`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
` Date: December 9, 2021
`
`
`
`
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
`
`
`
`
`
`
`
`Proceedings (In Chambers): ORDER DENYING DEFENDANTS’ MOTION FOR
`SUMMARY JUDGMENT [92]
`
`Deputy Clerk:
`Rita Sanchez
`
`Court Reporter:
`Not Reported
`
`Attorneys Present for Plaintiff:
`None Present
`
`Attorneys Present for Defendants:
`None Present
`
`
`
`Before the Court is Defendants Taylor Swift, Karl Martin Sandberg, Karl Johan
`Schuster, Sony/ATV Music Publishing, LLC, Kobalt Music Publishing America, Inc.,
`Big Machine Label Group, LLC, and Universal Music Group, Inc.’s Motion for
`Summary Judgment (the “Motion”), filed July 19, 2021. (Docket No. 92, 92-1).
`Plaintiffs Sean Hall d.b.a. Gimme Some Hot Sauce Music and Nathan Butler d.b.a.
`Faith Force Music filed an Opposition on August 23, 2021. (Docket No. 98).
`Defendants filed a Reply on September 13, 2021. (Docket No. 99).
`
`For the reasons below, the Motion is DENIED. Alhough Defendants have made
`a strong closing argument for a jury, they have not shown that there are no genuine
`issues of triable fact such that Defendants are entitled to judgment as a matter of law.
`
`The Request for Judicial Notice (Docket No. 92-113) is GRANTED.
`
`The Evidentiary Objections (Docket Nos. 98-25, 99-13) are OVERRULED.
`
`I.
`
`BACKGROUND
`A.
`
`Factual Background
`
`This Court has previously summarized the background of this case in connection
`with Defendants’ motion to dismiss. (Docket No. 65). The following background is
`substantially the same and as such will be condensed.
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 1
`
`
`
`
`Case 2:17-cv-06882-MWF-AS Document 104 Filed 12/09/21 Page 2 of 11 Page ID #:2998
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`
` Date: December 9, 2021
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`In 2001, Plaintiffs co-authored the song entitled Playas Gon’ Play (“Playas”).
`(Defendants’ Statement of Uncontroverted Facts (“DSUF”) No. 31 (Docket No. 92-2)).
`The song Playas was released to the public as a single from the female group 3LW’s
`album in May 2001. (DSUF No. 32; Defendants’ Response to Plaintiff’s Statement of
`Genuine Disputes (“DRPD”) No. 32 (Docket No. 99-12)). Playas became “a hit”
`following the release, including appearing on Billboard’s Hot 100 chart for weeks
`along with being on video countdowns on television channels such as TRL and MTV.
`(Docket No. 1 (“Complaint”)) ¶¶ 15–19).
`
`In 2014, Defendants co-authored the musical combinations entitled Shake it Off
`(“Shake”), which Swift performed and recorded before it was released to the public in
`August 2014. (Id. ¶ 26; DSUF No. 34). Shake debuted at number one on Billboard’s
`Hot 100 chart, remained there for 50 weeks, and has sold more than 9,000,000 copies
`to date. (Complaint ¶¶ 35–36).
`
`A comparison of the lyrics at issue can be found below:
`
`Playas
`
`Shake
`
`Playas, they gon’ play
`
`And haters, they gonna hate
`
`Ballers, they gon’ ball
`
`Shot callers, they gonna call
`
`That ain’t got nothing to do
`
`With me and you
`
`That’s the way it is
`
`That’s the way it is
`
`’Cause the players gonna play,
`play, play, play, play
`
`And the haters gonna hate, hate,
`hate, hate, hate
`
`Baby, I’m just gonna shake, shake,
`shake, shake, shake
`
`Shake it off
`
`Shake it off
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 2
`
`
`
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`Case 2:17-cv-06882-MWF-AS Document 104 Filed 12/09/21 Page 3 of 11 Page ID #:2999
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`
` Date: December 9, 2021
`
`
`
`Heartbreakers gonna break, break,
`break, break, break
`
`And the fakers gonna fake, fake,
`fake, fake, fake
`
`Baby, I’m just gonna shake, shake,
`shake, shake, shake
`
`Shake it off
`
`Shake it off
`
`(Motion at 9–10; Complaint ¶¶ 19–25, 27–28 (stating the original words are
`“Playas, they gonna play / And haters, they gonna hate”, rather than using “gon’”)).
