ORIGINAL 2B 24 25 26 2 LOUIS P. PETRICH (State Bar No. 38161) ELIZABETH L. SCHILKEN (State Bar No. 241231) EVA S, NEUBERG (State Bar No. 252192) FILED LEOPOLD, PETRICH & SMITH, P.C. superior CoureCalloria 2049 Century Park East, Suite 3110 Bounty ot Los Angeles [Los Angeles, California 90067-3274 ‘Tel.: (310) 277-3333 * Fax: (310) 277-7444 MAR 24 2015 Email: Ipetrch@ipsla.com: eschilken@Ipsla.com; eneuberg@Ipsla.com A css ocak Attorneys for Defendants ANNAPURNA PICTURES, wien Nea Deputy ATLAS ENTERTAINMENT, INC. and COLUMBIA PICTURES INDUSTRIES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT PAUL BRODEUR, CASE NO. BC562288 Plaintiff, UNLIMITED JURISDICTION Mel [Assigned for all purposes to the ATLAS ENTERTAINMENT, INC.; Honorable Terry A. Green] ANNAPURNA PRODUCTIONS LLC d/b/a ANNAPURNA PICTURES; COLUMBIA DEFENDANTS’ REPLY IN SUPPORT OF PICTURES INDUSTRIES, INC. and FIRST | MOTION TO STRIKE COMPLAINT DOE THROUGH FIFTIETH DOE, DATE: April 1, 2015 pe TIME 845 am DEPT: 14 Complaint Filed: October 30, 2014 Discovery Cut-Off: Motion Cut-Off: Trial Date: 28 DEFENDANTS” REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINT20 21 n 2B 4 25 26 2 28 Defendants Atlas Entertainment, Inc. Annapurna Productions LLC and Columbia Pictures Industries, Inc. (“Defendants”) make this Reply in support of their Code of Civil Procedure section 425.16 motion to strike and to reply to Plaintiff's Opposition (“Opp.”). All parties agree that during the time period covered by the Movie, Abscam, popular culture and the dangers of microwaves were subjects of public interest. So is a story that recounts that past, however irreverently. The Movie is speech about a matter of public interest and, as a matter of law, the argumentative statement by an unhinged character was not reasonably understood as a defamatory statement of fact about Plaintiff. I. DEFENDANTS HAVE CARRIED THEIR BURDEN TO SHOW THAT THE CLAIM ARISES FROM DEFENDANTS’ CONDUCT IN THE EXERCISE OF THEIR RIGHTS OF FREE SPEECH ON A MATTER OF PUBLIC INTEREST A. Brodeur’s Opposition Improperly Conflates The Two Prongs Of The Required ‘Analysis Under Cal. Civ. P. §425.16 Section III (B) of the Opposition improperly conflates the two distinct prongs of the required legal analysis under California Code of Civil Procedure Section 425.16 by asserting, for example, that “Defendants” use of Mr. Brodeur’s name in association with a statement he did not make . ..” (Opp. at 8); Defendants’ “associating Mr. Brodeur’s identity with a false statement” (Id.) and Defendants’ “misquoting an environmental expert on the dangers of microwave ovens” (Opp. at 7) constitute unprotected speech not involving any public interest. These highly conclusory statements actually beg the question presented under the second prong of the Section 425.16 analysis—whether Brodeur can demonstrate there is a probability he will prevail on his claim(s). See Defendants’ ‘Motion at 1,4, They are irrelevant to the threshold inquiry under Section 425.16: whether his claims arise from any act of Defendants in furtherance of their free speech rights in connection with a public issue. Lieberman v. KCOP Television, Inc., 110 Cal. App.A™ 156, 163-64 (2003) (second prong issues are irrelevant to first prong inquiry) B. The DyerDecision Is Inapplicable Here Brodeur’s heavy reliance (Opp. at 1, 6, 7) on Dyer v. Childress, 147 Cal.App.4" 1273 (2007) is misplaced, as that case’s facts are distinguishable from this case. Dyer’s holding rested on the findings that “there is no discernable public interest in Dyer’s persona” (Dyer, 147 Cal. App.4" at 1280; “Dyer . .. did not interject himself into any public debate” (/d. at 1281); and that “the defendants fail to show Dyer similarly was a public figure...” /d. The court distinguished Dyer 1 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINT20 21 2 2B 24 25 26 2 28 from plaintiffs in earlier Anti-SLAPP cases on the basis that the others “were directly connected to a discussion of topics of widespread public interest” (Id.), while Dyer was not—the use of his name for the movie's protagonist, appearing throughout, was essentially an “inside joke.” Id. at 1277. In stark contrast, Brodeur by his own admission and description is a well-known author and reporter whose career has been characterized by