Judge: Monica Bachner, Case: 19STCV35507, Date: 2023-04-25 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 19STCV35507    Hearing Date: April 25, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Joan Celia Lee’s unopposed special motion to strike Plaintiff Bradley Herman’s complaint is granted. Defendant Lee may separately move for an award of attorneys’ fees and costs. Defendant Lee is ordered to submit a proposed judgment within 10 days.

Defendant Kirk Schenck’s unopposed special motion to strike Plaintiff Bradley Herman’s complaint is granted. Defendant Schenck may separately move for an award of attorneys’ fees and costs. Defendant Schenck is ordered to submit a proposed judgment within 10 days.

Defendant Joan Celia Lee (“JC”) (“Defendant”) moves unopposed for a special motion to strike (“Anti-SLAPP motion”) Plaintiff Bradley J. Herman’s (“Herman”) (“Plaintiff”) complaint (“Complaint”).  (Notice of Motion JC, pg. ii; C.C.P. §§425.16 et seq.)  Defendant JC also requests an award of attorneys’ fees and costs.  (Memo JC, pg. 14.)

Defendant Kirk Schenck (“Schenck”) (“Defendant”) moves unopposed for a special motion to strike Plaintiff’s Complaint.  (Notice of Motion Schenck, pg. ii; C.C.P. §§425.16 et seq.)  Defendant Schenck also requests an award of attorneys’ fees and costs.  (Memo Schenck, pg. 16.) 

Background

          Plaintiff’s Complaint is a suit for defamation arising from his relationship with the late Stan Lee (“Stan”), the world-famous creator of the Marvel Universe and its characters such as Spider-Man, Iron Man, and The Black Panther. Stan passed away in November 2018.  Plaintiff alleges he was a close friend and business manager for Stan from approximately 2001 until early 2018.  (Complaint ¶7.)  Plaintiff alleges Defendant JC is the daughter of Stan.  (Complaint ¶8.)  Plaintiff alleges Defendant Schenck is Defendant JC’s attorney. (Complaint ¶8.)

Plaintiff alleges Defendant JC and Defendant Schenck (collectively, “Defendants”) have made various misleading statements, falsehoods, and allegations of criminal misconduct on several occasions regarding Plaintiff that were neither based in reality nor substantiated with any facts, documents, or other evidence.  (Complaint ¶9.)  Plaintiff alleges Defendant JC has made the following statement or similar statements to various third parties regarding Plaintiff:

When this guy [Plaintiff] Brad came over—when my mother was very ill again—[Plaintiff] snuck in [Stan’s] house. The police were called by Leo’s [neighbor Leonardo DiCaprio] guard, and they got him out. But if he didn’t have that guard, I don’t know if they’d take my father, and I’d never see him again. I’m so glad we have him. They could just take him. I’m so lucky.

(Complaint ¶10.)  Plaintiff alleges Defendant Schenck made the following statement or similar statements to various third parties regarding Plaintiff:

The closest thing I can say is that they [JC and Stan] have a Kennedyesque relationship. They yell at each other sometimes, but [JC] is the love of [Stan’s] life, and she has gotten a bad rap because there’s four guys—Max Anderson, Jerry Olivares, Keya Morgan and [Plaintiff] Brad Herman. All of them have been kicked out, because [JC] is essentially the only one forcing the bad guys away from [Stan] . . . .

