Judge Holly J. Fujie, Case Number: 23STCV31516, Date: 2024-04-24 Tentative Ruling

Moving Parties: Defendants Yelen Entertainment LLC (“Yelen”) and Latasha ` Transrina Kebe (“Kebe”)

Responding Parties: Plaintiffs Kevin Hart (“Hart”) and K.Hart Enterprises (“KHE”)

On January 2, 2024, plaintiffs Hart and KHE (collectively, “Plaintiffs”) filed the operative First Amended Complaint (the “FAC”) against defendants Miesha Shakes (“Shakes”), Kebe, Kebe Studios, LLC, Yelen and Does 1 through 20, alleging five causes of action for: (1) Civil Extortion, (2) Breach of Contract, (3) Intentional Interference with Contractual Relations, (4) Invasion of Privacy (Public Disclosure of Private Facts), and (5) Defamation. The second cause of action for breach of contract is asserted against Shakes only.

Hart is a well-known comedian and actor. Shakes worked as Hart’s personal assistant for a number of years. This case arises out of Shakes’ participation in a broadcast interview (the “Interview”) about her experience working for him. The Interview, which was conducted by Kebe and broadcast by Yelen, discusses alleged scandals involving Hart, including the 2017 release of a sex tape with a woman other than his wife, and lawsuits arising out of that incident (the “Las Vegas Incident”).

On March 4, 2024, Yelen and Kebe (collectively, the “Yelen Defendants” or “Defendants”) filed the instant motion to strike under the Anti-SLAPP law (the “Motion”). Plaintiffs filed their opposition to the Motion on March 28, 2024 and the Yelen Defendants replied to the opposition on April 4, 2024.

Plaintiffs request judicial notice of the following documents pursuant to Evidence Code § 452(d):

(1) Homepage of Defendant Latasha Kebe’s (“Kebe”) website www.tashaklive.com

(4) Operative Judgment entered in the district court litigation entitled Almanzar v. Kebe, et al. – USDC ND GA - Case No. 1:19-cv-01301-WMR

(5) Debtor’s Voluntary Petition in the bankruptcy case entitled In re Kebe – Case No. 0:23-BK-14082-SMG

(6) Order re Non-Dischargeability in bankruptcy adversary proceeding entitled Almanzar v. Kebe – Case No. 0:23-AP-01153-SMG

(7) Complaint filed in district court litigation against Kebe and others entitled Kelly v. United States, et al. – Case No. 1:23-cv-15885

(8) Complaint filed against Kebe in Supreme Court of State of New York, Kings County, in action entitled Whitehead v. Kebe, et al. – Case No. 516724/2023.

Section 452(d) provides that “[j]udicial notice may be taken of . . . records of (1) any court of this state or (2) any court of record of the United Sates or of any state of the United States.” (Evid. Code § 452(d).) Section 452 provides a proper basis for judicial notice of the fourth, fifth, sixth, seventh and eighth documents. Upon taking notice of court records, the court accepts as true only that (1) they were filed and (2) the assertions therein were made; the court does not take notice of the truth of their contents. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374-375; see also Day v. Sharp (1975) 50 Cal.App.3d 904, 916.) The Court takes judicial notice of the documents attached as Exhibits 4, 5, 6, 7 and 8 in Plaintiffs’ Request for Judicial Notice. Section 452 does not provide a basis for judicial notice of the three web pages corresponding to Exhibits 1, 2 and 3 of Plaintiffs’ request. Accordingly, the Court denies judicial notice of the webpages.

The Yelen Defendants seek to strike the First, Third, Fourth and Fifth causes of action alleged against them in the FAC pursuant to Code Civ. Proc. § 425.16. The Yelen Defendants bring this Special Motion to Strike on the ground that each of those causes of action arises from activity protected by Section 425.16 and Plaintiffs cannot establish a probability of prevailing on those causes of action.

Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions. In pertinent part, the statute states, “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(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(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 anti-SLAPP motions. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) From this fact, courts “‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’” (Ibid.) 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(b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (“Soukup”).)

As to the first prong, an anti-SLAPP motion requires the moving party to bear the initial burden of establishing a prima facie showing that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 894.)

Defendants contend that both the Interview and the promotional video teasing the Interview’s upcoming release (the “Teaser”) (collectively, the “Broadcasts”) are written or oral statements made in a public forum in connection with an issue of public interest within the meaning of CCP § 425.16. The Broadcasts were made publicly accessible on websites and streaming platforms, which constitute public forums. The subject matter qualifies as an issue of public interest because speech about celebrities and the entertainment industry has repeatedly been held to qualify as such. (See, e.g., Jenni Rivera Enters. v. Latin World Ent. Holdings (2019) 36 Cal. App. 5th 766, 796 [celebrity gossip concerning high profile individuals constitutes a matter of public concern].)

The Yelen Defendants assert that all of the causes of action alleged against them arise from the Broadcasts. The tortious interference, invasion of privacy, and defamation claims expressly arise out of the Interview and statements made in it. (See FAC ¶¶ 49-51 (“Kebe published the interview” and thus allegedly interfered with the Shakes-Hart contract); ¶¶ 53-58 (The Interview “disclosed publicly” “purported private facts”); ¶¶ 60-61 (Shakes allegedly made false and defamatory statements in the Interview). Plaintiffs’ extortion claims against the Yelen Defendants arise out of the Teaser. (FAC ¶¶ 30, 35-40.)

Plaintiffs do not dispute that the Broadcasts constitute protected activity within the meaning of California’s Anti-SLAPP statute.

Defendants have met their initial burden of establishing a prima facie showing that Plaintiffs’ causes of action alleged against Defendants arise from Defendants’ free speech activity.

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.) In other words, 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.)

Defendants argue that Plaintiffs’ first cause of action for civil extortion lacks minimal merit because California does not recognize the existence of such a cause of action. In opposition, Plaintiffs cite to case law that purportedly affirms the denial of anti-SLAPP motions as to complaints bringing civil extortion as a cause of action. The cases cited by Plaintiffs on this issue are not, however, on point. In both Flatley v. Mauro (2006) 39 Cal.4th 299, 306 and Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799, 802, the court’s holding was not that civil extortion is a cause of action, but rather that the communications in question constituted criminal extortion and therefore were not protected by the anti-SLAPP statute. In Flatley, the communication in question was a settlement demand letter that threatened legal action and incriminating press releases. (Flatley, supra, at 309.) In Mendoza, the communication in question was a demand letter that threatened legal action against a former employee and threatened to report alleged transgressions to enforcement agencies.

Though not cited by Plaintiffs, the Court of Appeal of the Third Appellate District has upheld the existence of a civil extortion cause of action; however, in that case, Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, disapproved on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, the court defined civil extortion as “a cause of action for recovery of money obtained by the wrongful threat of criminal or civil prosecution.” (Fuhrman, supra, at 179 Cal.App.3d 426.)

Here, unlike in Flatley, Mendoza and Fuhrman, the wrongful threat in question is not one of criminal or civil prosecution. Rather, the Yelen Defendants are only alleged to have threatened to release a video that contains statements alleged to be defamatory and to invade Plaintiffs’ privacy. Plaintiffs have therefore not met their burden of showing a reasonable probability of success on the merits as to their civil extortion cause of action.

Accordingly, Defendants’ Motion is GRANTED as to first cause of action in the FAC for civil extortion.

Defendants argue that Plaintiffs’ third cause of action for intentional interference with contractual relations lacks minimal merit on the grounds that: (1) neither Yelen nor Kebe knew of any binding contractual agreement between Plaintiffs and Shakes; (2) the Yelen Defendants did not engage in any “improper’ or “wrongful” conduct; and (3) this claim is preempted by the Uniform Trade Secrets Act.

In opposition, Plaintiffs contend that Defendants knew about the existence of a nondisclosure agreement (the “NDA”) between Plaintiffs and Shakes because Shakes said so herself during the Interview. The relevant Interview segment (0:48:06-15) corresponds to the following conversation:

Defendants contend that this video segment in fact serves to show the opposite of what Plaintiffs contend, i.e. that Kebe did not know that there was a binding NDA between Plaintiffs and Shakes. At the anti-SLAPP stage, it is not the Court’s duty to evaluate the credibility of evidence. 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.) The evidence submitted by Plaintiffs could support an inference that Kebe knew about an NDA between Plaintiffs and Shakes, but chose to ignore it, because “[Hart] don’t pay [Shakes]” anymore.

As further evidence of Defendants’ knowledge of the NDA, Plaintiffs submit the cease-and-desist letter sent by Plaintiffs’ attorney, Donte Mills, to Kebe on November 22, 2023. The letter predates the Interview’s publication by several weeks. The letter describes an extortion attempt, and warns Kebe that any publication related to the subject matter alluded to in the Teaser “would constitute a violation of a non-disclosure agreement between Mr. Hart and Ms. Shakes – that certain Mutual Release and Non-Disclosure Agreement dated October 22, 2020 (the “NDA”), between those individuals.” (Mills Decl., ¶ 8; Exh. A.) Defendants argue in reply that the letter is inconsequential because it was sent “after the alleged breach . . . so the letter is irrelevant to what the Yelen Defendants knew at the time.” (Reply, 5:1-2.) This argument holds little weight, as the FAC clearly alleges Kebe’s publication of the interview as an element of Plaintiffs’ interference cause of action. (FAC ¶ 49 [“Despite being fully aware of Plaintiffs’ contractual relationship with Shakes under the NDA, Kebe published the Interview, after undertaking the independently wrongful conduct of making the extortionate threats described herein.”].)

Lastly, the Court agrees with Plaintiffs that Defendants’ Trade Secrets Act argument is not persuasive. Defendants contend that the information Shakes allegedly revealed are trade secrets solely because that information was “confidential [business] information.” (Motion, 10:10-20.) Such an argument would have trade secret law subsume any business tort where confidential information is involved. It does not. Civil Code § 3426.1 defines trade secret as “information [that] derives independent economic value . . . from not being generally known to the public”. (Civ. Code § 3426.1(b).) The Civil Code provides examples of such information: “a formula, pattern, compilation, program, device, method, technique, or process.” (Id.) Defendants contend that the information revealed by Shakes during the Broadcasts holds economic value from not being generally known simply because their disclosure caused damages. (Reply, 6:3-4.) This is a logical fallacy. Defendants offered no cognizable argument as to how the allegedly confidential information constitute trade secrets.

Plaintiffs have, however, shown minimal merit in Plaintiffs’ third cause of action for intentional interference with contractual relations. Accordingly, Defendants’ Motion as to this cause of action is DENIED.

Defendants argue that Plaintiffs’ fourth cause of action for invasion of privacy claim lacks minimal merit because: (1) KHE, as a corporation, lacks any actionable privacy interests; (2) Hart cannot assert a right of privacy as to statements made about unspecified family members or employees; (3) Plaintiffs do not identify any “private facts” disclosed in the Interview; and (4) the statements about Hart in the Interview are matters of public concern.

Plaintiffs’ opposition appears to concede that KHE does not have actionable privacy interests. Defendants cite to several cases to support the argument that corporations lack privacy rights. (See Motion, 11:1-8.) Accordingly, KHE’s cause of action for invasion of privacy fails as a matter of law.

As to Hart’s cause of action for invasion of privacy, Plaintiffs contend that the FAC identified private facts disclosed in the Interview. Paragraph 54 of the FAC alleges: “Some of the matters Shakes purported to disclose would necessarily have been based on her purported knowledge of private facts, including but not limited to statements regarding personal relationships affecting the employment status of personnel at Hart-affiliated companies, and interactions among Hart and his family members.” (FAC, ¶ 54.) As discussed above, KHE, being a corporate entity, may not assert an invasion of privacy claim. Moreover, privacy rights are actionable only by the person whose rights were invaded. (See, e.g., Moreno v. Hanford Sentinel (2009) 172 Cal. App. 4th 1125, 1131 [“[t]he right of privacy is purely personal” and “cannot be asserted by anyone other than the person whose privacy has been invaded”].) Accordingly, Plaintiffs cannot state a claim based on the alleged disclosure of private facts about KHE employees.

Plaintiffs also assert in their opposition that “Hart’s privacy claim is [based] on information, inter alia, regarding private interactions between Hart and his family. (FAC, ¶ 54.)” (Opp’n, 16:1-2.) Those interactions include “Hart’s communications with his wife after revelations regarding the Las Vegas Incident had come to light.” (Opp’n, 15:23-24.) Unlike the Las Vegas Incident itself, Plaintiffs contend, Hart’s discussions about the Incident with his wife were never public. Defendants contend in reply that Hart cannot survive this Motion by asserting “new, un-pleaded theories.” (Reply, 6:20.) While it is true that Hart provided more details as to the communications at issue for this cause of action in the opposition papers, Hart had properly pleaded that Shakes disclosed private facts, including “interactions among Hart and his family members.” (FAC, ¶ 54.) There is no requirement to plead an invasion of privacy claim specifically, as there is, for example, with fraud pleading.

Plaintiffs have shown that Hart’s invasion of privacy claim has minimal merit, although KHE’s invasion of privacy claim does not. Accordingly, Defendants’ Anti-SLAPP Motion as to the fourth cause of action for invasion of privacy is DENIED as to Hart and GRANTED as to KHE.

Defendants argue that Plaintiffs’ fifth cause of action for defamation lacks minimal merit on the grounds that: (1) Plaintiffs have not identified any statements that concern KHE; (2) Plaintiffs have not identified the specific, allegedly defamatory statements at issue in this cause of action; (3) Plaintiffs cannot prove that any statement about Hart made in the Interview is demonstrably false; (4) the claim is barred by the “fair and true report” privilege of Civil Code § 47(d); (5) Plaintiffs cannot prove that Defendants acted with actual malice; and (6) Plaintiffs did not plead and cannot prove special damages as required by Civil Code § 48a.

Plaintiffs’ opposition appears to concede that no defamatory statements were made as to KHE. Accordingly, KHE’s cause of action for defamation fails as a matter of law.

As to Hart’s cause of action for defamation, the FAC specifically alleges that in the Interview, Shakes falsely stated that “Hart purportedly recorded a video of a sexual encounter and faced criminal charges regarding that supposed incident,” with reference to the Las Vegas Incident. (FAC, ¶ 61.) Plaintiffs have sufficiently pleaded the defamatory statements at issue in this cause of action.

Moreover, Plaintiffs’ claim that those statements are untrue has, at the very least, minimal merit. Shakes and Kebe’s use of the word “charges”, in context and based on the common usage of the word, could lead a reasonable observer to conclude that Hart faced criminal prosecution. Defendants do not dispute that Hart never faced criminal charges in connection with the Las Vegas Incident. To the extent that Shakes was referring to civil “charges” (which is not the common usage of the term), that statement also would have been untrue, because Ms. Sabbag’s civil suit against Hart regarding the Las Vegas Incident had been dismissed months earlier in June 2023. (Cate Decl., ¶ 9.) Further, Shakes cannot escape liability by alleging, after the fact, that her statement that Hart himself filmed the Las Vegas Incident, was merely an opinion, when the Interview is premised on the fact that Shakes is an insider with intimate knowledge of the issues being discussed. (See, e.g., Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 728 [statements “could be found to convey an actual imputation of fact if they implied the speaker’s possession of undisclosed supporting facts”]; Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 706 [defamation liability where speaker “holds itself out to its subscribers as having specialized knowledge”].)

Defendants’ argument based on the fair and true report privilege also fails because there is no showing that Kebe’s platforms constitute a public journal within the meaning of Civil Code § 47(d).

Defendants’ argument based on Civil Code § 48a also fails because Defendants have not shown that Kebe’s videos are “weekly news publications” within the meaning of section 48a. (See, e.g., Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991 [holding that a newspaper that publishes “how to” stories, celebrity stories, gossip items and TV column items was not protected by Civil Code § 48a.].)

Plaintiffs concede that Hart, a public figure, must prove actual malice to prevail on a defamation claim. Actual malice was specifically pleaded in the FAC. (FAC, ¶ 66.) Plaintiffs contend that, to show malice, they may rely on inferences drawn from circumstantial evidence, including “reliance upon sources . . . known to be biased against the plaintiff.” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 85.) During the Interview, Shakes alluded to negative aspects of her relationship with Hart, stating that she had “been beaten down emotionally for a long time” working with Hart (Interview, at 3:58), and that, despite Hart’s purported wealth, “[she] can’t get a raise!” (Id., at 51:42, 55:58-56:06.) Perhaps more importantly, Plaintiffs point to Defendants’ extortion attempt as evidence of malice. Although several of Defendants’ evidentiary objections concerning the alleged extortion attempt were sustained, the record still contains admissible evidence of extortion. (See, e.g., Mills Declaration, Ex. A [“As you are no doubt aware, recently, someone on Mr. Hart’s team was contacted by an unknown individual who indicated that he was affiliated with you [Kebe] and/or your blog(s). This individual working at your direction stated that you would publish a story on social media (the “Story”) that you contend would be damaging to Mr. Hart’s reputation, unless Mr. Hart pays $250,000.”].)

Plaintiffs have shown that Hart’s defamation claim has minimal merit. Accordingly, Defendants’ Anti-SLAPP Motion is DENIED as to Hart’s defamation claim as alleged in the fifth cause of action of the FAC, and GRANTED as to KHE’s defamation claim.

Defendants Kebe and Yelen’s special motion to strike is GRANTED in part and DENIED in part.

The motion is GRANTED as to: (1) Hart and KHE’s first cause of action for civil extortion; (2) KHE’s fourth cause of action for invasion of privacy; and (3) KHE’s fifth cause of action for defamation.

The motion is DENIED as to: (1) the FAC’s second cause of action for intentional interference with contract; (2) Hart’s fourth cause of action for invasion of privacy; and (3) Hart’s fifth cause of action for defamation.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court