Kazan, McClain, Satterley & Greenwood 6 a 8 9 ‘AProtesional Law Corpornon a 2 23 24 25 26 27 28 Steven Kazan, Esq. (C.S.B. #46855) David M. McClain, Esq, (C.S.B. #54085) in A. Rivamonte, Esq. (C.S.B. #232663) irivamonte@kazanlaw.com KAZAN, McCLAIN, SATTERLEY & GREENWOOD A Professional Law Corporation Jack London Market 55 Harrison Street, Suite 400 Oakland, California 94607 Telephone: (510) 302-1000 Facsimile: (510) 835-4913 Leon Friedman, Esq. (Admitted Pro Hac Vice) 148 East 78th Street New York, New York 10075 ‘Telephone: (212) 737-0400 vs. ATLAS ENTERTAINMENT, INC, et al., Defendants, Date: 13689082 © ORIGIN, FILED California Seng tm nn MAR 17 2015 “Ake Attomeys for Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES PAUL BRODEUR, No. BCS62288 Plaintiff, PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS? SPECIAL MOTION TO STRIKE PLAINTIFF'S COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 April 1, 2015 8:45 am, 14 Hon. Terry A. Green) October 30, 2014 Not Yet Set Plaintiffs Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to SuikeKazan, McClain, Satterley & Greenwood a + Oskand, Calfomin 94607 (610) 302-1000 + Fax: (510) 835-4913 + wrwwcharanlasrcom te 400 Jack London Macket + 55 Havin Ste we ao TABLE OF CONTENTS Page 1. Introduction. IL Statement of facts. se 2 ‘A. Background on Mr. Brodeur. 2 B. The movie. 2 C. The complain Il. Discussion. A. Applicable legal standards. = B. The acts underlying Mr. Brodeur’s claims do not involve a protected issue of public interest. : . 1. Defendants’ authorities are inapposite. C. There is a reasonable probability that Mr. Brodeur will prevail on his claims against defendants, : D. Each of Defendants’ claims lack merit. 1, The flawed “Fiction Defense.” 2 ‘The equally flawed “Ditzy Defense.” 3. The statement about Mr. Brodeur can reasonably be interpreted as stating actual facts sn a vs 4. None of Defendants’ cases support their position here, 14 IV. Conclusion... veo i Plaintiff's Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to StrikeKazan, McClain, Satterley & Greenwood fu SLB d TABLE OF AUTHO! FEDERAL CASES Farah v, Esquire Magazine, (D.C. Cir. 2013) 736 F.3d 528... Feller v, Houghton Mifflin Co., (2d Cir. 1966) 364 F.2d 650... Hilton v, Hallmark Cards, (Oth Cir. 2009) 599 F.3d 894.. Masson v. New Yorker Magazine, Ine. (1991) 501 US. 496, 1,9, 10,11 |Milkovich v. Lorain Journal Co., (1990) 497 U8. 1 12 Pring v. Penthouse Internat., Ltd, (10th Cir. 1983), 695 F.2d 438., 1S Rosenblatt v. Baer, (1966) 383 U.S. 75.. 12 CALIFORNIA CASES Arce v, County of Los Angeles, (2012) 211 Cal.App.4th 1455... csmcn Bailey v, Brewer, 2011) 197 Cal Appatth 781 .ncnrnnnonennn Baker v, Los Angeles Herald Examiner, (1986) 42 Cal.3d 254. see Bates v. Campbell, (1931) 213 Cal, 438... Bentley Reserves, LP. v. Papaliolios, (2013) 218 Cal.App.4th 418... Bindrim v. Mitchell, (1966) 92 Cal.App.3d 61 Campanelli v. Regents of the U. of Cal., (1996) 44 Cal. App. 4th 572.... City of Cotati v. Cashman, 2012) 29 Cal 4th 69... 1689082 i Plaintiff's Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to StrikeKazan, McClain, Satterley & Greenwood Califonia 94607 ‘A Protesion] Law Compornion son Make Jack. Ss Commonwealth Energy Corporation v. nestor Daa Exchange, (2003) 110 Cal. App.4th 26... Dyer v. Childress, (2007) 147 Cal. App4th 127... assim, Equilon Enterprises, LLC v. Consumer Causes, Inc., (2002) 29 Cal.4th $3. . oe) Forsher v. Bugliosi, (1980) 26 Cal.3d 792., Gantry Construction v. American Pipe and Construction Co. (1975) 49 Cal. App.3d 186... . Guglielmi v. Spelling-Goldberg Productions, (1979) 25 Cal 3d 860... 7 Hughes v. Hughes, (2005) 122 Cal.App.4th 931 Ingels v, Westwood One Broadcasting Services, Inc., (2005) 129 Cal-App.4th 1050... Krinsky v. Doe, (2008) 159 Cal. App.4th 1154... Lieberman v. KCOP Television, Ine. (2003) 110 Cal.App.4th 156. 8,9 Navellier v, Sletten, (2002) 29 Cal.4th 82... Old Republic Construction Program Group v. Boccardo Law w Firm, Group (2014) 230 Cal.App.4th 859 = ‘Quality Old Time Service, Inc., (2004) 120 Cal. App.4th 90. ‘Rusheen v. Cohen, (2006) 37 Cal.4th 1048, [San Francisco Bay Guardian v, Superior Cl, (1993) 17 Cal. App 4th 655, Seelig v, Infinity Broadcasting, (2002) 97 Cal.App.4th 798...... Summit Bank v. Rogers, (2012) 206 Cal. App.4th 669. Tamkin v. CBS Broadcasting, Inc., (2011) 193 Cal.App.4th 133. rato Plaintiffs Memorandum of Points & Authorities in Support of Opposition to Defendanis Motion to SuikeKazan, McClain, Satterley & Greenwood (610) 302-1000 a i Nygard v. Uusi-Kerttula, (2008) 159 Cal.App.4th 1027... Weinberg v. Feisel, (2003) 110 Cal.App.4th 1122... Wilcox v. Superior Ct., (1994) 27 Cal. App.4th 809. World Fin. Group, Inc. v. HBW Ins, & Fin. Services, (2009) 172 Cal App.4th 1561.. Yorty v. Chandler, (1970) 13 Cal.App.34 467... OUT-OF-STATE CASE ‘New Times, Inc. v, Isaacks, (Tex. 2004) 146 $.W.34.144 cs STATUTES Code of Civil Procedure § 425.16(b).. Code of Civil Procedure § 425.16... ‘39082 ~ Plaintiffs Memorandutn of Points & Authorities in Support of Opposition to Defendants Motion to SWiK2 3 6 a & é g Qo g a 3 g i é a a A Le i i iE il 2 10) 835-4913 + wwkaranlw com 10) 302.1000 + tax I. Introduction, The film in this case, American Hustle, attributed a false scientific statement to plaintiff Paul Brodeur, a noted expert in the field of electromagnetic effects on humans. The film depicted a dispute between a husband and wife where the wife claimed that Mr. Brodeur had written an article that claimed that microwave ovens “take all the nutrition out of food.” He never made any such statement. Indeed, he