(Los Angeles County Super. Ct. No. BC414332) APPEAL from an order of the Superior Court of Los Angeles County, Michael C. Solner, Judge. Reversed and remanded.
The opinion of the court was delivered by: Manella, J.
CERTIFIED FOR PUBLICATION
CBS Broadcasting, Inc. and Sarah Goldfinger (collectively defendants or appellants) appeal from the denial of their special motion to strike pursuant to Code of Civil Procedure section 425.16, also known as the anti-SLAPP statute.*fn1 After independently reviewing the record, we conclude that the trial court erred in denying the anti-SLAPP motion. Accordingly, we reverse and remand with instructions to grant the anti-SLAPP motion.
FACTUAL AND PROCEDURAL HISTORY
In 2005, Goldfinger met Scott and Melinda Tamkin (collectively, the Tamkins, plaintiffs, or respondents) when she was in the process of buying a home. The Tamkins, married real estate agents who lived in Los Angeles, represented the seller of a home on which Goldfinger had made an offer. After Goldfinger's offer was accepted, she exercised her right to cancel the transaction because an inspection revealed the property would require extensive remediation.
Goldfinger was one of the writers for the popular CBS television show, CSI: Crime Scene Investigation (CSI), which is set in Las Vegas, Nevada. According to defendants, each episode of CSI is "written collaboratively, through multiple drafts, with input from executive producers, the studio and the network." "The process moves quickly, with shows typically written and filmed within weeks." The process is as follows: "First, executive producers assign writers to work on an episode. . . . Once an outline is approved, the writers work on preliminary drafts of an initial script. . . . Typically, there are . . . very early drafts of the initial scripts which are circulated internally among the production staff: the 'Preliminary Writers' Draft,' the 'Writers' Draft,' and in some cases, the 'Revised Writers' Draft' (collectively, the 'Writers' Drafts'). . . . The next draft, for broader distribution, is the 'First Draft.'"
"Early Writers' Drafts are kept confidential, shared only amongst the producers and writers of each episode. [Citation.] When necessary due to time constraints, the casting staff receives Writers' Drafts to begin the process of casting guest roles prior to filming. An outside service prepares 'breakdowns,' or short written synopses of the characters, for use during casting. [Citation.] Each script undergoes a legal clearance process before it is produced, generally before the First Draft is distributed, to ensure that names and places used by [CSI] do not infringe on anyone's rights. [Citations.] As part of that vetting, all character names are changed if they match real-life individuals."
In fall of 2008, Goldfinger and Corinne Marrinan were assigned to write CSI episode 913 (season 9, 13th episode). Their proposed storyline about a murder in a fast food restaurant was approved as the main story -- the "A" story, but the executive producer wanted a separate story involving a second crime -- a "B" story. The executive producer and the writers hammered out the concepts of the "B" story. It would involve a married couple in the real estate and/or mortgage businesses, one of whom would commit suicide by overdosing on fluoride.
Goldfinger used Scott and Melinda Tamkin as the names of the married real estate couple in the Early Writers' Drafts for episode 913. Within six days of the completion of the Preliminary Writers' Draft, and before the First Draft was broadly disseminated, the legal clearance process was completed, and the characters' name in the "B" story were changed to Scott and Melinda Tucker.
In the interim, however, an "incomplete preliminary draft" of episode 913 was sent to Breakdown Services, Ltd. (Breakdown Services) by CBS casting staff, and Breakdown Services was requested to break down the roles in the draft. One of the writers for Breakdown Services then created casting synopses based upon the preliminary draft, including the following two synopses:
"[SCOTT TAMKIN] Mid to late-30's, this slick, attractive, hard-drinking extensive bondage/porn-watching man who's been a mortgage broker since college feels his world drop out from under him during the mortgage crisis. His clients have left him and his own house may be foreclosed on. He is a suspect in his wife Melinda's murder. . . GUEST STAR.
"[MELINDA TAMKIN] Mid 30's, Scott's wife, she's attractive, athletic real estate agent. Unlike Scott, she didn't let the recent economic downturn freak her out. Melinda's death may have occurred during kinky sex in which she was handcuffed to the bed. . . CO-STAR."
Breakdown Services sent the casting synopses to CBS casting staff for approval, and then "were given the authority to release it to talent representatives in Los Angeles." At some time during this process, the casting synopses were leaked and posted on various internet Web sites, including to some "spoiler" Web sites discussing CSI. According to defendants, "[t]hese websites provide public forums for CSI fans to discuss all aspects of the show, including plot lines for upcoming shows."
Episode 913 was broadcasted on February 12, 2009. According to a ratings Web site, the show attracted 17.43 million viewers and was the most watched show that night. In episode 913, the married real estate couple, who lived in Las Vegas, was named Scott and Melinda Tucker. Scott and Melinda were portrayed by Caucasians, who did not wear glasses and looked like they were in their mid-30s, in good physical shape, and of normal height and weight. There was no indication that they had children. They were experiencing marital discord. Scott, a mortgage broker, was initially shown as being "wasted" or very drunk on the couch in the living room. He used high fluoride toothpaste and was suffering from receding gums. He had recently watched bondage pornography. Scott was a suspect in his wife's death. Melinda was initially shown dead, handcuffed to the bed in the upstairs bedroom. A half-empty glass of wine and a pair of running shoes were also shown in the room. Melinda also used high fluoride toothpaste and had been a dental hygienist prior to becoming a real estate agent. The couple was facing foreclosure on their home. When it was revealed that Melinda had committed suicide and had tried to frame her husband for murder, Scott suggested that Melinda framed him because she blamed him for the loss of their house and their friends, some of whom were clients who had taken out "ninja loans" through Scott and had lost their homes during the housing crisis.*fn2
On May 22, 2009, Scott and Melinda Tamkin filed a complaint for defamation/defamation per se and false light invasion of privacy against defendants arising from defendants' alleged "intentional and reckless conduct with respect to the writing and dissemination of a screenplay." According to plaintiffs, "[a]fter Defendant Goldfinger was involved in a failed real estate transaction with Plaintiffs, Scott and Melinda Tamkin, she hijacked their complete names, physical characteristics, personal characteristics, marital relationship, ages and professions to craft, without their knowledge or consent, an episode of the global blockbuster CSI: Crime Scene Investigation. Defendant Goldfinger then proceeded to embarrass the Tamkins, and potentially damage the successful business relationships they have taken years to build, by creating from whole cloth characters engaged in a reckless lifestyle of sexual bondage, pornography, drunkenness, marital discord, depression, financial straits, and possibly even murder." (Italics added.) The Tamkins acknowledged that the names of Goldfinger's characters were changed during the actual broadcast of episode 913, but alleged that "the damage was clearly done because of the widespread dissemination on the internet" of casting synopses containing the Tamkins' names.
The Tamkins alleged that the casting synopses contained defamatory statements. They assert that it was defamatory to describe the Scott Tamkin character as a slick, hard-drinking, extensive bondage/porn watching man who feels his world drop out from him during the mortgage crisis. It was also defamatory to state that "His clients have left him and his own house may be foreclosed on. He is a suspect in his wife Melinda's murder." Similarly, it was defamatory to state that the Melinda Tamkin character's "death may have occurred during kinky sex in which she was handcuffed to the bed."
Defendants filed an answer, generally denying the allegations and raising the anti-SLAPP statute as an affirmative defense. On August 13, 2009, defendants filed an anti-SLAPP motion to strike the complaint. In their motion, they asserted that their conduct was protected activity and that plaintiffs could not establish a probability of prevailing on their claims. Goldfinger filed a declaration in support of the anti-SLAPP ...