Cabot v. Lakin CA2/4 ( 2023 )

Filed 6/9/23 Cabot v. Lakin CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
G.A. CABOT, B316063
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21BBCV00228)
v.
CHRISTINE LAKIN, et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, John J. Kralik, Judge. Affirmed.
Law Offices of Paul S. Levine, Paul S. Levine, for
Plaintiff and Respondent.
Randazza Legal Group, Marc J. Randazza and Alex J.
Shepard; Altview Law Group and John M. Begakis, for
Defendants and Appellants.
INTRODUCTION
Plaintiff and respondent G.A. Cabot, a producer and
packager of entertainment projects, sued his former
production partner, Angela Watson, and podcast hosts
Christine Lakin and Alaa Khaled, for defamation.
Defendants collectively moved to strike the complaint under
Code of Civil Procedure section 425.16, the anti-SLAPP
statute,1 arguing the statements were made in connection
with an issue of public interest within the meaning of
subdivisions (e)(3) and (e)(4). The trial court disagreed and
denied the anti-SLAPP motion.
In this appeal, filed solely by defendants-appellants
Lakin and Khaled, we reject appellants’ contentions and
affirm the trial court’s order.
FACTUAL AND PROCEDURAL SUMMARY
A. Factual Background
1. Production Partnership Between Cabot and
Watson
Angela Watson was a cast member on the network
television series Step by Step, playing the character “Karen
Foster” for seven seasons, from 1991 to 1998.
1 SLAPP is the acronym for a strategic lawsuit against public
participation. All further undesignated statutory references are to the
Code of Civil Procedure.
2
In late 1996 or early 1997, Watson met G.A. Cabot, a
producer and packager of entertainment projects, through
her manager. Watson and Cabot subsequently formed a
partnership under the name “WatsUp Productions” that
pursued public relations and production development deals
for more than 20 years. Watson stopped working with Cabot
at some point in 2018.
2. Podcast Interview with Watson
On August 27, 2020, Watson appeared as a guest on a
podcast hosted by appellants Christine Lakin and Alaa
Khaled entitled the “Worst Ever Podcast.” Lakin was a
former cast member on the show Step by Step, and many of
the listeners are former fans of the show. According to
Lakin, the podcast does not hold itself out as a serious source
of news reporting and is instead “a fun, entertainment
oriented podcast.” Watson was invited to appear on the
podcast to discuss a Christmas single she had recently
recorded entitled “We Love Santa Claus.” The interview was
ultimately broken out into two podcast episodes that
appellants published online on November 27 and December
4, 2020.
During the episodes, Lakin mentioned that appellants
discussed Watson on the podcast previously and that Lakin
had reconnected with Watson in the last two years. After
discussing mask-wearing practices in response to COVID-19,
3
Lakin and Watson discussed their time on Step by Step and
their friendship during the run of the show.
Watson then mentioned that there were some untruths
about her online, and stated: “Yes, I did sue my parents.
That’s a truth, but I really was kind of brainwashed by a
certain person and turned against my whole family and my
whole cast and friends ….” Khaled added, “I think setting
the record straight and stomping on whatever people are
saying and coming from your mouth is the way to go. So you
got involved with this person, which we don’t even need to
mention who they are.”
Lakin subsequently observed: “I think what people
don’t understand is that in Hollywood, in other places, but I
think especially in the entertainment industry, where there
are people who are vulnerable and young and looking for
guidance, mentorship, success, a path, a career, it is very
easy to be manipulated … And there are people out here that
know how to do it. And this was, you were not like the first
person that he did this to.”
Watson responded that the person introduced her to a
number of talented people, filmed a video for a potential
pilot, and she saw “things happening,” which led her to
continue down the path, but things got “more intense” over
the past “five years . . . with him” whereas “[b]efore it was
kind of looser.” It was that “intense, like daily focus that
really kind of pushed [her] over the edge” and made her
“choos[e] to be happy.”
4
Watson stated that after she left him, she thought she
could have “negotiations” with him, but “unfortunately,
narcissistic abusers, that like that you can’t negotiate with
them.” After Khaled commended Watson for removing
herself from the situation, the conversation then moved
away from respondent, with Watson and Lakin discussing
Watson’s current professional career, including her “We Love
Santa Claus” song, and what it was like to film Step by Step.
After Watson appeared on the podcast, she inserted a
biography on her IMDb profile page discussing her
relationship with Cabot.2
B. The Complaint
Cabot’s first amended complaint, the operative
pleading, was filed on May 12, 2021, and alleged three
causes of action for defamation.
