Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 1 of 24
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`----oo0oo----
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`PAULA SHEPARD,
`
`Plaintiff,
`
`v.
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`JANE MILER, an individual,
`CAREER PRESS, INC., NEW PAGE
`BOOKS, and DOES 1-100.
`Defendants.
`___________________________/
`
`NO. CIV. 2:10-1863 WBS JFM
`
`MEMORANDUM AND ORDER RE:
`MOTION FOR JUDGMENT ON THE
`PLEADINGS AND SPECIAL MOTION
`TO STRIKE
`
`----oo0oo----
`Plaintiff Paula Shepard brought this action against
`defendants Jane Miller,1 Career Press, Inc., and New Page Books,2
`alleging copyright infringement and related state law claims.
`Presently before the court are defendants’ motion for judgment on
`the pleadings pursuant to Federal Rule of Civil Procedure 12(c)
`
`Jane Miller is sued erroneously as “Jane Miler.” (Ans.
`1
`at 1:22 (Docket No. 6).)
`New Page Books is an “imprint” of Career Press, Inc.
`2
`(Ans. ¶ 4.)
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 2 of 24
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`and special motion to strike plaintiff’s state law claims
`pursuant to California’s anti-Strategic Lawsuits Against Public
`Participation (“anti-SLAPP”) statute, California Civil Procedure
`Code § 425.16.
`I.
`Factual and Procedural Background
`Defendant Miller is a licensed psychotherapist.
`(Compl. ¶ 13.) In 2009, she began writing a book about the use
`of dogs to treat psychiatric disabilities. (Id.) Miller
`contacted plaintiff, who has experience using and training
`psychiatric service dogs (“PSDs”), hoping to feature plaintiff in
`the book. (Id. ¶¶ 12-13.) Plaintiff agreed, and provided
`information about her personal experiences using a PSD. (Id. ¶
`14.) Because of plaintiff’s practical experience in training
`PSDs, Miller allegedly asked plaintiff for her help in drafting
`those portions of the book relating to PSD training and
`interaction. (Id. ¶ 15.) Plaintiff alleges that she “explicitly
`told Miller that she . . . expected to be compensated for these
`additional efforts,” and Miller assured plaintiff that she would
`be compensated by: “(a) receiving attribution in the book for her
`work, (b) receiving some financial compensation from sales of the
`book, and (c) being included in speaking engagements in
`connection with the book . . . .” (Id. ¶ 16.) The two then
`communicated by e-mail and telephone regarding the book
`throughout early 2009. (Id. ¶ 17.)
`As the book neared completion, plaintiff allegedly
`sought to formalize their agreement, which defendants refused to
`do. (Id.) Instead, defendants advised plaintiff that: “All
`references to you, your experiences and any writing you did will
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 3 of 24
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`be removed from the book.” (Id. ¶ 18.) The book, entitled
`“Healing Companions,” was published in 2010. (Id. ¶ 19.)
`Plaintiff alleges that she owns the copyright registration for
`her “Work” and that portions of the Work were published in
`“Healing Companions.” (Id. ¶¶ 29, 32.)
`Plaintiff filed this suit on July 16, 2010 (Docket No.
`1), alleging claims for (1) fraud; (2) copyright infringement;
`(3) common law misappropriation; and (4) violations of
`California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.
`Code §§ 17200-17210. Defendants now move for judgment on the
`pleadings pursuant to Federal Rule of Civil Procedure 12(c) and
`to strike the state law claims under California Civil Procedure
`Code section 425.16.
`II. Discussion
`A.
`Motion for Judgment on the Pleadings
`“After the pleadings are closed--but early enough not
`to delay trial--a party may move for judgment on the pleadings.”
`Fed. R. Civ. P. 12(c). A Rule 12(c) motion may ask for judgment
`on the basis of plaintiff’s “[f]ailure to state a claim upon
`which relief can be granted.” Id. 12(h)(2)(B). Such a motion is
`essentially equivalent to a Rule 12(b)(6) motion to dismiss, so a
`district court may “dispos[e] of the motion by dismissal rather
`than judgment.”3 Sprint Telephony PCS, L.P. v. Cnty. of San
`
`The motions differ in only two respects:
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`(1) the timing (a motion for judgment on the pleadings is
`usually brought after an answer has been filed, whereas
`a motion to dismiss is typically brought before an answer
`is filed) . . . and (2) the party bringing the motion (a
`motion to dismiss may be brought only by the party
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 4 of 24
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`Diego, 311 F. Supp. 2d 898, 902-03 (S.D. Cal. 2004).
