Rightscorp 2

Case 2:14-cv-09032-DSF-JCG Document 30-1 Filed 03/30/15 Page 1 of 27 Page ID #:291
1 SANFORD L. MICHELMAN, ESQ., SBN 179702

2 (smichelman@mrllp.com)
MONA Z. HANNA, ESQ., SBN 131439
3 (mhanna@mrllp.com)
4 JESSE J. CONTRERAS, ESQ., SBN 190538
(jcontreras@mrllp.com)
5 MICHELMAN & ROBINSON, LLP
th
6 15760 Ventura Boulevard, 5 Floor
Encino, CA 91436
7
Telephone: (818) 783-5530
8 Facsimile: (818) 783-5507
9
Attorneys for Defendants Rightscorp, Inc., Christopher Sabec,

10 Robert Steele, Craig Harmon, and Dennis J. Hawk
11
UNITED STATES DISTRICT COURT
12
CENTRAL DISTRICT OF CALIFORNIA
13
14 John Blaha,* individually and on behalf

15 of others similarly situated,
16
17
Plaintiff,
Case No.: 2:14-cv-9032-DSF-(JCGx)

Assigned to: Hon. Dale S. Fischer
United States District Judge
v.
DEFENDANTS MEMORANDUM
OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO
STRIKE SECOND CAUSE OF
ACTION PURSUANT TO CAL.
CIV. PROC. CODE 425.16 AND
TO DISMISS SECOND CAUSE OF
ACTION PURSUANT TO FRCP
RULE 12(b)(6)
Date:
May 11, 2015
Time:
8:30 a.m.
Courtroom:
840
18 Rightscorp, Inc., a Nevada Corporation,

formerly known as Stevia Agritech
19
Corp.; Rightscorp, Inc., a Delaware
20 Corporation; Christopher Sabec, an
21 individual; Robert Steele, an individual;
Craig Harmon, an individual; Dennis J.
22 Hawk, an individual; BMG Rights
23 Management (US) LLC; Warner Bros.
Entertainment Inc.; and John Does 1
24 to 10,
25
Defendants.
26
[*Previously captioned with Karen J.
Complaint Filed: November 21, 2014
27 Reif and Isaac Nesmith as lead plaintiffs] Trial Date:
Not yet set
28
388790
-1DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION TO STRIKE AND MOTION TO DISMISS
TABLE OF CONTENTS
2
3 I.
4 II.
INTRODUCTION ...........................................................................................1
A.
Rightscorp Helps Enforce its Clients Copyrights ................................2
B.
Procedural History.................................................................................4
7 III.
PLAINTIFFS EFFORTS TO CHILL DEFENDANTS PETITIONING

CONDUCT IS PROHIBITED BY CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 425.16. ..................................................................5
8
9
FACTUAL BACKGROUND..........................................................................2
A.
The Applicable Law on a Special Motion to Strike ..............................5
B.
Step 1: Plaintiffs Claim That Rightscorp Misused DMCA Subpoenas

Arises in Connection with Protected Activity.......................................7
C.
13
Step 2: Plaintiff Has No Reasonable Probability of Prevailing on

His Abuse of Process Claim ..................................................................8
14
1.
10
11
12
15
16
17
18
19
20
21
Plaintiff Failed To State A Claim For Abuse Of Process. ..........8

a)
Plaintiff Failed to Allege Misuse of the DMCA Subpoena

Process. .............................................................................9
b)
An Abuse of Process Claim Cannot Be Used to

Challenge Alleged Discovery Violations In An
Underlying Proceeding. ..................................................13
2.
A Litigants Efforts To Obtain A Subpoena Are Shielded By

The Litigation Privilege. ...........................................................15
3.
There Is No Federal Claim for Abuse of Process Plaintiffs

Claims Arise, and Fall, Solely Under California Law. .............17
22
D.
23 IV.
PLAINTIFFS ABUSE OF PROCESS CLAIM MUST ALSO BE

DISMISSED UNDER FEDERAL RULE OF CIVIL PROCEDURE
12(b)(6). .........................................................................................................19
24
25
26
V.
Attorneys Fees and Costs Must Be Awarded. ...................................19
CONCLUSION..............................................................................................20
27
28
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-iDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION TO DISMISS
TABLE OF AUTHORITIES
2
3
4
Cases
Adams v. Superior Court,
5
6
2 Cal.App.4th 521 (1992) .............................................................................. 10, 19
7 Balistreri v. Pacifica Police Dept.,

8
9
901 F.2d 696 (9th Cir. 1988) ................................................................................20

Berisic v. Winckelman,
10
11
2003 WL 21714930 (S.D.N.Y. July 23, 2003) ............................................. 17, 18
12 Block v. Sacramento Clinical Labs, Inc.,

13
14
15
16
131 Cal.App.3d 386 (1982) .................................................................................16

Booker v. Rountree,
155 Cal.App.4th 1366 (2007) .................................................................................7
17 Coleman v. Gulf Ins. Group,

18
19
20
21
41 Cal.3d 782 (1986) ............................................................................................14

Daniels v. Robbins,
182 Cal. App. 4th 204 (2010) ...............................................................................12
22 Eastern Indus., Inc. v. Joseph Ciccone & Sons, Inc.,

23
532 F.Supp. 726 (E.D. Pa.1982)...........................................................................18
24
25
26
Falls Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP,

281 Conn. 84 (2007) .............................................................................................13
27 Fid. Nat. Fin., Inc. v. Friedman,

28
855 F.Supp.2d 948 (D. Ariz. 2012) ......................................................................11
388790
-iiDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

1 Fisher v. White,
2
3
4
5
715 F.Supp. 37 (E.D.N.Y. 1989) ..........................................................................18

Flores v. Emerich & Fike,
416 F.Supp.2d 885 (E.D. Cal. 2006) ............................................................ passim
6 Franchise Tax Bd. v. Constr. Laborers Vacation Trust,

7
463 U.S. 1 (1983) .................................................................................................17
8
9
10
Guest v. Berardinelli,
145 N.M. 186 (Ct. App. 2008) .............................................................................12
11 Gunther v. Washington Cnty.,

12
623 F.2d 1303 (9th Cir. 1979) aff'd, 452 U.S. 161 (1981) ...................................11
13
Hilton v. Hallmark Cards,
14
599 F.3d 894 (9th Cir. 2010) ..............................................................................6, 7
15
16 Ileto v. Glock Inc.,
17
349 F.3d 1191 (9th Cir.2003) ...............................................................................19
18
In re Bah,
19
20
321 B.R. 41 (B.A.P. 9th Cir. 2005) ........................................................................6
21 In re Charter Commc'ns, Inc., Subpoena Enforcement Matter

22
393 F.3d 771 (8th Cir. 2005) ................................................................................11
23
24 Mosley v. Titus,
25
762 F.Supp.2d 1298 (D.N.M. 2010).....................................................................12
26 Olsen v. Harbison,
27
191 Cal.App.4th 325 (2010) .................................................................................16
28
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-iiiDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

