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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 RICHARD C. ALEXANDER, ) 8 ) 2:11-cv-00025-GEB-DAD Plaintiff, ) 9 ) v. ) ORDER GRANTING DEFENDANT’S 10 ) ANTI-SLAPP MOTION, AND A&E TELEVISION NETWORKS, LLC, ) DISMISSING PLAINTIFF’S FIRST 11 and DOES I through XXX, ) AMENDED COMPLAINT WITH inclusive, ) PREJUDICE 12 ) Defendants. ) 13 ______) 14 15 Defendant moves under California Civil Procedure Code section 16 425.16 (California’s “anti-SLAPP” statute) for an order striking 17 Plaintiff’s defamation claim in his First Amended Complaint (“FAC”), 18 which is the sole claim. Plaintiff opposes the motion. Plaintiff’s 19 defamation claim concerns Defendant A&E Television Network’s 20 (“Defendant”) use of a photograph of Plaintiff in a television program 21 called Gangland. 22 I. Legal Standard 23 “California’s anti-SLAPP statute permits . . . dismiss[al of] 24 meritless defamation cases ‘aimed at chilling expression through costly, 25 time-consuming litigation.’” Price v. Stossel, 620 F.3d 992, 999 (9th 26 Cir. 2010) (quoting Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 27 (9th Cir. 2001)). This “statute can be invoked by defendants who are in 28 federal court on the basis of diversity jurisdiction.” Id. Subject

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1 matter jurisdiction over this action is based upon diversity of 2 citizenship. 3 When deciding an anti-SLAPP motion “the court . . . engage[s] 4 in a two-step process.” Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 5 4th 53, 67 (2002). 6 First, the court decides whether the defendant has made a threshold showing that the challenged cause 7 of action is one arising from protected activity. The moving defendant’s burden is to demonstrate 8 that the act or acts of which the plaintiff complains were taken “in furtherance of the 9 [defendant]’s right of . . . free speech under the United States or California Constitution in 10 connection with a public issue,” as defined in the statute. 11

12 Id. (quoting CAL. CIV. PROC. CODE § 425.16(b)(1)). “The phrase ‘act . . . 13 in furtherance of the person’s right of . . . free speech under the 14 United States or California Constitution in connection with a public 15 issue’ is defined by four specific categories of communications.” Hilton

16 v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010) (citing CAL. CIV.

17 PROC. CODE § 425.16(e)(1)-(4)). The relevant category in this case “is the 18 fourth, catch-all category: ‘any other conduct in furtherance of the 19 exercise of the . . . constitutional right of free speech in connection

20 with a public issue or an issue of public interest.’” Id. (quoting CAL.

21 CIV. PROC. CODE § 425.16(e)(4)). 22 Second, “[i]f the court finds . . . a showing [under step one] 23 has been made, it then determines whether the plaintiff has demonstrated 24 a probability of prevailing on the claim.” Equilon, 29 Cal. 4th at 67. 25 “[T]he plaintiff must demonstrate that the complaint is both legally sufficient and supported 26 by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence 27 submitted by the plaintiff is credited. In deciding the question of potential merit, the trial court 28 considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the

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1 court does not weigh the credibility or comparative probative strength of competing evidence, it should 2 grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats 3 the plaintiff’s attempt to establish evidentiary support for the claim.” 4 5 Manufactured Home Cmtys., Inc. v. Cnty. Of San Diego, --- F.3d ----, 6 2011 WL 3771277, at *4 (9th Cir. 2011) (quoting Wilson v. Parker, Covert 7 & Chidester, 28 Cal. 4th 811, 821 (2002)). 8 II. Background 9 Gangland is a “documentary television series” that Defendant 10 airs on one of its cable television networks. (Decl. of Douglas S. 11 Kneissl in Supp. of Def.’s Mot. to Strike (“Kneissl Decl.”) ¶ 4.) 12 Gangland “explores the history of some of America’s most notorious gangs 13 and the efforts of law enforcement agencies to stop them.” (Decl. of 14 Julie Hughes in Supp. of Def.’s Mot. to Strike ¶ 3.) The episode of 15 Gangland at issue is titled “Snitch Slaughter” (hereinafter referred to 16 as “the episode”). Defendant lodged a Digital Video Disc copy and 17 transcript of the episode with the Court. This evidence is part of the 18 record concerning the anti-SLAPP motion and has been considered. 19 The episode profiles a gang called the Vagos Outlaw Motorcycle 20 Club (“Vagos Gang”). The Vagos Gang is described in the episode as “one 21 of America’s biggest biker gangs” whose members “commit robberies,” 22 “rapes,” and “murders.” The episode describes the history and traditions 23 of the Vagos Gang, and how some of its members act as informants for law 24 enforcement agencies. A Vagos Gang member named Lonesome is interviewed 25 periodically in the episode. Lonesome is described as a “thief,” 26 “assassin,” and “professional snitch with deep ties to the law.” 27 Lonesome is donning a short, brown, goatee-style mustache and beard in 28

