Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC401298 Morris B. Jones, Judge.
Brownstein Hyatt Farber & Schreck and Deborah Drooz for Defendant and Appellant.
Law Offices of Loyst P. Fletcher and Loyst P. Fletcher for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant David La Chapelle Studio, Inc. (the Studio) appeals from an order denying a special motion to strike a complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16. The Studio contends that: 1) the complaint arose from conduct in furtherance of the Studio’s right of free speech in connection with an issue of public interest, 2) the complaint fails to state a cause of action against the Studio for intentional interference with the contract, because it does not allege that the Studio took any act to induce a breach of contract, and 3) the complaint failed to state a cause of action for intentional interference with prospective economic advantage, because it does not allege that the Studio committed an independently wrongful act. We conclude that the anti-SLAPP statute applies and the complaint fails to state a cause of action against the Studio. Therefore, we reverse the order denying the motion to strike the complaint.
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTS AND PROCEDURAL BACKGROUND
Allegations of the Complaint
On November 4, 2008, plaintiff and respondent Krown Towers, Inc. filed a complaint against dancer Thomas E. Johnson, the Studio, and several other entertainment companies. The complaint alleged a cause of action against Johnson for breach of contract. The causes of action alleged against the Studio and the other entertainment companies were intentional interference with existing contractual relations and intentional interference with prospective economic advantage. The complaint also contained a cause of action for an accounting against all defendants.
The complaint alleged that Krown entered into an agreement with Johnson on November 3, 2003, to invest $30,000 in a dance competition that would be held at the Great Western Forum on November 15, 2003, in exchange for 25 percent of the net revenues of the production. The event was called “Battle Zone 5.”
The agreement also provided that Krown owned 25 percent and Johnson owned 75 percent of the following: “[the] right to broadcast... or license or authorize others to... broadcast the Production, from disc or other sound records, soundtracks, electronic transcriptions, or re-recordings or otherwise; the right to produce, issue, reproduce, remake, re-issue, distribute, exhibit, transmit, project, perform, sell, lease, rent, license for exhibition, exploit, dispose of and generally deal in and with in any manner or by any method whatsoever, whether now known or hereafter devised, one or more motion picture versions.... [Johnson] shall not enter into any agreement to sell or convey these rights without the prior written permission of Krown, not to be unreasonably withheld.”
The Studio and the other entertainment companies were aware of the agreement between Krown and Johnson, which prohibited Johnson from conveying the rights set forth in the agreement without Krown’s prior written permission. Johnson sold or conveyed Krown’s right to broadcast the dance competition to the other defendants without obtaining Krown’s written permission or accounting for Krown’s monetary interest in the production. The Studio filmed the dance competition and featured it in the prize-winning documentary “Rize.” The other entertainment companies distributed the documentary as a motion picture, including DVD and merchandise sales, and earned substantial revenues and profits. Although the Studio and the other entertainment companies were aware of the agreement between Krown and Johnson prior to making the documentary, they did not obtain written permission from Krown to use the documentary footage from the dance competition or manufacture and sell the motion picture.
The Studio and the other entertainment companies interfered with existing contractual relations and with the prospective economic advantage between Krown and Johnson by making the documentary and the motion picture without securing Krown’s prior written permission. Krown sought an accounting of the revenues and profits obtained by the defendants as a result of making the documentary, the motion picture, and other related sales to the public.
The Anti-SLAPP Motion and Supporting Evidence
On May 22, 2009, the Studio filed an anti-SLAPP motion on the ground that Krown’s claims arose from the Studio’s exercise of its free speech rights in connection with an issue of public interest in making the documentary. In addition, the Studio argued that the complaint failed to state a cause of action for intentional interference with contract, because it failed to allege any intentional conduct by the Studio to induce Johnson to breach his contract with Krown and failed to state a cause of action for intentional interference with prospective economic advantage, because it did not allege an independently wrongful act by the Studio. As a result, Krown had no basis to maintain an accounting action against the Studio.
The Studio submitted La Chapelle’s declaration in support of the motion. La Chapelle declared that Johnson invited him to film the competition. La Chapelle asked permission to film Johnson’s performance, which Johnson provided, and La Chapelle filmed other dancers as well. The filming was open and notorious. Numerous conspicuous signs were posted to inform the audience and the participants that La Chapelle and his crew were filming at the event. No one asked him to stop filming. La Chapelle was not aware of any agreement between Krown and Johnson. In fact, La Chapelle had no knowledge of Krown at the time he filmed the competition.
