Toberoff & Associates v. Betancourt CA2/1 ( 2023 )

Filed 5/1/23 Toberoff & Associates v. Betancourt CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
TOBEROFF & ASSOCIATES, P.C., B319116
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 18SMCV00170)
v.
JOHN BETANCOURT et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, H. Jay Ford III, Judge. Affirmed in part,
reversed in part.
Toberoff & Associates, Marc Toberoff and Jaymie
Parkkinen for Plaintiff and Appellant.
Bostwick Law, Gary L. Bostwick; Drooz Legal and Deborah
Drooz for Defendants and Appellants John Betancourt and
Wildside Press, LLC.
Davis Wright Tremaine, Everett W. Jack, Jr., Eric M. Stahl
and Zoë N. McKinney for Defendant and Appellant Blumhouse
Productions, LLC.
Plaintiff Toberoff & Associates, P.C. (the firm or the
Toberoff firm) filed suit against Alan Donnes, alleging that
Donnes told lies and misrepresentations about the firm and its
principal, Marc Toberoff,1 to a group of the firm’s clients who
owned film rights to a popular science fiction story, causing the
clients to terminate the firm’s representation. After Donnes died,
the firm filed an amended complaint against defendants John
Betancourt, Wildside Press, LLC (Wildside), and Blumhouse
Productions, LLC (Blumhouse),2 alleging that these new
defendants assisted Donnes in his scheme.
Betancourt and Wildside filed a special motion to strike the
complaint under Code of Civil Procedure section 425.163 (the
anti-SLAPP statute), as did Blumhouse. The trial court granted
the motions with respect to certain allegations in the amended
complaint and denied the motions as to others. The firm
contends the court should have denied the motions in full, while
defendants argue that it should have done the opposite and
granted them in full. We agree with the firm. Even assuming
the firm’s allegations are based in part on speech regarding “a
public issue or an issue of public interest” (id., subd. (e)(4)), there
is an insufficient “functional relationship . . . between the speech
and the public conversation about [a] matter of public interest”
1 We refer to Toberoff & Associates as the firm to
distinguish it from Marc Toberoff.
2 The firm named two additional defendants who did not
file anti-SLAPP motions and are not part of this appeal: Donnes’s
production company, The Little Movie Company, LLC (TLMC),
and Donnes’s former business partner, Gerald Daigle.
3 Unless otherwise specified, subsequent statutory
references are to the Code of Civil Procedure.
2
(FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-
150 (FilmOn)) to warrant the protection of the anti-SLAPP
statute. We therefore reverse the trial court’s order to the extent
it granted defendants’ motions.
FACTUAL BACKGROUND AND PROCEEDINGS BELOW
In 1938, the science fiction author John W. Campbell, Jr.
published a novella called Who Goes There? about a group of
scientists at a research outpost in Antarctica under attack from a
shapeshifting alien. Campbell sold the film rights for a flat fee,
and in 1951, RKO Radio Pictures released an adaptation of the
novella as the now classic film The Thing from Another World.
Thirty years later, the novella was again adapted as a science
fiction and horror film masterpiece, The Thing, directed by John
Carpenter and released by Universal Pictures in 1982. Universal
released a prequel adaptation in 2011 under the same title.
In 2015, Toberoff, whose firm specializes in representing
holders of intellectual property rights, determined that a brief
window had opened during which Campbell’s heirs, who owned
the copyright to Who Goes There?, could terminate Campbell’s
previous grant of film rights. Toberoff approached the heirs—
Campbell’s daughter, Leslyn Randazzo, and grandchildren Katea
Hammond and John C. Hammond—who signed an engagement
agreement in which they agreed to pay the firm 50 percent of any
proceeds deriving from the rights the firm recovered on their
behalf. The contract provided that if the firm succeeded in
securing any rights to the work, its “entitlement to its full [f]ee
shall ‘vest’ even if the [f]irm is subsequently discharged or
terminated by the” heirs.
In January 2016, the firm served notices on the current
holders of the film rights, including Universal, informing them
3
that the heirs intended to terminate the grant of rights to the
novella pursuant to section 304 of the federal Copyright Act. (17
U.S.C. § 304(d).) The termination of rights was neither
immediate nor complete, however. It did not take effect for two
years, and even after it became effective, Universal would retain
film rights to the novella in foreign territories, as well as all
rights to story elements that had originated in the previous The
Thing movies and were not present in the novel.
