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. Lutfi arrived on the scene,
and Mrs. Spears’ “estrangement [from Britney] was so complete at
that time I couldn’t even get her phone number.”24
Second, Mrs. Spears acknowledges that Mr. Lutfi promised
he would try to bring mother and daughter back together, stating:
“I know you want to see Britney, and trust me, I am
working on her. She’ll let you back into her life soon.”25
Third, the Book describes how Mrs. Spears attempted to
enter Britney’s home, Mr. Lutfi ordered the gates opened for her.26
Finally, the Book describes how Mr. Lutfi called Mrs. Spears
22 C.T. at 369
23 C.T. at 369
24 C.T. at 369
25 C.T. at 369
26 C.T. at 369, 374
-5- and asked her to come to Britney’s house at a moment of crisis.27
Britney had quite an entourage, so there are third parties
who can testify to the falsity of Mrs. Spears’ libelous statements.
For example, Robin Johnson was a “baby monitor,” hired by
Britney’s lawyers at Trope & Trope, and she was stationed in
Britney’s home in connection with the child custody battle.28 The
Declaration of Robin Johnson refutes the libelous statements that
Respondent drugged Britney, cut her telephone wires and disabled
her automobiles.29 Additionally, Ms. Johnson states:
“During the time I monitored Britney [for the child
custody case], Lutfi constantly encouraged Britney to
make peace with her parents, especially her mother,
Lynne. . . .[O]n more than one occasion, Lynne would
call or send Britney a text message. Britney would
then get irate, yelling and calling her mother names.
On each of these occasions, Lutfi would attempt to
calm Britney down and encourage her to call Lynne or
27 C.T. at 381
28 Declaration of Robin Johnson, ¶¶ 4–6 (C.T. at 330)
29 Johnson Dec., ¶¶13–19 (C.T. at 330–331)
-6- respond to the message.”30
Britney’s personal assistant, Alli Sims, has also refuted the allegations that Lutfi deprived Britney of her cell phones, cut
Britney’s telephone wires and disabled her automobiles.31 In her declaration, Ms. Sims also attested that Mr. Lutfi was instrumental in reconciling mother and daughter, stating:
“Britney’s mother, Lynne Spears (‘Lynne’) has stated in
her book, Through the Storm, that she believed Sam
Lutfi (‘Lutfi’) was intentionally trying to shut Britney’s
family out of her life. . . .¶At no time during the period
I lived with Britney and served as her personal
assistant, or during the months that followed, did I
ever hear Lutfi say anything negative about Britney’s
parents. In fact, I often heard Lutfi encouraging
Britney to make amends with her parents and invite
them back into her life. For her part Britney was
resistant to Lutfi’s suggestions and wanted nothing to
do with her parents whom she believed had betrayed
30 Johnson Dec., ¶11 (C.T. at 330–331)
31 Declaration of Alli Sims, ¶¶ 2–4, 8–15 (C.T. at 327–328)
-7- her.” 32
Mrs. Spears’ malevolence toward Mr. Lutfi is illustrated by her nasty characterization of his efforts to effect a rapprochment between mother and daughter, impugning his motives and suggesting it was a manipulation.33 Moreover, in a transparent effort to whip up hostility against Mr. Lutfi amongst Britney’s millions of fans, Mrs. Spears speculates that Mr. Lutfi betrayed her daughter by having her committed at UCLA – even though it is self- evident Mrs. Spears has no factual basis for making the accusation.34 (One of Mrs. Spears’ publishers, People Magazine, reported that the “hold” was ordered by Dr. Deborah Nadel, a psychiatrist retained by Britney’s lawyers at Trope & Trope.35 As a lay person, Mr. Lutfi obviously could not order a psychiatric hold.)
The commitment at UCLA led to the appointment of “Jamie”
Spears as conservator, and he immediately ousted Mr. Lutfi as
Britney’s manager. In the Book, Mrs. Spears celebrates this turn of events. In a section entitled “Breaking the Stranglehold,” and
32 Sims Dec., ¶¶ 5, 7 (C.T. at 327)
33 C.T. at 369–370
34 C.T. at 382– 385
35 C.T. at 187, 188
-8- subtitled “God’s Plan Trumps Sam’s,”36 Appellant quotes from
Scripture that:
“You [Lutfi] planned evil against me but God used
those same plans for my good.”37
The selection of Jamie Spears as conservator was
unexpected, given the lengthy discussion in Mrs. Spears’ Book
about her ex-husband’s long history of chronic alcoholism, abusive
conduct toward Mrs. Spears and their children, neglect of his
welding business (which failed), and the resulting poverty of the
Spears family, which only achieved affluence when their teenage
daughter, Britney, began turning out the hits.38
In the same chapters, Mrs. Spears discloses her own violent
temper, describing an incident where she got fed up with her
husband’s drinking and destroyed his liquor with a shotgun.39
The root causes of Britney’s troubles are not part of this
appeal, nor is the violence by Jamie Spears, who is being sued for
36 C.T. at 381, 383
37 C.T. at 381, 383–385
38 Lynne Spears, Through the Storm: A Real Story of Fame and Family in a Tabloid World (Thomas Nelson, Inc. 2008), at pp. 23, 25–28, 48–53, 112–114
39 Id. at 51
-9- assault and battery because he physically attacked – and threatened to kill – Respondent Lutfi.40
Mrs. Spears implicated herself in Jamie Spear’s violence toward Mr. Lutfi, and this constitutes one “hemisphere” of Mr.
Lutfi’s emotional distress claim, albeit not part of this appeal, which is brought solely under the anti-SLAPP statute.
