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Email: [email protected] Christopher Lovrien (State Bar No. 230546) RUMAIHI and AYMAN SABI AYMAN and AL-RUMAIHI AHMED Defendants for Attorneys Facsimile: , an individual,KWATINETZ ICE CUBE company; BIG3 LLC, a limited liability Telephone: Los Angeles, CA 90071.2300 Fiftieth Floor 555 South Flower Street DAY JONES Email: [email protected] 211615) No. Bar (State Reilley L. Erica Email: [email protected] Brian D. Hershman (State Bar No. 168175) individual; 1 Qatar Investment Authority; and DOES THANI SAU BIN MOHAMMED BIN individual; individual; AL-RUMAIHI, an AHMED - 100,
v.
, an individual and as CEO of
FIRST AMENDED COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 PROCEDURE OF CODE CIVIL CALIFORNIA TO PURSUANT COMPLAINT AMENDED FIRST
A/K/A JACKSON O’SHEA
JEFF JEFF and individual; an , SHEI SABI AYMAN AL-HAMADI FAISAL +1.213.243.2539 +1.213.489.3939
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ TO STRIKE ANDMOTION MOTION OF NOTICE DEFENDANTS’ Plaintiffs, Defendants. KH ABDULLAH KH ABDULLAH CENTRAL UNITED STATES DISTRI STATES UNITED
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DISTRICT OF CALIFOR OF DISTRICT
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Courtroom: Hearing Time: Hearing Date: § 425.16 URE PROCED CIVIL OF CODE IA CALIFORN TO PURSUANT COMPLAINT AMENDED STRIKE TO ANDMOTION MOTION O NOTICE DEFENDANTS’ Gee M. Dolly Hon. Assigned for all purposes to (SKx) DMG 2:18−cv−3466 No.
COURT CT
PLAINTIFFS’ FIRST FIRST PLAINTIFFS’
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Code Section 425.16, et. seq. to strike Plaintiffs’ First Amended Complaint pursuant to California Civil Procedure Al Angeles, California, 90012, before the Honorable Dolly M Court for the Central District of California, located at 350 West 1st Street, Los thereafter as counselmay be heard in Courtroom 8C of the United States District
as required by Central District Local Rule 7 Local District by Central required as because they cannot satisfy the necessary elements of any of their claims. establish, as a matter of law, a probabilityof prevailing on the merits of their claims forum and relating to a matter of public interest. Furthermore, Plaintiffs cannot Complaint should be stricken because it is based on statements made ina public 2018 and any and all other matters that this Court deems just and proper. files in this action, any argument that maybe requested at the hearing on this matter, filed Request for Judicial Notice. In addition, this motion is based on all records and filed Declaration of B filed Memorandum of Points and Authorities in support thereof, the concurrently RECORD:
-Rumaihi and Ayman Sabi (collectively,the “Investors”) will and hereby domove , as well as in subsequent email a The Investors met and conferred with Plaintiffs’ counsel regarding this motion The Investors bring this motion on the grounds that Plaintiffs’ First Amended PLEASE TAKE NOTICE THAT This motion is based upon this Notice of Motion and Motion, the concurrently TO THECOURT, ALL PARTIES, AND ATTORNEYS THEIR OF FIRST AMENDED COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 PROCEDURE OF CODE CIVIL CALIFORNIA TO PURSUANT COMPLAINT AMENDED FIRST
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ TO STRIKE ANDMOTION MOTION OF NOTICE DEFENDANTS’ rian D. Hershman and exhibits thereto, and the concurrentlythe and thereto,exhibits and Hershman D. rian , and for an award of attorneys’ fee nd -
2 telephonic communications.
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- 3 in an ema ne 1, 2018, at 9:30 a.m., or as soon soon as or 9:30 a.m., at 2018, ne 1, . Gee, defendants Ahmed il exchange on April 25, April on exchange il s and costs.
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2018 May 4, Dated:
FIRST AMENDED COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 PROCEDURE OF CODE CIVIL CALIFORNIA TO PURSUANT COMPLAINT AMENDED FIRST DEFENDANTS’ NOTICE OF MOTION AND MOTION TO STRIKE PLAINTIFFS’ TO STRIKE ANDMOTION MOTION OF NOTICE DEFENDANTS’
-
3 Defendants for Attorneys By: DAY JONES Respectfully submitted AHMED AL-RUMAIHI AHMED SABI
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/s/ Brian D. Hershman Brian D. Hershman
,
and
AYMAN AYMAN
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Email: [email protected] Email: 230546) No. Bar (State Lovrien Christopher , an individual,KWATINETZ ICE CUBE company; BIG3 LLC, a limited liability individual; 1 Qatar Investment Authority; and DOES THANI SAU BIN MOHAMMED BIN individua individual; AL-RUMAIHI, an AHMED RUMAIHI and AYMAN SABI AYMAN and AL-RUMAIHI AHMED Defendants for Attorneys Facsimile: Telephone: Los Angeles, CA 90071.2300 Fiftieth Floor 555 South Flower Street DAY JONES Email: [email protected] 211615) No. Bar (State Reilley L. Erica Email: [email protected] Brian D. Hershman (State Bar No. 168175)
- 100, MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ v.
, an individual and as CEO of
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1.213.489.3939 Plaintiffs, Defendants. CENTRAL DISTRICT OF CALIFORNIA OF DISTRICT CENTRAL UNITED STATES DISTRI STATES UNITED ENDED COMPLAINT PURS COMPLAINT ENDED
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Courtroom: Hearing Time: Hearing Date: 425.16 § PROCEDURE CIVIL OF CODE CALIFORNIA T PURSUANT COMPLAINT AMENDED FIRST PLAINTIFFS’ MOTION TOSTRIKE TS’ DEFENDAN OF SUPPORT IN AND AUTHORITIES POINTS OF MEMORANDUM Gee M. Dolly Hon. Assigned for all purposes to (SKx) DMG 2:18−cv−3466 No.
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF
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I. II. III. V. IV.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE TO MOTION STRIKE DEFENDANTS’ OF INSUPPORT AND AUTHORITIES POINTS OF MEMORANDUM
CIVIL PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODE OF PURSUANT COMPLAINT AMENDED FIRST PLAINTIFFS’ FACTUAL BACKGROUND FACTUAL LEGAL STANDARD ARGUMENT A. B. CONCLUSION MOTION THIS BRINGING IN INCURRED ANDCOSTS FEES ATTORNEYS’ THEIR INVESTORS THE AWARD SHOULD THE COURT
Activities Under the Anti Statute -Slapp BIG3’s Claims Arise From Allegations That Are Protected 1. 2. Merits Of Its Claims BIG3 Cannot Demonstrate A ProbabilityOf Prevailing On The 1. 2. 3.
ClaimsWere Made In A Public Forum The Alleged Statements Forming The Basis Of BIG3’s The Claims Concern An Issue Of Public Interest (b) (a) Per Se Claims Se Per Defamation Or Defamation Its On Prevail Cannot BIG3 (a) (c) (b) (d) BIG3 Cannot Prevail On Its Trade Libel Claim Libel Trade Its On Prevail Cannot BIG3 Prospective Economic Relations Claim with Interference Intentional Its On Prevail Cannot BIG3
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Alleged Statements Forming The Basis Of BIG3’s Statements The Public Is Interested In The Content Of The Public Eye Public In The All Are Kwatinetz And Cube Ice BIG3, Are False Statements Of Fact BIG3 Cannot Demonstrate That The Statements Claims Defamation The Wer BIG3 Cannot Demonstrate That The Statements Were Published By The Investors BIG3 Cannot Demonstrate That The Statements Kwatinetz Actual Malice Allegedly The Show Must Therefore And Figure Public TABLE OF CONTENTS ...... e Made About Each Of The Plaintiffs Asserting
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C Ampex Corp. v. Cargle
Blatty v. New York Times Co. An Comedy III Prods., Inc. v. Gary Saderup, Inc Saderup, Gary v. Inc. Prods., III Comedy Cepeda v. Cowles Magazines & Broad., Inc. Carver v.Bonds , Briggs v. Eden Council for Hope& Opportunity Braun v. Chronicle Barrett v. Rosenthal v. Barrett Averill v. Superior Court Superior v. Averill Arntz Contracting Co Ins. Co.& Fire v. Marine St. Paul ASES nette F. v. Sharon S. 128 Cal. App. 4th 1569 (2005) 42 Cal. 3d 1033 (1986) 40 Cal. 4th 33 (2006) 33 4th Cal. 40 119 Cal. App. 4th 1146 (2004) 25 Cal. 4th 387 (2001) 387 4th Cal. 25 392 F.2d 417 (9th Cir. 1968) 135 Cal. App. 4th 328 (2005) 52 Cal. App. 4th 1036 (1997) 19 Cal. 4th 1106 (1999) 42 Cal. App. 4th 1170 (1996) 47 Cal. App. 4th 464 (1996) MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’
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, R.R. D.C. v. ComputerXpress, Inc. v. Jackson, Forte v. Jones v. Forte Flores v. Von Kleist, Mauro v. Flatley Hamsher v. Ferlauto Equilon Enters. v. Consumer Cause, Inc. Cause, Consumer v. Enters. Equilon DC Comics v. Pac. Pictures Corp. Damon v. Ocean Hills Journalism Club Journalism Hills Ocean v. Damon Hall v. Time Warner, Inc Gallagher v. Connell v. Gallagher Gressett v. Contra Costa Cty Gertz v. Robert Welch, Inc 182 Cal. App. 4th 1190 (2010) 93 Cal. App. 4th 993 (2001) No. 1:11 No. 2010) Cal. (E.D. 1236 2d Supp. F. 739 39 Cal. 4th 299 (2006) 299 4th Cal. 39 74 Cal. App. 4th 1394 (2002) 53 4th Cal. 29 706 F.3d 1009 (9th Cir. 2013) 85 Cal. App. 4th 468 (2000) 20, 2013) 153 Cal. App. 4th 1337 (2007) 123 Cal. App. 4th 1260 (2004) No. C No. 418 U.S. 323 (1974) MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ -12 -CV -
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Nygard, Inc. v. Uusi v. Inc. Nygard, Navellier v. Sletten, McGarry v. Univ. of San Diego San of Univ. v. McGarry Martinelli v. Int’l House USA Manzari v. Associated Newspapers Ltd. Inc Serv., Time Old Quality v. Mann Ketchum v. Moses, andLardner Foley v. Kearney Okorie v. Los Angeles Unified Sch. Dist., Optional Capital, Inc. v. Akin Gump Strauss, Jackson v. Mayweather v. Jackson Hecimovich v. Encinal Sch. Parent Teacher Org. LLC Autozoners, v. Havens 159 Cal. App. 4th 1027 (2008) 29 Cal. 4th 82 (2002) 82 4th Cal. 29 154 Cal. App. 4th 97 (2007) 161 Cal. App. 4th 1332 (2008) 830 F.3d 881 (9th Cir. 2016) 139 Cal. App. 4th 24 Cal. 4th 1122 (2001) 553 F. Supp. 2d 1178 (S.D. Cal. 2008) Cal. (S.D. 1178 2d Supp. F. 553 14 Cal. App. 5th (2017) 57 590 4, 18 Cal. App. 5th 95, 112 (2017) 203 Cal. App. 4th 450 (2012) 10 Cal. App. 5th 1240, (2017) 1254 June 13, 2017) No. 2:16 No. MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ -CV - 02503
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Williams v. Salvation Army Wilbanks v. Wolk Varian Med. Sys., Inc. v. Delfino, Total Call Int’l, Inc. v. Peerless Ins. Co. Taus v. Loftus , Ryll v.Ryll Merck& Co. Summit Bank v. Rogers v. Bank Summit Inc. Int’l, Scott v. Metabolife Seelig v. Infinity Broad. Corp., Rusheen v. Cohen, Reed v. Gallagher v. Reed PAI Corp. v. Integrated Sci. Sols., Inc Sols., Sci. Integrated v. Corp. PAI Lopez v. Inc. Farms, Overhill 121 Cal. App. 4th 883 (2004) 2015) 2:14 No. 35 Cal. 4th 180 (2005) 180 4th Cal. 35 181 Cal. App. 4th 161 (2010) 40 Cal. 4th 683 (2007) 683 4th Cal. 40 206 Cal. App. 4th 669 (2012) 111 F. App’x 535 (9th Cir. 2004) 97 Cal. App. 4th 798 (2002) 115 Cal. App. 4th 404 (2004) 37 Cal. 4th 1048 (2006) 248 Cal. App. 4th 841 (2016) C No. 190 Cal. App. 4th 1248 (2010) MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’
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S California Civil Procedure Code § 425.16, et. seq. Cal. Code Civ. Proc. § 425.16(c) Cal. Civ. Proc. Code § 425.16 (e)(4) Cal. Civ. Proc. Code § 425.16(e) Cal. Civ. Proc. Code § 425.16(b)(1) ZL Techs., Inc. v. Does 1 TATUTES 13 Cal. App. 5th 603, 624 (2017) MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’
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brought in federal court.”). (“We have running the basketball league. the Investors will assume that BIG3 intends to refer to the company involved in league. For purposes of this motion, and without waiving any rights or defenses, liability company inthe business of running a professional, 3-on basketball not appear to be a proper plaintiff. The BIG3 Basketball LLC is a Delaware limited
Ayman Sabi (together, the “Investor Kwatinetz (collectively,“BIG3”) have sued defendants Ahmed Al -Rumaihi and non statements to Kwatinetz based on information purportedly received from another from allegations that a non- the purported defamatory statements involve double and triple hearsay, or are so establishing a probability of prevailing on the merits of its claims. Indeed, because specifically. allegations the BIG3 basketball league, Ice Cube and Kwatinetz generallyand the nature of the demonstrated by the extensive media and press coverage, the public is interested in statute. Moreover, the statements address issues of public i “public relations efforts,” satisfying the public forum prong of the anti -SLAPP statements were made to“numerous individuals” and in a “press release” as part of forum and inconnection with a matter of public i matterlaw. of a Although the Investors submit these allegations fail to give rise to any SLAPP statute”), 425. Section Code Procedure Civil California under strike claim against them, to the extent any claim could lie against them, it is subject to - MEMORANDUM OF POINTS OF MEMORANDUM party (Kai Henry) and conveyed toyet another non PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Plaintiffs BIG3 LLC, 2 1 Moreover, BIG3 cannot satisfy its burden topresentcompetent evidence To start, BIG3’s allegations are based entirely onstatements made in a public
See DC Comics v. Pac. Pictures Corp. The BIG3 LLC is a defunct Delaware limited liability company and does
held that [an anti-SLAPP Motion] isavailable against state law claims MEMORANDUM OF POINTS ANDAUTHORITIES POINTS OF MEMORANDUM
2
because it is based on conduct that is privileged and protected as ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES
party (Roger Mason) attributed racially inflammatory 1
O’Shea Jackson (a/k/a“Ice Cube”), and Jeff
s”) for defamation and related claims arising -
1
-
UANT TO CIVIL CODEUANT OF , 706 F.3d 1009, 1013 (9th Cir. 2013) nterest. BIG3 asserts that the - party (JeromeWilliams). 16, 16, nterest because,as et. seq. PROCEDURE § 425.16 § PROCEDURE , (the “anti
actionable
-
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Investors attorneys’ fees and costs in bringing this Motion. Complaint pursuantthe toanti -SLAPP statute with prejudice and award the BIG3 has failed to plead the most basic elements of its claims. 3 I. vague and conclusory as to constitute non- p. 6. commitment) in July 2017, and an additional $1 million in November 2017. Ex. B, $11.5 million in return for a stake in the league. FAC ¶ 37, 41. established by the Investors, invested in the BIG3 league, agreeing to contribute Ice Cube and Jeff Kwatinetz. FAC ¶ 1. On July 14, 2017, Sport Trinity, retained toprofessionally about apparent self accurate financial information about the league’s activities (including information under which Sport Trinitymade its investment in BIG3, the lack of complete and the corporategovernance structurethat had beennegotiated into the agreement Ex. In would be forthcoming. Id and the management team would need to be addressed before additional funds to Id mounting. were to ensure the league’s survival; the season was advancing expenses and full-throttle subject to the concurrently filed Request for Judicial Notice. Declaration of Brian D. Hershman insupport of this motion, nearly all of which are
