Brodeur v. Atlas Entm't, Inc.

• Citation: 248 Cal.App.4th 665,204 Cal.Rptr.3d 483
• Decision Date: 06 June 2016
• Docket Number: B263379
• Court: California Court of Appeals
• Parties: Paul BRODEUR, Plaintiff and Respondent, v. ATLAS ENTERTAINMENT, INC., et al., Defendants and Appellants.

248 Cal.App.4th 665

204 Cal.Rptr.3d 483

Paul BRODEUR, Plaintiff and Respondent

v.ATLAS ENTERTAINMENT, INC., et al., Defendants and Appellants.

B263379

Court of Appeal, Second District, Division 8, California.

Filed June 6, 2016

Leopold, Petrich & Smith, Louis P. Petrich, Elizabeth L. Schilken and Eva S. Neuberg, Los Angeles, for Defendants and Appellants.

Davis Wright Tremaine, Kelli L. Sager, Jonathan L. Segal, Los Angeles, and Thomas R. Burke, Oakland, for CBS Broadcasting Inc., The Motion Picture Association of America, The New York Times Company, Getty Images (US), Inc., Hearst Corporation, First Look Media Works, Inc., Center for Investigative Reporting, Inc., The California Newspaper Publishers Association, First Amendment Coalition, Californians Aware, and The Reporters Committee for Freedom of the Press, as Amici Curiae on behalf of Defendants and Appellants.

Kazan, McClain, Satterley & Greenwood, David McClain, Ted W. Pelletier, Ian A. Rivamonte, Oakland; Law Offices of Leon Friedman and Leon Friedman for Plaintiff and Respondent.

GRIMES

, J.

SUMMARY

The principal issue in this case is whether a statement made by a “slightly unhinged” character in a motion picture, American Hustle (Columbia Pictures 2013), was made “in connection with a public issue or an issue of public interest” within the meaning of the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16, subd. (e)(4)

.)¹ We hold that it was, and we also conclude plaintiff failed to show a probability of prevailing on his defamation and related claims. We reverse the trial court's order denying defendants' special motion to strike the complaint.

FACTS

We briefly summarize the facts, and then describe the evidence presented in the moving and opposition papers. We will elaborate on the facts as necessary in our discussion of the legal issues.

1. The Parties and the Movie

Plaintiff Paul Brodeur is a well-known author in the environmental field, pointing out health dangers of the use of various electrical devices and other household items. Among his many books is The Zapping of America: Microwaves, Their Deadly Risk, and the Coverup (1977) (hereafter The Zapping of America).

Defendants (Atlas Entertainment, Inc.; Annapurna Productions LLC, doing business as Annapurna Pictures; and Columbia Pictures Industries, Inc.) are producers and distributors of the motion picture American Hustle.

The film, set in 1978, is a “21st century screwball farce about 20th century con men,” and uses the reality of a late 1970's FBI sting operation known as Abscam (which led to bribery convictions of a number of elected officials) as a “taking off point.” (Turan, Pros and cons—Crime caper shakes things up in style, Los Angeles Times (Dec. 13, 2013) (Turan review).)

One film critic describes the film this way: “ ‘American Hustle’ giddily embraces the excesses of its era, from spandex to ‘staches, though it's a farce that speaks as well to this tarnished age. Some of its extravagances are purely decorative.... But all the shiny surfaces, the glitter ball and the gaudiness, also suggest a world in which everyone is anxious to shake off the post-Vietnam War, post-Watergate funk. The ghost of Richard M. Nixon hovers in the air; everyone is a fake and everyone wears a mask, even Richie, the F.B.I. agent with the Chia Pet perm.” (Dargis, Big Hair, Bad Scams, Motormouths, The New York Times (Dec. 12, 2013) (Dargis review).)

In one scene in the film, one of the subjects of the sting operation (Carmine Polito, the mayor of a city in New Jersey) has given the principal character, con artist Irving Rosenfeld, a new microwave oven. Irving asks what it is, and Carmine explains that it cooks food (“it's science, that's how it heats up the food, it's scientific”) and tells him not to put metal in it. In a later scene, Irving's “slightly unhinged” wife, Rosalyn, causes the new microwave oven to explode by putting in it a container of food covered in tin foil, despite her husband's instructions “not to put metal in the science oven.” In the ensuing argument, Rosalyn says that she read, in a magazine article by plaintiff, that a microwave oven “takes all of the nutrition out of our food. It's empty, just like your deals.” This is the dialogue:

“[IRVING]: I told you not to put metal in the science oven, what did you do that or?

“[ROSALYN]: Don't make such a big deal! Just get another one.

“[IRVING]: I don't want another one, I want the one that Carmine [the New Jersey mayor whom Irving is conning] gave me.