However, on the question of malice, Mrs. Spears’ admitted involvement in setting up the violence and threats by Jamie Spears is pertinent. Here is how the Book describes Appellant’s role in the confrontation:
“[On January 28, 2008] Jamie drove [to Britney’s
home] from the opposite end of town. . .‘If I get in,’ I
whispered to him. . .‘you just come in after me’. . .
God was in the details, in the perfect timing of Jamie’s
arrival. ¶Sam okayed the gatekeeper to let me in,
though he never in a million years would have let
Jamie in. When the gate finally swung open. . .Jamie
zoomed in right after me. ¶Sam met Jackie, Jamie and
me at the door. ¶He said Britney only wanted to see
me, that she was afraid to see her dad. More like Sam
40 C.T. at 355
-10- was afraid. . . .¶‘Her family is here,’ Jamie said,
glowering. ‘You have to go now.’ ¶Jamie was
stomping, spitting mad. . . .He didn’t want to lose
control and give Sam the chance to bring charges
against him. At one point, he stalked Sam around and
around the bar. ‘You better not be hurting my
daughter,’ he said, over and over again, in a low
menacing voice. ‘Where is my daughter?’”41
The next day, Jamie managed to gain entrance to Britney’s home a second time, and this time he physically assaulted Mr.
Lutfi and threatened to kill him. The attack is referred to in the
Book,42 and the specifics are alleged in Respondent’s cause of action for assault and battery:
“On or about January 29, 2008, Lutfi was standing in
the kitchen of Britney’s residence. ¶Jamie [Spears]
entered the residence and immediately charged at
Lutfi, screaming that he had been told that Lutfi made
a rude comment to [his ex-wife] Lynne the night
before. Then, upon reaching Lutfi, Jamie intentionally
41 C.T. at 374
42 C.T. at 380
-11- punched him in the chest. Jamie then threatened to
kill Lutfi if he ever again heard that Lutfi had made a
rude comment about Lynne or any other member of
his family.”43
According to the Book, six weeks before Britney was placed
on the 72-hour “hold” at UCLA Medical Center, Jamie Spears had
already made plans to seek a conservatorship and take control of
Britney’s money.44 When Britney was committed to UCLA, Jamie
moved quickly, obtained an emergency appointment as conservator
for his 27-year-old daughter,45 and used his new legal status to
oust Mr. Lutfi as her manager.
Simultaneously, Jamie sought a TRO against Respondent,
and the sole evidence in support was a Declaration of Lynne
Spears, which made the same false allegations (later published in
the Book) about Mr. Lutfi supposedly cutting Britney’s telephone
wires, taking away her cell phones, disabling her automobiles, and
attempting to drug her into a coma.46
43 C.T. at 355–356
44 C.T. at 381
45 C.T. at 258
46 C.T. at 262
-12- The TRO was granted, and the Spears declaration was disseminated to the media. Immediately, Mr. Lutfi found himself villified in the tabloids as the man who had been drugging Britney
Spears.47
Having brought about the reconciliation between Britney and the Appellant, Respondent Lutfi felt he had been “thrown under the bus” by Lynne Spears. However, when the media circus left his doorstep, Respondent sought only to return to his private life.48
Six months later, Mrs. Spears published the Book, went on a book tour, and appeared on the Today Show and other television programs. The publicity firestorm flared anew, including the republication of Mrs. Spears’ false allegations that Mr. Lutfi was drugging Britney, cutting her phone lines, and disabling her automobiles49 As a result, Mr. Lutfi was subjected to a new round of public ridicule and harassment, including racial slurs, being spit upon, and death threats from Britney’s fanatical followers.50
The publication of the Book made it perfectly clear that
47 See, e.g., C.T. at 133, 135, 137, 138, 143, 149, 151, 153
48 Lutfi Dec., ¶9 (C.T. at 341)
49 Lutfi Dec., ¶¶ 10–11 (C.T. at 341 )
50 Lutfi Dec., ¶¶ 11, 12 (C.T. at 341)
-13- demonizing Sam Lutfi was going to be part of Lynne Spears’ long-
term media strategy. Rather than risking that Britney’s
biographers might focus on the root causes of Britney’s troubles,
beginning with her dysfunctional family and the aggressive “stage
mother” who thrust Britney into a career as a professional
entertainer at age 11, Mrs. Spears offers up Sam Lutfi as the villain
of the “Britney Spears Story.”
Respondent did not want to be a permanent scapegoat for
Mr. and Mrs. Spears’ dubious “parenting” of Britney. Accordingly,
after publication of the Book, he filed this lawsuit, suing Lynne
Spears for defamation; suing Lynne and Jamie Spears for
intentional infliction of emotional distress; and suing Jamie Spears
for assault and battery.51
II
Procedural History
Lynne Spears filed a Special Motion to Strike under C.C.P.
§425.16, directed at the defamation and emotional distress
claims.52 She now seeks review of the denial of her motion.
51 C.T. at 347
52 C.T. at 6
-14- In the Superior Court, Respondent answered the Motion by
filing a Declaration of Sam Lutfi proving falsity, actual malice and
damages,53 and also filed declarations from third-party witnesses:
• Robin Johnson was a “Supervised Visitation Monitor,”
who was present in Britney Spears’ home as a paid observer in
connection with a child-custody dispute.54 As noted above, Ms.
Johnson testified to the falsity of the statements in the Book that
Mr. Lutfi cut Britney’s phone wires, disabled Britney’s automobiles,
and attempted to drug Britney into a coma.55 Since Ms. Johnson’s
primary duty was to observe Britney and watch for the use of
controlled substances or alcohol during visitations, and she was
positioned in Britney’s home by Britney’s family law attorneys,56 so
her neutrality is beyond question, and her testimony establishes
the falsity of Mrs. Spears’ libelous publications “of and concerning”
the Respondent.
