Jackson Browne v. John McCain et al

Filing 51

Objections to the Declarations of Miller, Noyes and Steinsapir in support of re: MOTION to Strike the Fourth Claim of the Complaint 29 , MOTION to Strike The Fourth Claim Of The Complaint - (Discovery) 1 15 , MOTION to Dismiss Case Under FRCP 12(b)(6) 19 , MOTION to Dismiss Case Under Federal Rule 12(b)(2), (3) & (6) 23 filed by Defendant The Republican National Committee. (Klein, Howard)

Jackson Browne v. John McCain et al

Doc. 51

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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

KLEIN, O'NEILL & SINGH, LLP

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43 CORPORATE PARK, SUITE 204 IRVINE, CALIFORNI A 92606 TEL [phone] · FAX [phone]

CENTRAL DISTRICT OF CALIFORNIA 11 WESTERN DIVISION ­ LOS ANGELES 12 13 JACKSON BROWNE, an individual, 14 Plaintiff, 15 vs. 16 17 18 19 Defendants. 20 21 22 23 24 25 26 27 28
EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OF MILLER, NOYES AND STEINSAPIR CASE NO. CV-08-05334 RGK (Ex)

CASE NO. CV-08-05334 RGK (Ex) DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OF DONALD MILLER, JONATHAN NOYES AND JONATHAN P. STEINSAPIR FILED IN SUPPORT OF PLAINTIFF' CONSOLIDATED OPPOSITION TO DEFENDANT'S MOTIONS TO DISMISS Date: Time: Judge: Place: February 2, 2009 9:00 am Hon. R. Gary Klausner Courtroom 850

JOHN McCAIN, an individual; THE REPUBLICAN NATIONAL COMMITTEE, a non-profit political organization; THE OHIO REPUBLICAN PARTY, a non-profit political organization

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KLEIN, O'NEILL & SINGH, LLP

Defendant Republican National Committee hereby objects to the following portions of the Declarations of Donald Miller, Jonathan P. Steinsapir and Jonathan Noyes submitted by Plaintiff Jackson Browne in support of the consolidated opposition of Plaintiff to special motions to strike under C.C.P. § 425.16 filed by Defendants; and consolidated opposition to Defendant's motions to dismiss pursuant to FRCP 12(b)(2), (3) & (6); or transfer pursuant to 28 U.S.C. §§ 1404(a) & 1406(a).

OBJECTIONS TO THE DECLARATION OF DONALD MILLER

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"While Plaintiff has licensed Running on Empty for use in motion pictures such as Forrest Gump, he has never licensed Running on Empty for use in a commercial or advertising." DEFENDANT'S OBJECTION: Defendant objects to this assertion as not based on personal knowledge, and lacking foundation.

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PARAGRAPH 5:

"Plaintiff's vocal style is distinctive, his voice earnest and endearing. The uniqueness of Plaintiff's voice is difficult to put into words, however, the most apt written description of Plaintiff's voice that I have read came from a 1972 Rolling Stone article, a true and correct copy of which is attached hereto as Exhibit D." DEFENDANT'S OBJECTION: Defendant objects to this assertion as containing personal opinion, hearsay, and lacking foundation.

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PARAGRAPH 6:

"Neither the Ohio Republican Party, the Republican National Committee or Senator John McCain ("Defendants") sought or received permission to use Running on Empty in any campaign advertisement. Typically, when a third party wants to use a composition by an artist that I manage, a request is made, and if approved the song is licensed for a monetary fee. Plaintiff did
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not receive compensation, monetary or otherwise, from Defendants for their use of Running on Empty in the commercial at issue in this litigation." DEFENDANT'S OBJECTION: Defendant objects to this assertion as not based on personal knowledge, hearsay and lacking foundation.

OBJECTIONS TO THE DECLARATION OF JONATHAN P. STEINSAPIR

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"A simple search showed that Defendant Republican National Committee has sought protection for at least 118 marks...." DEFENDANT'S OBJECTION: Defendant objects to this assertion as irrelevant and lacking proper foundation.

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PARAGRAPH 3:

"Attached as Exhibit B hereto is a true and correct copy of Registration No. 1,994,455 (Aug. 20, 1996) for the trademark and service mark GOPTV, which names Defendant Republican National Committee as the registrant. Among other things, the Registration notes a "first use in commerce" for "political booklets and posters" and for "television programming...in the fields of politics." I downloaded the attached copy of this certificate from the PTO's website on January 7, 2009. " DEFENDANT'S OBJECTION: Defendant objects to this entire paragraph and the accompanying exhibit as irrelevant, hearsay and lacking proper foundation. The paragraph misstates the evidence as Exhibit B does not purport to show a "copy of Registration No. 1,994,455 (Aug. 20, 1996) for the trademark and service mark GOPTV."

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PARAGRAPH 4:

"Attached as Exhibit B hereto is a true and correct copy of Registration No. 1,980,493 (June 18, 1996) for the trademark and service mark RISING TIDE, which names Defendant
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Republican National Committee as the registrant. Among other things, the Registration notes a "first use in commerce" for "television programming...in the field of politics." I downloaded the attached copy of this certificate from the PTO's website on January 7, 2009. " DEFENDANT'S OBJECTION: Defendant objects to this entire paragraph and the accompanying exhibit as irrelevant, hearsay and lacking proper foundation.

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PARAGRAPH 5:

"Attached as Exhibit C hereto is a true and correct copy of Registration No. 3,333,658 (Nov. 13, 2007) for the stylized service mark MCCAIN, which names John McCain 2008 ­ The Exploratory Committee, Inc., as registrant. Among other things, the Registration notes a "first use in commerce" for "political campaign services, namely fundraising in the field of politics." I downloaded the attached copy of this certificate from the PTO's website on January 7, 2009. " DEFENDANT'S OBJECTION: Defendant objects to this entire paragraph and the accompanying exhibit as irrelevant, hearsay and lacking proper foundation.

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43 CORPORATE PARK, SUITE 204 IRVINE, CALIFORNI A 92606 TEL [phone] · FAX [phone]

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PARAGRAPH 6:

"Attached as Exhibit D hereto is a true and correct copy of Registration No. 3,395,543 (Mar. 11, 2008) for the service mark MCCAIN SPACE, which names John McCain 2008 ­ The Exploratory Committee, Inc., as registrant. Among other things, the Registration notes a "first use in commerce" for an online message board "in the field of national policy and matters of interest to the national electorate." I downloaded the attached copy of this certificate from the PTO's website on January 7, 2009. " DEFENDANT'S OBJECTION: Defendant objects to this entire paragraph and the accompanying exhibit as irrelevant, hearsay and lacking proper foundation.

OBJECTIONS TO THE DECLARATION OF JONATHAN NOYES

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"At that time, the Huffington Post was streaming the advertisement along with an article discussing its content." DEFENDANT'S OBJECTION: Defendant objects to this assertion as being unsubstantiated, and lacking proper foundation.

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PARAGRAPH 3:

"On January 6, 2009, I created an account on youtube.com which is a prerequisite to posting video content on the website....I was required to read YouTube's terms of service and acknowledge my agreement with these terms by clicking a box.... Attached hereto as Exhibit A are true and correct images from youtube.com reflecting its requirement to acknowledge agreement to the terms of service, as well as the actual terms of service." DEFENDANT'S OBJECTION: Defendant objects to this entire paragraph and the accompanying exhibit as irrelevant, lacking proper foundation, and being based on hearsay. Youtube.com's stated terms of service on January 6, 2009 are irrelevant to what youtube.com's terms of service were on or about July/August, 2008.

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PARAGRAPH 6:

"Attached hereto as Exhibit E is a true and correct copy of screen images from www.youtube.com reflecting 138 videos posted by the ORP." DEFENDANT'S OBJECTION: Defendant objects to this assertion and the accompanying exhibit as irrelevant and lacking proper foundation.

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PARAGRAPH 7:

" On January 6, 2009, I accessed the ORP's website at www.orp.org and followed the links to Ohio GOP TV where the ORP maintains links to the video content it posts on www.youtube.com. Attached hereto as Exhibit F is a true and correct copy of a screen image from http://www.ohiogop.org/gop_tv." DEFENDANT'S OBJECTION: Defendant objects to this paragraph and
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accompanying exhibit as irrelevant, and lacking proper foundation.

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PARAGRAPH 8:

"Attached hereto as Exhibit G is a true and correct copy of an article from the Cleveland Plain Dealer newspaper dated April 29, 2008, discussing the organization "McCain Victory Ohio." DEFENDANT'S OBJECTION: Defendant objects to this paragraph and accompanying exhibit as irrelevant, hearsay and lacking proper foundation.

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43 CORPORATE PARK, SUITE 204 IRVINE, CALIFORNI A 92606 TEL [phone] · FAX [phone]

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DATED: January 21, 2009

KLEIN, O'NEILL & SINGH, LLP

By /s/ Howard J. Klein Howard J. Klein Attorney for Defendant, THE REPUBLICAN NATIONAL COMMITTEE

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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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