`Under Federal Rule of Civil Procedure 8(a)(2), a
`pleading must contain “a short and plain statement of the claim
`showing that the pleader is entitled to relief.” “To survive a
`motion to dismiss, a complaint must contain sufficient factual
`matter, accepted as true, to ‘state a claim to relief that is
`plausible on its face.’” Ashcroft v. Iqbal, --- U.S. ----, 129
`S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
`U.S. 544, 570 (2007)). The Supreme Court has explained that the
`pleading standard rests on two principles. First, “the tenet
`that a court must accept as true all of the allegations contained
`in a complaint is inapplicable to legal conclusions.” Id. While
`showing an entitlement to relief “does not require ‘detailed
`factual allegations,’ . . . it demands more than an unadorned,
`the-defendant-unlawfully-harmed-me accusation.” Id. (quoting
`Twombly, 550 U.S. at 555). Second, “only a complaint that states
`a plausible claim for relief survives a motion to dismiss.” Id.
`at 1950. If the pleadings “do not permit the court to infer more
`than the mere possibility of misconduct, the complaint has
`alleged--but it has not ‘show[n]’--‘that the pleader is entitled
`to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)).4
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`against whom the claim for relief is made, usually the
`defendant, whereas a motion for judgment on the pleadings
`may be brought by any party).
`Sprint Telephony PCS, L.P. v. Cnty. of San Diego, 311 F. Supp. 2d
`898, 902-03 (S.D. Cal. 2004).
`The parties have requested that the court take judicial
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`notice of a large number of documents, most of which are not
`judicially noticeable. In considering a motion for judgment on
`the pleadings, a court may consider “documents attached to the
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 5 of 24
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`Copyright Infringement Claim against All Defendants
`To establish copyright infringement, a plaintiff must
`show (1) ownership of a valid copyright in the allegedly
`infringed material and (2) copying of protected expression by
`defendants. Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330,
`1335 (9th Cir. 1995), overruled on other grounds by Cunningham v.
`Hamilton Cnty., Ohio, 527 U.S. 198 (1999).
`A copyright registration certificate is prima facie
`evidence of copyright ownership. See 17 U.S.C. § 410(c) (“In any
`judicial proceedings the certificate of a registration made
`before or within five years after first publication of the work
`shall constitute prima facie evidence of the validity of the
`copyright and of the facts stated in the certificate.”). While
`plaintiff has failed to attach a registration certificate, she
`alleges that she owns a copyright registration. (See Compl. ¶¶
`18, 29.) This may or may not be sufficient to allege copyright
`ownership. See Vargas v. Pfizer, Inc., 418 F. Supp. 2d 369, 373
`(S.D.N.Y. 2005) (dismissing with leave to amend for failure to
`attach certificate of registration). However, defendants have
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`complaint, documents incorporated by reference in the complaint,
`or matters of judicial notice--without converting the motion . .
`. into a motion for summary judgment.” United States v. Ritchie,
`342 F.3d 903, 908 (9th Cir. 2003); see Heliotrope Gen., Inc. v.
`Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999). The
`court may also consider documents on which the Complaint
`necessarily relies if their authenticity is not disputed. See
`Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). On that
`ground and because the parties have so agreed, the court will
`consider Miller’s book (Notice of Lodging Document in Paper
`Format (Docket No. 23)) and plaintiff’s copyright registration
`certificate (Defs.’ Req. for Judicial Notice Ex. A (Docket No.
`10)) and deposit (Defs.’ Supplemental Req. for Judicial Notice
`Ex. A (Docket No. 22)). The court will not consider any other
`documents in deciding the motion for judgment on the pleadings.
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 6 of 24
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`not contested the issue, so for purposes of this motion, the
`court assumes that plaintiff has sufficiently alleged ownership.
