Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BC 410599
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
IT IS ORDERED that the opinion filed herein on January 26, 2011, be modified in the following particulars:
1. On page 12, delete the last two paragraphs before “DISPOSITION” and in its place the following paragraphs:
The court also found, however, that there was at least “minimal merit” to Cammarata’s prayer for injunctive relief based on his argument that “Redtube or those acting in concert with it simply joined the major adult subscription websites, downloaded massive video content and then uploaded it to Redtube, ” where it was offered for free. Redtube used that video content “to acquire a commanding audience on the Internet, ” and then “monetized the command audience it had acquired through unlawful conduct by selling ad space to the aiding and abetting advertisers.” On that basis, the trial court denied Bright’s SLAPP motion as to the unfair competition cause of action.
The trial court erred, because Cammarata did not introduce sufficient evidence to support his argument. The only relevant evidence consisted of declarations by Cammarata and his brother. Cammarata’s declaration states that his subscription-based adult entertainment website businesses sometimes produced their own content (“hired the cameramen and models and shot the still pictures and videos”) and sometimes licensed content from others (“paid third parties a license fee for finished images and videos”). Cammarata’s declaration goes on to state that some of the videos offered for free on Redtube were “our own videos, ” but it does not state whether they were videos that his businesses had produced or videos they had licensed. If they were the latter, then Redtube might have licensed them as well. The declaration then concludes on the basis of Cammarata’s “observation of the Redtube site” and his “extensive experience in the adult entertainment industry” that “it is likely Redtube or persons working in concert with Redtube simply joined the larger subscription adult entertainment sites, downloaded the available video content and then uploaded those videos to Redtube.” That conclusion is not supported by the remainder of the declaration and is too speculative to support a factual finding in Cammarata’s favor. (See People ex rel. Brown v. Tri-Union Seafoods (2009) 171 Cal.App.4th 1549, 1567-1568.) Cammarata’s brother’s declaration does not add anything on this point but rather repeats Cammarata’s own assertions (“I have seen our videos on Redtube and other free adult video sites”).
Because the declarations do not show that Redtube acquired its “commanding audience” by improperly using content downloaded from subscription sites, Cammarata has not presented sufficient “facts to sustain a favorable judgment if the evidence submitted [in support of those facts] is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) Therefore, the court should have stricken the unfair competition cause of action.
This modification does not have an effect on the judgment.
The petition for rehearing is denied.
MALLANO, P. J. ROTHSCHILD, J. CHANEY, J.