Ojjeh v. Brown

• Decision Date: 31 December 2019
• Docket Number: A154889
• Court: California Court of Appeals Court of Appeals
• Parties: Bassel OJJEH, Plaintiff and Respondent, v. Stephen BROWN et al., Defendants and Appellants.

43 Cal.App.5th 1027

257 Cal.Rptr.3d 146

Bassel OJJEH, Plaintiff and Respondent,

v.Stephen BROWN et al., Defendants and Appellants.

A154889

Court of Appeal, First District, Division 3, California.

Filed December 31, 2019

Walter C. Cook, for Defendants and Appellants.

Structure Law Group, Mark R. Figueiredo, San Jose, Ethan G. Solove, Austin T. Jackson, for Plaintiff and Respondent.

Fujisaki, J. Defendants Stephen Brown (Brown) and Ignite Channel, Inc. (Ignite) solicited and obtained $180,000 in investments from plaintiff Bassel Ojjeh to produce a documentary film on the refugee crisis in Syria. Plaintiff later sued, claiming that no "significant" or "substantial" work had been performed on the film, and that defendants had breached their contractual obligations, defrauded him of his investments, and used his investments for purposes unrelated to the film. Defendants filed a special motion to strike the complaint or portions thereof under the anti-SLAPP law ( Code Civ. Proc., § 425.16 ),¹ claiming the complaint targeted their protected speech activity in producing the documentary. The trial court denied the motion at the first stage of the anti-SLAPP analysis, finding the complaint does not arise from acts in furtherance of defendants' exercise of their right of free speech.

We conclude defendants have made a prima facie showing that the complaint targets conduct falling within the so-called "catchall" provision of the anti-SLAPP law. ( § 425.16, subd. (e)(4).) Specifically, defendants' solicitation of investments from plaintiff and their performance of allegedly unsatisfactory work on the uncompleted documentary constituted activity in furtherance of their right of free speech in connection with an issue of public interest. Accordingly, the trial court erred in denying defendants' motion at the first stage of the anti-SLAPP analysis. We reverse and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 2018, plaintiff filed a complaint against defendants for (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) fraud, (4) false promise, (5) violation of the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq. ), (6) conversion, and (7) unjust enrichment. The complaint alleges as follows:

In early 2016, plaintiff and defendant Brown spoke about the situation in Syria and the human suffering occurring there. Afterwards, Brown solicited an investment from plaintiff to make a documentary motion picture about the Syrian refugee crisis. Brown represented that the investment would be used by his company, defendant Ignite, "to fund the filming and production of the Documentary, for which Brown had high goals, including eventual submission to the Oscars in 2016." In June 2016, plaintiff and Ignite signed an investor agreement, and plaintiff made an investment of $150,000. Production was scheduled to take place in 2016, and the film's release was scheduled for 2017.

In April 2017, Brown told plaintiff the film was in the production phase and requested additional funding. In reliance on this representation, plaintiff made an additional $30,000 investment. Brown later represented in December 2017 that production was almost finished. Whenever plaintiff requested to see progress of the film, however, defendants were evasive, claimed to have lost an initial set of footage, and showed him only short clips that were raw and not ready for an audience.

Plaintiff alleges that no "significant" work on the documentary has occurred, and that defendants never had any intention of making the documentary. Instead, Brown has used the invested funds for his own purposes, including the promotion of his image and work on projects unrelated to the documentary or to Ignite. Plaintiff further alleges that a cinematographer hired by defendants to work on the documentary has not been paid for his work, and that the cinematographer believes he owns the right to any footage he has shot, putting the entire project in jeopardy.

The Causes of Action

Plaintiff's first cause of action for breach of contract alleges in relevant part that defendants were required under the investor agreement to film and produce the documentary, that a timeline was set for production to occur in 2016 and for release of the film in 2016 or 2017 at the latest, but that defendants failed to perform their contractual obligations, as "no significant work" has taken place on the documentary.

