Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 1 of 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 TIMOTHY FORSYTH, Case No. 16-cv-00935-RS Plaintiff, 11 United States District Court Northern District of California v. 12 13 MOTION PICTURE ASSOCIATION OF AMERICA, INC., et al., 14 Defendants. ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE AND MOTION TO DISMISS 15 16 17 I. INTRODUCTION The primary relief plaintiff Timothy Forsyth seeks in this putative class action is a legal 18 determination that those responsible for assigning the familiar “G,” “PG,” “PG-13,” and “R” 19 ratings to movies may not assign a rating lower than “R” to any movie depicting tobacco use, with 20 certain narrow exceptions . Forsyth alleges that studies have found a correlation between 21 children’s exposure to tobacco imagery in movies and increased levels of tobacco use and 22 addiction, with a corresponding increase in disease and premature death. Forsyth alleges some of 23 the studies go beyond merely identifying the correlation and have concluded the evidence 24 establishes a causal relationship. Extrapolating, Forsyth alleges that requiring any movie with 25 tobacco imagery to be rated “R,” could prevent a million premature deaths. 26 Defendants move to strike Forsyth’s claims pursuant to California’s anti-SLAPP statute, 27 and in the alternative move to dismiss the complaint for failure to state a claim. For the reasons 28 that follow, the motions will be granted. Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 2 of 10 1 2 Forsyth is the father of two children, ages 12 and 13, and has bought them tickets to PG- 3 13-rated movies that featured tobacco imagery. Defendants are major movie studios, the National 4 Association of Theater Owners (“NATO”), and the Motion Picture Association of America 5 (“MPAA”). Defendants control the Classification and Rating Administration (“CARA”), which 6 was established by NATO and the MPAA, and operated as a division of the MPAA. CARA is 7 responsible for determining movie ratings. 8 9 United States District Court Northern District of California II. BACKGROUND According to Forsyth, defendants have known since 2003 that tobacco imagery in films is not appropriate for children and adolescents because it can promote tobacco use, which in turn 10 causes disease and death. Forsyth alleges defendants have failed to respond appropriately to this 11 fact, and have wrongly applied ratings less stringent than “R” to movies containing tobacco 12 imagery. As a result, “defendants’ conduct will cause an additional 200,000 U.S. children under 13 the age of seventeen to become new cigarette smokers every year and will cause an additional 14 64,000 deaths from tobacco induced diseases in future years.” Compl. ¶ 53. 15 On behalf of a putative class, Forsyth now brings claims for negligence, negligence in a 16 voluntary undertaking, breach of fiduciary duty, fraudulent misrepresentation, unfair competition, 17 false advertising, negligent misrepresentation, and private and public nuisance. Forsyth’s prayer 18 for relief seeks class certification, over $20 million in damages, and various forms of declaratory 19 and injunctive relief. Primarily, Forsyth seeks an injunction requiring defendants to assign an “R” 20 rating to all movies depicting tobacco, unless “the presentation of tobacco clearly and 21 unambiguously reflects the dangers and consequences of tobacco use or is necessary to represent 22 the smoking of a real historical figure who actually used tobacco.” Defendants move to strike 23 Forsyth’s complaint pursuant to California’s anti-SLAPP statute, Cal. Civ. Pro. Code § 425.16, et 24 seq. In the alternative, they move to dismiss the complaint for failure to state a claim upon which 25 relief can be granted. Fed. R. Civ. P. 12(b)(6). 26 27 28 ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND DISMISS CASE NO. 16-cv-00935-RS 2 Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 3 of 10 III. LEGAL STANDARD 1 United States District Court Northern District of California 2 “A pleading that states a claim for relief must contain . . . a short and plain statement of the 3 claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). “[D]etailed 4 factual allegations are not required,” but a complaint must provide sufficient factual allegations to 5 “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 6 (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). Federal Rule of Civil Procedure 7 12(b)(6) provides a mechanism to test the legal sufficiency of the averments in a complaint. 8 Dismissal is appropriate when the complaint “fail[s] to state a claim upon which relief can be 9 granted.” Fed. R. Civ. P. 12(b)(6). A complaint in whole or in part is subject to dismissal if it 10 lacks a cognizable legal theory or the complaint does not include sufficient facts to support a 11 plausible claim under a cognizable legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 12 2001). When evaluating a complaint, the court must accept all its material allegations as true and 13 construe them in the light most favorable to the non-moving party. Iqbal, 556 U.S. at 678. When 14 a plaintiff has failed to state a claim upon which relief can be granted, leave to amend should be 15 granted unless “the complaint could not be saved by any amendment.” Gompper v. VISX, Inc., 16 298 F.3d 893, 898 (9th Cir. 2002). 