Ý¿•» ëæïíó½ªóðîðíîóÊßÐóÍРܱ½«³»²¬ ïç Ú·´»¼ ðïñîçñïì п¹» ï ±º ïç п¹» ×Ü ýæííì PRIORITY SEND UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL Case No. EDCV 13-02032-VAP (SPx) Date: January 29, 2014 Title: BRUCE MCMAHON, ON BEHALF OF HIMSELF; CHRISTOPHER BENGSTSON, ON BEHALF OF HIMSELF; AND ALL OTHERS SIMILARLY SITUATED -v- TAKE-TWO INTERACTIVE SOFTWARE, INC; AND TAKE-TWO INTERACTIVE SOFTWARE, INC., DBA "ROCKSTAR"; AND DOES 1 THROUGH 100, INCLUSIVE =============================================================== PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE MarvaDillard NonePresent CourtroomDeputy CourtReporter ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR PLAINTIFFS: DEFENDANTS: None None PROCEEDINGS: MINUTE ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (DOC. NO. 8) WITH PREJUDICE (IN CHAMBERS) Before the Court is the Motion to Dismiss Plaintiffs' Complaint (Doc. No. 8) ("Motion"), filed by Defendants Take-Two Interactive Software, Inc., and Rockstar Games, Inc. (collectively, "Defendants") on November 12, 2013. On January 6, 2014, Plaintiffs Bruce McMahon and Christopher Bengtson (collectively, "Plaintiffs") filed an Opposition to the MTD (Doc. No. 15) ("Opposition"). Defendants filed a Reply to the Opposition (Doc. No. 16) ("Reply") on January 16, 2014. After MINUTESFORM11 InitialsofDeputyClerkvpforMD CIVIL--GEN Page1 Ý¿•» ëæïíó½ªóðîðíîóÊßÐóÍРܱ½«³»²¬ ïç Ú·´»¼ ðïñîçñïì п¹» î ±º ïç п¹» ×Ü ýæííë EDCV 13-02032-VAP (SPx) BRUCE MCMAHON et al. v. TAKE-TWO INTERACTIVE SOFTWARE, INC, et al. MINUTE ORDER of January 29, 2014 considering the papers submitted in support of, and in opposition to, the Motion, as well as the arguments advanced by the parties at the January 27, 2014 hearing, the Court GRANTS the Motion WITH PREJUDICE as set forth below. I. BACKGROUND On May 22, 2013, Plaintiffs filed a Complaint, on behalf of themselves individually and all others similarly situated, against Defendants in the Superior Court, County of Riverside, which Defendants removed to this Court on November 6, 2013. (See Not. of Removal (Doc. No. 1); id. Ex. A ("Complaint").) In the Complaint, Plaintiffs claim Defendants engaged in fraudulent, unlawful, and unfair business practices, in violation of California Business and Professions Code § 17200 ("UCL"), and in false advertising, in violation of California Business and Professions Code § 17500 ("FAL"), when Defendants advertised their Grand Theft Auto V ("GTAV" or "GTA V") videogame as including an online multiplayer component ("GTA Online") and began selling GTAV on September 17, 2013, without making GTA Online available until October 1, 2013. (Compl. ¶¶ 24-63.) On November 12, 2013, Defendants filed the Motion, with a Request for Judicial Notice (Doc. No. 9) ("RJN") and the Declaration of Michael C. Lynch, with seventeen exhibits (Doc. No. 10) ("Lynch Decl."). On January 6, 2014, Plaintiffs filed the Opposition, and Defendants filed the Reply on January 13, 2014. II. REQUEST FOR JUDICIAL NOTICE Defendants request that the Court take judicial notice of the following documents: (1) Game packaging for the Microsoft Xbox 360 and Sony PlayStation 3 versions of GTAV (Lynch Decl. Exs. A, B); (2) July 2, 2013 Rockstar Newswire ("Newswire") announcement, "Asked & Answered: GTAV" (Lynch Decl. Ex. C); (3) August 12, 2013 Newswire announcement, "Grand Theft Auto Online Gameplay Video & Previews Coming This Thursday at 10 AM Eastern" (Lynch Decl. Ex. D); (4) August 15, 2013 Newswire announcement, "Watch the GTA Online Official Gameplay Video" (Lynch Decl. Ex. E); MINUTESFORM11 InitialsofDeputyClerkvpforMD CIVIL--GEN Page2 Ý¿•» ëæïíó½ªóðîðíîóÊßÐóÍРܱ½«³»²¬ ïç Ú·´»¼ ðïñîçñïì п¹» í ±º ïç п¹» ×Ü ýæííê EDCV 13-02032-VAP (SPx) BRUCE MCMAHON et al. v. TAKE-TWO INTERACTIVE SOFTWARE, INC, et al. MINUTE ORDER of January 29, 2014 (5) September 30, 2013 Newswire announcement, "GTA Online Details: Game Day Access Info and More" (Lynch Decl. Ex. F); (6) October 1, 2013 Newswire announcement, "GTAV Title Update Details" (Lynch Decl. Ex. G); and (7) Ten newspaper and blog articles from USA Today, Chronicle Herald, Examiner, www.computerandvideogames. com, www.gamespot.com, www.vg247.com, www.reviews.cnet. com, www.ign.com, www.joystiq.com, and the Las Vegas Guardian Express – all reporting on the launch of GTAV and GTA Online (Lynch Decl. Exs. H-Q). Federal Rule of Evidence 201 provides that a court may take judicial notice of a fact "not subject to reasonable dispute" that is "generally known within the territorial jurisdiction of the trial court." Fed. R. Evid. 201(b)(1). A document not attached to a complaint may be considered on a motion to dismiss and "if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). "Specifically, courts may take into account 'documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading.'" Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir. 2012). A court "may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Id. A court may take judicial notice of documents even where a plaintiff claims not to have reviewed the actual document so long as a document is authentic and forms the basis of a plaintiff's claims. Id. When a complaint alleges UCL and FAL claims, a court may take judicial notice of and consider "advertising," including product labeling and promotional announcements, even where those materials are not attached to a complaint, because those documents are central to the UCL and FAL claims. See, e.g., Davis, 691 F.3d at 1160 ("[H]aving based his allegations on the contents and appearance of the Important Terms & Disclosure Statement, '[Davis] can hardly complain when [defendants] refer to the same information in their defense.'"); In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 903 F. Supp. 2d 942, 970 (S.D. Cal. 2012) ("[T]he SNE User Agreement, SNE Privacy Policy, . and CNET Article are all appropriate for judicial notice as Plaintiffs rely on and quote from each of the MINUTESFORM11 InitialsofDeputyClerkvpforMD CIVIL--GEN Page3 Ý¿•» ëæïíó½ªóðîðíîóÊßÐóÍРܱ½«³»²¬ ïç Ú·´»¼ ðïñîçñïì п¹» ì ±º ïç п¹» ×Ü ýæííé EDCV 13-02032-VAP (SPx) BRUCE MCMAHON et al. v. TAKE-TWO INTERACTIVE SOFTWARE, INC, et al. MINUTE ORDER of January 29, 2014 documents in the Consolidated Complaint"); Wofford v. Apple, Inc., No. 11-CV-0034, 2011 WL 5445054, at *3 (S.D. Cal. Nov. 9, 2011) (taking judicial notice of Apple iPhone license agreement). Also, a court may take judicial notice of publicly available newspaper and magazine articles and web pages that "indicate what was in the public realm at the time, not whether the contents of those articles were in fact true." Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010). Courts have found website and newspaper articles to be a proper subject for judicial notice where those materials are relied on by a plaintiff or concern facts at issue in a complaint. See, e.g., Wible v. Aetna Life Ins. Co., 375 F. Supp. 2d 956, 965-66 (C.D. Cal. 2005) (judicial notice of Amazon.com pages and web information from medical associations); Datel Holdings Ltd. v. Microsoft Corp., 712 F. Supp. 2d 974, 983-85 (N.D. Cal. 2010) (taking judicial notice of videogame screen shots and materials from defendant Microsoft's website); In re Sony, 903 F. Supp. 2d at 955 (taking judicial notice of a publicly available "CNET article by author Erica Ogg, entitled, 'Sony to Restore PSN Services'"). Here, the Complaint quotes extensively from the GTAV packaging, and the exact wording of certain sentences on the packaging and its meaning are central to the claims asserted in the Complaint. (See Compl. ¶¶ 16, 26, 33.) Nor do Plaintiffs object to the RJN insofar as it seeks notice of the packaging. (Opp'n at 19.) Thus, the Court finds it appropriate to take judicial notice of the original GTAV packaging (Lynch Decl. Exs. A, B), which both parties rely on and the Court may examine in determining whether the Complaint states UCL and FAL claims. See Swartz v. KPMG, 476 F.3d 756 (9th Cir. 2007). As for Exhibits C through Q of the Lynch Declaration, containing Rockstar Newswire announcements from Defendants' website as well as various internet outlets reporting on the Newswire announcements and the arrival of GTAV and GTA Online, Plaintiffs object to judicial notice of these documents because, as Plaintiffs assert relying on the California Evidence Code, that the documents constitute "hearsay" and "are not capable of immediate and accurate determination by any known reliable sources." (Opp'n at 19-20.) Plaintiffs also object to judicial notice of the documents because the Court "has not been provided with sufficient information MINUTESFORM11 InitialsofDeputyClerkvpforMD CIVIL--GEN Page4 Ý¿•» ëæïíó½ªóðîðíîóÊßÐóÍРܱ½«³»²¬ ïç Ú·´»¼ ðïñîçñïì п¹» ë ±º ïç п¹» ×Ü ýæííè EDCV 13-02032-VAP (SPx) BRUCE MCMAHON et al. v. TAKE-TWO INTERACTIVE SOFTWARE, INC, et al. MINUTE ORDER of January 29, 2014 by the Defendants to determine whether or not the facts and propositions" within the documents are admissible. (Id. at 20.) At the January 27, 2014 hearing on the Motion, Plaintiffs' counsel reiterated these arguments, asserting that these documents are inherently unreliable. Plaintiffs' argument, however, is flawed insofar as it relies on the California Evidence Code, rather than on the Federal Rules of Evidence, and on the apparent misapprehension of the purpose of judicial notice – that judicial notice necessarily denotes either the truth or factual reliability of a document. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938); Wyatt v.