The complaint alleged as follows: Cabot met Watson in
1996 or 1997, when he was producing the packaging and
marketing elements for a pet care family video and Watson
became the spokesperson for the video. Watson and Cabot
thereafter formed a production partnership called “WatsUp
2 “IMDb” refers to the Internet Movie Database, a well-known
entertainment industry website identifying the talent, crew, and
entertainment companies working on motion picture projects. The
website also provides information concerning television, actors, and
other industry professionals. (John Doe 2 v. Superior Court (2016) 1
Cal.App.5th 1300, 1306, fn. 3; Kronemyer v. Internet Movie Database
Inc. (2007) 150 Cal.App.4th 941, 944.)
5
Productions” Cabot alleged that he and Watson had a nearly
22-year successful public relations and production
development relationship.
During that time, Cabot allegedly published
announcements in entertainment industry news publications
and promotional mailings. He secured “a musical stage play
that attracted international singer-actor, Robert Goulet” and
caused Watson to be “featured in the prestigious
entertainment industry Emmy Magazine.” Cabot
“facilitated years of WatsUp assisting many nonprofit
charity events for communities and families around the
country” and coordinated television telethons and a Grammy
Award recording artists’ concert hosted by Watson and
scripted by him. According to Cabot, all of this had “media
and entertainment industry benefits for Watson.”
Cabot alleged he was not responsible for Watson’s
lawsuit against her parents, in which she prevailed, or her
own renewals of several judgments entered by various courts
against her parents.
Cabot alleged that despite this successful business
relationship, Watson made a series of defamatory
statements, which he set forth in three causes of action.
The first cause of action, for libel per se, was based on a
profile Watson created under the name “Angela Watson” and
published on IMDb. The profile contained the following
statements:
6
“‘Even though a successful TV actress, Angela
was far from an experienced Hollywood wild
child, and unfortunately her innocence and
naivete were taken advantage of by a so called
‘production partner’ who promised to help her
transition into an adult actor with longevity in
the business. By the time her family and friends
realized he was actually a con man who was
brainwashing Angela, it was too late. Over the
next 20 years, not only was Angela isolated from
everyone she loved, but he also convinced her
that she had to sue her parents for supposedly
‘stealing her money,’ when in fact, he was the one
fleecing her acting earnings. Her relationship
with the narcissistic abuser turned into a daily
nightmare she couldn’t escape from. Thankfully,
Angela was able to secretly listen to some
YouTube videos that she now knows was actually
reprogramming her brain to choose to be happy
despite her circumstances. After two years of
doing so, she realized she had the courage and
strength to break free.’”
The second cause of action, for slander per se, was
based on allegations that Watson spoke to, sent text and/or
email messages to, and left voice messages for various men
and women who knew Cabot claiming that he “conned” and
“brainwashed” her, abused their working relationship, and
“fleeced” her of her acting earnings.
The third cause of action, for slander, alleged that on
November 27 and December 4, 2020, on Episodes 107 and
108 of the “Worst Ever Podcast,” Watson, Lakin, and Khaled
7
made various statements about a “‘certain person,’” a
“‘narcissistic abuser,’” who “brainwashed” Watson and
“‘turned [her] against [her] whole family and [her] whole cast
and friends’” and who “‘isolated’” her and told her “‘lies.’”
Cabot attached a transcript of the podcast episodes to the
Complaint.
Cabot alleged that these false statements were
understood to be concerning him and that his reputation had
been damaged.
C. The Anti-SLAPP Motion
On June 4, 2021, defendants collectively filed a special
motion to strike the complaint pursuant to section 425.16,
arguing that their speech was constitutionally protected
under the anti-SLAPP statute and that Cabot could not
demonstrate a probability of success on any of his causes of
action.
Specifically, defendants contended that the allegations
in the complaint arose from speech or conduct protected
under subdivision (e)(3) and (e)(4) of section 425.16 because
the alleged statements were made “in connection with” an
“issue of public interest” in that Watson “was and remains a
celebrity in the public eye by virtue of her long-running
appearance” on Step by Step. As such, “statements
regarding Cabot’s involvement, however private, in Watson’s
professional life are matters of public concern.”
8
Defendants also argued that “[n]otwithstanding the
public’s interest in Watson generally, the fair resolution of
sexual harassment and/or assault claims is also undeniably
a matter of public concern.” Defendants claimed that “each
and every Cause of Action in the [Complaint] arises, at least
in part, from Watson’s truthful retelling of her life
experiences with [Plaintiff], who utilized his position of
power over Watson as a ‘producer and packager’ to take
advantage of her and sexually assault her.”
Finally, defendants argued that “any statements from
the Podcast are matters of public concern because they were
statements made as part of an entertainment program.”
In support of their motion, defendants submitted
individual declarations.
Lakin and Khaled asserted that they did not know
Cabot and did not conduct any “pre-interview” with Watson
that might have revealed any information she provided
about Cabot. To the extent they made any comments about
Cabot, it was simply to ask Watson follow-up questions or
repeat what she had previously stated.