(Complaint ¶11.)  Plaintiff alleges both statements made by Defendants appeared in an article published by non-moving Defendant The Daily Beast (“TBD”) (“Non-Moving Defendant”) on October 8, 2018, in an article titled, “Stan Lee Breaks His Silence: Those I Trusted Betrayed Me.”  (Complaint ¶12.)  Plaintiff alleges Defendants continue to make statements that Plaintiff is a bad guy who posed a serious threat to the health and safety of Stan, and Defendants’ statements continually group Plaintiff in with a group of “bad actors” that they say were trying to take advantage of Stan and prevent Defendant JC from having access to her father. (Complaint ¶13.)  Plaintiff alleges Defendants’ statements are inaccurate, misleading, and inflammatory.  (Complaint ¶14.)  Plaintiff alleges Defendants intended their statements to make the hearers/readers of such statements believe that Plaintiff was a “bad guy” who posed such a danger to Stan that he had to be saved by Defendant JC, and Defendants go so far as to claim that Plaintiff was removed from Stan’s property by the police and that Plaintiff could have kidnapped JC’s father.  (Complaint ¶15.)  Plaintiff alleges hearers/readers of these statements did, in fact, understand these statements in this manner and Defendants also claim that Plaintiff is part of and associates with a group of “bad actors” all of whom have been accused of committing wrongs against Stan.  (Complaint ¶15.)  Plaintiff alleges as a result of these defamatory statements, Plaintiff has been injured in his profession, he has lost several clients and other potential business opportunities, and his reputation has been tarnished and he continues to suffer damage.  (Complaint ¶16.)

Plaintiff filed the operative Complaint on October 4, 2019, against Defendants and Non-Moving Defendant alleging two causes of action: (1) slander per se [against Defendants]; and (2) libel per se [against Non-Moving Defendant].  In response, Defendants timely filed their Anti-SLAPP Motions on March 23, 2023.[1]  (Notice of Motion JC, pg. ii n.1; Notice of Motion Schenck, pg. ii n.1.)  As of the date of this hearing, Plaintiff has not filed oppositions.

1.     Defendant JC’s Special Motion to Strike

          “Litigation of an anti-SLAPP motion involves a two-step process. First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged.’ [Citation] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’ [Citation.]”  (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)  As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.”  (Sweetwater Union High School District v. Gilbane Building Co. (2019) 6 Cal.5th 931.)

A plaintiff opposing a special motion to strike has the burden to “state [] and substantiate [] a legally sufficient claim.”  (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 & 93.) “‘Put another way, the 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.”’ [Citations.]”  (Navellier, 20 Cal.4th at pgs. 88-89.)  To that end, the plaintiff must present competent evidence, “that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) “[D]eclarations may not be based upon ‘information and belief’ [citation]” and documents submitted without the proper foundation will not be considered.  (Id.)  The complaint, even if verified, is insufficient to carry the plaintiff’s shifted burden.  (Roberts v. Los Angeles County Bar Association (2003) 105 Cal.App.4th 604, 614; Karnazes v. Ares (2016) 244 Cal.App.4th 344, 354 [“pleadings do not constitute evidence”]; see also Burke, Anti-SLAPP Litigation (The Rutter Group, Civil Litigation Series 2018 §5:13 [“To satisfy prong two, the plaintiff must submit admissible evidence that if credited is sufficient to sustain a favorable judgment against the legal theories asserted by the defendant.”].)

Prong One: Arising from Protected Activity

“A cause of action is subject to a special motion to strike if the defendant shows that the cause of action arises from an act in furtherance of the Defendants’ constitutional right of petition or free speech in connection with a public issue and the plaintiff fails to demonstrate a probability of prevailing on the claim. [Citations.]”  (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883.)

“An ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ is defined by statute to include ‘(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.’  [Citation] If the defendant shows that the cause of action arises from a statement described in clause (1) or (2) of section 425.16, subdivision (e), the defendant is not required to separately demonstrate that the statement was made in connection with a ‘public issue.’ [Citation.]”  (Id.)

“A cause of action arising from a person’s act in furtherance of the ‘right of petition or free speech under the [federal or state] 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 claim will prevail. (C.C.P. §425.16(b)(1).)”  (Sweetwater, 6 Cal.5th at pg. 940.)  An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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.”  (C.C.P. §425.16(e).)