`As to the second element, copying of a protected
`expression, defendants contend that most of plaintiff’s Work that
`appears in “Healing Companions” actually originated in early
`drafts that Miller e-mailed to plaintiff, and is thus not
`eligible for protection. (See Defs.’ Mem. of P. & A. in Supp. of
`Mot. for J. on the Pleadings at 9:1-16:27.) However, the court
`cannot look to the e-mails, which are not subject to judicial
`notice, on a motion for judgment on the pleadings, and thus the
`court must consider only the similarity of the Work and the book.
`“Copying may be shown by circumstantial evidence of
`access and substantial similarity of both the general ideas and
`expression between the copyrighted work and the allegedly
`infringing work.”5 Apple Computer, Inc. v. Microsoft Corp., 35
`F.3d 1435, 1442 (9th Cir. 1994). Substantial similarity refers
`to similarity of expression, not merely similarity of ideas or
`concepts. See 17 U.S.C. § 102(b).
`The degree of word-for-word similarity between the
`works here places the infringement claim in the class of cases
`referred to by Nimmer as “fragmented literal similarity.” 4
`Nimmer on Copyright § 13.03[A][2] at 13-53. “Fragmented literal
`similarity exists where the defendant copies a portion of the
`plaintiff’s work exactly or nearly exactly, without appropriating
`the work’s overall essence or structure.” Newton v. Diamond, 388
`
`Defendants do not raise the issue of whether they had
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`access to plaintiff’s work in this motion. (See Defs.’ Mem. of
`P. & A. in Supp. of Mot. for J. on the Pleadings at 5 n.5.)
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 7 of 24
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`F.3d 1189, 1195 (9th Cir. 2004). “Because the degree of
`similarity is high in such cases,” the court should consider
`“whether the copying goes to trivial or substantial elements,”
`which is measured by “considering the qualitative and
`quantitative significance of the copied portion in relation to
`the plaintiff’s work as a whole.”6 Id.
`In considering the qualitative and quantitative
`significance of the copied portion of plaintiff’s Work, the court
`cannot conclude on the pleadings alone that there is not
`substantial similarity between the works. Large portions from
`three out of just over nine pages constituting the Work are
`copied in the book with only slight modifications. (See Defs.’
`Supplemental Req. for Judicial Notice Ex. A (“Healing
`Companions”) (Docket No. 22).) Plaintiff’s Work contains two
`main sections: her personal story of interactions with her PSD
`and her advice on training PSDs. A majority of the latter is
`found in Chapter Four of “Healing Companions.” (Defs.’ Req. for
`Judicial Notice Ex. A (Docket No. 10).) The court is not
`equipped to determine the qualitative importance of the section
`on training to the copyrighted Work as a whole on a motion for
`judgment on the pleadings. On the face of the Complaint and the
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`The fact that the majority of the book contains
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`original material is irrelevant. 4 Nimmer on Copyright §
`13.03[B][1][a] at 13-68 (“If substantial similarity is found, the
`defendant will not be immunized from liability by reason of the
`addition in his work of different characters or additional and
`varied incidents, nor generally by reason of his work proving
`more attractive or saleable than the plaintiff’s.”) (footnotes
`omitted); see Worth v. Selchow & Righter Co., 827 F.2d 569, 570
`n.1 (9th Cir. 1987) (“[T]he relevant inquiry is whether a
`substantial portion of the protectible material in the
`plaintiff’s work was appropriated--not whether a substantial
`portion of defendant’s work was derived from plaintiff’s work.”).
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 8 of 24
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`documents incorporated by reference therein, plaintiff has stated
`a claim for copyright infringement.
`Fair Use
`Even if plaintiff has alleged a prima facie case of
`copyright infringement, defendants are entitled to dismissal if
`their use of the copyrighted material is protected as fair use.
`See 17 U.S.C. § 107. An assertion of fair use “may be considered
`on a motion to dismiss, which requires the court to consider all
`allegations to be true, in a manner substantially similar to
`consideration of the same issue on a motion for summary judgment,
`when no material facts are in dispute.” Leadsinger, Inc. v. BMG
`Music Publ’g, 512 F.3d 522, 530 (9th Cir. 2008); see Savage v.
