14 15 16 7 18 19 20 22 23 24 25 26 27 28 BRIAN G. WOLF (BAR NO. 135257) DAVID B. JONELIS (BAR NO. 265235) LAVELY & SINGER PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400 Los Angeles, California 90067-2906 Telephone: (310) 556-3501 Facsimile: (310) 556-3615 lysin: Email: bwolf@lan com Attomeys for Defendant SHIA LABEOUF ct onmev COPY COM SINRL FLED sugerior Court of, Galiforn! eo eto Aner sep 20 2017 rtioar/C1ee Caster, Preeulive Shout A.C Depaty ‘By; Ghonetta Robinson, SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT DAVID BERNSTEIN, Plaintiff, v SHIA LABEOUF; Does | to 10, Inclusive, Defendants. CASE NO. BC663207 [Hon, Benny C. Osorio - Dept. 97] DEFENDANT SHIA LABEOUF’S NOTICE, OF SPECIAL MOTION AND SPECIAL MOTION TO STRIKE PLAINTIFF DAVID BERSTEIN’S FIRST AMENDED COMPLAINT UNDER THE CALIFORNIA. ANTI-SLAPP STATUTE, CIV. PROC. CODE § 425.16, ET SEQ.; MEMORANDUM. OF POINTS AND AUTHORITIES [Fited Concurrently With Defendant's Demurrer to First Amended Complaint] Date: October 18, 2017 Time: 1:30 p.m, Dept.: 97 RES ID: 170908249500 Complaint Filed: May 26,2017 FAC Filed: July 17, 2017 Trial Date: Novernber 26, 2018 ‘DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT10 n 12 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 ‘TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 18, 2017 at 1:30 p.m., or as soon thereafter as the matter may be heard, in Department 97 of the above-entitled court, located at 111 North Hill Street, Los Angeles, CA 90012, Defendant SHIA LABEOUF (“Defendant”) will, and hereby does, move to strike the First Amended Complaint filed by Plaintiff DAVID BERNSTEIN (“Plaintiff”) in its entirety. This Motion is made pursuant to Section 425.16 of the California Code of Civil Procedure on the grounds that (1) the allegations in the First Amended Complaint arise out of protected free speech conduct, and (2) Plaintiff cannot establish a probability of prevailing on its claims because (a) Defendant's alleged defamatory statements are non-actionable statements of opinion; (b) Defendant's alleged conduct does not give rise to a claim for intentional infliction of emotional distress as a matter of law; and (c) Defendant's alleged conduct does not constitute an assault as a matter of law. In addition, Defendant requests that it recover from Plaintiff his attomeys’ fees and costs incurred in bringing this Motion, Section 425.16(c) of the California Code of Civil Procedure ‘mandates that a prevailing defendant “shall” recover such fees and costs." This Motion is based on this Notice of Special Motion and Special Motion to Strike, the accompanying Memorandum of Points and Authorities, Plaintiff's First Amended Complaint, such further evidence or argument that Defendant may present at or before the hearing on the Motion, and all the pleadings, files and records in this action. DATE: September 20, 2017 LAVELY & SINGER SHIA WABEOUF "If the Court grants this Special Motion to Strike, Plaintiff will file a noticed motion to recover its attorneys” fees and costs. 1 ~ DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT10 MW 12 13, 14 15 16 17 18 19 20 21 2 23 m4 25 27 28 IL I. Vv. TABLE OF CONTENTS INTRODUCTION RELEVANT FACTUAL BACKGROUND... A. Defendant Is A World Famous Public Figure... B. The Alleged Incident Giving Rise To Plaintiff's Entire Complaint C. The Public Interest In The Incident .. LEGAL ARGUMENT. A. Legal Standard On An Anti-SLAPP Motion. B. The Allegations Of The FAC Arise From Protected Conduct Under The First Prong Of The Anti-SLAPP Statut 1, The Anti-SLAPP Statute Broadly Applies To All Types Of Claims... 2, The Anti-SLAPP Statute Protects Free Speech In Connection With Matters of Public Interest. 3. Defendant’s Alleged Verbal Conduct Giving Rise To Plaintiff's F. Constitutes Protected Speech Under The Anti-SLAPP Statute 4. Defendant’s Alleged Non-Verbal Conduct Giving Rise To Plaintiff's FAC Likewise Constitutes Protected Speech Under The Anti-SLAPP Statute .........8 c if Cannot Establish A Probability Of Prevailing On His Claims.. 9 1. Plaintiff's Slander Claim Fails As A Matter Of Law... a. Calling Someone A “Racist” Is Not Defamatory .... b. The “Totality of the Circumstances” Test Dispels Any Claim Of Slander 212 2. Plant's incon of Emotional Distess Clam Fils As Mater of aw 3. Plaintiff's Assault Claim Fails As A Matter of Law. CONCLUSION ~ DEFENDANT'S SPECTAL MOTION TO STRIKE FIRST AMENDED COMPLAINTTABLE OF AUTHORITIES State Cases Agarwal v. Johnson, 25 Cal.3d 932 (1979)... Briggs v. Eden Council For Hope & Opportunity, 19 Cal.4th 1106 (1999).. Cochran y. Cochran, 65 Cal.App.4th 488 (1998) . Cole v. Fair Oaks Fire Protection Dist, 43 Cal.3d 148 (1987)... Damon v. Ocean Hills Journalism Club, 85 Cal.App-4th 468 (2000)... Davidson v. City of Westminster, 32 Cal.3d 197 (1982).. Ferlauto v. Hamsher, 74 Cal. App Ath 1394 (1999) Fletcher v, San Jose Mercury News, 216 Cal.App.34 172 (1989), GetFugu, Inc. v. Patton Boggs LLP, 220 Cal.App.4th 141 (2013). Gilbert v, Sykes, 147 Cal. App,. 4th 13 (2007).. Gilbert v. Sykes, 147 Cal. App.Ath 13 (2007) nse Governor Gray Davis Comm. v, Am. Taxpayers Alliance, 102 Cal.App.4th 449 (2002) x1... Governor Gray Davis Comm., supra, 102 Cal.App.Ath at 460 . Hailey v. California Physicians’ Service, 158 Cal.App.4th 452. (2007). Hall v. Time Warner, Inc., 153 Cal.App.4th 1337 (2007) Hughes v. Pair, 46 Cal.4th 1035 (2009)... Jackson v. Mayweather, 10 Cal.App.Sth 1240 (2017)... James v. San Jose Mercury News, Inc., 17 Cal.App.4th 1 (1993)... Jespersen v. Zubiate-Beauchamp, 114 Cal.App.4th 624 (2003)... Lowry v. Standard Oil Co. of Cal., 63 Cal.App.24 1 (1944).. Ludwig v. Superior Court, 37 Cal.App.4th 8 (1995)... Macias v. Hartwell, 55 Cal.App.4th 669 (1997)... Martinez v, Metabolife Internat., Inc., 113 Cal.App.4th 181 (2003). McGarry v. University of San Diego, 154 Cal.App.4th 97 (2007) Navellier v. Sletten, 29 Cal.4th 82 (2002). ii PAGE NO. DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINTNygard, Inc. v. Uusi-Kerttula, 