1 Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc.,
2
3
4
5
42 Cal.3d 1157 (1986) ..........................................................................................12

Pasant v. Jackson Nat. Life Ins. Co. of America,
751 F.Supp. 762 (N.D. Ill. 1990)..........................................................................14
6 Portman v. George McDonald Law Corp.,

7
99 Cal.App.3d 988 (1979) ....................................................................................16
8
9
10
Recording Industry Assn of America, Inc. v. Verizon Internet Services, Inc.,

351 F.3d 1229 (D.C. Cir. 2003) ...........................................................................11
11 Rogers v. Home Shopping Network, Inc.,

12
57 F.Supp.2d 973 (C.D. Cal. 1999) ..................................................................6, 19
13
Rubin v. Green,
14
4 Cal.4th 1187 (1993) ..........................................................................................15
15
16 Rusheen v. Cohen,
17
37 Cal.4th 1048 (2006) .....................................................................................9, 16
18
Signature Mgmt. Team, LLC v. Automattic, Inc.,
19
20
941 F.Supp.2d 1145 (N.D. Cal. 2013) .................................................................10
21 Silberg v. Anderson,
22
50 Cal.3d 205 (1990) ............................................................................................16
23
24 Silverstein v. E360INSIGHT, LLC,
25
2008 WL 1995217 (C.D. Cal. 2008) ..................................................................6, 7
26 Soukup v. Law Offices of Herbert Hafif,

27
39 Cal.4th 260 (2006) .............................................................................................6
28
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-ivDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

1 Spellens v. Spellens,
2
3
4
5
49 Cal.2d 210 (1957) ................................................................................. 9, 10, 19

Tarkowski v. County of Lake,
775 F.2d 173 (7th Cir. 1985) ................................................................................18
6 Tuck Beckstoffer Wines LLC v. Ultimate Distributors, Inc.,

7
682 F.Supp.2d 1003 (N.D. Cal. 2010) ...................................................................7
8
9
10
Voors v. National Women's Health Organization, Inc.,

611 F.Supp. 203 (N.D. Ind. 1985) ........................................................................18
11 Warren v. Wasserman, Comden & Casselman,

12
220 Cal.App.3d 1297 (1990) ................................................................................13
13
Wheeldin v. Wheeler,
14
373 U.S. 647 (1963) .............................................................................................17
15
16 Wise v. Thrifty Payless, Inc.,
17
83 Cal.App.4th 1296 (2000) .................................................................................16
18
Wong v. Tabor,
19
20
422 N.E.2d 1279 (Ind. Ct. App. 1981) .................................................................13
21 Zamos v. Stroud,
22
32 Cal. 4th 958 (2004) ..........................................................................................12
23
24 Statutes
25 Cal. Civ. Proc. Code 47(b) ............................................................................ passim
26 Cal. Civ. Proc. Code 425.16 ......................................................................... passim
27 Cal. Civ. Proc. Code 907 ......................................................................................14
28
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-vDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

1 Other Authorities
2 17 U.S.C. 512(h) ........................................................................................... passim
3 28 U.S.C. 1441(b) .................................................................................................17
4
Rules
5
Federal Rule of Civil Procedure 4(1) ................................................................ 17, 18
6
7 Federal Rule of Civil Procedure 11 .........................................................................13
8 Federal Rule of Civil Procedure 12(b)(6) ..................................................... 6, 19, 20
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
388790
-viDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

1 I.
INTRODUCTION
Plaintiffs Second Cause of Action in his First Amended Complaint
3 (FAC) asserts that defendants Rightscorp, Inc. (a Nevada Corporation),

4 Rightscorp, Inc. (a Delaware Corporation), Christopher Sabec, Robert Steele,
5 Craig Harmon and Dennis J. Hawk (collectively Defendants), committed abuse
6 of process by seeking to obtain subpoenas under the Digital Millennium Copyright
7 Act (DMCA). However, Plaintiffs claim impermissibly challenges Defendants
8 petitioning conduct, which is protected under Californias anti-SLAPP statute. The
9 Second Cause of Action is barred as a matter of law because: (1) the subpoena
10 complained of was used to identify a copyright infringer which is the express
11 purpose of DMCA subpoenas as interpreted by the courts of this Circuit and
12 therefore does not constitute an abuse of process; and (2) the conduct
13 complained of is protected under the litigation privilege under Cal. Civ. Code
14 47(b). Accordingly, Plaintiffs Second Cause of Action should be stricken or,
15 alternatively, dismissed.
16
The abuse of process claim should be dismissed under Californias anti-
17 SLAPP statute, as Plaintiffs attempt to recover damages from Defendants and

18 enjoin them from making further subpoena applications impermissibly impairs
19 Defendants free speech and petitioning rights. The imposition of the remedies
20 Plaintiff seeks is prohibited as it would unduly burden Defendants efforts to
21 invoke legal process to identify copyright violators who illegally distribute
22 Rightscorps clients protected works. As the California courts have consistently
23 held, claims attacking a defendants efforts to invoke the legal system are subject
24 to being automatically stricken under anti-SLAPP. Cal. Civ. Proc. Code
25 425.16(e). Plaintiff can only pursue such a claim if he can make a prima facie
26 showing of the validity of his claim. Here, Plaintiff cannot do so because the claim
27 is barred as a matter of law for two distinct reasons:
28
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First, Plaintiffs claim theorizes that a party misuses DMCA subpoenas

1 when such subpoenas are sought for the purpose of identifying a copyright
2 infringer. Since this is precisely the intended function of DMCA subpoenas, this
3 theory fails to give rise to a cognizable claim. Even if this was not the case, it is
4 well settled that the alleged discovery abuse in an underlying proceeding fails to
5 state a cause of action for abuse of process. As an extensive body of California
6 law establishes, the proper procedure for a Plaintiff allegedly aggrieved by a
7 subpoena to follow is to file a motion to quash in the case in which it was issued,
8 not to file a nation-wide class action in an entirely separate proceeding.
9
Second, even assuming, contrary to the law, that misuse of a subpoena could
10 constitute an abuse of process, Plaintiffs claim here is barred by the litigation

11 privilege. Californias broad litigation privilege immunizes lawyers and parties
12 from any liability arising from litigation-related communications.
Attorney
13 Hawks declaration submitted to the Clerk pursuant to 17 U.S.C. 512(h) is

14 precisely the type of litigation-related communication that is absolutely immunized
15 from any tort liability. Cal. Civ. Code 47(b).
16
Accordingly, Defendants motion to strike the Second Cause of Action
17 should be granted and Defendants should be awarded their attorneys fees.

