Doe v. Gangland Productions, Inc.

• Decision Date: 01 August 2011
• Docket Number: Case No. SACV 11–00389 AG (MLGx).
• Citation: 802 F.Supp.2d 1116
• Court: U.S. District Court — Central District of California
• Parties: John DOE, Plaintiff, v. GANGLAND PRODUCTIONS, INC., et al., Defendants.

802 F.Supp.2d 1116

John DOE, Plaintiff,

v.GANGLAND PRODUCTIONS, INC., et al., Defendants.

Case No. SACV 11–00389 AG (MLGx).

United States District Court, C.D. California.

Aug. 1, 2011.

Eric M. Schiffer, Leslie F. Vandale, William L. Buus, Schiffer & Buus APC, Newport Beach, CA, for Plaintiff.

Lisa J. Kohn, Kelli L. Sager, Rochelle L. Wilcox, Davis Wright Tremaine, Los Angeles, CA, for Defendants.

ORDER DENYING MOTION TO STRIKE

ANDREW J. GUILFORD, District Judge.

The oath of silence among members of criminal gangs has long captivated television and movie producers. Fictional depictions of organized crime often emphasize maxims like “Never rat on your friends and always keep your mouth shut.” Goodfellas (Warner Bros. Pictures 1990). But in this case, fiction becomes reality and the threat to Plaintiff's life is not for dramatic effect.

Plaintiff knew that speaking on tape to representatives of Defendants Gangland Productions, Inc. and A & E Television Network, LLC (collectively, “Defendants”) about his previous gang, the Nazi Low Riders, risked his personal safety. In fact, part of the interview explicitly discussed a former gang member who was murdered after it was revealed that he had spoken to the media in a taped interview. Plaintiff alleges that he relied on Defendants' alleged promise not to reveal Plaintiff's identity when the episode was broadcast. But Plaintiff signed a Program Participation and Release Agreement (the “Release”) which stated that Defendants had the right to broadcast Plaintiff's identity. Plaintiff alleges that the interviewer misled him to believe that the Release was just a receipt for the $300 Defendants paid him. Plaintiff alleges that he never would have done the interview if his identity was going to be revealed. When the episode was finally broadcast, Plaintiff was shocked to discover that his identity was not concealed.

Plaintiff sued Defendants for disclosing his identity in the episode. Defendants now file a Motion to Strike (“Motion”) Plaintiff's First Amended Complaint (“FAC”) under California's statute addressing Strategic Lawsuits Against Public Participation (“Anti–SLAPP Statute”), California Code of Civil Procedure § 425.16. This Court must now determine whether Defendants' revelation of Plaintiff's identity is anti-SLAPP protected activity. After reviewing all arguments and papers submitted, the Court DENIES the Motion.

BACKGROUND

Plaintiff is a former prison gang member who agreed to provide a taped interview for an episode of Gangland (the “Program”). (FAC ¶¶ 13, 19.) The Program was a documentary television show that explored a gang with a white-supremacist reputation similar to Plaintiff's former gang. (Motion at 1:6–8.) Among other topics, the interview discussed the facts surrounding the murder of a former gang member named Scott Miller (“Miller”). (Opposition to Motion (“Opp'n”) at 2:15–21; FAC ¶ 19.) Plaintiff specifically discussed the theory that Miller was killed by his own gang because he gave an interview about the gang. ( Id.)

Plaintiff's interview occurred in a motel room in southern California. (FAC ¶ 18.) Defendants used clips from Plaintiff's interview in the Program. ( Id. ¶ 22.) In those televised clips, Plaintiff's face and gang nickname were identified. ( Id.) Plaintiff alleges that he only agreed to be interviewed if Defendants promised to conceal his identity. ( Id. ¶ 19.) Plaintiff feared that disclosing his identity would endanger his life and eliminate his ability to be used as a police informant. ( Id. ¶ 14.) Plaintiff alleges that the woman who interviewed him for the Program assured him that his identity would be concealed. ( Id. ¶ 19.) Plaintiff alleges that Defendants lied to him and broke their promise to conceal his identity. ( Id. ¶ 22.) Plaintiff alleges that Defendants' disclosure of his identity led to numerous death threats and the loss of his primary source of income. ( Id. ¶ 23.)