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1 the episode. He also is wearing a bandana on top of his head and sunglasses. 2 The only depiction of Plaintiff in the episode is in a 3 photograph of Plaintiff standing next to Yak Yak, the Vagos Gang’s 4 Sacramento Chapter President. Plaintiff is not mentioned by name during 5 the episode. The photograph is shown briefly twice in the episode. In 6 this photograph, Plaintiff and Yak Yak are facing the camera, and Yak 7 Yak’s arm is around Plaintiff’s shoulder. Plaintiff’s eyes and the area 8 surrounding his eyes are covered by a black bar, and Plaintiff is 9 donning a long, white beard and is wearing a black top hat. Yak Yak has 10 a shorter beard and is wearing a bucket hat. Yak Yak’s face is not 11 covered by a black bar in any way, but he is wearing sunglasses. 12 Plaintiff alleges: “The . . . photograph was taken . . . at a picnic 13 held in 2000 or 2001 at Rollins Lake, in Nevada County, California, 14 during a mountain campout of the Grandfather’s Motorcycle Club.” (FAC ¶ 15 11.) 16 The photograph first appears approximately three-quarters of 17 the way into the episode during a segment describing a plan by Vagos 18 Gang members to kill a drug dealer at his house and steal his money. The 19 pertinent dialogue of this segment is as follows: 20 NARRATOR: In October 2004, the Vagos asked Lonesome to be part of another home invasion. The 21 plan was to meet at a tattoo parlor in Sacramento. The Vagos Chapter President, 22 Yak Yak, was there to give the thieves their mission. 23 LONESOME: Yak and they were talking about this guy, 24 had a lot of money and had a lot of weed. They wanted to kill the guy, take his 25 money, kill his girlfriend if she was there. 26 NARRATOR: Yak Yak and the Vagos suspected the 27 dealer was holding $300,000. Lonesome was told to find and execute him. That 28 afternoon, Lonesome spotted his target leaving a local store but reported back

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1 to Yak Yak that he had lost his target in traffic. 2 LONESOME: I came back to the tattoo shop. They 3 found out that this guy had been tipped off by detectives that he was going to be 4 killed, that there was a hit out on him or he was going to be robbed and 5 murdered. 6 NARRATOR: The Vagos realized they had a snitch in their ranks. 7 8 The photograph is shown while the narrator states the following six 9 words from the above-excerpted dialogue: “Yak Yak and the Vagos 10 suspected[.]” This segment of the episode also shows Lonesome while he 11 is being interviewed, and multiple still pictures of Yak Yak. 12 The second time the photograph is shown is approximately two 13 minutes after the first showing, during a segment describing Yak Yak’s 14 plan to kill another member of the Vagos Gang. The pertinent dialogue of 15 this segment is as follows: 16 NARRATOR: Yak Yak was convinced Lonesome wasn’t a snitch. He gave him a new assignment, 17 asking him to take out another member, Big Wood, who was one of the leader’s 18 best friends. 19 LONESOME: It was greed on Yak’s part totally. 20 NARRATOR: Yak Yak wanted Big Wood killed because he had just scored a huge drug deal and was 21 holding a lot of money. 22 LONESOME: He wanted somebody to literally blow Big Wood’s head off, you know, and he didn’t 23 want - you know, he didn’t want him to be able to see his face during the funeral. 24 25 The photograph specifically appears after Lonesome says “totally” and is 26 removed after the narrator says “Yak Yak” but before the narrator says 27 “wanted.” Just before the narrator says “Yak Yak,” the camera zooms in 28