In the fall of 2016, Betancourt, a writer, editor, and
publisher of science fiction novels, contacted the heirs, offering to
manage Campbell’s book rights. After Betancourt succeeded in
obtaining money from other publishers on behalf of the heirs, the
heirs signed an agreement to license Campbell’s works to
Betancourt’s publishing company, Wildside, for publication and
development of additional derivative works. The heirs told
Betancourt about their agreement with the Toberoff firm, and
Betancourt requested a copy of the contract. Betancourt wrote to
one of the heirs that he would “reach out to [Toberoff] so we
coordinate our efforts.”
In 2017, Blumhouse, a film production company
specializing in horror films, began exploring the possibility of
producing another version of The Thing in 2017 as part of its
production deal with Universal. According to the company’s
president, Charles Layton, Blumhouse soon learned about
Toberoff’s efforts to recover film rights on behalf of the heirs.
Layton concluded that “the [h]eirs’ rights were of limited value”
because any commercially successful film would require the
intellectual property rights that Universal still controlled.
4
Blumhouse offered4 to purchase the heirs’ rights, but Toberoff
rejected the proposal as a “lowball offer.” Toberoff made a
counteroffer that Layton deemed “wildly unrealistic.”
In November 2017, a researcher who was working on a
book about the golden age of science fiction informed Betancourt
that the researcher had discovered an unpublished manuscript
by Campbell. This turned out to be an expanded version of Who
Goes There? Betancourt wrote some additional material and
edited the manuscript to turn it into a cohesive story, which
Wildside published in 2019 under Campbell’s original title,
Frozen Hell. One month later, Betancourt emailed Toberoff,
introducing himself and informing Toberoff of this new discovery.
In an email to the heirs at around this time, Betancourt wrote
that Toberoff was “welcome to be the driving force behind things
in Hollywood, as long as he delivers. Recovering the movie rights
is a major accomplishment and gets him a long grace period, to
my mind.”
In the summer of 2018, Donnes, an independent producer,
entered the scene. In an email to Blumhouse, he claimed that
Toberoff’s efforts to recover the film rights had failed. RKO still
owned the rights to Who Goes There? and Donnes implied he was
working with RKO in some capacity. He needed to find “one final
document” to prove his claim. Layton replied, “I LOVE that
Toberoff has fucked up.” Jason Blum, the CEO and namesake of
Blumhouse, replied, “We need paperwork. [¶] And this could be
the greatest news ever.”
4 Layton claims Blumhouse made this offer in November
2017, but Toberoff alleges it occurred around July 2018, closer in
time to when Donnes became involved.
5
According to Toberoff, at around the same time, Donnes
contacted him making the same assertions about RKO’s rights to
Who Goes There? Donnes also claimed to have a close
relationship with a production company at Universal, which
Toberoff understood to mean Blumhouse. When Toberoff told
Donnes that he would need documentation from Donnes
regarding his claim to the RKO rights before holding any further
discussions, Donnes ceased communicating with him.
Donnes appears to have contacted the heirs at around the
same time. According to Betancourt, one of the heirs, John C.
Hammond, told Betancourt in the summer of 2018 that he had
spoken with Donnes about selling the film rights to Who Goes
There? for a new adaptation. Betancourt held a three-way phone
call with Donnes and Hammond in which Donnes explained that
he believed he could get a new version of The Thing made with
Blumhouse. According to Betancourt, the heirs were enthusiastic
about the possibility, even as Toberoff refused to deal with
Donnes. Betancourt declared that “on or about August 29, 2018,
. . . Hammond expressed the desire to terminate Toberoff’s
services and to allow Donnes to handle film rights to Who Goes
There?” (italics omitted).
In an email dated August 30, 2018, Betancourt wrote to the
heirs that he had spoken with Donnes, who “raised some
concerns about . . . Toberoff’s representation of media rights for
‘Who Goes There?’/The Thing. I have been considering the points
he brought up, and—whether they are right or wrong—I do think
this may be a good time for you to consider taking back control of
media rights from . . . Toberoff. The key issue to me is money: it’s
been years, and . . . Toberoff hasn’t brought in any revenue for
you. A more aggressive marketing hand might have better
6
results.” Betancourt acknowledged that “[r]ecovering the U.S.
film rights to ‘Who Goes There?’ is a big achievement,” and stated
that the heirs “should be grateful to Toberoff for his work.” He
advised the heirs to take no action for now, and “If you part ways,
it needs to be done carefully and in a way that does not get his
back up.”
Over the course of the following month, Donnes continued
encouraging the heirs to terminate the Toberoff firm. On
September 4, 2018, Donnes wrote an email to John Hammond
and Betancourt offering to send a template termination letter.
