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Cherms v. Sony Online Entertainment LLC

Court grants anti-SLAPP motion to strike complaint claiming negligence and products liability due to plaintiff’s adult son’s addiction to video games, finding that plaintiff failed to demonstrate probability of success on merits.

Plaintiff sued Sony Online Entertainment, a publisher, developer, and seller of video games, for negligence and products liability, alleging that he suffered emotional distress as a result of his adult son’s addiction to Sony’s video games and claiming that Sony failed to adequately warn consumers of the games’ addictive nature. Sony moved to strike plaintiff’s complaint under California’s anti-SLAPP statute, on the grounds that video games are entitled to First Amendment protection and that the games are not “products” subject to strict liability.

Although plaintiff agreed that Sony’s activities were protected by the First Amendment, he opposed the motion, citing publications stating that the video game industry requires a constant supply of new players to survive and contending that video games should include warnings about their potential risks.

The court granted Sony’s motion to strike the complaint. The court acknowledged that, for anti-SLAPP purposes, the production of video games constitutes protected First Amendment expression. Turning to the second prong of the anti-SLAPP inquiry, the court found that plaintiff could not show a probability of success on the merits. Plaintiff’s “bystander” emotional distress claim was legally insufficient because he could not allege that he was physically present and contemporaneously aware of any injury-causing event. Additionally, plaintiff failed to submit any admissible evidence in support of his claims.