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Gottesman v. Santana

United States District Court, S.D. California

July 6, 2017



          Hon. Janis L. Sammartino United States District Judge.

         Presently before the Court are Defendants Daniel J. Schacht, Esq.'s, ("Shacht") and the law firm Donahue Fitzgerald LLP's, ("Donahue") (collectively, the "Attorney Defendants") Special Motion to Strike Plaintiffs FAC Under California's Anti-SLAPP Law, [1] ("anti-SLAPP MTS, " ECF No. 77), and Attorney Defendants' Reply in Support of Special Motion to Strike (Anti-SLAPP) and Rule 12(f) Motion to Strike, ("anti-SLAPP MTS Reply, " ECF No. 153).[2] Also before the Court are Plaintiffs "Motion to Strike and/or Dismiss Donahue Fitzgerald, LLP and Daniel J. Scha[ch]t 'Reply in Support of Special Motion to Strike (anti-SLAPP) and Rule 12(f) Motion' at Doc: #153 Pursuant to 12(b)(1), (6), and (f), " ("MTS, " ECF No. 158), as well as Attorney Defendants' response in opposition to, ("MTS Opp'n, " ECF No. 163), and Plaintiffs reply in support of, ("MTS Reply, " ECF No. 165), Plaintiffs Motion to Strike. The Court vacated the hearing on the motions and took them under submission pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 168.) After considering the parties' arguments and the law, the Court rules as follows.


         Plaintiff is a professional artist who has extensive experience in, among other things, freehand airbrush, hand-drawn and digital illustration, graphic design, and photo retouching. (First Am. Compl. ("FAC") ¶ 16, ECF No. 38.) Plaintiff has produced original works of art and designs for a number of clients, including, for example, Carlos Santana, the Jimi Hendrix Estate, Tom Petty and the Heartbreakers, and Metallica. (Id. ¶ 15.) This case concerns Plaintiffs work for Defendant Carlos Santana.

         After Plaintiff spent some time working at a Fullerton-based company where he created graphics for bands, celebrities, casinos, and the like, (id. ¶ 21), Santana contacted and engaged Plaintiff as an independent contractor to create the art and design for merchandizing in connection with an event, (id. ¶ 30). Santana was so impressed with his work that he invited Plaintiff to his home and said he believed Plaintiff was the artist that had the ability to "turn SANTANA into a brand." (Id. ¶ 33.) The parties entered into a business relationship where Plaintiff submitted original works to Santana and his management company for use in building the Santana brand. (Id. ¶ 176.) Plaintiff retained ownership in these works, but each submitted work contained limited copy and distribution rights. (Id.)

         Plaintiff filed a 103-page, 473-paragraph FAC against dozens of Defendants associated with Defendant Carlos Santana. (ECF No. 38.) The gravamen of Plaintiffs claims is that these Defendants infringed his copyrights in several of his works by exceeding the scope of the licenses in those works. (See generally FAC.) Thus, Plaintiff brings claims for: (1) copyright infringement; (2) contributory copyright infringement; (3) vicarious copyright infringement; (4) inducing copyright infringement; (5) breach of contract; (6) intentional misrepresentation; (7) negligent misrepresentation; (8) breach of implied covenant of good faith and fair dealing; (9) unfair business practices; and (10) constructive trust. (Id.)

         Various Defendants, including Attorney Defendants, filed motions to dismiss for failure to state a claim.[3] But Attorney Defendants also filed an anti-SLAPP motion. Plaintiff voluntarily dismissed Attorney Defendants shortly thereafter. (ECF Nos. 130, 132.) However, Attorney Defendants claim that this "type of litigation chicanery has been overwhelmingly rejected by the courts" and argue that "when a plaintiff tries to avoid an adverse ruling on an anti-SLAPP motion by dismissing the moving party, a court must rule on the merits of the anti-SLAPP motion by identifying the prevailing party, thereby allowing for the mandatory recovery of attorney's fees." (anti-SLAPP MTS Reply 2.[4]) Plaintiff now moves to strike Attorney Defendants' Reply on various grounds. (See generally MTS). Accordingly, the Court considers Attorney Defendants' anti-SLAPP motion in view of Plaintiff s subsequently filed motion.