• Alli Sims was a personal assistant to Britney Spears,
and she was residing in Britney’s home during part of the critical
53 C.T. at 339
54 Johnson Dec., ¶¶ 2–6 (C.T. at 329–330)
55 Johnson Dec., ¶¶ 13–19 (C.T. at 331-332)
56 Johnson Dec., ¶17 (C.T. at 331)
-15- time period.57 Thereafter, she remained in close contact with
Britney, Sam Lutfi, and Lynne Spears.58 Ms. Sims refutes the
libelous statements in the Book about Mr. Lutfi supposedly taking
away Britney’s cell phones, cutting Britney’s telephone wires,
disabling Britney’s automobiles, and attempting to isolate Britney
from her family.59
• Adnan Ghalib was Britney’s boyfriend, and he was
residing with her during the critical time period.60 In her Book,
Mrs. Spears quotes Mr. Ghalib as having made disparaging
statements about Mr. Lutfi, but Mr. Ghalib attests in his
declaration that he never made those statements.61 He also refutes
the claims in the Book that Mr. Lutfi was grinding up pills and
putting them in Britney’s food, cutting telephone wires, and
disabling Britney’s automobiles.62
On the issue of scienter, Mr. Ghalib directly accuses Mrs.
57 Sims Dec., ¶¶ 3, 4 (C.T. at 326–327)
58 Sims Dec., ¶ 6 (C.T. at 327)
59 Sims Dec., ¶¶ 7–15 (C.T. at 327–328)
60 Declaration of Adnan Ghalib, ¶3 (C.T. at 322–323)
61 Ghalib Dec., ¶¶ 9–12 (C.T. at 323–324)
62 Ghalib Dec., ¶¶ 13–18 (C.T. at 324–325)
-16- Spears of trying to recruit him to smear Mr. Lutfi in the news media, by asking him to falsely blame Mr. Lutfi for Britney’s troubles.63
• Felipe Texeira is a photographer who visited Britney’s home and drove around town with her.64 He refutes the claim in the Book that Mr. Lutfi cut telephone wires and disabled Britney’s automobiles.65
Mr. Teixeira also describes how Britney’s father arrived at her home, but she would not let him in because “she was afraid of her father and did not want to see him.”66
These declarations by third-party witnesses explain why
Appellant’s Opening Brief does not invoke truth as a defense.
Given the clear and convincing evidence of the falsity of Mrs.
Spears’ libelous publications, Respondent doubts that a truth defense will ever be a factor in this case.
Instead of claiming the disparaging statements were true,
Mrs. Spears bases her appeal on the amazing theory that Mr. Lutfi
63 Ghalib Dec., ¶¶ 6–8 (C.T. at 323)
64 Declaration of Filipe Texeira, ¶¶ 2–5 (C.T. at 333–334)
65 Texeira Dec., ¶¶ 14–23 (C.T. at 335–336)
66 Texeira Dec., ¶9 (C.T. at 334)
-17- is a “libel-proof plaintiff.”
Appellant’s legal theory is that Mrs. Spears first made the libelous statements about Mr. Lutfi in the allegedly-perjured
Declaration she filed in the conservatorship case; this publication was immune under Civil Code §47 and it generated (to use the description in Appellant’s Brief) an “Orgy of Publicity” in the tabloid press; and said “Orgy of Publicity” supposedly destroyed Mr. Lutfi’s reputation to such a degree he was rendered “libel proof.”67
To restate Appellant’s argument from Respondent’s point of view: Mrs. Spears filed a demonstrably perjured declaration under the immunity of Civil Code §47, used it to assassinate Mr. Lutfi’s character in the news media, and now asks this Court to rule that she may continue to republish the libelous falsehoods ad infinitum, in her Book or anywhere else she pleases, without civil liability, because the earlier smear was highly successful.
The Superior Court, the Hon. Zaven V. Sinanian presiding, denied Mrs. Spears’ Motion to Strike, finding that Respondent’s evidence was sufficient to establish a prima facie case under C.C.P.
§425.16.68 In the July 29, 2009 Order, the Court specifically
67 Appellant’s Brief (“A.B.”) at 3–5
68 Order of July 29, 2009 (C.T. at 432–443)
-18- rejected Appellant’s “libel proof” theory, stating:
“The Court notes that [Appellant Lynne] Spears argues
for the application of the ‘libel-proof’ doctrine, which is
to be ‘applied with caution, since so few plaintiffs will
have so bad a reputation that they are not entitled to
obtain redress for defamatory statements. . .’ Guccione
v Hustler Magazine, Inc. (2nd Cir. 1986) 800 F.2d 298,
303. The Court declines to apply the ‘libel-proof’
doctrine to this case.”69
III
Respondent’s Authorities
Since this case comes up for review upon the denial of a
Special Motion to Strike under C.C.P. §425.16, the main legal issue is whether Respondent Lutfi submitted a prima facie case in opposition to the motion. See, Taus v. Loftus (2007) 40 Cal.4th
683, 713–714 (“[A] plaintiff responding to an anti-SLAPP motion must ‘state and substantiate a legally sufficient claim.’”)
The Superior Court found that Respondent presented a prima facie case. Respondent respectfully submits that his
69 Order of July 29, 2009 (C.T. at 441)
-19- evidence, summarized above, is more than sufficient to support that finding. Accordingly, that should be the end of this Court’s inquiry, and the Superior Court should be affirmed.
A. The Libel-Proof Plaintiff Doctrine
is Inapplicable and of Doubtful Viability
Appellant urges the adoption of the “libel-proof plaintiff” doctrine in California, but this is clearly the wrong case to do that, because historically that concept has only been applied plaintiffs who have been convicted of heinous crimes. Thus, Appellant cites and relies on Wynberg v. National Enquirer, Inc., 564 F.Supp. 924,
928 (C.D.Cal.,1982), but fails to mention that case involved a plaintiff with multiple criminal convictions, including contributing to the delinquency of minors involving sex and drugs; bribery to secure protection for a prostitute by offering the women's sexual services to the police; and grand theft.
