Filed 6/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
KIARA BELEN, B304642
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV26534)
v.
RYAN SEACREST PRODUCTIONS,
LLC, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Michelle Williams Court, Judge. Affirmed with
modifications.
Loeb & Loeb, David A. Grossman and Todd J. Densen for
Defendants and Appellants.
The Cochran Firm California and James A. Bryant for
Plaintiff and Respondent.
_________________________
INTRODUCTION
Plaintiff, a model, participated in a fashion show that was
filmed and aired on television in an episode of the reality series
Shahs of Sunset. The model never signed a release authorizing
or agreeing to be filmed. She sued the show’s production and
media companies for various causes of action after discovering
she was filmed while changing clothes in a dressing area
designated for models, and that her “nearly fully nude body had
been exposed on national television” during the airing of the
show.
Defendant production and media companies filed a special
motion to strike the model’s complaint as a strategic lawsuit
against public participation under the anti-SLAPP statute, Code
of Civil Procedure section 425.16. They first argued the model’s
claims arose from protected activity, that is, the production and
broadcast of a television show involving issues of public interest.
They next argued she is unlikely to prevail on her causes of
action.
While the trial court agreed that the acts complained of
constitute protected activity, it denied the special motion to
strike, finding that the model had established a probability of
prevailing on the merits of her causes of action.
We affirm with one modification.
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Factual Background
Kiara Belen (Belen) is a “well-known model” who gained
her celebrity status as a runner-up in Cycle 19 of America’s Next
Top Model. Belen has been a professional runway and print
model since 2012—having appeared in commercial print works
2
for designers and participated in fashion shows around the world,
including New York Fashion Week and Paris Fashion Week.
Ryan Seacrest Productions, LLC (RS Productions), Ryan
Seacrest Enterprises, Inc. (RS Enterprises), Truly Original, LLC
(Truly Original), and Bravo Media, LLC (Bravo) are involved in
the filming, production, and dissemination of Shahs of Sunset—a
television series which follows the lives of a group of affluent
Iranian Americans living in Beverly Hills. We refer to the
entities (RS Productions, RS Enterprises, Truly Original, and
Bravo) collectively as appellants.
On October 11, 2016, during Los Angeles Fashion Week,
Belen participated as a runway model in a fashion show
featuring designer Erik Rosete’s (Rosete) clothing line, Mister
Triple X. Other celebrity models and television personalities also
participated in the show, including former supermodel Janice
Dickinson and a cast member from Shahs of Sunset, Golnesa
Gharachedaghi (GG).
B. Civil Complaint
On July 29, 2019, Belen filed a complaint against
appellants for intrusion / right to privacy, tortious appropriation
of name or likeness, intentional infliction of emotional distress,
negligent infliction of emotional distress, and negligence. She
alleged the following in her complaint.
On July 30, 2017, Bravo aired episode 3 of season 6 of
Shahs of Sunset. Parts of the episode focused on cast member
GG participating as a model in Rosete’s fashion show during Los
Angeles Fashion Week in Fall of 2016—the same fashion show in
which Belen participated. “Included in the filming of these
scenes, were the female wardrobe changing areas, in which the
models undress and change.” Belen alleged appellants made
3
“unauthorized uses of [her] likeness in two instances.” First, they
showed Belen “changing clothes in a private dressing area
designated for the female models in the fashion show, with her
nearly completely nude body exposed.” Second, they showed
Belen walking down the runway during the fashion show as she
is modeling; during this scene, GG’s friend and cast member Reza
Ferahan (Reza) refers to Belen as “this bitch.”
Shortly after the episode aired, Belen was contacted by
several friends who inquired whether she was aware she had
appeared “naked” on the show. Belen was “absolutely mortified”
to discover that her “nearly fully nude body had been exposed on
national television.” Belen had a “reasonable expectation of
privacy while she was in the private designated changing area”
and “had absolutely no idea she was being filmed by [RS
Productions’] crew.” She felt “completely violated.” She was
further “objectified . . . in an offensive way” by the comments
made by GG’s cast member during the scenes in which Belen
appeared.
