JAMES G, SAMMATARO (State Bar No. 204882) CRYSTAL Y. JONELIS (State Bar No. 265335) STROOCK & STROOCK & LAVAN LLP 2029 Century Park East, 18th Floor Los Angeles, CA 90067-3086 Telephone: 310-556-5800 Facsimile: 310-556-5959 Email: lacalendar@stroock.com Attorneys for Defendant BTF MEDIA, LLC MARTIN D. SINGER (State Bar No. 78166) ANDREW B. BRETTLER (State Bar No. 262928) LINDSAY D. MOLNAR (State Bar No, 275156) LAVELY & SINGER PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400 Los Angeles, California 90067-2906 Telephone: (310) 556-3501 Facsimile: (310) 556-3615 mdsinger@lavelysinger.com abrettler@lavelysinger.com Emails: Attomneys for Defendants LATIN’ WORLD ENTERTAINMENT HOLDINGS, INC., LUIS BALAGUER AND DHANA MEDIA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA. COUNTY OF LOS ANGELES, CENTRAL DISTRICT JENNI RIVERA ENTERPRISES, LLC, a California limited liability company, Case No. BC633764 [Assigned to the Hon, Michael J. Raphael, Dept. 51] DEFENDANTS LATIN WORLD ENTERTAINMENT HOLDINGS, INC., LUIS BALAGUER, DHANA MEDIA, INC. WORLD ENTERTAINMENT HOLDINGS, AND BTF MEDIA, LLC’S NOTICE OF INC., a Florida corporation; LUIS SPECIAL MOTION AND SPECIAL BALAGUER, an individual; DHANA MEDIA, ) MOTION TO STRIKE PLAINTIFF'S: INC., a Florida corporation; BIF MEDIA, LLC.) COMPLAINT UNDER THE CALIFORNIA a Florida limited liability company: and DOES) ANTI-SLAPP STATUTE, CIV. PROC. } 1 through 20, inclusive, CODE § 425.16 Plaintiff, vs. PETE SALGADO, an individual; LATIN Defendants. [Declarations of Luis Balaguer, Francisco Cordero, Mari Urdaneta, Request for Judicial Notice and Proposed Order filed concurrently herewith] Date: December 12, 2016 Time: 9:00 a.m. Dept: 51 Reservation No, 161012165500 MIA 31535208AVAN LLe STROOCK & STROO: 2029 Century Park East California 90067-3086 Los angeles, Socwra TO PLAINTIFF AND TO ITS COU! EL OF RECORD: YOU ARE HEREBY NOTIFIED THAT on December 12, 2016 at 9:00 am. in Department 51 of the above-named Court, located at 111 North Hill Street, Los Angeles, California 90012, defendants Latin World Entertainment Holdings, Inc., Luis Balaguer (together, “Latin | WE”), Dhana Media, Inc. (“Dhana”), and BTF Media, LLC (“BTF”) (collectively, “Defendants”) | will and hereby do move to strike the Third, Fourth, and Fifth Causes of Action for Interference with Contract, Inducing Breach of Contract, and Violation of Cal. Bus. & Prof. Code § 17200 asserted in the Complaint filed by plaintiff Jenni Rivera Enterprises, LLC (“Plaintifi”), pursuant to California Code of Civil Procedure section 425.16, also known as the anti-SLAPP statute (the “Motion”). ‘This Motion is made on the following grounds: 1. The allegations and requested relief in the Complaint constitute an attempt to suppress and chill Defendants’ conduct in furtherance of the constitutional right of free speech, Cal. Code of Civ. Proc. § 425.16(e); and 2. Plaintiff cannot meet its burden of establishing through competent and admissible evidence a “probability” that it will prevail in this action. Id. § 425.16(b). Should Defendants be deemed the prevailing parties, upon the granting of this Motion, Defendants shall also seek an award of reasonable attorneys” fees and costs incurred in connection with bringing the Motion, pursuant to section 425.16(c) of the Code. ‘This Motion is made and based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the Request for Judicial Notice, the declarations of Luis Balaguer, Francisco Cordero and Mari Urdaneta, all exhibits or attachments thereto, the pleadings and documents on file in this action, the matters upon which the Court may take judicial notice, and upon any further oral or written argument in evidence the Court may receive prior to or at the time of the hearing of the Motion. Me if MWSTROOCK «© STROOCK & LAVAN LLP 2029 Century Park East california 90067-2086 Los Angeles, Dated: October 14, 2016 Dated: October 14, 2016 STROOCK & STROOCK & LAVAN LLP yp D.C JAM!I CRYSTAL Y. JONELIS Attorneys for Defendant BTF MEDIA, LLC rk ANDREW B. RRETTLER LINDSAY D. MOLNAR Attorneys for Defendants LATIN WORLD ENTERTAINMENT HOLDINGS, INC., LUIS BALAGUER AND DHANA MEDIA, INC. Mia 31335208I. TABLE OF CONTENTS. INTRODUCTION FACTUAL BACKGROUND A. Salgal’s Role as Jenni Rivera's Business Manager andthe Alleged Non- Disclosure Agreement. .. a ene B. _Salgado’s Solicitation of Defendants and the Development, Production and Broadcast of the Series. C. Plaintiff Notifies Defendants for the First Time of the NDA and Seeks To Halt Development, Production and Broadcast of the Series. ... 7 D. Plaintiff's Meritless Allegations Against Defendants... LEGAL ARGUMEN A. ‘Legal Standard on an Anti-SLAPP Motion............ B. Defendants’ Conduct Is Protected Under the Anti-SLAPP Statute. 1. Defendants’ Alleged Conduct — the Development and Production of a Television Show — Is in Furtherance of Their Right to Free Speech..... 2. Defendants’ Alleged Conduct Is in Connection with a Matter of Public Interest: The Personal Life of Musical Superstar Jenni Rivera. .. C. Plaintiff Cannot Establish a Probability of Prevailing on Its Claims. 1 Plaintiff's Inducing Breach of Contract Cause of Action Fi a. Because Defendants Did Not Have Knowledge of the NDA, Plaintiff Cannot Establish That Defendants Intended To Induce Its Breach. ....... b. Because Defendants’ Alleged Conduct Occurred Afier Salgado’s Alleged Breach, Plaintiff Cannot Establish That Defendants Caused Salgado To Breach the NDA. 2. Plaintiff's Intentional Interference With Contract Cause of Action Fails. .. ere 3. Plaintiff's Section 17200 Claim Fails.. a. Section 17200 Does Not Restrict (and Therefore Does Not Apply To) Noncommercial Speech Such as Television Programs, b. Plaintiff Is Not Entitled To Any Relief Under Section 17200... MIA 31338208 2D. Defendants Should Be Awarded Their i Attomeys! Fees and Costs Under i the Anti-SLAPP Statute... : IV. CONCLUSION... 6 7 8 9 salifornia Los Angeles, a Mn 31335208,1 TABLE OF AUTHORITIES Cases * 1-800 Contacts, Inc. v_ Steinberg, 107 Cal. App. 4th 568 (2003)... 