Ward v. Crow Vote LLC

634 F.Supp.3d 800

Bridget WARD, et al., Plaintiffs, v. CROW VOTE LLC, et al., Defendants.

Case No.: SA CV 21-1110-FWS-DFMx

United States District Court, C.D. California

Signed October 7, 2022

Jeffrey N. Wilens, Macy Lauren Wilens, Lakeshore Law Center, Yorba Linda, CA, Jeffrey P. Spencer, The Spencer Law Firm, Irvine, CA, for Plaintiffs.

Lewis S. Wiener, Pro Hac Vice, Eversheds Sutherland LLP, Washington, DC, Ronald W. Zdrojeski, Pro Hac Vice, Eversheds Sutherland, New York, NY, Ryan Michael Kroll, Solomon Saltsman and Jamieson, Playa del Rey, CA, Scott J. Hyman, Severson and Werson APC, Irvine, CA, Scott Adam Penner, Eversheds Sutherland U.S. LLP, San Diego, CA, for Defendants Crow Vote LLC, Darrin Austin, Edward Matney.

Ryan Michael Kroll, Solomon Saltsman and Jamieson, Playa del Rey, CA, Simren Kaur Gill, Bryan Cave Leighton Paisner LLP, Santa Monica, CA, for Defendant Does.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OF PLAINTIFFS' COMPLAINT [98]

Fred W. Slaughter, UNITED STATES DISTRICT JUDGE

Before the court is Defendants Crow Vote LLC, Darrin Austin, and Edward Matney's (collectively, "Defendants") Motion for Summary Judgment of Plaintiffs' Complaint or, in the Alternative, for Partial Summary Judgment ("Motion" or "Mot."). (Dkt. 98.) Defendants' Motion is supported by the declaration of Plaintiff Darrin Austin ("Austin Decl.") and exhibits. (Id.) On July 14, 2022, Plaintiffs Bridget Ward and Lisa Ward (collectively, "Plaintiffs") filed an Opposition to the Motion ("Opposition" or "Opp.") and a Request for Judicial Notice ("RJN"). (Dkts. 104, 105.) Plaintiffs' Opposition is supported by the declarations of Plaintiffs Bridget Ward ("B. Ward Declaration" or "B. Ward Decl.") and Lisa Ward ("L. Ward Declaration" or "L. Ward Decl."). (Dkts. 104-2, 104-3.) On July 21, 2022, Defendants filed a Reply ("Reply") and Evidentiary Objections. (Dkt. 107.) Based on the state of the record, as applied to the applicable law, the Motion is GRANTED.

I. PROCEDURAL BACKGROUND

On April 16, 2021, Plaintiffs filed a Complaint in the Superior Court of California, County of Orange ("Complaint" or "Compl."). (Dkt. 1-1.) The Complaint alleges two causes of action: violations of (1) California's Unfair Competition Law under California Business and Professions Code § 17200, et seq. (the "UCL"); and (2) Civil Racketeer Influenced and Corrupt Organizations ("RICO") under "18 U.S.C. § 1961(c)."¹ (Id.)

On June 24, 2021, Defendants removed the case to federal court based on federal question jurisdiction under 28 U.S.C. § 1331. (Dkt. 1.) On July 1, 2021, Defendants moved to compel arbitration, or, in the alternative, to dismiss for lack of personal jurisdiction, transfer venue, or dismiss for failure to state a claim. (Dkt. 12.) On October 7, 2021, the court denied Defendants' motion in full. (Dkt. 46.) On October 21, 2021, Defendants filed a Notice of Appeal to the Ninth Circuit challenging the court's denial of Defendants' motion to compel arbitration and stay the action pending arbitration. (Dkt. 50.)

On October 22, 2021, Defendants filed a motion to stay proceedings pending Defendants' appeal. (Dkt. 51.) On November 29, 2021, the court denied Defendants' motion to stay. (Dkt. 63.) On January 21, 2022, the Ninth Circuit denied Defendants' motion to stay the District Court proceedings. (Dkt. 68.) On February 9, 2022, Defendants filed a motion seeking entry of a case management order and bifurcation of the proceedings. (Dkt. 72.) On March 17, 2022, the court denied the motion to bifurcate the proceedings. (Dkt. 78.) On May 30, 2022, Plaintiffs filed a motion for class certification. (Dkt. 89.) The motion for class certification is fully briefed. (Dkts. 101, 103.)

