Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 1 of 34 Page ID #:378 1 Stanton L. Stein (SBN 45997) lstein@linerlaw.com 2 Ashley R. Yeargan (SBN 259523) ayeargan@linerlaw.com 3 LINER LLP 1100 Glendon Avenue, 14th Floor 4 Los Angeles, California 90024.3518 Telephone: (310) 500-3500 5 Facsimile: (310) 500-3501 6 Attorneys for Plaintiff BLAKE TOLLISON SHELTON 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 10 11 BLAKE TOLLISON SHELTON, Plaintiff, 12 13 vs. 14 BAUER PUBLISHING COMPANY, L.P.; BAUER MAGAZINE, L.P.; 15 BAUER MEDIA GROUP, INC.; BAUER, INC.; HEINRICH BAUER 16 NORTH AMERICA, INC.; BAUER MEDIA GROUP USA, LLC, and DOES 17 1-20, inclusive, Defendants. 18 19 20 Case No. 2:15-cv-09057-CAS-AGR PLAINTIFF’S OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 [Declarations of Blake Tollison Shelton, Peter Strickland, Audrey Morrissey, Narvel Blackstock, Kevin Canady, Wes Vause, John A. Hawkings, and Stanton L. Stein, Esq.; Objections to Perel and Schwartz Declarations and Exhibits A-M and [Proposed] Order thereon filed concurrently herewith] Date: Time: Courtroom: 21 22 April 11, 2016 10:00 a.m. 5 23 24 25 26 27 28 50677.001-2813326v1 Case No. 2:15-cv-09057-CAS-AGR OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 2 of 34 Page ID #:379 TABLE OF CONTENTS 1 2 Page 3 I. INTRODUCTION ............................................................................................. 1 4 II. SUMMARY OF FACTS AND THE STORY AT ISSUE ................................... 2 5 A. Bauer’s False and Defamatory Affair Story ............................................... 2 6 B. Bauer’s False and Defamatory Rehab Story .............................................. 3 7 C. The True Story ......................................................................................... 4 8 III. LEGAL STANDARD ON A SPECIAL MOTION TO STRIKE ........................ 6 9 IV. THE MOTION SHOULD BE DENIED ............................................................. 7 10 11 12 A. A Celebrity’s Private Medical Condition Is Not An “Issue of Public Interest” For the Purposes of the Anti-SLAPP Statute ............................... 7 B. Shelton Can Show a Probability of Prevailing on His Libel Claim ............. 8 13 14 15 16 17 18 C. 19 20 V. 1. The Cover Gives The Impression That Shelton Was In Rehab, Which Is False, Defamatory, and Actionable....................... 8 2. The Rehab Story’s Other Statements Are False and Defamatory .................................................................................. 13 3. Shelton is Not “Libel Proof” ......................................................... 16 4. Shelton Can Establish Actual Malice ......................................... 17 5. Shelton Has Established Damages ................................................ 24 Shelton Can Show a Probability of Prevailing on His Claim for False Light Invasion of Privacy ........................................................................ 25 CONCLUSION ................................................................................................ 25 21 22 23 24 25 26 27 28 Case No. 2:15-cv-09057-CAS-AGR i OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 3 of 34 Page ID #:380 TABLE OF AUTHORITIES 1 2 3 4 5 Page(s) Federal Cases Alioto v. Cowles Communs., Inc. 430 F.Supp. 1363 (N.D. Cal. 1977)................................................................ 22, 23 6 Alioto v. Cowles Communs., Inc. 623 F.2d 616 (9th Cir. 1980) ................................................................................ 13 7 8 Batzel v. Smith 2001 U.S.Dist.LEXIS 11921 (C.D. Cal. 2001) ................................................... 11 9 10 Charles Atlas, Ltd. v. Time-Life Books, Inc. 570 F.Supp. 150 (S.D.N.Y. 1983) .................................................................. 16, 20 11 12 Church of Scientology v. Dell Publ’g. 362 F.Supp. 767 (N.D. Cal. 1973)........................................................................ 24 13 D.A.R.E. Am. v. Rolling Stone Mag. 14 101 F.Supp.2d 1270 (C.D. Cal. 2000) .................................................................. 21 15 Eastwood v. Nat’l Enquirer 16 123 F.3d 1249 (9th Cir. 1997) ................................................................................ 9 17 Guccione v. Hustler Mag. 18 800 F.2d 298 (2d Cir. 1986) ................................................................................. 16 19 Hilton v. Hallmark Cards 599 F.3d 894 (9th Cir. 2010) .......................................................................... 6, 7, 8 20 21 Kaelin v. Globe Communs. 162 F.3d 1036 (9th Cir. 1998) ......................................................................... passim 22 23 Kechara House Buddhist Assn. Malay v. Doe 2015 U.S.Dist.LEXIS 126124 (N.D. Cal. 2015) .................................................. 13 24 25 Kelly v. Schmidberger 806 F.2d 44 (2d Cir. 1986) ................................................................................... 13 26 Liberty Lobby v. Anderson 27 746 F.2d 1563 (D.C. Cir.1984) ............................................................................ 17 28 Case No. 2:15-cv-09057-CAS-AGR ii OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 4 of 34 Page ID #:381 1 Masson v. New Yorker Mag. 501 U.S. 496 (1991) ............................................................................................. 16 2 3 Metabolife Int’l, Inc. v. Wornick 264 F.3d 832 (9th Cir. 2001) ................................................................................ 19 4 Milkovich v. Lorain Journal Co. 5 497 U.S. 1 (1990) ................................................................................................. 14 6 Nat’l Ass’n of Gov’t Empl. v. Nat’l Fed’n of Fed. Empl. 7 844 F.2d 216 (5th Cir. 1988) ................................................................................ 24 8 Pacquiao v. Mayweather 9 803 F.Supp.2d 1208 (D. Nev. 2011) .................................................................... 12 10 Peck v. Tribune Co. 214 U.S. 185 (1909) ............................................................................................. 12 11 12 Powell v. Voy 1994 WL 621970 (N.D. Cal. 1994) ...................................................................... 25 13 14 Price v. Stossel 620 F.3d 992 (9th Cir. 2010) .............................................................................. 6, 8 15 Partington v. Bugliosi 16 56 F.3d 1147 (9th Cir. 1995) ................................................................................ 14 17 Rogers v. Home Shopping Network, Inc. 18 57 F.Supp.2d 973 (C.D. Cal. 1999) .................................................................... 6, 7 19 Sarver v. Chartier 20 2016 U.S.App.LEXIS 2664 (9th Cir. 2016) ........................................................... 6 21 Solano v. Playgirl, Inc. 292 F.3d 1078 (9th Cir. 2002) .................................................................... 9, 19, 25 22 23 Standing Comm. on Discipline v. Yagman 55 F.3d 1430 (9th Cir. 1995) ................................................................................ 15 24 25 Stern v. Cosby 645 F.Supp.2d 258 (S.D.N.Y. 2009) .............................................................. 16, 17 26 27 Suzuki Motor v. Consumers Union of U.S., Inc. 330 F.3d 1110 (9th Cir. 2003) .............................................................................. 24 28 Case No. 2:15-cv-09057-CAS-AGR iii OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 5 of 34 Page ID #:382 1 Swartz v. KPMG LLC 476 F.3d 756 (9th Cir. 2007) ............................................................................... 13 2 3 Trindade v. Reach Media Grp., LLC 2013 WL 3977034 (N.D. Cal. 2013) .................................................................... 11 4 Unelko Corp. v. Rooney 5 912 F.2d 1049 (9th Cir. 1990) .............................................................................. 14 6 Wynberg v. Nat’l Enquirer 7 564 F.Supp. 924 (C.D. Cal. 1982) ........................................................................ 17 8 Wynn v. Chanos 9 75 F.Supp.3d 1228, 1236 (N.D. Cal. 2014).......................................................... 10 10 California Cases 11 Antonovich v. Super. Ct 12 234 Cal.App.3d 1041 (1991) ................................................................................ 18 13 Burnett v. Nat’l Enquirer 144 Cal.App.3d 991 (1983) .................................................................................. 23 14 15 Burrill v. Nair 217 Cal.App.4th 357 (2013) ................................................................................. 11 16 17 City of Cotati v. Cashman 29 Cal.4th 69 (2002) ............................................................................................... 6 18 19 Cole v. Meyer & Assoc. 206 Cal.App.4th 1095 (2012) ................................................................................. 7 20 Du Charme v. Int’l Brotherhood of Elec. Workers 21 110 Cal.App.4th 107 (2003) ................................................................................... 8 22 Equilon Enters., LLC v. Consumer Cause, Inc. 23 29 Cal.4th 53 (2002) ............................................................................................... 6 24 Integrated Healthcare Holdings, Inc. v. Fitzgibbons 140 Cal.App.4th 515 (2006) ................................................................................... 7 25 26 Jackson v. Paramount Pictures 68 Cal.App.4th 10 (1998) ..................................................................................... 21 27 28 Case No. 2:15-cv-09057-CAS-AGR iv OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 6 of 34 Page ID #:383 1 Jarrow Formulas, Inc. v. LaMarche 31 Cal.4th 728 (2003) ............................................................................................. 7 2 3 Macias v. Hartwell 55 Cal.App.4th 669 (1997) ..................................................................................... 6 4 MacLeod. v Tribune Publ’g. Co. 5 52 Cal.2d 536 (1959) ............................................................................................ 10 6 McCoy v. Hearst Corp. 7 42 Cal.3d 835 (1986) ............................................................................................ 21 8 Montandon v. Triangle Publ’ns, Inc. 9 45 Cal.App.3d 938 (1975) .................................................................................... 10 10 Nagel v. Twin Lab., Inc. 109 Cal.App.4th 39 (2003) ............................................................................... 7, 18 11 12 Navellier v. Sletton 29 Cal.4th 82 (2002) ............................................................................................... 