Ojjeh v. Brown ( 2019 )

Filed 12/31/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
BASSEL OJJEH,
Plaintiff and Respondent,
A154889
v.
STEPHEN BROWN et al., (San Mateo County
Super. Ct. No. 18CIV01902)
Defendants and Appellants.
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
1
All further statutory references are to this code unless otherwise stated.
1
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
2
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
3
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
4
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 (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.)
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 (Baral).) A defendant need only make a prima facie
showing at this stage. (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP
(2017) 18 Cal.App.5th 95, 112.) In determining whether the defendant has met this
burden, we disregard the labels attached to the causes of action (Berg & Berg
Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 824) and
consider their elements and what actions by the defendant supply those elements and
consequently form the basis for liability (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1063 (Park)). Allegations of protected activity that are
5
“ ‘merely incidental’ or ‘collateral’ ” or that “merely provide context, without supporting
a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, at
p. 394.) If the defendant makes the requisite showing at the first stage, the burden then
shifts to the plaintiff to demonstrate the claim’s merit by establishing a probability of
success. (Id. at p. 396.)
Section 425.16, subdivision (e), describes four categories of conduct that
constitute an “act in furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a public issue.” Relevant
here is the catchall provision, which defines protected activity to include “any other
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).) This category extends the protection of the anti-
SLAPP statute beyond actual instances of free speech to all conduct in furtherance of the
exercise of that right when undertaken in connection with a public issue or issue of public
interest. (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166
(Lieberman).)
There is no question that the Syrian refugee crisis is an issue of public interest.
(See Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 (Tamkin) [issue
of public interest is broadly defined as “ ‘any issue in which the public is interested’ ”];
Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1546–1547 [discussing
common attributes of issues of public interest].) Moreover, it is settled that reporting the
news is protected speech activity (Lieberman, supra, 110 Cal.App.4th at p. 166), and we
have no trouble concluding the proposed documentary is akin to news reporting for
purposes of the anti-SLAPP law.2 The instant action, however, does not arise from a
completed documentary on the Syrian refugee crisis, but from conduct preliminary to a
2
Additionally, movies and films are generally considered “ ‘expressive works’ ”
subject to First Amendment protections. (Daniel v. Wayans (2017) 8 Cal.App.5th 367,
383.)
6
film that was not complete at the time the lawsuit was filed. To determine whether the
catchall provision applies under these circumstances, we must clearly identify which
activities form the basis for plaintiff’s claims (Park, supra, 2 Cal.5th at pp. 1062–1063)
and then ascertain whether those activities were “in furtherance” of defendants’ exercise
of free speech “in connection with” the asserted issue of public interest. (§ 425.16,
subd. (e)(4).) We address these issues below.
A. The Actions by Defendants Which Supply the Elements of Plaintiff’s
Claims
We begin with an overview of the requisite elements of plaintiff’s claims. To
prove breach of contract, plaintiff must show that the parties had, and defendants
breached, an enforceable agreement to film and produce the documentary. (Kumaraperu
v. Feldsted (2015) 237 Cal.App.4th 60, 69.) To prove breach of the implied covenant of
good faith and fair dealing, plaintiff must show that defendants engaged in conduct which
frustrated plaintiff’s rights to the benefits of the parties’ agreement that defendants would
film and produce the documentary. (Thrifty Payless, Inc. v. The Americana at Brand,
LLC (2013) 218 Cal.App.4th 1230, 1244.) Plaintiff’s fraud and false promise claims
require proof that defendants promised to use plaintiff’s investment funds to produce the
film without the intent to do so, and that plaintiff reasonably relied upon this promise to
his injury. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) To prove his UCL
claim, plaintiff must show that defendants engaged in a fraudulent business act or
practice that was likely to deceive members of the public. (Collins v. eMachines, Inc.
(2011) 202 Cal.App.4th 249, 258.) To prove conversion, plaintiff must show that
defendants wrongfully exercised dominion over his property. (Duke v. Superior Court
(2017) 18 Cal.App.5th 490, 501.) Finally, plaintiff’s unjust enrichment claim requires
proof that defendants received and unjustly retained a benefit at plaintiff’s expense.
(Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.)
With these elements in mind, we turn to the question of whether the complaint
supplies one or more of these elements with allegations of protected activity by
defendants. In this regard, the parties dispute what the liability-producing conduct is.
7
Defendants argue the complaint targets their efforts, through affirmative speech and
conduct, to produce the documentary and raise public awareness of the Syrian refugee
crisis.3 Conversely, plaintiff contends that the complaint targets defendants’ failure to act
to produce the documentary. The trial court likewise viewed the complaint as arising out
of defendants’ breach of the investor agreement and their “not making of the
documentary.”