Opposition to the Anti-SLAPP Motion, Supporting Evidence and Trial Court Ruling
Krown filed an opposition to the anti-SLAPP motion and requested an award of attorney fees as sanctions. Krown argued that the causes of action did not arise out of a matter of public interest, because it concerned Krown’s private financial dealings and a dance competition held in an arena that charged for admission. Krown argued that the causes of action were adequately pled, because no specific intent was required to state a claim for intentional interference with prospective economic advantage, and the allegations of the complaint were that despite knowledge of the contractual relationship between Krown and Johnson, the Studio filmed the dance competition and made the documentary.
In support of its opposition to the motion, Krown submitted the declaration of its principal Karim Torki. Torki declared that he and Johnson had intended to produce a DVD of the event. Torki was present for the entire duration of the event. There were no signs posted to advise the audience that La Chapelle and his crew were filming. In fact, signs were posted at the Forum advising the audience that filming was not permitted. Torki paid a crew to film the event, which had to be cleared with the Forum’s management personnel. La Chapelle and his crew were not noticed, because they blended in with Torki’s film crew. Had Torki known that La Chapelle and his crew were filming the event for their own use, he would have asked them to leave. Torki further declared, “On information and belief, [Johnson] advised Mr. La Chapelle of the Joint Venture Agreement requiring my approval, that I would be present and monitoring the activity at the [dance competition], and thus to remain inconspicuous as he shot his own footage, for which he and [Johnson] entered into a side agreement to license.” The dance competition constitutes one-third of the Studio’s documentary. As a result of the Studio’s release of the documentary, the film that Torki’s crew had taken lost its value and Torki could not pursue the DVD project.
Krown submitted a letter agreement between Johnson and the Studio in which Johnson granted the Studio rights to use his performance and name in connection with two documentary productions in exchange for monetary consideration. The agreement specifically referred to Battle Zone 5 and prohibited Johnson from granting the same rights to any other motion picture project that would compete with the Studio’s productions, except for exploitation of the entirety of the dance competitions as a whole.
After a hearing, the trial court found that speech was incidental to the conduct alleged in the complaint and denied the anti-SLAPP motion. The court also found that the anti-SLAPP motion was not frivolous, nor solely intended to cause unnecessary delay, and therefore, the court declined to award attorney fees. The Studio filed a timely notice of appeal.
DISCUSSION
Applicable Law and Standard of Review
Section 425.16, subdivision (b)(1), provides: “A cause of action 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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” “‘The anti-SLAPP statute arose from the Legislature’s recognition that SLAPP suit plaintiffs are not seeking to succeed on the merits, but to use the legal system to chill the defendant’s first amendment right of free speech.’ [Citation.]” (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 866 (Nguyen-Lam).)
The trial court engages in a two-step process to determine whether to grant or deny a section 425.16 motion to strike. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) The court first decides whether the defendant has made a threshold showing that the acts at issue arose from protected activity. (§ 425.16, subd. (b)(1); Navellier, supra, at p. 88.) These acts include (1) written or oral statements made before a legislative, executive, or judicial proceeding, (2) written or oral statements made in connection with an issue under consideration or review by a legislative, executive, or judicial body, (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest, or (4) 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. (§ 425.16, subd. (e).) Once the defendant meets this burden, then the court determines whether the plaintiff has demonstrated a probability that he or she will prevail on the claim. (§ 425.16, subd. (b)(1); Navellier, supra, at p. 88.)
On appeal, we independently review whether section 425.16 applies and whether the plaintiff has a probability of prevailing on the merits. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 163-164 (Lieberman).)
Applicability of Section 425.16
The Studio contends the complaint arose from actions in furtherance of the Studio’s right to free speech in connection with an issue of public interest. We agree.
A. Issue of Public Interest
The Studio contends the style of dance and the dance culture portrayed in the documentary, including the dance competition, was a matter of public interest.
The statute does not provide a definition for “a public issue” or “an issue of public interest, ” and “it is doubtful an all-encompassing definition could be provided.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.) However, the Legislature intended that there be “some attributes of the issue which make it one of public, rather than merely private, interest.” (Ibid.)
In Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919 (Rivero), the court surveyed several cases and concluded that statements made in connection with a public issue or an issue of public interest, for purposes of section 425.16, subdivision (e)(3) or (4), were generally those that “concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations], or a topic of widespread public interest [citation].” (Rivero, supra, at p. 924.)
