Judicial Notice of Internet Evidence — Governmental vs. Non-Governmental, Including Parties’, Websites — Purpose & Extent of Notice

Gerritsen v. Warner Bros. Entm’t Inc., 2015 U.S. Dist. LEXIS 84978 (C.D. Cal. Jan 30, 2015):

On April 29, 2014, Terry T. Gerritsen filed this action against Katja Motion Picture Corporation ("Katja"), New Line Productions, Inc. ("New Line"), and Warner Bros. Entertainment, Inc. ("WB") (collectively, "defendants").1 On June 20, 2014, defendants filed a motion to dismiss Gerritsen's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.2 Gerritsen opposes the motion,3 and objects to a declaration submitted by defense counsel and the exhibits attached thereto.4 Defendants filed a response to Gerritsen's objection on September 15, 2014.5 On September 8, 2014, Gerritsen filed two separate requests for judicial notice, which in combination [*2]  seek to have the court judicially notice 48 exhibits.6 Defendants opposed the requests on September 15, 2014.7

1   Complaint, Docket No. 1 (Apr. 29, 2014).

2   Notice of Motion and Motion to Dismiss Case ("Motion"), Docket No. 8 (June 20, 2014).

3   Opposition to Motion to Dismiss ("Opposition"), Docket No. 13 (Sept. 8, 2014).

4   Objection in Opposition to Declaration of Ashley Pearson and Attached Exhibits ("Opposition to Pearson Decl."), Docket No. 15 (Sept. 8, 2014).

5   Response to Plaintiff's Objections to Declaration of Ashley Pearson and Attached Exhibits ("Response Supporting Pearson Decl."), Docket No. 19 (Sept. 15, 2014).

6   Request for Judicial Notice in Support of Opposition ("RJN"), Docket No. 14 (Sept. 8, 2014); Additional Request for Judicial Notice in Support of Opposition ("Second RJN"), Docket No. 16 (Sept. 8, 2014).

7   Defendants' Opposition to Plaintiff's Request for Judicial Notice ("RJN Opposition"), Docket No. 18 (Sept. 15, 2014); Defendants' Opposition to Plaintiff's Additional Request for Judicial Notice ("Second RJN Opposition"), Docket No. 20 (Sept. 15, 2014).

On September 26, 2014, the court took defendants' motion to dismiss under submission pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15.8 For the reasons that follow, [*3]  the court grants the motion.

8   See (In Chambers) Order Taking Hearing on Defendants' Motion to Dismiss Off Calendar, Docket No. 22 (Sept. 26, 2014).

I. FACTUAL BACKGROUND

Gerritsen is an international best-selling, award-winning author whose novels have frequently appeared on the New York Times Best Seller list.9 WB is in the business of developing, producing, distributing, and marketing motion pictures, including the 2013 film Gravity (the "Film").10 In 1999, Gerritsen completed a novel titled Gravity (the "Book"), which was published by Simon and Schuster in September of that year.11 Gerritsen alleges that the Book, set in orbital space, features a female doctor/astronaut who is stranded alone aboard a space station after a series of disasters kill the rest of the crew; the book details her struggle to survive.12 Gerritsen asserts she did extensive research prior to and while writing the Book to ensure that her depiction of NASA technology was realistic.13 Based on a manuscript it saw before the Book was published, Katja entered into a written contract (the "contract") with Gerritsen on March 18, 1999, to purchase motion picture rights to the Book, as well as "any and all versions thereof."14 The [*4]  contract provided that Katja would pay Gerritsen $1,000,000 in exchange for these rights. It further provided that, if a motion picture based on the Book were produced, Katja would pay Gerritsen (1) a $500,000 production bonus and (2) contingent compensation in the amount of 2.5% of the defined net proceeds of the motion picture. It also agreed to give her (3) onscreen credit and credit in paid advertisements that read "Based on the book by Terri Gerritsen."15 New Line executed and delivered a continuing guaranty, guaranteeing "full and faithful performance" by Katja of its obligations under the contract.16 Gerritsen alleges on information and belief that, at the time the contract was signed, Katja was a wholly-owned subsidiary of New Line, and was a shell entity that was completely dominated and controlled by New Line.17 She asserts that Katja regularly used New Line to acquire literary material it could use to produce viable motion picture screenplays.18 She contends, on information and belief, that after a screenplay was written and produced, Katja assigned rights in the work to New Line or another entity controlled by New Line; this entity ultimately produced and distributed the film.19 [*5]  For this reason, she alleges, the parties understood and intended at the time of contracting that, if a motion picture were to be produced based on the Book, Katja would assign its rights to New Line or an entity controlled by New Line.20