Belen argued appellants’ conduct—filming her naked body
in a private changing room and disseminating the footage
without her consent to millions of people over television and the
internet—constitutes a serious invasion of her right to privacy
and caused her “severe and extreme emotional distress.” She
further argued appellants’ acts were “intentional, extreme, and
outrageous” and with “reckless disregard of the probability of
causing [her] serious emotional distress.”
She argued that appellants gained “a commercial benefit or
some other advantage” by using Belen’s name, likeness, identity,
and persona without her consent, causing her emotional and
economic harm.
4
She also argued appellants “negligently intruded on [her]
privacy” by filming and airing her “nearly naked body to millions
of people without her consent.” Belen alleged appellants had a
duty to exercise reasonable care in the protection of her privacy
in dressing rooms “where women were at their most vulnerable.”
She alleged appellants “breached their duty and were negligent
in their actions, misrepresentations, and omissions” by filming
her both clothed and nude without her consent and airing footage
of her image/likeness without her consent.
She requested the court award her compensatory damages,
general damages, special damages, exemplary and punitive
damages, restitution, attorney fees and costs, temporary and
permanent injunctive relief.
C. Special Motion to Strike Belen’s Complaint
On November 12, 2019, appellants filed both their answer
and a special motion to strike Belen’s complaint as a strategic
lawsuit against public participation under the anti-SLAPP
statute, citing Code of Civil Procedure1 section 425.16,
subdivision (e)(3) and (4).
In their motion, appellants summarized what took place
during the 43-minute-long episode. GG arrives at the Beverly
Hilton Hotel conference room that “serve[d] as a staging area for
the show.” GG drinks champagne to calm her nerves before she
walks the runway. Her cast member Shervin Roohparvar
(Shervin) “arrives at the hotel conference room and greets GG,
reassuring her that she looks good.” It is at this point, nearly
1 Further undesignated statutory references are to the Code
of Civil Procedure.
5
18 minutes into the episode, that Belen “appears in the
background for one or two seconds when Shervin greets GG.”
As for the first incident Belen raised in her complaint,
appellants contended she appeared on screen “for less than two
seconds” while she was “changing clothes in the background of
the conversation between GG and Shervin.” They argued what
Belen referred to as a “private dressing area” is actually a large,
open, conference room at the Beverly Hilton Hotel “where several
dozen people including photographers, male and female models,
designers, makeup artists, stylists, multiple male [Shahs of
Sunset] cast members, and hotel staff are seen entering, exiting,
and actively moving about the space.” The area was far from
private, filled with more than a dozen individuals and “with a
constant flow of individuals moving in and out of the conference
room.” Appellants pointed out the production crew for the Shahs
of Sunset episode had “several large cameras as well as extensive
lighting and audio equipment conspicuously set up within the
space.” The production team had “made an announcement to the
room that an episode of the series was being filmed.”
As for the second incident, Shahs of Sunset cast members
are shown seated in the audience, watching as models walk down
the runway for the Mister Triple X show. Belen is shown walking
down the runway “for less than three seconds.” The camera then
cuts to Reza and Shervin in the audience, as Reza says, “This
bitch knows how to walk.” Shortly after, cast member GG is
shown walking onto the runway. Belen does not appear in any
portion of the episode thereafter.
Appellants stated Belen appears “for approximately five
seconds” in the 43-minute-long episode and that her name is
never identified or mentioned in the episode. They characterize
6
the incident as a “fleeting appearance in the background of an
episode [of] the Shahs of Sunset.” They argued her claims “aris[e]
from incidental and de minimis footage” and should not impair
their constitutionally protected right of freedom of speech and
expression. Belen’s claims “concern oral statements made in the
broadcast by cast members as well as the broadcast itself” made
available to the public by way of a public forum. They concluded
Belen’s claims stem from protected activity. In addition,
appellants argued the footage at issue depicts cast member GG’s
attempt to model and is “relevant to GG’s storyline.” They
claimed Belen “herself is proof of the fact that the experience of
being a model is an issue of public interest” as she previously
gained celebrity status competing in a reality show to become
America’s Next Top Model.
Appellants also argued RS Productions and RS Enterprises
“had no involvement with the filming or [p]roduction of the
particular episode at issue in this case.” Finally, they contended
Belen cannot demonstrate a probability of success on any of her
causes of action.