Watson also submitted a declaration. She asserted
that after she and Cabot formed their production
partnership in 1997, he convinced her to distance herself
from her friends and relationships. Cabot subsequently
convinced her to sue her parents and she “let Cabot make
the decisions regarding the lawsuit behind the scenes.”
According to Watson, in 2001, Cabot began taking
advantage of Watson sexually by convincing her that she
9
needed to have sex with him and other men as a means of
advancing her entertainment career. Watson did not want
to engage in such acts, but believed she had to because Cabot
“had convinced [her] that [she] needed him and such
‘training’ to advance [her] career.” In 2005, Cabot began to
physically abuse her, and in 2011, Cabot moved into her
home, at which time the physical abuse increased. In
August of 2018, Watson left Cabot by moving out of the
house, but left behind a detailed binder containing all the
pertinent information regarding their production business.
Watson stated that in August of 2020, Watson
appeared on appellants’ podcast to discuss a new song she
had recently recorded and released. “[T]he conversation
naturally developed into a discussion of [their] history
together on the Series, why [their] friendship had fallen
away, and what [she] was doing now,” which eventually led
her to discuss her relationship with Cabot.
D. Opposition to Anti-SLAPP Motion
In opposing the anti-SLAPP motion, Cabot pointed out
that “there [were] no sexual assault allegations made by
Watson in any of her libelous or slanderous statements, and
no such allegations were made by Watson, Lakin, or Khaled
during the podcasts.” Cabot argued that any private dispute
between Watson and him “is not ‘a topic of public interest’
and defendants have provided no evidence whatsoever that
it is.”
10
Cabot submitted a declaration denying Watson’s
allegations of abuse and/or psychological manipulation and
stated by the time he met Watson, she was in her twenties,
had been professionally performing for over a dozen years,
including the seven years on Step by Step, and had “talent
agents, a personal manager and others in her career.” Cabot
denied having any involvement in Watson’s lawsuit against
her parents and noted Watson was successful in suing her
parents and establishing they defrauded her out of millions
in earnings from her career.
Cabot submitted articles, letters, promotional
materials, and other documents representing projects with
Watson throughout their 20-year business relationship,
including articles documenting Watson’s work with the
California State Senate to strengthen protections for child
actors and her creation of CAST (Child Actors Supporting
Themselves).
E. Reply to Opposition
In a reply to Cabot’s opposition, defendants reasserted
their previous contentions and added that “Watson’s
statements for which she is being sued do include
accusations of sexual assault to the extent that she
references her relationship with a ‘narcissistic abuser.’”
Defendants further added that because the podcast was
available to the general public, “[d]efendants’ actions and
statements in connection with the Podcast constitute free
11
speech protected by the First Amendment on such basis
alone.”
Defendants also filed numerous evidentiary objections
to Cabot’s declaration and the supporting evidence he
submitted.
F. Trial Court’s Ruling on Anti-SLAPP Motion
In a written decision, the trial court denied defendant’s
motion to strike the complaint, finding that defendants
failed to satisfy the first prong of the Anti-SLAPP statute by
failing to demonstrate that the statements identified in the
complaint were made in connection with an issue of public
interest.
The court rejected defendants’ assertion the statements
alleged in the complaint were matters of public concern
because Watson is a “celebrity.” Citing Bernstein v. LaBeouf
(2019) 43 Cal.App.5th 15, 23-24 (Bernstein), the court
pointed out that a “defendant’s celebrity status, on its own,
is not sufficient to render anything the defendant says or
does subject to anti-SLAPP protections.” The court further
noted that there were no allegations that Cabot was a well-
known public figure, or someone in the public eye, or that he
has been involved in issues of public interest. The court
found that the statements made about Cabot — i.e., that he
was “a conman, that he brainwashed [Watson], stole money
from [Watson], etc.” concerned “private issues of [Watson’s]
personal life.”
12
To the extent defendants asserted the statements
concerned matters involving sexual harassment or assault,
the court observed that there were no statements involving
sexual harassment or assault in Cabot’s complaint for
defamation, the podcast transcript, or Watson’s IMDb
profile. The court rejected defendants’ assertion that
Watson’s characterization of Cabot as a “‘narcissistic
abuser’” equated to “sexual harassment/assault” as the court
could not find “this ambiguous phrase leads to such a
conclusion.”
Finally, as to defendants’ claim that the conduct or
statements of the complaint were matters of public concern
because they “were statements made as part of an
entertainment program” the court found this argument to be
based on mere “generalities” of the “‘entertainment
industry’” and thus too broad or amorphous to merit anti-
SLAPP protection.
The court thus found that defendants failed to
establish their burden on the first prong of the anti-SLAPP
statute and the burden therefore did not shift to Cabot to
show a probability of prevailing on the merits of his
complaint.3 The court denied the motion to strike.
