Judge Alison Mackenzie, Case 22SMCV02968 2023-05-25 Tentative Ruling

Judge: Alison Mackenzie, Case: 22SMCV02968, Date: 2023-05-25 Tentative Ruling

Case Number: 22SMCV02968 Hearing Date: May 25, 2023 Dept: 207

Background

Plaintiffs Leonard Whiting (“Whiting”) and Olivia Hussey (“Hussey” or, collectively with Whiting, “Plaintiffs”) bring this action against Defendant Paramount Pictures Corporation (“Defendant”). Plaintiffs alleges they were cast as actors in a 1968 film adaptation of Romeo and Juliet. Plaintiffs state they were minors at the time the movie was filmed in 1967, and the director coerced them into appearing nude in the film despite representations that no nudity would be required or filmed in connection with the movie. Plaintiffs’ operative Complaint, filed December 30, 2022, asserts seven causes of action against Defendant for sexual harassment, fraud, sexual abuse, appropriation of name and likeness, intentional infliction of emotional distress, negligence, and unfair business practices.

Defendant now moves to strike Plaintiffs’ entire Complaint pursuant to Code Civ. Proc. § 425.16, which extends protections to strategic lawsuits against public participation (“SLAPP” actions). Plaintiffs oppose Defendant’s motion.

Request for Judicial Notice

Defendant asks the Court to take judicial notice of Exhibits 1 to 7 of the Declaration of Matteo Licini, which consist of Italian statutes. Defendant also requests the Court to take judicial notice of Exhibit A to the Declaration of Rachel Alexander, which consists of copies of three cases decided under British caselaw. Evidence Code § 452(f) permits the Court to take judicial notice of the law of foreign nations. Defendant’s requests concerning these exhibits are unopposed and are GRANTED. Defendant additionally asks the Court to take judicial notice of Exhibits 1 to 11 of the Declaration of Nary Kim, consisting of various books, reviews, articles, or excerpts of other media relating to the film that forms the subject of this action. The Court finds these materials do not constitute “Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute” under Evidence Code § 451(f) or “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy” under Evidence Code § 452(h). Defendant has not provided any alternative basis under the Evidence Code by which the Court may take judicial notice of these materials, and thus its request is DENIED as to these exhibits to the Declaration of Nary Kim.

Objections to Evidence

Defendant’s objections to Plaintiffs’ declarations are OVERRULED.

Legal Standard

In 1992, the Legislature enacted Code Civ. Proc. § 425.16 as a remedy for the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (C.C.P. §425.16(a); Wilcox v. Sup. Ct. (1994) 27 Cal.App.4th 809, 817.) The lawsuits are commonly referred to as “SLAPP” lawsuits, an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) A defendant opposing a SLAPP claim may bring an “anti-SLAPP” special motion to strike any cause of action “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….” (C.C.P. § 425.16(b)(1).)

In ruling on an anti-SLAPP motion, a trial court uses a “summary-judgment-like procedure” at an early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The procedure is a two-step process. First, the moving defendant must show that the acts of which the plaintiff complains were protected activity, namely, that they were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (C.C.P. §425.16(b)(1).) If the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (C.C.P. § 425.16(b)(3).)

In making both determinations, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (C.C.P. § 425.16(b)(2); Equilon, supra, 29 Cal.4th at 67.)

Pursuant to section 425.16(f) “[t]he special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.”

Analysis

1. Factual Background

In 1967 B.H.E. Productions Limited (“B.H.E.”) contracted with Italian director Franco Zeffirelli (“Zeffirelli”) to direct a film adaptation of the Shakespeare play Romeo and Juliet. (Ex. A to Strauss Decl.) Zeffirelli cast Plaintiffs to play the main characters. The film was shot in Italy. (Ex. D to Strauss Decl.) Defendant contracted with B.H.E. to distribute the film. (Ex. C. to Strauss Decl.) It was first released in Great Britain in March 1968, and was subsequently released in Italy and the United States in October 1968. At the time of filming, Whiting was 16 or 17 years old, and Hussey was 15 or 16 years old. (Kim Decl. at ¶18; Ex. D to Strauss Decl.; Complaint at 5.)

