot and does not mean all material in this movie is suitable for
11
children. Advising parental caution cannot be read as a warranty of the appropriateness of a
12
movies content.
13
Second, the registrations Plaintiff now relies on, Opp. 17-18, clearly say the marks convey
14
CARAs opinion about whether the content of a movie calls for heightened parental attention.3
15
The heart of a certification mark registration is a certification statement specifying what the
16
applicant is certifying about the goods or services. 37 C.F.R. 2.45(a)(4)(i)(A). Notably, the
17
certification statement for every movie rating certification mark application filed from 1979 to the
18
present states that the ratings symbol conveys the opinion of applicants Rating Board:
19
Registration Number;
Mark
20
1,170,739
21
22
23
24
Certification Statement
The mark certifies that the motion picture film is, in the opinion of
applicants Rating Board, an adult film in some of its aspects and
treatment so far as language, violence, or nudity and sexuality is
concerned, and that because of such elements no one under the age
of 17 should be admitted unless accompanied by a parent or
guardian.
25
26
The notion that Plaintiffs claims were based on use of a certification trademark was first
raised by the [opposition] brief and thus can be[] met in the reply. Ellingson v. Burlington N.,
27
Inc., 653 F.2d 1327, 1332 (9th Cir. 1981); accord, e.g., All Star Seed v. Nationwide Agribusiness
28 Ins. Co., 2014 WL 1286561, at *15 (S.D. Cal. Mar. 31, 2014).
3:16-cv-00935-RS
Mark
1,169,742
3
4
5
6
1,213,656
7
PARENTAL GUIDANCE
SUGGESTED SOME
MATERIAL MAY NOT
BE SUITABLE FOR
CHILDREN
8
9
10
The mark certifies that the motion picture film, in the opinion of
applicants Rating Board, clearly needs to be examined or inquired
about by parents before they let their younger children attend. Such
films may contain profanity, but not harsher sexually derived
words. There may be violence, but it is not deemed so strong that
admission should be restricted. There is no explicit sex on the
screen, but brief nudity may appear.
Certifies that the motion picture film, in the opinion of applicants
Rating Board, clearly needs to be examined or inquired about by
parents before they let their younger children attend. Such films
may contain profanity but not harsher sexually derived words.
There may be violence, but it is not deemed so strong that
admission should be restricted. There is no explicit sex on the
screen, but brief nudity may appear.
Certifies that the motion picture film is, in the opinion of

RESTRICTED UNDER 17 applicants Rating Board, an adult film in some of its aspects and
treatment so far as language, violence or nudity and sexuality is
REQUIRES
ACCOMPANYING
PARENT OR ADULT
GUARDIAN
guardian.
1,213,655
11
12
13
14
1,337,409
The certification mark certifies that the motion picture film, in

the opinion of the Rating Board, contains material as to nudity,
language, sensuality, treatment of theme, and violence such that
parents should exercise caution before allowing their children under
thirteen years of age to attend.
1,337,408
The certification mark certifies that the motion picture film, [in
the opinion] of the Rating Board, contains material as to nudity,
language, sensuality, treatment of theme, and violence such that
parents should exercise caution before allowing their children under
thirteen years of age to attend. 4
1,439,617

the opinion of applicants Rating Board, clearly needs to be
examined or inquired about by parents before they let their younger
children attend, because of the films treatment of theme, language,
nudity, sensuality or violence.
15
16
17
18
19
20
21
RATED PG
22
23
24
The certification statement submitted for Registration 1,337,408, included the phrase in the
25 opinion, but the examining attorneys mark-up of the application for publication was apparently
(mis)read by the printer as striking the phrase. Pl. RJN Ex. 1 at 50. The garbled text (the
26 motion picture film, of the Rating Board, contains ), the absence of any notation in the file of a
need for or applicants approval to make a substantive change, and the inclusion of in the
27
opinion in the final certification statement for the concurrently examined Registration 1,337,409,
28 all point to the deletion of in the opinion being inadvertent.
3:16-cv-00935-RS
Mark
1,439,619
RATED PG-13
4
5
1,436,926
RATED R
7
8
9
1,577,122
10
11
12
the opinion of applicants Rating Board, contains material as to
nudity, language, sensuality, treatment of theme, and violence such
that parents should exercise caution before allowing their children
under thirteen years of age to attend.
The mark certifies that the motion picture film, in the opinion of
applicants rating board, is an adult film in some of its aspects and
treatment so far as language, violence, nudity and sensuality are
guardian.
the opinion of applicants Rating Board, is an adult film in some
of its aspects and treatment so far as language, violence, nudity and
sensuality are concerned, and that because of such elements no one
under the age of 17 should view the films unless accompanied by a
parent or guardian
13
14
15
Supp. RJN Exs. 1-13 (registration certificates and application records from certification mark
application files for marks corresponding to PG, PG-13, and R from 1979 to present).
Third, the certification mark registrations emphasize the subjective nature of the ratings,
16
17
18
19
20
21
22
23
24
25
26
27
28
again underscoring the futility of Plaintiffs misrepresentation claims based on certification marks.
Certification mark registrations generally include the certification standards governing use of the
certification mark on or in connection with the goods or services specified in the application. 37
C.F.R. 2.45 (a)(4)(i)(B). The standards that CARA filed explain that the only objective of the
CARA ratings system is to advise the parent in advance so he or she may determine the possible
suitability of unsuitability of viewing by children. Supp. RJN Ex. 14 at 4-5 & Ex. 15 at 4-5.5
5
The standards document submitted for Registrations 1,170,739; 1,169,742; 1,213,656 and
1,213,655 is entitled The Movie Rating System: How It Began, Its Purpose, How It Works, the
Public Reaction. Supp. RJN Ex. 14. It is the same document as App. 1 to Swope v. Lubbers, 560
F. Supp. 1328, 1335-41 (W.D. Mich. 1983). A revised version entitled The Voluntary Movie
Rating System: How It Began, Its Purpose, How It Works, The Public Reaction was submitted as
the standards document for Registrations 1,439,617; 1,439,619 and 1,436,926. Supp. RJN Ex. 15.
The Trademark Office did not require a copy of standards for Registrations 1,337,409; 1,337,408
and 1,577,122, noting in the file for 1,577,122 that separate standards were not required because
(1) certification is subjective; [and] (2) factors for making a decision are sufficiently detailed in
(footnote continued on next page)
3:16-cv-00935-RS
1 The standards also provide additional information about what the ratings mean in particular,
2 because the information cautions parents about the content of the rated movies and leaves the
3 decision about whether the movie is appropriate for children to parents:
PG: This is a film which clearly needs to be examined or inquired about by parents
before they let their younger children attend. The label PG plainly states that parents
may consider some material unsuitable for their children, but the parent must make
this decision.
4
5
6
Parents are warned against sending their children, unseen without inquiry, to PG-rated
movies. . . .
The PG rating, suggesting parental guidance, is thus a strong alert for special
examination of a film by parents before deciding on its viewing by their children.
8
9
10
11
Supp. RJN Ex. 14 & Ex. 15 at 9 (emphasis in original). The standards thus negate any potential
misrepresentation claim. They also explicitly recognize the inherent subjectivity of applying
ratings: In any appraisal what is too much becomes a controversial issue. How much is too
12 much violence? . . . The same vexing doubts occur in sex scenes or those where language rises on
13 the Richter scale. The result is controversy, inevitable, inexorable, and that is what the rating
14 system has to endure. Supp. RJN Ex. 14 at 10 & Ex. 15 at 11.
15
For these reasons, Plaintiffs revised claims do not set forth a misrepresentation and
16 continue to premise liability on opinions. These points recur through the claim-by-claim analysis
17 in Part III below, dealing with prong two of the anti-SLAPP statute analysis and Rule 12(b)(6).
18 II.
19
20
21
22
23
24
PLAINTIFFS ARGUMENTS AGAINST APPLYING THE ANTI-SLAPP

