Metropolitan News-Enterprise

 

Wednesday, October 26, 2022

 

Page 1

 

Notoriety of Defendant Doesn’t Render Suit Against Him a ‘Public Issue,’ C.A. Declares

Other Opinion Says Action Involving Management of Filming Ranch,

Though Famous, Also Does Not Implicate Anti-SLAPP Statute

 

By a MetNews Staff Writer

 

The notoriety of a multi-millionare playboy whose antics have attracted widespread press coverage is not enough to render a defamation action against him an issue of public interest for purpose of the anti-SLAPP statute, nor is the fame of a Simi Valley ranch where various television shows have been shot sufficient to bring a lawsuit over statements concerning management of that site under the statute, courts of appeal have decided.

Each appeal from the denial of a special motion to strike was decided on Tuesday by a division of this district. The opinions were not certified for publication.

Presiding Justice Laurence D. Rubin of Div. Five authored the opinion in the defamation case. The defendants are Dan Bilzerian, whose wealth reportedly exceeds $200 million, and the Canadian-based Ignite International Ltd., of which Bilzerian is CEO and founder.

Bilzerian identified himself in a declaration in the case as “an actor, Internet personality, and professional poker player, with a social media following of approximately 50 million people.”

His alleged exploits include winning $10.8 million in a single night of playing poker.

News stories on him have told of him allegedly kicking a model in the face in Miami in 2014, and days later being arrested on arrival at Los Angeles International Airport on a Nevada warrant based on allegedly “possessing an explosive with the intent to manufacture.” No criminal charges were brought based on the alleged battery and he pled guilty in Nevada on a misdemeanor charge in connection with the explosive and was fined $17,231.50.

 

AP

Depicted above is the “king of Instagram,” playboy Dan Bilzerian. The Court of Appeal held Tuesday that the mere fact of his celebrity status does not render a lawsuit against him for defamation one that implicates a “public issue” so as to give rise to an anti-SLAPP motion.

 

Newspaper’s Description

A July 10, 2020 article in the New York Post says:

“Ignite appears to have footed the bill for Bilzerian’s gun-toting, private jet-flying playboy lifestyle, paying him a salary as well as the travel expenses of other companies he owns.

“Bilzerian’s Instagram feed is littered with photos of him on yachts, private jets, playing chess while surrounded by stacks of cash and even posing with a massive gun with the Ignite logo carved into its side.

“Ignite sells a wide range of products, from water bottles and vodka to THC vape pens and CBD oils.”

According to the appellate brief of respondent Curtis Heffernan, who is suing Bilzerian and Ignite in Los Angeles Superior Court for defamation, “Ignite is in the business of selling cannabidiol (‘CBD’), cannabis, and beverage products.”

Heffernan was executive vice president and acting president of Ignite. Bilzerian fired him.

Questionable Expenditures

The ex-employee sued for wrongful termination, among other things, maintaining that he was ousted from his lucrative job because he said he would not confirm to auditors that certain expenses by Bilzerian were “100% business related.” Those expenses included the rental of a yacht, a two-night stay in London, a pool renovation, a bed frame, and a ping pong table.

Bilzerian said of Heffernan in a July 8, 2020 comment to the celebrity-news website TMZ, in response to an inquiry:

“He was fired for incompetence and negligence and Ignite will be bringing suit against him. His claim is not only frivolous; it is ridiculous.” 

Heffernan then filed an amended complaint in which he claimed that the statement to TMZ constituted actionable defamation. Judge Gregory Alarcon denied the defendants’ motion to strike the defamation claim pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16.

Contention on Appeal

In its opening brief, Bilzerian argued:

“Upon filing the initial complaint…, Plaintiff and his attorneys issued press releases and spoke to several press agencies knowing that the story would run, as Bilzerian himself is famous and Ignite is a public company. Thereafter, TMZ contacted Bilzerian and requested comment.”

The brief asserts that Heffernan is seeking “to chill Bilzerian’s valid exercise of free speech and right to defend himself and his company from false claims alleged by the Plaintiff.”

Heffernan responded that he is a nonpublic figure and that the dispute over his employment status is not of public interest. Bilzerian said in his reply brief:

“The reasons for the termination of a president of a public company, at minimum making him a quasi-public figure, might not, by itself, be a public issue, but when it is the subject of a public lawsuit alleging financial fraud brought by the former president, the subject is clearly one of importance to the public marketplace. Particularly in this case as Bilzerian himself is a public figure [with] over 65 million followers on social media.”

The brief adds that “TMZ contacted Bilzerian, which alone demonstrates that this is a subject worthy of public discussion and alone is evidence of a public issue.”

 

Bilzerian is seen in an Instagram posting.

 

 First Prong

In his opinion affirming that order, Rubin said that the defendants failed to show that Bilzerian’s allegation in an interview was protected activity, so as to satisfy the first prong of the statute. Although it appeared in a public forum, the TMZ website, he said, it did not relate to a “public issue.”

Rubin explained:

“First, it does not concern a person in the public eye. While Bilzerian submitted evidence that he, personally, had achieved a level of internet celebrity, there was no evidence that Heffernan had. Bilzerian argued that Heffernan had injected himself into the public debate by issuing press releases about this lawsuit itself. But Bilzerian’s evidence on this point was minimal, consisting only of the statement in his declaration that Heffernan’s “attorneys issued press releases and spoke to several press agencies....With no evidence that Heffernan himself had joined the conversation, we cannot conclude he was in the public eye. Second, the statement did not concern conduct that could directly affect a large number of people beyond the direct participants. The reasons for Heffernan’s termination could have little effect on anyone other than Heffernan. Third, the statement did not concern a topic of widespread public interest.”

The presiding justice acknowledged that some cases have proceeded on the assumption that statements about a publicly traded company necessarily implicate the public’s interest, but said that cases expressing a contrary view “are the better reasoned,” opining that the “mere fact that a corporation is publicly traded does not by itself” bring into play §425.16. He also said that it is not clear, in any event, that Heffernan’s claim as to the statement to TMZ implicates Ignite, as opposed to Bilzerian, personally.

The case is Heffernan v. Bilzerian, B311531.

Div. Six’s Opinion

Justice Kenneth Yegan wrote for Div. Six in affirming the denial of an anti-SLAPP motion filed by the defendant in an action for defamation, a discharged employee sued by his former employer, Big Sky Ranch Movie Ranch, for allegedly disseminating false information about its business operations.

The ranch spreads over more than 7,000 acres. It was where such television series as Rawhide, Gunsmoke, and Little House on the Prairie, as well as numerous movies, were filmed—just as filming had taken place at Corriganville Movie Ranch, also in Simi Valley, where Roy Rogers, Gene Autry, and the Lone Ranger had galloped on their steeds.

The defendant in an action filed by Big Sky Ranch Company LLC is its former location scout, Jeff Morris. In rejecting his contentions, Yegan said that his utterances to the Ventura County Film Commission are not protected under the category of statements in the course of official proceedings because that group is not an official body.

He added that the comments were not made on an issue of public interest, shielded by §425.16, setting forth:

“His statements about zoning designations and mismanagement, when distilled, concerned his view that Big Sky did not optimize the ranch as a business asset. Morris cites the ranch’s prominence in popular culture as satisfying this criterion but did not specify how these issues impacted ‘a broad segment of society’ or affected ‘a community in a manner similar to that of a government entity.’ The court correctly denied his motion.”

Other issues were addressed.

That case is Big Sky Ranch v. Morris, B310413.

Other Cases

Bilzerian has been involved in other recent litigation.

Last April 28, District Court Judge R. Gary Klausner awarded model Caley Rae Pavillard, the 2016 Miss Colorado USA, $90,000 in waiting-time penalties against Ignite for failing to pay her fee of $3,000 upon the end of a photoshoot. Pavillard testified that Bilzerian was present while she was photographed and that her lawyer contacted him personally in her effort to receive the agreed-upon remuneration.

On Aug. 11, a magistrate judge of the U.S. District Court for the District of Nevada, in granting a motion to compel a forensic examination of Bilzerian’s cell phone and tablet and/or laptop, described Bilzerian’s testimony at a deposition that he was never served with a subpoena as “questionable,” and noted he had, at several junctures, invoked the Fifth Amendment. The following day, the magistrate judge found that Bilzerian’s testimony with respect to availability of documents sought in discovery “is difficult to find credible” and ordered production.

A Nov. 15, 2012 order by the U.S. District Court for the District of Columbia notes Bilzerian’s involvement in business activities with his father, Paul Bilzerian, and the father’s former lawyer, now disbarred. It recites:

“Over two decades ago, Paul Bilzerian was convicted of securities fraud and conspiracy to defraud the United States and was sentenced to four years imprisonment and fined $1.5 million….Bilzerian was ordered to disgorge this amount in ill-gotten gains….That judgment remains unfulfilled.”

 

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