In the second cause of action for breach of the covenant of good faith and fair dealing, plaintiff alleges in relevant part that defendants "were required to film and produce the Documentary" but that they "did not act in good faith" and "did not perform under the contract and never had any intention to do so. Instead, they used Plaintiff's investment for Brown's own purposes, including his unrelated self-promotion and work on unrelated projects," and this unfairly interfered with plaintiff's right to receive the benefit of having the documentary made.

In the third cause of action for fraud, plaintiff alleges in relevant part that defendants falsely told him they would use his investment for filming and producing the documentary, with production to finish in 2016 and release to occur in 2017, but at the time they made these representations, they had no intention of using plaintiff's investment for such purposes, as evidenced by the fact that no significant work has been done on the film. Plaintiff further alleges that defendants solicited additional funds from him by falsely representing that the documentary was in the production phase, when in fact no significant work had been completed. Defendants allegedly never intended to use plaintiff's investments for completing the production phase, as evidenced by Brown's use of the money on self-promotion and projects unrelated to the documentary.

In the fourth cause of action for false promise, plaintiff alleges in relevant part that defendants promised to use his investment to film and produce the documentary, but they had no such intention; rather, they intended that plaintiff would rely on their promise so that they could use his money for promoting Brown's personal image and working on projects unrelated to Ignite. Plaintiff alleges defendants have not performed any significant work toward the documentary.

In the fifth cause of action for violation of the UCL, plaintiff alleges in relevant part that defendants violated the UCL by misrepresenting their intention to use plaintiff's investment to film and produce the documentary while not performing any significant work on the film. Plaintiff alleges that defendants used his investment funds for promoting Brown's personal image and on products unrelated to Ignite and the documentary.

In the sixth cause of action for conversion, plaintiff alleges in relevant part that he invested money into the documentary with the understanding that it would be used for filming and production, but that defendants never intended to film and produce the documentary. Plaintiff alleges that because no substantial work has been completed, defendants have no lawful claim to plaintiff's money and have intentionally and substantially interfered with his property by refusing to return his investment after he demanded it.

Finally, in the seventh cause of action for unjust enrichment, plaintiff alleges in relevant part that defendants received a total of $180,000 from him as investment in the documentary, but that they have failed to perform any significant work on the documentary and have wrongfully and fraudulently kept the money for Brown's own personal uses.

The Anti-SLAPP Motion

Defendants filed an anti-SLAPP motion to strike plaintiff’s complaint in its entirety, or alternatively, any offending causes of action or allegations therein.

Defendants argued the complaint arises out of acts in furtherance of their right of free speech in connection with an issue of public interest, namely, their newsgathering activities for the documentary on the Syrian refugee crisis. Defendants further argued that plaintiff could not demonstrate minimal merit on his claims because (1) the entire action is subject to an arbitration provision; (2) plaintiff's allegations are contradicted by the investor agreement and the evidence; and (3) the evidence establishes that substantial progress was made towards initiating and completing the film.

The trial court denied the motion at the first stage of the anti-SLAPP analysis, concluding plaintiff's causes of action did not arise out of acts in furtherance of defendants' protected speech, but rather, "are based on the failure to do acts in furtherance of the right of free speech. Breaching the agreement by failing to make the film does not ‘help to advance [the rights of free speech] or assist in the exercise of that right.’ "

Defendants appealed.

DISCUSSION

The anti-SLAPP statute authorizes a special motion to strike claims arising from any act "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." ( § 425.16, subd. (b)(1).) This law "allows defendants to request early judicial screening of legal claims targeting free speech or petitioning activities" ( Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 880–881, 249 Cal.Rptr.3d 569, 444 P.3d 706 ( Wilson )), and its provisions must be construed broadly ( § 425.16, subd. (a) ). We review de novo the decision to deny an anti-SLAPP motion. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 325–326, 46 Cal.Rptr.3d 606, 139 P.3d 2.)

Resolution of an anti-SLAPP motion involves two steps. First, the moving defendant must show that the challenged claim or claims arise from the defendant's constitutionally protected free speech or petition rights. ( Baral v. Schnitt (2016) 1 Cal.5th 376, 381–382, 396, 205 Cal.Rptr.3d 475, 376 P.3d 604 ( Baral ).) A defendant need only make a prima facie...