The next day, Donnes wrote the heirs that, if they canceled their
agreement with the firm, Donnes’s company would “pay any and
all legal expenses billed by Mr. Toberoff, aside from his 50
[percent] share of any licensing fees.” Donnes also offered the
heirs “additional money for consulting work, executive producing,
etc. These payments are NOT shared with Mr. Toberoff.” He
wrote that Toberoff was an obstacle to signing a deal because he
would insist on receiving a producer credit and a high salary for
himself as a part of any deal, and that Toberoff was “NOT wanted
or welcome at any major studio and, to date, he has not produced
a single film based on any of the over 40 story rights he has
secured copyrights to.” Donnes warned the heirs that Toberoff “is
not working in your best interest.”
Betancourt, who also received a copy of the email, replied
that Donnes’s proposal to pay the heirs’ legal expenses “sounds
more than fair.” He also requested “[t]he draft [termination]
letter to . . . Toberoff that you mentioned earlier. I would like to
review it before the family sends it.” In a declaration, Betancourt
denied encouraging the heirs to terminate the Toberoff firm’s
representation, but stated that the heirs were “irked by
7
[Toberoff’s] failure to communicate with them, his failure to
listen to their objectives for Campbell’s writings and legacy, and
his refusal to meet with Donnes.”
On September 26, 2018, Donnes wrote an email on behalf of
his production company, TLMC, promising to “pay all reasonable
costs incurred and billed to you by Marc Toberoff and Associates.
Additionally, TLMC will provide legal representation, at our cost,
to represent you should he file any litigation related to his
termination and/or production of the feature film.”
Betancourt wrote to the heirs, “I think [Donnes’s email] will
do to protect you and move forward. Do you want me to send the
termination letter to Toberoff on your behalf tomorrow?” The
heirs agreed that Betancourt should send the letter, and on
September 27, he did so.
Toberoff was blindsided by the termination letter. He “had
received no indication of any kind from [the heirs] that [the
firm’s] services and performance were not fully satisfactory.” In
an email to the heirs that evening, Betancourt wrote that
Toberoff had called him and given him “a 45[-]minute harangue
about his greatness and our collective stupidity.”
On October 3, 2018, Donnes wrote to several Blumhouse
employees informing them of the termination and suggesting a
conference call with the heirs. According to Betancourt, in the
conference call, Blum outlined a vision for a new adaptation.
Betancourt referred the heirs to a new lawyer to represent them
in negotiations. Betancourt wrote that “Alan Donnes
recommended him, and once again Alan seems to have had your
best interests in mind.”
Three days later, Betancourt wrote to the heirs that he had
spoken with Toberoff again: “Toberoff has concluded that Alan
8
Donnes is responsible for his dismissal, based on the timing. (He
is a smart guy.)” According to Betancourt, Toberoff said that
Donnes was “a fraud” with “[n]o real track record in the industry,
trying to insert himself in a deal unnecessarily as a money grab.”
In the same email, Betancourt wrote to the heirs about his
own research “into Blum and Blumhouse Productions. They
specialize in low-budget movies. I’m not sure this is necessarily
the best thing for The Thing. You may, in fact, be better served
by going back to Toberoff and giving him a year to make a deal.
If nothing happens, that’s cause for dismissal.” Betancourt
encouraged the heirs to schedule a conference call with Toberoff
and listen to him.
On November 6, 2018, Toberoff filed a complaint against
Donnes and additional unnamed Doe defendants, alleging causes
of action for intentional and negligent interference with
contractual relations, and intentional and negligent interference
with prospective economic advantage. The complaint alleged
that Donnes made false and misleading statements to the heirs
about his relationship with Universal and his control of film
rights to The Thing. According to the complaint, Donnes also
made false statements about Toberoff in an effort to convince the
heirs to end their representation. The complaint alleged that
Donnes acted “on his own, or in coordination with other Doe
defendants” (capitalization omitted) in convincing the heirs to fire
Toberoff. The complaint mentioned Betancourt as the author of
the termination letter and alleged that he was “aligned with
Donnes,” but did not accuse Betancourt of any misconduct. The
complaint did not mention Blumhouse at all.
In November 2019, the heirs agreed to sell the film rights
to Who Goes There?, including the unpublished portions that
9
were discovered in Frozen Hell, to Universal for $80,000. The
parties attributed 70 percent of the sale price to the original Who
Goes There? and the remaining 30 percent to the previously
unpublished material from Frozen Hell. The vast majority of the
contract terms have been redacted from the copy of the contract
in the record.
