Judge Elaine W. Mandel, Case Number: 23SMCV04014, Date: 2023-12-08 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV04014, Date: 2023-12-08 Tentative Ruling

Case Number: 23SMCV04014 Hearing Date: December 8, 2023 Dept: P

Tentative Ruling

Tenser v. Ryan et al., Case No. 23SMCV04014

Hearing Date December 8, 2023

Defendants Audiochuck LLC and Flowers’ Special Motion to Strike Complaint; Defendants Audiochuck LLC and Flowers’ Demurrer/Motion to Strike Complaint (UNOPPOSED)

Plaintiff attorney Tenser represented Blake Leibel in a highly publicized murder trial. Tenser sues for defamation and invasion of privacy, fraud and RICO, alleging defendant Townsend made defamatory statements during a podcast about the trial. Plaintiff alleges the episode was broadcast by defendants Audiochuck and its managing member Flowers. Defendants Flowers and Audiochuck demur and move to strike all claims under the anti-SLAPP statute. Defendant Townsend joins. Defendants also demur to the complaint. Plaintiff filed no opposition.

Courts resolving anti-SLAPP motions under Cal. Civ. Code §425.16 follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying plaintiff’s cause of action arises from defendant’s constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. This is a threshold issue; if moving party fails to show the conduct is constitutionally protected, the court need not address prong two. Jarrow, supra, 31 Cal.4th at 733. Under the second prong, the burden shifts to plaintiff to prove a legally sufficient claim and to prove with admissible evidence a reasonable probability of prevailing. E.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 88. Plaintiff cannot rely on the allegations of the complaint but must produce evidence admissible at trial. HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.

Under Cal. Code of Civ. Proc. §425.16(e)(4), “conduct in furtherance of the constitutional right of free speech in connection with a public issue or an issue of public interest” constitutes protected activity under the anti-SLAPP statute. To determine what constitutes a matter of public interest, courts look to a variety of factors, including whether the subject of the speech or activity was “a person or entity in the public eye, “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.4^th 133, 145.

In determining whether a claim is based on protected activity, the court looks to “the gravamen or principal thrust of the claims asserted[.]” Martinez v. Metabolife Int’l., Inc. (2003) 113 Cal.App.4th 181, 188.

The gravamen of Tenser’s claims is that defendants published a podcast discussing him and his conduct during the trial. The Audiochuck defendants argue statements made in the podcast constitute protected speech about a public figure on a matter of public interest.

A legal proceeding that garnered publicity is an issue of public interest, and statements made about the proceeding are covered under the anti-SLAPP statute. Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1343. The Audiochuck defendants argue the trial attracted substantial media coverage, making it an issue of public interest. They present 46 examples of media coverage, including articles about the murder, trial and sentencing in major media publications (e.g., Los Angeles Times, Tornoto Sun, Daily Mail, Hollywood Reporter and People Magazine). Ramallo decl., exhs. 13-59. This establishes the trial received heavy publicity and qualifies as an issue of public interest.

Audiochuck provides evidence Tenser gave interviews about the trial to media outlets. Id. Exhs. 61-72. With respect to the trial, Tenser was a “figure in the public eye,” and a podcast discussing his public conduct constitutes protected activity. The first anti-SLAPP step is fulfilled; the burden shifts to Tenser to show a reasonable probability of prevailing. As Tenser filed no opposition, he does not meet his burden. GRANTED.

Demurrer

Since the anti-SLAPP motion was granted as to all causes of action naming the moving defendants, the demurrer is MOOT.