Electronically FILED by Superior Court of California, County of Los Angeles on 07/23/2020 05:38 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by J. Bradley,Deputy Clerk

1 HUESTON HENNIGAN LLP

Moez M. Kaba, State Bar No. 257456
2 mkaba@hueston.com
Joseph A. Reiter, State Bar No. 294976
3 jreiter@hueston.com
Eunice Leong, State Bar No. 320499
4 eleong@hueston.com
523 West 6th Street, Suite 400
5 Los Angeles, CA 90014
Telephone: (213) 788-4340
6 Facsimile: (888) 775-0898

7 Attorneys for Defendant

IMDb.com, Inc.
8

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF LOS ANGELES

11

12 BRUCE H. SINGMAN, Case No. 20SMCV00748

13 Plaintiff, DEFENDANT IMDB.COM, INC.’S NOTICE

OF MOTION AND SPECIAL MOTION TO
14 vs. STRIKE PURSUANT TO CAL. CIV. PROC.
CODE § 425.16
15 IMDB.COM, INC.,
Date: September 16, 2020
16 Defendant. Time: 8:30 a.m.
Department: P
17 Judge: Elaine W. Mandel

18 Reservation No: Court Provided Scheduled Date

via Phone Call
19
Complaint Filed: May 29, 2020
20 Trial Date: Not Set

21
TO ALL PARTIES TO THIS ACTION AND THEIR ATTORNEYS OF RECORD:
22
PLEASE TAKE NOTICE that on September 16, 2020, or as soon thereafter as the matter
23
may be heard in Department P of the above-referenced Court located at 1725 Main St., Santa
24
Monica, CA 90401, Defendant IMDb.com, Inc. (“IMDb”) will and hereby does move this Court
25
for an order to strike Plaintiff Bruce H. Singman’s Complaint pursuant to California Code of Civil
26
Procedure Section 425.16. This Motion is filed in conjunction with IMDb’s Notice of Demurrer
27
and Demurrer to the Complaint.
28

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 1 This Motion is based on this Notice of Motion, the Memorandum of Points and Authorities,

2 the Declaration of Eunice Leong (“Leong Decl.”), and Declaration of Giancarlo Cairella (“Cairella

3 Decl.”) filed herewith; the pleadings and papers filed in this action; IMDb’s Notice of Demurrer

4 and Demurrer to the Complaint; and such other matters as may be presented to the Court at the time

5 of the hearing.

8 Dated: July 23, 2020 Respectfully submitted,

9 HUESTON HENNIGAN LLP

10

11

12

13 By:
Moez M. Kaba
14
Attorneys for Defendant
15 IMDb.com, Inc.

16

17

18

19

20

21

22

23

24

25

26

27

28

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 1 TABLE OF CONTENTS

2 Page

3 I. INTRODUCTION ................................................................................................................ 6
4 II. LEGAL STANDARD .......................................................................................................... 9
5 III. ARGUMENT ...................................................................................................................... 10
6 A. This Action Arises from IMDb’s Protected Activity ............................................. 10
7 1. As a Public Forum, IMDb Engages in Speech in Connection
with Issues of Public Interest ...................................................................... 10
8
2. IMDb’s Pre-Litigation Communications are Protected
9 Activity ....................................................................................................... 13
10 B. Plaintiff Cannot Show a Reasonable Probability of Prevailing .............................. 13
11 1. No Valid Underlying Claim Supports Plaintiff’s Request for
Declaratory Relief ....................................................................................... 14
12
2. Plaintiff’s Complaint is Time-Barred ......................................................... 15
13
3. IMDb is Protected as a Publisher by the Communications
14 Decency Act................................................................................................ 16
15 IV. CONCLUSION................................................................................................................... 17
16

17

18

19

20

21

22

23

24

25

26

27

28

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 1 TABLE OF AUTHORITIES

2 Page(s)

3 Cases

4 Action Apartment Ass’n v. City of Santa Monica,

41 Cal. 4th 1232 (2007) ...................................................................................................... 13
5

6 Am. Humane Ass’n v. Los Angeles Times Commc’ns,

92 Cal. App. 4th 1095 (2001) ............................................................................................. 17
7
Ampex Corp. v. Cargle,
8 128 Cal. App. 4th 1569 (2005) ........................................................................................... 11
9 Barrett v. Rosenthal,
40 Cal. 4th 33 (2006) .................................................................................................... 12, 17
10

11 Barry v. State Bar of Cal.,

2 Cal. 5th 318 (2017) .......................................................................................................... 10
12
Blanchard v. DIRECTV, Inc.,
13 123 Cal. App. 4th 903 (2004) ............................................................................................... 9