STATUTE ON PRONG ONE OF THE ANALYSIS ARE MERITLESS
Before turning to Plaintiffs prong two arguments, we must respond to Plaintiffs many
arguments that the anti-SLAPP motion fails at prong one. Opp. 4-16.
A.
Ratings Do Not Lose Their Protection As Speech Because They Are Registered
Plaintiff argues the anti-SLAPP statute does not apply because the ratings are certification
marks; such marks can only be commercial speech; and commercial speech involves only
private not public interests, as the statute requires. Opp. 4-5, 13. These arguments fail.
25
26
27
(footnote continued from previous page)

28 the certification statement. Supp. RJN Ex. 16.
3:16-cv-00935-RS
1.
Neither Use In Commerce Under The Lanham Act Nor A Profit

Motive Renders A Certification Mark Commercial Speech
2
The Supreme Court defines commercial speech as that which does no more than propose
3
a commercial transaction. Retail Digital Network, LLC v. Applesmith, 810 F.3d 638, 647 (9th
4
Cir. 2016). The ratings do not propose a commercial transaction at all, much less do no more
5
than make such a proposal. As noted, the certification statements make clear that the ratings
6
convey the opinion of the Rating Board that parents should consider whether to allow their
7
children to see a movie. Supp. RJN Exs. 1-13.
8
Contrary to Plaintiffs argument, the fact that the marks are registered does not transform
9
them into mere commercial speech. A mark must be used in commerce to be protected under
10
the Lanham Act, but that use does not make the mark commercial speech. That the speech is
11
used in commerce or has a commercial component should not change the [First Amendment]
12
inquiry when the government regulation is entirely directed to the expressive component of the
13
speech. In re Tam, 808 F.3d at 1338; see New York Times Co. v. Sullivan, 376 U.S. 254, 265
14
(1964) (civil lawsuit is akin to regulation when plaintiff seeks to use courts to impose invalid
15
restrictions on the[] constitutional freedom[] of speech). Likewise, [a] profit motive . . . is
16
irrelevant to the inquiry of whether [use of a trademark] is . . . commercial. U.S. Olympic Comm.
17
v. Am. Media, Inc., 156 F. Supp. 2d 1200, 120708 (D. Colo. 2001) (citing, e.g., Pittsburg Press
18
Co. v. Pittsburgh Commn on Human Relations, 413 U.S. 376, 384 (1973)); accord, e.g., New
19
York Times, 376 U.S. at 266). Here, Plaintiff targets the expressive component of the certified
20
marks CARAs subjective opinion as to what parents may think of the content of the creative
21
work. Swope, 560 F. Supp. at 1339 (Obviously the line is difficult to draw and the PG-rated film
22
is the category most susceptible to criticism. In our plural society it is not easy to make subjective
23
judgments without incurring some disagreement.) (App. 1). His focus on the ratings expressive
24
qualities means that full First Amendment and anti-SLAPP protections apply. In re Tam, 808 F.3d
25
at 1338-39.
26
2.
27
28
Enforcing Rights In The Marks Does Not Render Ratings Commercial

Speech
Plaintiff also is wrong that CARAs efforts to enforce and protect its certification
3:16-cv-00935-RS
1 trademarked ratings against consumer confusion and dilution, Opp. 18, reduce the applicable
2 First Amendment and anti-SLAPP protection. Enforcing certification mark rights is about
3 preventing consumer confusion. Intl Info. Sys. Sec. Certification Consortium, Inc. v. Sec. Univ.,
4 LLC, 823 F.3d 153, 15960 (2d Cir. 2016).6 The fact that a mark serves as a source identifier does
5 not mean it lacks expressive value. That a certification mark owner can prevent others from using
6 similar marks to confuse the public does not detract from the expressive qualities of the mark or
7 the extent to which the First Amendment protects it. In re Tam, 808 F.3d at 1338.
8
3.
Ratings Are Not Seals Of Approval And Do Not Promote Rated Films
Similarly, Plaintiffs assertion that, as a matter of federal trademark law, CARA assigns
10 a rating for the purpose of promoting the sale of the film, Opp. 6, is both inconsistent with the
11 ratings on their face, and without legal basis. As a matter of federal trademark law and as
12 Plaintiff concedes, Opp. 5-6 CARA cannot promote the sale of any particular movie. 15 U.S.C.
13 1064 (registrants engag[ing] in the production or marketing of any goods or services to which
14 the certification mark is applied is grounds for cancellation of certification mark registration).
15
Plaintiffs argument that the ratings are seals of approval promoting rated movies, Opp.
16 1-2, 6, 11, 15, is also wrong. Some certification marks are seals of approval, but CARAs are not,
17 as the ratings guidelines, certification mark registrations, and language in the ratings boxes
18 themselves make clear. Supp. RJN Exs. 1-15; Compl. Ex. 1 at 1 (It is not CARAs purpose to
19 prescribe socially appropriate values). Indeed, the ratings system was designed to replace the
20 seal of approval process that previously had been in place. Under the Motion Picture Production
21 Code the predecessor to the ratings system movies were either approved or rejected based on a
22
Plaintiff mischaracterizes MPAA as describ[ing its] . . . use of the certification trademarked