“A cause of action is one ‘arising from’ protected activity within the meaning of section 425.16, subdivision (b)(1) only if the Defendants’ act on which the cause of action is based was an act in furtherance of the Defendants’  constitutional right of petition or free speech in connection with a public issue. [Citation] In deciding whether the ‘arising from’ requirement is satisfied, ‘the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [(C.C.P. §425.16(b)(2).)] Whether the ‘arising from’ requirement is satisfied depends on the ‘gravamen or principal thrust’ of the claim. [Citations] A cause of action does not arise from protected activity for purposes of the anti-SLAPP statute if the protected activity is merely incidental to the cause of action. [Citations]” (Id. at pgs. 883-884.)  To show that a claim arises from protected activity under section 425.16, subdivision (b)(1), it is not sufficient to show that the claim “was filed after, or because of, protected activity, or when protected activity merely provides evidentiary support or context for the claim.”  (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621) “Rather, the protected activity must ‘supply elements of the challenged claim.’ [Citation.]”  (Id.)

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.  If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 396, emphasis added.)

Defendant JC argues Plaintiff’s slander per se claim alleged against her cannot be sustained based on the speech alleged that “arises from an alleged act” of Defendant JC “in furtherance of” her “free speech” rights under the U.S. and California Constitutions in connection with a 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.  (C.C.P. §425.16(e)(2).)  Defendant argues Plaintiff’s slander per se claim is also based on a 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.  (C.C.P. §425.16(e)(3).)[2]  Finally, Defendant JC argues Plaintiff’s slander per se claim is based on 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.  (C.C.P. §425.16(e)(4).)

Statements 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 (C.C.P. §425.16(e)(2))

Defendant JC met her burden to show Plaintiff’s cause of action for slander per se arises from protected activity under C.C.P. §425.16(e)(2).  Plaintiff’s slander per se cause of action is based on Defendant JC’s response to TDB reporter Mark Ebner’s (“Ebner”) inquiry about Defendant JC’s opinion on ongoing criminal investigations related to Stan.  (Complaint ¶¶10, 12, 15, 20; Decl. of Schenck ¶¶3-4; Decl. of JC ¶4; Decl. of Crump ¶¶3-4, 11, Exhs. B, C.) 

C.C.P. §425.16(e)(2) protects statements made “in connection with an issue under consideration or review by . . . any other official proceeding authorized by law.”  California law extends the protection for statements and conduct made during an official proceeding to statements and conduct outside the proceedings if sufficiently related to matters under consideration by the official body.  (See Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 1085.)  In Maranatha Corrections, LLC v. Department of Corrections & Rehab, the Court determined that statements in a letter written by defendant California Department of Corrections and Rehabilitation’s (“CDCR”) former director, later published by local newspapers,  notifying plaintiff community correction facility that defendant CDCR was terminating their contract because of plaintiff’s alleged misappropriation of funds from inmate telephone calls qualified for protection under C.C.P. §425.16(e)(2).  (Id.)  The Maranatha Corrections Court held that plaintiff’s right to retain revenue from inmate telephone calls “was undoubtedly an ‘issue under consideration’” by defendant former CDCR director and defendant CDCR.  (Id.)  While many anti-SLAPP cases protecting statements under C.C.P. §425.16(e)(2) involve prelitigation communications to adverse parties or potential adverse parties, there is no statutory requirement that the statements be made to adverse parties, and the statute is broadly construed to protect statements to persons who are not parties or potential parties to litigation.  (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1270 [holding letter sent by cross-Defendant employer to cross-Complainant employee’s customers was “in connection with” issues in anticipated lawsuit].)

