Case 3:21-cv-01585-TWR-MSB Document 74 Filed 04/25/23 PageID.2160 Page 1 of 43
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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` Case No.: 21-CV-1585 TWR (MSB)
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`ORDER (1) DENYING PLAINTIFFS’
`MOTION FOR PARTIAL
`SUMMARY JUDGMENT AND (2)
`GRANTING DEFENDANTS’
`MOTION FOR PARTIAL
`SUMMARY JUDGMENT
`
`(ECF Nos. 55, 60)
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`CHRISTOPHER E. TALAVERA, an
`individual formerly doing business as
`TURNKEY WEB TOOLS; and
`TURNKEY WEB TOOLS, INC., a
`California corporation,
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`Plaintiffs,
`
`v.
`GLOBAL PAYMENTS, INC., a Georgia
`corporation; ACTIVE NETWORK, LLC,
`a Delaware limited liability company;
`HEARTLAND PAYMENT SYSTEMS,
`LLC, a Delaware limited liability
`company; and DOES 1 through 229,
`inclusive,
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`Defendants.
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`Presently before the Court are the Cross-Motions for summary judgment filed by
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`Plaintiffs Christopher E. Talavera and Turnkey Web Tools, Inc. (ECF No. 60, “Pls.’ MSJ”)
`and Defendants Active Network, LLC; Global Payments, Inc.; and Heartland Payment
`/ / /
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`Systems, LLC1 (ECF No. 55; ECF No. 55-1, “Defs.’ MSJ”). The Cross-Motions are fully
`briefed, (see ECF Nos. 55, 60–63), and the Court held a hearing on March 2, 2023, (see
`ECF No. 66). Having carefully considered the Parties’ arguments, the record, and the
`applicable law, the Court DENIES Plaintiffs’ Motion and GRANTS Defendants’ Motion.
`BACKGROUND
`
`Facts
`I.
`This action arises out of a dispute over a software program called “SunShop.” (ECF
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`No. 63, “Jt. Stmt.” ¶ 3.) In 2001, Plaintiff Christopher Talavera created the source code
`for the SunShop software program. (Id.) From 2002 to 2003 Talavera operated under the
`business name “Turnkey Web Tools, Inc.” (“TWT”). (ECF No. 16, “FAC” ¶ 4.)2 In June
`2003, Talavera incorporated and registered TWT to do business in California. (Jt. Stmt. ¶
`2.) Talavera is the President of TWT. (Id. ¶ 1.)
`In February 2004, Talavera obtained a copyright registration certificate for the
`SunShop software and underlying source code (Copyright No. TX 5-896-387). (Id. ¶ 5;
`see also FAC ¶ 2.) And in September 2021, Talavera obtained a second copyright
`registration certificate for a revised version of the SunShop software and source code
`(Copyright No. TX 9-010-501). (Jt. Stmt. ¶ 6; FAC ¶ 3.) Although TWT does not own
`these copyrights, (Jt. Stmt. ¶ 8), since its incorporation, TWT has purportedly been
`authorized by Talavera to act as the exclusive copyright and license administrator for
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`1
`Doe Defendants 1 through 229 have not been identified or served, and thus do not join in
`Defendants’ Motion for Summary Judgment. Plaintiffs’ claims against the Doe Defendants are discussed
`further in Section II.I.
`2
`In their Motion for Summary Judgment, Defendants rely on various facts within the First Amended
`Complaint (“FAC”) on the basis that it was verified under oath. (Defs.’ MSJ at 5 n.1.) Yet in their later
`briefing, Defendants contend that the FAC should not be considered because it is unverified. (ECF No.
`61 at 8.) Although the copy of FAC submitted with Plaintiffs’ Cross-Motion does not contain the
`verification page, (ECF No. 60-1, “Pls.’ Ex. A”), it is substantively identical to the FAC on the Docket,
`which has been verified under oath by Plaintiff Christopher Talavera on behalf of himself and TWT, (see
`ECF No. 16-1). Therefore, the Court will consider the verified FAC as summary judgment evidence.
`Due to the anemic Joint Statement of Facts submitted by the Parties, the Court has been forced to
`scour the Parties’ briefing to identify those facts within the FAC which have been adopted by both sides.
`Those undisputed facts are incorporated into the Background Section of this Order.
