Pepaj v. Paris Ultra Club LLC ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eva Pepaj, et al., No. CV-19-01438-PHX-MTL 10 Plaintiffs, ORDER 11 v. 12 Paris Ultra Club LLC, 13 Defendant. 14 15 Before the Court are the parties’ Daubert motions to exclude certain expert 16 witnesses (Docs. 37, 50–51) and cross-motions for summary judgment (Docs. 39–40). The 17 Court rules as follows.1 18 I. BACKGROUND 19 This case is one of many similar cases within this district.2 Defendant Paris Ultra 20 Club, LLC (“Paris Ultra”) operates Paris In Scottsdale (the “Club”), a nightclub in 21 Scottsdale, Arizona. (Doc. 12 (“FAC”) ¶ 22.) Plaintiffs Eva Pepaj, Paola Canas, CJ Gibson, 22 1 The Court finds the pending motions appropriate to resolve without oral argument. See 23 LRCiv 7.2(f). 2 Each case relates to the unauthorized use of models’ photographs and alleges similar 24 claims of false light, right of publicity, and Lanham Act violations. See Mitcheson v. El Antro, LLC, No. CV-19-01598-GMS (D. Ariz. filed Mar. 8, 2019); Ratchford v. Dalton 25 Corp., No. CV-19-01421-SRB (D. Ariz. filed Feb. 28, 2019); Longoria v. Whitefeather Ventures, LLC, No. CV-18-00394-SHR (D. Ariz. filed Aug. 10, 2018); Gray v. LG&M 26 Holdings, LLC, No. CV-18-02543-SRB (D. Ariz. filed Aug. 10, 2018); Takeguma v. Freedom of Expression, LLC, No. CV-18-02552-MTL (D. Ariz. filed Aug. 10, 2018); 27 Pinder v. 4716 Inc., No. CV-18-02503-RCC (D. Ariz. filed Aug. 7, 2018); Longoria v. Kodiak Concepts, LLC, No. CV-18-02334-DWL (D. Ariz. filed July 25, 2018); Electra v. 28 Idaho Bus. Holdings, LLC, No. CV-18-01604-SRB (D. Ariz. filed May 25, 2018); Geiger v. Creative Impact Inc., No. CV-18-01443-JAT (D. Ariz. filed May 10, 2018). 1 Danielle Ruiz, Claudia Sampedro, and Alana Campos are models. (Id. ¶ 1.) Between 2 March 2016 and February 2019, Paris Ultra used images of Plaintiffs in advertisements 3 posted online via the Club’s social media. (Id. ¶¶ 38–43.) No Plaintiff has been employed 4 by or has otherwise given permission to Paris Ultra to use her image to advertise, promote, 5 market, or endorse the Club. (Doc. 39 at 3.) 6 Plaintiffs initiated this lawsuit on March 1, 2019. (Doc. 1.) They assert three claims 7 against Paris Ultra: (1) Misappropriation of Likeness; (2) Violations of the Lanham Act, 8 15 U.S.C. § 1125(a); and (3) False Light Invasion of Privacy. (FAC at 13–19.) The parties 9 have retained expert witnesses and now move to strike one another’s experts. (Docs. 37, 10 50–51.) The parties also move for summary judgment on all claims. (Docs. 39–40.) 11 II. LEGAL STANDARDS 12 A. Daubert Standard 13 A party seeking to offer expert testimony must establish that the testimony satisfies 14 Rule 702 of the Federal Rules of Evidence. Rule 702 provides: 15 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an 16 opinion or otherwise if: 17 (a) the expert’s scientific, technical, or other specialized 18 knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 19 (b) the testimony is based on sufficient facts or data; 20 (c) the testimony is the product of reliable principles and 21 methods; and 22 (d) the expert has reliably applied the principles and methods 23 to the facts of the case. 24 Fed. R. Evid. 702. 25 As a gatekeeper, trial judges make a preliminary assessment as to whether expert 26 testimony is admissible. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 597 27 (1993). Specifically, “the trial judge must ensure that any and all scientific testimony or 28 evidence admitted is not only relevant, but reliable.” Id. at 589. To meet the requirements 1 of Rule 702, an expert must be qualified, the expert’s opinion must be reliable in that it is 2 based on sufficient facts or data and is the product of reliable principles and methods, and 3 the expert’s testimony must fit the case such that the expert’s opinion is relevant. Id. 589– 4 95. The Rule 702 inquiry is “flexible.” Id. at 594. The focus “must be solely on principles 5 and methodology, not on the conclusions that they generate.” Id. at 595. Because the 6 requirements of Rule 702 are conditions for determining whether expert testimony is 7 admissible, a party offering expert testimony must show by a preponderance of the 8 evidence that the expert’s testimony satisfies Rule 702. Fed. R. Evid. 104(a); see also Lust 9 v. Merrell Dow Pharms. Inc., 89 F.3d 594, 598 (9th Cir. 1996). 10 B. Summary Judgment Standard 11 Summary judgment is appropriate if the evidence demonstrates “that there is no 12 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 13 of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the evidence is 14 such that a reasonable jury could return a verdict for the nonmoving party,” and material 15 facts are those “that might affect the outcome of the suit under the governing law.” 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment 17 stage, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are 18 to be drawn in [its] favor.” Id. at 255. “[A] party seeking summary judgment always bears 19 the initial responsibility of informing the district court of the basis for its motion, and 20 identifying those portions of [the record] which it believes demonstrate the absence of a 21 genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party 22 opposing summary judgment must “cit[e] to particular parts of materials in the record” 23 establishing a genuine dispute or “show[] that the materials cited do not establish the 24 absence of . . . a genuine dispute.” Fed. R. Civ. P. 56(c)(1). This Court has no independent 25 duty “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 26 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations omitted). 27 Where, as here, “parties submit cross-motions for summary judgment, each motion 28 must be considered on its own merits.” Fair Hous. Council of Riverside Cnty. v. Riverside 1 Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (citations and internal quotations omitted). The 2 summary judgment standard operates differently depending on whether the moving party 3 has the burden of proof. See Celotex Corp., 477 U.S. at 322–23. As the party with the 4 burden of proof, a plaintiff “must establish beyond controversy every essential element” of 5 her claims based on the undisputed facts. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 6 885, 888 (9th Cir. 2003) (internal quotations omitted). A defendant, by contrast, is entitled 7 to summary judgment where it shows that a plaintiff cannot establish at least one element 8 of a claim considering the undisputed material facts. Celotex Corp., 447 U.S. at 322–23. 9 III. DISCUSSION 10 A. Daubert Motions 11 Both parties have moved to strike one another’s experts.3 (Docs. 37, 50–51.) 12 Because the experts’ testimony is material to the Court’s evaluation of the parties’ 13 summary judgment motions, the Court will first address the parties’ Daubert motions. 14 1. Martin Buncher 15 Plaintiffs hired Martin Buncher to conduct a survey to measure the likelihood of 16 consumer confusion that resulted from Paris Ultra’s use of Plaintiffs’ images. (Doc. 51–2 17 at 5.) Paris Ultra challenges the reliability and relevance of Mr. Buncher’s survey and 18 corresponding report. (Doc. 51 at 2.) 19 If a survey is conducted according to accepted principles, the survey evidence is 20 sufficiently reliable under Daubert. Southland Sod Farms v. Stover Seed Co., 108 F.3d 21 1134, 1143 n.8 (9th Cir. 1997). Objections regarding “technical inadequacies” of a survey, 22 “bear on the weight of the evidence, not its admissibility.” Keith v. Volpe, 858 F.2d 467, 23 480 (9th Cir. 1988). Mr. Buncher has 55 years of experience conducting market research 24 and providing marketing consulting services. (Doc. 51–2 at 6.) His report states that “[t]he 25 survey sample selection, questions, questionnaire design, and interviewing procedures 26 employed in [his] survey were specifically designed in accordance with the generally 27 3 Plaintiffs argue Paris Ultra’s Daubert motions are untimely and request that they be stricken. (Doc. 55 at 1–2; Doc. 56 at 2–3.) Because Plaintiffs had ample time to oppose 28 and argue the merits of Paris Ultra’s Daubert motions, the Court, in its discretion, will address the motions’ merits. 1 accepted standards and procedures in the fielding of surveys set forth by the American 2 Marking Association” and other organizations. (Id. at 7.) Mr. Buncher’s report explains his 3 methodology and how his methodology conforms with generally accepted principles. (Id. 4 at 7–26.) 5 Paris Ultra challenges the reliability of Mr. Buncher’s survey on the following 6 grounds: (1) the survey lacked a control group or adequate control question; (2) the 7 survey’s wording is confusing and misleading and answer choices are inadequate; (3) the 8 survey relies on an unrepresentative sample; and (4) the survey does not account for 9 respondents’ prior exposure to the advertisements. (Doc. 51 at 8–15.) Those objections go 10 to the weight of Mr. Buncher’s survey, not its admissibility. See Keith, 858 F.2d at 480 11 (finding a “survey’s general trustworthiness, the clarity of the survey questions, the 12 qualifications, and the objectivity of the survey” to be technical inadequacies); ThermoLife 13 Int’l, LLC v. Gaspari Nutrition, Inc., 648 F. App’x 609, 613 (9th Cir. 2016) (concluding 14 an unrepresentative sample does not preclude a survey’s admissibility); Hadley v. Kellogg 15 Sales Co., 324 F. Supp. 3d 1084, 1110 (N.D. Cal. 2018) (holding a “focalism bias objection 16 goes to the weight, and not to the admissibility” of a proffered survey); Mattel, Inc. v. MCA 17 Recs., Inc., 28 F. Supp. 2d 1120, 1135 (C.D. Cal. 1998) (finding a survey’s lack of a control 18 group was a technical unreliability). The Court finds that Mr. Buncher conducted the 19 survey according to accepted principles, and thus his survey is sufficiently reliable. See 20 Southland Sod Farms, 108 F.3d at 1143 n.8. 21 Expert testimony is relevant if the testimony is sufficiently tied to the facts of a case 22 such that it will aid the jury in understanding evidence or resolving a factual dispute. 23 Daubert, 509 U.S. at 591. Plaintiffs assert false light claims, misappropriation claims, and 24 claims under the Lanham Act. (FAC at 13–19.) Mr. Buncher’s survey and report will assist 25 the trier of fact in determining whether Paris Ultra’s use of Plaintiffs’ images deceived 26 consumers or implied that Plaintiffs promoted, endorsed, or were otherwise associated with 27 the Club. Thus, the Court finds that Mr. Buncher’s survey and report are relevant. 28 “[S]urvey evidence should be admitted as long as it is conducted according to 1 accepted principles and is relevant.” Fortune Dynamic, Inc. v. Victoria’s Secret Stores 2 Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th Cir. 2010) (internal quotations omitted). 3 Mr. Buncher’s survey meets both requirements by a preponderance of the evidence. Thus, 4 the Court will deny Paris Ultra’s Motion to Strike the Report and Testimony of Martin 5 Buncher (Doc. 51). 6 2. Stephen Chamberlin 7 Plaintiffs retained Mr. Chamberlin to testify as to their damages. Paris Ultra moves 8 to strike Mr. Chamberlin’s report and testimony, alleging his opinion is unreliable. 9 (Doc. 50 at 2.) Expert testimony must be “properly grounded, well-reasoned, and not 10 speculative before it can be admitted.” Fed. R. Evid. 702 Advisory Committee Notes to 11 2000 Amendments. An expert’s testimony “must be grounded in an accepted body of 12 learning or experience in the expert’s field, and the expert must explain how the conclusion 13 is so grounded.” Id.; see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999) 14 (“[N]o one denies that an expert might draw a conclusion from a set of observations based 15 on extensive and specialized experience.”). Mr. Chamberlin has 30 years of experience in 16 the model and talent industry. (Doc. 50–10 at 4.) His valuations of Plaintiffs’ day rates are 17 based on his experience and consideration of specific factors listed in his report. (Id. at 31, 18 43, 58, 70; Doc. 50–11 at 22, 34.) Mr. Chamberlin assumed, based on his experience, that 19 Plaintiffs would receive the same rate for each use of their image and multiplied Plaintiffs’ 20 day rates by Paris Ultra’s different “usages.” (Doc. 50–10 at 32.) Paris Ultra argues 21 Mr. Chamberlin improperly calculated Plaintiffs’ day rates and used an arbitrary usage 22 multiplier. (Doc. 50 at 2.) But those objections go to the weight of Mr. Chamberlin’s 23 testimony, not its admissibility. See Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th 24 Cir. 1998) (“Disputes as to . . . faults in [an expert’s] use of [a particular] methodology 25 . . . go to weight, not the admissibility, of his testimony.”). 