Case 3:20-cv-08437-LB Document 30 Filed 03/01/21 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`San Francisco Division
`
`MEREDITH CALLAHAN, et al., on behalf
`of themselves and all others similarly
`situated,
`
`Plaintiffs,
`
`v.
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`ANCESTRY.COM INC., et al.,
`Defendants.
`
`
`
`
`
`Case No. 20-cv-08437-LB
`
`ORDER GRANTING MOTION TO
`DISMISS AND DENYING MOTION TO
`STRIKE.
`Re: ECF No. 13
`
`
`
`INTRODUCTION
`The plaintiffs are California residents who object to Ancestry.com’s inclusion of their decades-
`old yearbook photographs and information in Ancestry’s Yearbook Database. They sued Ancestry —
`individually and on behalf of a putative California class — for using their information to solicit
`paying subscribers, claiming (1) a violation of their right of publicity under Cal. Civ. Code § 3344,
`(2) unlawful and unfair business practices, in violation of California’s Unfair Competition Law
`(UCL), Cal. Bus. & Prof. Code § 17200, (3) intrusion upon seclusion, in violation of California
`common law, and (4) unjust enrichment resulting from Ancestry’s selling their personal information.1
`
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`1 Compl. – ECF No. 1. Citations refer to material in the Electronic Case File (“ECF”); pinpoint
`citations are to the ECF-generated page numbers at the top of documents.
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`ORDER – No. 20-cv-08437-LB 
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`Case 3:20-cv-08437-LB Document 30 Filed 03/01/21 Page 2 of 13
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`Ancestry moved to dismiss the claims in part on the grounds that (1) the plaintiffs lack Article III
`standing to challenge its use of public data, and (2) it is immune from liability under the
`Communications Decency Act, 47 U.S.C. § 230(c)(1). The court dismisses the claims. First, the
`plaintiffs have not plausibly alleged standing. More is needed — beyond Ancestry’s use of the data to
`solicit paying subscribers — such as an inference that the profiled persons personally endorsed
`Ancestry’s product (or an equivalent interest). Second, Ancestry did not create the third-party content
`and thus is immune from liability under the Communications Decency Act.
`Ancestry also moved to strike (1) the plaintiffs’ prayer for statutory damages and claim for
`restitution under the UCL and (2) all claims under California’s Anti-SLAPP statute, Cal. Civil Proc. §
`425.16, on the ground that the content on its website is protected free speech and a public issue. The
`court denies the anti-SLAPP motion because Ancestry’s inclusion of the yearbook information is not
`a public issue. Ancestry’s motion to strike is otherwise moot.
`
`STATEMENT
`Ancestry has databases of personal and historical information — including information from
`“school yearbooks, birth records, marriage records, death records, U.S. census records, immigration
`records, military records, and photographs of grave sites” — that it sells to subscribers.2
`The plaintiffs’ yearbook pictures and information were in the Ancestry Yearbook database.
`Each record in the Yearbook database — about 730 million collected from more than 450,000
`yearbooks — has “at least” the following information: the person’s name, photograph, school name,
`yearbook year, and city or town (at the time of the yearbook). A record can contain other
`information such as estimated age at the time of the photograph, estimated birth year, and school
`activities. Ancestry “does not disclose how it created” the Yearbook database, but a section of its
`website “encourage[es] visitors to donate their old yearbooks.” It does not try to obtain consent
`
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`2 Id. at 2 (¶ 3), 22–23 (¶ 45); see Mot. – ECF No. 13 at 11–12.
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`ORDER – No. 20-cv-08437-LB
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`Case 3:20-cv-08437-LB Document 30 Filed 03/01/21 Page 3 of 13
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`from the donors or the persons depicted in the yearbooks to display their information. It does ask
`the donor to sign a disclaimer about copyright restrictions.3
`Ancestry’s main selling point to paying subscribers to the Yearbook database is that the records
`“uniquely identify specific individuals.” It offers access to the database (including searching,
`viewing, and downloading records) in several paid subscription plans, including the U.S. Discovery,
`World Explorer, and All Access plans. It gives free access in a 14-day promotion and through a
`limited-access website that has some of the Yearbook database records and that uses pop-up ads
`(when a user hovers over a yearbook record) to solicit paying subscribers. It also solicits subscribers
`through emails that contain yearbook records (such as photographs and names).4
`The named plaintiffs are Lawrence Abraham and Meredith Callahan, California residents who are
`not Ancestry subscribers (and thus are not subject to Ancestry’s terms of service). Their yearbook
`records — pictures and personal information such as name, estimated age, city, and school activities
`— are in a subdirectory of the Yearbook database called the U.S. School Yearbooks, 1900–1999.
