John Doe v. Gangland Productions, Inc. , 730 F.3d 946 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE, an individual, No. 11-56325
Plaintiff-Appellee,
D.C. No.
v. 8:11-cv-00389-
AG-MLG
GANGLAND PRODUCTIONS, INC., an
Illinois Corporation; A&E
TELEVISION NETWORKS, LLC, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted
February 6, 2013—Pasadena, California
Filed September 16, 2013
Before: Harry Pregerson, William A. Fletcher,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Pregerson
2 DOE V. GANGLAND PRODUCTIONS, INC.
SUMMARY*
California Anti-SLAPP
The panel affirmed in part, and reversed in part, the
district court’s denial of defendants’ anti-SLAPP motion, a
special motion to strike the complaint under California Code
of Civil Procedure § 425.16, in an action brought by plaintiff
John Doe whose identity was not concealed in an episode of
defendants’ documentary television series, Gangland.
The panel held that California’s anti-SLAPP statute
applied to plaintiff’s lawsuit because it arose from
defendants’ conduct in furtherance of their right of free
speech in connection with issues of public interest. The panel
held that at this juncture plaintiff’s claims were not barred by
the release he signed, and his statements were not barred by
the parol evidence rule. The panel held that plaintiff met his
burden to show a probability of prevailing on his claims for
public disclosure of private fact; intentional infliction of
emotional distress; false promise; and declaratory relief. The
panel struck plaintiff’s claims for appropriation of likeness
and negligent infliction of emotional distress because plaintiff
failed to establish a probability of prevailing on those two
claims. The panel also held that plaintiff’s multiple claims
were not barred by California’s single publication rule.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOE V. GANGLAND PRODUCTIONS, INC. 3
COUNSEL
Kelli L. Sager (argued), Rochelle L. Wilcox, and Lisa J.
Kohn, Davis Wright Tremaine LLP, Los Angeles, California,
for Defendants-Appellants.
Eric M. Schiffer (argued), William L. Buus, and Leslie F.
Vandale, Schiffer & Buus, APC, Newport Beach, California,
for Plaintiff-Appellee.
OPINION
PREGERSON, Circuit Judge:
Defendants’ documentary television series, Gangland,
provides an inside glimpse into America’s most notorious
street gangs. Plaintiff, a former prison gang member and
police informant, has personal knowledge of certain high
profile gangs. Plaintiff asserts that he agreed to be
interviewed for an episode of Gangland on condition that his
identity would be concealed in the broadcast. Defendants
contend that Plaintiff knowingly signed a release that gave
them the right to broadcast Plaintiff’s identity.
When the Gangland episode aired, Plaintiff’s identity was
not concealed. Plaintiff filed a lawsuit for various claims
alleging that Defendants’ failure to conceal his identity in the
broadcast endangered his life and cost him his job as an
informant. Defendants then filed an anti-SLAPP motion, a
special motion to strike the complaint under the California
Code of Civil Procedure § 425.16. The district court denied
the motion on the ground that Defendants failed to show that
the anti-SLAPP statute is applicable to Plaintiff’s complaint.
4 DOE V. GANGLAND PRODUCTIONS, INC.
Defendants bring an interlocutory appeal of the district
court’s order. We affirm in part and reverse in part the
district court’s denial of Defendants’ anti-SLAPP motion.
JURISDICTION & STANDARD OF REVIEW
We have jurisdiction to review the denial of a motion to
strike made pursuant to California’s anti-SLAPP statute. DC
Comics v. Pacific Pictures Corp., 706 F.3d 1009, 1011 (9th
Cir. 2013); Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir.
2003).
We review de novo the district court’s denial of an anti-
SLAPP motion. Mindys Cosmetics, Inc. v. Dakar, 611 F.3d
590, 595 (9th Cir. 2010).
PROCEDURAL AND FACTUAL BACKGROUND
A. Plaintiff’s Interview for Gangland
Defendants Gangland Productions, Inc. and A&E
Television Networks, LLC, are the producers of the
documentary television series, Gangland, which explores
“some of America’s most notorious gangs and the efforts of
law enforcement agencies working to stop them.” This
lawsuit arises from a Gangland episode on the history of a
white supremacist gang, Public Enemy Number 1.
Plaintiff John Doe worked as a police informant because
of his personal knowledge of certain high profile gangs. In
late 2009, Plaintiff was introduced to Gangland producer,
Stephanie Kovac, by a police officer. The police officer
suggested that Kovac may want to speak to Plaintiff about
Public Enemy Number 1. Although Plaintiff was never a
DOE V. GANGLAND PRODUCTIONS, INC. 5
member of Public Enemy Number 1, he was a childhood
friend of Scott Miller, one of the gang’s co-founders. Miller
was allegedly murdered by members of Public Enemy
Number 1. Shortly after his introduction to Kovac, Plaintiff
agreed to be interviewed for Gangland for $300.
Plaintiff claims he told Kovac that he agreed to be
interviewed on the condition that his face would be
concealed. Plaintiff alleges that he wore a hat and a bandana
to cover his face when he entered the interview room because
he did not want his identity disclosed on camera. Plaintiff
asserts Kovac told him that he did not need the hat or the
bandana because his identity would be concealed through the
production process. Plaintiff claims he removed those items
based on these representations. Plaintiff emphasizes that he
made it clear to Kovac and the cameraman that his life would
be in danger if his identity was not concealed. According to
Plaintiff, Kovac and the cameraman told him that they
understood.
In contrast, Kovac asserts that before the interview,
Plaintiff was not wearing anything that concealed his identity.
Kovac claims that Plaintiff was shown on a camera monitor
how he would appear on the program without his face
concealed in any way, and that he approved his unconcealed
appearance. According to Kovac, Plaintiff never requested
that his identity be concealed. Plaintiff also posed for
photographs showing his face and gang tattoos, and provided
Kovac additional photographs showing his face and tattoos.