was quoted as saying the opposite. The misattribution of a false statement to a noted expert in his or her field can constitute libel because the statement “could injure a scholar’s reputation.” (Masson v. New Yorker Magazine, Itc, (1991) 501 U.S. 496, 524.] Defendants claim that the movie is subject to the anti-SLAPP statute (Code of Civil Procedure section 425,16). That statute requires Defendants to first show that the complaint’s ‘causes of action arose from an act done in furtherance of an exercise of a protected activity. Defendants claim that they have met that burden because the movie, as a whole, was based on a public event, namely the Abscam scandal. They are wrong. Instead, the focus must be on the particular statement that triggered the lawsuit, not the entire body of the work in which the ‘misstatement appeared. [Dyer v. Childress (2007) 147 Cal.App.4th 1273,1279.] Clearly, the statement attributed to Mr. Brodeur concerning microwave ovens has no relation whatever to the claimed protected activity of public interest (Abscam scandal). The motion should be denied. If Defendants somehow met their burden, this Court next determines whether Mr. Brodeur can demonstrate a likelihood of prevailing on the claims. The test for libel or false light invasion of privacy is whether a reasonable person (the average reader)could conclude that a defamatory meaning could reasonably be attached to the statement at issue, ‘That test could easily be met here because the movie attributed a false statement to Mr. Brodeur, who is and has been a noted expert in the environmental field, that is i ijurious to his reputation. It is up to a jury to make that final determination. The fact that the statement appeared in a fictional movie does not alter the rule. Accordingly, Defendants’ motion should be denied. ' “Defendants” collectively refer to defendants Annapuma Pictures, Atlas Entertainment, Inc., and Columbia Pictures Industries, Inc. 649082 1 Plaintiffs Memorandum of Points & Authorities in Support of Opposition o Defendants’ Motion to Stike‘A Profesional Law Corperaion Kazan, McClain, Satterley & Greenwood iforia 94607 {G10) 302.1000 » Fax: (S10) 835-4913 + wowwhazaneweom i ‘ek Landon Maer IL, Statement of facts, A. Background on Mr. Brodeur. Mr. Brodeur is a well-known author in the environmental field whose writings have exposed the health hazards of various electrical devices and other household items. [Friedman Decl. at $9 2-8 and Ex. A.] For example, he wrote four books on asbestos-related health hazards, and the articles on which the books were based won several awards and a Guggenheim Fellowship. [/d.] His other articles helped bring about the removal of hazardous substances in hhouschold detergents, wamed that cancer-producing chemicals had become major contaminants in drinking water, and called attention to the carcinogenic and reproductive hazards of anesthetic gases to anesthesiologists and nurse anesthetists. [ld.] Mr. Brodeur has also authored pioneering and award-winning articles on the health hazards associated with exposure to microwave radiation, [Jd.] Those articles were the basis for his book The Zapping of America, recognized as lone of the notable books of 197 by the New York Times. [Id.] I is apparent from Mr. Brodeur's accomplishments in the field of environmental dangers that the community holds him in high esteem, {/d.] That reputation has been undermined by misquoting him in a movie about an accepted and acknowledged envi nmental issue. B. The movie. American Hustle is loosely based on the Abscam scandal and dealt, in part, with the strained relationship between a married couple, Rosalyn Rosenfeld (Jennifer Lawrence) and Irving Rosenfeld (Christian Bale). (Complaint, Ex. A to Rivamonte Decl, at 47-8.) The movie recounts Irving’s background, his relation with his wife and mistress, and his involvement with the government scandal that “almost incidentally inspired the story.” [Dargis, Big Mair, Bad Scams, ‘Motormouths, N.Y. Times (Dec. 13, 2013), Ex. B to Rivamonte Dec!.] ‘The New York Times reviewed the film and described its “chatter” as “fast, dirty, intemperate, hilarious and largely in service to the art of the con, specifically the Abscam scandal that almost incidentally inspired the story.” [Jd.] The review further states that: ‘The movie tracks the scandal primarily from the points of view of Irving and Sydney, whose he-said, she-said voice-overs are interspersed with adenoidal dispatches from his stay-at-home wife, Rosalyn (Jennifer Lawrence). After setting the contemporary scene, 13689082 2 PlaintifPs Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion o StrikeKazan, McClain, Satterley & Greenwood A Profesional Law Corpora ite 400 + Oakland (G10) 835.4913 » wawhazalaweom (610) 3021000 + Jack London Market Mr. Russell cuts back to Irving’s childhood, sketching in the con man’s background with brief, funny scenes and a devil-may-care take on criminality that pointedly mirrors the trajectory of Henry Hill in Martin Scorsese’s “Good Fellas.” {Ud.] As far as accurately depicting what happened in the Abscam scandal, that is not what the movie aimed to accomplish, Mr. Russell [the director] doesn’t seem all that interested in veracity, and the movie opens with a playful assurance that “some of this actually happened,” a declaration that feels calculated to block off point objections that some of it didn’t happen. Details have been changed, and everyone, as is often the case in movies, looks younger and prettier, less lumpy and beaten down by life than the original