2D Civil No. B218211 COURT of APPEAL of the STATE
Total Page：16
File Type：pdf, Size：1020Kb
2d Civil No. B218211 COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION 2 ___________________________ SAM LUTFI, Plaintiff-Respondent, vs. LYNNE IRENE SPEARS, Defendant-Appellant [LASC No. BC 406904] ____________________________ Appeal From The Los Angeles Superior Court the Honorable Zaven V. Sinanian, Presiding ______________________________________ RESPONDENT’S BRIEF _____________________________________ JOSEPH D. SCHLEIMER - Bar No. 125049 9401 Wilshire Boulevard, Suite 1250 Beverly Hills, California 90212 Telephone: (310) 273-9807 Telecopier: (310) 273-9809 Attorney for Respondent Sam Lutfi CERTIFICATE OF INTERESTED PARTIES Respondent Sam Lutfi hereby certifies, through his undersigned counsel, that he knows of no entity or person, other than the named parties in this case, who should be disclosed pursuant to Rule of Court 8.208. Dated: June 7, 2010 JOSEPH D. SCHLEIMER ATTORNEY AT LAW BY: JOSEPH D. SCHLEIMER, Attorney for Respondent Sam Lutfi -i- Table of Contents Certificate of Interested Parties i Table of Contents ii Table of Authorities iii I Factual Background 1 II Procedural History 14 III Respondent’s Authorities 19 A. The Libel-Proof Plaintiff Doctrine 20 is Inapplicable and of Doubtful Viability B. Respondent’s Claims Are Not Based on 24 The Allegedly-Perjured Declaration C. “Opinions” Which Involve or Imply False 26 Statements of Fact Are Actionable Under the Milkovich Standard D. Respondent Presented a Prima Facie 31 Case for “Actual Malice” E. Bigotry by Appellant Spears 35 F. Respondent Demonstrated Actual 37 and Presumed Damages G. Respondent Demonstrated a Prima Facie 41 Case for Intentional Infliction of Emotional Distress IV Conclusion 44 Certificate of Word Count 45 -ii- Table of Authorities Alcorn v. Anbro Engineering, Inc. (1970) 43 2 Cal.3d 493 Allard v. Church of Scientology (1976) 38 58 Cal.App.3d 439 Axelbank v. Rony, 277 F.2d 314 (9th Cir. 1960) 38 Buckley v. Littell, 539 F.2d 882 (2d Cir.1976) 21 Cameron v. Wernick (1967) 251 Cal.App.2d 890 40 Cervantez v J.C. Penny Co. (1979) 24 Cal.3d 579 41 Christian Research Institute v Alnor (2007) 31 148 Cal.App.4th 71 Church of Scientology Int'l v. Behar, 238 F.3d 168 22 (2d Cir. 2001) Church of Scientology Int’l. v. Time Warner, Inc., 22 932 F.Supp. 589 (S.D.N.Y., 1996) Dethlefsen v. Stull (1948) 86 Cal.App.2d 499 39 Doctors' Co. Ins. Services v. Superior Court (1990) 25 225 Cal.App.3d 1284 Fisher v. Larsen (1982) 138 Cal.App.3d 627 38 cert. den. 464 U.S. 959 Forsher v. Bugliosi (1980) 26 Cal.3d 792 40 Gallant v. City of Carson (2005) 128 Cal.App.4th 26 705 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 27, 40 -iii- Gill v. Hughes (1991) 227 Cal.App.3d 1299 27 Goehring v. Wright , 858 F.Supp. 989 38 (N.D. Cal. 1994) Guccione v Hustler Magazine, Inc., 800 F.2d 298 19, 21 (2nd Cir. 1986) Hailstone v. Martinez (2008) 169 Cal.App.4th 728 34 Huntingdon Life Sciences, Inc. v. Stop Huntingdon 43 Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228 James v. San Jose Mercury News, Inc. (1993) 28 17 Cal.App.4th 1 Jewell v. NYP Holdings, Inc., 23 F.Supp.2d 348 22 (S.D.N.Y., 1998) Kahn v. Bower (1991) 232 Cal.App.3d 1599 29 Kelly v. General Telephone Co. (1982) 41 136 Cal.App.3d 278 Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563 23 (D.C.Cir.1984) Masson v. New Yorker Magazine, Inc., 501 U.S. 21, 22, 496 (1991) 32 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) 27, 28, 37 Morningstar, Inc. v. Superior Court (1994) 29 23 Cal.App.4th 676 Moyer v. Amador Valley Joint Union High Sch. 28, 29 Dist., (1990) 225 Cal.App.3d 720 -iv- New York Times v Sullivan, 376 U.S. 254 (1964) 31, 32 Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858 31 Pollock v. University of Southern California (2003) 24 112 Cal.App.4th 1416 Rider v. Superior Court (1988) 199 Cal. App. 3d 38 278 Rodriguez v. Panayiotou, 314 F.3d 979 27 (9th Cir. 2002) Rothman v. Jackson (1996) 49 Cal.App.4th 1134 25 Sanborn v. Chronicle Pub. Co. (1976) 34 18 Cal.3d 406 Selleck v. Globe International, Inc. (1985) 32, 39, 166 Cal.App.3d 1123 40 Silberg v. Anderson (1990) 50 Cal.3d 205 24 State Rubbish Collectors Ass'n v. Siliznoff (1952) 43 38 Cal.2d 330 Stern v. Cosby, 645 F.Supp.2d 258 21, 23 (S.D.N.Y. 2009) Taus v. Loftus (2007) 40 Cal.4th 683 19 Wynberg v. National Enquirer, Inc., 564 F.Supp. 20 924 (C.D.Cal.,1982) Civil Code §44 30 n.71 Civil Code §45a 38 