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LISA BORODKIN, ATTORNEY AT LAW
LISA J. BORODKIN, ESQ., STATE BAR NO. 196412
LISA@LISABORODKIN.COM
2009 CLARK LANE B
REDONDO BEACH, CALIFORNIA 90278
TELEPHONE: (323) 337-7933
FACSIMILE: (323) 400-4016
KING, HOLMES, PATERNO & SORIANO, LLP
HOWARD E. KING, ESQ., STATE BAR NO. 77012
KING@KHPSLAW.COM
1900 AVENUE OF THE STARS, 25TH FLOOR
LOS ANGELES, CALIFORNIA 90067-4506
TELEPHONE: (310) 282-8989
GAGNIER MARGOSSIAN, LLP
CHRISTINA M. GAGNIER, ESQ., STATE BAR NO. 264578
GAGNIER@GAMALLP.COM
STEPHANIE A. MARGOSSIAN, ESQ., STATE BAR NO. 259762
MARGOSSIAN@GAMALLP.COM
224 TOWNSEND STREET
SAN FRANCISCO, CALIFORNIA 94107
TELEPHONE: (415) 795-1572
SALLY & FITCH, LLP
JONATHAN W. FITCH, ESQ. (PRO HAC VICE)
JWF@SALLY-FITCH.COM
ONE BEACON STREET
BOSTON, MASSACHUSETTS 02108
TELEPHONE: (617) 542-5542
Attorneys for Plaintiff ELINOR
SHAPIRO
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
ELINOR SHAPIRO,
Plaintiff,
vs.
HASBRO, INC.,
Defendant.
CASE NO. 2:15-cv-02964-BRO
(AJWx)
The Honorable Beverly Reid O’Connell
PLAINTIFF ELINOR SHAPIRO’S
SPECIAL ANTI-SLAPP MOTION TO
STRIKE PORTIONS OF
DEFENDANT’S EX PARTE
APPLICATION AND MOTION FOR
CONTEMPT AND SANCTIONS
[DOC 400, 435]
Date: January 9, 2017
Time: 1:30 p.m.
Ctrm: 350 W. 1st Street - Room 7C
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TO THE ABOVE-ENTITLED COURT AND TO ALL DEFENDANTS
AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that, at 1:30 p.m. on January 9, 2017, or as soon
thereafter as the matter may be heard in Courtroom 7C of the above-entitled Court,
located at 350 West 1st Street, Los Angeles, California 90012, plaintiff ELINOR
SHAPIRO (“Shapiro”), will and hereby does submit this special anti-SLAPP motion
to strike and seal the portions of defendant HASBRO (“Hasbro”)’s ex parte
application and motion [Docs 400, 435] inasmuch as they accuse and seek findings
of contempt and sanctions for such alleged contempt (the "Contempt Proceeding")
artfully pled intertwined with a motion hoping to find discovery, after the fact, of
whether there have been violations of the protective order in this action [Doc. 474].
This motion is made pursuant to California Code of Civil Procedure Section
425.16 ("Anti-SLAPP Law") and the principles in Makaeff v. Trump Univ., LLC,
715 F.3d 254, 261 (9th Cir. 2013), on the grounds that Hasbro's Contempt
Proceeding is intended to chill the First Amendment rights of Shapiro, her counsel,
and third-party Robert Grad ("Mr. Grad") on a matter of public interest and public
importance within the meaning of the Anti-SLAPP Law, and Hasbro recklessly and
maliciously accused Plaintiff, Mr. Grad and Plaintiff's counsel of "contempt" and
sought sanctions for such accusations, with no evidence of intentional or willful
violations of any Court order whatsoever, and the policy and purpose of the Anti-
SLAPP law will be served by awarding the costs and fees of defending against the
Contempt portion of these proceeding to Shapiro, should Hasbro fail to meet its
burden of showing that it is likely to prevail on its accusations of Contempt.
The motion is made on the grounds that the legislature intended that the Anti-
SLAPP law is to be construed broadly to effectuate its purpose, and Hasbro cannot
avoid its effect through artful pleading intertwining the unlawful Contempt
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accusations with lawful and permitted procedures to effectuate the purposes of the
Protective Order [Doc. 28] in this action.
In the alternative, Shapiro respectfully requests that the Court dismiss the
Contempt allegations under Federal Rule 12(b)(6) or strike the Contempt allegations
as impertinent and scandalous under Federal Rule 12(f).
This motion is made following the conference of counsel under Local Rule 7-
3, which took place on October 25, 2016.
DATED: November 28, 2016 RESPECTFULLY SUBMITTED,
LISA BORODKIN ATTORNEY AT LAW
/s/ Lisa J. Borodkin
LISA J. BORODKIN
Attorneys for Plaintiff ELINOR SHAPIRO
KING HOLMES PATERNO & SORIANO,
LLP
GAGNIER MARGOSSIAN LLP
SALLY & FITCH LLP (Pro Hac Vice)
Attorneys for Plaintiff ELINOR SHAPIRO
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TABLE OF CONTENTS
i
I. INTRODUCTION ........................................................................................... 1
II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND ............... 5
III. LEGAL ARGUMENT ...................................................................................... 7
A. California's Anti-SLAPP Statute Applies to Hasbro's "Contempt
Proceeding" ........................................................................................... 7
B. California’s Anti-SLAPP Statute Provides for a Quick Procedure to
Strike Causes of Action That Chill First Amendment Rights ................ 8
C. Hasbro’s Contempt Cause of Action Arises From Activities That Are
Protected under the Anti-SLAPP Statute.............................................. 10
1. Hasbro’s Contempt Charges Arise From Statements Made in
Connection with an Issue Under Judicial Consideration ............. 10
2. Hasbro’s "Contempt" Allegations Also Arise from Statements
Made in a Public Forum in Connection with an Issue of Public
Importance ................................................................................... 12
D. Hasbro Cannot Avoid Application of the Anti-SLAPP Law to Its
Contempt Cause of Action through “Artful Pleading” ......................... 13
E. Hasbro Cannot Establish a Probability of Prevailing on Its Contempt
Claims As a Matter of Law................................................................... 16
F. Hasbro Cannot Meet Its Burden To Substantiate Its "Contempt"
Charges with Admissible Evidence. ..................................................... 21
G. Shapiro, Grad, and Shapiro's Counsel Are Entitled to Recover Their
Costs and Attorney’s Fees .................................................................... 22
H. In the Alternative, the Court Can Deem this a Motion to Dismiss for
Failure to State a Claim under Fed. Rule 12(b)(6) or Motion to Strike
Scandalous or Impertinent Matter under Fed. Rule 12(f). .................... 22
V. CONCLUSION ............................................................................................... 25
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TABLE OF AUTHORITIES
ii
Cases
Ampex Corporation v. Cargle, 128 Cal. App. 4th 1569, 1576 (Cal. Ct. App. 1st
2005). ..................................................................................................................... 13
Apple Inc. v. Samsung Elecs. Co., 2015 WL 3863249, at *4 (N.D. Cal. June 19,
2015) ................................................................................................................ 17, 20
Baral v. Schnitt, 1 Cal. 5th 376, 398 (Cal. Sup. Ct. 2016). ..................... 14, 15, 16, 22
Beam Sys., Inc. v. Checkpoint Sys., Inc., 1997 WL 364081, at *2 (C.D. Cal. Feb. 6,
1997) (Wistrich, M.J.) ..................................................................................... 17, 20
Braun v. Chronicle Publishing Co., 52 Cal. App. 4th 1036, 1040 & n.1 (Cal. Ct.