`Council on American-Islamic Relations, Inc., No. C 07-6076, 2008
`WL 2951281, at *9 (N.D. Cal. July 25, 2008) (granting Rule 12(c)
`motion for judgment on the pleadings based on fair use defense).
`“The fair use doctrine confers a privilege on people
`other than the copyright owner ‘to use the copyrighted material
`in a reasonable manner without his consent, notwithstanding the
`monopoly granted to the owner.’” Hustler Magazine Inc. v. Moral
`Majority Inc., 796 F.2d 1148, 1151 (9th Cir. 1986) (quoting
`Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir. 1983)). In
`determining whether a use is fair, courts engage in a case-by-
`case analysis and a flexible balancing of the following four non-
`exclusive factors:
`(1) the purpose and character of the use, including
`whether such use is of a commercial nature or is for
`nonprofit educational purposes; (2) the nature of the
`copyrighted work; (3) the amount and substantiality of
`the portion used in relation to the copyrighted work as
`a whole; and (4) the effect of the use upon the potential
`market for or value of the copyrighted work.
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`Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 799 (9th
`Cir. 2003).
`The first factor in a fair use inquiry requires the
`court to consider “the purpose and character of the use,
`including whether such use is of a commercial nature or is for
`nonprofit educational purposes.” 17 U.S.C. § 107(1). Although
`not controlling, the fact that the work is used for a commercial
`or profit-making purpose as opposed to a non-profit purpose
`weighs against a finding of fair use. Elvis Presley Enters.,
`Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir. 2003). The
`“degree to which the new user exploits the copyright for
`commercial gain--as opposed to incidental use as part of a
`commercial enterprise--affects the weight” afforded to commercial
`nature as a factor. Id.; see also Harper & Row Publishers, Inc.
`v. Nation Enters., 471 U.S. 539, 562 (1985) (“The crux of the
`profit/nonprofit distinction is not whether the sole motive of
`the use is monetary gain but whether the user stands to profit
`from exploitation of the copyrighted material without paying the
`customary price.”). The court must also inquire into whether the
`new work is transformative and does not simply “supplant” the
`original work. Mattel, 353 F.3d at 800.
`The parties do not dispute that “Healing Companions” is
`being sold for profit. However, the section on training, in
`which plaintiff’s Work is found, is a small portion of the book
`as a whole, and the commercial value of the book is not based
`entirely on plaintiff’s Work. The book covers many aspects of
`PSDs, only one of which involves training. Therefore, while the
`book is being sold for profit and the use of plaintiff’s Work may
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`have contributed to its value, the manner of commercial use does
`not weigh strongly against a fair use determination. See Kelly
`v. Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2003).
`The more important inquiry under the first factor is to
`determine whether and to what extent the new work is
`“tranformative.” Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d
`701, 720 (9th Cir. 2007). “A work is transformative when the new
`work does not merely supersede the objects of the original
`creation but rather adds something new, with a further purpose or
`different character, altering the first with new expression,
`meaning, or message.” Id. at 720 (internal quotation marks
`omitted). The more transformative the new work, the less the
`significance of other factors that weigh against fair use, such
`as use of a commercial nature. Campbell v. Acuff-Rose Music,
`Inc., 510 U.S. 569, 579 (1994).
`Defendants’ use of plaintiff’s Work is significantly
`transformative. Not only were plaintiff’s sentences edited,
`clarified, and generally polished for publication, but also they
`form a very small portion of the book. The book, at 256 pages,
`includes chapters about a woman named Mindy, finding the right
`dog, dogs used to serve veterans with Post-Traumatic Stress
`Disorder, training (the chapter in which plaintiff’s Work is
`found), helping the PSD become part of the family, coping with
`the dog’s stress, and dealing with aging and death of a dog.
`(“Healing Companions” at 27-152.) The book also contains several
`appendices with sample service dog cards, information on laws
`about service dogs, breeds, tasks that PSDs can perform, and an
`article about Miller. (Id. at 153-226.) Finally, the book
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`contains a list of abbreviations, a glossary, a list of
`resources, and an index. (Id. at 227-54.) While plaintiff does
`not allege the use to which she has put or intends to put her
`Work, a comprehensive book on the subject of PSDs is
`transformative of any use to which plaintiff’s Work could be put.