On December 30, 2022, Plaintiffs filed their Complaint in this action against Defendant, alleging seven causes of action for sexual harassment, fraud, sexual abuse, appropriation of name and likeness, intentional infliction of emotional distress, negligence, and unfair business practices. Plaintiffs allege that Zeffirelli initially told them there would be no nudity filmed or exhibited in connection with the love scene featured in the film, but that when it came time to film that scene, Zeffirelli told them they would have to appear nude in the scene and the success of the film depended on them doing so. Zeffirelli showed Plaintiffs the camera locations and told them no nudity would actually be filmed during the scene. Plaintiffs state they believed they had no choice but to act in the nude pursuant to Zifferelli’s instructions. Plaintiffs allege that despite Zifferelli’s representations, they were in fact filmed in the nude and their nudity was included in the film without their knowledge. Plaintiffs allege Zeffirelli acted as Defendant’s authorized agent at the time he made and broke these representations, and that Defendant knew or should have known that images of their nude bodies were secretly and unlawfully obtained through coercion and deception during the filming of the movie. (Complaint at 5.)

2. Prong One: Protected Activity

The determination of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged. Second, for each claim that arises from protected activity, the plaintiff must show the claim has at least minimal merit. In determining the first step, “courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. The defendant’s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 [internal quotations and citations omitted].)

Plaintiffs’ claims in this action stem from Defendant’s alleged involvement in the production and distribution of the Romeo & Juliet film. Defendant has provided authority showing the production and distribution of a film constitute protected activity under the First Amendment. “Under California law, the creation, production, and distribution of entertainment such as television or film are activities in furtherance of the exercise of the right to free speech, and thus protected under the anti-SLAPP statute.” (Brodeur v. Atlas Ent’t, Inc. (2016) 248 Cal. App. 4th 665, 674; see also De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 849-50 [“Authors write books. Filmmakers make films. Playwrights craft plays. And television writers, directors, and producers create television shows and put them on the air…. The First Amendment protects these expressive works and the free speech rights of their creators”].)

Plaintiffs do not dispute that the production and distribution of a film is generally protected activity, instead they claim that in this case the bedroom scene from the film constitutes illegal child pornography under federal and California law and is thus illegal and not entitled to First Amendment protections. Under California law, otherwise protected activity loses the protection of section 425.16 if it is illegal as a matter of law. However, this rule applies “only if the SLAPP defendant concedes or it is conclusively established that the conduct was illegal as a matter of law.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287; see also Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 832 [“the Flatley exception applies only in ‘narrow circumstance[s]’ where ‘either the defendant concedes, or the evidence conclusively establishes’ illegality as a matter of law”].)

Here, Defendant has not conceded that any of its conduct was illegal, nor have Plaintiffs conclusively demonstrated the alleged conduct is illegal as a matter of law. Indeed, Plaintiffs themselves recognize that depictions of naked minors will only constitute illegal child pornography if they are “sufficiently sexually suggestive.” Plaintiffs have not put forth any authority showing the film here can be deemed to be sufficiently sexually suggestive as a matter of law to be held to be conclusively illegal. Plaintiffs’ argument on the subject is limited to cherry-picked language from federal and state statutes without offering any authority regarding the interpretation or application of those statutory provisions to purported works of artistic merit, such as the award-winning film at issue here. The Court notes caselaw suggests works which may be technically violative of child pornography statutes may nonetheless be legal in the proper context. “Not all nude pictures of children are child pornography: Only images containing ‘lascivious exhibition of the genitals or pubic area’ qualify.” (United States v. Hill (C.D. Cal. 2004) 322 F.Supp.2d 1081, 1084 [citing 18 U.S.C. §§ 2256(8)(B),2256(2)(B)(iii)].) In determining whether a particular depiction is “lascivious” the Court considers factors such as whether they are “part of a medical text” or “appear to be bona fide artistic expression.” (Id. at 1086-1087.) In New York v. Ferber (1982) 458 U.S. 747, the Supreme Court held that its previous obscenity standards did not apply to child pornography, as the First Amendment did not protect sexually explicit depictions of children. (Id. at 761.) In reaching this conclusion, the Supreme Court held the question whether such images could nonetheless be entitled to constitutional protection due to educational, scientific, or artistic value would have to be resolved on a case-by-case, “as applied” basis. (Id. at 773.)