players, even Irving and his magnificently tragic, trumped-up hai. ld) ‘The review in the Los Angeles Times noted that American Hustle: [Blegan life with very different expectations. It started with a straight-ahead true ‘rime script by Bric Warren Singer (Russell’s co-screenwriter) that dealt specifically with the details of Abscam, a late 1970s FBI sting operation that led to bribery convictions for a U.S. senator and several members of the House. Using that reality as a taking off point, Russell became interested in constructing fictitious characters and situations inspired as much by his imagination and inclinations as the actual Abscam shenanigans. “Some of this actually happened,” is the line that appears on screen (o start things off, and it sets the tone perfectly. [Turan, At the Movies: Reviews, L.A. Times (Dec. 13, 2013), Ex. C to Rivamonte Decl.} C. The complaint. ‘The complaint relates to certain statements made in American Hustle about Mr. Brodeur.” [Complaint, Ex. A to Rivamonte Decl, at ff 1-34.] That movie has “nothing to do With the environmental issues examined by Mr. Brodeur.” [/d. at 7.] In the course of the film, there is an antagonistic encounter between the Rosenfelds. [d. at '117-9.] Ina scene in the movie, the couples are arguing over a microwave oven given to Irving bya New Jersey Mayor, Carmine Polito, whom Irving is attempting to defraud. [Jd.] Rosalyn places some metal into the machine and it explodes. [/4.] Rosalyn then has an argument with her ? The complaint’s allegations must be accepted as true on a motion to dismiss. [Arce v. County of Los Angeles (2012) 211 Cal.App.4" 1455, 1471 (“In line with California practice, the court accepts the allegations in the complaint as true and construes the allegations, and any reasonable inferences that may be drawn from them, in the light most favorable to the plaintiff"),] 1st9082 3 Plaintiff's Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to StrikeKazan, McClain, Satterley & Greenwood toe te 400 + Osktnd,C * werwkaanlae (G10) 302.2000 + Faw G10) 8354915, Jack London Mache + 55 (asian Sec 10 u 12 13 14 15 16 7 18, 19 20 ai 22 2B 24 25 26 27 28 [husband about the microwave oven: 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 gave me. ROSALYN: Oh, Carmine, I want the one that Carmine gave me! . ... You want to 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 ovens. You know, I read that it [the microwave oven] 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. (She holds up a magazine) Look, by Paul Brodeur, (Irving takes the magazine and reads from it.) ROSALYN: Bring something into the house that’s gonna take all the nutrition out of our food and then light our house on fire. Thank God for me. Ud; see Defendants’ Gordon Decl. at $10.) The film clearly shows, and the complaint alleges, that Rosalyn’s husband believes her comment about Mr. Brodeur’s alleged statements, [Complaint, Ex. A to Rivamonte Decl. at 9.] ‘The complaint alleges: In this sequence, Rosalyn hands her husband the magazine which allegedly contains an article by Mr. Brodeur, declaring that cooking in a microwave oven allegedly takes all the nutrition out of food. Irving then spends atleast ten seconds reading it - a very long time in a film ~ and even adjusts his eyeglasses to indicate that he is reading it. During this time and afterward, he remains silent. It is obvious that he accepts that the article contains Mr. Brodeur’s statement that food cooked in the microwave oven “takes all of the nutrition out of our food.” Ud) Defendants have readily acknowledged that Mr. Brodeur is an acknowledged expert on the health hazards associated with power lines, electric currents, and microwave emissions. (See Exhs. A-E to Defendants’ Gordon Decl.) But Mr. Brodeur has never written an article or ever declared in any way that a microwave oven “takes all of the nutrition out of food.” Indeed, he has publicly stated the opposite. In an interview in People Magazine in 1978, Mr. Brodeur was asked if there is “any danger in eating food cooked by microwaves?” Mr. Brodeur answered, “None that is known.” [Jerome, The Microwave Menace is Zapping Us All, Warns Writer Paul Brodeur, People Magazine (Jan. 13619082 4 Plaintiff's Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to StrikeKazan, McClain, Satterley & Greenwood a g ‘f 407 aerion Stet Suite 400 * Oakland, Cai 1000 + Fay (310) 835-4913 » worwkacaniacom g 10 u 12 13 4 16 7 18 19 20 2 22 23 4 25 26 27 28 30, 1978), Ex. D to Rivamonte Decl.) Further, the FDA and the World Health Organization have declared that microwave ovens do not reduce the nutritional value of food. Indeed microwave ‘cooking may allow food to keep more of their vitamins and minerals, “because microwave ovens can cook more quickly and without adding water.” Defendants’ Gordon Decl. at $ 12-13.] Ml, Discussion. A. Applicable legal standards. A strategic lawsuit against public participation (“SLAPP”) “seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances.” (Rusheen v. Cohen (2006) 37 Cal.4" 1048, 1055-1056,] The anti-SLAPP statute, ‘Code of Civil Procedure section 425.16, provides “a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” [/d.] The core purpose of the anti= SLAPP statute is “to remedy a very specific pattern by which contestants in the arena of public affairs were using meritless litigation as a device to silence and punish their adversaries.” [Old Republic Const. Program Group v. Boccardo Law Firm Group (2014) 230 Cal.App.4th 859, 876- 877 (original italics).] This protection extends to “all essential petitioning