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1 JAMES ROSENFELD (Pro Hac Vice Forthcoming)

jamesrosenfeld@dwt.com
2 DIANA PALACIOS (State Bar No. 290923)
dianapalacios@dwt.com
3 DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, 24th Floor
4 Los Angeles, California 90017-2566
Telephone: (213) 633-6800
5 Fax: (213) 633-6899
6 Attorneys for TWITCH INTERACTIVE, INC.,
ERRONEOUSLY SUED AS TWITCH (OF AMAZON INC.)
7

9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA


10 IN AND FOR THE COUNTY OF SANTA CLARA
DAVIS WRIGHT TREMAINE LLP

11
ERIK ESTAVILLO, Case No. 20CV367206
12
Plaintiff, NOTICE OF MOTION AND SPECIAL
13 MOTION TO STRIKE PLAINTIFF’S
v. COMPLAINT; SUPPORTING
14 MEMORANDUM OF POINTS AND
TWITCH (of Amazon Inc.), AUTHORITIES
15 [C.C.P. § 425.16]
Defendant.
16
Judge: Hon. Thang N. Barrett
17 Department: 21
18 Date: [TBD]
Time: [TBD]
19
Complaint Filed: June 15, 2020
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SPECIAL MOTION TO STRIKE


Case No. 20CV367206
4823-1109-2163v.6 0051461-003130
1 TO PLAINTIFF PROCEEDING PRO SE:

2 PLEASE TAKE NOTICE THAT on a date to be determined by the Court,1 or as soon

3 thereafter as counsel may be heard in Department 21 of the Superior Court of California, County

4 of Santa Clara, located at 161 North First Street San Jose, CA 95113, Defendant Twitch

5 Interactive, Inc., erroneously sued as Twitch (of Amazon Inc.) (“Twitch”) will and hereby does

6 move this Court, pursuant to California Code of Civil Procedure § 425.16, for an order striking

7 with prejudice the Complaint brought by Plaintiff Erik Estavillo (“Plaintiff”).

8 This Motion is made on the grounds that Plaintiff’s Complaint against Twitch is subject

9 to a special motion to strike under California Code of Civil Procedure § 425.16. The Complaint

10 arises directly from content available in a public forum and conduct in furtherance of the
DAVIS WRIGHT TREMAINE LLP

11 exercise of the right of free speech in connection with issues of public interest. Consequently,

12 the burden shifts to Plaintiff to establish a probability that he will prevail on his claims. He

13 cannot meet his burden for each of the following reasons:

14 1. Plaintiff’s Complaint is barred in its entirety by the federal Communications

15 Decency Act, 47 U.S.C. § 230(c).

16 2. Even if not barred by the Communications Decency Act, Plaintiff’s Complaint

17 fails to state a viable claim under California law.

18 This Motion is based on this Notice; the attached Memorandum of Points and

19 Authorities; the Declaration of Chris Mead with Exhibits 1-2 and Declaration of Diana Palacios

20 with Exhibits 3-7; all other matters of which this Court may take judicial notice; all pleadings,

21 files, and records in this action; and on such other argument as may be received by this Court at

22 the hearing on this Motion.

23 DATED: August 18, 2020 Respectfully submitted,


DAVIS WRIGHT TREMAINE LLP
24 JAMES ROSENFELD
DIANA PALACIOS
25
By:
26 Diana Palacios
27

28 1
Twitch attempted to reserve a hearing date through the Court’s Hearing Department; however,
no hearings are currently being scheduled.
2
SPECIAL MOTION TO STRIKE
Case No. 20CV367206
4823-1109-2163v.6 0051461-003130
1 TABLE OF CONTENTS
2 Page

3 I. SUMMARY OF ARGUMENT .......................................................................................... 8


4 II. STATEMENT OF FACTS.................................................................................................. 9
5 III. PLAINTIFF’S CLAIMS MUST BE STRICKEN UNDER SECTION 425.16. ............... 10
6 A. SECTION 425.16 APPLIES TO PLAINTIFF’S COMPLAINT AGAINST
TWITCH. .............................................................................................................. 10
7
Plaintiff’s Claims Arise from Protected Conduct. .................................... 10
8
2. The SLAPP Statute’s Public Interest Requirement Is Easily
9 Satisfied. .................................................................................................... 11
10 B. PLAINTIFF CANNOT SHOW A PROBABILITY OF PREVAILING. ............. 14
DAVIS WRIGHT TREMAINE LLP

11 1. Section 230 Bars Plaintiff’s Claims against Twitch.................................. 14


12 a. Twitch Is an Interactive Computer Service. .................................. 15
13 b. Plaintiff Seeks to Treat Twitch as the Publisher or Speaker. ........ 16
14 c. Plaintiff’s Allegations Arise from Third-Party Content. ............... 17
15 2. Plaintiff Has Not and Cannot Adequately Allege Any Claim
against Twitch ........................................................................................... 18
16
IV. CONCLUSION ................................................................................................................. 19
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SPECIAL MOTION TO STRIKE
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1 TABLE OF AUTHORITIES
2 Page(s)

3 CASES
4 Abir Cohen Treyzon Salo, LLP v. Lahiji,
40 Cal. App. 5th 882 (2019) .................................................................................................... 11
5

6 Alpha & Omega Devel. v. Whillock Contracting,


200 Cal. App. 4th 656 (2011) .................................................................................................. 14
7
Barnes v. Yahoo!, Inc.,
8 570 F.3d 1096 (9th Cir., 2009) ................................................................................................ 15
9 Barrett v. Rosenthal,
40 Cal. 4th 33 (2006)............................................................................................................... 14
10
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Batzel v. Smith,
11
333 F.3d 1018 (9th Cir. 2003) ................................................................................................. 14
12
Bel Air Internet, LLC v. Morales,
13 20 Cal. App. 5th 924 (2018) .................................................................................................... 11