“‘The definition of “public interest” within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.]’ [Citations.] ‘Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.’ [Citations.]” (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115 (Du Charme).)
“‘[A]n issue of public interest’ within the meaning of section 425.16, subdivision (e)(3) is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.” (Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042 (Nygård, Inc.), italics omitted.) For example, “[i]n Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798 (Seelig), the plaintiff was one of 50 contestants in the television program Who Wants To Marry A Multimillionaire (Fox Network, Feb. 15, 2000). A San Francisco radio show mocked the plaintiff’s participation in the show, and the plaintiff sued the radio station for slander and other torts. (Id. at pp. 801-806.) The Court of Appeal held that the suit was subject to a special motion to strike. Among other things, it held that the offending comments were made ‘“in connection with an issue of public interest”’: ‘The offending comments arose in the context of an on-air discussion between the talk-radio cohosts and their on-air producer about a television show of significant interest to the public and the media. This program was a derivative of Who Wants to Be a Millionaire, which had proven successful in generating viewership and advertising revenue.... By having chosen to participate as a contestant in the Show, plaintiff voluntarily subjected herself to inevitable scrutiny and potential ridicule by the public and the media.’ (Id. at pp. 807-808.)” (Nygård, Inc., supra, at p. 1042.)
By contrast, when an issue is not of interest to the general public, but is of interest to a limited, definable segment of the public, such as a private group, organization or community, then the protected activity must take place “in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Du Charme, supra, 110 Cal.App.4th at p. 119, italics omitted.)
The Studio’s film of the dance competition was an issue of public interest. The dance competition was held in a large venue which the general public paid to attend. The documentary won a prestigious award and was distributed theatrically. If the public did not have an interest in the film of the dance competition, then Krown’s film of the same event would not have lost value as a result of the Studio’s documentary.
Krown contends filming the dance competition and incorporating the film in a documentary is unprotected commercial speech. This is incorrect. Section 425.17, subdivision (c) provides a limited exception to the anti-SLAPP statute for certain commercial speech, but under section 425.17, subdivision (d)(2), this exception does not apply to “[a]ny action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation.”
B. Conduct in Furtherance of Free Speech
The Studio contends that the complaint arises out of activity in furtherance of the Studio’s right to free speech. We agree.
Section 425.16 expressly applies to conduct that is in furtherance of the exercise of the right of free speech in connection with a public issue. (§ 425.16, subd. (e)(4).) The right of free speech protects not only the expression of information concerning an issue of public interest, but also “nonexpressive conduct that intrinsically facilitates one’s ability to exercise the right of free speech, including lawful efforts to gather evidence and information” about an issue of public interest. (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1077.) “[T]he ability to gather information is entitled to constitutional protection because it too facilitates the exercise of free speech.” (Id. at p. 1074.)
Newsgathering is conduct in furtherance of the news media’s right to free speech. (Lieberman, supra, 110 Cal.App.4th 156, 166.) In Lieberman, KCOP television employees secretly recorded their consultations with the plaintiff doctor, which KCOP broadcast in a news report. (Id. at pp. 161-162.) The doctor filed a complaint against KCOP for violation of Penal Code section 632, which prohibits secretly recording confidential communications. (Id. at pp. 163-164.) The appellate court found that “the broadcast was an act in furtherance of the appellant’s exercise of a constitutional right to free speech in connection with a public issue, as defined in section 425.16. [Citations.]” (Id. at pp. 163, 165.) The court concluded that the secret recordings “were in aid of and were incorporated into a broadcast in connection with a public issue, ” and therefore, also “fell within the scope of section 425.16.” (Id. at p. 166.)
The Studio’s conduct in filming the dance competition and incorporating the footage in its documentary, which was later screened to audiences and won a significant award, was conduct in furtherance of the exercise of free speech in connection with a public issue. The evidence did not show that the Studio’s conduct was illegal as a matter of law. Therefore, the Studio made the necessary threshold showing that Krown’s action arises from a statutorily protected activity.
Probability of Prevailing on the Merits
In our de novo review of the anti-SLAPP motion, we next consider whether the evidence showed a probability that Krown will prevail on the merits of its action.
“‘To establish a probability of prevailing, the plaintiff “‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’” [Citation.] In doing so, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant. [Citation.] Although “‘“the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” [Citation.] Moreover, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. [Citation.]’ (Integrated Healthcare [Holdings, Inc. v. Fitzgibbons (2006)] 140 Cal.App.4th [515, ] 527.)” (Nguyen-Lam, supra, 171 Cal.App.4th at pp. 866-867.)
If the allegations of the complaint are inadequate, but the evidence submitted in connection with the anti-SLAPP motion demonstrates a probability that the plaintiff will prevail at trial, the trial court may grant the plaintiff leave to amend the complaint. (Nguyen-Lam, supra, 171 Cal.App.4th at p. 868-873.)
A. Intentional Interference with Contract
In its motion to strike, the Studio argued that the complaint failed to state a cause of action for intentional interference with contract, because it failed to allege the Studio engaged in intentional conduct designed to induce a breach or disruption of the contractual relationship between Krown and Johnson. In the trial court and on appeal, Krown contends that the complaint is sufficient, because it alleges the Studio filmed the dance competition and produced the documentary despite knowledge of the contractual relationship between Krown and Johnson. We conclude that the allegations of the complaint are insufficient and there is no evidence that the complaint can be amended to state a cause of action.
“The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. [Citations.]” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 (Pacific Gas & Electric Co.).)
The complaint does not allege that the Studio committed any act to induce Johnson to convey rights without obtaining Krown’s permission in breach of contract with Krown. Instead, the complaint alleged that Johnson conveyed rights to the Studio without obtaining permission from Krown and the Studio was aware of Johnson’s agreement with Krown. These allegations do not constitute conduct by the Studio designed to induce Johnson to convey rights without obtaining Krown’s permission. In addition, Krown has not requested leave to amend, nor does the evidence submitted in connection with the motion to strike suggest that Krown could amend the complaint to allege that the Studio induced Johnson to convey rights without obtaining Krown’s permission.
B. Intentional Interference with Prospective Economic Advantage
The Studio argued in its motion to strike that the complaint failed to state a cause of action for intentional interference with prospective economic advantage because it failed to allege that the Studio engaged in any independently wrongful acts. In the trial court and on appeal, Krown contends that the complaint is sufficient, because no specific intent was required and the complaint alleges that the Studio filmed the dance competition and produced and distributed the documentary despite knowledge of the contractual relationship between Krown and Johnson. We conclude that the allegations of the complaint are insufficient and there is no evidence that the complaint can be amended to state a cause of action.
“‘The tort of intentional or negligent interference with prospective economic advantage imposes liability for improper methods of disrupting or diverting the business relationship of another which fall outside the boundaries of fair competition.’ [Citation.]” (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544 (San Jose Construction, Inc.) “[It] protects the same interest in stable economic relationships as does the tort of interference with contract, though interference with prospective advantage does not require proof of a legally binding contract. [Citation.]” (Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1126.)
The elements of the tort are: “‘(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.’ [Citations.]” (Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1126, fn. 2.)
“With respect to the third element, a plaintiff must show that the defendant engaged in an independently wrongful act. [Citations.] It is not necessary to prove that the defendant acted with the specific intent, or purpose, of disrupting the plaintiff’s prospective economic advantage. [Citation.] Instead, ‘it is sufficient for the plaintiff to plead that the defendant “[knew] that the interference is certain or substantially certain to occur as a result of his action.”‘ [Citation.] ‘[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard... an act must be wrongful by some legal measure, rather than merely a product of an improper, but lawful, purpose or motive.’ [Citations.]” (San Jose Construction, Inc., supra, 155 Cal.App.4th at pp. 1544-1545.)
In this case, the complaint does not allege any independently wrongful act by the Studio interfered with Krown’s prospective economic advantage. The sole conduct alleged in the complaint is the act of filming the dance competition and producing a documentary pursuant to an agreement with Johnson with knowledge that Johnson’s contract with Krown required Johnson to obtain Krown’s written permission to convey certain rights. (See Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393 [defendant’s interference must be wrongful by some legal measure beyond the fact of the interference itself].) Krown has not requested leave to amend, nor does the evidence submitted in connection with the anti-SLAPP motion suggest that Krown could amend the complaint to state a cause of action.
C. Accounting
As a result of the conclusions set forth above, there is no basis to compel an accounting by the Studio. Therefore, the motion to strike must be granted.
DISPOSITION
The order denying the motion to strike pursuant to section 425.16 is reversed. The trial court is directed to enter a new and different order granting the motion to strike. Respondent David La Chapelle Studio, Inc. is awarded its costs on appeal.
We concur: TURNER, P. J., KUMAR, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.