Plaintiff Daniel just can’t catch a break.
He sued Wayans for making racially disparaging comments about him during a movie production, both at work and via online postings.
Wayans filed an anti-SLAPP motion, which was granted by the trial court and affirmed on appeal.
California’s Supreme Court ordered the Court of Appeal to reconsider its ruling in light of two recent Supreme Court opinions – FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 and Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871.
The Court of Appeal did so, and now has affirmed its prior ruling a second time, in this unpublished opinion, Case No. B261814, consolidated with B263950.
Those appellate SLAPP fees are surely adding up in a big way for Plaintiff Daniel.
This second Daniel Court summarized FilmOn as seeking SLAPP protection under the catch-all provision – C.C.P. § 425.16(e)(4). Both the trial court and Court of Appeal granted the SLAPP motion in significant part because the context of the speech at issue was irrelevant to the first prong of SLAPP analysis: “neither the identity of the speaker nor the identity of the audience affects the content of the communication, or whether that content concerns an issue of public interest.” 7 Cal.5th at 142. Plaintiff argued in opposition to the SLAPP motion that the targeted speech at issue “was not connected with a public issue or an issue of public interest because it provided the reports [at issue] only to [defendant’s] paying clients, who must keep them confidential.”
The FilmOn Supreme Court agreed with Plaintiff that the context was important to determine whether the SLAPP statute applies, at least for the catch-all provision of C.C.P. § 425.16(e)(4) – “a court must consider the context as well as the content of a statement in determining whether that statement furthers the exercise of constitutional speech rights in connection with a matter of public interest.” FilmOn at 149.
The FilmOn Court further set forth a “two-part analysis” for (e)(4): “First, we ask what ‘public issue or… issue of public interest’ the speech in question implicates – a question we answer by looking to the content of the speech…. Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” Id. at 149-150. This relationship must be close – “it is not enough that the statement refer to a subject of widespread public interest; the statement must in some matter itself contribute to the public debate.” Id. at 150. Further, “we examine whether a defendant – through public or private speech or conduct – participated in, or furthered, the discourse, that makes an issue one of public interest.” Id. at 151. To do this, the Court must examine the context of the statements, “including audience, speaker, and purpose.” Id. at 151-152.
Analyzing the facts before it, the FilmOn Supreme Court held that (e)(4) did not apply because while the speech at issue satisfied the first part of the (e)(4) analysis – the speech implicated issues of public interest, it did not satisfy the second part of the (e)(4) analysis because “the context of the report showed that they did not contribute to the public debate on such issues…. ‘The information never entered the public sphere, and the parties never intended it to.” Id. at 153.
This second Daniel Court summarized Wilson as also centering on (e)(4) coverage. Former CNN news writer/producer Wilson sued his former employer CNN for defamation, retaliation, and unlawful discrimination under FEHA. CNN allegedly fired Wilson after concluding Wilson committed plagiarism. CNN filed an anti-SLAPP motion, the trial court granted it, the Court of Appeal reversed, and the California Supreme Court granted review.
The first issue determined by the CA Supreme Court in Wilson was whether the defendant employer’s allegedly discriminatory or retaliatory motive might operate to eliminate SLAPP protection. A split had arisen between various CA appellate courts on this issue. The Wilson Court concluded that the alleged motive did not remove SLAPP protection from the targeted actions/claims: “If conduct that supplies a necessary element of a claim is protected, the defendant’s burden at the first step of the anti-SLAPP analysis has been carried, regardless of any alleged motivations that supply other elements of the claim.” Wilson at 892. Further on this point, the Wilson Court held that the first prong of the SLAPP analysis require a Court “to examine the defendant’s actions without regard to the plaintiff’s allegations about the defendant’s motives.” Id. at 889, fn. 7.
Notwithstanding the foregoing, the Wilson Court held that a defendant’s alleged motive is critical to determining “whether the acts were made to further the defendant’s exercise of free speech rights.” Wilson at 889. The Court focused on two broad actions targeted by Wilson’s lawsuit: his allegedly wrongful termination by CNN and CNN’s allegedly false statements to Wilson’s prospective employers that Wilson had committed plagiarism.
