Case :-cv-0-psg-sk Document Filed // Page of Page ID #: 0 0 RONALD J. SCHUTZ (admitted pro hac vice) Email: rschutz@robinskaplan.com PATRICK M. ARENZ (admitted pro hac vice) Email: parenz@robinskaplan.com RUTH L. OKEDIJI (admitted pro hac vice) Email: rokediji@robinskaplan.com 00 LaSalle Avenue, Suite 00 Minneapolis, MN 0 Telephone: 00 Facsimile: MICHAEL A. GEIBELSON (STATE BAR NO. 0) Email: mgeibelson@robinskaplan.com 0 Century Park E., Suite 00 Los Angeles, CA 00 Telephone: 0--00 Facsimile: 0--00 Attorneys for Plaintiffs Denise Daniels and The Moodsters Company Denise Daniels and The Moodsters Company; v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiffs, The Walt Disney Company; Disney Enterprises, Inc.; Disney Consumer Products and Interactive Media, Inc.; Disney Interactive Studios, Inc. Disney Shopping, Inc.; and Pixar Defendants. Case No. PLAINTIFFS OPPOSITION TO DISNEY S REQUEST FOR JUDICIAL NOTICE Judge: Hon. Philip S. Gutierrez Date: January, 0 Time: :0 p.m. Place: Courtroom A Action Filing Date: June, 0 CASE NO. :-CV-0-PSG-SK
Case :-cv-0-psg-sk Document Filed // Page of Page ID #: 0 0 Introduction Disney s desire to offer over 00 exhibits to support its record for its motion to dismiss confirms the need for this case to proceed on the merits. Neither the Federal Rules of Civil Procedure and Evidence, nor Due Process, permits Disney to try its case on a motion to dismiss. The issue on Disney s motion to dismiss is whether the Amended Complaint sets forth a plausible claim. Such motions are not opportunities to contest facts or weigh evidence. That is what trials are for. As set forth below, Disney s unwieldy and imprecise request for judicial notice is improper. This Court should deny the request, particularly to the extent that Disney requests the Court weigh evidence, interpret documents, or resolve issues of fact. Argument Disney fails to acknowledge the limited nature of Federal Rule of Evidence 0. Under Federal Rule of Evidence 0, [t]he court may judicially notice a fact that is not subject to reasonable dispute because it: () is generally known within the court s territorial jurisdiction; or () can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Harris v. Cty. of Orange, F.d, - (th Cir. 0) (citing Fed. R. Evid. 0) (emphasis added). Courts recognize that judicial notice is an explicitly limited doctrine. Hsu v. Puma Biotechnology, Inc., F. Supp. d, 0 (C.D. Cal. 0). The types of information accepted for judicial notice are routine and undisputed. For example, a court might take judicial notice that January,, was a Saturday, or that a party filed a brief opposing a motion in a state court case, or that a particular document was recorded with the county recorder s office. Id. Evidence that is otherwise inadmissible is not susceptible to Rule 0. See, e.g., Toth v. Grand Trunk R.R., 0 F.d, (th Cir. 00) (upholding district court s refusal to take judicial notice of facts that were barred by the Federal Rules of Evidence on other grounds). Finally, even if the existence of documents is accepted pursuant to judicial notice, the truth of statements contained in the CASE NO. :-CV-0-PSG-SK - -
Case :-cv-0-psg-sk Document Filed // Page of Page ID #: 0 0 document and improper interpretation are not subject to judicial notice if those matters are reasonably disputable. J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., F.d, 0 (th Cir. 00) (emphasis in original); Whitewater West Indus., LTD v. Pac. Surf Designs, Inc., 0 U.S. Dist. LEXIS, at *- (S.D. Cal. Oct. 0, 0). Exhibit A Moodsters Co. has no objection to the Court taking judicial notice of the existence of Exhibit A (DVD of Inside Out). Moodsters Co. objects to the Court weighing or considering it as evidence for purposes of finding or resolving facts on Disney s motion to dismiss. Jones v. Johnson, F.d, n. (th Cir. ); Neilson v. Union Bank of Cal., 0 F. Supp. d 0, (C.D. Cal. 00) ( [T]he court may not weigh evidence in deciding a motion to dismiss. ); J.E.W., F.d at 0. Exhibit B- Moodsters Co. has no objection to Disney s motion as it relates to Exhibits B and B (copyright registrations). Exhibits C C Moodsters Co. objects to Disney s motion as it relates to Exhibits C through C because it is unclear what adjudicative fact Disney offers these exhibits to establish. Disney s request does not offer any clarity, as its entire discussion notes that these exhibits are images from works referenced in the FAC by name and description. Dkt. No. at. Without more information, Moodsters Co. objects further on the basis of authenticity and hearsay. Fed. R. Evid. 0, 0. Disney also errs by contending that Moodsters Co. referred to Exhibits C-C in the Amended Complaint. Moodsters Co. referred to the underlying works reflected in C-C in the Amended Complaint, but Disney has not offered those works, but instead excerpted images from those works. Finally, Moodsters Co. objects to any weighing of evidence or interpretation of these documents as procedurally improper CASE NO. :-CV-0-PSG-SK - -
