Electronically FILED by Superior Court of California, County of Los Angeles on 11/20/2020 01:32 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by J. Lara,Deputy Clerk

1 J. ALEX LITTLE – State Bar No. 247883

alex.little@burr.com
2 BURR & FORMAN LLP
222 2nd Ave S, Suite 2000
3
Nashville, Tennessee 37201
4 Telephone: 615-724-3200
Facsimile: 615-724-3290
5
Attorney for Defendant
6 Gabriel Tigerman
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF LOS ANGELES
9
Case No. 20STCV36391
10 Assigned to the Hon. Monica Bachner
BRYAN CALLEN, an Individual,
11 DEFENDANT GABRIEL TIGERMAN’S
12 Plaintiff, NOTICE OF MOTION AND SPECIAL
MOTION TO STRIKE COMPLAINT
13 v. PURSUANT TO C.C.P. § 425.16;
MEMORANDUM OF POINTS AND
14 GABRIEL TIGERMAN, an Individual, AUTHORITIES; DECLARATION OF
and DOES 1-10, ZACHARY LAWSON WITH
15 EXHIBITS 1-22; DECLARATION OF
16 Defendants. GABRIEL TIGERMAN;
DECLARATION OF KATHERINE
17 FIORE TIGERMAN; DECLARATION
OF MICHAEL PARKS;
18 DECLARATION OF NATHAN
HABBEN.
19
20
Date: January 5, 2021
21 Time: 9:30 a.m.
Dep’t: 71
22 Res. # 665459459433
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SPECIAL MOTION TO STRIKE
1 TO THE HONORABLE COURT, PLAINTIFF, AND COUNSEL:
2 PLEASE TAKE NOTICE that on January 5, 2021, at 9:30 a.m. or as soon thereafter as

3 counsel may be heard in Department 71 of the Los Angeles County Superior Court, the Hon.
Monica Bachner, presiding, located at 111 North Hill Street, Los Angeles, California 90012,
4
Defendant Gabriel Tigerman (“Tigerman”) will and hereby does move this Court for an order,
5
pursuant to California Code of Civil Procedure § 425.16 (“Section 425.16” or the “anti-SLAPP1
6 statute”), striking and dismissing, in whole or, alternatively, in part, the complaint and its sole
7 cause of action for intentional interference with contract filed by plaintiff Bryan Callen (“Callen”)
8 with prejudice and without leave to amend.2

9 Callen’s cause of action for intentional interference with contract falls within the scope of
section 425.16(e), and, as such, the burden shifts to Callen to establish, with admissible evidence,
10
a probability that he will prevail on his cause of action, and all parts thereof. See C.C.P.
11
§ 425.16(b)(1).3 Callen cannot satisfy his burden.
12 Tigerman therefore requests that the Court strike and dismiss, with prejudice and without
13 leave to amend, Callen’s entire complaint, or, alternatively, portions thereof, for the following
14 separate and independent reasons:

15 • The complaint is legally deficient because it fails to allege that Tigerman

committed an independently wrongful act separate from the alleged contract
16
interference;
17
• The complaint is legally deficient because it fails to allege that Tigerman made
18
the allegedly false statements at issue with “actual malice;”
19 • Callen cannot meet his evidentiary burden to show a probability of prevailing on
20 the claim because he cannot establish that Tigerman acted wrongfully;
21 • Callen cannot meet his evidentiary burden to show a probability of prevailing on
22 the claim because he cannot establish that Tigerman acted with “actual malice;”
and
23

24

25 1
SLAPP is an acronym for “strategic lawsuit against public participation.” Equilon Enters. v. Consumer
Cause, Inc., 29 Cal. 4th 53, 57 (2002).
26
2
Callen may not amend his complaint in the face of this anti-SLAPP motion. See, e.g., Hansen v. Calif. Dep’t
27 of Corrections and Rehab., 171 Cal. App. 4th 1537, 1547 (2008).
3
28 The Court may strike portions of a complaint pursuant to the anti-SLAPP statute. Baral v. Schnitt, 1 Cal. 5th
376, 385-392 (2016)
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SPECIAL MOTION TO STRIKE
1 • Callen cannot meet his evidentiary burden to show a probability of prevailing on
2 the claim because he cannot establish that Tigerman’s conduct was a substantial

3 factor in causing the harm that he alleges.

This Motion is based on: this Notice; the attached Memorandum of Points and Authorities;
4
the attached Declaration of Zachary Lawson with Exhibits 1-22; the attached Declaration of
5
Gabriel Tigerman; the attached Declaration of Katherine Fiore Tigerman; the attached Declaration
6 of Michael Parks; the attached Declaration of Nathan Habben; all related pleadings and documents
7 on file; and such further evidence or argument as may be presented at the hearing on this Motion.
8 Tigerman also reserves the right to request that the Court enter an award of attorneys’ fees

9 and costs pursuant to Code of Civil Procedure § 425.16(c).4

10
11 DATED: November 20, 2020 BURR & FORMAN LLP

12 By: /s/ J. Alex Little

13 J. ALEX LITTLE
Counsel for Gabriel Tigerman
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27 4
If this Motion, or any part thereof, is granted, Tigerman intends to file a noticed motion to recover attorneys’
28 fees and costs and/or a costs memorandum. C.C.P. § 425.16(c); American Humane Ass’n v. Los Angeles Times
Communications LLC, 92 Cal. App. 4th 1095, 1103 (2001).
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SPECIAL MOTION TO STRIKE
1 TABLE OF CONTENTS
2 Memorandum of Points and Authorities

3 TABLE OF AUTHORITIES .....................................................................................ii

I. INTRODUCTION .....................................................................................................1
4
II. RELEVANT BACKGROUND AND PERTINENT FACTS ...................................2
5
III. THE COMPLAINT VIOLATES THE ANTI-SLAPP ACT .....................................6
6 A. The Single Claim in the Complaint Involves an Issue of Public Interest ............6
7 B. Callen Cannot Establish a Probability of Prevailing on His Claim .....................7
8 1. The complaint is legally deficient .........................................................8