Appellants Lakin and Khaled timely appealed from the
trial court’s order. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).
Watson is not a party to this appeal.
3 The trial court found it unnecessary to rule on any evidentiary
objections raised by the parties.
13
DISCUSSION
A. Anti-SLAPP Statute and Relevant Legal
Principles
1. Standard of Review
“We review de novo the grant or denial of an anti-
SLAPP motion” and “exercise independent judgment in
determining whether, based on our own review of the record,
the challenged claims arise from protected activity.” (Park v.
Board of Trustees of California State Univ. (2017) 2 Cal.5th
1057, 1067 (Park).) In addition to the pleadings, we may
consider affidavits concerning the facts upon which liability
is based (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096,
1104 (Symmonds)), and we accept as true the evidence
favorable to plaintiffs. (Flatley v. Mauro (2006) 39 Cal.4th
299, 325.)4
2. Section 425.16 The Anti-SLAPP statute
“Code of Civil Procedure section 425.16 provides a
procedure for the early dismissal of what are commonly
known as SLAPP suits (strategic lawsuits against public
4 Although an anti-SLAPP motion need not be directed at a cause
of action in its entirety, but “may be used to attack parts of a count as
pleaded” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393 (Baral)),
defendants collectively argued that all statements were equally
protected under section 425.16, subds. (e)(3) & (4).
14
participation)—litigation of a harassing nature, brought to
challenge the exercise of protected free speech rights. The
section is thus informally labeled the anti-SLAPP statute.”
(Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th
655, 665, fn. 3.)
Under section 425.16, a special motion to strike
involves a two-step process. First, the defendant must make
a prima facie showing that the plaintiff’s “cause of action …
aris[es] from” an act by the defendant “in furtherance of the
[defendant’s] right of petition or free speech … in connection
with a public issue.” (§ 425.16, subd. (b)(1); Cabral v.
Martins (2009) 177 Cal.App.4th 471, 478 [moving party must
show the act underlying the challenged cause of action fits
one of the categories described in section 425.16, subdivision
(e)].) If the defendant satisfies this threshold burden,
plaintiff must then demonstrate a reasonable probability of
prevailing on the merits. (Ibid.) If the defendant fails to
meet his or her burden on the first step, the court should
deny the motion and need not address the second step.
(Symmonds, supra, 31 Cal.App.5th at pp. 1103-1104.)
3. The Statutory Subdivisions on Appeal: (e)(3)
& (e)(4)
The anti-SLAPP statute protects activity described in
section 425.16, subdivision (e). Subdivision (e) provides: an
“‘act in furtherance of a person’s right of petition or free
speech under the United States or California Constitution in
15
connection with a public issue’ includes: (1) any written or
oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral
statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law, (3)
any written or oral statement or writing made in a place
open to the public or a public forum in connection with an
issue of public interest, or (4) 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); see Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1117-1118 [discussing
types of statements covered by anti-SLAPP statute].)
Both subdivision (e)(3) and (e)(4) require a showing
that a statement be “‘in connection with’ an issue of public
interest.” (Bernstein, supra, 43 Cal.App.5th at p. 23, fn. 5.)
In addition, subdivision (e)(3), requires that the statements
be made in a public forum, while subdivision (e)(4) also
protects private communications. (Wilbanks v. Wolk (2004)
121 Cal.App.4th 883, 897-898 (Wilbanks).)
In the trial court, defendants collectively argued the
statements underlying all three causes of action met the
requirements of both subdivision (e)(3) and (e)(4). On
appeal, appellants focus on section (e)(3), given that the only
cause of action pled against appellants (as opposed to
16
Watson) turned on statements made on a public podcast.
Cabot, however, argues that appellants forfeited their right
to make any subdivision (e)(3) arguments because they did
not separately argue the merits of subdivision (e)(3) in the
trial court. We find no forfeiture.
First, appellants expressly cited both subdivisions in
their anti-SLAPP motion, and the trial court so recognized.
Second, appellants cited to Seelig v. Infinity Broadcasting
Corp. (2002) 97 Cal.App.4th 798 (Seelig), in arguing that
“statements made in a radio broadcast constitute[] free
speech under the first prong of the anti-SLAPP statute.”
Third, Cabot does not dispute appellants’ assertion that any
statement made during their Podcast, which was made
available online and accessible to the general public, falls
within the “public forum” requirement of (e)(3). (See Seelig,
supra, 97 Cal.App.4th at pp. 801, 807 [comments made
during on-air radio discussion between talk radio co-hosts
and their on-air producer fell within the “open forum” clause
of subdivision (e)(3)]; Wilbanks, supra, 121 Cal.App.4th at p.
897 [explaining that the “Web, as a whole, can be analogized
to a public bulletin board” and thus statements made on
Web qualify as having been made in a public forum]; Cole v.