Plaintiff admits that he had photographs taken but asserts that
he believed his face and identity would be concealed in the
photographs. Plaintiff asserts that his tattoos alone, without
his face, do not reveal his gang affiliation.
6 DOE V. GANGLAND PRODUCTIONS, INC.
The parties also dispute whether Plaintiff signed a release
concerning his participation in Gangland. Defendants claim
that when Plaintiff arrived at the interview, Kovac asked him
to sign a one-page release entitled “PROGRAM
PARTICIPATION RELEASE AND CONSENT
AGREEMENT.” The release stated that the “Participant”
grants Gangland Productions, Inc. the right to film, record,
and use “[his] name, likeness, image, voice, interview and
performance.” The release further provided:
The Participant agrees that Participant has
allowed Participant’s real name and identity
to be used in the Program and, further,
understands and acknowledges that revealing
Participant’s real name and identity in the
Program may be dangerous for Participant and
may result in bodily harm or death to
Participant.
The release also waived all claims against anyone associated
with the program for infringement of rights of publicity or
misappropriation, intrusion, invasion of privacy, and
infliction of emotional distress.
Plaintiff tells a different story. Plaintiff claims that before
filming his interview, and after he had been told his identity
would be concealed, he was asked to sign a document.
Plaintiff states that he is dyslexic, is illiterate, and told Kovac
that he has “extreme difficulty reading.” Kovac allegedly
told Plaintiff the document was “just a receipt” for his $300
payment. Plaintiff further alleges that he tried to have his
girlfriend, who accompanied him to the interview, read the
document to him before he signed it. But, according to
Plaintiff, Kovac told him that was not necessary because it
DOE V. GANGLAND PRODUCTIONS, INC. 7
was only a receipt. Because of Kovac’s representations,
Plaintiff signed the document. Plaintiff never received a copy
of the document he signed, and he believes that the document
he signed was shorter than the release submitted by
Defendants.
B. The Gangland Broadcast
The Gangland episode aired on the History Channel. In
the episode, several Public Enemy Number 1 members, with
their full names and appearances disclosed, discussed the
gang’s violent activities. One member, with his face and
voice concealed, talked about his knowledge of the gang.
Photographs of other Public Enemy Number 1 members were
shown with their faces concealed. Plaintiff appeared in the
program, identified by his nickname, and was identified as a
former member of an unspecified gang.
The episode portrayed the murder of Miller, co-founder
of Public Enemy Number 1. Miller had discussed Public
Enemy Number 1 in a television interview. His face was
covered and his voice was disguised, but he was identifiable
by his tattoos and other personal traits. Some members
believed Miller had crossed the line, so he was allegedly
brutally murdered. Miller had been a childhood friend of
Plaintiff’s and Plaintiff knew of the murder. In the episode,
Plaintiff talked about Public Enemy Number 1 and details of
Miller’s murder. The episode reported on numerous other
violent crimes allegedly committed by Public Enemy
Number 1.
8 DOE V. GANGLAND PRODUCTIONS, INC.
C. Plaintiff’s Lawsuit
Plaintiff filed a Complaint and a First Amended
Complaint after the Gangland episode aired. Plaintiff’s First
Amended Complaint asserts claims for: (1) appropriation of
likeness; (2) public disclosure of private fact; (3) false
promise; (4) negligent infliction of emotional distress; (5)
intentional infliction of emotional distress; and (6)
declaratory relief. Plaintiff alleges that after the Gangland
episode aired: (1) he is no longer employable as an informant
for law enforcement; (2) he has received numerous death
threats; (3) he was evicted from his apartment; and (4) he was
threatened by gang members. He also claims that he has
suffered severe emotional distress.
D. District Court’s Denial of Defendants’ Anti-SLAPP
Motion
Defendants filed an anti-SLAPP motion to strike
Plaintiff’s First Amended Complaint. The district court
denied the motion on the ground that the anti-SLAPP statute
did not apply. Doe v. Gangland Prods., Inc., 802 F. Supp. 2d
1116 (C.D. Cal. 2011). As a result, the district court did not
address whether Plaintiff could show a probability of
prevailing on the merits. Defendants timely appealed.1
1
The parties submitted numerous evidentiary objections in the district
court. We have reviewed the objections and, as the district court did, we
rely only on admissible evidence. Gangland Prods., Inc., 802 F. Supp. 2d
at 1119.
DOE V. GANGLAND PRODUCTIONS, INC. 9
DISCUSSION
A. California’s Anti-SLAPP Statute
To evaluate an anti-SLAPP motion, a court engages in a
two-part inquiry. The defendant bears the initial burden to
show that the statute applies because the lawsuit arises from
defendant’s act in furtherance of its right of petition or free
speech. If the defendant meets its burden, the burden shifts
to plaintiff to demonstrate a probability of prevailing on the
merits of each of plaintiff’s claims. Marijanovic v. Gray,
York & Duffy, 137 Cal. App. 4th 1262, 1270 (2006). Under
the anti-SLAPP statute, if the plaintiff cannot show a
probability of prevailing on a claim, the claim is stricken.
Navellier v. Sletten, 29 Cal. 4th 82, 89 (2002). To evaluate an
anti-SLAPP motion, the court must “consider the pleadings,
and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” Cal. Code Civ. Proc.
§ 425.16(b)(2).
B. Defendants Have Met Their Burden to Establish That
Plaintiff’s Lawsuit Arose from Their Protected
Activity
The parties agree that for the anti-SLAPP statute to apply
to Plaintiff’s lawsuit, Defendants must show that they were
engaged in conduct (1) in furtherance of the right of free
speech, and (2) in connection with an issue of public interest.
