Jackson v. Mayweather

Filed 3/27/17 Certified for publication as modified 4/19/17 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SHANTEL JACKSON, B266466
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC555566)
v.
FLOYD MAYWEATHER, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Suzanne G. Bruguera, Judge. Reversed in
part and affirmed in part.
Rick Edwards, Inc. and Rick Edwards for Defendant and
Appellant.
Allred Markoko & Goldberg, Michael Maroko, Marcus
Spiegel, and John S. West for Plaintiff and Respondent.
________________
Following the final breakup of what she has described as a
physically and verbally abusive relationship with former boxing
champion Floyd Mayweather, Jr., Shantel Jackson sued
Mayweather for, among other claims, invasion of privacy (both
public disclosure of private facts and false light portrayal),
defamation and intentional and negligent infliction of emotional
distress. Those five causes of action were based, either entirely
or in substantial part, on Mayweather’s social media postings
about the termination of Jackson’s pregnancy and its relationship
to the couple’s separation and his comments during a radio
interview concerning the extent to which Jackson had undergone
cosmetic surgery procedures. Mayweather filed a special motion
to strike those causes of action pursuant to Code of Civil
Procedure section 425.16 (section 425.16). The trial court denied
the motion. We reverse that ruling with respect to Jackson’s
claims for defamation and false light portrayal, as well as her
cause of action for public disclosure of private facts based on
Mayweather’s comments about Jackson’s cosmetic surgery.
FACTUAL AND PROCEDURAL BACKGROUND
1. Jackson’s Complaint
Jackson’s complaint, filed September 4, 2014, recounted a
detailed story of the on-again, off-again abusive relationship
between a young aspiring model and actress and a highly
successful, well-known professional boxer. Jackson, then
21 years old, met Mayweather while working as a hostess at an
event in Atlanta in 2006. The two dated and developed a
romantic, intimate relationship. Jackson soon moved to
Las Vegas to live with Mayweather.
Jackson and Mayweather were a highly publicized celebrity
couple for a number of years and were at one point engaged to be
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married. However, the relationship frayed. Jackson alleged that
in August 2012, shortly after Mayweather’s release from jail
following his conviction on a domestic violence charge involving
another woman, she and Mayweather had an argument during
which he twisted her arm, choked her and forcibly took away her
cell phone so he could look through it. The couple reconciled after
Mayweather apologized and promised he would never again
assault Jackson.
In early April 2013, after continued difficulties between
them, Jackson decided to end her relationship with Mayweather
and moved to Los Angeles. Mayweather persuaded her to try
again to make the relationship work, and Jackson returned to
Las Vegas two weeks later. However, within a few days the
couple resumed arguing, and Jackson again told Mayweather she
was going to leave him. At one point during this period
Mayweather grabbed Jackson, restrained her and pointed a gun
at her foot while asking, “Which toe do you want me to shoot?”
Jackson alleged that while forcibly restraining her and with the
gun still pointing at her, Mayweather said he would not allow her
to leave. He then removed a $2.5 million diamond ring from her
finger and took earrings and other jewelry she was wearing.
That same evening Mayweather directed a member of his staff to
take additional items of Jackson’s personal property, which he
had stored at a secret location. During this period, according to
Jackson, Mayweather kept her a virtual prisoner in his
Las Vegas home, monitoring her activities and only allowing her
to leave if accompanied by one of his employees.
Jackson moved back to Los Angeles in June 2013. The
following month she discovered someone had broken into a
storage unit she rented in Southern California and stolen
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personal property she valued at more than $1 million.
Mayweather subsequently confessed he had arranged for the
removal of the items and told Jackson he would return them if
she came back to him. In late July 2013 Mayweather told
Jackson he would “put things out about” her unless she agreed to
return to Las Vegas. When she refused to return, Mayweather
posted her Los Angeles address on his social media pages and
falsely suggested he lived there. Jackson alleged she became
concerned for her safety when Mayweather’s fans came to the
address and then were disappointed to learn he was not there.
Mayweather continued to importune Jackson to return to
him and to attempt to make their relationship work. Jackson
agreed but said she would maintain her own home in California.
In November 2013 Jackson became pregnant by Mayweather.
Jackson alleged she told Mayweather and one friend of her
pregnancy, but no one else. A December 2013 sonogram revealed
Jackson was carrying twins. At Mayweather’s request Jackson
gave him a copy of the sonogram. According to the complaint,
“In January of 2014, Ms. Jackson’s pregnancy terminated and
Mr. Mayweather was so informed.”
When Jackson refused to move back to Las Vegas during
this period, Mayweather became verbally abusive and
threatening. During an argument in February 2014 in
Los Angeles, Mayweather once again physically restrained
Jackson, blocking the door to his condominium and preventing
her from leaving for more than one hour.
On April 12, 2014 Jackson attended a basketball game with
the rapper Nelly and posted a photograph of the two of them on
her social media pages. Mayweather threatened to post
photographs he had taken of Jackson sleeping naked if she did
4
not take down the Nelly photograph. Jackson rejected the
demand and also refused to reconcile with Mayweather. In
response, on May 1, 2014 Mayweather posted on his Facebook
and Instagram accounts, “the real reason me and Shantel
Christine Jackson @MissJackson broke up was because she got
an abortion, and I’m totally against killing babies. She killed our
twin babies. #ShantelJackson #Floyd Mayweather
#TheMoneyTeam #TMT.” Mayweather also posted a copy of the
sonogram of the twin fetuses and a summary medical report
regarding the pregnancy. Media outlets, including TMZ,
republished the sonogram and medical report. The following day
Mayweather again discussed Jackson’s abortion during a radio
interview and also stated she had undergone extensive cosmetic
surgery procedures.
Based on the allegations regarding Mayweather’s posting of
information about Jackson’s pregnancy and its termination,
including the sonogram and medical report, and the broadcast of
the statement she had cosmetic surgery on her face and body,
Jackson’s complaint asserted causes of action for invasion of
privacy (public disclosure of private facts), invasion of privacy
(false light portrayal) and defamation. Other general allegations
served as the bases for causes of action for conversion,
replevin/possession of personal property, battery, assault and
false imprisonment. Incorporating all of the allegations by
reference Jackson also asserted causes of action for intentional
infliction of emotional distress, negligent infliction of emotional
distress and civil harassment.
5
2. The Special Motion To Strike
a. The moving papers
Mayweather responded to Jackson’s complaint by filing a
special motion to strike five of the complaint’s 11 causes of action:
the two privacy causes of action, the defamation cause of action
and the causes of action for intentional and negligent infliction of
emotion distress. Mayweather argued these claims fell within
the ambit of section 425.16 because he and Jackson were in the
public eye and abortion is a topic of widespread public interest.
In support of the first point Mayweather presented evidence that
Jackson had promoted her own status as a celebrity and had
47,145 Twitter followers in January 2012 and 78,628 Twitter
followers by mid-September 2013, as well as 174,000 Instagram
followers in November 2013 and more than 258,000 by May 2014.
She also had her own website and, with Mayweather’s assistance,
had appeared on the Howard Stern radio program and on
television.
