Perry V Brown Motion To Strike

Case 2:18-cv-09543-JFW-SS Document 45-1 Filed 02/08/19 Page 1 of 24 Page ID #:509
1 Brent H. Blakely (SBN 157292)

bblakely@blakelylawgroup.com
2
BLAKELY LAW GROUP
3 1334 Parkview Avenue, Suite 280
4
Manhattan Beach, California 90266
Telephone: (310) 546-7400
5 Facsimile: (310) 546-7401
6 Attorneys for Defendant
7 Phil Brown
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
STEPHEN PERRY, an individual, Case No. 2:18-cv-09543 JFW (SSX)
12
DEFENDANT PHIL BROWN’S
13 Plaintiff,
MEMORANDUM OF POINTS AND
14 AUTHORITIES IN SUPPORT OF
v.
MOTION:
15
PHIL BROWN, an Individual, and
16 DOES 1 through 10, inclusive, 1) TO STRIKE PERRY’S
CALIFORNIA RIGHT OF
17 PUBLICITY CLAIMS (CAL.
Defendant.
18 CODE CIV. PROC. § 425.16) AND,
19
2) DISMISS PERRY’S
20 TRADEMARK CLAIMS
PURSUANT TO FRCP 12(b)(6).
21
22 DECLARATION OF PHIL BROWN
FILED CONCURRENTLY
23
HEREWITH
24
Date: March 11, 2019
25
Time: 1:30 p.m.
26 Location: Courtroom 7A
27
Hon. John F. Walter
28
DEFENDANT PHIL BROWN’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

STRIKE/DISMISS
1 TABLE OF CONTENTS
2 INTRODUCTION ............................................................................................. 1
3 FACTUAL AND PROCEDURAL BACKGROUND ...................................... 2
4 A. Summary of Relevant Allegations .......................................................... 2
5 B. Summary of Proceedings ........................................................................ 3
6 ARGUMENT .................................................................................................... 4
7 A. Anti-SLAPP Motion C.C.P. § 425.16 ..................................................... 4
8 The Accused Comments Concerning Steve Perry Fall
Within the Scope of the Anti-SLAPP Statute Because it is
9 Speech About A Matter of Public Interest ................................... 5
10 2. Perry Cannot Demonstrate a Probability of Success on His
California Right of Publicity Claims Against Brown .................. 8
11
a. Brown is a co-author of the compositions and sound
12 recordings at issue, both of which are joint works. ............ 8
13 b. The Accused Speech Involved an Issue of Public
Interest ................................................................................ 9
14
c. Plaintiff Cannot Establish Personal Jurisdiction Over
15 Brown ............................................................................... 10
16 i. There is No Purposeful Direction .......................... 12
17 ii. The Claims Against Brown Do Not Arise Out
of Forum-Related Activities Performed by
18 Brown ..................................................................... 14
19 iii. Jurisdiction Over Brown Would be
Unreasonable .......................................................... 14
20
d. Perry Has Not Pled or Otherwise Established
21 Brown’s Vicarious Liability for the Two Tweets by
Mr. Bann ........................................................................... 15
22
B. Mr. Brown’s Motion to Dismiss Pursuant to FRCP 12(b)(6)............... 15
23
1. The Accused Speech is a Protected Fair Use ............................. 16
24
IV. CONCLUSION ............................................................................................... 18
25
26
27
28
i
STRIKE
1 TABLE OF AUTHORITIES
2
Cases
3
1-800 Contacts, Inc. v. Steinberg
4 (2003) 107 Cal. App. 4th 568 ............................................................................ 8
5 Aalmuhammed v. Lee,
202 F.3d 1227 (9th Cir.2000) ............................................................................ 8
6
Alarm Fin. Enters., L.P. v. Nebel,
7 200 F. Supp. 3d 976 (N.D. Cal. 2016) ............................................................ 13
8 Ashcroft v. Iqbal,
556 U.S. 662 (2009) ........................................................................................ 16
9
Barry v. State Bar of California
10 (2017) 2 Cal. 5th 318 ....................................................................................... 11
11 Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) ........................................................................... 4
12
Bell Atl. Corp. v. Twombly,
13 550 U.S. 544 (2007) ........................................................................................ 16
14 Blanche Hall v. Time Warner Inc.
(2007) 153 Cal. App. 4th 1337 ........................................................................... 7
15
Briggs v. Eden Council for Hope and Opportunity
16 (1999) 19 Cal. 4th 1106 ..................................................................................... 4
17 Bristol-Myers Squibb Co. v. Superior Court,
137 S. Ct. 1773 (2017) .................................................................................... 11
18
Burger King Corp. v. Rudzewicz,
19 471 U.S. 462 (1985) ........................................................................................ 12
20 Burger King Corp. v. Rudzewicz,
471 U.S. 462 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) ........................................ 13
21
Cairns v. Franklin Mint Co.,
22 292 F. 3d 1139 (9th Cir. 2002) ........................................................................ 16
23 Carlisle v. Fawcett Publications, Inc.,
(1962) 201 Cal. App. 2d 733 ............................................................................. 7
24
Cher v. Forum Intern., Ltd.,
25 692 F.2d 634 (9th Cir. 1982) ........................................................................... 10
26 Circle Click Media LLC v. Regus Mgmt. Grp. LLC,
2014 U.S. Dist. LEXIS 146408 (N.D. Cal. Oct. 14, 2014) ............................. 14
27
Clark v. Hidden Valley Lake Ass'n,
28 2017 WL 4922375 (N.D. Cal. Oct. 31, 2017) ................................................... 5
ii
STRIKE
1 College Hospital, Inc. v. Superior Court