Mr. Lutfi, by contrast, has been convicted of nothing.
Appellant argues for adoption and application of the libel- proof plaintiff in California, largely based on Second Circuit legal authority, but again fails to mention that the most recent cases in the Second Circuit indicate not just that the doctrine is “sparingly
-20- applied,” but is now considered to be of doubtful viability. As stated in Stern v. Cosby, 645 F.Supp.2d 258, 270 (S.D.N.Y. 2009):
“The Second Circuit has cautioned that the libel-proof
plaintiff doctrine is to be sparingly applied, as it is
unlikely that many plaintiffs will have such tarnished
reputations that their reputations cannot sustain
further damage. See Buckley v. Littell, 539 F.2d 882,
889 (2d Cir.1976) (noting that class of plaintiffs to
whom libel proof doctrine applies ‘is a limited, narrow
one’); Guccione, 800 F.2d at 303 (‘The libel-proof
plaintiff doctrine is to be applied with caution, since
few plaintiffs will have so bad a reputation that they
are not entitled to obtain redress for defamatory
statements, even if their damages cannot be quantified
and they receive only nominal damages.’). . . ¶There is
some question. . .as to whether the libel-proof plaintiff
doctrine is valid in the wake of the Supreme Court's
decision [overruling the Ninth Circuit] in Masson v.
New Yorker Magazine, Inc., 501 U.S. 496, 523, 111
S.Ct. 2419, 115 L.Ed.2d 447 (1991), where the Court
held that the incremental harm doctrine – the ‘cousin’
-21- of the libel-proof doctrine. . .is not properly grounded
in the First Amendment, and therefore not valid under
federal law. See [Church of Scientology Int'l v.] Behar,
238 F.3d [168,] 176. n.2 [(2d Cir. 2001)(noting that
‘continued vitality after Masson’ of the libel-proof
plaintiff doctrine is an open question); Jewell [v. NYP
Holdings, Inc.,] 23 F.Supp.2d [348,] 390 n. 29
[(S.D.N.Y., 1998)] (‘Because Masson rejected any basis
for grounding the incremental harm defense in federal
constitutional terms, the libel-proof plaintiff doctrine
seems similarly vulnerable.’)”
Here, Appellant submitted a stack of tabloid articles, and based on those articles Mrs. Spears speculates that Mr. Lutfi’s reputation was so badly injured he is incapable of further suffering. This is not a determination which can be made without a jury trial. As stated in Church of Scientology Intern. v. Time
Warner, Inc., 932 F.Supp. 589, 594 (S.D.N.Y., 1996):
“Dismissal based on the libel-proof plaintiff doctrine is
not appropriate at this stage of the litigation, because
it requires the Court to make factual findings. . . .In
addition, the doctrine has been persuasively criticized
-22- by then-Judge Scalia's opinion in Liberty Lobby, Inc. v.
Anderson, 746 F.2d 1563, 1568 (D.C.Cir.1984) (‘To
begin with, we cannot envision how a court would go
about determining that someone's reputation had
already been 'irreparably' damaged – i.e., that no new
reader could be reached by the freshest libel.’)”
In a strikingly similar case, also involving a celebrity, the precise legal argument urged by Mrs. Spears was rejected. As stated in Stern v Cosby, supra, 645 F.Supp.2d at 270–271:
“[Howard K.] Stern should not be precluded from
seeking damages for being defamed by the Book
merely because he was the subject of critical
discussion on tabloid television and in celebrity gossip
magazines. Even assuming. . .[that] talk show hosts
suggested that Stern had a hand in [Anna Nicole]
Smith's death, Stern denies these accusations. If
indeed the accusations are false, the fact that Stern
might have been falsely accused before does not mean
that he could not be further injured if he was falsely
accused again. That someone has been falsely called a
thief in the past does not mean that he is immune
-23- from further injury if he is falsely called a thief again.
Moreover, there is a qualitative difference between
comments made on a tabloid television show and
written statements in a book. . . .The libel-proof
plaintiff doctrine is to be sparingly applied (if at all),
and surely it is not to be applied in a situation such as
this.”
B. Respondent’s Claims Are Not Based on
The Allegedly-Perjured Declaration
Appellant’s Brief argues that Respondent’s defamation claim is actually based on the “Orgy of Publicity” caused by the allegedly- perjured Lynne Spears Declaration.70 Not true.
Admittedly, Respondent does contend that the Lynne Spears
Declaration was perjured, but he does not sue for defamation based on the Declaration. Why not? Because Respondent acknowledges that perjury is immune from civil suit pursuant to
California Civil Code §47. See, Silberg v. Anderson (1990) 50
Cal.3d 205, 218–219 (no civil actions for perjury; sole remedy is prosecution under Pen.C. §118); Pollock v. University of Southern
70 A.B. at 1, 14
-24- California (2003) 112 Cal.App.4th 1416, 1429 (“There is no civil cause of action for perjury.”). See, also, Doctors' Co. Ins. Services v. Superior Court (1990) 225 Cal.App.3d 1284, 1300 (suborning perjury immune from civil suit under Civil Code 47)
Likewise, Mr. Lutfi did not sue any of the news media who participated in the “Orgy of Publicity” after the Lynne Spears
Declaration was disseminated because Respondent recognized that the news media were immune under the “fair reportage” statute.
See, Civil Code §47(d).
Civil Code §47 allows celebrity litigants to exploit their fame to slam their adversaries in the media under the cloak of absolute immunity. However, the immunity does not apply to extrajudicial publications like the Book. See, Rothman v. Jackson (1996) 49
Cal.App.4th 1134, 1148–1149 (The “privileged vilification of opponents” does not extend to those who “litigate their cases in the press,” who must “do so at their own risk. . .without the mantle of an absolute immunity.”)
