Judge Daniel S. Murphy, Case Number: 24STCV07943, Date: 2024-05-20 Tentative Ruling

On March 28, 2024, Plaintiff Michael Kassan (Kassan) filed this action for slander and libel against Defendants Bryan Freedman (Freedman) and Freedman Taitelman & Cooley, LLP.

The case stems from statements that Freedman made while representing United Talent Agency (UTA) in litigation against Kassan. Specifically, Freedman told Deadline magazine that Kassan was a “pathological liar.”

On April 26, 2024, Defendants filed the instant special motion to strike. Kassan filed his opposition on May 7, 2024. Defendants filed their reply on May 13, 2024.

A special motion to strike under Code of Civil Procedure section 425.16 allows a defendant to seek early dismissal of a lawsuit that qualifies as a strategic lawsuit against public participation. A SLAPP is “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.” (Code Civ. Proc., § 425.16(b)(1).)

Such acts include (1) any written or oral statement or writing made before a judicial proceeding, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body, (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(e).)

Evaluation of an anti-SLAPP motion requires a two-prong process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. Second, if the court finds such a showing has been made, the court must then consider whether the plaintiff has demonstrated a probability of prevailing on the claim. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.) If both prongs are met—(1) the complaint targets protected activity, and (2) the plaintiff has no reasonable probability of success—then the lawsuit is subject to being stricken under the statute. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 709-10.)

To satisfy the first prong, a moving defendant must identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) A “claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060.)

Section 425.16(e)(2) covers “any written or oral statement or writing made in connection with an issue under consideration or review by a … judicial body.” This coverage is broad. “[A]ll communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.” (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 409.)

Here, Freedman made the statement to Deadline in his role as UTA’s legal representative. At the time, the parties were engaged in litigation, which included UTA’s allegation that Kassan engaged in deception. (See Def.’s RJN, Ex. J.) Therefore, the statement constitutes a “communicative act[] performed by attorneys as part of their representation of a client.” (See Contreras, supra, 5 Cal.App.5th at p. 409.)

Section 425.16(e)(4) covers statements made in relation to an “issue of public interest.” “In articulating what constitutes a matter of public interest, courts look to certain specific considerations, such as whether the subject of the speech or activity ‘was a person or entity in the public eye’ or ‘could affect large numbers of people beyond the direct participants’; and whether the activity ‘occur[red] in the context of an ongoing controversy, dispute or discussion.’” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145, internal citations omitted.) Speech is covered under this subdivision if it “in some manner itself contribute[s] to the public debate.” (Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1176.)

The dispute between Kassan and UTA was extensively covered in the media. (Def.’s Ex. C.) “Deadline is a publication that focuses on entertainment and media news,” and Freedman made his statement to Deadline in “the larger context” of being “UTA’s mouthpiece in the media.” (Compl. ¶¶ 27-28.) “Deadline reprinted Freedman’s statement and republished it to the world.” (Id., ¶ 31.) The statement concerned Kassan, who is “well-known” for his “unique style” and provides “strategic media and marketing consulting services to a wide range of communities across the United States and internationally.” (Id., ¶¶ 11-13.) Therefore, Freedman’s statement concerned an individual “in the public eye” and contributed to “an ongoing controversy, dispute or discussion.” (See FilmOn.com, supra, 7 Cal.5th at p. 145.)

Kassan does not dispute that the alleged statement falls under both categories discussed above. Therefore, the complaint targets protected activity.

Because the first prong is met, the burden shifts to Plaintiff to show a probability of success. A plaintiff establishes a probability of prevailing on the claim by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if proved at trial, would support a judgment in the plaintiff's favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-14.) Rather than weighing the evidence, the court must “accept as true the evidence favorable to the plaintiff . . . The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as a SLAPP . . . .” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.¿) The defendant’s showing is only analyzed “to determine if it defeats the plaintiff’s claim as a matter of law.” (Area 55, LLC v. Nicholas & Tomasevic (2021) LLP, 61 Cal.App.5th 136, 151.)

“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.” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401.) “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.” (Ibid.) “In drawing the distinction between opinion and fact, California courts apply the totality of the circumstances test to determine whether an allegedly defamatory statement is actionable.” (Ibid.)

In applying the totality of the circumstances test, “editorial context is regarded by the courts as a powerful element in construing as opinion what might otherwise be deemed fact.” (Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 693.) “[T]he publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader.” (Id. at p. 688.) “Part of the totality of the circumstances used in evaluating the language in question is whether the statements were made by participants in an adversarial setting.” (Ferlauto, supra, 74 Cal.App.4th at p. 1401.) “Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.” (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.)

Here, the statement that Kassan was a “pathological liar” was made in the context of a highly publicized, contentious dispute between Kassan and UTA involving allegations in both directions. The Deadline article itself described the conflict as a “dogfight,” “messy battle,” and “great drama” involving the “embarrassing disintegration” of a $125 million deal. (Def.’s Ex. A.) Kassan’s own representatives “shot back,” referring to UTA as “[d]esperate people” making false and “absurd” accusations in “a pathetic attempt to tarnish his reputation.” (Ibid.) Kassan’s representatives further accused UTA of filing a “frivolous” lawsuit to “mislead people” about Kassan. The article describes Kassan as “controversial” and “[n]o stranger to corporate intrigue.” (Ibid.)

This context is critical to the totality of the circumstances test because it shows that the statement was made in an adversarial setting and heated dispute wherein the participants were expected to use epithets and hyperbole which an average reader would not take as fact. The article shows that Kassan himself accuses UTA of lying. Courts have found that accusations similar to calling someone a “liar” were nonactionable. (See Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 389 [“his statements that Franklin ‘stole’ copyrighted material, ‘compromised’ DDi, and ‘plagiarized’ data appear in context as rhetorical hyperbole”]; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 279 [“Assuming that Scherer called plaintiff a thief and a liar, that statement was not, as a matter of law, defamatory under the undisputed circumstances here”].)

In responding to this defamation action in a follow up Deadline article, Freedman defended his earlier comment by stating that “[f]acts are not defamation.” (Plntf.’s Ex. B.) Kassan argues that Freedman has confirmed his statement as a factual assertion by explicitly characterizing it as such. Kassan relies on Sanders v. Walsh (2013) 219 Cal.App.4th 855, where an online poster prefaced his statements with “Fact:” and proceeded to recite “alleged historical facts detailing perjury and fraud by Cheryl Sanders.” (Id. at p. 864.) However, Sanders is distinguishable because the poster there recited specific historical facts about Cheryl Sanders awarding contracts to friends and family and taking bribes. (Ibid.) The court found that these were not “vague implications of fact but . . . specific factual claims.” (Ibid.) The use of the word “fact” was less dispositive than the substance and context of the statements themselves. (See Herring Networks, Inc. v. Maddow (9th Cir. 2021) 8 F.4th 1148, 1153-60 [TV personality’s statement that a certain news outlet “really literally is paid Russian propaganda” was hyperbole even if it was arguably provable whether the outlet received money from Russia].) Here, Freedman’s follow-up comment was a continuation of the ongoing dispute between the parties. It does not transform the characterization of Kassan as a pathological liar from an expression of opinion into one of fact.

