1]| David Jacobs, Esq. (State Bar No, 73545) Paul C. Burkholder, Esq. (State Bar No. 117795) F ILED.., Lauren K. Rifenbark, Esq. (State Bar No. 228194) LOR COUR EPSTEIN BECKER & GREEN, P.C. SUPER OR LOS ANGELES 3|| 1925 Century Park Bast, Suite S00 14 Los Angeles, California 90067-2506 MA 4|) Tetephone: 310.556.8861 Facsimile: 310.553.2165 sone 5 || djacobs@ebglaw.com 3y. phurkholder@ebglaw.com 6} trifenbark@ebglaw.com 7|| Atomeys for Defendant VARIETY, INC 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF LOS ANGELES 12|] CALIBRA PICTURES, LLC, a Califomia CASE NO. BC 433320 Limited Liability Company, 13 | [Assigned to Hon. Richard E. Rico, Dept. 17] | 1 Plaintiff, 14 NOTICE OF RULING ON DEFENDANT vs. VARIETY’S SPECIAL MOTION TO 15 STRIKE (C.C.P. $425.16) VARIETY, a New York corporation; and 16}| DOES 1-100, inclusive, DATE: May 12, 2010 TIME: 8:30 am. u| DEPT: 7 18) {Complaint filed March 9, 2010; 19) First Amended Complaint filed March 10, 2010] 20) 2 PLEASE TAKE NOTICE THAT on May 12, 2010 at 8:30 a.m. in Department 17 of 23|| the Los Angeles County Superior Court located at 111 N, Hill Street, Los Angeles, California 24|] 90012, Defendant Variety (“Variety”) moved to dismiss Plaintiff Calibra LLC's (“Plaintiff”) 25|] First Amended Complaint under California Code of Civil Procedure §425.16. David Jacobs and 26|| Lauren Rifenbark of Epstein Becker & Green appeared on behalf of Variety. Timothy D. 27|| MeGonigle appeared on behalf of Plaintitt. TA73828301 ‘Notice of Ruling5 So waa nt 2 13) 14 15 16 7 18 19] 20 a 2 2B 25 26| 27 28) ‘The Court granted Variety's motion in its entirety, including its request for attorneys” fees and costs, and ordered Variety to give notice. On May 12, 2010, the Court issued its Minute Order, in which it adopted its tentative ruling. Attached hereto as a Exhibit A is a true and correct copy of the Court's Minute Order, dated May 12, 2010. Attached hereto as Exhibit B is a true and correct copy of the Court’s tentative ruling, dated May 12, 2010. DATED: May 13, 2010 Respectiully submitted, EPSTEIN BECKERS GREEN, P.C. ‘VIB JACOBS PAUL C. BURKHOLDER LAUREN K. RIFENBARK Attomeys for Defendant VARIETY, INC Lane Novice oFRalingSHRP EEe EEE EEE EE EEE Exhibit ASUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES pare: 05/12/20 err, 27 HoSORABLE RICHARD © A. otra ourury cosa HoNonaate woe rove] evecrRowi RECORDING wostToR i chavez, ¢.2. guy ert] S. ALMAGUER-MILLER #8767 Renee 8:30 am/BC433320 Pin | come oT, Me GONIGLE, (x) |CALIBRA PICTURES LLC vs Oven D. JACOBS, (X) VARIETY Come Lb. RIFENBARK, (X) | NATURE OF PROCEEDINGS: |NOTICE OF DEFENDANT VARIET’ [SPECIAL MOTION TO STRIKE; INC. FOR MOTION AND |The matter is called for motion and special motion to |The court's tentative is adopted as it order as | FoLlows } Defendant Variety's special motion to strike pursuant to Civil Code of Procedure Section 425.16 is granted [in its entirety {Upon receipt of the appropriate declaration from |Dezendant Variety, attorneys' fees and costs will be |granted. See Civil Code of Procedure Section 425.16(¢) | } Counsel for Defendant is ordered to give notice of MINUTES ENTERED © Page lof 1 DEPT. 17 05/22/20 © COUNTY CLERK axExhibit BHonorable Richard Rico Wednesday —May 12, 2010 Department U7 Calendar No. 9 PROCEEDINGS Calibra Pictures, LLC v. Variety BC 433320 Defendant Variety's Special Motion to Strike Pursuant to CCP § 425.16 ANALYSIS Defendant Variety brings this Anti-SLAPP motion pursuant to C.CP. § 425.1 6(e)(3) and (¢)(4), as to Plaintiff Calibra Pictures, LLC's ("Calibra”) entire First ‘Amended Complaint. Defendant Variety contends that the ceview published in the magazine was protected speech that was connection with an issue of public interest and that the contract signed in no way related to the publishing of reviews, positive or negative, of the motion picture “Iron Cross.” In opposition, Plaintiff Calibra argues that the free speech was waived and even ifit was not, the action does not srise out of the free speech, In reply, Defendant Variety rebuts the contention that the speech was waived and repeais their contentions that the action arises from protected speech. The motion is, granted as explained below. Cause of Action Arising from Free Speech: Under the anti-SLAPP statute, a defendant must demonstrate that the challenged action arises from free speech. C.C.P. § 425.16(b); see also City of Cotati v. Cashman (2002) 29 Cal.ath 69, 78, The principal thrust or gravamen of the cause of action must be considered in determining whether the anti-SLAPP statute applies. Martinez v Metabolife International, Inc. (2003) 113 Cal. App Ath 181, 188. Here, the FAC rests entirely on the publication of the negative review of the movie “Iron Cross.” One of the remedies prayed for is injunctive relief to prevent any further comment. FAC {4 of prayer. The critical point is whether the cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. City of Cotati, 29 Cal.4th at 78. Here, Plaintiff alleges breach of contract for “sending a film critic, Robert Koehler to see and to review the Film." FAC 936. But for the review, according to Plaintiff, there would be no breach. Each subsequent cause of action relies on Koehler’s negative review. Thus, the causes of action arise from speech. A party who has validly contracted not to speak or petition has in effect “waived” the right to the anti-SLAPP statute's protection in the event he or she later breaches that contract. Weil & Brown, Civ.Pro.Before Trial (2008) Chap. 7—Anti-SLAPP Motions, 7:518 at p. 7(11)-3. There is no evidence that Defendant Variety waived their right by contracting not to speak. ‘Act in Furtherance of a Person’s Right of Petition or Free Speech: “As used in this section, ‘act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes. ..