14 Briggs v. Eden Council for Hope & Opportunity,

19 Cal. 4th 1106 (1999) ...................................................................................................... 13
15
Carafano v. Metrosplash.com, Inc.,
16
339 F.3d 1119 (9th Cir. 2003) ........................................................................................ 9, 16
17
City of Cotati v. Cashman,
18 29 Cal. 4th 69 (2002) ...................................................................................................... 9, 16

19 ComputerXpress, Inc. v. Jackson,

93 Cal. App. 4th 993 (2001) ......................................................................................... 11, 12
20
Damon v. Ocean Hills Journalism Club,
21 85 Cal. App. 4th 468 (2000) ............................................................................................... 12
22
Equilon Enters. v. Consumer Cause, Inc.,
23 29 Cal. 4th 53 (2002) .......................................................................................................... 10

24 Hassell v. Bird,
5 Cal. 5th 522 (2018) .......................................................................................................... 16
25
Hatch v. Superior Court,
26 80 Cal. App. 4th 170 (2000) ............................................................................................... 12
27
IMDb.com, Inc. v. Becerra,
28 257 F. Supp. 3d 1099 (N.D. Cal. 2017) ................................................................................ 6

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 1 TABLE OF AUTHORITIES (cont.)

2 Page(s)

3 Jarrow Formulas, Inc. v. LaMarche,

31 Cal. 4th 728 (2003) ........................................................................................................ 13
4
Kimzey v. Yelp! Inc.,
5
836 F.3d 1263 (9th Cir. 2016) ............................................................................................ 16
6
Kronemyer v. Internet Movie Database Inc.,
7 150 Cal. App. 4th 941 (2007) ...................................................................................... passim

8 Maguire v. Hibernia Sav. & Loan Soc.,

23 Cal. 2d 719 (1944) ......................................................................................................... 15
9
Malin v. Singer,
10
217 Cal. App. 4th 1283 (2013) ........................................................................................... 13
11
McGarry v. Univ. of San Diego,
12 154 Cal. App. 4th 97 (2007) ......................................................................................... 7, 8, 9

13 Navellier v. Sletten,
29 Cal. 4th 82 (2002) ...................................................................................................... 9, 10
14
Nygard, Inc. v. Uusi-Kerttula,
15 159 Cal. App. 4th 1027 (2008) ........................................................................................... 11
16
Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP,
17 18 Cal. App. 5th 95 (2017) ................................................................................................. 10

18 Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP,

133 Cal. App. 4th 658 (2005) ............................................................................................. 14
19
S. Sutter, LLC v. LJ Sutter Partners, L.P.,
20 193 Cal. App. 4th 634 (2011) ............................................................................................... 7
21 Serova v. Sony Music Entm’t,

22 44 Cal. App. 5th 103 (2020) ............................................................................................... 12

23 Wilson v. Parker, Covert & Chidester,

28 Cal. 4th 811 (2002) ....................................................................................................... 14
24
Statutes
25
47 U.S.C. § 230(c)(1) ....................................................................................................................... 9
26
Cal. Civ. Code § 47(b) ...................................................................................................................... 9
27

28 Cal. Civ. Proc. Code § 425.16 ................................................................................................ passim

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 1 I. INTRODUCTION

2 Defendant IMDb.com (“IMDb”) brings this special motion to strike pursuant to California’s

3 anti-SLAPP statute because Plaintiff’s complaint seeks to punish IMDb for its protected, and

4 important, speech. 1

5 IMDb is the “world’s most popular and authoritative source for movie, TV and celebrity

6 content, designed to help fans explore the world of movies and shows and decide what to watch.”

7 IMDb Help Center: What is IMDb?, IMDb, https://imdb.to/33JrtfQ; see also IMDb.com, Inc. v.

8 Becerra, 257 F. Supp. 3d 1099, 1101 (N.D. Cal. 2017) (“Visitors to this site can read entertainment

9 news [and] reviews about movies[.]”). One of the primary services that IMDb provides is a free,

10 publicly accessible, and searchable online database of information on millions of movies and other

11 entertainment programs, including cast, production crew and personal biographies, plot summaries,

12 trivia, fan and critical reviews, ratings, release dates, and more. Most of this data is provided by

13 IMDb’s millions of registered users.

14 Through this lawsuit, Plaintiff Bruce H. Singman (“Plaintiff”) seeks to force IMDb to

15 change and remove information regarding a particular film (Warrior) on one of IMDb’s public

16 webpages. Specifically, Plaintiff contends that IMDb must change the “release date” for Warrior

17 from “2002” to “2020” and remove other title and distributor information. (See Compl. ¶ 15;

18 Prayer.) Plaintiff’s Complaint asserts a single cause of action for declaratory relief and demands

19 $500,000,000; however, he does not and cannot identify any underlying cause of action or legal

20 theory that would entitle him to any relief.