(1994) 8 Cal. 4th 704 ......................................................................................... 8
2
CollegeSource, Inc. v. AcademyOne, Inc.,
3 653 F.3d 1066 (9th Cir. 2011) ......................................................................... 15
4 Comedy III Productions, Inc. v. Gary Saderup, Inc.
(2001) 25 Cal.4th 387 ........................................................................................ 9
5
Commonwealth Energy Corp. v. Investor Data Exch., Inc.,
6 (2003) 110 Cal. App. 4th 26 .............................................................................. 7
7 Daly v. Viacom, Inc.,
238 F. Supp. 2d 1118 (N.D. Cal. 2002) .......................................................... 10
8
Damon v. Ocean Hills Journalism Club,
9 (2000) 85 Cal. App. 4 th
468 ............................................................................... 6
10 Doe v. Unocal Corp.,
248 F.3d 915 (9th Cir. 2001) ........................................................................... 11
11
Dole Food Co. v. Watts,th
12 303 F.3d 1104 (9 Cir. 2002) .......................................................................... 15
13 Dora v. Frontline Video, Inc.
(1993) 15 Cal.App.4th 536 ................................................................................ 9
14
Eastwood v. Superior Court
15 (1983) 149 Cal. App. 3d 409 ............................................................................. 9
16 Equilon Enters., LLC v. Consumer Cause
(2002) 29 Cal. 4th 53 ......................................................................................... 4
17
Gerbosi v. Gaims, Weil, West & Epstein, LLP
18 (2011) 193 Cal. App. 4th 435 ............................................................................ 5
19 Gionfriddo v. Major League Baseball
(2001) 94 Cal.App.4th 400 .............................................................................. 10
20
Hall v. Time Warner, Inc.
21 (2007) 153 Cal. App. 4th 1337 .......................................................................... 8
22 Helicopteros Nacionales de Colombia, S. A. v. Hall,
466 U.S. 408 (1984) ........................................................................................ 11
23
High Tech Pet Prods. v. Shenzhen Jianfeng Elec. Pet Prod. Co.,
24 2014 U.S. Dist. LEXIS 29772 (E.D. Cal. Mar. 6, 2014) ................................ 12
25 Hilton v. Hallmark Cards,
599 F. 3d 894 (9th Cir. 2010) ............................................................................. 7
26
Int’l Shoe Co. v. Washington,
27 326 U.S. 310 (1945) ........................................................................................ 11
28 Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) ........................................... 11
iii
STRIKE
1 Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005) ......................................................................... 16
2
Maheu v. CBS, Inc.
3 (1988) 201 Cal. App. 3d 662 ........................................................................... 10
4 Manzari v. Associated Newspapers Ltd.,
830 F.3d 881 (9th Cir. 2016) ......................................................................... 4, 5
5
Metabolife Int'l, Inc. v. Wornick,
6 264 F.3d 832 (9th Cir. 2001) ............................................................................. 4
7 Mgmt. Action Programs, Inc. v. Global Leadership & Mgmt. Res., Inc.,
No. CV 04-8405-NM (PLAx), 2005 WL 5747582 (C.D. Cal. May 18, 2005)16
8
Milne v. Stephen Slesinger, Inc.,
9 No. CV 02-08508-FMC (PLAX), 2003 WL 21076983 (C.D. Cal. May 8, 2003)
......................................................................................................................... 16
10
Montana v. San Jose Mercury News, Inc.
11 (1995) 34 Cal.App.4th 790 ................................................................................ 9
12 Montana v. San Jose Mercury News, Inc.,
supra, 34 Cal.App.4th 790 ............................................................................... 10
13
Navellier v. Sletten
14 (2003) 106 Cal. App. 4th 763 ............................................................................ 5
15 Oddo v. Ries,
743 F.2d 630 (9th Cir. 1984) ............................................................................. 9
16
Page v. Something Weird Video
17 (C.D. Cal. 1996) 960 F. Supp. 1438................................................................ 10
18 Pebble Beach Co. v. Caddy,
453 F.3d 1151 (9th Cir. 2006) ......................................................................... 12
19
Perfect 10, Inc. v. VisathInt'l Serv. Ass'n,
20 494 F.3d 788 (9 Cir. 2007) ............................................................................ 15
21 Premier Med. Mgmt. Sys., Inc. v. Cal. Ins. Guarantee Assn.
(2006) Cal. App. 4th 464 ............................................................................... 5, 8
22
Richlin v. Metro–Goldwyn–Mayer Pictures, Inc.,
23 531 F.3d 962 (9th Cir. 2008) ............................................................................. 8
24 Rivero v. American Federation of State, County, & Municipal Employees
(2003) 105 Cal. App. 4th 913 ............................................................................ 6
25
Roberts v. Los Angeles County Bar Assn.
26 (2003) 105 Cal. App. 4th 604 ............................................................................ 5
27 Schwarzenegger v. Fred Martin Motor Co.,
374 F.3d 797 (9th Cir. 2004) ............................................................................ 12
28
iv
STRIKE
1 Sipple v. Foundation for Nat’l Progress