159 Cal. App.4th 1027 (2008)... Overhill Farms, Inc. v. Lopez, 190 Cal.App.th 1248 (2010)... +11, 12 14,15 14,15 People v. Williams, 26 Cal.4th 779 (2001)... Plotnik v. Meihaus, 208 Cal. App.4th 1590 (2012)... Polydoros v. Twentieth Century Fox Film Corp., 67 Cal.App-Ath 318 (1997) .. Roberts v, L.A. County Bar Ass'n, 105 Cal.App.4th 604 (2003) Rosenaur v. Scherer, 88 Cal.App.4th 260 (2001)... Savage v. Pac. Gas & Elec. Co.,21 Cal.App.Ath 434, 445 (1993) Scott v. Metabolife Int'l, Inc., 115 Cal.App.4th 404 (2004)... See, e.g., Hughes v. Pair, 46 Cal.Ath 1035 (2009)... Seelig v. Infinity Broadcasting Corp., 97 Cal-App-Ath 798 (2002) .ssnssssnnnsnnn Sipple v. Foundation For Nat'l Progress, 71 Cal.App.4th 226 (1999) Stevens v. Tillman, 855 F.2d 394 (7" Cit. 1988)... Tichinin v. City of Morgan Hill, 177 Cal.App.4th 1049 (2009) Varian Med. Sys. v. Delfino, 35 Cal.4th 180 (2005). Virginia v. Black. 538 U.S. 343 (2003) Wilbanks v. Wolk, 121 Cal.App.th 883 (2004) Yurick v. Superior Court, 209 Cal.App.3d 1116 (1989).. Federal Cases Brown v. Bd, of Educ., 347 U.S. 483 (1954)... Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113 (C.D. Cal. 1998) ... Forte v, Jones, 2013 WL 1164929, at *6 (E.D. Cal. Mar. 20, 2013)... Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010) Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 US. 264 (1974)... Roulette v. City of Seattle, 97 F.34 300 (9th Cir. 1996).. ‘Schneider v. TRW, Inc,, 938 F.2d 986 (9th Cir. 1991). 13 Statutes Cal. Civ. Code § 46. 10 Cal. Civ. Code § 3295(e) iii DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINTee a 10 w 12 13 4 15 16 7 19 20 21 2 2B 4 25 26 27 28 Cal. Civ. Proc. Code § 425.16... Cal. Civ. Proc. Code § 425.16(a) Cal. Civ. Proc. Code § 425.16(b)(1 Cal. Civ, Proc, Code § 425.16(e)(3)-(4).... Cal, Civ. Proc. Code § 425.16(e)(3).. iv DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT10 u 12 13, 14 15 16 17 18, 19 20 2 2 23 24 25 26 27 28 MEMORANDUM OF POINTS Al 1. INTRODUCTION AUTHORITIES The operative First Amended Complaint (the “FAC”) filed by Plaintiff DAVID BERNSTEIN (“Plaintiff”) is not only completely frivolous in nature, but also provides a compelling example of the type of claims which California’s anti-SLAPP statute was enacted to prevent. In short, the FAC secks to hold Defendant SHIA LABEOUF (“Defendant”) liable purely because Defendant's celebrity status turned what would have otherwise been a wholly private encounter between Plaintiff and Defendant (in which Defendant exercised his free speech rights) into a matter of significant public interest. Absent Defendant's status as a public figure, the completely non-actionable conduct giving rise to Plaintiff's FAC would have gone unnoticed, and never would have given tise to a lawsuit. However, Plaintiff is attempting to capitalize on Defendant’s high profile and celebrity status by commencing the instant action asserting baseless and harassing claims for defamation, assault, and intentional infliction of emotional distress. This action amounts to little more than attempted civil extortion. By this Motion, Defendant seeks not only the prompt dismissal of Plaintiff's entire FAC with prejudice, but also the recovery of his attorneys’ fees and costs incurred in connection herewith. As discussed herein, Plaintiff's FAC is subject to dismissal in its entirety under the anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16. First, because all three causes of action alleged in the FAC indisputably arise from Defendant’s exercise of his constitutional right to free speech in connection with a matter of public interest, Defendant satisfies the first prong of the statute’s two-prong test, thus shifting the burden to Plaintiff to show a probability that he can prevail on his claims. Second, Plaintiff cannot satisfy his burden, as (a) the alleged slander is premised entirely on non-actionable statements of opinion, (b) none of the allegedly slanderous statements attributable to Defendant constitute a provably false statement of fact, as required to assert a claim for defamation, and (c) there are no facts in the FAC that would support a claim for intentional infliction of emotional distress or assault. Consequently, under the second prong of the anti-SLAPP statute, Plaintiff cannot establish a probability of prevailing on the merits. ' Plaintif?’s intent to harass is evidenced by the fact that, despite the clear statutory prohibition against alleging a punitive damages amount in a complaint (see Cal. Civ. Code §3295(e)), Plaintiff's FAC prays for “punitive and exemplary damages in the sum of $5,000,000.” See FAC, at Prayer (p.9). 1 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT1 Accordingly, and for all the reasons discussed herein, Defendant’s Motion should be granted, 2 ||the FAC should be dismissed in its entirety with prejudice, and Defendant should be awarded his 3 ||reasonable attomeys’ fees and costs incurred in bringing this Motion, 4 ||. RELEVANT FACTUAL BACKGROU! A. Defendant Is A World Famous Public Figure 6 Defendant is a well-known American actor, performance artist, and filmmaker. Having starred 7 |]in numerous highly successful motion pictures, including such box-office hits as Indiana Jones and the 8 || Zemple of the Crystal Skull, three Transformers movies, Disturbia, and Eagle Eye, Defendant is without a doubt a public figure and the subject of much public interest. Indeed, as recognized by 10 || Plaintiff's own FAC, incidents involving Defendant receive “world-wide” attention. See FAC, §{29.30. ae B. The Alleged Incident Giving Rise To Plaintiff's Entire Complaint 12 On July 17, 2017, Plaintiff filed his operative FAC against Defendant. Although couched as 13 || three separate causes of action for (1) Assault, (2) Slander Per Se, and (3) Intentional Infliction of 14 || Emotional Distress, the gravamen of Plaintiff's entire FAC can be summed up succinctly as follows: 15 || Plaintiff claims