Patricia A. Meyer & Associates (2012) 206 Cal.App.4th 1095,
1121 [“An Internet Web site that is accessible to the general
public is a public forum”].)
As such, the only issue we must determine in this
appeal is whether the statements uttered during appellants’
17
podcast were made in connection with an issue of public
interest.5
B. Relevant Cases
1. FilmOn and the “Wilbanks Rule”
The anti-SLAPP statute does not define “public
interest.” In FilmOn.com Inc. v. DoubleVerify Inc. (2019)
7 Cal.5th 133, 140, (FilmOn), our high court explained that
“[i]n articulating what constitutes a matter of public
interest, courts look to . . . specific considerations” including
whether the subject of the speech or activity (1) “‘was a
person or entity in the public eye’” or “‘could affect large
numbers of people beyond the direct participants’” [citation];
(2) “‘occur[red] in the context of an ongoing controversy,
dispute, or discussion’” [citation]; (3) or “‘affect[ed] a
community in a manner similar to that of a governmental
entity.’” [Citation.] (Id. at pp. 145-146.)
Our high court noted that courts have nevertheless
continued to struggle “to articulate the requisite nexus
between the challenged statements and the asserted issue of
public interest—to give meaning, in other words, to the ‘in
connection with’ requirement.” (FilmOn, supra, 7 Cal.5th at
p. 149). The Court sought to clarify the issue by adopting
5 In any event, as indicated in our discussion, post, the result is
the same under either (e)(3) or (e)(4).
18
“the Wilbanks rule” announced in Wilbanks, supra, 121
Cal.App.4th 883, wherein the court explained that “‘it 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.’” (FilmOn, supra, 7 Cal.5th
at p. 150, quoting Wilbanks, supra, 121 Cal.App.4th at
p. 898, italics added.)6 Our high court further quoted Dyer v.
Childress (2007) 147 Cal.App.4th 1273, 1280 for the
proposition that “[t]he fact that ‘a broad and amorphous
public interest’ can be connected to a specific dispute is not
enough.”7 (FilmOn, supra, 7 Cal.5th at p. 150.)
6 Prior to setting out this requirement, the Wilbanks court noted
that both (e)(3) and (3)(4) “are limited by the requirement that the
statement or conduct be connected with an issue of public interest.”
(Wilbanks, supra, 121 Cal.App.4th at p. 897-898.)
7 After adopting the Wilbanks rule, our high court noted that the
nexus-related inquiry “is one a court can hardly undertake without
incorporating considerations of context—including audience, speaker,
and purpose” (FilmOn, supra, 7 Cal.5th at pp. 151-152) and
articulated a two-part test for the (e)(4) inquiry: First, the court asks
what public issue or issue of public interest the speech in question
implicates—a question answered by looking to the content of the
speech. (Ibid.) Second, the court asks “what functional relationship
exists between the speech and the public conversation about some
matter of public interest”—a question answered by considering the
context of the speech. (Id. at p. 150.)
In this appeal, appellants acknowledge that under FilmOn,
statements are not protected if they are “‘too tenuously tethered to the
issues of public interest they implicate, and too remotely connected to
the public conversation about these issues.’” but state that “the two-
part analysis in FilmOn . . . has no application in determining whether
alleged conduct is protected under subdivision (e)(3)” because
(Fn. is continued on the next page.)
19
In conducting our analysis, we also find instructive the
following cases: Albanese v. Menounos (2013) 218
Cal.App.4th 923 (Albanese); Bernstein, supra, 43 Cal.App.5th
15; and Woodhill Ventures, supra, 68 Cal.App.5th 624.
2. Albanese, Bernstein, and Woodhill Ventures
i. Albanese v. Menounos
In Albanese, a stylist who worked on the set of Access
Hollywood, sued television personality Maria Menounos for
subdivision (e)(3) contains an express context requirement — i.e., that
the statements were made in a “public forum.” We need not delve into
this issue.
Appellants have failed to show how a formal application of the
two-part FilmOn test would lead to a different result under subdivision
(e)(3), and we discern no difference in this case. (See Woodhill
Ventures LLC v. Yang (2021) 68 Cal.App.5th 624, 632 (Woodhill
Ventures) [rejecting contention that statements were protected under
(e)(3) by citing FilmOn’s overall conclusion that defendant’s statements
were “‘too tenuously tethered to the issues of public interest they
implicate’”]; cf. FilmOn, supra, 7 Cal.5th at p. 151 [after adopting
Wilbanks rule and setting out two-part test, Court noted that its
holding adds no additional requirement to (e)(4) and is simply a
“reasonable interpretation of the provision’s existing requirement that
statements be made ‘in connection with’ an issue of public interest—an
interpretation informed by the statutory purpose explicitly articulated
in the preamble to the anti-SLAPP Statute”]; Bernstein, supra,
43 Cal.App.5th at p. 23, fn. 5 [applying two-part FilmOn test in
analyzing both (e)(3) and (e)(4) and concluding there was no reason to
find that FilmOn’s analysis did not apply to both prongs of anti-SLAPP
statute given that both subdivisions contain the same “in connection
with” requirement].)