(1999) 71 Cal. App. 4th 226 ............................................................................... 7
2
Smith v. Chanel, Inc.,
3 402 F.2d 562 (9th Cir. 1968) ........................................................................... 18
4 Volkswagenwerk Aktiengesellschaft v. Church,
411 F.2d 350 (9th Cir. 1969) ........................................................................... 18
5
Walden v. Fiore,
6 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014) ....................................................... 12
7 WCVB-TV v. Boston Athletic Ass'n,
926 F.2d 42 (1st Cir. 1991) ............................................................................. 18
8
West v. Finander,
9 No. CV13-4547-DOC (AS), 2015 WL ........................................................... 16
10 Zucco Partners, LLC v. Digimarc Corp.,
552 F.3d 981 (9th ............................................................................................ 16
11
12
Statutes
13
17 U.S.C. § 101............................................................................................................ 8
14
17 U.S.C. § 201(a) ....................................................................................................... 8
15
C.C.P. §425.15(e)(4) .................................................................................................... 6
16
Cal. Civ. Proc. Code § 425.16(e)(4) ............................................................................ 7
17
Cal. Code Civ. Proc. § 425.16(e)(4) ............................................................................ 4
18
Fed. R. Civ. P. 12(b)(6) ............................................................................................. 15
19
20
21
22
23
24
25
26
27
28
v
STRIKE
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 INTRODUCTION
3 Plaintiff Stephen Perry is a well-known singer and songwriter best known as
4 the lead singer for the band Journey from 1977 to 1987, and again from 1995 to
5 1998. In 1990 Mr. Perry co-authored four songs with Mr. Phil Brown, who is a well-
6 known musician, writer and producer in his own right. (the “Brown/Perry songs”)
7 Perry provided vocals on the Brown/Perry songs, with Brown also providing vocals,
8 guitar, bass and percussion. Mr. Brown has at all times maintained both creative and
9 physical control over the Brown/Perry songs. As such, under long-standing
10 controlling authority, Brown had, and continues to have, the right to independently
11 license, sell, perform, or otherwise monetize the four Brown/Perry songs without the
12 consent of his co-author, Perry, so long as Brown later accounts to Perry for Perry’s
13 portion of any resultant proceeds.
14 On November 13, 2018 Perry, armed to the teeth with expensive attorneys,
15 launched a blitzkrieg against Brown into submission, and sought ex parte, without
16 notice, a Temporary Restraining Order against Brown preventing him from doing
17 what he had an absolute right to do – commercialize the Brown/Perry songs. For
18 good measure Perry included causes of action for trademark infringement and right
19 of publicity based upon two tweets (made by Mr. Brown’s girlfriend) that Brown
20 was going to distribute songs on which Perry provided vocals. Perry’s ploy worked,
21 at least initially, and this Court granted the TRO even though Brown, who lives in
22 Nashville Tennessee, had never been served with the Complaint and therefore this
23 Court did not have personal jurisdiction over him.
24 Perry’s claims against Brown fail for multiple reasons. As a threshold matter
25 Perry has not even attempted to plead or otherwise establish that Brown can be held
26 vicariously liable for the two tweets from Ms. Bunn, who, contrary to the allegations
27 in the complaint, is not Mr. Brown’s manager. Furthermore, Perry has not, nor can
28 he, establish that this Court has personal jurisdiction over Brown, who resides in
1
STRIKE/DISMISS
1 Tennessee and has no significant contacts with California. Even assuming Perry can
2 establish personal jurisdiction over Brown, the two alleged tweets and one Facebook
3 post upon which Perry bases his claims are protected communications.
4 Because Brown had the right to distribute the Brown/Perry songs, he also had
5 the right to use Perry’s name to describe the Brown/Perry songs under the fair use
6 doctrine. Likewise, any incidental use of Perry’s name to advertise the distribution
7 of the Brown/Perry songs is a protected use under the public interest exception, and
8 therefore privileged. Because these claims are based entirely on speech about a
9 matter of public interest protected by the First Amendment, the law requires that it
10 be stricken pursuant to California’s anti-SLAPP (“Strategic Litigation Against Public
11 Participation”) statute, Code of Civil Procedure § 425.16.
12 FACTUAL AND PROCEDURAL BACKGROUND
13 A. Summary of Relevant Allegations
14 Steve Perry is a well-known singer, songwriter and musician best known for his
15 work with the band Journey. (First Amended Complaint (“FAC”) at ¶6; ECF #1)
16 Brown has been a classically trained musician and songwriter since his childhood.
17 Brown joined the band Little Feat in the early 1980’s as Lowell George’s successor
18 on guitar and vocals. Brown’s songs have been recorded by Cher, Pat Benatar, Kim
19 Carnes, Kix, Bonnie Tyler, and many others. (Brown Decl. ¶2)
20 In or around 1990 Brown was introduced to Steve Perry by Perry’s manager,
21 Bob Caballo, who also managed Little Feat, Earth Wind and Fire, Weather Report,
22 and other bands. (Brown Decl. ¶3)
23 In or around 1990 Perry and Brown co-authored three songs together. They co-
24 wrote the first three songs: Can’t Push the River, Somebody Somewhere, and
25 Remarkable. Brown wrote a fourth song, It’s Not Far Off, which Perry also provided
26 the vocals. (“Brown/Perry Songs”) Both Perry and Brown provided vocals on the
27 Brown/Perry songs; while Brown performed guitar, bass and percussion on the songs.
28 The Brown/Perry songs were co-produced by both Perry and Brown. Brown has
2
STRIKE/DISMISS
1 always maintained both creative and physical control over the four Brown/Perry
2 songs. (Brown Decl. ¶4)
3 B. Summary of Proceedings
4 On November 9, 2018, Perry commenced this action in the United States
5 District Court, Central District of California. (ECF No. #1) On November 13, 1018
6 Perry filed a First Amended Complaint (“FAC”) seeking claims for: 1) trademark
7 infringement, 2) false designation of origin, 3) declaratory relief re copyright
8 ownership, 4) violation of common law right of publicity, and 5) violation of
9 statutory right of publicity. (ECF No. #6) Concurrently with the FAC Perry filed an
10 Ex Parte Application for a Temporary Restraining Order attempting to prevent
11 Brown from releasing the Brown/Perry Songs and using Perry’s name in connection
12 therewith. (ECF No. 11)
13 On November 14, 2018 this case was re-assigned to this Court. The following
14 day, even though Mr. Brown had not been served with the complaint and therefore
15 there was no personal jurisdiction over him, this Court granted Perry’s Ex Parte
16 application. (ECF No. 16) The only reasonable conclusion that can be drawn from
17 this Court’s statement in the Order that that Brown did not file an opposition is that
18 this Court was under the false impression that Brown had been served with the
19 Complaint and/or the First Amended Complaint, when in fact he hadn’t. The result
20 was that this Court granted an ex parte TRO, without notice, over an individual
21 whom this Court did not have personal jurisdiction.
22 On November 28, 2018 Brown’s counsel agreed to accept service on his
23 behalf. (ECF No. #21)
24 On November 29, 2018 this Court issued an Order that Brown’s response to
25 the First Amended Complaint be due on or before January 28, 2019. (ECF No. 26)
26 On November 30, 2018 Brown’s counsel filed an acknowledgment of service
27 of summons pursuant to FRCP Rule 4(e)(1) and California Code of Civil Procedure
28 415.30. (ECF No. 30)
3
STRIKE/DISMISS
1 ARGUMENT
2 A. Anti-SLAPP Motion C.C.P. § 425.16
3 California’s anti-SLAPP law provides substantive immunity from suit for
4 claims that interfere with the exercise of speech rights. Cal. Code Civ. Proc.
5 § 425.16(e)(4). The California Supreme Court has held that the statute should be
6 interpreted broadly, stating that “whenever possible, [courts] should interpret the First
7 Amendment and section 425.16 in a manner favorable to the exercise of freedom of
8 speech, not its curtailment.” Briggs v. Eden Council for Hope and Opportunity (1999)
9 19 Cal. 4th 1106, 1119.
10 “The anti-SLAPP statute was enacted to allow for early dismissal of meritless
11 first amendment cases aimed at chilling expression through costly, time-consuming
12 litigation.” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003). Its “burden-shifting
13 mechanism” weeds out lawsuits “brought to deter common citizens from exercising
14 their political or legal rights or to punish them for doing so.” Manzari v. Associated
15 Newspapers Ltd., 830 F.3d 881, 887-88 (9th Cir. 2016).
16 Under the anti-SLAPP statute, the court undertakes a two-step process: first,
17 “the court decides whether the defendant has made a threshold showing that the
18 challenged cause of action is one arising from protected activity”; and second, if the
19 statute applies, the burden shifts to the plaintiff to demonstrate a probability of
20 success on its claims based on competent, admissible evidence. Equilon Enters., LLC
21 v. Consumer Cause (2002) 29 Cal. 4th 53, 67; see also, Metabolife Int'l, Inc. v.
22 Wornick, 264 F.3d 832, 840 (9th Cir. 2001) (stating that “defendant’s anti-SLAPP
23 motion should be granted when a plaintiff presents an insufficient legal basis for the
24 claims or when no evidence of sufficient substantiality exists to support a judgment
25 for the plaintiff”).
26 Although the anti-SLAPP statute falls within California’s Code of Civil
27 Procedure, federal courts apply it to dispose of frivolous claims impinging upon free
28 speech rights. See e.g., Manzari v. Associated Newspapers Ltd., 830 F.3d 881, 887
4
STRIKE/DISMISS
1 (9th Cir. 2016) (applying California anti-SLAPP statute to libel and false light claims
2 in a diversity action by former pornographic model); see also, Clark v. Hidden
3 Valley Lake Ass'n, 2017 WL 4922375, at *3 (N.D. Cal. Oct. 31, 2017) (“Although it
4 is a state statute, a party may bring an anti-SLAPP motion to strike state law claims
5 in federal court.”).
6 “[P]laintiffs’ burden as to the second prong of the anti-SLAPP test is akin to
7 that of a party opposing a motion for summary judgment.” Navellier v. Sletten
8 (2003) 106 Cal. App. 4th 763, 768. To establish a probability of prevailing on the
9 claim, the plaintiff must demonstrate that the complaint is both legally sufficient and
10 supported by a sufficient prima facie showing of facts to sustain a favorable
11 judgment. Premier Med. Mgmt. Sys., Inc. v. Cal. Ins. Guarantee Assn. (2006) Cal.
12 App. 4th 464, 476. The burden is on the plaintiff to produce evidence that would be
13 admissible at trial, and she cannot simply rely on her pleadings. Roberts v. Los
14 Angeles County Bar Assn. (2003) 105 Cal. App. 4th 604, 613-614. To defeat an anti-
15 SLAPP motion, a plaintiff must overcome substantive defenses. Gerbosi v. Gaims,
16 Weil, West & Epstein, LLP (2011) 193 Cal. App. 4th 435, 447-448.
17 Moreover, it is immaterial that the complaint can be amended to state a valid
18 claim. Premier Med. Mgmt. Sys., Inc., 136 Cal. App. 4th at 476 (“On review of an
19 anti-SLAPP motion to strike however, the standard is akin to that for summary
20 judgment or judgment on the pleadings. We must take the complaint as it is.”). If the
21 plaintiff fails to carry that burden, the claim is “subject to be stricken under the
22 statute.” Navellier, 106 Cal. App. 4th at 772-73.
23 The Accused Comments Concerning Steve Perry Fall Within the
24 Scope of the Anti-SLAPP Statute Because it is Speech About A
25 Matter of Public Interest
26 Section 425.16(e)(4) encompasses any claim that arises from, or is based on, a
27 defendant’s exercise of speech rights “in connection with a public issue or an issue of
28 public interest.” C.C.P. §425.15(e)(4). Pursuant to the directives of the legislature
5
STRIKE/DISMISS
1 and California Supreme Court, “the definition of ‘public interest’ within the meaning
2 of [Section 425.16] has been broadly construed to include not only governmental
3 matter, but also private conduct that impacts a broad segment of society.” Damon v.
4 Ocean Hills Journalism Club, (2000) 85 Cal. App. 4th 468, 479.
5 Perry’s First, Second, Fourth and Fifth causes of action are all based on speech
6 by Brenda Bann and Phil Brown. Specifically, Perry alleges in the FAC that Ms.
7 Bann (who is not named as a defendant and is not Brown’s manager) made the
8 following statements about him on twitter:
9
10 -Brown’s New CD’s almost completed! The New band Apaches from Paris is coming
11 together with outstanding musicians who are well known in the music world! There is
12 an extra little treat in the works for those of you who like Steve Perry!
13
14 -Phil Brown of Little Feat! Steve Perry of Journey! First song release coming soon!!
15 (ECF No. 6, ¶16)
16
17 Additionally, Perry alleges that Brown himself:
18
19 -posted on a Facebook page that promotes Brown and his band “apaches from
20 Paris” a clip of one of Perry’s vocal performances. (ECF No. 6, ¶16)
21
22 The California appellate courts have developed multiple tests to determine
23 whether a defendant's activity is in connection with a public issue. One commonly
24 cited test comes from Rivero v. American Federation of State, County, & Municipal
25 Employees (2003) 105 Cal. App. 4th 913(concluding that the plaintiff's supervision of
26 eight individuals was not a matter of public interest, where people involved had
27 "received no public attention or media coverage"). There, the Court of Appeal for the
28 First District surveyed the appellate cases and divined from them three categories of
6
STRIKE/DISMISS
1 public issues: (1) statements "concern[ing] a person or entity in the public eye"; (2)
2 "conduct that could directly affect a large number of people beyond the direct
3 participants"; (3) "or a topic of widespread, public interest." Id. at 89. The Fourth
4 District has followed this approach. See, e.g., Commonwealth Energy Corp. v.
5 Investor Data Exch., Inc., (2003) 110 Cal. App. 4th 26(describing Rivero as the first
6 systematic treatment of the "public issue-public interest aspect of the anti-SLAPP
7 statute"). “There is a public interest which attaches to people who by their
8 accomplishments, mode of living, professional standing or calling, create a legitimate
9 and widespread attention to their activities.” Carlisle v. Fawcett Publications, Inc.,
10 (1962) 201 Cal. App. 2d 733, 746.
11 The accused speech in this case falls into either the first or third categories that
12 Rivero outlined: statements "concern[ing] a person or entity in the public eye"; "or a
13 topic of widespread, public interest," respectively. There is no dispute that Steve
14 Perry is a person "in the public eye" and "a topic of widespread, public interest," and
15 that he was such well before this controversy. Thus, the speech in question about
16 Perry is "in connection with a public issue or an issue of public interest." Cal. Civ.
17 Proc. Code § 425.16(e)(4); Hilton v. Hallmark Cards, 599 F. 3d 894 (9th Cir. 2010);
18 Sipple v. Foundation for Nat’l Progress (1999) 71 Cal. App. 4th 226, 239-240
19 (statement about prominent political consultant fell within the protection of section
20 425.15); Blanche Hall v. Time Warner Inc. (2007) 153 Cal. App. 4th 1337 (lawsuit
21 over statements relating to distribution of Marlon Brando’s assets after his death was
22 proper subject of Anti-SLAPP motion due to “public’s fascination with Brando and
23 widespread public interest in his personal life [which] made Brando’s decisions
24 concerning the distribution of his assets a public issue or an issue of public interest”)
25 Steve Perry indisputably attracts vast amounts of attention and publicity –
26 much of it as a result of his own efforts and actions. Indeed, to bolster his publicity
27 claims, the FAC devotes several paragraphs alleging exactly how famous Steve Perry
28 is and that his new album was a huge success. (ECF No. 6, ¶¶6-9) These allegations
7
STRIKE/DISMISS
1 certainly place Steve Perry squarely within the category of “public interest” for the
2 purposes of the anti-SLAPP statute.
3 2. Perry Cannot Demonstrate a Probability of Success on His
4 California Right of Publicity Claims Against Brown
5 Once a defendant meets its burden of showing that the challenged cause of
6 action is protected under the first prong of the anti-SLAPP statute, the burden then
7 shifts to the plaintiff to demonstrate a probability of prevailing on the merits.
8 Specifically, the plaintiff has the burden to “show that its complaint is legally
9 sufficient and must present a prima facie showing of facts that, believed by the trier of
10 fact, would support a judgment in the plaintiff’s favor. The plaintiff’s showing of
11 facts must consist of evidence that would be admissible at trial.” Hall v. Time Warner,
12 Inc. (2007) 153 Cal. App. 4th 1337, 1346; see also, College Hospital, Inc. v. Superior
13 Court (1994) 8 Cal. 4th 704, 719-20, fn. 5; Premier Med. Mgmt. Sys., Cal. App. 4th at
14 476; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal. App. 4th 568, 585. Both
15 elements must be met for the plaintiff to prevail.
16 a. Brown is a co-author of the compositions and sound recordings at
17 issue, both of which are joint works.
18 A work qualifies as a joint work when it is “prepared by two or more
19 authors with the intention that their contributions be merged into inseparable or
20 interdependent parts of a unitary whole.” 17 U.S.C. § 101. To be a co-author of a joint
21 work, each author must make “an independently copyrightable contribution” to the
22 work. Richlin v. Metro–Goldwyn–Mayer Pictures, Inc., 531 F.3d 962, 968 (9th Cir.
23 2008). And each author of a joint work is a co-owner of the copyright in that work. 17
24 U.S.C. § 201(a). The most important factor in establishing co-authorship is whether
25 the party claiming to be a co-author had physical and/or at least partial creative
26 control over the work at issue. Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th
27 Cir.2000). Here, Brown exercised control over the writing and recording of the songs
28 and maintained control of the physical recordings of the songs. This is thus an
8
STRIKE/DISMISS
1 axiomatic instance of co-authorship. Aalmuhammed, 202 F.3d at 1232 (the