9   Complaint, ¶ 9.

10   Id., ¶ 10.

11   Id., ¶ 12.

12   Id.

13   Id.

14   Id., ¶ 13; Exh. 1; Gravity Purchase Agreement.

15   Id., ¶¶ 14, 24.

16   Id., ¶ 15.

17   Id., ¶ 16.

18   Id.

19   Id.

20   Id.

Following its acquisition of the motion picture rights to the Book, Katja sought to develop a film with New Line and Artists Production Group ("APG").21 Gerritsen asserts that while a screenplay is being written, a director is often "attached" to the project to supervise screenplay creation; this individual has access to the literary work upon which the screenplay is to be based.22 She contends, on information and belief, that writer and director Alfonso Cuarón was attached to the project of writing a screenplay based on the Book.23 Gerritsen was purportedly not told that Katja had attached Cuarón to the project.24 To assist with the writing of the screenplay, Gerritsen wrote additional scenes in which satellite debris collided with the International Space Station, leaving the female doctor/astronaut drifting in a space suit searching [*6]  for ways to return to Earth.25 Under terms of the contract, Katja owned this additional written work.26

21   Id., ¶ 17.

22   Id.

23   Id.

24   Id.

25   Id., ¶ 18.

26   Id.

Gerritsen alleges on information and belief that, sometime after 2002, Cuarón and his son Jonas Cuarón, wrote a screenplay titled Gravity (the "Cuarón Gravity Project"), which featured the same characters and storyline as the Book and Gerritsen's additions thereto.27 In 2008, WB acquired control of New Line and Katja.28 Gerritsen asserts on information and belief that, by virtue of the WB-New Line transaction, WB assumed Katja's and New Line's rights and duties under the contract.29

27   Id., ¶ 19.

28   Id., ¶ 20.

29   Id., ¶ 20.

On December 17, 2009, the Cuaróns granted all rights in the Cuarón Gravity Project to WB.30 In or about 2011, WB began production of the Film, with Cuarón as its director.31 The Film includes scenes of satellite debris colliding with the International Space Station; as a result, a female astronaut is set adrift in space, and desperately seeks a way to return to Earth.32 The screenplay credit for the Film states that it was "written by Alfonso Cuarón and Jonas Cuarón."33 Gerritsen alleges that, by including such a credit, WB represented to the public that the Film [*7]  was based on the Cuaróns' original work.34 The Film was released in the United States on October 4, 2013, and to date has reported box office gross revenue of more than $700,000,000.35 The Film won seven Oscars.36

30   Id., ¶ 21.

31   Id., ¶ 22.

32   Id.

33   Id.

34   Id.

35   Id.

36   Id.

Gerritsen alleges that Katja should have objected to WB's production of the Film because it was based on a literary property owned by Katja.37 Katja purportedly did not object, however, because it is controlled by WB and WB thus effectively owned the motion picture rights to the Book.38 More specifically, she alleges, on information and belief, that subsequent to 2008, New Line and Katja became shell corporations wholly owned by WB, and mere conduits through which WB conducts business.39 She asserts that to the extent Katja and New Line transact any business at all, it is at the sole discretion and for the sole benefit of WB.40 Gerritsen contends that WB manages, controls, and dominates New Line and Katja, and that there is a complete unity of interest among them. She asserts that an inequitable result will follow if Katja and New Line are not treated as WB's alter egos.41

37   Id.

38   Id.

39   Id., ¶ 6.

40   Id.

41   Id.

Gerritsen pleads claims for breach of written contract against [*8]  Katja and WB, and breach of guaranty against New Line and WB. She seeks an accounting from all defendants.42