Our de novo review leads us to conclude that defendants have the more persuasive
argument. The complaint does not allege that defendants performed no work on the
documentary, thus a failure to act is not at issue. Rather, the complaint alleges that
defendants failed to perform “significant” or “substantial” work on the documentary,
implying that some work was undertaken. Indeed, the complaint acknowledges that a
cinematographer hired by defendants shot footage for the documentary, and that
defendants showed plaintiff short clips of the proposed film. Defendants are therefore
correct that the allegations concern affirmative conduct regarding the quality and quantity
of the performance they rendered in connection with the production of the documentary.
This alleged failure to perform significant work on the film supplies the requisite element
of breach in the contract-based causes of action, and the wrongfulness of defendants’
retention of the invested funds for purposes of plaintiff’s conversion and unjust
enrichment causes of action.
Additionally, there appear two other categories of affirmative conduct in the
complaint. First, the complaint targets statements made by defendants while soliciting
investment funds from plaintiff. This conduct supplies the requisite element of
3
On appeal, defendants request judicial notice under Evidence Code section 452,
subdivision (h), of the fact that the documentary at issue in this case won an award at a
film festival in November 2019. We deny the request. Defendants did not properly make
the request by motion (Cal. Rules of Court, rule 8.252(a)), and the matter for which
judicial notice is sought was not before the trial court at the time of its ruling (MMM
Holdings, Inc. v. Reich (2018) 21 Cal.App.5th 167, 187). It has long been the general
rule that an appellate court reviews the correctness of the decision at the time of its
rendition, and defendants have shown no exceptional circumstances for this court to
make findings of fact on appeal. (Ibid.)
8
misrepresentation/false promise in the third, fourth, and fifth causes of action, all of
which sound in fraud. The complaint also targets defendants’ alleged use of the solicited
funds for purposes unrelated to the documentary. This alleged conduct appears in the
second through fifth and seventh causes of action.
All of these categories of affirmative conduct appear critical to plaintiff’s theories
of liability and are not reasonably viewed as merely incidental, collateral, or contextual to
plaintiff’s claims for relief. (Baral, supra, 1 Cal.5th at p. 394.) And though the
complaint also alleges that defendants had no intention of actually making the
documentary, our task at the first stage of the anti-SLAPP analysis is to examine the
challenged conduct without regard to the allegations of improper motive. (Wilson, supra,
7 Cal.5th at p. 888.)
In addition to the complaint’s allegations, the parties’ evidentiary submissions
reinforce our conclusion that the lawsuit targets defendants’ affirmative conduct. (See
§ 425.16, subd. (b)(2) [court shall consider evidentiary submissions on anti-SLAPP
motion]; Wilson, supra, 7 Cal.5th at p. 887 [courts must look beyond pleadings to
consider any party evidentiary submissions at first step]; Salma v. Capon (2008)
161 Cal.App.4th 1275, 1286 [looking to declaration in first prong analysis where conduct
was “only vaguely described in the cross-complaint”].) In support of the anti-SLAPP
motion, Brown submitted a declaration in which he stated that through December 2017,
defendants gathered over 10 Terabytes of video files representing over 100 hours of
video, that numerous individuals including refugees, activists, and government officials
were interviewed, that Ignite maintained an online journal of refugees’ stories to gather
ideas that could be used for the production, and that Ignite also produced a “sizzle” reel
related to the main stories. Although plaintiff submitted a declaration claiming he was
never shown the sizzle reel and criticizing the footage he had seen as “rough and poorly
edited,” plaintiff did not dispute that the other work outlined in Brown’s declaration was
performed.
Plaintiff also implicitly conceded that defendants made some measure of progress
on the documentary by stating in his declaration that Brown had not shown significant
9
progress “since March 2017.” Additionally, plaintiff submitted the declaration of
Jonathan Kloberdanz, the cinematographer referred to in the complaint, who represented
that he began work on the documentary full-time in February 2016, and that he traveled
to Europe in March 2016 at Brown’s request and sent Brown some of his footage.
Although Kloberdanz believed that the project was severely understaffed and that Brown
was not looking at the footage he submitted, his statements nonetheless present a prima
facie case that defendants performed some amount of work in connection with the
documentary in 2016.4
Thus, based on the complaint’s allegations and the parties’ evidentiary
submissions, we conclude that defendants’ affirmative conduct (i.e., soliciting
investments, performing partial work on the uncompleted film, and using the invested
funds for purposes unrelated to the film) supplied elements of each of plaintiff’s causes of
action. We next determine whether that conduct was “in furtherance” of defendants’
exercise of free speech. (§ 425.16, subd. (e)(4).)
