Simmons v. Bauer Media Grp. United States, LLC

• Decision Date: 21 May 2020
• Docket Number: B296220
• Citation: 50 Cal.App.5th 1037,263 Cal.Rptr.3d 903
• Court: California Court of Appeals Court of Appeals
• Parties: Richard SIMMONS, et al. Plaintiffs and Respondents, v. BAUER MEDIA GROUP USA, LLC, Defendant and Appellant.

50 Cal.App.5th 1037

263 Cal.Rptr.3d 903

Richard SIMMONS, et al. Plaintiffs and Respondents,

v.BAUER MEDIA GROUP USA, LLC, Defendant and Appellant.

B296220

Court of Appeal, Second District, Division 4, California.

Filed May 21, 2020

Davis Wright Tremaine, Eric M. Stahl, Cydney Swofford Freeman, Los Angeles, and Elizabeth A. McNamara, for Defendant and Appellant.

Johnson & Johnson, Neville L. Johnson and Ronald P. Funnell, Beverly Hills, for Plaintiffs and Respondents.

CURREY, J.

Defendant and appellant Bauer Media Group USA, LLC, an entertainment magazine publisher, appeals from the denial of its special motion to strike the first amended complaint of plaintiffs and respondents Richard Simmons and Teresa Reveles (i.e ., an anti-SLAPP motion under Code of Civil Procedure section 425.16.).¹

The well-known Simmons describes himself as "a health and fitness guru, motivational life coach, comedian, and actor." Reveles is Simmons's live-in caretaker. By driving him in her car, Reveles also serves as Simmons's "exclusive method of transport." Simmons and Reveles sued Bauer after discovering that Scott Brian Mathews, a private detective hired by Bauer, unlawfully attached an electronic tracking device to Reveles's car. They also sued Mathews and Mathews's sole proprietorship, a detective agency called LA Intelligence.² Asserting Mathews's use of the tracking device was within the course and scope of his employment by Bauer — something Bauer vehemently denies — the first amended complaint alleges various causes of action seeking a statutory penalty and damages arising from the use of that device.

We conclude Bauer failed to demonstrate the conduct at the heart of the lawsuit — the unlawful use of the tracking device — is, as Bauer contends, "conduct in furtherance of its exercise of the right of free speech in connection with issues of public interest[.]" (See § 425.16, subd. (e)(4).) We therefore affirm the denial of Bauer's anti-SLAPP motion.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

In 2014, Simmons suddenly withdrew from the spotlight and has since intentionally avoided appearing in public. On April 18, 2017, Reveles drove Simmons to Cedars-Sinai Medical Center, where he was admitted. Simmons was discharged from the hospital on April 20, 2017. An extensive media presence outside the hospital during his stay helped fuel speculation over the reasons for his hospitalization.

Bauer owned the tabloid In Touch Weekly at the time.³ Through the tabloid's editor, Bauer hired Mathews and LA Intelligence. On his website, Mathews advertises his agency's "primary" reliance on "surveillance" to "solve cases," including the "use [of] the most state-of-the-art video equipment and GPS tracking devices." Mathews's invoice indicated the service he provided to Bauer consisted of 12 hours of surveillance at Cedars-Sinai Medical Center on April 18, 2017.

Months later, an electronic tracking device, traceable to Mathews, was found on Reveles's car. The device had been monitoring her travel since Simmons's hospitalization. Mathews was charged with two counts of unlawfully using an electronic tracking device in violation of Penal Code section 637.7, subdivision (a).⁴ He subsequently entered a negotiated plea of no contest to two amended counts of vehicle tampering in violation of Vehicle Code section 10852,⁵ and was placed on three years of probation. The remaining counts were dismissed.

B. First Amended Complaint

Simmons and Reveles filed a complaint against Mathews in early June 2018 and a first amended complaint for six causes of action in early July, adding LA Intelligence and Bauer as defendants. The first amended complaint alleges Mathews is personally liable and Bauer is vicariously liable for (1) violating Penal Code section 637.7, pursuant to a private right of action under Penal Code section 637.2, (2) invasion of privacy (intrusion), (3) physical invasion of privacy in violation of Civil Code section 1708.8, subdivision (b),⁶ (4) trespass and (5) trespass to chattels. A sixth cause of action asserts Bauer is liable for the negligent hiring and supervision of Mathews. The unlawful placement and use of the tracking device is the conduct forming the gravamen of each cause of action.