26 The Court finds that Mr. Chamberlin’s testimony is grounded in his three decades 27 of experience in the model and talent industry and his report adequately explains how his 28 conclusions are so grounded. Because Plaintiffs have met their burden of showing by a 1 preponderance that Mr. Chamberlin’s expert testimony is reliable, Paris Ultra’s Motion to 2 Strike the Report and Testimony of Stephen Chamberlin (Doc. 50) is denied. 3 3. Dr. Michael Einhorn 4 Paris Ultra retained Dr. Einhorn to testify as to the value of Plaintiffs’ damages. 5 Plaintiffs move to strike Dr. Einhorn’s report and testimony, challenging his qualifications 6 and the reliability and relevance of his opinion. (Doc. 37 at 9–15.) Rule 702 requires this 7 Court to evaluate whether a proffered witness “is qualified as an expert by knowledge, 8 skill, experience, training, or education.” Fed. R. Evid. 702. “The qualification standard is 9 meant to be broad and to seek a ‘minimal foundation’ justifying the expert’s role as an 10 expert.” Allen v. Am. Cap. Ltd., 287 F. Supp. 3d 763, 776 (D. Ariz. 2017) (quoting 11 Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015–16 (9th Cir. 2004)). 12 A minimal foundation is established if a proffered expert has years of relevant experience. 13 Hangarter, 373 F.3d at 1015–16. The Court finds that Dr. Einhorn’s 19 years of experience 14 providing valuation services in areas including intellectual property lays at least the 15 minimal foundation of knowledge, skill, and experience required under Rule 702. 16 (Doc. 37–1 at 4.) Paris Ultra has therefore established by a preponderance that Dr. Einhorn 17 is qualified to opine on the value of Plaintiffs’ damages. See, e.g., Mitcheson v. El Antro 18 LLC, No. CV-19-01598-PHX-GMS, 2020 WL 7075239, at *2 (D. Ariz. Dec. 3, 2020) 19 (finding Dr. Einhorn to be sufficiently qualified in a similar case). 20 Expert testimony must be “properly grounded, well-reasoned, and not speculative 21 before it can be admitted.” Fed. R. Evid. 702 Advisory Committee Notes to 2000 22 Amendments. An expert’s testimony “must be grounded in an accepted body of learning 23 or experience in the expert’s field, and the expert must explain how the conclusion is so 24 grounded.” Id. As noted, Dr. Einhorn has 19 years of experience providing valuation 25 services in the fields of intellectual property, media, and entertainment. The Court finds 26 that Dr. Einhorn’s report sufficiently explains how his conclusions are grounded in his 27 experience. (See Doc. 37–1 at 58–69.) Thus, Paris Ultra has met its burden of showing 28 Dr. Einhorn’s expert testimony is reliable. 1 Expert testimony is relevant if the testimony is sufficiently tied to the facts of a case 2 such that it will aid the jury in understanding evidence or resolving a factual dispute. 3 Daubert, 509 U.S. at 591. The Court finds that Dr. Einhorn’s opinion will aid the jury in 4 determining the extent of Plaintiffs’ damages, and thus Paris Ultra has met its burden of 5 showing by a preponderance that Dr. Einhorn’s opinion is relevant. Because Dr. Einhorn 6 is qualified to give expert testimony on the issue of Plaintiffs’ damages, his methodology 7 is sufficiently reliable, and his opinion is relevant, Plaintiffs’ Motion to Strike the Expert 8 Report and Testimony of Michael Einhorn (Doc. 37) is denied. 9 B. Summary Judgment Motions 10 The parties move for summary judgment on all of Plaintiffs’ claims.4 (Docs. 39– 11 40.) Ms. Pepaj, Ms. Canas, Ms. Ruiz, Ms. Sampedro, and Ms. Campos assert claims arising 12 under Arizona law. (FAC at 13, 18.) All Plaintiffs allege claims for violations of the 13 Lanham Act. (Id. at 15.) The Court will first address the state law claims. 14 1. Arizona Claims 15 a. Invasion of Privacy by False Light 16 Under Arizona law, claims for invasion of privacy by false light are subject to a one- 17 year statute of limitations. Watkins v. Arpaio, 239 Ariz. 168, 173 (App. 2016) (applying a 18 one-year statute of limitations to a false light claim); see Albano v. Shea Homes Ltd., 634 19 F.3d 524, 528 (9th Cir. 2011) (“[S]tatutes of limitations are substantive in nature, and, 20 therefore, state statutes of limitations appl[y] [to state law claims].”). Plaintiffs’ initiated 21 this case on March 1, 2019. (Doc. 1.) The parties do not dispute that Paris Ultra published 22 4 Plaintiffs request that the Court strike Paris Ultra’s Separate Statement of Facts. (Doc. 49 23 at 3 n.2.) Despite the Scheduling Order’s express instruction that “the parties may not file separate statements of facts . . . and instead must include all facts in the motion, response, 24 or reply itself,” Paris Ultra filed a separate statement of facts in support of its summary judgment motion. (Doc. 15 at 5; Doc. 41.) When resolving the parties’ summary judgment 25 motions, the Court did not consider any facts stated in Paris Ultra’s Separate Statement of Facts that were not also included in its motion, response, or reply. Because Plaintiffs are 26 not prejudiced by Paris Ultra’s unauthorized filing, the Court, in its discretion, will not strike the Separate Statement of Facts. See Miranda v. S. Pac. Transp. Co., 710 F.2d 516, 27 521 (9th Cir. 1983) (“District courts have broad discretion in interpreting and applying their local rules.”). But the Court will, once again, admonish Paris Ultra’s counsel for 28 ignoring this provision of the Scheduling Order. See Takeguma v. Freedom of Expression, LLC, No. CV-18-02552-PHX-MTL, 2021 WL 487884, at *8 n.3 (D. Ariz. Feb. 10, 2021). 1 four of the relevant advertisements before March 1, 2018, and thus the false light claims 2 arising from those advertisements are barred by the statute of limitations. 