17 “To evaluate an anti-SLAPP motion, a court engages in a two-part inquiry. The defendant 18 bears the initial burden to show that the statute applies because the lawsuit arises from defendant's 19 act in furtherance of its right of petition or free speech. If the defendant meets its burden, the 20 burden shifts to plaintiff to demonstrate a probability of prevailing on the merits of each of 21 plaintiff’s claims.” Doe v. Gangland Prods., Inc., 730 F.3d 946, 953 (9th Cir. 2013) (citations 22 omitted). The anti-SLAPP statute applies to state-law claims in federal court and is “broadly 23 construed.” See Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 24 F.3d 414, 422 (9th Cir. 2014). “If a defendant makes a special motion to strike based on alleged 25 deficiencies in the plaintiff’s complaint, the motion must be treated in the same manner as a 26 motion under Rule 12(b)(6) except that the attorney’s fee provision of [Cal. Civ. Pro. Code] 27 § 425.16(c) applies.” Rogers v. Home Shopping Network, Inc., 57 F. Supp. 2d 973, 983 (C.D. Cal. 28 ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND DISMISS CASE NO. 16-cv-00935-RS 3 Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 4 of 10 1 1999). IV. DISCUSSION United States District Court Northern District of California 2 3 A. Nature of the speech 4 The first inquiry in deciding an anti-SLAPP motion is whether plaintiff’s claims arise 5 “from any act of [the defendants] in furtherance of [their] right of . . . free speech . . . in 6 connection with a public issue. Cal. Civ. Proc. Code § 425.16(b)(1). Such acts include “any 7 written or oral statement or writing made in a place open to the public or a public forum in 8 connection with an issue of public interest, or . . . any other conduct in furtherance of the exercise 9 of the constitutional right of . . . free speech in connection with a public issue or an issue of public 10 interest.” Id. § 425.16(e)(3)-(4). What constitutes an “issue of public interest” is construed 11 broadly: 12 13 14 ‘[A]n issue of public interest’ within the meaning of section 425.16, subdivision (e)(3) is any issue in which the public is interested. In other words, the 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. 15 16 Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008) (emphasis in original). See 17 also, e.g., California Pub. Employees’ Ret. Sys. v. Moody’s Inv’rs Serv., Inc., 226 Cal. App. 4th 18 643, 658-61(2014) (holding that Moody’s credit ratings were speech on an issue of public interest 19 under the first prong of the anti-SLAPP inquiry). Meanwhile, “[a]n act is in furtherance of the 20 right of free speech if the act helps to advance that right or assists in the exercise of that right.” 21 Tamkin v. CBS Broad., Inc., 193 Cal. App. 4th 133, 143 (2011). 22 Undoubtedly, movie ratings are made “in connection with an issue of public interest.” 23 Movies are produced and released for public consumption, and movie ratings speak generally to 24 the content of movies and their suitability for different audiences. See Time Warner Entm’t Co., 25 L.P. v. F.C.C., 93 F.3d 957, 982 (D.C. Cir. 1996) ([T]here is . . . no doubt that [movie] ratings 26 supply useful and important information to parents, and to their children, about what to expect [in 27 a movie]. “) Movie ratings are also “in furtherance of free speech,” because movies themselves 28 ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND DISMISS CASE NO. 16-cv-00935-RS 4 United States District Court Northern District of California Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 5 of 10 1 are a form of free speech, and the ratings help advance that free speech by giving potential 2 audiences an indication of a movie’s content or suitability. See Greater Los Angeles Agency on 3 Deafness, 742 F.3d at 423 (holding that “CNN’s decision to publish and its publication of online 4 news videos without closed captions” was in furtherance of free speech). 5 The primary thrust of Forsyth’s opposition to this motion is his contention that the rating 6 system represents “pure commercial speech,” such that there is no “public interest” to trigger the 7 anti-SLAPP statute and no First Amendment issue undermining the viability of the complaint 8 either for purposes of anti-SLAPP or in the Rule 12(b)(6) analysis.1 Forsyth argues his claims do 9 not implicate any speech defendants may wish to engage in regarding the ratings system, the 10 ratings themselves, or the underlying films. Rather, Forsyth contends, the only speech his claims 11 are “based on” are the “certification trademarks” of “G,” “PG,” “PG-13,” and “R” that CARA has 12 registered in various forms. A certification mark is “any word, name, symbol, or device, or any combination thereof— 13 14 [¶] (1) used by a person other than its owner, or [¶] (2) which its owner has a bona fide intention to 15 permit a person other than the owner to use in commerce and files an application to register on the 16 principal register established by this Chapter, [¶] to certify regional or other origin, material, mode 17 of manufacture, quality, accuracy, or other characteristics of such person's goods or services or 18 that the work or labor on the goods or services was performed by members of a union or other 19 organization.” 