C. Anti-SLAPP Motion and Trial Court's Ruling

Bauer filed a special motion to strike the first amended complaint in its entirety under the anti-SLAPP statute. In its anti-SLAPP motion, Bauer argued (1) the causes of action in the first amended complaint are issues of public interest and protected under section 426.15 because they "arise solely from its newsgathering conduct related to celebrity fitness guru Richard Simmons’ [sic ] abrupt and well-publicized retreat from public view in 2014, and his subsequent hospitalization in 2017"; (2) Mathews acted as an independent contractor when he unlawfully deployed the tracking device without Bauer's knowledge and consent; and (3) Bauer had no reason to suspect Mathews would engage in such conduct.

In support of the motion, Bauer submitted declarations of Mathews and Chris Myers, the former editor of In Touch Weekly , who hired Mathews. Both stated Mathews's only assignment was to photograph Simmons leaving Cedars-Sinai Medical Center on April 18, 2017 for a potential news story; no photographs were taken; and no one at Bauer or In Touch Weekly told Mathews to attach an electronic tracking device to Reveles's car. Meyers also declared In Touch Weekly elected not to print a story about Simmons's hospitalization.

In opposition to the motion, Simmons and Reveles argued (1) Bauer's and Mathews's violation of Penal Code section 637.7 gave rise to the six causes of action, and this unlawful misconduct is not protected under section 425.16 ; (2) Bauer is vicariously liable for the intentional tortious acts committed by Mathews; and (3) Bauer's negligence in hiring and supervising Mathews is a question of fact for the jury.

The trial court denied the anti-SLAPP motion. Bauer filed a timely notice of appeal.

DISCUSSION

A. Anti-SLAPP Statute and Standard of Review

A SLAPP suit "seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055, 39 Cal.Rptr.3d 516, 128 P.3d 713.) "The Legislature enacted [Code of Civil Procedure] section 425.16," known as the anti-SLAPP statute, to provide "for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315-316, 86 Cal.Rptr.3d 288, 196 P.3d 1094.) The statute is to "be construed broadly." ( § 425.16, subd. (a).)

Section 425.16 identifies four categories of protected conduct. The fourth or catch-all category, at issue here, is "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." ( § 425.16, subd. (e)(4).)

"We review de novo a trial court's decision on an anti-SLAPP motion. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788, 249 Cal.Rptr.3d 295, 444 P.3d 97.) The anti-SLAPP statute requires a two-step process: ‘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 .... 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.’ (Baral v. Schnitt (2016) 1 Cal.5th 376, 396, 205 Cal. Rptr. 3d 475, 376 P.3d 604....) In making these determinations the court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ( § 425.16, subd. (b)(2).)" (Briganti v. Chow (2019) 42 Cal.App.5th 504, 508, 254 Cal.Rptr.3d 909.)

B. The First Amended Complaint Does Not Fall Within the Anti-SLAPP Statute

Bauer contends it is entitled to protection under the anti-SLAPP statute because the first amended complaint arises from Bauer's conduct in furtherance of the right to report the news. According to Bauer, hiring an independent contractor to photograph Simmons for a potential news story constitutes " ‘conduct in furtherance of the exercise of ... the constitutional right of free speech in connection with an issue of public interest[,]’ " namely, a celebrity's hospitalization following his well-publicized disappearance from public life.

Bauer reasons it is entitled to the same protection under section 426.15 that has been afforded other media defendants. To support this reasoning, Bauer relies principally on this court's decision in in Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 1 Cal.Rptr.3d 536 (Lieberman ) as "squarely on point." In Lieberman , the plaintiff sued a television network for violating Penal Code section 632, after it aired a news report based on secret audio recording excerpts identifying him as a physician who improperly prescribed controlled substances. (Id. at p. 161, 1 Cal.Rptr.3d 536.) Penal Code section 632 prohibits the surreptitious recording of confidential communications without the parties’ consent. The plaintiff alleged the audio recordings were unlawfully made without his knowledge or consent during office visits with network personnel or agents posing as patients. (Id. at pp. 161-162, 1 Cal.Rptr.3d 536.) A different panel of this court concluded that issuing...