18 Alternatively, because Plaintiffs abuse of process claim fails as a matter of law,
19 the Second Cause of Action should be dismissed with prejudice.
20 II.
FACTUAL BACKGROUND
21
A.
22
Defendant Rightscorp, Inc. (Rightscorp) is in the business of digital rights
Rightscorp Helps Enforce its Clients Copyrights
23 enforcement and works on behalf of copyright owners to identify online

24 infringements and to mitigate the damage caused by such infringers. FAC, 2825 29. Rightscorp has a patent-pending, proprietary technology for responding to
26 copyright infringement that identifies the unique internet addresses used by illegal
27 distributors of copyrighted music and videos. FAC, 28-29. Rightscorp then
28 uses this publicly available information to issue notifications to Internet Service
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1 Providers (ISPs), which Rightscorp in turn asks the ISPs to forward to their
2 customers (FAC, 29) customers who Rightscorp believes in good faith are
3 illegally distributing its clients copyrighted works. Plaintiff does not dispute that
4 the identified individuals, including Plaintiff, did in fact infringe protected
5 copyrighted material.
6
When such distributors of copyrighted content respond to Rightscorps
7 notices forwarded to them by their ISP, Rightscorp attempts to resolve the past
8 infringing conduct by offering to settle the past infringements on behalf of its
9 clients for $20 per infringement. FAC, 29. Distributors who agree to these
10 settlements obtain binding releases from the rightsholders, which fully resolve their
11 past infringing conduct. FAC, 33.
12
When such distributors of copyright content do not respond to Rightscorps
13 notices forwarded to them by their ISP, Rightscorp in certain instances will pursue
14 a DMCA subpoena (17 U.S.C. 512(h)) to the ISP to obtain the identity of alleged
15 infringers. Such a subpoena is at the heart of this lawsuit. As identified in
16 Paragraph 55 of the FAC, attorney Hawk submitted a declaration in support of the
17 issuance of a May 7, 2014 subpoena to Imon Communications LLC, along with
18 notices for 110 separate acts of copyright infringement based on the electronic
19 distribution of Rightscorps clients copyrighted works using IP addresses issued to
20 Imons subscribers. In Re: Subpoena to IMON Communications LLC, C.D. Cal.
21 Case No. 2:14-mc-00277 (In re Subpoena to IMON), Docket Nos. 1 and 2.
22 These acts of infringement by Imon subscribers included uploading and
23 distributing films such as The Shawshank Redemption, Gravity, and The Lord of
24 The Rings: The Fellowship of the Ring; television shows such as Supernatural, The
25 Big Bang Theory, and Two and a Half Men; and musical works by artists such as
26 Ellie Goulding, Demo Lovato, Eminem, and Johnny Cash. Contreras Dec., 2;
27 Exh. 1.
28
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With respect to Plaintiff Blaha, attorney Hawks declaration attached notices


#:301
1 that had been sent to Imon that identified uploads and distribution made by a
2 computer at IP address 207.191.209.13 (which Imon later identified as being
3 assigned to Blaha). In re Subpoena to IMON, Docket No. 2; Contreras Dec., 2;
4 Exh. 1. These included (i) an April 13, 2014 notice regarding the uploading and
5 distribution of the Big Bang Theory, Season 7, Episode 19, on April 6 and April 7,
6 2014; (ii) an April 19, 2014 notice regarding the uploading and distribution of the
7 musical track Shine by John Legend and The Roots on April 19, 2014, and the
8 musical tracks Clones and Dear God 2.0 by The Roots, on April 19, 2014; (iii)
9 an April 29, 2014 notice regarding the uploading and distribution of the Big Bang
10 Theory, Season 7, Episode 21, on April 29, 2014; and (iv) an April 30, 2014 notice
11 regarding a second instance of uploading and distributing the Big Bang Theory,
12 Season 7, Episode 21, on April 30, 2014. In re Subpoena to IMON, Docket No. 2;
13 Contreras Dec., 2; Exh. 2.
14
Although the FAC is drafted in a manner designed to distract from Plaintiff
15 Blahas infringing conduct, it is notable that nowhere in the FAC does Plaintiff
16 actually dispute that he engaged in the acts of copyright infringement identified in
17 Rightscorps notices. Indeed, Plaintiff concedes that Rightscorp sent the notices to
18 Imon precisely so that they could be forwarded to him. FAC, 54.
19
The above efforts of Rightscorp to identify Blaha and address his repeated
20 acts of copyright infringement prompted the instant action.

21
B.
22
The original complaint was filed on November 21, 2014, and proposed novel
Procedural History
23 claims on behalf of a putative nationwide class of copyright infringers who object

24 to defendant Rightscorps efforts on behalf of its music and motion picture
25 industry clients to (i) identify their misconduct, (ii) inform them that their
26 misconduct is being monitored, and (iii) advise them of a settlement option that
27 extinguishes thousands of dollars (in some cases, hundreds of thousands of dollars)
28 of potential liability.
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Following service of the original complaint, counsel met and conferred
2 pursuant to Local Rule 7-3 to discuss the deficiencies Defendants identified with
3 respect to the original complaint. Contreras Decl., 3-6 and Exhs. 3-4. As a
4 result of this meet and confer, putative class counsel conceded that claims
5 originally asserted under the federal and California Fair Debt Collection Practices
6 Act were without merit and withdrew them from the FAC. Contreras Decl., 5-6
7 and Exh. 4. Also in response to these meet and confer efforts, the FAC replaced
8 originally named plaintiff Karen Reif in favor of new plaintiff, John Blaha, to
9 momentarily avoid a potentially dispositive issue regarding consent with respect to
10 the TCPA claims. Exh. 3 at pp. 2-4. The significant consent issues relating to the
11 putative TCPA class will be taken up, if necessary, at the class certification stage.
12
With respect to the abuse of process claim, however, Plaintiff was unswayed
13 by extensive California authority establishing that Plaintiff has not and cannot
14 allege a cognizable claim for abuse of process. Nor was Plaintiff persuaded that
15 his abuse of process claim was both barred by Californias litigation privilege (Cal.
16 Civ. Code 47(b)) and subject to a special motion to strike under Californias anti17 SLAPP statute (Cal. Civ. Proc. Code 425.16). Exh. 3 at pp. 5-7. Plaintiff
18 disputes the applicability of these defenses, arguing that because his abuse of
19 process claim purportedly raises substantial federal questions, it is not subject to
20 Californias litigation privilege or anti-SLAPP statute, even though the claim is
21 asserted under California law. Plaintiffs unmeritorious arguments necessitated the
22 instant motion.
23 III.
PLAINTIFFS EFFORTS TO CHILL DEFENDANTS PETITIONING
24
CONDUCT IS PROHIBITED BY CALIFORNIA CODE OF CIVIL
25
PROCEDURE SECTION 425.16.
26
A.
27
The California Legislature enacted Californias Anti-Strategic Lawsuit
The Applicable Law on a Special Motion to Strike
28 Against Public Participation (Anti-SLAPP) statute, California Code of Civil
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1 Procedure Section 425.16, to prevent and deter lawsuits brought primarily to chill
2 the valid exercise of the constitutional rights of freedom of speech and petition for
3 the redress of grievances. Because these meritless lawsuits seek to deplete the
4 defendants energy and drain his or her resources, the Legislature sought to prevent
5 SLAPPs by ending them early and without great cost to the SLAPP target.
6 Silverstein v. E360INSIGHT, LLC, 2008 WL 1995217 (C.D. Cal. 2008) (quoting
7 Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260, 278 (2006)). See also
8 Rusheen, 37 Cal.4th at 1055-56. This statute allows a court to strike any state
9 claim arising from a defendants exercise of constitutionally-protected rights of
10 free speech or petition for redress and grievances. Silverstein, supra; Cal. Code
11 Civ. Proc. 425.16(b)(1). The anti-SLAPP statute is to be construed broadly.
12 Silverstein, supra; Cal. Code Civ. Proc. 425.16(a).
13
Defendants sued in federal court are entitled to bring anti-SLAPP motions to
14 strike State law claims. Silverstein, supra. SLAPP suits may be brought in federal
15 courts in response to pendent state law claims. In re Bah, 321 B.R. 41, 46 (B.A.P.
16 9th Cir. 2005) (application of the anti-SLAPP statute to pendent state law claims
17 is appropriate). As explained in Rogers v. Home Shopping Network, Inc., 57
18 F.Supp.2d 973, 983 (C.D. Cal. 1999), an anti-SLAPP special motion to strike that
19 is directed to the sufficiency of the complaint must be treated in the same manner
20 as a motion under Rule 12(b)(6) except that the attorneys fee provision of Section
21 425.16 applies.
22
Section 425.16(b)(1) establishes a two-step process for evaluating an anti-
23 SLAPP motion. Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010). The first
24 step asks whether Plaintiffs claims arise from protected activity, including
25 petitioning activity in furtherance of free speech. Id. at 903; Flores, 416 F.Supp.2d
26 at 896. The statute defines action in furtherance of a persons right of petition or
27 free speech under the United States or California Constitution in connection with a
28 public issue as including (1) any written or oral statement or writing made before
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1 a ... judicial proceeding or (2) any written or oral statement or writing made in
2 connection with an issue under consideration or review by a ... judicial body. Cal.
3 Civ. Proc. Code 426.16(b)(1) and (e); Hilton, 599 F.3d at 903; Flores, 416
4 F.Supp.2d at 895-896.
5
If the first step is satisfied, as it clearly is here, the second step requires that
6 the plaintiff must show a reasonable probability of prevailing in its claims for
7 those claims to survive dismissal. To do this, the plaintiff must demonstrate that
8 the complaint is legally sufficient and is supported by a prima facie showing of
9 facts to sustain a favorable judgment if the evidence submitted by the plaintiff is
10 credited. Silverstein, supra (internal citations and citations omitted); see also
11 Flores, 416 F.Supp.2d at 895-896.
12
13
14
B.
Step 1:
Plaintiffs Claim That Rightscorp Misused DMCA
Subpoenas Arises in Connection with Protected Activity

There is no question that Plaintiffs abuse of process claim arises from
15 protected speech or conduct. Abuse of process claims are deemed to arise out of
16 protected conduct as a matter of law.
17
The gravamen of [an abuse of process] claim is misconduct in the
18
underlying litigation. Indeed, that is the essence of the tort of abuse of
19
processsome misuse of process in a prior actionand it is hard to
20
imagine an abuse of process claim that would not fall under the
21
protection of the statute. Abuse of process claims are subject to a
22
special motion to strike.
23 Booker v. Rountree, 155 Cal.App.4th 1366, 1370 (2007). Accord Tuck Beckstoffer
24 Wines LLC v. Ultimate Distributors, Inc., 682 F.Supp.2d 1003, 1015 (N.D. Cal.
25 2010) (striking numerous causes of action, including abuse of process claim arising
26 out of alleged misuse of subpoenas, on determination that allegations which
27 included the anti-SLAPP statute protects any act in furtherance of a person's right
28 of petition or free speech, including, the service of subpoenas .).
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Here, Plaintiff is attacking Defendants right to petition courts in the Ninth
2 Circuit to issue DMCA subpoenas to identify copyright infringers. Such attacks

3 are prohibited in California if Plaintiff cannot establish a prima facie case at the
4 outset of litigation that California law prohibits Defendants efforts to obtain
5 DMCA subpoenas. Thus, the Second Cause of Action must be stricken because
6 Plaintiff cannot meet his burden of demonstrating his claim is legally sufficient.
7
8
9
C.
Step 2: Plaintiff Has No Reasonable Probability of Prevailing

on His Abuse of Process Claim
Plaintiff has not and cannot state a viable abuse of process claim, much less
10 one on which Plaintiff has a reasonable probability of prevailing. Plaintiff

11 cannot allege that Defendants sought Section 512(h) subpoenas for an improper
12 purpose and may not use such a claim to remedy an alleged abuse of a subpoena in
13 an underlying proceeding. Even if such a claim were properly stated, Defendants
14 efforts to obtain such subpoenas are protected by the litigation privilege. And
15 Plaintiff cannot circumvent these restrictions on its claims by pleading that his
16 abuse of process claim arises from federal rather than California law. The Second
17 Cause of Action is prohibited as a matter of law. As a result, Plaintiff cannot
18 establish a probability of success on the merits and the claim must be stricken.
19
20
1.
Plaintiff Failed To State A Claim For Abuse Of Process.
Plaintiffs Second Cause of Action seeks damages and injunctive relief
21 arising out of Rightscorps alleged abuse of the statutory subpoena provision under
22 the DMCA (17 U.S.C. 512(h)). FAC, 102. Specifically, Plaintiff alleges
23 Rightscorp has misused the Section 512(h) subpoena procedure because certain
24 decisions outside the Ninth Circuit have held that such subpoenas, when issued to
25 conduit service providers to obtain information about internet users engaged in
26 acts of infringement via peer-to-peer file sharing, do not satisfy the statutory
27 requirements of Section 512(h). FAC, 47. Thus, Plaintiffs abuse of process
28 claim is premised on the notion that Defendants are not permitted advocate that the
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1 courts of the Ninth Circuit adopt an interpretation of Section 512(h) of the DMCA
2 that permits issuance to conduit service providers, even though this issue has
3 been hotly contested in the courts and has never been resolved in this Circuit. Such
4 a position is frivolous.
5
a)
6
7
Plaintiff Failed to Allege Misuse of the DMCA