Here, like in Maranatha Corrections, Plaintiff’s cause of action against Defendant JC is based on Defendant JC’s statements in connection with an issue under consideration by an official proceeding authorized by law, namely ongoing Los Angeles Police Department (“LAPD”) and Adult Protective Services (“APS”) investigations into alleged elder abuse of Stan in February 2018 and June 2018.  (Decl. of Crump, Exh. B at pg. 2 [“An LAPD spokesperson told DailyMail.com: ‘There’s a battery investigation at the 9100 block of Oriole Way, it’s still ongoing. We have three units there.’”], Exh. C [“Los Angeles police are investigating reports of elder abuse against Stan Lee that come amid a struggle over the life and fortune of the 95-year-old Marvel Comics mogul . . . [¶] The investigation was revealed in a restraining order granted against Keya Morgan.”].)  Defendant JC submitted evidence that after a diligent inquiry into the investigations, she formed an opinion that she had to “remove, i.e., ‘kick out’ from [her] father’s sphere of influence, Max Anderson, Jerry Olivarez, Keya Morgan and [Plaintiff] in order to prevent them from continuing to manipulate and take financial advantage of [her] father,” and Defendant JC stated she made her opinions and thoughts about the men, including Plaintiff, clear to Defendant Schenck.  (Decl. of JC ¶¶3-4.)  Defendant JC further declares,

The facts I, the LAPD, LADA [Los Angeles District Attorney] and LACAPS [Los Angeles County Department of Adult Protective Services] uncovered related to [the men’s] fraudulent financial and other activities indicate[d] to me that each man intended to alienate me from my father in an effort to defraud my father and falsely induce him to either make them generous gifts, or otherwise enter into unfair business transactions in which profited in was [sic] my father could not comprehend.

(Decl. of JC ¶4.)

Defendant JC met her burden to prove Plaintiff’s complaint arises from protected activity under C.C.P. §425.16(e)(2).  Therefore, the burden shifts to Plaintiff to demonstrate a probability of prevailing on his cause of action for slander per se.  Plaintiff has not filed an opposition and therefore has not met his burden.

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 (C.C.P. §425.16(e)(4))

Assuming arguendo Defendant JC failed to meet her burden to demonstrate Plaintiff’s cause of action for slander per se arises from protected activity under C.C.P. §425.16(e)(2), Defendant JC also met her burden to demonstrate Plaintiff’s first cause of action arises from protected activity under C.C.P. §425.16(e)(4).  Plaintiff’s slander per se cause of action is based on Defendant JC’s exercise of her right of free speech in connection with a public issue or an issue of public interest, namely Stan’s alleged abuse and the various participants, which included Plaintiff.  (Complaint ¶¶10, 12, 15, 20; Decl. of Schenck ¶¶3-4; Decl. of JC ¶4; Decl. of Crump ¶¶3-4, 11, Exhs. B, C.) 

C.C.P. §425.16(e)(4), also known as the anti-SLAPP statute’s “catch-all” provision, applies to 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, even if such conduct does not implicate protected activity under the statute’s other subsections.  An issue of public interest is “any issue in which the public is interested.”  (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.)  “In other words, the issue need not be ‘significant’ to be protected . . . it is enough that it is one in which the public takes an interest.”  (Id.)

Here, alleged abuse of Stan by his associates garnered worldwide media attention based on Stan’s status as a public figure. The public interest in Stan’s alleged abuse was the impetus for Defendant JC’s statements to TBD reporter Ebert and any of Defendant JC’s other speech alleged in the Complaint.  (See Decl. of Crump ¶10, Exhs. A-F; Decl. of Schenck ¶¶9-10; Decl. of JC ¶7.)

Defendant JC met her burden to prove Plaintiff’s complaint arises from protected activity under C.C.P. §425.16(e)(4).  Therefore, the burden shifts to Plaintiff to demonstrate a probability of prevailing on his cause of action for slander per se.  Plaintiff has not filed an opposition and therefore has not met his burden.

Prong Two: Probability of Prevailing

Slander Per Se (1st COA)

To qualify as a cause of action for slander, Plaintiff must allege the following elements: (1) the false and unprivileged publication; (2) of a specified false matter; (3) orally uttered to third persons; and (4) that has a natural tendency to injure or cause special damages.  (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106; see CACI 1700 et. seq.)  Certain statements are deemed to constitute slander per se, including statements (1) charging the commission of crime, or (2) tending directly to injure a plaintiff in respect to the plaintiff’s business by imputing something with reference to the plaintiff’s business that has a natural tendency to lessen its profits.  (Civ. Code, §§46(1), (2); Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 829.)  A slander that falls within the first four subdivisions of Civil Code §46 is slander per se and require no proof of actual damages.  (Burrill v. Nair (2013) 217 Cal.App.4th 357, 382; Gonzalez v. Fire Insurance Exchange (2015) 234 Cal.App.4th 1220, 1240.)