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`SunShop, (FAC ¶ 9; see also ECF No. 61 at 29). This authorization is not memorialized
`in a written agreement. (Jt. Stmt. ¶ 9.)
`From approximately 2007, (Defs.’ MSJ at 6; Pls.’ MSJ at 8), to 2012,3 Blue Bear
`Corporation (“Blue Bear”) paid Plaintiffs to license the SunShop software program to offer
`“shopping cart services” to school districts selling merchandise, event tickets, and other
`online goods and services, (FAC ¶¶ 21, 29). In 2008, Defendant Active Network, LLC
`(“Active”) wholly acquired Blue Bear, including all license agreements. (ECF No. 8-2,
`“Loch Decl.” ¶ 12.)4 In 2017, Active merged with Defendant Global Payments, Inc.
`(“GPI”). (Id. ¶ 11.) Now, GPI wholly owns Active as well as Defendant Heartland
`Payment Systems, LLC (“Heartland”). (Id. ¶ 3.)
`In 2013, Active stopped making licensing fee payments to Plaintiffs for the SunShop
`software, (id. ¶ 13), but Active has continued to use the software through the present day,
`(id. ¶ 14; see also ECF No. 8 at 10).
`II.
`Procedural History
`Plaintiffs initiated this action on September 8, 2021, (see ECF No. 1), and filed a
`First Amended Complaint on November 9, 2021, (see ECF No. 16). The First Amended
`Complaint brings eight claims: (1) copyright infringement; (2) induced copyright
`infringement; (3) violation of the Digital Millenium Copyright Act (“DMCA”) §
`1201(a)(2) (Circumvention); (4) violation of the DMCA § 1202 (False/Removed Copyright
`Management Information); (5) false designation of origin; (6) trade dress infringement;
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`Although it is undisputed that Defendants last paid for use of the license through 2012, the
`evidence submitted by Plaintiffs indicates that the license in fact expired in 2013, (see ECF No. 60-1,
`“Pls.’ Ex. J”), purportedly due to a promotion providing Defendants with an additional year of use, (see
`Pls.’ MSJ at 10). Plaintiffs clarified this issue at the Motion Hearing and Defendants did not present any
`evidence to the contrary. Thus, the Court accepts it as true.
`4
`Mr. Loch is the Vice President and General Manager of School Solutions at Defendant Active.
`Plaintiffs have submitted the Loch Declaration in its entirety in support of their Motion, (ECF No. 60-1,
`“Pls.’ Ex. D”), and Defendants have incorporated various facts from the Loch Declaration into their
`Motion, (see generally Defs.’ MSJ), and submitted the Declaration in support of a prior filing, (see ECF
`No 8-2). Accordingly, the Court incorporates undisputed facts from the Declaration into the Background
`Section of this Order.
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`(7) unfair competition; and (8) unjust enrichment. (See generally FAC.) Defendants
`answered on December 20, 2021, (see ECF No. 22), and the Parties completed discovery
`approximately one year later, (see ECF No. 53).
`On December 19, 2022, Defendants filed a Motion for Partial Summary Judgment
`on Plaintiffs’ Fifth, Sixth, and Eighth Claims for Relief. (See Defs.’ MSJ.) At Plaintiffs’
`request, (see ECF No. 57), the Court set a consolidated briefing schedule allowing
`Plaintiffs to file a Cross-Motion for Summary Judgment, (ECF No. 59). On January 19,
`2023, Plaintiffs filed a consolidated Cross-Motion and Opposition to Defendants’ Motion.
`(ECF No. 60.) Defendants then filed a consolidated Opposition to the Cross-Motion and
`Reply in support of their affirmative Motion, (ECF No. 61), and Plaintiffs filed a Reply in
`support of their Cross-Motion, (ECF No. 62). The Parties also filed a Joint Statement of
`Undisputed Facts. (ECF No. 63.) The Court held a hearing on the Cross-Motions on March
`2, 2023. (See ECF No. 66.)