10,11 Bank of the W. v. Superior Court, 2.Cal. 4th 1254 (1992)... Bemardo »- Planned Parenthood Fed. of dm, 115 Cal. App. 4th 322 (2004)... Briggs ». Eden Couneil For Hope & Opportunity, 19 Cal, 4th 1106 (1999). CBS, Inc. v. Davis, 510 US. 1315 (1994) (Blackmun, J.). 14) Cel-Tech Comme'n Inc. v. L.A. Cellular Phone Co. 20 Cal. 4th 163 (1999)... sl Daly v. Viacom, Inc., 238 F. Supp. 2d 1118 (N.D. Cal. 2002).... 13, 14 15 || Dean Witter Reynolds, Ine. v. Superior 211 Cal. App. 3d 758 (1989)... Dryden y. Tri-Valley Growers, 17 || 65Cal. App. 3d 990 (197) 14 2029 Century Park East Los Angeles, California 90067-3086 8,9, 11, 12 1g || Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002). GeneThera, Inc. v. Troy & Gould Prof'l Corp., 171 Cal. App. 4th 901 (2009). 21 || Governor Gray Davis Comm, dm. Taspayers Al. 102 Cal. App. 4th 449 (2002)... As 22 |! Hall v, Time Warner, Inc.. 3 153 Cal. App. 4th 1337 (2007)... 16, 7) og | Hill», Progress Co., 79 Cal. App. 2d 71 (1947). 1,12 Hoffman v. Capital Cities/ABC, Ine., 255 F.3d (9th Cir. 2001) Hunt v. NBC, 872 F. 2d 289 (9th Cir. 1988)... 14 na 31335208california 90067. los Angeles, Hurvitz v. Hoefflin, 84 Cal. App. 4th 1232 (2000)... Imperial lee Co. v. Rossier 18 Cal. 2d 33 (1941) 8.9.10 New.net, Inc. v. Lavasofi. 356 F. Supp. 2¢ 1090 (C.D. Cal. 2004) is Kashian v. Harriman, 98 Cal. App. 4th 892 (2002)... oe : 6 Kasparian v. Che. of L.A, 38 Cal. App. 4th 242 (1995) Ce) Kirby v. Sega of Am., Inc., 144 Cal. App. 4th 47 (2006) nso Lieberman v. KCOP Television, Inc., 110 Cal, App. 4th 156 (2003). Ludtwig v. Superior Court, 37 Cal. App. 4th 8 (1995). 4 Macias v. Hartwell, 55 Cal. App. 4th 669 (1997)... 5 Navellier v. Sletten, 29 Cal. 4th 82 (2002)... 3,6 Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027 (2008)... Olivia N. v. NBC, 74 Cal. App. 3d 383 (1977)... Pac. Gas & Elec, Co. v. Bear Stearns & Co., 50 Cal. 3d 1118 (1990). Rezee v. Sony Pictures Entm't, Ine. 116 Cal. App. 4th 135 (2004) Roberts v. L.A. Cty. Bar Ass'n, 105 Cal. App. 4th 604 (2003).. Seelig.v. Infinity Broad. Corp., 97 Cal. App. 4th 798 (20003)... Springer y. Singleton, 256 Cal. App. 2d 184 (1967)... Tamkin v. CBS Broad., Inc., 193 Cal. App. 4th 133 (2011).. Tuchscher Dev. Enters., Inc. v. San Diego Unified P Port Dist 106 Cal. App. 4th 1219 (2003 Mia 313382089 Century Park East 202! Los Angeles, 71-3086 9006 california ny oo = Varian Med. Sys., Inc. v. Delfino, | 35 Cal. 4th 180 (2005). Wilbanks v. Wolk, 121 Cal. App. 4th 883 (2004) Wilder v, CBS Corp., William O'Neil & Co. Inc. v. Validea.com Inc., 202 F. Supp. 2d 1113 (C.D. Cal. 2002) Statutes California Bus. & Prof. Code § 17203 California Code of Civil Procedure Si jon 425.16(b) California Code of Civil Procedure Section 425.16(e). Mia 31335208 No. 2:12-CV-8961-SVW-RZ, 2016 WL 693070 (C.D. Cal. Feb. 13, 2016) California Code of Civil Procedure Section 425.16(a).. Califomia Code of Civil Procedure Section 425,16(C)..1.1eseeesMEMORANDUM OF POI 'S AND AUTHORITIES 1. INTRODUCTION Defendants have been developing and producing a television series about the personal life of a Mexican-American superstar singer, Jenni Rivera, who died in 2012. This biographical series is currently entitled “Her Real Name was Dolores” / “Su Nombre Era Dolores” (the “Series”). Plaintiff Jenni Rivera Enterprises, LLC (“Plaintiff”) — which purportedly owns and manages the assets of Ms. Rivera's estate — has filed this lawsuit to halt Defendants’ development and production of the Series, Each of Plaintiff's three causes of action (ie., inducing breach of contract, interference with contract and unfair business practices) is premised on allegations that Defendants caused and/or encouraged non-moving defendant Pete Salgado (“Salgado”) to violate the terms of a purported non-disclosure agreement that he allegedly entered into with Plaintiff (the “NDA”). Relying on the NDA, Plaintiff seeks a preliminary and permanent injunction to enjoin Defendants from producing and ultimately broadcasting the Series. (Compl., § 7 & Prayer for Relief, § 3). This is precisely the kind of case that the California legislature targeted when it empowered courts to put an early end to litigation that “chill[s] the valid exercise of the constitutional rights of freedom of speech.” Civ. Proc. Code § 425.16(a). The lawsuit must be stricken now and in accordance with California’s Anti-SLAPP statute because it arises from Defendants” acts in furtherance of the right of free speech in connection with a public issue and because Plaintiff cannot possibly establish, by admissible evidence, a probability of prevailing on the merits. Civ. Proc. Code § 425.16 (b) and (e), Specifically, Defendants’ acts fall within the protective ambit of the Anti because they are making a television series about the life of a famous person. California courts have consistently ruled that making a television series is an act in furtherance of free speech and that famous people are within the public interest. As the Complaint admits, the Series will “reveal the uncensored and fascinating life of the real woman [Jenni Rivera] behind the music, glamour and. fame.” (Compl., 3) and Ms, Rivera was a beloved and “world renown[ed] Mexican-American singer, songwriter, and actress” who has been labeled the most important female figure and the top selling female artist in the Mexican music genre, (Compl., 1). That her untimely death made Il MIA 313352082029 Century Park East california 90067-3086 Los Angeles, international headlines and her life is still celebrated by millions of fans around the world puts | beyond dispute the public’s strong interest in the Series. See Request for Judicial Notice (“RIN”), pc tae Because Defendants can easily meet their burden of showing that their acts further their right of free speech in connection with a public issue, the burden shifts to Plaintiff to demonstrate a probability that it could prevail on its claims. This is impossible. Plaintiff cannot prevail on its claim for inducing