Judge: Elaine W. Mandel, Case: 24SMCV01953, Date: 2024-08-05 Tentative Ruling

Case Number: 24SMCV01953    Hearing Date: August 5, 2024    Dept: P

Tentative Ruling

Arnold, et al. v. Netflix, Inc, et al., Case No. 24SMCV01953

Hearing Date: August 5, 2024

Defendants Netflix Inc. and Netflix Streaming Services Special Motion to Strike

Plaintiff Arnold in pro per brings this unfair business practices action based on defendants’ release of an animated reboot of the 1970’s sitcom “Good Times.” Defendants Netflix, Inc. and Netflix Streaming Services (collectively “Netflix”) move to strike all claims and dismiss with prejudice under CCP § 425.16.

Netflix’s request no. 1-9, hereinafter referred to as Exhibits A-I respectively, are granted under Evid. Code § 452(h) as they are facts not reasonably subject to dispute.

In ruling on an anti-SLAPP motion, a trial court uses a “summary-judgment-like procedure at any early stage of the litigation.” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192. This two-step process first requires defendant to show the acts of which plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States of California Constitution in connection with a public issue.” Code Civ. Proc. §425.16(b)(1). If defendant carries that burden, the burden shift to plaintiff to demonstrate a probability of prevailing on the claim. Code Civ. Proc. §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.” Code Civ. Proc. §425.16(b)(2); Equilon Enterprises v. Consumer Cause (2002) 29 Cal.4th 53, 67. 

A court does not weigh credibility or the comparative strength of the evidence – the court considers a defendant’s evidence only to determine if it defeats a plaintiff’s showing as a matter of law. Soukup v. Law Office of Herbert Hafif (2006) 39 Cal.4^th 260, 291. If plaintiff fails to establish that its cause of action meets the minimal merit standard, it is subject to be stricken under the statute as a SLAPP. Navellier v. Sletten (2003) 29 Cal.4^th at 89.

Netflix contends that, given the public interest in the series and the contemporary social, racial, and economic issues it addresses, the claims stem from actions related to the exercise of constitutional free speech on matters of public concern. Plaintiff filed late opposition to the motion, in violation of CCP § 1005(b). However, the court exercises discretion under CRC rule 3.1300(d) to consider the merits below.

a.      Protected Activity

Netflix argues the complaint is predicated on protected activity under subdivisions (e)(3) and (e)(4) of section 425.16. The anti-SLAPP statute defines protected activities as: “…(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)(3)-(4).What constitutes a statement made in connection with an issue of public interest is the same under subdivisions (e)(3) and (4). Du Charme v. Int’l. Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115-119.

There is a two-step test to determine this issue. “First, we ask what ‘public issue or [ ] issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech. Code Civ. Proc § 425.16(e)(4). Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150.

Netflix meets its initial burden by demonstrating the series addresses public issues, focusing on racial and socioeconomic topics. There is public interest in the show, indicated via significant media attention, with numerous articles discussing its content, both positive and negative. Silberberg Decl. ¶ 11; Exh. C, D, G, & I. A functional relationship exists between the show and public conversation because the creative decisions for the show revolve around public discussions on race and other societal issues.

Arnold argues Netflix fails to meet its burden because Yvette Nicole Brown’s social media postings were not speech attributable to Netflix. However, this distinction is merely a re-characterization of the claims. In opposing an anti-SLAPP motion, plaintiffs are required to submit admissible evidence Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; the admissible evidence controls, not their characterization of it. Arnold’s opposition does not submit admissible evidence, such as a declaration, showing the complaint is not predicated on the show. Netflix meets its initial burden in showing that the complaint is predicated on protected activity under CCP §425.16(e)(3)&(4).

b.      Likelihood of Prevailing

After a defendant meets the burden of showing the gravamen of the complaint involves protected activity, 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.” Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548. A defendant meets the burden by establishing plaintiff cannot overcome an affirmative defense. Birkner v. Lam (2007) 156 Cal.App.4th 275, 285.

“[A] plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence.” Grenier v. Taylor (2015) 234 Cal.App.4th 471, 480. “Legally sufficient” means the cause of action would satisfy demurrer. Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1421. The evidentiary showing must be made by competent and admissible evidence. Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444. The question is whether plaintiff presented evidence that, if believed by the trier of fact, is sufficient to support a judgment in plaintiff’s favor. Zamos v. Stroud (2004) 32 Cal.4th 958, 965.

To set forth a claim for a violation of Business and Professions Code section 17200, plaintiff must establish defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.

Arnold has not provided evidence to support a favorable judgment because she alleges only various causes of action not alleged in her complaint. For example, Arnold alleges a fifth cause of action for intentional infliction of emotional distress, which is not alleged in her complaint. The complaint only alleges causes of action for violation §17200 et seq. and injunctive relief.

Arnold does not provide evidence indicating she has lost money or property as a result of the series; her complaint and opposition allege that her injury stems from embarrassment, humiliation, shame, and emotional sickness as a result of the show.

Moreover, Arnold’s claim fails because she has not provided required notice under Civil Code §1782(a). Section 1782(a) provides that, thirty days or more prior to the commencement of an action for damages, a consumer must “[n]otify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770” and “[d]emand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770.” (Civ. Code, § 1782(a).) This notice must be in writing and be sent by certified or registered mail with return receipt requested. (Id.) Here, the complaint does not indicate any such notice was given to defendants. Thus, Arnold’s claims are legally deficient. GRANTED.