7 13 14 Nguyen-Lam v. Cao 171 Cal.App.4th 858 (2009) ........................................................................... 12, 17 15 Reader’s Digest Assn. v. Super. Ct. 16 37 Cal.3d 244 (1984) ............................................................................................ 18 17 Selleck v. Globe International, Inc. 18 166 Cal. App. 3d 1123 (1985) .............................................................................. 25 19 Tuchscher Dev. Enters, Inc. v. S.D. Unified Port Dist. 20 106 Cal.App.4th 1219 (2003) ................................................................................. 7 21 Walker v. Kiousis 93 Cal.App.4th 1432 (2001) ................................................................................. 24 22 23 Weinberg v. Feisel 110 Cal.App.4th 1122 (2003) ................................................................................. 8 24 25 Weller v. Am. Broad. Co., Inc. 232 Cal.App.3d 991 (1991) .................................................................................. 10 26 27 Wilbanks v. Wolk 121 Cal.App.4th 883 (2004) ......................................................................... 6, 7, 15 28 Case No. 2:15-cv-09057-CAS-AGR v OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 7 of 34 Page ID #:384 1 Young v. CBS Broad., Inc. 212 Cal.App.4th 551 (2012) ........................................................................... 17, 18 2 3 Other State Cases 4 Ball v. E.W. Scripps Co. 801 S.W.2d 684 (Ky. 1990)............................................................................ 19, 24 5 6 King v. Globe Newspaper Co. 400 Mass. 705 (1987) ........................................................................................... 23 7 Mahnke v. Northwest Publ’ns, Inc. 8 280 Minn. 328 (1968) ..................................................................................... 23, 24 9 Schermerhorn v. Rosenberg 10 426 N.Y.S.2d 274 (N.Y. App. Div. 1980).............................................................. 9 11 Snyder v. Lamb 12 2003 WL 1194903 (Mar. 17, 2003) ........................................................................ 23 13 Sprouse v. Clay Communs. 211 S.E.2d 674 (W. Va. 1975) ......................................................................... 9, 19 14 15 Ward v. Klein 809 N.Y.S.2d 828 (Sup. Ct. 2005) ....................................................................... 12 16 17 California Statutes 18 Cal. Civ. Code § 45 ................................................................................................................... 8, 11 19 § 48 ....................................................................................................................... 24 20 Cal. Code of Civ. Proc. 21 § 425.16 ............................................................................................................... 1,6 22 Cal. Civ. Code 23 § 3425.3 ................................................................................................................ 25 24 Other Authorities 25 Fed. R. Civ. P. 8 ......................................................................................................... 13 26 Fed. R. Civ. P. 12 ......................................................................................................... 6 27 28 Fed. R. Civ. P. 15 ................................................................................................. 13, 17 Case No. 2:15-cv-09057-CAS-AGR vi OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 8 of 34 Page ID #:385 1 Fed. R. Civ. P. 56 .............................................................................................. 6,19, 20 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:15-cv-09057-CAS-AGR vii OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 9 of 34 Page ID #:386 1 I. INTRODUCTION 2 With its In Touch cover “REHAB For Blake,” Bauer crossed the line. The 3 defamatory, but surely well-selling, cover portrayed Shelton as in rehab or on his way 4 there. Inside, Bauer told a slightly different, albeit no less false and defamatory, story 5 about a boozy, irresponsible womanizer who needed an intervention and rehab to avoid 6 ending up dead. Nothing could be further from the truth. Shelton was not in rehab, and 7 has never been to rehab, considered going to rehab, or been urged by his friends, 8 colleagues, and team to go to rehab. Though Shelton enjoys alcoholic beverages, he 9 does so in a responsible manner that never impedes his ability to function or perform his 10 professional obligations. Indeed, Bauer’s Motion conflates responsible drinking or even 11 occasional drunkenness with alcoholism, a need for an intervention and a need for rehab 12 to avoid death.1 This is tantamount to saying that a person with frequent colds and even 13 occasional pneumonia has a loathsome disease and requires quarantine and 14 hospitalization to ensure that he does not die. Bauer’s Motion should be denied. Bauer fails to establish that the Rehab Story 15 16 involves issues of public interest and is subject to strike pursuant to Cal. Code of Civ. 17 Proc. § 425.16. Assuming arguendo that Bauer’s conduct is protected, the Motion should 18 be denied because many of the questions presented are for a jury and Shelton can show a 19 probability of prevailing at trial or, at the very least, that his claim has “minimal merit,” 20 which is all that is required at this stage. The Rehab Story is false, defamatory and 21 actionable. Bauer reported, in a news magazine and as facts, that Shelton was in rehab, 22 had hit “rock bottom,” did something to destroy his marriage, and went on a “booze23 filled” bender to Mexico where he hooked up with multiple strangers and drank tequila 24 non-stop. This is false, defamation per se, and Shelton is not “libel proof” with respect to 25 1 Bauer – used herein to refer to all six defendants – disingenuously claims it ran the story because its readers “care about Blake Shelton” and “binge drinking and alcoholism 27 are serious public health issues in our culture” (Perel Decl. at ¶ 8). Putting aside that the story is false, let’s be very clear -- the Rehab Story is a reckless and malicious hatchet job 28 on Shelton, not a sensitive piece lauding those who do, in fact, need and seek help. 26 Case No. 2:15-cv-09057-CAS-AGR 1 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 10 of 34 Page ID #:387 1 allegations of “excessive drinking,” alcoholism or a need for rehab. Shelton can establish that Bauer acted with actual malice, or at least a reckless 2 3 disregard for the truth. Bauer knew, and indeed promised, to contact Shelton’s attorney 4 prior to publication but did not do so; it used a purposefully or recklessly misleading and 5 false headline; it contradicted its own statements about Shelton; it relied on friend-of6 friend gossip and an “expert” who is, in fact, a tax advisor (who thinks he can “spot 7 alcoholism”) rather than those with any actual personal knowledge or expertise; and still 8 refuses to retract the Rehab Story despite clear evidence of its falsity. Because the Rehab 9 Story is libel per se, Shelton’s damages are presumed. Nevertheless, Shelton has 10 evidence of damages. 11 II. SUMMARY OF FACTS AND THE STORY AT ISSUE 12 Shelton is an award-winning country music star who is also known for his role as 13 a judge and coach on NBC’s Emmy-winning television program, The Voice. Bauer is a 14 world-wide publisher of tabloid magazines, including Life & Style and In Touch, that 15 uses covers with eye-popping, oversized print, incendiary (and often false) headlines and 16 unflattering celebrity photographs to catch the attention of people passing by newsstands. 17 A. Bauer’s False and Defamatory Affair Story 18 Shelton divorced Miranda Lambert (“Lambert”) in July 2015. On August 10, 19 2015, Bauer published a cover story with the headline, “Blake’s ‘Other Woman’ Tells 20 All” (the “Affair Story”), which falsely portrayed Shelton as an adulterer, despite public 21 denials by all parties involved. On August 4, 2015, Shelton’s attorney Stanton L. Stein 22 sent Bauer’s Editor-in-Chief David Perel a letter demanding a retraction. Stein Decl. ¶ 4, 23 Ex. 2. On August 5, 2015, Perel and Stein spoke by telephone. Id. ¶ 5. During that call, 24 Perel advised Bauer that he would contact Stein in advance regarding any future stories 25 about Shelton. Id. ¶¶ 5,7.2 During an August 12, 2015 conversation, Perel confirmed his 26 2 Bauer’s outside counsel sent Stein a letter formally refusing to retract the Affair Story that stated: “The idea that the article suggests that a four-years-ago relationship between 28 Shelton and Groves was the cause of the Shelton-Lambert divorce is ridiculous, 27 Case No. 2:15-cv-09057-CAS-AGR 2 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 11 of 34 Page ID #:388 1 promise. Id. ¶ 6.3 Accordingly, Shelton did not sue. 2 B. Bauer’s False and Defamatory Rehab Story 3 Less than two months later, on September 16, 2015, In Touch published a cover 4 story bearing the three-inch print headline “REHAB For Blake” and the following false 5 sub-headlines: “He Finally Hits Rock Bottom” / “Drinking vodka before noon & slurring 6 his words – it’s worse than anyone knows” / “What he did while wasted that destroyed 7 his marriage,” and “How his friends begged him to stop joking about drinking & get 8 help.” Stein Decl. ¶ 8, Ex. 5 (the “Rehab Story”). In addition to the cover, the Rehab 9 Story contained numerous false and defamatory statements of fact regarding Shelton’s 10 alleged excessive drinking and alleged escapades. The false statements of fact at issue in 11 this case are fully set forth in Paragraph 13 to the Stein declaration. 12 It is not until the reader gets more than two-thirds through the Rehab Story that it 13 shifts gears and states “Blake doesn’t think he has a problem” and that he allegedly 14 “won’t listen” to friends who have told him to go to rehab. Id. Ex. 5. 15 Shelton had no real notice of the publication. Shelton Decl. ¶ 6, Stein Decl. ¶ 10. 16 Perel did not reach out to Stein as he had promised. Stein Decl. ¶ 10. Instead, 17 approximately an hour-and-a-half before an unexplained “deadline,” Bauer’s General 18 Editor sent Wes Vause, an individual with Shelton’s record label, an email advising that 19 Bauer was running a story that “some of [Blake’s] friends think he parties too hard, and 20 friends are worried if he goes too far he’ll need to go to rehab.” Vause Decl. ¶ 6, Ex.1. 