Legally sufficient defamation and slander claims must be pled with “specificity” to withstand legal challenge posed by an Anti-SLAPP motion.  (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 32.)  “Legally sufficient” means the cause of action would satisfy a demurrer.  (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1421.)  To plead slander per se with required specificity, “[t]he general rule is that the words constituting an alleged [libel/slander] must be specifically identified, if not pleaded verbatim, in the complaint.’”  (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1017 n.3, quoting Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612.)

          Plaintiff has not met his burden to demonstrate a probability of prevailing on its cause of action for slander per se.  Plaintiff presented no argument or evidence regarding his probability of prevailing.  Moreover, as discussed below, to the extent the Court considers the allegations of the Complaint itself, Plaintiff has not met his burden. 

First, Plaintiff has not established a probability of prevailing on his claim for slander per se with regards to Defendant JC’s “continued” speech.  Apart from Defendant JC’s statement to TDB quoted verbatim in the Complaint, Plaintiff has only pled vague generalities regarding Defendant JC’s hypothetical “continued” speech.  (Complaint ¶¶13, 15.)  Plaintiff fails to allege when, where, and specifically to whom any of Defendant JC’s other alleged statements were made.

          Second, Plaintiff has not established a probability of prevailing on his claim for slander per se with regards to Defendant JC’s statement to TDB quoted verbatim in Plaintiff’s Complaint.  (Complaint ¶10.)  In Rosenaur v. Scherer, the Court of Appeals determined that a defendant’s name-calling of a plaintiff as a “thief” and a “liar” during a ballot initiative campaign was not, as a matter of law, defamatory under the circumstances.  (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 279.)  The Rosenaur Court stated, “taken in context, [defendant’s] purported use of the words ‘thief’ and ‘liar’ in the course of a chance set argument with a political foe at a shopping center was the type of loose, figurative, or hyperbolic language that is constitutionally protected.”  (Id. at pg. 280, citing Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 690; see Okun v. Superior Court (1981) 29 Cal.3d 442, 454.)  The U.S. Supreme Court has also “recognized constitutional limits on the type of speech which may be the subject of state defamation actions.”  (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 16.)  The Milkovich Court reaffirmed a line of cases that provide First Amendment “protection for statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual. [Citation.] This provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.”  (Id. at pg. 20.)

Here, like in Rosenaur, Defendant JC’s statement to Ebert that Plaintiff “snuck in the house” does not accuse Plaintiff of having been convicted of a crime and is a good faith statement of Defendant JC’s opinion regarding her belief that Plaintiff entered Stan’s home “stealthily or furtively” that does not legally amount to slander per se.  (Decl. of JC ¶¶8-9.)

Third, Plaintiff has not established a probability of prevailing on his claim of slander per se because Plaintiff qualifies as a “limited purpose public figure” and cannot establish Defendant JC’s actual “malice” in making any damaging statement alleged in the Complaint.

The U.S. Supreme Court in New York Times Co. v. Sullivan determined that the federal Constitution guarantees “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”  (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280.)  Under California law, “malice” in defamation cases means “actual” or “express” malice, hatred, or ill-will, not the fictional malice “implied by law” from intentional doing or a wrongful act without just cause.  (See Frommoethelydo v. Fire Insurance Exchange (1986) 42 Cal.3d 208.)  Public figures must prove by clear and convincing evidence that an allegedly defamatory statement was made with knowledge of falsity or reckless disregard for truth.  (New York Times Co., 376 U.S. at pgs. 279-280; Reader’s Digest Association v. Superior Court (1984) 37 Cal.3d 244, 252.)