All citations to “Ex.__” are to the exhibits attached to the concurrently filed
vestors engaged in discussions with Kwatinetz and certain league executives. the corporate governance structure, the financial records (which were a mess)
MEMORANDUM OF POINTS OF MEMORANDUM B, p. 9. Chief among the Investors’ concerns was the failure of BIG3 to follow 3 BIG3 understood that Sport Trinity’s immediate cash injection was necessary PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Accordingly, the Investors ask this Court to strike BIG3’s First Amended Sport Trinity initially contributed $6.5 million (of its $11.5 million The BIG3 league is a 3-on BACKGROUND FACTUAL As the Investors’ concerns increased throughout the fall of 2017, the - . However, it was understood that certain critical issues related dealing), and the unwillingness of Kwatinetz to allow those those allow to Kwatinetz of unwillingness the and dealing), ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES manage the leagueto dotheirjobs. . - 3 professional basketball association founded by
-
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- actionable opini actionable
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF ons as a matter of law,
Id . Sport Trinity
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4 league. Qatar, including citizens of Qatar who had no mediaa campaign against the Investors and, in a bizarre turn, the entire nation of Demand for Arbitration on February 14, 2018 (FAC 75 ¶ of the league. Id critical to secure new investors which would be essential for the continued viability provided complete and accurate books and records. Id increase its contribution, provide the remaining $4 million outlay, but that it was also prepared to substantially offered an amicable resolution: it made clear to BIG3 that it would not only fulfill trip to BIG3. Ex. C, ¶ 45 ¶ C, BIG3. Ex. to trip investigation” conducted by the league and traveled to China without disclosing his Kwatinetz claimed that Mason refused to cooperate with an “independen Rafael Fogel, resigned due to disagreements with Kwatinetz. In firing Mason, Henry, resigned due to disagreements with Kwatinetz; and (4) the league’s CFO, (2) he fired league commissioner, Roger Mason, J he improperly attempted to expel Sport Trinity, the BIG3 league’s largest investor; tweeting the ad). full a out by taking Defendants against relations. The next day, BIG3 filed a First Amended Complaint (“FAC”) bringing defamation per se, trade libel, and intentional interference with contractual campaign byfiling a complaint purportedlyassertin mismanagement of the league and erratic behavior. Ex. B, p. 10. ¶ and calculated to divert attention from his mismanagement of the league. Ex. C
Ex. D (Vibe reporting that Ice Cube “took things up a notch” after filing a lawsuit 48. MEMORANDUM OF POINTS OF MEMORANDUM Similarly, both Fogel and Henry resigned as a result of Kwatinetz’s PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ However, rather than add than rather However, Moreover, Kwatinetz’s erratic behavior in managing the league escalated: (1) As ismost relevant here, on April 5, 2018, BIG3 continued its media 4
.
ENDED COMPLAINT PURS COMPLAINT ENDED -
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES 47. However, Kwatinetz’s justifications were fabricated ress the Investors’ concerns, BIG3 submitted a d BIG3 addressed the foregoing issues and -page ad in the New York Times and -
3
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L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF involvement in Sport Trinity or the r.; (3) the league’s CCO, Kai g claims for defamation, . These measures were also ) and proceeded to launch
t
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statute and BIG3’s FAC should be stricken with prejudice. d simply alleges that the Investors “made or aided and abetted in the making of with prospective economic relations claim contains even less information. It properly and not accepting their money.”FAC ¶ 116. purportedly told “players and third factual detail. BIG3 claims the Investors cannot assert such a claim. The trade libel claim similarly lacks the most basic group might include) are not named parties tothe FAC and implicated in the alleged statements and the“Players” (whomever that unidentified Kwatinetz and the “Players.” However, Kwatinetz is the only plaintiff even any of the most basic details that are essential to state a viable claim for defamation. Investors statements,when the statements were purportedlymade, towhom (if anyone) the contains extremely vague assertions without identifying who specificallymade the statement and also called Kwatinetz “racist” and “hostile.” FAC ¶ 113. later conclusorily contends that the Investors Kwatinetz referred to BIG3 players “Rich as Nig*as.” FAC ¶ basketball player who plays inBIG3 games) that Kai Henry had told him that allegation 5 II. the same claims based on the same allegations. Hecimovich v. Encinal Sch. Parent Teacher Org. do the right thing.’” Ex. E. Ex. thing.’” right the do the lawsuit saying, “‘We gon’ win. Stay out of American sports if you don’t wanna
efamatory statements.” FAC ¶ 122. About a week after BIG3 filed the FAC, Ice Cube commented toTMZ regarding
MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ As discussed below, these allegations are properly subject to the anti -SLAPP BIG3’s defamation claims purportedly are brought on behalf of Ice Cube, BIG3’s claims are the proper subject of an anti -SLAPP motion. STANDARD LEGAL
made these alleged statements, what specifically was purportedly said, or that Roger Mason allegedly told JeromeWilliams (a former NBA ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES
-parties” that “the league was not beingmanaged
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4 are liable for trade libel because they
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L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF accused Kwatinetz of making this 5 The FAC is generally bas generally is FAC The , 203 Cal. App. 4th 450, 466 The intentional interference interference intentional The therefore necessarily 95, Ex. E. The FAC FAC E. The Ex. 95, See The FAC FAC The ed on the , , e.g.
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defense or the a Capital evidence. Optional App. 4th 539, 548 (1995)). The plaintiff mustmeet this burden withadmissible Connel judgment if the evidence submitted by the plaintiff is credited.’” Gallagher v. and supported by a sufficient prima facie showing of facts to sustain a favorable p of prevailing on the claim.” Navellier the court “must then determine whether the plaintiff has demonstrated a probability Chronicle Publ'g Co. in section 425.16, subdivision (e).’” Navellier cause is a protected activity,meaning, that it “‘fits one of the categories spelled out (2002). Instead, all that must be shown is that the act Inc. or petition Cause, Consumer rights.” v. Enters. Equilon action complained of with the intent of chilling the defendant’s exercise of speech defendant is not required to demonstrate “that t Dist under the First Amendment as a matter of law.” Okorie v. Los Angeles Unified Sch. defendant does not have to show that the state (2017), review denied (Mar. 14, 2018). Inmaking this threshold showing, a Capital, Inc. v. Akin Gump Strauss, Hauer& Feld LLP activity.” Id threshold showing that the challenged cause of action is one arising from protected 4th 82, 88 (2002). “First, the court decides whether the defendant has made a SLAPPmotion, the (“defamation suits are a prime target of SLAPPmotions.”). In considering an anti- (2012); robability, a plaintiffmust demonstrate that the complaint is both legally sufficient MEMORANDUM OF POINTS OF MEMORANDUM ., 14Cal. App. 5th 574, 590 (2017) (internal quotations omitted). In addition, a PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Once the defendant makes this showing, the burden shifts to the plaintiff and l , 123 Cal. App. 4th 1260, 1265 (2004) (quotingDvorak v. Matson Scott v. Metabolife Int’l, Inc. . At this s this At . bsence of a necessary element, the anti
court conducts a two- , 52Cal. App. 4th 1036, 1043 (19 tage, the defendants’ burden is not onerous. Optional ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES , 18 Cal. App. 5th at 112. If the defendant establishes a , 115 Cal. App. 4th 404, 419 (2004) , 29 Cal. 4th at 88. “‘To establish such a -
5 step inquiry.