breach of contract because Defendants were unaware of the alleged existence of the NDA at the time they entered into their agreement with Salgado. Plainti cannot prevail on its, claim for interference with contract because Defendants could not have encouraged Salgado to breach an agreement of which they had no knowledge and because Plai camnot show that Defendants’ alleged conduct was the proximate cause of the alleged breach. Plaintiff cannot prevail on its unfair business practices claim because section 17200 only applies to commercial speech (not to expressive works like a television series) and because the statute does not provide a basis for the recovery of the damages Plaintiff seeks. Accordingly, this special motion to strike should be granted and the Court should award Defendants reasonable attorneys’ fees and costs incurred in connection with bringing this motion. Civ. Proc. Code § 425.16(c). I. FACTUAL BACKGROUND A. Salgado’s Role as Jenni Rivera’s Business Manager and the Alleged Non- Disclosure Agreement. Plaintiff alleges that Salgado acted as Ms. Rivera’s business manager for a number of years, (Compl., $92, 19). During this time, Plaintiff claims Salgado signed the NDA wherein he purportedly promised not to disclose certain information about Ms. Rivera, including information about Ms, Rivera’s family or her business, financial or personal affairs. (Compl., {9 4, 19-20, Ex. 1). Salgado disputes the validity of the NDA and denies that he ever signed the document, claiming that the signature attached to the NDA is a forgery. (Compl, 427 & Ex. 6). Mia 31335208'y Park East 2029 cent California 90067-3086 Los Angeles, 10 i 1B 14 15 16 7 18 19 20 21 22 24 25 26 27 28 B. Salgado’s Solicitation of Defendants and the Development, Production and Broadcast of the Series. In or around February of 2016, Salgado solicited Defendants for the development and production of a television series based on a book he authored about Ms. Rivera’s life (ce., the Series).' During Salgado’s negotiations with Defendants for the production of the Series, Salgado never disclosed that he had allegedly signed any agreements with PlaintiffS, including the NDA. (Balaguer Deel., §§ 6-7; Cordero Decl., {| 4; Urdaneta Decl., ff] 6-7). Indeed, on March 1, 2016, Salgado signed an agreement with BTF and Dhana (the “Co-Producers Agreement”) wherein he explicitly represented and warranted that (1) the “development, production and delivery [of the Series] shall not contain anything or be handled in such a way as to cause or constitute a violation of any third party’s rights...” (Section 18.6), and (2) he has “not entered into...any agreement which is inconsistent with any of the provisions of this Agreement...” (Section 18.8). (Emphasis added), (Cordero Decl., 4 5, Ex. “A”; Urdaneta Decl., Ex. “A”, pp. 9-10). In reliance on the forgoing representations, BTF signed a term sheet with non-party Univision Networks & Studios, Ine. on May 12, 2016 for the development, production and broadcasting of the Series (the “Univision Term Sheet”). (Cordero Decl., 6, Ex. “B”). Cc. Plainti Notifies Defendants for the First Time of the NDA and Seeks To Halt Development, Production and Broadcast of the Seri After the Co-Production Agreement and Univision Term Sheet were signed, on June 3, 2016, Plaintiff's counsel wrote a letter to Salgado (copying Dhana and Latin WE) claiming that Salgado breached the NDA and that the “development and production of the Series” must be ceased. (Compl., Ex. 5; Balaguer Deel., 8, E Cordero Decl., § 7, Ex. “C”; Urdaneta Decl., 418, Ex. “B”). Notwithstanding Plaintiff's allegations to the contrary, Plaintiff's June 3 letter was the first time any of the Defendants had notice of the NDA. (Balaguer Decl., § 8; Cordero Decl. 11; Urdaneta Decl. 8). Indeed, even after receiving Plaintiff's June 3 letter, the purported authenticity and validity of the NDA remained in dispute. (Balaguer Decl., ff 9-11; Cordero ' Declaration of Luis Balaguer (“Balaguer Decl.”), §| 4; Declaration of Francisco Cordero (Cordero Decl.”), § 3; Declaration of Mari Urdaneta (“Urdaneta Decl.”). { 3. MIA 313552082029 Century Park East Los Angeles, California 90067-3086 Ce ae u 12 13, 4 15 16 17 18 19 20 2 2 24 25 26 27 Decl., § 10; Urdaneta Decl., {f§ 9-11). The same day Plaintiff sent the June 3 letter, Salgado’s |) counsel responded via letter contending that Salgado’s purported signature on the NDA was a forgery and that he never signed the NDA. (Balaguer Decl., § 9, Ex. “B”; Cordero Decl., { 8, Ex. “D”; Urdaneta Decl., $ 9, Ex. “C”). Salgado’s counsel also sent this letter to Defendants. (Id) ‘On June 7, 2016, Plaintiff sent a final letter to Salgado disputing that his purported signature was a forgery. (Cordero Decl., 8, Ex. “E”). Defendants received no further communication from Plaintiff about the NDA. (Balaguer Deel., §| 11; Cordero Deel. 12; Urdaneta Decl., 11). Instead, Plaintiff filed this lawsuit in an effort to stop Defendants from developing and producing the Series. D. _Plaintiff’s Meritless Allegations Against Defendants. On September 12, 2016, Plaintiff filed this action against Defendants for Interference with iff has alleged Contract, Inducing Breach of Contract and Unfair Competition. Specifically, Plain that Defendants “intentionally caused and directed Salgado to disclose information...about the business, financial and personal affairs of Ms. Rivera in connection with the development and production of the Series.” (Comp., 51). Plaintiff has further alleged that Defendants “have been involved in the creative development of the Series and...have intentionally obtained information....from Salgado that is protected by the Non-Disclosure Agreement.” (Compl., 1] 51. 59). As explained below, Plaintiff cannot meet its burden of demonstrating a probability of prevailing on any of these claims. 