Cal. Code Civ. Proc. § 425.16(a), (e)(4). As explained below,
we hold that Defendants satisfied both requirements.
10 DOE V. GANGLAND PRODUCTIONS, INC.
1. Defendants Have Shown Their Conduct Was in
Furtherance of Their Right of Free Speech
To determine whether a defendant has met its initial
burden, a court must focus on the “defendant’s activity that
gives rise to [its] asserted liability.” Navellier, 29 Cal. 4th at
92. “By its terms, [the anti-SLAPP statute] includes not
merely actual exercises of free speech rights but also conduct
that furthers such rights.” Hilton v. Hallmark Cards, 599
F.3d 894, 903 (9th Cir. 2010) (citing Cal. Code Civ. Proc.
§ 425.16(e)(4)). Consequently, California courts have held
that pre-publication or pre-production acts such as
investigating, newsgathering, and conducting interviews
constitute conduct that furthers the right of free speech. Taus
v. Loftus, 40 Cal. 4th 683, 713, 727–29 (2007); Lieberman v.
KCOP Television, Inc., 110 Cal. App. 4th 156, 164–65
(2003).
Plaintiff’s claims are based on Defendants’ acts of
interviewing Plaintiff for a documentary television show and
broadcasting that interview. These acts were in furtherance
of Defendants’ right of free speech. See Taus, 40 Cal. 4th at
713, 727–29 (holding that a published article and the
investigation conducted in connection with the article,
including an interview, constituted protected activity); Hall
v. Time Warner, Inc., 153 Cal. App. 4th 1337, 1343–47
(2007) (concluding that a television broadcast and an
interview in connection with the broadcast constituted
protected activity).
The district court erroneously reasoned that Defendants
were not engaged in protected activity for two primary
reasons. First, when Defendants’ motion was before the
district court it was “uncontested that Defendants’ broadcast
DOE V. GANGLAND PRODUCTIONS, INC. 11
of the Program” was covered by the anti-SLAPP statute.
Gangland Prods., Inc., 802 F. Supp. 2d at 1121 (emphasis
added). The district court, however, held that the statute did
not apply because “the core of Plaintiff’s complaint attacks
Defendants’ broadcast of the Program without concealing his
identity.” Id. at 1122 (emphasis added). The district court
incorrectly concluded that under the anti-SLAPP statute, a
lawful broadcast is in furtherance of Defendants’ right of free
speech, but an unlawful broadcast is not. The district court’s
analysis conflated the two distinct prongs of the anti-SLAPP
statute. See Lieberman, 110 Cal. App. 4th at 165 (explaining
that to hold “lawful newsgathering is an act in furtherance of
one’s right to free speech, but unlawful newsgathering is not”
conflates the two prongs of the anti-SLAPP statute).
Contrary to the district court’s analysis, a plaintiff’s
assertion that its claims are “based on [defendants’] alleged
abusive activity does not . . . exempt a lawsuit from anti-
SLAPP scrutiny.” Jarrow Formulas, Inc. v. LaMarche, 31
Cal. 4th 728, 740 (2003). To determine whether a defendant
has met its initial burden, a court does not evaluate whether
defendant’s conduct was lawful or unlawful. Id. Instead,
“any ‘claimed illegitimacy of the defendant’s acts is an issue
which the plaintiff must raise and support’” in the second step
of the analysis when the plaintiff bears the burden to show a
probability of prevailing. Navellier, 29 Cal. 4th at 94(quoting Paul for Council v. Hanyecz, 85 Cal. App. 4th 1356,
1367 (2001)). If it were the case that a “defendant must first
establish [that its] actions are constitutionally protected under
the First Amendment as a matter of law,” then the
“[secondary] inquiry as to whether the plaintiff has
established a probability of success would be superfluous.”
Id. at 94–95 (internal quotation marks and citation omitted).
12 DOE V. GANGLAND PRODUCTIONS, INC.
Accordingly, California courts consistently hold that
defendants may satisfy their burden to show that they were
engaged in conduct in furtherance of their right of free speech
under the anti-SLAPP statute, even when their conduct was
allegedly unlawful.2 See Taus, 40 Cal. 4th at 706–07, 713,
727–29 (holding that defendants’ investigation, including an
interview that was allegedly fraudulently obtained,
constituted protected activity); Hall, 153 Cal. App. 4th at
1342 (same); Lieberman, 110 Cal. App. 4th at 164–66
(concluding that defendants’ newsgathering, including
surreptitious videotape recordings that were allegedly
illegally obtained, constituted protected activity). Thus,
Plaintiff’s assertion that Defendants fraudulently disclosed
his identity has no bearing on whether Defendants engaged in
protected activity.
Second, the district court erroneously held that
Defendants were not engaged in protected activity because
“Defendants’ broadcast television show about gang violence”
merely “lurks in the background of Plaintiff’s claims.”
Gangland Productions, Inc., 802 F. Supp. 2d at 1122.
Plaintiff’s lawsuit arises directly from Defendants’ act of
broadcasting Gangland. But for the broadcast and
Defendants’ actions in connection with that broadcast,
Plaintiff would have no reason to sue Defendants. See, e.g.,
Navellier, 29 Cal. 4th at 90 (finding lawsuit arose from
defendant’s litigation activity because “but for the [litigation
activity], plaintiffs’ present claims would have no basis”).
2
The exception to this rule is that the anti-SLAPP statute cannot be
invoked by a defendant “whose assertedly protected activity is
conclusively demonstrated to be illegal as a matter of law.” Flatley v.
Mauro, 39 Cal. 4th 299, 319, 329 (2006). Plaintiff does not contend that
the Flatley exception applies here.