repeatedly injecting himself into public controversies and debates over environmental health and safety issues: specifically, through his 1977 book The Zapping of America, his writings for The New Yorker, and interviews such as the People magazine interview Plaintiff attaches to his Opposition, all of which concerned the safety of microwave ovens. Friedman Decl. I/S/0 Opposition, 6 & Ex. A, p. 1; Rivamonte Decl, I/S/O Opposition, 5 & Ex. D. In addition, unlike the plaintiff in Dyer, Brodeur’s name is referenced in only one scene of the Movie, the scene which is the subject of his Complaint. Complaint at 8-9; Motion at 3-4; Gordon Decl. I/S/O Motion, ${8-11; Ex. D to Gordon Decl. [Lodged DVD]. Moreover, recent Anti-SLAPP case law has not followed Dyer’s narrow approach to what constitutes conduct in furtherance of free speech rights in connection with an issue of public interest. The more current trend in Anti-SLAPP case law is to give broad protection to actions even very indirectly related to or supporting exercise of such rights in connection with a public interest issue, and similarly define what constitutes such an issue in extremely broad terms. See, e.g., Tamkin v. CBS Broadcasting, Inc., 193 Cal.App.4” 133, 143-44 (2011) (use of plaintiffs’ names as “placeholders” in early draft scripts and dissemination of casting synopses including names were acts in furtherance” of free speech rights pursuant to §425.16(e)); Greater Los Angeles Agency On Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 424 (9" Cir, 2014) (decision to display online videos without closed captioning constituted conduct in furtherance of First Amendment protected right pursuant to §425.16(e)); Nygard, Inc. v. Uusi-Kertuula, 159 Cal.App.4” 1027, 1042 (2008) (case law and legislative history indicate “an issue of public interest” under 425.16(e) is “any issue in which the public is interested”) (emphasis in original). Plaintif's Opp. at 8 fails to explain why Nygard is not controlling precedent. Brodeur tries (Opp. at 8) to distinguish Tamkin from the present action by arguing that the reference to him in the Movie “in no way helped ‘advance’ Defendants’ story about the Abscam DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINTN a a wi 20 al 2 23 24 25 26 2 28 scandal.” But the film’s reference to Plait ff and concerns generated by the increasingly ‘widespread use of microwave ovens certainly did ‘advance” the broader exploration and evocation lof late 1970s culture that characterized the Movie and figured prominently in the public’s interest in it, See, e.g. Ex. B to Rivamonte Decl. I/S/O Opposition, p. 4 (“American Hustle’ giddily embraces the excesses ofits era... . all the shiny surfaces, the glitter ball and the gaudiness, also suggest a world in which everyone is anxious to shake off the post-Vietnam War, post-Watergate funk, The ghost of Richard M. Nixon hovers in the air . . .”). The subject scene also underscored the adversarial personal relationships between the main characters, helping illuminate the character of Rosalyn and the dynamics between her and her husband Irving. These relationships are part of the Movie’s story and a focus of the public’s interest in it. See Ex. D to Gordon Deel. I/S/O Motion; Exs. B and C to Rivamonte Decl. I/S/O Opposition. Brodeur’s narrow focus on the ABSCAM content of the Movie ignores that the Movie’s subjects included not only the ABSCAM scandal itself, but the broader late-1970s culture that produced it (Motion at 6; Ex. D to Gordon Decl. I/S/O Motion; Ex. B to Rivamonte Decl. 1/S/O. Opposition, p. 4; Ex. C to Rivamonte Decl.). Even the narrower issue about the public’s unease concerning microwaves was highlighted in the sole scene that is the focus of Brodeur’s Complaint. All three topics are indisputably matters of public interest and/or public issues as those terms have been broadly defined. See, e.g., Nygard at 1042; Wong v. Jing, 189 Cal. App.4" 1354, 1367 (2010) (safety of use of silver amalgam and nitrous oxide by dentist was a public issue under first prong of Anti-SLAPP analysis)." C. The Movie Is Not Relegated To Lesser First Amendment Protection Because It IsFictionalized Brodeur’s Opposition insinuates that the fact that the Movie is not a news report or documentary lessens the degree of First Amendment protection extended to its contents or renders more “newsy” cases inapposite, See Opp. at 2-3, 8-9. Nothing could be further from the truth: as the law cited in Defendants’ Motion makes clear, ‘mere’ entertainment or fictional content is ' The New York Times and Los Angeles Times reviews of the Movie submitted by Brodeur (Exs. B and C to Rivamonte Decl. I/S/O Motion) support the notion that it is about both the ABSCAM scandal and the broader cultural “moment” that produced it 3 DEFENDANTS" REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINT20 oa. 2 2B ve 24 25 26 sto 27 28 accorded the full weight of First Amendment protection under California law. See, e,g., Motion at 5; Polydoros v. Twentieth Century Fox Film Corp., 67 Cal.App.4" 318, 323-24 (1997) (fictional The Sandlot film about coming of age in 1960s San Fernando Valley constitutionally protected speech ‘in the same manner as political treatises or topical news stories”); Tamkin, 193 Cal.App.4" at 138- 39 (episode of fictional CSJ: Crime Scene Investigation television show with subplot about married realtors caught up in mortgage crisis was protected speech; “public interest” evidenced by high ratings); Davis v. Casta-Gavras, 654 F Supp. 653, 658-59 (S.D.N.Y. 1987) (movie “Missing” though a docu-drama is protected by First Amendment). D. The Opposition Mis-Cites Case Law And Unpersuasively Tries To “Dismiss” In addition to Dyer, Brodeur relies (Opp. at 6) on City of Cotati v. Cashman, 29 Cal. 4" 69 (2012) for the proposition that the focus of the first prong inquiry is “on the specific words that formed the basis of the entire work in which the words appeared” (Id.). However, City of Cotati is not about an expressive “work” or “specific words” at all. It concemed whether a state court lawsuit for declaratory relief regarding a municipal ordinance, initiated by a city in response to a federal court declaratory relief action filed by mobile home park owners regarding the ordinance, constituted a SLAPP. 29 Cal. 4" at 71-72. The California Supreme Court held that it did not. Jd. at 79-81. That holding is inapplicable here. Similarly, Mann? v, Quality Old Time Service, Inc., 120 Cal.App.4" 90 (2004) was a mixed- result decision in which the California Court of Appeal reversed a trial court’s denial of defendants’ Anti-SLAPP Motion as to a trade libel cause of action, while affirming as to a slander cause. 120 Cal.App.4" at 105-107. As in City of Cotati, no expressive “work” was at issue; rather, the case concerned anti-competitive activities directed against a company that maintained industrial water systems. Jd. at 100-101. Again showing how broadly California courts construe the first prong of, Section 425.16, the Court of Appeal found that even false reports of environmentally hazardous activities to government agencies were protected exercises of free speech rights under the first prong of the statute. /d. at 104-05. ? Mis-cited as “Moore,” Opp. at 6. 4 DEFENDANTS” REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINT see ee eee ee ee ee eee ee eee eee ee2 wo 20 21 2 2B 4 25 26 21 28 Lieberman v, KCOP Television, Inc., supra, 110 Cal.App.4” 156 (2003), cited by Defendants (Motion at 7), is summarily dismissed by Brodeur as “ha{ving] no bearing on the present situation.” Opp. at 9. But Lieberman is yet another example of how, following the California Legislature's specific directive via legislative amendment that C.C.P. section 425.16 be construed broadly (see Motion at 4-5, n. 6), the courts have interpreted the statute’s first prong far more broadly than Brodeur. In Lieberman, the Court of Appeal found that surreptitious recording of a conversation by a news organization in violation of California Penal Code section 632 nevertheless constituted conduct in furtherance of free speech rights in connection with a public issue under the first prong of C.CP. section 425.16. 110 Cal.App.4" at 161, 165. IL. PLAINTIFF HAS NOT SHOWN, AND CANNOT SHOW, THAT HE CAN PREVAIL ON THE MERITS OF HIS CLAIMS A. Plaintiff Ignores His Burden To Produce Evidence In Response To Defendants’ ‘Anti-SLAPP Motion Once an Anti-SLAPP defendant has carried its burden of showing that the plaintiff's claims arise out of defendant's valid exercise of its constitutional right of free speech on matters of “public interest,” the burden shifts to the plaintiff to prove that he has a “probability of prevailing” on any of| his causes of action. C.C.P. §425.16(b)(1). However, Plaintiff fails to acknowledge his duty to present admissible evidence under the second prong of the Anti-SLAPP analysis, Plaintiff relies on the allegations of his Complaint in characterizing the contents of the Film, and states that “the complaint’s allegations must be accepted as true” in deciding Defendants’ Motion. Opp. at 3, 4, 13, 14. He is mistaken, Plaintiff relies on Arce v. County of Los Angeles (2012) 211 Cal. App.4" 1455, 1471, but Arce involved review of a trial court's sustaining a demurrer (C.C-P. §430.30(a)), and the granting of a motion for judgment on the pleadings (C.C.P. §438(d)). In both circumstances, the grounds for objection must appear on the face of the pleadings, or from matters subject to judicial notice. C.C.P. §§430.30(a); 438(d). By contrast, when deciding an Anti- SLAPP Motion “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” Jd, (emphasis added). “In opposing an Anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINT20 al 2 2B 24 25 26 a 28 produce evidence that would be admissible at trial.” IMS Capital, Inc. v. Lawyers Title Co., 118 |Cal.App.4" 204, 212 (2004)? Thus, Plaintiff cannot change the contents of the Film, a copy of ‘which was submitted as an exhibit in support of Defendants’ Motion (Defendants’ Declaration of Donald Gordon, $12, Ex. D). The Film speaks for itself. B. Masson v. Yorker Magazine, Rather Than Supporting Plaintiff's Claims, Militates Against Finding “Rosalyn’s” Line Of Dialogue An Assertion Of Fact Plaintiff's reliance on Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.24 447 (1991), Opp. at 1, 9-11, is misplaced, as Masson in fact supports the dismissal of his claim, Masson involved a news article in The New Yorker magazine, which was presented to readers as completely factual in nature. Id. at 513. That article was not a “screwball comedy” that /was prefaced by a joke alluding to its lack of factual accuracy. See Rivamonte Decl., $3, Ex. B. Rather, it was a news piece that was “published in ... a magazine which at the relevant time seemed to enjoy a reputation for scrupulous factual accuracy.” Masson, $01 U.S. at $13. Indeed, Masson held that “fabricated quotations” may not be actionable when the work at issue is a work of fiction: In other instances, an acknowledgment that the work is so-called docudrama or historical fiction, or that it recreates conversations from ‘memory, not from recordings, might indicate that the quotations should not be interpreted as the actual statements of the speaker to whom they are attributed. Id. at $11, 512-513 (emphasis added); see Motion at 8. Here, the movie is not only “historical fiction” inspired by the Abscam scandal, but it explicitly wams viewers that it cannot be taken as factually accurate: “Mr. Russell [the director] doesn’t seem all that interested in veracity, and the movie opens with a playful assurance that ‘some of this actually happened’....” Opp. at 3 (quoting reviewer). Plaintiff's own exhibits describe the Film as a “screwball farce” and a “screwball > A 2008 First District Court of Appeal decision held that “[VJerified allegations [in pleadings} based on the personal knowledge of the pleader may be considered in deciding a section 425.16 motion.” Salma v. Capon. 161 Cal,App.4th 1275, 1290 (2008) (brackets added). But see Oviedo v. Windsor Twelve Properties, LLC, 212 Cal.App-4 97, 109, n. 10 (2012) (Salma decision has not been followed by any other published decision, and ... every other case holds to the contrary.”) (citation and internal quotation marks omitted). Plaintiff's Complaint is unverified, so its allegations are not evidence, even under Salma, 6 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINT20 21 2 23 24 25 26 a 28 eorouo, eran jcomedy.” Rivamonte Decl, (3-4, Exs. B and C (emphasis added).* As Plaintiff points out, a New York Times critic described the “chatter” in the film as “fast, dirty, intemperate, hilarious and largely in service to the art of the con....” Opp. at 2. Moreover, the character who attributed the fictional “article” to Plaintiff was a broadly comic character, played by Jennifer Lawrence as “slightly unhinged” and a “loose cannon.” Rivamonte Decl., §4, Ex. C (Los Angeles Times review); see Defendants” Declaration of Donald Gordon, §48-11 An injury to reputation can only occur when a reader, or viewer, could reasonably construe the statements as being factual. Motion, at 8-13, As a matter of law, the statement made by the unhinged” fictional character Rosalyn in the “screwball farce” American Hustle is not reasonably understood as a statement of fact. Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 260 (1986) (“The crucial question in this case is whether the statement at issue was a statement of fact or a statement of opinion. This is a question of law to be decided by the court.”). In focusing on his professional stature and how it could be jeopardized by “Rosalyn’s” statement, Mr. Brodeur’s Opposition ignores the fact that viewers could not reasonably take her line of dialogue as accurate. Plaintiff compares his reputation to that of Stephen Jay Gould or Carl Sagan; and says that if “statements that were contrary to the accepted knowledge in the field” were attributed to them in such a manner, it “would lower [their] reputation[s] among reasonable persons in the community.” Opp. at 11, On the contrary, even if Plaintiff's comparison were legitimate, it would not matter what Rosalyn attributed to Stephen Jay Gould or Carl Sagan during a marital spat with “Irving.” Reasonable persons would recognize that they are watching a “screwball comedy” in which nothing the Rosalyn character says can be taken as fact. C. The “Totality Of Circumstances” Test Requires That All Circumstances Surrounding The Challenged Statement Be Viewed Together To Determine Whether It Is Actionable California courts employ a “totality of circumstances” test when evaluating whether an allegedly libelous statement can reasonably be viewed as a statement of fact. Summit Bank v. * The Merriam Webster online dictionary defines a “farce” as “a light dramatic composition marked by broadly satirical comedy and improbable plot.” 1 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINT20 a 2 Rogers, 206 Cal.App.4"" 669, 696 (2012). This analysis requires consideration of the “general tenor of the entire work” in which the speech appears; the subject of the statements, the setting, and the format of the work; the context and content of the statements, including the use of figurative or hyperbolic language; the “reasonable expectations of the audience in that particular situation”; and “whether the statement itself is sufficiently factual to be susceptible of being proved true or false.” Knievel v. ESPN, 393 F.3d 1068, 1075 (9" Cir. 2005); Motion, at 10.5 “The context in which the statement appears is paramount in our analysis, and in some cases it can be dispositive.” Knievel, 393 F.3d at 1075, Plaintiff’s Opposition disregards this test, instead by attempting to isolate the various circumstances which would lead reasonable moviegoers to conclude “Rosalyn’s” statement is not an assertion of fact. Plaintiff separately discounts Defendants’ reliance on the Film’s being a work of fiction, and the unreliable nature of the Rosalyn character, Opp. at 12-13 (referring to the “Fiction Defense,” the “Ditzy Defense”), and only afterward purports to address the “totality of circumstances” test. Of course, addressing these factors in isolation ignores the test. Plaintiff suggests that the Film’s status as a work of fiction is irrelevant to whether the statement can reasonably be interpreted as factual.° Opp. at 12:24-25 (“the defense that ‘the movie is a work of fiction, not to be taken literally” cannot be accepted.”), He is wrong. The U.S. Supreme Court has deemed a work’s status as fiction, namely “historical fiction,” to be highly relevant; and numerous courts have agreed. Masson, 501 US. at $12-513; e.g,, Partington v. Bugliosi, 56 F.3d 1147, 1154-1155 (9 Cir, 1995) (“we gonclude that the general tenor of the docudrama also tends to negate the impression that the statements involved represented a false assertion of objective fact.... The “totality of circumstances” analysis described in Summit Bank is essentially identical to the analysis used in the Ninth Circuit to determine whether a statement is reasonably understood as an assertion of fact. Sagan v, Apple Computer, Inc., 874 F Supp. 1072, 1076 (C.D. Cal. 1994) (Defendants’ change of code name on its computer from “Carl Sagan” to “Butt-head Astronomer” not defamatory). * Plaintiff's Opposition asserts that the test is: whether “the average ... moviegoer ‘could conclude” by ‘reasonable implication’ that the movie was asserting that Mr. Brodeur did make an untenable scientific statement.” Opp. at 14:6-8. That is not quite correct. The test is not whether the movie asserted that he made a scientifically unsupportable statement, but whether a reasonable viewer could deem the movie's purported “assertion” to be a statement of fact. Of course, that the movie is fictional predisposes viewers to the contrary. See Masson, 501 US. at 512-513, 8 DEFENDANTS” REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINT20 21 2 B 24 25 26 2 28 We believe that viewers in this case would be sufficiently familiar with this genre to avoid assuming that all statements within them represent assertions of verifiable facts.”); Films of Distinction, Inc. v. Allegro Film Productions, Inc., 12 F.Supp.2d 1068; 1081 (C.D. Cal. 1998) (“the Film as a whole is clearly a work of fiction. Consequently, the general tenor of the Film and the context in the which the alleged Defamatory Material arises ‘negate[ ] the impression that the defendant(s] w[ere] asserting an objective fact.””);” see San Francisco Bay Guardian, Inc. v. Superior Court, 17 Cal.App4th 655, 660-661 (1993) (fake letter in parody section of newspaper could not be reasonably interpreted as statement of fact). Viewing the allegedly libelous statement in context requires courts to consider not only whether the work is fictional, but any other circumstances which would diminish an audience’s expectations of hearing “facts”. Courts recognize that a “speaker's” unreliability is relevant to this test; and the unreliability of the Rosalyn character only further shows that her “statement” is not, actionable. Plaintiff contends that Defendants cited no authorities in support of this argument, Opp. at 13:2, but Defendants cited several decisions so holding. Motion at 11, 13; Summit Bank, 206 Cal. App.4" at 696-697 (“[AJny reader familiar with the culture of ... [ ] most electronic bulletin boards [] ... would know that board culture encourages discussion participants to play fast and loose ‘with facts.... Indeed, the very fact that most of the posters remain anonymous, or pseudonymous, is |a cue to discount their statements accordingly.”) (citation and internal quotation marks omitted); [Krinsky v, Doe 6, 159 Cal. App.4" 1154, 1175 (2008) (“A reasonable reader of this diatribe would not comprehend the harsh language and belligerent tone as anything more than an irrational, vituperative expression of contempt for the three officers of SFBC and their supporters.”); Global Telemedia Intern,, Inc. v. Doe 1, 132 F Supp.2d 1261, 1268 (C.D. Cal. 2001) (“Given the tone and context of the message, a reasonable reader would not take this to be anything more than a disappointed investor who is making sarcastic cracks about the company.” 7 The Opposition asserts that Films of Distinction does not support Defendants’ statement that “a movie audience has no ‘reasonable expectations’ of hearing assertions of fact when watching a fictional or farcical scene in a movie.” Opp. at 14. Such an assertion is incorrect, as demonstrated above. 9 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINT20 21 2 B 24 25 26 2 28 D. Plaintiff's Opposition Fails To Distinguish Defendants’ Authorities Plaintiff argues that because San Francisco Bay Guardian; New Times, Inc. v. Isaacks, 146 8.W.3d 144 (Tex. 2004); and Farah v, Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013) involve works of “parody” and “satire,” they are irrelevant to this case. Apparently, Plaintiff believes a “screwball farce” of a movie such as American Hustle cannot be compared to a satirical news article (New Times) or a fake letter to the editor (San Francisco Bay Guardian), in terms of whether a reader could reasonably interpret a challenged statement as an assertion of fact.® However, he offers no principled reason why they are distinguishable. Indeed, although the New Times article was satirical, the court noted it was published in the “news” section and not immediately recognizable as satire. Id at 157, 159. Plaintiff also attempts to distinguish Krinsky and Summit Bank on grounds that in those cases, “the allegedly defamatory statements were matters of opinion.” Opp. at 15. However, in both cases the defendant's statements included comments that, on their face, asserted or implied facts. Krinsky, 159 Cal.App.4" at 1176, 1177 (claim that corporate president had a “fake medical degree” ‘and was a “crook[]”); Summit Bank, 206 Cal.App.4" at 698 (claim that when plaintiff's branch bank closed, “[alll the customer [sic] were left high and dry,” implying customers lost their money). See Global Telemedia Intern, , 132 F.Supp.2d at 1267-1270 (claim that public company was “headed for the calmer waters of the Caribbean where your money will be safe from federal authorities”). In each of these cases, the court concluded that the defendants’ comments were not actionable assertions of fact despite the purportedly “factual” nature of the statements, Ill. CONCLUSION Plaintiff's Complaint should be stricken without leave to amend. * Plaintiff purports to distinguish Hughes v. Hughes, 122 Cal.App.4th 931 (2004), Campanelli v, Regents of University of California, 44 Cal.App-4" 572 (1996), and Gantry Constr. Co. v. American Pipe & Constr. Co., 49 Cal.App.3d 186 (1975), for various reasons, Opp. at 14-15, but these cases /were cited in Defendants’ brief for propositions unrelated to whether a statement is reasonably considered as one of fact. 10 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINTRespectfully submitted, DATED: March 24, 2015 LEOPOLD, PETRICH & SMITH A Professional Corporation TOUIS P. PETRICH ELIZABETH L. SCHILKEN EVA S. NEUBERG Attorneys for Defendants ATLAS ENTERTAINMENT, INC. ANNAPURNA PRODUCTIONS LLC d/b/a ANNAPURNA PICTURES; COLUMBIA PICTURES INDUSTRIES, INC. u DEFENDANTS" REPLY IN SUPPORT OF MOTION TO STRIKE COMPLAINTPROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Iam employed in the County of Los Angeles, State of California, I am over the age of 18 4. | years and not a party to the within action, My business address is 2049 Century Park East, Suite 3110, Los Angeles, California 90067-3274. On March 24, 2015, I served the foregoing document described as DEFENDANTS’ REPLY 6 | IN SUPPORT OF MOTION TO STRIKE COMPLAINT on the interested parties in this action. 7 |@ _ byplacing the original and/or a true copy thereof enclosed in (a) sealed envelope(s), addressed as follows: SEE ATTACHED SERVICE LIST ® BY REGULAR MAIL: | deposited such envelope in the mail at 2049 Century Park East, 0 Suite 3110, Los Angeles, California 90067-3274. The envelope was mailed with postage thereon fully prepaid. 1am “readily familiar” with the firm’s practice of collection and processing correspondence B for mailing. It is deposited with the U.S, Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid 3 if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit O BY FACSIMILE MACHINE: I transmitted a true copy of said document(s) by facsimile 1s machine, and no error was reported. Said fax transmission(s) were directed as indicated on the service list. a BY ELECTRONIC MAIL: | transmitted a true copy of said document(s) by electronic 7 mail, and no error was reported. Said electronic mail transmission(s) were directed as indicated on the service list. BBY OVERNIGHT MAIL: | deposited such documents at the Federal Express Drop Box 19 located at 2049 Century Park East, Suite 3110, Los Angeles, California 90067-3274. The envelope was deposited with delivery fees thereon fully prepaid. 2°10 BY PERSONAL SERVICE: 1 caused such envelope(s) to be delivered by hand to the above Al addressee(s). 2 B (State) I declare under penalty of perjury under the laws of the State of California that the ) 95 foregoing is true and correct, 24 Executed on March 24, 2015, at Los Angeles, California. 25 uv 2 Cfnthia A. Touchard ” 28SERVICE LIST Steven Kazan, Esq Attorneys for Plaintiff Paul Brodeur David M. McClain, Esq. 4 | KAZAN, McCLAIN, SATTERLEY & Tel: (510) 302-1000 GREENWOOD Fax: (510) 835-4913 5 | A Professional Law Corporation Jack London Market 6 }'55 Harrison Street, Suite 400 Oakland, California 94607 ‘Leon Friedman, Esq. Tel: (212) 737-0400 148 East 78th Street ‘New York, New York 10075