1. LEGAL ARGUMENT A. Legal Standard on an Anti-SLAPP Motion. ‘The California Legislature enacted the anti-SLAPP statute in 1992 to provide a “fast and inexpensive unmasking and dismissal” of lawsuits that implicate the constitutional right of freedom of speech. Ludwig v. Super. Court, 37 Cal. App. 4th 8, 16 (1995). The anti-SLAPP statute applies to all “litigation without merit filed to dissuade or punish the exercise of First Amendment rights of, defendants.” Governor Gray Davis Comm. v, Am. Taxpayers All., 102 Cal. App. 4th 449, 454 n.1 (2002). Indeed, the Legislature amended the statute to state that it “shall be construed broadly.” See id. at 456 (quoting Civ. Proc. Code § 425.16(a)). As the California Supreme Court emphasized 24s ‘Ma 31335208,STROOCK & LAVAN LLP sTROocK « ast ifornia 9006 2025 Century Park Los Angeles, 3086 oe ao Soe following that amendment, “the broad construction expressly called for in [Section 425.16(a)] is desirable from the standpoint of judicial efficiency” because it permits the early dismissal of unmeritorious lawsuits. Briggs v. Eden Council For Hope & Opportunity, 19 Cal. 4th 1106, 1121 | 22 (1999). Section 425.16(b)(1) sets forth a two-step process for the Court to evaluate a special motion to strike. First, the defendant must make a prima facie showing that the plaintif?"s cause of action arises from an act of the defendant in furtherance of the right of petition and/or the right of free speech in connection with a public issue. Civ. Proc. Code § 425.16(b)(1); Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002); Wilbanks v, Wolk, 121 Cal. App. 4th 883, 894 (2004). ‘Once the defendant makes this showing, the burden shifts to the plaintiff to establish a probability of prevailing on its claims by establishing that “the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” Governor Gray Davis Comm., 102 Cal. App. 4th at 460. To satisfy its burden, the plaintiff must “show by competent and admissible evidence, that [it] would probably prev: ‘on the merits of its complaint, Macias v. Hartwell, 55 Cal. App. 4th 669, 675 (1997) (emphasis added). ‘This burden is significantly higher than the showing required to survive demurrer and akin to the threshold needed to survive summary judgment, as the plaintiff “cannot simply rely on [his] pleadings” to provide the necessary evidentiary showing. Roberts v. L.A. Cty: Bar Ass'n, 105 Cal. App. 4th 604, 613-14 (2003). If the plaintiff cannot meet this burden by marshaling competent and admissible evidence, the defendant's motion must be granted. See Varian Med. Sys., Inc. v. Delfino, 35 Cal. 4th 180, 192 (2005). B. Defendants’ Conduct Is Protected Under the Anti-SLAPP Statute. Section 425.16(e) of the California Code of Civil Procedure provides that protected activity ‘under the anti-SLAPP statute includes any “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.” Civ. Proc. Code 425.16(e)(4). In determining whether a defendant engaged in protected activity, a court must be mindful that the “Legislature recognized that all kinds of claims could achieve the objective of a SLAPP suit,” ie., that many different oe MIA3086 sazk Bast california 90067-: K &@ STROOCK & LAVAN LLP 29 Century Les Angel 1 || claims could “interfere with and burden the defendant's exercise of his or her [First Amendment] rights.” Navellier, 29 Cal. 4th at 92-93. Thus, the focus of the inquiry “is not the form of the 3 || plaintiff's cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability — and whether that activity constitutes protected speech or petitioning,” Id. 5 || (emphasis added).> In order for the anti-SLAPP statute to apply, a defendant need only 6 || demonstrate that it was engaged in protected activity; the defendant “faces no additional 7 || requirement of proving the plaintiff's subjective intent” to interfere with defendant's speech 8 || Navellier, 29 Cal. 4th at 88; Equilon Ente s. ». Consumer Cause, Inc., 29 Cal. 4th 53, 58 (2002) 9 ||Nor is there any requirement that “a moving defendant demonstrate that the action actually has had 10 || chilling effect on the exercise of such rights.” Navellier, 29 Cal. 4th at 88. Rather, “what is 11 || critical” is whether a plaintiff has brought suit “against a person who has exercised [First 12 || Amendment] rights.” Jd. at 93 13 || 1. Defendants’ Alleged Conduct — the Development and Production of a i Television Show — Is in Furtherance of Their Right to Free Speech. 15 Under California law, “[t]he creation of a television show is an exercise of free speech.” 16 || Zamkin v. CBS Broad. Inc., 193 Cal. App. 4th 133, 143 (2011) (noting an “act is in furtherance of 17 || the right of free speech if the act helps to advance that right or assists in the exercise of that right” 18 |[and finding defendants’ conduct “helped to advance or assist in the creation, casting, and 19 || broadcasting of an episode of a popular television show” in furtherance of exercise of the right of 20 || free speech); see also Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337, 1347 (2007) (finding 21 || television producers’ conduct, which included entering plaintiff's private room, interviewing her on 22 ||camera and broadcasting the interview on television, arose in furtherance of the defendant’s right of 23 || free speech); Wilder v. CBS Corp., No. 2:12-CV-8961-SVW-RZ, 2016 WL 693070, at *10 (C.D. 24 25 ? Claims of inducing breach of contract, intentional interference with contract and unfair 'S |) competition have been struck by the anti-SLAPP statute. See, e.g., Tuchscher Dev. Enters., Inc. v 124, || Sax Diego Unified Port Dist. 106 Cal. App. 4th 1219, 1226 (2003) (granting anti-SLAPP motion and striking causes of action for inducing breach of contract, intentional and prospective economic advantage and violation of unfair competition law); Kashian v. Harriman, 98 Cal. App. 4th 892, 27 || 925-26 (2002) (striking cause of action for unfair competition under anti-SLAPP statute): GeneThera, Inc. v. Troy & Gould Prof’! Corp., 171 Cal. App. 4th 901, 906 (2009) (striking cause of action for intentional interference with contract under anti-SLAPP statute). -6-STROOCK © LAVAN LLP 2029 Cer 86 Cal. Feb, 13, 