23 ratings as commercial speech. Pl. RJN 2-4. The relevant statements in PTO filings say
nothing of the kind. Instead, the statements merely establish, in support of MPAAs opposition to
24 registration of confusingly similar marks, that the ratings marks are extremely well known
throughout the United States based on the fact that thousands of films have received a given
25 rating, resulting in widespread public exposure to the mark. Pl. RJN Ex. 2. 5 (More than a
26 billion movie tickets are sold in the United States every year, so Opposers PG Marks are seen by
millions of people every day in theaters.); id., Ex. 3 5 (same as to PG-13 marks); id., Ex. 4 at
3 (same as to R marks). The publics familiarity with the ratings certification marks is relevant
27
to the likelihood of confusion analysis, Kenner Parker Toys Inc. v. Rose Art Indus., Inc., 963 F.2d
28 350, 352 (Fed. Cir. 1992), but does not transform ratings into commercial speech.
3:16-cv-00935-RS
1 set of moral standards. Swope, 560 F. Supp. at 1335-37 (ratings chang[ed] the stern Seal of
2 Approval test to a system of rating for children) (quoting The Movie Rating System by MPAA
3 President Jack Valenti) (App. 1); Entertainment: Public Pressures and the Law: Official and
4 Unofficial Control of the Content and Distribution of Motion Pictures and Magazines, 71 Harv. L.
5 Rev. 326, 354-56 (1957). The CARA rating system was a marked departure: CARA would no
6 longer approve or disapprove the content of a film, but rather would rate movies for parents who
7 could then make an informed decision on whether their children should attend. Swope, 560 F.
8 Supp. at 1337 (App. 1).
9
CARAs ratings thus differ fundamentally from the paradigmatic certification program at
10 issue in the cases Plaintiff cites, including All One God Faith, Inc. v. Organic and Sustainable
11 Indus. Standards, Inc., 183 Cal. App. 4th 1186 (2010). Like many certification programs, the
12 OASIS Organic program was a thumbs-up or thumbs-down process: either pass certification
13 testing, in which case the manufacturer could place the certifiers mark on its products, or fail that
14 testing and be barred from doing so. Id. at 1196-97. A movie submitted to CARA for rating will
15 not get a thumbs-up or thumbs-down, but instead will receive one of the five available ratings
16 reflecting CARAs opinion, and be authorized to bear the corresponding certification marks.
17 Compl. 60 & Ex. 1 at 6-8. Far from serving as a promotional seal of approval for a rated movie,
18 the PG-13 rating advises parents to exercise caution before allowing children to see it.
19
As the Complaint concedes, the entire purpose of the ratings system is to inform parents.
20 See, e.g., Compl. Ex. 1 at 1. A movies rating like the listing of credits for that movie is thus
21 informational rather than directed at sales, and as such is protected by both the First Amendment
22 and anti-SLAPP statute. Kronemyer v. Internet Movie Data Base, Inc, 150 Cal. App. 4th 941, 947
23 (2007).7 Moreover, the First Amendment protection for ratings guards not only CARAs right to
24 speak, but also its right not to speak. Id. That is significant in light of Plaintiffs assertion that
25
This distinguishes Rezec v. Sony Pictures Entmt, Inc., 116 Cal. App. 4th 135 (2004), because a
fictitious critics favorable opinion of the films in an advertisement, id. at 142-43, obviously is
26
directed at sales. Kronemyer, 150 Cal. App. 4th at 947-48. In contrast, where any commercial
27 content in the communication is inextricably intertwined with expressive speech i.e.,
informational speech like the ratings it is treated as expressive speech under the First
28 Amendment when the expressive aspect is being regulated. In re Tam, 808 F.3d at 1339.
3:16-cv-00935-RS
1 his Complaint is also based upon two types of omissions, which he seeks to remedy through
2 mandatory injunctions compelling speech. Opp. 20 (emphasis in original). Such a lawsuit based
3 on inaction a failure to speak is squarely within the anti-SLAPP statutes scope. Kronemyer,
4 150 Cal. App. 4th at 947 (emphasis in original).
5
B.
Even if the ratings were merely commercial speech which, as shown, they are not
Ratings Are Speech And Conduct Related To Issues Of Public Interest
7 Plaintiff overlooks that the California Legislature expressly provided that commercial speech
8 about a motion picture or television program is not excluded from the protection of the anti9 SLAPP statute. Cal. Code Civ. Proc. 425.17(d)(2). Hence, the anti-SLAPP statute still applies
10 because the ratings concern a public issue or an issue of public interest. Stewart v. Rolling Stone
11 LLC, 181 Cal. App. 4th 664, 677-78 (2010) (Plaintiffs have not provided . . . any authority for the
12 proposition that commercial speech is categorically disentitled to protection under the anti-SLAPP
13 statute). (Ratings also constitute conduct in furtherance of the exercise of free speech on an
14 issue of public interest, as shown in Part C, infra. Cal. Code Civ. Proc. 425.16(e)(3) & (4).)
15
Courts have repeatedly rejected Plaintiffs argument that speech on a public issue is limited
16 to speech that contributes to or foster[s] a public debate (here on the meaning of the PG-13
17 mark). Opp. 11. As the California Court of Appeal recently held, it is
beyond dispute that the anti-SLAPP statute, including the scope of the term
public interest, is to be construed broadly. . . . Taken together, the[] cases and
the legislative history . . . suggest that an issue of public interest . . . is any issue
in which the public is interested. In other words, the issue need not be
significant to be protected by the anti-SLAPP statute it is enough that it is one
in which the public takes an interest.
18
19
20
21
22 Brodeur v. Atlas Entmt, Inc., 248 Cal. App. 4th 665, 674-75 (2016) (emphasis in original). The
23 requirement that speech contribute to an ongoing debate is limited to [s]tatements made only to a
24 limited, but definable portion of the public (a private group, organization, or community).
8
25 Trindade v. Reach Media Grp., LLC, 2013 WL 3977034, at *10 (N.D. Cal. July 31, 2013).
26
8
Even if the ratings were required to contribute to a public debate, movie ratings would still
qualify: they result i[n] controversy, inevitable, inexorable, and that is what the rating system has
28 to endure, Swope, 560 F. Supp. at 1340 (App. 1), and are directed to a large number of people.
(footnote continued on next page)
27
3:16-cv-00935-RS
Ratings for movies seen by millions of people every day in theaters, however, are not
2 communications limited to a small portion of society. Pl. RJN Ex. 3 5. Ratings are thus
3 protected because they fall into at least one of three categories of public issues: (1) statements
4 concern[ing] a person or entity in the public eye; (2) conduct that could directly affect a large
5 number of people beyond the direct participants; (3) or a topic of widespread, public interest.
6 Sarver v. Chartier, 813 F.3d 891, 901 (9th Cir. 2016) (The Hurt Locker a matter of public
7 interest); see, e.g., Brodeur, 248 Cal. App. 4th at 675 (precedent confirms there is a public
8 interest in the writing, casting and broadcasting of movies or TV shows); Kronemyer, 150 Cal.
9 App. 4th at 949 (credits for successful independent motion picture protected by anti-SLAPP
10 statute where movie was a topic of widespread public interest and 35 million people visit
11 [defendants] [w]eb site each month); Tamkin v. CBS Broadcasting, Inc., 193 Cal. App. 4th 133,
12 138 (2011) (TV show that, [a]ccording to a ratings Web site, . . . attracted 17.43 million viewers
13 a matter of public interest). At the very least, ratings constitute conduct in furtherance of the right
14 of free speech in connection with an issue of public interest (the movies themselves). Brodeur,
15 248 Cal. App. 4th at 677.9
16
C.
17
Even if ratings were not themselves protected speech, the rating of a movie would still be
Ratings Are Also Conduct In Furtherance of Protected Speech
18 protected conduct in furtherance of the exercise of the . . . constitutional right of free speech
19 in this case, the speech of the makers and distributors of those movies, among others. Cal. Code
20 Civ. Proc. 425.16(e)(4); Lennar Homes of Cal., Inc. v. Stephens, 232 Cal. App. 4th 673, 68081
21 (2014) (the anti-SLAPP statute may be invoked by one who did not personally engage in the
22 protected communicative conduct); see Mot. 10-11. [I]t is beyond dispute that movies involve
23 (footnote continued from previous page)
Trindade, 2013 WL 3977034, at *12 (California courts have found statements should receive
24 protection as consumer information when received by 1.8 million Americans).
9
These cases distinguish Dyer v. Childress, 147 Cal. App. 4th 1273 (2007), cited at Opp. 16,
25 because the Dyer court did not address whether there was any public interest in the creative
26 process underlying the production of the film. Brodeur, 248 Cal. App. 4th at 676 (quoting
Tamkin, 193 Cal. App. 4th at 144); see Sarver, 813 F.3d at 902. In rejecting reliance on Dyer and
reversing
denial of an anti-SLAPP motion, the Ninth Circuit has instructed that the proper inquiry
27
is whether the broad topic of Defendants conduct . . . is connected to a public issue or an issue of
28 public interest. Doe v. Gangland Prods., Inc., 730 F.3d 946, 956 (9th Cir. 2013); see Mot. 10.
3:16-cv-00935-RS
1 free speech. Brodeur, 248 Cal. App. 4th at 674 (American Hustle protected by anti-SLAPP
2 statute). CARAs rating system including its use of the rating certification marks furthers this
3 exercise of free speech because it underbrace[s] the right of the filmmaker to say what he chose
4 in the way and form he determined without anyone forcing him to cut one millimeter of film or
5 threatening to refuse him exhibition. Swope, 560 F. Supp. at 1337 (App. 1).
6
D.
If Ratings Are Based On Use Of A Registered Mark, As Plaintiff Claims, They