The same is true with respect to Plaintiffs’ claim that film constitutes “child molestation” under Penal Code § 647.6. Plaintiffs’ argument is simply a restatement of its argument that the film is child pornography because it depicts minors in a state of undress. “[T]o constitute a violation of section 647.6, both an objective and subjective element must be proven: (1) the existence of objectively and unhesitatingly irritating or disturbing conduct; and (2) motivated by an abnormal sexual interest in children.” (People v. Clotfelter (2021) 65 Cal.App.5th 30, 52.) Plaintiffs have not established these elements have been conclusively established or conceded by Defendant in this litigation.

Based on the arguments raised in Plaintiffs’ opposition, the Court finds Plaintiffs have not shown the film in question is conclusively illegal such as to exempt the film from the protections of section 425.16. Courts have rejected the argument that the Court must accept a plaintiff’s characterization of conduct as unlawful in determining whether the first prong is satisfied. (See, e.g., Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887 [“The argument thus boils down to an assertion that, for purposes of the first step of the anti-SLAPP analysis, a court must accept [plaintiff]’s allegation that the challenged personnel actions were taken for discriminatory reasons and are therefore unlawful. [Citation.] This is not how the anti-SLAPP statute works”].) As such, the Court finds the first prong of the anti-SLAPP analysis has been established here, as Plaintiffs’ claims in this action arise from Defendant’s involvement in the production and distribution of a film, which is protected activity under the First Amendment.

3. Prong Two: Probability of Success on the Merits

The limitations period for claims relating to childhood sexual abuse is codified at Code Civ. Proc. § 340.1. Section 340.1(a) provides that an action for damages suffered as a result of childhood sexual abuse must be brought “within 22 years of the date the plaintiff attains the age of majority or within five years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual assault, whichever period expires later.” “Since its enactment in 1986, section 340.1 has been continually amended to minimize procedural limitations for victims of childhood sexual assault. [Citation.] Most recently, in 2019, the Legislature passed Assembly Bill No. 218 (2019–2020 Reg. Sess.) (Assembly Bill 218), which amended section 340.1 to extend the statute of limitations for childhood sexual assault by 14 years, revive time-barred claims for three years, and eliminate the shortened limitations period for claims against public agencies. [Citations.]” (X.M. v. Superior Court (2021) 68 Cal.App.5th 1014, 1025.) Defendant argues Plaintiffs are relying on this three-year revival for otherwise time barred claims. It is undisputed that, if section 340.1 applies to Plaintiffs’ claims, the statute of limitations expired on December 31, 2022.

Defendant argues Plaintiffs cannot establish a probability of prevailing on their claims because Plaintiffs failed to comply with the statutory requirements imposed by section 340.1 and thus their claims are time-barred. Plaintiffs argue this action is not barred by section 340.1 because Defendant re-released and distributed the subject film in February 2023. Plaintiffs claim “This new release of brand new high definition images previously unseen by the public is an equally brand new tortious act against plaintiffs with its own limitations period.” (Opposition at 11.) The Court rejects this argument.