`The first fair use factor thus weighs heavily in favor of a fair
`use determination.
`The second factor in a fair use inquiry requires the
`court to consider the “nature of the copyrighted work.” 17
`U.S.C. § 107(2). “Works that are creative in nature are closer
`to the core of intended copyright protection than are more fact-
`based works,” Kelly, 336 F.3d at 820 (quoting A&M Records, Inc.
`v. Napster, Inc., 239 F.3d 1004, 1016 (9th Cir. 2001)), meaning
`that plaintiff’s fact-based Work is more likely to be covered by
`fair use. However, the fact that a work is published or
`unpublished is also a critical element of its nature because the
`author’s right to control the first public appearance of her work
`weighs against the use of her work before its release. Id. When
`dealing with transformative uses, this factor is not terribly
`significant in the overall fair use balancing. See Mattel, 353
`F.3d at 803. Thus, the fact that the fact-based Work was
`unpublished weighs slightly, but not considerably, against a
`finding of fair use.
`The third factor in a fair use inquiry requires the
`court to examine the “amount and substantiality of the portion
`used in relation to the copyrighted work as a whole.” 17 U.S.C.
`§ 107(3). As explained above, the amount of the copyrighted Work
`used in the book was significant. Although “entire verbatim
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`reproductions are justifiable where the purpose of the work
`differs from the original,” Mattel, 353 F.3d at 803 n.8,
`defendants put the section on training PSDs to the same purpose
`for which plaintiff presumably wrote it: to provide information
`about training dogs. Thus, this factor weighs against a finding
`of fair use.
`The fourth factor in a fair use inquiry focuses on “the
`effect of the use upon the potential market for or value of the
`copyrighted work.” 17 U.S.C. § 107(4). This factor is
`“undoubtedly the single most important element of fair use.”
`Harper & Row, 471 U.S. at 566. This factor requires courts to
`consider not only the extent of market harm caused by the
`particular actions of the alleged infringer, but also whether
`unrestricted and widespread conduct of the sort engaged in by
`defendants would result in a substantially adverse impact on the
`potential market for the original. Kelly, 336 F.3d at 821. The
`more transformative the new work, the less likely the new work’s
`use of copyrighted materials will affect the market for the
`materials. Id. In determining whether the use has harmed the
`work’s value or market, courts have focused on whether the
`infringing use (1) tends to diminish or prejudice the potential
`sale of the work, (2) tends to interfere with the marketability
`of the work, or (3) fulfills the demand for the original work.
`Hustler, 796 F.2d at 1155-56. If a use has no demonstrable
`effect upon the potential market for, or the value of, the
`copyrighted work, then such use need not be prohibited in order
`to protect the author’s incentive to create. Sony Corp. of Am.
`v. Universal City Studios, Inc., 464 U.S. 417, 450 (1984).
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 13 of 24
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`While Miller’s book would likely supplant any market
`demand for plaintiff’s Work whether or not it contained the
`copyrighted material, the court cannot determine on the pleadings
`whether the alleged copying has any effect on the market.7 Thus,
`although the book is significantly transformative, the amount of
`alleged copying and the inability of the court to determine
`market effect preclude the court from finding at this stage that
`the copying constituted fair use. Accordingly, the court will
`deny defendants’ motion for judgment on the pleadings.
`B.
`Special Motion to Strike
`The California legislature enacted its anti-SLAPP
`statute, California Civil Procedure Code § 425.16, to “allow
`early dismissal of meritless first amendment cases aimed at
`chilling expression through costly, time-consuming litigation.”
`Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir.
`2001). “California’s anti-SLAPP statute allows a defendant to
`move to strike a plaintiff’s complaint if it ‘aris[es] from any
`act of that person in furtherance of the person’s right of
`petition or free speech under the United States or California
`Constitution in connection with a public issue.’” Vess v.
`
`The court is cognizant of the need to “balance . . .
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`‘the benefit the public will derive if the use is permitted and
`the personal gain the copyright owner will receive if the use is
`denied.’” Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792,
`804-05 (9th Cir. 2003) (quoting Dr. Seuss Enters., L.P. v.
`Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir. 1997)).
