Argued and Submitted February 6, 2013 —Pasadena, California
Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding D.C. No. 8:11-cv-00389-AG-MLG
Kelli L. Sager (argued), Rochelle L. Wilcox, and Lisa J. Kohn, Davis Wright Tremaine LLP, Los Angeles, California, for Defendants-Appellants.
Eric M. Schiffer (argued), William L. Buus, and Leslie F. Vandale, Schiffer & Buus, APC, Newport Beach, California, for Plaintiff-Appellee.
Before: Harry Pregerson, William A. Fletcher, and Jacqueline H. Nguyen, Circuit Judges.
The panel affirmed in part, and reversed in part, the district court's denial of defendants' anti-SLAPP motion, a special motion to strike the complaint under California Code of Civil Procedure § 425.16, in an action brought by plaintiff John Doe whose identity was not concealed in an episode of defendants' documentary television series, Gangland.
The panel held that California's anti-SLAPP statute applied to plaintiff's lawsuit because it arose from defendants' conduct in furtherance of their right of free speech in connection with issues of public interest. The panel held that at this juncture plaintiff's claims were not barred by the release he signed, and his statements were not barred by the parol evidence rule. The panel held that plaintiff met his burden to show a probability of prevailing on his claims for public disclosure of private fact; intentional infliction of emotional distress; false promise; and declaratory relief. The panel struck plaintiff's claims for appropriation of likeness and negligent infliction of emotional distress because plaintiff failed to establish a probability of prevailing on those two claims. The panel also held that plaintiff's multiple claims were not barred by California's single publication rule.
PREGERSON, Circuit Judge:
Defendants' documentary television series, Gangland, provides an inside glimpse into America's most notorious street gangs. Plaintiff, a former prison gang member and police informant, has personal knowledge of certain high profile gangs. Plaintiff asserts that he agreed to be interviewed for an episode of Gangland on condition that his identity would be concealed in the broadcast. Defendants contend that Plaintiff knowingly signed a release that gave them the right to broadcast Plaintiff's identity.
When the Gangland episode aired, Plaintiff's identity was not concealed. Plaintiff filed a lawsuit for various claims alleging that Defendants' failure to conceal his identity in the broadcast endangered his life and cost him his job as an informant. Defendants then filed an anti-SLAPP motion, a special motion to strike the complaint under the California Code of Civil Procedure § 425.16. The district court denied the motion on the ground that Defendants failed to show that the anti-SLAPP statute is applicable to Plaintiff's complaint. Defendants bring an interlocutory appeal of the district court's order. We affirm in part and reverse in part the district court's denial of Defendants' anti-SLAPP motion.
JURISDICTION & STANDARD OF REVIEW
We have jurisdiction to review the denial of a motion to strike made pursuant to California's anti-SLAPP statute. DC Comics v. Pacific Pictures Corp., 706 F.3d 1009, 1011 (9th Cir. 2013); Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003).
We review de novo the district court's denial of an anti-SLAPP motion. Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010).
PROCEDURAL AND FACTUAL BACKGROUND
A. Plaintiff's Interview for Gangland
Defendants Gangland Productions, Inc. and A&E Television Networks, LLC, are the producers of the documentary television series, Gangland, which explores "some of America's most notorious gangs and the efforts of law enforcement agencies working to stop them." This lawsuit arises from a Gangland episode on the history of a white supremacist gang, Public Enemy Number 1.
Plaintiff John Doe worked as a police informant because of his personal knowledge of certain high profile gangs. In late 2009, Plaintiff was introduced to Gangland producer, Stephanie Kovac, by a police officer. The police officer suggested that Kovac may want to speak to Plaintiff about Public Enemy Number 1. Although Plaintiff was never a member of Public Enemy Number 1, he was a childhood friend of Scott Miller, one of the gang's co-founders. Miller was allegedly murdered by members of Public Enemy Number 1. Shortly after his introduction to Kovac, Plaintiff agreed to be interviewed for Gangland for $300.
Plaintiff claims he told Kovac that he agreed to be interviewed on the condition that his face would be concealed. Plaintiff alleges that he wore a hat and a bandana to cover his face when he entered the interview room because he did not want his identity disclosed on camera. Plaintiff asserts Kovac told him that he did not need the hat or the bandana because his identity would be concealed through the production process. Plaintiff claims he removed those items based on these representations. Plaintiff emphasizes that he made it clear to Kovac and the cameraman that his life would be in danger if his identity was not concealed. According to Plaintiff, Kovac and the cameraman told him that they understood.
In contrast, Kovac asserts that before the interview, Plaintiff was not wearing anything that concealed his identity. Kovac claims that Plaintiff was shown on a camera monitor how he would appear on the program without his face concealed in any way, and that he approved his unconcealed appearance. According to Kovac, Plaintiff never requested that his identity be concealed. Plaintiff also posed for photographs showing his face and gang tattoos, and provided Kovac additional photographs showing his face and tattoos. Plaintiff admits that he had photographs taken but asserts that he believed his face and identity would be concealed in the photographs. Plaintiff asserts that his tattoos alone, without his face, do not reveal his gang affiliation.
The parties also dispute whether Plaintiff signed a release concerning his participation in Gangland. Defendants claim that when Plaintiff arrived at the interview, Kovac asked him to sign a one-page release entitled "PROGRAM PARTICIPATION RELEASE AND CONSENT AGREEMENT." The release stated that the "Participant" grants Gangland Productions, Inc. the right to film, record, and use "[his] name, likeness, image, voice, interview and performance." The release further provided:
The Participant agrees that Participant has allowed Participant's real name and identity to be used in the Program and, further, understands and acknowledges that revealing Participant's real name and identity in the Program may be dangerous for Participant and may result in bodily harm or death to Participant.
The release also waived all claims against anyone associated with the program for infringement of rights of publicity or misappropriation, intrusion, invasion of privacy, and infliction of emotional distress.
Plaintiff tells a different story. Plaintiff claims that before filming his interview, and after he had been told his identity would be concealed, he was asked to sign a document. Plaintiff states that he is dyslexic, is illiterate, and told Kovac that he has "extreme difficulty reading." Kovac allegedly told Plaintiff the document was "just a receipt" for his $300 payment. Plaintiff further alleges that he tried to have his girlfriend, who accompanied him to the interview, read the document to him before he signed it. But, according to Plaintiff, Kovac told him that was not necessary because it was only a receipt. Because of Kovac's representations, Plaintiff signed the document. Plaintiff never received a copy of the document he signed, and he believes that the document he signed was shorter than the release submitted by Defendants.
B. The Gangland Broadcast
The Gangland episode aired on the History Channel. In the episode, several Public Enemy Number 1 members, with their full names and appearances disclosed, discussed the gang's violent activities. One member, with his face and voice concealed, talked about his knowledge of the gang. Photographs of other Public Enemy Number 1 members were shown with their faces concealed. Plaintiff appeared in the program, identified by his nickname, and was identified as a former member of an unspecified gang.
The episode portrayed the murder of Miller, co-founder of Public Enemy Number 1. Miller had discussed Public Enemy Number 1 in a television interview. His face was covered and his voice was disguised, but he was identifiable by his tattoos and other personal traits. Some members believed Miller had crossed the line, so he was allegedly brutally murdered. Miller had been a childhood friend of Plaintiff's and Plaintiff knew of the murder. In the episode, Plaintiff talked about Public Enemy Number 1 and details of Miller's murder. The episode reported on numerous other violent crimes allegedly committed by Public Enemy Number 1.
C. Plaintiff's Lawsuit
Plaintiff filed a Complaint and a First Amended Complaint after the Gangland episode aired. Plaintiff's First Amended Complaint asserts claims for: (1) appropriation of likeness; (2) public disclosure of private fact; (3) false promise; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; and (6) declaratory relief. Plaintiff alleges that after the Gangland episode aired: (1) he is no longer employable as an informant for law enforcement; (2) he has received numerous death threats; (3) he ...