Fall Within 425.16(e)(2) Because The Application Is Protected By 425(e)(1)
7
As revised, Plaintiffs claims target protected speech for another reason. A trademark
8
application is protected by the anti-SLAPP statute as a writing made before ... [an] executive [or]
9
... other official proceeding authorized by law. Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590,
10
596 (9th Cir. 2010) (quoting 425.16(e)(1)). Thus, use of a certification trademark to give a
11
movie a PG-13 rating, Opp. 8-9, constitutes a written or oral statement or writing made in
12
connection with an issue under consideration or review by . . . [an] executive . . . body and is
13
thereby protected under (e)(2), Mindys Cosmetics, 611 F.3d at 596, regardless of whether it
14
constitutes a matter of public interest under (e)(3) and (4). See eCash Techs., Inc. v. Guagliardo,
15
210 F. Supp. 2d 1138, 1154 (C.D. Cal. 2001) (As the California Supreme Court has definitively
16
held, speech protected by (e)(2) is covered by Section 425.16 without any separate requirement
17
[it] be shown to be an issue of public significance.).10
18
19
III.
PLAINTIFF FAILS TO CARRY HIS BURDEN UNDER THE ANTI-SLAPP

STATUTE AND RULE 12(B)(6)
20
A.
21
Plaintiff cannot and so does not dispute that to the extent his claims attempt to change
Plaintiff Fails To Overcome The First Amendment Defenses To His Claims
22
10
23
24
25
26
27
28
Use of a registered certification mark in a rating for a movie is in connection with the
application for the registration because it is in relation to the certification statement and standards
filed with the application. Lafayette Morehouse, Inc. v. Chronicle Publg Co., 37 Cal. App. 4th
855, 863 (1995) (news article concerning dispute related to government proceedings and filings
therein was in connection with that official action). The matter remained under consideration or
review by the PTO because issuance of the [registration] . . . did not end the [PTO proceedings];
on the contrary, it initiated it. Dixon v. Superior Court, 30 Cal. App. 4th 733, 74243 (1994)
(emphasis in original); see 15 U.S.C. 1058, 1059. And even if PTO review had ended, the
statute applies to writings related to matter that was subjected to consideration and review.
Braun v. Chronicle Publg Co., 52 Cal. App. 4th 1036, 1049 (1997).
3:16-cv-00935-RS
1 CARAs opinions about what rating should be given movies with tobacco imagery and whether a
2 mandatory R rule is required, the First Amendment bars the claims. Mot. 11-13. Instead, the
3 Opposition argues that the Complaint is directed solely to use of certification marks, which he
4 says results in pure commercial speech that is false and misleading and thus not entitled to
5 First Amendment protection. Opp. 16-19. This argument fails.
6
First, the ratings are not commercial speech. In re Tam, 808 F.3d at 1355; supra 7-11.
Second, even if the ratings were commercial speech, they are not false and misleading. As
8 shown, the ratings CARA applies as opposed to the ratings Plaintiff imagines do not certify
9 the absence of content inappropriate for unaccompanied minors. Supra 4. Plaintiffs claims must
10 thus pass heightened judicial scrutiny, Retail Digital Network, 810 F.3d at 648, which they
11 cannot do. Mot. 13 n.9 (explaining Complaints under-inclusiveness, and thus lack of fit). 11
12
NATOs Supplemental Brief also showed that the First Amendment prohibits (i) imposing
13 liability based on inherently subjective differences of opinion over whether particular movies
14 should be rated PG-13 or R, Supp. Brief 1 (citing, e.g., Partington v. Bugliosi, 56 F.3d 1147 (9th
15 Cir. 1995)) and (ii) court-mandated censorship through an injunction compelling, inter alia, an R
16 rating for movies depicting use of tobacco not approved by Plaintiff, id. 1-3 (citing, e.g., Brown v.
17 Entmt Merchants Assn, 564 U.S. 786 (2011), Agency for Intl Dev. v. Alliance for Open Society
18 Intl, 133 S. Ct. 2321 (2013), Wooley v. Maynard, 430 U.S. 705 (1977), and R.A.V. v. City of St.
19 Paul, 505 U.S. 377 (1992)).
20
The only case Plaintiff addresses is Brown and then only in a footnote attempting to
21 distinguish Brown because causation is alleged to be scientifically established here, whereas

22 Brown lacked an established scientific causal relationship. Opp. 1 n.1. But beyond insufficient
23 proof of causality, the Court in Brown also found the law seriously underinclusive in another
24 respect and a respect that renders irrelevant the contentions . . . that video games are
25
11
Even if Plaintiff plausibly alleged the ratings were false and misleading (which he has not
26 done), his claims are still content-based namely, tobacco-related content Plaintiff believes should
not be in movies rated PG or PG-13 subject to heightened First Amendment scrutiny. R.A.V.,
27
505 U.S. at 383-84 (even speech said to be unprotected may not be made the vehicles for content
28 discrimination unrelated to their distinctively proscribable content).
3:16-cv-00935-RS
1 qualitatively different from other portrayals of violence. The California Legislature is perfectly
2 willing to leave this dangerous, mind-altering material in the hands of children so long as one
3 parent . . . says its OK. Brown, 564 U.S. at 802. And the Court found the ban on sales of
4 violent video games to minors without an adult present to be vastly overinclusive, and thus not
5 narrowly tailored, as is required to survive strict scrutiny. Id. at 804. The Courts reasoning is
6 fatal to Plaintiffs case.
7
To quote a court that cited Brown in striking down a law banning material harmful to
8 minors on the Internet, Plaintiffs action is not narrowly tailored because content-filtering . . . by
9 parents offers a less restrictive and more effective means to protect children from harmful
10 content. Garden Dist. Book Shop, Inc. v. Stewart, 2016 WL 1734093, at *5 (M.D. La. Apr. 29,
11 2016). What legislatures cannot impose without running afoul of the First Amendment, Plaintiff
12 cannot achieve through litigation. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 572 n.17 (1996).
13
14
15
B.
The Opposition Does Not Save Plaintiffs Negligent Misrepresentation Claim