21 Plaintiff’s improper attempt to both censor and force speech on IMDb’s website is precisely

22 the sort of case involving an “act in furtherance of a person’s right of . . . free speech” against

23 which California’s anti-SLAPP statute was designed to protect. See Cal. Civ. Proc. Code §

24 425.16(b)(1). A California Court of Appeals has already held under similar circumstances that

25 IMDb is a “public forum” and the information about films posted on its webpages is protected

26

27
In addition to falling within the scope of California’s anti-SLAPP statute, Cal. Civ. Proc. Code §
1

28 425.16, this action fails as a matter of law for multiple reasons, as explained in Defendant’s
Demurrer to the Complaint filed concurrently herewith.
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 1 under California’s anti-SLAPP statute. See Kronemyer v. Internet Movie Database Inc., 150 Cal.

2 App. 4th 941, 946 (2007) (affirming order granting anti-SLAPP motion to complaint for

3 declaratory relief that sought to force IMDb to add the plaintiff’s name as an Executive Producer

4 on an IMDb webpage).

5 Because Plaintiff’s sole cause of action for declaratory relief arises from activity protected

6 by the anti-SLAPP statute, he has the burden of proving at this stage that he can prevail on his

7 claim. See Cal. Civ. Proc. Code § 425.16(b)(1); see also S. Sutter, LLC v. LJ Sutter Partners, L.P.,

8 193 Cal. App. 4th 634, 665 (2011) (“[A]n anti-SLAPP motion may lie against a complaint for

9 declaratory relief.”). That is, Plaintiff must show both that his “claim is legally sufficient and there

10 is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment.”

11 McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97, 108 (2007).

12 Plaintiff cannot satisfy his burden. As an initial matter, although Plaintiff now claims,

13 under penalty of perjury, 2 that Warrior’s release date should be listed as “2020” instead of “2002,”

14 Plaintiff’s own prior actions and writings contradict the verified Complaint’s allegations:

15 • Plaintiff previously informed IMDb in writing on June 27, 2002 that Warrior was
16 selected for and subsequently shown at the New York International Independent

17 Film and Video Festival (“NYIIFVF”). (Cairella Decl., Ex. A.)

18 • Plaintiff confirmed this on October 22, 2014, when he again contacted IMDb about
19 the 2002 invitation from NYIIFVF. (Id., Ex. E.) As Plaintiff is aware, IMDb policy

20 makes clear that the release dates for films listed on its webpages are “derived from

21 the date of earliest release. This includes any festival release dates.” See IMDb

22 Help Center: Release dates, IMDb, https://imdb.to/2WXYVOn (second emphasis

23 added).

24

25

26

27 As Plaintiff himself alleges, he “is a graduate of the University of California School of Law in
2
Berkeley, California and has a J.D. Degree and is an attorney licensed to practice law in the State of
28 California and practices law in the County of Los Angeles, State of California.” (Compl. ¶ 6.)
Plaintiff is thus well aware of his duty of candor toward the Court. Cal. R. Prof’l Conduct 3.3(a).
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 1 • Plaintiff’s own reviews of Warrior on IMDb.com contradict his Complaint in that
2 they all show that the film has long been publicly available. (Cairella Decl., Ex. B–

3 C.)

4 • Plaintiff’s allegation that Warrior “has not yet” been released to the public is also
5 contradicted by Plaintiff’s own actions and information available to him. (Compl. at

6 2.) Plaintiff established and runs a website (www.themoviewarrior.com) that has

7 listed—and continues to list—the DVD version of Warrior as available for purchase

8 by the public. (Leong Decl., Ex. A–E.) IMDb’s counsel also purchased a DVD

9 copy of Warrior from Amazon.com on March 12, 2019. (Leong Decl., Ex. J.) In

10 addition, Warrior has been listed—and continues to be listed—for sale on the video

11 hosting website Vimeo. (Id., Ex. K.) On April 23, 2020, IMDb’s counsel purchased

12 a copy of Warrior from Vimeo. (Id., Ex. L.)

13 • Plaintiff also admits that his co-producer, York Entertainment, made the film
14 commercially available for purchase in 2002. (Compl. ¶ 7.)

15 All of these facts show that—contrary to Plaintiff’s current allegations—Warrior was

16 publicly released long before 2020, and the information on IMDb’s webpage is accurate. 3

17 Even the new release date Plaintiff demands IMDb insert (2020) has constantly shifted.

18 Plaintiff previously sent IMDb correspondence asking it to change Warrior’s release date to 2017

19 instead of 2020. (Cairella Decl., Ex. F.) In an earlier lawsuit Plaintiff filed in federal court making

20 the same allegations, Plaintiff demanded that the court compel IMDb to change the release date to

21 “2019 or 2020.” Compl. ¶ 20, Singman v. Amazon.com, Inc., No. 2:19-cv-10882-AB-E (C.D. Cal.