Kassan is correct that an expression of opinion which implies an assertion of fact may still be actionable as defamation. (See Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 902-03.) However, Wilbanks is distinguishable because in that case, the “publication reasonably can be construed as asserting as fact that plaintiffs had engaged in specific wrongful conduct leading to a judgment and an investigation, and that plaintiffs engaged in incompetent and unethical business practices, taking advantage of persons unable to defend themselves.” (Id. at p. 904.) Additionally, the defendant in Wilbanks “held herself out to have special knowledge resulting from extensive research into the viatical industry; i.e., she claimed to be a person who could recognize and identify unethical practices that the average person might not recognize. Wolk clearly expected readers to rely on her opinions as reflecting the truth.” (Ibid.) By contrast, Freedman’s statement about Kassan being a pathological liar was a commentary on Kassan’s general character, not a reference to any specific verifiable instance of wrongdoing. Freedman did not claim to be an expert in the field of psychology and did not make factual assertions about Kassan’s mental fitness.[1]

Kassan cites to Burrill v. Nair (2013) 217 Cal.App.4th 357, where the court rejected the defendant’s contention that he made nonactionable statements in the course of a heated dispute. However, the defendant in Burrill made specific accusations of criminal conduct and professional dishonesty. (Id. at pp. 383-84.) The defendant posted online that the Department of Consumer Affairs had uncovered evidence of the plaintiff’s fraud and that the plaintiff fabricated domestic violence reports, abused children, committed perjury, and prescribed medication without a license. (Ibid.) Applying the totality of the circumstances test, the court in Burrill concluded “[t]he First Amendment does not protect that.” (Id. at p. 385.) This case is distinguishable because Freedman made no similar factual assertions in the Deadline article. Instead, Freedman’s statement is more akin to a “sharp attack[] on the character, motives, or moral qualifications of” Kassan, which is protected. (See ibid.)

In sum, no reasonable trier of fact could interpret Freedman’s statement about Kassan as anything other than a nonactionable statement of opinion. Therefore, Kassan’s defamation claims fail as a matter of law and have no probability of success.

Civil Code section 47(d) extends a privilege over a publication “[b]y a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof.” (Civ. Code, § 47(d).) “[S]tatements are privileged if they are fair and true reports about the proceedings or of what was said in the proceedings. (Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 435, emphasis in original.) “‘Fair and true’ in this context does not refer to the truth or accuracy of the matters asserted in the judicial proceedings, but rather to the accuracy of the challenged statements with respect to what occurred in the judicial proceedings.” (Id. at p. 434.) “The issue is whether the average viewer or listener of the media reports would understand the attorneys’ statements as communications about the . . . complaint (which would be privileged) or as facts (which would not).” (Id. at pp. 435-36.)

Here, as discussed above, Freedman’s statement is a commentary on Kassan’s character. It was arguably not a report about the legal proceedings or what was said in the proceedings. “There is . . . a critical difference between communicating to the media what is alleged in a complaint and communicating the alleged facts without reference to the complaint.” (Healthsmart, supra, 7 Cal.App.5th at p. 435.) At the very least, “reasonable minds could disagree as to the effect of the communication on the average reader or listener, [making it] a question of fact for the jury.” (Id. at p. 431.) Therefore, the fair reporting privilege does not preclude the defamation claims as a matter of law.

Civil Code section 47(b) makes privileged a publication made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.” (Civ. Code, § 47(b).) “To be privileged a statement must (1) be made in a judicial proceeding, (2) by litigants or other authorized participants, (3) aim to achieve the litigation's objects, and (4) have some logical connection or relation to the proceeding.” (O'Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134.)

The statement about Kassan’s character is arguably not a publication made in the course of a judicial proceeding nor logically connected to one, and arguably does not achieve the litigation’s objectives. As with above, because reasonable minds may differ as to the application of the privilege, it does not preclude the defamation claims as a matter of law.

In sum, while the privileges under Civil Code section 47 do not preclude the defamation claims as a matter of law, the defamation claims fail as a matter of law because they are based on a nonactionable statement of opinion. Because the complaint targets protected activity, and Plaintiff has failed to demonstrate a probability of success, the claims must be stricken under Code of Civil Procedure section 425.16.

[1] Kassan cites no evidence that pathological lying is even considered a “condition that can be diagnosed,” or that “pathological” is a clinical term. (Opp. 10:22-23, 12:12-13.)