27 28 . c? . I DAVIS WRIGHT TREMAINE LLP KELLI L. SAGER (State Bar No. 120162) 5 kellisager@dwt. com ?8:16:25: ERIC M. STAHL (State Bar No. 292637) ericstahl@dwt. com JUL 2 6 2017 CYDNEY SWOFFORD FREEMAN (State Bar No. 315766) cydneyfreeman@dwt. com r? t? m- Emma? (If-fie ael' 1' 865 S. Figueroa St., Suite 2400 EL, Los Angeles California 90017 2566 Clorwua Telephone: (213) 633- 6800 Fax: (213) 633- 6899 KENDALL BRILL KELLY LLP RICHARD B. KENDALL (State Bar No. 90072) JOSHUA W. SUSSMAN (State Bar No. 294695) 10100 Santa Monica Blvd, Suite 1725 Los Angeles, California 90067-4013 Telephone: (310) 556-2700 Fax: (310) 556-2705 Attorneys for Defendants AMERICAN MEDIA, INC. (also sued inaccurately as ?National Enquirer, RADAR ONLINE, DAVID and DYLAN HOWARD [additional counsel on following page] SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES RICHARD SIMMONS, Case No. BC 660633 Assigned to the Hon. Gregory Keosian Plaintiff, NOTICE OF MOTION AND SPECIAL vs. MOTION TO STRIKE FIRST AMENDED SUPPORTING AMERICAN MEDIA, INC., a Delaware MEMORANDUM OF POINTS AND corporation; RADARONLINE, LLC., a AUTHORITIES Delaware Limited Liability Company; 425.16] NATIONAL ENQUIRER, INC., a Florida corporation; COLMAN-RAYNER, a California Limited Liability Company; Request for Judicial Notice; andg?klgtige?f GRANT HODGSON, an individual; Lodging Concurrently Filed] g; FR DAVID PECKER, an individual; DYLAN T, HOWARD, an individual and DOES 5-10, Hearing Date: August 3090;! i? E3 53.. Time: 9.00am 5.33;;353? Defendants. Dept: 61 ?t :53 a ?ain 3.. Action Filed: May 8, 2017 "33:35 *4 RES ID: 170707232816 t, Fit Eu .5. 383% .3 . - IL-J saga 3 SPECIAL MOTION TO STRIKE 4823-0554-7851v.l8 0051427-000016 30912302H33 [Defendants? Compendium Of Evidence (Vols. 1:113:32)! 3 p?A #:1303037 Stu?Pa t? 1 tn l?d?r J. 1 a? 'Iil Additional counsel for moving parties: JASSY VICK CAROLAN LLP JEAN-PAUL JASSY (State Bar No. 205513) jpjassy@jassyvick.com KEVIN L. VICK (State Bar No. 22073 8) kvick@j assyvickcom 6605 Hollywood Boulevard, Suite 100 Los Angeles, California 90028 Telephone: 310-870-7048 Facsimile: 310-870-7010 Attorneys for Defendants COLEMAN-RAYNER, LLC_(erroneously sued as Colman-Rayner) and GRANT HODGSON Of Counsel: Cameron Stracher GENERAL COUNSEL - MEDIA 4 New York Plaza, 2d Floor New York, NY 10004 (212) 743-6513 (phone) (646) 810-3089 (fax) For Defendants AMERICAN MEDIA, INC. (also sued inaccurately as ?National Enquirer, Inc?); RADAR ONLINE, DAVID and DYLAN HOWARD 2 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 SPECIAL MOTION TO STRIKE . L05 ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4823-0554-7851v.18 0051427-000016 Fax: (213) 633-6899 i is it?ifALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on August 30, 2017,1 at 9:00 am, or as soon thereafter as counsel may be heard in Department 61 of Los Angeles County Superiyo?urt, located at 111 North Hill Street, Los Angeles, California 90012, Defend?nts American Media, Inc. (also sued inaccurately as ?National Enquirer, Inc.? 2), Radar Online, LLC, David Pecker and Dylan Howard (collectively, or Defendants?), and Defendants Coleman-Rayner, LLC (erroneously sued as Colman-Rayner) and Grant Hodgson (referenced collectively with AMI Defendants as ?Defendants?), will and hereby do move this Court, pursuant to California Code of Civil Procedure 425.16, for an order striking the First Amended Complaint ?led by Plaintiff Richard Simmons (?Simmons?), and its ?ve causes of action for libel and false light invasion of privacy, in their entirety. The claims in the PAC all stem from the publication of news articles concerning celebrity ?tness guru Richard Simmons? abrupt and well-publicized retreat from public View, including reports that Simmons was transitioning from male to female. Because Simmons? claims all arise from Defendants? conduct in furtherance of their exercise of the right of free speech in connection with issues of public interest, they are subject to a special motion to strike under Califomia?s SLAPP statute, C.C.P. 425.16. attached Memorandum, Section Consequently, the burden shifts to Simmons to establish a probability that he will prevail on each of the claims. ?e_e Memorandum, Section IV.3 Simmons cannot meet his burden for the following independent reasons: 1. Simmons? First, Second, Third, and Fourth Causes of Action for libel fail because Defendants? publications do not state anything defamatory about him. Statements that someone is undergoing a gender transition particularly a person who routinely challenged gender stereotypes, Defense counsel reserved a hearing date through'the Court?s on-line reservation system; no hearing dates were available within 30 days of the ?ling and service of this Motion. 2 There is no entity by this name. The National Enquirer is the name of a magazine that AMI publishes. AMI also owns Radar Online, LLC, which publishes the radaronline.com website. 3 If the Court concludes that any of Plaintiffs claims can proceed, or that claims may proceed with respect to some, but not all, of the allegedly defamatory statements or implications alleged in the PAC, any non-actionable statements or implications should be stricken from the PAC. Q, Egg Baral v. Schnitt, 1 Cal. 5th 376, 392-93 (2016). 3 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 90017-2566 633-6800 4823-0554-785lv.l8 0051427-000016 Fax: (213) 633-6899 including making public appearances dressed as a woman are not defamatory under modern jurisprudence. 2. Simmons? First, Second, Third, and Fourth Causes of Action also fail because, at a minimum, the statements he complains about do not fall within any of the limited categories of speech that are considered to be defamatory without proof of special damages, and he has not suf?ciently alleged (and cannot meet his burden of proving) that any aetionable statement or implication in publications caused special damages. Memorandum, Section WA. 3. - Simmons? Fifth Cause of Action for false light invasion of privacy fails for the same reasons as his libel claims. It is well established that false light claims that purport to arise from allegedly false news publications are substantively equivalent to libel claims, and essentially super?uous. Moreover, such claims are subject to the same constitutional and statutory limitations as defamation claims, which Simmons cannot overcome. Memorandum, Section IV.B. For each of these reasons, this Court should grant Defendants? SLAPP Motion, and dismiss Plaintiff?s FAC and all of its causes of action with prejudice. C.C.P. Defendants also request that they be awarded their attorneys? fees and costs incurred in defending against this meritless lawsuit, pursuant to C.C.P. A This Motion is based on this Notice; on the attached Memorandum Of Points And Authorities; on the concurrently-?led Compendium Of Evidence (Vols. on the concurrently- ?led Request For Judicial Notice; on the concurrently ?led Notice Of Lodging Of Exhibits H, And on any other matters of which this Court may take judicial notice; on all pleadings, ?les, 4 When a defendant prevails on a SLAPP motion, a plaintiff should not be granted leave to amend. 