App. 4th 1997). ........................................................................................................ 8
Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 117-18 (Cal.
Sup. Ct. 1999). ....................................................................................................... 10
Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628, 644 (Cal. Ct. App. 2d.
1996). ................................................................................................................. 8, 12
Clark v. Goodwill Indus. of Hawaii, Inc., No. CV0900184DAE-LEK, 2009 WL
3050277, at *10 (D. Haw. Sept. 21, 2009) ............................................................ 23
Commonwealth Energy Corp. v. Investor Data Exchange, Inc. 110 Cal. App. 4th 26,
31 (Cal. Ct. App. 4th 2003). .................................................................................... 9
Doe v. Gangland Prods., Inc., 730 F.3d 946, 953 (9th Cir. 2013)...................... 21, 22
Equilon Enterprises v. Consumer Cause, 29 Cal. 4th 53, 67-68 (Cal. Sup. Ct. 2002).
............................................................................................................................... 10
Harmston v. San Francisco, 2007 WL 3306526, at *7 (N.D. Cal. Nov. 6, 2007). .. 17,
19, 20
Hi-Tek Bags, Ltd. V. Bobtron Int’l, Inc., 144 F.R.D. 379, 384 (C.D. Cal. 1993) 17, 19
In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1363 (9th Cir. 1987) ..... 17
In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir.
1993) ...................................................................................................................... 17
Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal. App. 4th 515, 523
(Cal. Ct. App. 4th 2006) .................................................................................. 11, 13
LifeScan Scotland, Ltd. v. Shasta Techs., LLC, 2013 WL 5949629, at *4 (N.D. Cal.
Nov. 6, 2013) ................................................................................................... 17, 18
Makaeff v. Trump University, LLC, 715 F.3d 254, 261 (9th Cir. 2013) ..................... 7
McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97 (Cal. Ct. App. 4th 2007). .... 10
Nault's Auto. Sales, Inc. v. American Honda Motor Co., Acura Auto. Div., 148
F.R.D. 25, 29 (D.N.H. 1993) ..................................................................... 23, 24, 25
On Command Video v. Lodgenet Entm’t Corp., 976 F. Supp. 917, 921 (N.D. Cal.
1997) ...................................................................................................................... 20
Shuffler v. Heritage Bank, 720 F.2d 1141, 1146 (9th Cir. 1983) .............................. 17
Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) ................... 23
Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664-665 (7th Cir. Ill. 1992)23
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TABLE OF AUTHORITIES, CONT'D
iii
Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005) ..................................... 23
Statutes
28 U.S.C. § 636(e)....................................................................................................... 8
Cal. Code Civ. Proc. § 425.16 ........................................................................... 3, 8, 14
Cal. Code Civ. Proc. § 425.16(a) ................................................................................ 8
Cal. Code Civ. Proc. § 425.16(b). ............................................................................. 10
Cal. Code Civ. Proc. § 425.16(b)(1). .............................................................. 8, 16, 21
Cal. Code Civ. Proc. § 425.16(b)(2). .................................................................. 16, 21
Cal. Code Civ. Proc. § 425.16(c)(1).......................................................................... 22
Cal. Code Civ. Proc. § 425.16(e). ............................................................................... 9
Cal. Code Civ. Proc. § 425.16(e)(2).......................................................................... 11
Cal. Code. Civ. Proc.425.16(e)(3)-(4)....................................................................... 12
Cal. Bus. & Prof. Code § 6068(e)(i) ........................................................................... 6
Cal. Bus. & Prof. Code § 6068 (i) ............................................................................... 6
Rules
Cal. R. Prof. Conduct 1-500(A) .................................................................................. 3
Cal. R. Prof. Conduct 5-120(C). ................................................................................. 2
Fed. R. Crim. P. 42. ..................................................................................................... 8
Fed. R. Crim. P. 42(b) ................................................................................................. 7
Fed. R. Civ. Proc. 12(b)(6) ........................................................................................ 23
Fed. R. of Civ. Proc. 12(f) ......................................................................................... 23
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I. INTRODUCTION
On September 23, 2016, Defendant Hasbro, Inc. ("Hasbro") filed an ex parte
application accusing non-parties Robert Grad ("Mr. Grad") and co-counsel for
Plaintiff Elinor Shapiro ("Plaintiff"), including Damion Robinson and Howard E.
King, of "contempt" knowing that Hasbro had no evidence to support these
scandalous allegations. When confronted, Hasbro did not deny it had no evidence
but leaves these accusations pending and accuses the targets of "not getting along."
Hasbro has repeatedly abused the legal process to chill Plaintiff Shapiro’s
First Amendment rights and turn this litigation into a “sandbox fight” to the
consternation of the Court. Hasbro’s worst abuse of process is its frivolous ex parte
application and motion to hold Shapiro, her attorneys Lisa Borodkin, Damion
Robinson, and Howard E. King and non-party Robert Grad in contempt of court (the
"Contempt Proceeding")(Doc. 400). Hasbro did not attempt to support its ex parte
for the Contempt Proceeding with relevent analysis, instead citing to a string of
cases that either did not concern contempt, reversed contempt, rejected a finding
contempt, or were not factually analogous to the present case.
When challenged, Hasbro did not correct the record on its ex parte
application, but pressed the "Contempt" charges against non-parties Mr. Robinson,
Mr. Grad and Plaintiff and her lead trial counsel, feigning ignorance of Mr.
Robinson's role. (Doc. 435 at fn. 1)
Hasbro did not attempt to apply the law or facts of these cases to the present
case before initiating a proceeding, however denomiated, raising serious substantive
accusations against Plaintiff, her husband, and legal team. Instead Hasbro publicly
accused the Shapiro legal team of contempt with no factual basis, only withdrawing
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a subset of its dragnet threats after already publicly assasinating their characters
when served with a Rule 11 motion for sanctions that Hasbro knew would expose
the baselessness of its accusations.
