Judge Mark A. Young, Case 22SMCV00604 2022-12-16 Tentative Ruling

Judge: Mark A. Young, Case: 22SMCV00604, Date: 2022-12-16 Tentative Ruling

Case Number: 22SMCV00604 Hearing Date: December 16, 2022 Dept: M

CASE NO.: 22SMCV00604

MOTION: Anti-SLAPP Motion

HEARING DATE: 12/16/2022

Legal Standard

Code of Civil Procedure section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].)

EVIDENTIARY ISSUES

Request for Judicial Notice

Defendants request judicial notice of two articles published in entertainment magazines. (See Rupp Decl., Exs. 1-2.) There is no apparent legal basis to notice such documents. (Evid. Code § 452.) Accordingly, judicial notice is DENIED.

Evidentiary Objections

Plaintiff’s evidentiary objections are OVERRULED. (Including those to Exhibits 1-2 of Rupp Declaration, which were the subject of the request for judicial notice.)

Defendants’ evidentiary objections are OVERRULED.

Analysis

Discovery Continuance

Plaintiff requests the Court to lift the automatic discovery stay. (CCP § 425.16(g).) Code of Civil Procedure § 425.16(g)¿provides: “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed¿motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.”¿Good cause¿to conduct discovery¿exists “[i]f the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case.” (Lafayette Morehouse, Inc. v. Chronicle Publishing Co.¿(1995) 37 Cal.App.4th 855, 868.)¿Upon the requisite showing, the trial court “must liberally exercise its discretion by authorizing reasonable and specified discovery timely petitioned for by a plaintiff.” (Id.)¿

The fact that evidence necessary to establish the plaintiff’s prima facie case is in the hands of the defendant or third party is only one factor for the court to consider. (The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1162.) “The trial court should consider whether the information the plaintiff seeks to obtain through formal discovery proceedings is readily available from other sources or can be obtained through informal discovery.” (Id.) “The court should also consider the plaintiff’s need for discovery in the context of the issues raised in the SLAPP motion.” (Id.)

Plaintiff reasons that since Defendants have placed the contract negotiations at issue, discovery for extrinsic evidence regarding contract interpretation is warranted. Plaintiff asserts that the motion rests solely upon the force and effect of two agreements entered into between the parties, including the “Executive Producer” agreement at issue. Plaintiff argues that the May 7, 2019, email from Ms. Hunt provides a clear, good faith basis to conduct discovery as to the intentions of the parties to the contract in question. Specifically, Plaintiff wants to conduct:

(1) targeted written discovery to Defendants seeking the production of documents related to the above-stated agreements;

(2) the deposition of Defendant Jeff Jenkins on matters related to the formation of the above stated agreements;

(3) the deposition of Julie Hunt, the individual who authored the email of May 7, 2019;

(4) subpoenas directed to 3 Ball Entertainment, LLC and Netflix pursuant to CCP § 2020.410 for the production of business records, contracts and communications related to Plaintiff’s association with the Series, as well as similarly-situated performers on the Program who were also identified as Executive Producers; and

(5) the depositions of non-parties 3 Ball Entertainment and Netflix, as well as Defendants’ persons most knowledgeable pertaining to the above-stated agreements.

Plaintiff, however, does not articulate what specific evidence she would obtain from these methods in order to support her prima facie burden. The above categories, while generally relevant to Plaintiff’s action, are not required to establish Plaintiff’s second-prong burden or Plaintiff’s proffered theory. Plaintiff’s theory is that Defendants’ representations to her regarding the May 2019 agreement led her to believe that the agreement would “not negate the terms of [the] other deal related to producing services, credit, etc. but would relate separate and specifically to [her] on-camera services.” (Li Decl., Ex. D.) Plaintiff herself should have all the resources necessary to present such evidence in support of her contract claim, without discovery from Defendants.

Furthermore, and as discussed below, the Court concludes that Defendant does not meet the first prong of the anti-SLAPP statute. Thus, Plaintiff does not need to present evidence at this juncture.