22 filed Dec. 26, 2019), ECF No. 1 (the “Dismissed Federal Action”). 4 Plaintiff now claims that 2020

23

24 As recently as March 2019, IMDb reminded Plaintiff of the various actions he has taken
3
throughout the years that prove Warrior was released in 2002 and informed him of case law that
25 effectively forecloses any liability on IMDb’s part for publication of the release year. (Leong
Decl., Ex. F.) In addition, IMDb also asserted the arguments made in this Special Motion to Strike
26 and IMDb’s concurrently filed Demurrer in the case filed by Plaintiff in the Central District of
California. Plaintiff is thus well aware of the factual inaccuracies and legal flaws in his Complaint.
27 His decision to nevertheless file this action twice is therefore particularly troubling.

28
4 That matter was dismissed with prejudice to refiling in federal court for lack of subject-matter
(Continued...)
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 1 should be listed as the release date on the IMDb webpage for Warrior but also incredibly claims

2 that the film has not been released to the public (in 2020 or otherwise). (Compl. ¶ 15.)

3 But this Court need not address the factual inaccuracies in Plaintiff’s Complaint, because

4 his sole claim for declaratory relief fails as a matter of law for numerous reasons.

5 First, Plaintiff’s sole cause of action is for “declaratory relief,” but he has not identified any

6 underlying cause of action or legal theory that would entitle him to any relief. It is black letter law

7 that “[a] request for declaratory relief will not create a cause of action that otherwise does not

8 exist.” City of Cotati v. Cashman, 29 Cal. 4th 69, 80 (2002).

9 Second, even if Plaintiff had pled an underlying claim, his request for declaratory relief is

10 time-barred by the applicable statute of limitations. Plaintiff has known for at least seventeen years

11 that the IMDb webpage for Warrior listed the information he now wants removed, including the

12 2002 release date. His delay in filing this lawsuit is inexcusable.

13 Third, IMDb is shielded from liability under Section 230(c)(1) of the Communications

14 Decency Act. 47 U.S.C. § 230(c)(1). Per Plaintiff’s allegations, a third party (a “film distributor”)

15 is the one who posted Warrior on Amazon.com. (Compl. ¶ 7.) IMDb therefore has “full

16 immunity” for that content “regardless of the specific editing or selection process.” Carafano v.

17 Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003) (affirming dismissal and holding

18 interactive service provider immune).

19 Fourth, Plaintiff’s allegations concerning IMDb’s response to his demand letters, should be

20 struck because such communications are protected by the litigation privilege. Cal. Civ. Code §

21 47(b). Blanchard v. DIRECTV, Inc., 123 Cal. App. 4th 903, 919 (2004) (explaining that the

22 litigation privilege “has been broadly applied to demand letters and other prelitigation

23 communications by attorneys”).

24 II. LEGAL STANDARD

25 Courts use a two-step analysis to decide anti-SLAPP motions. Navellier v. Sletten, 29 Cal.

26 4th 82, 88 (2002).

27

28 jurisdiction. See Order Granting Defs.’ Mot. to Dismiss, id., ECF No. 30; Clarification of Order
Granting Defs.’ Mot. to Dismiss, id. (June 1, 2020), ECF No. 33.
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 1 First, the court assess whether the movant has made a prima facie showing that the suit

2 arises out of an act in furtherance of the right to petition or free speech. Protected activities

3 include:

4 (3) any written or oral statement or writing made in a place open to

the public or a public forum in connection with an issue of public
5 interest, or (4) any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free
6 speech in connection with a public issue or an issue of public interest.
Cal. Civ. Proc. Code § 425.16(e).
7
In determining whether a particular claim arises from protected activity, the “focus is not
8
the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or
9
her asserted liability.” Navellier, 29 Cal. 4th at 92.
10
Second, if the court determines that the movant has met its burden, the burden shifts to
11
plaintiff to “demonstrate[] a probability of prevailing on the claim.” Id. at 88. An anti-SLAPP
12
motion should be granted when a plaintiff cannot demonstrate that the complaint is legally
13
sufficient or that there is sufficient evidence to support a judgment for the plaintiff. Id. at 93
14
(requiring a showing of both legal and factual sufficiency for complaint to not be subject to being
15
stricken as a SLAPP). Similarly, a plaintiff cannot prevail “unless the court has the power to grant
16
the remedy she seeks.” Barry v. State Bar of Cal., 2 Cal. 5th 318, 324 (2017). If the plaintiff
17
cannot show a probability of prevailing, the anti-SLAPP motion is granted. See, e.g., Equilon
18
Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002) (holding that “the court properly
19
granted the motion” where it found that plaintiff “had not established a probability of prevailing on
20
its claim”); Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP, 18 Cal. App. 5th 95,
21
119 (2017) (affirming grant of anti-SLAPP motion where plaintiff’s claims were defeated as a
22
matter of law).
23
III. ARGUMENT
24
A. This Action Arises from IMDb’s Protected Activity
25
1. As a Public Forum, IMDb Engages in Speech in Connection with Issues of
26
Public Interest
27
The anti-SLAPP statute protects statements “made in a place open to the public or a public
28
forum,” as well as “any other conduct in furtherance of the exercise of the constitutional right of
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 1 petition or . . . free speech” if such statements and conduct are “in connection with a public issue or