Contending there was no merit to Jackson’s claims,
Mayweather argued Jackson had surrendered her right to
privacy when she made herself newsworthy by virtue of her
relationship with Mayweather. She had willingly participated in
publication of private details about that relationship (her
reaction to sharing Mayweather with other women was given as
an example). Accordingly, the reason for the relationship’s
demise was equally newsworthy. As for the defamation and false
light claims, in his moving papers Mayweather asserted in
summary fashion there was no evidence the challenged
statements were false or had been made with actual malice.
Finally, Mayweather argued, because there was no evidence of
falsity or constitutional malice, the First Amendment protected
6
his posts and comments from Jackson’s claims the statements
had intentionally or negligently caused Jackson extreme
emotional distress.
b. Jackson’s opposition
In her declaration filed in opposition to the special motion
to strike, Jackson essentially repeated the narrative concerning
her relationship with Mayweather contained in her complaint.
With respect to Mayweather’s May 1, 2014 post that he had
ended their relationship because of the abortion, Jackson
declared, “He knew that the real reason I would not come back to
him was because he wouldn’t change his ways”—that is,
Mayweather would not alter his abusive behavior toward her.
She further declared she considered her pregnancy, the
termination of the pregnancy and her medical reports to be
private information, something that Mayweather knew.
With respect to the radio broadcast on May 2, 2014,
Jackson declared that any cosmetic surgery procedures she had
undergone were confidential. Moreover, during that broadcast
Mayweather had falsely said she had cosmetic surgery to change
her nose, chin and cheeks. Based on their long relationship and
prior discussions, Jackson declared, Mayweather knew that
statement was false. In addition, during the same broadcast
Mayweather had falsely claimed she terminated the pregnancy
because she was concerned about her looks and “didn’t want to
mess my body up.” According to Jackson the postings and false
statements by Mayweather caused a massive negative public
reaction, which included death threats and offensive comments
describing her as a “baby killer” and a “whore.”
In her legal memorandum in opposition to the motion,
Jackson argued Mayweather’s conduct giving rise to her claims—
7
his disregard for her medical privacy—was entirely unrelated to
the public debate over abortion.
c. Mayweather’s reply
In reply papers Mayweather emphasized that Jackson’s
evidentiary presentation had not disputed she was a public figure
and had publicized intimate aspects of her relationship with
Mayweather prior to their final breakup. He also noted Jackson
did not deny abortion was an issue of significant public interest
or that there was widespread interest in the couple’s breakup and
the reasons for it. He also contended that Jackson had conceded
in her complaint that she had undergone cosmetic surgery (on
her breasts and buttocks, Mayweather stated) and that in the
radio interview he had not said she had work done on her nose,
cheeks and chin, only that “a lot of pretty women” had. Finally,
Mayweather argued the real reason for the end of their
relationship (indeed, of any relationship) was a matter of opinion,
not a provable fact that could support a defamation cause of
action.
3. The Trial Court’s Order Denying the Motion
The trial court denied Mayweather’s motion in a 10-page
ruling. The court first found that Mayweather had satisfied his
burden of showing the five causes of action arose from protected
activity within the meaning of section 425.16, subdivision (e)(3)
and (4). The court explained abortion is an issue of widespread
interest, Jackson was a person in the public eye, and Jackson’s
relationship with Mayweather was a matter of public interest
and media attention. However, the court concluded Jackson had
established a likelihood of prevailing on each of her claims.
Citing case law, the court reasoned that whether Mayweather’s
statements were subject to a newsworthy privilege or were
8
otherwise protected by the First Amendment depended on
contemporary standards and thus was largely a question of fact
for a jury to decide. The court also ruled that Jackson’s evidence
was sufficient to establish a prima facie case that Mayweather
knowingly disseminated false information concerning the reasons
for the couple’s breakup and the extent of Jackson’s cosmetic
surgery.
DISCUSSION
1. Section 425.16: The Anti-SLAPP Statute1
Section 425.16 provides, “A cause of action against a person
arising from any act of that person 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 shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).) Pursuant to subdivision (e), 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’ 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
1
SLAPP is an acronym for “strategic lawsuit against public
participation.” (Oasis West Realty, LLC v. Goldman (2011)
51 Cal. 4th 811, 815, fn. 1.)
9
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.”
In ruling on a motion under section 425.16, the trial court
engages in what is now a familiar two-step process. “First, the
defendant must establish that the challenged claim arises from
activity protected by section 425.16. [Citation.] 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 (Baral).)
a. Step one
The moving party’s burden on the threshold issue is to
show “the challenged cause of action arises from protected
activity.” (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1056; see
Baral, supra, 1 Cal.5th at p. 396 [“[a]t the first step, the moving
defendant bears the burden of identifying all allegations of
protected activity, and the claims for relief supported by them”].)
“[T]he statutory phrase ‘cause of action . . . arising from’ means
simply that the defendant’s act underlying the plaintiff’s cause of
action must itself have been an act in furtherance of the right of
petition or free speech. [Citation.] In the anti-SLAPP context,
the critical point is whether the plaintiff’s cause of action itself
was based on an act in furtherance of the defendant’s right of
petition or free speech. [Citations.] ‘A defendant meets this
burden by demonstrating that the act underlying the plaintiff’s
cause [of action] fits one of the categories spelled out in
section 425.16, subdivision (e) . . . .’” (City of Cotati v. Cashman
(2002) 29 Cal. 4th 69, 78.)
10
“When relief is sought based on allegations of both
protected and unprotected activity, the unprotected activity is
disregarded at [the first] stage. If the court determines that
relief is sought based on allegations arising from activity
protected by the statute, the second step is reached.” (Baral,
supra, 1 Cal.5th at p. 396.) However, “if the allegations of
protected activity are only incidental to a cause of action based
essentially on nonprotected activity, the mere mention of the
protected activity does not subject the cause of action to an anti-
SLAPP motion.” (Scott v. Metabolife Internat., Inc. (2004)
115 Cal. App. 4th 404, 414; accord, Kenne v. Stennis (2014)
230 Cal. App. 4th 953, 967-968; World Financial Group, Inc. v.
HBW Ins. & Financial Services, Inc. (2009) 172 Cal. App. 4th 1561,
1574.)
b. Step two
At the second step of the section 425.16 procedure, “the
burden shifts to the plaintiff to demonstrate that each challenged
claim based on protected activity is legally sufficient and
factually substantiated. The court, without resolving evidentiary
conflicts, must determine whether the plaintiff’s showing, if
accepted by the trier of fact, would be sufficient to sustain a
favorable judgment.” (Baral, supra, 1 Cal.5th at p. 396; accord,
Zamos v. Stroud (2004) 32 Cal. 4th 958, 965.) Nonetheless, the
court should grant the motion “‘if, as a matter of law, the
defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim.’” (Taus v.
Loftus (2007) 40 Cal. 4th 683, 714; accord, Baral, at p. 385 [the
court “accepts the plaintiff’s evidence as true, and evaluates the
defendant’s showing only to determine if it defeats the plaintiff’s
claim as a matter of law”]; Zamos, at p. 965.)