Case :-cv-0-psg-sk Document Filed // Page of Page ID #: 0 0 for a motion to dismiss pursuant to Rule (b)(). Jones, F.d at n.; Neilson, 0 F. Supp. d at ; J.E.W., F.d at 0. Exhibits D- through D- Disney s motion to take judicial notice of over 00 exhibits comprising over,000 pages is an abuse of Rule 0. It is also flawed. Here again, Disney does not specify what fact it asks the Court to take judicial notice of. Instead, it appears to request that the Court accept over 00 exhibits into an evidentiary record for a Rule (b)() motion. Moodsters Co. objects to these exhibits as inauthentic and hearsay documents. Fed. R. Evid. 0, 0. Moodsters Co. also objects to these exhibits to the extent Disney requests the Court weigh or assess the documents as evidence in connection with Disney s motion to dismiss. If Disney wants this Court to consider these exhibits, it should properly offer them into evidence, and Moodsters Co. should have an opportunity to offer competing evidence of its own. Due Process requires nothing less. Exhibits E- through E- Contrary to Disney s argument, not everything on the Internet is true. Moodsters Co., therefore, objects to Disney s request for the Court to take judicial notice of Exhibits E through E. E- & E- Moodsters Co. objects to these illegible Internet printouts. The incomplete nature of the images alone renders these exhibits sufficiently unreliable for the Court to take judicial notice of. See, e.g., Fed. R. Evid. 0 (requiring sources whose accuracy cannot reasonably be questioned ) (emphasis added). In addition, Disney s argument in its parallel memorandum of law that this Court should interpret the documents (i.e., draw conclusions about the import and meaning of channel view compared to videos watched, among other items) is not the type of adjudicative fact that is appropriate for judicial notice. See Ruiz v. Gap, Inv., 0 F. Supp. d, (N.D. Cal. 00) (finding list of data breaches from an CASE NO. :-CV-0-PSG-SK - -
Case :-cv-0-psg-sk Document Filed // Page of Page ID #: 0 0 internet site not remotely akin to the type of facts which may be appropriately judicially noticed ). Moodsters Co. objects on authenticity and hearsay grounds as well. Fed. R. Evid. 0, 0. E- through E- Disney s motion again does not identify what particular fact it wishes the Court to take judicial notice of. If Disney simply would like to establish that trailers for the movie Inside Out existed before Disney released the movie in theaters on June, 0, then there is no dispute. But Moodsters Co. objects to Disney s request for the Court to take judicial notice of these exhibits, or any interpretation of the exhibits or weighing of facts and evidence within the documents. Jones, F.d at n.; Neilson, 0 F. Supp. d at ; J.E.W., F.d at 0. Moodsters Co. objects on authenticity and hearsay grounds as well. Fed. R. Evid. 0, 0. E- Moodsters Co. objects to Disney s request for judicial notice of a color model in E-. While the scope of Disney s request is unclear, Disney s arguments in its memorandum of law for its motion to dismiss make clear that it wants this Court to interpret and assess the content of that document. Dkt. No. at. Such a request is improper. In Whitewater West Indus., LTD v. Pac. Surf Designs, Inc., for instance, the defendant requested judicial notice of a patent file history. 0 U.S. Dist. LEXIS, at *- (S.D. Cal. Oct. 0, 0). The existence of the file histories was not objectionable. Id. But the defendant s request for the Court to interpret or assess the file histories for purposes of determining facts (i.e., materiality for an inequitable conduct defense) was improper. Id. ( However, because the facts are subject to reasonable dispute, the Court does not take judicial notice of the truth of the statements contained in those documents. This dooms Defendants motion. ); see also Care First Surgical Ctr. v. ILWU-PMA Welfare Plan, No. CV -00 MMM (AGRx), 0 U.S. Dist. LEXIS, at * CASE NO. :-CV-0-PSG-SK - -
Case :-cv-0-psg-sk Document Filed // Page of Page ID #: 0 0 (C.D. Cal. Dec., 0) (explaining that evidence that may be relevant to an issue is not sufficient to establish judicial notice). Here too, this Court should not accept the truth of any of the statements in E-, or otherwise weigh and assess the document as evidence in connection with Disney s motion to dismiss. Jones, F.d at n.; Neilson, 0 F. Supp. d at ; J.E.W., F.d at 0; Ruiz, 0 F. Supp. d at ; Fed. R. Evid. 0, 0. Conclusion A motion on the pleadings is not the forum to admit evidence and attempt to prove or dispute facts. The issue for such a motion is whether a claim is plausible or not. Disney s attempts to offer over 00 exhibits is an abuse of Rule 0, and only serves to demonstrate that this case will be a hotly contested fact dispute. Disney s request for judicial notice confirms that this case warrants discovery, not dismissal. Moodsters Co. respectfully requests that the Court deny Disney s request for judicial notice, as set forth above. Dated: December, 0 Ronald J. Schutz (pro hac vice) Michael A. Geibelson (#0) Patrick M. Arenz (pro hac vice) Ruth L. Okediji (pro hac vice) By: /s/ Ronald J. Schutz Ronald J. Schutz (Pro Hac Vice) Attorneys for Plaintiffs Denise Daniels and The Moodsters Company CASE NO. :-CV-0-PSG-SK - -