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Received by Second District Court of Appeal ANDREW J Case No. B280526 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION TWO Vera Serova, Plaintiff and Respondent, v. Sony Music Entertainment; John Branca, as Co-Executor of the Estate of Michael J. Jackson; and MJJ Productions, Inc. Defendants and Appellants. _________________________________________________________ Appeal from the Los Angeles Superior Court Case No. BC 548468 Honorable Ann I. Jones _________________________________________________________ APPELLANTS’ OPENING BRIEF _________________________________________________________ *ZIA F. MODABBER (SBN 137388) Received by Second District Court of Appeal ANDREW J. DEMKO (SBN 247320) CHARLOTTE S. WASSERSTEIN (SBN 279442) KATTEN MUCHIN ROSENMAN LLP 2029 Century Park East, Suite 2600 Los Angeles, California 90067 Telephone: (310) 788-4400 Facsimile: (310) 788-4471 HOWARD WEITZMAN (SBN 38723) SUANN C. MACISAAC (SBN 205659) KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 Telephone: (310) 566-9800 Facsimile: (310) 566-9850 www.themjcast.com[caption continued on following page] Attorneys for Defendants and Appellants Sony Music Entertainment, John Branca, as Co-Executor of the Estate of Michael J. Jackson, and MJJ Productions, Inc. Service on California Attorney General and L.A. County District Attorney (Bus. & Prof. Code, § 17209) www.themjcast.com 2 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................ 6 I. INTRODUCTION AND SUMMARY OF ARGUMENT. ....................................................................... 11 II. STATEMENT OF APPEALABILITY. ................................ 15 III. SUMMARY OF ALLEGATIONS AND PROCEDURAL HISTORY. ................................................. 15 A. Serova’s Claims Against Appellants. ........................ 15 B. The Statements Alleged In The FAC. ....................... 19 C. The Trial Court Grants In Part And Denies In Part Appellants’ Anti-SLAPP Motion. ...................... 23 D. The Court Denies Serova’s Motion To Dismiss This Appeal. ............................................................... 25 E. The Two Statements At Issue In This Appeal. ........ 25 IV. STANDARD OF REVIEW. .................................................. 26 V. ARGUMENT. ....................................................................... 27 A. Step One: Serova’s Claims Arise Out Of Speech Protected Under The First Amendment. ..... 28 B. Step Two: Serova Cannot Establish A Probability Of Prevailing On The Merits Of Her Claims. ........................................................................ 30 1. The Album Cover And Announcement Video Comprise Non-Commercial Speech And Thus Fall Outside The Purview Of The UCL And CLRA. ....................................... 30 a. The Album Cover Is Not Commercial Speech, Or Is Protected As Inextricably www.themjcast.com 3 Intertwined With Protected Non- Commercial Speech. ............................... 33 b. The Announcement Video Is Not Commercial Speech, Or Is Protected As Inextricably Intertwined With Protected Non- Commercial Speech. ............................... 38 2. Alternatively, Serova Has No Probability of Success on the Merits Because The Statements In The Press And The Video Did Not Contain Any False Or Misleading Statements About Whether Jackson Performed The Vocals On The Cascio Tracks. .................................................. 40 a. Standards Applicable To UCL And CLRA Claims.......................................... 40 b. The Album Cover Would Not Mislead A Reasonable Consumer. ........ 41 c. The Announcement Video Would Not Mislead A Reasonable Consumer. .............................................. 42 C. Serova Is Not Without a Remedy; She Can And Did Bring A Fraud Claim. ......................................... 44 D. The Trial Court’s Attempts To “Shape” Appellants’ Protected Speech, And Overly Narrow Definition Of What It Is To “Chill” Speech, Support Reversal. ......................................... 47 E. The Ruling Is Appealable. ......................................... 49 F. On Remand, The Trial Court Should Award Appellants Their Attorneys’ Fees. ............................ 50 VI. CONCLUSION. .................................................................... 51 www.themjcast.comWORD COUNT CERTIFICATION ............................................... 53 4 www.themjcast.com 5 TABLE OF AUTHORITIES Page(s) Cases 569 E. Cty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426 .......................................................... 49 Anderson v. City of Hermosa Beach (9th Cir. 2010) 621 F.3d 1051 ................................................... 36 Anthony v. Buena Vista Home Entertainment Inc. (C.D. Cal., Sept. 28, 2016, No. 215CV09593SVWJPR) 2016 WL 6836950 ................... 