B. Conduct in Furtherance of the Exercise of Free Speech
“An 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.” (Tamkin, supra, 193 Cal.App.4th at p. 143;
Lieberman, supra, 110 Cal.App.4th at p. 166 [furtherance means helping to advance,
assisting].) It goes without saying that in order to produce a documentary, a filmmaker
must obtain footage and collect information on the subject matter. Thus, defendants’
hiring and use of a cinematographer to obtain on-location footage and their maintaining
an online journal of refugees’ stories to gather ideas for the production are reasonably
viewed as conduct “in furtherance” of the documentary, however unsatisfactory or
dilatory plaintiff viewed their performance.
4
We emphasize that our consideration of plaintiff’s evidentiary submissions at this
first stage is solely to identify and discuss the actions of defendants which supply the
elements of plaintiff’s causes of action. We express no opinion regarding the effect of
such submissions on any merits determination regarding plaintiff’s claims.
10
Defendants’ solicitation of investment funding is also reasonably viewed as
conduct in furtherance of the documentary’s production. As the complaint alleged,
defendants sought investor funding from plaintiff for the stated purpose of financing the
filming and production of the documentary, and there appears no dispute that application
of such funding toward the documentary would have furthered or helped advance the
project within the meaning of the catchall provision. (See Tamkin, supra,
193 Cal.App.4th at p. 143; Lieberman, supra, 110 Cal.App.4th at p. 166.) And again, it
is of no consequence at this stage of the analysis that the solicitation was allegedly made
with a fraudulent motive. (Wilson, supra, 7 Cal.5th at p. 888.)5
Because the film had not been completed at the time the complaint was filed,
plaintiff contends there was no “actual speech” that qualified for protection. In support,
he cites Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011)
194 Cal.App.4th 873 (Digerati Holdings). Defendants respond that the anti-SLAPP law
has no “ ‘proof of completion’ ” requirement and that the law protects preliminary
preproduction conduct in the news reporting process.
Digerati Holdings involved an entertainment production company’s breach of
contract claim alleging the complete failure of an entertainer (and his company) to
perform obligations under an agreement to make a biographical documentary film about
the entertainer. (Digerati Holdings, supra, 194 Cal.App.4th at pp. 885–886.) The
appellate court held that the entertainer’s failure to perform was not conduct in
furtherance of his right of petition or free speech. (Ibid.)
Digerati Holdings is distinguishable from the instant case, where plaintiff’s causes
of action, including his breach of contract cause of action, allege various forms of
affirmative conduct beyond a complete failure to perform. The issue presented here is
5
As for defendants’ alleged use of the funds for purposes unrelated to the film, we
conclude this does not implicate protected activity, as such conduct would tend to hinder,
not advance, production of the film. However, none of the causes of action in the
complaint was based exclusively on this allegation of unprotected activity. Thus, at this
first stage of the anti-SLAPP analysis, we simply disregard the allegations of unprotected
activity. (Baral, supra, 1 Cal.5th at p. 396.)
11
whether those affirmative acts in connection with an ultimately incomplete film can still
be said to have furthered the exercise of defendants’ free speech rights. Once again, we
are more persuaded by defendants’ position.
To the extent an exercise of the right of free speech is viewed as contemplating
“completion” of the free speech activity (i.e., a completed news broadcast or film), we
may reasonably assume that, in many cases, the completed free speech activity was
preceded by preliminary steps taken in “helping to advance” (Lieberman, supra,
110 Cal.App.4th at p. 166) the speech. For instance, newsgathering activities are often
preliminary to the protected activity of reporting the news (id. at pp. 161–162, 164);
casting decisions for weather anchors or actors are preliminary to the protected activity of
reporting the weather or producing a television show (Hunter v. CBS Broadcasting, Inc.
(2013) 221 Cal.App.4th 1510, 1522 (Hunter); Tamkin, supra, 193 Cal.App.4th at p. 143);
and a musician’s selection of supporting band members is preliminary to the protected
activity of performing or recording music (Symmonds v. Mahoney (2019) 31 Cal.App.5th
1096, 1106).
Case law recognizes that protection may be afforded to preliminary actions that
assist or are helpful in advancing the exercise of the right of free speech, even if the
speech activity is still formative or incomplete at the time a lawsuit is filed. An
illustrative case is San Diegans for Open Government v. San Diego State University
Research Foundation (2017) 13 Cal.App.5th 76 (San Diegans), which involved a lawsuit
challenging two contracts—a collaborative work agreement and a lease for office
space—between an independent nonprofit news company (inewsource) and a public radio
station (KPBS) affiliated with San Diego State University. Under those contracts,
inewsource would receive office space and newsgathering equipment and facilities, and
KPBS would receive all of inewsource’s content (including a set number of specific types
of stories) for distribution on radio, television, and the Internet. (San Diegans, at p. 85.)