(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” CCP. § 425. 16(e). Here, the negative review was published in online forura, CS SVariety.com, and in its print publication “Daily Variety.” FAC $36. A public forum has been extended beyond traditional physical settings, such as streets, sidewalks and parks for the purposes of this statute, Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468. In that case, a newsletter with a circulation of only several thousand ‘was considered a public forum, 1d. Some newspapers and media outlets are not considered public forum because access is limited and selective, however the printed edition run by Defendant Variety is in wide circulation. See Weinberg v. Feis! (2003) 110 Cal. App.4th 1122, 1130-1131, ‘The California Supreme Court has found that websites accessible to the public are public forums for the purposes of the anti-SLAPP starute, Barrea v. Rosenthal (2006) 40 CalAth 33, 41 fn. 4. Here, the website and its Print publication are open to a vast number of readers. Users of the website arc able to post comments, share articles, and link to social networks. Gray Decl. 47. ‘The website and print edition where the review was published are public forums. Defendant Variety must also establish that the statement involved an issue of Public interest. C:C.P. § 425.16(6)(3), (4). Public interest is found when the subject statement is (1) concerning a persan or entity in the public eye; (2) conduct that could directly affect large numbers of people beyond the participants, or (3) a topic of widespread interest. Rivero v. American Fed. Of State, County, and Municipat Frployees, AFL-CIO (2003) 105 Cal.App.4th 913, 924, The issue does not have to be of public importance or significance to fall be considered “public interest.” Nygard, Inc. v. Uusi-Kertuula (2008) 159 Cal.App.4th 1027, 1042 (discussing issues in a tabloid to be of public interest). Defendant Variety argues that the review falls under the third classification, widespread interest. Calibra alleges that they contracted with Defendant Variety because of its readership and that the partnership resulted in “an immediate success, with countless e-mail requests from both BAFTA and AMPAS and SAG members for DVD screener copies of Iron Cross. FAC 420. In so alleging, Plaintiff essentially admits that that motion picture was of widespread interest, Additionally, Defendant Variety reviews over 1,200 films a year. Gray Decl. 6. To be reviewed, the films must be playing for paid admission or sereened for the public, [a Defendant Variety has satisfied the first prong of the analysis, that the written publication in both the website and printed publication, falls under the anti-SLAPP. statute as itis speech in a public forum related to a public interest. Probability of Prevailing on Claims: Because Defendant has satisfied the first prong, itis incumbent upon Plaintiff Calibra to establish the probability that they will prevail on the claims asserted against Defendant Variety. See C-C.P. § 425.16(6). To do this, Plaintiff Calibra must demonstrate that the FAC is legally sufficient and supported by a prima facie showing of facts sufficient to support a favorable judgment if the evidence submitted is credited. Weil & Brown, supra at 7:1007, p. 7(I1)-38. The burden is on Plaintiff to produce evidence that would be admissible at trial to proffer a prima facie showing of facts supporting a judgment in plaintif's favor. Chaves v. Mendoza (2001) 94 Cal.App.4th 1083, 1087. Breach of Conteact aleThe standard elements of a claim for breach of contract are: (1) the contract, (2) plaintiff's performance or exeuse for nonperformance, (3) defendant's breach, and (4) damage. Wall Street Network, Ltd. v. N.Y. Times Co. (2008) 164 Cal.App-4th 1171, 1178. Plaintiff Calibra and Defendant Variety did have an agteement. FAC, Exhibit A. However, this agreement was for the screening and advertising of the movie “Iron Cross.” /d. Nowhere does the agreement mention anything regarding reviews. Plaintiff Calibra alleges that Defendant Variety breached the implied covenant of ‘200d faith and fair deating by allowing a film critic fo review the film and then publishing the negative review regarding the film. FAC 436. However, there is a complete separation between the advertising and editorial staff and advertising is not a factor in what films are reviewed or how they are reviewed. Gray Decl. §§4-5. The implied covenant of good faith and fair dealing “exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made.” Guz