A Court must first discern whether a plaintiff is a public figure:

The characterization of “public figure” falls into two categories: the all-purpose public figure, and the limited purpose or ‘vortex’ public figure. The all-purpose public figure is one who has achieved such pervasive fame or notoriety that he or she becomes a public figure for all purposes and contexts. The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues.

(Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351; Reader’s Digest Association, 37 Cal.3d at pg. 253.)

A plaintiff qualifies as a limited purpose public figure if the following elements are met: (1) there must be a public controversy, which means the issue was debated publicly and had foreseeable and substantial ramifications for nonparticipants; (2) the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue and it is sufficient that the plaintiff attempts to thrust him or herself into the public eye; and (3) the alleged defamation must be germane to the plaintiff’s participation in the controversy.  (Id., citing Copp v. Paxton (1996) 45 Cal.App.4th 829, 845-846.)

Here, Plaintiff qualifies as a limited-purpose public figure by thrusting himself into the public eye by issuing multiple statements to The Hollywood Reporter about facts related to Stan’s alleged abuse in an article dated April 10, 2018, entitled “Stan Lee Needs a Hero: Elder Abuse Claims and a Battle Over the Aging Marvel Creator,” by Gary Baum.  (Decl. of Crump ¶2, Exh. A [“According to [Plaintiff] Herman—whose active Hollywood client list he keeps private but who previously worked for Johnny Carson and Frank Sinatra—[Defendant] J.C. then roughly grabbed her mother by one arm, shoving her against a window. Joanie [JC’s mother] fell to the carpeted floor. [Stan], seated in a nearby chair and looking stunned, told [Defendant] J.C. he was cutting her off: ‘I’m going to stick you in a little apartment and take away all your credit cards!’ [Plaintiff] Herman recalls [Stan] shouting. ‘I’ve had it, you ungrateful bitch!’ In ‘a rage,’ [Defendant] J.C. took hold of [Stan]’s neck, slamming his head against the chair’s wooden backing. Joanie suffered a large bruise on her arm and burst blood vessels on her legs; [Stan] had a contusion on the rear of his skull. (J.C. has previously denied the incident.) [¶] Shortly afterward, allegedly at Joanie’s behest, [Plaintiff] Herman took photos that purport to show her injuries, which he shared with THR (another visitor to the house shortly thereafter confirms the wounds). [Plaintiff] Herman contends the parents asked him not to pursue the matter with police, wary of publicity and law enforcement for their daughter, whom they viewed as emotionally fragile and who they told intimates was still haunted—even as a senior citizen herself—by the bullying of her childhood.”].)

As a limited-purpose public figure, Plaintiff has failed to present admissible, clear and convincing evidence establishing Defendant’s malice toward Plaintiff in making her statement to TDB. Therefore, Plaintiff has not established a probability of prevailing against Defendant JC on his first cause of action.

          Based on the foregoing, Defendant JC’s special motion to strike is granted.  With respect to entitlement to attorneys’ fees and costs under C.C.P. §425.16, Defendant JC may separately move to obtain an award of fees and costs.

Defendant JC is ordered to submit a proposed judgment within 10 days.

2.     Defendant Schenck’s Special Motion to Strike

Defendant Schenck’s Anti-SLAPP motion presents mostly the same arguments as Defendant JC’s anti-SLAPP motion, with a few additional arguments and distinctions that the Court will mention in its discussion below.