21 Vause, who was out of town on business, was relying on his “out-of-office” autoreply, 22 and did not see the email right away. Id. ¶ 7, Ex.2. He was unable to reach Shelton or 23 his managers prior to Bauer’s deadline. Id. Bauer published the Rehab Story, Shelton 24 quickly demanded a retraction and, after some time passed, Bauer refused. Stein Decl. 25 ¶¶ 11-12, Exs. 6-11. Shelton sued Bauer in Los Angeles Superior Court (the “Compl.”), 26 especially given that it was Shelton that divorced Lambert and not the reverse. Stein ¶ 5, Ex. 3 (emp, added). 27 Decl. 3 Contrary to Perel Decl. n.1, Perel’s agreement to call Stein about future stories 28 regarding Shelton was not limited to the topic of the woman in the Affair Story. Id. Case No. 2:15-cv-09057-CAS-AGR 3 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 12 of 34 Page ID #:389 1 Bauer removed, and filed the Motion (“Mtn.”). Id. ¶¶ 13-14. 2 C. The True Story 3 Shelton Was Not in Rehab. Shelton has never been to rehab and was not in 4 rehab when the Rehab Story was published. Shelton Decl. ¶¶ 3, 8. Instead, during the 5 last two weeks of August 2015, Shelton performed voice work for a feature film, filmed 6 The Voice for four days, did a press junket, and taped a performance at the Grand Ole 7 Opry. Shelton Decl. ¶ 16. In September 2015, on the heels of the Rehab Story, he 8 performed at a festival in Las Vegas, gave a free concert for 10,000 people in Nashville, 9 performed at the Grand Ole Opry, attended a concert and hosted a #1 Party. Id.; Vause 10 Decl. ¶ 9. The next month, he taped The Voice, did a press tour for The Voice, and 11 filmed a promo spot for the Nickelodeon Kids’ Choice Awards. Shelton Decl. ¶ 16. 12 In addition, Shelton was doing advertising and promotional work for Gildan 13 Activewear and Nissan and was in the midst of negotiating a partnership with wine and 14 spirits company Pernod Ricard USA (“Pernod”) in connection with Smithworks, a new 15 vodka. Id. ¶ 17; Blackstock Decl. ¶ 8. The Rehab Story was published in the middle of 16 the negotiation, and Pernod reached out to Shelton’s manager. Blackstock Decl. ¶ 9. 17 Because Pernod would not work with a person in rehab or an alcoholic or somebody 18 who has an unhealthy relationship with alcohol, the deal stalled while Shelton and his 19 manager supplied Pernod with additional information, including the previously-sent 20 retraction letter. Shelton Decl. ¶ 18; Blackstock Decl. ¶ 9. Pernod became sufficiently 21 comfortable with Shelton and it closed the deal (which was publicly announced on 22 March 1, 2016). Shelton Decl. ¶ 19; Blackstock Decl. ¶ 10. 23 Shelton is Not An Alcoholic. Shelton has cultivated an entertainment persona 24 playing off the stereotype of a fun-loving, down-to-earth country boy who likes to drink 25 and do crazy things. Shelton Decl. ¶ 12; Blackstock Decl. ¶ 11. As part of this schtick, 26 Shelton regularly tweets that he is drinking and tells his fans hyperbolic, and obviously 27 28 Case No. 2:15-cv-09057-CAS-AGR 4 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 13 of 34 Page ID #:390 1 fictional, “antics” that he has done while “drunk.”4 Id.; Canady Decl. ¶ 9. In reality, 2 Shelton does not have a problem with alcohol.5 Shelton Decl. ¶ 8-11; Canady Decl. ¶ 83 9; Strickland Decl. ¶ 5; Blackstock Decl. ¶ 6. His friends and colleagues have not 4 begged him to get help or go to rehab because they do not think he has a problem. 5 Shelton Decl. ¶ 11, Blackstock Decl. ¶ 6, Canady Decl. ¶ 10, Vause Decl. ¶ 11-13; 6 Strickland Decl. ¶ 5, Morrissey Decl. ¶¶ 3-4. They also have not discussed an 7 intervention. Strickland Decl. ¶ 5; Canady Decl. ¶ 10; Blackstock Decl. ¶ 6; Shelton 8 Decl. ¶ 11; Morrissey Decl. ¶¶ 3-4. Further, neither his manager nor record label have 9 ever told Shelton to stop drinking or joking about drinking.6 Blackstock Decl. ¶ 6; 10 Strickland Decl. ¶ 6-7. 11 The Depiction of the Mexico Trip Was Fabricated. That Shelton went to 12 Cancun in August 2015 is the only thing that is true about the Mexico part of the Rehab 13 Story. Shelton Decl. ¶ 13; Canady Decl. ¶ 5. The trip was not a bachelor party – Shelton 14 went with his tour manager Kevin Canady and a married couple. Shelton Decl. ¶ 13; 15 Canady Decl. ¶ 3. Not only did Shelton not hook up with two girls in a hot tub on his 16 “Passion Suite” room’s balcony, he was not even staying at hotel ME Melia. Shelton 17 Decl. ¶ 14-15; Canady Decl.¶ 3, 6. Instead, he and Canady were at the Fiesta 18 Americana, in regular rooms (without a hot tub inside or on the balcony) near each 19 other.7 Shelton Decl. ¶ 14; Canady Decl.¶ 3, Exs.1-2. Shelton did not even visit the ME 20 Melia. Shelton Decl. ¶ 14; Canady Decl. ¶ 6. While in Mexico, Shelton was absolutely 21 not “doing shots of tequila non-stop,” “part[ying] with strippers all weekend,” going to a 22 23 24 25 26 27 28 4 As an example, Shelton once tweeted that he called 911 to report that Keira Knightly and Natalie Portman are the same person. Perel Decl. Ex. D. 5 Indeed, it is doubtful that Bauer or the public actually believes that Shelton drinks as often as he jokes he does. The Rehab Story cover references Shelton’s “joking” about drinking and the Perel Declaration concedes that “Shelton typically employs humor” and includes “dismissive jokes” in his posts about drinking. Perel Decl. ¶¶ 25-26. The public’s perception is evidenced by a comment to an article Bauer attached to Perel’s Declaration. Perel Decl., Ex. J, Comment by D. Dean, Page ID# 280. 6 Bauer’s “evidence” to the contrary is a hearsay statement in a 2011 article. 7 As further evidence that Bauer simply made up this part of the Rehab Story, the “Passion Suite” category of rooms at the ME Melia resort does not even have hot tubs on their balconies. Stein Decl. ¶ 18, Exs. 19-21. Case No. 2:15-cv-09057-CAS-AGR 5 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 14 of 34 Page ID #:391 1 strip club, having an “alcohol-fueled rendezvous” with one woman and then hooking up 2 with two other women, as the Rehab Story reports. Shelton Decl. ¶ 15; Canady Decl.¶ 8. 3 Instead, Shelton went snorkeling, boating, and had meals at restaurants with Canady and 4 their married friends. Shelton Decl. ¶ 15; Canady Decl.¶ 7. 5 III. LEGAL STANDARD ON A SPECIAL MOTION TO STRIKE 6 This is not the type of case that California’s legislature envisioned when passing 7 the anti-SLAPP statute. Bauer is hardly the “common citizen” the statute is intended to 8 protect, and Shelton’s complaint is not “meritless litigation.”8 In federal court, where an anti-SLAPP motion is based on alleged deficiencies of 9 10 pleading, it is governed by Fed. R. Civ. P. 12(b)(6), whereas if based upon a failure of 11 proof, it is governed by Fed. R. Civ. P. 56. Rogers v. Home Shopping Network, Inc., 57 12 F.Supp.2d 973, 983 (C.D. Cal. 1999). In ruling on an anti-SLAPP motion, the Court 13 engages in a two-step process. “First, the court decides whether the defendant has made 14 a threshold showing that the challenged cause of action is one arising from protected 15 activity.” Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010); City of Cotati v. 16 Cashman, 29 Cal.4th 69, 76 (2002).9 The burden then shifts to plaintiff to demonstrate a 17 probability of prevailing —that is, “that the complaint is both legally sufficient and 18 supported by a sufficient prima facie showing of facts to sustain a favorable judgment if 19 the evidence submitted by the plaintiff is credited.” Hilton, 599 F.3d at 903 (citation 20 om.); Wilbanks v. Wolk, 121 Cal.App.4th 883, 905 (2004) (the court does not weigh the 21 22 23 24 25 26 27 28 8 With the statute, the legislature sought to discourage lawsuits “brought to deter common citizens from exercising their political and legal rights or to punish them for doing so” (Sarver v. Chartier, 2016 U.S.App.LEXIS 2664 at *17-18 (9th Cir. 2016) (emp. added, citations om.)), and to “eliminate meritless litigation at an early stage in the proceedings.” Macias v. Hartwell, 55 Cal.App.4th 669, 672 (1997); see also Price v. Stossel, 620 F.3d 992, 999 (9th Cir. 2010) (re “concern that strategic defamation lawsuits were deterring citizens from exercising their political and legal rights.”). 9 This is met if the defendant proves the act underlying the plaintiff’s cause of action is “in furtherance of a person’s right of petition or free speech … in connection with a public issue” under section 425.16(b)(1). Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 66 (2002). Section 425.16(e) defines acts “in furtherance of a person’s right of petition or free speech.” Cal. Code Civ. Proc. § 425.16(e)(1)-(4). Case No. 2:15-cv-09057-CAS-AGR 6 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 15 of 34 Page ID #:392 1 credibility or comparative probative strength of the evidence).10 Plaintiff “need only 2 have ‘stated and substantiated a legally sufficient claim.’” Navellier v. Sletton, 29 3 Cal.4th 82, 88-9 (2002). To prevail on an anti-SLAPP Motion, “[P]laintiff’s cause of 4 action needs to have only ‘“minimal merit.’” Cole v. Meyer & Assoc., 206 Cal.App.4th 5 1095, 1105 (2012) (emp. added, citations om.).11 6 IV. THE MOTION SHOULD BE DENIED 7 A. A Celebrity’s Private Medical Condition Is Not An “Issue of Public 8 Interest” For the Purposes of the Anti-SLAPP Statute Though Bauer contends its conduct falls under Section 425.16(e)(3) and (4), 9 10 Bauer fails to establish with admissible and relevant evidence that the Rehab Story is 11 about a matter of “public interest” under those statutes. That a person is a celebrity does 12 not automatically make any speech about him an issue of “public interest.”12 Cognizant that Shelton’s celebrity status alone does not immunize Bauer, it 13 14 erroneously argues that the Story “independently qualifies because Shelton’s drinking 15 and the impact it had on the breakdown of his marriage are ‘topics of widespread, public 16 interest.’” Mtn. at 7:28-8:1. In Hilton, however, the Ninth Circuit compared tests for 17 determining whether something is an issue of “public interest” and emphasized that courts apply the anti-SLAPP statute only to public, not to private matters. ... We read this to mean that a private 18 19 20 21 22 23 24 25 26 27 28 10 Instead, the court “accepts as true all of the evidence favorable to the plaintiff.” Nagel v. Twin Lab., Inc., 109 Cal.App.4th 39, 46 (2003); see also Tuchscher Dev. Enters, Inc. v. S.D. Unified Port Dist., 106 Cal.App.4th 1219, 1238 (2003) (the court “must credit all admissible evidence favorable to [plaintiff] and indulge in every legitimate favorable inference that may be drawn from it”). 11 See also Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal.App.4th 515, 530 (2006) (emp. added, citation om.) (“allow the plaintiff in a SLAPP motion a certain degree of leeway in establishing a probability of prevailing on its claims due to ‘the early stage at which the motion is brought and heard’”);Wilbanks, 121 Cal.App.4th at 905 (Plaintiff need not “produce evidence that [he] can recover on every possible point” so long as he “demonstrates that the suit is viable”); Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728, 738 (2003) (plaintiff need only establish a “minimum level of legal sufficiency and triability”). 