Xiaoning et al v. Yahoo! Inc, et al

Filing 76

MOTION to Strike Plaintiffs' State Law Causes of Action Pursuant to the California Anti-Slapp Statute filed by Yahoo! Inc.. Motion Hearing set for 11/1/2007 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Petrocelli, Daniel) (Filed on 8/27/2007)

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Xiaoning et al v. Yahoo! Inc, et al Doc. 76 Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 1 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DANIEL M. PETROCELLI (S.B. #97802) dpetrocelli@omm.com MATTHEW T. KLINE (S.B. #211640) mkline@omm.com O'MELVENY & MYERS LLP 1999 Avenue Of The Stars Los Angeles, California 90067-6035 Main Number: (310) 553-6700 Facsimile: (310) 246-6779 Attorneys for Defendant YAHOO!, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION WANG XIAONING, YU LING, SHI TAO, and ADDITIONAL PRESENTLY UNNAMED AND TO BE IDENTIFIED INDIVIDUALS, Plaintiff, v. YAHOO!, INC., a Delaware Corporation, YAHOO! HONG KONG LTD., a Foreign Subsidiary of Yahoo!, AND OTHER PRESENTLY UNNAMED AND TO BE IDENTIFIED INDIVIDUAL EMPLOYEES OF SAID CORPORATIONS, Defendant. Case No. C07-02151 CW DEFENDANT YAHOO!, INC.'S NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE PLAINTIFFS' STATE LAW CAUSES OF ACTION PURSUANT TO THE CALIFORNIA ANTI-SLAPP STATUTE Date: November 1, 2007 Time: 2 p.m. Location: Courtroom 2 Judge: Hon. Claudia Wilken TO PLAINTIFFS AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT ON October 4, 2007, at 2 p.m. in Courtroom 2, 4th Floor, United States Courthouse, 1301 Clay Street, Oakland, California, defendant Yahoo!, Inc. ("Yahoo!") will and hereby does move to strike plaintiffs' six causes of action brought under California law--i.e., plaintiffs' Fifth through Tenth Claims for Relief in their Second Amended Complaint ("complaint"). This special motion to strike is brought on the grounds that (1) plaintiffs' California causes of action are subject to the California anti-SLAPP statute, California Code of Civil Procedure § 425.16; and (2) are barred by California Civil Code § 47, which privileges the communications at issue in this case. C07-02151 CW YAHOO!'S ANTI-SLAPP MOTION AND [PROPOSED] ORDER Dockets.Justia.com Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 2 of 13 This matfan ís based an this natíee af motion and rr^otíon, the following Memorandum of Points and Authorities, Yahoo!'s concurrently filed Mogan to Dzsiss Plaintiffs' Second 3 4 5 6 7 Amended Comlalaínt, the pleadings on file in this matter, the reply memorandum Yahoa! intends to file, and any further argument the Court might allow. Dated: August 27, 2007 DANIEL M. PETROCELLI MATTIïEW T. KLINE O'MELVENY & MYERS LLP By: 1 Daniel M. Petrocelli Attorneys for Defendant YAHOO!, INC. 28 Cí#7-021 S 1 CW YAHOO!'S ANT-SLAI?P MOTION AND 1PROPOSEDi ORDI^R I Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 3 of 13 1 2 TABLE OF CONTENTS Page 3 4 5 6 7 I. II. III. INTRODUCTION ........................................................................................ ...................... 1 STATEMENT OF FACTS ................................................................................................. I PLA^^^TIFFS' CALIFORNIA LAW CLAIMS MUST BE STRICKEN BECAUSE YAHOOf'S ALLEGED COMMUNICATIONS WERE PRNILEG^D ........................... 2 A. The Anti-SLAPP Statute Applies ................................................................. .......... 3 1. 2. Plaintiffs' Claims Target Protected Acts of Communication ..................... ^ No Good Reason Exists to Exempt Plaintiffs ' Claims from the Statute .. ........................................................................................................ 5 B. IV. Plaintiffs Claims Are Barred b Civil Code Section 47(b) ................................... l ^ CONCLUSION ................................................................................................................. 10 C C 1: 7663 79.7 8i241U7 ó - i- C07-Q2151 CW Co7-021S1 CW Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 4 of 13 1 2 3 4 5 ^ I. INTRODUCTION Plaintiffs' six causes of action brought under California law-their Fifth through Tenth Claims far Relief each must be strickev pursuant to Calífarvia's anti-SLAPP statute and Calif© rnía Civil Cade section 47, because the claírvs are based av alleged acts of eommuvications with Ch^vese law enfarcement officials concerning, what ís by definition, a matter af public concern---i.e., alleged cr^rr ^z al activity. The anti-SLAPP statute, ^hích ^ s desigred t© protect particípatíov ív matters of public e^ncern, allows defendants an expedited means to challenge la^jsuits arising out of such communications. See C^aL. CODE CIV. Proc. ^ 425.1. The avtìSLAPP statute applies to supplemental state law claims brought in federal court, see Globetrotter S^^ftware, Inc. v. E^^n Computer Gt^oup, 1'ßc., ^^ F. Supp. 2d 1127, 1129-30 (N.D. Cad. 1993), and affords Yahoo! substantive and pracedural pratections, íncludivg the right to file this special motion to strike. Civil Code sectiov 47(bj is similar ta the SLAPP statute and privileges co^x^munícatìons with law enforcement officials---even thane that occur abroad-avd shields Yahoo? from liability arising aut of such acts. Plaintiffs' claí^x^s ív this case challenge quintessential acts of communication protected by California law. Plaintiffs' Fifth through Tenth Claims far Relief must be stricken. II. STATEï^IIEáNT OF FACTS Plaintiffs allege they published pro-democracy literature in China, usí.ng Yahoo? China email accounts avd group lists. See Compl., ^! 10, 12, ^á-35, 53-54, 56. They allege the Chìvese govervrr^ent sought to prosecute plaintiffs under Chinese laws prohibiting such speech; and Yahoof, defendant Yaho©! Hang Kong, Ltd., andlor Yahoos China (plaintiffs' allegations are unclear] "provided Chinese officials with access to [plaintiffs'] private e-mail records, copies of email messages , e-mail addresses , user ID numbers , and other identifying ínformatían ...." Id. ¶ 2, 42, ^2. Plaintiffs assert that "[t]hese dísclasures served ... as the basis" far their prosecution and detention and that, once incarcerated, government aff^cíals abused them and engaged ^v "acts of persecution." Id. ¶ 2. Plaintiffs are deliberately vague as to whether defendants provided information to the Chívese government ov their own accord or iv respavsc to an official request from the Chinese government. All the complaint says is that defendants acted c^^-^^ ^ s I cw YAHOO'.'S ANTI-SLAPP MOTIQN AND 1PROPOSEI^l OWIER 7 Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 5 of 13 ``voluntarily." Id. 2. 2 3 4 5 6 Plaintiffs contend that defendants' disclosure of information aided and abetted the misconduct of the Chinese government and violated federal, ínternatíonal; and California law. In paragraph 4 of t^^eir complaint, plaintiffs describe their California claims. They say defendants "violated] California state laws, including prohibitions against battery, false imprisonment, assault, intentional infliction of emotional distress, negligence, negligent supervision, and the California Business & Professions Code § 17200." Co^npl. ^ 4. Plaintiffs elabarat^ an their California law claims ín the '`Causes of Action" section of their complaint and their Fifth through Tenth Claims far Relief. See id. ¶^^ 69, 37-127.' Far purposes of this ^xaotion, Yahoo! assu^x^es the facts alleged í^-^ the complaint are true and should be read most favorably to plaintiffs----i.e., thai Yahoo? played some role ín the transmittal of information regarding plaintiffs to the Chinese authorities. Even on these assumed facts, the veracity of which Yahoo? does not concede, plaintiffs have faded to state ^ claim. Imo. PLAINTIFFS' CALIFORNIA LAW CLAIMS MUST BE STRICKEN BECAUSE YAHOOI'S ALLEGED COMMUNICATIUNS WERE PRIVILL+ GED. Plaintiffs' complaint could not more directly challenge Yahoo!'s right to engage ín communicative acts protected by California law. As both California state and federal courts have recognized, California Cívíl Code § 47(ój privileges corr^rr^unications ^x^ade to bath domestic and foreign law enforcement aff^cíals. See Beroiz v. Wahl, 84 Cal. App. 4th 485, 494-95 {Cal. Ct. App. 2000] (§ a7{bj privilege applies to communications made to Mexican law enforcement}; E. 7 28 ' At times, plaintiffs suggest that their tart claims (e.g., for battery} are brought under both "tl^e laws of California and the United States." ^d. ^¶ 98-100 (emphasis added}; see also id. ^¡^ 11 2, 116. Of course, "there ís no federal general co^x^mon law" and, as the Suprerrze Court explained 70 years ago, "[e]xcept in matters governed by the Federal Constitution or Acts of Congress, the law to be applied in any case is the l^^v of the State." Erie Railr©^d C^ v. Tompkins, X04 ú'.S. 64, 78 {1338) (emphasis added). Because plaintiffs' complaint directly invokes the Iaw of the State of California, Yahoo! assumes, for purposes of bringing this motion, that California law applies. However, Yahoo! reserves the right to assert that California law does not apply to this case. Cf. Palliation Sterilizers, Inc. v. U.S., 867 F. Supp. 1465, 147b {E.D. Wash. 1394) (in ruling ©n motions to dismiss, court did not decide whether Washington or Georgia law applied, but merely determined whether plaintiffs' causes of action, brought under Washington law, stated cognizable claims under Washington law}; Panama Processes, S._^1. v. Cities Services Co., 650 F.2d 408, 41 3 v.6 (2d Cír. I98^) (party reserved right to argue that Brazilian law applied, though ít presently argued under New York lawj. C07-D2 ] 51 CW YAHOO!'S AN`l'I-S1.APP MOTION AND ^^ROPOSEDI Ot2DE^ -2- Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 6 of 13 1 2 3 4 5 c^ J. Galls Winery v. And^na F,ác·ores, S.A., Case No. CV F 05-0101, 2006 U.S. DIST. LEXIS ^^7206, at *24 {E.D. Cal. June ^O, 2006) (prívílege applies to corzrmunicatío^^s made in Ecuador); Johnson v. Symantec Corp., 5$ F. S^^pp. 2d 1107, 1 110 (N.D. Cal. 1999) ("undisputed" that privilege applies to communications " made in the context of ongoing governmental investigations"). Given this rule, plaintiffs ' California law claims should either be dismissed pursuant to Yahoo!' s concurrently filed motion to dismiss , ^^r stricken pursuant to the anti-SLAPP 7 8 statute. Adjudicating a SLØP motion is a two-step process. Pírst, the Court must determine whether the defendant has met its burden of demonstrating that the anti-SLAPP statute applies. See ^¡'avellíer v. Sletten, 29 Cal. 4th 82, 88 (Cal. 2002). Second, if defendant meets that burden; the plaintiffs must demonstrate they have stated a legally cagnízable claim. See i^l. In federal court, a plaintiff's burden ín response to an anti-SLAPP motion depends on the nature of defendant's challenge. If the challenge ís based on legal defects on the face of the pleadings, then plaintiffs' burden ís "analogous to [that of) a Rule I2(b}(6) motion to dismiss." Rogers v. flume Shopping Network, Inc., S7 ^. Supp. 2d 973, 982 (C.D. Cal. 1999). lf, instead, a defendant's challenge ís based on a lack of evidence to substantiate plair^tíff's claims, then the pla^nt iff ^ burden is analogous io a ^o^ío^ for sumnary judgrrent pursuant to Rule 56. See id. at 9$2-$3. 1-Iere, Yahooí challenges defieienc^es on the face of the pleadings. Thus, plaintiffs' allegations should be assumed true and their California larv claims stricken only if they failed to plead a "cognizable legal theory" or pled insufficient facts "under a cognizable legal theory." B^lístrerí v. I'acìf^.ca Police Dept., 901 F.2d 69&, 699 (9th Cir. 1988) (applying Rule 12(b)(6}). Yahoo! contends plaintiffs' claims are barred by California prívílege law. A. The Antí-SLAPP Statute An^^lies. 1. Plaintiffs' Claims Target Pr^ teeied Acts ^ f C^mmunícati ^ n. The SLAPP statute applies to any "cause of action against a person arising from any act of that persar^ in furtherance of that person's right of petition or free speech under the United States or California Constitution in connection with a public issue," CAL. CClDE C[v. P^zoc. 28 § 425.1 b(b)(1), including "any written or aral statement or writing made before a legislative, C^7-(ì2 ^ S 1 CW YAHOO?'S ANTI-SLAPP MATION AND IP ZOPOSEDI ORD> R -3- Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 7 of 13 1 2 3 4 5 ^ ^ executive, or judicial proceeding, or any other official proceeding authorized ^y law'' and "a ^ y written or oral statement or writing made ín connection with an issue under consideration or review by a legislative, executíve, or judicial bady, or any other officíal proceeding authorized by law," id. §§ 42.16{e)(1}-(2). Plaintiffs' California claims fall within the scope of the SLAPP statute because they arise from comunícatío^s with governxr^ent officials co^cerni^g an officíal ínvestí^atíon. California courts have uniformly held that such com^^unícatio^s are protected: · In Briggs v. Eden C©uncíl for Hope & ^^pportunüy, 19 Cal. 4th 1106, 11 l5 (Cal. 1 999), the Calífor^ia Supreme Court held that statements made to investigators for the Department of Housí^g and Urban Development fell wíthí ^ the ambit of the statute. ^^ In Dickens v. Pr^^^dent Li}e & Accident Ins. Co., 117 Cal. App. 4th 705, 713-717 {Cal. Ct. App. 2004), the California court of appeal held that the statute protected statements made to federal prosecutors that resulted ín plaintiffs' prosecution. · I^ Siam v. Kiz^lbas^h, I30 Cal. App. 4th 1563, I569-1570 (Cal. Ct. App. 2005), the Court of Appeal held that defendant's reports of child abuse to police qualified. ^ And ín C©mputerxpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1009-10 (Cal. Ct. App. 2001), the court held that SLAPP applied to complaints filed with the SEC. None of these results is surprísí^g. As the California Supreme Court has recog^ízed: "it [is] the duty of every citizen to cooperate with the police in their í^vestígatío^ of crime and to provide information to investigating officers," and defenda^ts cannot be held liable for "fulfilling] this duty." Hagberg v. Calif. Fed. Bank FSB, 32 Cal. 4th 350, 373 (Cal. 2004). Under any readí^g of the coix^plaínt, defendants' alleged commu^icatìons are protected. E^en^ assuí^g Yahoo! volunteered information to the PRC--^-which it ^^ ^ not-its aet^ ^ ns, like those in Briggs, Dickeys, Siam, and Computer Express, are fully protected. See Dickens, l l7 Cal. App. 4th 705 at 707-08 (lawsuit ís subject to SLAPP because "llíc^cens's cause of action .. . challenges the actions of [defendants] i^ allegedly playing an instrumental role í^ procuring the crímí^al prosecution agaí^st him.") 8 9 10 11 12 13 14 5 15 28 C07-02151 C W YAHQO!'S A^TT`I-S1:,APP MOTION AND ^PR4P SED] ORDER -4- Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 8 of 13 if Yahoo's communications were made in response to a formal legal request, then those 2 , a eommunicati^ns deserve even greater proteetian. Testimony given before public bodies, evidence produced ín response to subpoenas or legal process, a^^d reports made in response to off cial requests far infar^x^atian are all "protected activities" under the SLAPP statute. Grek^ I^tegra^ed, 1"ße. v. Lowrey, 13^ Cal. App. 4th 1572, 1580 (Cal. Ct. App. 2005) ("Lowrey disclosed information about Greka to his counsel, to authorities and ín deposition and trial testimony in response try subpoenas. These are alI prr^tected activities. Accordingly, Lowrey ^r^et his burden to show the complaint arose from protected speech.") (citing CAL. COflE C^v. P^^oc. § 425.1^(e){1) (statements made "before a legislative, executive; or judicial proceeding, or any other of^eial proceeding authorized by law" are protected activity)} (emphasis added), G^llanisPc^litis v. Medina, 152 Cal. App. 4th 600, ^ 11 (Cal Ct. App. 2007) (holding that "investigation and report ...conducted and written ìn response to a request for information from" County official were "acts in furtherance of [defendants'] right of petition ar free speech," and, thus, protected by the SLAPP statute). 4 5 6 7 8 2. N© G©od Reas © n Exists to Exempt PÏaíntíffs ' Claims fra^c^^^ the Stat^te. Plaintiffs have not indicated whether they believe the SLAPP statute applies ín this case. I7 18 19 20 21 22 23 24 25 26 27 28 if they argue against its application, such arguments should be rejected. First, plaintiffs may argue that because they fled this lawsuit to protect their free speech rights------and not to interfere with defendants' rights and duties to spear.-the SLAPP statute should not apply. Such an argument would be misguided. The SLAPP statute applies even when plaintiff s lawsuit is not motivated by a desire to chill defendant's speech. See Dickens, 117 Cal. App. 4th 705 at 71 ^-17. Even if that were not the rule, plaintiffs clearly intend to silence defendants: they seek "injunctive relief to stop any further disclosures of user information" to the PRC. Cotr^pl. at 34. Second, plaintiffs might argue that SLAPP should not apply to communications with foreign law enforcement officials. However, plaintiffs assert clams based on California law against a California defendant and are, therefore, subject to California defenses. Moreover, co^-o ^ s cw YAHOOi'S ANT' -S.t,APF' MOT ON AND ^I'ROPOSBDI ORDER 5 Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 9 of 13 identical language in California's related litigation privilege statute, see CAL. C ^. Co©^ § 47{b); 2 3 4 S 6 7 8 has been held to apply to communications with foreign law enforcement officials. The Ninth Circuit has held that the anti-SLAPP statute f^^rthers "i^x^portant, substantive state interests," and should be applied to Cal^fornía claims absent a direct conflict with other laws. United States ex rel. ^^ewsl^am v. Lockheed missiles & Space Co., 190 ß.3d 963, 973 (9th Cir. 1999) {extending SLAPP statute's protection to California claims ín federal diversity actions). Although a court ín this district has recently concluded that the SLAPP statute may not apply to claims filed in another jurisdiction and governed by the substantive Ia^j of that jurisdiction, it recognized that the SLAPP statute does govern "cases where California substantive law was being applied." Schering Corp. v. First Dataßank, Inc., 2007 U.S. Dist. LEXÍS 50164 at *8 (N.D. Cal. Apr 20, 2007}. "Califa^r^^ía has a great interest in determining haw n^ uch pr^tectíon to give Galifarnia speakers" who are sued for California torts. Id. at * 17. Plaintiffs cannot claim the protections of Calífornía law but avoid its burden .^ Moreover, in determining the scope of the SLAPP statute's protections, California courts have often lacked to California Civil Cade sectien 47{b), which contains identical language. Though the conduct protected by tl^e twe statutes is oat identical, courts often examine "the scope of the litigation privilege to determine whether a given ca^x^munícatíon falls within the ambit of subdivisínn {e}(1) and {2} [of the SLAPP statute]." Flatley v. Mauro, 39 Cal. 4th 299, 322 (Cal. 2006); see ^1so Dickens, 117 Cal. App. 4th at 715 ("because the defendants' cand^^ct would have been pz^víleged under Cívíl Cade section 47 subsection (b), it mould have necessarily beery protected activity under section 425.16") (emphasis added); Sylmar Air Conditioning v. P^^e^Io Contrasting Servs., 122 Cal. App. 4th 1049, 1058 {Cal Ct. App. 2004) ("Communications within z Indeed, one lllinois federal court held that, "because California has a great interest in determining :how much protection to g^^e California speakers," the SLAPP statute may apdy to protect California defendants egen where another state's substantive law does govern the underlying action. See Global Relief Found. v. IVe^^ Y^^rk Times C©., 2002 U.S. Dist. LEXIS 1708I at *32-33 (N.D. Ill 2002) {holding that California defenses to defamation, including SLAPP, applied even though defamation claim was otherwise governed by Ainois law) (citing RESTA3'EMENT (SEC©ND} ©F CONFLICTS § 145, crr^t. d {1971) ("[T]he local law of the state where the parties are domiciled, rather than the local law of the state of conflict and injury, may be applied to determine whether one party is immune from tort liability to the other."}). v^ -go o+.'s A^^^^- s^JA^P ^o^oN A^^^ lI'ROFOSED^ ORDER C07-O2 5 ^ CW -6- Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 10 of 13 1 2 ^ the prntectia^ of the lítígat^on prívilege of Cívíl Code section 47, subdivisia^ (b) axe equally entitled to the benefits of sectío^ 425. ^ 6. "); Conten^p^r^ry Services Corp. v. St^^ff f'r^ Inc.. 152 Cal. App. 4th. 1.043, ^ 05 5 ( Cal. App. 2007 ) (" Bath sectia^ 425. ^ 6 and Cívíl Code settian 47 are construed broadly, to protect the right af litigants ta the ui ^ ost freedom of access to the courts without the) fear of berg harassed subsequently by derivative tort act^nr^s. Thus , ít bas been established for well aver a century that a co^nmunícatia^ is absolutely í^^^x^une from any tort liability íf it has ` same relation' to judicial proceedings."), but see Fl^tley, 39 Cal. 4th at 322-23 {finding an ínsta^ce where the protections did moot overlap because the purpose of the SLAPP statute was gat served by protecting activities conclusively established to be crimes). 4 5 6 Section 47(b) has been. held to apply to co^nmu^ícatín^s abroad . See Berrz v. Wahl, 84 Cal. App. 4íh 485 494-95 {Cal. Ct. App. Z0ß0), E. & J. Gaily Winery v. Andinu I ic^res, S.A., Case No. CV F 05-0101, 2006 U.S. RIST . LEXIS 47206, at *24 {E.D. Cal. June 30 , 2006}. In Beroiz, 84 Ca. App. 4th at 490- 91, for example , the defendant was an Amerícaz cítí^en living in Mexico who fled criminal charges agaí^st Amerícar^ members of a Mexican homeowners' association . The members of the homeowners' assoc^atío^ sued the defendant in California court for defamatío^ based o^ statements made to a Mexican district attorney. See ich ^n ruling that section 47(b) applied, the court soted that the gi^estíon was an issue of first ímpressío^^ i^ California, but both out-of state preeede^ts aid the public policy ratío^ales supporting section 47{b) argued strongly i^ favor of applying it broadly to shield defendants from suit. See id. at 909-I2. Similarly , ire E. åc J. Gallo, Andina sued Gallo i ^ Ecuador for breach of co^traet. See 2ßO U.S. Dist . LEXIS at * 1-9. Gallo then sued Andina ín California for declaratory relief, breach of co^traet , unfair competition, and abuse of process. See id. Relying a^ I3er^^ìz, E. ^^ J. Gall held that stateme^ts made in co^nectíon with foreign legal proceedings were protected under sect^o^ 47(b). See i d. at *Z^-28 ^ ^ Bath courts said that if the fareíg^ legal system was "devoid of adequate procedural safeguards," and defendants used the foreign legal process as a means and with the í^te^t to harm plaintiffs, then the absolute prívilege afforded by § 47{b) ^x^íght not apply. See id.; see Beroiz, 84 Cal. App. 4th at 494-96. But where, as here, there is ^n cíaím that defenda ^ts acted with malice, the prívilege applies to co^^rr^u^icatíons outside the state. 28 c^^-oz ^ s ^ cw YAHOO!'S ANTI-SLAPP MOTION AND iPROPOSEDI ORDI^R -7- Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 11 of 13 Indeed, American courts generally have refused to allow plaintiffs to hold defendants liable for engaging in conduct abroad that wat^ld be protected speech here. See, e.g., Bachdran v. 3 4 5 IndiaA^road Publ'^s, Inc., 585 N.Y.S. 2d ^^1, ^^4-65 (N.Y. Sup. Ct. 1992) (where plaintiff fled suit in BLS. to enforce foreign libel judgment, court refused to enforce judgment because foreign tribunal had not provided defendant with various substantive and procedural free speech defenses).4 And courts ín numerous eountriess and virtually every state privilege ^ See also Ber©iz, $4 Cal. App. 4th at 494: In Va^derkam v. Clarke {S. D.Tex. 1998} 993 F. Supp. 1031 , l0á1 -1032, the executive director of ascandal - ridden Irish corporation brought an action against a lawyer appointed by the High Court of Ireland. to investigate the corporation , alleging that the lawyer ' s communícatinn of his official findings had defamed the director. The district court i^ Vanderkam held that the lawyer ' s conduct was absolutely privileged, reasoning that the lawyer had published his f^ndíngs as ordered by the Irish court, and that under Texas law, la^,^}^ers are privíleged to publish otherwise defamatory rr^ateríal in connection with a judicial proceeding. {Id. at p. 1032.) Similarly , ín Sorge v. City of New York ( 1968) 56 Misc . 2d 414, 41 S [288 N.Y.S2d 78 7, 790-791 ], two police offïeers in New York Cíty testíf^ed, at the request of the State Department of the United States, at a hearing before an Italian j udge regarding criminal activity ín Italy. When the officers were sued for defamation, the court in Serge held that their testimony during the Italian judicial proceeding was absolutely privíleged under New York Iaw. ( 28 8 N. ^ .S.2d at pp. 798-799.} Finally , in I3akhsh^ndeh v. American Cy^^amid Company {S.D.N.Y. 1962) 211 F. Supp. 8 03, $04 , an Iranian citizen sued an Azr^erícan co^poratíon fnr defamation, alleging , inter olio , that the corporation ` s employees had rr^ade defamatory remarks to an Iranian governmental official ín Tehran. Citing primarily New York law , the district court ín Bakhshandeh determined that these remarks to the Iranian official were subject to a qualified privilege, a^d thus they were not actionable absent proof of malice. { Íd. at pp. 808 - 809.). ^ See, e.g., Mangy v. O'Neill (1997) 191 C.L.R. 204 at 216 {Austl.} {"Complaints to prosecuting authorities-`statements in aid of justice', as they are sometí^x^es called----enjoy qualíf^ed privilege.")); Ple^u v. Simpsons-Sears Ltd., (1 976) 15 O.R. 2d 436 {Ont. C.A.) at ^¡l^ (Qualified privilege applied to defendant's publication of a notice to employees regarding possible forged checks bearing plaintiff s carne; reasoning that ut^lísed staterreni was privileged because defendant "acted at the request of the local police"); Lupee v. Hogan, (1920) 47 N.B.R, 492 {N.B. GA.) at 9 {``universally recognized" rule that "all material statements made by persons interested ín the detection of a crime during their investígatíons, and material thereto, are privíleged"}; Padmore v. Lawrende, 11 Ad. & El. 380, 382 {K.B. 1840) (Coleridge, J.) {Great Britain: "For the sake ^f public justice, charges and communícatíans, which would otherwise be slanderous, are protected íf bona fide made ín the prosecution of in^uíry into suspected crime."); Martin v, Watson, [1 994] Q.B. 425 at p. 437 (Great Britain: "[Q]ualified privilege , ..applies to a statement made to a pnlíce officer by way of reporting a complaint."); Susanna Frederick Fischer, Retrink^^g Sullivan, 34 Geo. Wash Int'1 L. Rev. 101 , 11 8-2^ {2002) (English law privileges "statement[s] ^x^ade to the police concerning the cnmmíssion of a crime"; noting that the laws ^f Australia, New Zealand. and England are similar; showing that statutory deaelopments ín all three countries have not changed the cormm^n law privilege for communications to police}; Hardaker v. Phillips, 2005 {4) SAS 1 S {S. Afr.) {discussing qualified privilege that attaches to witness statements ^r^ ongoing prosecutorial proceedings). C07-0215 ^ C W YAHOO!'S ANTI-SLAPP MOTION AND 1PROPOSEDI ORD.^R. -8- ^ 7 8 Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 12 of 13 communications to law enforcement. In short, the SLAPP statute---ïíke sectí©n 47(b)----shoul be 2 3 4 5 b 7 read broadly to apply ín this case. 3. Finally, plaintiffs may not argue that their claims under Business & Pr^fessio^-^ Code section 17204 are exempt i^om the SLAPP statute. California Code of Civil Procedure section 425.17 exempts clams "brought solely ín the public interest" when the "plaintiff does not seek any relief greater than or different from the relief sought for the general public." Cat,. Ca^E Ctv. P^oc. § 425.17(b), {b)(1} (emphasis added.} Although plaintiffs advert to the "public interest" í^ describing their section 1 7204 clai x s, Compl. ¶ 119, they concede that they "bang this cause of action on behalf of themselves" and "seek compensation for the .loss ^^f their property and the per ^s^n^l,fin^^ci^l impacts they have suffered," id. {emphasis added). As a result, section 425.17 does not exempt their claims. See, e.g., Ingels v. West^-^^^^d One Broad. Servs., Inc., 129 Cal. App. 4th 1050, 1Qá7 (Ca.l. Ct. App. 2005) {"b]ecause appellant alleges and seeks recovery of damages personal to himself, his claim fails to meet the first requirement set out 27 28 ^ See General Elec. Ca. v. Sargent & .Lundy, 91^ F.2d 1119, 1125-27 (^tb Cir. 1990) (Kentucky); Birg v. Boas, 2^ 1 F.2d 788, 794 (9th Cír. 1956) (.Idaho); Kaherm^nes v. Marchese, âb l F. Sapp. 168, 172 (E.D. Pa. 1973); Marsh v. Commercial ^^ Sav. Bank v¡Winchester, Ya., 265 F. Supp. 614, 621 (W.D. Va. 1967}; Cutts v. Anz. United Life Ins. Cv., 505 So. 2d 121 1, 1 215 (Ala. 19$7); Mï11er v. Nuckalls, 91 S.W. 759, 761, 762 (Ark 1905); Kress v. Self, 526 P.2d 754, 756 (Ariz. Ct. Appl. 1974); Burke v. Greene, 9^3 P.2d 1119, 1122 {Coln. 1998); Fl^n^gan v. McLane, 87 Conn. 220, 87 A. 727, 728 (1913), Newark Trust C^. v. Bruwer, 141 A.2d 615, 617 {Del. 195$}; Frrdovich v. Frádvvách, 598 S©. 2d 65, 67, 68 (Fla. 1992); Hard^tivay v. Sherman Enters., Inc., 210 S.E.2d 363, 364 {Ga. 1.974); Starnes v. Ia^t'1 Harvester Co., 539 N.E.2d ^ 372-75 (lll. 4th Díst. 1989); Indiana Nit. Bank v. Chapman, 482 N.E.2d 474, 479 (Ind. Ct. App. 4th Díst. 1980; Wrnckel v. Vora Maur Inc., 652 N.W.2d 453 (Iowa 2002}; Faber v. Byrle, 229 P.2d 718 (Kan. 1951); Cormier v. Blake, 198 So. 2d I39, 144 (La. Ct. App. 3d Cir. 1967}; Robinson v. ^^n Auken, 7^ N.E. 601, X02 (Mass. 1906}; Packar°d v. Central Mine Poti^er C^., 477 A.2d 264, 268 (Me. 1 9$4}; Kefgen v. Davidson, X17 N.W.2d 351 (Mich. Ct. App. 2000); Samts v. Wal-M^rt Styes, Inc., 525 N.W2d 554, 557 {Minn. Ct. App. 1994); Arnold v. Quillian, 262 So. 2d 414, 415 (Miss. 1972); Hancock v. Blackwell, 41 S.W. 205, 207 {Mo. 1 .897); Pierce v. Card, 37 N.W. 677, X79 {Neb. 188$); H^^npe v. Foote, 47 Pad 438, 440 (Nev. 2002}; Dijkstra v. Westerrok, 4 01 A.2d 11.18-21 (N.J. App. Div. 1979}; Grvssm^n v. Frel^nd, 483 N.Y.S.2d 735, 736 {2d Dep't 1985}; Averrtt v. Rozrer, 45S S.E.2d 26 {N.C. 1995); Richmond v, N^dl^nd, 552 N.W.2d 58^ {N.^D. 1996}; l'^ram^unt Supply C^. v. Sherlrn Corp.; 1^ Ohio App. 3d 17^ {8th Dist. Cuyahoga County 1984); Magness v. Pledger, 334 P.2d 792, 795 (Okla. 1959); Duc^sín v. Mvtt, 642 P.2d 1168, 1 .169-70 {Or. 1982); Sylvester v. D'Ambra, 54 A.2d 418, 420 (R.I. 1947); .More v. Bc^dey, 628 S.W.2d 431, 436 (Tenn. Ct. App. 1981); Hott v. Yarbrough, 245 S.W. 676, 678, 679 (Tex. Comm'n App. 1922}; Schupp v. Smith, 457 S.E.2d 42 {Vt. 1.995); Story v. Smelter Bay Co., 760 P.2d 368, 372-73 (Wash App. Dív. 1 1988); Otters v. Schutt, 1 13 N.W.2d X52, 156 {Wis. 1962}; Lever v. Cmty. First Banestates, 9$9 P2d 634 (Wyo. 1999); C^lumbi^ First Bank v. Ferg^^s^n, 665 A.2d 650 (D.C. 1995). C07-02151 C W YAHOO!'S ANTI-SLAPP MpTI©N AND [PROPOSEDI ORDER -9- Case 4:07-cv-02151-CW Document 76 Filed 08/27/2007 Page 13 of 13 in section 425.17, subdivision 2 B. (bj "j. Plainntiffs Claims Are Barred b Civil Cade Section 47 b . 3 4 5 ^ 7 Because Yahoo! has spawn the SLAPP statute applies, plaintiffs bear the burden to show each of their six California claims ís cagnízable. See Navellier, 29 Cal. 4th at 88. Plaintiffs' Cahfarnia claims fall as a matter of law, as fully addressed in Yaho©f's concurrently filed motion to dismiss. See Mat. at 27-^1, ^5-36. One infirmity that pervades each of plaintiffs' Calífarnia claims-and the one most closely tied to the ar^tí-SLAPP statute-ís the prívílege afforded by Civil Cade section 47(bj. See id. at 18-19. The privilege, as noted above, ís read broadly by Californian caurts to shield defendants fram liability for communicating with Iaw enforcement officials. See Johnson, Sß F. Supp. 2d at 1110. Thai privilege applies to coznuz^ícations in the United States and abroad. See Beroiz, 84 Cal. App. at 494-95; E. d^ J. Galls Winery, 2006 U.S. DIST. LEXIS 47206, at *24. And it^at prívílege is an absolute bar to plaintiffs' six Califarnía claims. See More v. Conliffe, 7 Cal. 4th X34, 638 n.l (Cal. 1994) ("Alihouglz the prot^ctian afforded by the statute is commonly denaminated ^ `prívilege,' which creates a `privileged cammunicatian,' section 47(bj does not create an evidentiary prívílege that protects a communícatian from co^x^pelled disclasure. Instead, the section 47(bj prívílege operates as a l^mítat^an an liability, precluding use of tl^e pratected communications and statements as the basis for a tort action. other than far malicious prosecution. Thus, section 47(bj creates what ín many other contexts is termed an `immunity' froze suit."). I^. C4NCLUS114N I^or the foregoing reasons, Yahaal's anti-SLAPP motion should be granted and plaintiffs' six causes of action brought under California law tlzeír I^ífth through Tenth Claims for Relíefshould be immediately stricken from plaintiffs' Second Amended Complaint. Dated: July 27, 2007 DANIEL M. PETROCELLI MATTHEW T. KLINE O'MEL^ENY & MYERS L,LP S· aviel M. Petrocelli Attorneys for Defendant YAHOOi. INC. cal-©^ ^ s I cw YAHOO'S AN^'I-SLAPP MOTIUN AND (PROP05EDj ORDER - 10 -

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