3 Plaintiffs’ assert the continuing wrong doctrine in an effort to resurrect their time- 4 barred claims. Although the continuing wrong doctrine exists in Arizona, under the 5 doctrine, “a tort claim based on a series of related wrongful acts is considered continuous” 6 such that “accrual begins at the termination of the wrongdoing, rather than the beginning.” 7 Cruz v. City of Tucson, 243 Ariz. 69, 74 (App. 2017). There are no continuous acts in this 8 case. Instead, “there is one discrete posting of a Plaintiff’s image per claim against 9 Defendant.” Pinder v. 4716 Inc., No. CV-18-02503-RCC, --- F. Supp. 3d ---, 2020 10 WL 6084052, at *4 (D. Ariz. Oct. 15, 2020); see Watkins, 239 Ariz. at 173 (“We are 11 unaware of any authority compelling the conclusion that a false-light claim is subject to 12 the ‘continuing wrong’ doctrine, and we decline [the plaintiff’s] request to apply it here.”). 13 Because the continuing wrong doctrine does not apply to Plaintiffs’ false light claims, the 14 doctrine cannot prolong the one-year statute of limitations. Paris Ultra is therefore entitled 15 to summary judgment on Plaintiffs’ false light claims for images published before March 1, 16 2018. Ms. Sampedro’s false light claim for her image published on June 30, 2018 and the 17 false light claims alleged by Ms. Campos and Ms. Pepaj survive the statute of limitations. 18 Considering the false light claims that are within the limitations period, genuine 19 issues of material fact preclude summary judgment. Arizona “recognize[s] the distinct tort 20 of false light invasion of privacy as articulated by Restatement § 652(E).” Godbehere v. 21 Phx. Newspapers, Inc., 162 Ariz. 335, 342 (1989) (citing the Restatement (Second) of Torts 22 (the “Restatement Second”) § 625E (1977)). Under the Restatement Second, 23 One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to 24 liability to the other for invasion of his privacy, if 25 (a) the false light in which the other was placed would be 26 highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as 27 to the falsity of the publicized matter and the false light in 28 which the other would be placed. 1 Restatement Second § 652(E). 2 “A false light cause of action may arise when something untrue has been published 3 about an individual, or when the publication of true information creates a false implication 4 about the individual.” Godbehere, 162 Ariz. at 341 (emphasis in original) (internal citations 5 omitted). Thus, the fact the advertisements include accurate depictions of Ms. Sampedro, 6 Ms. Campos, and Ms. Pepaj does not preclude their false light claims. 7 There is, however, a triable issue as to whether being associated with Paris Ultra 8 would be highly offensive to a reasonable person. See Desert Palm Surgical Grp., P.L.C. 9 v. Petta, 236 Ariz. 568, 580 (App. 2015) (concluding the “jury was in the best position to 10 resolve . . . material questions of fact” as to whether a defendant’s statements “painted 11 Plaintiffs in a false light”). To be actionable, “the publication must involve a major 12 misrepresentation of the plaintiff’s character, history, activities or beliefs, not merely minor 13 or unimportant inaccuracies.” Godbehere, 162 Ariz. at 341 (internal quotations omitted). 14 Paris Ultra alleges there is “simply nothing offensive about a nightclub” and that Plaintiffs 15 “agreed to pose in undoubtedly risqué positions and wardrobe” in the original images. 16 (Doc. 40 at 18.) But Paris Ultra’s briefing refers to the Club as a “gentlemen’s club,” not 17 merely a nightclub. (Id. at 15.) And Paris Ultra conflates consent to take a photograph for 18 a discrete purpose with consent that the image be used in connection with an unrelated 19 business. See Godbehere, 162 Ariz. at 341 n.2 (citing Douglass v. Hustler Mag., Inc., 769 20 F.2d 1128 (7th Cir. 1985)) (explaining that a plaintiff who posed nude and consented to 21 the publication of her photographs in Playboy magazine could recover for false light 22 invasion of privacy when her photographs were instead published in Hustler magazine 23 because the “jury may have focused on the differences between Playboy and Hustler and 24 concluded that to be published in Hustler, as if she had posed for that publication, falsely 25 placed her in a different light than the Playboy publication”). A reasonable jury could 26 conclude that association with the Club placed Ms. Pepaj, Ms. Campos, and Ms. Sampedro 27 in a different light than the publications of their original images. Thus, the Court cannot 28 conclude as a matter of law that association with the Club would not be highly offensive 1 to a reasonable person. 2 There is also a triable issue as to whether Paris Ultra acted with actual malice—or 3 had knowledge of or acted in reckless disregard as to the falsity of the publicized matter. 4 Generally, “[a]ctual malice is a question of fact for a jury.” Miller v. Servicemaster by Rees, 5 174 Ariz. 518, 520 (App. 1992). Paris Ultra contends it “did not act knowingly or 6 recklessly” because it “simply reproduced” images that were “already publicly available.” 7 (Doc. 40 at 19.) But it is undisputed that Paris Ultra knew that it did not have Ms. Pepaj, 8 Ms. Campos, or Ms. Sampedro’s consent to use their respective images. And no Plaintiff 9 has been employed or compensated by Paris Ultra. Considering those facts, a reasonable 10 jury could infer that Paris Ultra knowingly published false information by implying that 11 Plaintiffs were associated with the Club. Solana v. Playgirl, Inc., 292 F.3d 1078, 1085 (9th 12 Cir. 2002) (“The subjective determination of whether the defendant in fact entertained 13 serious doubts as to the truth of the statement may be proved by inference, as it would be 14 rare for a defendant to admit such doubts.”). But it is also true that a reasonable factfinder 15 could reject an inference of knowledge from the facts above. Thus, the Court cannot 16 determine as a matter of law whether Paris Ultra acted with actual malice. 