DOE V. GANGLAND PRODUCTIONS, INC. 13
We conclude that Defendants have met their burden to
show that Plaintiff’s lawsuit arises from Defendants’ conduct
in furtherance of their right of free speech.3
2. Defendants Have Shown Their Conduct Was
Connected to a Matter of Public Interest
To meet their initial burden, Defendants must also show
that their conduct was “in connection with a public issue or
an issue of public interest.” Cal. Code Civ. Proc. § 425.16(e).
“[A] topic of widespread, public interest” satisfies this
requirement. Rivero v. Am. Fed’n of State, Cnty., & Mun.
Emps., AFL-CIO, 105 Cal. App. 4th 913, 924 (2003).4
In finding that Defendants failed to satisfy the public
interest requirement, the district court held that the Gangland
episode’s “general topics of gang violence and Miller’s
murder are topics of widespread public interest, [but]
Plaintiff’s identity is not.” Gangland Prods., Inc., 802 F.
3Plaintiff argues that applying the anti-SLAPP statute in this case would
make every copyright or contract claim involving television subject to
dismissal under the anti-SLAPP statute. We disagree. For one, “the anti-
SLAPP statute does not apply to federal law causes of action,” such as
copyright claims. Hilton, 599 F.3d at 901. Further, Plaintiff’s concerns
“fall prey . . . to the fallacy that the anti-SLAPP statute allows a defendant
to escape the consequences of wrongful conduct by asserting a spurious
First Amendment defense.” Navellier, 29 Cal. 4th at 93. Claims “that
possess minimal merit” are not subject to dismissal under the anti-SLAPP
statute. Id.4
See also Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042
(2008) (an issue of public interest is “any issue in which the public is
interested”); Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1132 (2003) (an
issue of public interest is “something of concern to a substantial number
of people”).
14 DOE V. GANGLAND PRODUCTIONS, INC.
Supp. 2d at 1123. The district court’s analysis is, in part,
incorrect.
The district court correctly determined that Defendants’
Gangland episode’s “general topics of gang violence and
Miller’s murder” are issues of public interest. Id.; see
Lieberman, 110 Cal. App. 4th at 165 (holding that a news
report on the “unlawful dispensing of controlled substances
is an issue of great public interest”). Indeed, Plaintiff
concedes that the topics of his interview, Public Enemy
Number 1 and Miller’s murder, are issues of public interest.
Compl. ¶¶ 30, 40, 51 (stating that “gang activity” and the
“killing of a gang-affiliated police informant” is “of
legitimate public concern”).
The district court, however, incorrectly determined that
Defendants were required to show an independent public
interest in Plaintiff’s identity. See Gangland, 802 F. Supp. 2d
at 1123 (“Defendants must show that including Plaintiff’s
identity in the Program was ‘in connection with a public issue
or an issue of public interest.’” (quoting Cal. Code Civ. Proc.
§ 425.16(e)(4))).
In Taus v. Loftus, the California Supreme Court did not
directly address the question whether a defendant must show
a specific public interest in plaintiff under the anti-SLAPP
statute. 40 Cal. 4th at 712. But the court’s public interest
inquiry focused on defendants’ general activities, not the
plaintiff’s. Id. The court found that “there can be no question
. . . that defendants’ general course of conduct from which
plaintiff’s cause of action arose was clearly activity ‘in
furtherance of [defendants’] exercise of . . . free speech . . . in
connection with a public issue.’” Id. (emphasis added)
(alterations in original).
DOE V. GANGLAND PRODUCTIONS, INC. 15
Several California Court of Appeal decisions have
instructed that the proper inquiry is whether the broad topic
of defendant’s conduct, not the plaintiff, is connected to a
public issue or an issue of public interest.5 In M.G. v. Time
Warner, Inc., defendants’ publications on child molestation
included a photograph of a Little League team whose
manager had pleaded guilty to molesting children he had
coached. 89 Cal. App. 4th 623, 626 (2001). The players and
the other coaches shown in the photograph sued for invasion
of privacy. Plaintiffs “tr[ied] to characterize the ‘public
issue’ involved as being limited to the narrow question of the
identity of the molestation victims.” Id. at 629. The court
rejected that definition as “too restrictive.” Id. Instead, the
court looked at the “broad topic” of defendants’ publications
and held that “the general topic of child molestation in youth
sports” was an issue of public interest. Id.
Similarly, in Terry v. Davis Community Church, the court
found that defendants’ reports and meetings regarding an
inappropriate relationship between plaintiff husband and
plaintiff wife, church youth group leaders, and a girl in their
youth group involved an issue of public interest under the
anti-SLAPP statute. 131 Cal. App. 4th 1534, 1538, 1547–48
(2005). The court rejected plaintiffs’ attempt to narrow the
inquiry to whether there was public interest in “a private
relationship between [the plaintiff husband] and the girl.” Id.
at 1547. It held that “the broad topic of the report and the
5
In the absence of a California Supreme Court decision directly on
point, we “follow the decisions of the state’s intermediate appellate courts
where there is no convincing evidence that the state supreme court would
decide differently.” Bills v. U.S. Fid. & Guar. Co., 280 F.3d 1231, 1234
n.1 (9th Cir. 2002).
16 DOE V. GANGLAND PRODUCTIONS, INC.
meetings was the protection of children in church youth
programs, which is an issue of public interest.” Id. at 1548.
Also instructive is Tamkin v. CBS Broadcasting, Inc.,
which held that defendants’ broadcast of a television show
that allegedly used plaintiffs’ personas was a matter of public
interest. 193 Cal. App. 4th 133, 139, 143 (2011). In
conducting the public interest inquiry, the court explained:
We believe the statutory language compels us
to focus on the conduct of the defendants and
to inquire whether that conduct furthered such
defendants’ exercise of their free speech
rights concerning a matter of public interest.
We find no requirement in the anti-SLAPP
statute that the plaintiff’s persona be a matter
of public interest.
Id. at 144.