40, 41, 47 Baral v. Schnitt (2016) 1 Cal.5th 376 .................................................................. 14 Bardin v. Daimlerchrysler Corp. (2006) 136 Cal.App.4th 1255 .................................................... 40 Berger v. City of Seattle (9th Cir. 2009) 569 F.3d 1029 ................................................... 32 Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322 .................................... 26, 38, 39, 40 Bery v. New York (2d Cir. 1996) 97 F.3d 689 .................................................. 33, 34 Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60 ................................................... 12, 30, 31, 35 Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665 ...................................................... 47 Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655 .......................................................... 24 Cher v. Forum Internat., Ltd. www.themjcast.com(9th Cir. 1982) 692 F.2d 634 ..................................................... 31 6 Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315 .................................................... 49 Colgan v. Leatherman Tool Group Co. (2006) 135 Cal.App.4th 663 .......................................... 42, 43, 44 Cressman v. Thompson (10th Cir. 2015) 798 F.3d 938 ............................................. 13, 33 Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 ........................................................ 28 Dex Media West, Inc. v. City of Seattle (9th Cir. 2012) 696 F.3d 952 ............................................... 30, 31 FilmOn.com v. DoubleVerify, Inc. (2017) 13 Cal.App.5th 707 ........................................................ 47 Garrison v. State of La. (1964) 379 U.S. 64 ..................................................................... 45 Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 ................................................................... 46 Gilbert v. Sykes (2007) 147 Cal.App.4th 13 ........................................................ 29 Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d 860 ................................................................. 31 Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337 .................................................... 28 Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295 .............................................. 39, 40 Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495 ................................................................... 13 Kasky v. Nike, Inc. (2002) 27 Cal.4th 939 .............................................. 31, 38, 39, 44 Keimer v. Buena Vista Books, Inc. www.themjcast.com(1999) 75 Cal.App.4th 1220 ................................................ 38, 44 7 Kronemyer v. Internet Movie Data Base, Inc. (2007) 150 Cal.App.4th 941 ...................................................... 34 Lima v. Vouis (2009) 174 Cal.App.4th 242 ...................................................... 24 Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181 ...................................................... 43 Mobile Medical Services for Physicians and Advanced Practice Nurses, Inc. v. Rajaram (2015) 241 Cal.App.4th 164 ...................................................... 45 Murdock v. Pennsylvania (1943) 319 U.S. 105 ................................................................... 31 National Endowment for the Arts v. Finley (1998) 524 U.S. 569 ................................................................... 33 New.Net, Inc. v. Lavasoft (C.D.Cal. 2004) 356 F.Supp.2d 1090 ........................................ 29 O’Connor v. Super. Ct. (1986) 177 Cal.App.3d 1013 ..................................................... 30 Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574 .................................................. 26, 40 Parent v. Millercoors LLC (S.D.Cal., Oct. 26, 2015, No. 3:15-CV-1204-GPC- WVG) 2015 WL 6455752 .......................................................... 43 Polydoros v. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318 .................................................. 31, 32 Rezec v. Sony Pictures Entertainment, Inc. (2004) 116 Cal.App.4th 135 .................................... 29, 34, 37, 44 Riley v. Nat. Federation of the Blind of N.C., Inc. (1988) 487 U.S. 781 ................................................................... 31 Simpson Strong-Tie Co., Inc. v. Gore www.themjcast.com(2010) 49 Cal.4th 12 ............................................................ 25, 26 8 Smith v. California (1959) 361 U.S. 147 ............................................................
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