-25- C. “Opinions” Which Involve or Imply False
Statements of Fact Are Actionable
Under the Milkovich Standard
Appellant argues that she was merely stating “opinions” when she referred to Mr. Lutif as “evil,” accused him of “hostility, cruelty and lies,” called him a “predator,” a “fake,” and a “shifty man,” asserted that he had Britney “in his clutches” and in a
“stranglehold,” and made the bizarre claim that Mr. Lutfi controlled the paparazzi and used them like “henchmen.”
California has long recognized that “epithets or descriptive words or opinions that carry with them the implication of acts of misconduct are actionable [as libel per se].” Witkin, Summary of
California Law (10th Ed.) (2005) Torts, §544. As stated in Gallant v.
City of Carson (2005) 128 Cal.App.4th 705, 709:
“The alleged statements - that Gallant is incompetent -
are defamatory. ‘[T]he alleged defamatory statements
are not protected if they imply an assertion of false
objective fact. The statement that plaintiff ‘is an
incompetent [employee]. . .’ implies a knowledge of
facts which lead to this conclusion and further is
susceptible of being proved true or false. . . .Since the
-26- statement implies that plaintiff is generally disqualified
for [her] profession, it is defamatory if it is false. . .
Consequently, the trial court erred in finding this
statement was not defamatory because of being an
‘opinion.’ (Gill v. Hughes (1991) 227 Cal.App.3d 1299,
1309, 278 Cal.Rptr. 306, citation omitted.)
¶Accordingly, the facts contained in Gallant's
declaration, if properly before the court as evidence,
‘establish[ ] that there is a probability that [she] will
prevail on [her] claim [for defamation].’ (§ 425.16,
subd. (b)(1).)”
Appellant’s “opinion” argument seeks to parse the libelous narrative, separating out individual words, and it is based on a dictum in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
However, the Gertz dictum was negated and superseded by
Milkovich v. Lorain Journal Co., 497 U.S. 1, 24 (1990), which mandated an analysis whether “opinions” involve, contain or imply false and libelous statements of fact based on analyzing “the meaning of the statement in context. . . .”
California libel law post-Milkovich is summarized in
Rodriguez v. Panayiotou, 314 F.3d 979, 984–985 (9th Cir. 2002):
-27- “The [U.S. Supreme] Court in Milkovich . . .rejected the categorical ‘opinion rule’ that had been adopted by the lower courts as a ‘mistaken reliance on the Gertz dictum.’. . .The Court stated that it had never
‘intended to create a wholesale defamation exemption for anything that might be labeled 'opinion.' James v.
San Jose Mercury News, Inc., 17 Cal.App.4th 1, 20
Cal.Rptr.2d 890, 897 (1993) (quoting Milkovich, 497
U.S. at 18, 110 S.Ct. 2695). In doing so, the Court
‘made clear that a false assertion of fact could be libelous even though couched in terms of opinion.’
Moyer v. Amador Valley Joint Union High Sch. Dist., 225
Cal.App.3d 720, 275 Cal.Rptr. 494, 496 (1990). ‘Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.’
Milkovich, 497 U.S. at 19-20, 110 S.Ct. 2695.... ¶Thus, the dispositive issue in this case is whether a reasonable fact finder reading or listening to the statements made by Michael could conclude that they
-28- ‘imply a provably false factual assertion.’ See Kahn,
284 Cal.Rptr. at 249 & n. 3 (applying the Milkovich
standard regardless of whether the defendant is a
member of the media); see also Morningstar, Inc. v.
Superior Court, 23 Cal.App.4th 676, 29 Cal.Rptr.2d
547, 552 (1994); Moyer, 275 Cal.Rptr. at 497.”
When Appellant labeled Mr. Lutfi a “predator,” in the same chapters as her false allegations about cutting telephone wires, disabling automobiles, and purported attempts to drug Britney into a coma, Mrs. Spears’ intent – and the result – was to communicate the allegation that Mr. Lutfi had evil designs on her daughter – and took criminal measures to carry them out.
Under the Milkovich standard, this did not constitute a statement of opinion, it was a libel.
Likewise, the accusation that Mr. Lutfi lied, especially when considered in context with the other defamatory allegations, was not a mere expression of opinion. Indeed, California has long recognized that falsely accusing somebody of lying may constitute defamation per se. See, Witkin, Summary of California Law (10th
Ed.), Torts §543:
“The charge may be that the plaintiff has been guilty of
-29- an act of dishonesty. . .It is not necessary that the
publication charge the commission of a crime; it is
sufficient if it so reflects on the person's integrity as to
bring him or her into disrepute.”
The assertion that Respondent had an “evil” plan, the accusation he used “hostility, cruelty and lies,” the references to
Respondent as a “fake” and a “shifty man,” the assertion he had
Britney “in his clutches” and in a “stranglehold,” and the bizarre claim that Mr. Lutfi controlled the paparazzi and used them like
“henchmen,” were all part of an integrated gestalt of libel, involving both express and implied false statements of fact. Appellant asks the Court to parse the individual words, but under Milkovich, the totality of the false statements and pejoratives should be considered as a whole and taken in context. Viewed under the
Milkovich standard, the aspersions were not opinions, they were part and parcel of a calculated smear, including both direct and implied and manifestly false statements of fact.71
71 Mr. Lutfi’s prior counsel pleaded “defamation” and “libel” as separate causes of action. The Superior Court found they were “duplicative,” and treated them as a single cause of action, stating “libel is a subset of defamation” and citing Civil Code §44. (C.T. at 440). That statute defines libel as a subset of “defamation,” so the Superior Court’s analysis of the pleadings was correct, and the ruling should be affirmed.