`Ancestry users who hover over the plaintiffs’ records receive pop-up ads offering more access to the
`plaintiffs’ information to paying subscribers. Ancestry also solicited paying subscribers by sending
`emails that included the plaintiffs’ names and photographs. The plaintiffs did not consent to
`Ancestry’s use of their information, and Ancestry never paid them for it.5
`The plaintiffs assert the following claims individually and on behalf of a putative California
`class: (1) a violation of their right of publicity under Cal. Civil Code § 3344; (2) unlawful and unfair
`business practices, in violation of the UCL; (3) intrusion upon seclusion, in violation of California
`common law; and (4) unjust enrichment.6 The class definition is as follows:
`[A]ll California residents who (a) are not currently subscribers of any Ancestry services,
`(b) have never donated a yearbook to Ancestry, and (c) whose names, photographs, and/or
`likeness were uploaded by Ancestry into its Ancestry Yearbook Database and offered for
`sale as part of Ancestry’s paid subscription plans, and/or used by Ancestry to advertise,
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`3 Compl. – ECF No. 1 at 2 (¶ 3), 23–24 (¶¶ 46–50).
`4 Id. at 4–5 (¶ 12), 24–25 (¶¶ 51–54).
`5 Id. at 7–22 (¶¶ 22–44).
`6 Id. at 29–32 (¶¶ 66–89).
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`ORDER – No. 20-cv-08437-LB
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`sell, and solicit the purchase of Ancestry’s paid subscription plans, without Ancestry
`obtaining their consent.7
`Ancestry moved to dismiss the claims on the following grounds: (1) the plaintiffs lack
`standing to challenge its use of public data; (2) Cal. Civil Code § 3344 exempts it from liability for
`the right-of-publicity and UCL claims for its use of the yearbook information “in connection with
`. . . public affairs;” (3) it is immune from liability under § 230(c)(1) of the Communications
`Decency Act; (4) the Copyright Act, 17 U.S.C. § 301, preempts the right-of-publicity and the UCL
`claims; (5) the plaintiffs did not plausibly state a claim for intrusion upon seclusion because the
`yearbook information is public; and (6) there is no standalone claim for unjust enrichment. Ancestry
`also moved to strike (1) the plaintiffs’ prayer for statutory damages under § 3344 because they did
`not allege mental anguish, which is a predicate for statutory damages, (2) any claim for restitution
`under the UCL because § 3344 provides an adequate remedy at law, and (3) all claims under
`California’s Anti-SLAPP statute, Cal. Civil Proc. § 425.16, on the ground that the content on its
`website is protected free speech.8 The court held a hearing on February 25, 2021.
`The court has subject-matter jurisdiction under the Class Action Fairness Act, 28 U.S.C. §
`1332(d). All parties consented to magistrate jurisdiction.9
`
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`STANDARD OF REVIEW
`
`1. Rule 12(b)(1)
`A complaint must contain a short and plain statement of the ground for the court’s jurisdiction.
`Fed. R. Civ. P. 8(a)(1). The plaintiffs have the burden of establishing jurisdiction. Kokkonen v.
`Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Farmers Ins. Exch. v. Portage La
`Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990).
`A defendant’s Rule 12(b)(1) jurisdictional attack can be either facial or factual. White v. Lee, 227
`F.3d 1214, 1242 (9th Cir. 2000). “A ‘facial’ attack asserts that a complaint’s allegations are
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`7 Id. at 26 (¶ 58).
`8 Mot. – ECF No. 13 at 14–32.
`9 Compl. – ECF No. 1 at 5–6 (¶ 15); Consents – ECF Nos. 10, 15.
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`ORDER – No. 20-cv-08437-LB
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`themselves insufficient to invoke jurisdiction, while a ‘factual’ attack asserts that the complaint’s
`allegations, though adequate on their face to invoke jurisdiction, are untrue.” Courthouse News Serv.