12 Rogers, 57 F.Supp.2d at 985 (celebrity watching not “inherently a public issue. That a celebrity might be a public figure for purposes of the First Amendment should not mean that all speech about that celebrity is necessarily a public issue or an issue of public interest for purposes of § 425.16(e.)”). Case No. 2:15-cv-09057-CAS-AGR 7 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 16 of 34 Page ID #:393 controversy, even between famous people, that interests the public is not enough. Under Weinberg, for the activities of celebrities to be a public issue, the activities, as well as the 2 personages involved must be public. 3 590 F.3d at 907-08 (emp. added) (discussing Weinberg v. Feisel, 110 Cal.App.4th 1122 1 4 (2003)).13 The Hilton court noted that, “personal detail[s]” of Hilton’s life, “such as a 5 divorce,” would not be a matter of public interest under Weinberg. Id. at 908. This is 6 consistent with the purported purpose of the anti-SLAPP statute.14 Though Shelton 7 admittedly jokes about drinking, what he actually does in his private life, the cause of his 8 divorce, the status of his health, and certainly whether he requires rehab, are not public 9 “activities” under the anti-SLAPP statute, regardless of whether the public is curious. 10 The Motion should be denied on this basis alone. Shelton Can Show a Probability of Prevailing on His Libel Claim15 11 B. 12 Even if the anti-SLAPP statute applies, the Motion should be denied. 13 1. The Cover16 Gives The Impression That Shelton Was In Rehab, Which Is False, Defamatory, and Actionable 14 15 A Cover Alone Can Be A Basis of a Claim For Defamation. In Kaelin v. 16 Globe Communs., the Ninth Circuit reversed summary judgment for Globe and ordered 17 Kato Kaelin’s defamation action concerning a front-page headline to proceed to trial. 18 162 F.3d 1036, 1042-43 (9th Cir. 1998). The cover headline said “COPS THINK 19 KATO DID IT! ... he fears they want him for perjury, say pals.” Id. at 1037. For the 20 purposes of the appeal, the Court assumed that the text of the story inside the magazine 21 22 23 24 25 26 27 28 13 Based upon review of earlier cases, Hilton articulated a split in authority citing Weinberg’s five “guiding principles,” which include that “‘public interest’ does not equate with mere curiosity.” Hilton, 590 F.3d at 907-08 and n.10. 14 Perhaps the statute might apply to a celebrity who has become involved with a cause, endorsed a political candidate or otherwise tied himself to an “ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” Du Charme v. Int’l Brotherhood of Elec. Workers, 110 Cal.App.4th 107, 119 (2003). 15 “[D]efamation ‘involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.’” Price, 620 F.3d at 998 (citations om.); Cal. Civ. Code § 45; see also Restatement (Second) of Torts § 559 (1977). 16 Though Shelton has asserted claims based on the entirety of the Rehab Story, he has a claim for defamation based on the In Touch cover alone. Case No. 2:15-cv-09057-CAS-AGR 8 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 17 of 34 Page ID #:394 1 was not defamatory. Id. at 1039. The Court held that “a reasonable person, at that time, 2 might well have concluded that the ‘it’ in the first sentence of the cover and internal 3 headlines referred to the murders. Such a reading … is not negated by or inconsistent 4 with the second sentence as a matter of logic, grammar or otherwise.” Id. at 1040. 5 Globe argued that “because the text of the accompanying story is not defamatory, the 6 headline by itself cannot be the basis of a libel action under California law.” Id. 7 However, the Court disagreed, stating that “it is certainly clear under California law that 8 headlines are not irrelevant, extraneous, or liability-free zones. They are essential 9 elements of a publication.” Id. (emp. added).17 In Kaelin, whether the story inside the magazine cleared up any confusion caused 10 11 by the headline was “a question of fact for the jury” because the story was located 17 pages away from the cover. In this respect, the National Examiner’s front page headline is unlike a conventional headline that immediately precedes a newspaper story, and nowhere does the cover headline reference the internal page where readers could locate the article. A reasonable juror could conclude that the Kaelin article was too far removed from the cover headline to have the salutary effect that Globe claims. Kaelin, 162 F.3d at 1041 (emp. added).18 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The In Touch Cover’s Message. The Motion relegates discussion of the most 17 See also Solano v. Playgirl, Inc., 292 F.3d 1078, 1083 (9th Cir. 2002) (reversing summary judgment for publication on claim by actor that Playgirl’s cover photograph and headline “created the false impression that readers could expect to find more photographs of him inside the magazine, nude – ‘exposed’ – in Playgirl’s typically sexually explicit and revealing mode of depicting it’s ‘sexy’ male subjects” when he did not, in fact, pose nude for the magazine); Eastwood v. Nat’l Enquirer, 123 F.3d 1249, 1256 (9th Cir. 1997) (affirming award for Eastwood where cover of magazine falsely implied he gave tabloid an exclusive interview); Sprouse v. Clay Communs., 211 S.E.2d 674, 686 (W. Va. 1975) (“headlines may be considered separately with regard to whether a18known falsehood was published.”). See also Solano, 292 F.3d at 1083 (“[t]hat Solano’s profile inside the magazine was of a relatively innocent and nonsexual nature is of little significance”); Schermerhorn v. Rosenberg, 426 N.Y.S.2d 274, 283 (N.Y. App. Div. 1980) (“That the defamatory meaning of the headline may be dispelled by a reading of the entire article is of no avail to the publisher.”). Indeed, many readers do not even go beyond the cover. Eastwood, 123 F. 3d at 1256 (emp. added) (“editors falsely suggested to the ordinary reader of their publication - as well as those who merely glance at the headlines while waiting at the supermarket checkout counter” that Eastwood gave an interview); Schermerhorn, 426 N.Y.S.2d at 283 (“A headline is often all that is read by the casual reader and therefore separately carries a potential for injury as great as any other false publication.”). Case No. 2:15-cv-09057-CAS-AGR 9 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 18 of 34 Page ID #:395 1 damaging and egregious part of the Rehab Story to a cursory footnote. Mtn. at 10n.7. 2 The cover unmistakably states that Shelton is either already in rehab or is on his way. 3 This reading of “REHAB for Blake” is supported by the expert opinion of John A. 4 Hawkins, a Distinguished Professor of Linguistics at University of California, Davis. 5 Hawkins Decl. ¶ 3.19 Expert testimony from linguists provides the factfinder with 6 information sufficiently beyond common experience and is admissible in defamation 7 actions.20 Here, Hawkins opines that “‘REHAB’ for Blake’ and its accompanying words 8 and phrases will lead readers to understand that Blake Shelton is going into, or is already 9 in, rehabilitation, on account of his drinking.” Hawkins Decl. ¶¶ 3, 6-17. This message is 10 reinforced by the cover’s sub-headlines, including “his friends begged him to stop joking 11 about drinking & get help” and “what he did while wasted that destroyed his marriage.” 12 Those past tense statements suggest that such events resulted in rehab. Collectively, the 13 sub-headlines are “claims of excessive drinking [that] make it all the more plausible that 14 Blake Shelton is either going into, or already in, rehab” (Id. ¶ 15), which is further 15 reinforced by the unflattering cover photograph of a disheveled and sweaty Shelton. The only “impermissibly strained reading” (Mtn. at 10n.7) here is Bauer’s. Bauer 16 17 urges that “REHAB for Blake” is “prescriptive.”21 That is absurd. Even if a possible 18 19 20 21 22 23 24 25 26 27 28 19 Hawkins, whose qualifications are set forth on Exhibit 1 to his declaration, regularly provides expert testimony in the field of linguistics. Most recently, the Northern District of California considered Prof. Hawkins’s rebuttal opinion to that of another linguistics expert in connection with an anti-SLAPP motion. Wynn v. Chanos, CV14-4329-WHO, Dkt. #37 (Nov. 19, 2014). The Northern District concurred with Prof. Hawkin's assessment. Wynn v. Chanos, 75 F.Supp.3d 1228, 1236 (N.D. Cal. 2014). 20 See Montandon v. Triangle Publ’ns, Inc., 45 Cal.App.3d 938, 944 (1975) (court admitted expert testimony by English professor regarding defamatory meaning of article); Weller v. Am. Broad. Co., Inc., 232 Cal.App.3d 991, 1008 (1991) (court admitted expert testimony by linguist regarding defamatory meaning of broadcast). The Weller court held that the “average juror . . . is not as well equipped as is a linguist to explain” the factors that bear upon defamatory meaning and “linguistics provides a method to articulate how and why” the average person would have understood the alleged defamatory material, its admission is proper. Id.; see also MacLeod. v Tribune Publ’g. Co., 52 Cal.2d 536, 547 (1959) (defamatory meaning decided by “natural and probable effect upon the mind of the average reader” of the alleged defamatory material, considered as a whole, “according to its natural and popular construction.”). 21 If Bauer really intended the cover as a recommendation, there are myriad ways that it could have done so. A question mark might have been a start – “REHAB For Blake?” Case No. 2:15-cv-09057-CAS-AGR 10 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 19 of 34 Page ID #:396 1 reading, it is certainly “not the only reading that is reasonably possible as a matter of law. 2 So long as the publication is reasonably susceptible of a defamatory meaning, a factual 3 question for the jury exists” and it would be improper to grant Bauer’s Motion. Kaelin, 4 162 F.3d at 1040. Indeed, according to Hawkins, the cover certainly cannot mean 5 “REHAB for Blake: He isn’t going,” which “would leave the reader puzzled.” Hawkins 6 Decl. ¶ 16, 18-19. Bauer also suggests that “the Article is clear that Shelton has not gone 7 to rehab.” Mtn. at 10:18-19; Perel Decl.¶¶ 6-7. However, whether the rest of the story 8 has “the salutary effect” Bauer claims is a question for a jury. Kaelin, 162 F.3d at 1041. 