-30- D. Respondent Presented a Prima Facie
Case for “Actual Malice”
Actual malice is defined in Nguyen-Lam v. Cao (2009) 171
Cal.App.4th 858, 867–869:
“To show actual malice, a public figure must
demonstrate the defendant uttered the statement ‘with
knowledge that it was false or with reckless disregard
of whether it was false or not.’ (New York Times, supra,
376 U.S. at pp. 279-280, 84 S.Ct. 710....As the trial
court correctly understood, ‘malice may be inferred
where, for example, ‘a story is fabricated by the
defendant [or] is the product of his imagination....
(Christian Research, supra, 148 Cal.App.4th at p. 85,
55 Cal.Rptr.3d 600.)”
Judge Sinavian found that Respondent Lutfi was a “limited
public figure,”72 and then found that sufficient evidence was
proffered to show a “reckless disregard” mental state:
“Lynne Spears – both in her book and the declaration
submitted herewith – asserts that Lutfi and Ghalib
said and did certain things which Lutfi and Ghalbi
72 Order of July 29, 2009 (C.T. at 441)
-31- deny in their declarations. This operates to establish
the elements of falsity required for the claims, and the
contradiction also logically establishes that Spears at
least acted with reckless disregard for the truth as she
reported statements which the alleged speakers deny
ever making.”73
The fact that Mrs. Spears framed several of her libelous
statements as purported admissions made to her by Mr. Lutfi, and
Respondents attests in his declaration he never made those
statements to the Appellant,74 by itself constitutes a prima facie
case for actual malice, because a party inventing a quote obviously
knows it is false. See, Selleck v. Globe International, Inc. (1985)
166 Cal.App.3d 1123, 1132 (“Falsely ascribing statements to a
person which would have the same damaging effect as a
defamatory statement about him is libel.”)
As stated in Masson v. New Yorker Magazine, Inc., 501 U.S.
496, 526 (1991) (Justices White and Scalia, Concurring):
“Under New York Times Co. v. Sullivan, 376 U.S. 254,
84 S.Ct. 710, 11 L.Ed.2d 686 (1964), ‘malice’ means
73 Order of July 29, 2009 (C.T. at 443)
74 Lutfi Dec., ¶¶ 15–17 (C.T. at 342)
-32- deliberate falsehood or reckless disregard for whether
the fact asserted is true or false....[T]he reporter,
Malcolm, wrote that Masson said certain things that
she knew Masson did not say. By any definition of the
term, this was ‘knowing falsehood.’”
Mrs. Spears also attributed statements about Mr. Lutfi to
Adnan Ghalib, but Mr. Ghalib attests, in his declaration, that he
never made those statements.75 Thus, Appellant’s use of false
quotes, attributed to Mr. Ghalib, constitutes further evidence of
actual malice.
Moreover, the Ghalib declaration contains powerful direct
evidence of scienter, because he describes how Mrs. Spears tried to
recruit him to smear Mr. Lutfi in the media:
“I was contacted by numerous television shows,
entertainment magazines and other media with
requests for interviews about Britney and the events
leading up to her being taken to Cedars Sinai. . . .
¶I received a telephone call from Britney’s mother,
Lynne Spears (‘Lynne’), wherein she instructed me to
give an interview and tell the interviewer that. . .all of
75 Ghalib Dec., ¶¶ 9–12 (C.T. at 323–324)
-33- Britney’s problems including, without limitation,
accusations of drug abuse, erratic behavior, etc., were
caused by [Sam] Lutfi. . . .¶I gave the interview,
however, I did not blame Britney’s problems on Lutfi
. . .because I had no personal knowledge, or any
reason to believe, that any of Lynne’s accusations or
assertions about Lutfi were true.”76
The fact that Mrs. Spears tried to enlist a third party in her smear campaign against Mr. Lutfi is powerful evidence of ill will and actual malice. As stated in Hailstone v. Martinez (2008) 169
Cal.App.4th 728, 740:
“[Actual] malice is established by a showing that the
publication was motivated by hatred or ill will toward
the plaintiff or by a showing that the defendant lacked
reasonable grounds for belief in the truth of the
publication and therefore acted in reckless disregard of
the plaintiff's rights. (Sanborn v. Chronicle Pub. Co.
(1976) 18 Cal.3d 406, 413, 134 Cal.Rptr. 402, 556
P.2d 764.)” (Emphasis added)
76 Ghalib Dec., ¶¶ 6–8 (C.T. at 323)
-34- E. Bigotry by Appellant Spears
Mrs. Spears’ Book describes Sam Lutfi as “a swarthy man. . . of Middle Eastern heritage,” a “shifty” man who wears “ratty” clothing and engages in “hostility, cruelty and lies. . . .”77
Appellant claims Respondent exerted “complete control” over her
“vulnerable” daughter,78 and entitles one entire section of her Book
“Svengali.”79
Svengali, of course, was the villain of George DuMaurier’s viciously anti-Semitic novel Trilby, published in 1895.80 In his novel, DuMaurier described Svengali as a “filthy black Hebrew,” an
“incubus” with “beady Jews eyes” and “yellow teeth baring themselves in a mongrel, canine snarl,” who was “full of malice,” did not bathe, and spoke with a “Hebrew-German accent.”81
Mrs. Spears’ reference to Mr. Lutfi as “Svengali” was calculated, because she patterned her libel around the Svengali
77 C.T. at 366, 375
78 C.T. at 368, 369
79 C.T. at 368
80 Edward Rosenberg, From Shylock to Svengali: Jewish Stereotypes in English Fiction (Stanford University Press, 1960).
81 Id.; George DuMaurier, Trilby (Harper & Bros., 1895) at 57, 62, 68, 136.
-35- story. By referencing Mr. Lutfi’s ethnicity and skin color, referring to him as “swarthy,” ethnic, disheveled and sweating, then fabricating the claim that he was drugging Britney to keep her under his mental control, Mrs. Spears was paralleling the stereotyped “Svengali” character from the novel, who used hypnotism to control, exploit and sexually ravish Trilby O’Ferrall, a young Scottish-English singer.82
By characterizing Mr. Lutfi as a “predator,” referring to skin color and ethnicity, and falsely accusing him of isolating Britney from friends and family, Mrs. Spears was patterning her libel on
Svengali, who took Trilby away from their circle of friends, mesmerized her, controlled her, made her his bigamous “wife,” and misappropriated her earnings.
