FILED Su orlor Court of California ty of Loo Angeies SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES ALF CLAUSEN, an individual, Case No. 198TCV27373 Plaintiff, ORDER ON MOTION TO STRIKE FIRST AMENDED COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 VS. TWENTIETH CENTURY FOX FILM, a corporation; THE WALT DISNEY COMPANY, a Delaware corporation; TWENTIETH CENTURY FOX GRACIE TWENTY-FIRST CENTURY FOX, FOX MUSIC, and DOES 1 through 50, inclusive Defendants. This matter came regularly for hearing on August 5, 2020 in Department 62 of the above-entitled Court on the special motion to strike the First Amended Complaint of plaintiff Alf Clausen by defendants TCCF Film Corporation Twentieth Century Fox Film Corporation, The Walt Disney Company, Twentieth Century Fox Television; Gracie Films; TFCF Corporation; and Fox Music, Inc. pursuant to Code of Civil Procedure section 425.16, the Honorable Michael L. Stern, Judge of the Superior Court, presiding. Defendants and moving parties were represented by attorneys Adam Levin and Stephen 1 ORDER ON MOTION IO STRIKE A. Rossi, Mitchell Silberberg Knapp LLP. Plaintiff Alf Clausen was represented by attorneys Keith D. Griffin, Girardi Keese, and Francis Livingston Bakhtiar. After consideration of the moving, opposing and reply papers, the evidence and authorities submitted by counsel, counsels? oral argument, having taken the matter under submission for consideration, the Court now rules as follows: I. General Factual Background. Plaintiff Alf Clausen was ?the music guy" for the hit tv show ?The Simpsons.? Now seventy?nine years old, plaintiff worked for defendants from October 1990 to August 2017. In 2012, he was diagnosed with Parkinson?s disease. He submits that the condition did not begin to manifest itself with noticeable physical until approximately late 2016 or early 2017. He alleges that, even then, his were very mild in nature and controlled with prescription medication. He so informed his supervisor in early 2017. He was never offered any accommodations, but does not contend he ever requested any. Plaintiff alleges that he was terminated in August 2017 ?without explanation? and replaced by Hans Zimmer, a musician who is substantially younger and neither disabled nor had been diagnosed with Parkinson?s disease or other illnesses. Defendants deny all of the plaintiff?s allegations. ll. Plaintiff?s Causes of Action. Plaintiff alleges causes of action for: Discrimination/Actual or Perceived Disability, Failure to Engage in Interactive Process, Failure to Accommodate, Discrimination/Age, Retaliation, Failure to Prevent; Wrongful Discharge, Intentional Infliction of Emotional Distress and Unfair Business Practices. The collective defendants move to strike the entire complaint and each cause of action of the First Amended Complaint under Code of Civil Procedure section 425.16, the statue. 2 ORDER MOTION TO Analysis of Issues. A. Special Motions to Strike. Special motions to strike allow for the early disposition of cases that seek to chill the valid exercise of the constitutional rights, such as freedom of speech and access to the judicial process. Code of Civil Procedure section 425.16; Ramona Unified School District v. Tsiknas, 135 CaI.App.4th 510, 518 (2005). Defendants have the initial burden to show that the complaint is subject to an anti? SLAPP motion. The preliminary question to be determined is whether the claim or cause of action arise from the furtherance of the right to petition or free speech. Rand Resources LLC v. City of Carson, 6 Cal. 5th 610, 615 (2019). The are various cases that are relevant to analysis of this issue. In Hunter v. CBS Broadcasting, Inc., 221 Cal.App.4th 1510 (2013), the plaintiff filed a discrimination claim alleging that defendant CBS refused to hire him as a weather news anchor because of his gender and age. The defendant filed a special motion to strike under Code of Civil Procedure section 425,16 arguing that its selection of a newscaster qualified as an act in furtherance of its free speech rights. The trial court denied the motion, concluding that Hunter?s claims arose from its discriminatory employment practices and not from hiring decision. The Court of Appeal reversed this conclusion, finding that the conduct underlying Hunter?s claims fell within the statue, Code of Civil Procedure section because it constituted conduct in furtherance of the exercise of the constitutional right of free speech and in connection with a public issue or an issue of public interest. Id., 221 CaI.App.4th at 1521. As part of its reasoning, the appellate court found that since Hunter?s employment was based squarely on decisions by CBS regarding its choice of a weather anchor, its actions were in furtherance of its First Amendment rights. Whether CBS had a gender or age?based discriminatory motive in not selecting Hunter to serve as a weather anchor was an entirely separate inquiry from 3 ON MOTION STRIKE A whether, under the statue, Hunter?s discrimination claims were based on employment decisions. Id. A similar line of reasoning was followed in an analogous employment situation in the more recent case of Symonds v. Mahoney, 35 CalApp. 5th 1096 (2019). Defendant rock singer Eddy Money (nee Mahoney) had terminated plaintiff Symonds, the drummer in his band, who sued for discrimination on the bases of age, disability and medical condition in violation of FEHA. The trial court denied the defendant?s motion. The Court of Appeal reversed. It held that the singer?s selection of musicians to perform with him was an act in furtherance of the exercise of the right to free speech and his music and that concerts were ?of interest to the public.? Although some of the allegations had no connection to the singer?s free speech rights, this did not preclude determining that the decision to terminate the drummer implicated those rights. The drummer?s employment discrimination claims thus arose from the signer?s protected activity to terminate the drummer from the band. 1d,, :35 Cal.App. 5th at 1106. Moreover, the appellate court declared that the selection of a drummer is analogous to a casting decision regarding who is to perform music during a concert or studio performance. Therefore, it is an act in furtherance of the exercise of free speech. Id. B. Application of Legal Principles. Hunter and Symonds stand for several propositions that are applicable to the present case: 1) the complained of actions were based on the defendant making a ?choice,? a ?decision" or a ?selection;? 2) the two cases are relegated to discrimination only. In fact, Symonds states that no argument was made regarding the harassment and failure to accommodate claims, and, therefore, it excludes those claims from the analysis. Id, 35 at 1113; and 3) if the discrimination claim does not involve a choice, it would not be subject to application. 4 ORDER TO STRIKE Therefore, the Court applies this analysis to the causes of action First Amended Complaint, as follows: 1 . Discrimination/Actual or Perceived Disability. applies because the plaintiff claims that the discrimination occurred when the defendants chose a non-disabled person Failure to Engage in the Interactive Process. does not apply because the plaintiff claims that the defendants terminated him without engaging in the interactive process. The defendants do not meet the Hunter and Symonds standards. Failure to Accommodate. Plaintiff claims that the defendants did not accommodate his disability. does not apply. The defendants do not meet the Hunter and Symonds standards. 4. Age Discrimination. This cause of action is subject to the See, Hunter and Symonds. Retaliation. Plaintiff fails to adequately allege what retaliatory conduct involved protected activity. Without, some further factual basis, the Court cannot determine if this cause of action is subject to Thus, although this cause of action may be subject to other type of motion, the motion must be denied. Failure to Prevent. The failure to prevent cause of action is derivative of the discrimination causes of action. Therefore, it is subject to . Wrongful Discharge. This claim also is based the discrimination causes of action and, thus, is subject to Intentional Infliction of Emotional Distress. This is subject to since the termination is based on the defendants? choice. 5 ORDER ON MOTION TO STRIKE 9. Unfair Business Practices Under Business and Professions Code section 17200. Such claims are ordinary exempt from application of Analogous to the retaliation cause of action, another type of motion might be applicable. In sum, the defendants meet their burden under regarding the 1, 4, 6, 7 and 8 causes of action but do not under the 2, 3, 5 and 9 causes of action. Notwithstanding, a plaintiff may pursue a discriminatory claim or other cause of action based on protected activity if the plaintiff he is able to present ?minimal? evidence necessary to demonstrate a reasonable probability of prevailing on the merits. Hunter, supra, at 221 Cal.App.4th at 1525. The burden then shifts to the plaintiff to provide admissible evidence that demonstrates a probability of prevailing on the claims. See, Integrated Health Holdings, Inc. v. Fitzgibbons, 140 Cal.App.4th 515, 527 (2006). In this instance, plaintiff provides much evidence in support of the specific causes of action. Given this evidence, plaintiff meets his burden of proof on the following causes of action: 1) Discrimination/Actual or Perceived Disability; 6) Failure to Present; and 7) Wrongful Discharge. Plaintiff does not meet his burden of furnishing adequate evidence on these causes of action: 4) Discrimination/Age; and 8) Intentional lnfliction of Emotional Distress. IV. Qfd?- The motion is granted regarding the Fourth Cause of Action of Discrimination and Eighth Cause of Action for Intentional lnfliction of Emotional Distress. The defendants meet their burden that these causes of action are subject to and plaintiff fails to meet his burden of producing admissible evidence that demonstrates a probability of prevailing on these claims. The motion is denied on the Second Cause of Action for Failure to Engage, Third Cause Action for Failure to Accommodate, Fifth Cause of Action for Retaliation and Ninth Cause of Action for Violation of Business and Profession Code section 17200 because defendants did not meet their burden to show that these causes 6 ON MOTION TO of action are subject to The motion further is denied on the First Cause of Action for Disability Discrimination, Sixth Cause of Action for Failure to Prevent and Seventh Cause of Action for Wrongful Discharge. While defendants meet their burden to show that these causes of action are subject to plaintiff meets his burden of producing admissible evidence that demonstrates a probability of prevailing on these causes of action. The plaintiff?s objections to defendants? evidence are overruled. The defendants? objections to plaintiff?s evidence are overruled. The defendants? request to strike the entire opposition on the grounds that it is and places the defendants at a disadvantage is denied. The request for attorneys? fees and costs is denied. The order to show cause re First Amended Complaint is off calendar. The case management conference is continued to October 29, 2020, at 10:00 am, in this Court. IT IS SO ORDERED. Dated: August 21, 2020 MICHAEL L. STERN Judge of the Superior Court .7 I ORDER ON V10 HON T0 STRIKE MAO 13 Order On Defenda Motion to Strike 8-13-20 1 6 8-14-20 MLS/cdm ORDER ON MOTION TO STRIKE