activity, i., statements ‘made in, or concerning official proceedings, including lawsuits.” [4] “[BJut in order to avoid ‘over inclusiveness ~ or any more overinclusiveness than was necessary — it extended this special protection to those forms of conduct only to the extent that they implicate publi issues. [ld] Section 425.16 establishes a two-part test to determine whether a lawsuit or cause of action should be disposed of as a SLAPP suit. [Navellier v, Sletten (2002) 29 Cal.4* 82, 88.] “Only a ‘cause of action that satisfies both parts of the anti-SLAPP statute — i.e, that arises from protected speech or petitioning and lacks even minimal merit - is a SLAPP, subject to being stricken under the statute.” [Jd at 89.] First, and “[m]ost importantly, section 425.16 requires every defendant seeking its protection to demonstrate that the subject cause of action isin fact one ‘arising from the defendant's protected speech or petitioning activity.” [Equilon Enterprises, LLC v. Consumer Causes, Inc. (2002) 29 Cal.4th 53, 66 (citing Code Civ. Proc. § 425.16(b)),] Hence, the defendant ‘bears the initial burden of showing that the cause of action arose from an act done in furtherance 49082 7 PlaintifPs Memorandum of Poinis & Authorities in Support of Opposition to Defendants’ Motion to Stake3 3 g 8 & 38 e g & c 2 ¢ a i E 3 i | ite 400 + Oakland, Cafomia 94607 ) 835-4913 + ww haranawcom Jack London Matket + 35 Harsson$ (610) 3021000 = ee ao 10 n 2 3 14 16 7 18 19 20 2 22 23 24 25 26 27 28 of an exercise of a protected activity. (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 788.} Ifthe defendant fails to meet this burden, “then the motion must fail, even if the plai stated no [cognizable claim.” (Hilton v. Hallmark Cards (9" Cir, 2009) $99 F.3d 894, 901-902.] Second, if the defendant meets its initial burden, then the court must determine whether the plaintiff can demonstrate a likelihood of prevailing on the claims. [Rusheen, 37 Cal 4" at 1056.] To do this, the plaintiff must demonstrate that “the complaint is legally sufficient and supported by 4 prima facie showing of facts to sustain a favorable judgment ifthe evidence submitted by the plaintiff is credited.” [Wilcox v. Superior Ct. (1994) 27 Cal.App.4th 809, 823 (disapproved on other grounds in Eguilon, 29 Cal.4" 53),] B. The acts underlying Mr. Brodeur’s claims do not involve a protected issue of public interest. Defendants assert that if there is any conceived public purpose in some section of the ‘movie, no cause of action will lie with respect to any statement made in the film, no matter how ‘unrelated to the subject matter of the film, (Defendants’ Memorandum of Points and Authorities (“MPA”) at 6:25-7:6.] But no authority supports that interpretation of the anti-SLAPP statute. To the contrary, California authorities have made plain that the focus under the first prong, of the anti-SLAPP statute is on the specific words that formed the basis for the lawsuit, rather than the First Amendment basis of the entire work in which the words appeared. [Dyer, 147 Cal. App.4" at 1278-1279; see also City of Cotati v. Cashman (2012) 29 Cal.4" 69, 78; World Fin, Group, Inc. v. HBW Ins, & Fin, Services (2009) 172 Cal App.4" 1561, 157 foore v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4" 90, 111,] Dyer is on point. In Dyer, a movie company released a fictional film entitled Reality Bites, (Dyer, 147 Cal.App.4" at 1276,] The film dealt with the problems of Generation X at the start of the 1990s, arguably an issue of public interest. [/d.] But the lawsuit had nothing to with that issue. Rather the main character in that movie, Troy Dyer, is also the real name of the plaintiff. [Ud] The film’s screenwriter was Mr. Dyer’s classmate in film school. [d. at 1276.) Mr. Dyer filed a suit for defamation, false light invasion of privacy, and other causes of action based on unflattering representation of the character bearing his name in the movie. [/d. at 1277.) The film st9082 ‘6 Plaintiffs Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to SirikeKazan, McClain, Satterley & Greenwood -AProfesions Law Corporation fu be ute 400 + Oakland, Calfomia 94607 4913» wowhazanlaw.com 10) 8 Jack London Market * 55 Haein Stic (G10) 302.1000 = ween Soe raa defendants filed a motion to strike under the anti-SLAPP statute law because the film’s broad topics qualify as matters of public interest. [/d. at 1280.] In language directly applicable to here, Dyer rejected the defendants’ argument and noted: In determining whether the anti-SLAPP statute applies in a given situation, (the court] analyzejs} whether the defendant's act underlying the plaintiff's cause of action itself was an actin furtherance of the right of petition or free speech. Accordingly, [the] focus [is] on the specific nature of the challenged protected conduct, rather than generalities that might be abstracted from it. Ua. at 1279 (citations omitted; original italics).] Because the Dyer defendants were unable to draw a connection between the movie's public-interest issue and Mr, Dyer’s defamation and false- light claims, Dyer affirmed the trial court’s order denying the motion to strike, [Jd. at 1284-1285.] Applying these principles, it is clear that the anti-SLAPP statute is inapplicable here, On the one hand, the specific conduct that forms the basis of the lawsuit is Mr. Brodeur's alleged comments about microwave radiation, which damaged his reputation, On the other hand, Defendants claim that the public-i terest topic addressed in Americdin Hustle is the Abscam scandal. [MPA at 6:25-28.] Because Defendants