Prong One: Arising from Protected Activity

Defendant Schenck argues Plaintiff’s slander per se claim alleged against him cannot be sustained based on the speech alleged because such speech qualifies for the protections provided by the First Amendments to the California and United States Constitutions.  Defendant Schenck argues his Statement to TDB does not refer to Plaintiff himself as a “bad guy” and was made to a reporter who was covering the then existing world-wide public interest story about Stan.  Defendant Schenck argues his statement to TBD is protected under California’s anti-SLAPP statute because it was made (a) in connection with an issue that addressed multiple LAPD, Los Angeles County Department of Adult Protective Services (“LACADS”), and Los Angeles County District Attorney’s Office (“LADA”) criminal investigations into the very individuals referenced in Defendant Schenck’s statement to TDB, each of whom, along with Plaintiff, sought to take advantage of Stan in his later years (C.C.P. §425.16(e)(2)); (b) in a place open to the public in connection with an issue of public interest (C.C.P. §425.16(e)(3)); and (c) as part of Defendant Schenck’s constitutional right of free speech in connection with a then existing, worldwide public issue or an issue of public interest (C.C.P. §425.16(e)(4)).

Statements 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 (C.C.P. §425.16(e)(2))

Defendant Schenck met his burden to show Plaintiff’s cause of action for slander per se arises from protected activity under C.C.P. §425.16(e)(2).  Plaintiff’s slander per se cause of action is based on Defendant Schenck’s statement to TDB reporter Ebner inquiry about Stan’s wellbeing, and Defendant JC’s, Defendant Schenck’s, and law enforcement’s then ongoing investigations of Plaintiff, Jerry Olivarez, Keya Morgan, and Max Anderson, and an existing restraining order obtained by Stan against Keya Morgan.  (Complaint ¶¶11, 12, 15, 20; Decl. of Schenck ¶¶3-4; Decl. of Freund ¶11, Exhs. B, C.) 

Defendant Schenck met his burden to prove Plaintiff’s complaint arises from protected activity under C.C.P. §425.16(e)(2).  Therefore, the burden shifts to Plaintiff to demonstrate a probability of prevailing on his cause of action for slander per se.  Plaintiff has not filed an opposition and therefore has not met his burden.

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 (C.C.P. §425.16(e)(3))

Assuming arguendo Defendant Schenck failed to meet his burden to demonstrate Plaintiff’s cause of action for slander per se arises from protected activity under C.C.P. §425.16(e)(2), Defendant Schenck also met his burden to demonstrate Plaintiff’s first cause of action arises from Defendant Schenck’s protected activity under C.C.P. §425.16(e)(3).  Plaintiff’s slander per se cause of action is based on Defendant Schenck’s exercise of his right of free speech in connection with a public issue or an issue of public interest, namely Stan’s alleged abuse and the various participants, which included Plaintiff, in a place open to the public.  (Complaint ¶¶11, 12, 15, 20; Decl. of Schenck ¶¶3-4; Decl. of Freund, Exhs. A-F.) 

C.C.P. §425.16(e)(3) protects statements made in a place open to the public or a public forum in connection with an issue of public interest.  “A public forum is a place open to the use of the general public for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”  (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846.)  Streets, parks, and other public places are considered “public forums.”   (Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1125-1126, overruled on other grounds by Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 n.10.)  Here, Defendant Schenck made his statement to the TDB reporter on a public street in front of Stan’s home as an “off the record” general opinion relating to the abovementioned investigations that were subject of worldwide media debate.  (Decl. of Schenck ¶¶3-4; Decl. of Freund, Exhs. A-F.)

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 (C.C.P. §425.16(e)(4))

Assuming arguendo Defendant Schenck failed to meet his burden to demonstrate Plaintiff’s cause of action for slander per se arises from protected activity under C.C.P. §§425.16(e)(2) or (3), Defendant Schenck also met his burden to demonstrate Plaintiff’s first cause of action arises from protected activity under C.C.P. §425.16(e)(4).  Plaintiff’s slander per se cause of action is based on Defendant Schenck’s exercise of his right of free speech in connection with a public issue or an issue of public interest, namely Stan’s alleged abuse and the various participants, which included Plaintiff.  (Complaint ¶¶11, 12, 15, 20; Decl. of Schenck ¶¶3-4; Decl. of Crump ¶¶3-4, 11, Exhs. B, C.) 

