Jackson Browne v. John McCain et al

Filing 47

RESPONSE IN SUPPORT of MOTION to Strike the Fourth Claim of the Complaint 29 filed by Defendant The Republican National Committee. (Klein, Howard)

Jackson Browne v. John McCain et al

Doc. 47

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HOWARD J. KLEIN (NO. 77029) [e-mail] THEODORE P. LOPEZ (NO. 191328) [e-mail] SANG N. DANG (NO. 214558) [e-mail] KLEIN, O'NEILL & SINGH, LLP 43 Corporate Park Suite 204 Irvine, CA 92606 Telephone: [phone] Facsimile: 949-955-1921 Attorneys for Defendant, THE REPUBLICAN NATIONAL COMMITTEE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION JACKSON BROWNE, an individual Plaintiff, vs. CASE NO. CV08-05334 RGK (Ex) REPLY IN SUPPORT OF DEFENDANT REPUBLICAN NATIONAL COMMITTEE'S 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 organization, Hearing: Date: February 2, 2009 Defendants. Time: 9:00 a.m. Place: Courtroom 850

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REPLY IN SUPPORT OF DEFENDANT RNC'S SPECIAL MOTION TO STRIKE UNDER CCP § 425.16

CASE NO. CV-08-05334 RGK (Ex)

Dockets.Justia.com

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MEMORANDUM OF POINTS AND AUTHORITIES

Defendant Republican National Committee ("the RNC") hereby joins the Reply of Defendant John McCain ("McCain") in Support of McCain's Special Motion to Strike under CCP §425.16. The RNC hereby adopts and incorporates herein the Memorandum of Points and Authorities in McCain's Reply. The RNC adds the following points in its Reply. Plaintiff Browne filed this lawsuit against the RNC without any admissible evidence that the RNC had anything to do with creating or distributing the Political Video. Browne merely asserts that the RNC "does not contend that it had no involvement in the creation of the Commercial," as if to excuse himself from presenting evidence on this point. Opp. at 18 n.10. The RNC, in fact, denies that it had any involvement in the creation or distribution of the Political Video. It is not the RNC's burden to prove a negative. It is, instead, Browne's burden, as plaintiff, to present evidence tending to prove such involvement. He has not done so. With no admissible evidence that the RNC had any such involvement, Browne falsely asserts that the RNC should be held personally responsible for any act done by any person that might somehow "promote McCain's candidacy." There is no authority for such a proposition. Furthermore, Browne concedes that, to prevail on his right of publicity claim, he must show that the RNC made a use of Browne's identity. Opp. at 6. There is no evidence, however, that the RNC made any use of Browne's identity, because, inter alia, the RNC played no part in the creation or dissemination of the Political Video. Lacking any relevant evidence, Browne contends, in effect, that the RNC can be held strictly liable for the acts of anyone who might have been acting to "promote McCain's candidacy." Opp. at 19. There is no authority for this position, the adoption
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REPLY IN SUPPORT OF DEFENDANT RNC'S SPECIAL MOTION TO STRIKE UNDER CCP § 425.16

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of which would dramatically chill political debate in clear violation of the letter and spirit of the First Amendment. Browne's right of publicity claim is based on the apparently novel and unprecedented theory that one's voice identifies not just the "owner" of the voice, but the political views of that person. This claim is based on the unwarranted assumption, unsupported by any competent evidence, that anyone viewing the Political Video would come to the conclusion that Browne had "flipped" his political views 180 degrees, from Democrat to Republican. In fact, the evidence presented by Browne, to the extent it proves anything, shows that Browne's political views are so widely known, and so much a part of his public persona, that it strains belief to conclude that anyone viewing the Political Video would believe he had switched his political allegiance. For the reasons set forth above and in the Motion, the Court should grant the Special Motion to Strike Under C.C.P. § 425.16 and strike Browne's fourth claim for common law misappropriation of right of publicity.

Dated:

January 21, 2009

KLEIN, O'NEILL & SINGH, LLP

By: /s/ Howard J. Klein Howard J. Klein Attorneys for Defendant Republican National Committee

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REPLY IN SUPPORT OF DEFENDANT RNC'S SPECIAL MOTION TO STRIKE UNDER CCP § 425.16

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CERTIFICATE OF SERVICE

I hereby certify that on January 21, 2009 I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of the filing to all counsel of record.

/s/ Howard J. Klein Howard J. Klein

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REPLY IN SUPPORT OF DEFENDANT RNC'S SPECIAL MOTION TO STRIKE UNDER CCP § 425.16

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CASE NO. CV-08-05334 RGK (Ex)