`Defendants’ argument that “many authors and reporters conduct
`interviews by email, and denying fair use here would harm the
`public interest by allowing sources to use copyright law to
`extort payment for, or exercise a veto over, publication of books
`that include information provided via email” (Defs.’ Mem. of P. &
`A. in Supp. of Mot. for J. on the Pleadings at 24:20-23) is
`compelling; nonetheless, it is insufficient for a finding of fair
`use at this stage.
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 14 of 24
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`Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003)
`(quoting Cal. Civ. Proc. Code § 425.16(b)(1)); see also Briggs v.
`Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1123
`(1999) (defendants “need not separately demonstrate that the
`statement concerned an issue of public significance”). The
`special motion to strike under the anti-SLAPP statute is
`available to litigants proceeding in federal court. Thomas v.
`Fry’s Elecs., Inc., 400 F.3d 1206, 1206-07 (9th Cir. 2005).
`“A court considering a motion to strike under the
`anti-SLAPP statute must engage in a two-part inquiry.” Vess, 317
`F.3d at 1110. First, “the defendant is required to make a prima
`facie showing that the plaintiff’s suit arises from an act by the
`defendant made in connection with a public issue in furtherance
`of the defendant’s right to free speech under the United States
`or California Constitution.” Batzel v. Smith, 333 F.3d 1018,
`1024 (9th Cir. 2003). Second, “[t]he burden then shifts to the
`plaintiff to establish a reasonable probability that the
`plaintiff will prevail on his or her [] claim.” Id.
`An “act in furtherance of a person’s right of petition
`or free speech” includes “conduct in furtherance of the exercise
`of the constitutional right of petition or the constitutional
`right of free speech in connection with a public issue or an
`issue of public interest.” Cal. Civ. Proc. Code § 425.16(e). To
`“arise from” the defendant’s right of petition or free speech,
`“the defendant’s act underlying the plaintiff’s cause of action
`must itself have been an act in furtherance of the right of
`petition or free speech.” City of Cotati v. Cashman, 29 Cal. 4th
`69, 78 (2002). “In deciding whether the ‘arising from’
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 15 of 24
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`requirement is met, a court considers ‘the pleadings, and
`supporting and opposing affidavits stating the facts upon which
`the liability or defense is based.’” Id. at 79 (quoting Cal.
`Civ. Proc. Code § 425.16(b)). To meet its burden, the “defendant
`need not show that plaintiff’s suit was brought with the
`intention to chill defendant’s speech; the plaintiff’s intentions
`are ultimately beside the point.” Bosley Med. Inst., Inc. v.
`Kremer, 403 F.3d 672, 682 (9th Cir. 2005) (internal quotation
`marks and citations omitted).
`Plaintiff’s claims for misappropriation and UCL
`violations arise from defendants’ research and publication of a
`book about mental health issues and therapy, which is an act in
`furtherance of defendants’ right of free speech in connection
`with an issue of public interest. See, e.g., Taus v. Loftus, 40
`Cal. 4th 683, 713 (2007) (investigating, writing, and publishing
`articles about mental health issues are acts in furtherance of
`the exercise of free speech in connection with a public issue);
`William O’Neil & Co. v. Validea.com Inc., 202 F. Supp. 2d 1113,
`1119 (C.D. Cal. 2002) (book is entitled to First Amendment
`protections). The fact that plaintiff alleges that the protected
`activity was unlawful does not change this analysis. See, e.g.,
`Navellier v. Sletten, 29 Cal. 4th 82, 94 (2002) (“Plaintiff’s
`argument ‘confuses the threshold question of whether the SLAPP
`statute [potentially] applies with the question whether [an
`opposing plaintiff] has established a probability of success on
`the merits.’” (quoting Fox Searchlight Pictures, Inc. v.
`Paladino, 89 Cal. App. 4th 294, 305 (2d Dist. 2001)) (alterations
`in original)); Lieberman v. KCOP Television, Inc., 110 Cal. App.
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 16 of 24
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`4th 156, 165 (2d Dist. 2003) (“To say that lawful newsgathering
`is an act in furtherance of one’s right to free speech, but
`unlawful newsgathering is not an act in furtherance of one’s
`right to free speech, begs the question. . . . Once the
`defendant shows that the cause of action arose from acts done in
`furtherance of an exercise of free speech, it becomes the
`plaintiff’s burden to establish that the acts are not protected
`by the First Amendment.”).