14 Braun v. Chronicle Publ’g,


52 Cal. App. 4th 1036 (1997) .................................................................................................. 10
15
Caraccioli v. Facebook, Inc.,
16
167 F. Supp. 3d 1056 (N.D. Cal. 2016) aff’d, 700 F. App’x 588 (9th Cir. 2017)................... 18
17
Carafano v. Metrosplash.com, Inc.,
18 339 F.3d 1119 (9th Cir. 2003) ..................................................................................... 14, 15, 16

19 Cross v. Facebook, Inc.,


14 Cal. App. 5th 190 (2017) ........................................................................................ 13, 16, 17
20
Cusano v. Klein,
21 473 F. App’x 803 (9th Cir. 2012)............................................................................................ 11
22
Damon v. Ocean Hills Journalism Club,
23 85 Cal. App. 4th 468 (2000) .................................................................................................... 12

24 Delfino v. Agilent Technologies,


145 Cal. App. 4th 790 (2006) .................................................................................................. 15
25
Doe II v. MySpace Inc.,
26 175 Cal. App. 4th 561 (2009) ............................................................................................ 16, 17
27 Engalla v. Permanente Med. Grp.,
28 15 Cal. 4th 951 (1997)............................................................................................................. 19

4
SPECIAL MOTION TO STRIKE
Case No. 20CV367206
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Gentry v. eBay, Inc.,
1 99 Cal. App. 4th 816 (2002) .................................................................................................... 15
2
Gilbert v. Sykes,
3 147 Cal. App. 4th 13 (2007) .............................................................................................. 12, 13

4 Global Telemedia Int’l, Inc. v. Doe 1,


132 F. Supp. 2d 1261 (C.D. Cal. 2001) ................................................................................... 13
5
Goddard v. Google, Inc.,
6 No. C 08-2738 JF, 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008).......................................... 14
7 Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc.,
8 742 F.3d 414 (9th Cir. 2014) ................................................................................................... 11

9 Hall v. Time Warner, Inc.,


153 Cal. App. 4th 1337 (2007) ................................................................................................ 12
10
Hassell v. Bird,
DAVIS WRIGHT TREMAINE LLP

11 5 Cal. 5th 522 (2018)............................................................................................................... 16


12 Hilton v. Hallmark Cards,
13 599 F.3d 894 (9th Cir. 2010) ................................................................................................... 12

14 Hupp v. Freedom Commc’ns, Inc.,


221 Cal. App. 4th 398 (2013) .................................................................................................. 16
15
Jackson v. Mayweather,
16 10 Cal. App. 5th 1240 (2017) .................................................................................................. 11
17 Jurin v. Google, Inc.,
695 F. Supp. 2d 1117 (E.D. Cal. 2010) ................................................................................... 15
18

19 Kimzey v. Yelp! Inc.,


836 F.3d 1263 (9th Cir. 2016) ................................................................................................. 15
20
Kronemyer v. IMDB, Inc.,
21 150 Cal. App. 4th 941 (2007) ............................................................................................ 11, 12
22 Macias v. Hartwell,
55 Cal. App. 4th 669 (1997) .................................................................................................... 14
23
Navellier v. Sletten,
24
29 Cal. 4th 82 (2002)............................................................................................................... 10
25
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
26 591 F.3d 250 (4th Cir. 2009) ................................................................................................... 15

27 No Doubt v. Activision Publ’g, Inc.,


192 Cal. App. 4th 1018 (2011) ................................................................................................ 12
28

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Nygård v. Uusi-Kerttula,
1 159 Cal. App. 4th 1027 (2008) .......................................................................................... 12, 13
2
Oestreicher v. Alienware Corp.,
3 544 F. Supp. 2d 964 (N.D. Cal. 2008), aff’d, 322 F. App’x 489 (9th Cir. 2009).................... 19

4 Page v. Something Weird Video,


960 F. Supp. 1438 (C.D. Cal. 1996) ........................................................................................ 11
5
Polydoros v. Twentieth Century Fox Film Corp.,
6 67 Cal. App. 4th 318 (1997) .................................................................................................... 11
7 Seelig v. Infinity Broad.,
8 97 Cal. App. 4th 798 (2002) .............................................................................................. 11, 12

9 Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc.,


144 F. Supp. 3d 1088 (N.D. Cal., 2015) ................................................................................. 17
10
Simmons v. Allstate Ins. Co.,
DAVIS WRIGHT TREMAINE LLP

11 92 Cal. App. 4th 1068 (2001) .................................................................................................. 19


12 Spann v. J.C. Penney Corp.,
13 No. SA CV 12-0215 FMO, 2014 WL 12634887 (C.D. Cal. Feb. 21, 2014) .......................... 19

14 Stearns v. Select Comfort Retail Corp.,


No. 08-2746 JF, 2009 WL 1635931 (N.D. Cal. June 5, 2009) ............................................... 19
15
Stewart v. Rolling Stone LLC,
16 181 Cal. App. 4th 664 (2010) ............................................................................................ 12, 19
17 Summit Bank v. Rogers,
206 Cal. App. 4th 669 (2012) ............................................................................................ 12, 13
18

19 Sylmar Air Conditioning v. Pueblo Contracting Servs.,


122 Cal. App. 4th 1049 (2004) ................................................................................................ 20
20
Tamkin v. CBS,
21 193 Cal. App. 4th 133 (2011) .................................................................................................. 12
22 Terry v. Davis Comm’ty Church,
131 Cal. App. 4th 1534 (2005) ................................................................................................ 12
23
Young v. Facebook, Inc.,
24
No. 5:10-CV-03579-JF/PVT, 2010 WL 4269304 (N.D. Cal. Oct. 25, 2010) ......................... 18
25
STATUTES
26
47 U.S.C.
27 § 230 (Communications Decency Act) ............................................................................ passim
§ 230(c)(1) ............................................................................................................. 14, 15, 16, 18
28