that he is entitled to millions of dollars in damages merely because (i) Defendant 16 |] allegedly stated his opinion that Plaintiff is a “racist”, (fi) Defendant allegedly slammed his fists upon 17 |] the bar counter where Plaintiff was working, and (iii) Defendant allegedly took a few steps inside of 18 |] that bar counter and towards Plaintiff while yelling. Specifically, Plaintifi’s FAC is premised entirely 19 || on the following material allegation: 20 '* On the evening of April 5, 2017, while Plaintiff was working as a bartender/manager at Jerry’s Famous Deli in Studio City, Califomia (“Jerry's”), Defendant allegedly 21 approached the bar where Plaintiff was working and requested that Plaintiff serve beer to Defendant and Defendant's girlfriend. FAC, 449-11. * Afr Plaintiff (apparently believing that Defendant had consumed too much alcohol) 2B refuused Defendant's request for beer, Defendant allegedly “responded by pounding his fist upon the bar counter.” FAC, 12. 4 . nei * Defendant then allegedly “proceeded at least three to four steps inside of the bartender 25 well area while yelling at the top of his lungs.” FAC, 913. 6 © Defendant then allegedly “appeared ready to physically confront.” FAC, $13. ” © In response to Defendant’s actions, and ‘in order to deter Defendant,” Plaintiff raised “a Grey Goose Vodka boitle over his shoulder.” FAC, 414. 28 2 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT+ “Immediately thereafter,” Defendant allegedly made the following remarks “directed at 1 [Plaintiff}”: (@) You Fuckin’ Racist Bitch”; (ii) “You Fucking Racist”; and (iii) “Wake . Up, this Mother Fucker is a Racist.” FAC, §20-21, 57. For the purpose of this Motion, the above-described alleged conduct will be collectively 3 referred to as the “Incident."* 4 C. The Public Interest In The Incident 5 The crux of Plaintiff's alleged harm apparently stems from the fact that, as a result of the 6 significant public interest in Defendant's life, videotape of the Incident was published and disseminated 7 over the internet. In this regard, Plaintiff alleges that “[vJideotapes of [the] incident were published by 8 ‘TMZ [the tabloid entertainment news source] and were circulated instantly world-wide to millions of 9 3 people via television, internet, social, and print media.” FAC, 430. Plaintiff further alleges that 10 “{tJhere were many internet and social media posts supporting the Defendant,” and that many members u of Defendant's “large fan base...rallied to [Defendant’s] defense in internet posts.” FAC, $3233. 12 As a result of the media attention around the Incident, Plaintiff complains that he has been 13 “exposed to significant embarrassment and ridicule as customers that he has never met have alluded to 4 him as “The Racist Bartender’ and people that he does know have constantly been bringing up {the 15 Incident}.” FAC, $34. 16 Ul. LEGAL ARGUMENT 17 A. Legal Standard On An Anti-SLAPP Motion 18 The California Legislature enacted the anti-SLAPP statute in 1992 to provide a “fast and 19 inexpensive unmasking and dismissal” of lawsuits that implicate the constitutional right of freedom of 20 speech. Ludwig v. Superior Court, 37 Cal. App. 4th 8, 16 (1995); Cal. Civ. Proc. Code § 425.16. The a anti-SLAPP statute applies to “litigation without merit filed to dissuade or punish the exercise of First 2 Amendment rights of defendants.” Governor Gray Davis Comm. v. Am. Taxpayers Alliance, 102 Cal. 2B App. 4th 449, 454 n.1 (2002). Indeed, the Legislature amended the statute to provide that it “shall be 24 25 | ——_______ 2 Defendant disputes and denies many of the alleged “facts” conceming the Incident, including that he 26 || ever entered the bartender well area, However, because Plaintiff's own allegations in the FAC are insufficient to state a cause of action, any factual dispute is irrelevant for the purpose of ruling on this 27 ||Motion. Gilbert v. Sykes, 147 Cal.App.4th 13, 31 (2007) (“If the pleadings are not adequate to support a cause of action, the plaintiff has failed to carry his burden in resisting the [anti-SLAPP] motion”) 2 28 113 To be clear, Defendant had no involvement in the dissemination of this video footage, nor is there any allegation of such involvement in the FAC. 3 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT1 || construed broadly.” Jd, (quoting Cal. Civ. Proc. Code § 425.16(a)). As the California Supreme Court 2 |lemphasized following that amendment, “the broad construction expressly called for in [Se n 3 || 425.16(a) is desirable from the standpoint of judicial efficiency” because it permits the early dismissal 4 |] of unmeritorious lawsuits. Briggs v. Eden Council For Hope & Opportunity, 19 Cal. 4th 1106, 1121— 5 |}22 (1999). 6 Section 425.16(b)(1) sets forth a two-step process for the Court to evaluate a special motion to 7 || strike. First, the moving party must make a prima facie showing that the claims at issue arise from an 8 || act in furtherance of the right of petition and/or the right of free speech in connection with a public 9 JJissue. Cal. Civ. Proc. Code § 425.16(b)(1); see Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002) 10 |] CNavellier P); Wilbanks v. Wolk, 121 Cal. App. 4th 883, 894 (2004). u Second, upon the moving party making this showing, the burden shifts to the non-moving party 12 ])to establish a probability of prevailing on its claims, by establishing that “the complaint is both legally 13 || sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” 14 || Governor Gray Davis Comm., supra, 102 Cal. App. 4th at 460. If the non-moving party cannot meet 15 || this burden, then the motion must be granted. Varian Med. Sys. v. Delfino, 35 Cal.4th 180, 192 (2005). 