Jackson Browne v. John McCain et al

Filing 15

NOTICE OF MOTION AND MOTION to Strike The Fourth Claim Of The Complaint - (Discovery) 1 filed by Defendant John McCain. Motion set for hearing on 12/8/2008 at 09:00 AM before Judge R. Gary Klausner. (Bandlow, Lincoln)

Jackson Browne v. John McCain et al

Doc. 15

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SPILLANE SHAEFFER ARONOFF BANDLOW LLP Lincoln D. Bandlow (SBN 170449) 1880 Century Park East, Suite 1004 Los Angeles, California 90067-2627 Telephone: [phone] Fax: [phone] [e-mail] Attorneys for Defendant JOHN MCCAIN

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION JACKSON BROWNE, an individual Plaintiff, vs. CASE NO. CV08-05334 RGK (Ex) DEFENDANT JOHN MCCAIN'S NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE UNDER C.C.P. § 425.16

JOHN MCCAIN, an individual; THE REPUBLICAN NATIONAL COMMITTEE, a non-profit political organization; THE OHIO REPUBLICAN PARTY; a non-profit political Hearing: Date: December 8, 2008 organization, Time: 9:00 a.m. Place: Courtroom 850 Defendants.

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McCAIN'S NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE UNDER CCP § 425.16

Dockets.Justia.com

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 8, 2008, at 9:00 a.m., or as soon thereafter as counsel may be heard, in Courtroom 850 of the above-entitled Court, the Honorable R. Gary Klausner presiding, located at 255 East Temple Street, Los Angeles, California 90012, Defendant John McCain ("McCain") will and hereby does move the Court for an order striking the fourth claim for relief in the Complaint filed by Jackson Browne ("Browne") under California's anti-SLAPP statute, Code of Civil Procedure § 425.16. This Motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on October 6, 2008. The Complaint's fourth claim for relief is based on speech in connection with a public issue or issue of public interest. Accordingly, this claim falls within the scope of Section 425.16(e)(4) and, as such, the burden shifts to Browne to establish, with competent and admissible evidence, a probability that he will prevail on that claim. C.C.P. § 425.16(b)(1). Browne cannot satisfy his burden for the following reasons: (1) Browne's claim fails because the Political Video that is the subject of his claim is non-commercial speech that relates to a matter of public interest; (2) The Political Video that is the subject of his claim is subject to full and stringent protection under the First Amendment, which bars the claim; (3) The use of Browne's voice in the Political Video was transformative thereby precluding liability; and (4) Browne cannot show that McCain used Browne's voice. This Motion is based on this Notice, the concurrently-filed Memorandum of Points and Authorities, the concurrently-filed Notice of Motion and Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) and supporting Memorandum of Points and Authorities, the concurrently-filed Declarations of Lincoln D. Bandlow, John McCain, John McClelland and Jason Mauk, the concurrently-filed Request For Judicial Notice, all papers, pleadings, records and files in this case, and on such other
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McCAIN'S NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE UNDER CCP § 425.16

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evidence and/or argument as may be presented to the Court on the hearing on this Motion. McCain respectfully requests that the Court strike the fourth claim for relief in Browne's Complaint with prejudice and without leave to amend. Dated: November 17, 2008 SPILLANE SHAEFFER ARONOFF BANDLOW LLP

By:

Lincoln D. Bandlow

Attorneys for Defendant JOHN MCCAIN

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McCAIN'S NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE UNDER CCP § 425.16

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