2 collaborative creation of a song is a common type of joint authorship).
3 As a co-author, Brown may independently license, sell, perform, or otherwise
4 monetize the songs at issue without the consent of his co-author, Perry, so long as
5 Brown later accounts to Perry for Perry’s portion of any resultant proceeds. Oddo v.
6 Ries, 743 F.2d 630, 633 (9th Cir. 1984). As Brown has yet to monetize the songs,
7 there are not yet funds to account and Brown has violated no obligation due to Perry,
8 which is likely why Perry has not filed a claim for copyright infringement.
9 b. The Accused Speech Involved an Issue of Public Interest
10 Civil Code section 3344 (hereafter section 3344) provides in subdivision
11 (a): "Any person who knowingly uses another's name, voice, signature, photograph,
12 or likeness, in any manner, on or in products, merchandise, or goods, or for purposes
13 of advertising or selling, or soliciting purchases of, products, merchandise, goods or
14 services, without such person's prior consent, . . . shall be liable for any damages
15 sustained by the person or persons injured as a result thereof."
16 This statute complements the common law "right of publicity," which also
17 allows recovery for the misappropriation of the plaintiff's name or likeness. Eastwood
18 v. Superior Court (1983) 149 Cal. App. 3d 409, 416-417; see Comedy III
19 Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 391.) The two causes
20 of action (both involved here) are very similar although not perfectly identical.
21 Eastwood v. Superior Court, supra, 149 Cal. App. 3d at pp. 417-418.
22 The statute has an express exemption for use "in connection with any news,
23 public affairs, or sports broadcast or account, or any political campaign." (§ 3344,
24 subd. (d).) This is similar to the exception developed under the common law for
25 publication of matters of public interest. Eastwood v. Superior Court, supra, 149 Cal.
26 App. 3d at p. 421; Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 542, 545;
27 Montana v. San Jose Mercury News, Inc. (1995) 34 Cal.App.4th 790, 793-794.) A
28 claim under California’s common law right of publicity is defeated “where the
9
STRIKE/DISMISS
1 publication or dissemination of matters is “in the public interest.” Daly v. Viacom,