v. Bechtel Nat'l Inc, (2000) 24 Cal.dth 317, 349-350. Plaintiff Calibra docs not allege that Defendant Variety failed to perform any of the actual terms of the agreement that they attached to their FAC. Plaintiff further argues that the parties were partners and that the review was a conflict of that partnership. A partnership is “an association of two or more persons to carry on as coowners of a business for profit formed under Section 16202... the association of two or more persons to carry on as coowners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” Corporations Code § 16202(a). There is no indication that other than the campaign term “exclusive media partner,” the parties formed a partnership. The agreement was to print advertisements, there was nothing regarding sharing profits, See FAC, Exhibit A. Because Plaintiff has failed to show a probability of prevailing on their cause of action for breach of contract, Defendant's ‘motion is granted as to this cause of action, Negligence The elements of a negligence cause of action are duty, breach, causation and damages. County of Santa Clara v, Atlantic Richfield Co, (2006) 137 Cal. App. ath 292, 318, Plaintiff Calibra bases their negligence cause of action on the alleged breach of contract, FAC 4938-41. Plaintiff does not allege any individual facts outside the contract for this tort. [d. To recover on a cause of action for the tort of negligence, the acts giving rise to that tort must be independent of the contract or arise from conduct which is, intentional and intended to cause harm, unless the breach is a violation of social policy, otherwise, the recovery is through contract law. Erlich v. Menezes (1999) 2 Cal.4th 543, 552. Here, Plaintiff Calibra has not alleged any intentional conduct in their cause of ction separate from their cause of action for alleged breach of contract. Further, the review was not published until December 2009, two months after the alleged breach of duty, which Plaintiff has alleged to have existed. FAC $40. Plaintiff has not shown a probability that it will prevail on its negligence cause of action. ‘The motion is granted as to this cause of action. Fraud and Deceit The elements of fraud are: (1) misrepresentation (false repre concealment, or nondisclosure); (2) knowledge of falsity (or “scienter”defraud. i. to induce reliance; (4) justifiable relisnce; and (5) resulting damage. Charnay v. Cobert (2006) 145 Cal.App 4th 170, 184. With regard to fraud claims, pleadings must allege facts as to “'how, when, where, to whom, and by what means the representations were tendered." Stansfield v. Starkey (1990) 220 Cal. App. 3459, 73. ‘The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written, Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.dth 153, 157. Where a cause of action for fraud has been pleaded insufficiently, an anti-SLAPP ‘motion is properly granted. Philipson & Simon v. Gulsvig (2007) 154 Cal. App.4th 347, 362-364. Here, Plaintiff alleges “Defendants made various representations to Plaintiff” that were made “by both the Variety’s editorial and advertising departments.” FAC $443, 46. Plaintiff Calibra does not specifically allege any of the elements of the misrepresentations, knowledge of its alleged falsity, the intent to defraud, justifiable reliance or damages. The cause of action is inartfully pleaded and fails to state a cause of action against Defendant Variety. Because an anti-SLAPP motion is properly granted ‘upon failure to state a cause of action for fraud, Defendant Variety's motion is granted as to this cause of action. Philipson & Simon, 154 Col. App 4th at 362-364, Breach of Fiduciary Duty To establish a cause of action for breach of fiduciary duty, a plaintiff must demonsirate the existence ofa fiduciary relationship, breach of that duty and damages. Charnay, 14S Cal. App.Ath at 182. Plaintiff Calibra alleges a fiduciary relationship based on Defendant Variety being the “exclusive medis partner” and by entering into the contract on October 19, 2009, FAC ff14, 19. However, these only create contractual relationships. Plaintiff Calibra fails to allege any special relationship beyond that which ‘would give rise to a fiduciary one. Even if Plaintiff Calibra could allege a fiduciary relationship, itis based on the contract and Plaintiff has failed to establish that Defendant breached that contract. Since Plaintiff Calibra has not shown any probability of prevailing on this elaim, Defendant’s motion is granted, Unfair Business Practices ‘he Unfair Business Practices Act defines ‘unfair competition’ as any ‘unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading, advertising...” (§ 17200.) The Legislature intended this ‘sweeping language’ to include ‘anything that can properly be called a business practice and that at the same time is forbidden by law.”” Bank of the West v. Sup. Ct. (1992) 2.Cal.dth 1254, 1266. Here, Plaintiff alleges “the acis and conduct alleged herein above constituted a fraudulent, unlawful and/or unfair business practice within the meaning of Business and Professions Code Section 17200, et seq.” FAC 455 (emphasis added). These allegations