fail to draw any connection between the Abscam scandal and Mr. Brodeur's defamation and false-light claims, the motion should be denied. Defendants’ position stretches the anti-SLAPP law far beyond its purpose. Indeed, two of Defendants’ cited cases, Weinberg and Commonwealth Energy, rejected the application of the anti-SLAPP statute. [MPA at 5:14-16; Weinberg v. Feisel (2003) 110 Cal.App.4 1122, 1131 (“defamation of an individual is not protected by the constitutional right of feee speech”). In Commonwealth Energy Corporation v. Investor Data Exchange (2003) 110 Cal.App.4" 26, the appellate court rejected what it called the “synecdoche defense”: (Defendants raise] what might be called the synecdoche theory of public issue in the anti-SLAPP statute. The part is not synonymous with the greater whole. Selling an herbal breast enlargement product is not a disquisition on alternative medicine. Lying about the supervisor of eight union workers is not singing one of those old Pete Seeger union songs (e.g., “There Once Was a Union Maid”), And, in the case before us, hawking an investigatory service is not an economics lecture ‘on the importance of information for efficient markets. [Ud.at 35.} Similarly, misquoting an environmental expert on the dangers of microwave ovens is. not a discussion of the Abscam scandal. 13689082 1 Plaintiffs Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to SirikeKazan, McClain, Satterley & Greenwood Jack Londoa Masket * 55 larson Stet, Suite 400 + Oakland Caiforia 94607 S + Fane 610) 835-4913 + wortckaranltw-com (610) 302-1000 10 ul 12 1B 4 15 16 7 18 19 20 2 2 23 24 25 26 27 28 1, Defendants’ authorities are inapposite. In discussing the first prong of the anti-SLAPP statute, Defendants chiefly rely on three cases, all of which are inapplicable to the facts of this case. The first is Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4" 1027. [MPA at 6:13-14,] In Nygard, the plaintiff's former employee gave an interview with a Finnish magazine about his bad experience with his employer, accusing it of treating him badly and making him work around the clock, The employer then sued him for defamation and breach of the implied covenant of ood faith and fair dealing. The employee raised an anti-SLAPP defense which the court upheld, The court held that the interview was in a public forum (the magazine) and his treatment by the employer was an issue of “public interest.” (Nygdrd, 159 Cal. App.4™ at 1039-1044] ‘The second case is Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4" 133, [MPA at 7:3-4.] In Tamkin, a writer for CBS had used the names of the plaintiffs (as “placeholders”) in an early version of a television script for CSI: Crime Screen Investigation, When the Script was actually broadcast on television, different names were used. The couple sued for defamation and false light invasion of privacy based on that early use of their names. Tamkin emphasized that the “the creation and broadcasting of [the show] is an issue of public interest because the public was ‘demonstrably interested in the creation and broadcasting of [that show’s] episode, as shown by the posting of the casting synopses on various Web sites and the ratings for the episode.” [Tamkin, 193 Cal.App.4" at 143.} Tamkin also emphasized that the creative process that used the plaintiffs” real names in the early scripts constituted protected conduct under the First Amendment. [1d] This was so because “[aJn act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right.” [/d.] Unlike Nygard and Tamkin, Defendants’ use of Mr. Brodeur’s name in association with a statement he did not make in no way helped “advance” Defendants’ story about the Abscam. scandal. Tamkin is also distinguishable because Defendants have not pressed any argument that there is a connection between associating Mr. Brodeur’s identity with a false statement and any conceivable public interest in the film's creation, Neither case supports Defendants’ position here. Finally, in Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4" 156, reporters from 13649082 8 PI 's Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to Strike1 }]a local television station had secretly recorded conversations with a doctor who i properly 2'}| prescribed controlled substances to his patients, [MPA at 7:11-12.] He sued the station for 3}| violating a California law that barred such recordings. The station raised an anti-SLAPP defense, 4 || arguing that its investigation was a matter of public concen. ‘The court agreed that recording the 5}| doctor for later use in a program was protected by the anti-SLAPP law, but it rejected the defense 6|| because the doctor presented a prima facie showing that he will succeed on the merits. 7 Lieberman, 110 Cal.App.4" at 168,) The case has no bearing on the present situation? 8 C. There is a reasonable probability that Mr. Brodeur will prevail on his claims against defendants. 