In July 2020, Donnes died. In July 2021, the court, upon
learning the sole named defendant in the case had passed away,
allowed the Toberoff firm five days to file an amended complaint
naming the previously unnamed Doe defendants.
On July 14, 2021, the firm filed the operative first amended
complaint. The new complaint alleged the same causes of action
for intentional and negligent interference with contractual
relations and with prospective economic advantage, as well as a
new cause of action for unfair competition. In place of Donnes,
the complaint listed as defendants TLMC, Donnes’s business
partner Daigle, Betancourt, Wildside, and Blumhouse. The firm
alleged that the “[d]efendants joined forces and approached the
[heirs] directly through Donnes with misrepresentations and
derogatory statements regarding [Toberoff], aimed at alienating
[Toberoff] and ultimately inducing the [heirs] to terminate
without cause their relationship with [the firm], causing
significant financial loss to both the [heirs] and [the firm].”
According to the firm, Betancourt’s role in the scheme was
to make false and misleading statements to the heirs to
encourage them to terminate the firm’s representation.
Betancourt agreed to participate because he believed he stood to
benefit from a new film adaptation both by means of a direct
payment for the film rights to the newly published Frozen Hell,
and in increased publishing revenue from the novel and potential
10
sequels. The complaint was vague as to Blumhouse’s role,
alleging that Blumhouse “acted in concert” with Donnes and
“fashioned a scheme” with him, but it did not allege that anyone
at Blumhouse took any specific action to disparage Toberoff or
convince the heirs to terminate the firm.
The firm alleged that defendants succeeded in reducing
Universal’s total payment to the heirs for the film rights, which
in turn reduced the firm’s compensation. In addition, the firm
blamed defendants for structuring the payments to the heirs in a
manner unfavorable to the firm. This was because the contract
with Universal for the sale of the film rights attributed 30
percent of the purchase price for the film rights to the newly
published Frozen Hell, rather than the rights to the original
novella that the firm had recovered for the heirs. In addition, the
firm alleged that defendants arranged for the heirs to receive
payment as executive producers of the new The Thing movie.
In September 2021, Blumhouse filed a special motion to
strike under the anti-SLAPP statute, as did Betancourt and
Wildside. In the motions, the defendants alleged that the firm’s
causes of action arose from the defendants’ “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).)
The trial court granted the motion in part. The court
focused on nine specific misrepresentations that the firm alleged
in the complaint: “(i) that Donnes owns or controls intellectual
property rights or interests of RKO, or others, that are required
for the production of any new derivative film or other work based
. . . upon the [r]ights and/or entitled ‘The Thing’; (ii) that Donnes
11
has a very close relationship with Universal and/or a production
company at Universal, which, in addition to his/RKO’s
intellectual property, is critical to an agreement with Universal
regarding any new film(s) based upon the [heirs’] [r]ights;
(iii) that Donnes could finance a film based on the [r]ights;
(iv) that Donnes is therefore a necessary participant in any deal
regarding a new film or other work based upon the [r]ights;
(v) that [d]efendants would secure for the [heirs] very favorable
terms for their [r]ights, ‘executive producer’ credit(s) and acting
role(s) on a new film based on the [r]ights; (vi) that [the firm]
supposedly did not care about the [heirs], is not working in their
best interests, and is taking advantage of them; (vii) that [the
firm] purportedly botched lucrative deals for the [r]ights;
(viii) that [the firm] failed the [heirs] because it failed to generate
any revenue from the [r]ights for ‘years’; and ([ix]5 ) that Donnes
and Betancourt have the wherewithal to secure agreements for
the [heirs] for a new film(s) and other derivative works based on
the [r]ights (which [the firm]) recovered for the [heirs]) on
extremely favorable financial terms.”
The trial court categorized six of these statements, those
labeled (i), (ii), (iii), (iv), (v), and (ix), as the “[f]ilm [s]tatements,”
because these statements pertained to Donnes’s position in the
entertainment industry and ability to produce a film. The three
remaining statements, those numbered (vi), (vii), and (viii), the
court labeled “[d]erogatory [s]tatements,” because those
statements attacked Toberoff and the firm.
5 In a typographical error in the first amended complaint,
the firm labeled both of the last two statements as “(viii).” To
distinguish between them, we refer to the last of the statements
as (ix).