In support of the special motion to strike the complaint,
appellants lodged with the court a flash drive including the
Shahs of Sunset episode in question, which we have reviewed.
They also included a sworn declaration by Alan Brooks (Brooks),
the production manager at Truly Original. He stated Truly
Original was the production company that produced the subject
episode, and RS Productions and RS Enterprises were never
involved in the filming or production of this particular episode.
Truly Original had “received permission” from the hotel and
fashion designer Rosete “to film at the time and location of the
scenes in question.” Brooks stated he was “present at the filming
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of the fashion show scenes in the [e]pisode” and said the dressing
area was not private; it was a conference room at the Beverly
Hilton Hotel, which was large and well lit with many people
present, including models, designers, photographers, makeup
artists, stylists, Shahs of Sunset cast members, and hotel staff.
Brooks stated the production crew for the series set up large
cameras, lights, and audio room. The production team made an
announcement to the room that an episode of the series was
being filmed, and posted signs indicating the production crew.
“At no point in time did any of the models, including [Belen],
request not to be filmed or express they were uncomfortable with
our presence in any way.”
D. Belen’s Opposition to the Special Motion to Strike
On January 30, 2020, Belen filed her opposition to the
special motion to strike, and argued her causes of action do not
arise from acts in furtherance of appellants’ rights to free speech
on a public issue. She contended videotaping her while she was
changing and “her intimate parts were exposed” was a criminal
act in violation of Penal Code section 647, subdivision (j)(1) and
(4)(A). Belen also argued she established a probability of
prevailing on her claims.
Belen’s opposition included a declaration, where she
alleged: Since 2012, Belen has participated in fashion shows
around the world, garnering celebrity model status. In support,
she provided a copy of an article from Hollywood Glam Magazine
entitled Mister Triple X Lights LA Fashion Week on Fire!, where
her name was mentioned as one of the celebrity guests.
According to Belen, there were two separate changing
rooms at the venue for the models. “Neither of the two changing
rooms was accessible to the public, as only authorized personnel
8
was permitted to enter into this segregated area of the venue.”
The first changing room was a large crowded room filled with
models, designers, and hair and makeup technicians. This room
remained open and was less private and secure than the second
changing room. The second changing room was “located further
down the hall in a small secluded enclosed suite, meant for only
high profile or celebrity model participants and their guests.”
The second changing room was “highly secured, as access to entry
was granted by a guard outside of the enclosed doors.” The
second room was “considerably more private and intimate” and
there were never more than 15 people in this room at any point in
time. In support, Belen provided screen-shots of the episode
depicting the two separate changing rooms.
When her friends informed her she appeared “basically
naked” on the episode, Belen was “extremely confused” as she
was never asked to be filmed, nor gave anyone permission to film
her for any Shahs of Sunset episode. She argued appellants,
being television producers, were “well aware of the fact that it is
industry standard to obtain a release from anyone whose likeness
you will likely use in your show.”
Belen was shocked and “absolutely devastated” when she
viewed the episode, as her “private body parts were exposed to
the entire world.” She felt completely violated. She referred to
the part of the episode where Shervin arrives to the dressing
room as a guest of GG and exclaims, “I just walked into this room
and there are nothing but naked models running around, you
know . . . its . . . its so awesome!” After Shervin makes that
statement, “the producers of the show specifically identify footage
where [Belen is] undressing and down to only [her] underwear,
with [her] bare body, including [her] breasts fully exposed.”
9
Belen maintained this was not a scene where she “happened to be
in the direct background completely blurred out” while GG and
Shervin were conversing; she was “featured specifically by the
producers of the show to provide visual emphasis” of Shervin’s
excited exclamation that there were “ ‘naked models everywhere.’
” In support, she provided screen-shots from these specific scenes
of the episode.
Belen stated “with one hundred percent certainty” there
was never any announcement made to the room about any
filming while she there. At no point did Belen see any cameras or
signs stating “filming in process.” Belen provided screen-shots of
various scenes from the episode which show the changing room at
different angles, none depicting any signs that filming was in
progress. Regardless, “even assuming that [Belen] did realize
there was a videographer in the room, it would be beyond all
standards to film female models while their bare bodies are
exposed.”
The show’s “sexual exploitation” of Belen’s body was
“extremely painful” to her for two reasons: First, she had
undergone years of therapy following a sexual assault in 2014.
