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Case 2:15-cv-09631-MWF-KS Document 21 Filed 02/10/16 Page 1 of 34 Page ID #:214 1 GREENBERG TRAURIG, LLP JEFF E. SCOTT (SBN 126308) 2 [email protected] 3 VINCENT H. CHIEFFO (SBN 49069) [email protected] 4 JORDAN D. GROTZINGER (SBN 190166) [email protected] 5 REBEKAH S. GUYON (SBN 291037) [email protected] 6 1840 Century Park East, Suite 1900 7 Los Angeles, CA 90067-2121 Telephone: 310-586-7700; Facsimile: 310-586-7800 8 Attorneys for Defendants NBCUniversal Media, LLC, 9 erroneously sued as “NBCUniversal, Inc.;” F. Gary Gray; O’Shea Jackson Sr., p/k/a Ice Cube; Andre Young, p/k/a Dr. 10 Dre; The Estate of Eric Wright, p/k/a Eazy E; Tomica Woods- 11 Wright, individually and as the personal representative of The Estate of Eric Wright; Comptown Records, Inc.; Matt Alvarez; 12 Scott Bernstein; Legendary Pictures Funding, LLC, erroneously sued as “Legendary Pictures;” Xenon Pictures, Inc., sued as 13 “Xenon Pictures, Inc./Xenon Entertainment Group;” Jonathan 14 Herman; Andrea Berloff; S. Leigh Savidge; and Alan Wenkus 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION 17 18 GERALD E. HELLER, an individual, CASE NO. 2:15-cv-09631-MWF-KS 19 Plaintiff, NOTICE OF MOTION AND MOTION TO STRIKE CLAIMS 1 THROUGH 8 OF THE 20 vs. FIRST AMENDED COMPLAINT 21 NBCUNIVERSAL, INC.,Deadline.com et al., PURSUANT TO CAL. CIV. PROC. CODE § Defendants. 425.16; MEMORANDUM OF POINTS AND 22 AUTHORITIES 23 [Chieffo Declaration and Request for Judicial 24 Notice Filed Concurrently] 25 Date: March 28, 2016 Time: 10:00 a.m. 26 Courtroom: 1600 27 Action Removed: December 15, 2015 28 LA 132458351 Case 2:15-cv-09631-MWF-KS Document 21 Filed 02/10/16 Page 2 of 34 Page ID #:215 1 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that, on March 28, 2016 at 10:00 a.m. in Courtroom 3 1600 of the above-captioned Court, located at 312 North Spring Street, Los Angeles, 4 California, Defendants NBCUniversal Media, LLC, erroneously sued as “NBCUniversal, 5 Inc.;” F. Gary Gray; O’Shea Jackson Sr., p/k/a Ice Cube; Andre Young, p/k/a Dr. Dre; 6 Tomica Woods-Wright, individually and as the personal representative of The Estate of 7 Eric Wright; Comptown Records, Inc.; Matt Alvarez; Scott Bernstein; Legendary 8 Pictures Funding, LLC, erroneously sued as “Legendary Pictures;” Jonathan Herman; 9 Andrea Berloff; S. Leigh Savidge; and Alan Wenkus (collectively “Defendants”) will 10 and hereby do move pursuant to Cal. Civ. Proc. Code § 425.16 (b) to dismiss Claims 1 11 through 8 of the First Amended Complaint (“FAC”). Defendants’ Motion is made on the 12 grounds that Claims 1 through 8 fall within the scope of speech and conduct protected by 13 Cal. Civ. Proc. Code § 425.16, and Plaintiff cannot demonstrate a probability that he will 14 prevail on the merits of his claims. 15 Defendants also seek an award of attorneys’ fees against Plaintiff pursuant to Cal. 16 Civ. Proc. Code §425.16(c). Defendants will submit a supporting declaration and motion 17 for attorneys’ fees should the instant Motion be granted. 18 This Motion is based on this Notice, the attached Memorandum of Points and 19 Authorities, Request for Judicial Notice and the Declaration of Vincent H. Chieffo, and 20 the documents attached thereto, which are either referenced in the FAC and are not 21 subject to dispute as toDeadline.com authenticity, or are the proper subject of judicial notice by this 22 Court, and on any other matter the Court may properly consider. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 LA 132458351 Case 2:15-cv-09631-MWF-KS Document 21 Filed 02/10/16 Page 3 of 34 Page ID #:216 1 This Motion is made following the conference of counsel pursuant to L.R. 7-3 2 which took place on February 1, 2016. 3 DATED: February 10, 2016 GREENBERG TRAURIG, LLP 4 5 By: /s/ Jeff E. Scott Jeff E. Scott 6 Attorneys for Defendants NBCUniversal Media, 7 LLC, erroneously sued as “NBCUniversal, Inc.;” F. Gary Gray; O’Shea Jackson Sr., p/k/a Ice Cube; 8 Andre Young, p/k/a Dr. Dre; The Estate of Eric 9 Wright, p/k/a Eazy E; Tomica Woods-Wright, individually and as the personal representative of 10 The Estate of Eric Wright; Comptown Records, 11 Inc.; Matt Alvarez; Scott Bernstein; Legendary Pictures Funding, LLC, erroneously sued as 12 “Legendary Pictures;” Xenon Pictures, Inc., sued 13 as “Xenon Pictures, Inc./Xenon Entertainment Group;” Jonathan Herman; Andrea Berloff; S. 14 Leigh Savidge; Alan Wenkus 15 16 17 18 19 20 21 Deadline.com 22 23 24 25 26 27 28 2 LA 132458351 Case 2:15-cv-09631-MWF-KS Document 21 Filed 02/10/16 Page 4 of 34 Page ID #:217 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION ..................................................................................................... 1 4 II. STATEMENT OF FACTS ........................................................................................ 