10 Even if Defendants somehow met their initial burden under the anti-SLAPP statute, the 11 |] Court should still deny the motion because there is a “reasonable probability” that Mr. Brodeur 12 | will prevail on one or more claims set forth in his complaint. Applying that standard, there is no 3 é i 13 |] basis for striking the complaint, even if this Court decided that the anti-SLAPP law applies. Here, Mr. Brodeur has alleged that misquoting him constitutes libel. Masson supports his position. That case holds that misquoting a scholar in a manner that damages his reputation q i constitutes libel. [Masson, 501 U.S. at 524.] In Masson, a New Yorker writer wrote an article about a noted psychoanalyst and Freud scholar, Jeffery Masson. [Ud at $00-501.] In many instances, the writer misquoted what he said or attributed statements to him which he did not say 8 8 : 5 é S a & g & é 4 g = é i ‘or omitted qualifications to what he had said. [/d.] Masson noted that under California law: * 20 {Libel is a false and unprivileged publication by writing ... which exposes any S person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned ou or avoided, or which has a tendency to injure him in his occupation, False : attribution of statements to a person may constitute libel, if the falsity exposes that ~ person to an injury comprehended by the statute, It matters not under California = Jaw that petitioner alleges only part of the work at issue to be false. “[T]he test of B libel is not quantitative; a single sentence may be the basis for an action in libel even though buried in a much longer text, 24 25 || [Id. at 09-510 (citations omitted).] Masson described two situations in which a false 26 |} ———__——___— > Defendants also cite Seelig v. Infinity Broadcasting (2002) 97 Cal. App.4" 798 (MPA at 6:22-24) 27l and Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129 Cal.App.4" 1050 (MPA at 2g |] 5:16-17). Neither case is relevant here. Loe e902 9 Plaintiffs Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to StrikeKazan, McClain, Satterley & Greenwood £u ' Lod 18354913 + warwckavanlaw-com 610) 302 Jack London Market + 55 Haron Stet Suite 409 Cakland, Calforsia 94607 Sy ea aw so /misquotation of an individual can constitute libel: AA fabricated quotation may injure reputation in atleast two senses, ether giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not. Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the ‘manner of expression or even the fact that the statement was made indicates a negative personal trait or an altitude the speaker does not hold. John Lennon once ‘was quoted as saying of the Beatles, “We're more popular than Jesus Christ now.” Supposing the quotation had been a fabrication, it appears California law could permit recovery for defamation because, even without regard to the truth of the underlying assertion, false attribution of the statement could have injured his reputation. Here, in like manner, one need not determine whether petitioner is or is not the greatest analyst who ever lived in order to determine that it might have injured his reputation to be reported as having so proclaimed. [Ud. at 511-512 (citation omitted),} Finally, Masson outlined why misquotation of an individual is not protected by the First Amendment: Were we to assess quotations under a rational interpretation standard, we would give journalists the freedom to place statements in their subjects’ mouths without fear of liability. By eliminating any method of distinguishing between the statements of the subject and the interpretation of the author, we would diminish to a great degree the trustworthiness of the printed word and eliminate the real ‘meaning of quotations. Not only public figures but the press doubtless would suffer under such a rule, Newsworthy figures might become more wary of joumalists, knowing that any comment could be transmuted and attributed to the subject, so long as some bounds of rational interpretation were not exceeded. We would il serve the values of the First Amendment if we were to grant near absolute, constitutional protection for such a practice. Ud. at $20] Hence, Masson is important here for four separate reasons: (1) it acknowledges that misquotation of an individual, in and by itself, could be the basis for a libel suit; (2) attributing false statements to a scholar that would cast doubt on his or her integrity “could injure a scholar’s reputation” and thus could be the basis for a libel suit; (3) the misquotation at issue here did not involve misstatements about Mr. Brodeur’s own reputation or actions (as in Masson) but was a direct misstatement of the governing science; and (4) Mr. Brodeur admittedly is, at the very. least, as well known in his field as Mr. Masson was in his field of psychoanalysis. [See Defendants’ Gordon Decl. at $9 5-7.] Here, the complaint alleges that American Hustle attributed an “untrue factual assertion” to 13689082 10. Plaintifs Memorandum of Points & Authorities in Support of Opposition lo Defendants’ Motion to Stike. 3 i 6, ae pe 34 eg gf g = € 3 i 7 a g z 5 : Jack London Math + a» ow u 12 € & q 3 3 16 W 02-1000 = 19 20 2 22 23 24 2s 26 27 28 Mr. Brodeur, asserting that he made a totally unsupportable scientific remark, with no scientific basis. (Complaint, Ex. A to Rivamonte Decl, at f 8-11, 22; Masson 501 U.S. at 511.] That remark, by a recognized expert in the field, would certainly lower his reputation, Also, atributing such a unsupportable statement to Mr. Brodeur, “indicates a negative personal trait,” that is that he is an incompetent scientific investigator. [/d.] Further, the complaint alleges that the statements were published with malice, “with a reckless disregard whether or not the statements were true and were made with the express intent to harm [Mr. Brodeur.” [1d.] Indeed, to attribute to a recognized expert in a certain field, statements that were contrary to the accepted knowledge in the field, would lower his reputation among reasonable persons in the community. If an expert in evolution, such as Stephen Jay Gould, was misquoted as saying that he now believes that God created the world six thousand years ago, his reputation as a scientist would be seriously damaged, If