12
The court concluded that the film statements were
protected conduct under the anti-SLAPP statute because they
expressly referred to a potential remake of The Thing, and
because they were made to the heirs in connection with efforts to
obtain the rights to remake the film. The court reasoned that,
“Acquisition of the rights to make the film is directly related to
the making of the film.” On the other hand, the derogatory
statements were not protected conduct because they did not
implicate a remake of “ ‘The Thing,’ ” but rather were “directed
entirely at disparaging [the firm]’s performance and abilities as
an agent and attorney of the” heirs. The court found that the
firm had failed to demonstrate a probability of prevailing on its
claims arising from the film statements, and accordingly granted
the anti-SLAPP motion with respect to those statements while
denying it as to the claims arising from the derogatory
statements. The court also struck the firm’s second cause of
action, for negligent interference with contract, in its entirety
because the firm conceded that California does not recognize such
a cause of action.
DISCUSSION
A. Governing Law and Standard of Review
“The Legislature enacted . . . section 425.16 to address so-
called strategic lawsuits against public participation (SLAPP).
[Citation.] [The] anti-SLAPP statute makes available a special
motion to strike meritless claims early in litigation—but only if
the claims arise from acts in furtherance of a 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).)” (FilmOn, supra, 7 Cal.5th at p. 139, fn.
omitted.)
13
“Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. (Taus v. Loftus
(2007) 40 Cal.4th 683, 712 . . . .) If the defendant makes the
required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability
of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) We
review the trial court’s decision to grant or deny an anti-SLAPP
motion de novo. (Musero v. Creative Artists Agency, LLC (2021)
72 Cal.App.5th 802, 816 (Musero).)
In this case, the first step of the anti-SLAPP analysis is
dispositive, and we therefore describe the law only as it pertains
to that step.
Section 425.16 lists four categories of protected activity.
The first three of these apply to statements made in or in
connection with “official proceeding[s] authorized by law” (id.,
subd. (e)(1)-(2)) or “in a place open to the public or a public forum
in connection with an issue of public interest.” (Id., subd. (e)(3).)
At issue in this case is the fourth, so-called “catchall provision”
(FilmOn, supra, 7 Cal.5th at p. 144), which protects “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).)
Because it comes immediately after the other three
provisions and “refers to ‘other conduct in furtherance,’ ” the
Supreme Court has interpreted the catchall provision as
“encompass[ing] conduct and speech similar to what is referenced
in section 425.16, subdivision (e)(1) through (3).” (FilmOn, supra,
7 Cal.5th at p. 144.) In other words, when considering whether
14
conduct fits within the catchall provision, just as with the other
three provisions of section 425.16, subdivision (e), a court must
consider “not only . . . its content, but also . . . its location, its
audience, and its timing.” (FilmOn, supra, at p. 143.) Although
purely private communications by for-profit entities are not
excluded from the protection of the statute, we must bear in mind
that “[t]he anti-SLAPP law was enacted ‘to protect nonprofit
corporations and common citizens “from large corporate entities
and trade associations” in petitioning government.’ [Citation.]”
(Ibid.)
To this end, the court in FilmOn articulated a two-step
inquiry 6 for determining whether the activity from which a
lawsuit arises is protected under the catchall provision. “First,
we ask what ‘public issue or . . . issue of public interest’ the
speech in question implicates—a question we answer by looking
to the content of the speech. (§ 425.16, subd. (e)(4).) Second, we
ask what functional relationship exists between the speech and
the public conversation about some matter of public interest. It
is at the latter stage that context proves useful.” (FilmOn, supra,7 Cal.5th at pp. 149-150.)
In practice, “virtually always, defendants succeed in
drawing a line—however tenuous—connecting their speech to an
6 The FilmOn inquiry is thus a two-step test within the
larger two-step test for resolving an anti-SLAPP motion. (See
Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) We apply the
FilmOn test in cases involving the catchall provision to
determine whether the defendant has met its burden at the first
step of the overall anti-SLAPP analysis: to show “that the
challenged claim arises from activity protected by section 425.16.”
(Baral v. Schnitt, supra, at p. 384.)
15
abstract issue of public interest.” (FilmOn, supra, 7 Cal.5th at
p. 150.) Indeed, as the court explained in its subsequent decision
on this subject, Geiser v. Kuhns (2022) 13 Cal.5th 1238 (Geiser),
“FilmOn’s first step is satisfied so long as the challenged speech
or conduct, considered in light of its context, may reasonably be
understood to implicate a public issue, even if it also implicates a
private dispute.” (Id. at p. 1253.) For this reason, “it is FilmOn’s
second step, not its first, that usually plays the more prominent
role in screening anti-SLAPP motions.” (Id. at p. 1250.)