9 The Cover is False and Defamatory. As set forth above at pages 4:2-6:4, the 10 Rehab Story’s cover statements are false – Shelton was not in rehab, was not going to 11 rehab, and does not need rehab. Shelton Decl. ¶ 8-11, Blackstock Decl. ¶ 3,6; Vause 12 Decl. ¶ 11-13; Canady Decl. ¶ 10; Strickland Decl. ¶ 5. The cover is also defamatory. 13 A statement which tends to injure a person in his occupation is defamation per se. 14 Cal. Civ. Code § 45(a).22 Bauer asserts that “REHAB for Blake” is not “inherently 15 defamatory” “[i]n the minds of right thinking persons[.]” Mtn. at 11:1-18. Contrary to 16 Bauer’s reference to “right thinking persons,” “[i]t is enough that the communication 17 would tend to prejudice him in the eyes of a substantial and respectable minority of 18 them[.]” RST. (Second) of Torts § 559 (1977). As stated by the Supreme Court: . . . . an unprivileged falsehood need not entail universal hatred to constitute a cause of action. No falsehood is thought about or even known by all the world. No conduct is hated by all. That it will be known by a large number and will lead an appreciable fraction of that number to regard the plaintiff with 19 20 21 22 23 24 25 26 27 28 connotes a very different message than “REHAB For Blake.” Even that, however, would not “fix” the overarching problem that the Rehab Story paints a false and defamatory picture of a man at “rock bottom” who cannot function. 22 See Batzel v. Smith, 2001 U.S.Dist.LEXIS 11921 at *5 (C.D. Cal. 2001) (overturned and remanded on other grounds in 333 F.3d 1018 (9th Cir. 2003)) (statement that person bragged about Nazi ancestry and possessed art stolen by Nazis was defamatory and “had a particular tendency to injure Plaintiff in her occupation because of her client base and art and entertainment industry practice”); see also Trindade v. Reach Media Grp., LLC, No. CV12-4759-PSG, 2013 WL 3977034 at *13 (N.D. Cal. 2013) (statements that company attempted to reverse payment were libel per se); Burrill v. Nair, 217 Cal.App.4th 357, 383 (2013) (false statements “imputing dishonesty or questionable professional conduct are defamatory per se”). Case No. 2:15-cv-09057-CAS-AGR 11 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 20 of 34 Page ID #:397 contempt is enough to do her practical harm. 1 2 Peck v. Tribune Co., 214 U.S. 185, 190 (1909). Accepting as true that changing social 3 mores have led to an increased number of people with empathy for people suffering from 4 alcoholism, Bauer is not immunized from liability for defamation where a respectable 5 minority still views the Rehab Story with contempt.23 Both Shelton’s reading of the cover (that he is in rehab) and Bauer’s (a 6 7 prescription for rehab) are defamation per se. The statements injure Shelton in his 8 occupation as a television personality, musician, and spokesperson and harm his 9 reputation for reliability and professionalism. A person at the point of rehab would be 10 unable to do the various jobs Shelton was doing, or had plans to do, when the Rehab 11 Story was published. Shelton Decl. ¶ 2,5,16-17; Vause Decl. ¶ 9; Blackstock Decl. ¶ 3. Further, though perhaps some people might think seeking treatment is a positive 12 13 thing,24 most – and certainly a “respectable minority” – would not. This is especially so 14 when the predicate to rehabilitation (alcoholism) does not exist and it is defamatory to 15 call a person an alcoholic. See, e.g., Pacquiao v. Mayweather, 803 F.Supp.2d 1208, 1212 16 (D. Nev. 2011) (citing Restatement (Second) Torts, § 556) (“the statement I think he 17 must be an alcoholic is actionable” because it presupposes defamatory facts). Instead, 18 they would think that going to rehab reflects an inability to manage one’s health and 19 affairs or properly perform his job/profession. 20 21 22 23 24 25 26 27 28 23 Nguyen-Lam v. Cao, 171 Cal.App.4th 858, 862 (2009) (rejecting argument that, due to changing social mores, calling someone a communist is no longer defamation per se; noting that the recipients were in a heavily Vietnamese-American district); Ward v. Klein, 809 N.Y.S.2d 828, 833 (Sup. Ct. 2005) (rejecting argument that, due to changing social mores, statements regarding promiscuity are no longer defamation per se). 24 Bauer’s suggestion that the Rehab Story is a congratulatory piece about how “commendable [it is] for Shelton to seek rehab” is totally disingenuous. Mtn. at 12:1. Bauer makes a bizarre, and false, analogy to convicted criminals who turn law enforcement informants. Among other problems with the analogy is the fact that a person can be an “informer” without having been a criminal. Here, by contrast, it is hotly disputed that Shelton has a substance abuse problem and it is unlikely that a person would seek treatment without one. The more apt analogy would be a story that lauds a person who stops beating his wife. The story is only positive if, in fact, its subject was actually beating his wife in the first place. Case No. 2:15-cv-09057-CAS-AGR 12 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 21 of 34 Page ID #:398 1 2. The Rehab Story’s Other Statements Are False and Defamatory Though Bauer disputes that it intended to report that Shelton was actually in 2 3 rehab, it admits that it intended to publish a story that he needs rehab. That Shelton is in 4 such a state that he requires rehab is a statement of fact “based” on numerous false 5 statements of fact throughout the Rehab Story (Stein Decl. ¶ 13) that are themselves 6 defamatory because they impugn Shelton’s ability to function professionally.25 Contrary 7 to Bauer’s characterization (Mtn. at 14:1), the statements about excessive drinking are 8 not “minor factual errors,” but are instead false statements of fact that result in a “gist of 9 the work” that is also false and defamatory. Alioto v. Cowles Communs., Inc., 623 F.2d 10 616, 620 (9th Cir. 1980) (gist or sting of the work was false and defamatory where 11 “allegations pervade the article” resulting in a story linking a mayor to organized crime). The Mexico related statements are not only false but defamatory. While mores 12 13 change, the Rehab Story goes far beyond what is considered acceptable behavior, 14 painting a picture of a reckless Shelton partying with strippers and having a series of 15 booze-driven one-night stands with strangers (and sometimes multiple strangers at one 16 time). Particularly among Shelton’s conservative fan base, there is certainly a 17 “respectable minority” that, as with pure allegations of alcoholism, would find such 18 conduct morally repugnant.26 19 20 21 22 23 24 25 26 27 28 25 Bauer’s argument that Shelton has not challenged some of these statements, or entirety of the Rehab Story is not well taken. Nor is the leap of logic made by both Bauer in the Motion and Perel in his declaration that such allegedly “unchallenged statements” must, ipso facto, be true. Mtn. at 23:35-24:2; Perel Decl. ¶ 16-17; Schwartz Decl. ¶ 11. Bauer had notice of “the communications complained of.” Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986); Fed. R. Civ. P. 8(e)(1); see also Fed. R. Civ. P. 8(f) (pleadings shall be construed to do “substantial justice.”). Shelton attached the Rehab Story to the Complaint as an exhibit and incorporated it – in its entirety – by reference; he specifically identified the cover, its interior headlines, and various other statements therein as false and defamatory; and his causes of action identify the “Rehab Story as a whole” and each of the “Statements” that he specifically excerpted in Paragraph 26. Stein Decl.,¶13; Compl., ¶¶ 34-40, 46-53; see also Swartz v. KPMG LLC, 476 F.3d 756, 763 (9th Cir. 2007) (consideration of exhibit to complaint); compare Kechara House Buddhist Assn. Malay v. Doe, 2015 U.S.Dist.LEXIS 126124 at *15-16 (N.D. Cal. 2015) (plaintiff did not attach defamatory material to complaint). To the extent that the Court is inclined to find otherwise, Shelton requests leave to amend the Complaint. Fed. R. Civ. P. 15(a)(2). 26 This is in stark contrast to the cases cited by Bauer (Mtn., fn.11), two of which Case No. 2:15-cv-09057-CAS-AGR 13 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 22 of 34 Page ID #:399 1 Bauer alleges that that the statements that (1) Shelton “hit rock bottom,” (2) his 2 “drinking and womanizing are what helped torpedo his four year marriage to Miranda”27 3 and (3) his friends think he should go to rehab are all statements of opinion. Mtn. at 4 15:7-10. None of these statements constitute opinion. The relevant inquiry is “whether a 5 reasonable factfinder could conclude that the statement ‘implies an assertion of objective 6 fact.’” Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990) (citations om.); 7 Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995) (setting forth test).28 As 8 articulated by the U.S. Supreme Court: 9 10 11 12 13 14 15 If a speaker says, ‘In my opinion John Jones is a liar,’ he implies knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, ‘In my opinion Jones is a liar,’ can cause as much damage to reputation as the statement, ‘Jones is a liar.’ Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990) (emp. added). Bauer’s futile attempt to couch the Rehab Story as opinion by likening its 16 magazine to publications known to contain opinionated writing (Mtn. at 15:27-16:2) is 17 belied by Bauer’s own website and its two declarations.29 Consistent with In Touch’s 18 “Mission Statement,” the “general tenor” of the Rehab Story is a news report setting 19 forth a series of alleged facts (Perel himself characterizes the Rehab Story as an attempt 20 to address a serious public health issues). 21 22 23 concerned allegations of an extended, sober relationship with one familiar partner, while the other concerned alleged conduct by a person while on duty under cover for the CIA. 27 The Motion conspicuously ignores the related cover sub-headline “what [Shelton] did 24 while wasted that destroyed his marriage.” 28 The court looks at “(1) whether the general tenor of the entire work negates the 25 impression that the defendant was asserting an objective fact, (2) whether the defendant 26 used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.” 