9g, Simmons v. Allstate Ins. Co., 92 Cal. App. 4th 1068, 1073 (2001) (?the anti- SLAPP statute makes no provision for amending the complaint once the court ?nds the requisite connection to First Amendment speech?); Svlmar Air Conditioning v. Pueblo Contracting Svcs., 122 Cal. App. 4th 1049, 1055-56 (2004) (same). 5 Code of Civil Procedure 425.16(c) mandates that the prevailing defendant on a SLAPP motion ?shall? recover that party?s attorneys? fees and costs. If the Court grants this Motion, Defendants will ?le a separate fee motion and memorandum of costs. gee Ketchum v. Moses, 24 Cal. 4th 1122, 1131-32 (2001). 6 The Declarations of Dylan Howard with Exhibits A-G 1, Derek Matthew Brown With Exhibit J, and Eric M. Stahl With Exhibits L-Q S-U are included in the separately ?led? Compendium Of Evidence. Exhibits H, K, and are submitted with the separately ?led Notice of Lodging. 4 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 900I7-2566 (213) 633-6800 4823-0554-7851v. 18 0051427-000016 Fax: (213) 633-6899 24? and records in this action; and on such other argument as this Court may receive at the hearing on this Motion. DATED: July 26, 2017 SPECIAL MOTION TO STRIKE 4823-0554-7851v. 18 0051427-000016 DAVIS WRIGHT TREMAINE LLP KELLI L. SAGER ERIC M. STAHL CYDNEY SWOF FORD FREEMAN KENDALL BRILL KELLY LLP RICHARD B. KENDALL JOSHUA W. SUSISMAN CAMERON STRACHER (Of Counsel) Attorneys for Defendants AMERICAN MEDIA, INC. (also sued inaccurately as ?National Enquirer, Inc?); RADAR ONLINE, DAVID and DYLAN HOWARD ASSY VICK CAROLAN LLP JEAN-PAUL JASSY KEVIN L. VICK Attorneys for Defendants COLEMAN-RAYNER, LLC (erroneously sued as Colman-Rayner) and GRANT HODGSON ?By: KELLI L. (SAGER 5 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 900l7-2566 (2l3) 633-6800 18? 19' TABLE OF CONTENTS Egg 1. SUMMARY OF ARGUMENT 12 II. BACKGROUND FACTS - 13 A. Richard Simmons 13 B. Defendants and the Articles at Issue 15 C. Procedural Background 16 111. SECTION 425.16 APPLIES TO CLAIM 16 A. Plaintiff?s Claims Arise From Protected Conduct Under Section 425.16. 17 B. Defendants? Speech Was In Connection With Matters Of Public Interest. 18 IV. PLAINTIFF CANNOT DEMONSTRATE A PROBABILITY OF PREVAILING 19 A. Plaintiff?s Libel Claims Fail Because The Articles Did Not Defame Him. l9 1. Plaintiff Cannot Show That The Articles Injured His Reputation - 19 2. A Statement That A Person Is Considering or Undergoing A Gender Transition Is Not Defamatory on Its Face 2O 3. Plaintiff Has Failed To Allege Special Damages. 24 B. Plaintiff?s False Light Claim Fails For The Same Reasons His Libel Claims Fail. 25 V. CONCLUSION 2 6 6 SPECIAL MOTION TO STRIKE Los moms, cmom won-2566 (213) 633-6800 4823-0554-7135 lv.18 0051427-000016 Fax: (213)633-6399 TABLE OF AUTHORITIES Page CASES Aisenson v. ABC, . 220 Cal. App. 3d 146 (1990) 25 Albright v. Morton, 321 F. Suppg2d 130 (D. Mass. 2004) 22, 24 Baral v. Schnitt, 1 Cal. 5th 376 (2016) 3 'Beamer v. Nishiki, 670 P.2d 1264 (Hawaii 1983) 2] Bowen V. Independent Pub. Co., 96 564 (SC. 1957) 21 Bradshaw v. Swagertv, 563 P.2d 511 (Kan. App. 1977) . 21 Braun v. Chronicle Publ? Co., 52 Cal. App. 4th 1036 (1997) 16 Briggs v. Eden Council, 19 Cal. 4th 1106 (1999) 17 Carvaial v. Pride Industries, Inc., 2013 WL 1728273 (S.D. Cal, April 22, 2013) 22 Carver v. Bonds, 135 Cal. App. 4th 328 (2005) 17 Cessna v. Montgomery, . 329 861 (Ill. App. Ct. 1975) 21 ChuV v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) 21 Eisenberg v. Alameda Newsp., Inc., 74 Cal. App. 4th 1359 (1999) 26 Fellows V. National Enquirer, Inc., 42 Cal.3d 234 (1986) 25 Flowers v. Carville. 310 F.3d 1118 (9th Cir. 2002) 26 7 DAVIS WRIGHT TREMAINE LLP SPECIAL MOTION TO STRIKE LOS ANo?EngsU, cfr?irso?gi?gcii?zsee (213)633-6800 4823 -05 54-7851 V. 18 0051427-000016 Fax: (213)633-6899 chU 1135Forsher v. Bugliosi, 26 Cal.3d 792 (1980) 23 Gang v. Hughes, 111 F. Supp. 27 (SD. Cal. 1953) 19,25 Gilbert v. Sykes, 147 Cal. App. 4th 13 (2007) 26 Golub v. Enquirer/ Star Group, Inc., 89 1074 (1997) 21 Gomes v. Fried, 136 Cal. App. 3d 924 (1982) 1 25 Greenly v. Sara Lee Com, 2008 WL 1925230 (E.D. Cal. Apr. 30, 2008) 22 Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337 (2007) 18, 19 Harris v. Nashville Trust Co., 162 SW. 584 (Tenn. 1914) 21 Hayes-v. Smith, 832 P.2d 1022 (Colo. App. 1991) 24 Hecimovich v. Encinal Sch. Parent Teacher Org, 203 Cal. App. 4th 450 (2012) 8 Jackson v. Mayweather, 10 Cal. App. 5th 1240 (2017) 18, 19, 25, 26 Kanellas v. Kofrnan, 1 Cal.3d 20 (1969) 25 Ketchum v. Moses, 24 Cal. 4th 1122 (2001) 4 Kronemyer v. IMDB, Inc., 150 Cal. App. 4th 941 (2007) 17 Lawrence v. Texas, 539 US. 558 (2003) 22 Macias v. Hartwell, 55 Cal. App. 4th 669 (1997) 19 McGarry v. University of San Diego, 154 Cal. App. 4th 97 (2007) 18 SPECIAL MOTION TO STRIKE Los 90017-2566 4823-0554-785 lv. 18 0051427-000016 Fax: (213) 633-6899 Medical Mari'mana, Inc. v. 6 Cal. App. 5th 602 (2016) 25 Metabolife Int?l, Inc. v. Womick, 264 F.3d 832 (9th Cir. 2001) 23 Mitchell v. Tribune, 99 397 (Ill. App. 1951) 22 Murphy v. Millennium Radio Group LLC, 2010 WL 1372408 (D.N.J. Mar. 31, 2010), rev?d other grounds, 650 F.3d 295 (3d Cir. 2011) 22 Navellier v: Sletten, 29 Cal. 4th 82 (2002) 17 Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998) 25, 26 Nygard v. Uusi-Kerttula, 159 Cal. App. 4th 1027 (2008) 17, 18 Peabody v. Barham, 52 Cal. App. 2d 581 (1942) 25 Pridonoff v. Balokovich, 36 Cal. 2d 788 (1951) 25 Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016) 17 Seelig v. In?nity Broad. Com, 97 Cal. App. 4th 798 (2002) 18 Simmons v. Allstate Ins. Co., 92 Cal. App. 4th 1068 (2001) 4 Smith v. Maldonado, 72 Cal. App. 4th 637 (1999Supp. 2d 258 (S.D.N.Y. 2009) 22, 24 Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664 (2010) 18 Stulz v. Cousins, 242 F. 794 (6th Cir. 1917) 21 Sylmar Air Conditioning v. Pueblo Contracting Svcs., 122 Cal. App. 4th 1049 (2004) 4 9 DAVIS WEIGHJ TSREMAINE LLP 865 5. Fl UER A T, SUITE 2400 SPECIAL MOTION TO STRIKE L05 90017-2566 4823-0554-7851v. 18 0051427-000016 Fa'x: (213) 633-6899 Tamkin v. CBS Broad, Inc., 193 Cal. App. 4th 133 (2011) 17, 26 Thomason v. Times-Journal, Inc., 379 551 (Ga. App. 1989) 22, 24 Towne v. Eisner, 245 US. 418 (1918) 20 United States v. Alvarez, 567 US. 709 (2012) 20 Washburn v. Wright, 261 Cal. App. 2d 789 (1968) 20, 21, 23 Yonaty v. Mincolla, 97 141, 945 774 (NY. App. Div. 2012) 22 Yorty v. Chandler, 13 Cal. App. 3d 467 (1970) 21 STATUTES California Civil Code 51(e)(5) 23 California Code of Civil Procedure ?425.16 passim California Education Code 3 200 2 3 221.5(1) 23 California Government Code 51(b) 23 12926(r)(2)(C)(2) 23 12940 23 12955 - 23 California Penal Code 192(f) 23 Health Safety Code 1365.5(a) 23 CONSTITUTIONAL PROVISIONS United States Constitution, First Amendment 4, 20 10 DAVIS WRIGHT TREMAINE LLP SPECIAL MOTION TO STRIKE (213)633-6800 4823-0554-7851v. 18 0051427-000016 Fax: (213) 633-6899 Jim) l-w-r227 OTHER AUTHORITIES Samuel Brenner, ??Negro Blood in His Veins?: The Development and Disappearance of the Doctrine of Defamation Per Se by Racial Misidenti?cation in the American South,? 50 Santa Clara L. Rev. 333 (2010) 22 1 1 DAVIS WRIGHT TREMAINE LLP SPECIAL MOTION TO STRIKE 4823-0554-7851v.18 0051427-000016 (2l3) 633-6300 Fax: 633-6899 r225? "Mr-l I'm) 02SUMMARY OF ARGUMENT In 2014, celebrity health and ?tness guru Richard Simmons abruptly took ?a leave of absence from the media spotlight.? FAC, ?l 19. His sudden unexplained absence from public view sparked a wave of media reports, including widespread discussion about possible reasons for his disappearance. In June 2016, AMI published a series of news articles about Simmons, reporting that he had retreated from public view because he was transitioning genders, from male to female. The articles included previously unpublished photographs of Simmons appearing as a woman. Almost a year after the ?rst article appeared, Simmons ?led this lawsuit for libel and false light invasion of privacy, claiming that the stories about his transformation are false. FAC, 11 4. Notably, Simmons? FAC does not explain how the Articles? portrayal of him as transitioning gender is defamatory nor does it claim that being identi?ed as ?transgender? or transitionng gender actually harmed his reputation in any way. Nor could it: for most of his 40-year career, Simmons has been known for challenging conventional gender norms and creating ambiguity about his gender identity, including his wearing of ?amboyant, feminine attire. Contrary to the assumption on which the FAC is based, alleging ?false speech? does not suf?ce to state a tort claim. It is well-established that a plaintiff complaining about allegedly injurious speech must demonstrate that the statement is ?defamatory? ii, that it materially injures his reputation in the community. Simmons has not, and cannot, make such allegations here. Statements that someone is transgender, or undergoing a gender transition, do not impute the kind of inherently shameful or odious characteristic that can support a defamation claim in modern times. Just as with false imputations of race or homosexuality, which once were considered defamatory, being referred to as ?transgender? cannot rationally be held by a court to impute negative characteristics. This defeats Simmons? ?injurious falsehood? claims. IV.A.2, m. Furthermore, where, as here, a publication is not defamatory on its face, the plaintiff has the burden of demonstrating that the publication caused special damages, which must be speci?cally pleaded and proven. Simmons cannot meet this strict burden. Indeed, Simmons cannot show the articles harmed him at all, given his pre-existing reputation for gender ambiguity, his well- publicized testing of the boundaries of gender classi?cation, and his willingness to be depicted as a 12 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 90011-2566 633-6800 4823-0554-7851v.l8 0051427-000016 Fax: (213) 633-6899 1153 66.4 [was woman. For this additional reason, his content?based claims fail. IV.A.3, m. Simmons? FAC also includes a duplicative claim for false light invasion of privacy, but this disregards substantial California precedent holding that anJ claim based on an allegedly false publication must be evaluated under the same standards as defamation claims. Accordingly, Simmons? false light claim not only is superfluous, because it merely duplicates his other claims, but it also fails for the same reasons his libel claims fail. IV.B m. California?s SLAPP statute provides for the early dismissal of meritless actions, like this one, which arise from the exercise of free speech rights. C.C.P. 425.16. The FAC falls squarely within the scope of the statute because all of Simmons? claims arise MY from the contents of news articles. ?ag m. The ?public interest? requirement of Section 425.16 also is easily satis?ed here, given that all of the publications at issue involve news reports about a world-famous entertainment personality, controversy surrounding his sudden retreat from the limelight, and the high-pro?le issue of gender transition. is; m1. Because the SLAPP statute applies here, the burden shifts to Plaintiff to present admissible evidence demonstrating a probability of prevailing on his claims. IV. He cannot meet this burden. Accordingly, Defendants respectfully request that this Court strike Plaintiff?s FAC and each of its ?ve causes of action with prejudice, and award Defendants their attorneys? fees and costs incurred in defending against this meritless lawsuit. C.C.P. II. BACKGROUND FACTS A. Richard Simmons. 7 This image (including the text, AM was downloaded from Richard Simmons? veri?ed Facebook page. Brown Decl., 112 Ex. J. The picture appears to be three screenshots from Simmons? YouTube video, ?Hair Do,? in which Simmons appears in drag and sings lyrics like: ?Short, long, straight or curly Get something cute, get something girly.? Stahl Decl., Ex. (available at QB). 13 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 90017-2566 (2131 633-6800 4823-0554-7851v. 18 0051427-000016 Fax: (213) 633-6899 SPECIAL MOTION TO STRIKE Plaintiff Richard Simmons describes himself as a ?health and ?tness guru, motivational life- coach, comedian and actor.? FACJI 1. He also is an exceptionally well-known public ?gure, been described as a ?ubiquitous presence? for decades; he taught classes at a popular Beverly Hills bearing his name, sold more than 20 million exercise videos, and appeared (and was parodied) frequently on a variety of television programs, as well as hosting his own Emmy-winning talk show. Ex. M, pp. 121, 126; Ex. P, p. 206. He authored several best-selling books, which (along with his exercise videos) are still being sold, and he has a vast social media presence. Exs. P, Q. As Simmons? FAC attests, he also is a life-long, ardent supporter of the community ($11 indeed, he is known for his willingness to challenge gender norms. Exs. J, M, O, R. One article described Simmons as ?a kind of Mother Teresa of ?tness? who ?disrupt[ted] gendered boundaries between personal and professional, between commercial and spiritual, between camp and sincerity.?8 Simmons? gender presentation has been a large part of his public persona: he often has appeared in public dressed as a woman, usually outlandishly. Exs. J, FAC, 1] 27. His persona, including his penchant for dressing as a woman, stoked rumors that he was gay, and also led to criticism from some members of the community that he was ?closeted.? Ex. 0.9 In 2014, it was widely reported that Simmons had disappeared abruptly, without explanation. Exs. L, M. According to The New Yorker, abandoned [his gym], retreated into his Tara-like mansion, and cut off contact with many of his friends and staff. Ex. L, p. 83. His sudden and inexplicable retreat from public appearances was the subject of widespread public discussion; it was even the subject of a popular 2017 podcast, ?Missing Richard Simmons.? Ex. al? Exs. L, M, 0. Many news reports discussed Simmons? public and private identity, and there has been widespread speculation about whether his seclusion was caused by a medical crisis, a personal crisis, or even whether he was the victim of abuse.10 Simmons responded to these press 8g. M, p. 101(describing Simmons as ?a gaudy rhinestone embedded in American culture?). 9S__ee Ex. 0, pp. 159- 164, S_ee a_lso Ex. 0, p. 156 (reporting popularity of the ?Missing Richard Simmons? podcast? ?stokes old questions about Simmons? role as an icon among gay men?). 10 S__ee Ex. M, p. 121 (describing Simmons? behavior as ?highly out of character?), Ex. M, pp. 91 -96, (Washington Post article speculating that Simmons:1) just wants to be alone; 2) IS being held hostage, 3) IS losing his mental faculties; 4) IS physically enfeebled). 1 4 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6300 4823-0554-785 111.18 0051427-000016 Fax: (213) 633-6899 1 reports, through his own social media and through spokespeOple; more recently, he announced a 2 new line of ?tness merchandise that as he admits seeks to capitalize on the public discussion 3 about his ?disappearance.? Exs. N, S. 4 B. Defendants and the Articles at Issue. 5 Defendant AMI owns the National Enquirer11 and Radar Online, LLC, which operates the 6 website (?Radar?). David Pecker is the CEO of AMI, and Dylan Howard is 7 its Chief Content Of?cer. 2; Howard Decl., 11 1. Coleman-Rayner is a news and photo 8 agency, and Grant Hodgson did work for Coleman-Rayner. FAC, 11 3. 9 On June 8, 2016, the National Enquirer published an article about Richard Simmons that 10 addressed the speculation about his retreat from public life. It reported that before that retreat, 11 Simmons had been appearing in public dressed and acting as a woman; relying on a source close to 12 Simmons, the Enquirer offered a possible explanation for Simmons? behavior: during his ?self- 13 imposed exile,? Simmons had been slowly transitioning gender, from male to female. FAC, 1127 14 Ex 1; Howard Decl., 114 Ex. A. That same day, Radar posted several articles on line (?Radar 15 Articles?), reporting the same information and photographs that appeared in the Enquirer Article. 16 Ex. 2; Howard Decl., 1 5 Exs. On June 15, 2016, Radar published another 17 article on the same topic, with accompanying photos. Ex. FAC, 1162. 18 Nine?months later, on March 22, 2017, Radar Online published an article reporting that 19 Simmons was negotiating with news entities for the right to conduct a hi gh-priced, exclusive 20 interview (?March 22 Article?). Howard Decl., Ex. I. The FAC does not challenge its accuracy.?2 21 The statements at issue in this lawsuit are reports that Simmons ?struggled with his gender 22 identity for years,? and that his disappearance from public view is a result of his transitioning from 23 a man to a woman, which included breast implants, hormone treatments, and surgical consultations. 24 Enquirer Article, Ex. A. The Articles include numerous photos of Simmons dressed as a woman I :j 25 ?i 26 '1 The Enquirer is a magazine published by AMI, not a juridical entity. Howard Decl., 112. '2 Contrary to the allegations in the AC (1136), the March 22 Article which the FAC does 27 not attach does not mention Simmons? alleged gender transition. Plaintiff alleges that Article 4 28 ?included a video,? FAC 11 36, but the video was simply an inline embedded li_nk to a prior video that was posted on June 8, 2016. Howard Decl., 11 5. The FAC misleadingly cites to statements in that June 2016 video news story, which was not re-posted or quoted in the March 2017 article. 1 5 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 900I7-2566 (213) 633-6800 4823-0554-7851v. 18 0051427-000016 Fax: (213) 633-6399 ?28 named ?Fiona,? including one shirtless photo that appears to show him with breasts. I_d, The - Enquirer Article, which is referenced in all of the Radar Articles, expressly states that the photos of Simmons were taken in 2013, before ?he went into seclusion yet again,? and ?before beginning his self-imposed exile.? I_d. C. Procedural Background. Simmons ?led this lawsuit against AMI and Radar on May 8, 2017. Dkt. No. 1. He ?led the FAC on June 7, 2017, adding four defendants: David Pecker, Dylan Howard, Chief Content Of?cer; Coleman-Rayner, and Grant Hodgson. Dkt. No. 5. The FAC alleges four claims for libel based, respectively, on the June 8, 2016 Enquirer Article, the June 8, 2016 Radar Article, the June 15, 2016 Radar article, and the March 22, 2017 Article. FAC, 39-80. The FAC asserts that each of the articles is defamatory because they suggest that Simmons ?has undergone a sex-change surgery to change from a man to a woman.? Q, 111142, 54, 64, 74. The FAC alleges the Articles were ?libelous on their face,? and also libelous per se because they ?impute unchastity on Mr. Simmons.? 111] 41, 53, 63, 73.13 The Fifth Cause of Action purports to assert a claim for false light invasion of privacy, asserting defensively that even if the Articles are not defamatory because some [unidenti?ed] ?segments? of the [unde?ned] ?community? would n_ot ?think less of Mr. Simmons if he had in fact transitioned from male to female,? he nonetheless is entitled to recover for his distress over allegedly ?highly offensive? false statements about him. FAC, 82. 111. SECTION 425.16 APPLIES TO CLAIM In 1992, the Legislature enacted C.C.P. 425.16 ?to nip SLAPP litigation in the by quickly disposing of meritless claims that target the exercise of free speech rights. Chronicle Publ?g Co., 52 Cal. App. 4th 1036, 1042 (1997). Under the statute, any ?cause of action against a person arising from any act in furtherance of the person?s right of free Speech in connection with a public issue shall be subject to a special motion to strike, unless the court 13 This allegation is manifestly false: nothing in of the Articles says an?hing about any sexual activity by Plaintiff, or otherwise references his ?chastity? at all. Exs. A-I. Plaintiff?s attenuated assertion that the Articles imply he has ?multiple personalities? or an ?identity crisis? (FAC 1111 42, 54, 64, 74) is equally absurd. footnote 21. 16 DAVIS WRIGHT TREMAINE LLP 865 s. FIGUEROA ST, SUITE 2400 L05 ANGELES, CALIFORNIA 900I7-2566 SPECIAL MOTION TO STRIKE (213) 533?5300 4823-0554-7851v.l8 0051427-000016 Fax: (213) 033.5399 In? i1} l-determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.? C.C.P. Reacting to court rulings that interpreted the statute too narrowly, the Legislature amended the law in 1997 to ensure that it ?shall be construed broadly.? C.C.P. Briggs v. Eden Council, 19 Cal. 4th 1106, 1119?21 (1999). The statute sets forth a ?two-step process? for determining whether a claim must be stricken under Section 425.16: ?First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity Navellier v. Mg, 29 Cal. 4th 82, 88 (2002). Once that showing is made, the court ?must then determine whether the plaintiff has demonstrated a probability of prevailing.? I_d. If the plaintiff cannot meet this burden, the claim must be stricken. A. Plaintiff?s Claims Arise From Protected Conduct Under Section 425.16. Plaintiffs FAC falls easily within the SLAPP statute because it arises solely from the content of news reporting about Richard Simmons? disappearance from public life and alleged gender transition. FAC, 1, 4-6. Section applies the statute to ?conduct in furtherance of the exercise of . .. the constitutional right of free speech in connection with a public issue or an issue of public interest.? C.C.P. Publishing news stories in print and online ?plainly? is an exercise of the right of free speech. See, e. g, Carver v. Bonds, 135 Cal. App. 4th 328, 342 (2005) facts and opinions about plaintiff was plainly ?conduct in furtherance of the exercise of [defendants?] constitutional right[s] of free speech? within the meaning of subdivision The fact that the content may also be entertaining does not change this result. gee, gg, Sarver v. Chartier, 813 F.3d 891, 901-02 (9th Cir. 2016) (creation and distribution of ?ctional ?lm within SLAPP statute); Tamkin v. CBS Broad, Inc., 193 Cal. App. 4th 133, 143 (2011) (same regarding creation of television show). Plaintiff 3 claims also fall within Section which extends the SLAPP statute to statements ?made in a public form in connection with an issue of public interest.?14 ?4 Mgard v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1038 (2008) (?newspapers and magazines are public fora within the meaning of subdivision Kronemyer v. IMDB, Inc., 150 Cal. App. 4th 941, 950 (2007) (same for web sites accessible to the public) (citation omitted). 17 DAVIS WRIGHT TREMAINE LLP 865 s, FIGUEROA ST, sum-2 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4823-0554-7851v.18 0051427-000016 Fax: (2 633-6899 if; 21.14.44 ii?Defendants? Speech Was In Connection With Matters Of Public Interest. Consistent with the Legislature?s express mandate, the statute?s de?nition of ?a public issue or an issue of public interest? is interpreted broadly. Seelig V. In?nity Broad. Com, 97 Cal. App. 4th 798, 808 (2002) (?public interest? requirement, ?like all of section 425.16, is to be construed broadly?); see also Hecimovich v. Encinal Sch. Parent Teacher Org, 203 Cal. App. 4th 450, 464 (2012) (the ?question whether something is an issue of public interest must be construed broadly?). As one court explained, an issue of public interest ?is any issue in which the public is interested.? NJgar_d, 159 Cal. App. 4th at 1042. ?In other words, the issue need not be ?signi?cant? to be protected it is enough that it is one in which the public takes an interest.? 11.? The Articles easily meet this standard. Simmons is a subject of widespread public interest, as described above, and admits to having a ?well?known and longstanding burlesque-style entertainment persona.? PAC, 1111 1,27. His fame alone suf?ces to satisfy Section 425.165 broad ?public interest? requirement, without delving further into whether the subject matter in the Articles otherwise involved matters of public interest. See Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1252?55 (2017) (statements by boxer Floyd Mayweather about his ex-girlfriend?s abortion fell within statute because ?[plaintiff] and Mayweather are both high pro?le individuals who were subject to extensive media scrutiny?); al? Mg, 97 Cal. App. 4th at 807-08 having chosen to participate as a contestant? in reality tv show, ?plaintiff voluntarily subjected herself to inevitable scrutiny?); ?ygar_d, 159 Cal. App. 4th at 1042 (article about plaintiffs? business addressed ?issue of public interest? given chairman?s ?celebrity? status); McGarry v. University of San Diego, 154 Cal. App. 4th 97, 109-10 (2007) (statements about coach?s termination concerned issue of public interest, given his ?high-pro?le? position). Moreover, the content of the Articles also involves issues of public interest. m, Simmons? sudden withdrawal from public life including why he disappeared, and what might have happened to him were matters of widespread public discussion and controversy. Having ?5 Courts applying this broad standard have found that a wide variety of subjects meet the public interest test. Lg, Seelig, 97 Cal. App. 4th at 808 (contestant on reality tv program); Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 677-78 (2010) (rock bands); Hall v. Time Warner, ln_c., 153 Cal. App. 4th 1337, 1347 (2007) (Marlon Brando?s will). 1 8 DAVIS WRIGHT TREMAINE LLP 865 s. FIGUEROA ST, sum: 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 90017?2566 (213) 633-6800 4823-0554-7851v.18 0051427-000016 Fax: (213) 633-6899 touched ?millions of people? through his television, entertainment and ?tness work over 40 years, Simmons? abrupt, self-imposed retreat from his television, entertainment and ?tness career garnered substantial public attention. 1, 19; Exs. K-M. Hill, 153 Cal. App. 4th at 1347 (the ?public?s fascination with [Marlon] Brando and widespread public interest in his personal life? made stories about his personal life, and even his housekeeper, issues of public interest). Sec?0nd, the Articles related to Simmons? ambiguous gender identity, which has been an integral part of his public persona and a matter of public interest and discussion for decades. ILA, gm; ExsCal. App. 5th at 1254-55 (celebrity?s disclosure of intimate details about his relationship with plaintif ?were ?celebrity gossip? properly considered as statements in connection with the public interest?). ?1_i_rd, the Articles are connected to a much broader subject of public interest: the transgender community, and what it means to transition from one gender to another. Exs. T, se_e gig; Enquirer Article, Ex. A (discussing issue in context of Caitlyn Jenner's transition); Ex. T, p. 388 (article about Bruce Jenner, noting ?increasing visibility for transgender people?). For all these reasons, the Articles easily meet the SLAPP statute?s broad ?public interest? requirement. IV. PLAINTIFF CANNOT DEMONSTRATE A PROBABILITY OF PREVAILING Because Plaintiff?s FAC falls within the scope of Section 425.16, the burden shifts to him to present admissible evidence establishing a probability that he will prevail on each of his claims. C.C.P. Plaintiff cannot meet this burden. A. Plaintiff?s Libel Claims Fail Because The Articles Did Not Defame Him. 1. Plaintiff Cannot Show That The Articles Injured His Reputation. As a matter of black-letter law, ?[d]efamation is an invasion of the interest in reputation.? Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999). Accordingly, a defamation claim cannot survive where, as here, the allegedly false statement does not hurt the plaintiff?s reputation. Egg Gang v. Hughes, 111 F. Supp. 27, 29 (SD. Cal. 1953) is not suf?cient, standing alone, that the language is_ unpleasant and annoys or irks plaintiff, and subjects him to jests or banter, so ?5 To meet his burden, Plaintiff cannot rely solely on the allegations set forth in the instead, he must present ?competent and admissible evidence? showing he ?probab y? will prevail on his claims. Macias v. Hartwell, 55 Cal. App. 4th 669, 675 (1997) (emphasis added . 19 DAVIS WRIGH TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 SPECIAL MOTION TO STRIKE Los ANGELES. CALIFORNIA 900l7-2566 633-6800 0051427-000016 Fax: (213) 633-6899 grain ii?affect his feelings?). Plaintiff?s lawsuit ignores this critical point. Instead, he asserts he ?has a legal right to insist that he not be portrayed as someone he is not,? and ?to be portrayed in a manner that is truthful.? 7. This misstates the law. Plaintiff has right to suppress speech about him, even speech, if it is not harmful to his reputation. As the United States Supreme Court has recognized, well-established law ?rejects the notion that false speech should be in a general category that is presumptively unprotected.? States v. Alvarez, 567 US. 709, 719, 722 (2012) (Stolen Valor Act, which criminalized false statements about military honors, held unconstitutional because it targeted bare ?falsity and nothing more?). The Supreme Court ?the categorical rule? which is the premise of Simmons? claims ?that false statements receive no First Amendment protection.? Li. As the Court explained, this premise ignores ?the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of Views in public and private conversation, expression the First Amendment seeks to guarantee.? I_d. at 718. Falsity alone is insuf?cient to state a defamation claim. Instead, a statement is libelous only if it ?exposes [plaintiff] to hatred, contempt, ridicule, or )3 (C obloquy, causes him to be shunned or avoided,? or ?has a tendency to injure him in his occupation.? Cal. Civ. Code 45. The statement also must be one that either ?has a natural tendency to injure,? or ?causes special damage.? m, 72 Cal. App. 4th at 645. Here, because Plaintiff has viable claim for special damages, he must prove the Articles are defamatory their face that is, defamatory ?without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact.? Cal. Civ. Code 45a; IV.A.3. He cannot meet that burden. 2. A Statement That A Person Is Considering or Undergoing A Gender Transition Is Not Defamatory on Its Face. Whether a statement is defamatory is not evaluated by any static test. Context is critical. As Justice Holmes observed, word is not a transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.? Towne v. Eisner, 245 US. 418, 425 (1918). Whether a communication is defamatory is ?affected by variations in time, place and circumstance.? Washburn v. Wright, 261 Cal. App. 2d 789, 796 (1968) (?in the mental climate of 1964 it was not defamatory per se to say of 20 DAVIS WRIGHT TREMAINE LLP 865 S. FIGUEROA ST, SUITE 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 900l7-2566 (213) 633-6800 4823-0554-7851v.18 0051427-000016 Fax: (213) 633-6399 anyone in California that he was an It depends ?upon the temper of the times [and] the current of contemporary public Beamer v. Nishiki, 670 P.2d 1264, 1271 (Hawaii 1983) (citation, internal quotations omitted).l7 As a consequence, as society?s mores and values evolve, assertions that might have been offensive to a past generation may no longer be defamatory. For example, because this modern era, with its greater medical knowledge and societal concern with health and medical care,? it is not considered defamatory to report (even M) that someone has a disease such as cancer or a blood disorder. Chuv v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1281-82 (3d Cir. 1979) @eople with such conditions typically face ?sympathy rather than scorn, support and not rejection?); Golub v. Enquirer/Star Group, Inc., 89 1074, 1076-77 (1997) (no defamatory meaning attached to false news report that plaintiff had cancer). Similarly, allegations of illegitimacy once deemed defamatory pg generally are n_ot considered defamatory today, as a result of changing societal attitudes. Bradshaw v. Swagertv, 563 P.2d 511, 514 (Kan. App. 1977) (imputation of illegitimacy generally not defamatory Cessna v. Montgomery, 329 861, 865 (Ill. App. Ct. 1975) (noting that ?[t]he stigma attached to bastardy had diminished substantially?), rev?d other grounds, 344 NE. 2d 447 (Ill. 1976). Similarly, racial misidenti?cation speci?cally, a false statement that a white person was black once was considered to be defamatory, based on the supposed social stigma arising from prejudice against African Americans. E, g, Stulz v. Cousins, 242 F. 794 (6th Cir. 1917) (holding it was defamatory to state white man was part black, due to the ?marked social differences between the races?); Bowen v. Independent Pub. Co., 96 564, 566 (SC. 1957) (?to publish in a newspaper of a white woman that she is a Negro is calculated to affect her standing in society and to injure her in the estimation of her friends and acquaintances?). That view is now universally. repudiated even though racial prejudice has not been eliminated because courts ?7 Making this determination ?is the function of the Washburn, 261 Cal. App. 2d at 797. also Yortv v. Chandler, 13 Cal. App. 3d 467, 475 (1970) (if the trial court determines that matter is not defamatory then ?it is not allowed to submit the issue to a jury?). '8 Egg Harris v. Nashville Trust Co., 162 SW. 584, 585 (Tenn. 1914). 21 DAVIS WRIGHT TREMAINE LLP 865 s. FIGUEROA sr, suns 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 900l7-2566 (213) 633?6800 4823-0554-7851v. 18 0051427-000016 Fax: (213) 633-6899 refuse to validate the view that there is anything disreputable or odious about belonging to a particular race. Thomason v. Times-Joumal, Inc., 379 551 (Ga. App. 1989) (rejecting claim that false obituary was defamatory because it stated white plaintiffs memorial service had been held at a funeral home serving primarily African-Americans: ?Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect?); Mitchell v. m, 99 397 (111. App. 1951) (rejecting prior cases about defamatory meaning of race).19 A similar evolution has occurred with respect to sexual preference. Most recent decisions have recognized that false imputations of homosexuality are not defamatory. See, gg? Greenly v. Sara Lee Corp, 2008 WL 1925230, at *8 n.15 (ED. Cal. Apr. 30, 2008); Carvajal v. Pride Industries Inc., 2013 WL 1728273, at 12 (SD. Cal., April 22, 2013). These cases rejected earlier authority to the contrary as ?based upon the ?awed premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual.? Yonatv v. Mincolla, 97 1.41, 144, 945 774 (N .Y. App. Div. 2012).20 Courts recognize that, in light of shifting societal mores, ?a statement implying that an individual is a homosexual is hardly capable of defamatory meaning.? Albright v. m, 321 F. Supp. 2d 130, 133 (D. Mass. 2004); also Stern v. Crosby, 645 F. Supp. 2d 258, 274 (S.D.N.Y. 2009) (contemporary public opinion ?does not support the notion that New Yorkers view gays and lesbians as shameful or odious?); Murphy V. Millennium Radio Group LLC, 2010 WL 1372408, at *7 (D.N.J. Mar. 31, 2010) (stating ?that someone is homosexual is not defamatory?), rev?d other grounds, 650 F.3d 295 (3d Cir. 2011). There are still people who are biased against gay people, but courts have recognized that narrow-mindedness and bigotry are not bases for holding that a false imputation of homosexuality is defamatory. Lbriglit, 321 F. Supp. 2d at 138-39 (comparing claim to ?defamation by racial misidenti?cation? claim, holding it would be ?outrageous? to allow social prejudice to justify a ?nding that homosexuals deserve ?approbation?). 19 211i Samuel Brenner, ??Negro Blood in His Veins?: The Development and Disappearance of the Doctrine of Defamation Per Se by Racial Misidenti?cation in the American South,? 50 Santa Clara L. Rev. 333 (2010) (citing cases and describing demise of such claims). 20 Many earlier cases also assumed that saying someone was gay imputed criminal conduct, and thus was defamatory g. Yonaty, 97 at 144; Greenly, 2008 WL 1925230, at *8 n.15. That rationale was ?extinguished? when the Supreme Court held statutes criminalizing same-sex sexual conduct are unconstitutional. 1d, (citing Lawrence v. Texas, 539 US. 558 (2003)). 