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§ 230(e)(3) ............................................................................................................................... 14
1 § 230(f)(2) ............................................................................................................................... 15
2
California Code of Civil Procedure
3 § 425.16 ............................................................................................................. 8, 10, 11, 12, 14

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SPECIAL MOTION TO STRIKE
Case No. 20CV367206
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1 I. SUMMARY OF ARGUMENT

2 Plaintiff Erik Estavillo (“Plaintiff”) claims that Twitch has “exacerbated his condition” –

3 sex addiction, obsessive compulsive disorder and other maladies – “by displaying many sexually

4 suggestive women streamers” through its services, “making it nearly impossible for the plaintiff

5 to use Twitch without being exposed to such sexual suggestive content.” Compl. ¶ 4. While it is

6 not clear what claim Plaintiff attempts to assert, he vaguely suggests that by subjecting him to

7 content of a sexual nature Twitch is violating its own terms of service (Id. ¶ 4), acting

8 negligently (Id. ¶ 6), or somehow engaging in false advertising (Id. ¶ 7).

9 However his claims are construed, they violate California’s SLAPP statute, C.C.P.

10 § 425.16. Plaintiff’s Complaint attempts to limit Twitch’s right to decide what content to allow
DAVIS WRIGHT TREMAINE LLP

11 or not allow on its service, which falls squarely within Twitch’s protected constitutional right of

12 free speech. Fortunately, California’s SLAPP statute provides a mechanism for protecting

13 against abusive lawsuits such as this one. C.C.P. § 425.16. Because Plaintiff’s Complaint arises

14 directly from content available in a public forum and acts in furtherance of speech about matters

15 of public interest, the SLAPP statute shifts the burden to him to present admissible evidence

16 substantiating his claims. Id. He cannot meet his burden:

17 First, Plaintiff’s Complaint against Twitch is barred by the federal Communications

18 Decency Act (“CDA”), 47 U.S.C. § 230 (“Section 230”) because Twitch is an interactive

19 computer service, the content at issue here was created by various streamers with no involvement

20 by Twitch, and Plaintiff’s claims seek to treat Twitch as the speaker or publisher of that content.

21 Indeed, courts in California and across the country have consistently held that the CDA

22 immunizes interactive computer services – such as Twitch – from liability arising out of content

23 created by others on their systems or services.

24 Second, even if Plaintiff’s Complaint were not barred by the CDA, Plaintiff nevertheless

25 fails to state a claim. While Twitch has adopted Terms of Service and Community Guidelines

26 and it does not condone sexual content on its services, it has nowhere promised to remove any

27 specific content and cannot be held liable for content created by third parties under any contract

28 or tort theory. Therefore, Plaintiff has failed to allege any viable claim.

8
SPECIAL MOTION TO STRIKE
Case No. 20CV367206
4823-1109-2163v.6 0051461-003130
1 Accordingly, Twitch respectfully requests that this Court strike Plaintiff’s Complaint and

2 dismiss this lawsuit with prejudice.

3 II. STATEMENT OF FACTS

4 Twitch is a real-time streaming video service where community members gather to

5 watch, play, and chat about shared interests – predominantly video games, sports and creative

6 arts. Declaration of Chris Meade (“Meade Decl.”) ¶ 3. On Twitch, streamers (those Twitch

7 users who share live content on the service) pursue their interest to engage and entertain viewers.

8 Id. Anyone who creates a user account must agree to the site’s Terms of Service, including the

9 policies incorporated by those terms such as the Community Guidelines. Id. ¶ 7. In its Terms of

10 Service, Twitch specifically disclaims “any and all liability in connection with User Content”
DAVIS WRIGHT TREMAINE LLP

11 and specifically states:

12 Twitch takes no responsibility and assumes no liability for any User Content or for
any loss or damage resulting therefrom, nor is Twitch liable for any mistakes,
13 defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or
profanity you may encounter when using the Twitch Services. Your use of the
14 Twitch Services is at your own risk. In addition, these rules do not create any
private right of action on the part of any third party or any reasonable expectation
15 that the Twitch Services will not contain any content that is prohibited by such rules.
16 Id. ¶ 8, Ex. 1.

17 To foster a safe and welcoming community, Twitch has also adopted Community

18 Guidelines on several topics, including Community Guidelines on sexual content to inform

19 streamers that Twitch “restrict[s] content that involves nudity or is sexual in nature, and [is]

20 committed to ensuring that Twitch is not used for sexual exploitation or violence.” Id. ¶ 9, Ex. 2.

21 Plaintiff alleges that he created a user account, and that he used Twitch under the

22 username “therealerikestavillo.” Compl. p. 27:3-4, p. 28:9-13. He claims that “Twitch’s laxed

23 (sic) policy-enforcing has harmed the plaintiff by not filtering out [] sexually suggestive women

24 and their content.” Compl. p. 27:14-15. His Complaint lists several female streamers who he

25 claims have violated Twitch’s Terms of Service and Community Guidelines, and contains photos

26 and screenshots of these streamers. Id. at p. 5-25. Through this lawsuit, he seeks “immediate

27 cancellation and PERMANENT BAN of” the listed streamers and “25 million in punitive

28 damages.” Id. at p. 30.

9
SPECIAL MOTION TO STRIKE
Case No. 20CV367206
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1 Plaintiff has gained media attention and notoriety due to lawsuits he has filed against

2 major technology companies. See Request for Judicial Notice (“RJN”), Ex. 7. In fact, Plaintiff

3 published a book entitled The PSN Plaintiff in which he states that “I am the man who was

4 famously known for suing Sony, Microsoft, Nintendo[,]” and that he has made “a pretty decent

5 online presence in the light of my lawsuits. There are so many online articles written about me

6 that are plastered with comments.” He also adds that “[e]verybody loves attention no matter

7 what kind it is.” Id.

