Case Number: BC530216    Hearing Date: July 09, 2014    Dept: 56

Case Name: Lagree v. Minter
Case No.: BC530216
Matter: (1) Special Motion to Strike; (2) Demurrer
Moving Party: Defendant Minter
Responding Party: Plaintiff Lagree

Tentative Ruling: Special motion to strike is granted; Demurrer is moot.

Plaintiff Sebastien Lagree filed this action against Defendant Carrie Minter, asserting causes of action for defamation, trade libel, slander per se, invasion of privacy, intentional interference with prospective advantage, negligent interference with prospective advantage, intentional infliction of emotional distress, and negligent infliction of emotional distress.

Defendant moves to strike the Complaint pursuant to CCP §425.16, the “anti-SLAPP” statute. An anti-SLAPP motion involves a two step process: 1) the defendant must establish that the challenged causes of action arise from protected activity; and 2) if the defendant makes this showing, the burden shifts to the plaintiff to establish a probability of success on the merits. E.g. Navellier v. Sletten (2002) 29 Cal.4th 82, 88.

Protected Activity –
To prevail on an anti-SLAPP motion, the moving party must first make a threshold showing that the challenged cause of action “arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180, 192. The phrase “arising from” means that the defendant’s act underlying the plaintiff’s cause of action “must itself have been an act in furtherance of the right of petition or free speech.” City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77.

The Complaint alleges that Defendant communicated to others that Plaintiff and his wife abuse alcohol and drugs (¶11), Plaintiff’s wife is an active adult film actress (¶12), Plaintiff and his wife view child pornography (¶13), Plaintiff uses prostitutes (¶14), and Plaintiff has published lewd videos of himself and photos of illegal drugs being used in his home (¶15). Plaintiff alleges these communications were made in telephone conversations, text messages, emails, and public forums utilizing social media (¶¶11-15).

Defendant argues that these statements were made in a public forum about an issue of public interest. E.g. Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146-47. Defendant submits that Plaintiff is well known as the owner, licensor, or operator of an international chain of training and pilates studios, has been featured in many publications, and has trained many celebrities.

A public interest involves more than mere curiosity, a broad and amorphous interest, or private information communicated to a large number of people; instead a public interest concerns a substantial number of people, some closeness between the statements and the public interest, and not upon a private controversy. See McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 110. Categories of cases falling within an issue of public interest are statements pertaining to a person or entity in the public eye, involving conduct that could affect larger numbers of people beyond the direct participants, and involving a topic of widespread public interest. Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 525.

Defendant has established that the allegations arise from protected activity. There is a sufficient showing that Plaintiff is in the public eye, and that the statements could affect a substantial number of people (such as those who use Plaintiff’s personal and business services or invest in his studios). See Du Charme v. IBEW (2003) 110 Cal.App.4th 107, 118; Damon v. Ocean Hills (2000) 85 Cal.App.4th 468, 479. In addition, the Complaint alleges that Defendant’s defamatory statements were published on social media websites and other internet locations that constitute a public forum. See Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 896; Kronemyer v. IBDB (2007) 150 Cal.App.4th 941, 950.

Defendant has established the first prong of the motion.

Success on the Merits –
Because Defendant has established protected activity, the burden shifts to Plaintiff to present admissible evidence that supports a prima facie case in his favor – much like the burden on a motion for summary judgment or directed verdict. See Taus v. Loftus (2007) 40 Cal.4th 683, 714; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.

Plaintiff contends that he and Defendant were formerly married and had a contentious divorce; Defendant contacted him after he remarried and made threatening statements; Defendant told Plaintiff’s first wife that he was seeing prostitutes and living a double life; Defendant told Plaintiff that his current wife previously acted in adult films; and that Plaintiff is informed and believes that third-party witnesses will testify that Defendant has communicated to them the defamatory statements made in the Complaint.

These contentions are contained in Plaintiff’s declaration, to which Defendant has objected (Reply at pp. 6-7). All of the objections (a-g) are sustained. A declaration opposing an anti-SLAPP motion must be based on personal knowledge and cannot include hearsay, legal argument or other inadmissible matters. Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26; Morrow v. LAUSD (2007) 149 Cal.App.4th 1424, 1444-46. Plaintiff has simply not presented admissible evidence that supports a prima facie case.

Moreover, Defendant has submitted her own declaration containing evidence from internet postings and email exchanges attributed to Plaintiff and his current wife. These materials support many of the statements raised in the Complaint, which is a complete defense to Plaintiff’s claims. E.g. Ringler Associates Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1180-81.

Plaintiff has failed to meet his burden on the second prong of the motion.

Rulings –
Defendant’s anti-SLAPP motion is granted, and the Complaint is stricken. Defendant’s demur is moot.