9 a. The complaint fails to allege an independently wrongful act ......8

b. The complaint fails to allege “actual malice” ..............................9
10
2. Callen cannot meet his evidentiary burden ...........................................11
11
a. Callen cannot establish that Tigerman acted wrongfully .............11
12 b. Callen cannot establish that Tigerman acted with
13 “actual malice” .............................................................................12
14 c. Callen cannot establish that Tigerman caused a breach...............12

15 IV. CONCLUSION ..........................................................................................................14

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SPECIAL MOTION TO STRIKE
1 TABLE OF AUTHORITIES
2 CASES

3 American Humane Ass’n v. Los Angeles Times Communications LLC,

92 Cal. App. 4th 1095 (2001). ............................................................................................ 3
4
Augustine v. Trucco, 124 Cal. App. 2d 229 (1954) ...................................................................... 12
5
Baral v. Schnitt, 1 Cal. 5th 376 (2016) ................................................................................... 1, 6, 7
6 Blatty v. New York Times Co., 42 Cal. 3d 1033 (1986) ................................................................. 9
7 Crown Imports, LLC v. Superior Court, 223 Cal. App. 4th 1395 (2014) ...................................... 8
8 Dickens v. Provident Life And Acc. Ins. Co., 117 Cal. App. 4th 705 (2d Dist. 2004) .................... 5

9 Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002) ................................................... 2

Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375 (2004) ............................................... 12
10
Garment Workers Center v. Superior Court, 117 Cal. App. 4th 1156 (2d Dist. 2004) .................. 6
11
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .................................................................. 10, 11
12 Hansen v. Calif. Dep’t of Corrections and Rehab., 171 Cal. App. 4th 1537 (2008) ...................... 1
13 Hecimovich v. Encinal Sch. Parent Teacher Org., 203 Cal. App. 4th 450 (2012) ..................... 6, 7
14 Ixchel Pharma, LLC v. Biogen, Inc., 9 Cal. 5th 1130, 1148 (2020) .......................................... 8, 9

15 Jackson v. Mayweather, 10 Cal. App. 5th 1240 (2017) .................................................................. 6

Jennie Rivera Enter., LLC v. Latin World Entm’t Hold., Inc., 36 Cal. App. 5th 766 (2019) ...... 12
16
Khawar v. Globe Int’l, Inc., 19 Cal. 4th 254 (1998) ..................................................................... 12
17
Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) ......................................... 8
18
Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156 (2003) ............................................. 6
19 Manzari v. Associated Newspapers Ltd., 830 F.3d 881 (9th Cir. 2016) ....................................... 11
20 Masson v. New Yorker Mag., Inc., 501 U.S. 496 (1991) .............................................................. 10

21 McKay v. Retail Auto. S.L. Union No. 1067, 16 Cal. 2d 311 (1940) .................................... 10, 11
Moore v. Shaw, 116 Cal. App. 4th 182 (2d Dist. 2004).................................................................. 6
22
Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027 (2008) ...................................................... 6
23
Roth v. United States, 354 U.S. 476, 484 (1957) ......................................................................... 10
24
Semole v. Sansoucie, 28 Cal. App. 3d 714 (1972) ......................................................................... 8
25 South Sutter LLC v. LJ Sutter Partners, L.P., 193 Cal. App. 4th 634 (2011)................................ 7
26 Terry v. Davis Community Church, 131 Cal. App. 4th 1534 (3d. Dist. 2005) .............................. 7
27 STATUTES

28 California Code of Civil Procedure § 425.16. ...................................................................... passim

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SPECIAL MOTION TO STRIKE
1 I. INTRODUCTION
2 Bryan Callen raped Gabriel Tigerman’s wife. A famous comedian and actor, Callen is using

3 his financial resources to bring this lawsuit to block Tigerman from telling other people about the rape,
or expressing his opinion that rapists like Callen do not belong on stage, on television, or in the movies.
4
California has enacted an “anti-SLAPP” statute to deal with frivolous, retaliatory lawsuits just like this
5
one. By this motion, Tigerman asks the Court to strike the entire complaint.
6 On July 31, 2020, twenty years after Callen raped Katherine Fiore Tigerman (“Fiore
7 Tigerman”), the Los Angeles Times (the “Times”) reported the rape and at least two other acts of
8 sexual misconduct by Callen on its front page. Ex. 1; Lawson Decl. at ¶ 5. Katherine’s husband,

9 Gabriel Tigerman, promoted the heavily vetted article on social media and sent messages to people in
the entertainment industry about the reports. Tigerman’s private and public speech expressed his
10
genuine concerns that Callen’s presence in the entertainment industry is dangerous to women and that
11
promoting Callen’s work sends a signal that sexual misconduct is condoned by decisionmakers in the
12 industry. Tigerman’s criticism of Callen and those who promote him is speech protected by the First
13 Amendment. Nonetheless, Callen has sued Tigerman, claiming that it is “illegal” and “wrong” for him
14 to speak to people that do business with Callen about the widely reported allegations, Compl. at ¶ 2,

15 and Callen baselessly blames Tigerman (rather than the widely disseminated reports of his own sexual
misconduct) for his agents dropping him and for two comedy clubs canceling his shows.
16
Callen’s lawsuit is an act of legal thuggery that should be dismissed under the anti-SLAPP
17
statute. The anti-SLAPP statute is designed to curtail “a disturbing increase in lawsuits brought
18
primarily to chill the valid exercise of the constitutional right of freedom of speech and petition.”
19 C.C.P. § 425.16(a). That is exactly what Callen has attempted to do here.
20 Callen’s single claim of intentional interference with contractual relations has no legal merit.

21 The complaint should be dismissed because it fails to allege that Tigerman committed an
independently wrongful act or acted with “actual malice,” when both of those elements are necessary
22
to sustain his cause of action. Callen also cannot meet his burden to show he can prove either of those
23
elements or the additional element that Tigerman’s speech was a substantial factor that caused his
24
agents and the comedy venues to drop him. The reason is obvious: That is not what happened. Callen’s
25 agents and the comedy clubs did not take action because Tigerman sent them emails and tweets; they
26 acted as they did because Callen was credibly accused of rape and other sexual misconduct.
27 Tigerman has a First Amendment right—and moral duty—to speak out against the man who

28 raped his wife. This Court should vindicate that right by striking Callen’s complaint.