`v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014). This is a facial attack. The court thus “accept[s] all
`allegations of fact in the complaint as true and construe[s] them in the light most favorable to the
`plaintiff[].” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).
`Ancestry contends that the plaintiffs lack standing. Standing pertains to the court’s subject-
`matter jurisdiction and thus is properly raised in a Rule 12(b)(1) motion to dismiss. Chandler v.
`State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121–22 (9th Cir. 2010) (citation omitted).
`Dismissal of a complaint without leave to amend should be granted only if the jurisdictional
`defect cannot be cured by amendment. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
`1052 (9th Cir. 2003).
`
`2. Rule 12(b)(6)
`A complaint must contain a “short and plain statement of the claim showing that the pleader is
`entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon
`which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
`complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the
`grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
`recitation of the elements of a cause of action will not do. Factual allegations must be enough to
`raise a claim for relief above the speculative level.” Twombly, 550 U.S. at 555 (cleaned up).
`To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which
`when accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
`U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when
`the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
`defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a
`‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
`unlawfully.” Id. (citing Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are
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`ORDER – No. 20-cv-08437-LB
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`merely consistent with a defendant’s liability, it stops short of the line between possibility and
`plausibility of ‘entitlement to relief.’” Id. (cleaned up) (quoting Twombly, 550 U.S. at 557).
`If a court dismisses a complaint, it should give leave to amend unless the “pleading could not
`possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co.,
`848 F.3d 1161, 1182 (9th Cir. 2016) (cleaned up).
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`
`ANALYSIS
`The court dismisses the claims for lack of Article III standing and, alternatively, because
`Ancestry is immune from liability under § 230(c)(1) of the Communications Decency Act. The
`court denies the anti-SLAPP motion because Ancestry’s inclusion of the yearbook information is
`not a public issue. Ancestry’s motion to strike is otherwise moot.
`
`1. Article III Standing
` “The ‘irreducible constitutional minimum’ of standing consists of three elements.” Spokeo,
`Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
`560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to
`the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable
`judicial decision.” Id. (citing Lujan, 504 U.S. at 560). “The plaintiff, as the party invoking federal
`jurisdiction, bears the burden of establishing these elements.” Id. (citing FW/PBS, Inc. v. City of
`Dallas, 493 U.S. 215, 231 (1990)). “Where, as here, a case is at the pleading stage, the plaintiff
`must ‘clearly allege facts demonstrating’ each element.” Id. (cleaned up) (quoting Warth v. Seldin,
`422 U.S. 490, 518 (1975)). “[S]tanding in federal court is a question of federal law, not state law.”
`Hollingsworth v. Perry, 570 U.S. 693, 715 (2013).
`Ancestry’s main argument is that the plaintiffs have not established injury.10
`
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`10 Ancestry also argues causation and redressability in a paragraph. Mot. – ECF No. 13 at 18. Given
`the court’s holding on injury in fact, and the overall slight briefing on the issues of redressability and
`causation, the court does not reach the issues.
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`ORDER – No. 20-cv-08437-LB
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`“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a
`legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
`conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). “For an
`injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id.
`(quoting Lujan, 504 U.S. at 560 n.1). For an injury to be concrete, it “must be ‘de facto’; that is, it
`must actually exist. . . . [and be] ‘real,’ and not ‘abstract.’” Id. (citing dictionaries). “‘Concrete’ is
`not . . . necessarily synonymous with ‘tangible.’ Although tangible injuries are perhaps easier to
`recognize, . . . intangible injuries can nevertheless be concrete.” Id. at 1549 (citations omitted).
`The plaintiffs allege three forms of injury: (1) Ancestry exploits and profits from their
`likenesses by obtaining paid subscribers; (2) they have lost potential earnings from the commercial
`use of their likenesses; and (3) they have suffered injury by Ancestry’s denial of their § 3344 right
`to control the distribution and use of their likenesses.11 These allegations do not establish standing.
`First, the information in the Yearbook database is not private: it is public yearbook information
`distributed to classmates (and ultimately to Ancestry).12 Ancestry’s using the public profiles to
`solicit paying subscribers — standing alone — does not establish injury. Cf. In re Google, Inc.
