Case 2:15-cv-09593-SVW-JPR Document 18 Filed 01/20/16 Page 1 of 34 Page ID #:166

1 GLENN D. POMERANTZ (SBN 112503)
glenn.pomerantz@mto.com
2 MELINDA E. LEMOINE (SBN 235670)
melinda.lemoine@mto.com
LLP
3 MUNGER, TOLLES & OLSON
355 South Grand Avenue, 35th Fl.
4 Los Angeles, California 90071-1560
Telephone: (213) 683-9100
5 Facsimile: (213) 687-3702
6 ROSEMARIE T. RING (SBN 220769)
rosemarie.ring@mto.com
OLSON LLP
7 MUNGER, TOLLES &
560 Mission Street, 27th Fl.
8 San Francisco, CA 94105-2907
Telephone: (415) 512-4000
9 Facsimile: (415) 512-4977
10 Attorneys for Defendants BUENA VISTA
HOME ENTERTAINMENT, INC.; THE
11 WALT DISNEY COMPANY; WARNER
BROS. ENTERTAINMENT INC.;
12 WARNER BROS. HOME
ENTERTAINMENT INC.; UNIVERSAL
13 STUDIOS HOME ENTERTAINMENT
LLC; PARAMOUNT PICTURES
14 CORPORATION; SONY PICTURES
ENTERTAINMENT INC.; SONY
15 PICTURES HOME ENTERTAINMENT
INC.
16
UNITED STATES DISTRICT COURT
17
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
18
19

CHRISTINE ANTHONY, et al.,

20
21

Plaintiffs,
vs.

22

BUENA VISTA HOME
23 ENTERTAINMENT INC., et al.
24
25

Defendants.

Case No. 2:15-cv-09593-SVW-JPR
STUDIOS’ NOTICE OF MOTION
AND SPECIAL MOTION TO
STRIKE PURSUANT TO
CALIFORNIA ANTI-SLAPP
STATUTE, CAL. CODE OF CIV.
PROC. 425.16 ET SEQ.
Date: March 21, 2016
Time: 1:30 pm
Place: Courtroom 6, 2nd Floor
Judge: Hon. Stephen V. Wilson

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STUDIOS’ SPECIAL MOTION TO STRIKE PURSUANT TO CAL. ANTI-SLAPP STATUTE

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1
2

NOTICE OF MOTION AND MOTION
PLEASE TAKE NOTICE that on March 21, 2016 or as soon thereafter as the

3 matter may be heard, in Courtroom No. 6, United States Courthouse, 255 East
4 Temple Street, Los Angeles, California 90012, before the Honorable Stephen V.
5 Wilson, Defendants Buena Vista Home Entertainment, Inc.; The Walt Disney
6 Company; Warner Bros. Entertainment Inc., erroneously sued as Warner Bros.
7 Entertainment, Inc.; Warner Bros. Home Entertainment Inc., erroneously sued as
8 Warner Home Entertainment, Inc.; Universal Studios Home Entertainment LLC;
9 Paramount Pictures Corporation; Sony Pictures Entertainment Inc., and Sony
10 Pictures Home Entertainment Inc. (the “Studios”) will, and hereby do, move the
11 Court to strike the Complaint in its entirety pursuant to California’s anti-SLAPP
12 statute, California Code of Civil Procedure § 425.16.
13

This Motion is based upon this Notice of Motion; the attached Memorandum

14 of Points and Authorities; Plaintiffs’ Complaint; and any argument at a hearing of
15 this matter.
16

The Motion is made following the conference of counsel pursuant to Local

17 Rule 7-3, which took place on January 12, 2016.
18
19
20
21
22
23
24
25
26
27
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TABLE OF CONTENTS

1
2

Page

3
4 I.
5 II.

INTRODUCTION ............................................................................................. 1

6

A.

Methods of Distribution for Movies and TV Programs.......................... 4

7

B.

Captioning and Subtitling in Movies and TV Programs. ....................... 4

8

C.

The Boltz Settlement. .............................................................................. 7

9

D.

Claims in This Case. ............................................................................... 9

BACKGROUND ............................................................................................... 4

10 III.

ARGUMENT .................................................................................................... 9

11

A.

12

Step One: Plaintiffs’ Claims Arise from Acts in Furtherance of
the Right to Free Speech in Connection with a Public Issue. ............... 10
1.

Captioning Constitutes an “Act in Furtherance” of the
Right to Free Speech. .................................................................. 11

2.

Captioning Is “in Connection with a Public Issue or an
Issue of Public Interest.” ............................................................. 14

13
14
15

B.

16

Step Two: Plaintiffs Will Not Be Able to Demonstrate a
Probability of Prevailing on Each of Their Claims............................... 16

17

1.

18

Plaintiffs’ Misrepresentation Claims Will Not Succeed. ........... 16
a.

Plaintiffs Cannot Prove Any Misrepresentation by
the Studios That Is “Likely to Deceive” Reasonable
Consumers. ....................................................................... 16

b.

Plaintiffs Cannot Prove Reliance. .................................... 20

19
20
2.

21
22
23
24
25
26

3.
IV.

Plaintiffs’ Warranty Claims Will Not Succeed. ......................... 21
a.

Implied Warranties Do Not Apply to the Claims
Here. ................................................................................. 21

b.

Plaintiffs Cannot Prove the Failure to Caption All
Song Lyrics Rendered Motion Pictures and
Television Programs Unfit for Their Ordinary Use. ........ 24

Plaintiffs’ Unruh Act Claim Will Not Succeed. ......................... 25

CONCLUSION ............................................................................................... 25

27
28
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TABLE OF AUTHORITIES

1
2
3
4
5

Page
FEDERAL CASES
Anunziato v. eMachines, Inc.,
402 F. Supp. 2d 1133 (C.D. Cal. 2005) ................................................................ 22

6

Ball v. AMC Entm’t, Inc.,
7
246 F. Supp. 2d 17 (D.D.C. 2003)........................................................................ 22
8 Cullen v. Netflix, Inc.,
880 F. Supp. 2d 1017 (N.D. Cal. 2012)................................................................ 25
9
10 Doe v. Gangland Prods.,
730 F.3d 946 (9th Cir. 2013) .......................................................................... 12, 14
11
12 Fortyune v. Am. Multi-Cinema, Inc.,
364 F.3d 1075 (9th Cir. 2004) .............................................................................. 22
13
14 Freeman v. Time, Inc.,
68 F.3d 285 (9th Cir. 1995) .................................................................................. 17
15
Garcia v. Sony Comp. Entm’t Am.,
16
LLC, 859 F. Supp. 2d 1056 (N.D. Cal. 2012) ................................................ 18, 19
17
Glen Holly Entm’t, Inc. v. Tektronix, Inc.,
18
100 F. Supp. 2d 1086 (C.D. Cal. 1999), aff’d in relevant part by 343
F.3d 1000 (9th Cir. 2003) ..................................................................................... 19
19
20 Greater Los Angeles Agency on Deafness, Inc. (“GLAAD”) et al. v.
Cable News Network, Inc. (“CNN”),
21
742 F.3d 414 (9th Cir. 2014) ......................................................................... passim
22
Hilton v. Hallmark Cards,
23
599 F.3d 894 (9th Cir. 2010) .......................................................................... 11, 15
24 In re iPhone 4S Consumer Litig.,
No. 12-cv-1127-CW, 2013 WL 3829653 (N.D. Cal. July 23, 2013) ................... 25
25
26 Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952) ............................................................................................. 11
27
28
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1

TABLE OF AUTHORITIES
(continued)

2
3
4

Page
Keegan v. Am. Honda Motor Co.,
284 F.R.D. 504 (C.D. Cal. 2012).......................................................................... 22