42   Id., PP 23-38.

***

Some of the newspapers and press releases Gerritsen seeks to have judicially [*33]  noticed appear on third party websites, such as Wikipedia, Answers.com, Deadline.com, and Slashfilm.com.85 As a general matter, courts are hesitant to take notice of information found on third party websites and routinely deny requests for judicial notice, particularly when the credibility of the site's source information is called into question by another party. See, e.g., In re Yagman, 473 Fed. Appx. 800, 801 n. 1 (9th Cir. June 14, 2012) (Unpub. Disp.) (declining to take judicial notice of information contained in attorney's curriculum vitae and appearing on his Wikipedia page); Altman v. HO Sports Co., Inc., 821 F.Supp.2d 1178, 1181 n. 2 (E.D. Cal. 2011) ("Altman objects to the request for judicial notice. Specifically, Altman objects to two articles from wikipedia on the basis that wikipedia is not an adequate source for purposes of judicial notice. Altman's objections will be sustained"); Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 976 n. 19 (C.D. Cal. 2010) ("It is unfortunate that the parties were unable to provide more authoritative evidence. One court recently noted the danger of relying on Wikipedia: 'Wikipedia.com [is] a website that allows virtually anyone to upload an article into what is essentially a free, online encyclopedia. A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia [*34]  article may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized; (ii) Wikipedia articles are also subject to remarkable oversights and omissions; (iii) Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;' (iv) '[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written; and (v) many articles commence their lives as partisan drafts' and may be caught up in a heavily unbalanced viewpoint.' Campbell ex rel. Campbell v. Secretary of Health and Human Services, 69 Fed.Cl. 775, 781 (2006)"); Ruiz v. Gap, Inc., 540 F.Supp.2d 1121, 1124 (N.D. Cal. 2008) ("Gap's request for judicial notice is also DENIED. Federal Rule of Evidence 201 permits courts to take judicial notice of facts that are 'not subject to reasonable dispute.' Gap seeks judicial notice for two sets of materials: a study from an internet site on identity theft, and a list, also from an internet site, of data breach incidents reported in California in the last two years. Neither of these documents contain information which is 'generally known within the territorial jurisdiction of the trial court' [*35]  or 'capable of accurate and ready determination.' In short, these materials are not remotely akin to the type of facts which may be appropriately judicially noticed").

85   RJN at 10-11.

Defendants object to the court taking judicial notice of information that appears on these third party websites; they argue the websites contain "unreliable, inaccurate information."86 The court agrees with defendants that information appearing on the third party websites is not a proper subject of judicial notice because it is not capable of accurate and ready determination. Thus, for this additional reason, the court denies Gerritsen's request to take judicial notice of information contained in press releases and news articles that appear on third party websites.

86   Opposition to RJN at 1-3.

Finally, and most fundamentally, to the extent the court can take judicial notice of press releases and news articles, it can do so only to "indicate what was in the public realm at the time, not whether the contents of those articles were in fact true." Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2009) (citing Premier Growth Fund v. Alliance Capital Mgmt., 435 F.3d 396, 401 n. 15 (3d Cir. 2006)); ; In re Disciplinary Proceedings of Yana, No. 2012-SCC-0017-ADA, 2014 WL 309314 (N. M.I. Jan. 28, 2014) ("Newspaper articles generally, and statements during an interview specifically, are not always free of reasonable dispute. Ordinarily, [*36]  then, we only take 'judicial notice of publications introduced to "indicate what was in the public realm at the time, not whether the contents of those articles were in fact true,"'" quoting Von Saher); United States v. Kane, No. 2:13-cr-250-JAD-VCF, 2013 WL 5797619, *9 (D. Nev. Oct. 28, 2013) ("When a court takes judicial notice of publications like websites and newspaper articles, the court merely notices what was in the public realm at the time, not whether the contents of those articles were in fact true" (citations omitted)); Brodsky v. Yahoo! Inc., 630 F.Supp.2d 1104, 1111-12 (N.D. Cal. 2009) ("The Court also grants Defendants' request [for judicial notice] as to Exhibits 31 through 47, Yahoo! Press releases, news articles, analyst reports, and third party press releases to which the SAC refers, but not for the truth of their contents" (emphasis added)).

Gerritsen clearly seeks to have the court take judicial notice of the truth of the facts stated in the various press releases and news articles. This the court cannot do. Because it is irrelevant, for purposes of defendants' motion to dismiss, that the information in the press releases and news articles was publicly available, the court declines to take judicial notice of the newspaper articles and press releases Gerritsen cites.

b. Information [*37]  Published on Websites, and Especially on a Party's Website

Gerritsen also requests that the court take judicial notice of information found on third party websites, including WB's website.87 Gerritsen again fails to identify the exhibits that are the subject of this request; she identifies only the "judicially noticeable facts" to which the exhibits refer.88 Defendants make the same objections to these exhibits that they raised concerning the third party websites that were the subject of Gerritsen's first request for judicial notice.89 For the reasons earlier articulated, the court declines to take judicial notice of information found on third party websites. The court similarly declines to take judicial notice of information on WB's website. Although Gerritsen appears to argue that authenticity and accuracy concerns are not present with respect to information found on defendants' websites, the court cannot agree.