`
`This suit arises by way of Plaintiffs’ allegation that Defendants have collectively
`infringed on Plaintiffs’ musical composition copyright in Playas in creating Shake,
`based upon alleged lyrical and structural similarities between the compositions
`underlying the two songs. (Complaint ¶¶ 23–25, 27–30, 41–50; DSUF No. 36.;
`Plaintiffs’ Genuinely Disputed Facts No. 43–69 (Docket No. 98-1 (“PGDF”))).
`Notably, Plaintiffs acknowledge that the concepts for Playas’ chorus was firmly rooted
`in pop culture at the time Playas was released but nonetheless claim that Plaintiffs’
`combination of the words in question was an original work that was then copied by
`Swift in Defendants’ creation of Shake’s chorus. (Complaint ¶¶ 20, 25, 27–28, 42–50).
`B.
`
`Procedural Background
`
`Plaintiffs filed their Complaint before the Court on September 18, 2017. (See
`generally Docket No. 1). The Complaint alleges copyright infringement of the musical
`composition underlying Playas and seeks: (1) a judicial determination that Defendants
`have infringed on Plaintiffs’ copyright, (2) damages, and (3) attorneys fees (Id.).
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 3
`
`
`
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`Case 2:17-cv-06882-MWF-AS Document 104 Filed 12/09/21 Page 4 of 11 Page ID #:3000
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`On January 3, 2018, Defendants filed a motion to dismiss Plaintiffs’ claim on
`the ground that the disputed lyrics lacked originality to enjoy copyright protection.
`(Docket No. 20). Plaintiffs opposed the motion to dismiss and Defendants replied.
`(Docket Nos. 25, 28). The Court heard oral argument from the parties and
`subsequently granted the motion. (Docket Nos. 29–30).
`
` Date: December 9, 2021
`
`After declining the opportunity to amend their Complaint, Plaintiffs appealed the
`dismissal to the Ninth Circuit. (Docket No. 38). The Ninth Circuit reversed the
`dismissal on the ground that the lyrics, as alleged in the Complaint, “plausibly alleged
`originality.” (9th Circuit Memorandum (Docket No. 49) at 2). Based on the 9th
`Circuit Memorandum and additional briefings (Docket Nos. 59, 62–64), the Court
`denied Defendants’ motion to dismiss, holding that Plaintiffs had “sufficiently alleged
`a protectable selection and arrangement or a sequence of creative expression.” (Docket
`No. 65 at 2).
`
`After Defendants filed their answer (Docket No. 66), the parties engaged in
`discovery and accumulated expert testimony pursuant to the Court’s respective
`scheduling orders. (Docket Nos. 67–74, 79–81, 85–87). Defendants then filed this
`Motion on July 19, 2021. (Docket No. 92). Plaintiffs replied to the Motion on August
`23, 2021, and Defendants replied to it on September 13, 2021. (Dockets No. 98–99).
`II. LEGAL STANDARD
`
`In deciding a motion for summary judgment under Rule 56, the Court applies
`Anderson, Celotex, and their Ninth Circuit progeny. Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242, 255 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). “The court
`shall grant summary judgment if the movant shows that there is no genuine dispute as
`to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
`Civ. P. 56(a).
`
`The Ninth Circuit has defined the shifting burden of proof governing motions for
`summary judgment where the non-moving party bears the burden of proof at trial:
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 4
`
`
`
`
`Case 2:17-cv-06882-MWF-AS Document 104 Filed 12/09/21 Page 5 of 11 Page ID #:3001
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`
` Date: December 9, 2021
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`The moving party initially bears the burden of proving the absence of a genuine
`issue of material fact. Where the non-moving party bears the burden of proof at
`trial, the moving party need only prove that there is an absence of evidence to
`support the non-moving party’s case. Where the moving party meets that
`burden, the burden then shifts to the non-moving party to designate specific facts
`demonstrating the existence of genuine issues for trial. This burden is not a light
`one. The non-moving party must show more than the mere existence of a
`scintilla of evidence. The non-moving party must do more than show there is
`some “metaphysical doubt” as to the material facts at issue. In fact, the non-
`moving party must come forth with evidence from which a jury could
`reasonably render a verdict in the non-moving party’s favor.
`
`Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1259 n.2 (9th Cir. 2016)
`(quoting In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)).
`
`“A motion for summary judgment may not be defeated, however, by evidence
`that is ‘merely colorable’ or ‘is not significantly probative.’” Anderson, 477 U.S. at
`249-50.
`
`“When the party moving for summary judgment would bear the burden of proof
`at trial, ‘it must come forward with evidence which would entitle it to a directed
`verdict if the evidence went uncontroverted at trial.’” C.A.R. Transp. Brokerage Co. v.
`Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quoting Houghton v.
`South, 965 F.2d 1532, 1536 (9th Cir. 1992)).
`III. DISCUSSION
`A.
`
`Infringement
`
`Defendants argue that they are entitled to summary judgment because Plaintiffs
`have failed to establish that Shake and Playas are substantially similar with respect to
`their musical compositions, as alleged in the Complaint. (Motion at 7; Complaint ¶¶
`42–43). Defendants argue that Plaintiffs’ claims pertain to phrases and sequences in
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 5
`
`
`
`
`Case 2:17-cv-06882-MWF-AS Document 104 Filed 12/09/21 Page 6 of 11 Page ID #:3002
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`Playas that are unprotected and used differently (rather than substantially similarly)
`than they are in Shake. (See id.)
`
` Date: December 9, 2021
`
`“To prevail on [a] copyright infringement claim, [a plaintiff] must demonstrate
`(1) ownership of a valid copyright, and (2) copying of constituent elements of the work
`that are original.” Benay v. Warner Bros. Entm't, Inc., 607 F.3d 620, 624 (9th Cir.
`2010) (internal citation and quotation marks omitted). “Although copyright protects
`only original expression, it is not difficult to meet the famously low bar for
`originality.” Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d
`1051, 1069 (9th Cir. 2020) (citing Feist Publications, Inc. v. Rural Tel. Serv. Co., 499
`U.S. 340, 345 (1991)). “[O]riginality requires at least ‘minimal’ or ‘slight’ creativity
`— a ‘modicum’ of ‘creative spark’ — in addition to independent creation.” Id. at 1071
`(quoting Feist, 499 U.S. at 345–46, 362).
`
`“A copyright plaintiff may prove copying with circumstantial, rather than direct,
`evidence.” Williams v. Gaye, 895 F.3d 1106, 1119 (9th Cir. 2018) (citing Three Boys
`Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000), overruled on other grounds
`by Skidmore, 952 F.3d at 1051). “Absent direct evidence of copying, proof of
`infringement involves fact-based showings that the defendant had ‘access’ to the
`plaintiff's work and that the two works are ‘substantially similar.’” Id. (internal
`citations omitted).
`
`Defendants do not contest that Plaintiffs own the copyright in Playas’s musical
`composition or that Taylor Swift had access to Playas prior to their creation of Shake,
`and the Court therefore declines to discuss those points.
`1. Copyrightability
`
`Defendants argue that Plaintiffs and their expert have conceded that Shake does
`not infringe on Playas because the phrases/lyrics at issue are public domain phrases
`which are not entitled to protection as musical or literary works (Motion at 7, 13–14,
`18–19, 26–28). Plaintiffs argue that the phrases “Playas gon’ play” and “Haters gon’
`hate,” along with the sequence and structure in which they are presented in Playas’s
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 6
`
`
`
`
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`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`chorus, are original due to the selection and arrangement of the underlying lyrics in the
`work. (Complaint ¶¶ 26–28, 42–43; Opposition at 16–22).
`
` Date: December 9, 2021
`
`As indicated at the hearing, this argument is really a motion for reconsideration
`of the Ninth Circuit’s ruling. It’s not as if the lyrics in the record now are materially
`different than what the Complaint alleges. The Ninth Circuit already acknowledged
`that, at minimum, Plaintiff’s characterization of the work at issue (i.e. “a six-word
`phrase and a four-part lyrical sequence” from Playa) was enough to sufficiently allege
`originality (Docket Nos. 48–49). As discussed at the hearing, Defendants have not
`shown that circumstances have changed since the Ninth Circuit opinion: Originality is
`sufficiently shown, when viewed in the light most favorable to Plaintiffs, even if the
`phrases are in the public domain.
`
`In addition, the Court is also persuaded by the arguments made in the Opposition.
`Notably, Plaintiffs expressly reiterate that “the music is not part of the infringement
`claim” and that the core inquiry here involves the creative expression (i.e. selection and
`arrangement) underlying the two sets of phrases and the four-part sequency.
`(Opposition at 11, 18). Later, Plaintiffs signal that Defendants do not cite any contrary
`evidence on the issue of originality in a protectable selection and arrangement (instead
`seeking summary judgment based solely on the fact that the phrases are allegedly in
`the public domain). (Id. at 18; Motion at 20–22).