`
`LEGAL STANDARD
`Under Federal Rule of Civil Procedure 56, a party may move for summary judgment
`as to a claim or defense or part of a claim or defense. Fed. R. Civ. P. 56(a). Summary
`judgment is appropriate where “the movant shows that there is no genuine dispute as to
`any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
`P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Although materiality is
`determined by substantive law, “[o]nly disputes over facts that might affect the outcome of
`the suit . . . will properly preclude the entry of summary judgment.” Anderson v. Liberty
`Lobby, Inc., 477 U.S. 242, 248, (1986). A dispute is “genuine” only “if the evidence is
`such that a reasonable jury could return a verdict for the nonmoving party.” Id. When
`considering the evidence presented by the parties, “[t]he evidence of the non-movant is to
`be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
`The initial burden of establishing the absence of a genuine issue of material fact falls
`on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden
`by “identifying those portions of ‘the pleadings, depositions, answers to interrogatories,
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`and admissions on file, together with the affidavits, if any,’ which it believes demonstrate
`the absence of a genuine issue of material fact.” Id. “When the party moving for summary
`judgment would bear the burden of proof at trial, ‘it must come forward with evidence
`which would entitle it to a directed verdict if the evidence went uncontroverted at trial.’”
`C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)
`(quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)).
`Once the moving party satisfies this initial burden, the nonmoving party must
`identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S.
`at 324. This requires “more than simply show[ing] that there is some metaphysical doubt
`as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
`586 (1986). Rather, to survive summary judgment, the nonmoving party must “go beyond
`the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories,
`and admissions on file,’ designate ‘specific facts’” that would allow a reasonable fact finder
`to return a verdict for the non-moving party. Celotex, 477 U.S. at 324; see also Anderson,
`477 U.S. at 248. Accordingly, the nonmoving party cannot oppose a properly supported
`summary judgment motion by “rest[ing] upon mere allegations or denials of his pleading.”
`Anderson, 477 U.S. at 256.
`Where, as here, the parties have filed cross-motions, the court considers each motion
`“separately, giving the nonmoving party in each instance the benefit of all reasonable
`inferences.” See SEC v. Feng, 935 F.3d 721, 728 (9th Cir. 2019). The Court must
`“consider the appropriate evidentiary material identified and submitted in support of both
`motions, and in opposition to both motions, before ruling on each of them.” Tulalip Tribes
`of Wash. v. Washington, 783 F.3d 1151, 1156 (9th Cir. 2015).
`ANALYSIS
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`Evidentiary Objections
`I.
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`As a preliminary matter, Defendants raise several objections to the evidence
`submitted in support of Plaintiffs’ Cross-Motion for Summary Judgment, (see ECF No. 61-
`6), and Reply in Support of that Cross-Motion, (see ECF No. 64). The Court addresses
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`each set of objections in turn.
`A. Defendants’ Objections to Plaintiffs’ Cross-Motion
`Pursuant to Section III.B.4 of the undersigned’s Standing Order for Civil Cases,
`“[o]bjections to evidence submitted in support of a motion must be contained within the
`opposition brief” and “[n]o separate statements of objections will be allowed.” See
`Standing Order for Civil Cases § III.B.4. Here, Defendants filed their evidentiary
`objections to Plaintiffs’ Cross-Motion in a separate document, (see ECF No. 61-1), rather
`than in their consolidated Opposition brief, (see ECF No. 61). Defendants’ separate
`statement of objections is ten pages in length, (see generally ECF No. 61-6), on top of
`Defendants’ twenty-six-page briefing, (see generally ECF No. 61). Although Defendants’
`separate statement of objections violates the undersigned’s Standing Order for Civil Cases,
`in this limited instance the Court will consider Defendants’ objections on the merits. The
`Court, however, cautions Defendants that further violations of the Standing Order will not
`be excused.
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`Exhibit A
`1.
`In support of their Cross-Motion, Plaintiffs filed Exhibit A, (ECF No. 60-1, “Pls.’
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`Ex. A”), along with a Declaration from Plaintiffs’ counsel Mandana Jafarinejad (the
`“Jafarinejad Declaration”), which identifies the Exhibit as a “true and correct copy of the
`First Amended Complaint [ECF No. 16], filed on November 9, 2021,” (ECF No. 60-2,
`“Jafarinejad Decl.” at 2).5 Defendants object to the Exhibit on the grounds that it lacks
`foundation, lacks authentication, and constitutes hearsay, arguing Jafarinejad failed to
`“properly authenticate th[e] document or lay any foundation for her personal knowledge.”