Mrs. Spears argues it is mere “opinion” to refer to Mr. Lutfi as “Svengali.” Indeed, Appellant even argues that calling somebody
“Svengali” is per se an “opinion” and can never be actionable in a libel case, no matter the context.83
What Appellant fails to address is the context. Mrs. Spears wove a web of lies to cast Mr. Lutfi in the “Svengali” role, so her
82 Trilby, supra, at 16, 54, 136, 370.
83 A.B. at 26–28
-36- use of that term was cunning and calculated. The pernicious literary reference to Svengali, taken in context as per the Milkovich analysis, was an integral part of the libel.
Respondent also observes that Appellant’s references to Mr.
Lutfi as “swarthy” and of “Middle Eastern heritage,” constituted bigotry, and further evidence of actual malice. The fact that Mr.
Lutfi was subjected to racial epithets after publication of the Book was, Respondent submits, both foreseeable and intended.
F. Respondent Demonstrated Actual
and Presumed Damages
Mr. Lutfi’s declaration describes how he was taunted with ethnic slurs, harassed, subjected to ridicule and scorn, was unable to find work, and had his life threatened by Britney’s fans, after publication of the Book.84 Based on this evidence, the Superior
Court found that Respondent’s evidence of actual damages was sufficient to proceed with the case:
“Lutfi also alleges that he has been damaged,
describing [in his declaration] the public ridicule and
harassment which accompanied the publication of
84 Lutfi Declaration, ¶¶ 11–12 (C.T. at 341)
-37- Spears’ book. The Court finds this sufficient to
establish Lutfi’s defamation claims as a prima facie
matter, and therefore denies the anti-SLAPP motion as
to the first and second causes of action.”85
Mr. Lutfi also invokes the doctrine of libel per se, which allows for recovery of “general” damages based on the intrinsically defamatory nature of the false statements. See, Civil Code §§ 45a,
46(1); Allard v. Church of Scientology (1976) 58 Cal.App.3d 439,
450 (“In matters. . .that are libelous per se, for example the charging of a crime, general damages have been presumed as a matter of law.”)
Mrs. Spears accused Mr. Lutfi of slipping drugs into
Britney’s food as part of an effort to put her in a coma, cutting her telephone wires, and disabling her automobiles, and these all constitute false allegations of criminal acts. A false accusation of criminal conduct constitutes defamation per se. See, Rider v.
Superior Court (1988) 199 Cal. App. 3d 278, 285; Fisher v. Larsen
(1982) 138 Cal.App.3d 627, 640, cert. den., 464 U.S. 959; Axelbank v. Rony, 277 F.2d 314, 317 (9th Cir. 1960); Goehring v. Wright
(N.D. Cal. 1994) 858 F.Supp. 989, 1004.
85 Order of July 29, 2009 (C.T. at 443)
-38- As Britney’s manager, Mr. Lutfi had a fiduciary relationship with her, so the nefarious things which Mrs. Spears accused him of doing constituted a breach of trust. A false accusation of a breach of trust constitutes libel per se. See, Selleck v. Globe
International, Inc., supra, 166 Cal.App.3d at 1132 (“Falsely charging a person with a violation of confidence reposed in him is libel per se.”); Dethlefsen v. Stull (1948) 86 Cal.App.2d 499, 502.
Mrs. Spears also asserts that Sam Lutfi lied,86 another classic form of libel per se. See, Witkin, Summary of California Law
(10th Ed.), Torts §543:
“The [libelous per se] charge may be that the plaintiff
has been guilty of an act of dishonesty, or that plaintiff
has some particular defect of character. It is not
necessary that the publication charge the commission
of a crime; it is sufficient if it so reflects on the
person's integrity as to bring him or her into disrepute
. . . .¶Thus, falsely charging a person with ‘a violation
of confidence reposed in him or with treachery. . .’ is
actionable per se. (Dethlefsen v. Stull (1948) 86 C.A.2d
499, 502, 195 P.2d 56.)”
86 C.T. at 375, 379
-39- Appellant cites dictum in Gertz and argues that general damages are unavailable because Mr. Lutfi is a public figure.
Actually, the dictum in Gertz merely stated that actual malice must be proved to proceed against a public figure based on “presumed damages.” Gertz v. Robert Welch, Inc., supra, 418 U.S. at 349.
Since Respondent presented a prima facie case for compensatory damages and presented prima facie evidence of actual malice, even assuming the Gertz dictum is controlling, it has been satisfied twice over.
Respondent submits that the issues of compensatory damages, libel per se, and general damages are for the jury. As stated in Selleck v. Globe International, Inc., supra, 166
Cal.App.3d at 1131:
“It is error for a court to rule that a publication cannot
be defamatory on its face when by any reasonable
interpretation the language is susceptible of a
defamatory meaning. (Cameron v. Wernick (1967) 251
Cal.App.2d 890, 893). . .In making that determination
we look to what is explicitly stated as well as what
insinuation and implication can be reasonably drawn
from the publication. (Forsher v. Bugliosi, supra, 26
-40- Cal.3d at p. 803, 163 Cal.Rptr. 628, 608 P.2d 716.)”