20
defamation after Menounos accused Albanese of stealing
from her while she was employed by Menounos. (Albanese,
supra, 218 Cal.App.4th at p. 926.) The appellate court
affirmed the denial of Menounos’ anti-SLAPP motion,
determining that even assuming that Albanese herself was
“rather well known in some circles for her work as a
celebrity stylist and fashion expert, there is no evidence that
the public is interested in this private dispute concerning
her alleged theft of unknown items from Menounos.” (Id. at
p. 936.)
ii. Bernstein v. LaBeouf
Bernstein concerned video footage of defendant Shia
LaBeouf, an actor, confronting Bernstein, a bartender who
had refused to serve LaBeouf alcohol, and calling him a
racist, which was posted on the internet and broadcast on
television. (Bernstein, supra, 43 Cal.App.5th at p. 18.)
Bernstein sued LaBeouf for assault, slander, and intentional
infliction of emotional distress, and LaBeouf countered with
an anti-SLAPP motion. (Ibid.) The appellate court affirmed
the denial of LaBeouf’s anti-SLAPP motion, stating that
while “racism is undoubtedly an issue of public interest, a
defendant cannot convert speech that would otherwise not be
[subject to the anti-SLAPP statute] into protected activity by
‘defining the [ ]narrow dispute by its slight reference to the
broader public issue.’” (Id at p. 24.) The court further found
that the matter was a private dispute even though LaBeouf
21
was a famous actor, and the public has an interest in the life
and work of entertainers for anti-SLAPP purposes. (Id. at
p. 23 [“celebrity status, on its own, is not sufficient to render
anything the [plaintiff] says or does subject to anti-SLAPP
protection”].)
iii. Woodhill Ventures v. Yang
In Woodhill Ventures, the wife of a “[s]elf-proclaimed
celebrity jeweler” with 1.5 million social media followers,
Ben Yang, ordered a cake from Big Sugar Bakeshop (Big
Sugar) for the couple’s seven-year-old son. (Woodhill
Ventures, supra, 68 Cal.App.5th at pp. 626, 627.) Big Sugar
created a cake, pursuant to Yang’s wife’s instructions, which
appeared to be topped with a knocked-over beaker from
which pill-like objects spilled. (Id. at p. 638.) When the
Yangs received the cake, they believed the fondant pills
looked too realistic and demanded an apology and a refund.
(Id. at pp. 626-627, 628.)
Dissatisfied with the bakery’s response to his
complaints, Yang aired his grievance on his podcast and to
his 1.5 million followers on social media. (Id. at p. 627.) Big
Sugar accused Yang of making several false statements
about the bakery, including the following on Instagram, a
social media platform: “‘Anyone in their even high mind
would know that you should NEVER EVER PUT DRUGS
ON A 7 year old kids [sic] bday cake!’” (Id. at p. 628.) Yang
filed an anti-SLAPP motion contending that his statements
22
were protected speech under the statute. The trial court
disagreed and denied the motion. (Id. at p. 630.)
On appeal, in considering whether Yang’s speech
concerned an issue of public interest, the court rejected
Yang’s contention that his statements were of public interest
because he was a celebrity with 1.5 million social media
followers and Big Sugar had been published in national
publications. The court pointed out that Big Sugar is a small
business, with two shops in Los Angeles (id. at p. 634), while
Yang’s own celebrity status did not automatically mean that
everything he said was of public interest. (Id. at p. 633.)
The court also rejected Yang’s contention that “his
statements involve an issue of public interest because they
were about the dangers of ‘candy confusion,’ or children
mistakenly eating pills they believe are candy.” (Id. at
p. 632.) The court concluded that although candy confusion
was a topic of public interest, Yang’s statements lacked a
sufficient degree of closeness to that topic and were instead
an unprotected effort “‘“to gather ammunition”’ in his spat
with Big Sugar. [Citation.].” (Id. at pp. 632-633.)
C. Analysis
In this appeal, appellants argue that any statements
on the Podcast were protected under the anti-SLAPP statute
due to Watson’s celebrity status. Appellants also seek to
redefine the “issue of public interest” in terms broader than
those advanced in their anti-SLAPP motion below. For the
23
reasons explained below, appellants’ efforts are
unconvincing.
1. Watson’s purported celebrity status is, in and of
itself, insufficient to warrant anti-SLAPP
protection for the statements at issue
Appellants discuss at length Watson’s purported
celebrity status, noting that “[t]here is literally an entire
industry that thrives off of reporting on celebrities and
actors – and a sub-genre of ‘where are they now?’
productions” and that “paparazzi snap photos of the most
mundane tasks being performed by celebrities.”