16 B. The Allegations Of The FAC Arise From Protected Conduct Under The First 17 Prong Of The Anti-SLAPP Statute 18 1 ‘The Anti-SLAPP Statute Broadly Applies To All Types Of Claims 19 In determining whether a party engaged in protected activity under the first prong of the anti- 20 || SLAPP statute, a court must be mindful that the “Legislature recognized that all kinds of claims could 21 |lachieve the objective of a SLAPP suit,” ie., that many different claims could “interfere with and 22 || burden the defendant's exercise of his or her [First Amendment] rights.” Navellier J, supra, 29 Cal. 4th 23 ||at 92-93, ‘Thus, the focus of the inquiry “is not the form of the plaintiff's cause of action but, rather, 24 || the defendant's activity that gives rise to his or her asserted liability ~ and whether that activity 25 || constitutes protected speech or petitioning.” Jd. (emphasis added). Stated otherwise, to meet his 26 || burden under the first prong of the anti-SLAPP statute, Defendant must merely demonstrate that that 27 ||*the substance of [Plaintiff's cause of action was an act in furtherance of the right of petition or free 28 || speech.” Jespersen v. Zubiate-Beauchamp, 114 Cal.App.4th 624, 630 (2003); see Martinez v. 4 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT10 u 2 13 14 15 16 17 18 19 20 21 2 23 24 25 27 28 Metabolife Internat, Inc, 113 Cal. App. 4th 181, 188(2003) (“{I]t isthe principal ‘thrust or gravamen of the plaintif’s cause of action that determines whether the anti-SLAPP statute applies.” Defamation causes of action in particular “are a prime target of SLAPP motions.” Scott v. Metabolife Int'l, Inc., 115 Cal. App. 4th 404, 419 (2004). 2. The Anti-SLAPP Statute Protects Free Speech In Connection With Matters of Public Interest Section 425.16(e) enumerates various categories of conduct that constitute an “act in furtherance of a person’ right of petition or free speech...in connection with a public issue,” including: © “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest,” and ‘© “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.” Cal. Civ. Proc. Code § 425.16(€)(3)-(4).. Here, there is no question that the statements and conduct forming the basis of the FAC were made “in a place open to the public” (ie., a bar [FAC, 48]). Further, as discussed in detail below, the alleged statements and conduct were of “public interest,” as evidenced by the fact that video footage of the Incident was posted publicly on the TMZ website. The definition of “public interest” within the meaning of Section 425.16(e) has been broadly construed to include not only governmental matters, but also purely private conduct that nevertheless impacts a broad segment of society. Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 479 (2000). Indeed, courts have set an extremely low threshold for meeting the requirement that alleged conduct is in connection with a sue of public interest. An issue of public interest is simply “any issue in which the public is interested.” Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008). “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.” Jd. Under the anti-SLAPP statute, “[a] public issue is implicated if the subject of the...activity underlying the claim [is] @ person or entity in the public eye.” Jewett v. Capital One Bank, 113 Cal.App.4th 805, 814 (2003) (emphasis added). Thus, claims involving highly prominent and successful individuals (like Defendant here) have been deemed issues of public interest under section 5 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT425.16. See, e.g., Hall v, Time Warner, Inc., 153 Cal.AppAth 1337, 1347 (2007) (distribution of| Marlon Brando’s estate was an issue of public interest); McGarry v. University of San Diego, 154 Cal.App4th 97, 109 (2007) (termination of university football coach was an issue of public interest); Sipple v. Foundation For Nat'l Progress, 71 Cal.App4th 226, 236-40, 83 Cal.Rptr.2d 677 (1999) {allegations of domestic violence by well-known political consultant were an issue of public interest, Issues of public interest also include matters that could be described as mere “celebrity gossip” or “tabloid issues.” Nygard, supra, 159 Cal. App. 4th at 1039, 1042. Hall, supra, is instructive on this point. The plaintiff in Hall was the elderly former housekeeper of actor Marlon Brando, 153 Cal.App.4th at 1342. Upon Brando’s death, defendants, producers of a nationally broadcast television program, conducted an on-camera interview with Hall, and broadcast a portion of that interview on their television program. Jd. Like Plaintiff in this case, Hall sued the defendants for intentional infliction of emotional distress, and further alleged claims for trespass, intrusion upon seclusion, public disclosure of private facts, and elder abuse. Id. at 1343, The defendants then filed an anti-SLAPP motion, arguing that Hall's complaint arose from acts in furtherance of their right of free speech, Jd. at 1346-47. After the trial court denied the motion under the first prong of the anti-SLAPP statute, the appellate court reversed, holding that “{t]he public’s fascination with Brando and widespread interest in his personal life” made his living trust and the distribution thereunder “a public issue or an issue of public interest.” id. at 1347. The court specifically noted that “[aJlthough Hall was a private person and may not have voluntarily sought publicity or to comment on Brando’s will, she nevertheless became involved in an issue of public interest by virtue of being named in Brando’s will.” Id. Similarly applicable here is Seelig v. Infinity Broadcasting Corp., 97 Cal.App.4th 798 (2002). The plaintiff in Seelig had been one of 50 contestants appearing on the television show Who Wants to Marry a Multimillionaire. Id. at 801. Although she was only on screen for less than a minute of the show, the hosts and producer of a morning radio show subsequently made derisive comments about the plaintiff's involvement in the show. /d at 802-806, The plaintiff then sued the hosts and producer, claiming (like Plaintiff here) that she had been “humiliated” by their conduct. After the trial court denied the defendants’ anti-SLAPP motion, the Court of Appeal reversed, striking the plaintiff's entire 6 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINTCea aw 10 UW 12 13 4 15, 16 17 18 - 20 Pat 2 23 4 25 26 27 28 complaint and holding that the complaint fell squarely within the purview of the anti-SLAPP statute's “public interest” requirement. /d. at 808. The court explained that, by participating in a national television show, the plaintiff had “voluntarily subjected herself to inevitable scrutiny and potential ridicule by the public and the media” and thus the comments made on the morning radio show were “in connection with an issue of public interest. Id. at 808-809. 