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c. Burden of proof and standard of review
The defendant has the burden on the first issue; the
plaintiff has the burden on the second issue. (Chodos v. Cole
(2012) 210 Cal. App. 4th 692, 701; Kajima Engineering &
Construction, Inc. v. City of Los Angeles (2002) 95 Cal. App. 4th
921, 928.) We review the trial court’s rulings independently
under a de novo standard of review. (Flatley v. Mauro (2006)
39 Cal. 4th 299, 325; Rusheen v. Cohen, supra, 37 Cal.4th at
p. 1055.)
2. The Challenged Causes of Action Arose from Protected
Activity Under Section 426.16, Subdivision (e)(3)
a. The statements were made in a public forum
Mayweather’s postings on his Facebook page and
Instagram account and his comments about Jackson during a
radio broadcast were all made “in a place open to the public or a
public forum” within the meaning of section 425.16,
subdivision (e)(3). “Web sites accessible to the public . . . are
‘public forums’ for purposes of the anti-SLAPP statute.” (Barrett
v. Rosenthal (2006) 40 Cal. 4th 33, 41, fn. 4; accord, Summit Bank
v. Rogers (2012) 206 Cal. App. 4th 669, 693; Wong v. Jing (2010)
189 Cal. App. 4th 1354, 1366; see Wilbanks v. Wolk (2004)
121 Cal. App. 4th 883, 895 [statements published on defendant’s
website “hardly could be more public”].) Similarly, statements
during a radio interview meet subdivision (e)(3)’s public forum
requirement. (Seelig v. Infinity Broadcasting Corp. (2002)
97 Cal. App. 4th 798, 807 [public forum requirement satisfied
where “[t]he offending comments arose in the context of an on-air
discussion between the talk-radio cohosts and their on-air
producer”]; see Ingels v. Westwood One Broadcasting Services,
Inc. (2005) 129 Cal. App. 4th 1050, 1063 [radio call-in talk show].)
12
b. The statements concerned an issue of public interest
Although Jackson concedes that discussion of the ethical or
moral issues surrounding abortion involves a public issue, she
argues Mayweather’s actions were not connected to any
legitimate public interest in abortion and, therefore, the trial
court erred in finding the gravamen of her claims was based on
Mayweather’s protected activity. Rather, she insists, the
principal thrust of her action was harassment, not speech.
Accordingly, whether or not we agree Jackson established a
probability of prevailing on each of her claims against
Mayweather, she contends the trial court’s order denying the
2
motion to strike should be affirmed.
Jackson is correct that, simply because a general topic is
an issue of public interest, not every statement somewhat related
to that subject is also a matter of public interest within the
meaning of section 425.16, subdivision (e)(3) or (e)(4). For
example, in Dual Diagnosis Treatment Center, Inc. v. Buschel
(2016) 6 Cal.App.5th 1098 the Court of Appeal held, while
discussion of drug and alcohol rehabilitation services may well be
an issue of public interest, the licensing status of a single
rehabilitation facility—at issue in the case before it—was not.
(Id. at pp. 1105-1106 [“[t]here is no showing that the
San Clemente rehabilitation facility impacts, or has the potential
to impact a broad segment of society, or that the statements were
part of some larger goal to provide consumer protection
2
No cross-appeal is needed for Jackson to make this
argument. (Code Civ. Proc., § 906; see Mayer v. C.W. Driver
(2002) 98 Cal. App. 4th 48, 57 [respondent permitted to raise
argument without cross-appeal that trial court reached right
result “even if on the wrong theory”].)
13
information”; “[a]lmost any statement, no matter how specific,
can be construed to relate to some broader topic”].) Similarly, in
Consumer Justice Center v. Trimedica International, Inc. (2003)
107 Cal. App. 4th 595, 601, the Court of Appeal held that
advertising claims relating to the promised benefits of a specific
herbal supplement did not concern an issue of public interest
even if a broader discussion of alternative medicine or herbal
supplements in general might. (See Bikkina v. Mahadevan
(2015) 241 Cal. App. 4th 70, 84 [defendant’s statements “were only
remotely related to the broader subject of global warming or
climate change, and involved specific accusations of plagiarism
and use of a contaminated sample”]; Mann v. Quality Old Time
Service, Inc. (2004) 120 Cal. App. 4th 90, 111, disapproved on
another ground in Baral, supra, 1 Cal.5th at p. 392 [although
pollution is a matter of general public interest, defendants’
alleged statements “were not about pollution or potential public
health and safety issues in general, but about [the plaintiffs’]
specific business practices” and thus were not protected activity
within the meaning of § 425.16]; compare Commonwealth Energy
Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal. App. 4th 26,
34 [information about protecting consumers from investment
scams might be an issue of public interest but statements
concerning a company’s investigatory services are not] with Wong
v. Jing, supra, 189 Cal.App.4th at p. 1367 [web posting was of
public interest because it dealt with more general issue of effects
of dentists’ use of certain products, not just a highly critical
opinion of a particular dentist].)
Unlike the trial court we doubt whether Mayweather’s
assertion Jackson had an abortion, his posting of a copy of the
sonogram of the twin fetuses or his personal statement of
14
opposition to “killing babies” contributed to the public debate on
women’s reproductive rights. (See Wilbanks v. Wolk, supra,
121 Cal.App.4th at p. 898 [“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”];
cf. Gilbert v. Sykes (2007) 147 Cal. App. 4th 13, 23-24 [website
posting not only criticized a widely known plastic surgeon but
also contained information concerning “‘nightmare’ results that
necessitated extensive revision surgery,” thereby contributing to
the general debate of “pros and cons of undergoing cosmetic
surgery”].)
But we need not resolve that issue; for the evidence
unequivocally established, as Jackson concedes, that she and
Mayweather are both high profile individuals who were subject to
extensive media scrutiny. As such, Mayweather’s postings and
comments concerning his relationship with Jackson, as well as
Jackson’s pregnancy, its termination and her cosmetic surgery,
were “celebrity gossip” properly considered, under established
case law, as statements in connection with an issue of public
interest: “In general, ‘[a] public issue is implicated if the subject
of the statement or activity underlying the claim . . . was a person
or entity in the public eye.” (D.C. v. R.R. (2010) 182 Cal. App. 4th
1190, 1215; accord, Seelig v. Infinity Broadcasting Corp., supra,
97 Cal.App.4th at p. 807 [comments about a contestant on a
popular, reality-style television program]; Sipple v. Foundation
for Nat. Progress (1999) 71 Cal. App. 4th 226, 239-240 [article
3
about personal life of a nationally known political consultant].)