To satisfy the second step of the FilmOn test, there must be
“ ‘some degree of closeness’ between the challenged statements
and the asserted public interest. [Citation.] . . . ‘[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.’ [Citations.]” (FilmOn, supra, 7 Cal.5th at
p. 150.) At this stage, “our inquiry does not turn on a normative
evaluation of the substance of the speech. We are not concerned
with the social utility of the speech at issue, or the degree to
which it propelled the conversation in any particular direction;
rather, we 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.)
FilmOn and Geiser provide examples of the application of
this test when there is (in the case of Geiser) or is not (in the case
of FilmOn) a sufficient connection between the speech and a
matter of public interest. The defendant in FilmOn was a
business offering tracking and verification services to internet
advertisers. In private reports to its clients, it flagged certain
websites owned by plaintiff FilmOn, asserting that the websites
16
contained adult content and facilitated copyright infringement.
(FilmOn, supra, 7 Cal.5th at p. 141.) FilmOn sued for trade libel,
tortious interference with contract, and other causes of action,
and the defendant filed an anti-SLAPP motion. The Supreme
Court held that the defendant’s reports did not qualify for
protection under the catchall provision. (Id. at p. 154.) The court
assumed the motion passed the first part of the test because
there was a connection between the defendant’s conduct and an
issue of public importance—children’s exposure to sexually
explicit content. (Id. at p. 152.) Even so, the anti-SLAPP motion
failed the second part of the test because the defendant’s
statements did not “further[ ] the public conversation on an issue
of public interest.” (Id. at p. 153.) The defendant’s reports were
issued privately to paying clients for business purposes alone.
“The information never entered the public sphere, and the parties
never intended it to.” (Ibid.) Although “no single element is
dispositive” (ibid.), these factors in combination were decisive.
The court reached the opposite conclusion in Geiser, supra,
13 Cal.5th 1238. That case began when a real estate developer
promised to work with two homeowners to allow them to recover
their property from foreclosure, before evicting them when they
were unable to arrange a repurchase quickly enough. The
homeowners enlisted the help of a community group, which
organized a protest outside the home of the developer’s chief
executive officer. The developer filed a petition for a civil
harassment restraining order against the homeowners and the
director of the community group, and the defendants responded
with an anti-SLAPP motion. (Id. at pp. 1243-1245.)
The court held that the defendants’ conduct met both steps
of the FilmOn test, and that the defendants were entitled to
17
protection under subdivision (e)(4) of the anti-SLAPP statute.
(Geiser, supra, 13 Cal.5th at p. 1243.) In particular, the
defendants’ actions satisfied the second step of the FilmOn
analysis because “[t]he context makes clear that this sidewalk
protest furthered public discussion of the public issues it
implicated.” (Geiser, supra, at p. 1255.) All parties, including the
members of the community organization and the developer,
appeared to understand that “the demonstration was not only
about the dispute over the [homeowners]’ long-term residence,
but also about broader issues concerning unfair foreclosures and
evictions.” (Ibid.)
Two recent Court of Appeal opinions have applied the
FilmOn test in cases involving the production of film and
television. In Ojjeh v. Brown (2019) 43 Cal.App.5th 1027 (Ojjeh),
the plaintiff invested in the defendants’ documentary about the
refugee crisis in Syria, then sued the defendants for breach of
contract and fraud, claiming they had done no significant work
toward making the film. (Id. at p. 1032.) The court applied the
FilmOn test and held that the plaintiff’s claims were based on
protected conduct within subdivision (e)(4) of the anti-SLAPP
statute. The court noted that, unlike the purely private
communications in FilmOn, the documentary was intended for a
public audience. (Ojjeh, supra, at p. 1043.) The defendants’
“efforts in obtaining the interview 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,
[the] defendants’ efforts to secure funding for the documentary’s
production [were] functionally related to the advancement of its
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message.” (Id. at p. 1044.) The court concluded that, “This ‘union
of content and context’ ([FilmOn, supra, 7 Cal.5th] 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.)” (Ojjeh, supra, at p. 1044.)
In Musero, by contrast, the court held that a talent agency
was not entitled to anti-SLAPP protection in a screenwriter’s
lawsuit for idea theft. The plaintiff alleged that he submitted a
pilot script for a television drama titled Main Justice to his agent,
who then used the plaintiff’s ideas to assist another writer in
developing a similar show with the same title. (Musero, supra, 72
Cal.App.5th at pp. 808-809.) The agency filed an anti-SLAPP
motion. The court held that the motion failed at the second step
of the FilmOn analysis. Although the creation of the competing
program “would be a topic of widespread public interest,” the
court concluded that “the degree of connection between [the
allegedly wrongful] statements and that topic of public interest
[was] insufficient to warrant protection under section 425.16,
subdivision (e)(4), as construed in FilmOn.” (Musero, supra, at
p. 821.)