`(ECF No. 61-6 at 2.) Furthermore, Defendants argue, the First Amended Complaint “is
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`To avoid ambiguity, citations to the Parties’ filings refer to the CM/ECF pagination electronically
`stamped at the top of each page. Plaintiffs’ Exhibits A through J, however, are filed as a single document,
`and many pages were previously electronically stamped by CM/ECF. (See ECF No. 60-1.) Thus, when
`a new CM/ECF stamp was superimposed on the prior one, the pagination became illegible. Accordingly,
`when referencing Plaintiffs’ Exhibits A through J, the Court refers only to the Exhibit’s name and, when
`available, the pagination at the bottom of each page.
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`not verified” and several allegations are based on “information and belief.” (Id.)
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`As discussed previously, see supra note 2, Plaintiff Christopher Talavera verified
`the First Amended Complaint under oath on behalf of himself and Plaintiff TWT, (see ECF
`No. 16-1). Once sworn, the First Amended Complaint becomes equivalent to an
`authenticated affidavit. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (“A
`verified complaint may be used as an opposing affidavit under Rule 56.”) “Rule 56 permits
`the use of affidavits in evaluating a motion for summary judgment. While the facts
`underlying the affidavit must be of a type that would be admissible as evidence, the
`affidavit itself does not have to be in a form that would be admissible at trial.” Hughes v.
`United States, 953 F.2d 531, 543 (9th Cir. 1992) (citing Fed. R. Civ. P. 56(e)
`and Celotex, 477 U.S. at 324).
`Accordingly, although a verified complaint is hearsay, it may be considered on a
`motion for summary judgment if the declarant could present the evidence within it in a
`non-hearsay form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003).
`Here, Mr. Talavera could present the evidence in the sworn First Amended Complaint
`through his direct testimony at trial. And Defendants have failed to identify any specific
`second-level hearsay statements within the First Amended Complaint that could not be
`reduced to an admissible form through direct testimony. (See ECF No. 61-6.)
`Still, a verified complaint may only be considered under Rule 56 if it is based on
`personal knowledge rather than information and belief. See Schroeder, 55 F.3d at 460; cf.
`Columbia Pictures Indus., Inc. v. Pro. Real Est. Invs., Inc., 944 F.2d 1525, 1529 (9th Cir.
`1991), aff’d, 508 U.S. 49 (1993) (declining to consider an affidavit under Rule 56 because
`it was based on information and belief, not personal knowledge). Accordingly, the Court
`SUSTAINS Defendants’ objections to any statements based on information and belief
`because Mr. Talavera lacks the personal knowledge to testify to such information at trial.
`See Fed. R. Evid. 603. However, the Court OVERRULES Defendants’ objections to the
`remainder of Exhibit A, the First Amended Complaint.
`/ / /
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`Exhibits B and C
`2.
`Plaintiffs filed Exhibits B, (ECF No. 60-1, “Pls.’ Ex. B”), and C, (ECF No. 60-1,
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`“Pls.’ Ex. C”), along with the Jafarinejad Declaration, which identifies Exhibit B as a “true
`and correct copy of Plaintiff Talavera’s Copyright Registration No. TX 5-986-387,
`registered on February 20, 2004,” and identifies Exhibit C as a “true and correct copy of
`Plaintiff Talavera’s Copyright Registration No. TX 9-010-501, registered on September 8,
`2021,” (Jafarinejad Decl. at 2). Defendants object to the Copyright Registrations on the
`basis that they lack foundation, lack authentication, and constitute hearsay, arguing that
`Jafarinejad failed to “properly authenticate th[e] document[s] or lay any foundation for her
`personal knowledge.” (ECF No. 61-6 at 2–3.)
`Both Exhibits are Copyright Registrations, which constitute sealed, signed domestic
`public documents; therefore, they are self-authenticating, and no further foundation or
`authentication is needed. See Fed. R. Evid. 902(a). The Exhibits also constitute records
`of documents that affect an interest in property, Fed. R. Evid. 803(14), statements in
`documents that affect an interest in property, Fed. R. Evid. 803(15), and public records,
`Fed. R. Evid. 803(8). Therefore, the Copyright Registrations could be presented at trial as
`exceptions to hearsay. For the foregoing reasons, the Court OVERRULES Defendants’
`objections to Exhibits B and C, the Copyright Registrations.