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1 on Yak Yak’s face in the photograph, which almost completely obscures 2 Plaintiff’s face. 3 Plaintiff alleges in the FAC: 4 The broadcasts [of the episode] were defamatory . . . because Plaintiff was falsely 5 depicted in [the episode] as a criminal member, associate or affiliate of the Vagos, a gang 6 asserted to have been culpable of numerous crimes and criminal activities, and/or as the man 7 (“Lonesome”) who was being hired to commit one or more murders by assassination or other means by 8 “Yak Yak” and/or the Vagos. Additionally, Plaintiff was falsely depicted in the broadcasts as a 9 “professional snitch[.]” 10 Th[e] broadcasts were false because Plaintiff has never been a member, associate or affiliate of 11 the Vagos. The broadcasts were false because Plaintiff has never been solicited by Yak Yak or 12 any Vagos member, associate or affiliate, to commit any crime, and has never committed any crime other 13 then traffic related matters. Plaintiff has never been a “snitch” or informant. Plaintiff is not the 14 man identified in the Broadcasts as “Lonesome”, and has never used, or been known by, that name or 15 identification. 16 (FAC ¶¶ 13, 14.) 17 III. Discussion 18 A. Protected Activity 19 Defendant argues its broadcast of the episode showing the 20 picture of Plaintiff and Yak Yak is a protected activity under the 21 fourth, catch-all category of the anti-SLAPP statute. Defendant “has the 22 initial burden of establishing a prima facie case” that its activity is 23 within this catch-all category by showing that its broadcast of the 24 episode was “in furtherance of defendant’s right of . . . free speech in 25 connection with a public issue.” M.G. v. Time Warner, Inc., 89 Cal. App. 26 4th 623, 629 (2001). 27 Defendant’s broadcast of the Gangland episode constitutes an 28 activity conducted “in furtherance of” Defendant’s exercise of its right

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1 to free speech, since “[t]he creation of a television show is an 2 exercise of free speech.” Tamkin v. CBS Broad., Inc., 193 Cal. App. 4th 3 133, 143 (2011). Further, Defendant’s broadcast of the episode also was 4 in connection with an issue of public interest, since the episode 5 concerned the topic of gang-related criminal activity, which, like child 6 molestation and domestic violence, “is significant and of public 7 interest.” M.G. v. Time Warner, Inc., 89 Cal. App. 4th at 629 (finding 8 that the “general topic” of child molestation “is significant and of 9 public interest”); Sipple v. Found. For Nat’l. Progress, 71 Cal. App. 10 4th 226, 238 (1999) (finding that domestic violence “is an extremely 11 important public issue in our society”). Since Defendant has 12 demonstrated its challenged activity arises from a protected activity, 13 it is next decided “whether [P]laintiff[] ha[s] demonstrated a 14 reasonable probability of success” on his defamation claim. M.G. v. Time 15 Warner, Inc., 89 Cal. App. 4th at 629. 16 B. Probability of Prevailing on the Merits 17 Defendant argues Plaintiff has not shown a probability of 18 prevailing on his defamation claim, since “neither the photo [of 19 Plaintiff and Yak Yak] nor its inclusion in the [episode] implies that 20 Plaintiff was involved in criminal activities or [was] a police 21 informant[; n]or . . . that Plaintiff was a member of the Vagos[.]” 22 (Defs.’ Special Mot. to Strike Pl.’s Am. Compl. (“Mot.”) 17:18-20.) 23 Defendant also argues it is not reasonable to interpret the episode as 24 conveying that “Plaintiff is Lonesome.” (Def.’s Reply in Supp. of 25 Special Mot. to Strike Pl.’s Am. Compl. 17:17.) Defendant further argues 26 “that the picture relays the true fact that [Plaintiff] posed for a 27 picture with Yak Yak.” (Mot. 14:8-9.) 28 Plaintiff counters:

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1 [A]n objective review of the entire program, and the context in which [the] photograph appears 2 (twice) will leave this Court, and all but the most adversarial viewers, with the reasonable 3 interpretation that [Plaintiff] was defamed . . . by the reckless conduct of [Defendant], which 4 depicts him as “Lonesome”, and/or as a man who is being willingly solicited to commit or be involved 5 in murder, and as an informant. 6 (Pl.’s Opp. to Def.’s Special Mot. to Strike 15:12-18.) 7 “Defamation is an invasion of the interest in reputation. The 8 tort involves the intentional publication of a statement of fact that is 9 false, unprivileged, and has a natural tendency to injure or which 10 causes special damage.” Smith v. Maldonado, 72 Cal. App. 4th 637, 645 11 (1999). “[A]n alleged defamatory statement [made in a television 12 broadcast] is actionable only if the statement, ‘considered within the 13 context of the entire broadcast,’ could be reasonably interpreted in the 14 manner alleged by the plaintiff.” Balzaga v. Fox News Network, LLC, 173 15 Cal. App. 4th 1325, 1339 (2009) (quoting Monterey Plaza Hotel v. Hotel 16 Emps. & Rest. Emps., 69 Cal. App. 4th 1057, 1065 (1999)). “If no 17 reasonable viewer could have reasonably understood the statement in the 18 alleged defamatory sense, the matter may be decided as a question of 19 law.” Id. 20 Plaintiff has not shown a probability of prevailing on his 21 defamation claim. The episode cannot reasonably be interpreted as 22 depicting Plaintiff as Lonesome. Plaintiff’s features in the photograph 23 do not resemble Lonesome’s features. In addition, no statement is made 24 in the episode that the picture of Plaintiff and Yak Yak is actually a 25 picture of Lonesome and Yak Yak. Nor can it be implied from the context 26 of the entire episode that Plaintiff was depicted as Lonesome. See 27 Alszeh v. Home Box Office, 67 Cal. App. 4th 1456, 1462-63 (1998) 28 (finding television documentary showing picture of Plaintiff on a