2 Inc.,238 F. Supp. 2d 1118, 1122 (N.D. Cal. 2002). This Court has held that the public
3 interest defense to a right of publicity claim is a “complete” defense and provides
4 “extra breathing space” even beyond the First Amendment. New Kids, 971 F. 2d at
5 309-310; see also Maheu v. CBS, Inc. (1988) 201 Cal. App. 3d 662, 676-77(affirming
6 dismissal on demurrer of right of publicity claims)
7 Brown has the legal right to distribute the Brown/Perry songs, with Perry on
8 lead vocals, so long as he provides an accounting to Perry. Oddo at 633. As a long
9 line of cases in California hold, Brown’s incidental use of Perry’s name to advertise
10 the distribution of these songs is a protected use. See e.g., Montana v. San Jose
11 Mercury News, Inc., supra, 34 Cal.App.4th 790, 796-797 (where original publication,
12 newspaper story and photo on sporting event, was constitutionally protected and
13 exempt from common law and statutory right of publicity, newspaper had a
14 constitutional right to sell posters incorporating the original publication in order to
15 advertise and promote the newspaper); Gionfriddo v. Major League Baseball (2001)
16 94 Cal.App.4th 400, 413-414 (statistics and video depictions of plaintiffs'
17 performances in baseball games, exempt from plaintiffs' right of publicity, could also
18 be used on defendant's web site to promote the game of baseball); Page v. Something
19 Weird Video (C.D. Cal. 1996) 960 F. Supp. 1438, 1443-1444 (publication of catalog
20 containing plaintiff's likeness was protected advertising, merely incidental to
21 defendant's protected right to distribute the films starring plaintiff); Cher v. Forum
22 Intern., Ltd., 692 F.2d 634, 639 (9th Cir. 1982) (right of publicity claim regarding use
23 of likeness in advertising magazine to potential subscribers, in which magazine had
24 previously published article about claimant: "[The magazine] would have been
25 entitled to use Cher's picture and to refer to her truthfully in subscription advertising
26 for the purpose of indicating the content of the publication because such usage is
27 protected by the First Amendment.")
28 c. Plaintiff Cannot Establish Personal Jurisdiction Over Brown
10
STRIKE/DISMISS
1 “[R]uling on an anti-SLAPP motion does not necessarily require a ruling on the