`3.
`Exhibit E
`Plaintiffs filed Exhibit E, (ECF No. 60-1, “Pls.’ Ex. E”), along with the Jafarinejad
`Declaration, which identifies the Exhibit as a “true and correct copy of Defendants’
`Opposition to Plaintiffs ‘Motion for T.R.O. and Preliminary Injunction’ [ECF No. 8], filed
`October 1, 2021,” (Jafarinejad Decl. at 2). Defendants object to the Exhibit on the basis
`that it lacks foundation, lacks authentication, and constitutes hearsay, arguing “[t]he
`contents of Exhibit E are attorney argument and there are no statements made under oath.”
`(ECF No. 61-6 at 3.) Unauthenticated documents may not be considered in a motion for
`summary judgment. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002)
`(collecting 9th Circuit cases). Here, Jafarinejad has properly authenticated and laid
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`foundation for Defendants’ Opposition to the T.R.O. as a document within her personal
`knowledge as an attorney representing Plaintiff. See Fed. R. Evid. 901(b)(1).
`Still, the filing is hearsay and therefore may only be considered if the “underlying
`evidence [within it] could be provided in an admissible form at trial, such as by live
`testimony.” JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir.
`2016). Defendants are correct that Plaintiff would not be able to present defense attorneys’
`prior arguments in an admissible form at trial. But to the extent that Defendants’ prior
`filing contains purely factual assertions, it could be reduced to an admissible form at trial
`through percipient witness testimony. Specifically, the “Statement of Facts” Section in
`Exhibit E relies on the following underlying material: a Declaration from Jeremy Loch; a
`Declaration from Philip Laffey; Declarations from Mr. Talavera; a Declaration from Mr.
`Murphey; and a Declaration from Dr. Michael I. Shamos. (See Pls.’ Ex. E at 3–6.)
`Therefore, the assertions in the Statement of Facts Section could be reduced to an
`admissible, non-hearsay form at trial through direct testimony from the aforementioned
`individuals. Accordingly, the Court OVERRULES Defendants’ objection to the
`Statement of Facts in Exhibit E (3:22–6:27) and the portion of the Jafarinejad Declaration
`discussing the Exhibit (1:21–23) but SUSTAINS Defendants’ objection to the remainder
`of Exhibit E as inadmissible hearsay.
`4.
`Exhibit F
`Plaintiffs filed Exhibit F, (ECF No. 60-1, “Pls.’ Ex. F”), along with the Jafarinejad
`Declaration, which identifies the Exhibit as a “true and correct copy of the Declaration of
`Christopher Talavera in Reply to Opposition to Plaintiffs’ Motion for T.R.O. and
`Preliminary Injunction [ECF No. 13-1], filed on October 8, 2021,” (Jafarinejad Decl. at 2).
`Defendants raise several global objections to the Declaration as well as several specific
`objections to statements within the Declaration. (See ECF No. 61-6 at 4–11.)
`First, Defendants object to the Declaration as a whole on the basis that it lacks
`foundation, lacks authentication, and constitutes hearsay. (ECF No. 61-6 at 4.) The
`Jafarinejad Declaration does, however, properly authenticate and lay the foundation for
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`Mr. Talavera’s Declaration. See Fed. R. Evid. 901(b)(1). As for Defendants’ hearsay
`objection, the Court finds that the Declaration could be reduced to an admissible form at
`trial through the direct testimony of Mr. Talavera, meaning the Court can consider the
`Declaration at summary judgment. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir.
`2003). Finally, Defendants object that “the Declaration is not executed under penalty of
`perjury.” (ECF No. 61-6 at 5.) The Declaration does, however, begin by stating “I declare
`under penalty of perjury pursuant to the laws of the United States and the State of California
`that the following is true,” and it is dated and signed. (See generally Pls.’ Ex. F.)
`Therefore, the declaration is sworn. See 28 U.S.C. § 1746. Accordingly, the Court
`OVERRULES Defendants’ global objections to Exhibit F.
`Defendants also raise several objections to specific statements within the
`Declaration. (ECF No. 61-6 at 5–11 (Objection 8–27).) Among these are hearsay, lack of
`foundation, improper opinion, improper legal conclusion, argumentative, and best
`evidence. (See id.) The Court addresses only the meritorious objections in detail. First,
`Defendants object to various portions of the Declaration that refer to the contents of Exhibit
`E—Defendants’ Opposition to Plaintiffs’ Motion for T.R.O. and Preliminary Injunction.