Subpoena Process.
The essence of Plaintiffs abuse of process claim is that attorney Hawk,
8 acting on behalf of Rightscorp and its clients, intentionally used the special
9 DMCA subpoena procedure to issue subpoenas that are invalid. FAC, 94.
10 Indeed, it is the pursuit of legally invalid subpoenas that Plaintiff claims gives
11 rise to liability for abuse of process. FAC, 94 and 96. But even if it were true
12 that Section 512(h) does not permit the issuance of subpoenas against conduit
13 service providers an issue that has never been considered by the Ninth Circuit
14 the mere utilization of legal process that one is not entitled to invoke does not
15 give rise to a derivative action for abuse of process.
16
To succeed in an action for abuse of process, a litigant must establish that
17 the defendant (1) contemplated an ulterior motive in using the process, and (2)
18 committed a willful act in the use of the process not proper in the regular conduct
19 of the proceedings. Rusheen v. Cohen, 37 Cal.4th 1048, 1057 (2006) (reversing
20 Court of Appeals failure to affirm trial court order striking abuse of process claim
21 prohibited by the litigation privilege, holding that such a claim was properly
22 stricken under anti-SLAPP statute). The gravamen of the misconduct for which
23 the liability stated in this section is imposed is not the wrongful procurement of
24 legal process or the wrongful initiation of criminal or civil proceedings; it is the
25 misuse of process, no matter how properly obtained, for any purpose other than
26 that which it was designed to accomplish. Spellens v. Spellens, 49 Cal.2d 210, 231
27 (1957) (emphasis added).
28
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The improper purpose usually takes the form of coercion to obtain a


#:307
collateral advantage, not properly involved in the proceeding itself,
such as the surrender of property or the payment of money, by the use
of the process as a threat or a club. There is, in other words, a form of
extortion, and it is what is done in the course of negotiation, rather
than the issuance or any formal use of the process itself, which
constitutes the tort.
7 Id. at 232-33 (emphasis added).

8
Thus, in order to properly plead an abuse of process, Plaintiff must allege
9 that Defendants used the DMCA subpoenas for an ulterior purpose than to identify
10 the infringers. No such allegations are found in the FAC. Rather, the FAC
11 concedes that the subpoena was used specifically for the purpose for which it was
12 designed; to identify the infringers. FAC, 94-95. Indeed, had a proper abuse of
13 process claim been stated it would not matter that Defendants sought legally
14 invalid subpoenas. The subsequent misuse of the process, though properly
15 obtained, constitutes the misconduct for which the liability is imposed. Spellens,
16 49 Cal.2d at 231 (emphasis added). Nothing of the sort is alleged here.
17
Instead, the gravamen of Plaintiffs claim is the allegation that the issued
18 subpoenas were legally invalid. FAC, 94. This is not sufficient. The gist of
19 the tort is the improper use of the process after it is issued. Adams v. Superior
20 Court, 2 Cal.App.4th 521, 531 (1992) (emphasis in original). It is absurd to
21 suggest that Defendants use of DMCA subpoenas to identify anonymous
22 copyright infringers is a misuse of Section 512(h). That is exactly the purpose of
23 the DMCA subpoena provision.
As is clear from the title of 512(h)
24 [s]ubpoena to identify infringer the purpose of a DMCA subpoena is to

25 identify a copyright infringer. Signature Mgmt. Team, LLC v. Automattic, Inc.,
26 941 F.Supp.2d 1145, 1152 (N.D. Cal. 2013) (emphasis added) (denying motion to
27 quash challenging issuance of DMCA subpoena on First Amendment grounds).
28 Using DMCA subpoenas to identify otherwise anonymous copyright infringers
388790


#:308
1 cannot possibly support a claim for abuse of process.

2
Plaintiff nonetheless insists it was impermissible for Rightscorp to pursue
3 the issuance of DMCA subpoenas to identify Blaha and respond to his repeated
4 acts of infringement, since In re Charter Commc'ns, Inc., Subpoena Enforcement
5 Matter (In re Charter Commc'ns), 393 F.3d 771, 776-78 (8th Cir. 2005) and
6 Recording Industry Assn of America, Inc. v. Verizon Internet Services, Inc., 351
7 F.3d 1229 (D.C. Cir. 2003) hold that DMCA subpoenas may not be issued to
8 conduit service providers. FAC, 47. But this is beside the point as the relevant
9 inquiry in an abuse of process is claim is not whether the process validly issued,
10 but whether it was abused. And even were this not the case, Plaintiffs argument
11 simply ignores that neither the Ninth Circuit nor district courts within the Ninth
12 Circuit are bound by these decisions. See, e.g., Gunther v. Washington Cnty., 623
13 F.2d 1303, 1319 (9th Cir. 1979) aff'd, 452 U.S. 161 (1981) (we are bound only by
14 decisions rendered in this circuit); Fid. Nat. Fin., Inc. v. Friedman, 855 F.Supp.2d
15 948, 969 (D. Ariz. 2012) (unlike Ninth Circuit case law, cases outside this Circuit
16 are not binding on this court).
17
Rightscorp believes a proper interpretation of the DMCA allows for the
18 issuance of subpoenas to conduit service providers, an interpretation that was

19 adopted by Judge Murphy in his dissent in Charter: Section 512(h) authorizes a
20 copyright owner or its representative to request a subpoena to a service provider in
21 order to identify infringers, and the statutory definition of service provider in
22 512(k) specifically includes conduit service providers. In re Charter Commc'ns,
23 393 F.3d at 778. Rightscorp has previously opposed motions to quash on this very
24 basis and has not been found to have acted unreasonably in doing so. For example,
25 in In Re Subpoena to Birch Communications, Inc., N.D. Ga. Case No. 1:14-cv26 03904-WSD, Docket No. 11 (December 8, 2014), while the magistrate judge
27 ultimately quashed the subpoena, she rejected a request for sanctions, stating:
28 Rightscorps interpretation of the terms and structure of 512(h), although not
388790


#:309
1 persuasive, is not frivolous, and the court does not find Rightscorps issuance of
2 the subpoena unreasonable. In Re Subpoena to Birch Communications, Docket
3 No. 18 (January 16, 2015) (emphasis added).
4
California law does not permit Plaintiff to use an abuse of process claim to
5 chill Rightscorps efforts to ask courts outside the Eighth and D.C. Circuits to
6 adopt an interpretation of the DMCA that allows for issuance of subpoenas to
7 conduit service providers. C.f. Zamos v. Stroud, 32 Cal. 4th 958, 970 (2004)
8 (Only those actions that any reasonable attorney would agree are totally and
9 completely without merit may form the basis for a malicious prosecution suit);
10 Daniels v. Robbins, 182 Cal. App. 4th 204, 216 (2010) (the mere filing or
11 maintenance of a lawsuiteven for an improper purposeis not a proper basis for
12 an abuse of process action quoting Oren Royal Oaks Venture v. Greenberg,
13 Bernhard, Weiss & Karma, Inc., 42 Cal.3d 1157, 1169 (1986)). And jurisdictions
14 throughout the United States recognize that derivative tort actions should not be
15 used to chill an attorneys zealous advocacy on behalf of a client. See, e.g., Mosley
16 v. Titus, 762 F.Supp.2d 1298, 1329 (D.N.M. 2010) (it would be inconsistent with
17 the attorneys professional duty to zealously advocate for their clients to hold
18 Titus liable for malicious abuse of process, when he had a reasonable belief based
19 on the facts and law known to him that he could enforce the rights of his clients
20 through the courts quoting Guest v. Berardinelli, 145 N.M. 186, 192 (Ct. App.
21 2008) (attorneys have some measure of freedom in representing their clients, and
22 we [do] not want to chill an attorneys vigorous representation of the client)).
23
Were we to conclude, for example, that a claim is unreasonable
24
wherever the law would clearly hold for the other side, we could stifle
25
the willingness of a lawyer to challenge established precedent in an
26
effort to change the law. The vitality of our common law system is
27
dependent upon the freedom of attorneys to pursue novel, although
28
potentially unsuccessful, legal theories.
388790