are conchisory and vague. An unfair business practice allegation must state with particularity the Facts supporting the statutory claims. Khoury v. Maly’s of California, Inc, (1993) 14 Cal. App.ath 612, 619. “Without supporting facts demonstrating the illegality of a nule or regulation, an allegation that is in violation of a specific statute is purely conlusionary and insufficient to withstand demurrer.” People v. McKale (1979) 25 Cal.3d 626, 635. Although this motion is not a demurrer, the reasoning applies, thecause of action fails because Plaintiff Calibra has failed to comply with the pleading requirements: As with the fraud cause of action, when the UCL allegation fails to state a cause of action, an anti-SLAPP motion is properly granted. As Plaintiff Calibra has failed to state a cause of action or a probability that it would prevail on this claim, the motion is granted as (o this cause of action, Attorneys’ Fees: (AJ prevailing defendant on a special motion to strike shall be emtitled to recover his or her attorney's fees and costs.” CCP. § 425.16(c). Defendant Variety is the prevailing party on this special motion to strike. As such, itis entitled to its attorneys” fees and costs in bringing this motion. Upon receipt of the appropriate declarations, attomeys’ fees and costs will be granted TENTATIVE RULING Defendant Variety's special motion to strike pursuant to CCP. § 425.16 is granted in its entirety Upon receipt of the appropriate dectarations from Defendant Variety, attorneys” fees and costs will be granted. See C.CP. § 425.16(C). Counset for Defendant is ordered to give notice of ruling,we waawnee PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 1. At the time of service I was at least 18 years of age and not a party to this legal action. 2. My business address is 1925 Century Park East, Suite 500, Los Angeles, California 90067-2506. | served copies of the following documents (specify the exact title of each document served): NOTICE OF RULING ON DEFENDANT VARIETY’S SPECIAL MOTION TO STRIKE (C.C.P. §425.16) 4. I served the documents listed above in item 3 on the following persons at the addresses listed: Attorneys for Pl: Timothy D. McGonigle, Esq Telephone: (310) 478-7110 TIMOTHY D.MCGONIGLE PROF. CORP. Facsimile: (310) 260-9700 233 Wilshire Boulevard, Suite 700 Sante Monica, California 90401 5. a [J By personal service. 1 personally delivered the documents on the date shown ‘below to the persons at the addresses listed above in item 4, (1) For a party represented by an attomey, delivery was made to the attomey or at the attorney’s office by leaving the documents in an envelope or package clearly labeled to identify the attomey being served with a receptionist or an individual in charge of the office. (2) For a party delivery was made to the party or by leaving the documents at the party's residence between the hours of eight in the morning and six in the evening with some person not less than 18 years of age. b. By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 4 and (specify one) (1) (2 deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid on the date shown below, or (2) placed the envelope for collection and mailing on the date shown below, following our ordinary business practices. T am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, itis deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. Tam a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Los Angeles, California. c. (1) By overnight delivery. I enclosed the documents on the date shown below in an envelope or package provided by an overnight delivery carrier and addressed to the person at the addresses in item 4. I placed the envetope or package for collection and ‘ovemight delivery at an office or a regularly utilized drop box of the overnight delivery carrier Notice of Rulingawe YN d. (1) By messenger service. | served the documents on the date shown below by placing them in an envelope or package addressed to the person on the addresses {isted in item 4 and providing them to a professional messenger service for service. (A declaration by the messenger must accompany this proof of service or be Contained in the Declaration of Messenger below.) e. (] By fax transmission, Based on an agreement of the parties to accept service by fax transmission, I faxed the documents on the date shown below to the fax: ‘numbers of the persons listed in item 4. No error was reported by the fax machine that Lused. A copy of the fax transmission, which I printed out, 1s attached. f. (] By e-mail or electronic transmission, Based on an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent on the date shown below to the e-mail addresses of the persons listed in item 4. did not receive within a reasonable time after the transmission any electronic ‘message or other indication thatthe transmission was unsuccessful 6. I served the documents by the means described in item $ on April 13, 2010. I declare under penalty of perjury under the laws of the State of California that the foregoing is tcue and correct 4030 Joy Ingogtia aol Date (EVPE O PRINT NAME) Speyer cCUARANT) persed : a. a4. TAVIS Wovice of Ruling