Defendants argue that before taping the interview, Plaintiff signed the Release. (Motion at 1:8–9.) Defendants argue that in signing the Release, Plaintiff “expressly consented to the unrestricted use of his name and identity” and “waived his right to bring any claims based on such use.” ( Id. at 1:8–13.) Plaintiff argues that he is illiterate and dyslexic. (Opp'n at 3:17.) Plaintiff alleges that he did not have his girlfriend, who accompanied him to the interview, read the Release aloud to him because the female interviewer assured him that the Release was “simply a receipt” for the $300 Plaintiff was paid for the interview. (FAC ¶ 20.)

In May 2011, Plaintiff filed a first amended complaint with six claims numbered as follows: (1) appropriation of likeness; (2) public disclosure of private information; (3) false promise; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; and (6) declaratory relief. Defendants now move this Court to strike Plaintiff's FAC under the Anti–SLAPP Statute.

PRELIMINARY MATTERS

The parties submitted numerous evidentiary objections. The Court has reviewed the objections filed here and relies only on admissible evidence. See F.T.C. v. Neovi, Inc., 598 F.Supp.2d 1104, 1118 n. 5 (S.D.Cal.2008) (“The parties have each filed evidentiary objections. However, in deciding the present motions, the Court has only relied upon admissible evidence.”); Schroeder v. San Diego Unified School Dist., No. 07cv1266–IEG (RBB), 2009 WL 1357414, at *2, n. 1 (S.D.Cal. May 13, 2009). See also, Doe v. Starbucks, Inc., No. SACV 08–0582 AG (CWx), 2009 WL 5183773, at *1 (C.D.Cal. Dec. 18, 2009).

LEGAL STANDARD

The Anti–SLAPP Statute was designed to prevent certain abusive lawsuits. The California legislature found “that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Cal.Code Civ. Proc. § 425.16(a). To address this issue, the Legislature enacted the Anti–SLAPP Statute, which provides:

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.

Cal.Code Civ. Proc. § 425.16(b)(1). The Legislature also said that the Anti–SLAPP Statute “shall be construed broadly.” Cal.Code Civ. Proc. § 425.16(a).

California's Anti–SLAPP Statute applies in federal court. Dealertrack, Inc. v. Huber, 460 F.Supp.2d 1177, 1180 (C.D.Cal.2006) (citing United States v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir.1999)); see also Thomas v. Fry's Elecs., Inc., 400 F.3d 1206 (9th Cir.2005) (affirming the Ninth Circuit's holding in Lockheed Missiles that “California anti-SLAPP motions to strike and entitlement to fees and costs are available to litigants proceeding in federal court.”).

The Anti–SLAPP Statute analysis involves two steps with shifting burdens. “A defendant filing an anti-SLAPP motion to strike ‘must make an initial prima facie showing that the plaintiff's suit arises from an act in furtherance of defendant's right of petition or free speech.’ ” Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672, 682 (9th Cir.2005) (citations omitted). As used in the Anti–SLAPP Statute, 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; (4) or 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.

Section 425.16(e).

It need not be shown that the suit was brought with the intention to chill the defendant's speech. A plaintiff's intentions are “ultimately beside the point.” Bosley, 403 F.3d at 682 (citing Equilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (2002)).

After the prima facie showing is made, the burden then shifts to the plaintiff to prove “that there is a probability that the plaintiff will prevail on the claim.” § 425.16(b)(1). To do this, the plaintiff “must demonstrate that the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” New.Net, Inc. v. Lavasoft, 356 F.Supp.2d 1090, 1098 (C.D.Cal.2004) (quotations, emphasis, and citations omitted). “The court also considers the defendant's opposing evidence, but only to determine if it defeats the plaintiff's showing as a matter of law.” Kashian v. Harriman, 98 Cal.App.4th 892, 906, 120 Cal.Rptr.2d 576 (2002).

The burden a plaintiff faces is “much like that used in determining a motion for nonsuit, directed verdict, or summary judgment.” New.Net, 356 F.Supp.2d at 1099 (quotations and citations omitted). “Thus, a defendant's anti-SLAPP motion should be granted when a plaintiff presents an insufficient legal basis for the claims or when no evidence of sufficient substantiality exists to support a judgment for the plaintiff” Id. (quotations and citations omitted).

ANALYSIS1. PRIMA FACIE SHOWING BY DEFENDANTS

The threshold issue is whether the speech at...