As discussed above in Defendant JC’s motion, Defendant Schenck met his burden to prove Plaintiff’s complaint arises from protected activity under C.C.P. §425.16(e)(4).  Therefore, the burden shifts to Plaintiff to demonstrate a probability of prevailing on his cause of action for slander per se.  Plaintiff has not filed an opposition and therefore has not met his burden.

Prong Two: Probability of Prevailing

Slander Per Se (1st COA)

          Plaintiff has not met his burden to demonstrate a probability of prevailing on its cause of action for slander per se.  Plaintiff presented no argument or evidence regarding his probability of prevailing.  Moreover, as discussed below, to the extent the Court considers the allegations of the Complaint itself, Plaintiff has not met his burden. 

First, Plaintiff has not established a probability of prevailing on his claim for slander per se with regards to Defendant Schenck’s “continued” speech.  Apart from Defendant Schenck’s statement to TDB quoted verbatim in the Complaint, Plaintiff has only pled vague generalities regarding Defendant Schenck’s hypothetical “continued” speech.  (Complaint ¶¶13, 15.)  Plaintiff fails to allege when, where, and specifically to whom any of Defendant Schenck’s other alleged statements were made.

          Second, Plaintiff has not established a probability of prevailing on his claim for slander per se with regards to Defendant Schenck’s statement to TDB quoted verbatim in Plaintiff’s Complaint.  (Complaint ¶11.)  In Aisenson v. American Broadcasting Company, Inc., a plaintiff LASC judge sued a local ABC News affiliate after the news broadcast a report discussing an opinion poll that elicited local attorneys’ opinions of the performance of LASC criminal law judges.  (Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146, 151.)  The plaintiff judge alleged that defendant broadcasting company maligned him by calling him a “bad guy.”  (Id. at pg. 157 & n.3.)  The Aisenson Court determined the statement was at most, rhetorical hyperbole, which is not actionable as defamation because a reasonable person would not conclude that by using the term “bad guy” defendant broadcasting company intended to make a factual observation about plaintiff judge.  (Id. at pg. 157.)

Here, like in Aisenson, Defendant Schenck’s statement to Ebert that Defendant JC “kicked out” four men, including Plaintiff, who were vaguely referred to collectively as “bad guys” does not accuse Plaintiff of having been convicted of a crime and is a good faith statement of Defendant Schenck’s opinion of Defendant JC’s efforts to protect her father, and a reasonable person would not conclude that by using the term “bad guys” Defendant Schenck was making a factual observation about Plaintiff.  (Decl. of JC ¶¶3-4; Decl. of Schenck ¶8.)

Third, Plaintiff has not established a probability of prevailing on his claim of slander per se because Plaintiff qualifies as a “limited purpose public figure” and cannot establish Defendant JC’s actual “malice” in making any damaging statement alleged in the Complaint.

As stated in the discussion of Defendant JC’s motion, Plaintiff qualifies as a limited-purpose public figure by thrusting himself into the public eye by issuing multiple statements to The Hollywood Reporter about facts related to Stan’s alleged abuse in an article dated April 10, 2018, entitled “Stan Lee Needs a Hero: Elder Abuse Claims and a Battle Over the Aging Marvel Creator,” by Gary Baum.  (Decl. of Freund ¶2, Exh. A.)

As a limited-purpose public figure, Plaintiff has failed to present admissible, clear and convincing evidence establishing Defendant Schenck’s malice toward Plaintiff in making his statement to TDB. Therefore, Plaintiff has not established a probability of prevailing against Defendant Schenck on his first cause of action.

          Based on the foregoing, Defendant Schenck’s special motion to strike is granted.  With respect to entitlement to attorneys’ fees and costs under C.C.P. §425.16, Defendant Schenck may separately move to obtain an award of fees and costs.

Defendant Schenck is ordered to submit a proposed judgment within 10 days.

Dated:  April ___, 2023

Hon. Daniel M. Crowley

Judge of the Superior Court