`(See id. at 7 (Objection 15) & 9 (Objection 22); see also Pls.’ Ex. F at 3 (Paragraph 6) & 5
`(Paragraph 12).) Defendants object that references to the contents of Exhibit E constitute
`inadmissible hearsay and Talavera’s commentary on Exhibit E constitutes improper legal
`conclusions. (See ECF No. 61-6 at 7 (Objection 15) & 9 (Objection 22).)
`For the most part, the Court agrees. The attorney argument within Exhibit E cannot
`be reduced to an admissible non-hearsay form at trial, see supra Section I.A.3, and Mr.
`Talavera’s personal legal opinions would be improper, see Fed. R. Evid. 701. The Court
`therefore SUSTAINS Objection 15 in whole, (see ECF No. 61-6 at 7), and will not consider
`paragraph six of Exhibit F, (see Pls.’ Ex. F at 3). Additionally, the Court SUSTAINS IN
`PART and OVERRULES IN PART Objection 22, (see ECF No. 61-6 at 9), and will
`consider only the last two sentences of paragraph twelve, (see Pls.’ Ex. F at 3 (“The notion
`that my registration is invalid is completely false. As I stated, I wrote SunShop as an
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`original work.”)). The Court OVERRULES all other objections to Exhibit F, the
`Declaration.
`Exhibits G and H
`5.
`Plaintiffs filed Exhibit G, (ECF No. 60-1, “Pls.’ Ex. G”), and Exhibit H, (ECF No.
`60-1, “Pls.’ Ex. H”), along with the Jafarinejad Declaration, which identifies Exhibit G as
`a “true and correct copy of an email from Eric Coffman, dated August 12, 2013,” and
`Exhibit H as a “true and correct copy of a comparison of the libsecure.php file that was
`decrypted and attached to the email from Eric Coffman, dated August 12, 2013,”
`(Jafarinejad Decl. at 3).
`Defendants object to Exhibit G on the basis that it lacks foundation, lacks
`authentication, and is hearsay, claiming Jafarinejad “has no personal knowledge regarding
`the email or its contents, and was not a sender or recipient of the email.” (ECF No. 61-6
`at 3) Similarly, Defendants object to Exhibit H on the basis that it lacks foundation and
`authentication, is hearsay and improper opinion, and assumes facts not in evidence. (Id. at
`3–4; see also ECF No. 61 at 24 (objecting that Exhibit H is unauthenticated, unsworn,
`hearsay, and offers an expert opinion without qualification).) Specifically, Defendants
`argue Jafarinejad “has no personal knowledge regarding the email, its contents, or any
`attachment thereto, and was not a sender or recipient of the email. Declarant fails to lay
`any foundation as to her expertise necessary to testify regarding code comparison or
`decryption and fails to provide any foundation as to the source or method of comparison.”
`(See ECF No. 61-6 at 4.)
`In response to Defendants’ foundation and authentication objections, Plaintiffs
`assert that “Exhibits G and H[] were produced in discovery and therefore are admissible
`by authentication by production.” (See ECF No. 62 at 9.) “Authentication is a ‘condition
`precedent to admissibility,’ and this condition is satisfied by ‘evidence sufficient to support
`a finding that the matter in question is what its proponent claims.’” Orr, 285 F.3d at 773
`(footnotes omitted). The Ninth Circuit has held that documents produced by a party in
`discovery can be deemed authentic when offered by the party-opponent if there are
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`sufficient indicia of authenticity on the face of the document and the party-opponent does
`not contest the document’s authenticity. See Maljack Prods., Inc. v. GoodTimes Home
`Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996); see also Metro-Goldwyn-Mayer
`Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966, 972 (C.D. Cal. 2006) (“Authentication
`can be accomplished by . . . production of the items at issue in response to a discovery
`request.”). A document cannot be authenticated by way of production if the proponent
`“has not identified who produced [it]” and the opposing party “has not admitted to having
`produced [it].” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 777 n.21 (9th Cir. 2002).