`
`Plaintiffs’ use of the above phrases, along with the four-part sequence, would allow
`a rational jury to conclude that Plaintiffs have met the minimal requirement required to
`secure some type of protection in this creative expression. See Swirsky v. Carey, 376
`F.3d 841, 851 (9th Cir. 2004) (“In this circuit, the definition of originality is broad, and
`means ‘little more than a prohibition of actual copying’… [a]ll that is needed to satisfy
`originality is for the author to contribute ‘something more than a ‘merely trivial’
`variation.”). Plaintiffs are therefore entitled to at least some level of protection in the
`structure and arrangement of the phrases contained in the Playa lyrics, even if they
`utilize words in the public domain.
`
`///
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 7
`
`
`
`
`Case 2:17-cv-06882-MWF-AS Document 104 Filed 12/09/21 Page 8 of 11 Page ID #:3004
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`2. Substantial Similarity
`
` Date: December 9, 2021
`
`
`
`Defendants argue that even if there are protectable elements in Playas, they are
`not substantially similar to those in Shake (as a literary or as a musical work). (Motion
`at 12–25). Plaintiffs argue that there are at least seven elements in the selection and
`arrangement of the four-part lyrical sequence at issue that the chorus of Shake copies,
`from Playas, including, for example: 1) Shake’s combination of tautological phrases;
`2) parallel lyrics; and 3) grammatical model “Xers gonna X.” (Opposition at 23). The
`parties both rely on expert testimony to further substantiate their respective claims.
`
`The Ninth Circuit has held as follows:
`
`Summary judgment is ‘not highly favored’ on questions of substantial similarity.
`Summary judgment is appropriate ‘if the court can conclude, after viewing the
`evidence and drawing inferences in a manner most favorable to the non-moving
`party, that no reasonable juror could find substantial similarity of ideas and
`expression. Where reasonable minds could differ on the issue of substantial
`similarity, however, summary judgment is improper.’
`
`L.A. Printex Indus. v. Aeropostale, Inc., 676 F.3d 841, 848 (9th Cir. 2012) (internal
`citations omitted) (abrogated on other grounds as recognized by Unicolors, Inc. v.
`H&M Hennes & Mauritz, L.P., 959 F.3d 1194, 1198 (9th Cir. 2020)).
`
`At the hearing, Plaintiffs argued that factual issues remain as to whether the
`choruses of the two songs are sufficiently similar and whether the differences in the
`choruses overcome those similarities. Plaintiffs also argued that expert testimony does
`not resolve the factual question of similarity. Additionally, Plaintiffs argued that there
`is an open factual issue as to whether Playas’s use of public domain phrases was
`original in arrangement and choice.
`
`Defendants argued that the factors the Court identified as favoring Plaintiffs
`were instead admitted in expert depositions to favor Defendants. Defendants further
`alleged that the opinions of Plaintiffs’ expert Professor Kajikawa should be discounted
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 8
`
`
`
`
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`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`because his background does not support his opinions and his opinions are insufficient
`as a matter of law.
`
` Date: December 9, 2021
`
`As Plaintiffs point out, even though there are some noticeable differences
`between the works, there are also significant similarities in word usage and
`sequence/structure. (Opposition at 23–24). In addition to the combination of the
`phrases “Playas, they gonna play / And haters, they gonna hate” appearing almost
`identically in Shake (Complaint ¶ 27; Opposition at 23), and other similarities
`discussed above, Plaintiffs also argue that Playas included a four-part structure that
`Swift replicated by making reference to select groups with negative connotations, and
`that these similarities ultimately deliver the same message at the heart of their songs:
`that “we should not be concerned with what other people say and do, trusting in
`ourselves instead.” (Opposition at 23). Though it is debatable whether this broader
`message is indeed communicated through the structural similarities alleged, or is an
`idea that is not entitled to copyright protection, it is clear that there are enough
`objective similarities amongst the works to imply that the Court cannot presently
`determine that no reasonable juror could find substantial similarity of lyrical phrasing,
`word arrangement, or poetic structure between the two works.
`
`Although Defendants’ experts strongly refute the implication that there are
`substantial similarities, the Court is not inclined to overly credit their opinions here.
`The Ninth Circuit has acknowledged that it has “never announced a uniform set of
`factors” for analyzing a musical composition under the extrinsic test and that it did not
`intend to change that precedent (as of 2004). See Swirsky, 376 F.3d at 849 (explaining
`that, although it “recognize[s] the difficulties faced by the district court” in applying
`the extrinsic test to musical compositions, the analysis must remain as is because music
`“is not capable of classification into only five or six constituent elements”). This
`precedent has remained in effect since then. See Williams, 895 F.3d at 1120 (“We
`have applied the substantial similarity standard to musical infringement suits before . . .
`and see no reason to deviate from that standard now”) (citing Swirsky, 376 F.3d at
`849).
`
`///
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 9
`
`
`
`
`Case 2:17-cv-06882-MWF-AS Document 104 Filed 12/09/21 Page 10 of 11 Page ID #:3006
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`
` Date: December 9, 2021
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`Indeed, Defendants’ experts do make some persuasive arguments with regard to
`why various factors of the respective musical and literary work analyses do objectively
`distinguish Playas and Shake. Be that as it may, there are still numerous factors,
`analyzed by Defendants’ same experts, that do not eliminate the possibility that there is
`still a genuine dispute as to the potential substantial similarity between the lyrics and
`their sequential structure as framed by Plaintiffs. Additionally, it is not clear that all of
`the factors discussed by Defendants’ experts are necessary here (e.g., harmony and
`melody for musical works, or mood and pace for literary works). Further, one of
`Defendants’ own experts acknowledged that at least the first half of the allegedly
`infringed four-part sequence from Playas demonstrates “concrete objective similarity
`to [the] lyrics in [Shake].” (Deposition of Larence Ferrara at 40:15-19 (Docket No. 98-
`11)).
`
`Lastly, the Court is unpersuaded by Defendants’ contention that Plaintiffs’
`expert, Professor Kajikawa, did not properly analyze the competing musical
`compositions or that he is somehow not qualified to do so. (See Motion at 15; Reply at
`14–19). Professor Kajikawa identifies himself as a academic musicologist, lists his
`numerous areas os study (including specific music genres and sonic/poetic qualities of
`song lyrics in American popular music), states that he conducted an objective
`comparative analysis of the two works, and that he also reviewed the reports of
`Defendants’ experts. (See Declaration of Loren Kajikawa ¶¶ 2–5). The Court declines
`to disqualify his expert testimony in the absence of firmer basis to affirm Defendants’
`claim that Kajikawa’s title as a musicologist, rather than a literary expert, precludes
`him from being able to offer reliable testimony on the relevant topics. In other words,
`it is not proper for this Court to resolve on summary judgment what is essentially
`simply a battle of the experts.
`
`Given the obligation to view the record in the light most favorable to Plaintiffs,
`genuine issues of triable facts remain as to substantial similarity.
`B.
`
`Evidentiary Objections
`
`The parties advanced various objections to the evidence submitted in connection
`with the Motion. (See Docket Nos. 98-25, 99-13).
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 10
`
`
`
`
`Case 2:17-cv-06882-MWF-AS Document 104 Filed 12/09/21 Page 11 of 11 Page ID #:3007
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES—GENERAL
`
`
`
` Date: December 9, 2021
`
`
`Case No. CV 17-6882-MWF (ASx)
`Title:
`Sean Hall et al. v. Taylor Swift et al.
`While these objections may be cognizable at trial, on a motion for summary
`judgment, the Court is concerned only with the admissibility of the relevant facts at
`trial, and not the form of these facts as presented in the Motions. Sandoval v. Cty. of
`San Diego, 985 F.3d 657, 666 (9th Cir. 2021) (“[A]t the summary judgment stage, we
`do not focus on the admissibility of the evidence’s form. We instead focus on the
`admissibility of its contents.” (citations omitted)). Where “the contents of a document
`can be presented in a form that would be admissible at trial — for example, through
`live testimony by the author of the document — the mere fact that the document itself
`might be excludable hearsay provides no basis for refusing to consider it on summary
`judgment.” Id. (citations omitted); see also Fraser v. Goodale, 342 F.3d 1032, 1036–
`37 (9th Cir. 2003) (holding that the plaintiff's diary could be considered on summary
`judgment because she could testify consistent with its contents at trial); Hughes v.
`United States, 953 F.2d 531, 543 (9th Cir. 1992) (IRS litigation adviser's affidavit may
`be considered on summary judgment despite hearsay and best evidence rule objections;
`the facts underlying the affidavit are of the type that would be admissible as evidence
`even though the affidavit itself might not be admissible).
`
`Accordingly, and for the reasons additionally stated at the hearing, the parties’
`objections are OVERRULED.
`IV. CONCLUSION
`
`The Motion is DENIED.
`
`IT IS SO ORDERED.
`
`______________________________________________________________________________
` CIVIL MINUTES—GENERAL 11
`
`
`