G. Respondent Demonstrated a Prima Facie Case
for Intentional Infliction of Emotional Distress
Respondent Lutfi is also suing Appellant Lynne Spears for intentional infliction of emotional distress.87 Mrs. Spears moved to strike this cause of action, at least to the extent it is based on the libelous Book. Judge Sinanian denied this aspect of the motion stating:
“The Court also finds that the cause of action for
intentional infliction of emotional distress based on
this same constellation of facts is legally cognizable,
and supported by sufficient evidence to establish
Lutfi’s probability of prevailing on the claim. See
Cervantez v J.C. Penny Co. (1979) 24 Cal.3d 579, 593.
Therefore, the Court denies the defendant’s anti-
SLAPP motion in its entirety.”88
Defamation by itself will support a cause of action for infliction of emotional distress. See, Kelly v. General Telephone Co.
87 C.T. at 356
88 Order of July 29, 2009 (C.T. at 443)
-41- (1982) 136 Cal.App.3d 278, 287 (spreading of deliberately false statements accusing plaintiff of falsifying invoices constituted
“outrageous conduct” sufficient to sustain claim for intentional infliction of emotional distress).
Here, the emotional distress cause of action also includes the death threat and assault and battery by Jamie Spears. Although this aspect of Mrs. Spears’ liability for emotional distress was not addressed in the anti-SLAPP proceeding, the record supports an inference that Mrs. Spears orchestrated the physical confrontation which led Jamie Spears to threaten and “stalk” Respondent.89 On remand, Respondent should be allowed to conduct discovery and prove that Mrs. Spears knew of Jamie Spears’ violent proclivities when she helped him sneak into Britney’s home to “stalk” Mr.
Lutfi, and likewise foresaw and intended the violent reaction by her ex-husband when she told Jamie Spears that Sam Lutfi had
“insulted” her.
The Book suggests that Mrs. Spear relished the fearful response by Mr. Lutfi, when he was “stalked” by her ex-husband, and Mrs. Spears even thanked God for helping bring about the
89 C.T. at 374
-42- confrontation – which she herself had arranged.90
Inciting others to threaten or perpetrate acts of violence will support a claim for the intentional infliction of emotional distress.
See, Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal
Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1260 (postings on web site encouraging attacks on plaintiff).
Moreover, a death threat and physical assault will sustain a judgment for the intentional infliction of emotional distress. See,
State Rubbish Collectors Ass'n v. Siliznoff (1952) 38 Cal.2d 330,
336 (cause of action established when one “intentionally subjects another to the mental suffering incident to serious threats to his physical well-being. . . .”)
Additionally, Mrs. Spears’ denigration of Mr. Lutfi based on his “swarthy” skin color and ethnic heritage are relevant to scienter, and further support the emotional distress claim, which should be allowed to proceed. See, Alcorn v. Anbro Engineering,
Inc. (1970) 2 Cal.3d 493, 497–500.
90 C.T. at 374–375
-43- IV
Conclusion
Wherefore, for the reasons set forth above, the Superior
Court’s Order denying the Special Motion to Strike should be affirmed.
Respectfully submitted,
Dated: June 7, 2010 JOSEPH D. SCHLEIMER ATTORNEY AT LAW
BY: JOSEPH D. SCHLEIMER, Attorney for Respondent Sam Lutfi
-44- Certificate of Word Count CRC §8.204(c)
As determined by the Wordperfect software used to generate this Brief is 8,314 words in length, not including the table of contents and table of authorities.
Respectfully submitted,
Dated: June 7, 2010 JOSEPH D. SCHLEIMER ATTORNEY AT LAW
BY: JOSEPH D. SCHLEIMER Attorney for Respondent Sam Lutfi
-45- PROOF OF SERVICE BY U.S. MAIL
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, California 90212.
On *June 7, 2010* I served the foregoing document described as: *Respondent’s Brief* on the interested parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows:
By .PDF: Pursuant to California Rule of Court 8.212, I caused the document identified above to be electronically served on the California Supreme Court in .pdf format.
BY U. S. MAIL
I deposited the sealed envelopes in the United States mail at Beverly Hills, California, addressed as stated above. The envelopes were mailed with first class postage thereon fully prepaid.
Executed on *June 7, 2010* at Beverly Hills, California.
(State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Type or Print Name Signature
-46- Service List Lutfi v Spears
Michael S. Adler, Esq. Joel E. Boxer, Esq. Joel M. Tantalo, Esq. Bonita D. Moore, Esq. Tantalo & Adler LLP Bird Marella Boxer Wolpert 1901 Avenue of the Stars Nessim Drooks & Lincenberg Suite 1000 1875 Century Park East Beverly Hills, California 90067 23rd Floor Los Angeles, California 90067 Attorneys for Defendant/Appellant Lynne Attorneys for James Spears as Spears Conservator of the Estate of Britney Spears
Leon J. Gladstone, Esq. Donald L. Mabry, Esq. Samuel D. Ingham, III, Esq. Gladstone Michel Weisberg 9440 Santa Monica Boulevard Willner & Sloane ALC Suite 510 4551 Glencoe Avenue, Suite 300 Beverly Hills, California 90210 Marina Del Rey, CA 90292 Court-appointed Attorney for Attorneys for Defendant James P. Britney Jean Spears Spears
Robert S. Gutierrez, Esq. Hon. Zaven V. Sinanian Leopold, Petrich & Smith Department 23 2049 Century Park East Los Angeles Superior Court Suite 3110 111 N. Hill Street Los Angeles, California 90067 Los Angeles, California 90012
Attorneys for Defendant Thomas Nelson, Inc.
Served on California Supreme Court in .pdf format.
-47-