#:310
1 Wong v. Tabor, 422 N.E.2d 1279, 1288 (Ind. Ct. App. 1981) (emphasis added)
2 Accord Falls Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84,
3 104 (2007) (same).
4
Until the Ninth Circuit or a court in this district decides otherwise,
5 Rightscorp may properly advocate for issuance of DMCA subpoenas against

6 conduit ISPs in the Central District.
To find otherwise would allow parties
7 unhappy with legal arguments advocated by an opponent to bring abuse of process

8 claims to circumvent the safe-harbor provisions of FRCP Rule 11, which prohibits
9 the issuance of sanctions against an attorney pursuing claims, defenses, and other
10 legal contentions warranted by existing law or by a nonfrivolous argument for
11 extending, modifying, or reversing existing law or for establishing new law .
12 FRCP Rule 11(b)(2). Neither California nor federal law invites such mischief.
13
b)
An Abuse of Process Claim Cannot Be Used to
14
Challenge Alleged Discovery Violations In An
15
Underlying Proceeding.
16
Plaintiffs principal complaint that attorney Hawks declaration was
17 insufficient to justify issuance of the subpoena is a matter should have been

18 addressed in In re Subpoena to IMON, the underlying proceeding. [T]here were
19 adequate remedies to enforce the discovery rules in the prior case.
It is
20 impermissible to sue for prior violations of discovery rules in a subsequent

21 lawsuit. Flores v. Emerich & Fike, 416 F.Supp.2d 885, 907 (E.D. Cal. 2006)
22 (emphasis added) (granting special motion to strike abuse of process claim based
23 in part on alleged discovery misconduct in underlying litigation; At most, [the
24 abuse of process claim] suggest[s] a violation of civil discovery rules. Such a
25 violation on its own does not constitute an abuse of process.). Courts routinely
26 dismiss abuse of process claims premised on the use or misuse of discovery
27 in an underlying proceeding. See Warren v. Wasserman, Comden & Casselman,
28 220 Cal.App.3d 1297, 1301 (1990) (affirming judgment on demurrer finding that
388790


#:311
1 allegations of knowing pursuit of groundless cross-complaint and excessive

2 depositions failed to state cause of action for abuse of process); Flores, 416
3 F.Supp.2d at 905. See also Pasant v. Jackson Nat. Life Ins. Co. of America, 751
4 F.Supp. 762, 765 (N.D. Ill. 1990) (granting motion to dismiss abuse of process
5 claim arising out of [a]llegedly oppressive discovery since such conduct
6 standing alone will not provide the basis for an abuse of process claim.) (internal
7 quotations omitted).
8
During the Local Rule 7-3 meet and confer, Plaintiffs counsel argued that
9 Defendants view of abuse of process is overly constrained, and, relying on

10 Coleman v. Gulf Ins. Group, 41 Cal.3d 782, 792 (1986), asserted that the allegation
11 that the subpoenas were issued for the ulterior motive of improperly obtaining
12 contact information for the Abuse of Process Class, is enough to state an abuse of
13 process claim under California law. Contreras Dec., 5; Exh. 4 at p. 4. Plaintiffs
14 reliance on Coleman is misplaced.
15
Coleman does not hold that alleged discovery abuse can support a claim for
16 abuse of process. Instead, Coleman affirmed a judgment on demurrer dismissing a

17 novel attempt by a party to state a derivative cause of action for malicious
18 appeal. In affirming the trial courts determination, the Court rejected numerous
19 theories in support of the complaint, including abuse of process. As to that claim,
20 the Supreme Court unremarkably held that merely taking a frivolous appeal is not
21 enough to constitute an abuse of process. Id. at 792 (internal quotation and
22 citation omitted). More importantly, the Court observed that while defendants
23 alleged misconduct was clearly improper, the proper vehicle to address the
24 misconduct would have been a motion to sanction a frivolous appeal under
25 California Code of Civil Procedure Section 907, not a derivative action. Id. at 78926 90 (if plaintiffs had requested sanctions under section 907 in the initial appeal and
27 had established the facts alleged in the present complaint, the appellate court could
28 have awarded damages on this basis).
388790


#:312
Here, the proper procedure for challenging any alleged misuse of DMCA
2 subpoenas indeed, the only procedure was a motion to quash the subpoena in
3 the action in which it issued. There is no cognizable claim for abuse of process
4 based on applying for and serving the subpoenas, much less a derivative claim
5 asserted on behalf of an allegedly aggrieved class. Plaintiff has failed to state a
6 claim for abuse of process as a matter of law.
7
8
9
2.
A Litigants Efforts To Obtain A Subpoena Are Shielded By

The Litigation Privilege.
Californias litigation privilege offers an alternative and independent basis
10 for striking the Second Cause of Action. Because the gravamen of Plaintiffs
11 claim is the communicative act of filing a miscellaneous DMCA action (FAC,
12 93) to issue subpoenas that are legally invalid (FAC, 94), Defendants conduct
13 is shielded by the absolute immunity provided by the litigation privilege under
14 California Civil Code Section 47.
15
Civil Code Section 47(b) establishes the so-called litigation privilege,
16 which broadly protects any communication or communicative act made during any
17 official proceeding authorized by law:
18
A privileged publication or broadcast is one made: (a) In the proper
19
discharge of an official duty, or (b) In any (1) legislative proceeding,
20
(2) judicial proceeding, (3) in any other official proceeding authorized
21
by law, or (4) in the initiation or course of any other proceeding
22
authorized by law.
23
The litigation privilege is broadly construed and has been consistently
24 interpreted to prevent, as a matter of law, all secondary lawsuits which arise

