Friday, January 3, 2020
By a MetNews Staff Writer
The First District Court of Appeal has held that an anti-SLAPP motion lies as to an action by a man who claims he was defrauded by persons who represented that they would produce a film on the Syrian refugee crisis, worthy of 2016 Academy Award consideration, but had done no more by 2018 than amass some raw footage.
Tuesday’s opinion by Justice Carin T. Fujisaki of Div. Three reverses an order by San Mateo Superior Court Judge Susan Greenberg denying a special motion to strike made by defendants Stephen Brown and Ignite Channel, Inc. Those defendants had exacted $180,000 from plaintiff Bassel Ojjeh upon the representation that they would produce a documentary on human suffering in Syria.
The defendants’ conduct, Fujisaki said, comes under the “catchall provision” of the Anti-SLAPP statute, Code of Civil Procedure §426.16, which says that protected activity includes “any…conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
The jurist found crucial that “some” steps toward producing a documentary had, in fact, been taken, declaring:
“[W]e conclude defendants’ alleged conduct of soliciting investment funds and performing partial work on the documentary was, for anti-SLAPP purposes, in furtherance of producing the documentary in the exercise of the right of free speech.”
Allegations of Complaint
According to the complaint, filed April 17, 2018:
“Despite Plaintiff’s numerous requests to see progress of the Documentary, Plaintiff has only shown him very short clips (approximately 10 minutes or less), that are, by Plaintiff’s own description, raw and not ready for an audience. In December 2017, Brown told Plaintiff that production was close to ﬁnished.
“Since then, Brown and Ignite have continued to be difficult to reach and evasive in communications to Plaintiff, and have not shown evidence of any signiﬁcant work on the Documentary.”
Trial Court Ruling
Greenberg ruled on April 26, 2018 that an anti-SLAPP motion, pursuant to Code of Civil Procedure §426.16, does not lie because no protected speech is implicated by the allegations of the complaint. The trial court judge declared:
“None of the causes of action is based on an act in furtherance of Defendants’ protected right of free speech. Rather, they are based on the failure to do acts in furtherance of the right of free speech….”
“Breaching the agreement by failing to make the film does not help to advance the rights of free speech or assist in the exercise of that right.”
Having determined that the first prong of the anti-SLAPP statute—protected speech—was not satisfied, Greenberg said she saw no need to consider the second prong: whether the plaintiff was able to show a probability of prevailing on the merits.
Explaining the reversal, Fujisaki wrote:
“Plaintiff makes the…argument that the anti-SLAPP law was never intended to apply in a lawsuit that is not attempting to silence the defendants’ exercise of speech, but rather alleges the defendants should have engaged in the speech activity as promised. While this may or may not be a valid distinction in cases involving a defendant’s complete failure to perform, the purpose of the anti-SLAPP law—to encourage public participation in matters of public significance by authorizing early judicial screening of lawsuits that would chill the exercise of free speech and petition…—is still advanced where, as here, a complaint targets the quality or sufficiency of the defendants’ actions in preparing to exercise their right to free speech on a matter of public significance.”
Fujisaki also wrote:
“It goes without saying that in order to produce a documentary, a filmmaker must obtain footage and collect information on the subject matter. Thus, defendants’ hiring and use of a cinematographer to obtain on-location footage and their maintaining an online journal of refugees’ stories to gather ideas for the production are reasonably viewed as conduct ‘in furtherance’ of the documentary, however unsatisfactory or dilatory plaintiff viewed their performance.”
“Defendants’ solicitation of investment funding is also reasonably viewed as conduct in furtherance of the documentary’s production. As the complaint alleged, defendants sought investor funding from plaintiff for the stated purpose of financing the filming and production of the documentary, and there appears no dispute that application of such funding toward the documentary would have furthered or helped advance the project within the meaning of the catchall provision….[I]t is of no consequence at this stage of the analysis that the solicitation was allegedly made with a fraudulent motive.”
The appeals court remanded the case so that the trial court might determine, in the first instance, whether there was a probability that Ojjeh would prevail on the merits.
The case is Ojjeh v. Brown, 2020 S.O.S. 1.
Copyright 2020, Metropolitan News Company