2 an issue of public interest.” Cal. Civ. Proc. Code § 425.16(e)(3)–(4).

3 California courts have consistently held that “public forums” include “Web sites that are

4 accessible free of charge to any member of the public where members of the public may read the

5 views and information posted, and post their own opinions[.]” Ampex Corp. v. Cargle, 128 Cal.

6 App. 4th 1569, 1576 (2005); see also ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1007

7 (2001) (holding that website “where members of the public may read the views and information

8 posted, and post on the site their own opinions” was a public forum). Further, courts have held that

9 “public interest” should be construed broadly and covers “any issue in which the public is

10 interested.” Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008)

11 The anti-SLAPP statute applies in this case because Plaintiff seeks to both censor (remove

12 certain content from) and compel (add Plaintiff’s preferred content to) speech by IMDb in a public

13 forum on a matter of public interest. This action is nearly identical to Kronemyer v. Internet Movie

14 Database, Inc., 150 Cal. App. 4th 941 (2007), an earlier declaratory judgment case brought against

15 IMDb in which the court struck the complaint under the anti-SLAPP statute. In that case, the

16 plaintiff argued that he should be listed as an executive producer of two films and one television

17 show on IMDb.com and brought an action for declaratory relief, asking “the court to ‘require

18 Defendants to identify Plaintiff as an Executive Producer’” of specified productions. Kronemyer,

19 150 Cal. App. 4th at 944. On IMDb’s motion to strike under the anti-SLAPP statute, the court held

20 that IMDb.com “constitutes a public forum,” and the action fell within Section 425.16(e)(3)-(4).

21 Id. at 950.

22 Similarly, the present suit arises from “the content of [IMDb’s] Web site,” and the listing of

23 information about a film on IMDb.com “is an act in furtherance of the right of free speech

24 protected under the anti-SLAPP statute.” Id. at 947. The relief requested by Plaintiff bears this

25 out: he seeks for the Court to compel IMDb to “change [] the date of the release of ‘Warrior’ to the

26 public from 2002 to 2020”; make “the correlative change of the heading in the listing of

27 ‘Warrior’”; and delete specified information from the Warrior profile. (Compl. Prayer.) Plaintiff’s

28

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 1 request here is no different than that of the plaintiff in Kronemyer, and the anti-SLAPP statute

2 applies for the same reasons.

3 Even absent the Kronemyer decision, however, IMDb meets its burden to make a prima

4 facie showing that this action falls within the scope of the anti-SLAPP statute. As a website

5 available free of charge to the public, IMDb.com is a public forum. See, e.g., Barrett v. Rosenthal,

6 40 Cal. 4th 33, 41 n.4 (2006) (“Web sites accessible to the public . . . are ‘public forums’ for

7 purposes of the anti-SLAPP statute.”); ComputerXpress, 93 Cal. App. 4th at 1007 (noting that

8 “Internet communications have been described as ‘classical forum communications’”) (citing

9 Hatch v. Superior Court, 80 Cal. App. 4th 170, 201 (2000)). Furthermore, the public interest prong

10 is satisfied here because “[f]acts concerning the creation of works of art and entertainment can

11 themselves be issues of public interest.” Serova v. Sony Music Entm’t, 44 Cal. App. 5th 103, 119

12 (2020).

13 Indeed, a title is eligible for inclusion on IMDb.com if it is of “general public interest,”

14 which is presumed if the title has been released in cinemas; shown on television; released on video,

15 DVD, or the web; listed in the catalog of an established video retailer; accepted and shown at film

16 festivals; made by a now-famous artist or person of public interest; or made famous and is widely

17 talked about or reference in the media or film community or is now of general historic interest. See

18 IMDb Help Center: Title eligibility, IMDb, https://imdb.to/2WZMhyu. Warrior is a title of

19 “general public interest” because Plaintiff himself claimed that it was screened at the New York

20 International Independent Film and Video Festival in 2002. (Cairella Decl. at ¶¶ 7, 11.) This

21 festival was previously “the largest film festival in the world” and was “recognized by the film and

22 entertainment industry as one of the leading film events on the festival calendar.” See New York

23 International Independent Film and Video Festival, Laemmle Theaters,

24 https://www.laemmle.com/film/new-york-international-independent-film-and-video-festival. In

25 addition, IMDb.com has more than 200 million unique visitors each month, and it lists credits and

26 other information for more than 6.5 million film and television titles. (Cairella Decl. at ¶¶ 4–5; see

27 Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 478 (2000) (holding that a

28 “newsletter” was a “public forum” because it was “widely distributed”).

