Kinderstart.Com, LLC v. Google, Inc.

Filing 31

MOTION to Continue Anti-SLAPP Hearing filed by Kinderstart.Com, LLC. Motion Hearing set for 6/23/2006 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Exhibit 1 - Declaration of Gregory J. Yu# 2 Proposed Order Order Granting Continuance of Anti-SLAPP Hearing)(Yu, Gregory) (Filed on 6/16/2006)

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Kinderstart.Com, LLC v. Google, Inc. Doc. 31 Case 5:06-cv-02057-JF Document 31 Filed 06/16/2006 Page 1 of 3 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 Gregory J. Yu (State Bar No. 133955) GLOBAL LAW GROUP 2015 Pioneer Court, Suite P-1 San Mateo, CA 94403 Telephone: (650) 570-4140 Facsimile: (650) 570-4142 E-mail: glgroup [at] inreach [dot] com Attorney for Plaintiffs and Proposed Class and Subclasses UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 06-2057 JF KINDERSTART.COM LLC, a California limited liability company, on behalf of itself and all others similarly situated, PLAINTIFF'S ADMINISTRATIVE MOTION UNDER LOCAL RULE 7-7(b) Plaintiffs, TO CONTINUE DEFENDANT'S SPECIAL MOTION TO STRIKE v. PURSUANT TO CCP 425.16 CALENDARED FOR JUNE 30, 2006 GOOGLE, INC., a Delaware corporation, Defendant. FACTUAL AND PROCEDURAL BACKGROUND On May 2, 2006, Defendant Google noticed and filed its Special Motion ("Anti-SLAPP Motion") under California Code of Civil Procedure (CCP 425.16) to strike Counts One, Eight and Nine of the First Amended Class Action Complaint ("FACAC") of Plaintiff LLC ("KSC"). Count Eight is for Google's defamation and libel by means of PageRankTM devaluation of websites. During the week of June 2, 2006, Plaintiff verbally informed Defendant of its need for discovery in connection with the Anti-SLAPP Motion. On June 9, 2006, Plaintiff KSC timely filed its opposition with a conditional request for a continuance of the hearing and discovery by KSC of facts exclusively within Google's control essential to KSC's case in chief on Count Eight. On June 13, 2006, Plaintiff delivered a list of information required of Google to form the factual foundation for Plaintiffs' burden to demonstrate the probability of prevailing on PLAINTIFFS' MOTION UNDER L.R. 7-7 TO CONTINUE CCP 425.16 MOTION -1- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 31 Filed 06/16/2006 Page 2 of 3 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 the merits of Count Eight. On June 15, 2006, Google declined this request but did not promise a date certain to comply or respond. Declaration of Gregory J. Yu, attached hereto as Exhibit 1 ("Yu Dec."), 2-4. On June 16, 2006, KSC requested stipulations of Google to (1) allow acceleration of a discovery motion to allow KSC to conduct discovery on PageRank and (2) continue the anti-SLAPP motion hearing date until the discovery motion and discovery by KSC could be completed. Google declined both stipulations. Id., 5-6. Accordingly, Plaintiff KSC makes this administrative motion under Civil Local Rule ("L.R.") 7-7(b)(2)(B) for the continuance of Defendant's Anti-SLAPP Motion now calendared for June 30, 2006. This motion is made after the opposition to the defendant's motion where such motion is essentially one seeking summary judgment relief under L.R. 56-1. This administrative motion is concurrently filed with (1) Motion for Specified Discovery on Defamation and Libel, and (2) Motion under L.R. 6-3 to Shorten Time for the discovery motion. GROUNDS FOR THIS MOTION Under California Code of Civil Procedure ("CCP") 425.16(b)(1), an anti-SLAPP motion fails if "the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." As to all parties to an action, "[a]ll discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section." Id., 425.16(g). "The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." Id. California courts apply this exception to the discovery stay if the requirements are met under the statute. See e.g., Tuchscher Development Enterprises, Inc. v. San Diego Unified Port District , 106 Cal. App. 4th 1219, 1247, 132 Cal. Rptr. 2d 57 (2003). In federal court, however, anti-SLAPP is under a different regime. Within the Ninth Circuit, discovery cannot be blocked by a trial court in a summary proceeding as an anti-SLAPP procedure. In Metabolife International, Inc. v. Wornick, 264 F. 3d 832, 846 (9th Cir. 2001), the court held: "Because the discovery-limiting aspects of 425.16(f) and (g) collide with the discovery-allowing aspects of Rule [Fed. R. Civ. Pro.] 56, these aspects of subsections (f) and (g) cannot apply in federal court." (emphasis added) (quoting Rogers v. Home Shopping PLAINTIFFS' MOTION UNDER L.R. 7-7 TO CONTINUE CCP 425.16 MOTION -2- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 31 Filed 06/16/2006 Page 3 of 3 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 Network, Inc., 57 F. Supp. 2d 973, 982 (C.D. Cal. 1999)). Overall, the Ninth Circuit in Metabolife followed the Supreme Court's interpretation of Rule 56(f) that discovery is required "where the moving party has not had the opportunity to discover information that is essential to its opposition." Id., 264 F.3d at 846 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Plaintiffs' concurrently filed Motion for Specified Discovery argues that the means and method of computing PageRank for and all the Websites of other Class members are formulated and performed under Google's exclusive control. Plaintiff has no public access to such information. Therefore, a hearing and decision to grant Defendant's AntiSLAPP Motion as to Count Eight of the FACAC, defamation and libel, prior to gainful discovery by Plaintiff of key facts solely within Google's possession, violates Rule 56. Under Metabolife, the Ninth Circuit would surely conclude that the pending Anti-SLAPP motion is essentially one seeking summary judgment that requires discovery by the non-moving party. This motion was also necessary because after Plaintiff KSC requested Defendant Google for a stipulation to continue the hearing date for the Anti-SLAPP Motion, Google declined to so stipulate. See Yu Dec., 5. CONCLUSION In light of the above, the accompanying declaration of Gregory J. Yu, the documents and pleadings on file herein, Plaintiff KSC respectfully requests the Court to continue the AntiSLAPP Motion from June 30, 2006 to a later date to first allow for a hearing on Plaintiff's pending motion for discovery of PageRank concerning the defamation and libel count, as well as completion of proper, timely and meaningful discovery by Plaintiff for such specified purpose. Dated: June 16, 2006 GLOBAL LAW GROUP By: ____/s/ Gregory J. Yu____________ Gregory J. Yu, Esq. Attorney for Plaintiff LLC and for the proposed Class and Subclasses PLAINTIFFS' MOTION UNDER L.R. 7-7 TO CONTINUE CCP 425.16 MOTION -3- Case No. C 06-2057 JF

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