Under M.G., Terry, and Tamkin, because Defendants
demonstrated a public interest in the broad topics of
Gangland, they satisfied the public interest requirement under
the anti-SLAPP statute. They were not required to show a
specific public interest in Plaintiff.6
6
M.G., Terry, and Tamkin all involved plaintiffs who were private
figures. In instances where a plaintiff is a public figure, the general topic
of the defendant’s activities is often the plaintiff. In that case, to show a
public interest in the topic of its activities, the defendant must necessarily
show an interest in the public figure plaintiff. See, e.g., Hilton, 599 F.3d
at 907–08.
DOE V. GANGLAND PRODUCTIONS, INC. 17
We find Plaintiff’s argument to the contrary unpersuasive.
Plaintiff argues that Defendants cannot satisfy the public
interest requirement under Dyer v. Childress, 147 Cal. App.
4th 1273 (2007). In Dyer, the plaintiff sued the creators of
the movie Reality Bites for using his name as the main
character in an anniversary edition of the film. Id. at 1277.
Plaintiff’s name was used only as “an inside joke” because
the character named after him was “dissimilar” to plaintiff.
Id. The court held that there was no public interest under the
anti-SLAPP statute because “[a]lthough Reality Bites may
address topics of widespread public interest, the defendants
are unable to draw any connection between those topics and
[plaintiff’s] . . . claims.” Id. at 1280. The court emphasized
that “there is no discernable public interest in [plaintiff’s]
persona.” Id.
Plaintiff’s reliance on Dyer is misplaced. Unlike Dyer,
Plaintiff is directly connected to the issues of public interest,
gang violence and Miller’s murder. Plaintiff agreed to do the
interview for Gangland because of his personal knowledge on
these topics.
We conclude that Defendants’ acts in furtherance of their
right of free speech were in connection with issues of public
interest. Thus, Defendants have met their initial burden under
the anti-SLAPP statute.
C. Plaintiff Has Met His Burden to Demonstrate a
Probability of Prevailing on Some of His Claims
“At the second step of the anti-SLAPP inquiry,” we
review de novo whether a plaintiff has met its burden “to
show a probability of success” on the merits. Mindys
Cosmetics, Inc., 611 F.3d at 598. “[A] plaintiff ‘must
18 DOE V. GANGLAND PRODUCTIONS, INC.
demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.’” Wilson v. Parker, Covert & Chidester,
28 Cal. 4th 811, 821 (2002) (quoting Matson v. Dvorak, 40
Cal. App. 4th 539, 548 (1995)). “The applicable burden ‘is
much like that used in determining a motion for nonsuit or
directed verdict, which mandates dismissal when no
reasonable jury could find for the plaintiff.’” Mindys
Cosmetics, Inc., 611 F.3d at 599 (citation omitted). This
means that in ruling on an anti-SLAPP motion, we cannot
“weigh the credibility or comparative probative strength of
competing evidence.” Wilson, 28 Cal. 4th at 821. But we
should strike a claim if “defendant’s evidence supporting the
motion” establishes “as a matter of law” that plaintiff cannot
show a probability of prevailing. Id.
1. At This Stage, the Release Does Not Bar Plaintiff’s
Claims
Defendants contend that Plaintiff’s claims are barred
because Plaintiff signed a release that (1) expressly consented
to disclosure of his real name and identity in the broadcast,
and (2) waived all claims for liability or damages caused by
an infringement of rights of publicity or misappropriation,
intrusion, or infliction of emotional distress.
Under California law, however, a plaintiff may
demonstrate “fraud in the execution or inception of a
contract,” by establishing that as a result of defendant’s fraud
the plaintiff did not know what he or she was signing. Vill.
Northridge Homeowners Ass’n v. State Farm Fire & Cas.
Co., 50 Cal. 4th 913, 921 (2010). Once a plaintiff has shown
DOE V. GANGLAND PRODUCTIONS, INC. 19
fraud in the execution or inception of a contract, “the contract
lacks mutual assent and is void.” Id.Plaintiff claims in a sworn declaration that he has
dyslexia, is illiterate, and that he told Kovac he has “extreme
difficulty reading.” Plaintiff claims that when he was
provided the alleged release, Kovac told him it was “just a
receipt” for his $300 payment for the interview. Because of
these representations, Plaintiff did not ask his girlfriend to
read out loud the document before he signed it. At this stage
in the proceedings, Plaintiff has made a sufficient showing of
fraud in the execution of the release, which, if true, would
render the release void. See Hotels Nev. v. L.A. Pac. Ctr.,
Inc, 144 Cal. App. 4th 754, 763–64 (2006) (finding that
plaintiff sufficiently alleged fraud in the execution of a
contract because plaintiff claimed that the contracts defendant
sought to enforce “were not the same documents that
[plaintiff had] signed”); Mairo v. Yellow Cab Co. of Cal., 208
Cal. 350, 351–52 (1929) (holding that a triable issue of fraud
existed where an illiterate plaintiff signed releases but
claimed that he believed he had signed a permit and receipts).
In the cases relied upon by Defendants, the plaintiffs did
not assert that they had been misled about the contents of the
releases that they signed. Instead, the plaintiffs’ beliefs
regarding the scope of the releases they signed were
attributable to their own failure to read the documents or have
the documents read to them. See, e.g., Morta v. Korea Ins.
Corp., 840 F.2d 1452, 1457–58 (9th Cir. 1988); Casey v.
Proctor, 59 Cal. 2d 97, 104–05 (1963); Alfaro v. Cmty. Hous.
Improvement Sys. & Planning Ass’n, Inc., 171 Cal. App. 4th
1356, 1393 & n.23 (2009).