Upon seeing the episode, Belen became nauseous: “Once again
my power over my body was stripped from me to be exposed to
hundreds of thousands if not millions of people I didn’t know” and
“brought up the pain of [her] sexual assault.” Second, Belen was
four months pregnant at that time and her body “was undergoing
serious changes.” She felt sickened that the show’s producers
exploited her pregnant body.
10
As a result of the emotional distress she suffered from
appellants’ acts, Belen suffered sleepless nights and was “in a
perpetual state of nausea and serious anxiety” that caused her to
return to therapy.
E. Trial Court’s Ruling
On February 14, 2020, the trial court denied the special
motion to strike Belen’s complaint.
This appeal timely followed.
DISCUSSION
A. Standard of Review
We review a trial court’s ruling on a special motion to
strike pursuant to section 425.16 under the de novo standard.
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; Park
v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1067.) “In other words, we employ the same two-
pronged procedure as the trial court in determining whether the
anti-SLAPP motion was properly granted.” (Mendoza v. ADP
Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644,
1652.)
As always, “our job is to review the trial court’s ruling, not
its reasoning.” (People v. Financial Casualty & Surety, Inc.
(2017) 10 Cal.App.5th 369, 386.) We consider “the pleadings, and
supporting and opposing affidavits stating the facts upon which
the liability or defense is based.” (§ 425.16, subd. (b)(2).) In
considering the pleadings and declarations, we do not make
credibility determinations or compare the weight of the evidence;
instead, we accept the opposing party’s evidence as true and
evaluate the moving party’s evidence only to determine if it has
11
defeated the opposing party’s evidence as a matter of law.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 269, fn. 3 (Soukup).)
B. Applicable Law
Section 425.16 provides “[a] cause of action against a
person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).) An “ ‘act in furtherance of a person’s right
of petition or free speech . . . in connection with a public issue’ ” is
defined in section 425.16 to include, in relevant part: “any
written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public
interest,” and “any other conduct in furtherance of the exercise of
the constitutional right of . . . free speech in connection with a
public issue or an issue of public interest.” (Id., subd. (e)(3)
& (4).)
The Legislature enacted section 425.16 to prevent and
deter “lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances.” (§ 425.16, subd. (a).) The purpose of the
anti-SLAPP law is “not [to] insulate defendants from any liability
for claims arising from the protected rights of petition or speech.
It only provides a procedure for weeding out, at an early stage,
meritless claims arising from protected activity.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) Section 425.16,
subdivision (a) provides this statute “shall be construed broadly.”
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When a party moves to strike a cause of action (or portion
thereof) under the anti-SLAPP law, a trial court evaluates the
special motion to strike by answering two questions: (1) has the
moving party “made a threshold showing that the challenged
cause of action arises from protected activity” (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056); and, if it has, (2) has the non-
moving party demonstrated that the challenged cause of action
has “ ‘minimal merit’ ” by making “a prima facie factual showing
sufficient to sustain” a judgment in its favor? (Baral, supra,
1 Cal.5th at pp. 384–385; Navellier v. Sletten (2002) 29 Cal.4th
82, 93–94; see also § 425.16, subd. (b)(1)). If the first prong is
satisfied by the moving party, the burden then shifts to the non-
moving party to demonstrate that each challenged claim based on
protected activity is legally sufficient and factually substantiated.
(Baral, at p. 396.)
C. Prong 1: Arising from Protected Activity
Appellants argue Belen’s claims arise from the production
and broadcast of an episode of Shahs of Sunset, which they
contend is protected activity. We agree.
The claims in Belen’s complaint arise out of and are based
on appellants’ acts of filming, producing, and airing portions of a
fashion show as part of episode 3 of season 6 of the Shahs of
Sunset series. Belen’s claims also arise out of oral statements
made by the series cast-members (Shervin in the first instance,
and Reza in the second instance) about Belen, which was also
part of the same episode broadcast to the public.
It has long been accepted that the “creation of a television
show is an exercise of free speech.” (Tamkin v. CBS
Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 (Tamkin).)