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SPECIAL MOTION TO STRIKE
1 II. RELEVANT BACKGROUND AND PERTINENT FACTS
2 At the time of the rape, Callen was, by his own admission, “a naïve, ignorant, arrogant little

3 [expletive].” Ex. 2. at 1, ln. 25. Callen and Fiore Tigerman met in 1994. See Ex. 1 at 5. The Times
article detailed how they became friends and how, after Fiore Tigerman booked a television pilot,
4
Callen invited her to dinner to celebrate. Id. at 6. After that dinner, Fiore Tigerman felt “nauseated and
5
disoriented,” but she drove with Callen to his house anyway. Id. at 6-7. Once there, Callen told Fiore
6 Tigerman that she “could be a Playboy Playmate” and pushed her down on his bed. Id. “As he ran his
7 hands over her body, . . . she kept saying “no.” Id. at 7 (emphasis added). In response, Callen said,
8 “‘You’re gonna love this. We’re just going to get this out of the way. . . .’” Id. (emphasis added).

9 After some time, Fiore Tigerman “ceas[ed] her pleading and remaining silent.” Id. After the encounter
was over, she immediately began crying. . . . Noticing her tears, [Callen] tried to calm her down[,
10
saying,] ‘Aw, come on. What am I, a big bad rapist? I’m not a big bad rapist.” Id. at 7-8. He went
11
on, telling her, “‘Come on, you’re gonna be my girlfriend now. We needed to get this out of the way.’”
12 Id. at 8. After the rape, Fiore Tigerman called her best friend and then her boyfriend [at the time], both
13 of whom remembered her distraught phone calls and corroborated [her] account.” Id. at 9. Fiore
14 Tigerman told her husband, the defendant, about the assault early in their courtship in 2006. Tigerman

15 Decl. at ¶ 3. Notably, Callen admitted to the Times that he had sex with Fiore Tigerman, claiming that
she “agreed to have sex” with him. Ex. 1 at 8.
16
Callen’s claim of consent is dubious because, by his own admission, he does not believe that
17
“No” means “No.” On an episode of his podcast, broadcast in 2016, Callen acknowledged that he
18
“do[es]n’t listen to” women when they say “No” nor does he “take [‘No’] seriously.” Ex. 3 at 6, ln 6-
19 10. On another podcast, Callen admitted that he previously had ignored a woman’s explicit expression
20 of non-consent, stating that he intends to “break the[ir] walls down” when they say “No” to a sexual

21 advance. Ex. 4 at 2, ln 16. He believes that “men are basically animals,” and he is not “ashamed of
[his] sex drive[] or even [his] aggression.” Ex. 5 at 2. Callen claims that “the data proves that women
22
like . . . that traditional, masculine, aggressive, take-no-prisoners attitude sexually.” Ex. 3 at 3. Put
23
more bluntly, he told an ex-girlfriend that women have a “biological, primal desire to be raped.” Ex. 1
24
at 15. This is not loose talk; Callen’s friends describe his actions as being consistent with the views he
25 so often espouses.
26 Even before the Times article, there were multiple stories in the public domain about Callen’s
27 sexual misbehavior. One of Callen’s good friends, comedian Whitney Cummings, stated on an episode

28 of his podcast that Callen previously had exposed himself to her and was the type of guy who was not

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SPECIAL MOTION TO STRIKE
1 “going to take ‘no’ for an answer.” Ex. 3 at 7 (retelling how, when she was driving, she looked over
2 at Callen to find that “[his penis] was out”); Ex. 1 at 11. In fact, Callen has exposed himself to someone

3 who was not expecting it more than once; earlier this year, Callen exposed his genitals and shoved
them in the face of the co-host of his podcast. Ex. 6 at 1, ln. 17; Ex. 6a. This incident was recorded on
4
video, and Callen proudly broadcast it on the internet. Id. More disturbingly, another famous comedian
5
and Callen friend, Joe Rogan, told a story on his podcast about how Callen ejaculated inside a woman
6 without her consent, Ex. 7 at 1, ln. 16-20, a practice known as nonconsensual insemination, which
7 some countries now regard as a form of rape. Tigerman Decl. at ¶ 13. When Rogan confronted Callen
8 about the incident, which involved Rogan’s ex-girlfriend, Callen replied, “Whoops.” Ex. 7 at 1, ln. 25.

9 The front-page Times article about Callen also described previously undisclosed accusations
of sexual misconduct by Callen involving two other women. See id. This included a report that he had
10
forced himself on a woman at an American Apparel clothing store in Pittsburgh in 2009, id. at 9-10,
11
and that he attempted to coerce a female comedian to perform oral sex on him by offering her stage
12 time, id. at 12-13. Given Callen’s fame, the misconduct reported by the Times was covered by many
13 news organizations, including People magazine, Ex. 8, Fox News, Ex. 9, and Variety, Ex. 10.
14 As Callen’s misconduct became more widely known, primarily due to these news reports,

15 many people—including other famous comedians and celebrities—made public statements

condemning Callen and supporting the women who had reported Callen’s misbehavior. Ex. 11;
16
Tigerman Decl. at ¶¶ 22-32. Some of the people who publicly condemned Callen expressed the opinion
17
that he should not be allowed to continue to perform at comedy venues due to the credible reports of
18
rape and sexual misconduct contained in the Times story. Ex. 13. Perhaps the most vocal of these was
19 Jen Kirkman, a comedian who organized a campaign on Twitter to criticize comedy “clubs who are
20 booking [Callen].” Id. at 2. Tigerman joined Kirkman’s effort. In a public tweet to five comedy clubs,