a noted astronomer, such as Car] Sagan, was misquoted as saying that he now betieves that the Sun revolves around the Earth, that would certainly undermine his reputation as well. The same is true here. As Defendants admit, Mr. Brodeur is a noted expert in the field of microwave radiation and electromagnetic waves and their effect on the human body. [See Exhs. A-E to Defendants’ Gordon Decl.) To misquote him as making a statement that had no scientific basis and that is known to have no scientific basis has “the same damaging effect as a defamatory statement about him” and constitutes libel. ‘The question then arises, why would Defendants use Mr, Brodeur’s name in connection with a scientifically untenable statement? Defendants could have used a fictional name or no name at all, Why use Mr. Brodeur’s name? The only conclusion one can draw is that Defendants recognized that Mr. Brodeur was an expert in the field of electromagnetic waves and their effect on human health. They then deliberately misused his name to serve as the basis for a dispute between Rosalyn and Irving about a totally unrelated issue, namely the effect of microwaves on the food that is being heated in them. They needed a name to give some verisimilitude to the dispute. So without a moment of research, they attribute a misstatement to him that was contrary to his enti body of work. At the least, the use of Mr. Brodeur’s name in that context constituted deliberate indifference to the true state of affairs. 1689082 ul Plaintiffs Memorandum of Points & Authorities in Support of Opposition to Defendants’ Maton to Stnke3 E & a a 3 & s g a i i 2 E : i : aston Stee, Suite 400 + Cakland California 94607 (510) 635-4913 + wanckavanlaw-com (610 3021000 = Jack London Macher + ‘The United States Supreme Court has noted the important public purpose served by enforcement of the libel laws, even when speech is involved, as it always is in such cases. In Milkovich v. Lorain Journal Co. (1990) 497 US. 1, the court noted that while it has recognized the First Amendment's “vital guarantee of free and uninhibited discussion of public issues,” it has. also “regularly acknowledged the ‘important social values which underlie the law of defamation,” ‘and recognized that ‘[s}ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation.” [Jd.at 22.) Further: The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being ~_a concept at the root of any decent system of ordered liberty. {Ua (quoting Rosenblatt v. Baer (1966) 383 U.S. 75, 86).] That principle must be applied here. D. Each of Defendants’ claims lack merit. Defendants proffer a variety of defenses in support oftheir anti-SLAPP motion, However, and as more fully discussed below, each of them lacks merit. 1 The flawed “Fiction Defense.” Defendants claim that the movie is fiction or a “docu-drama,” and thus any statement in the movie cannot be taken seriously. [MPA at 9:19-24.] If that is true, why should the anti-SLAPP Jaw apply at all if the movie was not to be taken seriously? ‘There are numerous cases in which libel suits have been brought against novels or motion pictures, even if they are labeled fiction. [See, eg., Bindrim v. Mitchell (1966) 92 Cal.App.3d 61, 78 (mere labeling of a book as being a “novel” in no way bars an action does not bar libel action); see also Fetler v, Houghton Mifflin Co, (2d Cir. 1966) 364 F.24 650 (claim that fictional character in novel is based on real person could be basis for libel suit)) Ifthe fact that a work was fictional was automatically a bar to a libel claim, none of these cases would be viable, But courts have upheld such claims. Thus the defense that “the movie is a work of fiction, not to be taken literally” cannot be accepted. 2. The equally flawed “Ditzy Defense.” The other defense is that Rosalyn is a “ditzy” and “emotionally unstable character” who makes unbelievable statements. [MPA at 9:22-24, 15:5-7.] The fact that a fictional character in a 13649082 2 Plaintiff's Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to StrikeKazan, McClain, Satterley & Greenwood Jack London Maket + 35 Hasson Stock, Suite 400 * Oakland, Cfo 94607 (610) 3021000 + Hay: (S10) 8354913 + wnwharanlnrcom ‘book or movie made a libelous statement does not insulate the film’s creators from a libel suit Defendants cite no law to support such a defense. What the defense means is that any time a publisher or movie company wants to defame a living person, all they have to do is present a “ditzy” person who can say anything about that person without any concer for possible legal ‘ction in the future, The “ditzy” defense cannot be decided at this stage of the proceeding. Itis up toa jury to make such a determination, Indeed, Rosalyn’s husband, who is not a “dit,” actualy adopted by his actions her comments about Mr. Brodeur's claimed statement, 3. The statement about Mr. Brodeur can reasonably be interpreted as stating actual facts, ‘The legal test for libel, defamation, and false light invasion of privacy has been described in many cases: [NJot every word of an allegedly defamatory publication has to be false and defamatory to sustain a libel action. . . Put another way, the statement is not considered false unless it “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” ..Or yet another way, “{i}€ any material part be not proved true, the plaintiff is entitled to damages in respect to that part.” [Bentley Reserves, L.P. v. Papaliolios (2013) 218 Cal.App.4" 418, 434 (citations omitted).] California courts in libel cases have emphasized that “the publication is to be measured, not