8 III. PLAINTIFF’S CLAIMS MUST BE STRICKEN UNDER SECTION 425.16.

9 The Legislature enacted C.C.P. § 425.16 “to nip SLAPP litigation in the bud” by quickly

10 disposing of claims that target the exercise of free speech rights and acts in furtherance of those
DAVIS WRIGHT TREMAINE LLP

11 rights. Braun v. Chronicle Publ’g, 52 Cal. App. 4th 1036, 1042 (1997). The statute must be

12 broadly construed. C.C.P. § 425.16(a).

13 The statute sets forth a “two-step process” for determining whether a claim must be

14 stricken: “First, the court decides whether the defendant has made a threshold showing that the

15 challenged cause of action is one arising from protected activity.” Navellier v. Sletten, 29 Cal.

16 4th 82, 88 (2002). Once that showing is made, the court “must then determine whether the

17 plaintiff has demonstrated a probability of prevailing.” Id. Where – as here – the plaintiff

18 cannot meet this burden, the claim must be stricken. Id.; C.C.P. § 425.16(b)(1).

19 A. SECTION 425.16 APPLIES TO PLAINTIFF’S COMPLAINT AGAINST

20 TWITCH.

21 All of Plaintiff’s allegations are based on streams made by female streamers on Twitch.

22 E.g. Compl. ¶¶ 1-7. Consequently, his Complaint falls squarely within the scope of the SLAPP

23 statute because the alleged conduct “underlying the plaintiff’s cause [of action] fits one of the

24 categories spelled out in section 425.16, subdivision (e),” (Navellier, 29 Cal. 4th at 88 (citation

25 omitted)), and as required under Section 425.16(e)(3) and (e)(4), the protected conduct is “in

26 connection with a public issue or an issue of public interest.”

27 1. Plaintiff’s Claims Arise from Protected Conduct.

28 Plaintiff’s claims fall within Section 425.16(e)(3) because they arise from content

10
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1 published on a public website and were therefore “made in … a public forum[.]” See Jackson v.

2 Mayweather, 10 Cal. App. 5th 1240, 1252 (2017) (defendant’s “postings on his Facebook page”

3 made in public forum under (e)(3)); Kronemyer v. IMDB, Inc., 150 Cal. App. 4th 941, 950

4 (2007) (web site accessible to the public is a public forum).2

5 Subsection (e)(4) also applies because the Complaint arises from “conduct in furtherance

6 of the exercise of … the constitutional right of free speech[.]” C.C.P. § 425.16(e)(4). As courts

7 have consistently held, dissemination of audio-visual material, including online videos, is

8 constitutionally protected speech. See Greater Los Angeles Agency on Deafness, Inc. v. Cable

9 News Network, Inc., 742 F.3d 414, 424–25 (9th Cir. 2014) (“an action directly targets the way a

10 content provider chooses to deliver, present, or publish” online videos “is based on conduct in
DAVIS WRIGHT TREMAINE LLP

11 furtherance of free speech rights and must withstand scrutiny under California’s anti-SLAPP

12 statute.”); Cusano v. Klein, 473 F. App’x 803, 804 (9th Cir. 2012) (“Dissemination of the

13 television program and DVD set constitutes conduct in furtherance of free speech.”) (citation

14 omitted). See also Page v. Something Weird Video, 960 F. Supp. 1438, 1444 (C.D. Cal. 1996)

15 (“videos themselves are protected by the First Amendment”). It does not matter that the streams

16 at issue are for entertainment; “[p]opular entertainment is entitled to the same constitutional

17 protection as the exposition of political ideas.” Polydoros v. Twentieth Century Fox Film Corp.,

18 67 Cal. App. 4th 318, 324 (1997) (quotation omitted).

19 2. The SLAPP Statute’s Public Interest Requirement Is Easily Satisfied.

20 Twitch also easily satisfies the requirement that the claims be “in connection with a

21 public issue.” C.C.P. § 425.16(e)(3), (e)(4). Consistent with the Legislature’s express mandate,

22 the statute’s definition of “a public issue or an issue of public interest” must be “construed

23 broadly.” Seelig v. Infinity Broad., 97 Cal. App. 4th 798, 808 (2002). Matters of public interest

24

25 2
Although Twitch did not create or publish the content at issue here, it nonetheless is protected
by the SLAPP statute. As courts have made clear, “if the complaint itself shows that a claim
26
arises from protected conduct” then “a moving party may rely on the plaintiff’s allegations alone
27 in making the showing necessary under prong one.” Bel Air Internet, LLC v. Morales, 20 Cal.
App. 5th 924, 936 (2018). See also Abir Cohen Treyzon Salo, LLP v. Lahiji, 40 Cal. App. 5th
28 882, 888 (2019) (same; defendant could bring SLAPP motion against defamation claim even
though it denied making the statements at issue).
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Case No. 20CV367206
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1 are not limited to traditional news reports; instead, “[t]he definition of ‘public interest’ within the

2 meaning of [Section 425.16] has been broadly construed to include not only governmental

3 matters, but also private conduct that impacts a broad segment of society.” Damon v. Ocean

4 Hills Journalism Club, 85 Cal. App. 4th 468, 479 (2000). Put simply, an issue of public interest

5 “is any issue in which the public is interested[.]” Nygård v. Uusi-Kerttula, 159 Cal. App. 4th

6 1027, 1042 (2008). “In other words, the issue need not be ‘significant’ to be protected by the

7 anti-SLAPP statute – it is enough that it is one in which the public takes an interest.” Id.