1.
Plaintiff Has Not Identified A False Or Misleading Statement Of Fact
To state a misrepresentation claim, he must identify a positive assertion or assertion of
16 fact that is false or misleading. Hynix Semiconductor Inc. v. Rambus Inc., 2007 WL 4209399, at
17 *11 (N.D. Cal. Nov. 26, 2007). Plaintiff contends the Complaint meets this requirement in two
18 ways, but he is wrong as to both.
19
First, Plaintiff argues that a PG-13 rating is a representation that the film is suitable for
20 children under seventeen unaccompanied by a parent or guardian, and that this representation is
21 false because the depiction of any tobacco use is per se inappropriate for viewing by
22 unaccompanied minors. Opp. 20. The rating makes no such representation. Supra 4.
23
Second, Plaintiff asserts that CARA has made misrepresentations by omission, namely,
24 failing to disclose (1) the alleged effects of exposing youth to tobacco imagery in movies and
25 (2) the presence of tobacco imagery. A negligent misrepresentation claim, however, requires
26 a positive assertion, not merely an omission. Lopez v. Nissan N. Am., Inc., 201 Cal. App. 4th
27 572, 596 (2011) (citation omitted); Hynix, 2007 WL 4209399, at *11 (same).
28
3:16-cv-00935-RS
2.
Plaintiff Cannot Convert Opinions Into Facts
Plaintiff does not and cannot dispute that misrepresentation claims may not be based on
3 opinions. Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 835 (2002). He instead argues that the
4 opinions he challenges are actually representations of facts. Opp. 20. Plaintiff is wrong.
5
First, Plaintiff argues that a PG-13 rating constitutes a representation that the film is
6 appropriate for children under seventeen without a parent or guardian, which Plaintiff claims is
7 false when movies with tobacco imagery are rated PG-13. Opp. 22. To the contrary, CARAs
8 PG-13 rating makes no affirmative representation, but rather is CARAs subjective belie[f] that
9 most American parents would consider PG-13 to be the appropriate rating. Compl. 59; see Mot.
10 at 4. Plaintiff cannot show that CARAs beliefs about the opinions of most American parents
11 are assertions of fact.12
12
Second, Plaintiff claims CARAs application for and enforcement of its certification marks
13 establish the ratings are factual representations and not opinions. Opp. 22. He cites no law to
14 support his theory, and the registrations squarely contradict this contention. They expressly state
15 that CARAs ratings are opinions. Supra 4-6; Supp. RJN Exs. 1-13.
16
Third, Plaintiff contends CARAs certification trademarks show CARA intends for parents
17 to rely on the ratings, which he says means the ratings are representations of fact and not opinion.
18 Opp. 20-23. This argument fails for the same reason as Plaintiffs argument based on All One God
19 Faith fails: CARAs ratings are fundamentally different than a binary certification indicating
20 whether a product is organic or non-organic or, as in the cases Plaintiff collects at Opp. 21
21 n.14, indicating whether a product is natural vs. non-natural, safe vs. unsafe, or healthy vs.
22 unhealthy. Instead, CARAs ratings are opinions concerning the level of certain content in a
23
24
25
26
27
28
12
See, e.g., Aviation Charter, Inc. v. Aviation Research Grp./US, 416 F.3d 864, 870 (8th Cir.
2005) (rating of air charters on a scale of 1 [to] 10 based on safety and other data was
ultimately a subjective assessment, not an objectively verifiable fact); Browne v. Avvo Inc., 525
F. Supp. 2d 1249, 1252-53 & n.1 (W.D. Wash. 2007) (attorney rating system virtually impossible
to prove wrong even if [o]ne may disagree with defendants evaluation of the underlying
objective facts); Castle Rock Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis, Inc.,
354 S.W.3d 234, 243 (Mo. Ct. App. 2011) (Although one may disagree with BBBs evaluation of
the underlying objective facts, the rating itself cannot be proved true or false.).
3:16-cv-00935-RS
1 motion picture based on CARAs consideration of the opinions of the majority of American
2 parents. Supra 4-6; Compl. Ex. 1 at 1, 6.
3
Finally, Plaintiff argues that, even if CARAs ratings are opinions, they are actionable
4 because CARA through its certification trademarks claims to have special information and a
5 factual basis for certifying that PG-13 movies are appropriate for unaccompanied youth under
6 17. Opp. at 23-24. But again, a PG-13 rating does not make this certification. Supra 4.
7 Plaintiffs cases are therefore unavailing. In Doran v. Milland Dev. Co., 159 Cal. App. 2d 322
8 (1958), the defendant stated as if it were an objective fact that the foundation of a building
9 was properly built when it was not. Id. at 324-25. CARAs certification trademarks do not hold
10 out the ratings as factual statements that movies are appropriate for children. Instead, they are
11 express statements that material may be inappropriate for children and are expressly represented
12 as CARAs opinions. Supp. RJN Exs. 1-13. And the ratings warn parents to exercise caution
13 before allowing children to attend; they are not a blanket approval for children of a certain age to
14 attend. CARAs guidelines also make clear that the ratings express what CARA believe[s] and
15 its view[s], which are intended to reflect the opinion[s] of most American parents. Compl.
16 58-59. Finally, CARA does not purport to base its ratings on specialized non-public
17 information. Rather, CARAs guidelines explain that its raters need only to be parents with no
18 affiliation with the entertainment industry. Id. 58.13
19
3.
20
The Complaints conclusory assertions that CARA either has a general duty or a
21
22
23
24
25
Plaintiff Has Not Plausibly Alleged A Duty To Assign R Ratings To