However, as the holdings of Albanese, Bernstein, and
Woodhill Ventures, make clear, celebrity status does not
automatically immunize every statement that a celebrity
makes.8 (Bernstein, supra, 43 Cal.App.5th at pp. 23-26;
Woodhill Ventures, supra, 68 Cal.App.5th at p. 633;
8 As indicated in our procedural summary, respondent alleged in
his complaint that all three defendants (Watson, Lakin, and Khaled)
were liable for slander for the statements made during the podcast,
and defendants collectively filed their anti-SLAPP motion and argued
that all statements alleged in the complaint were protected as
statements made in connection with a public issue under subdivisions
(e)(3) and (e)(4) of the anti-SLAPP statute.
Given that our opinion is limited to prong one of the anti-SLAPP
statute, we need not assess whether any or all statements identified in
the podcast-related claim of the complaint are attributable to
appellants; instead we treat appellants and Watson as a singular
entity for purposes of our discussion.
24
Albanese, supra, 218 Cal.App.4th at p. 936.) Instead, these
cases illustrate that where the statements target an
individual or entity who does not reside in the public eye,
defendants cannot rely on their own fame to broadly sweep
into anti-SLAPP protection. (See, e.g., Bernstein, supra, at
pp. 23-26; Woodhill Ventures, supra, at p. 633.)
Appellants nevertheless attempt to do so by citing
Seelig, supra, 97 Cal.App.4th at pp. 807-808, and arguing, if
“[t]he court in Seelig found that a one-time contestant of a
reality show was a public figure” then “a recurring cast
member for 7 seasons of a nationally syndicated television
show is certainly one as well.” However, the comments in
Seelig were not uttered by the plaintiff but were about her
and her participation in a television show that “generated
considerable debate within the media on what its advent
signified about the condition of American society” at that
time. (Id. at p. 807.) Specifically, in Seelig the appellate
court determined that statements made on a radio show
regarding the plaintiff’s participation on Who Wants to
Marry a Multimillionaire satisfied the public interest
standard because “[b]y having chosen to participate as a
contestant in the [s]how, plaintiff voluntarily subjected
herself to inevitable scrutiny and potential ridicule by the
public and the media.” (Id. at pp. 807-808.)
Here, as the trial court pointed out, appellants did not
allege that respondent himself, the target of the statements,
is a public figure or person in the public eye. Moreover, in
Watson’s own declaration she stated that “Cabot was a very
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private person who did not seek personal publicity resulting
from his work with me.” As such, appellants failed to
sustain their burden with respect to this category of public
interest. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122,
1132-1133 [“‘those charged with defamation cannot, by their
own conduct, create their own defense by making the
claimant a public figure’”].)9
2. Appellants’ attempts to reframe the “issue of
public interest” on appeal are unpersuasive
In their opening brief, under the heading “The
Relevant Public Issue,” appellants argue that “[t]he [podcast]
episode is not about Respondent” but about “Watson and
Lakin’s time on Step by Step, Watson’s disconnection from
the show’s cast members caused by an abusive and
manipulative agent, and Watson’s successful struggle to free
herself from this relationship.”10 Appellants assert that
9 We note that in their anti-SLAPP motion, appellants in passing
cited Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, to observe
that “even statements about a private person and their involvement in
the private activities of a celebrity can become an issue of public
interest . . .” Appellants make no mention of Hall in any of their briefs
before this court. Given this — and the fact that the court in Bernstein
thoroughly discussed the unique features of Hall (Bernstein, supra, 43
Cal.App.5th at pp. 25-26) —we do not discuss Hall in this opinion.
10 Appellants define the term “agent” as a “general term for
managers, agents, promoters and others who assist in developing a
celebrity’s career” and state that “[r]espondent’s specific job title in
relation to the work he performed for Watson is immaterial.” We note,
(Fn. is continued on the next page.)
26
“[t]he deliberate choice not to identify Respondent shows
that the subject of the podcast episodes was not any kind of
personal dispute Watson had with Respondent, but rather
providing information to the podcast’s audience about the
dangers young actors in Hollywood can face.”
There are several problems with appellants’ position on
appeal. First, the question of whether or not the statements
were actually about respondent is relevant to the merits of
respondent’s claim. (See Blatty v. New York Times Co.
(1986) 42 Cal.3d 1033, 1042-1046 [discussing “of and
concerning” aspect of defamation].) In addressing the first
prong of the anti-SLAPP statute, we accept the plaintiff’s
allegations as true (Park, supra, 2 Cal.5th at p. 1067), and
appellants conceded in their first prong argument below that
the statements alleged in the FAC were about respondent
and Watson’s personal relationship with him.