3. Defendant's Alleged Verbal Conduct Giving Rise To Plaintiff's FAC Constitutes Protected Speech Under The Anti-SLAPP Statute For two separate and independent reasons, and pursuant to the above-cited authorities, Defendant's alleged verbal statements about Plaintiff (i., stating his opinion that Plaintiff is a “racist”) constitute protected conduct under the anti-SLAPP statute. First (and foremost), Defendant is effectively being sued here because of the fact that his conduct and statements are inherently matters of public interest. Like Marlon Brando in the Hall case, “{tJhe public's fascination with [Defendant] and widespread interest in his personal life” render his day to day conduct “a public issue or an issue of public interest.” 153 Cal.App.4th at 1347. Indeed, by Plaintiff's own admission, his alleged “emotional distress, humiliation, and embarrassment” only resulted because Defendant's statements about him were “videotaped for an entire world to see” and then “circulated instantly world-wide to millions of people via television, intemet, social and print media.” FAC, $27, 30, 34.4 In other words, by claiming that he was damaged by the world-wide coverage of the Incident, Plaintiff has effectively admitted that the subject statements by Defendant concerned a matter of public interest. Just like the plaintiffs in Hall and Seelig, Plaintiff “became involved in an issue of public interest” and “subjected [himlself to inevitable scrutiny and potential ridicule by the public and the media” by virtue of his altercation with a high-profile celebrity like Defendant, Had there been no inherent public interest in the Incident (due to Defendant’s status as a famous individual), Plaintif’ would obviously have no basis to complain that “customers that he has never met have alluded to him * For example, while Plaintiff complains about the “many intemet and social media posts supporting [] Defendant,” and “rally[ing] to his defense,” such a complaint only exists because of Defendant's status as a eelebrity with a “large fan base.” FAC, $932, 33. i DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINToe 10 u 12 13 14 15 16 7 18 19 20 21 23, 24 25 26 27 28 as ‘The Racist Bartender.” FAC, $34, Stated otherwise, if Defendant was not a public figure, the entire Incident (including Defendant’s statements of opinion that Plaintiff is a “racist”) would have generated no publicity whatsoever, and in all likelihood, Plaintiff would have never filed this lawsuit. ‘Second, even looking past the inherent and undeniable public interest in Defendant's statements, and conduct overall, Defendant’s specific statements of opinion that Plaintiff is a “racist” independently concern a matter of public interest under section 425.16(¢) of the anti-SLAPP statute. In particular, it as axiomatic that racism and allegations of racial discrimination are matters of the highest public concem. See Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1115 (C.D. Cal. 1998) (“race relations” are an “issue[] of national public interest and concern”); see generally, Brown v. Bd. of Educ., 347 US. 483 (1954). Indeed, there can be no denying that issues of race relations and racism have been the subject of much public discourse in 2017. Thus, by orally stating his opinion that Plaintiff is a “racist” while in a place open to the public (ie, Jerry’s Famous Deli), Defendant engaged in conduct that falls squarely within the purview of section 425.16(e). See, e.g., Cal. Civ. Proc. Code 425.16(€)(3) (protected conduct includes “any written or oral statement or writing made in a place open to the public or a publie forum in connection with an issue of public interest.”). For this separate and independent reason, Defendant's alleged verbal statements satisfy the “public interest” requirements of section 425.16(c). 4. Defendant’s Alleged Non-Verbal Conduct Giving Rise To Plaintiff's FAC Likewise Constitutes Protected Speech Under The Anti-SLAPP Statute Within the context of the anti-SLAPP statute, “the right of free speech protects both actual verbal communication and expressive, nonverbal conduct.” Tichinin v. City of Morgan Hill, 177 Cal App. 4th 1049, 1080, 99 Cal. Rptr. 34 661, 686 (2009) (alleged conduct of hiring private investigator and investigating rumored inappropriate romantic relationship between city manager and city attorney was protected activity under First Amendment right of free speech). In other words, the phrase “conduct in furtherance of...the constitutional right of free speech,” as used in section 425.16(c), merely requires that the defendant’s alleged conduct was “communicative” in some way. Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010). As explained by the Ninth Circuit: 8 DANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT“[T]he activity the plaintiff is challenging must have been conducted ‘in furtherance’ of the exercise of free speech rights. By its terms, this language includes not merely actual 2 exercises of free speech rights but also conduct that furthers such rights....The California Supreme Court has not drawn the outer limits of activity that furthers the exercise of free speech rights. It seems to suffice, however, that the defendant's activity is communicative, and some courts do not discuss this part of the inquiry at all. Thus, the 4 courts of California have interpreted this piece of the defendant’s threshold showing rather loosely.” 