`Plaintiff’s fraud claim arises not from the book’s
`publication but from conversations between plaintiff and Miller
`that occurred in the course of Miller’s research for the book.
`These conversations were themselves “in furtherance” of
`defendants’ free speech rights. See Taus, 40 Cal. 4th at 713
`(investigation is conduct in furtherance of free speech rights);
`Lieberman, 110 Cal. App. 4th at 165-66 (newsgathering is conduct
`in furtherance of free speech rights); cf. Shoen v. Shoen, 5 F.3d
`1289, 1293 (9th Cir. 1993) (book author’s conversations with
`sources are protected by journalist’s privilege). Thus,
`defendants have satisfied the initial burden of demonstrating
`that plaintiff’s state law claims arise from defendants’ acts in
`furtherance of their free speech rights.
`The court “must then determine whether the plaintiff
`has demonstrated a probability of prevailing on the claim[s].”
`Navellier, 29 Cal. 4th at 88. Plaintiff must show that the
`claims are “both legally sufficient and supported by a sufficient
`prima facie showing of facts to sustain a favorable judgment if
`the evidence submitted by the plaintiff is credited.” Flores v.
`Emerich & Fike, 416 F. Supp. 2d 885 (E.D. Cal. 2006) (quoting
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 17 of 24
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`Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 741 (2003)).
`In contrast to the motion for judgment on the pleadings, on this
`prong the court “considers the pleadings and evidentiary
`submissions of both the plaintiff and the defendant.” Jarrow, 31
`Cal. 4th at 741 n.10. “[T]hough the court does not weigh the
`credibility or comparative probative strength of competing
`evidence, it should grant the motion if, as a matter of law, the
`defendant’s evidence supporting the motion defeats the
`plaintiff’s attempt to establish evidentiary support for the
`claim.” Id.
`Fraud Claim against Miller
`1.
`In California, the elements of a claim for fraud are
`“(a) a misrepresentation (false representation, concealment, or
`nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c)
`intent to defraud, i.e., to induce reliance; (d) justifiable
`reliance; and (e) resulting damage.” In re Estate of Young, 160
`Cal. App. 4th 62, 79 (4th Dist. 2008) (quoting Lazar v. Super.
`Ct., 12 Cal. 4th 631, 638 (1996) (internal quotation marks
`omitted)). Under the heightened pleading requirement for claims
`of fraud under Federal Rule of Civil Procedure 9(b), “a party
`must state with particularity the circumstances constituting
`fraud . . . .” Fed. R. Civ. P. 9(b). A plaintiff must include
`the “who, what, when, where, and how” of the fraud. Vess v.
`Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)
`(quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).
`Plaintiff alleges that the following representations
`constitute fraud:
`Miler [sic] assured Shepard that Shepard would be
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`Case 2:10-cv-01863-WBS-JFM Document 43 Filed 12/15/10 Page 18 of 24
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`compensated for her writing by: (a) receiving attribution
`in the book for her work, (b) receiving some financial
`compensation from sales of the book, and (c) being
`included in speaking engagements in connection with the
`book (together, the “Representations”)[.] Shepard agreed
`with this arrangement, and proceeded to write her
`portions of the book.
`(Compl. ¶ 16.)8 In her declaration, she provides some additional
`information. In a telephone conversation on February 10, 2009,
`plaintiff stated that she “would only provide additional
`material, especially concerning [her] PSD training techniques, if
`[she] was paid. Ms. Miller said that she agreed, but she did not
`commit to a specific amount of monetary compensation.” (Pl.’s
`Opp’n to Defs.’ Mot. for J. on the Pleadings (“Shepard Decl.”) ¶
`8(Docket No. 26); see id. ¶ 16.) In another telephone
`conversation on May 29, 2009, plaintiff repeated her request for
`“tangible acknowledgment and financial compensation,” and Miller
`said that plaintiff would be “taken care of.” (Id. ¶ 9; see id.
`¶ 24.)
`
`Plaintiff’s claim for fraud is neither legally
`sufficient nor supported by the evidence. Even assuming Miller
`represented to plaintiff that she would receive mon