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF ments “are constitutionally protected , 29 Cal., 29 at 4th(quoting 88 he plaintiff brought the cause of underlying the plaintiffs’ -SLAPPmotion should be 97)). , 18Cal. App. 5th 95, 112 Navellier v. Sletten Cal. , 29 , 29 Cal. 4th 53, 58 , 40 Cal. Cal. , 40 Braun v. v. Braun
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defamation, including exchanges about Las Vegas trips, celebrity parties and FAC also copies and pastes entire text messages unrelated to the alleged Sabi continued to make excuses why they couldn’t pa Qatar in light of the blockade….,” and that “Defendant Al that “it became apparent that Defendants were focused on improving the image of with the BIG3 … is a cautionary tale fo dealings with the nation of Qatar, claiming that Qatar Investments’“interactions with contractual relations. For example, the FAC preaches against business BIG3’s causes of action Indeed, the majorityof the FAC focuses on allegations completely against its Investors (likely inorder to eliminate their equity interest in BIG3). thatthis la exactly what the anti- all 312 (2006) (quoting Cal. Civ. Proc. Code § 425.16(a)). chilled through abuse of the judicial process.” Mauro v. Flatley participation in matters of public significance, and … participation should not be SLAPP statute is “‘broadly construed’” as “it isin the public interest to encourage Cohen preliminary stage of the proceedings where the allegations lack merit. Rusheen v. “provide[s] a procedural remedy” for the Court to dispose of law (2005) (quoting Cal. Delfino v. Inc. Sys., freedom Med. of speech….’” of Varian ‘lawsuits … brought primarily to chill the valid exe III. granted. Bonds v. Carver , it seeks to chill “participation in matters of public significance,” which is
MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Here, to the extent the allegations in BIG3’s FAC implicate the Investors The Legislature enacted the anti ARGUMENT , 37 Cal. 4th 1048, 1055 wsuit is really part of a calculated smear campaign launched by BIG3 Civ. Proc. Code § 425.16(a)). The anti SLAPP statute was enacted to prevent. In fact, it is evident
ENDED COMPLAINT PURS COMPLAINT ENDED for defamation, trade libel, and intentional interference
, 135 Cal. App. 4th 328, 344 (2005). TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES – 56 (2006). Pursuant to this purpose, the anti- -SLAPP statute “to prevent and deter - r others looking to do business with Qatar,” Qatar,” with do business to looking others r
6
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF rcisethe of constitutionalrights y.” FAC¶¶ 25, 40, 49. The
-Rumaihi and Defendant -SLAPP statute , 35 Cal. 4th 180, 192
, 39Cal. 4th 299, suits at a
unrelated to to at
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where information is freely exchanged. funerals. FAC ¶¶48 free speech. public forum, or anyconduct engaged in, in furtherance of the rights of petition or applying by their terms toany statements made ina place open to the public or in a “Bey connection with an issue of public interest. Cal. Civ. Proc. Code §425.16(e). and (2) statements made in furtherance of the constitutional right to free speech in (1) (e) lists, among others, the following acts as constituting protected activities: Braun v. Chronicle Publ’g Co., 52 Cal. App. 4th 1036, 1044 (1997). Subdivision oneof the categories spelledout insubdivision (e)of the anti statute. -SLAPP SLAPPmotion where the allegations underpinning the plaintiff’s claims fits within under the anti the under allegations satisfy both of these prongs and therefore constitute protected activity m prevailing on their claims. Thus, the Court should grant the Investors’ anti-SLAPP of action are protected activities, and BIG3 cannot demonstrate a probability of irrelevant allegations in the FAC, what comprises the basis for BIG3’s actual causes 476; 476; physical setting, but also includes other forms of public communication.” Id 85 Cal. App. 4th 468, 475 (2000). However,“a public forum isnot limited to a otion. statements made in a public forum inconnection with an issue of public interest; MEMORANDUM OF POINTS OF MEMORANDUM see ond [the public interest] requirement … these categories are quite broad, PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ “A‘public forum’ is traditionally defined as a place that is open to the public A. A lawsuit arises from protected activities and is therefore subject to an anti-
Barrett v. Rosenthal v. Barrett
” Wilbanks v. Wolk 1. Anti The Under Activities BIG3’s Claims Arise From Allegations That Are Protected -SLAPP statute. Claims Were Made In Forum. A Public The Alleged Statements Forming The Basis Of BIG3’s - 70. Once one strips through the utterly false, salacious ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES , 40 Cal. 4th 33, 41 (2006) (“Websites accessible to
, 121 Cal. App. 4th 883, 893 (2004). BIG3’s ” -
Slapp Statute.-Slapp 7 Damon v. Ocean Hills Journalism Club Journalism Hills Ocean v. Damon
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF
and and . at . at
,
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expressly alleges that these statements weremade as part of “public relations question that the alleged statements were made ina public forum. In fact, the FAC its very nature,“released” to the public allegation in a widely distributed press release”). Because the press release was, by distributed.” FAC ¶ 88(“former Commissioner and President repeated the FAC ¶¶ 105, 109, 114, 122. According to the FAC, the press release was “widely economic relations claims, weremade ina press release and to other individual defamation, defamation per se,andintentional interferencewith prospective inflammatory remarks to Kwatinetz, and which form the basis of BIG3’s issue of public interest” is a protected activity). the exercise of the … constitutional right of free speech in connection with … an issue.”); 425.16 … governs even private communications, so long as they concern a public issueof public interest. encompasses statements made in private conve forum). ‘public forum,’” newspapers and magazines fall within the definition of public fundamental purpose of the anti Uusi posted on a Yahoo! message board were made ina public forum); v. Inc. Nygard, Car v. Corp. the public … are ‘public forums’ for purposes of the anti-SLAPP statute.”); Ampex see also statute) the under protection from conversations private exclude to intend not did employer fell within the scope Legislature the of because the anti statute -SLAPP that an employee’s allegedly defamatory statements made in private to her MEMORANDUM OF POINTS OF MEMORANDUM -Kerttula PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Here,BIG3’s FACalleges that the st Even if statements are not made ina public forum, the anti -SLAPP statute Cal. Civ. Proc. Code § Averill v. Superior Court Superior v. Averill
gle , 159 Cal. App. 4th 1027, 1038 (2008) (holding that pursuant to the the to pursuant that (holding (2008) 1038 1027, 4th App. Cal. 159 , , 128 Cal. App. 4th 1569, 1576 (2005) (concluding that messages ENDED COMPLAINT PURS COMPLAINT ENDED See Wilbanks, 121 Cal. App. 4th at 897 (“Section
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES 425.16 (e)(4) (“any other conduct in furtherance of -SLAPP statute requiring a “broad reading of , 42 Cal. App. 4th 1170, 1176 - and
8
-
atements attributing racially racially attributing atements
“widely distributed,” there is no L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF rsations solongthey as concern an
(1996) (concluding (concluding (1996) s. s.
;
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actionable under trade libel law (it is not, infra see not accepting their money.” FAC ¶ 116. Setting aside whether such a statement is “told players and third-parties that the league was not being managed properly mad SLAPP statute, by necessary implication the alleged statementsmust have been 6 a public forum. FAC ¶¶ 107, 111. these that statements indicating wereefforts” made available to the broad public in (2010) Bank One (quoting Capital v. Jewett topic of widespread, public interest.’” R.R. v. D.C. affect large numbers of people beyond the direct participants; or (3) activity underlying the claim (1) was a person or entity in the public eye; (2) could 159 Cal. App. 4th at 1042 (emphasis inoriginal). statute words, the issue need not be ‘significant’ tobe protected by the anti-SLAPP [the anti [the Cal. 4th 1106, 1117 (1999). “‘[A]n issue of public interest’ within the meaning of public interest’ limitation.” Briggs v. Eden Council for Hope& Opportunity ‘other conduct’ implicating speech or petition rights, include an express ‘issue of protectionunder the statute). because madein private toheremployer fellwithin the scope anti of the - at 1176 (1996) (concluding that an employee’s allegedly defamatory statements communications, so long as they concern a public issue.”); Averill Wilbanks, 121 Cal. App. 4th at 897 (“Section 425.16 … governs even private is broad enough to cover such statements made inmore private settings. See relations effort[],” and therefore not made ina public forum, the anti statute -SLAPP
Even if the “widelydistributed” press release was not part MEMORANDUM OF POINTS OF MEMORANDUM e ina sufficiently public forum tohave allegedly disparaged BIG3. PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Similarly, BIG3’s trade libel claim rests on the allegation that the Investors Generally,“‘[a] public issue is implicated if the subject of the statement or The anti The —it is enough that it is one in which the public takes an interest.” Nygard SLAPP sta -SLAPP the Legislature did not intend to exclude private conversations from 2. -SLAPP statute’s application to “statements made in public fora and Claims Concern An Issue Of Public Interest. The Alleged Statements Forming The Basis Of BIG3’s tute] is any issuewhich in thepublic isinterested. In other ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES
6
-
9
-
, 113 Cal. App. 4th 805, 814 (2003)). L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF
, 182Cal., App. 4th 1190, 1215 B(2)), for purposes of the anti- of an alleged “public SLAPP statute , 42 Cal. App. 4th
involved a a involved , 19 19 ,
and ,
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attention, the public is interested in the content of the statements. Kwatinetz are all in the public eye and, as demonstrated by the media and issueof public interestbecause BIG3 the basketball league,Ice Cube public interest.”). decisions concerning the distribution of his assets a public issue or with Brando and widespread public interest in his personal life made Brando’s public interest under the anti -SLAPP statute because “[t]he public’s fascination (concluding that an interview with Brando’s housekeeper, SLAPP statute); Hall v. Time Warner, Inc interest” and thus, the statements were within the public interest under the anti- recorded with variousmusic groups and starred in a number of movies). 7 professional accomplishments and private cosmetic surgery, were ‘celebrity gossip’. . . Mayweather . . . is someone whose relationship with Jackson, as well as Jackson’s pregnancy, its termination and her scrutiny. As such, and Mayweather are both high profile individuals … subject to extensive media Mayweather, 10 Cal. App. 5th 1240, 1254 (2017) (“as Jackson concedes, [ ] she the public is interested in the content of the statements. See Jackson v. Statements regarding individuals in the public eye concern the public interest where Kwatinetz Kwatinetz Kwatinetz are in the public eye, even if to varying degrees. Because Ice Cube and presence in the public eye first.
See MEMORANDUM OF POINTS OF MEMORANDUM
PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Ex. F (IMDb explaining that Ice Cube has produced, written, toured, and Here, the alleged statements forming the basis of BIG3’s claims concern an There can be little dispute that the BIG3 basketball league, Ice Cube and Ice Cube a wellis co - founded
Mayweather’s postings and comments concerning his (a)
the BIG3 basketball league, it makes sense toconsider their ENDED COMPLAINT PURS COMPLAINT ENDED - known rapper, actor and businessman.
Eye. Eye. BIG3, Cube Ice And TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES
-
10 ., 153 Cal. App. 4th 1337, 1347 (2007)
life have generated widespread public -
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF
Kwatinetz Are All In The Public Public The In All Are Kwatinetz
Hall, involved an issue of 7 Ice Cube has
an issue of and and press
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The Washington Post Washington The credits include the ‘notoriously wretched,’ short apartment and noted that some“Mister of Kwatinetz[’s]more … recent producer IceCube isinthe publiceye. views. There is a list of “Famous Friends of Jeff Kwatinetz” with over two thousand provide updates on his public appearances. 18 17 16 15 14 13 12 11 10 9 8 more than SportNation, worldwide revenue. worldwide of Ice Cube’s beginnings in the rap industry; itgrossed more than $200 million in The movie Straight Outta Compton was a “runaway sensation” that tells the story the BIG3 league). several popular television talk shows, including James Corden, “reached $200 million at the worldwide box office”). Cube (CubeVision). managed various media, talent and production companies, including one with Ice public eye. Kwatinetz is an entertainment industry exe with
Ex. H (Deadline article); Ex. I (Variety reporting that “Straight Outta Compton” Twitter). and Facebook Cube (Ice G Ex.
Ex. Q (IMDb biography of Kwatinetz). (billboard.com). P Ex. O (ESPN.com); Ex. Ex. N (Washington Post noting that Ice Cube hopes that Kobe Bryant will join Ex. L (ESPN.com). Ex. Ex. S (Ranker listing famous famous listing (Ranker S Ex. Ex. R (Variety). K (billboard.com). Ex. Ex. J (icecube.com). MEMORANDUM OF POINTS OF MEMORANDUM
The Hollywood Reporter to defend Steve Bannon explaining that Bannon is “a PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’
M (ET Canadaarticle). Albeit to a lesser degree and for different reasons, Kwatinetz is also in the 18 Kwatinetz also puts also Kwatinetz 12 million 12
and The Ellen DeGeneres Show.
9 16 Ice Cube even has his followers on 14 Variety wrote an article on his $10 million New York City
and other popularmedia outlets. ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES
himself into the public eye: (1) he went on the record
friendsKwatinetz). of Facebook and 4.68 million followers on Twitter. -
11
- 10
own website with a news section to to section news a with website own L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF Most recently he has appeared on 13 -lived TV series ‘Notorious.’” He also has recently spoken with
cutive that has founded and 15 There is no question that 11
ESPN’s ESPN’s 17
8
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and that Kwatinetz used the term‘Rich Nig*as.’” FAC ¶ 105, 109. The num inflammatory remarks to Kwatinetz Indeed, the league regularly issues press releases with updates how the nationally broadcasted BIG3 basketball league is in the public eye too. player salaries following each step of the BIG3 league BIG3 basketball league is in the public eye. 26 25 24 23 22 21 20 19 place”; better a be to world the wants who person great account with over 100,000 followers. 100,000 over with account clients like Marty Scorsese, Leonardo DiCaprio….”). founder and former CEO of The Firm, a talent management that once claimed celebrity king makers and film producers … [he] is the sometimes controversial co- circles as actress Brittany Murphy’s and ex-lover BB (Variety reporting that “Kwatinetz is known in some gossip glossy reading Firm and used drugs); Ex. Z (Vanity Fair); Ex. AA (New York Daily News); Ex. behavior); Ex. Y(Washington proposed merger involving The Firm as a result of Kwatinetz’s reportedly erratic Kwatinetz, filed for bankruptcy); Ex. X (Variety detailing the collapse of a reporting that Prospect Park Networks, the production companyheaded by Kwatientz’s talent management company,the Firm); Ex. W (Los Angeles Times erratic behavior,and drug use. has documented Kwatinetz’s business dealings and his alleged mismanagement, big interview with brandchannel about BIG3 noting that “[a] benefit of having a lot of
Ex. CC (big CC Ex. Ex. V (New York Times noting the number of senior executives departing departing executives senior of number the noting Times York (New V Ex. Ex. HH (USA Today); Ex. II (CBSSports.com). II Ex. Today); HHEx. (USA Ex. FF (Washington Post); Ex. GG (New York Times). EEEx. (Forbes). Twitter). (@thebig3) (BIG3 DD Ex. Kwatinetz). with interview (brandchannel U Ex. Ex. T (The Hollywood Reporter). - MEMORANDUM OF POINTS OF MEMORANDUM name grea PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ BIG3’s claims are based on alleged statements attributing racially Lastly, with both founding members in the public eye, itis not hard to see 3.com). t playersinvolved you is getattention.” 24
and commissioner changes, (b)
ENDED COMPLAINT PURS COMPLAINT ENDED
Statements. In Content Interested The Is Public The The Of TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES Post stating that Kwatinetz allegedlymismanaged the 21 Put simply, Kwatinetz is in the public eye. —
23
, thati.e. he allegedly was -
There is —from itsdevelopment and debut games, to
12
-
25 L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF
to the2018 playerdraft.
media and press coverage
fiancé. In other circles, among
20 19 Over the years, media the
and (2) he recently had an
22
“‘racist,’ ‘hostile,’ and has a Twitter 26 The The
erous
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CEO o CEO Thus, statements attributing racially inflammatory remarks to Kwatinetz, the co- public interest in them: articles published about the content of these statements necessarily demonstrate the leagues, including the NFL, the including leagues, Sterling, owner of the LA Clippers, made racist remarks). will sell the NFL Team”). language at work, Carolina Panthers owner Jerry Richardson announced [ ] that he growing investiga MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ 29 28 27 3. 2. 1. Even more broadly, the racial attitudes of leaders of professional sports The same is true for BIG3’s trade libel allegations that the Investors “told f BIG3 basketball league, are matters of public interest.
Ex. QQ (Star QQ Ex. Ex. PP (Sports Illustrated). Ex. NN (New York Post); Ex. OO (USAToday reporting that “[f]acing a referred to black athletes as ‘rich (exple that Kwatinetz, an entertainment industry executive, ‘has repeatedly “Mason added that ‘a former employee of BIG3’ recently told him referred to black athletes as ‘rich n**gers.’” Ex. KK; employee of BIG3 recently told me that Kwatinetz has repeatedly valuable League personnel. Among other matters, a former BIG3 has been hostile and racist resulting in the departure of the league out of millions of dollars … with a lawsuit against two Qatari in “Mason got the ax from BIG3 on Monday for refusing to cooperate calling black players ‘rich n work culture, which he said included co exposedBIG3claiming the him and others toa ‘hostile and racist’ became public, the former NBA player released a statement “Hours after Mason’s dismissal over alleged corrupt behavior tion that accuses him of sexual misconduct and using racist Telegram); Ex. RR (The Guardian statin Guardian (The RR Ex. -Telegram);
ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES
27
MLB,
28 ers.’” Ex. JJ; JJ; —ers.’” Ex. -
and NBA, and 13
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF vestors who allegedly screwed tive).’” Ex. LL. LL. Ex. tive).’”
‘ 29 The work environment at
founder Jeff Kwatinetz Kwatinetz Jeff -founder arematters ofpublic interest.
g thatDonald
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underpinning its FAC constitute protected activity under subdivision (e) of the anti- demonstrates its 31 30 of media and press coverage: 116. The BIG3 basketball league’s in players and third- NHL, NBA, and MLB. and NBA, NHL, of professional sports leagues generally, including mismanagement NFL, in the AAA (CBS); Ex. BBB (The Wall S Wall BBB (The Ex. AAA (CBS); Sports Network); Ex. YY (Washington Post); Ex. ZZ (clevelandcavaliers.com); Ex. Ex. GGG (CBSSports.com). (CBSSports.com). GGG Ex. publish storiesabout them. Illustrated, and CBS Sports follow professional sports leagues and constantly
See See MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ , Ex. VV (blackandteal.com); Ex. WW (Bleacher Report); Ex. XX (FANRAG (FANRAG XX Ex. Report); (Bleacher WW Ex. (blackandteal.com); VV Ex. 4. 3. 2. 1. Furthermore, the public has demonstrated an interest in the mismanagement , Ex. DDD (ESPN); Ex. EEE (Fox Sports); Ex. FFF (Sports Illustrated); Illustrated); (Sports FFF Ex. Sports); (Fox EEE Ex. (ESPN); DDD Ex. , e.g. injuries to some of itsmarquee players….” Ex. SS; ratings plummet after a solid opening weekend in Brooklyn, and playing intheCBL and threatened CBL games, Mr. Cube confronted the players personally about the in participate to desire their expressed players certain “‘When TT; Ex. season,” to extend the 3 “[T]heleague and Fox Sports announced Wednesdayanagreement “The problem for building interest.” Ex. MM; of games played a night, the way the league is televised presents a “Unless the league changes the length of the games or the number to maintain a strong audience.” Ex. UU. fined’ … Following a successful debut … the league has struggled 3 -on interest in the topic. Based on the foregoing, BIG3’s allegations parties that the league was not being managed properly.” FAC ¶ - 3 basketball league has struggled in its infancy, seeing 30 ENDED COMPLAINT PURS COMPLAINT ENDED -o Media outlets such as ESPN, Fox Sports, Sports
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES
n 31 - The public’s copious consumption of this information 3 basketball league and its coverage into another
treet Journal); Ex. CCC (Rolling Stone). Stone). (Rolling CCC Ex. Journal); treet ternal management has also been the subject -
14
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF the players that they wou
ld be
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§ SLAPP statute. in supporttheclaims. of there is a probability that [they] will prevail” by producing “admissible evidence” SLAPP statute, BIG3’s FACmust be stricken (1) were published by the Investors, (2) FAC ¶ 105, 109. BIG3, however, cannot demonstrate that thos was allegedly asserting those claims ( statements disregard of whether itwas false or not.” Nygard constitutional sense that is, with knowledge that it was false or with reckless also show the speaker citations omitted). “Further, when the plaintiff is a public figure, he or she must thatcauses special damage.” (c) their claims. fact, or (4) were made with malice. Thus, BIG3 has no probability of prevailing on is not an identified “plaintiff” anywhere in the FAC), (3) are false statements of
425.16(b)(1). BIG3 cannot meet this burden. defamatory, and (d) unprivileged, and that (e) has a natural tendency toinjure or MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ B. Because BIG3’s claims for defamation and defamation The tort of defamation “involves (a) a publication that is (b) false, A defamation against a defendant requires a showing that the defamato ry
attributing racially inflammatory remarks to Kwatinetz
1. Merits Of Its Claims. BIG3 Cannot Demonstrate A Probability Of Prevailing On The
“‘racist,’‘hostile,’ and that Kwatinetz used the term‘Rich Nig*as.’”
BIG3’s allegations constitute protected activity under the anti (a) Se Claims. BIG3 Cannot Prevail On Its Defamation Or Defamation Per
made the objectionable statements with malice in its , Ice Cube,e.g. ENDED COMPLAINT PURS COMPLAINT ENDED Okor
Published By The Investors. BIG3 Cannot Demonstrate That TheStatements Were TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES Taus v. Loftus, 40 Cal. 4th 683, 720 (2007) (internal
ie , 14 Cal. App. 5th at 590; Cal. Civ. Proc. Code
Kwatinetz and “Players” -
weremade about each 15
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF unless BIG3 can “establish[] that
, 159 Cal. App. 4th at 1048. per se are founded onalleged
ofthe plaintiffs the latter of which which of latter —the e allegede statements — , that, i.e. he
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to whomto theymade.”); were “failed to specifically identify who made the statements, when they weremade and (N.D. Cal. Apr. 25, 2007) (dismissing a defamation claim because the plaintiff IntegratedSci. Sols., Inc v. Merck &v. Merck Co. in was individual, the plaintiff that someone told him about a defamatory statement made by another 2d 1236, 1259 (E.D. Cal. 2010) (concluding plaintiff’s evidence that third party told non defamatory public relations efforts” but, according to the FAC “Defendants” published the alleged statements “througha press releaseand by that defendant. FAC ¶ 107, 111, 117. The FAC also alleges vaguely that specific statements or how those statements were communicated toany third party allegedly defamatorystatement was ‘published’ or disseminated to third parties”). allegations as true” and “[t]he complaint [ ] does not make clear how … the plaintiff’s defamation claim because the “court need not construe conclusory KJM 32 12- have held that a Martinelli v. Int'l House USA the defamatorymeaning and application tothe plaintiffs— statements were “published” accountthealleged of defamatory statement is inadmissible hearsay”) specific insta statements were repeated and reviewed by other employees, she provides no publication because although “Plaintiff asserts with conviction that Marshall’s 685356, at *5 (C.D. Cal. Feb. 18, 2015) (concluding plaintiff failed to plead statements aboutKwatinetz identify who made the statements and when. statements’” lacked the specificity required by Twombly/Iqbal
See also Williams v. Salvation Army 3798 EMC, 2013 WL 2156278, 2013 EMC, at3798 *30 (N.D. Cal. May 17, 2013); - MEMORANDUM OF POINTS OF MEMORANDUM party and former BIG3 commissioner) issued the press release. FAC ¶ 90. GGH, 2017 WL 2546816, at *3 at WL 2546816, 2017 -GGH, PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Here, the FAC makes vague allegations that “Defendants” made alleged nce where this actually Kleist Von v. occurred”); Flores , 111 F. App’x 535, 536 (9th Cir. 2004) (holding a“second -
“generalallegation” that“‘all of the co - admissible hearsay that could not prove a defamation claim); Ryll ENDED COMPLAINT PURS COMPLAINT ENDED ., No. C ., No.
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES
but fails to identify which defendant made which
, communicated—i.e. to a third party who understood Havens v. Autozoners, LLC Autozoners, v. Havens , 161 Cal. App. 4th 1332, 1337 (2008). Thus, courts - 06- 5349 JSW(JCS), 2007 WL 1229329, at *9 - , No. 2:14 No. , 4 (E.D. Cal. June 13, 2017) (dismissing -
16
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF Gressett v. Contra Costa Cty -CV -06138 conspirators .made . . false , No. 2:16 No. , by the defendant the by -ODW
, Roger Mason (a because it did not , 2015WL - CV , 739 F. Supp. PAI Corp. v. v. Corp. PAI . -02503
., No. C ., No. . hand
-
32
-
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no basis on which to assert defamation claims under the FAC either. allegation that concerns him,much less directly implicates him. Thus, Ice Cube has And although Ice Cube is a named plaintiff in the FAC, there is not single a asserting defamation claims under the FAC against anyone arising from any facts. identified plaintiff anywhere in the FAC. This fact alone precludes “Players” from of Ice Cube, Jeff Kwatinetz and “Players.” The undefined 1980)). United Conservation Clubs v. CBS News, 485 F. Supp. 893, 900 (W.D. Mich. issues, or groups, which are in the pub “‘vexatious lawsuits [that could] seriously interfere with public discussion of Cal. 3d 1033, 1042 (1986). The purpose of this requirement is to prevent Investors themselves ¶ 107, 111. But given that there is no allegation, much less evidence, that the “‘racist,’ ‘hostile,’ and that Plaintiff Kwatinetz used the term‘Rich Nig*as.’” FAC rac attributing s BIG3 simply has noevidence that the Investors communicated the alleged statement was “of an “concerned” Kwatinetz. demonstrate that allegedly defamatory statements made by the Investors tatements about Kwatinetz to any third- MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Here, the FAC brings claims for defamation and defamation per se on behalf The only allegations “concerning” any named plaintiff are alleged statements “[T]o state a defamatio To prevail on a defamation claim, a plaintiff must demonstrate that the
ially inflammatory remarks to Kwatinetz (c) (b) d concerning” made these statements (
ENDED COMPLAINT PURS COMPLAINT ENDED
False Statements Of Fact. BIG3 Cannot Demonstrate That The Statements Are Defamation Claims. Each About Made BIG3 Cannot Demonstrate That TheStatements Were TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES n claim that survives a First Amendment challenge, the plaintiff the lic eye.’” Id -
17 party. party.
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF see Of The Plaintiffs Asserting The
. Blatty v. New York Times Co.
supra . at 1044 (quoting Michigan
— B(1)(a)), failed has BIG3 to , that he allegedly was allegedly he that , i.e. “Players” are an not
, 42 42 ,
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context similar to this one.” court hasever found theusethe of term‘racist’ actionableto be defamationa in a pa word … It is, however, also a word that lacks precise meaning, so its application to term‘racist’ is of course an exceptionally negative, insulting, and highly charged provably false, and therefore are not actionable. Accordingly, BI Accordingly, actionable. not are therefore and false, provably statements that plaintiffs are “racist” and “hostile” are not statements of fact that are [and] ‘hostile.’” FAC ¶ 105, 109. As held Farms in Overhill allegedly defamatorystatements comprised statements that “‘racist,’ Kwatin was etz statement is not of the sort that can be verified as false.”). calling is not actionable, no Plaintiff and the others confronting Defendant are racists … that sort of name 1164929, at *7 (E.D. Cal. Mar. 20, 2013) (“the implication is to the effect that 1261 defamatory statement isactionable.” Ferlauto apply the totality of the circumstances test to determine whether an allegedly omitted).“In drawing the distinction between opinion and fact, California courts ZL Techs., Inc. v. Does 1 statementsfact of and statements opinion of for purposes of defamation liability.” Lorain Journal Co. Hamsher v. Ferlauto cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.’” false factual assertion and thus cannot form the basis of a defamation action if they Lorain Journal Co. v. Infinity Broad. Corp ., 97Cal. App. 4th 798, 809 (2002) (citing v. Milkovich plaintiff must present evidence of a statement of fact that is provably false.” MEMORANDUM OF POINTS OF MEMORANDUM rticular situation or individual is problematic; indeed, defendants contend no 62 -62 PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ Generally, statements that an individual is “racist” are not actionable: “The That is precisely what the FAC asserts here. The FAC asserts that the (2010); see also see , 497 U.S. 1, 20 (1990)).“[C]ourts distinguish between (1 20 U.S. 1, , 497 , 74Cal. App. 4th 139 ENDED COMPLAINT PURS COMPLAINT ENDED
- Forte v. Jones
7 TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES , 13 Cal. App. 5th 603, 624 (201 matter how subjectively hurtful it may be, because the Overhill Farms, Inc. 1248, v. 4th Lopez App. 190 Cal. , 990)).“Statements do not imply a provably -
, No. 1:11 No. , 18
- 4, 1401 (1999) (quoting Milkovich (quoting (1999) v. 1401 4,
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF , 74 Cal. App. 4th at 14 -CV - 0718 AWI BAM, 2013WL
7) (internal quotations
and G3 cannot cannot G3 Forte 01. , general
Seelig -
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alleged “Rich Nig*as” remark. Manzari v. Associated Newspapers Ltd. “public Diego San of figure.” Univ. v. McGarry on thoseallegations. non 700 (2012) (concluding that statements regarding the mismanagement of bank were Kwatinetz’s defamation Rogers v. claim. Bank Summit See not being run “right” is a non-actionable opinion and cannot be the basis for discussed above, Sabi’s purported statements to JeromeWilliams about the BI investors in BIG3, but regardless such a statement is not defamatory. Moreover, as Neither of those statements are actionable. The Investors are, in fact, the lead told Mason that “the BIG3 weren’t running the business right.” Investors (Sabi) told Roger Mason that it was a lead investor in BIG3 and had also 33 declaration from JeromeWilliams fails to cont ain the D. However, Ex. FAC 95, ¶ made him to Defendants.” by statements declaration from JeromeWilliams generically“confirming the defamatory by BIG3 that the Investors attributing to Kwatinetz use of the term“Rich Nig*as.” The only evidence offered demonstrate a probability of success based on those allegations. rather, he attributes those hearsay remarks only to Mason and Henry. FAC, Ex. E. “Rich Nig*as” remark, but that declaration; Investors makes of the mention no individual is a public figure”). If so, the public figure must prove that the allegedly threshold question that frames our defamation analysis is … [w]hether an
Notably, JeromeWilliams submitted a second declaration that does concern the -actionable MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ A thresholdA questio The FAC further asserts that the allegedly defamatory statements included
opinions). BIG3 cannot demonstrate a probability of success based (d)
ENDED COMPLAINT PURS COMPLAINT ENDED
Malice. Defamatory Statements Were Made With Actual Figure And Therefore Must Show The Allegedly Kwatinetz TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES n in a defamationn in action whetheris the plaintiff is a purportedly attributed such statements to Kwatinetz is a 33 The declaration only states that one of the
— - The Only Relevant Plaintiff
, 830 F.3d 19
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF , 154 Cal. App. 4th 97, 113 (2007); any 881, 888 (9th Cir. 2016) (“The
informationregarding the , 206 Cal. App. 4th 669,
FAC, Ex. D. Ex. FAC,
—Is A Public G3 G3
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Kwatinetz is a public figure for purposes of defamation law. See bus in his interest an takes public the and Broad., Inc. because of who he is or what he has done.” Cepeda v. Cowles Magazines& artists, athletes, business people, dilettantes, anyone who is famouinfamouss or Gertz v. Robert Welch, Inc controversy and thereby becomes a public figure for a limited range of issues.” individual who “voluntarily injects himself or is draw for all purposes and in all contexts”; and (2) a “limited purpose public figure” is an has “achieve[ed] such pervasive fame or notoriety that he becomes a public figure for defamation purposes: (1) an “all- (1974)). 328 323, U.S. 418 Gary Saderup,Inc “defamatory statements were made with actual malice.” Comedy turns on the defendant’s subjective belief as to the truthfulness of the allegedly Thompson v. Amant entertained serious doubts as to the truth of his publication.’” Id must be sufficient evidence to permit the conclusion that the defendant in fact (quoting false or not.’” Annette F. v. Sharon S. made ‘with knowledge that it was false or with reckles supra corresponding articles published on the alleged statements and this dispute. See campaign related to the BIG3 basketball league, Qatar an At the very least, Kwatinetz is a limited public figure because of his media MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’
Section B(2)(b). Section For all the reasons discussed above as to how Kwatinetz is in the public eye The United States Supreme Court has articulated two types of public figures Actual malice “requires a showing that the allegedly false statement was New York Times Co. v. Sullivan,U.S. 376 254, 279- , 392 F.2d 417, 419 (9th Cir. 1968). ., 25 Cal. 4th 387, 398 (2001) (citing Gertzv. Robert Welch, Inc. , 390 U.S. 727, 731 (1968)). “The existence of actual malice
ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES ., 418 U.S. 323, 351 (1974). Public figures “include
purpose” pu , 119 Cal. App. 4th 1146, 1167 (2004) (2004) 1167 1146, 4th App. Cal. 119 , -
20 iness ventures and related activities,
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF
blic figure is an individual who n intoan particular public s disregard of whether it was d the Investors and the 80 (1964)). “‘There “‘There (1964)). 80 St. St. (quoting .