20 DOE V. GANGLAND PRODUCTIONS, INC.
We therefore conclude that at this juncture, Plaintiff’s
claims are not barred by the release. It follows that Plaintiff’s
statements are not barred by the parol evidence rule, which
“generally prohibits the introduction of any extrinsic
evidence, whether oral or written, to vary, alter or add to the
terms of an integrated written instrument.” Casa Herrera,
Inc. v. Beydoun, 32 Cal. 4th 336, 343 (2004) (internal
quotation marks omitted). The parol evidence rule does not
bar extrinsic evidence “[w]here the validity of the agreement
is the fact in dispute” or “to establish illegality or fraud.”
Cal. Code Civ. Proc. § 1856(f), (g); Riverisland Cold Storage,
Inc. v. Fresno-Madera Prod. Credit Ass’n, 55 Cal. 4th 1169,
1182 (2013) (stating the parol evidence rule cannot “be used
as a shield to prevent the proof of fraud” (quoting Ferguson
v. Koch, 204 Cal. 342, 347 (1928))). Further, at this time,
Plaintiff does not need to show that the release is
unconscionable because he is not required to do so if the
release is void.
2. Plaintiff Has Shown a Reasonable Probability of
Prevailing on Four Claims
a. Public Disclosure of Private Fact
To prove a claim for public disclosure of private fact, a
plaintiff must show: “(1) public disclosure (2) of a private
fact (3) which would be offensive and objectionable to the
reasonable person and (4) which is not of legitimate public
concern.” Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200,
214 (1998) (internal quotation marks and citations omitted).
Plaintiff has made a prima facie showing of all four elements.
The first element of public disclosure is met because it is
undisputed that Gangland was broadcast publicly. The
DOE V. GANGLAND PRODUCTIONS, INC. 21
second element, disclosure of a private fact, is met because
Defendants do not contest that Plaintiff’s identity was private.
With respect to the third element, Defendants do not
dispute that the disclosure of information connecting a person
with a violent gang, if done involuntarily, may be offensive
and objectionable to a reasonable person. Defendants argue,
however, that Plaintiff knew that he would be recognized on
Gangland and voluntarily agreed to do the interview anyway.
Given the sharp factual dispute between the parties
concerning (1) the validity of a release giving Defendants a
right to disclose Plaintiff’s identity and (2) whether Plaintiff
conditioned the interview on his identity being concealed,
Plaintiff has proffered sufficient evidence that the disclosure
of his identity would be offensive and objectionable.
The fourth element requires Plaintiff to make a prima
facie showing that his identity was not of legitimate public
concern. Shulman, 18 Cal. 4th at 214. This element relates
to “newsworthiness” and is evaluated by California courts
under “a three-part standard, ordinarily requiring the jury to
weigh: (1) the social value of the facts published, (2) the
depth of the publication’s intrusion into ostensibly private
affairs, and (3) the extent to which the party voluntarily
assumed a position of public notoriety.” Capra v.
Thoroughbred Racing Ass’n of N. Am., Inc., 787 F.2d 463,
464 (9th Cir. 1986). The newsworthiness inquiry focuses on
the particular fact at issue that was disclosed, not on the
general topic of the publication. Times-Mirror Co. v. Sup.
Ct., 198 Cal. App. 3d 1420, 1429 (1988). “If there is room
for differing views whether a publication [of a plaintiff’s
identity] would be newsworthy the question is one to be
determined by the jury and not the court.” Id. at 1429.
22 DOE V. GANGLAND PRODUCTIONS, INC.
California courts have thus found newsworthiness to be
a question of fact where reasonable minds could differ on the
social value of publishing a plaintiff’s identity in light of the
level of intrusion into the plaintiff’s life or the degree to
which plaintiff voluntarily opened his or her personal life.
See M.G., 89 Cal. App. 4th at 633–36 (finding that a jury
could find plaintiffs’ identities in publications on child
molestation not newsworthy based on state laws prohibiting
the disclosure of the identity of minors and victims of sex
crimes, and evidence that their identities could have been
concealed); Times-Mirror Co., 198 Cal. App. 3d at 1425–26,
1428–29 (holding that a jury could find plaintiff’s name as a
witness to a crime not newsworthy given plaintiff’s interest
in her “safety and the state’s interest in conducting a criminal
investigation”); see also Diaz v. Oakland Tribune, Inc., 139
Cal. App. 3d 118, 134 (1983) (concluding that the
newsworthiness of plaintiff’s sexual identity was a question
for the jury because it was disputed whether plaintiff
“voluntarily acceded to a position of public notoriety”).
Here, Plaintiff asserts that the intrusion into his identity
has endangered his life and caused him emotional distress. In
the Gangland broadcast, other gang members’ identities were
concealed. This indicates at least some members’ identities
were of minimal social value. The broadcast focused on
Public Enemy Number 1, their founders, and their murder
victims. Plaintiff did not belong to any of these groups,
making him more akin to the third-party witness in Times-
Mirror Co. Although Plaintiff voluntarily agreed to do the
interview, he allegedly did so on the condition that his
identity be concealed. On this record, Plaintiff has shown a
reasonable probability that his identity was not of legitimate
public concern. Shulman, 18 Cal. 4th at 214.
DOE V. GANGLAND PRODUCTIONS, INC. 23
We therefore conclude that Plaintiff has a reasonable
probability of prevailing on his claim for public disclosure of
private fact.
b. Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional
distress, a plaintiff must prove “(1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of
the emotional distress by the defendant’s outrageous
conduct.” Davidson v. City of Westminster, 32 Cal. 3d 197,
209 (1982) (internal quotation marks and citations omitted).