Hasbro did not stop there. In filing its Contempt Proceeding, Hasbro insisted
that somehow Shapiro and Ms. Borodkin’s lawful and ethical responses to publicity
about this trial, which has been covered extensively due to the public interest in this
case by the shareholders of this publicly-traded company and by the toy inventor
community, were malevolent and worthy of contempt findings. Needless to say, the
right to counteract prejudicial and misleading trial publicity is at the heart of the
First Amendment and is squarely within the ethical duties of California attorneys.
See Cal. R. Prof. Conduct 5-120(C).1
Hasbro admitted at the October 18, 2016 hearing that it cannot justify its
attack on these First Amendment activities with anything but speculation and
unsupported accusations. (Doc. 478 at 10). On November 18, 2016, Hasbro refused
to dismiss the Contempt proceeding or motion to gain access to in camera
proceedings about it unless Hasbro could extract an illegal and unethical2 agreement
1(C) Notwithstanding paragraph (A), a member may make a statement that a
reasonable member would believe is required to protect a client from the
substantial undue prejudicial effect of recent publicity not initiated by the
member or the member's client. A statement made pursuant to this paragraph
shall be limited to such information as is necessary to mitigate the recent
adverse publicity.
Cal. R. Prof Conduct 5-120(C).
2 (A) A member shall not be a party to or participate in offering or making an
agreement, whether in connection with the settlement of a lawsuit or
otherwise, if the agreement restricts the right of a member to practice law.
Cal. R. Prof. Conduct 1-500(A).
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that if Ms. Borodkin's boyfriend (also not a party to the litigation) was an attorney,
that he "does not represent and would not contemplate representing current or
potential plaintiffs or claimants against Hasbro." (Doc.497-1 at 48) Hasbro further
attacked Ms. Borodkin by referencing her speech on web fora and to journalists,
also protected First Amendment activities. Finally, Hasbro attacked Mr. Grad by
including him in its frivolous Contempt Proceeding, even though Mr. Grad has
professional experience in and performed traditional litigation support services, is
not a party in this case, and served an Expert Witness disclosure after Hasbro
complained that a report was required for Mr. Grad's testimony.
The California legislature and case law under California Code of Civil
Procedure § 425.16 ("Anti-SLAPP Law") treat the portions of Hasbro's ex parte
application [Doc. 400] and ensuing motion [Doc. 435] seeking adjudications of
"contempt" and monetary sanctions against the Plaintiff and non-parties, however
artfully pleaded ("Contempt Proceeding"), as exactly the type of initiating paper
making third parties real parties in interest, as the type of charges that are calculated
to intimidate and chill the targeted parties in both their pursuit of their First
Amendment right to petition the court, and their protected First Amendment right of
free speech outside of the courtroom. Further, Hasbro's Contempt Proceeding has no
tangible relation to Hasbro’s purported goal, which is to control any negative
consequences from the alleged inadvertant disclosure under the Protective Order
[Doc. 28]. In fact, Hasbro’s Contempt Proceeding, particularly when combined with
Hasbro's other demands for sanctions, threats to file separate lawsuits against
Shapiro and all her counsel, motion to disqualify counsel, insistence that the Shapiro
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and all her counsel notify their malpractice carriers, and the general unprofessional
behavior of Hasbro's counsel in teleconference, insistence that Shapiro has
indavertently waived privilege, refusal to accord Shapiro's counsel adequate time to
counsel her on the requested waiver of her statutory privileges under unreasonable
time constraints, have made it difficult for Shapiro and her attorneys to take the
appropriate steps to investigate and rectify possible inadvertant disclosures without
fear that any cautionary actions taken to assuage Hasbro’s concerns will be used in
Hasbro’s vendetta against Shapiro and all her counsel.
Hasbro rushed to file the Contempt Proceeding on shortened notice (Doc.
400) and refused to de-escalate the contempt claim from the motion that followed
(Doc. 435) by pressing the contempt portion of the motion despite reasonable efforts
at compromise by Shapiro and her counsel (including offering to make redacted in
camera transcripts and declarations fully available to Hasbro)(Doc. 478) is merely
another in Hasbro’s pattern and practice of abusing the legal process to make this
case about everything but the merits. Hasbro's Contempt Proceeding is nothing but
an empty threat intended to intimidate Shapiro, Grad, and her trial counsel. Hasbro's
insistence on invading privilege through use of the ex parte Contempt Proceeding to
backfill its unsubstantiated suspicions through demands to turn over privileged
information, and then unreasonable position on its motion to unseal (insisting that
Ms. Borodkin's boyfriend; if he is an attorney, agree not to represent parties against
Hasbro; insisting that Hasbro must know the names of non-testifying experts,
consultants and attorneys; accusation that the press and other attorneys "must have"
learned information in violation of the Protective Order even when such information
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is demonstrablly available in the public record and was never designated
confidential by Hasbro) display an alarming lack of civility and respect for the rights
of represented California citizens. Again, it is critical to note that a majority of
Hasbro’s cited cases in support of its Contempt Proceeding did not find contempt,
the leading Ninth Circuit case (Dual Deck) reversed contempt findings, and in fact
many did not even mention contempt at all. Hasbro did not care about finding law
or facts to support its threat. Hasbro's motive in filing the threat was only to create
delay and disruption in the case and chill Shapiro’s right to petition the court for
redress of her injury in gross disregard of the First Amendment rights of Shapiro,
and Grad, and in derogation of her counsel's statutory duties.
The claims in Hasbro's frivolous and unsupported Contempt Proceeding [Doc.
400, 435] for substantive findings of contempt should be stricken as squarely
prohibited under California’s anti-SLAPP law, and the proceedings on the contempt
portion having nothing to do with the claims and defenses to be litigated in this
action stayed, unless Hasbro can meet its burden to show any likelihood whatsoever
of prevailing, so that the parties may return to litigating the case on its merits and
bring it to a fruitful and just conclusion.
II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2016, Hasbro initiated a proceeding entitled in relevant
part, "Defendant Hasbro Inc.'s Ex Parte Application for Order . . . for Expedited
Briefing on Motion for Order to Hold Plainiff and Her Counsel in Contempt." [Doc.
400]. The "Notice" in the initiating application stated it was directed at Shapiro,
Grad and Shapiro's counsel (excluding only Gagnier Margossian LLP and Fitch Law
Partners LLP), including Damion Robinso and Howard E. King. (Doc. 400 at 1 fn.
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1). In accordance with counsel's duty under California Business & Professions Code
Section 6068(e)(i),3 Shapiro's counsel on October 6, 2016 sought additional time to
respond and counsel Shapiro on her privileges, and to limit the order. (Doc. 420).