`Privacy Policy Litig., No. C-12-01382-PSG, 2013 WL 6248499, at *5 (N.D. Cal. Dec. 3, 2013)
`(“[A] plaintiff must do more than point to the dollars in a defendant’s pocket; he must sufficiently
`allege that in the process he lost dollars of his own.”). Section 3344 cases suggest that more is
`needed beyond using the profiles.
`For example, standing can be established if the exploitation of users’ profiles suggests that the
`users personally endorse a product or service. In Fraley v. Facebook, Facebook marketed products
`(such as the Rosetta Stone language program) to a user’s Facebook friends by sending an
`advertisement to the user’s friends with the user’s profile and her “Like” of the product. 830 F.
`Supp. 2d 785, 791–92 (N.D. Cal. 2011). Facebook did this without the user’s consent and without
`paying her. Id. at 797. This was concrete economic injury because it suggested the user’s personal
`
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`11 Opp’n – ECF No. 19 at 9–10.
`12 Mot. – ECF No. 13 at 16 (disclosure of public information alone is not a harm) (collecting cases).
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`ORDER – No. 20-cv-08437-LB
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`endorsement of the product, which was — according to Facebook’s CEO and COO — “the Holy
`Grail of advertising.” Id. at 799; accord Perkins v. LinkedIn Corp., 53 F. Supp 3d 1190, 1208
`(N.D. Cal. 2014) (in Fraley, the court found that the “plaintiffs had articulated a coherent theory of
`economic injury because the plaintiffs had alleged that ‘individual personalized endorsement of
`products, services, and brands to their friends and acquaintances has concrete, provable value in
`the economy at large, which can be measured by the additional profit Facebook earns by selling
`Sponsored Stories [the ads at issue] compared to its sale of regular advertisements.’”) (quoting
`Fraley, 830 F. Supp. 2d at 799). In contrast to the Fraley plaintiffs’ asserted property interest in
`that endorsement, Ancestry’s use of the plaintiffs’ profiles does not imply an endorsement of
`Ancestry’s products or an equivalent interest. Id.
`Second, the plaintiffs do not have a commercial interest in their public profiles that precludes
`Ancestry’s use of the profiles for commercial gain. In Cohen v. Facebook, for example, Facebook
`marketed its Friend Finder feature — a service that compares a user’s email contacts with Facebook
`users — by telling potential users that their Facebook friends used the feature. 798 F. Supp. 2d 1090,
`1092 (N.D. Cal. 2011). That use benefited Facebook because it could grow its user base (and profit
`from the new users). Id., 2011 WL 5117164 at *2–3. But the use was not concrete injury that
`established standing for the plaintiffs’ § 3324 claim because the profiles were displayed only to the
`users’ Facebook friends, who already had access to the profiles. Id. at *3. The plaintiffs — like the
`plaintiffs here — did not show that they had a commercial interest in their images that precluded the
`platform’s use of them. Id. (distinguishing cases involving persons who — while not celebrities —
`were models and thus had a commercial interest in their likenesses).
`Third, the plaintiffs claim injury by Ancestry’s denial of their § 3344 right to control the
`distribution and use of their likenesses. But the statute imposes liability only where “persons [are]
`injured as a result.” Cal. Civ. Code § 3344(a). That makes this case different from cases involving
`statutes that establish liability for a statutory violation alone. In re Facebook, Inc. Internet Tracking
`Litig., 956 F.3d 589, 598–99 (9th Cir. 2020) (standing for claims under the California Invasion of
`Privacy Act, the Wiretap Act, and the Stored Communications Act because “the legislative history
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`ORDER – No. 20-cv-08437-LB
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`and statutory text demonstrate that Congress and the California legislature intended to protect these
`historical privacy rights when they passed the” acts).
`In sum, the plaintiffs have not plausibly pleaded Article III standing. The court dismisses the
`complaint with leave to amend to give the plaintiffs an opportunity to cure the jurisdictional defect.
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`2. The Communications Decency Act
`Ancestry is immune from liability under the Communications Decency Act. 47 U.S.C. §
`230(c)(1).
`Under the Act, (1) website operators generally are immune from liability for third-party
`content posted on their websites, but (2) they are not immune if they create or develop the
`information, in whole or in part. 47 U.S.C. §§ 230(c)(1) & (f)(3). “Immunity from liability exists
`for (1) a provider or user of an interactive computer service, (2) whom a plaintiff seeks to treat,
`under a state law cause of action, as a publisher or speaker of (3) information provided by another
`information content provider.” Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th
`Cir. 2019) (cleaned up).
`Ancestry is an interactive-computer service. It did not create the underlying yearbook records
`and instead obtained them from third parties. It thus is immune from liability for the third-party
`content. 47 U.S.C. § 230(f)(3). The plaintiffs nonetheless that two contexts here create liability:
`Ancestry did not obtain the yearbooks from another information-content provider, and it created
`content by extracting the yearbook content and using the content in its own webpages and emails.
`First, Ancestry obtained the yearbook content from someone else, presumably other yearbook
`users.13 The plaintiffs assert that this is not enough because Ancestry did not obtain the content from
`the author of the content. To support this assertion, they cite two cases, “KNB Enterprises and
`Perfect 10[, where] the defendants copied photographs from rival websites [and] then sold access to
`the photos for a subscription fee.” Those defendants, the plaintiffs say, “could not have claimed the
`
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`13 Statement (Ancestry does not disclose how it creates the Yearbook database but it encourages users
`to donate their old yearbooks).
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`protection of § 230” “[b]ecause they did not obtain the photographs from the people who created
`them. . . .” They conclude that similarly, Ancestry cannot claim § 230(c)(1) immunity.14 But KNB
`Enterprises and Perfect 10 do not address § 230. Perfect 10, Inc. v. Talisman Commc’ns Inc., No.
`CV 99-10450 RAP MCX, 2000 WL 364813 (C.D. Cal. Mar. 27, 2000); KNB Enters. v. Matthews,
`78 Cal. App. 4th 362 (2000). Moreover, no case supports the conclusion that § 230(a)(1) immunity
`applies only if the website operator obtained the third-party content from the original author. To the
`contrary, the Act “immunizes an interactive computer service provider that ‘passively displays
`content that is created entirely by third parties.’” Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc.,
`144 F. Supp. 3d 1088, 1094 (N.D. Cal. 2015) (quoting Fair Hous. Council v. Roommates.com, LLC,
`521 F.3d 1157, 1162) ), aff’d, 697 F. App’x 526, 526–27 (9th Cir. 2017).
`Second, Ancestry extracts yearbook data (names, photographs, and yearbook date), puts the
`content on its webpages and in its email solicitations, adds information (such as an estimated birth
`year and age), and adds interactive buttons (such as a button prompting a user to upgrade to a
`more expensive subscription). The plaintiffs say that by these actions, Ancestry creates content. To
`support that contention, they cite Fraley.15
`But Fraley involved the transformation of the Facebook user’s content (liking a product) into an
`advertisement that — without the user’s consent — suggested the user’s endorsement of the product
`(and resulted in a profit to Facebook by selling the ads). 830 F. Supp. 2d at 791–92, 797. In contrast
`to the Fraley transformation of personal likes into endorsements, Ancestry did not transform data and
`instead offered data in a form — a platform with different functionalities — that did not alter the
`content. Adding an interactive button and providing access on a different platform do not create
`content. They just add functionality. Kimzey v. Yelp! Inc., 836 F.3d 1263, 1270 (9th Cir. 2016) (Yelp!
`had § 230 immunity despite adding a star rating to reviews from other websites); Coffee v. Google,
`LLC, No. 5:20-cv-08437, ECF No. 56 at 13 (Google had § 230 immunity despite adding industry
`standards and requiring app developers to disclose the odds of winning).
`
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`14 Opp’n – ECF No. 19 at 17 (citations omitted).
`15 Id. at 18–19.
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`ORDER – No. 20-cv-08437-LB
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`Instead of creating content, Ancestry — by taking information and photos from the donated
`yearbooks and republishing them on its website in an altered format — engaged in “a publisher’s
`traditional editorial functions [that] [] do not transform an individual into a content provider within
`the meaning of § 230.” Fraley, 830 F. Supp. 2d at 802 (cleaned up); cf. Roomates.com, 521 F.3d at
`1173–74 (website is immune under §230 where it “publishes [] comments as written” that “come[]
`entirely from subscribers and [are] passively displayed” by the website operator). Ancestry did not
`contribute “materially” to the content. Roomates.com, 521 F.3d at 1167–68. In sum, Ancestry has
`immunity under § 230(c)(1).