For the reasons discussed above, if Defendants agreed to
conceal Plaintiff’s identity, but then intentionally disclosed it,
Defendants’ actions would likely constitute extreme and
outrageous conduct done with the intent to cause emotional
distress. Further, Plaintiff asserts that he has suffered
emotional distress because he has lost his employment and
apartment, and gang members threatened him. Thus, Plaintiff
has established a reasonable probability of prevailing on his
intentional infliction of emotional distress claim.
c. False Promise
“[A]n action based on a false promise is simply a type of
intentional misrepresentation, i.e., actual fraud.” Tarmann v.
State Farm Mut. Auto. Ins. Co., 2 Cal. App. 4th 153, 159
(1991). The elements of fraud are (1) misrepresentation; (2)
knowledge of falsity; (3) intent to defraud; (4) justifiable
reliance; and (5) resulting damage. Lazar v. Super. Ct.,
12 Cal. 4th 631, 638 (1996). “A promise to do something
24 DOE V. GANGLAND PRODUCTIONS, INC.
necessarily implies the intention to perform; hence, where a
promise is made without such intention, there is an implied
misrepresentation of fact that may be actionable fraud.” Id.For the reasons discussed above, if Plaintiff’s assertions
are credited, Defendants misrepresented that they would
conceal his identity and also misrepresented the nature of the
release that they had Plaintiff sign. We thus conclude that
Plaintiff has shown a probability of prevailing on his claim
based on a false promise.
d. Declaratory Relief
“[U]nder a contract,” in cases of “actual controversy
relating to the legal rights and duties of the respective
parties,” a party may ask the court to make a binding
declaration of these rights and duties. Cal. Code Civ. Proc.
§ 1060. Plaintiff has demonstrated there is an actual
controversy regarding the parties’ rights and duties under the
release. Thus, Plaintiff’s claim for declaratory relief has
sufficient merit.
3. Plaintiff Has Failed to Show a Reasonable
Probability of Prevailing on Two Claims
a. Appropriation of Likeness
Section 3344 provides that any person who “knowingly
uses another’s . . . likeness, in any manner, on or in products,
merchandise, or goods, or for purposes of advertising or
selling, or soliciting purchases . . . without such person’s prior
consent . . . shall be liable for any damages sustained by the
person . . . injured as a result thereof.” Cal. Civ. Code
§ 3344(a). Section 3344(d), however, contains an exception
DOE V. GANGLAND PRODUCTIONS, INC. 25
to liability for any “use of a . . . likeness in connection with
any news, public affairs, or sports broadcast or account, or
any political campaign.” Id. § 3344(d).
California courts have held that documentaries on the
popular pastimes of surfing and baseball fall within the
“public affairs” category of § 3344(d). See Dora v. Frontline
Video, Inc., 15 Cal. App. 4th 536, 544 (1993); Gionfriddo v.
Major League Baseball, 94 Cal. App. 4th 400, 405–06, 416
(2001). Although Defendants’ documentary concerned the
criminal activities of a gang, not a popular sport, the category
of “public affairs” is presumed to “mean something less
important than news.” Dora, 15 Cal. App. 4th at 545
(emphasis added). We conclude that even if Gangland does
not fall within the news exception under § 3344(d), it falls
within the public affairs exception. See Baugh v. CBS, Inc.,
828 F. Supp. 745, 754 (N.D. Cal. 1993) (holding news
magazine story on assisting crime victims, even if it “[did]
not fit the traditional notion of news, it [was] undoubtedly . . .
protected under the category of public affairs” under
§ 3344(d)). Therefore, Plaintiff has not established a
reasonable probability of prevailing on his claim for
appropriation of likeness.
b. Negligent Infliction of Emotional Distress
“[T]here is no independent tort of negligent infliction of
emotional distress.” Potter v. Firestone Tire & Rubber Co.,
6 Cal. 4th 965, 984 (1993). “[U]nless the defendant has
assumed a duty to plaintiff in which the emotional condition
of the plaintiff is an object, recovery is available only if the
emotional distress arises out of the defendant’s breach of
some other legal duty and the emotional distress is
proximately caused by that breach of duty.” Id. at 985.
26 DOE V. GANGLAND PRODUCTIONS, INC.
In Baugh v. CBS, a mother and her daughter asserted a
claim for negligent infliction of emotional distress under
California law after they were shown in a television broadcast
on street crimes. Baugh, 828 F. Supp. at 749–50. The
mother alleged that she had agreed to let the television crew
film in her house on the condition that she would not appear
on television. Id. at 752. She asserted that defendants
agreed, but then broadcast her and her daughter’s identities in
at least some versions of the television show. Id. at 750 n.1.
In granting defendants’ motion to dismiss the negligence
claim, the court rejected plaintiffs’ assertion that defendants
“had a legal duty not to reveal . . . private facts” about her and
her daughter in the broadcast. Id. at 758. Plaintiffs
“provid[ed] no authority for the proposition that a legal duty
arises in this situation.” Id. The court held that “[i]n the
absence of a special duty, the decision to go ahead with the
broadcast cannot be the basis for a negligence claim.” Id.7
Similar to Baugh, Plaintiff fails to cite any authorities
demonstrating that Defendants had a legal duty not to reveal
private facts about him during the broadcast. Thus, Plaintiff
has failed to establish a reasonable probability of prevailing
on his claim for negligent infliction of emotional distress.
See Navallier, 29 Cal. 4th at 88 (instructing that a plaintiff
must show a claim is legally sufficient as well as supported
by sufficient facts).
7
Baugh held, however, that plaintiffs’ allegations adequately stated a
claim for intentional infliction of emotional distress. Baugh, 828 F. Supp.
at 758. Likewise, as discussed above, Plaintiff has established a
reasonable probability of prevailing on his claim for intentional infliction
of emotional distress.