21 Tigerman wrote, “[b]y booking [Callen] you are sending the very clear message that you support
sexual abusers and don’t believe victims despite the highly-vetted/thoroughly researched article in the
22
[Times]. Noted.” Ex. 13 at 4.
23
Tigerman’s public statements on Twitter—a clearly valid exercise of his First Amendment
24
rights—were genuine. He believes his wife is telling the truth, and he believes that the Times’s
25 reporting of Callen’s misconduct is accurate. See Tigerman Decl. at ¶¶ 16-21. Tigerman also believes
26 that Callen’s career should not be supported by powerful people in the industry because, as long as
27 Callen continues touring, more women will be put at risk. Id. at ¶ 15. Tigerman has repeatedly

28 expressed these views, making multiple public and private statements defending his wife, condemning

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SPECIAL MOTION TO STRIKE
1 her rapist, and encouraging those who support Callen being in public life to reconsider their position.
2 For example, after the Times article was published, Tigerman expressed his concerns to Callen’s agent

3 at CAA in an entirely level-headed and reasonable email asking whether the agent continued to
represent Callen. See Compl. at ¶ 19.
4
Callen’s lawsuit stems entirely from this email and other speech that is protected by the First
5
Amendment. See, e.g., Compl. at ¶¶ 19, 20, 23, 24, 25 (citing Tigerman’s “email,” “messages,” and
6 “communications”). In his complaint, Callen described Tigerman’s email as a “demand” that CAA
7 drop him as a client. Compl. at ¶ 19. In the eyes of Callen, who admits to unexpectedly exposing his
8 genitals to colleagues on multiple occasions, the unremarkable email that Tigerman sent was

9 “harassing and intimidating,” Compl. at ¶ 34.

About three weeks after the Times ran its story, Callen’s agents at CAA and Innovative Artists
10
dropped him as a client. Ex. 15. Contrary to Callen’s baseless claims, their decision had nothing to do
11
with Tigerman’s email and was consistent with other consequences Callen faced after the Times article
12 was published, which included him being forced out of his popular podcast. Ex. 15 at 2
13 The Times story about Callen’s misconduct, the public outcry against Callen, the consequences
14 that resulted, and his retaliatory lawsuit against Tigerman do not take place in a vacuum. They exist

15 within a larger debate about sexual harassment and abuse in the entertainment industry. See Tigerman
Decl. at ¶¶ 39-57. And they reflect both the key role of the press in identifying abusers and the ways
16
that abusers attempt to leverage their financial power to silence victims and their allies through threats
17
and acts of judicial retaliation. See id. By hauling Tigerman into court, Callen has stuck to this well-
18
worn script and validated the concerns of victims and their allies.
19 Callen’s lawsuit is not designed to win on the merits—it has no merit. It is designed to let
20 Tigerman (and anyone else who does not want to become one of Callen’s “Doe Defendants”) know

21 that there will be financial consequences for speaking out against him. This is exactly what Callen
promised in the days after the Times story was published when “he posted a video on his Instagram
22
account promising fans he would not ‘lay low’ or ‘post a statement and disappear.’” Ex. 15 at 2. In
23
Callen’s telling, the Times article was an “execut[ion] by an ambitious journalist” whose publication,
24
the Times, could “make money off an allegation” like the ones leveled at him. Ex. 16 at 5, ln. 6, 14.
25 Notably, Callen has not sued either the reporter or the Times.
26 Callen sees himself as “the person to stand up and at least talk about . . . the fact that we are
27 losing due process.” Ex. 16 at 2, ln 11. This position has nothing to do with the law. As legal

28 commentators have explained, the “principle [of due process] is triggered only when the government

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SPECIAL MOTION TO STRIKE
1 itself acts to deprive an individual of . . . rights. As a legal matter, it does not apply to private
2 businesses, much less in the court of public opinion.” Lenora Lapidus and Sandra Park, The Real

3 Meaning of Due Process in the #MeToo Era, THE ATLANTIC, Feb. 18, 2020, available at
https://www.theatlantic.com/politics/archive/2018/02/due-process-metoo/553427/ (last accessed
4
Nov. 15, 2020). As a result, to justify the present lawsuit, Callen contorts Tigerman’s mundane tweets
5
and emails into an “ongoing campaign to destroy [his] livelihood . . . through threats, harassment, and
6 intimidation . . . .” Compl. at ¶ 1. This description, like this lawsuit, does not hold up to close
7 inspection.
8 In his lawsuit, Callen denies that he raped Fiore Tigerman and, then, asserts that he is the “real”

9 victim. Compl. at ¶¶ 1, 3. To that end, he pleads that he “simply seeks to preserve his ability to work
and earn a living.” Id. at ¶ 3. Of course, Tigerman has not prevented Callen from earning a living.
10
According to his website, Callen remained scheduled to perform at least thirteen shows at four separate
11
comedy clubs between October 29, 2020 and February 27, 2021. Ex. 18. As recently as October 30,
12 2020, he bragged in tweets published to his Twitter account that his show that night in Dallas was
13 “sold out.” Ex. 19 at 1. He similarly claimed in a recent interview that, after the Times story ran, he
14 received “12,000 comments [from fans] . . . and all of them were incredibly supportive.” Ex. 16 at 5.

15 The process of denying a sex assault accusation, attacking the victim, and then claiming to be
the “real” victim is not unique to Callen. It has a name in the social science literature: DARVO, which
16
stands for “Deny, Attack, and Reverse Victim and Offender.” See Jennifer J. Freyd, “What is
17
DARVO?,” available at http://pages.uoregon.edu/dynamic/jjf/defineDARVO.html (last accessed
18
Nov. 15, 2020). This is precisely what Callen is attempting to do through this lawsuit. In a statement
19 to the press that he made when he filed this suit, Callen said that he “take[s his] innocence, reputation
20 and right to due process very seriously, and [he] will not stand by while someone tries to destroy [his]

21 livelihood over something [he] did not do.” Ex. 20 at 3.

As the Court is well aware, this lawsuit has nothing to do with whether or not Callen is innocent
22
of rape, it does not seek to vindicate his reputation, and “due process” rights have no bearing on the
23
contracts he asserts somehow were interfered with. If public reporting and commentary protected by
24
the First Amendment affects Callen’s livelihood, he can use his First Amendment rights to counter
25 that reporting and commentary. And he has done exactly that. Ex. 15 at 1-2; Ex. 16; Ex. 20 at 3. But
26 he cannot use the courts to silence speech he dislikes. That is the thrust of his SLAPP suit; this Court
27 should strike it in its entirety.