Movies With Tobacco Imagery
voluntarily assumed duty to automatically rate movies R if they contain tobacco imagery are
contradicted by the exhibits to the complaint and the requests for judicial notice, which control.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). CARA has expressly
disclaimed any such duty. Mot. 15-16 (citing Compl. Ex. 5 at 6). CARA certainly has not
13
Cf. CalPERS v. Moodys Investor Serv., Inc., 226 Cal. App. 4th 643, 663-64 (2014) (ratings
based on superior knowledge, information and expertise regarding financial instruments not
27 generally available in the market actionable); Jolley v. Chase Home Fin., LLC, 213 Cal. App. 4th
872, 884 (2013) (actionable for salesman, who claimed to be from executive offices, to say it was
28 highly probable loan modification would be approved where he had no approval authority).
26
3:16-cv-00935-RS
1 specifically undertaken it, as necessary for a voluntarily assumed duty. Id. Plaintiffs
2 counterarguments are meritless.
3
First, Plaintiff reverses course by claiming the Complaint does not allege a duty to give
4 movies with tobacco imagery an R rating. Opp. 31 n.23 (quoting Mot. 15-16). However, an
5 entire section of the Complaint is entitled: Imposing a duty upon Defendants to include depiction
6 of tobacco imagery as a criteria requiring the assignment by the MPAA of an R rating is
7 foreseeable. Compl. 22. The Complaint also alleges the effects of requiring defendants to
8 assign films with tobacco imagery an R rating and of requiring defendants to act with due care
9 to assign films with tobacco imagery an R. Id. 77-80.
10
Even if Plaintiff were right that the Complaint alleges not a duty to rate movies with
11 tobacco images R, but instead only to exercise due care in rating movies as suitable or
12 unsuitable for youth, Opp. 29-31, Plaintiffs duty argument still would fail. As demonstrated,
13 the rating system does not make or purport to make any such binary determination. Supra 4.
14
Second, Plaintiff argues CARAs disclaimer of the duty underlying his claims was
15 ineffective because it did not contain particular words. CARA said it does not assign a
16 mandatory R rating on all films that contain any smoking. Compl. Ex. 5 at 6. CARA expressly
17 states that its ratings do not seek to prescribe socially-appropriate values or to suggest any
18 evolution of values, but instead to reflect . . . the current values of the majority of American
19 parents. Compl. 58. Plaintiff says this was insufficient because it did not say defendants
20 hereby disclaim liability for negligence in the rating of films or [d]efendants are not liable for
21 negligent or intentional accuracies in the ratings assigned to any film. Opp. 32. Magic words are
22 not required to make a disclaimer effective. Young v. Facebook, Inc., 2010 WL 4269304 (N.D.
23 Cal. Oct. 25, 2010), held that Facebook disclaimed a duty to provide for the safety of its users by
24 stating [w]e do our best to keep Facebook safe, but we cannot guarantee it. Id. at *4-5.
25
Third, Plaintiff argues that the Complaint is not attempting to advance a policy agenda, but
26 it clearly tries to do just that. Opp. 31. The Complaint would require CARA to assign ratings
27 based on what most American parents allegedly would believe if they had additional information,
28 not what they do believe. Compl. 88. While Plaintiff protests otherwise, Opp. 31 n.24, there is
3:16-cv-00935-RS
1 no logical limit to the duty Plaintiff proposes. As long as a plaintiff alleged that movies depicting
2 bullying or alcohol use led to increased bullying or alcoholism, for example, CARA would be
3 liable for not automatically assigning R ratings to movies with such content.
4
Fourth, although the voluntary undertaking doctrine is not favored in the law, Jackson v.
5 AEG Live, LLC, 233 Cal. App. 4th 1156, 1176 (2015), Plaintiff argues CARA breached a
6 voluntarily assumed duty to assign a rating to each film that a majority of American parents
7 would assign. Opp. 34. CARAs guidelines, however, say it rates movies as it believes most
8 American parents would. Compl. 59. The Complaint does not and cannot allege CARA does
9 not believe its policy for rating movies reflects the views of most American parents.
10
Fifth, Plaintiff claims CARAs guidelines cannot circumscribe the scope of any assumed
11 duty because there is no evidence that plaintiff or any parent was aware of defendants internal
12 written rules or agreed to be bound by them. Opp. 33. But he does not explain why that is
13 necessary. And he ignores his own allegation that the scope of CARAs alleged duty is measured
14 by its guidelines: it is reasonable to impose a duty upon defendants to exercise due care, and to
15 rate films accurately and according to their own voluntarily adopted standards. Compl. 74.
16
Finally, Plaintiff argues that CARAs guidelines do not delineate the scope of its
17 voluntarily assumed duty because CARA has not consistently explained that its ratings reflect
18 opinions about the views of most American parents. Opp. 33-34. He does so, however, only by
19 cherry picking and mischaracterizing portions of letters and press releases. One of the press
20 releases Plaintiff relies upon expressly states that [t]he members of the Rating Board are tasked
21 with rating a film the way a majority of American parents from across the country would rate it.
22 Pl. RJN Ex. 5 at 4.14 And Plaintiff alleges no facts to establish the existence or scope of any
23 voluntary duties. The content of the ratings, the standards governing the rating system, and
24 CARAs public statements about the ratings all show that CARA has not specifically undertaken a
25
26
14
Contrary to Plaintiffs assertion, Exhibit 2 to the Complaint neither states nor implies that
CARA was soliciting expert medical and public health advice for the purpose of properly rating
28 films with tobacco imagery. Opp. 34.
27
3:16-cv-00935-RS
1 duty to act with due care to assign films with tobacco imagery an R rating or to determine
2 which movies are suitable and appropriate for which children. Compl. 79, 87.
3
4
4.
Plaintiff Has Not Plausibly Alleged Reasonable Reliance
The Complaint does not plausibly allege that Plaintiff reasonably relied on the PG-13
5 rating as a representation that PG-13 rated movies would not contain tobacco imagery when he
6 repeatedly saw PG-13 movies that did contain such imagery and when, according to Plaintiff,
7 tobacco imagery is pervasive in such movies. Compl. 35, 107. Plaintiff now asserts that the
8 representation he relied on was that the movies he saw would contain no content that is
9 inappropriate for unaccompanied youth under 17, Opp. 26, but that is not what a PG-13 rating
10 says. Supra 4. In fact, the ratings representation that Some Material May Be Inappropriate For
11 Children Under 13 applied directly in Plaintiffs case. Compl. 107. Plaintiff cannot establish
12 reasonable reliance by close[ing] his eyes to what a PG-13 rating actually says. Broberg v.
13 Guardian Life Ins. Co. of Am., 171 Cal. App. 4th 912, 922 (2009).
14
15
5.
Plaintiff Has Not Plausibly Alleged Proximate Causation
Plaintiff concedes that California law precludes recovery of damages based on Plaintiffs
16 childrens alleged increased risk of addiction, disease and premature death. Opp. 28-29. In an
17 attempt to salvage his theory, Plaintiff emphasizes that he also requests declaratory relief,
18 injunctive relief, punitive damages, and any other relief the Court deems appropriate. Id. at 29.
19 But Plaintiff is not entitled to any relief based on his risk exposure theory unless he can establish
20 proximate cause. See, e.g., Elliott v. Rodeo Land & Water Co., 141 Cal. App. 2d 404, 409 (1956)
21 (no injunctive relief unless proximate cause is established). That he cannot do. The Complaint
22 does not plausibly allege facts showing that CARAs assignment of PG-13 ratings to movies with
23 tobacco imagery directly cause[d] any injury to Plaintiffs or putative class members children.
24 Benefiel v. Exxon Corp., 959 F.2d 805, 808 (9th Cir. 1992); Mot. 19.
25
C.
26
Plaintiffs fraudulent misrepresentation claim fails for primarily the same reasons as his
The Opposition Does Not Save Plaintiffs Fraudulent Misrepresentation Claim
27 negligent misrepresentation claim. Although a fraudulent misrepresentation claim may be based