DOE V. GANGLAND PRODUCTIONS, INC. 27
4. Single Publication Rule
Pursuant to California’s Uniform Single Publication Act:
No person shall have more than one cause of
action for damages for libel or slander or
invasion of privacy or any other tort founded
upon any single publication or exhibition or
utterance, such as any one issue of a
newspaper or book or magazine or any one
presentation to an audience or any one
broadcast over radio or television or any one
exhibition of a motion picture. Recovery in
any action shall include all damages for any
such tort suffered by the plaintiff in all
jurisdictions.
Cal. Civ. Code § 3425.3.
“The single-publication rule limits tort claims premised
on mass communications to a single cause of action that
accrues upon the first publication of the communication,
thereby ‘spar[ing] the courts from litigation of stale claims’
where an offending book or magazine is resold years later.”
Roberts v. McAfee, Inc., 660 F.3d 1156, 1166–67 (9th Cir.
2011) (quoting Christoff v. Nestle USA, Inc., 47 Cal. 4th 468,
479 (2009)). The rule likewise “provide[s] repose to
defendants by precluding stale claims based on dated but
still-lingering mass communications,” id. at 1168, and also
“protect[s] defendants from harassment through multiple
suits.” Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122,
1131 (9th Cir. 2006).
28 DOE V. GANGLAND PRODUCTIONS, INC.
Defendants contend that under the single publication rule,
Plaintiff’s “overlapping and duplicative claims, all arising
from the alleged disclosure of his identity in the Program . . .
should be stricken.” Defendants do not argue that Plaintiff’s
claims are untimely. Instead, their argument is based solely
on the ground that the single publication rule prevents
multiplicity of claims. Defendants interpret the statute to
mean that, at the outset, Plaintiff may assert only one theory
of recovery arising from the Gangland broadcast. In other
words, Defendants argue that Plaintiff may plead a claim for
fraud or public disclosure of private fact or intentional
infliction of emotional distress. We are not persuaded.
The California Supreme Court has explained that the
single publication rule bars a plaintiff from filing multiple
lawsuits and asserting multiple instances of the same tort.
Christoff, 47 Cal. 4th at 477–81. Before the single
publication rule, “the general rule in defamation cases [was]
that ‘each time [a] defamatory statement [was] communicated
to a third person … the statement [was] said to have been
published,’ giving rise to a separate cause of action.” Id. at
477 (quoting Shively v. Bozanich, 31 Cal. 4th, 1230, 1242
(2003)). With “the advent of mass communication,” the
single publication rule was created to prevent a plaintiff from
asserting multiple causes of defamation for a single
publication. Id. “Where the offending language is read or
heard by a large audience, the [single publication] rule limits
the plaintiff to a single cause of action for each mass
communication. A separate cause of action for each member
of the public audience is disallowed.” Id. at 481. If the law
were otherwise, publishers of mass communications would be
subject to “‘hundreds, thousands, or even millions of causes
of action for a single issue of a periodical or edition of a
book.’” Id. at 478 (quoting Shively, 31 Cal. 4th at 1243–44).
DOE V. GANGLAND PRODUCTIONS, INC. 29
Here, under the single publication rule, Plaintiff may not
file separate lawsuits across the country based on the
Gangland episode, or assert a million claims for public
disclosure of private fact based on each audience member
who saw his identity. But the rule does not limit Plaintiff to
one theory of recovery or one distinct cause of action or claim
for relief. Notably, Defendants fail to provide any binding
authority demonstrating that the single publication rule bars
timely, multiple theories of recovery under different causes
of action or claims for relief asserted in Plaintiff’s complaint.8
Cf. M.G., 89 Cal. App. 4th at 630, 637 (holding that the single
publication rule permits plaintiffs to assert “one cause of
action [for invasion of privacy], expressing four different
theories” and refusing to strike plaintiffs’ emotional distress
claims, even if they are cumulative).
Moreover, “[t]he purpose of the [single publication] rule
is to include in the single suit all damages resulting anywhere
from the single aggregate publication.” Restatement
(Second) of Torts § 577A cmt. e (1977) (emphasis added).
The purpose of the rule would be undermined if a plaintiff is
required to choose, at the time of filing his complaint, one
single theory to recover all of his damages, without the
benefit of any discovery. Accord Roberts, 660 F.3d at 1168(rejecting plaintiff’s argument that “a mass communication is
8
The type of relief a plaintiff may assert may be limited by other
doctrines. For instance, it is well-established that a “plaintiff cannot evade
[the] procedural requirements of defamation actions by alleging that the
claim is not for loss of reputation but for humiliation and emotional
distress.” Long v. Walt Disney Co., 116 Cal. App. 4th 868, 872–73 (2004)
(citing Grimes v. Carter, 241 Cal. App. 2d 694, 699–701 (1966)). Further,
a plaintiff may be barred from “obtain[ing] double recovery” where claims
are “redundant.” Mangold v. Cal. Pub. Utilities Comm’n, 67 F.3d 1470,
1477–78 (9th Cir. 1995).
30 DOE V. GANGLAND PRODUCTIONS, INC.
republished when the defendant fails to retract it after
receiving notice of its falsity” because it “undermines the
single-publication rule”). Thus, we hold that Plaintiff’s
claims are not barred by the single publication rule.
CONCLUSION
We AFFIRM in part and REVERSE in part the district
court’s order denying Defendants’ anti-SLAPP motion. We
hold that the anti-SLAPP statute applies to Plaintiff’s lawsuit
because it arises from Defendants’ conduct in furtherance of
their right of free speech in connection with issues of public
interest. We hold that Plaintiff met his burden to show a
probability of prevailing on his claims for (1) public
disclosure of private fact; (2) intentional infliction of
emotional distress; (3) false promise; and (4) declaratory
relief. We strike Plaintiff’s claims for (1) appropriation of
likeness and (2) negligent infliction of emotional distress
because Plaintiff failed to establish a probability of prevailing
on those two claims. We REMAND for further proceedings
consistent with this opinion. Each party shall bear its own
costs on appeal.