17 Paris Ultra argues that Ms. Pepaj, Ms. Campos, or Ms. Sampedro’s false light claims 18 fail because such claims only provide relief for mental and emotional injury and “Plaintiffs 19 have not claimed such damages here.” (Doc. 40 at 19.) But, under a false light claim, “a 20 plaintiff may recover . . . as long as the publicity is unreasonably offense and attributes 21 false characteristics.” Godbehere, 162 Ariz. at 341. “[T]he false innuendo created by the 22 highly offensive presentation of a true fact constitutes the injury.” Reynolds v. Reynolds, 23 231 Ariz. 313, 318 (App. 2013). In this case, Plaintiffs allege Paris Ultra’s advertisements 24 falsely imply that they are employed by or have agreed to endorse or promote the Club. As 25 noted, there is a triable issue as to whether such affiliation is unreasonably offensive. Thus, 26 the Court rejects Paris Ultra’s argument.5 27 5 The Court is unpersuaded by Paris Ultra’s argument that Plaintiffs’ false light claims are barred because they “‘claim’ to be celebrities.” (Doc. 40 at 19.) Although the Arizona 28 Supreme Court has held that “a plaintiff cannot sue for false light invasion of privacy if he or she is a public official and the publication relates to performance of his or her public life 1 In sum, Paris Ultra is entitled to summary judgment on Plaintiffs’ false light claims 2 for images published before March 1, 2018. Ms. Sampedro’s false light claim for her image 3 published on June 30, 2018 and the false light claims alleged by Ms. Campos and Ms. Pepaj 4 survive the statute of limitations, but there are genuine disputes of material fact that 5 preclude summary judgment in favor of either party on those claims. 6 b. Common Law Right of Publicity 7 Plaintiffs and Paris Ultra both argue they are entitled to summary judgment on 8 Plaintiffs’ claims for violations of the common law right of publicity. (Doc. 39 at 5; 9 Doc. 40 at 8.) The Court will address the parties’ arguments in turn. 10 i. Arizona Recognizes a Right of Publicity 11 The Court finds that “Arizona recognizes a right of publicity.” In re Estate of 12 Reynolds, 235 Ariz. 80, 85 (App. 2014).6 The appellate court’s holding in Estate of 13 Reynolds is not obiter dictum as Paris Ultra suggests. Rather, recognizing the right of 14 publicity was necessary to the court’s decision that, although the right of publicity exists 15 and is descendible in Arizona, the plaintiff could not establish a violation under the facts 16 of the case. Id. at 85; see Dictum, Black’s Law Dictionary (11th ed. 2019) (defining “obiter 17 dictum” as “[a] judicial comment made while delivering a judicial opinion, but one that is 18 unnecessary to the decision in the case and therefore not precedential”). 19 The Court also rejects Paris Ultra’s argument that A.R.S. § 12-761 deprives non- 20 soldiers of the right to publicity. (Doc. 40 at 9.) That law provides: “The right to control 21 and to choose whether and how to use a soldier’s name, portrait or picture for commercial 22 purposes is recognized as each soldier’s right of publicity.” A.R.S. § 12-761(A). The statute 23 or duties,” Godbehere, 162 Ariz. at 343, there is no indication that this exception applies more broadly to other types of notoriety and Paris Ultra provides no analysis or explanation 24 as to why Ms. Pepaj, Ms. Campos, and Ms. Sampedro are public figures under Arizona law. See Wright v. Old Gringo Inc., No. 17-CV-1996-BAS-NLS, 2018 WL 6788215, at *3 25 (S.D. Cal. Dec. 26, 2018) (“[M]erely making a conclusory argumentative statement without citation to law or analysis is insufficient either to competently raise the argument 26 for judicial consideration or for a party to meet its burden on summary judgment.”). 6 The Court finds no indication that the Arizona Supreme Court would not recognize an 27 individual right of publicity. In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990) (internal quotations and citations omitted) (“In the absence of convincing evidence that the highest 28 court of the state would decide differently, a federal court is obligated to follow the decisions of the state’s intermediate courts.”). 1 continues: “The rights and remedies provided in this section supplement any other rights 2 and remedies provided by law, including the common law right of privacy.” A.R.S. § 12- 3 761(E). Arizona courts presume that statutes do not change or abrogate common law causes 4 of action unless the Legislature clearly manifests an intent to do so. Orca Commc’ns 5 Unlimited, LLC v. Noder, 236 Ariz. 180, 182 (2014). The text of A.R.S. § 12-761 suggests 6 that the Legislature intended to preserve, not eliminate, the common law right of privacy. 7 Paris Ultra’s argument based on the Revised Arizona Jury Instructions (the “RAJI”) 8 is also flawed. (Doc. 40 at 8.) The Arizona Supreme Court “decided not to issue or qualify 9 approvals for any jury instructions.” RAJI (CIVIL) 6th Important Notice. Thus, the RAJI’s 10 use is noncompulsory. See Pinder, 2020 WL 6084052 at *10. Because the Court finds that 11 Arizona recognizes the right of publicity, the Court must next address whether Plaintiffs’ 12 right of publicity claims are time-barred. 13 ii. Statute of Limitations 14 Paris Ultra argues that Plaintiffs’ right of publicity claims are barred by a one-year 15 statute of limitations. (Doc. 40 at 19–20.) “[W]hen a defendant asserts the statute of 16 limitations as a defense, the defendant has the burden of proving that the [claim] falls within 17 the statute.” Troutman v. Valley Nat’l Bank of Ariz., 170 Ariz. 513, 517 (App. 1992). The 18 Arizona Legislature has not expressly categorized a right of publicity claim within a 19 specific limitations period. Under Arizona law, a one-year limitations period applies to 20 actions for “injuries done to the character or reputation of another,” including invasion of 21 privacy by false light claims. A.R.S. § 12-541(1); see Watkins, 239 Ariz. at 173. But unlike 22 false light claims, “the right of publicity is in the nature of a property right.” Estate of 23 Reynolds, 235 Ariz. at 82. In Arizona, property-related torts are subject to a two-year 24 limitations period. See A.R.S. § 12-542. Thus, Paris Ultra has not carried its burden.7 25 7 Paris Ultra made no alternative argument that the two-year limitations period in A.R.S. § 12-542 bars Plaintiffs’ right of publicity claims. “In our adversarial system of 26 adjudication, we follow the principle of party presentation.” United States v. Sineneng- Smith, 590 U.S. ----, 140 S. Ct. 1575, 1579 (2020). “[A]s a general rule, our system is 27 designed around the premise that parties represented by competent counsel know what is best for them, and are responsible for advancing the facts and argument entitling them to 28 relief.” Id. (internal quotations omitted). Thus, the Court will not evaluate whether any Plaintiffs’ right of publicity claims are barred by the limitations period in A.R.S. § 12-542. 