87   RJN at 11.

88   Id.

89   Opposition to RJN at 2.

Federal courts considering the issue have expressed skepticism as to whether it is appropriate to take judicial notice of information or documents appearing on websites that are created and maintained by a party to the litigation. See, e.g., Stewart v. Stoller, No. 2:07-cv-552- [*38] DB-EJF, 2014 WL 1248072, *1-2 (D. Utah Mar. 25, 2014) ("The court has even greater concern because Ms. Stewart appears to have edited the proposed documents to include calculation of the damages to her; making a party to the suit the source of information of which that same party seeks the Court to take judicial notice. Courts express additional skepticism about taking judicial notice of party-created documents. The facts Ms. Stewart tenders do not meet the high standard required for judicial notice. The Court therefore denies Ms. Stewart's Motion"); Koenig v. USA Hockey, Inc., No. 2:09-cv-1097, 2010 WL 4783042, *2 (S.D. Ohio June 14, 2010) ("One court has gone so far as to describe information available from private Internet websites as 'no[t] remotely akin to the type of facts which may be appropriately judicially noticed.' Ruiz v. Gap, Inc., 540 F.Supp.2d 1121, 1124 (N.D. Cal. 2008). Similar concern has been expressed about information from a website that is created by one of the parties to the case," citing Scanlon v. Texas A & M University, 343 F.3d 533, 536 (5th Cir. 2003) (holding that the court should not take judicial notice of a 'defendant-created report' appearing on the Internet)).

Here, to the extent that Gerritsen asks the court to take judicial notice of information on WB's website, she fails to demonstrate that the information is capable of "accurate and ready determination" in the territorial [*39]  jurisdiction of the court, such that it is a proper subject of judicial notice. Accordingly, the court declines to take judicial notice of information published on private websites, including information that appears on WB's website. See Koenig, 2010 WL 4783042 at *3 ("This Court concludes that federal courts should be very reluctant to take judicial notice of information or documents that appear exclusively on websites which have been created and are maintained by one of the parties to a case unless that party is a governmental body and the website is maintained not to further the business interests of the party but to provide a source of public information. The potential for fabrication or for inaccurate information is simply too great to be reconciled with the language of Rule 201 to the effect that judicial notice may be taken only if the information comes from 'sources whose accuracy cannot reasonably be questioned.' As the Advisory Committee notes to Rule 201 state, '[a] high degree of indisputability is an essential prerequisite for a court to take judicial notice of a particular fact.' See Holland v. United States, [No. 06-2700-STA-tmp,] 2008 WL 2769367, *3 (W.D. Tenn. July 11, 2008). The documents tendered by USA Hockey simply do not meet this standard. Therefore, the Court [*40]  will not only decline to take judicial notice of them, but will strike them from the motion to dismiss").90

90   Other courts have viewed the matter differently and have taken judicial notice of information appearing on a party's website. See, e.g., Jeandron v. Board of Regents of University System of Maryland, 510 Fed. Appx. 223, 227 (4th Cir. Feb. 14, 2013) (Unpub. Disp.) ("A court may take judicial notice of information publicly announced on a party's web site, so long as the web site's authenticity is not in dispute and 'it is capable of accurate and ready determination,'" citing FED.R.EVID. 201(b); O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007)); In re UBS Auction Rate Securities Litigation, No. 08 Civ 2967 (LMM), 2010 WL 2541166, *15 (S.D.N.Y. June 10, 2010) ("[I]t is appropriate to take judicial notice of the contents of a party's website"); Doron Precision Systems, Inc. v. FAAC, Inc., 423 F.Supp.2d 173, 179 n. 8 (S.D.N.Y. 2006) ("For purposes of a 12(b)(6) motion to dismiss, a court may take judicial notice of information publicly announced on a party's website, as long as the website's authenticity is not in dispute and 'it is capable of accurate and ready determination," citing FED.R.EVID. 201(b); Town of Southhold v. Town of East Hampton, 406 F.Supp.2d 227, 232 n. 2 (E.D.N.Y. 2005); Sarl Louis Feraud Int'l v. Viewfinder Inc., 406 F.Supp.2d 274, 277 (S.D.N.Y. 2005)); Monsanto Co. v. Pacificorp, No. CV 01-607 E LMB, 2006 WL 1128226, *8 n. 4 (D. Idaho Apr. 24, 2006) ("'[A] court may take judicial notice of information publicly announced on a party's website,'" citing Doron Precision Systems).