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1 III. THE COMPLAINT VIOLATES THE ANTI-SLAPP ACT
2 A strategic lawsuit against public participation (“SLAPP suit”) is a meritless suit filed

3 primarily to chill the defendant’s exercise of First Amendment rights. Dickens v. Provident Life And
Acc. Ins. Co., 117 Cal. App. 4th 705 (2d Dist. 2004). SLAPP plaintiffs do not intend to—nor often—
4
succeed on the merits, but they achieve the intended result by abusing the litigation process to punish
5
people who speak out against them and chill those who also may be inclined to do so.
6 California has passed an anti-SLAPP statute designed to address the rise in SLAPP suits by
7 providing a fast and inexpensive unmasking and dismissal of the SLAPP’s. Garment Workers Center
8 v. Superior Court, 117 Cal. App. 4th 1156, 1161 (2d Dist. 2004). California’s anti-SLAPP statute

9 covers suits against a person “arising from any act of that person in furtherance of the person’s right
of petition or free speech under the United States Constitution or the California Constitution in
10
connection with a public issue.” Cal. Civ. Proc. Code § 425.16(b)(1).
11
Section 425 allows for defendants to file an anti-SLAPP motion when faced with such a
12 lawsuit. A defendant’s filing of an anti-SLAPP motion prompts the court to engage in a two-step
13 process to determine whether the lawsuit should be allowed to go forward. Moore v. Shaw, 116 Cal.
14 App. 4th 182 (2d Dist. 2004). First, the court decides whether the defendant has made a threshold

15 showing that the challenged cause of action is one arising from protected activity. Id. Second, if the
court finds that the threshold showing is met, the burden shifts to the plaintiff to demonstrate a
16
probability of prevailing on the claim. Id. If the plaintiff does not meet its burden, the claim must be
17
stricken. Baral v. Schnitt, 1 Cal. 5th 376, 386-392 (2016).
18
A. The Single Claim in the Complaint Involves an Issue of Public Interest.
19 To meet the threshold first step of the anti-SLAPP procedure, the defendant must establish that
20 the challenged claim is connected to a “public issue” as defined by C.C.P. § 425.16(e). There are four

21 ways that a claim can show this under the statute. The broadest, section 425.16(e)(4), “provides a
catch-all for ‘any other conduct in furtherance of’” speech or petition rights in connection with issues
22
of public interest. Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156, 164 (2003). “[A]n issue
23
of public interest” within the meaning of the statute “is any issue in which the public is interested.”
24
Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008). Like the SLAPP statute itself, the
25 question whether something is an issue of public interest must be “construed broadly.” Id. at 464-65.
26 In addition to the topic of the speech, the subject of the speech is important, as there is a public interest
27 in persons who are “in the public eye.” Jackson v. Mayweather, 10 Cal. App. 5th 1240, 1252-55

28

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1 (2017). A matter of public interest also “may encompass activity between private people.” Hecimovich
2 v. Encinal Sch. Parent Teacher Org., 203 Cal. App. 4th 450, 465 (2012) (citations omitted).

3 When evaluating the first prong of the anti-SLAPP test, courts look for “the principal thrust or
gravamen of the plaintiff’s cause of action.” Id. (citations omitted). “The ‘critical consideration’ is
4
what the cause of action is ‘based on,’” and whether the corresponding conduct and communications
5
were connected to an issue of public interest. Id. at 467. This standard is met here, because all of the
6 conduct and communications that Callen’s claim is “based on” are connected to issues of public
7 interest. Compl. at ¶¶ 19, 20, 23, 24, 25 (citing Tigerman’s “email,” “messages,” and
8 “communications” about sexual assault allegations against Callen, who is a celebrity). Both the subject

9 of the speech (the defendant, who is a famous actor and comedian) and the topic of the speech
(allegations of sexual misconduct and support for sexual predators) are matters of public interest.
10
Perhaps this is best seen in the fact that the precipitating event that led to Tigerman’s speech was an
11
article in the Times—a national newspaper—about this defendant and this issue. Compl. at ¶ 19 (“I
12 am sure you are aware of the heavily vetted rape and sexual assault allegations against [Callen] detailed
13 on the front page of the LA Times a few weeks ago.”)
14 This case falls squarely within prior precedents. California appellate courts previously have

15 held that similar cases satisfied the “public interest” prong of the anti-SLAPP statute. See Hecimovich,
203 Cal. App. 4th at 467-69; Terry v. Davis Community Church, 131 Cal. App. 4th 1534, 1538 (3d.
16
Dist. 2005) (finding allegations that church youth group leaders had an “inappropriate sexual
17
relationship with a minor female” to be matters of “public interest” under the anti-SLAPP law). Terry
18
is directly on point, as it determined that communications involving allegations of sexual misconduct
19 “clearly involved issues of public interest.” 131 Cal. App. 4th at 1547. Notably, the court held that it
20 need not be proven that a person “is in actuality a sexual predator in order for the matter to be a

21 legitimate subject of discussion.” Id. This reasoning applies with equal force here. Tigerman’s
statements were about a matter of public interest. And, as the continued press coverage demonstrates,
22
the public remains interested.
23
B. Callen Cannot Establish a Probability of Prevailing on His Claim.
24
Because the first step of the anti-SLAPP analysis is met, the burden shifts to Callen to establish
25 a probability of prevailing on his claim. Baral, 1 Cal. 5th at 384; C.C.P. § 425.16(b)(1). “[T]he mere
26 existence of a controversy is insufficient to overcome an anti-SLAPP motion;” rather, the plaintiff
27 “must introduce substantial evidence that would support a judgment of relief made in [his] favor.”

28 South Sutter LLC v. LJ Sutter Partners, L.P., 193 Cal. App. 4th 634, 670 (2011).

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SPECIAL MOTION TO STRIKE
1 Callen cannot succeed because (1) his complaint fails to state a claim, and (2) even if the
2 complaint were properly pleaded, he cannot meet his evidentiary burden under the statute.