2 5 6 A. ALLEGATIONS OF THE FAC ..................................................................... 2 7 B. PLAINTIFF’S BOOK “RUTHLESS: A MEMOIR” ..................................... 5 8 C. THE 1997 LITIGATION BETWEEN PLAINTIFF AND 9 DEFENDANTS WOODS-WRIGHT AND COMPTOWN RECORDS ........ 8 10 III. ARGUMENT ........................................................................................................... 10 11 A. CALIFORNIA’S “ANTI-SLAPP STATUTE” ............................................. 10 12 B. THE ANTI-SLAPP STATUTE BARS CLAIMS 1-8. ................................. 13 13 C. PLAINTIFF CANNOT SHOW A REASONABLE PROBABILITY 14 OF PREVAILING ON ANY OF CLAIMS 1-8 AGAINST ANY 15 DEFENDANT. .............................................................................................. 15 16 1. Law Governing Plaintiff’s Defamation and Injurious Falsehood Based Claims 1-3, and 5-8 .................................................................. 15 17 18 a. Plaintiff is at Least a Limited Purpose Public Figure. .............. 16 19 b. Plaintiff Cannot Demonstrate the Requisite Probability 20 that the Alleged Defamatory Inferences in the Film Arise From False Statements of Fact. ................................................ 17 21 Deadline.com c. Plaintiff Cannot Demonstrate the Requisite Probability of 22 Proving All Defendants Made the Alleged Defamatory 23 Inferences with “Actual Malice” or That All Defendants Affirmatively Intended or Endorsed any Defamatory 24 False Inferences. ....................................................................... 23 25 2. Plaintiff Cannot Demonstrate the Requisite Probability of 26 Prevailing on His Misappropriation of Likeness Claim 4. ................. 24 27 IV. CONCLUSION ........................................................................................................ 25 28 i LA 132458351 Case 2:15-cv-09631-MWF-KS Document 21 Filed 02/10/16 Page 5 of 34 Page ID #:218 1 TABLE OF AUTHORITIES 2 Page(s) 3 4 Federal Cases 5 Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, Local 655, 6 39 F.3d 191, 196 (8th Cir. 1994) ............................................................................ 21, 22 7 Chapin v. Knight-Ridder, Inc., 8 993 F.2d 1087 (4th Cir. 1993) ...................................................................................... 22 9 Cher v. Forum Int’l Ltd., 692 F.2d 634 (9th Cir. 1982) ........................................................................................ 24 10 Daly v. Viacom, Inc., 11 238 F. Supp. 2d 1118 (N.D. Cal. 2002) ........................................................................ 24 12 Dodds v. Am. Broad. Co., 145 F.3d 1053 (9th Cir. 1998) ...................................................................................... 16 13 Galbraith v. Cnty. of Santa Clara, 14 307 F.3d 1119 (9th Cir.2002) ....................................................................................... 13 15 Gertz v. Robert Welch, Inc., 16 418 U.S. 323 (1974) ...................................................................................................... 23 17 Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009) ....................................................................................... 11, 18 Joseph Burstyn, Inc. v. Wilson, 19 343 U.S. 495 (1952) ........................................................................................................ 3 20 Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) .......................................................................... 13, 17, 18 21 Deadline.com Lee v. City of Los Angeles, 22 250 F.3d 668 (9th Cir.2001) ......................................................................................... 13 23 Leidholdt v. L.F.P. Inc., 24 860 F.2d 890 (9th Cir. 1988) ........................................................................................ 15 25 Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th Cir. 2013) .................................................................................. 16, 23 26 Masson v. New Yorker Magazine, Inc., 27 501 U.S. 496 (1991) .......................................................................................... 18, 19, 22 28 ii LA 132458351 Case 2:15-cv-09631-MWF-KS Document 21 Filed 02/10/16 Page 6 of 34 Page ID #:219 1 Metabolife Int’l, Inc. v. Wornik, 264 F.3d 832 (9th Cir 2001) ................................................................................... 11, 12 2 Milkovich v. Lorain Journal Co., 3 497 U.S. 1 (1990) .......................................................................................................... 22 4 Moldea v. New York Times Co., 22 F.3d 310 (D.C. Cir.), cert. denied, 513 U.S. 875 (1994) ........................................
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