29 See Stein Decl. ¶ 15, Exs. 12-13 (description of Bauer’s “Entertainment Group” and 27 the In Touch “Mission Statement”). Both Perel and Schwartz tout their “experience in 28 celebrity journalism” and news reporting. Perel Decl. ¶ 3, Schwartz Decl. ¶ 5. Case No. 2:15-cv-09057-CAS-AGR 14 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 23 of 34 Page ID #:400 Bauer is reporting – as a fact – that Shelton’s friends and colleagues have “begged 1 2 him to ... get help” and that they possess certain opinions about Shelton’s health. If 3 opinions at all, they would be the opinions of Shelton’s friends, not Bauer, and they are 4 capable of being proven true or false -- either Shelton’s friends and colleagues fear he 5 will end up dead or not; either they have urged him to get help or not. These statements 6 are false. Opp. at Canady Decl. ¶¶ 9-10, Blackstock Decl. ¶ 6, Strickland Decl. ¶ 5, 7 Morrissey Decl. ¶¶ 3-4, and Vause Decl. ¶¶ 11-13. It is also a statement of fact that a person has “hit rock bottom.” In this context, 8 9 the phrase is not figurative or hyperbolic. Consistent with the dictionary definition of 10 “rock bottom,”30 Bauer is describing the actual condition of a person whose friends think 11 will end up dead if not treated. The phrase is shorthand to describe the wild, 12 irresponsible, uncontrollable, alcoholic Shelton that is falsely portrayed throughout the 13 Rehab Story and is capable of being proven true or false.31 Further, it is a statement of fact that Shelton did something that ended his 14 15 marriage. While the word “torpedo” might conceivably be hyperbolic, Bauer’s uses it in 16 parallel to the factual statement on the cover that Shelton “did” something “while wasted 17 that destroyed his marriage.” This too is something that is capable of being proven true 18 or false.32 It is false. Shelton Decl. ¶ 9. All of the foregoing statements are defamatory 19 for the same reason that the cover and statements regarding excessive drinking are 20 defamatory per se – they suggest that Shelton is unable to function and would cause 21 people to cease to do business with him, particularly in a profession where being in front 22 of millions of people on live television is part and parcel of his livelihood. 23 24 25 26 27 28 30 “Rock bottom” is defined as “the lowest possible level or point” (Miriam Webster) and “the lowest possible level or in the worse situation” (Cambridge Academic Content Dictionary). Stein Decl. ¶ 16, Ex. 4. 31 See Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1441 (9th Cir. 1995) (“drunk on the bench” is verifiable statement of fact); Wilbanks, 121 Cal.App.4th at 905 (that brokerage “provided incompetent advice” and is “unethical” could be proven false). 32 Though Bauer now says that it is impossible to know what contributed to the end of a marriage (Mtn. at 16:17-17:3), Bauer previously said it was “ridiculous” to say that Shelton “destroyed” his marriage because he is the one who filed for divorce. Stein Decl. ¶ 5, Ex. 3. Case No. 2:15-cv-09057-CAS-AGR 15 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 24 of 34 Page ID #:401 1 3. Shelton is Not “Libel Proof” Bauer erroneously contends that Shelton is “libel-proof” against statements that 2 3 “he drinks excessively.” Mtn. at 14:6-15:5. He is not. Moreover, Bauer said a lot more 4 than “Shelton drinks a lot” -- Bauer reported that Shelton drinks to the point that he is 5 either in or requires rehab. The libel-proof doctrine is disfavored and no California state court has ever 6 7 applied it.33 In the wake of the U.S. Supreme Court’s rejection of the “incremental harm 8 doctrine” in Masson v. New Yorker Mag., 501 U.S. 496 (1991), some courts have even 9 questioned whether the libel proof plaintiff doctrine remains valid. Stern v. Cosby, 645 10 F.Supp.2d 258, 271 (S.D.N.Y. 2009). In Stern, plaintiff Howard K. Stern was not “libel 11 proof,” even though “he was the subject of critical discussion on tabloid television and in 12 celebrity gossip magazines” and had appeared on a reality show. Id. at 270-71. Though 13 celebrity journalists and talk show hosts had previously discussed some of the 14 allegations, “the fact that Stern might have been falsely accused before does not mean 15 that he could not be further injured if he was falsely accused again.” Id. (emp. added). 16 This was especially so because “Stern denies these accusations” and viewers 17 undoubtedly watched “the reality show” with some skepticism.” Id. As in Stern, Shelton denies he is in or needs rehab, and denies that he is an 18 19 alcoholic or is frequently intoxicated. Shelton’s hyperbolic Tweets and other statements 20 do not make him libel-proof because his followers understand the forum in which they 21 are made and that they are part of a theatrical persona, not reality. Any alleged failure to 22 deny previous allegations of excessive drinking does not make him libel-proof. Id. at 23 270-71; Charles Atlas, Ltd. v. Time-Life Books, Inc., 570 F.Supp. 150, 154 (S.D.N.Y. 24 1983) (plaintiff's failure to address similar claims in the past did not make him libel-proof 25 to the same claims by defendant). 26 33 See Guccione v. Hustler Mag., 800 F.2d 298, 303 (2d Cir. 1986) (emp. added) (“The libel-proof plaintiff doctrine is to be applied with caution.”); Stern, 645 F.Supp.2d at 270 27 (“doctrine is to be sparingly applied, as it is unlikely that many plaintiffs will have such 28 tarnished reputations that their reputations can sustain further damage”). Case No. 2:15-cv-09057-CAS-AGR 16 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 25 of 34 Page ID #:402 Most significantly, the Rehab Story “is different in kind” – and indeed much more 1 2 egregious and extreme – than Shelton’s own statements or prior allegations made about 3 him. Stern, 645 F.Supp.2d at 271. Shelton is not libel proof from allegations of 4 alcoholism or reports that he needs rehab simply because he is known to enjoy alcoholic 5 beverages. See Liberty Lobby v. Anderson, 746 F.2d 1563, 1568 (D.C. Cir.1984), rev'd 6 on other grounds, 477 U.S. 242 (1986) (“[I]t is shameful that Benedict Arnold was a 7 traitor; but he was not a shoplifter to boot.”). Admission to regularly imbibing a legal 8 substance does not allow any party to state that he needs rehab and certainly does not 9 make Shelton libel proof from claims of a need for rehab or excessive drinking to the 10 point of harming his professional and personal life.34 4. 11 Shelton Can Establish Actual Malice Shelton has established a reasonable probability that he will be able to produce 12 13 clear and convincing evidence that the Rehab Story was published with actual malice, 14 which is all he needs to do to defeat the Motion. Young v. CBS Broad., Inc., 212 15 Cal.App.4th 551, 563 (2012) (emp. added) (standard is not “clear and convincing 16 evidence,” but a “reasonable probability that [plaintiff] can produce clear and 17 convincing evidence showing that the statements were made with actual malice”); 18 Nguyen, 171 Cal.App.4th at 862.35 Actual malice requires a showing that a defendant 19 20 21 22 23 24 25 26 27 28 34 Bauer’s reliance on Wynberg v. Nat’l Enquirer, 564 F.Supp. 924 (C.D. Cal. 1982) is misplaced. In that case, as in the few cases employing the libel proof plaintiff doctrine, the plaintiff had been convicted of criminal conduct on five separate occasions, and there was no dispute that his “reputation for his treatment of women and his general reputation for integrity, truth, honesty, and fair dealing in personal and business matters is bad.” Id. at 928. To the contrary, Shelton’s reputation as a responsible drinker and consummate professional, as well as his reputation is general among his friends, colleagues and employer (Warner Music) is overwhelmingly positive. Strickland Decl. ¶ 4; Blackstock Decl. ¶5; Canady Decl. ¶ 9. That Shelton is, in fact, not libel proof is evidenced by the fact that he almost lost a liquor endorsement as a result of the Rehab Story. There is no doubt that Shelton’s “reputation can sustain further damage” and he can state a claim for libel with respect to the Rehab Story. 35 Contrary to the Motion, Shelton has adequately pled actual malice. See Compl. ¶¶ 1923, 24, 28, 30-32, 38-39, 41, 51-52, 54. If, however, the Court disagrees, Shelton respectfully requests leave to amend. Fed. R. Civ. P. 15(a)(2); Nguyen, 171 Cal.App.4th at 862 (authorizing leave to amend where evidence submitted by the parties in connection with the anti-SLAPP motion “demonstrated the requisite probability a jury Case No. 2:15-cv-09057-CAS-AGR 17 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 26 of 34 Page ID #:403 1 made the statements knowing they were false or in reckless disregard of their truth or 2 falsity. Reader’s Digest Assn. v. Super. Ct., 37 Cal.3d 244, 252-53, 256 (1984). It can 3 be established by circumstantial evidence – a variety of factors “may be adduced for the 4 purpose of establishing, by cumulation and by appropriate inferences, the fact of a 5 defendant’s recklessness or of his knowledge of falsity.” Young, 212 Cal.App.4th at 6 563.36 Though a publisher declares it “believed the statements to be true, such testimony 7 is not determinative.” Antonovich v. Super. Ct, 234 Cal.App.3d 1041, 1047 (1991). 8 Bauer Failed to Give Shelton Adequate Notice or a Chance to Respond. The 9 Complaint’s description of the agreement between Perel and Stein are facts pled by 10 Shelton in support of actual malice. For the purposes of this Motion, Stein’s account of 11 his conversations with Perel must be accepted as true. Nagel, 109 Cal.App.4th at 46. 12 Shelton’s Complaint also alleged that he did not have notice of what Bauer 13 intended to publish. Compl. ¶ 30. Bauer does not, in fact, present “indisputable 14 evidence” (Mtn. at 21:7) to the contrary. Neither Stein nor Shelton were contacted prior 15 to publication. Stein Decl. ¶ 10, Shelton Decl. ¶ 6. Bauer’s email to Vause did not 16 actually notify Vause of what Bauer intended to publish. Instead, the email intentionally 17 obfuscated the actual contents of the proposed story37 (and its prominence in the 18 magazine), and was sent with impossible time limitations.38 The Rehab Story was hardly 19 20 would find” defendant acted with actual malice (at 869) and holding that leave to amend was not inconsistent with the anti-SLAPP statute because, once a “plaintiff demonstrates 21 a36 probability of prevailing on the merits, his or her complaint is not a SLAPP” (at 871)). Such factors can include, for example “A failure to investigate [citation], anger and hostility toward the plaintiff [citation], reliance upon sources known to be unreliable 22 [citations], or known to be biased against the plaintiff [citations]” (Id. at 563) as well as 23 “whether ‘the story is fabricated,’ ‘the product of his [or her] imagination,’ ‘or is based wholly on an unverified anonymous telephone call.’” Antonovich, 234 Cal.App.3d at Malice may also be established by a “purposeful avoidance of the truth.” Id. 24 1047. 