Civil Code §46 38 -v- Civil Code §47 18, 24, 25 C.C.P. §425.16 14, 19, 27 Pen.C. §118 24 Witkin, Summary of California Law (10th Ed.), 29, 39 Torts §543 Witkin, Summary of California Law (10th Ed.) 26 Torts, §544 -vi- I Factual Background In September, 2008, Appellant Lynne Spears (“Mrs. Spears”) published her memoir, Through the Storm: A Real Story of Fame and Family in a Tabloid World (herein the “Book”).1 Since Mrs. Spears is mother of the world-famous pop singer Britney Spears (“Britney”), public interest was high, 65,000 copies were sold in the initial, English-language release, and it was serialized in People Magazine and the U.K. in News of the World.2 Respondent Sam Lutfi (“Lutfi”) was Britney Spears’ manager for less than four months, between September, 2007 and February 1, 2008.3 Before Mr. Lutfi assumed the post, Britney’s life was a tabloid spectacle. She abruptly got married in Las Vegas, then sought an annulment 55 hours later; divorced her second husband, Kevin Federline, then lost custody of her young children (ages 1 and 2); made headlines by shaving her head on television; was charged with reckless driving; and entered a drug 1 Clerk’s Transcript (“C.T.”) at 363 2 C.T. at 34, 38 3 Declaration of Sam Lutfi, ¶¶ 5–8 (C.T. at 340–341) -1- rehabilitation clinic, then checked herself out one day later.4 Thus, when Britney hired Mr. Lutfi as her manager, Respondent was immediately embroiled in the ongoing crisis, which continued unabated and culminated with two Health & Safety Code §5150 psychiatric “holds” at Cedars-Sinai and UCLA Medical Center,5 and ended with the appointment of Britney’s father, James (“Jamie”) Spears as conservator of Britney’s reported $100,000,000 estate.6 Despite the brevity of Mr. Lutfi’s tenure as manager, and the pre-existence of Britney’s personal crisis, Mrs. Spears’ Book blames Respondent for all of Britney’s troubles, accusing Mr. Lutfi of “planning evil,”7 accusing him of “hostility, cruelty and lies,”8 calling him a “predator,”9 a “fake,”10 and a “shifty” man,11 asserting 4 C.T. at 90–96, 365 5 C.T. at 109 6 C.T. at 47, 187 7 C.T. at 385 8 C.T. at 375, 379 9 C.T. at 368 10 C.T. at 366 11 C.T. at 368 -2- that Mr. Lutfi had Britney “in his clutches”12 and in a “stranglehold,”13 and making the absurd claim that Respondent Lutfi controlled the paparazzi and used them as his “henchmen.”14 Lacking any actual facts to support her aspersions, Mrs. Spears fabricated, including the following, highly-specific and entirely false statements: • “Sam [Lutfi] told Jackie and me that he grinds up Britney’s pills, which were on the counter and included Risperdol and Seroquel, and puts them in her food. He said that was the reason she had been quiet for the last three days. She had been drugged and asleep. He said that her doctor was trying to get her into a sleep-induced coma so that they could then give her other drugs to treat her.”15 • “The general [Lutfi] told us that he threw away all of Britney’s phone chargers and disabled the house 12 C.T. at 380 13 C.T. at 373, 381 14 C.T. at 375 15 C.T. at 376–377 -3- phones by cutting the wires.”16 • “He [Lutfi] also disabled several of Britney’s cars so she couldn’t leave unattended.”17 • “He [Lutfi] then told us to tell Britney that [Britney’s boyfriend] Adnan [Ghalib] is gay.”18 • “Adnan told me that Sam hid Britney’s cell phones and told her that he lost them.”19 • “Adnan told me that Sam also would hide Britney’s dog, London. She would look all over the house, crying, and then Sam would bring out the dog and act like some sort of savior.”20 The theme of the Book was that Mr. Lutfi was a “Svengali,”21 who isolated and controlled Britney by doping her without her knowledge, cutting off her telephone access and mobility, and 16 C.T. at 376. Mrs. Spears referred to Respondent as “the general” because people deferred to him. See, C.T. at 369 (“Everyone treated him . .like a general”). See, also, Chapter 29 entitled “The General” (C.T. at 372), with a subsection titled “The General at Work.” (C.T. at 375) 17 C.T. at 376 18 C.T. at 376 19 C.T. at 376 20 C.T. at 376 21 C.T. at 368 -4- setting himself up as a “gatekeeper.”22 As part of her theme, Mrs. Spears also falsely claimed: “[T]here was no one he [Lutfi] wanted to keep the gate closed to more than Britney’s family.”23 This assertion is belied by several passages in the Book: First, Appellant admits that Britney had already severed the mother-daughter relationship before Mr.