so /much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader.” (Bates v. Campbell (1931) 213 Cal. 438, 441.] Another court has noted: “the test... is whether by reasonable implication a defamatory meaning may be found in the communication.” [Forsher v. Bugliosi (1980) 26 Cal.3d 792, 805-806.] The California Supreme Court has held that under the “totality of the Circumstances’ test,” the issue is “whether the average reader of .. . could have reasonably understood the alleged defamatory statement to be one of fact.” [Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 261.) Thus, in sum, the test is whether the average reader or reasonable fact finder could conclude, by reasonable implication, that a defamatory meaning could reasonably be attached to the work in question. A jury must make that decision unless, as a matter of law, no defamatory 13649082 B Plaintif's Memorandum of Points & Authorities in Support of Opposition to Defendants! Motion to StrikeKazan, McClain, Satterley & Greenwood Jack London Market + 55 lasson Steet, Suite 400 * Oakland, Califia 94607 Pelee toe S é g g = statement is present upon applying the above standard. ‘That standard is easily met here. The complaint pleads, and it is undisputed, that Defendants “published” American Hustle. (Complaint, Bx. A to Rivamonte Decl, at $f]2-6, 15- 34.] The movie made a statement “of and concerning” Mr. Brodeur. (Id, and at 8-11.) His name is used. [/d.] It was a statement of fact, not an opinion, that he had made the statement about microwave ovens. [/d.] And the average reader, moviegoer “could conclude” by “reasonable implication” that the movie was asserting that Mr. Brodeur did make an untenable scientific statement, [Jd.] That is a question that a jury must decide. 4. None of Defendants? cases support their position here. Defendants cite a series of cases in which libel cases were dismissed. [MPA at 11:27- 18:25.) None of them support Defendants’ posi mn here, Defendants assert that Films of Distinction v, Allegro Film Productions, Inc. (C.D. Cal. 1998) 12 Supp.2¢ 1068, held that “a movie audience has no ‘reasonable expectations’ of hearing assertions of fact when watching a fictional or farcical scene in a movie.” [MPA at 12:23-24,] ‘Nowhere in the case does the court make such a statement, The allegedly defamatory statement involved a claim that watching the Crime Channel could lead a person into committing a crime. As one of three-part test, the court agreed that the general tenor of the film and the context in which the allegedly defamatory statement was made negates any defamatory meaning. The court examined the use of rhetoric in the film, as well and the context in which the statement was made to determine that there was any defamatory meaning, But there was absolutely no assertion by the ‘court that there could be no defamatory statement in a fictional movie. ‘The other cases involve situations where truth was a defense. [MPA at 15:12-18 (Hughes v. Hughes (2005) 122 Cal.App.4” 931; Campanelli v. Regents of the U. of Cal. (1996) 44 Cal. App. 4" 572),] In another case, the offending statement was clearly a parody. [MPA at 12:5-7 (San Francisco Bay Guardian v. Superior Ct. (1993) 17 Cal.App.4” 655] The statements in two other cases were satire. [MPA at 12:8-10 (New Times, Inc. v. Isaacks (Tex. 2004) 146 $.W.3d 144) and 15:10-12 (Farah v, Esquire Magazine (D.C. Cit. 2013) 736 F.3d $28),} In another case, cartoons were the basis for the suit. (MPA at 12:12-14 (Yorty v, Chandler (1970) 13 Cal. App.3d 467),] 13689082 14 Plaintiffs Memorandum of Points & Authorities in Support of Opposition to Defendants’ Motion to StrikeKazan, McClain, Satterley & Greenwood Jack London Market * 55 Haron Sucet, Site 400 + Onktand, California 94647 + Fae 10) 35-4913 * wewhazanaw com {$10) 302-1000 BSRREBRYES SES RAESGHR AS In Krinsky v, Doe (2008) 159 Cal. App.4" 1154 (MPA at 11:27-28) and Summit Bank v Rogers (2012) 206 Cal. App 4" 669 (MPA at 12:2-4), the courts found that the allegedly defamatory statements were matters of opinion, And in Pring v. Penthouse Internat., Ltd. (10" Cir. 1983) 695 F.2d 438 (MPA at 12:13-14), a physically impossible statement could not be the basis for a libel action. In Gantry Construction v. American Pipe and Construction Co. (1975) 49 Cal.App.3d 186 (MPA at 15:9-12), a qualified-immunity defense was accepted. Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal 3d 860, 871 (MPA at 12:25) was a right of publicity case, Defendants quote a concurring opinion of the Chief Justice to the effect that all fiction “eschews an obligation to be faithful to historical truth.” But, as previously set forth herein, that statement is belied by all the cases cited above where the depiction of fictional characters was held to be actionable if they closely resemble real persons. ‘None of those cases support defendants’ position here. IV. Conclusion. Defendants’ motion to dismiss should be denied because Defendants fail to meet their burden of showing that the complaint’s causes of action arose from an act done in furtherance of an exercise ofa protected activity. Even if Defendants met that burden, the motion should still be denied because Mr. Brodeur can demonstrate a likelihood of prevailing on his claims. DATED: Mareh/, 2015 LAW OFFICE OF LEON FRIEDMAN By: ME Leon Friedman DATED: March /6, 2015 KAZAN, McCLAIN, SATTERLEY & GREENWOOD. A Professional Law Corporation By; lan’A, Rivamonte Attorneys for Plaintiff rsstvon2 i: Plaintiffs Memorandum of Points & Authorities in Support of Opposition to Defendaniy Motion to Strike