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 1 2. IMDb’s Pre-Litigation Communications are Protected Activity

2 The anti-SLAPP statute also protects “any written or oral statement or writing made before

3 a . . . judicial proceeding” or “in connection with an issue under consideration or review by a . . .

4 judicial body.” Cal. Civ. Proc. Code § 425.16(e)(1)–(2). This has been broadly construed to

5 protect pre-litigation communications, including demand letters. See Briggs v. Eden Council for

6 Hope & Opportunity, 19 Cal. 4th 1106, 1115 (1999); see also Malin v. Singer, 217 Cal. App. 4th

7 1283, 1294 (2013) (holding that demand letter is “protected speech or petitioning activity under the

8 anti-SLAPP statute”); Action Apartment Ass’n v. City of Santa Monica, 41 Cal. 4th 1232, 1241,

9 1251 (2007).

10 Here, Plaintiff’s Complaint extensively discusses and characterizes his pre-litigation

11 communications with IMDb and its counsel, including Plaintiff’s demand letter and IMDb’s

12 responses thereto. (See Compl. ¶¶ 12–13, 15.) Plaintiff acknowledges that he threatened to file

13 litigation if IMDb did not comply with his demand. (Id. at ¶ 13; see also Cairella Decl., Ex. F at 1

14 (demanding that IMDb change the release date for Warrior “immediately upon receipt of this email

15 correspondence so that I don’t have to pursue legal recourse”) (emphasis added).) Plaintiff further

16 complains that in-house counsel for IMDb’s parent company “failed to refute the legal and logical

17 reasoning of Plaintiff’s position that his movie ‘Warrior’ has never been released to the public” and

18 that “the year 2002 alongside of the title ‘Warrior’ in the heading of the listing on . . . IMDb.com []

19 should be deleted and replaced by the year 2019.” (Compl. at ¶ 13.) These allegations concern

20 protected statements made by IMDb in response to Plaintiff’s demand letters and related

21 communications. (Leong Decl., Ex. F at 1.) As such, Plaintiff’s allegations relying on these

22 statements must be struck.

23 B. Plaintiff Cannot Show a Reasonable Probability of Prevailing

24 Because IMDb has made a prima facie showing that this action arises out of its protected

25 speech or conduct, the burden shifts to Plaintiff to show a reasonable probability of prevailing on

26 his claim. To establish a probability of success on a claim, a plaintiff “must demonstrate that the

27 complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to

28 sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Jarrow

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Case No. 20SMCV00748
DEFENDANT’S SPECIAL MOTION TO STRIKE PURSUANT TO CAL. CIV. PROC. CODE § 425.16
5778815
 1 Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 746 (2003) (quoting Wilson v. Parker, Covert &

2 Chidester, 28 Cal. 4th 811 821 (2002)). A plaintiff cannot prevail if he “cannot establish an

3 element of its cause of action or [if] there is a complete defense to the cause of action[.]”

4 Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal. App. 4th 658, 676

5 (2005). Here, Plaintiff cannot meet his burden for multiple, independent reasons.

6 1. No Valid Underlying Claim Supports Plaintiff’s Request for Declaratory

7 Relief

8 The Complaint asserts a single request for declaratory relief. But as explained in IMDb’s

9 Demurrer, California law does not recognize a standalone claim for declaratory relief that is not

10 based on a valid underlying cause of action or substantive right. City of Cotati v. Cashman, 29 Cal.

11 4th 69, 80 (2002) (“A request for declaratory relief will not create a cause of action that otherwise

12 does not exist.”). (See also Demurrer at 4–6.) Plaintiff does not even attempt to identify an

13 underlying cause of action or legal theory that IMDb allegedly violated.

