Lawzilla Additional Information:
Defendants are represented by attorney Walter Cook.

Case Number: VC065840 Hearing Date: April 26, 2018 Dept: SEC

18-CIV-01902 BASSEL OJJEH VS. STEPHEN BROWN, ET AL.

BASSEL OJJEH STEPHEN BROWN
ETHAN G. SOLOVE WALTER C. COOK

MOTION TO STRIKE TENTATIVE RULING:

Defendants’ special motion to strike is denied.

A claim arises from protected activity if the wrongful act complained of was in furtherance of the defendant’s protected speech. The Court identifies the allegedly wrongful and injury-producing conduct that is the foundation for the claim. If the injury-producing conduct on which the claim is based does not rest on protected speech or petitioning activity, then “collateral or incidental allusions” to protected activity will not invoke the anti-SLAPP statute. The claim must be based on “an act in furtherance of” the defendant’s right of petition or free speech. (Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal. App. 4th 1510, 1520.)

The category of protected activity at issue in this action is “any other conduct in furtherance of the exercise” of the constitutional right of free speech “in connection with a public issue or an issue of public interest.” (Code of Civ. Proc. Section 425.16, subd. (e).)

An act is in furtherance of the rights of free speech “if the act helps to advance that right or assists in the exercise of that right.” (Collier v. Harris (2015) 240 Cal. App. 4th 41, 51.) There is a protected free speech right to report the news. (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166.) Reporting the news requires the assistance of newsgathering and other related conduct and activity, which are acts undertaken in furtherance of the news media’s right to free speech. Such conduct is therefore is protected conduct under the anti-SLAPP statute. (Id.) Prepublication or preproduction acts such as investigating, newsgathering, and conducting interviews constitute conduct that furthers the right of free speech and is protected activity. (Hunter, supra, at 1521.)

“A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-63 [“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.”)

Plaintiff alleges that he entered into a contract whereby he would invest $150,000, and Defendant would produce a documentary about the Syrian refugee crisis. Later, at Defendant’s urging, Plaintiff invested an additional $30,000. The Complaint alleges seven causes of action. The claims for breach of contract and breach of implied covenant are based on Defendants’ allegedly failing to make the film for which Plaintiff invested his money. The claims for fraud, false promise, and unfair competition are based on the allegedly false statements used for inducing Plaintiff’s investments, when the allegedly true intention was not to make a film. The claim for conversion and unjust enrichment are based on allegations that Defendants used Plaintiff’s money for purposes other than making the film, or any film.

None of the causes of action is based on an act in furtherance of Defendants’ protected right of free speech. Rather, they 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.” (Collier v. Harris (2015) 240 Cal. App. 4th 41, 51.)

The cases cited in Defendants’ moving papers all involve claims that arose from affirmative acts, such as hiring news personnel, interviewing people, registering websites, recording conversations. In contrast to those cases, the present action arises from Defendants’ failure to act, or making false representations that were not in furtherance of protected activity.

Having determined that Defendants fail to meet the burden of demonstrating that the act or acts of which the plaintiff complains were taken in furtherance of the right of petition or free speech, the Court does not address the second prong of Plaintiff’s probability of prevailing. (Code of Civ. Proc. § 425.16, subd. (b)(1).)