1 iii. Prima Facie Case 2 Under Arizona law, “‘[o]ne who appropriates the commercial value of a person’s 3 identity by using without consent the person’s name, likeness, or other indicia of identity 4 for purposes of trade is subject to liability’ for resulting damages.” Estate of Reynolds, 235 5 Ariz. at 82 (quoting Restatement (Third) of Unfair Competition (“Restatement Third”) § 46 6 (1995)). To be actionable, a defendant’s use must “be sufficient to identify the person 7 whose identity the defendant is alleged to have appropriated.” Restatement Third § 46, 8 cmt. d. When a defendant is alleged to have appropriated a plaintiff’s visual likeness, “the 9 plaintiff must be reasonably identifiable from the photograph.” Id. Violations of the right 10 of publicity “typically arise out of the unauthorized use of a well-known person’s name or 11 likeness in connection with the advertising of goods or services.” Estate of Reynolds, 235 12 Ariz. at 83. But, “the identity of even an unknown person may possess commercial value.” 13 Id. Moreover, “[a]lthough proof of deception or confusion is not an element of liability 14 . . ., the right of publicity indirectly affords protection against false suggestions of 15 endorsement or sponsorship.” Id. at 82 (quoting Restatement Third § 46, cmt. c). 16 Plaintiffs argue the undisputed facts establish their right of publicity claims. 17 (Doc. 39 at 6.) Specifically, Plaintiffs allege there is no material dispute that: (1) Paris Ultra 18 “used each Plaintiff’s identity in [its] advertisements;” (2) Paris Ultra “sought and obtained 19 a commercial advantage by using these identities by, at minimum, getting Plaintiffs to 20 appear for free in these advertisements;” (3) no Plaintiff has “been employed by, contracted 21 with or has otherwise given permission or consent to [Paris Ultra] to use her Image to 22 advertise, promote, market or endorse [the Club];” and (4) each Plaintiff “was injured by, 23 at minimum, being denied the fair market revenue she would have received but for [Paris 24 Ultra’s] misappropriations.” (Id.) Rather than contest the merits of Plaintiffs’ claims, Paris 25 Ultra limits its arguments to the existence of the individual right of publicity in Arizona 26 and the statute of limitations. (Doc. 40 at 8–10, 19–20; Doc. 52 at 6–8, 11.) Paris Ultra 27 therefore fails to identify any material facts to support a finding that a genuine issue 28 remains. And the Court finds that the undisputed facts are sufficient for each Plaintiff to 1 establish “beyond controversy” the essential elements of her right of publicity claims. See 2 S. Cal. Gas Co., 336 F.3d at 888. The quantity of Plaintiffs’ damages remains a triable 3 issue of fact. Plaintiffs sufficiently allege that their damages are, “at minimum,” the fair 4 market value of their images. (Doc. 39 at 6.) But Plaintiffs’ briefing suggests that Plaintiffs 5 may seek additional damages on their right of publicity claims. Accordingly, the Court will 6 grant summary judgment in Plaintiffs’ favor as to liability on the right of publicity, but the 7 measure of each Plaintiff’s damages remains a question of fact for trial. See, e.g., 8 Mitcheson, 2020 WL 7075239 at *11 (granting summary judgment in the plaintiffs’ favor 9 as to liability under the right of publicity in a similar case). 10 2. The Lanham Act 11 In addition to the state law claims, all Plaintiffs seek relief under the Lanham Act, 12 15 U.S.C. § 1125(a). There are two distinct bases of liability under § 1125(a): (1) false 13 association, § 1125(a)(1)(A), and (2) false advertising, § 1125(a)(1)(B). See Lexmark Int’l, 14 Inc. v. Static Control Components, Inc., 572 U.S. 118, 122 (2014). 15 a. False Association 16 Both parties seek summary judgment on Plaintiffs’ false association claims. The 17 Lanham Act prohibits “the use of any symbol or device which is likely to deceive 18 consumers as to the association, sponsorship, or approval of goods or services by another 19 person.” Wendt v. Host Int’l, Inc., 125 F.3d 806, 812 (9th Cir. 1997). The Court considers 20 the following factors, commonly referred to as the Sleekcraft factors, to determine whether 21 a likelihood of confusion exists: 22 (1) strength of the plaintiff’s mark; 23 (2) relatedness of the goods; 24 (3) similarity of the marks; 25 (4) evidence of actual confusion; 26 (5) marketing channels used; 27 (6) likely degree of purchaser care; 28 (7) defendant’s intent in selecting the mark; 1 (8) likelihood of expansion of the product lines. 2 White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1400 (9th Cir. 1992). Generally, whether 3 there is a “likelihood of confusion is a factual determination and district courts should grant 4 summary judgment motions regarding the likelihood of confusion sparingly.” Fortune 5 Dynamic, Inc., 618 F.3d at 1039 (internal quotations omitted). 6 In cases involving an alleged celebrity, “‘mark’ means the celebrity’s persona.” 7 White, 971 F.2d at 1400. The “strength” of a plaintiff’s “mark refers to the level of 8 recognition that the celebrity has among the segment of the public to whom the 9 advertisement is directed.” Downing v. Abercrombie & Fitch, 265 F.3d 994, 1007 (9th Cir. 10 2001). Plaintiffs have strong social media followings, and Plaintiffs’ expert, Mr. Buncher, 11 reported that, on average, 15% of survey respondents recognized Plaintiffs. (Doc. 39 at 13; 12 Doc. 51–2 at 19.) Paris Ultra offers evidence suggesting that Plaintiffs merely engaged in 13 “sporadic modeling and appearance roles” such that their personas are not sufficiently 14 recognizable to give rise to false association claims. (Doc. 40 at 13–15.) And Paris Ultra 15 has raised several objections to Plaintiffs’ survey evidence for the factfinder to consider 16 when weighing its probative value. Thus, this factor could tip in favor of either side. 17 The second factor concerns the “reasons for or source of the plaintiff’s fame.” White, 18 971 F.2d at 1400. The relevant question is “whether a consumer would be confused as to 19 [Plaintiffs’] association with or sponsorship of [the Club].” Wendt, 125 F.3d at 813. 