8 Courts applying this broad standard have found that a wide variety of subjects meet the

9 public interest test. E.g., Hilton v. Hallmark Cards, 599 F.3d 894, 908 (9th Cir. 2010) (birthday

10 card depicting Paris Hilton); Seelig, 97 Cal. App. 4th at 807-808 (contestant on “Who Wants to
DAVIS WRIGHT TREMAINE LLP

11 Marry a Multimillionaire”); No Doubt v. Activision Publ’g, Inc., 192 Cal. App. 4th 1018, 1027

12 (2011) (“Guitar Hero” video game); Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 677-

13 78 (2010) (independent rock bands); Gilbert v. Sykes, 147 Cal. App. 4th 13, 23 (2007) (plastic

14 surgery); Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337, 1347 (2007) (TV report about

15 dispute over Marlon Brando’s will). Here, the public interest requirement is satisfied for several

16 reasons:

17 First, it is evident from the allegations in the Complaint that the streamers at issue and

18 their content are a matter of public interest. As Plaintiff alleges, “all of these streamers still

19 operate today as the most popular streams” and one streamer in particular “attracts anywhere

20 from 2,000 to 7,000 views on a daily basis.” Compl. ¶ 4 at pg. 26. See Summit Bank v. Rogers,

21 206 Cal. App. 4th 669, 695 (2012) (the “fact that [defendant’s] posts drew numerous comments”

22 showed “considerable public interest”); Tamkin v. CBS, 193 Cal. App. 4th 133, 143 (2011)

23 (ratings for and online discussion about a television show established requisite public interest).

24 Second, in evaluating whether conduct in furtherance of speech is “in connection with”

25 matters of public interest, courts have made clear the inquiry focuses on the “broad topic” of the

26 speech. Terry v. Davis Comm’ty Church, 131 Cal. App. 4th 1534, 1545, 1548 (2005). Indeed,

27 the very popularity of the site itself can demonstrate the required public interest. See Kronemyer,

28 150 Cal. App. 4th at 949 (2007) (public interest requirement met because “evidence in support of

12
SPECIAL MOTION TO STRIKE
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1 the anti-SLAPP motion established that 35 million people visit respondent’s Web site each

2 month.”). See also Cross v. Facebook, Inc., 14 Cal. App. 5th 190, 201-02 (2017) (SLAPP statute

3 applied to lawsuit seeking to hold Facebook liable for not removing content). Under this broad

4 inquiry, Twitch and the content available on Twitch generally are a matter of public interest. In

5 fact, every month Twitch hosts more than 4 million unique streamers and over 17.5 million

6 unique viewers. Meade Decl. ¶ 4. Further, prominent news sources have published many

7 articles on the discrimination, harassment, and objectification faced by female streamers, on

8 Twitch and other online services. See RJN, Ex. 4. Also, as widely reported, Twitch has been

9 working hard to alleviate these issues, promoting the safety and well-being of female streamers

10 and investigating accusations of sexual harassment and misconduct. See RJN, Ex. 5.
DAVIS WRIGHT TREMAINE LLP

11 Moreover, the broad topic of female streamers on Twitch has been the subject of

12 numerous articles and websites, including articles and websites discussing the popularity of

13 particular streamers. See RJN, Ex. 3. Such evidence demonstrates that this content is of public

14 interest. See, e.g., Gilbert, 147 Cal. App. 4th 13, 23 (2007) (finding plastic surgery to be a public

15 issue where there was a “virtual deluge of articles and Web sites devoted to the well-known

16 controversy surrounding plastic surgery”).

17 Finally, even if this inquiry focused solely on Plaintiff – which it does not – the public

18 interest requirement would still be met. Plaintiff has published a book about his lawsuits entitled

19 The PSN Plaintiff and has garnered significant media attention based on his numerous lawsuits,

20 including being interviewed by the media. See RJN, Ex. 6 & 7. In his book, Plaintiff details his

21 running practice of suing video game companies and as a result, he states that there are “many

22 online articles written” about him, adding “[e]verybody loves attention no matter what kind it

23 is.” RJN, Ex. 7. The mere fact that Plaintiff has sought and found wide publicity easily satisfies

24 the public interest requirement, as courts consistently have found in other SLAPP cases. See,

25 e.g., Summit Bank, 206 Cal. App. 4th at 694 (plaintiff bank “actively promoted itself on the

26 Internet” and CEO was “subject of media attention”); Nygard, Inc. v. Uusi-Kerttula, 159 Cal.

27 App. 4th 1027 (2008) (plaintiff was “prominent businessman and celebrity” and “the subject of

28 much publicity in Finland”); Global Telemedia Int’l, Inc. v. Doe 1, 132 F. Supp. 2d 1261, 1265

13
SPECIAL MOTION TO STRIKE
Case No. 20CV367206
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1 (C.D. Cal. 2001) (plaintiff company “voluntarily trumpet[ed] its good news”, and was subject of

2 online comments).

3 B. PLAINTIFF CANNOT SHOW A PROBABILITY OF PREVAILING.

4 Because the Complaint falls within the scope of Section 425.16, the burden shifts to

5 Plaintiff to present admissible evidence establishing a probability that he will prevail. C.C.P.

6 § 425.16(b)(1). Plaintiff cannot rely on the allegations in the Complaint; he must present

7 “competent and admissible evidence” showing that he “probably” will prevail. Macias v.

8 Hartwell, 55 Cal. App. 4th 669, 675 (1997) (emphasis added); see also Alpha & Omega Devel. v.

9 Whillock Contracting, 200 Cal. App. 4th 656, 664 (2011).

10 On at least two grounds, Plaintiff cannot meet his burden of showing that his claims
DAVIS WRIGHT TREMAINE LLP

11 against Twitch probably will prevail: Section 230 bars Plaintiff’s claims, and even putting aside

12 that immunity, he fails to state a claim.

13 1. Section 230 Bars Plaintiff’s Claims against Twitch.

14 Section 230 of the CDA unambiguously bars Plaintiff’s claims. The “terms of section

15 230(c)(1) are broad and direct: ‘No provider or user of an interactive computer service shall be

16 treated as the publisher or speaker of any information provided by another information content

17 provider.’” Barrett v. Rosenthal, 40 Cal. 4th 33, 48 (2006) (quoting 47 U.S.C. § 230(c)(1)).

18 This includes claims brought under state law. See 47 U.S.C. § 230(e)(3) (Section 230 bars

19 liability “under any State or local law that is inconsistent with this section”). In other words,

20 Plaintiff may not state any claim against Twitch based on third-party content that appears on

21 Twitch’s platform – which is the very nature of Plaintiff’s claims in their entirety.

22 Congress enacted Section 230 “to encourage the unfettered and unregulated development

23 of free speech on the Internet.” Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003).

24 Congress’s intent was “to prevent lawsuits from shutting down websites and other services on

25 the Internet.” Id. at 1028. In furtherance of this goal, courts “consistently have held that § 230

26 provides a ‘robust’ immunity, and that all doubts must be resolved in favor of immunity.”

27 Goddard v. Google, Inc., No. C 08-2738 JF, 2008 WL 5245490, at *2 (N.D. Cal. Dec. 17, 2008)

28 (citations and internal quotation marks omitted). See also Carafano v. Metrosplash.com, Inc.,

14
SPECIAL MOTION TO STRIKE
Case No. 20CV367206
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1 339 F.3d 1119, 1123 (9th Cir. 2003) (noting “consensus” that Section 230 “provides broad

2 immunity for publishing content provided primarily by third parties”).

3 Importantly, to achieve its purposes, Section 230 grants “immunity from suit rather

4 than a mere defense to liability.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d

5 250, 254 (4th Cir. 2009) (emphasis added; citation omitted). Courts therefore routinely apply

6 Section 230 in the early stages of litigation because such immunity would be “effectively lost” if

7 defendants were subject to protracted litigation. Id. at 254, 260 (affirming district court’s

8 granting of motion to dismiss).

9 Section 230 bars liability arising from the content of an internet post where: “(1) the

10 defendant [is] a provider or user of an interactive computer service; (2) the cause of action
DAVIS WRIGHT TREMAINE LLP

11 treat[s] the defendant as a publisher or speaker of information; and (3) the information at issue

12 [is] provided by another information content provider.” Delfino v. Agilent Technologies, 145

13 Cal. App. 4th 790, 804-05 (2006) (citation omitted). Each of these requirements is satisfied here.

14 a. Twitch Is an Interactive Computer Service.

15 Twitch is a “provider … of an interactive computer service.” See 47 U.S.C. § 230(c)(1).

16 The CDA defines “interactive computer service” as an “information service . . . that provides or

17 enables computer access by multiple users to a computer server[.]” 47 U.S.C. § 230(f)(2).

18 Courts have interpreted Section 230 protection to be “quite robust, adopting a relatively

19 expansive definition of ‘interactive computer service[.]’” Carafano, 339 F.3d at 1123. “Today,

20 the most common interactive computer services are websites.” Kimzey v. Yelp! Inc., 836 F.3d

21 1263, 1268 (9th Cir. 2016) (citation omitted). In fact, numerous courts have found websites to

22 be interactive service providers for purposes of Section 230. See, e.g., Gentry v. eBay, Inc., 99

23 Cal. App. 4th 816, 833 (2002) (finding eBay treated as service provider); Barnes v. Yahoo!, Inc.,

24 570 F.3d 1096, 1101 (9th Cir., 2009) (finding “no trouble” concluding that Yahoo was an

25 interactive computer service); Jurin v. Google, Inc., 695 F. Supp. 2d 1117, 1123 (E.D. Cal. 2010)

26 (finding Google is an interactive computer service). Twitch, as the operator of a website that

27 provides a platform for video game players to stream and view broadcasts of gaming-related

28 content, among other content, (Mead ¶ 3), easily satisfies the first prong of the Section 230 test.

15
SPECIAL MOTION TO STRIKE
Case No. 20CV367206
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1 b. Plaintiff Seeks to Treat Twitch as the Publisher or Speaker.

2 Under the second inquiry, “‘what matters is whether the cause of action inherently

3 requires the court to treat the defendant as the ‘publisher or speaker’ of content provided by

4 another.’” Cross, 14 Cal. App. 5th at 207 (citation omitted). “Put slightly differently, ‘courts

5 must ask whether the duty that the plaintiff alleges the defendant violated derives from the

6 defendant’s status or conduct as a ‘publisher or speaker.’ If it does, section 230(c)(1) precludes

7 liability.’” Id.

8 Claims based on hosting third-party content plainly treat the service provider as

9 “publisher or speaker of that content.” See, e.g., Hassell v. Bird, 5 Cal. 5th 522, 540 (2018)

10 (content-based claims are “readily understood as treating [defendant] as the ‘publisher or


DAVIS WRIGHT TREMAINE LLP

11 speaker’ of the challenged” content); Carafano, 339 F.3d at 1124 (“[S]o long as a third party

12 willingly provides the essential published content, the interactive service provider receives full

13 immunity regardless of the specific editing or selection process.”). The same goes for “failure to

14 remove content posted by others.” Cross, 14 Cal. App. 5th at 207 (“[N]umerous courts have

15 held the CDA bars claims based on a failure to remove content posted by others.”) (collecting

16 cases, including Hupp v. Freedom Commc’ns, Inc., 221 Cal. App. 4th 398, 405 (2013) (CDA

17 barred breach of contract claim arising from defendant’s failure to remove comments on

18 website); Doe II v. MySpace Inc., 175 Cal. App. 4th 561, 573 (2009) (CDA barred tort claims

19 seeking to hold MySpace liable for “failing to exercise a publisher’s traditional editorial

20 functions, namely deciding whether to publish certain material or not”)).

21 Here, Plaintiff is attempting to treat Twitch as a publisher or speaker of content he finds

22 objectionable, because third parties posted the content on Twitch’s service and Twitch has not

23 removed that content. He alleges that Twitch “display[ed] many sexually suggestive women

24 streamers through Twitch’s twisted programming and net code making it nearly impossible for

25 the plaintiff to use Twitch without being exposed to such sexual suggestive content” (Compl.

26 p. 2). He further alleges that “[T]witch did not permanently ban these violators,” (Compl. p. 4)

27 and seeks the “immediate cancellation and PERMANENT BAN of the female streamers listed

28 above” (Compl. p. 30). He also alleges that Twitch “does not have a gender filter or preference

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SPECIAL MOTION TO STRIKE
Case No. 20CV367206
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1 for a viewer to choose to only watch men or women.” (Compl. p. 2), “Twitch does not limit how

2 many female viewers a customer can follow via their website” (Compl. p. 27), and that he has

3 been “banned from certain streamers’ chat rooms” (Compl. p. 28).3

4 Thus, these allegations target Twitch’s roles as publisher of the third-party content and its

5 editorial decisions regarding whether to remove content and suspend users. Indeed, Plaintiff’s

6 request is no different from Cross, which rejected the plaintiff’s attempt to hold Facebook

7 responsible for removing content, or Doe II, which rejected the plaintiffs’ attempt to hold

8 MySpace responsible for failing to implement age-verification software. Cross, 14 Cal. App. 5th

9 at 207 (CDA barred claim against Facebook based on failure to remove page that allegedly

10 incited violence and generated death threats against plaintiffs, rap artist and affiliated entities);
DAVIS WRIGHT TREMAINE LLP

11 Doe II, 175 Cal. App. 4th at 565, 573 (Section 230 barred claims that social network failed to

12 “implement reasonable, basic safety precautions with regard to protecting young children from

13 sexual predators,” specifically including “age-verification software,” because the complaint

14 sought to “regulate what appears” on the defendant’s website).

15 c. Plaintiff’s Allegations Arise from Third-Party Content.

16 Plaintiff’s allegations against Twitch are plainly based on “information provided by

17 another information content provider,” namely, the female streamers listed in the Complaint, not

18 Twitch. See Compl. p. 5-26. Moreover, there are no allegations in the Complaint that Twitch

19 itself provided, created, or developed any of the content Plaintiff finds objectionable. Sikhs for

20 Justice “SFJ”, Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1094 (N.D. Cal., 2015) (“‘[T]hird-

21 party content’ refer[s] to content created entirely by individuals or entities other than the

22 interactive computer service provider”). This is because Twitch did not do so. Meade Decl. ¶

23 10. Indeed, Twitch discourages the creation of sexual content by prohibiting it. See id., Ex. 2.

24

25 3
Based on the allegations, it appears that Plaintiff has been banned from certain channels by
streamers, not Twitch. See Compl. p. 28 (“[T]witch violated plaintiff’s rights to avoid seeing ads
26
because when he was erroneously banned from certain streamers’ channels, he had to create
27 another account in order to see what was being said in these streamers’ chat rooms…”). See also
Meade Decl. ¶ 11 (“Channel owners and moderators are free to ban anyone from their channel,
28 regardless of the reason.”)

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SPECIAL MOTION TO STRIKE
Case No. 20CV367206
4823-1109-2163v.6 0051461-003130
1 Plainly, Twitch did not create or develop any of the content underlying Plaintiff’s Complaint. A

2 lot of the content Plaintiff finds objectionable is not even found on Twitch. Rather, according to

3 Plaintiff, the female streamers link to their “Socials,” or social media accounts, including

4 “Twitter, Instagram, and Patreon,” (Compl. p. 9), and they provide “links to their

5 [I]nstagrams…for easy access to more lewd photos” (Compl. p. 26).

6 Because each of the three elements of Section 230(c)(1) are easily satisfied, Twitch is

7 immune from liability for Plaintiff’s claims.

8 2. Plaintiff Has Not and Cannot Adequately Allege Any Claim against Twitch

9 Even if Section 230 did not bar Plaintiff’s Complaint, it still should be stricken because

10 he has failed to state any claim for relief. Plaintiff’s allegations boil down to the claim that
DAVIS WRIGHT TREMAINE LLP

11 Twitch exposed him to content that offended him. This is not actionable under any cognizable

12 theory.

13 Although Plaintiff’s Complaint does not specifically identify the cause of action he is

14 attempting to allege, Plaintiff refers to Twitch’s obligations under its Terms of Service

15 (suggesting a contract claim) and alleges that Twitch acted “through negligence or fallible

16 company policies” (suggesting a negligence claim). Compl. p. 27. However, he fails to identify

17 any provision of the Terms of Service or other duty that Twitch has actually violated. Indeed, as

18 noted above, Twitch’s Terms of Service expressly disclaim liability for user content and state

19 that they do not create affirmative obligations to remove content, precluding Plaintiff from

20 predicating any breach or negligence claim on third-party content. See Caraccioli v. Facebook,

21 Inc., 167 F. Supp. 3d 1056, 1064 (N.D. Cal. 2016) (dismissing plaintiffs’ claims for breach of

22 contract and negligence because “while Facebook’s Terms of Service ‘place restrictions on

23 users’ behavior,’ they ‘do not create affirmative obligations’”)(citation omitted) aff’d, 700 F.

24 App’x 588 (9th Cir. 2017); Young v. Facebook, Inc., No. 5:10-CV-03579-JF/PVT, 2010 WL

25 4269304, at *3-5 (N.D. Cal. Oct. 25, 2010) (dismissing claims for breach of contract and

26 negligence where Facebook Terms did not create contractual obligations or legal duties

27 regarding safety of Facebook). In other words, the Terms of Service and Community Guidelines

28 outline types of content that users agree not to stream on Twitch; they do not require Twitch to

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SPECIAL MOTION TO STRIKE
Case No. 20CV367206
4823-1109-2163v.6 0051461-003130
1 remove content deemed inappropriate or offensive by others. In fact, Twitch’s Terms of Service

2 expressly provide that they “do not create any private right of action on the part of any third

3 party or any reasonable expectation that the Twitch Services will not contain any content that is

4 prohibited by such rules.” Meade Decl. ¶ 8, Ex. 1. Thus, for this reason, Plaintiff’s complaint

5 should be independently stricken.4

6 IV. CONCLUSION

7 Because Plaintiff’s claims arise from protected activity and he will not be able to

8 demonstrate a likelihood of success on his claims, Twitch respectfully requests that this Court

9 strike Plaintiff’s Complaint against Twitch with prejudice.5

10
DAVIS WRIGHT TREMAINE LLP

11

12 4
To the extent Plaintiff is attempting to allege a false advertising claim based on Free Games
13 with Prime, which is unclear, it also fails. (Compl. p. 28). Such a claim requires a plaintiff to
“show that he or she has ‘suffered injury in fact and has lost money or property as a result of the
14 unfair competition.’” Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 680 (2010) (citation
omitted). It also requires allegations of a false or misleading statement of fact and actual reliance
15 on that statement. See Spann v. J.C. Penney Corp., Case No. SA CV 12-0215 FMO (RNBx),
2014 WL 12634887, at *3-4 (C.D. Cal. Feb. 21, 2014) (dismissing false advertising claim
16
because “there are no alleged facts” of “false or misleading statements.”); Engalla v. Permanente
17 Med. Grp., 15 Cal. 4th 951, 976 (1997) (false advertising requires plaintiff to show actual
reliance, that is “absent such representation, he would not, in all reasonable probability, have
18 entered into the contract or other transaction”) (internal quotation marks omitted). Here, Plaintiff
has not alleged that he has made any purchase of a game, that Twitch has made any particular
19 false statement, or that absent such statement, he would not, in all reasonable probability, have
purchased Prime.
20

21 Even if Plaintiff had alleged a purported false statement made by Twitch, “‘[g]eneralized and
vague statements of product superiority’ are not actionable under the [false advertising law].”
22 Stearns v. Select Comfort Retail Corp., No. 08-2746 JF, 2009 WL 1635931, at *16 (N.D. Cal.
June 5, 2009) (citation omitted); see also Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964,
23 973 (N.D. Cal. 2008) (dismissing in part because “Plaintiff has provided no specific statement or
absolute characteristic regarding [Defendant’s laptops]”), aff’d, 322 F. App’x 489 (9th Cir.
24
2009). Thus, any generalized statement that Free Games with Prime is comparable to another
25 service would not be actionable.

26 5
Courts have made clear that when a defendant prevails on a SLAPP motion, the plaintiffs
should not be granted leave to amend. See, e.g., Simmons v. Allstate Ins. Co., 92 Cal. App. 4th
27 1068, 1073 (2001) (“the anti-SLAPP statute makes no provision for amending the complaint
28 once the court finds the requisite connection to First Amendment speech.”); Sylmar Air
Conditioning v. Pueblo Contracting Servs., 122 Cal. App. 4th 1049, 1055-56 (2004) (same).
19
SPECIAL MOTION TO STRIKE
Case No. 20CV367206
4823-1109-2163v.6 0051461-003130
1 DATED: August 18, 2020 Respectfully submitted,

2 DAVIS WRIGHT TREMAINE LLP


JAMES ROSENFELD
3 DIANA PALACIOS
4
By:
5 Diana Palacios
6 Attorneys for TWITCH INTERACTIVE,
INC., ERRONEOUSLY SUED AS TWITCH
7 (OF AMAZON INC.)
8

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SPECIAL MOTION TO STRIKE
Case No. 20CV367206
4823-1109-2163v.6 0051461-003130
PROOF OF SERVICE
1
Re: TWITCH INTERACTIVE, INC. v. ERIK ESTAVILLO
2
I am employed in the County of Los Angeles, State of California. I am over the age of 18
3 and not a party to the within action. My business address is Davis Wright Tremaine LLP, 865
South Figueroa Street, Suite 2400, Los Angeles, California 90017-256
4
On August 18, 2020, I served the foregoing document(s) described as: NOTICE OF
5 MOTION AND SPECIAL MOTION TO STRIKE PLAINTIFF’S COMPLAINT;
SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES on the interested
6 parties in this action as stated below:
7 Erik Estavillo
3284 Cortese Circle
8 San Jose, CA 95127
Tel: (408) 593-1226
9 Email: webbbnet@aol.com
10  (BY ELECTRONIC MAIL) I caused such documents to be transmitted via electronic
DAVIS WRIGHT TREMAINE LLP

mail to the offices of the addressee(s) at the listed electronic mail address(es).
11
 (BY MAIL) By placing a true copy of the foregoing document(s) in a sealed envelope
12 addressed as set forth above. I placed each such envelope for collection and mailing following
ordinary business practices. I am readily familiar with this Firm’s practice for collection and
13 processing of correspondence for mailing. Under that practice, the correspondence would be
deposited with the United States Postal Service on that same day, with postage thereon fully
14 prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage
15 meter date is more than one day after date of deposit for mailing in affidavit.
16 I declare under penalty of perjury the foregoing to be true and correct. Executed at Pico
Rivera, California, on August 18, 2020.
17

18 /'..ic-,.—,c_ ,,,a.,(2--.—,9,.-- -e_e,_


Nancy Gonzalez
19 Print Name Signature
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SPECIAL MOTION TO STRIKE
Case No. 20CV367206
4823-1109-2163v.6 0051461-003130

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