3 1. The complaint is legally deficient.

With respect to the first obstacle, Callen’s complaint is legally deficient in two separate ways,
4
either of which bars his claim. In order to survive, Callen’s claim for intentional interference with
5
contractual relations must allege that (i) Tigerman committed a wrongful act, and (ii) Tigerman acted
6 with “actual malice.” These elements are necessary because the contracts are at-will and the gravamen
7 of his claim is the alleged injurious falsehood of Tigerman’s statements. Because Callen did not make
8 either allegation in his complaint, his claims fail as a matter of law, and he fails to meet his burden.

9 a. The complaint fails to allege an independently wrongful act.

Where, as here, a plaintiff alleges that a defendant has intentionally interfered with an at-will
10
contract, the plaintiff also must plead and prove that the defendant’s conduct is independently
11
wrongful. Ixchel Pharma, LLC v. Biogen, Inc., 9 Cal. 5th 1130, 1148 (2020) (holding that “to state a
12 claim for interference with an at-will contract by a third party, the plaintiff must allege that the
13 defendant engaged in an independently wrongful act”). This means that “a plaintiff must plead and
14 prove that the conduct alleged to constitute the interference was independently wrongful, i.e., unlawful

15 for reasons other than that it interfered . . . .” Crown Imports, LLC v. Superior Court, 223 Cal. App.
4th 1395, 1404 (2014) (cleaned up). More specifically, “an act is independently wrongful if it is
16
unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other
17
determinable legal standard.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1159
18
(2003).
19 Callen did not plead that Tigerman committed any independently wrongful act; he only
20 complains of the alleged interference itself. His complaint cites no constitutional, statutory, regulatory,

21 common law, or other determinable legal standard that Tigerman violated. Cf. id. Without such an
allegation, Ixchel Pharma directs that the claim must fail. 9 Cal. 5th at 1148. And there is good reason
22
for this, as an alternate rule “may expose routine and legitimate” activities to litigation. Id. This case
23
proves the point. Here, Tigerman simply exercised his constitutional right to speak on a matter of
24
public concern. If a company or individual chose to terminate an at-will contract in response to
25 Tigerman’s lawful speech, there is nothing in California tort law that renders the speech actionable.
26 After Ixchel Pharma, there are two different sets of elements for claims of intentional
27 interference depending on the nature of the contract; one requires an independently wrongful act, and

28 one does not. As a result, to properly plead his claim, Callen should have attached the contracts or

8
SPECIAL MOTION TO STRIKE
1 described their nature. See, e.g., Semole v. Sansoucie, 28 Cal. App. 3d 714, 719 (1972) (requiring a
2 plaintiff to plead facts “sufficient to acquaint a defendant with the nature, source and extent of his

3 cause of action”). He has not done that and, instead, hardly says anything substantive about the
contracts at all. See Compl. at ¶¶ 13, 14, 24, 31. What he does allege, however, makes clear that the
4
four contracts at issue are at-will. For example, the contracts with CAA and Innovative Artists were
5
intended to allow him “[t]o procure work as a stand-up comic” and “[t]o procure acting roles.” Id. at
6 ¶¶ 13-14. These are industry standard contracts that can be terminated at any time, by either party, for
7 any reason. Habben Decl. at ¶ 5-6. As such, they are at-will contracts. Cf. Ixchel Pharma, 9 Cal. 5th
8 at 1147-48 (describing such contracts). His contracts with the two comedy venues are the same. We

9 know this because Callen admits not only that the venues could cancel the contracts on their own,
demonstrating their at-will nature, but also that they actually did so. Compl. at ¶ 25 (describing how
10
the clubs “cancelled [the] contracts”).
11
Because the complaint fails to allege any independently wrongful act, Callen cannot prevail on
12 his sole claim of intentional interference with contractual relations, and his entire complaint must be
13 stricken.
14 b. The complaint fails to allege “actual malice.”

15 Callen’s sole claim also fails as a matter of law—for a second independent reason—because it
does not allege that Tigerman acted with “actual malice” when he spoke to the agencies and comedy
16
venues about Callen’s sexual misconduct. This allegation is necessary because, when a lawsuit claims
17
that a defendant damaged a plaintiff by saying something false about him, the First Amendment is
18
implicated, and its protections apply. Blatty v. New York Times Co., 42 Cal. 3d 1033, 1042-43 (1986)
19 (holding that the First Amendment protects “all claims whose gravamen is the alleged injurious
20 falsehood of a statement” regardless of the claim’s label).

21 Blatty controls this case because the complaint alleges that (i) Tigerman’s statements about
Callen’s sexual misconduct are false, and (ii) those allegedly false statements harmed Callen by
22
leading his agents and comedy venues to decline to do further business with him. Compl. at ¶¶ 1, 2,
23
16-21, 34. As Callen puts it, the gravamen of his claim is that Tigerman undertook a campaign to
24
destroy his livelihood that was “[d]riven by the false allegation that [he] assaulted [Tigerman’s] wife
25 . . . .” Compl. at ¶ 1; id. at ¶ 17 (denying the assault and describing as “false” all “of the allegations of
26 [his] misconduct published in the [Times]”). To make the connection even more clear, Blatty was a
27 case that precluded a claim of intentional interference with prospective economic advantage on First

28 Amendment grounds. 42 Cal. 3d at 1045; cf. Ixchel Pharma, 9 Cal. 5th at 1144-45 (demonstrating the

9
SPECIAL MOTION TO STRIKE
1 similarity of that cause of action with the sort of interference alleged in claims involving at-will
2 contracts like the ones at issue here).

