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On Behalf of | Dec 8, 2019 | Firm News

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This lawsuit arises out of an altercation between plaintiff David Bernstein, a bartender, and defendant Shia LaBeouf, an actor.

LaBeouf confronted Bernstein and called him a “racist” after Bernstein refused to serve LaBeouf and his companion alcohol. Video footage of the incident was later posted on the internet and broadcast on television. Bernstein sued LaBeouf for assault, slander, and intentional infliction of emotional distress. LaBeouf filed a special motion to strike Bernstein’s first amended complaint under Code of Civil Procedure1 section 425.16 (antiSLAPP statute), arguing the conduct giving rise to Bernstein’s claims was protected speech-related activity concerning a matter of public interest.

With respect to his statements calling Bernstein a “racist,” LaBeouf insisted they were protected speech under the anti-SLAPP statute because: (1) they occurred in a place open to the public—i.e., a restaurant; (2) they “were of ‘public interest,’ as evidenced by the fact that video footage of the [i]ncident was posted publicly on the TMZ website”; and (3) because LaBeouf is a celebrity, “ ‘[t]he public’s fascination with [him] and widespread interest in his personal life’ render his day to day conduct ‘a public issue or an issue of public interest.’ ”

Alternatively, LaBeouf argued his statements addressed a matter of public interest because they contributed to the public debate on racism, since “it [is] axiomatic that racism and allegations of racial discrimination are matters of the highest public concern.” As for his physical conduct, LaBeouf claimed it too was protected because it was used in furtherance of, or to “emphasize,” his protected speech.

With respect to the second prong of the anti-SLAPP statute, LaBeouf argued Bernstein could not demonstrate a probability of prevailing on the merits of any of his claims. Among other things, LaBeouf asserted Bernstein could not prevail on his slander claim because LaBeouf’s statements that Bernstein was a “racist” constituted nothing more than “ ‘mere name calling.’ ” (Emphasis omitted.) LaBeouf did not submit any supporting evidence.

Bernstein opposed LaBeouf’s motion. In support of his opposition, Bernstein submitted declarations from several customers who witnessed the incident at Jerry’s, fellow Jerry’s employees who were working during the incident, and a psychologist who diagnosed Bernstein with Post-Traumatic Stress Disorder because of the incident. The customers who submitted declarations on Bernstein’s behalf stated they knew Bernstein because they frequented Jerry’s. None of them had ever seen Bernstein engage in any racist conduct. Bernstein also submitted several newspaper articles documenting LaBeouf’s various run-ins with law enforcement, as well as screenshots of several social media posts in which people comment on the incident at Jerry’s and, in many of the posts, express their support for LaBeouf or call Bernstein a “racist.”

Finally, Bernstein filed a copy of the video of the TMZ broadcast covering the incident, which includes footage of LaBeouf’s conduct inside Jerry’s, a copy of a video of the incident recorded by one of Jerry’s other employees, and copies of videos concerning LaBeouf’s other public outbursts.

The court found LaBeouf failed to show any of the claims in Bernstein’s complaint arose out of LaBeouf’s “constitutional right of free speech in connection with a public issue or an issue of public interest.”   Rather, the court found the claims stemmed from “a   private dispute between [LaBeouf] and [Bernstein] concerning [Bernstein’s] refusal … to serve [LaBeouf] alcohol and [LaBeouf’s] reaction.” The court rejected LaBeouf’s arguments that his statements calling Bernstein a “racist” contributed to the public debate on racism and that his celebrity status converted the dispute into a matter of public interest.

LaBeouf timely appealed the order denying his anti-SLAPP motion.  LaBeouf contended each of Bernstein’s claims arises out of activity protected by the anti-SLAPP statute because “what would have otherwise been an unremarkable and insignificant altercation between two individuals became a matter of significant and inherent public interest” due to “LaBeouf’s celebrity status.” LaBeouf also argues his statements address racial discrimination, “a hot-button topic of significant public concern.” The California Court of Appeal were not persuaded.

Under section 425.16, a defendant may move to strike claims “ ‘arising from any act … in furtherance of the [defendant’s] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.’ ” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) Section 425.16 does not completely insulate a defendant’s protected speech; rather, it provides a mechanism “for weeding out, at an early stage, meritless claims arising from” protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)

Courts apply a two-prong test when evaluating an antiSLAPP motion. (Baral, supra, 1 Cal.5th at p. 384.) “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.” (Ibid.) To determine whether the plaintiff’s causes of action arise from the defendant’s protected activity, we look at the “pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2); see also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the defendant meets that burden, the plaintiff then must “demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at p. 384.) The second prong involves an analysis similar to that used to evaluate a summary judgment motion. (Ibid.) “The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. [The court] accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” (Id. at pp. 384– 385.)

The anti-SLAPP statute protects, among other things, statements or conduct made “in connection with a public issue or an issue of public interest.” (See § 425.16, subd. (e)(3)–(4).) To fall within the scope of subdivision (e)(3) and (4) of the antiSLAPP statute, a defendant must establish: (1) that the challenged statement or conduct implicates a public issue or a matter of public interest; and (2) that the speech or conduct was made “in connection with” a public issue or a matter of public interest. (See § 425.16, subd. (e)(3)–(4); see also Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149 (FilmOn).) To determine whether challenged speech or other conduct involves a public issue or a matter of public interest, courts look to “certain specific considerations.” (FilmOn, supra, 7 Cal.5th at p. 145.) For instance, courts look to whether “the subject of the speech or activity ‘was a person or entity in the public eye’ or ‘could affect large numbers of people beyond the direct participants’ [citation]; and whether the activity ‘occur[red] in the context of an ongoing controversy, dispute or discussion’ [citation], or ‘affect[ed] a community in a manner similar to that of a governmental entity’ [citation].” (Id. at pp. 145–146.)

“ ‘[P]ublic interest’ does not equate with mere curiosity,” and “the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy … .’ [Citation.]” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132–1133 (Weinberg).) As for the second requirement, the California Supreme Court recently articulated a two-part test to determine whether speech or conduct was made “in connection with” an issue of public interest. (FilmOn, supra, 7 Cal.5th at p. 149.) “First, we ask what ‘public issue or … issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech. [Citation.] Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” (Id. at pp. 149–150.) The second part of this test “address[es] the specific nature of [the defendant’s] speech and its relationship to the matters of public interest.” (Id. at p. 152.)

LaBeouf contended his celebrity status makes “his day to day conduct ‘a public issue or an issue of public interest.’ ”

The California Court of Appeal disagreed. While courts have held the public’s interest in the life and work of entertainers and other celebrities can create an issue of public interest for purposes of section 425.16, subdivision (e) (see Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 678), it is the subject of the defendant’s speech or conduct that determines whether an issue of public interest has been implicated for purposes of anti-SLAPP protection. (See FilmOn, supra, 7 Cal.5th at pp. 145–146.) The defendant’s celebrity status, on its own, is not sufficient to render anything the defendant says or does subject to anti-SLAPP protection. (Id. at p. 152; see also D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226 (D.C.) [“No authority supports the [defendant’s] broad proposition that anything said or written about a public figure or limited public figure in a public forum involves a public issue.”].)


See Bernstein v. LaBeouf.

If you are faced with California’s Anti-SLAPP issues and dispicable defamation, you need a highly skilled and tenacious attorney as your advocate!  Contact the Law Office of Robert Rodriguez! 209-596-4263.

Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the California Court of Appeal.