The Wilson Court concluded that CNN’s termination of Wilson “was not ‘itself speech,’” but that it might be afforded SLAPP protection “if the act was made in furtherance of CNN’s free speech rights.” Id. at 892-893. The Wilson Court concluded that CNN failed to show that this particular termination was made in furtherance of CNN’s free speech rights based on “Wilson’s role at CNN.” Id. at 896. The Court did conclude, however, that CNN”s termination of Wilson was “in furtherance of CNN’s free speech rights” insofar as it was based on Wilson’s alleged plagiarism, which “furthers a news organization’s exercise of editorial control to ensure the organization’s reputation, and [preserves] the credibility of what it chooses to publish or broadcast.’” Id. at 898.
The Wilson Court concluded that CNN’s allegedly defamatory statements about Wilson made to his prospective employers did not merit SLAPP protection because they were not “made in connection with an issue of public interest.” Wilson was not a public figure. Wilson at 901-902. The Wilson Court similarly rejected CNN’s argument that its statements about Wilson generally implicated the public issue of “journalistic ethics” because the connection between the statements was too tenuous and abstract and disconnected to any public debate: “CNN’s alleged statements about an isolated plagiarism incident did not contribute to public debate about when authors may or may not borrow without attribution.” Id. at 903. The Wilson Court further emphasized the “private context” of the speech as undercutting CNN’s (e)(4) argument, citing to FilmOn. Wilson at 903.
—
Moving to the facts at issue here, the Daniel Court concluded that defendant Wayans showed SLAPP protection under (e)(4)’s catch-all. The Court agreed with defendant that the making of the movie “was an issue of public interest,” particularly because defendant Wayans was a prolific and popular actor and the public is generally interested in “his work.” The Court further agreed with Wayans that his work involves “making fun of pop culture, racial stereotypes, and current events.” Id. The Daniel Court concluded that the film production itself “easily” fell within (e)(4)’s catch-all for SLAPP protection.
Applying the new two-step (e)(4) analysis to the facts before it, the Daniel Court concluded – again – that the production of the film itself, the “content” of the speech at issue, implicated various issues of public interest – “Wayans’s popularity and celebrity as an entertainer, Wayans’s comedic style of making fun of pop culture, racial stereotypes, and current events, as well as the use of the term ‘nigga.’” For step two, the Daniel Court held that the context of the speech at issue contributed to the public debate on the issues implicated. “By frequently using the term ‘nigga’ in the off-camera development of the movie and in the movie itself, Wayans directly contributed to the public conversation about that controversial word and how it may be used. Although the audience for that specific conduct that is the focus of Daniel’s complaint was initially limited to those working on the set of [the movie] at the time, that conduct contributed to the development of Daniel’s character…, which was ultimately incorporated into the movie.” The Daniel Court again emphasized that the parties failed to show that the statements made to Daniel were “intended to be private or ‘confidential.’”
Examining Wayans’s Twitter post about Daniel, the Daniel Court held that it merited SLAPP protection under (e)(3). The statements were made online to the general public, i.e. in a public forum. The Daniel Court further held that the statement was connected to an issue of public interest – the movie production: “advance information from Wayans about the making of [the movie], including a photo of someone acting in the film, constitutes a topic of public interest, even though Daniel himself may not have been known to the public.” There was nothing private or confidential about these actions, i.e. the public context reinforces Wayans’s point that the statements merit SLAPP protection.
The Daniel Court opined – in this uncitable opinion – that despite referring only to (e)(4) in their analyses, the FilmOn and Wilson opinions likewise applied to a Court’s SLAPP analysis under 425.16(e)(3) because the phrase “in connection with an issue of public interest” “appears in both subdivisions.” The Court cited with approval to another appellate opinion similarly holding – Serova v. Sony Music Entertainment 2020 WL 90627 at p. *7, fn. 8.
Comments are closed