The First Amendment of the United States Constitution protects
13
the creative elements of an artistic work. (See Winter v. DC
Comics (2003) 30 Cal.4th 881, 891–892.) “ ‘[T]he creative process
must be unfettered, especially because it can often take strange
turns, as many bizarre and potentially offensive ideas are
suggested, tried, and, in the end, either discarded or used. . . . [¶]
. . . We must not permit juries to dissect the creative process in
order to determine what was necessary to achieve the final
product . . . . Creativity is, by its nature, creative. It is
unpredictable. Much that is not obvious can be necessary to the
creative process.’ ” (Tamkin, at pp. 144–145, italics omitted.)
Here, appellants’ acts in helping “to advance or assist in the
creation, casting, and broadcasting of an episode of a popular
television show” constitutes an act in furtherance of appellants’
right of free speech. (Id. at p. 143.) It is undisputed that this
episode was broadcasted on a cable-TV network to hundreds of
thousands, if not millions, of viewers, which qualifies as
dissemination in a place open to the public or in a public forum.
Appellants must also establish that their acts—which form
the subject of Belen’s complaint—were in connection with a
public issue or an issue of public interest. (See § 425.16,
subd. (e).) While section 425.16 does not define the term “public
interest,” it does instruct us to construe the statute broadly and
provides that “it is in the public interest to encourage continued
participation in matters of public significance.” (Id., subd. (a).)
Further, an issue of public interest is any issue in which the
public is interested, and the issue need not be significant to be
protected by the anti-SLAPP statute. (Nygård, Inc. v. Uusi-
Kerttula (2008) 159 Cal.App.4th 1027, 1039; see Tamkin, supra,
193 Cal.App.4th at p. 143.) Here, the portions of the episode in
question depict cast member GG as she prepares for her modeling
14
gig at the Mister Triple X fashion show, feels anxiety about
falling on the runway, and compares herself to the professional
models surrounding her. Appellants assert this specific footage is
relevant to GG’s storyline in the episode and that the experience
of being a model is an issue of public interest. We agree. Belen
herself declared she gained celebrity status by participating in a
reality show to compete for the title of America’s Next Top Model.
The daily lives, experiences, and struggles faced by models
constitute an issue of public interest, as defined by Nygård.
“[T]he public interest in the subject matter of the program gives
rise to a constitutional protection against liability.” (Dora v.
Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 542 (Dora).)
In her brief, Belen “does not disagree that the creation of
the television episode in question is an exercise of free speech,
and will often constitute protected activity”; she argues, however,
that “such protections should not and do not extend to the whole
of the ‘artist’s expression’ where certain elements of that
expression cross the lines of protected expression, and enter a
realm where no such protections exist.” To this end, she argues
appellants’ acts—i.e., “the taking and dissemination of nude
images of a person without their consent”—violate Penal Code
section 647, subdivision (j)(4), and are not protected by the anti-
SLAPP statute. Relying on Flatley v. Mauro (2006) 39 Cal.4th
299 (Flatley), she contends illegal speech/conduct cannot
suddenly be afforded such protections, merely because such
conduct is incorporated into an expression that is a protected
activity.
It is true that the Flatley court held the anti-SLAPP statute
cannot be invoked by a defendant who claims that the plaintiff’s
cause of action arises from assertedly protected activity when
15
that activity is illegal as a matter of law and, for that reason, not
protected by the constitutional guarantees of free speech and
petition. (Flatley, supra, 39 Cal.4th at p. 317.) However, this
holding was limited to section 425.16 proceedings where “either
the defendant concedes, or the evidence conclusively establishes,
that the assertedly protected speech or petition activity was
illegal as a matter of law.” (Id. at p. 320, italics added.) Illegal
conduct as a matter of law under Flatley must be based on a
defendant’s concession or on uncontroverted and conclusive
evidence—neither of which is present at this stage of the
proceedings. (See ibid.) Appellants have not conceded that their
conduct was illegal, and Belen has not conclusively proven that
appellants’ conduct was illegal as a matter of law. Brooks’ sworn
declaration states Truly Original had “received permission” from
the hotel and fashion designer Rosete “to film at the time and
location of the scenes in question.” Given that fact, Belen has not
conclusively established with uncontroverted evidence that
appellants’ acts were taken to “intentionally” distribute images of
her body as prohibited in Penal Code section 647, subdivision
(j)(4)(A).