2016) (finding defendants’ acts in connection with producing and distributing a television serie: ‘are clearly ‘in furtherance’ of the right to free speech.”). This is the exact conduct that Plaintiff alleges in this lawsuit. Specific lly, Plaintiff contends that Defendants utilized information obtained by Salgado “in connection with the development and production” of the Series. (See Compl, ¥ 51, 59). Because Defendants’ alleged conduct is “the development and production” of a television series, Defendants’ alleged conduct is in furtherance of their constitutional right to free speech. } 2, Defendants’ Alleged Conduct Is in Connection with a Matter of Public Interest: The Personal Life of Musical Superstar Jenni Rivera. Under California law, the personal lives of famous people are of public interest. See e.g. Hall, 153 Cal. App. 4th at 1347 (finding television broadcast of interview with Marlon Brando’s housekeeper was made in connection with an issue of public interest because of the “public’s fascination with Brando and widespread public interest in his personal life”). An issue of public interest is “any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute — it is enough that it is one in which the public takes an interest.” Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008) || (emphasis in original). “[T]his requirement, like all of section 425.16, is to be ‘construed broadly” so as to encourage participation by all segments of our society in vigorous public debate related to issues of public interest.” Seelig v. Infinity Broad. Corp., 97 Cal. App. 4th 798, 808 (2002). Here, Defendants’ alleged conduct ~ the development and production of a television show ~ is indisputably in connection with a matter of public interest: the personal life of Ms. Rivera. Plaintiff even admits the extent of the public’s interest in Ms. Rivera by claiming she is “the world renown Mexican-American singer, songwriter, and actress” (Compl., § 1), and “recognized as the | most important female figure and top selling artist in the regional Mexican music genre.” (Compl, 418) Knowing this, Plaintiff discloses that it wants to exploit this level of “public interest” by pursuing its own “authorized book about Ms. Rivera or an authorized television show about Ms. > Ms. Rivera was the subject of a reality television series, entitled / Love Jenni, which ran for three (3) seasons, and spawned two spin-offs: Chiguis ‘N Control and The Riveras. See RIN, Exs. | and 3. I oe Ma 31535208ROOCK © STROOCK & Li y Park East 2029 cent california 90067-3086 Les Angeles, Rivera,” (Compl, 31). Thus, Plaintiff concedes this public interest point ~it just wants to ensure | that itis the only one that can profit from such public interest Not only are Ms, Rivera and her life an issue of public interest (see RIN, 1-4), but the creation of the Series about Ms. Rivera is an issue of public interest, Many news articles, only a fraction of which have been attached to Plaintiff's Complaint, have been reporting on the creation |] of the Series. See, e.g., Compl., Ex. 4; Tamkin, 193 Cal. App. 4th at 143 (finding “the creation and broadcasting of CSI episode 913 is an issue of public interest because the public was demonstrably interested in the creation and broadcasting of that episode, as shown by the posting of the casting synopses on various Web sites and the ratings for the episode.”). = Plaintiff Cannot Establish a Probability of Prevailing on Its Claims. 1. Plaintiff's Inducing Breach of Contract Cause of Action Fails. To prevail on its inducing breach of contract claim, Plaintiff must prove: (1) the NDA is a valid and existing contract; (2) Defendants knew of the NDA and intended to induce its breach; (3) Salgado breached the NDA; (4) Salgado’s breach was caused by Defendants; and (5) Plaintif? suffered damage. Dryden v. Tri-Valley Growers, 65 Cal. App. 3d 990, 995 (1977). Plaintiff cannot establish through competent and admissible evidence that it probably will prevail on this claim. | Specifically, itis impossible for Plaintiff to produce any evidence to support its allegations that: (1) | Defendants knew about Plaintif?’s alleged contract with Salgado and intended to induce Salgado to breach the contract; or (2) Defendants’ conduct proximately caused Salgado’s alleged breach. a, Because Defendants Did Not Have Knowledge of the NDA, Plaintiff Cannot Establish That Defendants Intended To Induce Its Breach. To establish a probability of prevailing on the merits, Plaintiff must show Defendants knew about the NDA, which they have not done and cannot do. See Imperial Ice Co. v. Rossier, 18 Cal. 2d 33, 37 (1941). Here, the facts plainly establish that Defendants did not have knowledge of the NDA when it began developing the Series. (Balaguer Decl, 9 6-12; Cordero Decl., § 4; Urdaneta | Decl., $4 6-12). Fatal to Plaintiff's claim, Plaintiff does not and cannot allege that Defendants ) knew of the NDA before the development ofthe Series. Further disproving the possibility of Plaintiff being able to prevail on this claims against Defendants, BTF entered into a binding term Mia 31335208sTROOCK « rk East 2029 century Bi Los Angeles, California 90067-3086 sheet relating to the Series on May 12, 2016, (Cordero Decl., § 6, Ex.