5

Marchante v. Sony Corp. of Am., Inc.,
6
801 F. Supp. 2d 1013 (S.D. Cal. 2011) ................................................................ 21
7 Marolda v. Symantec Corp.,
672 F. Supp. 2d 992 (N.D. Cal. 2009).................................................................. 20
8
9 In re NJOY, Inc. Consumer Class Action Litig.,
No. 14-cv-00428-MMM, 2015 WL 4881091 (C.D. Cal. Aug. 14,
10
2015) ..................................................................................................................... 21
11
Red v. Kraft Foods, Inc.,
12
No. 10-cv-1028-GW, 2012 WL 8019257 (C.D. Cal. Apr. 12, 2012) .................. 21
13
Sanders v. Acclaim Entm’t, Inc.,
14
188 F. Supp. 2d 1264 (D. Colo. 2002) ................................................................. 23
15 Sarver v. Hurt Locker LLC,
No. 2:10-cv-09034-JHN-JCx, 2011 WL 11574477 (C.D. Cal. Oct.
16
13, 2011) ........................................................................................................... 1, 11
17
18 Thomas v. Fry’s Elecs., Inc.,
400 F.3d 1206 (9th Cir 2005) ................................................................................. 9
19
Tietsworth v. Sears,
20
720 F. Supp. 2d 1123 (N.D. Cal. 2010)................................................................ 21
21
In re Toyota Motor Corp.,
22
790 F. Supp. 2d 1152 (C.D. Cal. 2011) ................................................................ 20
23 Turcios v. Carma Labs., Inc.,
296 F.R.D. 638 (C.D. Cal. 2014).......................................................................... 21
24
25 Viggiano v. Hansen Natural Corp.,
944 F. Supp. 2d 877 (C.D. Cal. 2013) .................................................................. 25
26
27 Wilson v. Midway Games, Inc.,
198 F. Supp. 2d 167 (D. Conn. 2002) .................................................................. 23
28
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TABLE OF AUTHORITIES
(continued)

1
2
3
4
5

Page
Winter v. G. P. Putnam’s Sons,
938 F.2d 1033 (9th Cir. 1991) .............................................................................. 23
STATE CASES

6

All One God Faith, Inc. v. Organic and Sustainable Indus. Standards,
Inc.,
183 Cal. App. 4th 1186 (2010) ................................................................. 16, 17, 20
8
7

9 Atkinson v. Elk Corp.,
109 Cal. App. 4th 739 (2003) ............................................................................... 22
10
11 Belton v. Comcast Cable Holdings, LLC,
151 Cal. App. 4th 1224 (2007) ............................................................................. 25
12
13 Boltz v. Buena Vista Home Entertainment, Inc.,
No. BC 323842 (Cal. Super. Ct., L.A. Cty., Apr. 20, 2006) ......................... passim
14
Consumer Advocates v. Echostar Satellite Corp.,
15
113 Cal. App. 4th 1351 (2003) ................................................................. 17, 20, 22
16
Dyer v. Childress,
17
147 Cal. App. 4th 1273 (2007) ............................................................................. 14
18 Koebke v. Bernardo Heights Country Club,
115 P.3d 1212 (Cal. 2005) .................................................................................... 25
19
20 Lavie v. Procter & Gamble Co.,
105 Cal. App. 4th 496 (2003) ............................................................................... 17
21
22 Martinez v. Metabolife Int’l, Inc.,
113 Cal. App. 4th 181 (2003) ................................................................... 10, 11, 23
23
24 Mattel, Inc. v. Luce, Forward, Hamilton & Scripps,
99 Cal. App. 4th 1179 (2002) ............................................................................... 10
25
Navellier v. Sletten,
26
29 Cal. 4th 82 (2002) ............................................................................................ 10
27
Stewart v. Rolling Stone LLC,
28
181 Cal. App. 4th 664 (2010) ............................................................................... 11
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TABLE OF AUTHORITIES
(continued)

1
2
3
4

Page
Tamkin v. CBS Broad., Inc.,
193 Cal. App. 4th 133 (2011) ............................................................... 1, 12, 14, 15

5

In re Tobacco Cases II,
6
240 Cal. App. 4th 779 (2015) ............................................................................... 21
7 In re Tobacco II Cases,
46 Cal. 4th 298 (2009) .......................................................................................... 20
8
9 Wilson v. Parker, Covert & Chidester,
28 Cal. 4th 811 (2002) .................................................................................... 10, 16
10
11 FEDERAL STATUTES
12 17 U.S.C. § 202.......................................................................................................... 23
13 47 U.S.C. § 613.................................................................................................... 3, 6, 7
14
Pub. L. No. 111-260 § 202, 124 Stat. 2751 (codified at Section 713 of
15
the Communications Act 1934, 47 U.S.C. § 613) .............................................. 3, 6
16 STATE STATUTES
17
Cal. Bus. & Prof. Code § 17500 .................................................................................. 9
18
Cal. Bus. & Prof. Code § 17200 .................................................................................. 9
19
20 Cal. Civ. Code § 51................................................................................................ 9, 25
21 Cal. Civ. Code § 1770.................................................................................................. 9
22 Cal. Civ. Code § 1791.......................................................................................... 21, 24
23 Cal. Civ. Code. § 1791.1.................................................................................. 9, 21, 24
24
Cal. Civ. Code. § 1792..................................................................................... 9, 21, 24
25
Cal. Civ. Code. § 1792.1.................................................................................. 9, 21, 24
26
27 Cal. Code Civ. Proc. § 425.16 ............................................................................. 10, 14
28 Cal. Code Civ. Proc. § 425.17 ................................................................................... 16
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TABLE OF AUTHORITIES
(continued)

1
2
3
4
5

Page
FEDERAL REGULATIONS
47 C.F.R. § 79.1 ........................................................................................................... 7

6 47 C.F.R. § 79.4 ........................................................................................................... 7
7 Closed Captioning of Video Programming; Telecommunications for
the Deaf and Hard of Hearing; Petition for Rulemaking, 79 Fed.
8
Reg. 17911, (Mar. 31, 2014) ............................................................................ 7, 18
9
OTHER AUTHORITIES
10
Civil Rights – Americans with Disabilities Act – District Court
11
Approves Settlement Requiring Movie Theaters To Provide Closed
12
Captioning for Deaf and Hard-of-Hearing People – Ball v. AMC
Entertainment, Inc., 315 F. Supp. 2d 120 (D.D.C. 2004), 118 Harv.
13
L. Rev. 1777 (2005).............................................................................................. 14
14
John F. Stanton, [Song Ends] – Why Movie and Television Producers
15
Should Stop Using Copyright as an Excuse Not to Caption Song
Lyrics, 22 U.C.L.A. L. Rev. 157, 170 (2015)......................................................... 8
16
17 John F. Waldo, The ADA and Movie Captioning: A Long and Winding
Road to an Obvious Destination, 45 Val. U. L. Rev. 1033 (2011) ...................... 14
18
19 Virginia Wooten, Waiting and Watching in Silence: Closed Captioning
Requirements for Online Streaming under National Association for
20
the Deaf v. Netflix, Inc. and the CVAA, 14 N.C J.L. & Tech. Online
135 (2012)............................................................................................................. 14
21
22
23
24
25
26
27
28
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1 I.

INTRODUCTION

2

In this putative nationwide class action, Plaintiffs challenge captioning and

3 subtitling in movies and TV shows produced and/or distributed by the Studios
4 through theaters, DVDs/Blu-rays (“DVDs”), and streaming services. Plaintiffs
5 allege that, while dialogue is captioned and subtitled in these movies and TV shows,
6 they are misrepresented as “captioned” or “subtitled” and violate implied warranty
7 and civil rights laws because some but not all song lyrics are captioned and
8 subtitled. According to Plaintiffs, reasonable consumers understand the terms
9 “captioned” and “subtitled” to mean that all song lyrics will be captioned and
10 subtitled. On this basis, Plaintiffs ask this Court to compel the Studios to caption all
11 song lyrics in all movies and TV shows distributed in theaters, DVDs, and streaming
12 services, and to refund all past purchases and rentals of movies and TV shows in
13 which all song lyrics were not captioned.
14

No law requires the relief Plaintiffs seek: captioning or subtitling of all song

15 lyrics in all movies and TV shows distributed through theaters, DVDs, and
16 streaming services. More fundamentally, existing law provides that captioning and
17 subtitling constitute protected expression or, at a minimum, further the exercise of
18 the Studios’ freedom of expression in the challenged movies and TV shows.1
19 Plaintiffs’ Complaint is thus subject to strike under California’s anti-SLAPP statute,
20 unless Plaintiffs can demonstrate that their claims are both legally sufficient and
21 supported by a sufficient prima facie showing of facts to prevail. Plaintiffs cannot
22
23
24
25
26
27
28

1

See Greater Los Angeles Agency on Deafness, Inc. (“GLAAD”) v. Cable News
Network, Inc. (“CNN”), 742 F.3d 414 (9th Cir. 2014) (holding that captioning of
online videos constitutes protected conduct under the anti-SLAPP statute); Tamkin
v. CBS Broad., Inc., 193 Cal. App. 4th 133, 143 (2011) (holding that the creative
process underlying the creation of a television show constitutes a matter of public
interest); Sarver v. Hurt Locker LLC, No. 2:10-cv-09034-JHN-JCx, 2011 WL
11574477, at *4 (C.D. Cal. Oct. 13, 2011) (holding that the commercial film The
Hurt Locker constitutes protected speech on a matter of public interest for the
purposes of the anti-SLAPP statute).
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1 meet this burden for four reasons:
2

First, Plaintiffs’ “misrepresentation” claims are contradicted by their own

3 allegations. Plaintiffs contend they were deceived into believing that all song lyrics
4 were captioned or subtitled, but they do not and cannot point to any representation
5 by the Studios that all song lyrics in the challenged movies and TV shows are
6 captioned or subtitled. Instead, Plaintiffs allege that the challenged movies and TV
7 shows were described as “captioned” or “subtitled,” and that they “check a movie or
8 show to see if the ‘captioned’ or ‘subtitled’ representation is present before
9 purchasing or renting the DVD, theater ticket, or streaming.” Compl. ¶ 39. But
10 Plaintiffs do not and cannot allege facts showing that they or any reasonable
11 consumer understand the terms “captioned” or “subtitled” to mean that all song
12 lyrics are captioned or subtitled. To the contrary, Plaintiffs admit that they have
13 watched “numerous” movies and TV shows represented as “captioned” or
14 “subtitled” that do not caption or subtitle all song lyrics. Compl. ¶¶ 1-9, 36. Indeed,
15 Plaintiffs allege that this has happened over and over again, in a pattern they
16 describe as “frustratingly widespread.” Compl. ¶ 36. If that is so, then how are they
17 deceived? Plaintiffs know from the “numerous” movies and TV shows they admit
18 watching, and the “many, many other examples” they describe, that not all song
19 lyrics are captioned or subtitled. Plaintiffs’ admission that they understood the
20 terms “captioned” and “subtitled” to mean captioning and subtitling of some but not
21 all song lyrics directly undermines their misrepresentation claims.
22

Take Plaintiff Christine Anthony. She alleges that she viewed “numerous”

23 movies “marked and advertised as having captions, English subtitles, or subtitles for
24 the Deaf and Hard of Hearing” but that these movies or TV shows did not caption or
25 subtitle all song lyrics. Compl. ¶ 1. She watched both the original and the sequel to
26 The Avengers, all three Iron Man movies, Thor II, and Minions in the theater. She
27 alleges that every one of these movies did not caption or subtitle all song lyrics. On
28 DVD, she alleges that she watched Princess Diaries parts I and II, Captain America
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1 parts I and II, Thor, and all three X-Men films. Again, these movies did not caption
2 or subtitle all song lyrics. After watching movie after movie that did not caption all
3 song lyrics, Ms. Anthony does not, and cannot, plausibly allege that she understood
4 the terms “captioned” or “subtitled” to include all song lyrics.
5

Second, contrary to Plaintiffs’ claims, captioning or subtitling across all of the

6 challenged distribution channels here is not required by any existing law, much less
7 captioning or subtitling of all song lyrics. Existing law addresses captioning or
8 subtitling of all song lyrics in only one distribution channel, which Plaintiffs do not
9 challenge: television programs exhibited on broadcast channels.2 No law requires
10 the relief Plaintiffs claim to be entitled to here: captioning or subtitling of all song
11 lyrics in all movies and TV shows distributed through theaters, DVDs, and
12 streaming services.
13

Third, Plaintiffs also ignore prior litigation challenging captioning that

14 necessarily would have included many of the same putative class members Plaintiffs
15 claim to represent here. In Boltz v. Buena Vista Home Entertainment, Inc., No. BC
16 323842 (Cal. Super. Ct., L.A. Cty., Apr. 20, 2006), the putative class challenged
17 captioning for DVD bonus materials as well as the representations made about that
18 captioning. The parties resolved the case through a class settlement which expressly
19 recognized that song lyrics did not need to be captioned in every instance.
20 Declaration of Melinda E. LeMoine (“LeMoine Decl.”), Ex. A at 32, 34 (Amended
21 Agreement of Settlement, Compromise and Release §§ 2.3(A)(iii)(3)(ii),
22 2.3(B)(iii)(2)(ii)). Plaintiffs cannot plausibly claim that they expected all song lyrics
23 to be captioned – or that the Studios are obligated to caption all song lyrics – when
24 the Boltz settlement expressly negated this obligation.
25
26
27

2

Pub. L. No. 111-260 § 202(a)-(b), 124 Stat. 2751 (codified at Section 713 of the
28 Communications Act 1934, 47 U.S.C. § 613) (“CVAA”).
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1

Finally, because Plaintiffs cannot point to any law requiring all song lyrics to

2 be captioned or subtitled, they ask this Court to create and impose such a
3 requirement on the Studios by distorting California’s warranty and civil rights laws.
4 Plaintiffs’ warranty claims are plainly inapplicable to the challenged movies and TV
5 shows for reasons explained below. And controlling Ninth Circuit precedent makes
6 clear Plaintiffs cannot bring a civil rights claim on these facts. GLAAD v. CNN, 742
7 F.3d at 426.
8

The Court should strike each of Plaintiffs’ claims in full.

9 II.

BACKGROUND

10

A.

Methods of Distribution for Movies and TV Programs.

11

The Studios are in the business of creating, producing, distributing, licensing

12 and marketing many forms of entertainment, including motion pictures. Some of
13 the Studios here also create, produce, distribute, acquire, license and/or market
14 television programming. Each Studio aims to offer a wealth of options to customers
15 to view movies and/or TV programs. The Studios distribute their motion pictures to
16 theaters. Customers can buy physical copies of the movie or TV program (on DVD)
17 at retail stores like Wal-Mart or Best Buy, as well as rent a copy at physical
18 locations or through digital service providers like iTunes or Amazon. Digital
19 services like iTunes and Amazon also allow customers to download and license a
20 permanent copy of a movie or TV program. Or customers can access a copy on
21 demand for a fixed period of time through a cable, satellite or Internet-delivered
22 video-on-demand (“VOD”) platform, like DirecTV or Hulu. Customers can also
23 view a movie or program through subscription VOD streaming services like Netflix.
24 And, of course, customers can watch a movie or program on network television,
25 delivered through broadcast, cable, or satellite.
26

B.

Captioning and Subtitling in Movies and TV Programs.

27

The Studios offer motion pictures and television programs with captioning

28 and/or subtitling in all of these distribution channels. As Plaintiffs admit, the terms
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1 “captioning” and “subtitling” refer to different methods of including auditory
2 information in a visual medium. Compl. ¶ 35. As Plaintiffs admit, various forms of
3 captioning and subtitling employ different protocols and conventions. Id. One
4 captioning vendor’s description of the differences among protocols is provided in
5 the attached Declaration, but other captioning vendors or content providers may use
6 the terms differently. See, e.g., LeMoine Decl., Ex. B (Lily Bond, How Subtitles for
7 the Deaf and Hard-of-Hearing (SDH) Differ from Closed Captions, 3Play Media,
8 http://www.3playmedia.com/2014/05/21/how-subtitles-deaf-hard-of-hearing-sdh9 differ-from-closed-captions/ (May 21, 2014)). These protocols have differences that
10 can affect the content of text, including whether the text may be aligned in different
11 parts of the screen or “locked” in one place. Id. Plaintiffs use the terms
12 interchangeably and describe the differences as “immaterial.” Compl. ¶ 35. The
13 Studios disagree that the differences are immaterial, but this brief accepts Plaintiffs’
14 convention for simplicity’s sake.
15

As Plaintiffs admit, the Studios “determine[] the content” of their motion

16 pictures or television programs, including the captions. Compl. ¶¶ 11, 12, 16.
17 Plaintiffs admit those captions include dialogue. Compl. ¶ 36. Also, as Plaintiffs
18 admit, captions include some song lyrics. See, e.g., Compl. ¶¶ 6, 7 (alleging that
19 “not all of the song lyrics” in certain movies were captioned/subtitled). In fact, the
20 movies and TV shows cited in Plaintiffs’ Complaint demonstrate that some song
21 lyrics are included in captions, and others are not. For example, in a DVD version
22 of Selma, one of the movies cited in the Complaint, lyrics are captioned when one
23 character sings to Martin Luther King over the phone. LeMoine Decl. ¶ 5.
24 Similarly, in a DVD version of Major League, when the crowd sings “Wild Thing”
25 to Charlie Sheen’s character, those lyrics are captioned. Id. ¶ 6. And in a DVD
26 version of Wet Hot American Summer, song lyrics are captioned in several
27 instances: for the music over the opening credits, for background music that
28 emphatically announces the entry of a particular character, and for songs sung by
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1 characters on screen. Id. ¶ 7.
2

Other lyrics in movies cited in Plaintiffs’ Complaint are not captioned. In a

3 streaming version of Rain Man: When Tom Cruise’s character teaches Dustin
4 Hoffman’s character to dance, the background song’s name and first line of its lyrics
5 are captioned. Id. ¶ 8. But once the characters begin to speak, the dialogue is
6 captioned instead of the lyrics. Id. In the next scene, which occurs in a crowded
7 casino, the captions announce the existence of background vocal music and chatter.
8 Id. Once again, the dialogue is captioned, rather than the lyrics of the faint
9 background music. Id. The same is true in a streaming version of Cars, in which
10 for one scene the song title, artist name, and lyrics of a background song are initially
11 captioned. Id. ¶ 9. When characters begin to speak over the music, the dialogue is
12 captioned instead of the song lyrics. Id. Similarly, in a DVD version of The Theory
13 of Everything, in one scene operatic music plays in the background. The scene is
14 captioned “Opera Music Playing,” communicating the type of music playing but not
15 the precise lyrics. Id. ¶ 10. And in the iTunes version of Guardians of the Galaxy,
16 the captions describe “Mellow Pop Song Playing on Walkman,” the type of music
17 playing in the background, but do not supply the lyrics. Id. ¶ 11.
18

Captioning some song lyrics but not others is permitted under existing law.

19 Motion pictures distributed in theaters, on DVDs, and through streaming services
20 are not required to contain particular captioning content. Beginning in 1990 with
21 the Television Decoder Circuitry Act (“TDCA”), then in the Telecommunications
22 Act of 1996 (“1996 Act”), and most recently in the Twenty-First Century
23 Communications and Video Accessibility Act of 2010 (“CVAA”), broadcast
24 television programming must be closed captioned.3 Only recently, after nearly a
25 decade of regulatory proceedings, including hundreds of public comments totaling
26
27

3

Pub. L. No. 111-260 § 202(a)-(b), 124 Stat. 2751 (codified at Section 713 of the
28 Communications Act 1934, 47 U.S.C. § 613).
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1 thousands of pages, the FCC promulgated regulations setting quality standards for
2 such closed captions in broadcast television programming. 47 C.F.R. § 79.1.
3 Through that rulemaking, the FCC recognized that there were “inconsistencies in the
4 quality of closed captioning throughout the industry….” Closed Captioning of
5 Video Programming; Telecommunications for the Deaf and Hard of Hearing;
6 Petition for Rulemaking, 79 Fed. Reg. 17,911, 17,912 (Mar. 31, 2014).4 And no
7 requirement under the ADA applies to movies and TV shows in any of the
8 challenged distribution channels.5 Simply put: No law requires the Studios to
9 caption all song lyrics, for all movies and TV shows, across any – much less all
10 – of the distribution channels Plaintiffs target here. The Studios remain free to
11 caption or subtitle some but not all song lyrics, exactly as Plaintiffs admit they have
12 done. To hold otherwise would improperly limit the Studios’ exercise of creative
13 discretion. See infra Section III.A.
14

C.

The Boltz Settlement.

15

Plaintiffs’ Complaint largely replicates a previous complaint challenging

16 captioning of movies and TV shows on behalf of a class of people who are deaf and
17 hard of hearing, Boltz v. Buena Vista Home Entertainment, Inc., No. BC 323842
18 (Cal. Super. Ct., L.A. Cty., Apr. 20, 2006). In Boltz, the plaintiff class (which was
19 nearly identical to the putative class in this case) challenged representations about
20 captioning on DVDs, exactly as Plaintiffs do here. In Boltz, the plaintiffs admitted
21 that no law requires captioning of all song lyrics in all movies and TV shows
22 distributed on DVDs. Specifically, they acknowledged that “defendants could not
23

4

These broadcast television requirements remain applicable when the same
24 television programs are delivered through internet protocol. 47 C.F.R. § 79.4. That
25 is immaterial for this Motion, because (1) there is no private right of action to
enforce the regulations, 47 U.S.C. § 613(j); and (2) Plaintiffs make no allegations
26 about a requirement applying to broadcast TV content later delivered over the
27 Internet.
5
28 Plaintiffs presumably recognize this as they have not made any ADA claim.
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1 be legally compelled” to provide the captioning demanded, and that “no law
2 requires Defendants to closed caption any materials on their DVDs.” LeMoine
3 Decl., Ex. D at 72, 79 (Pls.’ Mem. in Supp. of Joint Mot. for Prelim. Approval of
4 Settlement). And, contrary to Plaintiffs’ claims here, the Boltz settlement agreement
5 acknowledged that song lyrics would not always be captioned. Id., Ex. A at 32, 34
6 (Amended Agreement of Settlement, Compromise and Release §§ 2.3(A)(iii)(3)(ii),
7 2.3(B)(iii)(2)(ii)). The Boltz settlement focused both on the captions included in
8 DVDs, and on the representations about captioning that the studio defendants would
9 be required prospectively to include on their DVD packaging.
10

Plaintiffs here must be fully aware of the Boltz settlement – including

11 specifically its carve-out for song lyrics and description of DVD packaging.
12 Plaintiffs are all members of the Alexander Graham Bell Association for the Deaf
13 and Hard of Hearing (“AG Bell Association”), which issued a press release upon
14 filing of this Complaint. See LeMoine Decl., Ex. C (Daniel Ors, Members File
15 Lawsuit, Alexander Graham Bell Assoc. for the Deaf and Hard of Hearing (Oct.
16 2015), http://www.agbell.org/ClassActionSuitOctober2015/). The press release
17 quotes some of the Plaintiffs and admits their case was inspired by a law review
18 article written by AG Bell member and activist John Stanton. Id. Stanton’s article
19 details the Boltz settlement – including its exemption for song lyrics.6 Plaintiffs
20 largely copied their own Complaint from the Boltz complaint. Plaintiffs thus must
21 know what Stanton’s article and the Boltz settlement make clear: that no law
22 required captioning of DVDs; that song lyrics are not uniformly captioned in any
23 event; and that the representation “captioned” or “subtitled” would not mean that all
24 song lyrics would be captioned.
25
6

John F. Stanton, [Song Ends] – Why Movie and Television Producers Should Stop
Using Copyright as an Excuse Not to Caption Song Lyrics, 22 U.C.L.A. L. Rev.
27 157, 170 (2015).
26

28
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1

D.

Claims in This Case.

2

Against this backdrop, Plaintiffs assert essentially three groups of claims

3 against the Studios. First, Plaintiffs contend that the Studios deceived them into
4 believing that all song lyrics would be captioned by representing the challenged
5 movies and TV shows as containing captions, subtitles, or subtitles for the deaf or
6 hard of hearing in violation of California’s Unfair Competition Law (“UCL,” Cal.
7 Bus. & Prof. Code § 17200), False Advertising Law (“FAL,” id. § 17500), and
8 Consumers Legal Remedies Act (“CLRA,” Cal. Civ. Code § 1770(A)(5))(the
9 “Misrepresentation Claims”). But Plaintiffs do not quote from or identify a single
10 statement actually made by the Studios in movie theaters, on DVD boxes, through
11 digital streaming services, or otherwise that all song lyrics would be captioned. Nor
12 do Plaintiffs explain how the terms “captioned” or “subtitled” could reasonably be
13 interpreted to mean that all song lyrics would be captioned or subtitled, given
14 Plaintiffs’ admission that they watched numerous movies and/or TV shows that did
15 not caption or subtitle all song lyrics. Second, Plaintiffs contend that because the
16 challenged movies and TV shows do not caption all song lyrics, the Studios have
17 breached the implied warranties of fitness and merchantability under California’s
18 Song-Beverly Act (Cal. Civ. Code. §§ 1791.1, 1792, 1792.1) (the “Warranty
19 Claims”). Plaintiffs cannot distort this law, which applies only to “sales” of
20 “consumer goods,” to compel a change in the content of movies and TV shows.
21 Third, Plaintiffs claim the captioning violates California’s Unruh Civil Rights Act
22 (Cal. Civ. Code § 51) (the “Unruh Act Claim”). The Ninth Circuit has recognized
23 in similar circumstances involving captioning of video that an Unruh Act Claim like
24 Plaintiffs’ cannot stand. GLAAD, 742 F.3d at 426-27. Because none of these claims
25 can succeed, all must be stricken.
26 III.

ARGUMENT

27

California’s anti-SLAPP statute applies to these state law claims in federal

28 court. Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206 (9th Cir 2005). An anti-SLAPP
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1 motion requires a two-step analysis: First, the party responding to the SLAPP suit
2 must make a threshold showing that each challenged cause of action arises from
3 protected activity. The focus is not on “the form of the [proponent’s] cause of
4 action,” but on the “activity that gives rise to his or her asserted liability – and
5 whether that activity constitutes protected speech or petitioning.” Navellier v.
6 Sletten, 29 Cal. 4th 82, 92 (2002) (emphasis in original). Following that showing,
7 the proponent of the SLAPP suit must demonstrate a probability of prevailing on its
8 claim. Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, 99 Cal. App. 4th 1179,
9 1188 (2002). To proceed with the action, the proponent “must demonstrate that the
10 complaint is both legally sufficient and supported by a sufficient prima facie
11 showing of facts to sustain a favorable judgment.” Wilson v. Parker, Covert &
12 Chidester, 28 Cal. 4th 811, 821 (2002) (emphasis added) (citations omitted). If the
13 proponent fails to satisfy those burdens, the Court must strike the cause of action.
14 Cal. Code Civ. Proc. § 425.16(b)(1).
15
16
17
18
19
20
21
22
23
24
25
26
27
28

A.

Step One: Plaintiffs’ Claims Arise from Acts in Furtherance of the
Right to Free Speech in Connection with a Public Issue.

The first prong of the anti-SLAPP analysis requires the Studios to show that
Plaintiffs’ claims “aris[e] from any act . . . in furtherance” of (1) the right to petition
or free speech (2) in connection with a public issue. Cal. Code Civ. Proc. §
425.16(b)(1). “California courts ‘have interpreted this piece of the defendant’s
threshold showing rather loosely.’” GLAAD, 742 F.3d at 422. “‘A court must
generally presume the validity of the claimed constitutional right in the first step of
the anti-SLAPP analysis, and then permit the parties to address the issue in the
second step of the analysis, if necessary.’” Id.
In assessing whether a claim “arises from” protected conduct, courts look to
the “gravamen or principal thrust of the claims asserted.” Martinez v. Metabolife
Int’l, Inc., 113 Cal. App. 4th 181, 188 (2003) (emphasis added). The focus should
not be on the particular form of the cause of action, but rather on “the defendant’s
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1 activity that gives rise to his or her asserted liability and whether that activity
2 constitutes protected speech or petitioning.” Stewart v. Rolling Stone LLC, 181 Cal.
3 App. 4th 664, 679 (2010).
4

Here, the “activity” targeted, or “gravamen or principal thrust” of each claim,

5 is the same: captioning of some, but not all, song lyrics in motion pictures or
6 television programs distributed through theaters, DVDs, and streaming services.
7 Martinez, 113 Cal. App. 4th at 193. The Ninth Circuit has held that free speech
8 rights “do not merely lurk in the background” of a case alleging similar claims about
9 the extent of captioning. GLAAD, 742 F.3d at 423. The same is true here.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1.

Captioning Constitutes an “Act in Furtherance” of the Right
to Free Speech.

The Studios’ captioning constitutes an “act in furtherance” of their right to
freedom of expression for three reasons.
First, captioning is part of the movies and television programs Plaintiffs
challenge in this case, which well-established case law holds constitute protected
expression. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952); see also
Sarver v. Hurt Locker LLC, 2011 WL 11574477, at *4 (holding that the commercial
film The Hurt Locker constitutes protected speech for the purposes of the antiSLAPP statute). As the Ninth Circuit has held, “communicative” activity
“suffice[s]” to satisfy this element. Hilton v. Hallmark Cards, 599 F.3d 894, 904
(9th Cir. 2010). And, as Plaintiffs admit, captions communicate what is going on in
the challenged movies and television programs. Plaintiffs admit that the Studios
“determine[] the content” of captioning (Compl. ¶¶ 11, 12, 16), and that captioning
is required “to understand and enjoy” the challenged movies and television
programs (Compl. ¶¶ 1-9; 34, 38); these admissions confirm that captions constitute
the Studios’ “communicative” activity and therefore satisfy the first prong of the
anti-SLAPP analysis. See also LeMoine Decl. ¶¶ 5-11 (offering examples of
captioning from movies cited in Plaintiffs’ Complaint).
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1

Second, even if captioning does not itself constitute protected expression (and

2 it does), it still satisfies the anti-SLAPP statute’s first prong because it furthers the
3 Studios’ protected expression in the challenged movies and televisions programs.
4 “By its terms, [the anti-SLAPP statute] includes not merely actual exercises of free
5 speech rights but also conduct that furthers such rights.” Doe v. Gangland Prods.,
6 730 F.3d 946, 953 (9th Cir. 2013) (emphasis added). “An act is in furtherance of the
7 right of free speech if the act helps to advance that right or assists in the exercise of
8 that right.” See Tamkin v. CBS Broad., Inc., 193 Cal. App. 4th at 143. Plaintiffs’
9 admission that captioning is required to “to understand and enjoy” the movies and
10 television programs at issue in this case demonstrates that captions “advance” or
11 “assist[] in the exercise” of the Studios’ right of expression embodied in movies or
12 shows.
13

Finally, the Ninth Circuit has already held that the anti-SLAPP statute’s first

14 prong extends to captioning in an action like this one, which “directly targets the
15 way a content provider chooses to deliver, present, or publish” its content. GLAAD,
16 742 F.3d at 423-25. Plaintiffs’ Complaint directly targets how the Studios choose to
17 deliver and present their movie and television program content by seeking to impose
18 a requirement that all song lyrics, not just some, be captioned. Plaintiffs demand an
19 injunction “requiring defendants to provide fully captioned movies or shows.”
20 Prayer for Relief ¶ 4. Plaintiffs contend that a product labeled as “captioned” or
21 “subtitled” must be “fully captioned”:
22
23
24
25

Defendants failed to fully caption or subtitle the movies or shows, as
indicated on the public representations, for example, by not captioning
or subtitling the music/song lyrics. Failure to caption subtitle [sic] the
song/music lyrics precludes deaf and hard of hearing consumers from
being able to fully enjoy the movie or show. Plaintiffs and others
similarly situated are denied full access to feature presentations or
shows.”

26 Compl. ¶ 38 (emphasis added). Plaintiffs insist that such captioning “should
27 include . . . music/song lyrics . . .” Compl. ¶ 39 (emphasis added).
28
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1

In GLAAD, the Ninth Circuit faced a similar issue: whether a lawsuit

2 challenging CNN’s failure to caption videos posted on its website targeted conduct
3 in furtherance of CNN’s free speech rights. 742 F.3d at 421-25. The Court
4 concluded that the lawsuit targeted protected conduct, and thus held that the first
5 prong of the anti-SLAPP statute was satisfied. Id. at 421-22. The Court held that
6 plaintiffs’ claims demanding a change in captioning practices “arise[] directly from
7 CNN’s decision to publish and its publication of online news videos without closed
8 captions and seeks an injunction that would require CNN to adopt such captions for
9 every video on its web site.” Id. at 423. “GLAAD would have no reason to sue
10 CNN absent the news videos on CNN.com.” Id. Because GLAAD sought to
11 “change the way CNN has chosen to report and deliver [] news content by imposing
12 a site-wide captioning requirement . . . GLAAD targets conduct that advances and
13 assists CNN in exercising its protected right to report the news.” Id.
14

The Ninth Circuit’s reasoning in GLAAD applies here. As in the GLAAD

15 case, Plaintiffs’ Complaint “arises directly from [the Studios’] decision” to caption
16 some but not all song lyrics. The Complaint “seeks an injunction that would
17 require” the Studios “to adopt such captions for every” song in every motion picture
18 and television show. Id. Absent the captioning in movies and television programs,
19 Plaintiffs would have no reason to sue the Studios. Id. And as in the GLAAD case,
20 Plaintiffs attempt to “change the way” the Studios have chosen to deliver their
21 content, which would interfere with the Studios’ right to freedom of expression. If
22 Plaintiffs obtained the relief they seek, their choice of speech would replace the
23 Studios’ choice of speech. All song lyrics would have to be captioned, even if they
24 were merely part of the background music underscoring key dialogue and even if
25 the Studio had no contractual and/or legal right to display the song’s lyrics in the
26 first instance.
27
28
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2.

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

Captioning Is “in Connection with a Public Issue or an Issue
of Public Interest.”

Also as in the GLAAD case, Plaintiffs here target conduct “in connection with
a public issue or an issue of public interest.” Cal. Code Civ. Proc. 425.16(e)(4).
The operative question under the anti-SLAPP statute is whether the defendant’s
conduct relates to a matter of public interest. Gangland, 730 F.3d at 955-57. The
public issue need not be “significant to be protected by the anti-SLAPP statute – it is
enough that it is one in which the public takes an interest.” Tamkin, 193 Cal. App.
4th at 143 (internal quotation marks omitted). And although “not all speech in a
movie is of public significance and therefore entitled to protection under the antiSLAPP statute,” Dyer v. Childress, 147 Cal. App. 4th 1273, 1280 (2007), like the
rest of the anti-SLAPP statute requirements, the public issue requirement “shall be
construed broadly,” Cal. Code Civ. Proc. 425.16(a).
Plaintiffs themselves, through their advocacy organization, have admitted that
the public is interested in the measures taken by studios to make films and television
shows accessible to the deaf and hard of hearing. The AG Bell Association, an
advocacy group of which Plaintiffs are members, announced the filing of this action
with a press release. That press release stated that the “importance of captioning
and subtitles in mass visual media cannot be stressed enough.” LeMoine Decl., Ex.
C at 65. Media accessibility and the methods for achieving that goal are routinely
the subject of active discussion in the legislative, academic, and legal arenas.7
7

See generally Virginia Wooten, Waiting and Watching in Silence: Closed
Captioning Requirements for Online Streaming under National Association for the
Deaf v. Netflix, Inc. and the CVAA, 14 N.C J.L. & Tech. Online 135 (2012); John F.
Waldo, The ADA and Movie Captioning: A Long and Winding Road to an Obvious
Destination, 45 Val. U. L. Rev. 1033 (2011); Recent Case, Civil Rights – Americans
with Disabilities Act – District Court Approves Settlement Requiring Movie
Theaters to Provide Closed Captioning for Deaf and Hard-of-Hearing People – Ball
v. AMC Entertainment, Inc., 315 F. Supp. 2d 120 (D.D.C. 2004), 118 Harv. L. Rev.
1777 (2005).
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1 Indeed, Plaintiffs admit that this lawsuit was inspired by a law review article written
2 by John Stanton, described as a “driving force” behind this lawsuit. Stanton is
3 quoted in the press release acknowledging:
[T]he captioning of song lyrics in movies or shows is inconsistent at
best. Sometimes they are captioned, sometimes they are not. . . . [T]he
primary goal for this suit is to force studios to re-evaluate their
practices and either commit to captioning song lyrics or at least make
clear to deaf and hard of hearing viewers that the songs in their media
are not captioned.

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

Id.
If Plaintiffs’ admissions were somehow insufficient (and they are not), the
process of making movies and television programs is itself a matter of public
interest. See Tamkin, 193 Cal. App. 4th at 143-44 (holding that writing, casting, and
broadcasting of television show is a matter of public interest). Even if Plaintiffs’
case did not implicate the important public issue of media accessibility for the deaf
and hard of hearing, Plaintiffs’ focus on motion pictures or television programs
would be sufficient in and of itself to meet the public interest requirement.
Plaintiffs cannot escape the anti-SLAPP statute’s reach here by contending
that their claims target “pure commercial speech” that does not rise to the level of a
public interest. First, the challenged speech is not mere commercial speech that
“does no more than propose a commercial transaction.” Hilton, 599 F.3d at 905 n.7.
Plaintiffs do not merely target advertising about movies and television programs –
they target the movies and television programs themselves. They describe the
captioning that “should” be included in the movies and television shows, and
contend that the Studios “failed to fully caption or subtitle the movies or shows, as
indicated on the public representations, for example, by not captioning or subtitling
the music/song lyrics.” Compl. ¶¶ 38, 39 (emphasis added). Plaintiffs demand that
the actual captioning and subtitling in movies and TV programs should be different,
not merely that the products need to be marketed differently. Where allegedly
commercial speech is “inextricably intertwined” with protected speech relating to an
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1 issue of public interest, the anti-SLAPP statute applies. See All One God Faith, Inc.
2 v. Organic & Sustainable Indus. Standards, Inc., 183 Cal. App. 4th 1186, 1209
3 (2010). Second, even if Plaintiffs attempted to focus only on how the terms
4 “captioned” or “subtitled” appear in advertising, their claims would still be
5 precluded by the anti-SLAPP statute. In crafting a statutory exemption to the anti6 SLAPP statute for certain commercial speech, the legislature specifically recognized
7 that the anti-SLAPP statute would still apply to any “action against any person or
8 entity based upon the creation, dissemination, exhibition, advertisement, or other
9 similar promotion of any dramatic, literary, musical, political, or artistic work,
10 including, but not limited to, a motion picture or television program.” Cal. Code
11 Civ. Proc. § 425.17(d)(2) (emphasis added).
12

Plaintiffs’ Complaint is replete with admissions that their claims target

13 conduct in furtherance of the Studios’ free speech rights, whose “importance . . .
14 cannot be stressed enough.” The Court should therefore hold that the Studios satisfy
15 prong one.
16
17
18
19
20
21
22
23
24
25
26
27
28

B.

Step Two: Plaintiffs Will Not Be Able to Demonstrate a Probability
of Prevailing on Each of Their Claims.

Because each of Plaintiffs’ claims “arise[s] from” the Studios’ protected
conduct, Plaintiffs “must demonstrate that the complaint is both legally sufficient
and supported by a sufficient prima facie showing of facts to sustain a favorable
judgment.” Wilson v. Parker, Covert & Chidester 28 Cal. 4th 811, 821 (2002)
(emphasis added). Plaintiffs cannot make this showing.
1.

Plaintiffs’ Misrepresentation Claims Will Not Succeed.
a.

Plaintiffs Cannot Prove Any Misrepresentation by the
Studios That Is “Likely to Deceive” Reasonable
Consumers.

Plaintiffs’ own allegations contradict their claim that they were deceived into
believing that the terms “captioned” and “subtitled” mean that all song lyrics are
captioned or subtitled in the challenged movies and television shows. According to
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1 Plaintiffs, they “check” whether a movie or TV show is marked “captioned” or
2 “subtitled” before buying a ticket, purchasing or renting a DVD, or streaming a
3 motion picture or TV program. Compl. ¶ 39. And then, every time Plaintiffs view a
4 movie or television show, they claim the movies or TV shows do not caption or
5 subtitle all of the song lyrics. Compl. ¶¶ 1-9, 36. Plaintiffs have viewed “numerous
6 DVDs, and/or viewed movies in other forums” that reflect precisely the same
7 “frustratingly widespread” “practice.” Id. Further, the class members from the
8 Boltz class action – who would overlap with the putative class here – could not
9 possibly have been deceived that “captioned” or “subtitled” meant that every song
10 lyric would be captioned, because the Boltz settlement expressly provides just the
11 contrary. Plaintiffs cannot in good faith contend that they have been deceived into
12 thinking that a “captioned” or “subtitled” movie or TV show necessarily will include
13 captioning or subtitling for all song lyrics. That is plainly contrary to their own
14 experience.
15

In order to prevail against the Studios on their misrepresentation claims, that

16 is exactly what they must prove: that the Studios made a representation that is
17 “likely to [] deceive[]” reasonable consumers. See Freeman v. Time, Inc., 68 F.3d
18 285, 289 (9th Cir. 1995) (UCL and FAL); Consumer Advocates v. Echostar Satellite
19 Corp., 113 Cal. App. 4th 1351, 1360 (2003) (CLRA). Plaintiffs must prove that it is
20 “probable that a significant portion of the general consuming public or of targeted
21 consumers, acting reasonably in the circumstances, could be misled.” Lavie v.
22 Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003). Plaintiffs’ own
23 Complaint reveals that a significant portion of deaf or hearing-impaired consumers
24 do not assume that all song lyrics are captioned, or at least that they cannot prove
25 that it would be objectively reasonable to make such an assumption when “the
26 practice of not subtitling song/music lyrics is frustratingly widespread.” Compl.
27 ¶ 35 (emphasis added). Reasonable consumers who, like the Plaintiffs themselves,
28 have watched “numerous” movies and TV shows where captions were not provided
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1 for all music or songs already know that the representations “captioned,” “English
2 subtitles,” and “subtitles for the Deaf and Hard of Hearing” do not mean that
3 captions will necessarily be provided for all songs and music in all circumstances.
4 The “common experience” of consumers who are deaf or hard of hearing will have
5 taught them just the opposite of what Plaintiffs allege: captions are not necessarily
6 provided for every piece of music or sound effect in every movie or TV show
7 marked with the generic terms “captioned” or “subtitled.” See Garcia v. Sony
8 Comp. Entm’t Am., LLC, 859 F. Supp. 2d 1056, 1065-66 (N.D. Cal. 2012).
9

The challenged terms mean what they say: the Studios have provided captions

10 or subtitles for their content. These labels nowhere indicate that audio will be
11 “fully” and completely captioned or say anything about songs or music in particular.
12 They say nothing about whether a movie or TV show is “fully captioned,” as
13 Plaintiffs contend. Even Plaintiffs’ own definitions for these terms do not include
14 any allegation about completeness. Plaintiffs claim that “‘English subtitles’ make
15 visible the words on the movie or show for viewers to read as the words are being
16 spoken or sung,” Compl. ¶ 35, and that “Captions” and “Subtitles for the Deaf and
17 Hard of Hearing” “include additional aural information such as ‘doorbell ringing,’
18 ‘explosion,’ or ‘applause.’” Id. The FCC itself confirmed in its recent rulemaking
19 that there are “inconsistencies” within captioning that necessitated the rulemaking in
20 the first place.8 Plaintiffs do not claim (and cannot claim) that these three terms
21 mean “all” music and song lyrics will be captioned – regardless of the context of the
22 music or song in the movie, whether there is simultaneous dialogue, or other
23 subjective considerations that may affect captioning.
24

Plaintiffs may not base a misrepresentation claim on generic descriptors by

25 injecting them with specific significance. Generic statements like “captioned” or
26

8

Closed Captioning of Video Programming; Telecommunications for the Deaf and
27 Hard of Hearing; Petition for Rulemaking, 79 Fed. Reg. 17,911, 17,912 (Mar. 31,
28 2014).
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1 “subtitled for the deaf and hard of hearing” cannot impose liability because of a
2 specific interpretation Plaintiffs purport to assign to them. See Garcia, 859 F. Supp.
3 2d at 1064 (rejecting contention that “mere presence of PS3 logos” was express
4 representation of compatibility with all PS3 models, observing that “without more”
5 plaintiff could not maintain theory “that reasonable consumers are likely to adopt his
6 specific, and fairly extreme, understanding of the logos”); accord Glen Holly
7 Entm’t, Inc. v. Tektronix, Inc., 100 F. Supp. 2d 1086, 1093 (C.D. Cal. 1999)
8 (Wilson, J.), aff’d in relevant part by 343 F.3d 1000 (9th Cir. 2003)
9 (misrepresentations must “ordinarily be a specific factual assertion; generalized
10 statements are usually not actionable as fraud”).
11

Prior classwide litigation makes clear that objectively reasonable consumers

12 would not necessarily assume that “captioned” or “subtitled” means that “all song
13 lyrics are captioned.” This was raised in Boltz v. Buena Vista Home Entertainment,
14 Inc., in which an overlapping class litigated against the Studios here about the extent
15 of captioning in DVDs. When seeking court approval of the Boltz settlement, the
16 plaintiffs acknowledged that “no law requires Defendants to closed caption any
17 materials on their DVDs,” making settlement the only way they could obtain their
18 desired level of captioning. See LeMoine Decl., Ex. D at 79 (Pls.’ Mem. ISO Joint
19 Mot. for Preliminary Approval of Settlement, Boltz v. Buena Vista Home Entm’t,
20 Inc., No. BC 323842 (Cal. Super. Ct., L.A. Cty., Feb. 6, 2006)) (emphasis added)).
21 In addition, the Boltz settlement explicitly provided that some and not all song lyrics
22 would be captioned. See LeMoine Decl., Ex. A at 32, 34 (Amended Agreement of
23 Settlement, Compromise and Release §§ 2.3(A)(iii)(3)(ii), 2.3(B)(iii)(2)(ii)). The
24 fact that the parties agreed to such an exemption, and that the court approved it,
25 reflects that song lyrics may not be captioned in every instance.9
26
27

9

As described above, Plaintiffs here must be aware of the Boltz settlement and its
28 carve-out for song lyrics. See supra Section II.C.
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1
2

b.

Plaintiffs Cannot Prove Reliance.

Plaintiffs also must prove that they actually relied on a misrepresentation by

3 the Studios to their detriment. See In re Tobacco II Cases, 46 Cal. 4th 298, 326
4 (2009) (actual reliance required for UCL claim); In re Toyota Motor Corp., 790 F.
5 Supp. 2d 1152, 1168 (C.D. Cal. 2011) (same for FAL); Marolda v. Symantec Corp.,
6 672 F. Supp. 2d 992, 1003 (N.D. Cal. 2009) (same for CLRA).
7

Given their own allegations about the “frustratingly widespread” practice and

8 what Plaintiffs have experienced in movie after movie, Plaintiffs cannot in good
9 faith contend that they were motivated to purchase or access these movies or TV
10 programs relying on a belief that “captioned” would include all song lyrics.
11 Plaintiffs’ allegations instead confirm that they relied the labels “captioned” or
12 “subtitled” as accurately describing the full captioning or subtitling of the movie or
13 TV show’s dialogue. The Complaint acknowledges that the dialogue “[is] indeed
14 fully subtitled.” Compl. ¶ 36. Plaintiffs do not claim (and they cannot in good faith
15 claim) that they relied on “captioned” or “subtitled” to mean that all song lyrics
16 would be captioned or subtitled, as opposed to relying on them for what the terms
17 “captioned” or “subtitled” accurately represented: that the movie or TV show
18 included captions and subtitles. Id. ¶¶ 39, 78. Plaintiffs’ reliance on “captioned” or
19 “subtitled” to mean that there would be captions or subtitles as a general matter is
20 not the same as relying on a specific assumption that all song lyrics and music –
21 whether in the background or otherwise – would also be subtitled.
22

The Complaint further confirms that Plaintiffs did not consider captions or

23 subtitles for songs to be material to their purchasing decisions, by alleging that
24 Plaintiffs purchased multiple movies and TV shows in succession, despite
25 necessarily being aware that not captioning songs was a “frustratingly widespread”
26 practice. Compl. ¶ 36; see id. ¶¶ 3, 6, 9 (alleging several to over twenty purchases
27 or rentals). Courts commonly reject UCL, FAL, or CLRA claims for failure to
28 prove reliance when plaintiffs continue to purchase or use the allegedly
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1 misrepresented product(s). See, e.g., In re Tobacco Cases II, 240 Cal. App. 4th 779,
2 787 (2015); Turcios v. Carma Labs., Inc., 296 F.R.D. 638, 643 (C.D. Cal. 2014); In
3 re NJOY, Inc. Consumer Class Action Litig., No. 14-cv-00428-MMM, 2015 WL
4 4881091, at *20-21 (C.D. Cal. Aug. 14, 2015); see also Red v. Kraft Foods, Inc.,
5 No. 10-cv-1028-GW, 2012 WL 8019257, at *12 (C.D. Cal. Apr. 12, 2012)
6 (observing that plaintiff’s “post-filing purchases lend credence to [the] theory that if
7 the challenged labels were even misrepresentations, they were not material
8 misrepresentations that would influence a reasonable consumer’s purchasing
9 decisions”). Evidence of similar repeated purchases, like those already alleged in
10 the Complaint, will prevent Plaintiffs from proving reliance and prevailing on the
11 misrepresentation claims.
2.

12
13

Plaintiffs’ Warranty Claims Will Not Succeed.

Absent any existing law that requires all music and song lyrics to be

14 captioned in all content across all distribution channels, Plaintiffs attempt to force
15 the square peg of captioning claims into the round hole of California’s warranty
16 laws. Plaintiffs will not be able to prove that warranty law imposes an obligation on
17 the Studios to caption all song lyrics.
a.

18
19

Implied Warranties Do Not Apply to the Claims Here.

Plaintiffs contend that the failure to caption all music and song lyrics is a

20 breach of the implied warranties of merchantability and fitness for a particular
21 purpose under California law.10 Because Plaintiffs’ claims concern the content of
22 movies or television programs, these implied warranty laws are inapplicable.
23

Breach of implied warranty claims may be brought with respect to “consumer

24 goods” (see Cal. Civ. Code §§ 1791, 1791.1, 1792), such as televisions (e.g.,
25 Marchante v. Sony Corp. of Am., Inc., 801 F. Supp. 2d 1013, 1020-21 (S.D. Cal.
26 2011)), washing machines (e.g., Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1142
27
10

28

Cal. Civ. Code. §§ 1791.1, 1792, 1792.1
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1 (N.D. Cal. 2010)), cars (e.g., Keegan v. Am. Honda Motor Co., 284 F.R.D. 504, 537
2 (C.D. Cal. 2012)), and computers (e.g., Anunziato v. eMachines, Inc., 402 F. Supp.
3 2d 1133, 1135-36 (C.D. Cal. 2005)). The common denominator is that goods that
4 are subject to California’s implied warranty laws can be moved, serviced, or
5 repaired. See Atkinson v. Elk Corp., 109 Cal. App. 4th 739, 751-52 (2003). Indeed,
6 the implied warranty causes of action Plaintiffs assert are contained within a
7 legislative scheme, the Song Beverly Consumer Warranty Act (“Song Beverly
8 Act”), that imposes requirements concerning repair or service facilities to be
9 maintained by manufacturers of consumer goods. See id.
10