20 Although the parties disagree as to the precise nature of the goods at issue, Paris Ultra’s 21 advertising and “at least a portion of [] Plaintiffs’ modeling work demonstrate that both 22 parties market female sexuality.” Mitcheson, 2020 WL 7075239 at *13. Plaintiffs’ survey 23 evidence indicates that 86% of respondents believed Plaintiffs “agreed to sponsor, endorse 24 or promote [the Club].” (Doc. 51–2 at 21.) But, the factfinder will have the opportunity to 25 consider Paris Ultra’s objections to the survey evidence when weighing its probative value. 26 Thus, there is a triable issue as to the relatedness of the parties’ goods. 27 Paris Ultra concedes the third factor, “similarity of the marks,” weighs in Plaintiffs’ 28 favor “because the subject photographs are unaltered photographs of the Plaintiffs.” 1 (Doc. 40 at 15.) The fourth factor presents a triable issue of fact. “[S]urvey evidence may 2 establish actual confusion.” Fortune Dynamic, Inc., 618 F.3d at 1035. Plaintiffs’ survey 3 evidence indicates that 86% of respondents thought Plaintiffs “agreed to sponsor, endorse 4 or promote [the Club]” and 71% of respondents thought Plaintiffs “participate in the events 5 or activities which take place in the Club.” (Doc. 46–5 at 21–22.) But Paris Ultra may 6 undermine the weight the trier of fact affords to the survey evidence through questioning 7 the survey’s methods during cross-examination. 8 As to the fifth factor, “the shared use of a ubiquitous marketing channel does not 9 shed much light on the likelihood of consumer confusion.” Network Automation, Inc. v. 10 Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1151 (9th Cir. 2011). Both parties use social 11 media to market their goods. Although social media is narrower than all Internet-based 12 marketing, social media is nonetheless a broadly used form of promotion. Thus, this factor 13 sheds little light on the Court’s overall analysis but weighs slightly in favor of Plaintiffs. 14 Sixth, “[l]ow consumer care . . . increases the likelihood of confusion.” Playboy 15 Enters., Inc. v. Netscape Commc’ns Corp., 354 F.3d 1020, 1028 (9th Cir. 2004). 16 “Consumer care for inexpensive products is expected to be quite low.” Id. But when “goods 17 are expensive, [a] buyer can be expected to exercise greater care.” Network Automation, 18 Inc., 638 F.3d at 1152. The parties disagree as to the level of care nightclub patrons 19 exercise, and neither party offers evidence to support their assertions. (See Doc. 39 at 16; 20 Doc. 40 at 16.) The difficulty of trying to determine with any degree of certainty the level 21 of care that nightclub patrons exercise when choosing between establishments confirms the 22 need for this claim to be heard by a jury. See Fortune Dynamic, Inc., 618 F.3d at 1038. 23 The seventh factor presents a triable issue of fact. When considering a defendant’s 24 intent, the relevant question is whether the defendant “intended to profit by confusing 25 consumers concerning the endorsement of [the defendant’s goods].” White, 971 F.2d at 26 1400 (internal quotations omitted). Although Plaintiffs argue Paris Ultra intended to 27 confuse customers by using Plaintiffs’ images in the Club’s advertising, Paris Ultra denies 28 this allegation. “Issues of credibility, including questions of intent, should be left to the 1 jury.” Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999). The eighth factor, the 2 “likelihood of expansion of the product lines,” is inapposite where, as here, the case 3 involves an alleged celebrity. See White, 971 F.2d at 1401. 4 When “a majority of the Sleekcraft factors could tip in either direction,” summary 5 judgment should not be granted. Fortune Dynamic, Inc., 618 F.3d at 1039. In this case, 6 there are genuine disputes of material fact as to the strength of Plaintiffs’ marks, the 7 relatedness of the goods, evidence of actual confusion, the likely degree of purchaser care, 8 and Paris Ultra’s intent. Accordingly, neither Plaintiffs nor Paris Ultra are entitled to 9 summary judgment on Plaintiffs’ false association claims. 10 b. False Advertising 11 Preliminarily, the Court rejects Paris Ultra’s argument that Plaintiffs did not plead 12 or disclose their false advertising claims. The First Amended Complaint (“FAC”) alleges 13 “Violation of the Lanham Act, 15 U.S.C. § 1125(a),” which encompasses false association 14 and false advertising. (FAC at 15–18.) The FAC references 15 U.S.C. § 1125(a)(1)(B), the 15 subsection germane to false advertising, and states that Paris Ultra’s “unauthorized use and 16 alteration of [Plaintiffs’] images, likenesses, and/or identities as described in this 17 Complaint constitutes false advertising.” (Id. ¶¶ 58, 61.) The factual allegations in FAC 18 correspond to both subsections of § 1125(a). (Id. ¶¶ 57–75.) Thus, Plaintiffs’ FAC gives 19 Paris Ultra fair notice of Plaintiffs’ false advertisement claims and the grounds on which 20 the claims rest. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 21 Nevertheless, Paris Ultra is entitled to summary judgment on Plaintiffs’ false 22 advertising claims. To invoke the Lanham’s Act cause of action for false advertising, a 23 plaintiff must establish that her alleged injury falls within the “zone of interests” protected 24 by the Lanham Act. Lexmark Int’l, Inc., 572 U.S. at 129–34. To come within the Lanham 25 Act’s zone of interests, a plaintiff “must allege an injury to a commercial interest in 26 reputation or sales.” Id. at 131–32. A plaintiff asserting a false advertising claim need not 27 be in direct competition with a defendant, but the plaintiff must allege harm “related to the 28 plaintiff’s success in the market, not just between the parties.” Mitcheson, 2020 1 WL 7075239 at *16; see also Lexmark Int’l, Inc., 572 U.S. at 133 (“[C]ommercial injuries 2 from false advertising are derivative of those suffered by consumers who are deceived by 3 the advertising.”). Here, Plaintiffs allege they “suffered an injury to their commercial 4 interests in sales by not getting paid for [Paris Ultra’s] use of their image.” (Doc. 58 at 7.) 5 Plaintiffs are simply claiming that they are entitled to compensation for Paris Ultra’s 6 alleged misrepresentations. Plaintiffs offer no common marketplace in which consumer 7 dollars were diverted from Plaintiffs because of Paris Ultra’s false claims. Plaintiffs do not 8 offer any evidence that their position in the market has been damaged by Paris Ultra’s 9 alleged misrepresentations. See Lexmark Int’l, Inc., 572 U.S. at 137. And Plaintiffs provide 10 no facts suggesting that Paris Ultra’s “deception of consumers cause[d] them to withhold 11 trade from” Plaintiffs. Id. at 133. Thus, Plaintiffs’ alleged injuries are not within the zone 12 of interests that the Lanham Act protects. 13 Even if Plaintiffs’ alleged injuries did implicate the Lanham Act’s zone of interests, 14 Plaintiffs have not established a triable issue as to proximate cause. A plaintiff alleging a 15 false advertising claim “must show economic or reputational injury flowing directly from 16 the deception wrought by the defendant’s advertising.” Id. As noted, the harm alleged is 17 that Plaintiffs did not get paid for Paris Ultra’s use of their images. (Doc. 39 at 10.) The 18 alleged deception is that, contrary to Paris Ultra’s advertisements, Plaintiffs are not 19 affiliated with Paris Ultra and consumers will not find Plaintiffs working at the Club. (Id. 20 at 8–9.) Plaintiffs do not offer any facts suggesting that Paris Ultra’s allegedly false 21 advertising caused consumers to withhold trade from Plaintiffs. See Lexmark Int’l, Inc., 22 572 U.S. at 133. Nor do Plaintiffs argue that their injuries are derivative of any harm 23 suffered by consumers deceived by Paris Ultra’s advertisements. See id. Instead, the facts 24 indicate that Paris Ultra’s failure to negotiate with and pay Plaintiffs caused Plaintiffs’ 25 alleged injuries. Plaintiffs “cannot obtain relief without evidence of injury proximately 26 caused by [Paris Ultra’s] alleged misrepresentations.” Id. at 140. Accordingly, Paris Ultra 27 is entitled to summary judgment on Plaintiffs’ false advertising claims. 28 1 3. Collateral Estoppel 2 Paris Ultra argues Ms. Gibson, Ms. Canas, and Ms. Pepaj are collaterally estopped 3 from litigating their Lanham Act claims and claims arising under Arizona law.8 (Doc. 40 4 at 21–22.) “Defensive collateral estoppel applies ‘when a defendant seeks to prevent a 5 plaintiff from asserting a claim the plaintiff has previously litigated and lost against another 6 defendant.” Masson v. New Yorker Mag., 85 F.3d 1394, 1400 (9th Cir. 1996) (internal 7 quotations omitted). Paris Ultra “bears the burden of showing with clarity and certainty 8 what was determined by the prior judgment.” Clark v. Bear Stearns & Co., 966 F.2d 1318, 9 1321 (9th Cir. 1992) (“It is not enough that the party introduce the decision of the prior 10 court; rather, the party must introduce a sufficient record of the prior proceeding to enable 11 the trial court to pinpoint the exact issues previously litigated.”). In this case, Paris Ultra 12 argues “all elements of collateral estoppel are met” as to Ms. Gibson, Ms. Canas, and 13 Ms. Pepaj. (Doc. 40 at 22.) But Paris Ultra “makes no showing that the factual 14 circumstances in the cases are the same and warrant the application of collateral estoppel.” 15 Mitcheson, 2020 WL 7075239 at *17. Accordingly, the Court finds that Paris Ultra’s 16 assertions do not possess the “clarity” or “certainty” needed for collateral estoppel to apply. 17 IV. CONCLUSION 18 To summarize, Plaintiffs’ false association claims under the Lanham Act, 19 Ms. Sampedro’s false light claim for her image published on June 30, 2018, and the false 20 light claims alleged by Ms. Campos and Ms. Pepaj will proceed to trial. The issue of 21 damages under Ms. Pepaj, Ms. Canas, Ms. Ruiz, Ms. Campos, and Ms. Sampedro’s right 22 of publicity claims will also proceed to trial. At trial, each expert will be permitted to testify 23 to their expert opinions. 24 Accordingly, 25 IT IS ORDERED denying Plaintiffs’ Motion to Strike the Expert Report and 26 Testimony of Michael Einhorn (Doc. 37); Defendant’s Motion to Strike the Report and 27 Testimony of Stephen Chamberlin (Doc. 50); and Defendant’s Motion to Strike the Report 28 8 The Court notes that Ms. Gibson has not alleged any claims arising under Arizona law in this matter. 1 || and Testimony of Martin Buncher (Doc. 51). 2 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment 3|| (Doc. 39) is granted in part and denied in part. Plaintiffs’ Motion for Summary Judgment is granted in favor of Plaintiffs as to the issue of liability on Ms. Pepaj, || Ms. Canas, Ms. Ruiz, Ms. Campos, and Ms. Sampedro’s right of publicity claims. 6|| Plaintiffs’ Motion for Summary Judgment is denied as to all other claims. 7 IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment 8 || (Doc. 40) is granted in part and denied in part. Defendant’s Motion for Summary 9|| Judgment is granted in favor of Defendant as to Plaintiffs’ claims for invasion of privacy □□ by false light for images published before March 1, 2018 and as to Plaintiffs’ claims for 11 || false advertising under the Lanham Act. Defendant’s Motion for Summary Judgment is □□ denied as to all other claims. 13 IT IS FINALLY ORDERED setting a trial-setting conference for Thursday, 14|| March 4, 2021, at 11:00 A.M., in Courtroom 503, Sandra Day O’Connor U.S. Federal 15 || Courthouse, 401 W. Washington St., Phoenix, Arizona 85003-2151. Participants shall have their calendars available and be prepared to schedule dates for a Final Pretrial Conference and for trial. In-person appearance is preferred; however, the Court will permit telephonic 18 || appearance upon request. 19 Dated this 18th day of February, 2021. 20 Michal T. Hbhurdle Michael T. Liburdi 23 United States District Judge 24 25 26 27 28 -21-