In ruling on a special motion to strike under section 425.16, the Court’s consideration is limited to the issues set forth in the pleadings at the time the motion is filed. “We reiterate that the pleading itself provides the outer boundaries of the issues that are to be addressed in an anti-SLAPP motion.” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 893; see also City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 78 [“in the context of an anti-SLAPP motion, it is especially important to view a motion to strike under section 425.16 in light of the facts and pleadings as they exist at the time the motion is filed”] [internal quotation omitted]; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672 [“As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings”].) The Court in Medical Marijuana, Inc. explained the policy considerations behind this rule, stating that if plaintiff were allowed to introduce new allegations in response to a special motion to strike, “‘Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend. [¶] By the time the moving party would be able to dig out of this procedural quagmire, the SLAPP plaintiff will have succeeded in his goal of delay and distraction and running up the costs of his opponent. [Citation.] Such a plaintiff would accomplish indirectly what could not be accomplished directly, i.e., depleting the defendant’s energy and draining his or her resources. [Citation.] This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits. [Citation.]’” (Medical Marijuana, 46 Cal.App.5th at 898.)

Plaintiffs’ operative pleading is the Complaint filed on December 30, 2022. It necessarily makes no mention of Defendant’s 2023 re-release of the film as the basis for any of Plaintiffs’ claims in this action. The 2023 re-release is thus beyond the scope of this Court’s consideration in ruling on Defendant’s motion and Plaintiffs cannot rely on these allegations which do not appear in their Complaint to establish the probability of success under prong two of the anti-SLAPP analysis. Courts have rejected similar attempts to introduce new allegations in briefing to avoid the granting of special motion to strike under section 425.16. (See, e.g., Medical Marijuana, Inc., supra, 46 Cal.App.5th at 892 [rejecting plaintiff’s attempt to rely on newly asserted and unpled statements to establish a probability of success on claim for libel].)

The Court will thus determine the application of section 340.1 to Plaintiffs’ claims based on the allegations of Plaintiffs’ Complaint as they existed at the time Defendant’s motion was filed. Read in this context, the allegations of the Complaint all relate to the initial filming and distribution of the film in the 1960s which Plaintiffs content is childhood sexual abuse. As set forth above, section 340.1—by its express terms—applies to such claims. Section 340.1 “contains a number of substantive safeguards” in the form of requirements that Plaintiffs must satisfy in order to take advantage of the extended limitations period. (Trear v. Sills (1999) 69 Cal.App.4th 1341, 1344, fn. 8.) For example, Code Civ. Proc. § 340.1(f) provides “Every plaintiff 40 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (g).” Such certificates of merit must be executed by both the attorney for the plaintiff and by a licensed mental health practitioner and must set forth facts showing “that there is a reasonably and meritorious cause for the filing of the action,” and “there is a reasonable basis to believe that the plaintiff had been subject to childhood sexual abuse.” (C.C.P. § 340.1(g).) While section 340.1(f) ordinarily requires these certificates by filed “at the time the action is filed,” section 340.1(g)(3) allows the plaintiff to file such certificates “within 60 days after filing the complaint” where an attorney would not be able to obtain the requisite certificates from a mental health practitioner before the limitations period expired.

Where a plaintiff is more than 40 years old, the plaintiff’s attorney must also execute a separate certificate of merit for each defendant named in the complaint. (C.C.P. § 340.1(h).) Under section 340.1(i), plaintiffs are precluded from serving a defendant “until the court has reviewed the certificates of merit filed pursuant to subdivision (g) with respect to that defendant, and has found, in camera, based solely on those certificates of merit, that there is a reasonable and meritorious cause for the filing of the action against that defendant.” Similarly, section 340.1(l) provides that where the plaintiff is more than 40 years old, “a defendant shall be named by “Doe” designation in any pleadings or papers filed in the action until there has been a showing of corroborative fact as to the charging allegations against that defendant.”

Plaintiffs did not comply with these requirements in bringing the instant lawsuit. Plaintiffs did not file certificates of merit when filing this action in December 2022 as required by sections 340.1(f) and (h), or within 60 days of filing the Complaint as required by Code Civ. Proc. § 340.1(g)(3). Plaintiffs also failed to sue Defendant under a “Doe” designation as required by section 340.1(l) and served Defendant before the Court made any finding that there is a reasonable and meritorious cause for filing the action against Defendant as required by section 340.1(i). Actions for childhood sexual abuse will be dismissed at the pleading stage where a plaintiff fails to comply with these requirements. (See, e.g., Jackson v. Doe (2011) 192 Cal.App.4th 742, 752-753 [affirming the sustaining of demurrer without leave to amend because “the childhood sexual abuse cause of action will be dismissed at the pleading stage for failure to file the certificates of merit required by § 340.1, subd. (h)”] [internal quotation omitted]; Doyle v. Fenster (1996) 47 Cal.App.4th 1701, 1707 [“even though dismissal is not mentioned in section 340.1, dismissal is impliedly permitted by defendant’s remedy for the failure to file or the improper filing of the certificates”].)

Plaintiffs argue Defendant cannot raise their failure to file these certificates by way of a special motion to strike under section 425.16 because Code Civ. Proc. § 340.1(k) states “The failure to file certificates in accordance with this section shall be grounds for a demurrer pursuant to Section 430.10 or a motion to strike pursuant to Section 435.” Plaintiffs argue this provision should be held to mean the only way a defendant may raise this failure is by demurrer pursuant to section 430.10 or motion to strike pursuant to section 435. Plaintiffs do not provide any legal authority for this interpretation of section 340.1(k). Assertions unsupported by legal authority are presumed to lack merit. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, In Re Marriage of Nichols (1994) 27 Cal.App.4th 661, 673; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807.)

Moreover, Plaintiffs’ interpretation of section 340.1(k) defies common sense. If the Court would be compelled to dismiss Plaintiffs’ Complaint upon demurrer or motion to strike under section 430.10 or 435, then Plaintiffs would necessarily be unable to establish a probability of success on their claims under section 425.16. No purpose would be served by requiring the Court to deny a special motion to strike under section 425.16 only to dismiss the action pursuant to demurrer or motion to strike under sections 430.10 or 435.

A plain reading of section 340.1(k) does not lead the Court to conclude that the Legislature intended demurrers and motions to strike pursuant to Code Civ. Proc. § 435 were the exclusive means to challenge a failure to file the required certificates. Rather, “The fact that the Legislature designated the demurrer and motion to strike as means to challenge plaintiff’s failure to file certificates as required by section 340.1 indicates that the Legislature views the certificates as an aspect of the complaint.” (Doyle, supra, 47 Cal.App.4th at 1707.) Special motions to strike under section 425.16 test the legal sufficiency of a complaint. “As we previously have observed, in order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff … must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 [internal quotations and citations omitted].)

Section 340.1 is, after all, a statute of limitations. “A statute of limitations defense may be raised by demurrer [Citation] or by motion to strike [Citation], both of which test the legal sufficiency of the complaint.” (Doyle, supra, 47 Cal.App.4th at 1707.) Alternatively, a statute of limitations defense may be raised by a special motion to strike pursuant to section 425.16. (See, e.g., Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398-399 [overruling trial court determination that statute of limitations could not be asserted by way of special motion to strike and holding “a claim which is meritless because it is barred by the statute of limitations will cause just as much intimidation as a claim which is barred because of a constitutional defense. Both forms of meritless lawsuits are the subject of section 425.16”].)

For these reasons, the Court rejects Plaintiffs’ argument that Code Civ. Proc. § 340.1(k) precludes Defendant from raising Plaintiffs’ failure to file the required certificates by way of the instant special motion to strike under Code Civ. Proc. § 425.16. The claims asserted in Plaintiffs’ Complaint all rely on the three-year revival of claims provided in the 2019 amendment to section 340.1, and thus Plaintiffs’ failure to comply with the requirements of section 340.1 is fatal to every cause of action. As Plaintiffs’ claims are all time-barred, Plaintiffs have failed to demonstrate a probability of success on their claims under the second prong of the anti-SLAPP analysis. The Court need not address Defendant’s alternative arguments as to specific causes of action and declines to do so.

Conclusion

Defendant’s special motion to strike Plaintiffs’ entire Complaint under Code Civ. Proc. § 425.16 is GRANTED as each cause of action asserted therein arises from protected activity and Plaintiffs have failed to show a probability of success on the merits of those claims.