37 The request about a “story that some of [Shelton’s] friends think he parties too hard, 25 and friends are worried if he goes too far he’ll need to go to rehab” does not even match the actual Rehab Story, which gave numerous people the impression that Shelton was in 26 rehab and, if Bauer’s reading is to be believed, others the view that he has already gone “too far” and needs it. 38 Indeed, it seems that publications like Bauer send requests for comment as a pre27 litigation strategy. The request is made so that it can later be said that it was sent, but it is 28 sent in such a manner as to minimize the likelihood of a response so that the lack of one Case No. 2:15-cv-09057-CAS-AGR 18 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 27 of 34 Page ID #:404 1 “hot news” and there was no reason that a comment request was sent with less than two 2 hours prior to publication. Further, it is patently unreasonable to take Shelton’s failure to 3 respond as an admission that either the proposed story or the story actually published (the 4 Rehab Story) was true. Mtn. at 4:26-27.39 5 Bauer’s headline evidences a reckless disregard for the truth.40 In Kaelin, the 6 Ninth Circuit held that “Globe’s editors acted with actual malice in their decision to run a 7 headline from which a reasonable juror could conclude that Kaelin was a murder 8 suspect.” Id., 162 F.3d at 1042. The Court looked at the “totality” of the editors’ choices 9 and took into account the fact that the Examiner ran the headline “‘COPS THINK 10 KATO DID IT!’ knowing that it had no reason to believe Kaelin was a murder suspect.” 11 Id. at 1042.41 12 be used in a defensive fashion down the road. 13 can 39 That Bauer would infer truth from such evidence epitomizes the leaps of logic that are 14 pervasive in its own reporting and is further indicia of its actual malice. The same goes for the discrepancy between Perel’s declaration (“the absence of a response offers no 15 indication whatsoever that a story is not accurate” (Perel Decl. at ¶ 11)) and the Motion (which construes a failure to respond “as a tacit admission that the story was true.” Mtn. 4:26-27). 16 at 40 In addition to its text, the cover’s layout supports a finding of actual malice. See Ball 17 v. E.W. Scripps Co., 801 S.W.2d 684, 690 (Ky. 1990) (“way in which the articles were laid out” was factor in finding actual malice). 41 See also Solano, 292 F.3d at 1086 (“a jury could conclude Playgirl’s editors knowingly 18 or recklessly published the misleading cover. Such evidence is sufficient to satisfy the 19 actual malice standard.”); Sprouse, 211 S.E.2d at 680-81 (“[A]n unreasonable deviation between headlines and the remainder of the presentation” can be evidence of actual 20 malice). The Kaelin court also took into consideration various testimony by Globe personnel regarding the drafting of the headline and that the Globe “had a pecuniary 21 motive for running a headline that, in [its editor’s] words, was not ‘very accurate to the story.’” 162 F.3d at 1042; see also Solano, 292 F.3d at 1085-86 (referencing “discussion 22 in the cover meetings that the cover layout implied Solano appeared nude in a centerfold inside the magazine” and editors’ awareness of staffers concerns). Though Shelton has 23 presented more than sufficient evidence to establish “minimal merit” to his claim, to the extent that the Court is inclined to grant the Motion, Shelton respectfully requests 24 discovery with regard to the preparation of the Rehab Story, including but not limited to the origins of the idea for the story, drafts of the text and language used (particularly on 25 the cover), testimony regarding any editorial meetings or discussions among Bauer employees regarding the cover layout, the vetting of alleged “sources,” and “evidence” 26 supplied by such sources that Bauer references but apparently refuses to supply. All of this evidence is exclusively within Bauer’s control and discovery would be proper under 27 Fed. R. Civ. P. 56(d), which permits discovery by the non-moving party where facts are unavailable to it. See Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 845-847 (9th Cir. 28 2001) (holding that the “discovery-limiting aspects of the anti-SLAPP statute conflict Case No. 2:15-cv-09057-CAS-AGR 19 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 28 of 34 Page ID #:405 1 Bauer claims it did not intend to report that Shelton was in rehab. Perel Decl. ¶13. 2 In fact, from the exhibits attached to Bauer’s motion, it appears that Bauer keeps close 3 tabs on Shelton and would have known or been readily able to discern that he was not in 4 rehab. However, a jury might find that Bauer acted with actual malice in running a 5 headline from which a reasonable juror could conclude that Shelton was in rehab. As 6 explained by Professor Hawkins, “X for Y” statements are “speech acts” governed by 7 certain “appropriateness conditions.” Hawkins Decl. ¶ 9-11. One such condition that 8 applies to assertions of the type at issue here is a “presumption of truth.” Id. 9 Accordingly, “REHAB for Blake” actually means “I hereby declare as information 10 known by me to be true that Blake is going into, or is already in, rehab.” Id. at ¶ 9-10, 11 15. Bauer’s use of the circled phrase “THE REAL STORY” only “reinforces the reality 12 and actuality of the writer’s report.” Id. at ¶ 14. If Bauer truly did not think Shelton was 13 in or on his way to rehab, it acted with at least a reckless disregard for the truth when it 14 crafted a cover saying the opposite. 15 Bauer’s “sources” are not reliable and contradict its assertion that it believed 16 the Rehab Story to be true. The “sources” and Bauer’s methodology set forth in 17 declarations establish, by cumulation, Bauer’s recklessness and/or knowledge of falsity. 18 First, Bauer purports to rely on “many press reports about Shelton’s drinking 19 issues.” Mtn. at 22:13, Perel Decl. ¶¶17, 18-19, 23-24. What Bauer does not tell the 20 Court, however, is that many of such reports were published by Bauer itself or alleged 21 third parties (e.g. Radar Online) that simply quote from Bauer’s own articles. See, e.g., 22 Perel Decl. ¶ 24, Ex. K (quoting Life & Style). Bauer apparently contends that, as long 23 as Bauer was not the “first to report” something, and such prior reports were 24 “unchallenged,” it did not act with malice.42 Bauer stretches both the law and the facts of 25 26 with Federal Rule of Civil Procedure Section 56” and directing the district court to permit the plaintiff to conduct limited discovery in support of its opposition to an antimotion). 27 SLAPP 42 If anything, Bauer’s argument is more of an estoppel theory that goes to damages, not 28 actual malice or liability. See Charles Atlas, 570 F.Supp. at 154 (rejecting defendant’s Case No. 2:15-cv-09057-CAS-AGR 20 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 29 of 34 Page ID #:406 1 this case too far.43 There are no “prior reports” that gave the impression that Shelton was 2 actually in or on his way to rehab. Further, though it is impossible for Shelton to monitor 3 and respond to each and every false thing that is said about him, he did respond, in his 4 own way, to the two “prior reports” Bauer seems to rely upon most.44 That Bauer knows 5 that to be the case is clear from Perel’s own declaration and the exhibits attached 6 thereto.45 The notion that there was uncontroverted evidence from prior publications that 7 Shelton was an alcoholic in need of rehab is simply false. 8 Second, Bauer purports to rely on Shelton’s Twitter feed and public statements as 9 corroborating evidence of the “gist of the Article: that he drank to excess.” However, 10 Shelton has never said the types of things Bauer attributes to him. He has never said he 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 argument that “[g]iven the existence of these prior, unchallenged statements, it is too late for plaintiff to complain now”). 43 In Jackson v. Paramount Pictures, 68 Cal.App.4th 10, 34 (1998), the defendant primarily relied on “the fact that the district attorney's office was searching for [the subject matter in defendant's statements]. … Moreover, … [plaintiff] had been the subject of a lengthy criminal investigation by the district attorney's office which was widely reported in the press, and had settled a lawsuit in which allegations [related to defendant's statements] were made.” This distinction applies to other cases that may have taken prior reports into consideration. See, e.g., McCoy v. Hearst Corp., 42 Cal.3d 835, 854 (1986) (reliance on court documents and conversation with plaintiff’s attorney); D.A.R.E. Am. v. Rolling Stone Mag., 101 F.Supp.2d 1270, 1282-83 (C.D. Cal. 2000) (reliance on in-depth journalistic reports and scientific studies with well-documented evidence). Here, Bauer is not relying on official proceedings, court or government documents, scientific studies or even prior “in depth journalistic reports.” Instead, Bauer admits it is relying on prior tabloid gossip, much of which it published itself and which Bauer even admits Shelton challenged. 44 When, in 2013, tabloid press falsely reported that Lambert was demanding that Shelton go to rehab, Shelton tweeted “Latest tabloid says Miranda sent me to rehab…Incorrect. She sent me to the liquor store!!!” Perel Decl., Ex. J. When, also in 2013, a tabloid falsely reported that he had had heart problems as a result of his drinking, Shelton Tweeted “Newest tabloid is that I’m having heart problems. That’s ridiculous. It’s my liver that’s focked!!!.” Id., Ex. M. 45 Both of these Tweets or articles quoting them were attached as exhibits to Bauer’s Perel Declaration and Perel even quotes them in Paragraph 25 of his declaration. It is therefore particularly troubling that Perel declares that “nor am I aware of him ever challenging reports by other media concerning his drinking” (Perel Decl. ¶ 17) and professes that, despite these statements “I had (and still have) no reason to doubt reports that Mr. Shelton habitually drinks to excess and that this drinking has had an adverse effect on his marriage, health and wellbeing” (Id. ¶ 26). Though in jest, the Tweets are clearly denials by Shelton of the two stories – that Lambert was sending Shelton to rehab or that Shelton was having heart problems as a result of his drinking. Further, these Tweets are also examples of Shelton’s hyperbole when talking about drinking. No reasonable reader would read the denial of heart problems as being an actual announcement of a liver condition. Case No. 2:15-cv-09057-CAS-AGR 21 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 30 of 34 Page ID #:407 1 is an alcoholic, abuses alcohol, drinks excessively, is in rehab or going to rehab, or that 2 alcohol is taking a toll on his health and well-being.46 Of the things Shelton has actually 3 said, it is clear that they are part of his schtick and are in jest. In the same