28 on concealment or non-disclosure, such a claim still requires a duty to disclose the concealed or
3:16-cv-00935-RS
1 omitted information. Hoffman v. 162 N. Wolfe LLC, 228 Cal. App. 4th 1178, 1186 (2014). As
2 discussed, Plaintiff cannot establish that CARA has a duty to assign an R rating to movies with
3 any tobacco imagery, a duty to disclose whether PG-13 movies contain any tobacco imagery, or a
4 duty to inform the public about the studies Plaintiff cites. Supra 17-19.
5
This claim also fails because the Complaint does not plead scienter. Plaintiff now asserts
6 that he can establish scienter based on allegations that exposure to tobacco imagery causes
7 rather than is correlated with nicotine addition, tobacco-related diseases and death. Opp. 35.
8 But that says nothing about CARAs state of mind. CARAs ratings reflect its opinions about
9 most American parents current values, Compl. 59, and the Complaint fails to allege that CARA
10 does not genuinely believe its opinions about the same. Such opinions are not provably false.
11 Supra 16-17. The research Plaintiff cites does not establish scienter.
12
D.
13
Plaintiffs defense of his negligence claims fail because he does not and cannot allege
The Opposition Grounds Negligence Claims In Duties That Do Not Exist
14 CARA owes parents a general duty to assign an R rating to every movie with tobacco imagery or
15 that CARA has voluntarily assumed this duty. Compare Opp. 29-35 with supra 17-19. The
16 negligence claims also fail because the complaint does not plausibly allege proximate causation or
17 recoverable damages, supra 20, and those claims duplicate the negligent misrepresentation claim.
18 Holcomb v. Wells Fargo Bank, N.A., 155 Cal. App. 4th 490, 501 (2007).
19
In a footnote, Plaintiff asserts that negligence claims may be based on lack of warnings
20 regarding the health link between smoking imagery and smoking by minors. Opp. 25 n.18. This
21 contention also fails. California courts have generally rejected a broad obligation to disclose,
22 except for omissions that are contrary to a representation actually made by the defendant, or . . .
23 omission[s] of a fact the defendant was obligated to disclose. Hodsdon v. Mars, Inc., -- F. Supp.
24 3d --, 2016 WL 627383, at *5 (N.D. Cal. Feb. 17, 2016) (citing Wilson v. HewlettPackard Co.,
25 668 F.3d 1136, 1141 (9th Cir. 2012)). Neither of these limited exceptions applies here. CARAs
26 ratings are opinions, not representations of fact, and the ratings do not omit contrary facts.
27
Moreover, the duty to disclose under California law is limited to a manufacturers
28 obligation to disclose a products safety risks and [a] product[s] defects. Id. at *6. CARA is
3:16-cv-00935-RS
1 not a manufacturer, and the ratings are not products. Plaintiff does not allege the movies
2 themselves are defective products. While Plaintiff has named the motion picture studio members
3 of the MPAA as defendants, he alleges they are liable for the operation of the ratings system, not
4 for the alleged effects of their movies. Any argument that the producer of a movie would be liable
5 for failing to warn of such effects would be barred under basic First Amendment principles. See
6 Olivia N. v. Natl Broadcasting Corp., 126 Cal. App. 3d 488, 492-96 (1981) (rejecting, on First
7 Amendment grounds, claim that movie producers were negligent for failing to warn of violent
8 content in light of defendants knowledge of studies on child violence); Bill v. Superior Court,
9 137 Cal. App. 3d 1002, 1006-07 & n.1 (1982) (listing cases in various jurisdictions rejecting, on
10 First Amendment grounds, tort claims based on impact of movie or television content on
11 viewer/listener); accord supra 14-15 (discussion of Brown and other First Amendment cases).
12
E.
13
Plaintiff does not dispute that CARAs relationship with parents is not the type of
The Opposition Confirms That Plaintiffs Fiduciary Duty Claim Fails
14 technical, legal relationship[] such as guardian and ward, trustee and beneficiary, principal and
15 agent, or attorney and client for which [f]iduciary duties arise as a matter of law. Oakland
16 Raiders v. Natl Football League, 131 Cal. App. 4th 621, 632-34, 638 (2005). Instead, Plaintiff
17 must argue that CARA has agreed to be the fiduciary for every American parent because
18 Defendants solicit and accept parents trust in the rating system and give priority to parents
19 interests by refus[ing] to sell their products to children under seventeen if they determine the
20 product is not appropriate for them. Opp. 36-37. But this argument is self-defeating: as the cases
21 Plaintiff himself cites make clear, this sort of transactional relationship is not enough to create a
22 fiduciary duty. Comm. On Childrens Television, Inc. v. General Foods Corp., 35 Cal. 3d 197,
23 221-22 (1983) (affirming sustaining of demurrer without leave to amend). 15
24
If Defendants were fiduciaries for millions of American parents, every time a parent
25 purchased a movie ticket for his or her child, the law would presume[] the agreement was entered
26 into by the beneficiary without sufficient consideration and under undue influence. Id. at 222
27
15
Even if he alleged a fiduciary relationship, Plaintiffs fiduciary duty claim would fail because he
28 cannot establish that CARA made any misrepresentations or breached any duties. Supra 15-19.
3:16-cv-00935-RS
1 (citation omitted). This cannot be the case, and is one reason why [fiduciary] principles are
2 generally inappropriate in a buyer-seller context, however disparate the partys resources. Id.
3
Plaintiffs authority also shows that, as a matter of law, CARA did not entered into a
4 confidential relationship giving rise to fiduciary duties because the necessary predicate of
5 vulnerability on [Plaintiffs] part is completely absent. Persson v. Smart Inventions, Inc., 125
6 Cal. App. 4th 1141, 1161 (2005) (reversing plaintiffs judgment on fiduciary duty claim). The
7 vulnerability essential to this claim usually arises from advanced age, youth, lack of
8 education, weakness of mind, grief, sickness, or some other incapacity, id. at 1162, none of
9 which apply here. CARAs ratings do not make a final judgment on the possible suitability or
10 unsuitability of viewing by children parents do. Desilets on Behalf of Desilets v. Clearview
11 Regl Bd. of Educ., 630 A.2d 333, 339-40 (N.J. App. Div. 1993), affd, 647 A.2d 150 (1994).
12
F.
13
Because Plaintiffs nuisance claim relies on the same allegations about the lack of due care
The Opposition Also Confirms That Plaintiffs Nuisance Claim Fails
14 as his negligence claim, both claims fail together. Melton v. Boustred, 183 Cal. App. 4th 521, 542
15 (2010). Plaintiff hypothesizes that nuisance and negligence may differ, but does not explain how
16 the Complaint alleges or could allege any differences. Opp. 38. Plaintiff relies on Team
17 Enterprises, LLC v. W. Inv. Real Estate Trust, 647 F.3d 901 (9th Cir. 2011), but that case did not
18 involve negligence and does not help Plaintiff. On the contrary, it shows his nuisance claim fails
19 because he does not allege CARA engaged in the affirmative acts or instructions necessary to
20 assist in creating the nuisances of smoking and related health issues. Id. at 912. Plaintiffs
21 nuisance claim also fails because he cannot establish a duty of care or causation. Supra 17-20.
22
G.
23
Plaintiffs FAL claim fails because assigning PG-13 ratings to movies with tobacco use
The Opposition Offers No Real Defense Of Plaintiffs False Advertising Claim
24 cannot constitute an actionable misrepresentation, Bernardo v. Planned Parenthood Fedn of Am.,