Section B(2)(a). III Prods., Inc. v. v. Inc. Prods., III
false false
,
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that such statemen ts were false. See identified. has been undertaken with actual malice if the nature of the act cannot even be was otherwise fails to allege any detail about what say FAC allegations to do maximum damage and create a leadership vacuum in the league.” The most the FAC alleges is that one of the Investors “intended for the false knowledge of their falsity or while entertaining serious doubts as to their much less that the Investors may have done sowith actual malice any published Investors entertaining serious doubts as to their truth.” Id published the challenged statements with knowledge of their falsity or while shofacie F. Gallagher malice.’” v. Reed pr when a reasonably prudent person would have done so, is insufficient.” Id statement.” Id libel involves false disparagement of the quality of goods or services.”). Whereas Inc Serv., Time Old Quality v. Mann owner.” the property, which the publisher should recognize is likely to cause pecuniary loss to obability that [he] will be able to produce clear and convincing evidence of actual , 119Cal. App. 4th at 1167). In other words, the plaintiff “must make a prima s nothing about knowledge of MEMORANDUM OF POINTS OF MEMORANDUM
purportedly said ( ¶ 96. Butthe 96. logical¶ disconnect inthis PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ As discussed above, the FAC fails to establish (or even a anti an to opposition In “Trade libel is the publication of matter disparagi wing of facts demonstrating a high probability that [the defendant]
2. ComputerXpress, Inc. v. Jackson , 93 Cal. App. 4th 993, 1010 (2001); . “[M]ere failure to investigate the truthfulness of a statement, even BIG3 Cannot Prevail On Its Trade Libel Claim. , byi.e. whom, about whom, when and to whom), let alone
ENDED COMPLAINT PURS COMPLAINT ENDED allegedly defamatory statements about
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES Annette Annette (quoting (2016) 862 841, 4th App. Cal. 248 , -SLAPP motion, the plaintiff must “‘establish a falsity falsity
., 139 Cal. App. 4th 328, 34 supra supra -
21 of the alleged statements. The FAC
- B(1)(c). It is impossible to say an act
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF vague assertion is transparent, as it the Investors the .
ng the qualityof another’s
actually did— llege) that the the that llege) any 0 (2006) (“trade —that is,“with
of the plaintiffs,
truth.” , whati.e. . at 1169.
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provably false fa depositors would be well advised to move their accounts … do not imply a (“statements that the Bank was mismanaged and rendered poor service and that … cause of action for trade libel.” Id ComputerXpress, Inc. 139 Cal. App. 4th at 340). “To constitute trade libel, a statement must be false.” demonstrate a probability of prevailing on the merits of its trade libel claim. statement might have caused a pec who it was said to, nor does BIG3 provide any explanation as to how such a provides no context to this statement, fails to identify whomade the statement or respect to the allegation that the leaguewas “not accepting theirmoney,” BIG3 imply a provably false assertion. Bank Summit See Moreover, whether BIG3 not actiona do not concern the “quality of goods or services” of BIG3, and therefore simply are management of the league and whether the league accepted the Investors’money accepting their money.” FAC ¶ 116. As an initial matter, statements regarding playersand third- constitute nonactionable opinions.”). Int’l, Inc. v. Peerless Ins. Co. “‘involves false disparagement of the quality of goods or services.’” defamation “‘concerns injury tothe reputation of a person or business,’” trade libel and some third party,with the probability of future economic benefit to the relations, a plaintiff must show: “(1) an economic relationship between the plaintiff MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ BIG3’s trade libel claim isbased on the allegation that the Investors “told To prove a claim for intentional interference with prospective economic ble undertrade libellaw 3. ctual assertion … Instead, as a matter of law, such statements parties that the league was not being managed properly and not Prospective Economic Relations Claim. BIG3 Cannot Prevail On Its Intentional Interference with , 93Cal. App. 4th at 1010.“[O]pinions will not suppo a rt ENDED COMPLAINT PURS COMPLAINT ENDED
was being “managed properly” isan opinion that does not TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES , 181 Cal. App. 4th 161, 169 (2010) (quoting Mann (quoting (2010) 169 161, 4th App. Cal. 181 , .; .; uniary loss to BIG3. Put simply, BIG3 cannot . See see Summit Bank Summit see
-
22
Total Call , 181 Cal. App. 4th at 169.
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF , 206 Cal. App. 4th at 700. With , 206 Cal. App. 4th at 700 Total Call
,
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IV. economic relations must plead and prove as part of its case seeking to recover for an alleged interference with prospective contractual or Co the acts of the defendant.” Arntz Contracting Co. v. St. of the relationship; and (5) economic harmto the plaintiff proximately caused by the part of the defendant designed to disrupt the relationship; (4) actual disruption plaintiff; (2) the defendant’s knowledge of the relatio interference itself.’” engaged in conduct that was wrongful by some legal measure other than the fact of defendant not only knowingly interfered with the plaintiff’s expectancy, but doesidentify not existing and prospective contracts entered by Plaintiffs.” FAC ¶ 122. The FAC and concerning Plaintiffs with the intent of interfering and causi “Defendants made or aided and abetted in the making of defamatory statements of 11 Cal. 4th 376, 381 prevailing on the merits of this claim. interference claim. other words, the FAC fails to allege between the Investors and any alleged defamatory statements is wholly lacking. In the I disruption of that relationship, or any economic harm toBIG3 that was caused by intentional acts by the Investors designed to disrupt that relationship, any actual FAC also fails to establish the Investors’ knowledge of that relationship, any party,much less one with the probability of future economic benefit to BIG3 The .
., 47 Cal. App. 4th 464, 475 (1996) (internal quotations omitted). “‘[A] plaintiff MEMORANDUM OF POINTS OF MEMORANDUM nvestors’ actions. Moreover, for the reasons discussed above, the connection PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ California’s anti California’s MOTION THIS BRINGING IN INCURRED ANDCOSTS FEES ATTORNEYS’ THE COURT SHOULD AWARD INVESTORS THE THEIR BIG3’s intentional interference claim rests on the anemic allegation that any
Necessarily, then, BIG3 cannot demonstrate a probability of –
Id 393 (1995)). specific economic relationship between BIG3 and some third -SLAPP statute provides that “a Della Penna v. Toyota Motor Sales, U.S.A., Inc U.S.A., Sales, Motor Toyota v. Penna Della (quoting . ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES
any -
23 of the elements of an intentional
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF nship; (3) intentional acts on on acts intentional (3) nship;
prevailing Defendant on a a on Defendant prevailing Paul Fire & Marine Ins. Ins. & Fire Marine Paul - in -chi ng disruption with with disruption ng efthat the
.,
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2018 May 4, Dated: V. incurred by the Investors in bringing this motion. the merits of its claims, BIG3 should be ordered to pay all attorneys’ fees and costs and BIG3 has failed to carry its burden of establishing a probability of prevailing on fees”). Because the allegations giving rise to the FAC involve protected activity defendant who brings a successful motion to strike is entitled to mandatory attorney see also Ketchumv. Moses, 24 Cal. 4th 1122, 1131 (2001) (“[A]ny SLAPP andLardner Foley v. Kearney of attorney’s fees and costs to a successful anti-SLAPP mo costs.” Cal. Code Civ. Proc. § 425.16(c). Indeed,“it is well-settled that an award special motion to strike shall be entitled to recover his or her attorney’s fees and granted and BIG3’s FAC should be stricken with prejudice.
MEMORANDUM OF POINTS OF MEMORANDUM PLAINTIFFS’ FIRST AM FIRST PLAINTIFFS’ For the foregoing reasons, the Investors’ anti-SLAPP motion should be CONCLUSION
ENDED COMPLAINT PURS COMPLAINT ENDED
TS’ MOTIONTS’ TO DEFENDAN OF STRIKE INSUPPORT AND AUTHORITIES 1182 (S.D. Cal. 2008); 2008); Cal. (S.D. -1182 1181 1178, 2d Supp. F. , 553 -
24 Defendants for Attorneys By: DAY JONES Respectfully submitted AHMED AL-RUMAIHI AHMED SABI
-
L PROCEDURE § 425.16 § PROCEDURE TO CIVIL CODEUANT OF Brian D. Hershman /s/ Brian D. Hershman
vant is mandatory.” ,
and
AYMAN AYMAN