25 solely from communications or communicative acts related to any proceeding
26 authorized by law. Rubin v. Green 4 Cal.4th 1187, 1196-98 (1993) (reversing
27 Court of Appeal and affirming trial courts sustaining of demurrer arising out of
28 claim founded on attorneys counseling of prospective clients). The principal
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#:313
1 purpose of [the privilege] is to afford litigants and witnesses the utmost freedom of
2 access to the courts without fear of being harassed subsequently by derivative tort
3 actions. Silberg v. Anderson, 50 Cal.3d 205, 213 (1990) (reversing failure to
4 sustain demurrer on grounds of litigation privilege). The privilege also gives
5 finality to judgments, and avoids unending litigation. Wise v. Thrifty Payless,
6 Inc., 83 Cal.App.4th 1296, 1302 (2000).
7
To that end, the privilege is broadly applied even where communication is
8 not pertinent, relevant, or material in a technical sense to any issue in the action; it
9 need only have some connection or relation to the proceedings. Portman v.
10 George McDonald Law Corp. 99 Cal.App.3d 988, 991-92 (1979). The privilege
11 covers not only communications made during an official proceeding, but also to
12 statements, communications, court filings, and other related communicative acts
13 made outside of the strict confines of the proceeding. Silberg, 50 Cal.3d at 212;
14 Block v. Sacramento Clinical Labs, Inc. 131 Cal.App.3d 386, 390-91 (1982).
15
California decisions make clear that the litigation privilege applies to
16 Plaintiffs claim. [S]ection 47(2) has been held to immunize defendants from tort
17 liability based on theories of abuse of process . Silberg, 50 Cal.3d at 215
18 (1990).
The [p]leadings and process in a case are generally viewed as
19 privileged communications. The privilege has been applied specifically in the

20 context of abuse of process claims . Rusheen, 37 Cal.4th at 1058 (emphasis
21 added; internal citation omitted). The breadth of the litigation privilege cannot be
22 understated. It immunizes defendants from virtually any tort liability (including
23 claims for fraud), with the sole exception of causes of action for malicious
24 prosecution. Olsen v. Harbison, 191 Cal.App.4th 325, 333 (2010).
25
The gravamen of Plaintiffs claim is attorney Hawks filing of a
26 miscellaneous DMCA action to obtain legally invalid subpoenas. FAC, 96.

27 Such a DMCA action is a petition to the Court. Such petitions are privileged. As a
28 result, Plaintiffs abuse of process claim fails as a matter of law.
388790


#:314
1
2
3
3.
There Is No Federal Claim for Abuse of Process Plaintiffs

Claims Arise, and Fall, Solely Under California Law.
Tacitly acknowledging that his claim should be stricken because it is barred
4 as a matter of California law, Plaintiff attempts to plead around these fatal flaws by
5 asserting that even though state law creates [Plaintiffs] cause of action for
6 abuse of process, the cause of action still arise[s] under the laws of the United
7 States because this well-pleaded complaint establish[es] that its right to relief
8 under state law requires resolution of a substantial question of federal law in
9 dispute between the parties. FAC, 20 (citing Franchise Tax Bd. v. Constr.
10 Laborers Vacation Trust, 463 U.S. 1, 13 (1983)).
11
When considering whether a federal question arises from an alleged abuse of
12 federal process, courts have routinely rejected such arguments, holding that
13 claims for abuse of federal process claims arise under state law. The Supreme
14 Court has explicitly stated, Congress has not ... left to federal courts the creation
15 of a federal common law for abuse of process. As such, it is clear that plaintiffs
16 cause of action arises out of state, not federal law. Berisic v. Winckelman, No. 03
17 CIV. 1810 (NRB), 2003 WL 21714930, at *2 (S.D.N.Y. July 23, 2003) (quoting
18 Wheeldin v. Wheeler, 373 U.S. 647, 651652 (1963)).
19
In Berisic, plaintiff filed a state court complaint alleging abuse of process
20 under New York law, claiming that a default judgment in an underlying lawsuit
21 was wrongfully obtained when defendants submitted a false affidavit under
22 Rule 4(1) of the Federal Rules of Civil Procedure. Defendants removed the case to
23 federal court, pursuant to 28 U.S.C. 1441(b), alleging that the abuse of process
24 claim raised a federal question. Plaintiff then moved to remand the claim to state
25 court, arguing the abuse of process claim raised no federal questions and that
26 removal had been improper. The district court agreed and remanded the abuse of
27 process action back to state court. Id. at **1-3.
28
388790
In opposition to the motion to remand, defendants argued that a federal


#:315
1 question arose because plaintiffs abuse of process claim requires a determination

2 of federal statutes, practice and procedure. Id. at *2. Specifically, defendants
3 argued that whether the underlying affidavit had been wrongfully submitted
4 required an interpretation of Rule 4(1). The district court, relying on a host of
5 federal authorities, found this argument had no merit. Id.
6
The sole issue is whether defendants are liable for abuse of
process.
definition of its abuse is governed by state law. [T]he analysis of
whether the defendants conduct was tortious and ill-motivated in no
10
way requires a construction of any federal statute, practice or
11
procedure.
While the process in question is federal process, the
12 Id. at **2-3 (emphasis added) (citing Tarkowski v. County of Lake, 775 F.2d 173,
13 174175 (7th Cir. 1985); Eastern Indus., Inc. v. Joseph Ciccone & Sons, Inc., 532
14 F.Supp. 726, 727728 (E.D. Pa.1982); Fisher v. White, 715 F.Supp. 37, 4142
15 (E.D.N.Y. 1989); Voors v. National Women's Health Organization, Inc., 611
16 F.Supp. 203, 207 (N.D. Ind. 1985)).
17
Notwithstanding these authorities, Plaintiff insists he has successfully
18 federalized his abuse of process claim by pleading it such that the Court will be
19 required to interpret and apply 17 U.S.C. 512(h) in determining whether attorney
20 Hawk misused DMCA subpoenas. FAC, 20. But this argument is no different
21 than that resoundingly rejected in Bersic as having no merit.
22
Plaintiffs federal abuse of process theory also underscores Plaintiffs
23 complete misunderstanding of the elements of a claim for abuse of process under

24 California law. Whether a party has tortuously abused process hinges on how the
25 party threatened to use the process or misused the process after it was obtained.
26 Whether a party is legally entitled to invoke the process giving rise to the abuse of
27 process claim is legally irrelevant. The gravamen of the misconduct for which
28 liability is imposed is not the wrongful procurement of legal process it is the
388790


#:316
1 misuse of process, no matter how properly obtained . Spellens, 49 Cal.2d at

2 231. The gist of the tort is the improper use of the process after it is issued.
3 Adams, 2 Cal.App.4th at 531 (emphasis in original).
4
Plaintiff claims that attorney Hawk obtained the subpoenas in question for
5 an improper purpose, namely to obtain personally identifiable information for