First Prong

Defendants move to strike the entire complaint and each cause of action because they arise from acts in furtherance of the right of free speech about matters of public interest. Code of Civil Procedure section 425.16(e) defines protected acts as the following: 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.

“[T]he critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) A claim is subject to an anti-SLAPP motion only if the conduct constituting the protected activity “itself is the wrong complained of.” (Park v. Board of Trustees of Calif. State Univ. (2017) 2 Cal.5th 1057, 1060.) In other words, “[a] claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Id. at 1062.) “‘[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.’” (Navellier, supra, 29 Cal.4th at 89.) “Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’” (Id. at 92.)

“‘The only means specified in section 425.16 by which a moving defendant can satisfy that [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)…” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) “In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Id.)

Defendants contend that the challenged conduct is “in furtherance” of a protected speech activity. Acts in furtherance of the creation of a “television show is an exercise of constitutionally protected expression.” (Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1521 [selection of anchor for weather report]; see De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 860 [the First Amendment “ ‘safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays’ ”]; see, e.g., Musero v. Creative Artists Agency, LLC (2021) 72 Cal. App. 5th 802, 819 [misappropriation of creative ideas was part of, or preliminary to, the creation of a television program, and thus “in furtherance” of protected activities]; Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1039-1040, 257 Cal.Rptr.3d 146 [conduct in furtherance of a documentary included hiring and use of a cinematographer to obtain on-location footage, and maintaining an online journal of refugees’ stories to gather ideas for the production]; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166, 1 Cal.Rptr.3d 536 [newsgathering conduct]; Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1106, 243 Cal.Rptr.3d 445 [musician's selection of supporting band members].)

Defendants also identify a relevant public issue. “‘[A] matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest,” and . . . “[a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.” [Citation.]” (Rand Resources, LLC v. City of Carson¿(2019) 6 Cal.5th 610, 621.) There are “three nonexclusive and sometimes overlapping categories of statements within the ambit of subdivision (e)(4). [Citation.] The first is when the statement or conduct concerns “a person or entity in the public eye;” the second, when it involves “conduct that could directly affect a large number of people beyond the direct participants;” and the third, when it involves “a topic of widespread, public interest.” (Id.)

Here, Defendants proffer that the Program itself discusses issues of public interest. Specifically, the Program has been one of the most-watched reality, docu-follow television series on Netflix. (Jenkins Decl. ¶¶ 3-4 [“wide audience interest[] in this relatively un-explored and unrepresented community in popular media”].) The Program presents a unique view of Asian-Americans, which has sparked a larger public debate. (Rupp Decl., Ex. 1 [“The Netflix reality series features meaningful stories about the Asian American community that we haven’t before seen play out on reality TV”]; Ex. 2 [“Bling Empire is also helping to start new conversations about what Asians can look like or be doing on TV, and the types of stories they can tell.”].) Moreover, the Program explores subjects of class, ethnicity and assimilation, which are issues of widespread public interest.

The Court concurs that -- generally speaking -- these are issues of public interest. (See Nygard, Inc. v. UusaiKerttula (2008) 159 Cal. App. 4th 1027, 1042 [public interest is broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4th 468, 479 [“the issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.”].) Indeed, courts have found that reality television programs, like the Program, may involve matters of public interest because of their popularity with the public.

That said, Defendants do not show that the challenged conduct was “in connection with” or concerns an issue of public interest. (CCP § 425.16(e)(4).) Under this subsection, the Court must determine whether the challenged speech has a sufficient connection to a public issue to warrant anti-SLAPP protection. (Musero, supra, 72 Cal.App.5th at 820.) “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. [Citation.] Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149.) Context includes the identity of the speaker, the audience and the purpose of the speech. (Id. at 142-143; see Jeppson v. Ley (2020) 44 Cal.App.5th 845 [“The proper focus of the inquiry instead must be on ‘the specific nature of the speech,’ not on ‘generalities that might be abstracted from it.’].)

“[W]ithin the framework of section 425.16, subdivision (e)(4), a court must consider the context as well as the content of a statement in determining whether that statement furthers the exercise of constitutional speech rights in connection with a matter of public interest.” (Musero, supra, 72 Cal.App.5th at 820.) This is true even though the challenged conduct is related to the development of a television show. (See FilmOn, supra, at 152 [“[d]efendants cannot merely offer a ‘synecdoche theory’ of public interest, defining their narrow dispute by its slight reference to the broader public issue”]; Rand Resources, supra, 6 Cal.5th at 625 [“we reject the proposition that any connection at all—however fleeting or tangential—between the challenged conduct and an issue of public interest would suffice to satisfy the requirements of section 425.16, subdivision (e)(4)”; “[w]hat a court scrutinizing the nature of speech in the anti-SLAPP context must focus on is the speech at hand, rather than the prospects that such speech may conceivably have indirect consequences for an issue of public concern”].)

For instance, in Musero, the court found that the creation and development of a television series was protected activity under anti-SLAPP statute. However, the Court extensively examined the precise conduct targeted by the complaint to conclude that that conduct did not concern an issue of public interest. (See Musero, supra, 820-822.) The court concluded that the creative aspects of the work that Musero claimed Miller misappropriated and privately communicated to a targeted audience of one “did not contribute to the public conversation about a matter of public interest.” (Id. at 822.)

In this matter, Plaintiff’s claims generally arise from Defendants’ alleged actions in creating and developing the Program. Plaintiff alleges that she presented Jenkins with the idea for “Bling Dynasty” and worked with him to “refine the concept and develop the Program.” (Compl. ¶ 16.) She claims that after providing Jenkins “with a program Concept that was original to Plaintiff,” and working with him “to develop, sell, exploit and produce the Program,” Defendants failed to compensate her as promised, failed to provide her “with the ability to fully perform services as an Executive Producer,” and excluded her “from inclusions in decisions and the ability to work or consult on the Program.” (¶¶ 24, 26(A).) But for Defendants’ alleged material misrepresentations and omissions, Plaintiff claims that she “would not have allowed Defendant Jenkins access to her materials, nor would she have participated in the development and production process, and never would have acquiesced to the sale of her property to Netflix.” (¶ 28.)

There is no substantive connection between these alleged acts as set forth in the complaint and the public issues discussed above. Defendants are not being sued for the content of the Program, or any statements concerning the discussed public issues. Defendants’ listing or non-listing of a credit does not implicate or further the discussion of the proffered public issues. Indeed, the Court observes no conceivable public interest related to Plaintiff’s Executive Producer credit or compensation. Moreover, the statements upon which liability is premised were apparently made in a private context, between the parties themselves. While Defendants demonstrates some public interest in the subject of the Program itself, Defendants do not show a functional relationship between the challenged conduct–the decision to exclude and not compensate Plaintiff as an Executive Producer on the Program–and any public interest in the Project or the Project’s themes. Certainly, this decision does not aide or meaningfully contribute to the social issues cited. Indeed, this evidences a lack of closeness between the challenged conduct and the asserted public interest. The tangential relationship seen here is simply not sufficient.

Thus, Defendants do not carry their threshold burden as to prong one of the anti-SLAPP statute. The Court need not consider whether Plaintiff demonstrates a probability of prevailing on the merits.

Timeliness

Code of Civil Procedure section 425.16(f) requires that a special motion to strike be filed within 60 days of service of the complaint. Defendants filed this motion more than 60 days after personal service of the complaint. Proof of service of summons indicates personal service on May 10, 2022. On June 2, 2022, Defendants filed an answer to the complaint. Defendants filed the instant special motion to strike on July 11, 2022. The period between May 10, 2022, and July 11, 2022, is 62 days. Defendants do not explain why this period should be extended.

Therefore, the motion is untimely and would be DENIED for this additional reason.

Accordingly, Defendants’ motion is DENIED.