3
Arguably Mayweather’s postings of a copy of the sonogram
and summary of Jackson’s medical report are “conduct” in
“furtherance of his right of free speech” within the meaning of
15
This aspect of the threshold requirements of section 425.16
was thoroughly explored by our colleagues in Division Three of
this court in Hall v. Time Warner, Inc. (2007) 153 Cal. App. 4th
1337, an invasion of privacy action filed by Marlon Brando’s
retired housekeeper, a beneficiary named in Brando’s will. The
housekeeper sued the producers of the television program
Celebrity Justice, who had broadcast a taped interview of the
housekeeper at her nursing home. The housekeeper denied
authorizing either the interview or its broadcast. The Court of
Appeal reversed the denial of an anti-SLAPP motion filed by the
producers, explaining, “The public’s fascination with Brando and
widespread public interest in his personal life made Brando’s
decisions concerning the distribution of his assets a public issue
or an issue of public interest. Although [the housekeeper] was a
private person and may not have voluntarily sought publicity or
to comment publicly on Brando’s will, she nevertheless became
involved in an issue of public interest by virtue of being named in
Brando’s will. Defendants’ television broadcast contributed to
the public discussion of the issue by identifying [the housekeeper]
as a beneficiary and showing her on camera. We conclude that
the acts from which the complaint arises . . . constituted conduct
in furtherance of the defendants’ right of free speech ‘in
connection with a public issue or an issue of public interest’
(§ 425.16, subd. (e)(4)).” (Id. at p. 1347.)
Mayweather, like Brando, is someone whose professional
accomplishments and private life have generated widespread
section 425.16, subdivision (e)(4), rather than a “statement” or
“writing” in a public forum under subdivision (e)(3). However,
subdivision (e)(4), like (e)(3), applies when the challenged act
concerns “an issue of public interest.”
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public interest. A world champion boxer in five different weight
divisions, he was at one time listed as the highest paid athlete in
the world. In April 2013, while the events at issue in Jackson’s
complaint were occurring, Mayweather was the subject of a one-
hour primetime network documentary and appeared frequently
as a guest on television and radio programs. According to the
declaration filed in support of his special motion to strike,
Mayweather had “millions of social media followers.” Unlike
Brando’s retired housekeeper, however, the evidence also
demonstrated that Jackson willingly participated in publication
of information about her own life and her relationship with
Mayweather that others—that is, those who did not aspire to a
career in modeling and the entertainment industry—might well
consider private. Indeed, according to Mayweather, Jackson
asked him to help her become famous, which he did.
In sum, whether or not part of a larger campaign of
harassment, as alleged by Jackson, Mayweather established that
Jackson’s causes of action for invasion of privacy and defamation,
as well as for intentional and negligent infliction of emotional
distress to the extent based on his social media postings and
radio interview comments, arose from protected activity under
section 425.16. (See Olive Properties, L.P. v. Coolwaters
Enterprises, Inc. (2015) 241 Cal. App. 4th 1169, 1175 [“‘In the
context of the anti-SLAPP statute, the “gravamen is defined by
the acts on which liability is based.” [Citation.] The “focus is on
the principal thrust or gravamen of the causes of action, i.e., the
allegedly wrongful and injury-producing conduct that provides
the foundation for the claims.”’”]; Old Republic Construction
Program Group v. The Boccardo Law Firm, Inc. (2014)
230 Cal. App. 4th 859, 868 [“a cause of action arises from protected
17
conduct if the wrongful, injurious act(s) alleged by the plaintiff
constitute protected conduct”].) The burden thus shifted to
Jackson to demonstrate each challenged claim based on protected
activity was legally sufficient and factually substantiated.
(Baral, supra, 1 Cal.5th at p. 396.)
3. Jackson Failed To Demonstrate a Probability of
Prevailing on Her Cause of Action for Defamation and
Most Aspects of Her Causes of Action for Invasion of
Privacy
Jackson’s causes of action for public disclosure of private
facts, false light portrayal and defamation are based on
Mayweather’s May 1, 2014 social media postings regarding the
termination of her pregnancy and his reaction to it and on his
subsequent statements regarding her cosmetic surgery.
Although combined in Jackson’s pleading, each set of disclosures
is asserted as a ground for relief under the three legal theories
advanced in the invasion of privacy and defamation counts of her
complaint. Accordingly, as explained last year in Baral, supra,
1 Cal.5th 376, the second step of the analysis under
section 425.16 requires Jackson to separately establish a
probability of prevailing on each distinct claim for relief within
the three causes of action: “[T]he plaintiff must make the
requisite showing as to each challenged claim that is based on
allegations of protected activity.” (Baral, at p. 392; see id. at
p. 395 [“[n]either the form of the complaint nor the primary right
at stake is determinative”].)
Jackson’s causes of action for intentional and negligent
infliction of emotional distress, however, present an issue
regarding so-called “mixed causes of action” not directly
addressed in Baral. Although Jackson suggests that
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Mayweather’s comments regarding the termination of her
pregnancy and his statements concerning cosmetic surgery, at
least when considered together, constituted outrageous behavior
that caused her severe emotional suffering, when fairly read,
these tort claims challenge Mayweather’s entire course of conduct
toward her as she ended her relationship with him—not only the
social media postings and radio comments but also Mayweather’s
threats and other retributive behavior. That is, neither claim is
predicated solely on protected activity, but neither are those
allegations “merely incidental” or “collateral” to the claims for
relief. (Cf. Baral, supra, 1 Cal.5th at p. 394 [“[a]ssertions that
are ‘merely incidental’ or ‘collateral’ are not subject to
section 425.16”].) Accordingly, in evaluating Jackson’s
probability of prevailing on those two claims, a court would
necessarily look at the evidence concerning the entire range of
Mayweather’s alleged misconduct, not simply the protected
activity.
a. Invasion of privacy: public disclosure of private facts
“[U]nder California common law the dissemination of
truthful, newsworthy material is not actionable as a publication
of private facts.” (Shulman v. Group W Productions, Inc. (1998)
18 Cal. 4th 200, 215 (Shulman).) To establish tort liability for
4
this type of invasion of privacy, the plaintiff must plead and
prove (1) public disclosure (2) of a private fact (3) that would be
offensive and objectionable to the reasonable person and (4) is not
4
California courts have recognized four distinct types of
right of privacy claims: “(1) intrusion upon one’s physical
solitude or seclusion; (2) public disclosure of private facts;
(3) false light in the public eye; and (4) appropriation.” (Forsher
v. Bugliosi (1980) 26 Cal. 3d 792, 808.)
19
of legitimate public concern. (Taus v. Loftus, supra, 40 Cal.4th at
p. 717; Shulman, at p. 214.) With respect to the fourth element,
the Supreme Court held in Shulman, and reaffirmed in Taus,
that “newsworthiness” is a complete bar to liability for
publication of truthful information. (Taus, at p. 717 & fn. 14;
Shulman, at p. 215.) In analyzing the element of
newsworthiness, appellate decisions “balance[] the public’s right
to know against the plaintiff’s privacy interest by drawing a
protective line at the point the material revealed ceases to have
any substantial connection to the subject matter of the
newsworthy report.” (Schulman, at p. 224.)
Although “legitimate public interest does not include ‘a
morbid and sensational prying into private lives for its own sake’”
(Shulman, supra, 18 Cal.4th at p. 224), the protection accorded
the right to disseminate truthful information by both the common
law and the constitutional guarantee of freedom of expression
“‘appl[ies] with equal force to the publication whether it be a
news report or an entertainment feature . . . .’ Thus,
newsworthiness is not limited to ‘news’ in the narrow sense of
reports of current events. ‘It extends also to the use of names,
likenesses or facts in giving information to the public for
purposes of education, amusement or enlightenment, when the
public may reasonably be expected to have a legitimate interest
in what is published.’” (Id. at p. 225; see id. at p. 226
[“[i]ntensely personal or intimate revelations might not, in a
given case, be considered newsworthy, especially where they bear
only slight relevance to a topic of legitimate public concern”].)
The question whether a publication was newsworthy is
different, in both a legal and practical sense, from whether it was
offensive within the meaning of the private facts tort. Jackson’s
20
pregnancy, the subsequent termination of that pregnancy—
whether by abortion (which she has neither admitted nor denied)
or otherwise—and her use of cosmetic surgery to enhance her
appearance would, under many circumstances, be considered
intensely private information; and its unwanted disclosure might
well be offensive to a reasonable person. (Cf. Taus v. Loftus,
supra, 40 Cal.4th at pp. 733-734 [“personal information about a
person that happens to be known by the person’s relatives or
close friends is not information that has entered the public
domain”].) Nonetheless, at a time when entertainment news and
celebrity gossip often seem to matter more than serious policy
discussions, given Jackson’s high profile and voluntary disclosure
on social media of many aspects of her personal life, the
publication of those otherwise intimate facts must necessarily be
considered newsworthy under the broad definition of that term
developed and applied by the Supreme Court and courts of
appeal: “[T]here is a public interest which attaches to people
who, by their accomplishments, mode of living, professional
standing or calling, create a legitimate and widespread attention
to their activities. Certainly, the accomplishments and way of
life of those who have achieved a marked reputation or notoriety
by appearing before the public such as actors and actresses [and]
professional athletes, . . . may legitimately be mentioned and
discussed in print or on radio or television. Such public figures
have to some extent lost the right of privacy, and it is proper to go
further in dealing with their lives and public activities than with
those of entirely private persons.” (Carlisle v. Fawcett
Publications, Inc. (1962) 201 Cal. App. 2d 733, 746-747; accord,
Stewart v. Rolling Stone LLC (2010) 181 Cal. App. 4th 664, 677-
678; see Michaels v. Internet Entertainment Group, Inc. (C.D.Cal.
21
1998) 5 F. Supp. 2d 823, 840 [“[n]ewsworthiness is defined broadly
[by the California courts] to include not only matters of public
policy, but any matter of public concern, including the
accomplishments, everyday lives, and romantic involvements of
famous people”]; see generally Shulman, supra, 18 Cal.4th at
p. 228 [court may conclude “the disputed material was
newsworthy as a matter of law”].)
Although Jackson cannot base her private facts cause of
action on Mayweather’s disclosures that she had an abortion and
had undergone cosmetic surgery, Mayweather’s posting of the
sonogram of the twins Jackson had been carrying before her
pregnancy terminated and the summary medical report
regarding her pregnancy falls outside the protection accorded a
newsworthy report. On this record at least, publishing those
images served no legitimate public purpose, even when one
includes entertainment news within the zone of protection.
Rather, Mayweather’s Internet display of this material appears
equivalent to the unauthorized distribution of photographs of a
decapitated accident victim that the Court of Appeal in Catsouras
v. Department of California Highway Patrol (2010)
181 Cal. App. 4th 856 held properly served as the basis for an
invasion of privacy action by the decedent’s family.
The Catsouras court recognized that surviving family
members have no right of privacy arising from discussions of the
life of a decedent, but held they do have a common law privacy
right in the death images of the decedent. (Catsouras v.
Depatment of California Highway Patrol, supra, 181 Cal.App.4th
at pp. 863-864.) After quoting Shulman for the elements of a
claim of invasion of privacy based on the public disclosure of
private facts, the Catsouras court acknowledged such images may
22
5
involve issues of public interest. (Id. at p. 874.) However, citing
Diaz v. Oakland Tribune, Inc. (1983) 139 Cal. App. 3d 118, 126,
the Catsouras court explained, “morbid and sensational
eavesdropping or gossip ‘serves no legitimate public interest and
is not deserving of protection.’” (Catsouras, at p. 874; see
Michaels v. Internet Entertainment Group, Inc., supra,
5 F.Supp.2d at p. 839 [“While [Bret] Michael’s voluntary
assumption of fame as a rock star throws open his private life to
some extent, even people who voluntarily enter the public sphere
retain a privacy interest in the most intimate details of their
lives. [Citations] [¶] . . . Because they sought fame, [Pamela
Anderson] Lee and Michaels must tolerate some public exposure
of the fact of their involvement. [Citation.] The fact recorded on
the [disputed sex t]ape, however, is not that Lee and Michaels
were romantically involved, but rather the visual and aural
details of their sexual relations, facts which are ordinarily
considered private even for celebrities.”].)
Jackson has made a prima facie showing that
Mayweather’s publication of the sonogram and summary medical
report, like the Catsouras photographs and Michaels-Lee sex
tape, involved a “morbid and sensational” prying into her private
life and thus constituted a cognizable basis for her invasion of
privacy claim. Accordingly, Jackson adequately demonstrated a
5
The court also found that additional constitutional concerns
should be addressed if the plaintiff were seeking to impose civil
liability for invasions of privacy against a media defendant,
rather than law enforcement officers who had distributed
photographs of the victim of an automobile accident with no law
enforcement purpose. (Catsouras v. Department of California
Highway Patrol, supra, 181 Cal.App.4th at p. 874.)
23
probability of prevailing on her cause of action for public
disclosure of private facts based on the posting of these two
items. To that limited extent only, we affirm the trial court’s
ruling denying the special motion to strike as directed to
6
Jackson’s first cause of action for invasion of privacy.
6
Mayweather’s suggestion that First Amendment decisions
from the United States Supreme Court preclude imposition of
tort liability for publication of lawfully acquired, truthful
information, no matter how sensitive it may be and without
regard to its newsworthiness, is misplaced. Reviewing the
relevant cases in Gates v. Discovery Communications, Inc. (2004)
34 Cal. 4th 679, 694-695, the California Supreme Court explained,
as it had previously in Shulman, supra, 18 Cal.4th at pages 214-
218, that the issue of newsworthiness had not been given
extensive consideration by the United States Supreme Court
because the cases it considered involved public records made
available to the press, and its concern was the press’s
responsibility to report the operations of government, including
judicial proceedings, not disclosure of intimate details of the
plaintiff’s private life. Neither the United States Supreme Court
nor the California Supreme Court has held the First Amendment
necessarily precludes an invasion of privacy claim based on
allegations of harm caused by the publication of facts, as here,
obtained from a nonpublic source. (See, e.g., The Florida Star v.
B.J.F. (1989) 491 U.S. 524, 541 [109 S. Ct. 2603, 105 L. Ed. 2d 443]
[“We do not hold that truthful publication is automatically
constitutionally protected, or that there is no zone of personal
privacy within which the State may protect the individual from
intrusion by the press, or even that a State may never punish
publication of the name of a victim of a sexual offense. We hold
only that where a newspaper publishes truthful information
which it has lawfully obtained, punishment may lawfully be
imposed, if at all, only when narrowly tailored to a state interest
of the highest order, and that no such interest is satisfactorily
24
b. Defamation
“‘The elements of a defamation claim are (1) a publication
that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a
natural tendency to injure or causes special damage.’” (John
Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312; accord,
Taus v. Loftus, supra, 40 Cal.4th at p. 720; Wong v. Jing, supra,
189 Cal.App.3d at p. 1369.) “In general, . . . a written
communication that is false, that is not protected by any
privilege, and that exposes a person to contempt or ridicule or
certain other reputational injuries, constitutes libel.” (Shively v.
Bozanich (2003) 31 Cal. 4th 1230, 1242.) The defamatory
statement must specifically refer to, or be “of or concerning,” the
plaintiff. (Blatty v. New York Times Co. (1986) 42 Cal. 3d 1033,
1042.)
7
“If the person defamed is a public figure,[ ] he cannot
recover unless he proves, by clear and convincing evidence . . . ,
served by imposing liability under [the state statute at issue
here] to appellant under the facts of this case.”].)
7
As the United States Supreme Court explained in Gertz v.
Robert Welch, Inc. (1974) 418 U.S. 323, 351 [94 S. Ct. 2997,
41 L. Ed. 2d 789], the public-figure designation “may rest on either
of two alternative bases. In some instances an individual may
achieve such pervasive fame or notoriety that he becomes a
public figure for all purposes and in all contexts. More
commonly, an individual voluntarily injects himself or is drawn
into a particular public controversy and thereby becomes a public
figure for a limited range of issues. In either case such persons
assume special prominence in the resolution of public questions.”
(Accord, Khawar v. Globe Internat., Inc. (1998) 19 Cal. 4th 254,
263 [“There are two types of public figures: ‘Some occupy
positions of such persuasive power and influence that they are
25
that the libelous statement was made with ‘“actual malice’”—that
is, with knowledge that it was false or with reckless disregard of
whether it was false or not.’” (Reader’s Digest Assn. v. Superior
Court (1984) 37 Cal. 3d 244, 256; accord, Gertz v. Robert Welch,
Inc. (1974) 418 U.S. 323, 344-345 [94 S. Ct. 2997, 41 L. Ed. 2d 789]
[public figures may prevail in a libel action only if they prove that
the defendant’s defamatory statements were made with actual
knowledge of falsehood or reckless disregard for the truth]; see
Christian Research Institute v. Alnor (2007) 148 Cal. App. 4th 71,
8
84.) “The rationale for such differential treatment is, first, that
the public figure has greater access to the media and therefore
greater opportunity to rebut defamatory statements, and second,
that those who have become public figures have done so
voluntarily and therefore ‘invite attention and comment.’”
deemed public figures for all purposes. More commonly, those
classed as public figures have thrust themselves to the forefront
of particular public controversies in order to influence the
resolution of the issues involved. In either event, they invite
attention and comment.’”].)
Jackson does not dispute that she is properly considered a
public figure by reason of her celebrity status for purposes of her
invasion of privacy and defamation causes of action.
8
The term “actual malice” adopted by the United States
Supreme Court in New York Times Co. v. Sullivan (1964)
376 U.S. 254 [84 S. Ct. 710, 11 L. Ed. 2d 686] is now sometimes
referred to as “constitutional malice” to distinguish it from the
malice requirement for recovery of punitive damages under state
law as defined in Civil Code section 3294 (also known as “malice-
in-fact”). (See Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d
711, 745; Nadel v. Regents of University of California (1994)
28 Cal. App. 4th 1251, 1258, fn. 1.)
26
(Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001)
25 Cal. 4th 387, 398.)
Because a defamatory statement must contain a provable
falsehood, courts distinguish between statements of fact and
statements of opinion for purposes of defamation liability.
(GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal. App. 4th 141,
155; Summit Bank v. Rogers, supra, 206 Cal.App.4th at p. 695.)
“Though mere opinions are generally not actionable [citation], a
statement of opinion that implies a false assertion of fact is . . . .”
(Hawran v. Hixson (2012) 209 Cal. App. 4th 256, 289; accord,
GetFugu, at p. 156.) Thus, the “inquiry is not merely whether the
statements are fact or opinion, but ‘“whether a reasonable fact
finder could conclude the published statement declares or implies
a provably false assertion of fact.”’” (Hawran, at p. 289; see
Summit Bank, at p. 696 [“where an expression of opinion implies
a false assertion of fact, the opinion can constitute actionable
defamation”]; Franklin v. Dynamic Details, Inc. (2004)
116 Cal. App. 4th 375, 385 [“the question is not strictly whether
the published statement is fact or opinion,” but “[r]ather, the
dispositive question is whether a reasonable fact finder could
conclude the published statement declares or implies a provably
false assertion of fact”].)
Jackson’s complaint identified as the basis for her
defamation claim Mayweather’s May 1, 2014 social media posts
that the real reason their relationship ended was Jackson’s
abortion and his May 2, 2014 statements during a radio interview
that she had undergone extensive cosmetic surgery procedures.
According to Jackson, she, not Mayweather, ended their
relationship; she did so because he would not change his ways
(that is, because of his abusive behavior); and Mayweather’s
27
contrary explanation was deliberately false. Mayweather, in
response, has argued the reason a couple ended their relationship
is necessarily a matter of opinion and, therefore, cannot be the
basis for a defamation cause of action. He also argues his
comments about Jackson’s plastic surgery were in substance
true, even if Jackson’s surgery did not include all the body parts
to which he alluded. Although Mayweather’s analysis with
respect to the May 1, 2014 postings is flawed, we agree Jackson
failed to demonstrate a probability of prevailing as to either basis
for her defamation claim.
The breakup of a romantic relationship can be mutual or
unilateral. While it may be difficult in some instances to sort out
which party initiated the separation (or whether both did),
Mayweather’s unequivocal statement that he ended his lengthy
relationship with Jackson is an assertion of fact capable of being
proved true or false, not opinion. Similarly, his explanation that
he acted as he did because of his strong negative views on
abortion is a statement of fact that is either true or false.
Jackson’s declaration contesting the truth of these statements—
that she, not Mayweather, initiated the breakup; and she ended
the relationship because he refused to reform his abusive
behavior—if credited, established that Mayweather made a
provably false assertion of fact and did so knowingly, that is with
constitutional malice.
But more is required. Given that Jackson has not
contested the truth of Mayweather’s declaration that she had an
abortion, the statement that Mayweather ended his relationship
with Jackson for that reason does not appear to be defamatory.
On its face, the allegedly false part of the posts (the cause of the
breakup) did not expose Jackson to contempt, ridicule or other
28
reputational injury. (See Civ. Code, § 45 [defining libel]; Shively
v. Bozanich, supra, 31 Cal.4th at p. 1242.) Indeed, the evidence
Jackson presented of negative public reaction and the emotional
distress she suffered as a result of Mayweather’s May 1, 2014
posts focused on the abortion of the twin fetuses, not
Mayweather’s role in, or reasons for, ending the couple’s
relationship. The May 1, 2014 posts do not support Jackson’s
claim for defamation.
As for Mayweather’s comments during the May 2, 2014
radio interview, Jackson does not contest the fact that she has
had cosmetic surgery. However, she declared in opposition to
Mayweather’s motion that he had falsely stated she had surgery
9
to change her nose, chin and cheeks. Moreover, she asserted,
9
According to a transcript of the radio interview filed with
Jackson’s opposition papers, Mayweather said, “Every time we
get to talking, well, this girl don’t look better than me. That girl
don’t look better than me. That girl has a fake booty. Look at
that girl with the fake breast, but I am more like, everything you
you got on you is fake. You got a fake butt. You got fake titties.
I mean, you got work done on your face; so it is more like you talk
about everybody, but you are the one that – you are doing the
same thing.” Later in the interview Mayweather said, “A lot of
pretty women are very insecure because if you feel like you were
just a naturally beautiful woman, don’t mess with your nose.
Don’t mess with your cheeks. Don’t mess with your chin. Don’t
mess with your breast. You know, don’t mess with your ass, but
even if she didn’t want to do that . . . even if she did want to do
that, I loved you from the beginning, no matter how your face
look. How your breast looked. How your butt looked. Anybody is
entitled to do what they want to do, but just don’t criticize and
talk about other people doing it when everything on you is—
everything on you is work . . . .”
29
“[b]ased on our long relationship and prior discussions, he knew
those were false statements.”
In this court Jackson argues, without citation to evidence
in the record or legal authority, that the false assertion her entire
appearance was the result of cosmetic surgery was damaging to
her career. What she fails to address even in this conclusory
fashion, however, is how Mayweather’s exaggeration of the extent
of cosmetic surgery she tacitly concedes she had (on her breasts
and buttocks) created a different and negative effect on the radio
audience from that which the truth would have produced. As
Mayweather argues, falsity cannot be shown if the challenged
statements appear substantially true: “To bar liability, ‘“it is
sufficient if the substance of the charge be proved true,
irrespective of slight inaccuracy in the details.” [Citations] . . .
[Citation.] . . . Minor inaccuracies do not amount to falsity so
long as “the substance, the gist, the sting, of the libelous charge
be justified.” [Citations.] Put another way, the statement is not
considered false unless it “would have a different effect on the
mind of the reader from that which the pleaded truth would have
produced.”’” (Vogel v. Felice (2005) 127 Cal. App. 4th 1006, 1021;
accord, GetFugu, Inc. v. Patton Boggs LLP, supra,
220 Cal.App.4th at p. 154 [“‘[m]inor inaccuracies do not amount
to falsity so long as “the substance, the gist, the sting, of the
libelous charge be justified”’”]; Carver v. Bonds (2005)
135 Cal. App. 4th 328, 344-345 [a statement is not considered false
unless it would have a different effect on the mind of the reader
from that which the truth would have produced].)
It is certainly conceivable that surgical enhancement of the
face is different for the reputation of an actress or model from the
augmentation or sculpting of other parts of her body. But
30
Jackson presented no evidence in opposition to Mayweather’s
motion, expert or otherwise, that would permit a finder of fact to
draw that distinction. It was her burden to do so. Thus, the
radio comments concerning cosmetic surgery do not support a
defamation cause of action.
In her opposition papers in the trial court and again on
appeal, Jackson contends she was also defamed by Mayweather’s
false statement during the May 2, 2014 radio interview that she
had the abortion, at least in part, because she was concerned
about the impact of pregnancy and child birth on her appearance.
But whatever possible merit that claim may have, Jackson failed
to include it in her complaint. On review of a special motion to
strike pursuant to section 425.16, we must take the complaint as
it is. (Premier Medical Management Systems, Inc. v. California
Ins. Guarantee Assn. (2006) 136 Cal. App. 4th 464, 476.) “In order
to establish a probability of prevailing on the claim (§ 425.16,
subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion
must ‘“state[] and substantiate[] a legally sufficient claim.”’
[Citations.] Put another way, the plaintiff ‘must demonstrate
that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.’”
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal. 4th 811, 821;
accord, Baral, supra, 1 Cal.5th at pp. 384-385 [in ruling on a
special motion to strike the court’s inquiry “is limited to whether
the plaintiff has stated a legally sufficient claim and made a
prima facie factual showing sufficient to sustain a favorable
judgment”]; Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th
811, 820; Briggs v. Eden Council for Hope & Opportunity (1999)
19 Cal. 4th 1106, 1123.) Nor can Jackson amend her complaint to
31
cure this deficiency: “A plaintiff cannot avoid [an anti-]SLAPP
motion by amending the complaint.” (Hansen v. California
Department of Corrections & Rehabilitation (2008)
171 Cal. App. 4th 1537, 1547; accord, Contreras v. Dowling (2016)
5 Cal.App.5th 394, 411-412 [“‘[a] plaintiff . . . may not seek to
subvert or avoid a ruling on an anti-SLAPP motion by amending
the challenged complaint . . . in response to the motion’”]; Sylmar
Air Conditioning v. Pueblo Contracting Services, Inc. (2004)
122 Cal. App. 4th 1049, 1055; see Simmons v. Allstate Ins. Co.
(2001) 92 Cal. App. 4th 1068, 1073 [§ 425.16 makes no provision
for amending the complaint; “we reject the notion that such a
right should be implied”].)
In sum, the trial court erred in denying Mayweather’s
special motion to strike directed to Jackson’s defamation claims.
c. Invasion of privacy: false light portrayal
“False light is a species of invasion of privacy, based on
publicity that places a plaintiff before the public in a false light
that would be highly offensive to a reasonable person, and where
the defendant knew or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the
plaintiff would be placed.” (Price v. Operating Engineers Local
Union No. 3 (2011) 195 Cal. App. 4th 962, 970.) “A ‘false light’
claim, like libel, exposes a person to hatred, contempt, ridicule, or
obloquy and assumes the audience will recognize it as such.”
(M.G. v. Time Warner, Inc. (2001) 89 Cal. App. 4th 623, 636.) “‘A
“false light” cause of action is in substance equivalent to a libel
claim, and should meet the same requirements of the libel claim,
including proof of malice [where malice is required for the libel
claim].’” (Medical Marijuana, Inc. v. ProjectCBD.com (2016)
6 Cal.App.5th 602, 616; accord, Aisenson v. American
32
Broadcasting Co. (1990) 220 Cal. App. 3d 146, 161; see generally
Fellows v. National Enquirer, Inc. (1986) 42 Cal. 3d 234 [holding
statutory limitations on defamation actions apply when a false
light action is based on publication that is defamatory].) Indeed,
“[w]hen a false light claim is coupled with a defamation claim,
the false light claim is essentially superfluous, and stands or falls
on whether it meets the same requirements as the defamation
cause of action.” (Eisenberg v. Alameda Newspapers, Inc. (1999)
74 Cal. App. 4th 1359, 1385, fn. 13.)
In her brief Jackson acknowledges her false light claim is
based on the same statements as the cause of action for
disclosure of private facts—that is, Mayweather’s assertion that
he broke off the couple’s relationship because Jackson had an
abortion and his comments that she had cosmetic surgery on her
10
face, as well as other parts of her body. Those claims suffer
from the same fatal defects as Jackson’s defamation claim:
Mayweather’s allegedly false explanation for the couple’s breakup
did not expose Jackson to “hatred, contempt, ridicule, or obloquy”;
his exaggerated description of the extent of Jackson’s cosmetic
surgery was, in substance, truthful. Neither statement is
sufficient to establish a prima facie case for false light portrayal.
10
Jackson also argues Mayweather’s statement during the
May 2, 2014 radio interview that she had the abortion because
she “did not want to mess up” her body falsely portrayed her as
vain and selfish. As discussed, Jackson’s complaint did not
identify that statement or allege it as the basis for any of her tort
claims. Accordingly, it is not properly considered in determining
whether she has established a reasonable probability of
prevailing on her false light claim.
33
d. Intentional and negligent infliction of emotion
distress
A cause of action for intentional infliction of emotional
distress exists when there has been (1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff has suffered severe or extreme
emotional distress; and (3) the defendant’s outrageous conduct
was the actual and proximate causation of the emotional distress.
(Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050; Potter v. Firestone
Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1001.) “A defendant’s
conduct is ‘outrageous’ when it is so ‘“‘extreme as to exceed all
bounds of that usually tolerated in a civilized community.’”’
[Citation.] And the defendant’s conduct must be ‘“‘intended to
inflict injury or engaged in with the realization that injury will
result.’”’” (Hughes, at pp. 1050-1051.)
“Liability for intentional infliction of emotional distress
‘“does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” [Citation.]’
[Citations] . . . . [¶] With respect to the requirement that a
plaintiff show severe emotional distress, [the Supreme Court] has
set a high bar. ‘Severe emotional distress means “‘emotional
distress of such substantial quality or enduring quality that no
reasonable [person] in civilized society should be expected to
endure it.’”’” (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) It is
for the court to determine in the first instance whether the
defendant’s conduct may reasonably be regarded as so extreme
and outrageous as to permit recovery. (Chang v. Lederman
(2009) 172 Cal. App. 4th 67, 87; Fowler v. Varian Associates, Inc.
(1987) 196 Cal. App. 3d 34, 44.)
34
None of the postings or broadcast comments alleged in
Jackson’ complaint, whether considered individually or
collectively, may fairly be characterized as atrocious conduct
intolerable in a civilized society, even Mayweather’s posting of
Jackson’s sonogram and summary medical report, the only
arguably tortious acts challenged by the special motion to strike.
(See Cochran v. Cochran (1998) 65 Cal. App. 4th 488, 496 [“[t]he
rough edges of our society are still in need of a good deal of filing
down and in the meantime plaintiffs must necessarily be
expected and required to be hardened to a certain amount of
rough language, and to occasional acts that definitely
inconsiderate or unkind”]; see also Mintz v. Blue Cross of
California (2009) 172 Cal. App. 4th 1594, 1609.) As summarized
in comment d to the Restatement Second of Torts, section 46,
cited in Hughes v. Pair, supra, 46 Cal.4th at page 1051 and many
other appellate decisions considering this element of the tort, “It
has not been enough that the defendant has acted with an intent
to inflict emotional distress, or even that his conduct has been
characterized by ‘malice,’ or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” (Cf.
Comstock v. Aber (2012) 212 Cal. App. 4th 931, 954 [allegation
that employee had falsely accused fellow employee of committing
a sexual assault in a report to a nurse and the employer’s human
resources department insufficient to constitute extreme and
outrageous conduct].)
35
But as Jackson explains in her respondent’s brief, her
cause of action for intentional infliction of emotional distress “is
based upon the entire range of Mayweather’s conduct toward
Ms. Jackson.” Mayweather’s section 425.16 motion, of course,
does not challenge the nonspeech aspects of this claim—
allegations that Mayweather engaged in a campaign of
harassment, including verbal and physical abuse, that began long
before the May 1 and 2, 2014 public disclosures. Accordingly,
although Mayweather’s social media postings and comments
regarding Jackson during the radio interview may not, without
more, serve as the basis for a claim of intentional or negligent
infliction of emotional distress (see Baral, supra, 1 Cal.5th at
p. 392; see also Reader’s Digest Assn. v. Superior Court, supra,
37 Cal.3d at p. 265 [“liability cannot be imposed on any theory for
what has been determined to be a constitutionally protected
11
publication”]), evidence of those postings and comments may
11
There is no independent tort of negligent infliction of
emotional distress. (Potter v. Firestone Tire & Rubber Co., supra,
6 Cal.4th at p. 984.) “The tort is negligence, a cause of action in
which a duty to the plaintiff is an essential element. [Citations.]
That duty may be imposed by law, be assumed by the defendant,
or exist by virtue of a special relationship. [Citation.] [¶]
. . . [U]nless the defendant has assumed a duty to plaintiff in
which the emotional condition of the plaintiff is an object,
recovery is available only if the emotional distress arises out of
the defendant’s breach of some other legal duty and the
emotional distress is proximately caused by that breach of duty.
Even then, with rare exceptions, a breach of the duty must
threaten physical injury, not simply damage to property or
financial interests.” (Id. at pp. 984-985.) Whether Jackson’s
alleged severe or extreme emotional distress was proximately
36
properly be considered by a jury (or in connection with a motion
for summary judgment) when evaluating the merits of this claim.
DISPOSITION
The order denying the special motion to strike is reversed
with respect to Jackson’s causes of action for defamation and
false light portrayal and her cause of action for public disclosure
of private facts based on Mayweather’s comments about cosmetic
surgery. In all other respects the order is affirmed. The parties
are to bear their own costs on appeal.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.
caused by Mayweather’s breach of a cognizable legal duty is not a
question we need decide.
37
Filed 4/19/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SHANTEL JACKSON, B266466
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC555566)
v.
ORDER CERTIFYING
FLOYD MAYWEATHER, JR., OPINION FOR
PUBLICATION AND
Defendant and Appellant. MODIFYING OPINION
THE COURT:
The opinion in this case filed March 27, 2017 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), the party of interest’s request pursuant to
California Rules of Court, rule 8.1120(a) for publication is
granted.
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.
The court has read and considered appellant’s petition for
rehearing filed April 10, 2017. The court construes the petition to
be a request for modification.
IT IS FURTHER ORDERED that the opinion be modified
as follows:
1. The last sentence of the first paragraph on page 2,
beginning, “We reverse that ruling” is deleted and the following
sentence is inserted in its place:
We reverse that ruling with respect to Jackson’s claims for
defamation and false light portrayal, as well as her cause of
action for public disclosure of private facts based on
Mayweather’s statements that Jackson had an abortion
and his comments about her cosmetic surgery.
2. On page 6, in the first sentence of section 2 a, the word
emotion is changed to emotional.
3. At the top of page 34, the word emotion in subheading d
is changed to emotional.
4. On page 34, the disposition paragraph is deleted and the
following is inserted in its place.
The order denying the special motion to strike is reversed
with respect to Jackson’s causes of action for defamation
and false light portrayal and her cause of action for public
disclosure of private facts based on Mayweather’s
statements that she had an abortion and his comments
about cosmetic surgery. In all other respects the order is
affirmed. The parties are to bear their own costs on appeal.
There is no change in the judgment.
___________________________________________________________
PERLUSS, P. J. ZELON, J. SEGAL, J.
2