3 Further, Callen’s claim depends on the falsity of the rape and sexual misconduct allegations
because truthful speech cannot be tortious in this context. See McKay v. Retail Auto. S.L. Union No.
4
1067, 16 Cal. 2d 311, 319 (1940) (cited in Della Penna v. Toyota Motor Sales, 11 Cal. 4th 376 (1995)
5
(Mosk, J., concurring)). In McKay, the California Supreme Court reasoned that “picket[ing] peacefully
6 and truthfully” cannot establish the tort of intentional interference with prospective economic
7 advantage because the right to engage in such speech is “a lawful means of advertising . . . grievances
8 to the public” that is guaranteed by the Constitution. 16 Cal. 2d at 319; see also Roth v. United States,

9 354 U.S. 476, 484 (1957) (identifying “the advancement of truth” as a foundational goal of the right
to free speech). Consider the alternative. It would be unreasonable for tort law to render a person liable
10
for publicizing a true statement—say, “Harvey Weinstein is a rapist”—because that statement
11
subsequently led to the termination of a contractual relationship. Such a rule would render any
12 “freedom” of speech meaningless.
13 So, to sustain his claim, Callen must allege that Tigerman’s speech falls outside the scope of
14 the First Amendment’s protection. Here, that means that Callen must allege that Tigerman made his

15 statements with “actual malice.” Masson v. New Yorker Mag., Inc., 501 U.S. 496, 509-10 (1991). And
Callen has not pleaded anything of the sort. Nowhere in the complaint does Callen allege that
16
Tigerman knew the statements he was making about Callen’s sexual misconduct were false, let alone
17
that he acted with “actual malice” in making them. See id. at 520.5 To the contrary, Callen says that
18
Tigerman’s actions were “vengeful,” Compl. at ¶ 2, which necessarily implies that Tigerman believed
19 that Callen indeed had raped his wife. See “Vengeance,” BLACK’S LAW DICTIONARY (11th ed. 2019)
20 (defining “vengeance” as “[p]unishment inflicted as a deserved penalty”) (emphasis added).

21 Tigerman’s speech is protected by the “actual malice” standard because Callen is a “public
figure” for First Amendment purposes. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-54 (1974).
22
As the complaint makes clear, see Compl. at ¶¶ 4, 11-12, Callen qualifies as a an “all-purpose public
23
figure.” Gertz, 418 U.S. at 325. “All-purpose public figures” are those who have “assumed roles of
24
special prominence in the affairs of society” and attained “positions of . . . pervasive power and
25
26 5
To be sure, Callen alleges that Tigerman’s conduct was, among other things, “willful, malicious, and fraudulent”
in boilerplate language that attempts to justify “punitive and exemplary damages.” Compl. at ¶ 38. But this conclusory
27 allegation gets him nowhere closer to a valid claim. For purposes of the First Amendment, the “actual malice” standard
“should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.” Masson,
28 501 U.S. at 510. Rather, it “refer[s] to publication of a statement with knowledge of falsity or reckless disregard as to truth
or falsity.” Id. at 511. As noted above, the complaint contains no such factual assertions.
10
SPECIAL MOTION TO STRIKE
1 influence.” Id. This is not a hard determination. By his own admission, Callen is a “well-known actor
2 and comedian.” See Compl. at ¶ 11; Tigerman Decl. at ¶ 3. Like “artists, athletes, business people, [or]

3 dilettantes,” he is “famous or infamous because of who he is or what he has done.” Manzari v.

Associated Newspapers Ltd., 830 F.3d 881, 888 (9th Cir. 2016). He also has voluntarily thrust himself
4
into the public eye, Gertz, 418 U.S. at 345, by “regularly appear[ing] in film and television,” Compl.
5
at ¶ 11, and performing as a comedian at “various comedy club venues and live theater chains across
6 the country,” id. at ¶ 12. It was this level of celebrity that led the Times to publish its article about his
7 sexual misconduct on the front page of the paper. Lawson Decl. at ¶ 5. Moreover, Callen’s fame has
8 led to a significant social media following that allows him to directly communicate to more than a

9 million fans. Lawson Decl. at ¶ 34. As a result, Callen “enjoy[s] significantly greater access to channels
of effective communication” than private individuals, giving him “a more realistic opportunity to
10
counteract false statements.” Gertz, 418 U.S. at 344. This reach is not hypothetical; Callen was able
11
to respond to the Times article in a podcast that now has more than a million views on YouTube.
12 Lawson Decl. at ¶ 35. Thus, Callen qualifies as a “public figure” for purposes of the First Amendment
13 analysis, and he cannot press a claim for false speech about him without alleging “actual malice.” His
14 failure to plead this element renders his complaint deficient as a matter of law.

15 2. Callen cannot meet his evidentiary burden.

Even if Callen had pleaded his claim properly, it is nonetheless subject to being stricken under
16
the anti-SLAPP statute because he cannot introduce substantial evidence that would support a
17
judgment in favor of it. See Navellier v. Sletten, 29 Cal. 4th 82, 88-89 (2002). There are at least three
18
necessary facts that Callen cannot establish, including (i) that Tigerman acted wrongfully, (ii) that
19 Tigerman acted with “actual malice” sufficient to defeat a First Amendment defense, and (iii) that
20 Tigerman’s speech was a substantial factor that caused the contractual breaches at issue.

21 a. Callen cannot establish that Tigerman acted wrongfully.

Even if Callen had properly alleged that Tigerman committed an independently wrongful act
22
that interfered with his contracts, he will be unable to meet his burden to introduce evidence to prove
23
it. The reason is simple: there is no such evidence, because Tigerman did not do anything wrong. As
24
discussed above, for at least eighty years, California courts have recognized that the First Amendment
25 protects an individual’s right to raise grievances and try to affect change. McKay, 16 Cal. 2d at 319-
26 20. And there could hardly be a grievance more understandable than protesting the rape of a spouse.
27 Even if Tigerman wished “to have [] Callen blacklisted, destitute, never to work again,” Compl. at

28

11
SPECIAL MOTION TO STRIKE
1 ¶ 26, the First Amendment has no objection. Far worse punishments have been sought for accused
2 rapists.

3 b. Callen cannot establish that Tigerman acted with “actual malice.”

Nor will Callen be able to introduce competent evidence to show that Tigerman acted with
4
“actual malice.” This is because Tigerman did nothing of the sort. Tigerman believes his wife’s
5
account that Callen raped her. Tigerman Decl. at ¶¶ 3, 16. And she has filed a sworn affidavit that
6 confirms that the description of her rape in the Times is accurate. See Fiore Tigerman Decl. at ¶¶ 1-
7 14, 21. He knows his wife is honest and has no motive to lie; he knows that she told multiple people
8 about the rape when it occurred; and he knows that her story has been consistent for two decades.