22 DAVIS WRIGHT TREMA NE LLP SPECIAL MOTION TO STRIKE (213) 633-6800 4823-0554-7851v.18 0051427-000016 Fax: (213) 633-6899 Simmons? assertion that it is libelous to state that a person is transitioning genders rests entirely on the same kind of outdated prejudices about transgender individuals that have been widely rejected in analogous circumstances. The Articles do not state or suggest Simmons has done an?hing deserving of social approbation, let alone that he has engaged in criminal, immoral, or unchaste conduct.21 This Court should reject Simmons? invitation to ?nd, as a matter of law, that describing someone as being in the process of changing genders is akin to describing them as criminal, immoral, or unchaste, such that they will be subjected to ?hatred [or] contempt,? or cause them to be ?shunned? or injured professionally. Cal. Civ. Code 45. There is nothing inherently defamatory about stating someone is transgender. Simmons concedes as much, noting peOple undergoing gender transition ?ought to be treated with respect and sensitivity.? FAC, 7. The legal rule Simmons proposes that gender transition is somehow shameful or odious also would be contrary to California law and public policy, which recognize the dignity of transgender individuals and their right to equal treatment. California prohibits discrimination against transgender people, including in housing, employment, public accommodations, health insurance and school activities.22 California also was the ?rst state to ban the ?trans panic? defense in homicide cases. Penal Code 192(f) (?heat of passion? mitigation cannot be based on actions defendant took based on victim?s ?gender identity, gender expression, or sexual orientation?). In the current ?time, place and circumstance,? Washburn, 261 Cal. App. 2d at 796, it is 2? Simmons? allegations that the Articles ?impute unchastity? and ?insinuate? that he ?has an identity crisis or possibly multiple personalities? (ggm FAC, 111141-42, 53-54, 63-64, 73-74) rest on an entirely strained reading of the Articles, which say nothing about Simmons? chastity, and do not state or suggest he has ?multiple personalities.? His apparent attempt to assert a claim for libel by implication fails, because it imperrnissibly reads into the Articles a meaning that is not there. Courts considering such claims must ?refrain from scrutinizing what is not said to find a defamatory meaning which the article does not convey to a lay reader.? Forsher v. Bugliosi, 26 Cal.3d 792, 803 (1980) (book suggesting Charles Manson?s followers murdered a particular lawyer was not actionable, despite statements connecting plaintiff with events relating to the murder, ?the book neither expressly nor by fair implication charges [the plaintiff] with killing or aiding or abetting the killing?); accord, Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 854 (9th Cir. 2001). 22 Gov?t. Code 12955 (housing), Gov?t. Code 12940 (employment), Cal. Civ. Code 51(b) (public accommodations); Health Safety Code 1365.5(a) (access to health insurance); Ed. Code 200, 221 (schools and student activities). These statutes all bar discrimination based on ?sex,? which is de?ned to include ?gender identity and gender expression? and ?gender- related appearance and behavior whether or not stereotypically associated with the person?s assigned sex at birth.? See, 9g? Gov?t Code Cal. Civ. Code 23 DAVIS WRIGHT TREMAINE LLP 865 S. ST, SUITE 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 900l7-2566 (213) 633-6800 4823-0554-7851v.18 0051427-000016 Fax: (213) 633-6899 *simply not defamatory to state that someone is transitioning genders.23 Transgender individuals may still face prejudice, but that does not justify ?nding, as a legal matter, that they are contemptible or disgraceful, just as ?prejudice on the part of some does not warrant a judicial holding that gays and lesbians, merely because of their sexual orientation, belong in the same class as criminals.? m, 645 F. Supp. 2d at 274. Such a rule would ?legitimize relegating [them] to second-class status.? my, 321 F. Supp. 2d at 138 (even though ?a segment of the community views homosexuals as immoral, courts should not, directly or indirectly, give effect to these Simmons? claim that the Articles defamed him assumes that transgender individuals are to be scorned, detested and shunned. This Court should reject his anachronistic position. A statement that someone is considering, or has undergone, gender reassignment is not defamatory. That is even more true in this particular case. Simmons already had a ?well-known and longstanding burlesque-style entertainment persona? that, as he admits, rested in part on appearing in public as a woman. 27; Ex. (photos). His reputation as someone willing to bend gender norms was cemented long before the Articles appeared; it is a signi?cant and indelible part of'his popular appeal. Exs. J, M, O, Q, R. One entertainer noted in 2008 that Simmons ?embraces both sexes and that?s why people like him.? Ex. M, p. 115.25 Simmons does not (and cannot) explain why anyone would think less of hi_m if he chose to transition into a woman. Because such a statement does not have ?a natural tendency to injure? Richard Simmons? reputation, his defamation claim fails. Smith, 72 Cal. App. 4th at 645. 3. Plaintiff Has Failed To Allege Special Damages. Where, as here, statements do not have a ?natural tendency to injure? the plaintiff?s reputation, they are not actionable absent proof of special damages. Smith, 72 Cal. App. 4th at 645366 (noting Caitlyn Jenner announcement came at ?a time of increasing visibility for transgender people?); p.371-3 80 (Time cover story featuring Laverne Cox, a transgender actress on ?Orange is the New Black?); n; p. 381-407(Che1sea Manning). 24 also Hayes v. Smith, 832 P.2d 1022, 1025 (Colo. App. 1991) court should not classify homosexuals with those miscreants who have engaged in actions that deserve the reprobation or scorn which is implicitly a part of the slander/libel per se classi?cations); Thomason, 379 551 (Ga. App. 1989). 25 For example, the ?Missing Richard Simmons? podcaster, who expressed doubt about whether Simmons is changing genders, told his audience: ?But if he is transitioning? Mazel tov!? Ex. K, Episode 5, at approximately 06:55. 24 DAVIS WRIGHT TREMAINE LLP 865 s. FIGUEROA ST, sun's 2400 SPECIAL MOTION TO STRIKE Los ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4823-0554-7851v.18 0051427-000016 Fax: (213) 633-6899 Cal. Civ. Code 45a, 48a. Such special damages ?must be pled precisely,? Gomes v. Fried, 136 Cal. App. 3d 924, 940 (1982), and ?with particularity,? Peabody v. Barham, 52 Cal. App. 2d 581, 585 (1942). As the California Supreme Court explained, a ?general allegation of loss of a prospective employment, sale, or pro?t will not suf?ce.? Pridonoffrv. Balokovich, 36 Cal. 2d 788, 792 (1951). Instead, plaintiff must allege the speci?c manner in which she lost business as a result of the defamation.? C?g, 111 F. Supp. at 29. Plaintiff has failed to plead special damages adequately. The FAC recites special damages in precisely the same conclusory manner the cases cited above found was insuf?cient. Simmons merely alleges that, as a result of the Articles, he ?has suffered general and special damages in an amount to be determined at trial including without limitation, damage to Plaintiff?s reputation, career, and standing in the community.? PAC, 111148, 58, 68, 78. He does not even att?m to allege any speci?c economic damages, lost business or employment opportunity, or other concrete, quanti?able injury that he claims to have suffered as a result of the Articles. Because Simmons failed to plead (and cannot prove) that he suffered any special damages, his libel claims fail. B. Plaintiff?s False Light Claim Fails For The Same Reasons His Libel Claims Fail. Plaintiff?s Fifth Cause of Action purports to state a claim for false light invasion of privacy, based on precisely the same conduct and statements that are alleged as the basis for his libel claims. FAC, 81-91. He claims he is entitled to damages for ?his internal emotional'distress? because the Articles? portrayal of him is false and ?highly offensive to an ordinary reasonable person.? 1111 82, 85, 85. Consequently, this claim is entirely duplicative of his libel claims, and fails for the same reasons set out-above. Pleading claims like false light provides no additional basis for relief. ?California courts have determined that a false light claim that rests on the false nature of the publication is substantively equivalent to a libel claim based on the same publication.? Newcombe v. Adolf Coors Co., 157 F.3d 686, 694 (9th Cir. 1998), citing Fellows v. National Enquirer, Inc., 42 Cal.3d 234 And California law ?requires injury to reputation for 26 also Kapellas v. Kofman, 1 Cal.3d 20, 35 n.16 (1969) (false light claim ?resting on the allegedly false-nature of the editorial statements? must meet ?same requirements? as libel claim); Jackson, 10 Cal. App. 5th at 1264-65 (same); Medical Mariiuana, Inc. v. 6 Cal. App. 5th 602, 616 (2016) (same); Aisenson v. ABC, 220 Cal. App. 3d 146, 161 . 25 DAVIS RIGH LLP 865 s. nouenm sr, SUITE 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 90017-2566 (213) 633-6800 4823 -0554-7851v. 8 0051427-000016 Fax: (213) 633-6899 false light and defamation.? Flowers v. Carville, 310 F.3d 1118, 1132-33 (9th Cir. 2002). Plaintiff attempts to rationalize his duplicative pleading, asserting that this case is an exception to the established rule because the Articles may be ?highly offensive? even as to ?segments of the community? that would not think less of him had he undergone a sex change. FAC, 11 82. This strained attempt to ?nd some daylight between defamation and false light has support in California law. Where, as here, ?a false light claim is coupled with a defamation claim, the false light claim is essentially super?uous, and stands or falls on whether it meets the same requirements as the defamation cause of action.? Eisenberg v. Alameda Newsp., Inc., 74 Cal. App. 4th 1359, 1385 n.13 (1999) (emphasis added); see also Tamkin v. CBS Broad, Inc., 193 Cal. App. 4th 133, 149. ?The collapse of the defamation claim spells the demise of all other causes of action in the same complaint which allegedly arise from the same publication.? Gilbert v. Sykes, 147 Cal. App. 4th 13, 34 (2007) (emphasis added). Here, Plaintiff admits his false light claim arises from precisely the same statements and alleged implications in the same Articles at issue in his libel claims. Accordingly, no ?separate analysis? is required. Newcombe, 157 F.3d at 694. The Court of Appeal?s recent decision in is illustrative. There, the defendant, boxer Floyd Mayweather, posted on social media that he had broken up with the plaintiff because she had an abortion. 10 Cal. App. 5th at 1247. She sued for defamation, false light, and other torts. at 1248. The Court granted Mayweather?s SLAPP motion as to both claims: his statements about the reasons for the break-up, even if false, were not defamatory, because they did not subject the plaintiff ?to contempt, ridicule or other reputational injury? at 1262), and the absence of a defamatory statement was a ?fatal defect? that also required dismissal of her false light claim. E. at 1264-65. The same rule applies here. V. CONCLUSION Plaintiffs FAC is ?lled with hyperbole and in?ammatory accusations about Defendants, but fails to allege a legal basis for his multiple, duplicative claims. He seeks to punish Defendants? speech, while tacitly admitting that the statements he complains about cannot support a defamation claim. 82. For all these reasons, Plaintiff?s claims should be stricken. DATED: July 26, 2017 By: J01 LL L. 9 5182/1 L. SAGER 26 SPECIAL MOTION TO STRIKE Los 90017-2566 (213) 633.6800 4823-0554-7851v.18 0051427-000016 Fax: (213) 633-6899 PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is Davis Wright Tremaine, LLP, Suite 2400, 865 South Figueroa Street, Los Angeles, California 90017-2566. On July 26, 2017, I served the following document(s): NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE FIRST AMENDED SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES 425.16] by placing a true copy in a separate envelope for each addressee named below, with the name and address of the person served shown on the envelope as follows: Neville L. Johnson Jean-Paul assy, Esq. Douglas L. Johnson Kevin L. Vick, Esq. Johnson Johnson LLP Jassy Vick Carolan LLP 439 N. Canon Dr., Suite 200 6605 Hollywood Blvd, Suite 100 Beverly Hills, CA 90210 Los Angeles, CA 90028 Rodney A. Smolla 4601 Concord Pike Wilmington, DE 19803-0406 and by sealing the envelope and placing it for collection and delivery by Federal Express with delivery fees paid or provided for in accordance with ordinary business practices. I am familiar with the practice at my place of business for collection and processing of correspondence for overnight delivery by Federal Express. Such correspondence will be deposited with a facility regularly maintained by Federal Express for receipt on the next business day. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed on July 26, 2017, at Los Angeles, California. Vicky Isensee LW Print Name Signature 27 DAVIS WRIGHT TREMAINE LLP 865 s. FIGUEROA ST. SUITE 2400 SPECIAL MOTION TO STRIKE LOS ANGELES, CALIFORNIA 90011?2566 (213) 033.5300 4823-0554v7851v.18 0051427-000016 Fax: (213) 633-6899 THIS IS YOUR CRS RECEIPT INSTRUCTIONS Please print this receipt and attach it to the corresponding motion/document as the last page. Indicate the Reservation ID on the motion/document face page (see example). The document will not be accepted without this receipt page and the Reservation ID. Los Marinas -) CASE-NO: Bcommn NOTICE MOTION . C03 IPKLANS R. m$ I :7 ?g ?311126011053" RESERVATION INFORMATION Reservation ID: Transaction Date: Case Number: Case Title: Party: Courthouse: Department: Reservation Type: Date: Time: 170707232816 July 7, 2017 80660633 RICHARD SIMMONS VS AMERICAN MEDIA INC ET AL AMERICAN MEDIA INC. (Defendant/Respondent) Stanley Mosk Courthouse 61 Special Motion to Strike under CCP Section 425.16 motion) 8/30/2017 09:00 am FEE INFORMATION (Fees are non-refundable) First Paper Fee: Party asserts first paper was previously paid. Description Fee Special Motion to Strike under CCP Section 425.16 (Anti- $60 00 SLAPP motion) Total Fees: Receipt Number: 1170707K2100 $60.00 PAYMENT INFORMATION Name on Credit Card: Credit Card Number: .. I JACK SANCHEZ 984 A COPY OF THIS RECEIPT MUST BE ATTACHED TO THE CORRESPONDING AS THE LAST PAGE AND THE RESERVATION ID INDICATED ON THE