6 || dd. at 903-904 (emphasis added); see also Virginia v. Black. 538 U.S. 343, 358 (2003) (“The First 7 || Amendment affords protection to symbolic speech or expressive conduct as well as to actual speech”) 8 ||(emphasis added); Roulette v. City of Seattle, 97 F.3d 300, 302-03 (9th Cir, 1996) (“The First 9 |] Amendment protects not only the expression of ideas through printed or spoken words, but also 10 ||symbolic speech—nonverbal activity ... sufficiently imbued with elements of communication.”) 11 |] (emphasis added). 12 Here, to the extent that Plaintiff's assault and intentional infliction of emotional distress claims 13 ||are premised in part on Defendant’s alleged physical (ie., non-verbal) acts, the conduct at issue is 14 ||nevertheless communicative and in furtherance of the very same protected free speech discussed above. 15 ||More specifically, to the extent that Defendant is alleged to have “slammied] his fist upon the bar 16 || counter,” “enter[ed] the bartender well area,” and/or “sudden[ly] approach[ed] and encroach{ed] upon 17 || [Plaintiff]’s physical space” (See FAC, ]13,36-38), such non-verbal physical manifestations and/or 18 || gesticulations were obviously made in furtherance of Defendant’s verbal statements to Plaintiff (i.e., for 19 ||emphasis).> In short, Defendant's alleged nonverbal conduct is part and parcel to his alleged verbal 20 || conduct, and is thus protected alongside that conduct. a C. Plaintiff Cannot Establish A Probability Of Prevailing On His Claims 2 In attempting to meet his burden under the second prong of the anti-SLAPP statute, Plaintiff 23 ||must “show, dy competent and admissible evidence, that [he] would probably prevail” on the merits of 24 ||his FAC. Macias v. Hartwell, 55 Cal. App. 4th 669, 675 (1997) (emphasis added). ‘This burden is 25 || significantly higher than the showing required to survive a demurrer; Plaintiff “cannot simply rely on 26 |[its pleadings” to provide the necessary evidentiary showing. Roberts v. L.A. County Bar Ass'n, 105 27 28 || Indeed, the FAC alleges that Defendant was engaging in verbal conduct (“yelling at the top of his lungs”) at the same time as he was engaging in the alleged non-verbal conduct. See, e.g., FAC, §13 9 ECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT DEFENDANT’Row Rw Cal. App. 4th 604, 613-14 (2003). Conversely, where (as here) even the pleadings themselves “are not adequate to support a cause of action, the plaintiff has failed to carry his burden in resisting the [anti- SLAPP] motion.” Gilbert v. Sykes, 147 Cal. App. 4th 13, 31 (2007). Here, Plaintiff cannot meet his burden for two fundamental reasons: rst and foremost, all of Defendant’s allegedly slanderous statements are, as a matter of well-settled law, non-actionable statements of opinion. Second, the allegations of Plaintiff's FAC are insufficient to support a viable cause of action for assault or intentional infliction of emotional distress. 1 Plaintiff's Slander Claim Fails As A Matter Of Law ‘As set forth in Paragraph 44 of the FAC, Plaintiff claims that Defendant made the following three allegedly slanderous statements: () “You Fucking Racist Bitch”; (ji) “Wake up, this Mother Fucker is Racist”; and (iii) “You Fucking Racist.” These statements are non-actionable statements of opinion. Under well-settled Califomia law, a statement is only defamatory if it contains a “provable falsehood.” GetPugu, Inc. v. Patton Boggs LLP, 220 Cal.AppAth 141, 155 (2013); see Cal. Civ. Code § 46 (“Slander is a false and unprivileged publication”) (emphasis added). Indeed, it is basic law that the sine qua non to state a claim for defamation “is the existence of falsehood.” McGarry v. University of San Diego, 154 Cal.App.4th 97 (2007). Because a statement must contain a “provable falsehood” to be found defamatory, courts distinguish between (1) statements of fact and (2) statements of opinion for purposes of defamation liability. A statement can only be found to be slanderous if it “capable of being proved as false or true.” See Savage v. Pac. Gas & Elec. Co., 21 Cal. App. 4th 434, 445 (1993). It is also widely recognized that “name-calling,” no matter how obnoxious or vulgar, is not defamatory. Krinsky v. Doe, 159 Cal. App. 4th 1154, 1176 (2008); see Ferlauto v. Hamsher, 74 Cal. App. 4th 1394, 1404 (1999) (calling the plaintiff a “creepazoid attorney” and “loser wannabe lawyer” was “merely name-calling of the ‘sticks and stones will break my bones’ variety). As explained in Polydoros v. Twentieth Century Fox Film Corp.,: “Rhetorical hyperbole and vigorous epithets are not defamatory, and to label them so would subvert the right to free speech.” 67 Cal. App. 4th 318, 326-27 (1997); see also Fletcher v, San Jose Mercury News, 216 Cal.App.3d 172, 190, 191 (1989) (statement that plaintiff was a “crook” and “crooked politician” was “merely rhetorical and hyperbolic language”); 10 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINTSI Scars i 1B 14 15 16 7 18 19 20 21 22 24 25 26 27 28 James v. San Jose Mercury News, Inc., 17 Cal.App.4th 1 (1993) (statements accusing plaintiff of engaging in “sleazy, illegal and unethical practice” are protected “imaginative expression or rhetorical hyperbole” under California law); James v. San Jose Mercury News, Inc., 17 Cal.Appth 1 (1993) (statements accusing plaintiff of engaging in “sleazy, illegal and unethical practice” were non- actionable statements of opinion under California law). a. Calling Someone A “Racist” Is Not Defamatory With respect to the specific issue of calling someone a “racist,” the court in Overhill Farms, Inc. ¥. Lopez has already made it clear that such a statement — standing alone (as is the case here) — is not defamatory. 