15 U.S.C. § 1127. Forsyth relies on All One God Faith, Inc. v. Organic & 20 Sustainable Indus. Standards, Inc., 183 Cal. App. 4th 1186 (2010), in which a plaintiff sought to 21 22 23 24 25 26 27 28 1 Defendants excoriate Forsyth for, in their view, having attempted to “rewrite” his complaint in the opposition rather than defending it as pleaded. Indeed, the opposition relies heavily on the notion that CARA’s ratings are “certification trademarks,” formally registered with the Patent and Trademark Office, a point barely mentioned in the complaint. Defendants do not suggest, however, that registration of the certification trademarks cannot be considered in the motion to dismiss, and do not object to Forsyth’s request for judicial notice of the registrations, which is hereby granted. Furthermore, although the complaint is replete with legal arguments that differ from those on which Forsyth now relies, the points which he seems to have abandoned are exactly that—legal arguments, which are not strictly appropriate for inclusion in a complaint in the first instance. It does not appear that Forsyth’s opposition relies on materially different or additional facts from those pleaded in the complaint or subject to judicial notice. ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND DISMISS CASE NO. 16-cv-00935-RS 5 Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 6 of 10 1 enjoin an industry association from applying a certification mark it was in the process of 2 registering to goods that met the organization’s standards (also under development at the time) for 3 what properly could be described as “organic.” The California Court of Appeal held that 4 application of the industry association’s “OASIS organic” seal—a certification trademark—to a 5 particular product would only be a representation of the product’s ingredients and quality, not an 6 exercise of speech on a matter of public interest subject to protection under the anti-SLAPP 7 statute. Id. at 1203-04. Forsyth contends the same result should apply here to CARA’s 8 certification trademarks. The flaw in Forsyth’s reasoning, however, is that while some certification trademarks United States District Court Northern District of California 9 10 undoubtedly are merely representations of the characteristics of products and therefore arguably 11 only commercial speech outside the purview of anti-SLAPP and entitled to only limited First 12 Amendment protections, CARA’s marks serve a different purpose and arise in a different context. 13 Indeed, the certification statements filed with the PTO when each of the marks was registered 14 plainly explain that CARA is merely “certifying” that “in its opinion” the particular film warrants 15 a particular level of parental caution. Furthermore, the underlying “product”—films—are not 16 mere commercial products, but are expressive works implicating anti-SLAPP concerns and plainly 17 entitled to full First Amendment protection.2 18 Moreover, with respect to anti-SLAPP, the statute itself expressly recognizes the 19 distinction. While the legislature amended the law so that it generally would not apply to claims 20 arising from commercial advertising (Cal. Code Civ. P § 425.17(c)), it provided a carve-out for 21 “[a]ny action against any person or entity based upon the creation, dissemination, exhibition, 22 23 24 25 26 2 See also, In re Tam, 808 F.3d 1321 (Fed. Cir. 2015). In Tam, the Court held the Lanham Act’s bar on the registration of “scandalous, immoral, or disparaging” trademarks, 15 U.S.C. § 1052(a), is an invalid regulation of speech, because trademarks “often have an expressive aspect over and above their commercial-speech aspect.” Id. at 1338. After briefing in this matter was complete, the Supreme Court granted a petition for a writ of certiorari in Tam on the question of whether that provision of the Lanham Act is invalid on its face. 27 28 ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND DISMISS CASE NO. 16-cv-00935-RS 6 Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 7 of 10 1 advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic 2 work, including, but not limited to, a motion picture or television program.” Cal. Code Civ. P § 3 425.17(d)(2). As to such actions, the statute continues to apply. 4 Finally, even assuming the ratings themselves could somehow be deemed not to constitute 5 speech protected under the anti-SLAPP statute, CARA’s acts in applying the ratings to movies 6 would constitute “conduct in furtherance of the exercise of the . . . . constitutional right of free 7 speech. Cal. Code Civ. P. § 425.16(e)(4). Thus, defendants have satisfied the first prong of the 8 anti-SLAPP inquiry. United States District Court Northern District of California 9 10 B. The claims 11 The parties are in agreement that because defendants’ anti-SLAPP motion challenges the 12 complaint on its face, the second prong—that a plaintiff be able to demonstrate a probability of 13 prevailing on the merits—folds into the analysis under Rule 12(b)(6) as to whether a claim has 14 been stated. As reflected in the discussion above, CARA holds First Amendment rights to express 15 its opinions that are reflected in the ratings system. Even focusing on the certification marks 16 alone, that right precludes the basic relief Forsyth seeks in this action—forcing CARA to express 17 different or additional opinions. Accordingly, none of the claims are tenable under Rule 12(b)(6) 18 and the second prong of the anti-SLAPP inquiry. Each claim, as noted below, also fails 19 independently of the First Amendment issue. 