After inewsource published articles critical of a local attorney, the plaintiff (which
allegedly was controlled by the attorney) sued inewsource, San Diego State University,
and others, alleging that the contracts between inewsource and KPBS were “void” and in
12
violation of statutory prohibitions on self-dealing involving public funds because
inewsource’s founder was also a faculty member of the university and influenced both
sides of the transaction. (Id. at p. 89.)
In affirming the trial court’s order granting the defendants’ anti-SLAPP motion,
the San Diegans court concluded that the plaintiff’s lawsuit arose from protected activity
because the contracts at issue directly affected the content of news stories the public
receives. (San Diegans, supra, 13 Cal.App.5th at p. 106.) That is, the injury-producing
conduct underlying the plaintiff’s claims, i.e., the contracts, “shape[d] the way
inewsource and KPBS gather, produce, and report the news.” (Ibid.) As in our case, the
lawsuit in San Diegans did not arise from any completed news broadcast, but from the
contracts providing the means for generating and publishing news content going forward.
Plaintiff contends, however, that San Diegans involved completed speech activity
because the lawsuit followed inewsource’s publication of the articles critical of the local
attorney. But the lawsuit there did not arise from those articles simply because the
articles preceded the suit or may have “triggered” it. (See City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 78.) As explained, the lawsuit sought to void the contracts between
KPBS and inewsource, which would have the effect of impairing their ability to report
the news.
These cases support our conclusion that, depending on the circumstances, the “in
furtherance” requirement of section 425.16, subdivision (e)(4), may be satisfied by
conduct preliminary to a completed exercise of the right of free speech. It is not
unreasonable to conceive that conduct can assist and help to advance the exercise of the
right of free speech, even if that assistance did not result in a completed exercise of free
speech at the time a lawsuit is filed. A clear example would be a lawsuit seeking to
enjoin an as-of-yet unaired news broadcast based on allegations of unlawful
newsgathering activities. Plaintiff provides no reason why newsgathering activity and
other actions contributing to a broadcast report should be less deserving of anti-SLAPP
protection than the broadcast report itself. Indeed, a lawsuit targeting newsgathering
13
activity threatens to chill participation in speech-related processes and, if successful, may
block the exercise of free speech.
In light of the foregoing, we conclude defendants’ alleged conduct of soliciting
investment funds and performing partial work on the documentary was, for anti-SLAPP
purposes, in furtherance of producing the documentary in the exercise of the right of free
speech.
C. Conduct in Connection with a Public Issue or Issue of Public Interest
Next, we address whether defendants’ conduct in furtherance of the exercise of
free speech was “in connection with” a public issue or issue of public interest. (§ 425.16,
subd. (e)(4).) To make this determination, we look to the content of the speech and
assess the functional relationship between the speech and the public conversation about
the matter of public interest. (FilmOn.com Inc. v. DoubleVerify Inc. (2019)
7 Cal.5th 133, 149–150 (FilmOn).) “[T]he catchall provision demands ‘some degree of
closeness’ between the challenged statements and the asserted public interest. . . . ‘[I]t is
not enough that the statement refer to a subject of widespread public interest; the
statement must in some manner itself contribute to the public debate.’ ” (Id. at p. 150.)
“[W]e examine whether a defendant—through public or private speech or conduct—
participated in, or furthered, the discourse that makes an issue one of public interest.”
(Id. at p. 151.) In conducting this examination, we consider “context—including
audience, speaker, and purpose.” (Id. at p. 152.)
The Supreme Court’s decision in FilmOn is instructive. There, the plaintiff was a
distributor of entertainment content on the Web, and the defendant was a business
providing Internet advertisers with online tracking verification and brand safety services.
The plaintiff alleged that the defendant had made false and disparaging reports to the
defendant’s clients that the plaintiff’s digital distribution network contained adult and
copyright-infringing content, which allegedly caused the defendant’s clients to refuse to
advertise on the plaintiff’s network. (FilmOn, supra, 7 Cal.5th at pp. 141–142.) While
acknowledging that the prevalence of adult and copyright-infringing content on the
Internet was an issue of public interest, the Supreme Court observed that the defendant’s
14
reports were generated for profit and exchanged confidentially. Because the reports were
not part of “any attempt to participate in a larger public discussion,” the court determined
they did not qualify for protection under the catchall provision. (Id. at p. 140.)