Plaintiffs cannot stretch the confines of the Song Beverly Act to cover their

11 captioning claims. The content of movies and TV shows – including any subtitles
12 and captions – cannot qualify as a “consumer good.” A movie or TV show cannot
13 be moved, serviced, or repaired. As for movie theaters, they “provide the service of
14 screening first run movies” – they do not sell movies as “goods” at all. Ball v. AMC
15 Entm’t, Inc., 246 F. Supp. 2d 17, 24 (D.D.C. 2003) (emphasis in original); see also
16 Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1084 (9th Cir. 2004) (movie
17 theaters provide a service). Theaters are thus not subject to implied warranty laws
18 however “consumer good” is defined. See Consumer Advocates v. Echostar
19 Satellite Corp., 113 Cal. App. 4th 1351, 1358 (2003) (affirming dismissal of
20 warranty claims against satellite broadcaster because broadcaster provided “a
21 ‘service’ and not ‘goods’”).
22

With respect to DVDs and streaming services, this case does not present the

23 categorical question of whether the distribution medium containing the movie or TV
24 show – such as a DVD disc or a digital movie file – can ever be the subject of
25 warranty claims under the Song Beverly Act. That is not what Plaintiffs’ case is
26 about. Plaintiffs target the content of the movie or TV show contained on the DVD
27 or streaming service, not the DVD or digital product itself. Courts regularly
28 distinguish between the content of movies or other intellectual property, and the
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1 medium through which that content is conveyed – and have held that the former are
2 not subject to warranty and products liability laws because they are not
3 “products.” See Winter v. G. P. Putnam’s Sons, 938 F.2d 1033, 1034 (9th Cir.
4 1991) (affirming dismissal of warranty claims predicated on content of a book;
5 observing, “[a] book containing Shakespeare’s sonnets consists of two parts, the
6 material and print therein, and the ideas and expression thereof. The first may be a
7 product, but the second is not”); Sanders v. Acclaim Entm’t, Inc., 188 F. Supp. 2d
8 1264, 1279 (D. Colo. 2002) (“thoughts, ideas, and expressive content” contained in
9 movies and video games “are not ‘products’”); Wilson v. Midway Games, Inc., 198
10 F. Supp. 2d 167, 174 (D. Conn. 2002) (content of interactive video game is not a
11 “product”; collecting cases holding same). U.S. copyright law draws the same
12 distinction. 17 U.S.C. § 202 (“Transfer of ownership of any material object,
13 including the copy or phonorecord in which the work is first fixed, does not of itself
14 convey any rights in the copyrighted work embodied in the object . . . .”).
15

Plaintiffs cannot stretch products liability to reach expressive content simply

16 because they allege the content has been falsely advertised. See Martinez v.
17 Metabolife Int’l, Inc., 113 Cal. App. 4th 181, 189 (2003) (the implied warranty of
18 fitness for a particular purpose, like the warranty of merchantability, is “based on
19 the nature and impacts of the product, not on injuries attributable to the marketing
20 efforts by the seller”). As the Ninth Circuit has observed, “[t]he purposes served by
21 products liability law [] . . . do not take into consideration the unique characteristics
22 of ideas and expression.” Winter, 938 F.2d at 1034. If Plaintiffs are concerned with
23 how the Studios have described the content of movies and TV shows, that is a
24 matter of “ideas and expression,” and breach of warranty is an inappropriate cause
25 of action. See id.
26

Even if one assumes video content on DVDs and video content provided

27 through digital streaming are consumer goods covered by the warranty laws,
28 Plaintiffs have not alleged, and cannot prove, that there has been a “sale” of any
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1 content as required by the implied warranty statutes. See Cal. Civ. Code §§ 1792,
2 1792.1 (implied warranties apply to “sale[s] of consumer goods” “at retail in this
3 state”); id. § 1791(n)(1) (a sale is “[t]he passing of title from the seller to the buyer
4 for a price”). Plaintiffs cannot prove a “sale” of a consumer good across any of the
5 distribution channels at issue. Movie theaters provide a service and do not sell
6 movies (see supra, at 22). And purchasers of DVDs and streaming video do not
7 take title to any content, but instead purchase a license to view it. For example,
8 Netflix’s terms of use state: “During your Netflix membership, we grant you a
9 limited, non-exclusive, non-transferable, license to access the Netflix service and
10 view movies and TV shows through the service . . . . no right, title or interest shall
11 be transferred to you.” LeMoine Decl., Ex. E at 100.11 DVDs similarly provide that
12 buyers receive only a license. For instance, the DVD disc for the movie Thor states:
13 “Licensed for private viewing only. Any other use prohibited.” (emphasis in
14 original). LeMoine Decl., Ex. H.
b.

15
16
17

Plaintiffs Cannot Prove the Failure to Caption All
Song Lyrics Rendered Motion Pictures and Television
Programs Unfit for Their Ordinary Use.

Plaintiffs also cannot succeed on their implied warranty claim because they

18 have failed to allege that the movies and TV shows they purchased were unfit for
19 their ordinary use, Cal. Civ. Code § 1791.1(a)(2), or that the Studios were on notice
20 that Plaintiffs’ “particular purpose” as buyers necessitated that all song lyrics be
21 captioned. Id. § 1791.1. The purpose of a movie or TV show is to provide
22 entertainment. A movie or show that subtitles dialogue but not song lyrics remains
23
11

24
25
26
27
28

Hulu’s and Amazon’s terms of service are similar. LeMoine Decl., Ex. F at 108
(“Amazon grants you a personal, non-exclusive, non-transferable, nonsublicensable, license, during the applicable Viewing Period, to access, view, use
and display the Digital Content in accordance with the Usage Rules, for NonCommercial, Private Use.”); id., Ex. G at 112 (“You agree that Hulu owns and
retains all rights to the Services. You further agree that the Content you access and
view as part of the Services is owned or controlled by Hulu and Hulu's licensors.”).
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1 fit for that purpose. See Viggiano v. Hansen Natural Corp., 944 F. Supp. 2d 877,
2 896 (C.D. Cal. 2013); accord In re iPhone 4S Consumer Litig., No. 12-cv-11273 CW, 2013 WL 3829653, at *16 (N.D. Cal. July 23, 2013) (a merely “inconvenient”
4 defect does not mean that the product lacks a “basic degree of fitness” or falls below
5 “a minimum level of quality”). In addition, Plaintiffs have not alleged and cannot
6 show that the Studios knew Plaintiffs had a “particular purpose” as buyers that
7 necessitated that all song lyrics be captioned. Indeed, the Studios had good reason
8 to conclude their subtitles do meet the needs of the deaf and hard of hearing
9 community, because they previously reached a settlement over captioning that did
10 not require them to provide captions for all song lyrics. See supra, at 7-8.
11
12

3.

Plaintiffs’ Unruh Act Claim Will Not Succeed.

Plaintiffs’ Unruh Act Claim requires them to prove “intentional

13 discrimination.” See Koebke v. Bernardo Heights Country Club, 115 P.3d 1212,
14 1228-29 (Cal. 2005) (“intentional discrimination” is an essential element of a stand15 alone Unruh Act claim). Plaintiffs will not be able to do so here because they have
16 not alleged discrimination at all. Plaintiffs acknowledge that the same content is
17 provided to both hearing customers and the deaf or hearing impaired. The Ninth
18 Circuit has held that essentially the exact same practice Plaintiffs say the Studios
19 have engaged in – not providing captions for video content – did not violate the
20 Unruh Act as a matter of law. GLAAD, 742 F.3d at 426-27. In that case, the
21 defendant provided no captions whatsoever for its video content at the time the
22 lawsuit was brought, by contrast to the claim here that the Studios’ captions are not
23 comprehensive. See id. at 420. If CNN’s conduct was nondiscriminatory, so is the
24 Studios’. Accord Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1024-25 (N.D. Cal.
25 2012); Belton v. Comcast Cable Holdings, LLC, 151 Cal. App. 4th 1224 (2007).
26 IV.

CONCLUSION

27

Plaintiffs’ claims target protected speech in relation to a public issue. The

28 Court should strike the meritless claims under the anti-SLAPP statute.
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1 DATED: January 20, 2016

MUNGER, TOLLES & OLSON LLP

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By:

/s/ Glenn D. Pomerantz
GLENN D. POMERANTZ

Attorneys for Defendants BUENA VISTA
HOME ENTERTAINMENT, INC.; THE
WALT DISNEY COMPANY; WARNER
BROS. ENTERTAINMENT INC.; WARNER
BROS. HOME ENTERTAINMENT INC.;
UNIVERSAL STUDIOS HOME
ENTERTAINMENT LLC; PARAMOUNT
PICTURES CORPORATION; SONY
PICTURES ENTERTAINMENT INC.; SONY
PICTURES HOME ENTERTAINMENT INC.

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