“ *), Plaintisf admits that it did not send its letter informing Defendants of the existence of the NDA until June 3, 2016 — over three weeks after the Univision Term Sheet was executed. (Compl., Ex. 5). Because Defendants began the alleged conduct ~ developing the Series — before leaming about the NDA, Defendants could not have intended to induce a breach of a then-unknown contract. See Imperial Ice Co., 18 Cal, 2d at 37 (“If the actor had no knowledge of the existence of the contract or his actions were not intended to induce a breach, he cannot be held liable though an actual breach results from his lawful and proper acts.”); Kasparian v, Cy of L.A., 38 Cal. App. 4th 242, 270 (1995) (noting that “because there is no evidence that [defendant] had knowledge of the buy-out negotiations, we cannot find any evidentiary support for the conclusion that he intended to disrupt them.”) (emphases in original); Dryden, 65 Cal. App. 34 at 996 (finding plaintiff's intentional interference cause of action “fatally defective” where plaintiff failed to allege that defendant “was even aware of the existence of previous contracts” at the time of the alleged tortious conduct). Even when Defendants learned of the alleged existence of the NDA, they did not know whether the contract was either authentic or enforceable. As a matter of law, there can be no inducement without proof of knowledge of an existing and enforceable contract. See Springer v. Singleton, 256 Cal. App. 2d 184, 189 (1967) (finding plaintiff failed to establish his inducing breach of contract claim where “there was no showing that [defendant] had knowledge of an existing, enforceable contract” at the time defendant is alleged to have caused the breach) Here, on June 3, 2016 ~ the very same day Plaintiff sent a letter accusing Salgado of violating the NDA ~ Salgado’s counsel responded via letter, contending that Salgado’s purported signature on the NDA was a forgery and that he never signed the NDA. (Cordero Decl... 7-8, Exs. “C”,"D”), Salgado’s counsel also sent this letter to Defendants. (/d.). Thus, even after receiving Plaintiff's letter on June 3, 2016, Defendants did not possess knowledge that the NDA was a valid and enforceable contract. Rather, Defendants believed Salgado’s claim that he did not sign the NDA. (Balaguer Decl., # 10; Cordero Decl., § 13; Urdaneta Decl., {| 10). In fact, after Defendants became aware of Plaintiff's accusation that Salgado violated the NDA, Salgado signed a notarized affidavit under penalty of perjury declaring that: (1) he never signed the NDA; (2) there is no ie i | sia 31338208Sow ra agreement restricting him from discussing his personal and professional dealings with Ms. Rivera; and (3) the snature on the NDA provided by Plaintiff's counsel to Defendants did not belong to him, (Cordero Deel., {f] 14-15, E “E”), Regardless of whether Plaintiff ultimately can establish that the NDA is a valid contract, the fact that Defendants subjectively (and reasonably) believed Salgado’s representations that no valid contract existed precludes Plaintiff from establishing that Defendants intended to induce a breach of the NDA. e Imperial Iee Co., 18 Cal. 2d at 39 (finding that to establish a claim for inducing breach of contract, “[iJt is necessary to prove that [defendants] intentionally and actively induced the breach.”) (emphasis added); Kasparian, 38 Cal. App. 4th at 261 (1995) (“The essential thing is the purpose to cause the result. If the actor does not have this purpose, his conduct does not subject him to liability under this rule even if it has the unintended effect of deterring the third person from dealing with the other.”) (quoting Rest., Torts, § 766, com. d) (italicize in original). ‘The decision in 1-800 Contacts, Inc. v. Steinberg, 107 Cal. App. 4th 568 (2003), is instructive. In that case, plaintiff and its in-house counsel (“Conder”) entered into a severance agreement that prevented Conder from assisting certain of plaintiff’s competitors and included a confidentiality clause in which Conder agreed not disclose plaintiff's confidential information. Jd. at 573. Plaintiff's complaint in 1-800 Contacts alleged that after the severance agreement was executed, Conder informed defendant of his agreement with plaintiff, provided assistance to defendant and disclosed plaintiffs confidential information to defendant. Id. at 373-74. The 1-800 Contacts plaintiff brought a claim against defendant for inducing breach of contract. Id. at 575. In response, defendant filed an anti-SLAPP motion and submitted a declaration stating that Conder repeatedly had assured defendant that he would not disclose plaintiff's confidential information or otherwise breach his agreement with plaintiff. Jd, at 76-77. In concluding that plaintiff did not establish a probability of prevailing on the merits of its inducement claim, the court found that defendant's reliance on Conder’s repeated assurances that he would not breach his agreement with plaintiff negated the necessary intent for an inducing breach of contract claim. Id, at 586, In particular, the court found that “[wJhether or not a breach of the agreement occurred, the evidence -10- Mia 313352083086 2029 Century Park East jos Angeles, California 90067 1 || did not show or substantiate that [defendant] . . . acted with knowledge that any such breach would thereby be caused.” Jd, 3 Like the defendant in /-800 Contacts, Defendants here relied on Salgado’s representations 4 || that he was not breaching any obligation to Plaintiff, as he explicitly represented and warranted to 5 || Defendants in writing that the “development, production and delivery [of the Series]” would not 6 || “constitute a violation of any third party’s rights” and that he had not entered into any agreement 7 || which was “inconsistent with any of the provisions” of the Co-Producer Agreement. (Cordero g ||Decl., 5, Ex. “A”, § 18.6 and 18.8). Defendants further relied on Salgado’s express 9 ||representations made under penalty of perjury that he did not sign the NDA. (Cordero Decl., 10 ||*F"; Balaguer Decl., | 10; Urdaneta Decl., { 10). As such, whether or not Salgado breached a 11 || purported agreement is of no consequence. Plaintiff cannot establish that Defendants acted with 12 || knowledge that their conduct would cause a breach of the NDA. Accordingly, Plaintiff cannot 13 ||establish that Defendants acted with the requisite intent and its claim therefore fails. 4 b. Because Defendants’ Alleged Conduct Occurred After Salgado’s Alleged Breach, Plaintiff Cannot Establish That Defendants Caused Salgado To 15 Breach the NDA. 16 “[P]roximate causation [is] a vital element” to an inducing breach of contract claim. 