Second, in the trial court, appellants identified the
issue of public interest differently than they do presently,
namely as one of “sexual harassment and/or assault.”
However, the challenged statements did not discuss sexual
harassment or assault. As the trial court observed, there
were no statements about sexual harassment or assault in
either Cabot’s complaint for defamation or the podcast
however, that in arguing the merits prong of the anti-SLAPP statute in
the trial court, appellants argued that the statements in the complaint
could not reasonably be construed to be about respondent because he
“never formally represented [Watson] as an agent or manager, or in
any other role as a public-facing representative.”
27
transcript. Thus, the allegations made by Watson in a
separate (and wholly disputed) declaration she submitted in
support of the anti-SLAPP motion could not provide a basis
upon which defendants could meet their burden on the
initial prong. (See Medical Marijuana, Inc. v.
ProjectCBD.com (2016) 6 Cal.App.5th 602, 621 [“It would be
inappropriate for us to insert into a pleading claims for relief
based on allegations of activities that plaintiffs simply have
not identified . . . . It is not our role to engage in what would
amount to a redrafting of the first amended complaint . . . .
and then assess whether the pleading that we have
essentially drafted could survive the anti-SLAPP motion
directed at it”]; cf. Moriarty v. Laramar Management Corp.
(2014) 224 Cal.App.4th 125, 135 [noting defendant’s anti-
SLAPP argument was based on a “selective reading” of the
complaint].)
To the extent appellants now argue that the
statements were about the “exploitation of young actors” or
“the dangers young actors in Hollywood can face” or “the
exploitation of young actors by their agents” (after redefining
the term “agent”), these arguments were not set forth in the
initial anti-SLAPP motion, and respondent did not have the
opportunity to oppose them. (Cabral v. Martins, supra, 177
Cal.App.4th at p. 478 [stating, generally, that anti-SLAPP
movant must make “‘“a threshold showing that the
challenged cause of action is one arising from protected
activity . . . by demonstrating that the act underlying the
plaintiff's cause fits one of the categories spelled out in
28
section 425.16, subdivision (e)”’”], italics added; see also
World Financial Group, Inc. v. HBW Ins. & Financial
Services Inc. (2009) 172 Cal.App.4th 1561, 1569 [stating
anti-SLAPP movants forfeited new arguments regarding
content of speech], disapproved on other grounds in FilmOn,
supra, 7 Cal.App.5th 133, 246); cf. Keener v. Jeld-Wen, Inc.
(2009) 46 Cal.4th 247, 264 [forfeiture rule is designed to
promote efficiency and deter gamesmanship].)
Further, appellants’ arguments bespeak an effort to tie
a specific or personal dispute to “‘a broad and amorphous
public interest’” (FilmOn, supra, 7 Cal.5th at p. 150) — or a
“synecdoche theory of public issue in the anti-SLAPP
statute,” where “[t]he part [is considered] synonymous with
the greater whole.” (Commonwealth Energy Corp. v.
Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34).
“[V]irtually always, defendants succeed in drawing a line—
however tenuous—connecting their speech to an abstract
issue of public interest.” (FilmOn.com Inc., 7 Cal.5th at
p. 150.) However, we must determine whether the
statements at issue in some manner “contribute to the public
debate.” (FilmOn, supra, 7 Cal.5th at p. 150, quoting
Wilbanks, supra, 121 Cal.App.4th at p. 898.)
Here, the statements were made about the private
relationship between Watson and respondent. While Watson
had enjoyed celebrity decades prior and may still have been
known to listeners of the podcast, there is no evidence that
this relationship with respondent was the subject of any
“‘ongoing controversy, dispute, or discussion’” (cf. FilmOn,
29
supra, 7 Cal.5th at p. 145; quoting Du Charme v.
International Brotherhood of Electrical Workers (2003) 110
Cal.App.4th 107, 119.) — or that respondent himself is a
public-facing agent, producer, or other individual. (FilmOn,
at p. 145.) Moreover, Watson went on the show for the
purpose of speaking about the release of her Christmas song.
Appellants admit that the Worst Podcast Ever is not a
serious source of news reporting but a fun show that attracts
listeners interested in entertaining topics. Thus, based upon
the content and context of the statements, they were not
made in connection with an issue of public interest such that
they are protected. (FilmOn, supra, at pp. 148-149.)
Accordingly, and for the reasons discussed throughout
this opinion, we must affirm the trial court’s order.11
11 In light of our decision, we need not reach the second step of the
section 425.16 analysis, namely, whether there is a probability of
success on the merits. (See Baral, supra, 1 Cal.5th at p. 385 [second
step reached only if “the defendant makes the required showing” as to
protected activity].)
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DISPOSITION
The order denying the anti-SLAPP motion is affirmed.
Respondent shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
CURREY, Acting P.J.
COLLINS, J.
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