20 21 Misrepresentation 22 Forsyth insists that a rating less stringent than R is a representation that “the film is 23 suitable for children under seventeen unaccompanied by a parent or guardian. The ratings plainly 24 make no such representations. Rather, the PG and PG-13 ratings caution parents that material in 25 such movies may be inappropriate for children. More fundamentally, the ratings reflect the 26 27 28 ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND DISMISS CASE NO. 16-cv-00935-RS 7 Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 8 of 10 1 consensus opinion of CARA board members.3 As such, neither intentional nor negligent 2 misrepresentation claims are tenable as pleaded. 3 4 Negligence 5 To the extent Forsyth’s negligence claim relies on CARA’s communication of the ratings 6 to the public, it is duplicative of negligent misrepresentation, and fails for the same reasons. To 7 the extent Forsyth may contend some other conduct on defendants’ part is negligent, he has failed 8 to allege facts giving rise to any legal duty.4 United States District Court Northern District of California 9 10 Breach of Fiduciary Duty 11 Forsyth has alleged no facts that would, if proven, establish defendants had a fiduciary 12 duty towards him or the putative class. 13 14 Nuisance 15 “[A] private nuisance is a civil wrong based on disturbance of rights in land while a public 16 nuisance is not dependent upon a disturbance of rights in land but upon an interference with the 17 rights of the community at large.” Venuto v. Owens-Corning Fiberglas Corp., 22 Cal.App.3d 116, 18 124 (1971) (internal citation omitted). Forsyth’s allegation that defendants’ conduct can be 19 characterized as a private nuisance fails because no infringement on real property rights is, or 20 could be, alleged. The public nuisance label fails because Forsyth has not shown how the alleged 21 facts create a public nuisance, or even assuming there is a public nuisance, how it would be 22 23 24 25 26 27 28 3 Additionally, the facts pleaded fall short of establishing justifiable reliance. Indeed, given Forsyth’s allegations that he purchased tickets to ten movies over four years, he cannot plausibly allege he understood a rating less than R meant a film would contain no tobacco imagery. 4 Defendants also contend the negligence and other claims fail for lack of proximate cause. Forsyth openly acknowledges that the putative class—parents of children exposed to tobacco imagery in movies—cannot recover for the alleged resulting increases in disease and death from tobacco use. The complaint alleges, however, that the class suffered financial injury from purchasing tickets for their children to watch movies that they would not have attended if rated R. ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND DISMISS CASE NO. 16-cv-00935-RS 8 Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 9 of 10 1 “specially injurious” to him. See Cal. Civil Code §3493 (“A private person may maintain an 2 action for a public nuisance, if it is specially injurious to himself, but not otherwise.”); Venuto, 3 supra, 22 Cal.App.3d at 124 (“Where the nuisance alleged is not also a private nuisance as to a 4 private individual he does not have a cause of action on account of a public nuisance unless he 5 alleges facts showing special injury to himself in person or property of a character different in kind 6 from that suffered by the general public.” )(internal citations omitted). 7 8 False advertising 9 Forsyth has alleged no facts sufficient to support a false advertising claim, for the same 10 reasons that the more general misrepresentation claims fail. United States District Court Northern District of California 11 12 UCL 13 With the failure of all of the underlying alleged claims of wrongful conduct, the UCL 14 claim necessarily falls as well. 15 16 CONCLUSION 17 The motion to strike and the motion to dismiss are granted. While the possibility of curing 18 19 the defects identified in this order through amendment appears remote, Forsyth will be given the 20 opportunity to do so, in the event he has a good faith basis to offer different facts or claims that 21 would alter the analysis.5 Any amended complaint shall be filed within 20 days of the date of this 22 order. 23 24 25 26 27 28 5 Following the hearing, Forsyth sought leave to file a supplemental brief. Although that brief may attempt to articulate some of his arguments in a slightly different fashion and with what he believes is greater clarity, he has not shown it to contain anything materially new or different. Nor, to the extent the proposed supplemental brief could be construed as presenting anything substantively distinct from what was presented in the prior briefing and at argument, has Forsyth shown a basis for presenting it at this late point in time. Accordingly, the request for leave to file the supplemental brief is denied. ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND DISMISS CASE NO. 16-cv-00935-RS 9 Case 3:16-cv-00935-RS Document 59 Filed 11/10/16 Page 10 of 10 1 IT IS SO ORDERED. 2 3 4 5 Dated: November 10, 2016 ______________________________________ RICHARD SEEBORG United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS’ MOTIONS TO STRIKE AND DISMISS CASE NO. 16-cv-00935-RS 10