190 Cal.App.4" 1248 (2010). Specifically, the court in Overhill concluded: “general statements charging a person with being racist, unfair, or unjust — without more — [ ] constitute mere name calling and do not contain a provably false assertion of fact.” Id. at 1262 (emphasis added). While recognizing that “[tJhe term ‘racist’ is of course an exceptionally negative, insulting, and highly charged word,” the court drew a critical distinction between simply calling someone a “racist” (which is a non-actionable statement of opinion akin to name calling) and accusing someone of engaging in specific discriminatory conduct, such as racist hiring practices (which is a verifiable statement of fact), Id. Other courts have reached the same conclusion. See, e.g., Forte v, Jones, 2013 WL 1164929, at *6 (ED. Cal. Mar. 20, 2013) (although falsely accusing someone of membership in the Ku Klux Klan is actionable, the mere “allegation that a person is a ‘racist,’ on the other hand is nof actionable b se the term ‘racist’ has no factually-verifiable meaning”) (emphasis added); Stevens v. Tillman, 855 F.2d 394, 402 (7" Cir. 1988) (PTA president's statement that elementary school principal was “racist” was not defamatory under Ilinois law because the term lacked a precise meaning, could imply many different kind of fact, and was no more than meaningless name calling); Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 284 (1974) (“to use loose Ianguage or undefined slogans that are part of the conventional give-and-take in our economic and political controversi Jike ‘unfair’ or ‘fascist’—is not to falsity facts.”); accord Rosenaur v. Scherer, 88 Cal. App.4th 260, 264-265 (2001) (statement that plaintiff was a “thief” was “reasonably interpreted as loose figurative language and hyperbole, not a claim that the plaintiff actually had a criminal past”) i DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINTSee aawe itt 2 B 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 Here, Plaintiff's entire slander claim is premised on Defendant having called Plaintiff 2 “racist” — nothing more. FAC, $44. Defendant is not alleged to have accused Plaintiff of engaging in any specific discriminatory conduct, much less any specific conduct whatsoever. Rather, Defendant merely made the general statement/opinion that Plaintiff is a “racist.” While Plaintiff may not have appreciated being called this name by Defendant, the simple fact remains that Defendant's statements were “mere name calling” and did “not contain a provably false assertion of fact.” See Overhill, supra, 190 Cal.App.4" at 1262. 5. The “Totality of the Circumstances” Test Dispels Any Claim Of Slander Further, even looking past the black-letter law already holding that the term “racist” is not defamatory, courts must apply a totality of the circumstances test in order to determine whether a statement is actionable fact or nonactionable opinion. MeGarry, supra, 154 Cal.App.4th at p. 113. The relevant inquiry is whether, considering both the language of the statement itself and the context in which it is made, “a reasonable fact finder could conclude” that the statement is a provably false statement of fact. Id. Here, by Plaintiff's own admission, the statements were made in a “fully stocked bar” at a time when Defendant appeared “significantly under the influence.” FAC, 8,12. Given this setting, no “reasonable fact finder” would consider the statements attributed to Defendant as anything other than bar-room exaggeration and ridicule. In other words, the totality of the circumstances test clearly dispels any possibility that the alleged statements were provably false statements of fact. In sum, Plaintiff has no probability of prevailing on his claim for slander against Defendant. 2m m F: A Matter of Law n of Em mal Distress Cl In order to maintain an action for intentional infliction of emotional distress, Plaintiff has the burden of proving that Defendant engaged in “extreme and outrageous conduct.” Hughes v. Pair, 46 Cal.4th 1035, 1050-1051 (2009). It is widely recognized that Plaintiff must prove that Defendant's conduct was “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Davidson v. City of Westminster, 32 Cal.3d 197, 209 (1982) (emphasis added); see Hailey v. California Physicians’ Service, 158 Cal.App.4th 452, 474 (2007) (conduct must be “so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in acivilized community”) 12 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT10 u 12 13, 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Critically, liability for infliction of emotional distress “does not extend to mere insults indignities, threats, annoyances, petty oppressions, or other trivialities.” Agarwal v. Johnson, 25 Cal. 3d 932, 946 (1979); see Yurick v. Superior Court, 209 Cal.App.3d 1116, 1128 (1989) (“there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances”); Cole v. Fair Oaks Fire Protection Dist, 43 Cal.3d 148, 155 n, 7 (1987) (“Ordinarily mere insulting language, without more, does not constitute outrageous conduct”). As explained by the court in Cochran v. Cochran, 65 Cal. App.4th 488, 496 (1998) The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintifis must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional aets that are definitely inconsiderate and unkind, There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. Accordingly, where (as here) a defendant has merely been accused of hurling insults and threatening gestures towards the plaintiff, there can be no liability for infliction of emotional distress. See, e.g., Hughes v. Pair, 46 Cal.4" 1035, 1051 (2009) (threatening to rape the plaintiff, made while in front of plaintiff's minor son, was insufficient to constitute infliction of emotional distress); Jackson v. Mayweather, 10 Cal.App.Sth 1240, 1265-66 (2017) (a former boyfriend's internet postings stating that he broke up with his ex-girlfriend because she “killed our twin babies” through an abortion, and also posting a copy of the sonogram of the fetuses and a medical report regarding the pregnancy, did not amount to outrageous conduct); Cochran v. Cochran, 65 Cal.App.4th 488, 494-99 (1998) (a threatening telephone call that the plaintiffs reasonably interpreted as a death threat was not outrageous conduct for the purpose of infliction of emotional distress). Schneider v. TRW, Inc., 938 F.2d 986 (9th Cir. 1991) is instructive, as Defendant's alleged actions here closely mirror those of the Schneider defendant. In Schneider, the defendant was alleged to have (1) repeatedly “screamed and yelled” at the plaintiff in front of others, (2) made physical “gestures [that the plaintiff] interpreted as threatening,” and (3) called plaintiff a “bitch” in front of | others. Jd, at 992. Applying California law, the court held on summary judgment that, as a matter of law, such conduct did not meet the high standard of extreme and outrageous conduct. Id. at 993. 