         I. Rule 12(f) Motion to Strike

         Rule 12(f) provides that the court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). "The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quotingFantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev 'don other grounds, 510 U.S. 517 (1994)). Accordingly, "[a] defense may be struck if it fails to provide 'fair notice' of the basis of the defense." Inc. v. eHelp Corp., 315 F.Supp.2d 1046, 1048 (N.D. Cal. 2004); see also Wyshakv. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979).

         "Motions to strike are 'generally disfavored because they are often used as delaying tactics and because of the limited importance of pleadings in federal practice.'" Cortina v. Goya Foods, Inc., 94 F.Supp.3d 1174, 1182 (S.D. Cal. 2015) (quoting Rosales v. Citibank, 133 F.Supp.2d 1177, 1180 (N.D. Cal. 2001)). "[M]otions to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991). "When ruling on a motion to strike, this Court 'must view the pleading under attack in the light most favorable to the pleader.'" Id. (citing RDF Media Ltd. v. Fox Broad. Co., 372 F.Supp.2d 556, 561 (CD. Cal. 2005)).

         Finally, this Court recently held that the Twombly and Iqbal pleading standard applies to affirmative defenses. Rahman v. San Diego Account Service, No. 16CV2061-JLS (KSC), 2017 WL 1387206 (S.D. Cal. Apr. 18, 2017). While the Court acknowledged that district courts are split on the issue, it ultimately determined that Wyshah's "fair notice" standard, which relied on the sole case of Conley v. Gibson, 355 U.S. 41 (1957), had necessarily been abrogated by the Supreme Court's decisions in Twombly and Iqbal. Id. at *2. "Accordingly, 'fair notice' necessarily now encompasses the 'plausibility' standard; whatever standard 'fair notice' previously encompassed no longer exists." Id.

         II. Anti-SLAPP Motion to Strike

         California's anti-Strategic Lawsuit Against Public Participation ("anti-SLAPP") statute provides redress for those hauled into court "primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Cal. Civ. Proc. Code § 425.16(a). Specifically, the statute provides a special motion to strike which may entitle successful movants to attorneys' fees and costs. Id. §§ 425.16(b), (c)(1). "California's anti-SLAPP statute allows a defendant to move to strike a plaintiffs complaint if it 'aris[es] from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.'" Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003) (quoting Cal. Civ. Proc. Code § 425.16(b)(1)). "The California legislature has instructed that the statute should be 'construed broadly.'" Id. (quoting Cal. Civ. Proc. Code § 425.16(a)). Furthermore, anti-SLAPP motions can be raised in federal court to target state law claims. See, e.g., DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1013 n.5 (9th Cir. 2013) ("We have held that [an anti-SLAPP] motion is available against state law claims brought in federal court.").

         A court considering a motion to strike under the anti-SLAPP statute must engage in a two-part inquiry. "First, a defendant 'must make an initial prima facie showing that the plaintiffs suit arises from an act in furtherance of the defendant's rights of petition or free speech.'" Vess, 317 F.3d at 1110 (quoting Globetrotter Software, Inc. v. Elan Comput. Grp., Inc., 63 F.Supp.2d 1127, 1129 (N.D. Cal. 1999)). "The defendant need not show that the plaintiffs suit was brought with the intention to chill the defendant's speech; the plaintiffs 'intentions are ultimately beside the point.'" Id. (quoting Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 67 (2002)). Nor does the defendant bringing the motion need to show that its speech was actually chilled. Id. (citing City of Cotati v. Cashman, 29 Cal.4th 69, 75-76 (2002)).

         "Second, once the defendant has made a prima facie showing, 'the burden shifts to the plaintiff to demonstrate a probability of prevailing on the challenged claims.'" Id. (quoting Globetrotter Software, 63 F.Supp.2d at 1129). If "the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim, " the court must deny the motion. Cal. Civ. Proc. Code § 425.16(b)(1).


         Plaintiff moves to strike Attorney Defendants' reply brief in support of their anti-SLAPP motion to strike and presumably the anti-SLAPP motion itself. Because this motion may dispose of the anti-SLAPP motion, the court considers it first. If necessary, the Court thereafter considers Attorney Defendants' anti-SLAPP motion to strike.

         I. Plaintiffs Motion to Strike

         Plaintiff moves to strike Attorney Defendants' reply brief in support of their anti-SLAPP motion to strike. The essence of Plaintiff s motion is that because he voluntarily dismissed Attorney Defendants from this case, their motion is now moot or, in the alternative, the Court ...

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