“[ROSALYN]: Oh, Carmine! I want the one that Carmine gave me! Carmine! Carmine! Why don't you just marry Carmine? Get a little gold microwave and put it on a chain around your neck! You wanna be more like Carmine? Why don't you build something, like he does? Instead of all your empty deals; they're just like your fuckin' science oven. You know, I read that it takes all of the nutrition out of our food! It's empty, just like your deals. Empty! Empty!

“[IRVING]: Listen to this bullshit.

“[ROSALYN]: It's not bullshit! I read it in an article, look: By Paul Brodeur. [Rosalyn hands Irving an article.]

“[ROSALYN]: Bring something into this house that's gonna take all the nutrition out of our food and then light our house on fire? Thank God for me.”

Based on Rosalyn's statement (which, after adjusting his glasses and looking at the magazine Rosalyn has handed to him, Irving does not contradict), plaintiff sued defendants. He alleged causes of action for libel, defamation, slander and false light, asserting that he had never made the quoted statement, and that by misquoting him, defendants “have suggested to the movie audience that Mr. Brodeur made a scientifically unsupportable statement,” damaging his reputation.

2. The Special Motion to Strike the Complaint

Defendants filed a special motion to strike the complaint, contending the complaint was based on speech “that is of ‘public interest’ or concerns a person in the ‘public eye,’ ” and that plaintiff could not show a probability of prevailing on his claims.

Defendants contended all causes of action were based solely on production and distribution of a movie, American Hustle, “which is about a matter of ‘public interest,’ that is, the Abscam operation and the culture of the decade in which it took place.” Defendants pointed out that “any issue in which the public is interested ” is of “ ‘public interest’ ” (Nygard, Inc. v. Uusi–Kerttula (2008) 159 Cal.App.4th 1027, 1042, 72 Cal.Rptr.3d 210

(Nygard )), and the film's “uncontroverted critical success” was evidence of its public interest.

In support of their motion, defendants lodged a DVD of American Hustle, and presented evidence that the film “was a highly acclaimed motion picture which, among its many accolades, was nominated for 10 Academy Awards and won three Golden Globe awards, including Best Picture—Comedy or Musical.” A declaration from Donald R. Gordon, counsel for defendants, covered several topics.

First, Mr. Gordon's declaration stated that “[t]he safety of microwave ovens has been a matter of public controversy since at least the early 1970's, in large part because of the writings of the plaintiff, Paul Brodeur.” The declaration tells us that plaintiff authored a series of articles in The New Yorker (later revised and published as a book, The Zapping of America), highlighting his conviction “that microwaves, including those emitted by microwave ovens, represent a serious threat to the health of the American people.” Mr. Gordon's declaration quotes from and attaches excerpts from The Zapping of America, including plaintiff's questioning of the overall safety of microwave ovens and references to claims that microwaves may cause eye cataracts.

The declaration also describes plaintiff's 1978 interview published in People Magazine, in which he predicted “an ‘avalanche of litigation’ arising from the widespread use of microwaves in American society.” In that interview, plaintiff was asked if there is “any danger in eating food cooked by microwaves,” and he responded, “None that is known.”

Second, Mr. Gordon's declaration describes the film, and the character who utters the allegedly defamatory statement. “Rosalyn is established early in the film as an emotionally unstable character prone to outrageous behavior.” When she first appears in the film, she and Irving are talking about the fire she started with her new sunlamp. (“Just stop with the whole fire thing. God, it was a mistake. I'm sure a million people do that. All the time. Those sunlamps are dangerous. Shouldn't even have them in the house really.”) “Throughout the movie, Rosalyn is portrayed as an untrustworthy person and a font of misinformation,” who “will share her off-kilter observations with anyone.”

Third, Mr. Gordon describes “the farcical scene complained of by Plaintiff” in which Rosalyn “attempts to use a series of red herrings to distract her husband Irving from criticizing her regarding her destruction of the microwave oven....”

Finally, Mr. Gordon's declaration stated that “[c]laims that the government safety standard for microwave ovens is inadequate, such as those made in [plaintiff's] articles and books, have been rejected by numerous authorities, as evidenced by reports in the New York Times [ (July 10, 2007) ], and websites for the Food and Drug Administration and the American Cancer Society.”

3. Plaintiff's Opposition

Plaintiff's opposition contended that the anti-SLAPP statute does not apply, because “the specific conduct that forms the basis of the lawsuit is [plaintiff's] alleged comments about microwave radiation,” while “the public-interest topic addressed in American Hustle is the Abscam scandal,” and defendants “fail to draw any connection between the Abscam scandal and [plaintiff's] defamation and false-light claims....” Plaintiff relied heavily on Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280, 55 Cal.Rptr.3d 544

(Dyer ) (while movies involve free speech, “not all speech in a...