25 115 Cal. App. 4th 322, 348-49 (2004) and supra 15-17; CARAs ratings are protected by the First
26 Amendment, Bernardo, 115 Cal. App. 4th at 343-45 and supra 13-15; and the Complaint does not
27 allege the ratings are untrue or are likely to deceive reasonable parents, Bernardo, 115 Cal. App.
28
3:16-cv-00935-RS
1 4th at 355-56; Rosado v. eBay Inc., 53 F. Supp. 3d 1256, 1264 (N.D. Cal. 2014); supra 15, 20.
2 The Opposition does not refute these points or Bernardo and Defendants other authority.
3
H.
Plaintiffs UCL claim fails because CARAs ratings are protected noncommercial speech.
The Opposition Does Not Save Plaintiffs Unfair Competition Law Claim
5 Bernardo, 115 Cal. App. 4th at 343; supra 7-11. The claim also fails because the Complaint does
6 not satisfy any prong of the UCL. Plaintiff does not show otherwise.
7
Plaintiff does not address, for example, the inability of either the deficient nuisance and
8 FAL claims or Penal Code 272 or 308 to support a claim based on the unlawful prong of the
9 UCL. Nor does Plaintiff explain how the Complaint could satisfy any version of the unfairness
10 test, including the inapposite Camacho test, upon which Plaintiff relies. Opp. 39.16 Plaintiff
11 cannot allege he was injured by [an] allegedly unfair practice because CARAs ratings do not
12 misrepresent the contents of PG-13 movies or certify that such movies will not include tobacco
13 imagery. Camacho v. Auto. Club of S. Cal., 142 Cal. App. 4th 1394, 1405-06 (2006); see also
14 Hodsdon, 2016 WL 627383, at *7 (failure to disclose use of child labor in chocolate
15 manufacturing not unfair under either prevailing test for unfair practice). Moreover, if
16 Plaintiff or other parents want to know the precise extent of tobacco imagery in movies, there are
17 readily available rating services that actually endeavor to provide that information, see Camacho,
18 142 Cal. App. 4th at 1406, such as http://www.scenesmoking.org. See RJN Exs. 1-3.
19
Finally, Plaintiff concedes the Complaint does not satisfy the fraudulent prong of the
20 UCL if the FAL claim, which applies the same standard, fails. Opp. 39. It does. See supra 23.17
21
CONCLUSION
22
Plaintiffs meritless attempt to re-plead the Complaint in his Opposition confirms there is
23 no possible method to cure the[] deficiencies . . . [in] the complaint. Hodsdon, 2016 WL
24 627383, at *1. Accordingly, there is no basis for granting leave to replead. Id. at *1, 9
25
16
See Backus v. Gen. Mills, Inc., 122 F. Supp. 3d 909, 929 (N.D. Cal. 2015) (explaining the Ninth
Circuit rejected the use of the [Camacho] test in the consumer context in Lozano v. AT & T
27 Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007)); accord Hodsdon, 2016 WL 627383, at *7 n.5.
26
28
17
Plaintiffs suggestion that a duty to disclose exists, Opp. 25 n.18, is wrong. Supra 21-22.
3:16-cv-00935-RS
1 (dismissing initial complaint with prejudice). For the reasons set forth above and in the Motion,
2 Defendants respectfully submit that the Court should strike the Complaint or dismiss it with
3 prejudice.
4 DATED: September 15, 2016
MUNGER, TOLLES & OLSON LLP
By:
/s/ Kelly M. Klaus

KELLY M. KLAUS
Attorneys for MPAA and Studio Defendants
7
BRYAN CAVE LLP
8
By:
9
10
11
12
/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.
13
14
15
DATED: September 15, 2016
By:
/s/ Kelly M. Klaus

KELLY M. KLAUS
16
17
18
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20
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25
26
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3:16-cv-00935-RS

Defs.' Reply Iso Special Mot. To Strike and Mot. To Dismiss: 3:16-cv-00935-RS

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Defs.' Reply Iso Special Mot. To Strike and Mot. To Dismiss: 3:16-cv-00935-RS

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Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 1 of 33

1 GLENN D. POMERANTZ (SBN 112503)

K. LEE MARSHALL (SBN 277092)

11 Attorneys for Defendants Motion Picture

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17 TIMOTHY FORSYTH, individually and on

21 MOTION PICTURE ASSOCIATION

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

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 2 of 33

PLAINTIFFS ATTEMPTS TO REWRITE HIS COMPLAINT CONFIRM THE

Defendants Motion Demonstrated The Defects In The Complaint, As

Plaintiffs Revised Allegations Mischaracterize The Ratings And

PLAINTIFFS ARGUMENTS AGAINST APPLYING THE ANTI-SLAPP

Ratings Do Not Lose Their Protection As Speech Because They Are

Neither Use In Commerce Under The Lanham Act Nor A Profit

Enforcing Rights In The Marks Does Not Render Ratings

Ratings Are Not Seals Of Approval And Do Not Promote Rated

Ratings Are Also Conduct In Furtherance of Protected Speech.......................... 12

If Ratings Are Based On Use Of A Registered Mark, As Plaintiff Claims,

PLAINTIFF FAILS TO CARRY HIS BURDEN UNDER THE ANTI-SLAPP

Plaintiff Fails To Overcome The First Amendment Defenses To His Claims........ 13

The Opposition Does Not Save Plaintiffs Negligent Misrepresentation

Plaintiff Has Not Identified A False Or Misleading Statement Of

Plaintiff Cannot Convert Opinions Into Facts ............................................. 16

Plaintiff Has Not Plausibly Alleged A Duty To Assign R Ratings To

Plaintiff Has Not Plausibly Alleged Reasonable Reliance.......................... 20

-1DEFS. REPLY ISO SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 3 of 33

Plaintiff Has Not Plausibly Alleged Proximate Causation.......................... 20

The Opposition Does Not Save Plaintiffs Fraudulent Misrepresentation

The Opposition Confirms That Plaintiffs Fiduciary Duty Claim Fails.................. 22

The Opposition Offers No Real Defense Of Plaintiffs False Advertising

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 4 of 33

BMW of N. Am., Inc. v. Gore,

Doe v. Gangland Prods., Inc.,

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 5 of 33

3 Joseph Burstyn, Inc. v. Wilson,

Mindys Cosmetics, Inc. v. Dakar,

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 6 of 33

3 Wilson v. HewlettPackard Co.,

Young v. Facebook, Inc.,

Bill v. Superior Court,

Brodeur v. Atlas Entmt, Inc.,

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 7 of 33

3 Doran v. Milland Dev. Co.,

Elliott v. Rodeo Land & Water Co.,

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 8 of 33

3 Rezec v. Sony Pictures Entmt, Inc.,

Tamkin v. CBS Broadcasting, Inc.,

Cal. Code Civ. Proc. 425.17(d)(2) ................................................................................................11

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 9 of 33

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 10 of 33

PLAINTIFFS ATTEMPTS TO REWRITE HIS COMPLAINT CONFIRM THE

Defendants Motion Demonstrated The Defects In The Complaint, As

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 11 of 33

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 12 of 33

Plaintiffs Revised Allegations Mischaracterize The Ratings And Certification

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 13 of 33

Certifies that the motion picture film is, in the opinion of

The certification mark certifies that the motion picture film, in

The certification mark certifies that the motion picture film, in

Case 3:16-cv-00935-RS Document 48 Filed 09/15/16 Page 14 of 33