The court noted that “the alleged misappropriation of
Musero’s ideas was done privately and, according to Musero’s
theory, from [the agent to the competing writer] during the many
telephone conversations that took place between them while [the
competing writer] was developing Main Justice. Although
communications between private individuals may qualify as
protected activity in some circumstances (see FilmOn, supra, 7
Cal.5th at p. 146; [citation]), the private nature of the
communications ‘makes heavier [a defendant’s] burden of
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showing that, notwithstanding the private context, the alleged
statements nevertheless contributed to discussion or resolution of
a public issue for purposes of subdivision (e)(4) [of section
425.16].’ [Citation.]” (Musero, supra, 72 Cal.App.5th at p. 821.)
B. Defendants’ Motions Fail at the Second Step of the
FilmOn Analysis
In applying this body of law to the present case, we need
not decide whether any of defendants’ conduct alleged in the
complaint satisfies the first step of the FilmOn analysis—that is,
whether “the speech at issue . . . implicate[s] issues of public
interest” (Geiser, supra, 13 Cal.5th at p. 1252)—because even
assuming that it does, defendants have not satisfied the second
part of the test. They have not shown a “functional relationship
. . . between [their] speech and the public conversation about
some matter of public interest.” (FilmOn, supra, 7 Cal.5th at
pp. 149-150.)
The key factor in our analysis is that all the speech7 at
issue in this case occurred in the course of private, for-profit
7 The Supreme Court has instructed that, in evaluating an
anti-SLAPP motion, “to the extent [the plaintiff] has alleged
various acts as a basis for relief and not merely as background,
each act or set of acts must be analyzed separately under the
usual two-step anti-SLAPP framework.” (Bonni v. St. Joseph
Health System (2021) 11 Cal.5th 995, 1012.) For this reason, the
trial court considered each of the nine alleged misrepresentations
in the first amended complaint separately, finding that the “film
statements” were protected activity, while the “derogatory
statements” were not. We disagree with this division, because all
of the alleged misrepresentations were part of a single effort to
convince the heirs to fire the Toberoff firm. All nine statements
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business. Although the Supreme Court has stressed that “no
single element is dispositive” (FilmOn, supra, 7 Cal.5th at p. 153)
in determining whether a defendant’s speech is entitled to
protection under the anti-SLAPP statute, the defendant’s burden
becomes “heavier” (Wilson v. Cable News Network, Inc. (2019) 7
Cal.5th 871, 903) when the speech occurs in private. It is difficult
for a defendant to show that its statement “contributes to or
furthers the public conversation” (FilmOn, supra, at p. 154) when
the statement was never intended for, and never reached, a wide
audience. For this reason, the public protest in Geiser was
protected activity (Geiser, supra, 13 Cal.5th at p. 1243), and the
private report by the defendant in FilmOn was not. (FilmOn,
supra, at p. 154.)
Defendants argue that the conduct on which the firm’s
complaint is based was not purely private. Even if the immediate
audience of the statements identified in the complaint was
limited, defendants contend that their conduct was functionally
related to the production of a new The Thing movie, which, if
made, would be released publicly. They compare their own
speech to that at issue in Ojjeh, where the court held that the
defendants’ speech was protected under the anti-SLAPP statute
even though their efforts to raise funding for, and then to
produce, a documentary, presumably occurred outside the public
eye. The court reasoned that the fundraising “was functionally
related to the advancement of” the film’s message because it “was
necessary for production, postproduction, promotion, and
distribution of the film.” (Ojjeh, supra, 43 Cal.App.5th at
have the same connection to protected activity, and we analyze
them together in this opinion.
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p. 1044.) Defendants argue that their alleged statements
regarding the heirs’ film rights were a necessary part of the
eventual production of a new The Thing movie.
We are not persuaded. The logical consequence of
defendants’ position would be to ignore the second step of the
FilmOn analysis such that virtually any lawsuit related to the
potential making of a film or television program for public
consumption would be entitled to protection under the anti-
SLAPP statute, because the defendant in any such case could
argue that its actions were necessary preliminary steps for the
potential production of the film or movie. The court in FilmOn
developed its two-part test to avoid this type of conclusion.
Because “virtually always, [the] defendants succeed in drawing a
line—however tenuous—connecting their speech to an abstract
issue of public interest” (FilmOn, supra, 7 Cal.5th at p. 150), the
first step of the analysis alone is insufficient.8
Defendants overlook differences between the circumstances
of this case and those in Ojjeh. In Ojjeh, the defendants had done
concrete work to fund and produce a specific documentary film—
including protected activity such as obtaining interview footage
and maintaining an online journal of refugees’ stories related to
the content and message of any eventual film. Indeed, the court
found that the plaintiff’s “allegations concern affirmative conduct
8 In their briefs, defendants place great emphasis on the
Geiser court’s statement that a defendant’s speech “may
reasonably be understood to implicate a public issue, even if it
also implicates a private dispute.” (Geiser, supra, 13 Cal.5th at
p. 1253.) But this statement applies to “FilmOn’s first step.”
(Ibid.) It is of minimal relevance in determining whether a
defendant’s conduct also satisfies the second step.
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regarding the quality and quantity of the performance [the
defendants] rendered in connection with the production of the
documentary.” (Ojjeh, supra, 43 Cal.App.5th at p. 1038.) In this
case, by contrast, there is no indication in the record that anyone
involved had more than a hazy and inchoate idea of what a future
The Thing movie would involve. And the dispute over whether or
not Toberoff and his firm were competent or had the heirs’ best
interests at heart had nothing to do with the content of any
finished product, and did nothing to contribute to any public
debate or conversation. To the extent Ojjeh holds that all actions
related to the production of a movie establish “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 p. 1044), we respectfully decline to
follow that portion of its holding.
Instead, we are persuaded by the court’s reasoning in
Musero. In that case, the plaintiff alleged that the defendant
misappropriated the plaintiff’s script to assist a competing writer.
The competing writer was surely engaged in preparatory work
necessary for the production of a television program based on his
own script, but the court held that “the degree of connection
between [the defendant’s] statements and that topic of public
interest is insufficient to warrant protection.” (Musero, supra, 72
Cal.App.5th at p. 821.) In part, this was because the alleged
misappropriation did not contribute much to the second writer’s
script. Even if the premises of the two shows bore surface
similarities, those similarities “contribute nothing to the
discussion of the issue of public interest identified by the
[defendants] or the trial court.” (Id. at p. 822.) The same is true
with regard to the private statements made here about who was
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best positioned to help exploit potential film rights; “when the
context and content of the specific, allegedly wrongful statements
at issue here are considered, the degree of connection between
those statements and [the] topic of public interest is insufficient
to warrant protection under section 425.16, subdivision (e)(4), as
construed in FilmOn.” (Musero, supra, at p. 821.)
Defendants attempt to distinguish Musero by noting that
during the events of that case, the public was unaware of the
existence of Main Justice, the allegedly infringing program that
the defendant helped produce. By contrast, The Thing series
enjoys a wide following, as defendants have amply shown in the
voluminous media clippings on the franchise they have submitted
for judicial notice. But the court in Musero did not reject the
defendants’ anti-SLAPP motion because of a lack of public
interest in the subject matter. Indeed, the court acknowledged
that “a proposed television series not only based on the life of
former Attorney General [Eric] Holder but also apparently
created in part by him would be a topic of widespread public
interest.” (Musero, supra, 72 Cal.App.5th at p. 821.) The key
factor, both in Musero and here, is not the popularity or public
awareness of a future film nor whether there is some connection
between the defendant’s statement and an issue of public
interest. Rather, it is whether the statement “contributes to—
that is, ‘participat[es]’ in or furthers—some public conversation
on the issue.” (FilmOn, supra, 7 Cal.5th at p. 151.) Defendants
have not met this burden with regard to the allegations here, so
they are not entitled to the protection of the anti-SLAPP statute.
Because defendants have failed to show that the firm’s
allegations arise from activity protected under section 425.16, we
need not consider whether the firm has demonstrated a
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probability of prevailing on the merits of any of its claims. (See
Musero, supra, 72 Cal.App.5th at p. 823.) Nor do we need to
consider the Toberoff firm’s argument that the trial court erred
by denying its request to conduct discovery in defending against
the anti-SLAPP motions.
DISPOSITION
The trial court’s order regarding the defendants’ anti-
SLAPP motions is reversed to the extent it granted the motions.
In all other respects, the order is affirmed. The Toberoff firm is
awarded its costs on appeal.
NOT TO BE PUBLISHED.
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
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