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Received by the Supreme Court of California Case No. _______________ IN THE SUPREME COURT OF THE STATE OF CALIFORNIA OLIVIA DE HAVILLAND, DBE, Plaintiff and Respondent, v. FX NETWORKS, LLC AND PACIFIC 2.1 ENTERTAINMENT GROUP, INC., Defendants and Appellants. After a Published Decision of the California Court of Appeal Second Appellate District, Division 3, Case No. B285629 Reversing a Ruling of the Los Angeles County Superior Court Case No. BC667011 The Honorable Holly E. Kendig, Dept. 42 PETITION FOR REVIEW Received by the Supreme Court of California HOWARTH & SMITH Don Howarth (SBN 53783) [email protected] *Suzelle M. Smith (SBN 113992) [email protected] Zoe E. Tremayne (SBN 310183) [email protected] 523 West Sixth Street, Suite 728 Los Angeles, CA 90014 Tel: (213) 955 – 9400 Fax: (213) 622 – 0791 Attorneys for Plaintiff and Respondent Olivia de Havilland, DBE 1 TABLE OF CONTENTS Page I. ISSUES PRESENTED .......................................................................... 9 II. THIS COURT SHOULD GRANT REVIEW ...................................... 9 III. BACKGROUND ................................................................................ 13 A. Factual Summary ......................................................................... 13 B. The Trial Court Ruling ................................................................. 17 C. The Appellate Opinion ................................................................. 26 IV. LEGAL ANALYSIS .......................................................................... 29 A. Anti-SLAPP Statute ................................................................. 29 B. Constitutional Limitations on the Anti-SLAPP Statute ........... 30 C. The Opinion Renders the Statute Unconstitutional .................. 32 D. The Opinion Eliminates Jury Trial in Defamation Cases ........ 34 E. The Opinion Decimates the Comedy III-Winter Transformation Test ................................................................. 36 V. CONCLUSION .................................................................................. 37 CERTIFICATE OF COMPLIANCE...........................................................38 2 TABLE OF AUTHORITIES Cases Page(s) Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146...................................................................... 18 Bahl v. Bank of Am. (2001) 89 Cal.App.4th 389 ...................................................................... 10 Baral v. Schnitt (2016) 1 Cal.5th 376 .............................................................. 10, 11, 32, 33 Bill Johnson’s Restaurants, Inc. v. N.L.R.B. (1983) 461 U.S. 731 ................................................................................. 31 Bindrim v. Mitchell (1979) 92 Cal.App.3d 61 .......................................................................... 34 Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 ................................................................ 10, 30, 32 Browne v. McCain (C.D.Cal. 2009) 611 F.Supp.2d 1062 ...................................................... 35 Chaplinsky v. New Hampshire (1942) 315 U.S. 568 ................................................................................. 35 Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315 .................................................................. 26 City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 534-35, judg. vacated and cause remanded sub nom. City of Long Beach v. Bozek (1983) 459 U.S. 1095, sub. opn. City of Long Beach v. Bozek (1983) 33 Cal.3d 727 ..................................................................... 31 Cohill v. Nationwide Auto Service (1993) 16 Cal.App.4th 696 ...................................................................... 31 3 Comedy III Prods., Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 ....................................................................... passim Davis v. Cox (2015) 183 Wash.2d 269 .......................................................................... 33 Dixon v. Superior Court (1994) 30 Cal.App.4th 733 ...................................................................... 33 Eastwood v. National Enquirer, Inc. (9th Cir. 1997) 123 F.3d 1249.................................................................. 35 Eastwood v. Superior Court (1983) 149 Cal.App.3d 409...................................................................... 37 Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 .......................................................................... 29, 30 Garrison v. State of La. (1964) 379 U.S. 64 ................................................................................... 35 Good Gov’t Grp. of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672 ......................................................................... 34, 35 Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d. 860 ........................................................................ 28, 36 Hutchinson v. Proxmire (1979) 443 U.S. 111 ........................................................................... 11, 34 Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 .............................................................................. 30 Leiendecker v. Asian Women United of Minnesota (Minn. 2017) 895 N.W.2d 623 ................................................................. 33 Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429 .............................................................................. 32 4 MacLeod v. Tribune Publishing Co., Inc. (1959) 52 Cal.2d 536 ......................................................................... 34, 35 Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 ................................................................ 32, 33 Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496 .......................................................................... passim McCoy v. Hearst Corp. (1986) 92 Cal.App.3d 61 .......................................................................... 34 Navellier v. Sletten (2002) 29 Cal. 4th 82 ............................................................................... 30 Navellier v. Sletten (2003) 106 Cal.App.4th 763 ........................................................ 17, 19, 24 New York Times Co. v. Sullivan (1964) 376 U.S. 254 ................................................................................. 34 No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018 ........................................................... passim Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 ............................................................ 10, 11, 32, 33 Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688 .............................................................. 10, 33 Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244 ................................................................... 10, 21, 33 Robertson v. Rodriguez (1995) 36 Cal.App.4th 347 ................................................................ 10, 33 Rosenthal v. Great Western Fin. Securities Corp., (1996) 14 Cal.4th at 394 .......................................................................... 31 5 S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374 .............................................................................. 30 Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123.................................................................... 35 Shaw v. Superior Court (2017) 2 Cal.5th 983 .......................................................................... 13, 31 Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260 ........................................................................ 11, 32 St. Amant v. Thompson (1968) 390 U.S. 727 ........................................................................... 33, 34 Un Hui Nam v. Regents of the Univ. of California (2016) 1 Cal.App.5th 1176 ................................................................ 29, 30 Washburn v. Wright (1968) 261 Cal.App.2d 789...................................................................... 28 Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991................................................................ 11, 12 Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 ................................................................ 29, 32 Winter v. DC Comics (2003) 30 Cal.4th 881 ............................................................ 10, 11, 36, 37 Zacchini v. Scripps-Howard Broadcasting (1977) 433 U.S 562 ............................................................................ 22, 37 Statutes Code Civ. Proc. § 425.16....................................................................... 29, 32 Code Civ. Proc. § 631(a) ............................................................................. 31 Code Civ. Proc. § 990.................................................................................. 22 6 Other Authorities Alighieri, “The Divine Comedy” (1320) ..................................................... 28 Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs (1993) 26 Loyola L.A. L. Rev. 395 ......................................................... 30 Bonner, How ‘Feud: Bette and Joan’ Got Away with Saying the C-Word on TV (Mar. 6, 2017) Marie Claire (https://www.marieclaire.com/culture/news/a25774/feud-c-word/) ........ 15 Brownfield, At 101, a Survivor of Hollywood’s Golden Age Throws
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