2 merits of the plaintiff's claims; it may instead involve a determination that the plaintiff
3 has no probability of prevailing because the court lacks the power to entertain the
4 claims in the first place.” Barry v. State Bar of California (2017) 2 Cal. 5th 318, 326.
5 Pursuant to due process, a defendant may be subject to either general or
6 specific personal jurisdiction. Helicopteros Nacionales de Colombia, S. A. v. Hall,
7 466 U.S. 408 (1984). General jurisdiction allows a plaintiff to sue a defendant in the
8 forum regardless of the subject matter of the litigation. However, “only a limited set
9 of affiliations with a forum will render a defendant amenable to general jurisdiction in
10 that State.” Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780
11 (2017). Indeed, “[f]or an individual, the paradigm forum for the exercise of general
12 jurisdiction is the individual’s domicile.” Id. The Complaint is devoid of allegations
13 that Cohen is subject to general jurisdiction in California, and implicitly
14 acknowledges that general jurisdiction does not exist. Given that Brown is a resident
15 of Tennessee, he is not subject to the exercise of general jurisdiction by this Court.
16 Personal jurisdiction over a nonresident defendant is only proper if a rule or
17 statute confers jurisdiction over the defendant, and the exercise of personal
18 jurisdiction over the defendant does not offend due process. Doe v. Unocal Corp., 248
19 F.3d 915, 921-22 (9th Cir. 2001). Due process is only satisfied for this purpose if the
20 defendant has “certain minimum contacts” with the forum state such that the
21 “maintenance of the suit does not offend traditional notions of fair play and
22 substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The
23 inquiry into the “minimum contacts” required to create specific jurisdiction focuses
24 on the relationship among “the defendant, the forum, and the litigation.” Keeton v.
25 Hustler Magazine, Inc., 465 U.S. 770, 775 (1984). For a state to exercise jurisdiction
26 consistent with due process, that relationship must arise “from actions by the
27 defendant himself that create a substantial connection with the forum State.” Burger
28 King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). “The plaintiff cannot be the only
11
STRIKE/DISMISS
1 link between the defendant and the forum. Rather, it is the defendant’s conduct that
2 must form the necessary connection with the forum State that is the basis for its
3 jurisdiction over him.” High Tech Pet Prods. v. Shenzhen Jianfeng Elec. Pet Prod.
4 Co., 2014 U.S. Dist. LEXIS 29772, at *17 (E.D. Cal. Mar. 6, 2014). Because the
5 California long-arm statute is coextensive with the due process clause of the
6 Fourteenth Amendment, “the jurisdictional analysis under state law and federal due
7 process are the same.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801
8 (9th Cir. 2004). When analyzing specific personal jurisdiction, the Ninth Circuit
9 utilizes a three-prong test. First, in a case such as this one, the defendant must either
10 purposely direct his activities toward California, or purposefully avail himself of the
11 privilege of doing business in California, and by doing so invoke the benefits and
12 protections of the forum state. Id. at 802. Second, the claim must arise out of or relate
13 to the defendant’s California activities. Id. Third, the court’s exercise of personal
14 jurisdiction over the defendant must be reasonable and comport with the notions of
15 fair play and substantial justice. Id.
16 i. There is No Purposeful Direction
17 The purposeful direction test is applied where, as here, the underlying claims
18 are based in alleged tortious conduct. Id. Purposeful direction “requires that the
19 defendant…have (1) committed an intentional act, (2) expressly aimed at the forum
20 state, (3) causing harm that the defendant knows is likely to be suffered in the forum
21 state.” Id. at 803. It is true that actions may be directed at the forum state, even when
22 such action occurred elsewhere. Id. However, “random, fortuitous, or attenuated
23 contact” do not amount to the requisite connection to the forum. Burger King Corp.,
24 471 U.S. at 476-78. Moreover, “[i]f any of the three requirements is not satisfied,
25 jurisdiction in the forum would deprive the defendant of due process of law.” Pebble
26 Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir. 2006).
27 In its decision in Walden v. Fiore, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014). In
28 the Supreme Court stressed that, even where an intentional tort is alleged, the
12
STRIKE/DISMISS
1 "defendant's suit-related conduct must create a substantial connection with the forum
2 State," and this "relationship must arise out of contacts that the 'defendant himself'
3 creates with the forum State." Walden, 134 S. Ct. at 1121-22 (emphasis in original)
4 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L.
5 Ed. 2d 528 (1985)). Furthermore, "the plaintiff cannot be the only link between the
6 defendant and the forum. Rather, it is the defendant's conduct that must form the
7 necessary connection with the forum State that is the basis for its jurisdiction over
8 him." Id. at 1122. Thus, even where the Calder test is invoked, a "forum State's
9 exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on
10 intentional conduct by the defendant that creates the necessary contacts with the
11 forum," and the specific jurisdiction analysis must focus on the "relationship among
12 the defendant, the forum, and the litigation." Id. at 1123. The Court emphasized that
13 "[t]he proper question is not where the plaintiff experienced a particular injury or
14 effect but whether the defendant's conduct connects him to the forum in any
15 meaningful way." Id. at 1125.
16 Here, the two alleged tweets and one Facebook post fall far well short of an act
17 that is expressly aimed at the state of California. There are no allegations that the
18 communications occurred while Brown or, more to the point, Ms. Bann, were in the
19 state of California. Indeed, there is no evidence that Perry was even in the State of
20 California when any of the alleged communications took place or that the
21 communications were specifically directed towards anyone in California. As in
22 Walden, all the conduct giving rise to the nonresidents’ claims occurred elsewhere. It
23 follows that the California courts cannot claim specific jurisdiction. Plaintiff therefore
24 has not satisfied the purposeful direction test as required for this Court to claim
25 personal jurisdiction over Brown. See, e.g., Sec. Alarm Fin. Enters., L.P. v. Nebel,
26 200 F. Supp. 3d 976, 985 (N.D. Cal. 2016) (finding that social media posts are
27 insufficient to establish personal jurisdiction because the plaintiff "offered no
28 evidence, and the Court finds none, that [the defendant's] Facebook and Instagram
13
STRIKE/DISMISS
1 posts were in any way directed or targeted at California or a California audience.")

2 ii. The Claims Against Brown Do Not Arise Out of Forum-
3 Related Activities Performed by Brown
4 For the same reasons that Brown did not perform acts expressly aimed at the
5 forum state, the claims against Brown do not arise out of forum-related activities. The
6 two tweets and one Facebook post do not amount to activity related to or aimed at the
7 state of California, and therefore the claims against Brown that are based on those
8 communications do not arise out of activities related to this forum.
9 iii. Jurisdiction Over Brown Would be Unreasonable
10 The exercise of jurisdiction is reasonable if it comports with traditional notions
11 of fair play and substantial justice. In the Ninth Circuit, courts determine whether
12 personal jurisdiction in reasonable by considering seven factors:
13 (1) the extent of a defendant's purposeful interjection; (2) the
burden on the defendant in defending in the forum; (3) the
14
extent of conflict with the sovereignty of the defendant's
15 state; (4) the forum state's interest in adjudicating the dispute;
16
(5) the most efficient judicial resolution of the controversy;
(6) the importance of the forum to the plaintiff's interest in
17 convenient and effective relief; and (7) the existence of an
18
alternative forum.
19 Circle Click Media LLC v. Regus Mgmt. Grp. LLC, 2014 U.S. Dist. LEXIS 146408,
20 *21-22 (N.D. Cal. Oct. 14, 2014). For the same reasons set forth above regarding
21 Brown’s lack of contact in or related to the forum state, purposeful interjection into
22 California on the part of Brown is simply non-existent. The first factor therefore
23 supports a holding that the exercise of personal jurisdiction over Brown would be
24 unreasonable.
25 As to the second factor, Brown is an individual with limited resources who
26 lives in Nashville, Tennessee. In stark contrast, Perry is a famous singer with the
27 resources to litigate wherever necessary. This fact was amply demonstrated when he
28 came into this case guns blazing seeking an ex parte application, without notice, in an
14
STRIKE/DISMISS
1 attempt to steamroll Mr. Brown before he even had a chance to defend himself. In
2 any event, the Ninth Circuit does not view the plaintiff’s convenience of relief as an
3 issue of paramount importance. Dole Food Co. v. Watts, 303 F.3d 1104, 1116 (9th Cir.
4 2002).
5 Finally, with respect to the existence of an alternative forum, the state of
6 Tennessee would be the appropriate forum for Plaintiff’s claims against Brown.
7 “Whether another reasonable forum exists becomes an issue only when the forum
8 state is shown to be unreasonable.” CollegeSource, Inc. v. AcademyOne, Inc., 653
9 F.3d 1066, 1080 (9th Cir. 2011). Given that Brown has not had any substantial
10 contacts with this forum that are related to the claim against him, and that he is a
11 resident of Tennessee, it would be unreasonable for this forum to exercise personal
12 jurisdiction over Brown. Further, because the state of Tennessee can properly exercise
13 general jurisdiction over Brown, a suitable alternative forum does exist.
14 d. Perry Has Not Pled or Otherwise Established Brown’s Vicarious
15 Liability for the Two Tweets by Mr. Bann
16 In order to establish vicarious liability Perry was required to plead and prove that
17 “the defendant and the infringer have an apparent or actual partnership, have authority
18 to bind one another in transactions with third parties or exercise joint ownership or
19 control over the infringing product. Perfect 10, Inc. v. Visa Int'l Serv. Ass'n, 494 F.3d
20 788, 807 (9th Cir. 2007). Perry’s complaint is completely devoid of any allegations
21 that Ms. Bann is Mr. Brown’s business partner, has actual authority to bind Mr.
22 Brown in transactions with third-parties, or otherwise exercises joint control over the
23 songs. The one allegation that Perry does make, that Mr. Bunn is Brown’s business
24 manager, is false. (Brown Decl. ¶6)
25 B. Mr. Brown’s Motion to Dismiss Pursuant to FRCP 12(b)(6)
26 The Court may dismiss a complaint that fails to state a claim upon which relief
27 can be granted. Fed. R. Civ. P. 12(b)(6). In analyzing a motion to dismiss, the
28 complaint must contain “enough facts to state a claim to relief that is plausible on its
15
STRIKE/DISMISS
1 face” and “raise [that] right to relief above the speculative level.” Bell Atl. Corp. v.
2 Twombly, 550 U.S. 544, 555, 570 (2007). A plaintiff’s claim meets the plausibility
3 threshold when he “pleads factual content that allows the court to draw [a] reasonable
4 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
5 556 U.S. 662, 663 (2009).
6 A court adjudicating a Rule 12(b) motion may consider the pleadings, as well
7 as “documents attached as exhibits or incorporated by reference in the pleadings,
8 and matters of which the Court may take judicial notice.” Mgmt. Action Programs,
9 Inc. v. Global Leadership & Mgmt. Res., Inc., No. CV 04-8405-NM (PLAx), 2005
10 WL 5747582, at *1 n.1 (C.D. Cal. May 18, 2005) (quoting Milne v. Stephen
11 Slesinger, Inc., No. CV 02-08508-FMC (PLAX), 2003 WL 21076983, at *3 (C.D.
12 Cal. May 8, 2003). Under the incorporation by reference doctrine, “documents ‘whose
13 contents are alleged in a complaint and whose authenticity no party questions, but
14 which are not physically attached to the [plaintiff’s] pleading’” may be considered on
15 a pleadings motion. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)
16 (quotation omitted, brackets in original). The doctrine “applies with equal force to
17 internet pages as it does to printed material.” Id.
18 Dismissal with prejudice is appropriate here as the FAC is Perry’s second
19 factually and legally insufficient pleading, indicating the futility of further
20 amendment. See, e.g., West v. Finander, No. CV13-4547-DOC (AS), 2015 WL
21 4498018, at *13 (C.D. Cal. July 21, 2015) (dismissing with prejudice where
22 “Plaintiff has filed three pleadings . . . none of which has alleged sufficient facts to
23 state its claim”); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th
24 Cir. 2009) (same).
25 1. The Accused Speech is a Protected Fair Use
26 In Cairns v. Franklin Mint Co., 292 F. 3d 1139, 1151 (9th Cir. 2002) the Ninth
27 Circuit instructed: "classic fair use," in which "the defendant has used the plaintiff's
28 mark to describe the defendant's own product," and "nominative fair use," in which
16
STRIKE/DISMISS
1 the defendant has used the plaintiff's mark "to describe the plaintiff's product" for the
2 purpose of, for example, comparison to the defendant's product…. Under the
3 common law classic fair use defense codified in the Lanham Act at 15 United States
4 Code § 1115(b), "[a] junior user is always entitled to use a descriptive term in good
5 faith in its primary, descriptive sense other than as a trademark." 2 McCarthy on
6 Trademark and Unfair Competition § 11: 45 (4th ed. 2001). To establish a classic
7 fair use defense, a defendant must prove the following three elements: "1.
8 Defendant's use of the term is not as a trademark or service mark; 2. Defendant uses
9 the term 'fairly and in good faith'; and 3. [Defendant uses the term] 'only to describe'
10 its goods or services…. To establish a nominative fair use defense, a defendant must
11 prove the following three elements: First, the [plaintiff's] product or service in
12 question must be one not readily identifiable without use of the trademark; second,
13 only so much of the mark or marks may be used as is reasonably necessary to
14 identify the [plaintiff's] product or service; and third, the user must do nothing that
15 would, in conjunction with the mark, suggest sponsorship or endorsement by the
16 trademark holder. The nominative fair use analysis is appropriate where a defendant
17 has used the plaintiff's mark to describe the plaintiff's product, even if the defendant's
18 ultimate goal is to describe his own product. Conversely, the classic fair use analysis
19 is appropriate where a defendant has used the plaintiff's mark only to describe his
20 own product, and not at all to describe the plaintiff's product.”
21 As discussed above, Brown has a right to distribute the Brown/Perry songs.
22 Oddo at 633. Assuming for argument’s sake that Perry can establish vicarious
23 liability for the actions of Ms. Bann, the only way that Brown can describe his
24 product is to use Perry’s name for the limited purpose of identifying who is singing
25 on those songs, which is a protected fair use. As the Ninth Circuit explained in
26 Cairns, this is in line with other cases deciding this issue: “The same is true of the
27 three cases we cited in New Kids as nominative fair use cases. Id. at 307-08. In
28 Volkswagenwerk Aktiengesellschaft v. Church, 411 F.2d 350 (9th Cir. 1969), an
17
STRIKE/DISMISS
1 automobile repair business specializing in the repair of Volkswagen and Porsche