Hasbro uncivilly opposed and continued to place unreasonable time constraints on
Shapiro and her counsel4, on October 7, 2016, despite knowing that Shapiro's
counsel was represented by counsel, even scorning these statutory ethical duties, and
ignored the applicable law on due process on contempt, arguing in substance that its
proceeding was not contempt "yet" - but reserved the right to relate any evidence
thus bootstrapped back into a contempt accusation. (Doc. 422)
On October 12, 2016, Hasbro filed a motion again seeking contempt against
Plaintiff, and non-parties Mr. Grad and Palintiff's counsel Damion Robinson and
Lisa Borodkin despite having no evidence of such "contempt." (Doc. 435)
On October 18, 2016, the Magistrate Judge held a hearing, indicating he saw
no evidence of any intentional violation by any party. Nonetheless, on November 3,
2016, Hasbro pressed forward with a motion to unseal the proceedings and refused
3 Attorneys in California are required "to maintain inviolate the confidence, and at
every peril to himself or herself to preserve the secrets, of his or her client."
Cal. Bus. & Prof. Code § 6068(e)(i) (West).
4 "This subdivision shall not be construed to require an attorney to cooperate with a
request that requires him or her to waive any constitutional or statutory privilege or
to comply with a request for information or other matters within an unreasonable
period of time in light of the time constraints of the attorney's practice. Any exercise
by an attorney of any constitutional or statutory privilege shall not be used against
the attorney in a regulatory or disciplinary proceeding against him or her."
Cal. Bus. & Prof. Code § 6068(i) (West).
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to withdraw its "contempt" allegations, trying to hold the "contempt" charges as
leverage to extract waivers and discloure of information to which the Magistrate
Judge commented Hasbro is not entitled. [Doc. 474] Hasbro initially attempted to
bring the motion ex parte, in violation of this Court's Order of October 17, 2016.
[Doc. 478 at 3-6]. When confronted with the violation, Hasbro reluctantly filed the
motion on notice, but continues to disparage Orders and Rule and Shapiro and
counsel's insistance on following these rules and orders by characterizing such as
being "difficult." [Doc. 484 at 3-6]
III. LEGAL ARGUMENT
A. California's Anti-SLAPP Statute Applies to Hasbro's "Contempt
Proceeding"
California law provides for the pre-trial dismissal of certain actions, known as
Strategic Lawsuits Against Public Participation, or SLAPPs, that masquerade as
ordinary lawsuits but are intended to deter ordinary people from exercising their
political or legal rights or to punish them for doing so.” See Makaeff v. Trump
University, LLC, 715 F.3d 254, 261 (9th Cir. 2013); Nemcik v. Mills, No. 16-CV-
00322-BLF, 2016 WL 4364917, at *3 (N.D. Cal. Aug. 16, 2016).
The Anti-SLAPP statute applies to Hasbro's Contempt Proceeding because it
arises under state law. This is because Rule 42(b) provides no procedure for a
private federal litigant to initiate contempt:
(b) Summary Disposition. Notwithstanding any other provision of these
rules, the court (other than a magistrate judge) may summarily punish a
person who commits criminal contempt in its presence if the judge saw or
heard the contemptuous conduct and so certifies; a magistrate judge may
summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt
order must recite the facts, be signed by the judge, and be filed with the clerk.
Fed. R. Crim. P. 42.
Defendant did not identify any federal question or other jurisdictional basis
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for "Contempt" when initiating the Contempt Proceeding with the Magistrate Judge.
See Ex Parte Application for Contempt. [Doc. 400] As federal courts are courts of
limited jurisdiction, absent a clear allegation of federal jurisdiction, the nature of a
claim or cause of action arises under state law.
B. California’s Anti-SLAPP Statute Provides for a Quick Procedure
to Strike Causes of Action That Chill First Amendment Rights
The California Legislature enacted Section 425.16 of the Code of Civil
Procedure to protect citizens in the exercise of their First Amendment constitutional
rights of free speech and petition. See Cal. Code Civ. Proc. § 425.16(a); Church of
Scientology v. Wollersheim, 42 Cal. App. 4th 628, 644 (Cal. Ct. App. 2d. 1996).
Section 425.16 allows for a special motion to strike meritless lawsuits, often referred
to as Strategic Lawsuits Against Public Participation or SLAPP suits, which act to
chill these rights. See Braun v. Chronicle Publishing Co., 52 Cal. App. 4th 1036,
1040 & n.1 (Cal. Ct. App. 4th 1997).
The Anti-SLAPP statute provides that:
A cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition of 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.
Cal. Code Civ. Proc. § 425.16(b)(1). The California Legislature directed that this
statute “shall be construed broadly.” See Cal. Code Civ. Proc. § 425.16(a).
Courts evaluate Anti-SLAPP special motion to strike using a two-step
process. See Commonwealth Energy Corp. v. Investor Data Exchange, Inc. 110 Cal.
App. 4th 26, 31 (Cal. Ct. App. 4th 2003). First, the Court must determine whether
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the defendant5 has made a threshold showing that the challenged cause of action is
one arising from protected activity. See id. If the defendant makes such a showing,
the court moves to the second step, which is to determine whether the plaintiff has
demonstrated a probability of prevailing on the claim. See id.
Protected activities include “any act in furtherance of a person’s right of
petition or free speech under the United States of California Constitution in
connection with a public issue.” Cal. Code Civ. Proc. § 425.16(e). Specifically
included in these activities are:
(1) Any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law;
(2) any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding
authorized by law;
(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; or
(4) any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech
in conneciton with a public issue of public interest.
Cal. Code Civ. Proc. § 425.16(e). The latter two categories require a specific
showing that the action concerns a matter of public interest; the first two categories
do not. Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 117-18
(Cal. Sup. Ct. 1999). Any speech by a public or private party falling within these
5 Here, "defendant" refers to the party defending against the challenged cause of
action, and the plaintiff refers to the party bringing the challenged cause of action.
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categories is protected under the statute, and a cause of action arising out of that
speech is subject to a special motion to strike.
In showing a cause of action “arises from” protected activity, the moving
party need not prove Hasbro's intent in bringing a non-meritorious claim was to chill
the exercise of protected rights – the intent of the plaintiff is irrelevant. See Equilon
Enterprises v. Consumer Cause, 29 Cal. 4th 53, 67-68 (Cal. Sup. Ct. 2002). All that
is required is that the cause of action is one arising from protected activity. Id.
Once movant shows that it engaged in a protected activity, the burden shifts
to Hasbro to establish a probability that it will prevail on its causes of actions. Cal.
Code Civ. Proc. § 425.16(b). Hasbro must show that “there is a reasonable
probability [it] will prevail on the merits at trial” by “show[ing] both that the claim
is legally sufficient and there is admissible evidence that, if credited, would be
sufficient to sustain a favorable judgment. McGarry v. Univ. of San Diego, 154 Cal.
App. 4th 97 (Cal. Ct. App. 4th 2007). In making this assessment, the court must
consider both the legal sufficiency and evidentiary support for the claims, and must
also examine whether there are any constitutional or nonconstitutional defenses to
the pleaded claims and, if so, whether there is evidence to such defenses. Id.
C. Hasbro’s Contempt Cause of Action Arises From Activities That
Are Protected under the Anti-SLAPP Statute
1. Hasbro’s Contempt Charges Arise From Statements Made in
Connection with an Issue Under Judicial Consideration
Statements made in connection with an issue under consideration by a
“legislative, executive, or judicial body, or any other official proceeding authorized
by law,” are protected under the Anti-SLAPP statute. Cal. Code Civ. Proc. §
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425.16(e)(2). Needless to say, this litigation is under consideration by a judicial
body: the United States District Court for the Central District of California.
Hasbro’s cause of action for contempt is targeted in part at Shapiro's counsel's
statements to the press regarding this case. Despite Hasbro’s conspiracy theories,
Shapiro's counsel's contact with the press was in response to press inquiry into the
case, which is quite prominent and of keen interest to the inventor community. In
fact, the case was recently featured on the front page of the Daily Journal, and
Law360.com has featured multiple articles on the case. Hasbro seeks to chill Ms.
Shapiro and the other named parties from engaging with the press. This is precisely
the type of protected First Amendment activity that the Anti-SLAPP statute was
passed to protect. See Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal.
App. 4th 515, 523 (Cal. Ct. App. 4th 2006) (holding that an e-mail message
concerned a public issue because the subject of the e-mail message had been
“discussed in numerous articles in newspapers and other periodicals”).
Hasbro further seeks to disqualify Shapiro's counsel, and invade the attorney
client privilege and work product protections in connection with its Contempt
Proceeding. [Doc. 400, 435] These goals are intended to interfere with the attorney-
client relationship and prevent Ms. Shapiro from receiving competent counsel. This
interferes with the right of Ms. Shapiro to petition the court to address her grievance
and arises from this lawsuit, which is part of a judicial hearing.
Finally, Hasbro expresses concern about Shapiro's counsel's participation --
and that of her boyfriend -- as counsel of record in other cases pending against
Hasbro. This cannot be a more blatant attempt to chill Shapiro's counsel
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participation not only in this lawsuit, but of yet-uninvolved counsel in multiple
others. Hasbro is attempting to use their frivolous Contempt Proceeding to interfere
with the right of petition of no less than three plaintiffs engaged in lawsuits against
Hasbro for similar conduct. (Doc. 474 at 4) (making unsubstantiated accusations
regarding Pawelko v. Hasbro in District of Rhode Island). This interference with
both First Amendment speech and petition rights in connection to a judicial
proceeding places Hasbro squarely in the sites of the anti-SLAPP statute.
2. Hasbro’s "Contempt" Allegations Also Arise from
Statements Made in a Public Forum in Connection with an
Issue of Public Importance
The Anti-SLAPP statute further protects:
(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; or
(4) any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech
in conneciton with a public issue of public interest.
Cal. Code. Civ. Proc.425.16(e)(3)-(4). “Matters of public interest…include
activities that involve private persons and entities, especially when a large, powerful
organization may impact the lives of many individuals.” Church of Scientology v.
Wollersheim, 42 Cal. App. 4th 628, 650 (Cal. Ct. App. 2d 1996). Even innocuous
internet postings about corporate activity can trigger these prongs of the statute if
made in reference to a large, publicly-traded company. See Ampex Corporation v.
Cargle, 128 Cal. App. 4th 1569, 1576 (Cal. Ct. App. 1st 2005). In determining
whether particular communications constitute protected activity under these prongs
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of the Anti-SLAPP statute, courts consider three factors: (1) whether the criticized
company is publicly traded; (2) the number of investors; and (3) whether the
company has promoted itself by means of numerous press releases. Id. However,
courts have held that public comment about even “a small corporate entity” can be
covered by the anti-SLAPP statute. Integrated Healthcare Holdings, Inc. v.
Fitzgibbons, 140 Cal. App. 4th 515, 523 (Cal. Ct. App. 4th 2006).
For example, in Integrated Healthcare Holdings, Inc., a court “had little
trouble concluding” that a single e-mail sent concerning a corporation that was in
the process of acquiring several hospitals in the Orange County area concerned “a
public issue” because the e-mail related to that acquisition, which had been
“discussed in numerous articles in newspapers and other periodicials.” Id. The court
was unimpressed by the corporation’s counterargument that it was only a “small
corporate entity” because the corporate entity was large enough to own several
hospitals in Orange County.
Certainly publicly-traded Hasbro, the second largest toy company in the
world, meets this very low bar. As a result, Hasbro’s actions to chill the named
parties’ ability to respond to and communicate with the press, post on the Internet,
and pursue their case with the counsel of their choosing, implicates a public issue:
namely, the exposure of Hasbro’s willingness to steal from inventors who trust the
company with their ideas.
Therefore, three of the four prongs of the anti-SLAPP statute allow Shapiro,
Grad, and Shapiro's counsel to move forward with their special motion to strike
Hasbro’s contempt charge.
D. Hasbro Cannot Avoid Application of the Anti-SLAPP Law to Its
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Contempt Cause of Action through “Artful Pleading”
The California Supreme Court recently expressed disapproval of attempts to
avoid the anti-SLAPP statute through “artful pleading.” See Baral v. Schnitt, 1 Cal.
5th 376, 398 (Cal. Sup. Ct. 2016). The court held that the application of section
425.16 “cannot reasonably turn on how the challenged pleading is organized.” Id.
The Court was considering whether anti-SLAPP should be available in cases where
only some of the alleged causes of action were meritless. See id. at 384. The Court
held that anti-SLAPP should be available in such circumstances for the meritless
causes of action because to fufill the goals of the statute, “courts may rule on
plaintiff’s specific claims of protected activity, rather than reward artful pleading by
ignoring such claims if they are mixed with assertions of unprotected activity. Id. at
392.
As such, Hasbro cannot argue that their independent attempt to enforce the
protective order bars any application of the Anti-SLAPP statute with regard to
charges of contempt recklessly levied at Palintiff, Mr. Grad and Shapiro's counsel.
This should not be construed in any way as an admission by Shapiro that the alleged
violations of the protective order have merit. It is simply to point out that, as a
matter of law, whether these violations occurred is irrelevent to determining whether
the contempt cause of action, standing by itself, has merit. It does not; in fact, by
filing the frivolous contempt claims, Hasbro has made it inextricably harder to deal
productively with the protective order issue, as all parties are now facing possible
quasi-criminal charges, have been required -- on Hasbro's demand -- to involve
malpractice carriers, and are doing so under the shadow of constant threats by
Hasbro’s counsel, which in addition to the contempt motion itself range from threats
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of separate lawsuits, threats to disqualify counsel, threats to disqualify counsel from
unrelated cases, and general threatening behavior on phone calls.
To the extent that Hasbro seeks to bar this anti-SLAPP motion because of
arguments related to the enforcement of the protective order, these arguments have
no relevance under Baral. Indeed, these arguments are particularly egregious
because the meritless contempt cause of action is making resolving the above
mentioned conflict much, much more difficult for all involved parties.
Finally, Baral should be read generally as a screed against avoiding anti-
SLAPP through artful pleading. Hasbro has cleverly embedded its contempt claims
within a motion, rather than a separate pleading, most likely because they are fully
aware that it brings them squarely in the target sights of anti-SLAPP and thus are
trying to artfully plead around the statute. This should not be allowed. Contempt is a
cause of action unto itself; indeed, as pled against Mr. Grad, who is not a named
party in the case, it cannot be considered anything but a separate cause of action.
The California Supreme Court talks indirectly about how to handle this exact
situation. In Baral, they discuss the intersection of primary rights doctrine with anti-
SLAPP law and hold that “restricting anti-SLAPP motions to indivisible ‘causes of
action’ as determined by primary right theory would be inconsistent with the
Legislature’s use of the term ‘special motion to strike.’” Id. at 394. The Court
continues to analyze the Legislature’s intent in using the term “cause of action” in
section 425.16(b)(1). Id. at 395. The Court finds that the Legislature intended by
use of this term to convey the meaning that “[t]he targeted claim must amount to a
‘cause of action’ in the sense that it is alleged to justify a remedy.” Id.
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Hasbro initiated Contempt claims against non-parties to justify a remedy – to
hold the named parties in contempt of court and justify further sanctions and
disqualification. This is squarely within the purview of what anti-SLAPP is designed
to prevent and constitutes a “cause of action” under the broad definition of that term
intended by the Legislature and confirmed by the California Supreme Court.
E. Hasbro Cannot Establish a Probability of Prevailing on Its
Contempt Claims As a Matter of Law
Because Ms. Shapiro, Ms. Grad, and Ms. Shapiro's counsel have established
that the contempt motion was field after they exercised their First Amendment right
to free speech and petition in connection with activities protected under the Anti-
SLAPP statute, the burden shifts to Hasbro to establish that there is a probability it
will prevail on its contempt claims. Cal. Code Civ. Proc. § 425.16(b)(1). To do so,
Hasbro must “demonstrate the complaint is legally sufficient and supported by a
prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.” Id. In making this determination, “the court
shall consider the pleadings, and supporting and opposing affadavits stating the facts
upon which the liability or defense is based.” Cal. Code Civ. Proc. § 425.16(b)(2).
Hasbro cannot even come close to meeting this burden.
Hasbro’s motion for contempt does not pass muster. Hasbro cites to nine
cases in support of its request for contempt. Hasbro does not attempt to analyze any
of these cases. Since Hasbro has declined to do so, we will do take the opportunity.
Three cases, Shuffler v. Heritage Bank, 720 F.2d 1141, 1146 (9th Cir. 1983),
In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir.
1993), and In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1363 (9th Cir.
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1987), are cited for basic principles of contempt and do not concern a protective
order at all.
Five cases are cited for the proposition that “[b]oth parties and attorneys are
regularly held in civil contempt for violating protective orders.” These five cases are
Hi-Tek Bags, Ltd. V. Bobtron Int’l, Inc., 144 F.R.D. 379, 384 (C.D. Cal. 1993);
Apple Inc. v. Samsung Elecs. Co., 2015 WL 3863249, at *4 (N.D. Cal. June 19,
2015); LifeScan Scotland, Ltd. v. Shasta Techs., LLC, 2013 WL 5949629, at *4
(N.D. Cal. Nov. 6, 2013); Beam Sys., Inc. v. Checkpoint Sys., Inc., 1997 WL
364081, at *2 (C.D. Cal. Feb. 6, 1997) (Wistrich, M.J.); Harmston v. San Francisco,
2007 WL 3306526, at *7 (N.D. Cal. Nov. 6, 2007).
Of these five cases, in only two did the court find contempt: Hi-Tek Bags, Ltd
and Harmston. In two of the five cited cases, contempt was not even at issue in the
case: Apple Inc. and Beam Sys, Inc. In the fifth, the court considered contempt and
rejected it: LifeScan Scotland, Ltd.
Starting with LifeScan Scotland, the court considered issuing contempt and
rejected it. In that case, the plaintiff acquired attorney’s eyes only material and then
used the material to contact the defendant’s distributors disclosed in the material
about the litigation. See LifeScan Scotland, 2013 WL 5949629 at *1. As a result,
defendant suffered actual economic damage based on these disclosures. Id. While
the court did find the behavior sanctionable, it withheld a contempt finding because
there was no clear and convincing evidence that the plaintiff’s interpretation of the
protective order was unreasonable or in bad faith. Id. at *2-*3.
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This case by itself demonstrates how frivolous Hasbro’s contempt charges
are. If a plaintiff intentionally using attorney’s eyes only material to go out of its
way to disrupt the other side’s business operations does not rise to the level of
contempt, nothing in the present case, even in Hasbro’s wildest speculations, comes
close. In this case, all Hasbro alleges is that Shapiro and Grad were inadvertenly
exposed to pages of deposition transcripts in the process of trial preparation under
intense deadlines. Hasbro has not alleged that it has suffered any harm, or that
Shapiro or Grad have exposed the materials to Hasbro's business partners or rivals.
Further, this alleged exposure was inadvertant; it was not an intentional use of the
information in an unfair way as in LifeScan. And once again, in LifeScan,
defendant’s own case, with facts wildly more egregious than the present case, the
court declined to issue a contempt hearing.
Though Hasbro did not analyze or apply LifeScan, defendant did cite the case.
Presumably that indicates Hasbro read the case as well. Yet after reading that case,
Hasbro accused non-parties of contempt anyway. This can only support the
conclusion that Hasbro has no intent of winning the motion for contempt and filed it
only to harrass plaintiff, disrupt the trial, and chill the named parties’ First
Amendment rights.
Neither case which found contempt helps Hasbro’s argument. In Hi-Tek Bags,
plaintiff agreed to put sensitive business documents of defendant under a protective
order that limited disclosure to the attorneys, their staff, and the court reporters. Hi-
Tek Bags, 144 F.R.D. at 381. The plaintiff then immediately executed the discovery
order by entering defendant’s business with police officers, intentionally exposing
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plaintiff and the police officers to the protected documents. Id. The court found the
plaintiffs in contempt. Id. at 382. The plaintiff then filed the protected information in
a public filing with the court, not under seal, so that anyone watching the document
could see all the information. Id. Plaintiff further violated the order by serving the
protected documents on the defendant’s co-defendants, some of whom were
business contenders with defendant. Id. In a coup de grace, the plaintiff argued in
open court that the case was important because “the entire relevant industry” was
watching. Id. at 382. Notably, after all these violations, the court granted terminating
sanctions but no further contempt. Id.
These facts in cases cited by Hasbro involved repeated, willful, flagrant, and
naked violations of the protective order to third party competitors that simply are not
present in this case.
Harmston is no more helpful to Hasbro. In this case, a video deposition of
San Francisco Police Chief Fong was placed under a protective order. Harmston,
2007 WL 3306526 at *4. Plaintiff proceeded to act as if the protective order did not
exist at all, placing confidential materials on their public website, using the
deposition video as evidence in related actions, giving the material to a reporter, and
filing it in the court’s public record. See id. at *5. The court found this violation of
the protective order was neither in good faith or reasoanble by clear and convincing
evidence and held plaintiffs in civil contempt. Id. at *6-*7.
Once again, the facts in that case are wildly more egregious than the facts in
Hasbro's alleged Contempt Proceeding. Once again, the extent of the present
Contempt Proceeding is limited only to an alleged inadvertant disclosure of
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deposition transcripts to plaintiff and her husband several weeks before the
transcripts were due to become public regardless. There is no evidence of
wilfulness, a pattern of bad behavior, or intentional violation of the order. These are
the factors present in Hasbro’s own cases showing contempt. These factors are not
present here. And as mentioned above, the other two cases, Apple and Beam System,
Inc., do not even consider contempt.
Finally, Hasbro cites to On Command Video v. Lodgenet Entm’t Corp., 976 F.
Supp. 917, 921 (N.D. Cal. 1997), as the source of a quoted proposition that “in
determining whether the protective order was violated, the Court will read the order
‘in a reasonable and common sense manner.” Citing this case does not help
Hasbro’s Contempt Proceeding.
In short, Hasbro’s own cases fail to support its proposition that a contempt
finding against anyone is warranted and in fact often fail to mention contempt at all.
Hasbro does not even seek to re-designate or seal the public matter that it claims it is
concerned about disseminating, such as the matter in the Declaration of Lynn
Rosenblum, publicly available, that formed Hasbro's accusation about use in
Pawelko v. Hasbro. (Doc. 474 at 4-5).
California’s Anti-SLAPP directs the court to consider not only the pleadings,
but affadavits of fact upon which the liability or defense is based. Cal. Code Civ.
Proc. § 425.16(b)(2). As such, considering this motion in the context the attached
affadavits concerning Hasbro’s one attempt at meeting and conferring to resolve the
dispute will shed some light on just how egregious and vexatious Hasbro’s conduct
was in filing this motion.
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On that meet and confer in conenction with Contempt Proceeding, Hasbro’s
counsel refused to did not attempt to respond to efforts to resolve the dispute in
good faith. The Contempt Proceeding, absent legally valid precedent or evidence, is
an attempt to bully, distract, and chill plaintiff and her counsel and deter other
potential plaintiffs. In conclusion, Hasbro cannot establish a probabiblity of
prevailing on its meritless request for contempt. The court should strike these
claims.
F. Hasbro Cannot Meet Its Burden To Substantiate Its "Contempt"
Charges with Admissible Evidence.
Under the second prong of the Anti-SLAPP analysis, once the target of the
claim establishes that the allegations arise from protected activity on a matter of
public importance, the burden shifts to the proponent of the allegations to show a
probability of prevailing. See Doe v. Gangland Prods., Inc., 730 F.3d 946, 953 (9th
Cir. 2013). Cal. Civ. Proc. Code §425.16(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 Constitution or the 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.
Cal. Civ. Proc. Code § 425.16(b)(1) (West).
The applicable burden "is much like that used in determining a motion for
nonsuit or directed verdict, which mandates dismissal when no reasonable jury
could find for the plaintiff." See Doe v. Gangland Prods., Inc., 730 F.3d 946, 957
(9th Cir. 2013). Hasbro cannot meet this burden. As the Magistrate Judge already
commented at the October 18, 2016 hearing, Hasbro has no evidence to support its
charges of willful or intentional violation of a clear Court order. But under the
burden-shifting framework of the Anti-SLAPP statute, it is not Shapiro's burden to
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show Hasbro has no such evidence. Rather, Hasbro must come forward with the
evidence or this motion must be granted.
G. Shapiro, Grad, and Shapiro's Counsel Are Entitled to Recover
Their Costs and Attorney’s Fees
Under California Code of Civil Procedure § 425.16(c)(1), a prevailing party
on a special motion to strike “shall be entitled to recovery his or her attorney’s fees
and costs.” Cal. Code Civ. Proc. § 425.16(c)(1). Thus, Hasbro must come forward
immediately with a summary-judgment level of evidence supporting its "Contempt"
charges or the targeted parties prevail they are entitled to attorney’s fees and costs
on this motion.
H. In the Alternative, the Court Can Deem this a Motion to Dismiss
for Failure to State a Claim under Fed. Rule 12(b)(6) or Motion to
Strike Scandalous or Impertinent Matter under Fed. Rule 12(f).
Hasbro has argued that the Contempt Proceeding is not a "complaint" and this
thus is not subject to a special motion to strike, despite the teachings of Baral v.
Schnitt, 1 Cal. 5th 376, 398 (Cal. Sup. Ct. 2016). The Contempt Proceeding initiated
and made parties to this action non-parties Mr. Grad, and Shapiro's counsel, thus the
Anti-SLAPP procedures serve the Legislature's policy. However, if for any reason,
the Court deems that the Contempt Proceeding could somehow be saved by
amendment, then Shapiro respectfully requests that the Court dismiss the contempt
claims against Shapiro, Mr. Grad and Shapiro's counsel on the alternative basis for
failure to state a plausible claim under Federal Rule of Civil Procedure 12(b)(6) or
strike these wholly unsupported allegations as immaterial and scandalous under
Federal Rule of Civil Procedure 12(f).
“The function of a 12(f) motion to strike is to avoid the expenditure of time
and money that must arise from litigating spurious issues by dispensing with those
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issues prior to trial.” See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th
Cir. 1983). “An “impertinent” allegation is neither responsive nor relevant to the
issues involved in the action and which could not be put in issue or given in
evidence between the parties." See Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D.
Cal. 2005). Allegations may be stricken as scandalous if the matter bears no possible
relation to the controversy or may cause the objecting party prejudice. See Talbot v.
Robert Matthews Distrib. Co., 961 F.2d 654, 664-665 (7th Cir. Ill. 1992) (striking
allegation that defendants conspired to cause fatal salmonella outbreak).
Improper legal terms should be stricken from pleadings. See Clark v.
Goodwill Indus. of Hawaii, Inc., No. CV0900184DAE-LEK, 2009 WL 3050277, at
*10 (D. Haw. Sept. 21, 2009)("Perjury is a serious offense, and allegations of
perjury are scandalous accusations that may result in prejudice against
Defendants.").
Hasbro's unfounded and sensational allegations of “Contempt” in the
Contempt Proceeding bear an unfortunate resemblance those in Nault's Auto. Sales,
Inc. v. American Honda Motor Co., Acura Auto. Div., 148 F.R.D. 25, 29 (D.N.H.
1993) (“Terms such as "perjury," "contempt," "liar," and "suborning of perjury"
became almost routine in Nault's pleadings.”). In Nault, similar to here, the targeted
parties moved to strike, inter alia, conclusory allegations that the defendant had
committed criminal acts labeled “perjury,” and that its counsel had “suborned
perjury “ and “pressured” a witness into signing an affidavit which it knew to
contain false information. See id., 148 F.R.D. at 33. The Court struck the
allegations of “perjury,” “suborning perjury” and other criminal conduct. The Court
specifically rejected counsel’s claim to have acted in subjective good faith:
That Nault's counsel are convinced in their own minds that the "facts" point
exclusively to one reasonable conclusion (i.e., that Honda's counsel . . .
“suborned perjury," "committed perjury," and engaged in "criminal conduct")
hardly establishes either the truth of those charges or even that those charges
were objectively reasonable when made. . . . none of that justifies the
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unsubstantiated and extreme attacks on the personal integrity, ethics and
character of defense counsel exhibited in the challenged pleadings. The tone,
the language used, and the accusations themselves are unwarranted by the
facts, either as they are presently known or as they were known to plaintiffs'
counsel when the challenged pleadings were filed.
See Nault's, 148 F.R.D. at 34-35 (D.N.H. 1993).
Without factual evidence, an attorney’s subjective belief does not free him to
“indiscriminately bludgeon the professional reputations” of other attorneys.
"[P]laintiffs' counsel . . . are of course free to believe whatever they choose to
believe. They are not free to indiscriminately bludgeon the professional reputations
of opposing counsel out of frustration, or in angry overreaction, or on mere
suspicion alone. See id., 148 F.R.D. at 36.
However convinced Hasbro’s counsel may be that they will ultimately prevail
on the merits of its "Contempt" claims, that conviction does not justify the
accusations in the Contempt Proceeding that Shapiro, Mr. Grad and Shapiro's
counsel engaged in misconduct. Such an “inference” is insufficient to justify
scandalous allegations that irrelevantly reflect on the moral character of the targets.
If the evidence is consistent with two possible interpretations, scandalous
allegations of “perjury,” “subornation of perjury” and criminal conduct against
opposing counsel should be stricken from a pleading unless they are demonstrated
“beyond mere suspicion”:
When presented with evidence which is consistent with two possible and
equally plausible, but inconsistent, interpretations of how opposing counsel
have conducted themselves, professional courtesy and dignity militate in
favor of adopting that which is consistent with ethical and professional
conduct, at least until the contrary is demonstrated beyond mere suspicion. . .
. In this instance, the Court finds there was and is no reasonable basis well
grounded in fact to have warranted Nault's allegations of perjury and
subornation of perjury in the first place, and certainly no basis for refusing to
strike those allegations now. Those allegations are stricken.
Nault's, 148 F.R.D. at 34.
Accusing opposing counsel and party's husband of "Contempt" is never nice;
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when the accusations are made and not withdrawn even after the Magistrate has
found no evidence supporting them is inexcusable. Shapiro, her husband and non-
party counsel are not being "difficult" in demanding that they not be made
defendants in this action. They are preserving their right to litigate this action free of
harassment. Therefore, in the alternative, Shapiro respectfully requests that Hasbro's
completely unsupported "Contempt" accusations be stricken and the accusatory
documents sealed [Doc. 400, 435].
IV. CONCLUSION
For the foregoing reasons, this motion should be granted.
DATED: November 28, 2016 RESPECTFULLY SUBMITTED,
LISA BORODKIN ATTORNEY AT LAW
/s/ Lisa J. Borodkin
LISA J. BORODKIN
Attorneys for Plaintiff ELINOR SHAPIRO
KING HOLMES PATERNO & SORIANO,
LLP
GAGNIER MARGOSSIAN LLP
SALLY & FITCH LLP (Pro Hac Vice)
Attorneys for Plaintiff ELINOR SHAPIRO
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
ELINOR SHAPIRO,
Plaintiff,
vs.
HASBRO, INC., and DOES 1 through 10,
Defendants.
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Case No. 2:15-cv-2964-BRO-AJW
[PROPOSED] ORDER
GRANTING PLAINTIFF
ELINOR SHAPIRO’S SPECIAL
ANTI-SLAPP MOTION TO
STRIKE PORTIONS OF
DEFENDANT’S EX PARTE
APPLICATION [DOC. 400] AND
MOTION FOR CONTEMPT
[DOC. 435]
Date: January 9, 2017
Time: 1:30 p.m.
Ctrm: 350 W. 1st St - 7C
Trial Date: March 28, 2017
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Plaintiff Elinor Shapiro ("Shapiro") has filed a Special Anti-SLAPP Motion
to Strike Defendant’s Ex Parte Application and Motion for Contempt under
California Code of Civil Procedure § 425.16 (“Anti-SLAPP Law”). Shapiro has
shown that the motion had the effect of chilling Shapiro, her counsel, and third-
party Robert Grad (“Mr. Grad”) from exercising their First Amendment rights to
petition and speech. As a result, Defendant Hasbro is not entitled to discovery or
further proceedings on the Contempt Proceeding until and unless Hasbro makes a
legal and factual showing that they are likely to prevail on the Contempt
Proceeding.
Shapiro has shown good cause for granting this motion based on a showing
that Hasbro is unlikely to succeed on the motion. In particular, Shapiro’s motion
demosntrates that Hasbro’s cases do not support its position, and that Hasbro’s
attempts to prevent Shapiro and her counsel from petitioning the Court or speaking
to the press are calculated to chill Shapiro’s First Amendment rights. Further,
Shapiro has shown good cause that Hasbro’s initial accusations of contempt were
made publically against Shapiro’s entire legal team, even those attorneys that
Hasbro had reason to know had nothing to do with the dispute over the protective
order. This strongly suggests the contempt motion was not brought for proper
purposes, but instead to chill the Plaintiff and her legal team and to disrupt the
orderly procession of this case and thereby interfere with Plaintiff’s right to access
the courts.
The Court, having considered the Plaintiff’s Special Motion to Strike
Pursuant to CCP § 425.16, the papers filed in response thereto, all other argument
and the record in this case, and for good cause shown, hereby GRANTS the
Motion.
IT IS HEREBY ORDERED that the Defendant’s Ex Parte Application
[Doc. 400] and Motion for Contempt [Doc. 435} are stricken and DISMISSED
WITH PREJUDICE. Plaintiff is awarded attorney’s fees and costs associated with
bringing this motion.
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IT IS SO ORDERED.
DATED: ____________, 2016 _____________________________
United States District Court Judge
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