On June 24, 2022, Defendants filed the Motion. (Dkt. 98.) On July 14, 2022, Plaintiffs opposed the Motion. (Dkts. 104, 105.) On July 21, 2022, Defendants filed a Reply and Evidentiary Objections. (Dkt. 107.) The court held a hearing on the Motion on August 11, 2022. (Dkt. 115.) At the conclusion of the hearing on the Motion, the court took the matter under submission. (Id.)

II. REQUEST FOR JUDICIAL NOTICE

a. Legal Standard

The court may take judicial notice of facts that are either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Courts cannot take judicial notice of facts subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.11, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Under Federal Rule of Evidence 201(b), a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.") (internal quotation marks omitted).

For example, "courts routinely take judicial notice of letters published by the government . . . as well as records and reports of administrative bodies." Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843, 851 n.10 (9th Cir. 2016) (citations and internal quotation marks omitted). Additionally, courts "may consider material which is properly submitted as part of the complaint on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment," if the material is "physically attached to the complaint." Lee, 250 F.3d at 688 (citations and internal quotation marks omitted). "But a court cannot take judicial notice of disputed facts contained in such public records." Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018).

b. Application

Plaintiffs request that the court take judicial notice of seven exhibits in support of the Opposition. (See RJN.)

1. Exhibit 1 is a copy of the official rules of the Favorite Chef Competition, previously filed at Dkt. 12-2.

2. Exhibit 2 is a copy of the Session Laws from the State of Arizona 1987 session of the Arizona legislature.

3. Exhibit 3 is a copy of the rules of American Idol, publicly available at URL https://idolvote.abc.com/#faq.

4. Exhibit 4 is a copy of the article " 'American Idol' Final 2021: What the Winner Actually Wins," published in Newsweek by Samuel Spencer on May 23, 2021.

5. Exhibit 5 is a copy of excerpts of the Declaration of Jeffrey Wilens in support of Plaintiffs' Motion for Class Certification and excerpts of Defendants' responses to interrogatories, previously filed at Dkt. 89-1. 6. Exhibit 6 is a copy of a press release regarding Kellogg's contest, "The Great Eggo Waffle Off," publicly available at URL https://newsroom.kelloggcompany.com/newsreleases?item=131434.

7. Exhibit 7 is a copy of the rules of the promotion "Barclays Small Business Big Wins 2022 Contest," publicly available at URL https://barclayssmallbizbigwins.com/rules/

(RJN, Exhs. 1-7.)

The court declines to take judicial notice of Exhibits 3, 4, 6, and 7 because the court need not rely on the documents to decide the Motion. See Gerritsen v. Warner Bros Ent. Inc., 112 F. Supp. 3d 1011, 1026-30 (C.D. Cal. 2015) (declining to take judicial notice of documents irrelevant to motion to dismiss); Warner v. Tinder Inc., 105 F. Supp. 3d 1083, 1090 (C.D. Cal. 2015) (declining to incorporate by reference documents because the "court need not consider the exhibits to grant [the] requested relief").

As for Exhibits 1 and 5, which are copies of documents previously filed at Dkts. 12-2 and 89-1, a court may take judicial notice of the filings on the docket in a case before that court. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) ("In particular, a court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases."); Gerritsen, 112 F. Supp. 3d at 1034 ("It is well established that a court can take judicial notice of its own files and records under Rule 201 of the Federal Rules of Evidence."); United States v. Lincir, 2021 WL 2224423, at *1 n.1 (C.D. Cal. June 1, 2021) ("[O]n a motion for summary judgment, a court considers evidence in the record, including declarations.").

As to Exhibit 2, which is a copy of the Session Laws from the State of Arizona's 1987 legislative session, a court may take judicial notice of documents published by a government body. See Smith, 830 F.3d at 851 n.10 ("[C]ourts routinely take judicial notice of letters published by the government . . . as well as records and reports of administrative bodies.") (citations and internal quotation marks omitted).

Accordingly, the court GRANTS Plaintiffs' Request for Judicial Notice as to Exhibits 1, 2, and 5, and DENIES Plaintiffs' Request as to Exhibits 3, 4, 6, and 7.

III. EVIDENTIARY OBJECTIONS

"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002); see also In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385 (9th Cir. 2010) ("A district court's ruling on a motion for summary judgment may only be based on admissible evidence."). In the context of a summary judgment, a district court "must also rule on evidentiary objections that are material to its ruling." Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). "A court can award summary judgment only when there is no genuine dispute of material fact. It cannot rely on irrelevant facts, and thus relevance objections are redundant." Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). Additionally, "when evidence is not presented in an admissible form in the context of a motion for summary judgment, but it may be presented in an admissible form at trial, a court may still consider that evidence." Id. at 1120.

" '[O]bjections to evidence...