13 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINTu 2 13 4 15 16 17 18 19 20 2 23 24 25 26 27 28 Here, Defendant's alleged conduct does not even remotely satisfy the requirements for intentional infliction of emotional distress. While Plaintiff's feelings may have been hurt by being called a racist by Defendant, “[tJhere is no occasion for the law to intervene [ ] where someone’s feelings are hurt.” Agarwal, supra, 25 Cal.3d at 946, Moreover, to the extent that Defendant “pounded his fist upon the bar counter” and/or made “advances into the bar well area,” these were hardly outrageous acts under the above-stated authorities. Indeed, Plaintiff's own admitted conduct in threatening to hit Defendant with a Grey Goose bottle was more outrageous than anything that Defendant is alleged to have done. Thus, Plaintiff has no probability of prevailing on his infliction of emotional distress claim. 3. Plaintiff's Assault Claim Fails As A Matter of Law Under California law, a civil assault is “a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.” Plotnik v. Meihaus, 208 Cal. App. 4th 1590, 1603-04 (2012) (emphasis added); see Lowry v. Standard Oil Co. of Cal., 63 Cal. App. 2d 1,7 (1944) (“A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm”). As such, assault “requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” People v. Williams, 26 CalAth 779, 790 (2001) (emphasis added). Like intentional infliction of emotional distress, the law is clear that “[m]ere words, however threatening, will not amount to an assault.” Plotnik, supra, 208 Cal. App. 4th at 1604, citing to 5 Witkin, Summary of Cal. Law, Torts, § 383, pp. 599-600. Accordingly, to the extent that Plaintiff's assault claim is premised on Defendant's verbal conduct, it must necessarily fail. Moreover, as to Defendant’s alleged physical conduct, Plotnik, supra, is instructive here. In Plotmik, the alleged assailants had aggressively approached the victim, shortly after their father allegedly beat the victim's dog with a bat, and threatened to beat and kill both the victim and his dog. 208 Cal. App. 4th at 1604. But because neither assailant displayed a weapon, took a swing at the victim, or otherwise attempted to touch the victim, the court found that neither committed an act that DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT0 SB eceiaa u 2 B 14 = 16 ibe 18 19 20 21 22 2B 4 25 26 28 could or was intended to inflict immediate injury on the victim. Id. As a result, the appellate court reversed a jury verdict for the plaintiff. Here, like in Plomik, there are no facts whatsoever indicating that Defendant ever displayed a ‘weapon, took a swing at Plaintiff, or otherwise attempted to touch Plaintiff. To the contrary, Defendant is merely alleged to have “proceeded at least three to four steps inside of the bartender well area while yelling at the top of his lungs” at which time he “appeared ready to physically confront” Plaintiff FAC, $13, 36, 37 (emphasis added). Of course, there is a significant (and critical) distinetion between appearing ready to physically confront someone, and actually engaging in a physical confrontation. By Plaintiff's own admission, Defendant never engaged in any such act that would “probably and directly result in the application of physical force” against Plaintiff, as required for assault. Williams, supra, 26 Calth at 790, To paraphrase the court in Plotnik, while Plaintiff's “actions and words were aggressive and threatening,” he is not alleged to have “committed an act that could ot was intended to inflict immediate injury” on Plaintiff. Plomik, supra, 208 Cal. App. 4th at 1604. inst Defendant. Thus, Plaintiff has no probability of prevailing on his assault clai Iv. CONCLUSION For the foregoing reasons, and for good cause shown, Defendant respectfully requests that the Court grant his Motion, strike Plaintifi’s FAC in its entirety with prejudice, and award Defendant his reasonable attorneys’ fees and costs incurred in bringing this Motion, DATI September 20, 2017 LAVELY & SINGER 15 DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT10 uN 12 13, 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE 1013A@) C.CP. Revised 5/1/88 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 listed below, I served the foregoing document described as: DEFENDANT SHIA LABEOUF’S NOTICE OF SPECIAL MOTION AND SPECIAL MOTION TO STRIKE PLAINTIFF DAVID BERSTEIN’S FIRST AMENDED COMPLAINT UNDER THE CALIFORNIA ANTI-SLAPP STATUTE, CIV, PROC. CODE § 425.16, ET SEQ. MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action by placing: [X] a true and correct copy -OR- [] the original document thereof enclosed in sealed envelopes addressed as follows: Bruce A. Wernik, Esq. ATTORNEYS FOR: Frederic L.F. Hamilton Plaintiff David Bernstein WERNIKLAW, INC. 16133 Ventura Boulevard, 7th Floor Encino, CA 91436 Tel: (818) 377-7425 Fax: (818) 377-7442 [xX] BY MAIL: [X] As follows: Lam “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. 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed September 20, 2617 at Los Angeles, California. DEFENDANT'S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT