California Court of Appeals, Second District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[257
Cal.Rptr.3d 401] APPEAL from an order of the Superior Court
of Los Angeles County. Ann I. Jones, Judge. Affirmed in part
and reversed in part with directions. (Los Angeles County
Super. Ct. No. BC548468)
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[Copyrighted Material Omitted]
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COUNSEL
Katten
Muchin Rosenman, Zia F. Modabber, Andrew J. Demko, Charlotte
S. Wasserstein, Leah E. A. Solomon, Los Angeles; Kinsella
Weitzman Iser Kump & Aldisert, Howard Weitzman and Suann C.
Macisaac, Santa Monica, for Defendants and Appellants.
Moss
Bollinger, Jeremy F. Bollinger, Ari E. Moss, Sherman Oaks,
and Dennis F. Moss, Los Angeles, for Plaintiff and
Respondent.
OPINION
LUI,
P. J.
Page 108
[257
Cal.Rptr.3d 402] Defendants and appellants Sony Music
Entertainment (Sony), John Branca, as co-executor of the
estate of Michael J. Jackson (the Estate), and MJJ
Productions, Inc. (collectively Appellants) appealed from an
order of the superior court partially denying their motion to
strike under the anti-SLAPP statute. (Code Civ. Proc., §
425.16.)[1] We previously issued an opinion in
this case holding that the claims of plaintiff and respondent
Vera Serova (Serova) against Appellants should be struck
under section 425.16. (Serova v. Sony Music
Entertainment (2018) 26 Cal.App.5th 759, 237 Cal.Rptr.3d
487 (Serova I ).) Our Supreme Court granted review
and subsequently transferred the case back to this court for
reconsideration in light of the Supreme Courts decision in
FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7
Cal.5th 133, 246 Cal.Rptr.3d 591, 439 P.3d 1156
(FilmOn ).
The
case concerns allegations that Appellants misleadingly
marketed a posthumous Michael Jackson album entitled simply
"Michael." Serova claims that the album cover and a
promotional video wrongly represented that Jackson was the
lead singer on each of the 10 vocal tracks on the album, when
in fact he was not the lead singer on three of those tracks.
Serova alleged claims under the Unfair Competition Law (UCL;
Bus.& Prof. Code, § 17200 et seq.) and the Consumers Legal
Remedies Act (CLRA; Civ. Code, § 1750 et seq.). Serova also
brought a fraud claim against defendants Edward Joseph
Cascio, James Victor Porte, and Cascios production company,
Angelikson Productions, LLC (collectively, the Cascio
Defendants), alleging that those defendants knowingly
misrepresented to Appellants that Jackson was the lead singer
on the three tracks at issue (the Disputed
Tracks).[2]
Our
prior opinion held that: (1) Serovas claims against
Appellants arose from conduct furthering Appellants right of
free speech "in connection with a public issue"
under section 425.16, subdivision (e)(3) and (4); and (2)
Serova did not show a probability that her claims under the
UCL and the CLRA would succeed because the claims concern
noncommercial speech that is not actionable under those
statutes.
Upon
reconsideration of these holdings in light of
FilmOn, we conclude that our original opinion was
correct. Consequently, we largely adopt that
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opinion, except that we have revised the discussion of the
first step of the anti-SLAPP procedure in part 1 below to
take account of the FilmOn decision and its
application to the circumstances of this case.
[257
Cal.Rptr.3d 403] FilmOn concerned only the first
step of the anti-SLAPP analysis, i.e., whether particular
claims arise from conduct that the anti-SLAPP statute
protects. Specifically, FilmOn considered
"whether the commercial nature of a defendants speech
is relevant in determining whether that speech merits
protection" under section 425.16, subdivision (e)(4).
(FilmOn, supra, 7 Cal.5th at p. 140, 246 Cal.Rptr.3d
591, 439 P.3d 1156.) The court concluded that the context of
a statement— including "the identity of the
speaker, the audience, and the purpose of the speech"
— is "relevant, though not dispositive, in
analyzing whether the statement was made in furtherance of
free speech in connection with a public issue."
(Ibid ., quoting § 425.16, subd. (e)(4).)
As we
explained in our prior opinion, the representations that
Serova challenges— that Michael Jackson was the lead
singer on the three Disputed Tracks— did not simply
promote sale of the album, but also stated a position on a
disputed issue of public interest. Before the album was
released, certain Jackson family members and others publicly
claimed that Jackson was not the lead singer on the Disputed
Tracks. Appellants disputed this claim. An attorney acting
for the Estate released a public statement outlining the
steps Appellants had taken to verify the authenticity of the
tracks by consulting with experts and persons who were
familiar with Jacksons voice and recordings.
Thus,
the identity of the artist on the three Disputed Tracks was a
controversial issue of interest to Michael Jackson fans and
others who care about his musical legacy. By identifying the
singer on the Disputed Tracks as Michael Jackson, Appellants
challenged statements made a direct claim about the
controversy itself. The statements were made publicly to an
audience— potential purchasers of the album— that
was likely to have an interest in the identity of the singer.
And, although Appellants ultimate goal was presumably to
sell albums by marketing songs sung by Michael Jackson, that
goal did not make the controversy over the identity of the
artist any less real or important to those who cared about
the issue. The challenged statements furthered Appellants
position on the controversy by articulating a consistent and
unqualified belief in the identity of the artist. Appellants
challenged statements were therefore sufficiently connected
to an issue of public interest to warrant anti-SLAPP
protection.
Our
Supreme Courts decision in FilmOn did not address
the second step of the anti-SLAPP analysis, which concerns
the merits of a plaintiffs claims. Nor did it address the
criteria for identifying commercial and noncommercial
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speech under the First Amendment. That issue was the focus of
our prior ruling that the speech that Serova challenges was
outside the scope of the consumer protection laws on which
her claims are based. Thus, we have no reason to reconsider
our prior ruling on the second step of the anti-SLAPP
procedure, which we reproduce (with minor changes) in part 2
below.
BACKGROUND
1. The Anti-SLAPP Procedure
Section
425.16 provides for a "special motion to strike"
when a plaintiff asserts claims against a person
"arising from any act of that person in furtherance of
the persons right of petition or free speech under the
United States Constitution or the California Constitution in
connection with a public issue." (§ 425.16, subd.
(b)(1).) Such claims must be stricken "unless the court
determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the
claim." (Ibid .)
[257
Cal.Rptr.3d 404] Thus, ruling on an anti-SLAPP motion
involves a two-step procedure. First, the moving defendant
must show that the challenged claims arise from protected
activity. (Baral v. Schnitt (2016) 1 Cal.5th 376,
396, 205 Cal.Rptr.3d 475, 376 P.3d 604 (Baral );
Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, 39
Cal.Rptr.3d 516, 128 P.3d 713.) Second, if the defendant
makes such a showing, the "burden shifts to the
plaintiff to demonstrate that each challenged claim based on
protected activity is legally sufficient and factually
substantiated." (Baral, at p. 396, 205
Cal.Rptr.3d 475, 376 P.3d 604.) Without resolving evidentiary
conflicts, the court determines "whether the plaintiffs
showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment."
(Ibid. )
Section
425.16, subdivision (e) defines the categories of acts that
are in " furtherance of a persons right of petition or
free speech. " Those categories include "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," and "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)(3) & (4).)
In 2003
the Legislature enacted section 425.17 to curb "a
disturbing abuse of Section 425.16 ... which has undermined
the exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances, contrary
to the purpose and intent of Section 425.16." (§ 425.17,
subd. (a).) Section 425.17 seeks to accomplish that goal by
expressly excluding several categories of claims from the
scope of section 425.16.
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Section 425.17, subdivision (c) establishes such an exclusion
for claims concerning some commercial speech. That
subdivision provides that section 425.16 does not apply to
"any cause of action brought against a person primarily
engaged in the business of selling or leasing goods or
services" if certain conditions exist, including that:
(1) the statement at issue "consists of representations
of fact about that persons or a business competitors
business operations, goods, or services" that was made
to promote commercial transactions or was made "in the
course of delivering the persons goods or services";
and (2) the intended audience is an actual or potential
customer or a person likely to influence a customer. (§
425.17, subd. (c)(1) & (2).)
Section 425.17 contains certain specifically defined
exceptions. One of those exceptions states that the
commercial speech provision in section 425.17, subdivision
(c) 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." (§
425.17, subd. (d)(2).)
2.
Serovas Allegations [3]
The
album "Michael" was released on or about December
14, 2010, about 18 months after Michael Jacksons death. Sony
released the album in conjunction with the Estate.
The
album contained 10 songs. Serova alleges that the three songs
on the Disputed Tracks— "Breaking News,"
"Monster," [257 Cal.Rptr.3d 405] and "Keep
Your Head Up" (the Songs)— have been controversial
"[s]ince Michaels inception."
Serova
claims that the Cascio Defendants recorded the initial
versions of the Disputed Tracks and had "exclusive
knowledge" that the lead vocals for the Songs were
actually performed by a singer other than Michael Jackson.
Serova alleges that Cascio then falsely represented to
Appellants that Michael Jackson was the singer.
Prior
to "Michaels" release, various members of Michael
Jacksons family and others familiar with his recordings
disputed whether he was the lead singer on the Disputed
Tracks. In response to those concerns, Sony and the Estate
(through Attorney Howard Weitzman) both publicly issued
statements confirming their belief that Jackson was the
singer.
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In his
statement (the Weitzman Statement), Weitzman explained that
many persons who were familiar with Jacksons work had
confirmed that he was the lead singer on the Disputed Tracks,
including former producers, engineers, performers, and
directors who had worked with Jackson. He stated that the
Estate and Sony had also retained forensic musicologists who
examined the Disputed Tracks and concluded that the lead
singer was actually Jackson. He also stated that he had
spoken to the singer whom some persons had "wrongfully
alleged was a soundalike singer that was hired to
sing" on the Disputed Tracks, and that the singer had
denied any involvement with the project. Weitzman explained
that, "given the overwhelming objective evidence
resulting from the exhaustive investigations," Sony
decided to include the Disputed Tracks on the album
"because they believed, without reservation, that the
lead vocal[s] on all of those tracks were sung by Michael
Jackson."
The
album cover for "Michael" (Album Cover) included a
statement that " [t]his album contains 9 previously
unreleased vocal tracks performed by Michael Jackson.
"[4] A video released before the album (the
Promotional Video) described "Michael" as " a
brand new album from the greatest artist of all time. "
While appearing on the Oprah Winfrey show, Cascio
also stated that Jackson performed the lead vocals on the
Disputed Tracks.
The
Complaint alleges that the lead singer on the Disputed Tracks
actually sounds like the "soundalike" singer
mentioned in the Weitzman Statement. Serova claims she
discovered evidence indicating that the lead singer on the
Disputed Tracks was not Michael Jackson. Among other things,
she claims that: (1) Cascio did not produce any "demos,
outtakes, alternate takes, and multi-track recordings"
when requested; (2) Jackson never mentioned that he had
recorded the Songs; (3) the Songs did not appear on a list of
ongoing or planned projects found in Michael Jacksons house
after his death; and (4) various persons that the Weitzman
Statement said had confirmed that the lead singer on the
Disputed Tracks was Jackson in fact had doubts about that
conclusion.
Serova
also hired an audio expert who prepared a report concluding
that Michael Jackson "very likely did not sing" the
lead vocals on the Disputed Tracks. The report was
peer-reviewed by another expert who concluded that the
studys "methodologies and conclusions were
reasonable."
The
Complaint alleges claims against all defendants under the
CLRA and UCL, and asserts a fraud claim against the Cascio
Defendants only. The
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Complaint claims [257 Cal.Rptr.3d 406] that thousands of
putative class members purchased "Michael" and lost
"money or property" as a result of the alleged
misleading representations.
3. Appellants Anti-SLAPP Motion
Appellants
and the Cascio Defendants filed motions to strike under
section 425.16. Appellants argued that Serovas claims arose
from protected speech under prong one of the anti-SLAPP
procedure. With respect to prong two, Appellants argued that
Serova could not succeed on her claims against them because
their challenged statements about the identity of the lead
singer on the Disputed Tracks were noncommercial speech as a
matter of law and no reasonable consumer could find the
statements misleading.
To
permit a ruling on the anti-SLAPP motions in advance of
discovery, the parties stipulated that, "solely for
purposes of this determination on the Motions," Michael
Jackson did not sing the lead vocals on the three Disputed
Tracks (the Stipulation). The parties also stipulated to the
authenticity ...