6 member of the Abuse of Process Class, that Rightscorp could then use as grist for
7 its national settlement mill. FAC, 94. As established in Section III.C.1.,
8 supra, this does not constitute a tortious ulterior motive in using the process.
9 But whether such a motive is tortious is determined exclusively under California
10 law. As a result, this is a California claim interpreted under California law subject
11 to California defenses, and Plaintiffs misguided attempt to federalize the claim
12 cannot save it from dismissal.
13
D.
14
Plaintiff was notified that his claim violated Californias anti-SLAPP statute
Attorneys Fees and Costs Must Be Awarded.
15 and was afforded an opportunity to withdraw the claim during the Local Rule 7-3
16 meet and confer. Contreras Dec., 4 and Exh. 3. Having forced Defendants to
17 bring the instant motion, the court must award attorneys fees and costs to a
18 successful anti-SLAPP movant. Cal. Civ. Code 425.16(c); Rogers, 57 F.Supp.2d
19 at 983. Should the Court determine that the Second Cause of Action must be
20 stricken pursuant to Cal. Civ. Code 425.16, Defendants will submit a separate
21 application supporting the amount of fees that should be awarded.
22 IV.
PLAINTIFFS ABUSE OF PROCESS CLAIM MUST ALSO BE
23
DISMISSED UNDER FEDERAL RULE OF CIVIL PROCEDURE
24
12(b)(6).
25
Defendants are entitled to an order dismissing the Second Cause of Action
26 with prejudice.
A motion to dismiss under Federal Rule of Civil Procedure
27 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Ileto v.
28 Glock Inc., 349 F.3d 1191, 1199200 (9th Cir.2003).
388790
Dismissal under Rule


#:317
1 12(b)(6) may be based on either the lack of a cognizable legal theory or on the
2 absence of sufficient facts alleged. Balistreri v. Pacifica Police Dept., 901 F.2d
3 696, 699 (9th Cir. 1988). As discussed above, Plaintiff has failed to allege any
4 cognizable theory of recovery.
5
Plaintiff has not and cannot state a viable abuse of process claim. Plaintiff
6 cannot allege that Defendants sought Section 512(h) subpoenas for an improper
7 purpose and may not use such a claim to remedy an alleged abuse of a subpoena in
8 an underlying proceeding. Section III.C.1., supra. Even if such a claim were
9 properly stated, Defendants efforts to obtain such subpoenas are protected by the
10 litigation privilege. Section III.C.2., supra. And Plaintiffs abuse of process claim
11 is resolved under California law. Section III.C.3., supra. As a result, Plaintiff
12 cannot establish a cognizable legal theory, since the Second Cause of Action is
13 prohibited as a matter of law.
14 V.
CONCLUSION
15
For the foregoing reasons, the Second Cause of Action for Abuse of Process
16 should be dismissed with prejudice and stricken pursuant to California Code of

17 Civil Procedure Section 425.16 and the Court should order further proceedings to
18 determine the amount of fees to be awarded to Defendants.
19
20 Dated: March 30, 2015
MICHELMAN & ROBINSON, LLP
21
By:
22
23
24
25
/S/ Jesse J. Contreras

Sanford L. Michelman, Esq.
Mona Z. Hanna, Esq.
Jesse J. Contreras, Esq.
Kristen Peters, Esq.
Attorneys for Defendants
26
27
28
388790


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Case 2:14-cv-09032-DSF-JCG Document 30-1 Filed 03/30/15 Page 1 of 27 Page ID #:291

1 SANFORD L. MICHELMAN, ESQ., SBN 179702

Attorneys for Defendants Rightscorp, Inc., Christopher Sabec,

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

14 John Blaha,* individually and on behalf

Case No.: 2:14-cv-9032-DSF-(JCGx)

18 Rightscorp, Inc., a Nevada Corporation,

-1DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

Case 2:14-cv-09032-DSF-JCG Document 30-1 Filed 03/30/15 Page 2 of 27 Page ID #:292

Rightscorp Helps Enforce its Clients Copyrights ................................2

PLAINTIFFS EFFORTS TO CHILL DEFENDANTS PETITIONING

The Applicable Law on a Special Motion to Strike ..............................5

Step 1: Plaintiffs Claim That Rightscorp Misused DMCA Subpoenas

Step 2: Plaintiff Has No Reasonable Probability of Prevailing on

Plaintiff Failed To State A Claim For Abuse Of Process. ..........8

Plaintiff Failed to Allege Misuse of the DMCA Subpoena

An Abuse of Process Claim Cannot Be Used to

A Litigants Efforts To Obtain A Subpoena Are Shielded By

There Is No Federal Claim for Abuse of Process Plaintiffs

PLAINTIFFS ABUSE OF PROCESS CLAIM MUST ALSO BE

Attorneys Fees and Costs Must Be Awarded. ...................................19

-iDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

Case 2:14-cv-09032-DSF-JCG Document 30-1 Filed 03/30/15 Page 3 of 27 Page ID #:293

2 Cal.App.4th 521 (1992) .............................................................................. 10, 19

7 Balistreri v. Pacifica Police Dept.,

901 F.2d 696 (9th Cir. 1988) ................................................................................20

2003 WL 21714930 (S.D.N.Y. July 23, 2003) ............................................. 17, 18

12 Block v. Sacramento Clinical Labs, Inc.,

131 Cal.App.3d 386 (1982) .................................................................................16

17 Coleman v. Gulf Ins. Group,

41 Cal.3d 782 (1986) ............................................................................................14

22 Eastern Indus., Inc. v. Joseph Ciccone & Sons, Inc.,

532 F.Supp. 726 (E.D. Pa.1982)...........................................................................18

Falls Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP,

27 Fid. Nat. Fin., Inc. v. Friedman,

-iiDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

Case 2:14-cv-09032-DSF-JCG Document 30-1 Filed 03/30/15 Page 4 of 27 Page ID #:294

715 F.Supp. 37 (E.D.N.Y. 1989) ..........................................................................18

6 Franchise Tax Bd. v. Constr. Laborers Vacation Trust,

463 U.S. 1 (1983) .................................................................................................17

11 Gunther v. Washington Cnty.,

321 B.R. 41 (B.A.P. 9th Cir. 2005) ........................................................................6

21 In re Charter Commc'ns, Inc., Subpoena Enforcement Matter

762 F.Supp.2d 1298 (D.N.M. 2010).....................................................................12

-iiiDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

Case 2:14-cv-09032-DSF-JCG Document 30-1 Filed 03/30/15 Page 5 of 27 Page ID #:295

42 Cal.3d 1157 (1986) ..........................................................................................12

6 Portman v. George McDonald Law Corp.,

99 Cal.App.3d 988 (1979) ....................................................................................16

Recording Industry Assn of America, Inc. v. Verizon Internet Services, Inc.,

11 Rogers v. Home Shopping Network, Inc.,

941 F.Supp.2d 1145 (N.D. Cal. 2013) .................................................................10

2008 WL 1995217 (C.D. Cal. 2008) ..................................................................6, 7

26 Soukup v. Law Offices of Herbert Hafif,

-ivDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES

Case 2:14-cv-09032-DSF-JCG Document 30-1 Filed 03/30/15 Page 6 of 27 Page ID #:296

49 Cal.2d 210 (1957) ................................................................................. 9, 10, 19

6 Tuck Beckstoffer Wines LLC v. Ultimate Distributors, Inc.,

682 F.Supp.2d 1003 (N.D. Cal. 2010) ...................................................................7

Voors v. National Women's Health Organization, Inc.,

11 Warren v. Wasserman, Comden & Casselman,

422 N.E.2d 1279 (Ind. Ct. App. 1981) .................................................................13

-vDEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES