Judge: Bruce G. Iwasaki, Case: 23STCV08993, Date: 2023-10-18 Tentative Ruling

Case Number: 23STCV08993    Hearing Date: April 9, 2024    Dept: 58

Judge Bruce G. Iwasaki    

Hearing Date:             April 9, 2024

Case Name:                Rodriguez v. Netflix, Inc.

Case No.:                    23STCV08993

Matter:                        Motion
to Quash Service of Summons

Moving Party:             Specially Appearing Defendant Versus Production SRL

            This is a defamation action. Plaintiff
Francisco Ferreras Rodriguez (Plaintiff) sued Defendants Netflix, Inc.
(Netflix) and David M. Rosenthal (Rosenthal) (jointly, Defendants) for their
allegedly false depiction of Plaintiff in the film entitled, “No Limit” (Film).

On
February 20, 2024, Defendant Versus Production SRL (Versus) specially
appeared and moved to quash service of summons based on a lack of personal
jurisdiction. Plaintiff opposes the motion to quash, contending that there is
personal jurisdiction over Versus.

The
motion to quash service of summons is granted.

Discussion

            Defendant Versus argues that it is
not subject to either general or specific jurisdiction in California. In
opposition, Plaintiff argues that the License Agreement between Netflix and Versus
is sufficient to form the basis for specific jurisdiction over Versus.

            “The Due Process clause of the
Fourteenth Amendment constrains a State’s authority to bind a nonresident
defendant to a judgment of its courts. [Citation.] [A] nonresident generally
must have ‘certain minimum contacts . . . such that the maintenance of the suit
does not offend “traditional notions of fair play and substantial justice.” ’ ”
(Walden v. Fiore (2014) 571 U.S. 277, 283 (Walden).)  Personal jurisdiction may be either general
or specific.  For general jurisdiction, a
defendant’s forum contacts must be “so ‘continuous and systematic’ as to render
[the defendant] essentially at home in the forum State.”  (Daimler AG v. Bauman (2014) 571 U.S.
117, 139.)  The paradigm of general
jurisdiction for a corporation is its state of incorporation or principal place
of business. (Id. at p. 137.)

            Specific or case-linked jurisdiction
“ ‘focuses on “the relationship among the defendant, the forum, and the
litigation.” ’ ”  (Walden, supra,
571 U.S. at pp. 283-284.) In particular, “the defendant’s suit-related conduct
must create a substantial connection with the forum State.”  (Id. at p. 284.)  There are three requirements for a court to
exercise specific jurisdiction over a nonresident defendant: “First, the
defendant must have purposefully availed himself or herself of forum benefits
or purposefully directed activities at forum residents.  Second, the controversy must relate to or
arise out of the defendant’s forum-related activities.  Third, the exercise of jurisdiction must
comport with traditional notions of fair play and substantial justice.”   (David
L. v. Superior Court (2018) 29 Cal.App.5th 359, 366.)  The plaintiff has the initial burden to
establish the first two requirements. 
Only after doing so does the burden shift to the defendant to show that
exercising jurisdiction would be unreasonable. 
(Id. at p. 367.)  The
plaintiff must do more than merely allege jurisdictional facts.  “ ‘It must present evidence sufficient to
justify a finding that California may properly exercise jurisdiction over the
defendant.’ ”  (Zehia v. Superior
Court (2020) 45 Cal.App.5th 543, 552.)

The Court lacks
personal jurisdiction over Versus

            Here, as preliminary matter, Defendant
Versus submits evidence that it is a Belgian film and television production
company with no employees or offices in California. (Tellin Decl., ¶¶ 2-3.) This uncontested evidence
is sufficient to show that general jurisdiction is inappropriate.

In
opposition, Plaintiff argues that the Court has specific jurisdiction over
Defendant Versus. In particular, Plaintiff argues that Versus created
sufficient contacts with California by choosing to contract with Los
Angeles-based Defendant Netflix to help it produce and distribute the Film. The
parties’ contract, a license agreement, provides that any disputes with Netflix
relating to this agreement concerning the Film must be resolved under
California law by the California courts. (Pl.’s Exs. 1-2.)

The
License Agreement, however, is insufficient to show the first requirement for
specific jurisdiction, purposeful availment with respect to Plaintiff’s claims.

“
‘[P]urposeful availment occurs where a nonresident defendant “ ‘purposefully
direct[s]’ [its] activities at residents of the forum” [citation], “
‘purposefully derive[s] benefit’ from” its activities in the forum [citation],
“create[s] a ‘substantial connection’ with the forum” [citation], “
‘deliberately’ has engaged in significant activities within” the forum
[citation], or “has created ‘continuing obligations’ between [itself] and
residents of the forum” [citation]. By limiting the scope of a forum’s
jurisdiction in this manner, the “ ‘purposeful availment’ requirement ensures
that a defendant will not be haled into a jurisdiction solely as a result of
‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts … .” [Citation.] Instead, the
defendant will be subject to personal jurisdiction only if “ ‘it has clear
notice that it is subject to suit there, and can act to alleviate the risk of
burdensome litigation by procuring insurance, passing the expected costs on to
customers, or, if the risks are too great, severing its connection with the
state.’ ” [Citations.]’ ”  (HealthMarkets,
Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1168.)

            It is well established that a single
contract with a California resident – without more – is insufficient to establish
personal jurisdiction. (Burger King Corp. v. Rudzewicz (1985) 471 U.S.
462, 478 [“If the question is whether an individual's contract with an
out-of-state party alone can automatically establish sufficient minimum
contacts in the other party's home forum, we believe the answer clearly is that
it cannot.”]; Piterman v. Gold Coast Exotic Imports LLC (N.D. Cal., May
10, 2021, No. 5:20-CV-07724-EJD) 2021 WL 1853769, at *5 [citing Boschetto v.
Hansing (9th Cir. 2008) 539 F.3d 1011, 1017 [“we are guided by the Supreme
Court's admonition that the formation of a contract with a nonresident
defendant is not, standing alone, sufficient to create jurisdiction”]; see
also Glob. Commodities Trading Grp., Inc. v. Beneficio de Arroz Choloma,
S.A. (9th Cir. 2020) 972 F.3d 1101, 1110 [explaining that “signing a single
contract with a forum resident on behalf of a corporation would not subject a
corporate officer to personal jurisdiction in a claim for breach of contract”].)

            Admittedly, here, Defendant Versus
entered into a license agreement, containing a California choice-of-law and
California dispute resolution provisions, with a company based in California.
By entering into that agreement, Defendant Versus created continuing
obligations between the parties, knowing that many of those obligations could
only be carried out by Netflix in California.

            Had this Court been applying a purposeful
availment analysis based on the contract between Netflix and Versus, then these
facts would likely be sufficient to show sufficient minimum contacts for
specific jurisdiction because Versus purposefully availed itself of the
benefits and protections of the laws of the forum State with respect to its
contract with Netflix (See Doe v. Unocal Corp. (9th Cir.2001) 248 F.3d
915, 923 [explaining that purposeful availment requires a finding that the
defendant performed some type of affirmative conduct which allows or promotes
the transaction of business within the forum State].)

            However, “[a] purposeful availment
analysis is most often used in suits sounding in contract,” while “[a]
purposeful direction analysis, on the other hand, is most often used in suits
sounding in tort.”” (Kevin Barry Fine Art Associates v. Ken Gangbar Studio,
Inc. (N.D. Cal. 2020) 486 F.Supp.3d 1353, 1360; Schwarzenegger v. Fred Martin
Motor Co. (9th Cir. 2004) 374 F.3d 797, 802 [noting
that the purposeful availment analysis is most often used in suits sounding in
contract].)

Here,
the suit arises from a defamation claim – not the License Agreement and business
transaction. “In the defamation context, the United States Supreme Court has
described an ‘effects test’ for determining purposeful availment.” (Pavlovich
v. Superior Court (2002) 29 Cal.4th 262, 269 (Pavlovich).)

The
U.S. Supreme Court applied the effects test to a defamation suit in Calder
v. Jones (1984) 465 U.S. 783. There, a reporter in Florida wrote an article
for the National Enquirer about Shirley Jones, a well-known actress who lived
and worked in California; the president and editor of the National Enquirer
reviewed and approved the article, and the National Enquirer published the
article. Jones sued, among others, the reporter and editor (individual
defendants) for libel in California. The individual defendants moved to quash
service of process, contending they lacked minimum contacts with California.

The
Supreme Court held that California could exercise jurisdiction over the
individual defendants “based on the ‘effects’ of their Florida conduct in
California.” (Calder, supra, 465 U.S. at p. 789.) The Court reasoned
that jurisdiction was proper because “California [was] the focal point both of
the story and of the harm suffered.” (Ibid.) “The allegedly libelous
story concerned the California activities of a California resident. It impugned
the professionalism of an entertainer whose television career was centered in
California ... and the brunt of the harm, in terms both of [Jones's] emotional
distress and the injury to her professional reputation, was suffered in
California.” (Id. at pp. 788–789.) The Court also noted that the
individual defendants wrote or edited “an article that they knew would have a
potentially devastating impact upon [Jones]. And they knew that the brunt of
that injury would be felt by [Jones] in the State in which she lives and works
and in which the National Enquirer has its largest circulation.” (Id. at
pp. 789–790.)

In
Pavlovich, the California Supreme Court concluded that the Calder
effects test requires “evidence of express aiming or intentional targeting” (Pavlovich,
supra, 29 Cal.4th at p. 273.), in addition to “the defendant's knowledge
that his intentional conduct would cause harm in the forum” (Id. at p.
271).

            In contrast to Calder,
there is no similar evidence that Plaintiff suffered the effects of Defendants’
alleged conduct in California. Although a dual U.S. and Cuban citizen, Plaintiff
resides in Cuba. (Compl., ¶ 4.) There is no tie between Plaintiff and
Defendant’s conduct with this forum.

Similarly,
there is no evidence that Defendant Versus “expressly aimed its tortious
conduct at the forum....” (IMO Industries, Inc. v. Kiekert AG (3d Cir.
1998) 155 F.3d 254, 265 [italics in original] [“agree[ing] with the conclusion
reached by the First, Fourth, Fifth, Eighth, Ninth, and Tenth Circuits that
jurisdiction under Calder requires more than a finding that the harm
caused by the defendant's intentional tort is primarily felt within the forum].)

That
is, it is Plaintiff’s burden to show that Defendant Versus “knew that the
plaintiff would suffer the brunt of the harm caused by the tortious conduct in
the forum, and point to specific activity indicating that the defendant
expressly aimed its tortious conduct at the forum.” (IMO, supra, 155
F.3d at p. 266; Bancroft & Masters, Inc. v. Augusta Nat. Inc. (9th
Cir. 2000) 223 F.3d 1082, 1087 [The plaintiff must show not only that the
defendant “caused harm, the brunt of which is suffered and which the defendant
knows is likely to be suffered in the forum state,” but also that the defendant
“committed an intentional act ... expressly aimed at the forum state.”] overruled
in part on other grounds by Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L'Antisemitisme (9th Cir. 2006) 433 F.3d 1199.) “Foreseeable
injury alone is not sufficient to confer specific jurisdiction, absent the
direction of specific acts toward the forum.” (Wien Air Alaska, Inc. v.
Brandt (5th Cir.1999) 195 F.3d 208, 212.)

            Thus, Plaintiff has failed to show Defendants’
purposeful direction under the effects test.

            Under the second requirement for
specific jurisdiction, even if a defendant purposefully directs his activities
toward the forum, jurisdiction exists only if the lawsuit arises out of or
relates to the defendant’s contacts with the forum. (Bristol-Myers Squibb
Co. v. Superior Court of California, San Francisco County (2017) 582 U.S.
255, 262-263; SK Trading International Co. Ltd. v. Superior Court of San
Francisco County (2022) 77 Cal.App.5th 378, 389.) This requirement
is satisfied “ ‘if there is a substantial nexus or connection between the
defendant's forum activities and the plaintiff's claim.’ [Citations.] ‘A claim
need not arise directly from the defendant's forum contacts in order to be
sufficiently related to the contact to warrant the exercise of specific
jurisdiction. Rather, as long as the claim bears a substantial connection to
the nonresident’s forum contacts, the exercise of specific personal
jurisdiction is appropriate.’ ” “Only when the operative facts of the
controversy are not related to the defendant's contact with the state can it be
said that the cause of action does not arise from that contact.” (Jayone
Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 559-560;
see also In re Automobile Antitrust Cases I & II (2005) 135
Cal.App.4th 100, 116 [“If the operative facts of the allegations of the
complaint do not relate to the [defendant's] contacts in this state, then the
cause of action does not arise from that contact such that California courts
may exercise specific personal jurisdiction”].)

As
the reply notes, Plaintiff’s claims arise out of an allegedly defamatory
statement in the Film – not Versus’ contractual arrangement with Netflix. (Rivelli
v. Hemm (2021) 67 Cal.App.5th 380, 401-402.) In Rivelli, the
plaintiffs provided evidence that a Swiss company defendant purposefully
availed itself of forum benefits through ongoing contractual relationships with
a California company, and an individual Swiss defendant purposefully availed
himself of the privilege of conducting activities in California through his
directorship at the California company and by negotiating a transaction between
the two companies. (Rivelli, supra, 67 Cal.App.5th at pp. 397, 405.)

But
the Rivelli court found that the plaintiffs’
evidence failed to establish the necessary connection between the defendants’
activities in California and the plaintiffs’ claims for fraud, breach of
fiduciary duty, aiding and abetting breach of fiduciary duty, and statutory
violations of the Corporations Code. (Id. at 399.)  Plaintiffs provided no evidence of fraudulent
or tortious conduct, or any actual wrongdoing, that was directed at the forum
by the individual defendant. (Id. at pp. 402, 406.) The court explained
that the plaintiffs “have not presented ‘competent evidence of jurisdictional
facts’ [citation] tying [the Swiss company's] actions to the fraud claim.” (Id.
at p. 402.) That is, evidence showed the contacts between the Swiss company and
California were contractual, while the tort claims in the complaint did not
arise from or relate to the contractual relationship and were not supported by
the jurisdictional evidence. (Id. at p. 404.)

In
this case, Defendant Versus’s evidence shows that it did not provide any
services in connection with the Film within California. (Tellin Decl., ¶ 4.) Plaintiff
provides no contrary evidence or allegations.

            Plaintiff fails to meet his burden
of establishing the first two requirements for specific jurisdiction. As
Plaintiff failed to meet his burden of establishing the first two requirements
for specific jurisdiction, the Court need not address whether exercise of
jurisdiction would be fair and reasonable.

Conclusion

Accordingly,
the Court grants Versus’ motion to quash for lack of personal jurisdiction and
dismisses it from this case. 

.......................


Judge Bruce G. Iwasaki

Department 58

Hearing Date:              April 9, 2024

Case Name:                 Rodriguez v. Netflix, Inc.

Case No.:                    23STCV08993

Matter:                        Anti-SLAPP Motion

Moving Party:             Defendants Netflix, Inc. and David M. Rosenthal

Responding Party:      Plaintiff Franciso Ferreras Rodriguez

Tentative Ruling:      The special motion to strike pursuant to Code of Civil Procedure section 425.16 is granted.

            This is a defamation action. Plaintiff Francisco Ferreras Rodriguez (Plaintiff) sued Defendants Netflix, Inc. (Netflix) and David M. Rosenthal (Rosenthal) (jointly, Defendants) for their allegedly false depiction of Plaintiff in the film entitled, “No Limit” (Film).

            On November 21, 2023, Defendants filed a Special Motion to Strike the Complaint pursuant to Code of Civil Procedure section 425.16 (Anti-SLAPP motion). Plaintiff opposes the Anti-SLAPP motion.[1]

            The special motion to strike pursuant to Code of Civil Procedure section 425.16 is granted.

            Defendants’ objections to Plaintiff’s evidence as follows: Nos. 1-4 are sustained as irrelevant.

Legal Standard

“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 the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc., § 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate special motions to strike strategic lawsuits against public participation (SLAPP). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.)  First, the defendant must show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) “The moving defendant bears the burden of identifying all allegations of protected activity, and the claims supported by them.” (Baral v. Schmitt (2016) 1 Cal.5^th 376, 396.) In the second step, it “ ‘is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ” (Equilon, supra, 29 Cal.4^th at p. 61.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).)

“Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief—each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action—to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.)

Discussion

I.                Arising from Protected Activity

As outlined above, in the first step of the analysis, Defendants must demonstrate that Plaintiff’s claims arise from one of four categories of protected activity. An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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 (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.”  (Code Civ. Proc., § 425.16, subd. (e).)

“As our Supreme Court has recognized, ‘the “arising from” requirement is not always easily met.’ [Citation.] ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been “triggered” by protected activity does not entail that it is one arising from such.’ [Citation.] ‘A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.]  Critically, “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” [Citations.]’ [Citation.] ‘[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] Put another way, courts should first identify ‘the allegedly wrongful and injury-producing conduct that provides the foundation for the claims,’ and then determine whether that conduct itself constitutes protected activity.” (Callanan v. Grizzly Designs, LLC (2022) 81 Cal.App.5th 517, 526 (citing Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063).)

            Defendants argue that Plaintiff’s claims arise from Defendants’ protected activity under Code of Civil Procedure section 425.16 because Plaintiff’s claims are premised on Defendants’ creation and distribution of a movie.

A cause of action arises from protected activity within the meaning of section 425.16, subdivision (e)(4) if (1) defendants' acts underlying the cause of action, and on which the cause of action is based, (2) were acts in furtherance of defendants' right of petition or free speech (3) in connection with a public issue. (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346.)

The creation of a movie is an exercise of free speech. (E.g., Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th 802, 816; Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280; see also Olivia N. v. National Broadcasting Co. (1981) 126 Cal.App.3d 488, 493, [“[m]otion pictures are accorded First Amendment protections”]; see also Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [“The creation of a television show is an exercise of free speech.”].) “Steps taken to advance such constitutionally protected expression are properly considered ‘conduct in furtherance of’ the exercise of the right of free speech within the meaning of section 425.16, subdivision (e)(4).” (Musero v. Creative Artists Agency, supra, at 816.)

Further, matters of public interest in this context are broadly construed. (Tamkin v. CBS Broadcasting, Inc., supra, 193 Cal.App.4th at p. 143 [finding that “the creation and broadcasting of CSI episode 913 is an issue of public interest because the public was demonstrably interested in the creation and broadcasting of that episode, as shown by the posting of the casting synopses on various Web sites and the ratings for the episode”].)

Plaintiff does not dispute that his claims arise from Defendants’ protected activity. Accordingly, Defendants have met their burden under step one of showing that Plaintiff’s claims arise from protected activity.

II.             Demonstrating Minimal Merit

On the second component of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) The Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Soukup, supra, 39 Cal.4th at p. 291.) 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.’ ” (Ibid.)

            “Defamation is the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or that causes special damage.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.) “If the person defamed is a public figure, he must show, by clear and convincing evidence, that the defamatory statement was made with actual malice” (Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 218.)

            Here, to make a prima facie showing on the defamation claim, Plaintiff must first show that a reasonable viewer would understand that the Film makes statements “of or concerning” Plaintiff. Plaintiff must also show that the Film makes a statement of fact about Plaintiff that is “provably false.” Finally, Plaintiff must establish Defendants made this false statement with actual malice.

            As both the Opposition and Reply acknowledge, the Court previously determined that Plaintiff had not demonstrated that the Film made provable false statements about Plaintiff. The Opposition goes so far as to admit that if it is unable to convince the Court otherwise, the suit is “dead on arrival.” (Opp. 5:26-28.) The Opposition’s argument here is no more persuasive than the arguments made on Plaintiff’s motion seeking leave for limited discovery.

            The Film is the story of protagonist Roxana Aubrey (Aubrey), as she pursues her passion for breaking a no limit freediving record, and navigates her tumultuous relationship with her instructor, a world-famous freediver named Pascal Gautier (Gautier). Plaintiff contends that the Film is a thinly veiled portrait of Plaintiff’s real-life relationship with his deceased wife, Audrey Mestre (Mestre), and that the Film implies he killed her.

The Court again finds, after having viewed the Film, no reasonable viewer would find that the Film portrayed Plaintiff. As the Court previously found, many of the material overlaps between Plaintiff’s life and the Film’s portray Gautier are limited to similarities that would be generic to any film about free diving. This fact is reinforced by the number of other free divers that inspired aspects of the Film. (Rosenthal Supp. Decl., ¶¶ 2-6.) The remaining similarities identified by Plaintiff’s papers are largely inconsequential, like saying both individuals liked a certain food. Additionally, the Film does not mention Plaintiff by name or identify any other real life individuals that could tie Plaintiff to Gautier.

Further, the Opposition’s attempt to present two viewers opinions that the Film was about Plaintiff (see Lebel Decl., ¶¶ 1-6; Hazoury Decl., ¶¶1-6) are insufficient to meet this burden. (Gaprindashvili v. Netflix, Inc. (C.D. Cal., Jan. 27, 2022, No. 221CV07408VAPSKX) 2022 WL 363537, at *10 [viewer evidence is not dispositive].)

Moreover, where a work is sufficiently transformative, a defamation claim is barred. (Sarver v. Hurt Locker LLC (C.D. Cal., Oct. 13, 2011, No. 2:10-CV-09034-JHN) 2011 WL 11574477, at *8.) Quoting our Supreme Court, the Sarver decision noted that “the author who denotes his work as fiction proclaims his literary license and indifference to ‘the facts.’” (Citing Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d 860, 871.) The Film includes a disclaimer that “This film is a work of fiction. Any resemblance with reality is coincidental.” In Sarver, the district court found that including a disclaimer and not using the plaintiff’s name were sufficient – among other factors – to bar the defamation claim.

            Accordingly, Plaintiff has not shown that a reasonable person would understand that the fictional character of Gautier was in fact the Plaintiff acting as depicted; that is, there is no evidence of a statement of fact about Plaintiff himself.

            The Court also finds that Film makes no provably false statement about Plaintiff.

            “There can be no recovery for defamation without a falsehood. [Citation.] Thus, to state a defamation claim that survives a First Amendment challenge, plaintiff must present evidence of a statement of fact that is provably false. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 20.) ‘Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot “ ‘reasonably [be] interpreted as stating actual facts’ about an individual.” [Citations.] Thus, “rhetorical hyperbole,” “vigorous epithet[s],” “lusty and imaginative expression[s] of ... contempt,” and language used “in a loose, figurative sense” have all been accorded constitutional protection. [Citations.]’ [Citations.] The dispositive question after the Milkovich case is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.” (Seelig, supra, 97 Cal.App.4th at p. 809, italics added).)” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 27.)

            Based on the foregoing, “the implications drawn from the dialogue must convey defamatory facts, not opinions.” (Heller v. NBCUniversal, Inc. (C.D. Cal., June 29, 2016, No. CV-15-09631-MWF-KS) 2016 WL 6583048, at *4.)

Here, the Film suggests – using literary devices and techniques – that Gautier may be capable of murder. Specifically, the Film’s tumultuous relationship between Gautier and Aubrey, the Film’s shots showing Pascal handling the dive equipment prior to Aubrey’s fatal last dive, and Gautier’s reaction when the dive appears to go wrong are all intended to make the audience question whether Pascal did in fact murder Aubrey. However, this implication does not constitute a statement of fact about Plaintiff. As the Court’s prior ruling found, “provocative clues do not equate to a factual assertion.” (Order, p. 4.)

Nothing in the Film constitutes a provably false factual assertion that Plaintiff murdered his wife.

            Lastly, Plaintiff has failed to show actual malice by Defendants in making this alleged statement.  

            To prove actual malice, a plaintiff must show that statements were made with “‘knowledge that [they were] false or with reckless disregard of whether [they were] false or not.’ ” (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256-257.) “ ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth,’ ” and the evidence must be clear and convincing. (Reader's Digest, supra, 37 Cal.3d at p. 252, 256; see Copp v. Paxton (1996) 45 Cal.App.4th 829, 846 [“burden of proof by clear and convincing evidence ‘requires a finding of high probability’; must ‘leave no substantial doubt’ ”].)

            “ ‘Actual malice may be proved by direct or circumstantial evidence. Factors such as failure to investigate, anger and hostility, and reliance on sources known to be unreliable or biased “may in an appropriate case, indicate that the publisher himself [or herself] had serious doubts regarding the truth of his [or her] publication.” ’ ” (Burrill v. Nair (2013) 217 Cal.App.4th 357, 390.)

            “In the context of a special motion to strike, however, plaintiffs [] must establish only a probability they can produce clear and convincing evidence of actual malice.” (Collins v. Waters (2023) 92 Cal.App.5th 70, 80.) “In other words, they must establish a reasonable probability they can produce clear and convincing evidence showing that the statements were made with actual malice.” (Ibid.)

Here, there is no evidence, direct or circumstantial, that the Defendants “ ‘ “lacked reasonable grounds for belief in the truth” ’ ” of the alleged statements in the Film or was “ ‘ “motivated by hatred or ill will.” ’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 721.)

Plaintiff’s evidence of actual malice primarily relies on the “so-called” exoneration of Plaintiff contrasted with the Film’s portrayal of Gautier as a murderer. Plaintiff’s argument suggests that because Defendants knew Plaintiff had been “exonerated” “of any criminal complicity in Audrey’s tragic death by, among other examples, a report prepared by the International Association of Free Divers (“IAFD”), which relied on a report by Kim McCoy and on interviews and observations conducted directly by the IAFD team.” (Pl.’s Ex. 3.)

However, there is no evidence that Defendants knew of or read the report prepared by the IAFD or any other purportedly “exonerating” source material. All Plaintiff offers is speculation about what Defendants may have read or investigated. In any case, Plaintiff’s assertion that all sources establish his innocence is exaggerated. (See e.g., Serra, The Last Attempt (2006), ch. 23, attached to Declaration of Marvin Putnam in support of Defendants’ motion to strike, Exh. H.)

            Plaintiff’s evidence is inadequate to show that Defendants’ defamatory statements were made with actual malice.

Accordingly, Plaintiff’s fails to make a prima facie showing for his claims and has not met his burden on the second prong.

Conclusion

The special motion to strikepursuant to Code of Civil Procedure section 425.16is granted.