14 Nor could he. IMDb does not owe Plaintiff any duty to change a film’s release date on

15 IMDb’s website at Plaintiff’s whim. See Kronemyer, 150 Cal. App. 4th at 951 (finding no basis to

16 conclude that IMDb had a duty to list plaintiff as a producer). IMDb expressly states on its website

17 that it “will not remove accurate information,” IMDb Help Center: I tried to delete data, but it still

18 appears on IMDb, IMDb, https://imdb.to/3dJwjOP, and it has the right to reject any edits which it

19 cannot verify, or which were “deemed to be incorrect by [IMDb’s] staff,” IMDb Help Center:

20 When will my update be added?, IMDb, https://imdb.to/2wRV9LQ.

21 Here, all the relevant facts contradict Plaintiff’s inconsistent allegations that the film either

22 has not been released (Compl. at 1, ¶¶ 12–13, 15) or should be indicated as having been released in

23 2020 (id. at ¶ 15). Indeed, although it is not necessary to grant this anti-SLAPP motion, the facts

24 show that Warrior was released in 2002, as IMDb.com states. Plaintiff himself submitted

25 information to IMDb to support the fact that Warrior was released in 2002, when he informed

26 IMDb that Warrior was an official selection of the New York International Independent Film and

27 Video Festival in 2002. (Cairella Decl., Ex. A.) Per IMDb’s policy and practice, “the year in the

28

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Case No. 20SMCV00748
DEFENDANT’S SPECIAL MOTION TO STRIKE PURSUANT TO CAL. CIV. PROC. CODE § 425.16
5778815
 1 title is derived from the date of earliest release,” including “any festival release dates.” IMDb Help

2 Center: Release dates, IMDb, https://imdb.to/2WXYVOn.

3 Plaintiff also submitted reviews of Warrior on IMDb.com that indicated the film had been

4 released in 2002, and there are several independent reviews of the film which were written in 2002.

5 (Cairella Decl., Ex. B–C; Leong Decl., Ex. G–I.) One of these independent reviews was published

6 on October 16, 2002, with the writer suggesting to his readers to “check it out.” (Leong Decl., Ex.

7 H.) Although a different review (the TV Guide review) is undated, it includes a trailer for Mexican

8 Blow (the alternative name for Warrior), noting a release date of 2002. (Id., Ex. I.) What is more,

9 Plaintiff concedes that Warrior was previously released for sale by a “film distributor” named

10 “York Entertainment.” (Compl. ¶ 7.) Although Plaintiff now claims that York Entertainment

11 somehow “stole” Warrior from Plaintiff, that does not change the fact that Warrior has been

12 publicly available for purchase for many years.

13 Additional facts also defeat Plaintiff’s assertion that Warrior has never been released to the

14 public. (Id. at 1.) Plaintiff previously sent IMDb correspondence asking it to change Warrior’s

15 release date to 2017 instead of 2020. (Cairella Decl., Ex. F.) When that failed, Plaintiff next

16 demanded in the Dismissed Federal Action that the court compel IMDb to change the release date

17 to 2019 or 2020. Compl. ¶ 20, Singman, No. 2:19-cv-10882-AB-E (Dec. 26, 2019), ECF No. 1.

18 Furthermore, Plaintiff maintained a website offering the Warrior DVD for sale to any member of

19 the public. And IMDb’s counsel was able to purchase Warrior in 2019 and in 2020 from two

20 different sources, demonstrating that the film is already and has long been available to the public.

21 (Leong Decl., Ex. J, L.)

22 2. Plaintiff’s Complaint is Time-Barred

23 Where the limitations period has run on an underlying cause of action, a request for

24 declaratory relief must be dismissed as well. Maguire v. Hibernia Sav. & Loan Soc., 23 Cal. 2d

25 719, 734 (1944) (explaining that if “the cause of action . . . is barred by the statute [of limitations],

26 the right to declaratory relief is likewise barred”).

27 As explained above, Plaintiff’s request for declaratory relief fails at the outset because he

28 has not pled any valid underlying cause of action. But even if he had tried to do so, the applicable

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Case No. 20SMCV00748
DEFENDANT’S SPECIAL MOTION TO STRIKE PURSUANT TO CAL. CIV. PROC. CODE § 425.16
5778815
 1 statute of limitations would necessarily bar this entire action. In fact, it is undisputed that Plaintiff

2 knew at least seventeen years ago that IMDb had listed all of the information he now complains of:

3 the 2002 release date for Warrior; the alternate titles of Mexican Blow and Voodoochilde, and the

4 distributor information listing York Entertainment. Back in January 2003, Plaintiff himself posted

5 reviews on the IMDb website shortly after Warrior was first uploaded with that information.

6 (Cairella Decl., Ex. B.)

7 Because Plaintiff has identified neither a legally cognizable theory nor a statute from which

8 his request for declaratory relief arises, the Court should look to the California Code of Civil

9 Procedure for the applicable statute of limitations. Under California law—with limited exceptions

10 not applicable here—there is no statute of limitations long enough to cover Plaintiff’s purported

11 claim. See Cal. Civ. Proc. Code Pt. 2, T. 2, ch. 3. Indeed, Section 343 of the Code of Civil

12 Procedure provides that an action for which no specific limitations period has been prescribed

13 “must be commenced within four years after the cause of action shall have accrued.” Id. at § 343.