9 Tigerman Decl. at ¶¶ 16-17. He also knows that his wife’s accusations are consistent with behavior
that Callen has admitted and his friends have described publicly, particularly Callen’s refusal to listen
10
to a woman’s clear expression of “No” when he makes a sexual advance. Id. at ¶ 15.
11
So, too, did Tigerman act reasonably when he described Callen as a “serial sexual predator.”
12 Compl. at ¶ 19. Tigerman believed that his opinion of Callen was accurate based on what he saw
13 Callen say publicly, Tigerman Decl. at ¶ 21, what Callen’s own friends said about him, id. at ¶ 20, and
14 what he heard from other Callen victims, id. at ¶¶ 9-11. He also trusted the other allegations in the

15 Times article about Callen’s sexual misconduct because he understood the Times to have robust
protocols and policies in place to vet sources and verify its reporting. Id. at ¶ 18. This was a reasonable
16
belief, Parks Decl. at ¶ 7; relying on reporting is not malicious. See Khawar v. Globe Int’l, Inc., 19
17
Cal. 4th 254, 275-76 (1998).
18
c. Callen cannot establish that Tigerman caused a breach.
19 These two problems are not the only evidentiary obstacles that Callen faces. He also cannot
20 make the requisite showing that Tigerman’s communications were a “substantial factor” in causing

21 the agents or comedy venues to cancel their contracts with him. This is necessary because, to make
his interference claim, Callen must “prove causation.” Franklin v. Dynamic Details, Inc., 116 Cal.
22
App. 4th 375, 391 (2004). In this context, a “cause . . . is something that is a substantial factor in
23
bringing about” the alleged harm. Id. (emphasis added and citations omitted). To establish that
24
Tigerman’s communications were the cause of the harm alleged in his complaint, Callen must
25 introduce evidence that the contracts would not have been canceled in the absence of Tigerman’s
26 communications. See Jennie Rivera Enterprises, LLC v. Latin World Entm’t Holdings, Inc., 36 Cal.
27 App. 5th 766, 792-93 (2019) (citations omitted); Augustine v. Trucco, 124 Cal. App. 2d 229, 246

28 (1954). This is impossible.

12
SPECIAL MOTION TO STRIKE
1 Callen has no evidence that Tigerman caused the agents or comedy venues to cancel Callen’s
2 contracts because, once again, the allegation is plainly untrue. This should be obvious; Tigerman has

3 no special relationship with these parties to place him in a position to influence them. Tigerman Decl.
at ¶ 37. This is likely why Callen fails to plead causation as to the comedy venues at all. He alleges
4
only that “following Mr. Tigerman’s communications, the [comedy venues] cancelled [Callen’s]
5
contracts . . . .” Compl. at ¶ 25. The fact that the venues did so at some point after Tigerman’s
6 communications is not sufficient to plead—let alone prove—causation. Nor will Callen be able to
7 muster evidence to bridge the same gap with the talent agents.
8 The actual reason the comedy venues and talent agents canceled their contracts with Callen is

9 because he was accused of rape and sexual misconduct in a deeply researched article published in a
well-respected newspaper. Ex. 1; see Parks Decl. at 8-10. This is why he suffered consequences that
10
he could not allege stemmed from Tigerman’s speech, such as losing the hosting gig on his popular
11
podcast. Ex. 15 at 2. And this is why the same thing has happened to other comedians who have faced
12 sexual misconduct allegations but who did not rape Tigerman’s wife. There are myriad examples of
13 comedians suffering the same alleged harms as Callen who cannot blame their fates on Tigerman’s
14 emails and tweets. In 2017, for example, comedy venues cancelled shows for comedian Louis C.K.

15 after the media reported allegations of his sexual misconduct. Ex. 21 at 2. And, earlier this year, CAA
dropped comedian (and Callen friend) Chris D’Elia when accusers came forward to lodge sexual
16
harassment allegations against him. Ex. 22 at 3.
17
Callen cannot plausibly show that his circumstances are different. To be sure, Tigerman
18
suggested to CAA that it might face public outrage if it continued to represent Callen after it dropped
19 D’Elia as a client. But this communication was not the cause of the agents’ decision to drop Callen—
20 the potential public outrage was. Consider a hypothetical. If the weatherman says he thinks it is going

21 to rain and you look outside and see a downpour, you do not grab an umbrella because the weatherman
said it would rain. You grab the umbrella so you do not get wet. So, too, did the talent agents and
22
comedy venues seek to avoid a storm. But just as rain is the proximate cause of grabbing an umbrella,
23
Callen’s widely-reported sexual misconduct allegations were the proximate cause of the consequences
24
he faced. The comedy clubs sought cover by cancelling Callen’s shows, and the talent agencies sought
25 cover by terminating their relationship. None of them were acting in response to Tigerman’s speech.
26 To survive the motion, Callen must offer evidence that his agents dropped him and the comedy
27 venues canceled his shows because Tigerman communicated with them, rather than because he had

28

13
SPECIAL MOTION TO STRIKE
1 been publicly accused of rape and sexual misconduct in a widely read article by a national publication.
2 He cannot do this, and his complaint must therefore be dismissed.

3 CONCLUSION
This is a classic SLAPP suit. When a celebrity is accused of sexual assault by multiple people,
4
those accusations—and what should be done as a result—are a matter of public interest. Where, as
5
here, a defendant sues to stop that speech, he must show that his case has merit. This case does not.
6 Callen’s single claim of intentional interference of contractual relations against the husband of his rape
7 accuser is legally deficient in multiple respects. This Court can and should strike it because it is
8 insufficiently pleaded and because Callen will not be able to meet his evidentiary burden on multiple

9 elements of the alleged cause of action.

Respectfully submitted this 20th day of November, 2020.
10
BURR & FORMAN LLP
11
By: /s/ J. Alex Little
12
13 J. ALEX LITTLE
Attorney for Defendant
14 Gabriel Tigerman

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SPECIAL MOTION TO STRIKE