2 vehicles placed a large sign on the front of the premises that read "Modern
3 Volkswagen Porsche Service." Id. at 351. "Volkswagen" was a registered trademark
4 of the plaintiff. Id. In WCVB-TV v. Boston Athletic Ass'n, 926 F.2d 42 (1st Cir.
5 1991), a television station made unauthorized broadcasts of - and referred by name to
6 - the "Boston Marathon," an annual sports event organized and trademarked under
7 that name. Id. at 44. And in Smith v. Chanel, Inc., 402 F.2d 562 (9th Cir. 1968), an
8 imitator of brand perfumes advertised his "2d Chance" perfume as indistinguishable
9 from the trademarked "Chanel # 5" perfume. Id. at 563.” Cairns at 1152-1153.
10 IV. CONCLUSION
11 For all the foregoing reasons, the Court should strike Plaintiff Stephen Perry’s
12 California right of publicity claims against Phil Brown pursuant to California’s anti-
13 SLAPP statute. Furthermore, this Court should dismiss Perry’s Lanham Act claims
14 with prejudice pursuant to FRCP 12(b)(6).
15 DATED: February 8, 2019 BLAKELY LAW GROUP
16
17 By: ___________________
Brent H. Blakely
18
Attorneys for Defendant
19 Phil Brown
20
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22
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18
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Case 2:18-cv-09543-JFW-SS Document 45-1 Filed 02/08/19 Page 1 of 24 Page ID #:509

1 Brent H. Blakely (SBN 157292)

DEFENDANT PHIL BROWN’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

1 College Hospital, Inc. v. Superior Court

1 Sipple v. Foundation for Nat’l Progress

1 MEMORANDUM OF POINTS AND AUTHORITIES

1 axiomatic instance of co-authorship. Aalmuhammed, 202 F.3d at 1232 (the

1 publication or dissemination of matters is “in the public interest.” Daly v. Viacom,

1 “[R]uling on an anti-SLAPP motion does not necessarily require a ruling on the

1 posts were in any way directed or targeted at California or a California audience.")

1 automobile repair business specializing in the repair of Volkswagen and Porsche

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