14 Assuming, arguendo, that Section 343 applies here, at least seventeen years had lapsed since the

15 purported claim accrued before Plaintiff filed the instant Complaint—well beyond the period

16 prescribed in Section 343.

17 For these reasons, under any possible scenario or amendment to the Complaint, Plaintiff’s

18 claim would be barred by the applicable statute of limitations.

19 3. IMDb is Protected as a Publisher by the Communications Decency Act

20 Furthermore, as explained more fully in IMDb’s Demurrer, IMDb is an interactive service

21 provider which compiles its content from information provided by third parties. See IMDb Help

22 Center: When will my update be added?, IMDb, https://imdb.to/2wRV9LQ. As an interactive

23 service provider, IMDb is immune from liability under the Communications Decency Act. See

24 Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270 (9th Cir. 2016) (holding that rating system based on

25 inputs from third parties constituted user-generated data); Carafano, 339 F.3d at 1124 (holding that

26 interactive service provider is fully immune where third parties willingly provide content for

27 publication); Hassell v. Bird, 5 Cal. 5th 522, 541 (2018) (“[P]laintiffs seek to overrule [the]

28 decision to publish the three challenged reviews. Where, as here, an Internet intermediary’s

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Case No. 20SMCV00748
DEFENDANT’S SPECIAL MOTION TO STRIKE PURSUANT TO CAL. CIV. PROC. CODE § 425.16
5778815
 1 relevant conduct . . . goes no further than the mere act of publication—including a refusal to

2 depublish . . . —section 230 prohibits this kind of directive.”); Barrett, 40 Cal. 4th at 53 (holding

3 that Section 230 “broadly shield[s] all providers from liability for ‘publishing’ information

4 received from third parties”) . (See also Demurrer at 6–8.)

5 IV. CONCLUSION

6 Plaintiff has now twice filed a factually incorrect and legally meritless complaint that

7 improperly seeks to interfere with IMDb’s rights as a public forum for free speech. IMDb

8 respectfully requests that the Court strike the entire Complaint pursuant to Section 425.16 of the

9 California Code of Civil Procedure and award attorneys’ fees and costs under Sections 425.16(c)

10 and 3344. IMDb will provide support for its fees and costs in a subsequent motion. 5

11

12

13 Dated: July 23, 2020 Respectfully submitted,

14 HUESTON HENNIGAN LLP

15

16

17

18 By:
Moez M. Kaba
19
Attorneys for Defendant
20 IMDb.com, Inc.

21

22

23

24

25

26

27 An award of attorneys’ fees and costs to a prevailing defendant on an anti-SLAPP motion is

5
mandatory. Cal. Code Civ. Proc. § 425.16(c). The party may seek fees with the motion, by
28 subsequent motion, or by a cost memorandum at the conclusion of the litigation. Am. Humane
Ass’n v. Los Angeles Times Commc’ns, 92 Cal. App. 4th 1095, 1103 (2001).
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Case No. 20SMCV00748
DEFENDANT’S SPECIAL MOTION TO STRIKE PURSUANT TO CAL. CIV. PROC. CODE § 425.16
5778815
 1 PROOF OF SERVICE
2 I am employed in the County of Los Angeles, State of California. I am over
the age of 18 and not a party to the within action. My business address is 523 West
3 6th Street, Suite 400, Los Angeles, CA 90014.
4 On July 23, 2020, I served the foregoing document(s) described as:
5 DEFENDANT IMDB.COM, INC.’S NOTICE OF MOTION AND
SPECIAL MOTION TO STRIKE PURSUANT TO CAL. CIV.
6 PROC. CODE § 425.16
7
8
on the interested parties in this action as stated below:
9
Bruce H. Singman
10 P.O. Box 1350
Pacific Palisades, CA 90272
11
12 X (BY MAIL) By placing a true copy of the foregoing document(s) in a sealed
envelope addressed as set forth above. I placed each such envelope for
13 collection and mailing following ordinary business practices. I am readily
familiar with this Firm’s practice for collection and processing of
14 correspondence for mailing. Under that practice, the correspondence would be
deposited with the United States Postal Service on that same day, with postage
15 thereon fully prepaid at Los Angeles, California, in the ordinary course of
business. I am aware that on motion of the party served, service is presumed
16 invalid if postal cancellation date or postage meter date is more than one day
after date of deposit for mailing in affidavit.
17
I declare under penalty of perjury under the laws of the United States of
18 America that the foregoing is true and correct, and that I am employed in the office
of a member of the bar of this Court at whose direction the service was made.
19
Executed on July 23, 2020, at Los Angeles, California.
20
21 Debi Del Grande
(Type or print name) (Signature)
22
23
24
25
26
27
28
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CERTFICATE OF SERVICE BY U.S. MAIL
2:19-cv-10882-AB-E