`Here, Jafarinejad’s Declaration identifies Exhibit G as an email from Eric Coffman,
`who the Court gleans is one of Active Network’s employees, (see generally Pls.’ Ex. G
`(Coffman, signing his email “Software Engineer” with “Active Network”)), and Exhibit H
`as a “libsecure.php file” purportedly attached to that email, (see Jafarinejad Decl. at 3).
`Jafarinejad fails to state that Exhibits G and H were produced by Defendants in discovery;
`however, in a subsequently filed Declaration, Mr. Talavera asserts that the Exhibits were
`“obtained throughout the discovery process and w[ere] produced by Defendants.” (ECF
`No. 62-1 at 2.) Although it is typically the attorney’s role to certify that an exhibit was
`produced by the opposing party in discovery, no case law explicitly prevents their client
`from doing so themself. See Orr, 285 F.3d at 777 n.20 (citing Maljack for the proposition
`that “documents produced by a party in discovery [a]re deemed authentic when offered by
`the party-opponent” (emphasis added)).
`Because Plaintiffs have sufficiently identified the Exhibits as having been produced
`by Defendants in discovery, the Court now considers whether there are sufficient indicia
`of reliability on the face of each Exhibit. As for Exhibit G, the email chain, there is
`sufficient indicia that it was produced by Defendants in discovery. See In re
`Homestore.com, Inc. Sec. Litig., 347 F. Supp. 2d 769, 781 (C.D. Cal. 2004) (“Although
`none of these [emails] have affidavits from the actual authors laying the foundation that
`the emails are what they purport to be, these documents are deemed authentic because
`Plaintiff identified the documents as being produced by parties in discovery.”). Each page
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`of Exhibit G contains the word “confidential” in the bottom lefthand corner of the page and
`the word “ACTIVE” followed by an identification number in the bottom righthand corner.
`(See generally Pls.’ Ex. G.) See also Barefield v. Bd. of Trustees of CA State Univ.,
`Bakersfield, 500 F. Supp. 2d 1244, 1258 (E.D. Cal. 2007) (identifying bates stamps and
`the opposing party’s letterhead as sufficient independent indicia of authenticity).
`Additionally, Defendants do not appear to contest the assertion that they produced the
`Exhibit. See Metro-Goldwyn-Mayer Studios, Inc., 454 F. Supp. 2d at 972 (C.D. Cal. 2006)
`(explaining that the opposing party must “specifically deny the authenticity of the
`documents,” not simply “mount[] an evidentiary objection”). Accordingly, the Court finds
`Exhibit G sufficiently authenticated as a document produced by a party-opponent in
`discovery. For the same reason, it is admissible as non-hearsay. See In re Homestore.com,
`Inc. Sec. Litig., 347 F. Supp. 2d at 781 (“[E]mails written by a party are admissions of a
`party opponent and admissible as non-hearsay under Fed. R. Evid. 801(d)(2).”).
`Exhibit H, however, does not have the same indicia of authenticity. The document
`does not contain the same markings as Exhibit G. Additionally, it is unclear where Exhibit
`H, the libsecure.php file, originated. Talavera claims that the file was attached to an email
`from Jon Christopher to Eric Coffman, (see ECF No. 62 at 2–3)—an email which has not
`been submitted to the Court—whereas the Jafarinejad Declaration claims that the file was
`attached to an “email from Eric Coffman,” which does not include Jon Christopher, (see
`ECF No. 60-2 at 3 (emphasis added); see also Pls.’ Ex. G).
`Finally, even if a portion of Exhibit H was produced by Defendants in discovery, by
`Plaintiffs’ own admission, the document has been altered since then. The Exhibit is
`prefaced by an explanation written by Mr. Talavera. (See Pls.’ Ex. H at 1; ECF No. 62-1
`at 2 (“I [Christopher Talavera] personally noted the comparisons between the libsecure.php
`files . . . .”).) And the remainder of the Exhibit is a purported comparison of Defendants’
`“version of the libsecure.php file” and Plaintiffs’ “original SunShop libsecure.php file.”
`(Pls.’ Ex. H at 1; see also ECF No. 62-1 at 1, 2.) Although Defendants may have produced
`their own libsecure.php file in discovery, there is no reason to believe that they would have
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`produced Plaintiffs’ file. This information indicates that Defendants did not produce
`Exhibi