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1 billboard while audio voice states: “With Cookie on my mind, I imagined 2 I saw him everywhere,” could not reasonably be interpreted as 3 identifying Plaintiff and Cookie as the same person; “the documentary 4 raises the possibility that two people are the same, but the 5 documentary, taken as a whole, does not support the reasonable inference 6 that the individuals are identical.”). 7 Nor can the episode be reasonably interpreted as depicting 8 Plaintiff as a “professional snitch.” Plaintiff is not expressly 9 referred to as a snitch, and it cannot be reasonably implied from the 10 context of the entire episode that Plaintiff is a snitch. 11 Nor has Plaintiff shown a probability of prevailing on the 12 portion of his defamation claim in which he alleges he “was falsely 13 depicted . . . as a criminal member, associate or affiliate of the 14 Vagos[.]” (FAC ¶ 13.) Although it is unclear what Plaintiff means by the 15 terms “member,” “associate,” or “affiliate,” if these terms convey that 16 Plaintiff was depicted as being acquainted with or fraternizing with 17 Vagos Gang members, it is undisputed that Yak Yak is a Vagos gang 18 member, and “the photograph” of Plaintiff and Yak Yak “was taken” . . . 19 at a picnic . . . during a mountain campout of the Grandfather’s 20 Motorcycle Club.” Id. ¶ 11. The photograph shows he surely did 21 “associate” or “affiliate” with Yak Yak when the photograph was taken. 22 Plaintiff also has not shown a probability of prevailing on 23 his defamation claim to the extent he alleges the episode conveys he was 24 involved in the criminal activities of the Vagos Gang, since the episode 25 cannot reasonably be interpreted as Plaintiff argues. Yak Yak is 26 identified as a Vagos Gang member, and the narrator mentions Yak Yak’s 27 name each time the photograph appears. Tellingly, Plaintiff points to 28 nothing in the record suggesting that the episode cast him in a false

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1 light. Plaintiff’s eyes and the area surrounding his eyes are covered by 2 a black bar each time the photograph is shown, and the camera zooms in 3 on Yak Yak’s face the second time the photograph is shown. Under these 4 circumstances, the broadcast cannot be reasonably interpreted as 5 conveying that Plaintiff was involved in the criminal activities of the 6 Vagos Gang. See Prince v. Viacom, Inc., No. H-07-4274, 2008 WL 1782288, 7 at *2 (S.D. Tex. Apr. 18, 2008) (finding television program showing 8 photograph of plaintiffs posing with gang member while visiting gang 9 member in prison could not reasonably be interpreted to convey that 10 plaintiffs “were linked to the illegal activity” of the gang member; 11 “[n]one of the statements mentions [plaintiffs]. . . . [R]easonable 12 viewer[s] . . . would not know what crime they had helped [the gang 13 member] commit. The picture accurately represented [the gang member] and 14 two visitors[.]”). 15 For the stated reasons, Plaintiff has not shown a probability 16 of prevailing on his defamation claim. Therefore, Defendant’s anti-SLAPP 17 motion is granted, and the FAC is dismissed with prejudice. See Flores 18 v. Emerich & Fike, No. 1:05-CV-0291-OWW-DLB, 2006 WL 2536615, at *10 19 (E.D. Cal. Aug. 31, 2006) (stating leave to amend “is not appropriate” 20 if an anti-SLAPP motion is granted). 21 IV. Conclusion 22 Defendant’s anti-SLAPP motion is granted, and Plaintiff’s FAC 23 is dismissed with prejudice. Judgment shall be entered in favor of 24 Defendant.

25 Dated: September 2, 2011 26

27 GARLAND E. BURRELL, JR. United States District Judge 28