As plaintiff repeatedly points out, the proposed documentary in this case was not
completed at the time he filed his complaint. Thus, like the confidential reports in
FilmOn, the documentary “never entered the public sphere.” (FilmOn, supra, 7 Cal.5th
at p. 153.) Critically, however, the two cases differ significantly in their respective
contexts. (Id. at p. 148 [emphasizing that “context matters under the catchall
provision”].)
In FilmOn, the allegedly disparaging reports were shared confidentially with only
the defendant’s advertising clients, and the parties never intended the reports to enter the
public sphere. (FilmOn, supra, 7 Cal.5th at p. 153.) In sharp contrast, the conduct at
issue here involves the parties’ discussions to make a feature documentary film for a
public audience. Again, we may look to the parties’ evidentiary submissions as part of
our first prong analysis. (Wilson, supra, 7 Cal.5th at p. 887; Salma v. Capon, supra,
161 Cal.App.4th at p. 1286.) As Brown described in his declaration, plaintiff approached
him with the concept of a documentary feature film “that would raise public awareness
about the Syrian refugee crisis.” Brown was interested in the project because of “the
subject’s newsworthiness, the scale of the issue as the largest humanitarian crisis in a
generation, the ongoing war in Syria with no end in sight, and the impact on the United
States presidential race and on other political discussions and debates around the world.”
The parties had Academy Award aspirations and specifically discussed how the film
might best generate empathy and raise public awareness of the plight of Syrian refugees.
And during production, defendants maintained an online journal referencing the
documentary and inviting interested persons to share their stories, photographs, and
videos. Thus, despite being incomplete when the complaint was filed, the proposed
documentary was speech activity intended for “the public sphere” (FilmOn, at p. 153),
and defendants’ work thereon constituted an “attempt to participate in a larger public
discussion” (id. at p. 140). Content-wise, defendants’ efforts in obtaining the interview
15
footage of individuals affected by and involved in the refugee crisis and in maintaining an
online journal of refugees’ stories were directly related to the asserted issue of public
interest and were undertaken to contribute toward the public discourse on the matter.
Likewise, defendants’ efforts to secure funding for the documentary’s production was
functionally related to the advancement of its message, as Brown’s declaration explained
that funding was necessary for production, post-production, promotion, and distribution
of the film. This “union of content and context” (id. at p. 154) leads us to conclude there
is a sufficient “degree of closeness” between the challenged conduct and the promotion
of the film’s message to merit application of the catchall provision. (Id. at pp. 149–150.)
Plaintiff makes the broader argument that the anti-SLAPP law was never intended
to apply in a lawsuit that is not attempting to silence the defendants’ exercise of speech,
but rather alleges the defendants should have engaged in the speech activity as promised.
While this may or may not be a valid distinction in cases involving a defendant’s
complete failure to perform, the purpose of the anti-SLAPP law—to encourage public
participation in matters of public significance by authorizing early judicial screening of
lawsuits that would chill the exercise of free speech and petition (§ 425.16, subd. (a))—is
still advanced where, as here, a complaint targets the quality or sufficiency of the
defendants’ actions in preparing to exercise their right to free speech on a matter of
public significance.
For all of these reasons, we conclude defendants made a prima facie showing
sufficient to establish that the complaint arises from protected activity. (§ 425.16,
subds. (b), (e).) Accordingly, the trial court’s order denying the anti-SLAPP motion at
the first stage of the analysis must be reversed, and plaintiff’s causes of action must be
screened for merit. (See fn. 4, ante.)
CONCLUSION AND DISPOSITION
Because the trial court denied defendants’ motion at the first stage of the anti-
SLAPP analysis, it did not address whether plaintiff met his burden under the second step
to show a probability of prevailing. Although plaintiff requests that we perform that
analysis on appeal, we will, instead, take “the more prudent course” by remanding the
16
matter to the trial court to make that determination in the first instance. (Hunter, supra,
221 Cal.App.4th at p. 1527.)
The order denying the anti-SLAPP motion is reversed. The matter is remanded to
the trial court for further proceedings consistent with this opinion. Defendants are
entitled to their costs on appeal.
17
_________________________
Fujisaki, J.
We concur:
_________________________
Siggins, P.J.
_________________________
Goode, J.*
A154889
*
Retired Judge of the Superior Court of Contra Costa County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
18
Bassel Ojjeh v. Stephen Brown et al.
(A154889)
Trial court: San Mateo County
Trial Judges: Hon. Susan Greenberg
Attorneys: Walter C. Cook for Defendants and Appellants.
Structure Law Group, Mark R. Figueiredo, Ethan G. Solove, Austin
T. Jackson for Plaintiff and Respondent.
19