`
`3. Motion to Strike
`Ancestry also moved to strike (1) the plaintiffs’ prayer for statutory damages, (2) any claim for
`restitution under the UCL, and (3) all claims under California’s Anti-SLAPP statute, Cal. Civil
`Proc. § 425.16, on the ground that the content on its website is protected free speech. The court
`denies the anti-SLAPP motion because Ancestry’s inclusion of the yearbook information is not a
`public issue. The court otherwise denies Ancestry’s motion to strike as moot.
`California Code of Civil Procedure § 425.16 is called the anti-SLAPP statute because it allows
`a defendant to gain early dismissal of claims that are designed primarily to chill the exercise of
`First Amendment rights. Siam v. Kizilbash, 130 Cal. App. 4th 1563, 1568 (2005). Section
`425.16(b)(1) provides:
`A cause of action against a person arising from any act of that person in furtherance of the
`person’s right of petition or free speech under the United States Constitution or the
`California Constitution in connection with a public issue shall be subject to a special
`motion to strike, unless the court determines that there is a probability that the plaintiff will
`prevail on the claim.
`And Section 425.16(e) provides that acts “in furtherance of” these rights include:
`(1) any written or oral statement or writing made before a legislative, executive, or judicial
`proceeding, or any other official proceeding authorized by law;
`(2) any written or oral statement or writing made in connection with an issue under
`consideration or review by a legislative, executive, or judicial body, or any other official
`proceeding authorized by law;
`(3) any written or oral statement or writing made in a place open to the public or a public
`forum in connection with an issue of public interest; or
`
`ORDER – No. 20-cv-08437-LB
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`(4) any other conduct in furtherance of the exercise of the constitutional right of petition or
`the constitutional right of free speech in connection with a public issue or an issue of public
`interest.
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`California’s anti-SLAPP statute applies to state claims in federal court. Thomas v. Fry’s Elecs.,
`Inc., 400 F.3d 1206, 1206–07 (9th Cir. 2005).
`In ruling on an anti-SLAPP motion, a court engages in a two-step process. Equilon Enters. v.
`Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002). First, the court decides whether the defendant
`has made a threshold showing that the challenged cause of action arises from acts in furtherance of
`the defendant’s right of petition or free speech under the United States or California constitutions
`in connection with a public issue. Id. Second, “[i]f the court finds such a showing has been made,
`it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.”
`Id. The claim is subject to dismissal only when (1) the defendant shows that the claim is based on
`protected conduct and (2) the plaintiff fails to show a probability of success on that claim.
`Navellier v. Sletten, 29 Cal. 4th 82, 88–89 (2002).
`Ancestry contends that its speech is protected because websites accessible to the public are
`public forums, and its speech is in connection to an issue of public interest.16 To support its
`contention, Ancestry cites cases that involve celebrities, public officials, or the public realm or more
`obvious public interest. Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 540 (1993) (a
`“legendary figure in surfing” in a documentary about surfing); Gates v. Discovery Comm’ncs, Inc.,
`34 Cal. 4th 679, 683, 696 (2004) (documentary about a “person who many years previously served
`a prison term for a felony conviction but who has since lived an obscure, lawful life” is protected by
`the First Amendment); Hicks v. Richard, 39 Cal. App. 5th 1167, 1176–77 (2019) (a principal’s
`misconduct was of public interest); New Kids On The Block v. News Am. Publ’g, Inc., 745 F. Supp.
`1540, 1545–47 (C.D. Cal. 1990) (magazine’s “gathering information for dissemination to the
`public” through use of popular music groups’ images in a poll was a protected First Amendment
`activity); Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 410–13, 415–16 (2001)
`(publishing of professional baseball players’ images and performance statistics was of “significant
`
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`16 Mot. – ECF No. 13 at 30–32.
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`ORDER – No. 20-cv-08437-LB
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`public interest”). Viewed through the prism of these cases, decades-old yearbooks are not
`demonstrably an issue of public interest. The court denies the motion to strike.
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`CONCLUSION
`The court grants the motion to dismiss and denies the motion to strike. The plaintiffs must file
`any amended complaint within 21 days and attach a blackline of the changes.
`This disposes of ECF No. 13.
`IT IS SO ORDERED.
`Dated: March 1, 2021
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`______________________________________
`LAUREL BEELER
`United States Magistrate Judge
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`ORDER – No. 20-cv-08437-LB
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