Some courts that have taken judicial notice of such websites, however, have done so only "for the fact of the website's publication, not for the truth [*41]  of any matter asserted therein." Braun v. United Recovery Systems, LP, 14 F.Supp.3d 159, 169 (S.D.N.Y. 2014) (citing In re UBS Auction Rate Securities Litig., 2010 WL 2541166 at *15); see Kane, 2013 WL 5797619 at *9 ("When a court takes judicial notice of publications like websites and newspaper articles, the court merely notices what was in the public realm at the time, not whether the contents of those articles were in fact true," citing Premier Growth Fund, 435 F.3d at 401 n. 15; Heliotrope Gen. Inc., 189 F.3d at 981 n. 118). As with Gerritsen's request that the court take judicial notice of press releases and news articles, it is clear that she seeks to have the court take judicial notice of information published on third party and WB's websites for the truth of the information published, not simply the fact of its publication. Even if the court were to take notice of the information, it would do so only for that purpose. As the fact that the information was publicly available on the sites is not relevant to decision of defendants' motion to dismiss, the court declines for this reason as well to take judicial notice of the information appearing on the various websites.

***

d. Information on Government Websites

Gerritsen also seeks to have the court judicially notice the business entity profiles for Katja and New Line retrieved from the California Secretary of State's website.94 Defendants do not oppose Gerritsen's request. Under Rule 201, the court can take judicial notice of "[p]ublic records and government documents available from reliable sources on the Internet," such as websites run by governmental agencies. See Hansen Beverage Co. v. Innovation Ventures, LLC, No. 08-CV-1166-IEG, 2009 WL 6597891, *1 (S.D. Cal. Dec. 23, 2009) (citing Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999)). See also Daniels-Hall v. National Education Association, 620 F.3d 992, 999 (9th Cir. 2010) (taking judicial notice of information on the websites of two school districts because they were government entities); Paralyzed Veterans of Am. v. McPherson, No. C 06-4670, 2008 WL 4183981, *5 (N.D. Cal. Sept. 8, 2008) ("Information on government agency websites has often been treated as properly subject to judicial notice"). The court will therefore take judicial notice of the business entity profiles on the California Secretary of State's [*48]  website (Exhs. 42 and 43).

94   RJN at 12.

e. Public Records

Gerritsen seeks finally to have the court take judicial notice of defendants' motion to dismiss and the fact that the same law firm -- O'Melveny & Myers, LLP -- represents Katja, New Line, and WB. 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. Molus v. Swan, No. 05cv452-MMA (WMc), 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) ("Courts also may take judicial notice of their own records," citing United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); see also Vasserman v. Henry Mayo Newhall Memorial Hosp.,     F.Supp.3d    , 2014 WL 6896033, *5 (C.D. Cal. Dec. 5, 2014) (taking judicial notice of the operative complaint in the action before the court); NovelPoster v. Javitch Canfield Group, No. 13-CV-05186-WHO, 2014 WL 5594969, *4 n. 7 (N.D. Cal. Nov. 3, 2014) ("In conjunction with the motion, defendants requested judicial notice of various documents, including NovelPoster's ex parte application for a temporary restraining order in this case and this Court's subsequent order . . . . Defendants' request for judicial notice of the TRO application and order is GRANTED"); In re Linda vVista Cinemas, L.L.C., 442 B.R. 724, 740 n. 7 (Bankr. D. Ariz. 2010) (stating that "[t]he court takes judicial notice of its own records," specifically, a declaration attached to the opposition to a motion for preliminary injunction, citing United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980)). Accordingly, the court grants Gerritsen's request for judicial notice of the motion to dismiss "although [Gerritsen] [*49]  [is] advised for future reference that [she] need not seek judicial notice of documents filed in the same case. An accurate citation will suffice." NovelPoster, 2014 WL 5594969 at *4 n. 7.

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