United States District Court, S.D. California
ORDER ON (1) ATTORNEY DEFENDANTS' SPECIAL
ANTI-SLAPP MOTION TO STRIKE AND (2) PLAINTIFF'S MOTION TO
STRIKE (ECF 77 No. 158)
Janis L. Sammartino United States District Judge.
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,
("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). 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
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.
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.)
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.)
Defendants, including Attorney Defendants, filed motions to
dismiss for failure to state a claim. 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.) 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.
Rule 12(f) Motion to Strike
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." Qarbon.com 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).
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)).
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.
Anti-SLAPP Motion to Strike
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
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)).
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 §
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.
Plaintiffs Motion to Strike
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 ...