17 || Dryden, 65 Cal. App. 3d at 997-98 (finding plaintiff's inducing breach of contract claim failed 18 || where complaint alleged that contracting party failed to perform under the contract prior to 19 |) defendant's alleged conduct). Here, Plaintit ‘acknowledges that, to the extent Salgado breached the 20 || NDA, he first did so by authoring a book. (See Compl., § 22 (stating “the improper disclosures 21 || first occurred in an unpublished ‘book’ authored by Salgado about Ms. Rivera”) (emphasis 22 || added)). Because Plaintiff has admitted that Salgado failed to perform under the NDA prior to 23 || Defendants’ involvement with the Series, Plaintiff cannot establish Defendants proximately caused 24 || Salgado’s alleged breach. 25 For example, in Hill v. Progress Co., 79 Cal. App. 2d 771 (1947), plaintiff sued numerous 26 || defendants (the “Employers”) for breach of contract and a defendant (the “Third-Party”) for 27 || tortious interference with contract. Jd. at 772-73. Plaintiff and the Employers had an oral contract, oe ata 31335208oo N LLP 90067-3086 2029 Los Angeles, Cali whereby the Employers granted plaintiff the exclusive right to perform all hauling services. Jd, Later, the Employers hired the Third-Party to start performing hauling services. Id. at 775. Plaintiff approached the Third-Party and informed him that he had a contract to perform all the hauling. /d. The Third-Party continued to perform hauling services for the Employers. Jd. The court found that the Third-Party’s actions in continuing to haul failed to prove that the Third-Party caused the Employers to breach their contractual relationship with plaintiff. /d. at 780. “Such breach, if any occurred, took place with the hiring of [the Third Party] and not by, or at the time of, the subsequent conversation complained of.” Id. Like in Hill, Defendants’ conduct in developing the Series that took place after Salgado authored the book and after Defendants leamed about the NDA is insuficient to establish that Defendants caused Salgado to breach any contractual obligations. Rather, to the extent any breach occurred, it occurred prior to Defendants’ involvement with the Series and prior to Defendants’ knowledge of the NDA. Accordingly, Plaintiff cannot establish causation and its claim for inducing breach of contract fails. 2, Plaintiff’s Intentional Interference With Contract Cause of Action Fails. To prevail on its intentional interference with contract claim, Plaintiff must prove: (1) a valid contract between Plaintiff and Salgado; (2) Defendants’ knowledge of this contract; (3) Defendants’ intentional cts designed (o disrupt the contract; (4) the contract was disrupted; (5) Defendants caused the disruption; and (6) resulting damage. Pac. Gas & Blee. Co. v. Bear Stearns & Co., 50 Cal, 3d 1118, 1126 (1990); Dryden, 65 Cal. App. 3d at 995. Although a claim for inducing breach of contract and for intentional interference with contract are similar, “the tort of inducing breach of contract requires proof of a breach, [while] the cause of action for interference with contractual relations is distinct and requires only proof of interference.” Pac. Gas & Elec Co., 50 Cal. 3d. at 1129. Here, regardless of whether Plaintiff can establish the NDA was either breached or interfered with, Plaintiff cannot establish that Defendants knew of the NDA and intended to disrupt it or that Defendants caused any disruption of the NDA for all the reasons discussed above. Accordingly, Plaintiff's intentional interference with contract claim also fails. +12. MA 31335208nos ange 3. Plaintiff's Section 17200 Claim Fails. a, Section 17200 Does Not Restrict (and Therefore Does Not Apply To) Noncommercial Speech Such as Television Programs. It is well established in California that the Unfair Competition Law (“UCL”) enshrined in section 17200 “does not seek to restrict noncommercial speech in any manner.” William O'Neil & | Co. Inc. v. Validea.com Inc., 202 F. Supp. 2d 1113, 1121 (C.D, Cal. 2002) (quoting Keimer v. | Buena Vista Books, Inc., 75 Cal. App. 4th 1220, 1232 (1999)); see also Rezec v. Sony Pictures Entm't, Inc., 116 Cal. App. 4th 135, 140 (2004) (“California’s consumer protection laws, like the unfair competition law, govern only commercial speech”; “[nJoncommercial speech is beyond their reach”). As such, California courts consistently have dismissed statutory unfair competition claims that purport to arise from conduct protected by the First Amendment. See, e.g., Kirby v. Sega of |Am., Inc., 144 Cal. App. 4th 47 (2006) (claims by celebrity singer that video game misappropriated her likeness and identity and amounted to unfair competition were subject to First Amendment defense; accordingly, her section 17200 and other claims failed); Hoffinan v. Capital Cities/ABC, Ine. 255 F.3d at 1183 (9th Cir. 2001) (claim that magazine's use of Dustin Hoffman’s likeness in an article violated section 17200 was barred by First Amendment); Daly v. Viacom, Inc., 238 F. Supp. 2d 1118, 1123 (N.D. Cal. 2002) (dismissing reality television show participant's misappropriation and secti n 17200 causes of action for failure to state a claim, in part on the basis that the show was an expressive work subject to First Amendment protection). As one federal district court explained: “Lawsuits premised on section 17200 are subject to being stricken because they are barred by the First Amendment where the speech complained of is not commercial speech.” New.net, Inc. v. Lavasofi, 356 F. Supp. 2d 1090, 1110 (C.D. Cal. 2004) (granting anti- SLAPP motion) (citing Kasky v, Nike, Inc., 79 Cal. App. 4th 165, 178 (2000) (rev d on other groundsy, Bernardo v. Planned Parenthood Fed. of Am., 115 Cal. App. 4th 322 (2004) (Section 17200 claim based on purportedly misleading statements on defendants’ website was barred under i | First Amendment because statements were protected noncommercial speech). | Here, Plaintiff's entire section 17200 claim against Defendants arises from and hinges on the allegation that Defendants “wrongfully disclosed and utilized information” in the production and development of a television program. (Compl., § 51, 59, 64). It is well settled, however, that | jsuiaseury Park East 29 cent 3086 california 90067. Los Angeles, television broadcasting, as well as production activities that advance or assist in the creation of a television program, is not commercial speech and, instead, involves free speech that is not subject to a section 17200 claim. See e.g., Olivia N. v. NBC, 74 Cal. App. 34 383, 388 (1977); Tamkin, 193 Cal. App. 4th at 143; Lieberman v, KCOP Television, Inc., 110 Cal. App. 4th 156, 166 (2003); | Daly, 238 F. Supp. 2d at 1123 (realty television show protected); Seelig, 97 Cal. App. 4th at 807- 08 (criticism of reality television program was protected speech). In accordance with the robust case law cited above, Plaintiff's attempt to turn defendant Salgado’s alleged breach of a NDA into a UCL claim to stop Defendants’ production and development of the Series must be rejected. Plaintiff's claim purports to arise from the creative decision-making and content of the Series, and, as a result, it does not fall within the narrow category of “commercial speech” covered by section 17200. Accordingly, Plaintiff's UCL claim must be stricken. b. Plaintiff Is Not Entitled To Any Relief Under Section 17200. I is well established that section 17200 does not authorize the recovery of damages or attorneys’ fees, nor is there a “disgorgement of money” remedy available. Bank of the W. v. Super. Court, 2 Cal. 4th 1254, 1266 (1992); Dean Witter Reynolds, Inc. v. Super. Court, 211 Cal. App. 3d. 758, 774 (1989); Cel-Tech Comme'n Inc. v. L.A. Cellular Phone Co., 20 Cal. 4th 163, 179 (1999). Consequently, the only remedies available to Plaintiff under section 17200 are injunetive relief and restitution, See Cel-Tech, 20 Cal. 4th at 179. Neither is available to Pla First, Pl has not pled and cannot plead any basis for “restitution,” because there is no basis for alleging that Defendants acquired any money or property from it based on the conduct alleged in the Complaint. See Bus. & Prof. Code § 17203. Second, Plaintiff cannot obtain injunctive relief that interferes with the production and distribution of the Series. It is well established that the First Amendment prohibits such prior restraints on speech. See, e.g., Hunt v. NBC, 872 F. 2d 289 (9th Cir. 1988) (upholding district court’s refusal to enjoin the broadcast of a docudrama that portrayed defendant committing the murder for which he was about to be tried, despite claim that depiction was false); CBS, Inc. v. Davis, 510 US. 1315, 1317 (1994) (Blackmun, J.) (staying injunetion barring broadcast, even ol MUA 31335208,California 90067-3086 STROOCK 6 STROOCK ¢ LAVAN LLP 2029 Century Park East os Angeles, though CBS allegedly acquired videotape through “calculated misdeeds”); Hurvitz v, Hoefftin, 84 Cal. App. 4th 1232, 1241, 1243 (2000) (rejecting prior restraint despite alleged privacy violations), Accordingly, because there is no remedy available to Plaintiff under section 17200, its UCL claim should be dismissed for this separate reason. D. Defendants Should Be Awarded Their Attorneys’ Fees and Costs Under the Anti-SLAPP Statute. As prevailing defendants on an anti-SLAPP motion, Defendants are entitled to recover their attorneys’ fees and costs pursuant to Civ. Proc. Code § 425.16(c). The Code provides, in relevant part: “In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” As such, Defendants respectfully request this Court find that they are entitled to an award of attorneys’ fees and costs, pursuant to Civ. Proc. Code § 425.16(c), in an amount to be established by subsequent motion and supporting, documents. IV. CONCLUSION This lawsuit should be dismissed as the conduct alleged therein is protected under the anti- SLAPP statute and Plaintiff cannot meet its burden of demonstrating a probability of prevailing on its claims. Therefore, Defendants respectfully request that this motion be granted in its entirety, and that they be awarded their attomeys’ fees and costs. Dated: October 14, 2016 STROOCK & STROOCK & LAVAN LLP » 266 “wae SAMMATARO™ CRYSTAL Y. JONELIS Attomeys for Defendant BTF MEDIA, LLC My a MW ah “15- MIA 31335208Dated: October 14, 2016 Ren Attorneys for Defendants 5 LATIN WORLD ENTERTAINMENT HOLDINGS, INC., LUIS BALAGUER AND DHANA MEDIA, INC. a century Park East california 90067-3086 “3 16 STROOCK 6 STROOCK & LAVAN LLP Sl MIA 315335208PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 1am employed in the County of Los Angeles, State of California, I am over the age of 18 and not a party to the within action. My business address is 2049 Century Park East, Suite 2400, Los Angeles, California 90067-2906. On the date stated below, I served true copies of the foregoing document(s) described as: DEFENDANTS LATIN WORLD ENTERTAINMENT HOLDINGS, INC., LUIS BALAGUER, DHANA MEDIA, INC. AND BTF MEDIA, LLC’S NOTICE OF SPECIAL. MOTION AND SPECIAL MOTION TO STRIKE PLAINTIFF’S COMPLAINT UNDER THE CALIFORNIA ANTI-SLAPP STATUTE, CIV. PROC. CODE § 425.16 on the interested parties in this action by placing: [X] a true and correct copy -OR- [ | the inal document thereof enclosed in sealed envelopes addressed as follows: Bert H. Deixler, Esq. Howard E. King, Esq. Philip M. Kelly, Esq. Stephen D. Rothschild, Esq. Kendall Brill & Kelly LLP KING, HOLMES, PATERNO & SORIANO, LLP 10100 Santa Monica Blvd., Suite 1725 1900 Avenue of the Stars, 25th Floor Los Angeles, CA 90067 Los Angeles, California 90067-4506 Phone: (310) 556-2700 srothschild@khpslaw.com Fax: (310) 556-2705 hking@khpslaw.com Attorneys for Plaintiff Jenni Rivera Attorneys for Defendant Pete Salgado Enterprises, LLC [x] BY MAIL: [X] I deposited such envelope in the mail at Los Angeles, California, The envelope was mailed with postage thereon fully prepai [X] As follows: Tam “readily familiar” with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit, I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed October 14, 2016, at Los Angeles, Calif Lisa Carpenter MIA 31335208