way that a 4 statement cannot be defamatory if it is hyperbole, it is unreasonable to rely on hyperbole. Third, Bauer purports to have confirmed “each and every detail” of the Rehab 5 6 Story “with multiple sources they deemed credible, who all provided specific details that 7 corroborated the truth.” Mtn. at 23:13-15. It is perhaps this “evidence” that is the most 8 appalling (and the best evidence of Bauer’s malice), which could be why the Motion 9 barely mentions it and instead relegates hearsay from “sources” to the back of 10 declarations.47 Perel’s testimony about what alleged nameless “sources” told people who work 11 12 with him is all hearsay. Further, as set forth above, each of the false tales from such 13 sources are rebutted by the first-hand testimony of people who actually know Shelton 14 and are, in fact, actual producers on The Voice, his record company and his manager. Schwartz purports to have two “sources” for information about the Mexico trip 15 16 and one for the portions of the Rehab Story alleging that Shelton’s friends had talked 17 about an intervention and that his drinking destroyed his marriage. Schwartz Decl. ¶¶ 918 21. With respect to Mexico, Schwartz relies on an unnamed woman who Schwartz 19 admits only saw Shelton at the airport as he was leaving town. Id. ¶ 10. Schwartz’s 20 “source” claims she spoke with people who “observed Mr. Shelton first hand and spoke 21 with him while he stayed at the resort.” Id. ¶ 9. However, what a hotel guest and 22 employee told a source and then that source told Schwartz is double hearsay that 23 supports a finding of actual malice. Alioto v. Cowles Communs., Inc., 430 F.Supp. 24 1363, 1370 (N.D. Cal. 1977), aff'd. 623 F.2d 616 (9th Cir. 1980) (“hearsay nature” of 25 46 Bauer makes much of a Shelton comment that “I drink alcohol and always will until I die and I don’t care if you like it or not.” This is a completely unremarkable statement could be made by any person who responsibly enjoys a glass of wine a day. 27 that 47 Shelton has concurrently filed evidentiary objections to both the Perel and Schwartz 28 declarations and the improperly-authenticated exhibits attached thereto. 26 Case No. 2:15-cv-09057-CAS-AGR 22 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 31 of 34 Page ID #:408 1 report by source who admitted he was “simply repeated” what his source told him was 2 factor supporting a finding of actual malice); Burnett v. Nat’l Enquirer, 144 Cal.App.3d 3 991, 999 (1983) (publisher’s reliance on “totally unverified hearsay” relayed by freelance 4 writer re: Carol Burnett spilling wine on diner and giggling instead of apologizing was 5 factor in finding malice).48 The only first-hand knowledge the source purports to have – 6 that she rented Shelton’s “Passion Suite” hotel room and confirmed the balcony had a hot 7 tub – is simply false, and could have easily been determined to be so had Bauer not 8 purposefully avoided the truth. Schwartz also relies on information from an Alexsandra Wright, whom she 9 10 describes as the former finance of Harvey Walden, “a close friend of Mr. Shelton’s.” 11 Shelton has no clue who Walden is – he certainly is not Shelton’s “close friend,” nor has 12 Shelton ever met with Walden or Wright. Shelton Decl. ¶ 20. It is clear from Schwartz’s 13 phrasing that she knew Wright never met Shelton. More significantly, Schwartz never 14 spoke with Walden. Alioto, 430 F.Supp. at 1371 (“the failure to pursue what appears to 15 have been the most obvious available source of possible corroboration must, under all of 16 the circumstances of this case, be regarded as clear and convincing evidence of reckless 17 disregard for the truth”). Again, Schwartz improperly relies on layers of hearsay – what 18 Shelton allegedly told Walden, what Walden then told Wright, and what Wright then 19 told Schwartz. Also of concern is the fact that information from Wright concerning 20 Shelton’s marriage is contrary to the position Bauer took in defending the Affair Story, 21 and that Bauer paid Wright for her alleged information.49 22 23 24 25 26 27 28 48 See also Snyder v. Lamb, [Nos. B154091, B159265] 2003 WL 1194903 at *13 (Mar. 17, 2003) (court refused to find lack of malice as matter of law where report of satanic child abuse “came second hand” from source “repeating a story from his friend”); King v. Globe Newspaper Co., 400 Mass. 705, 722 (1987) (reliance on unnamed and unverifiable hearsay sources and failure to investigate would allow a jury to find the report “was as likely to have been fabrication or speculation as to have been the truth.”); Mahnke v. Northwest Publ’ns, Inc., 280 Minn. 328, 340 (1968) (article claiming police officer refused to arrest man accused of child abuse “was based only upon statements by someone who was not present at the meeting and was in no position to have the true facts in his possession” supporting jury’s finding of recklessness). 49 Wright’s name may be familiar, as she had an affair with singer Beyonce’s father Case No. 2:15-cv-09057-CAS-AGR 23 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 32 of 34 Page ID #:409 1 Fourth, and exemplary of the shoddy journalism pervasive throughout the Rehab 2 Story, Bauer quotes a purported addiction expert who is, in fact, a Certified Financial 3 Planner without any medical training whatsoever, who claims he has the ability to “spot 4 alcoholism.” Stein Decl. ¶ 17, Exs. 15-18. Shelton has also never met or spoken with 5 Thorburn. Shelton Decl. ¶ 20. 6 Finally, Bauer’s re-adoption of the Rehab Story and further covers featuring 7 Shelton further evidences Bauer’s actual malice. Both Perel and Schwartz testify that 8 they had “no doubt” regarding the accuracy of the Rehab Story and have “not learned of 9 any facts, and Mr. Shelton has not provided any,” that have caused “any doubts.” Perel 10 Decl. ¶ 2, Schwartz Decl. ¶ 2. The refusal to print a retraction can be evidence of actual 11 malice.50 Further, Bauer has seen counsel’s retraction demand and witnessed six months 12 of Shelton thriving. If Shelton was at “rock bottom” in September 2015, would not 13 something have happened to him by now? Bauer’s unwavering commitment to the 14 Rehab Story, in the face of numerous contradictory facts, reflects a purposeful avoidance 15 of the truth that pervades Bauer’s approach to its gathering and reporting on “news.” 16 Further, that Bauer has at all times had a pecuniary motive in deploying Shelton on its 17 covers is apparent from the numerous covers it has published bearing his image over the 18 last six months. Stein Decl. ¶ 19, Ex. 22; see Suzuki Motor v. Consumers Union of U.S., 19 Inc., 330 F.3d 1110, 1135-36 (9th Cir. 2003) (reversing summary judgment where court 20 failed to consider defendant’s financial motive for publishing defamatory statement). 21 22 5. Shelton Has Established Damages Because the Rehab Story was defamation per se, damages are presumed. Walker 23 v. Kiousis, 93 Cal.App.4th 1432, 1441 (2001); Cal. Civ. Code § 48(a). In addition, 24 however, the Rehab Story harmed Shelton by delaying and almost destroying his 25 (while he was still married to her mother) and had his baby. In Touch’s own reporting 26 about Ms. Wright suggests that she was financially (and improperly) motivated to supply false information for The Rehab Story. Stein Decl. ¶ 20, Ex. 23. 50 RST. (2d.) of Torts § 580A (1977), Church of Scientology v. Dell Publ’g., 362 F.Supp. 27 767, 770 (N.D. Cal. 1973), Nat'l Ass'n of Gov't Empl. v. Nat'l Fed’n of Fed. Empl., 844 28 F.2d 216, 221 (5th Cir. 1988), Ball, 801 S.W.2d at 690, Mahnke, 280 Minn. at 344. Case No. 2:15-cv-09057-CAS-AGR 24 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 33 of 34 Page ID #:410 1 pending endorsement deal with Pernod. Shelton Decl. ¶ 18-19, Blackstock Decl. ¶ 8-10. 2 At this early stage, Shelton has not yet determined what other opportunities he might 3 have lost as a result of the Rehab Story. 4 C. Shelton Can Show a Probability of Prevailing on His Claim for False 5 Light Invasion of Privacy The evidence set forth herein also establishes the viability of Shelton’s claim for 6 7 false light invasion of privacy, which is a separate cause of action from defamation.51 8 The California Uniform Single Publication Act (Cal. Civ. Code § 3425.3) does not bar 9 Shelton’s false light claim. The act precludes Shelton from bringing separate causes of 10 action for each copy of the Rehab Story, not from pleading multiple causes of action in 11 connection with the same publication.52 12 V. CONCLUSION 13 Based upon prior tabloid fodder (mainly of Bauer’s own creation), unreliable 14 second and even third-hand “sources,” an alleged “expert” without medical training, and 15 hyperbolic Tweets, In Touch fabricated a totally false and defamatory story about 16 Shelton that claimed his drinking was ruining his health, had destroyed his marriage, put 17 him at “rock bottom” after a booze-filled bender in Cancun, resulting in his friends and 18 colleagues calling for an intervention and begging him to go to rehab to avoid ending up 19 dead. Shelton has more than established that his Complaint has merit and respectfully 20 requests that the Motion be denied. 21 22 23 24 25 26 27 28 51 Shelton has to prove (1) disclosure of information about Shelton “that was presented as factual but that was actually false or created a false impression about him; (2) that the information was understood by one or more persons to whom it was disclosed as stating or implying something highly offensive that would have a tendency to injure [Shelton’s] reputation”; (3) that Bauer acted with actual malice; and (4) that Shelton was damaged. Solano, 292 F.3d at 1082. The torts of defamation and false light are distinct. See, e.g., Selleck v. Globe International, Inc., 166 Cal. App. 3d 1123, 1135 (1985); 5 Witkin Sum. Cal. Law Torts § 673 (10th ed. 2010). 52 Powell v. Voy, 1994 WL 621970 at *2 (N.D. Cal. 1994) (emp. added, citations om.) (“language is merely intended to prevent plaintiffs from bringing a separate cause of action for each copy of instance of the allegedly tortious statement.”); see also Solano, 292 F.3d 1078 (reversing summary judgment for defendant on multiple tort claims arising from one article). Case No. 2:15-cv-09057-CAS-AGR 25 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1 Case 2:15-cv-09057-CAS-AGR Document 27 Filed 03/16/16 Page 34 of 34 Page ID #:411 1 Dated: March 16, 2016 2 3 4 LINER LLP By: /s/ Stanton L. Stein Stanton L. Stein Attorneys for Plaintiff BLAKE TOLLISON SHELTON 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:15-cv-09057-CAS-AGR 26 OPPOSITION TO DEFENDANTS’ SPECIAL MOTION TO STRIKE COMPLAINT 50677.001-2813326v1