D. Prong 2: Probability of Prevailing on the Claims
The burden now shifts to Belen to show minimal merit, i.e.,
a probability of prevailing on her causes of action. We conduct an
inquiry into whether Belen stated “legally sufficient” claims and
made a “prima facie factual showing” with competent, admissible
evidence sufficient to sustain a favorable judgment on each of the
challenged causes of actions. (Baral, supra, 1 Cal.5th at pp.
384-385; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th
811, 821.) The moving party “may not rely solely on its complaint
. . . ; instead, its proof must be made upon competent admissible
16
evidence.” (San Diegans for Open Government v. San Diego State
University Research Foundation (2017) 13 Cal.App.5th 76, 95.)
We reiterate that we do not make determinations as to
credibility or compare the weight of the evidence; instead, we
accept the opposing party’s evidence as true and evaluate the
moving party’s evidence only to determine if it has defeated the
opposing party’s evidence as a matter of law. (Soukup, supra,
39 Cal.4th at p. 269, fn. 3.)
Preliminarily, we address appellants’ argument that Belen
cannot show a probability of prevailing against RS Productions
and RS Enterprises on any of her causes of actions because those
entities “did not commit any of the alleged torts” and were not
involved in the production and filming of the episode. Appellants
rely on the declaration of Truly Original’s production manager,
Brooks, who stated at no point were RS Productions and RS
Enterprises involved in the “filming or production” of this
particular episode. However, Brooks’ declaration does not defeat
Belen’s opposition and evidence as a matter of law. “A
defendant’s declaration denying that he or she engaged in the
conduct alleged in the complaint does not foreclose the possibility
that a fact finder could later find that he or she did in fact engage
in that conduct. Foreclosing an anti-SLAPP motion based upon
one version of the facts would irrationally and unfairly disregard
this possibility.” (Bel Air Internet, LLC v. Morales (2018)
20 Cal.App.5th 924, 939.)
Belen alleged in her complaint that all named entities were
in some manner responsible for the events and happenings
described and proximately caused injury and damage to her. She
specified that RS Productions, RS Enterprises, and Truly
Original produce the Shahs of Sunset series, and that the series
17
is aired on the cable-TV network Bravo TV, which is owned and
operated by Bravo. While appellants are correct in that Belen did
not specify in her sworn declaration (in support of her opposition
to appellants’ special motion to strike) in what capacity each of
the named entities were involved in the production, filming, and
broadcasting of the episode, we find she did not have to. The
evidence provided, i.e., the Shahs of Sunset episode itself,
identifies involvement by RS Productions, Truly Original, and
Bravo Media Productions between the 43:16 and 43:24 minute
marks. Ryan Seacrest was identified at the beginning of the
episode as the executive producer; Ryan Seacrest is the chief
executive officer of RS Enterprises.2 Furthermore, while Brooks
stated in his declaration that RS Productions and RS Enterprises
were not involved in the “filming or production” of this episode,
Brooks’ declaration provided no evidence or information as to
whether the two RS entities were involved in the distribution
and/or dissemination of this episode. Thus, the evidence in the
record sufficiently shows that all of the defendants named in
Belen’s complaint were involved in some degree in the production
and/or distribution of the show/episode; no evidence produced by
appellants defeat Belen’s evidence (that all named defendants
were involved to some degree) as a matter of law. (See Wilbanks
2 Per Evidence Code section 452, subdivision (c), we
judicially note the Statement of Information filed with the
California Secretary of State that provides Ryan Seacrest is the
chief executive officer, secretary, and chief financial officer of
RS Enterprises. (See Elmore v. Oak Valley Hospital Dist. (1988)
204 Cal.App.3d 716, 722 [a statement filed with the Secretary of
State becomes a document of which a court can properly take
judicial notice].)
18
v. Wolk (2004) 121 Cal.App.4th 883, 905 [consideration of a
defendant’s opposing affidavits does not permit a weighing of
them against plaintiff’s supporting evidence, but only a
determination that they do not, as a matter of law, defeat that
evidence].)
Finally, the case summary in the record provides that all
four named defendants, including RS Enterprises and RS
Productions, answered the complaint on November 12, 2019. If
the RS entities were erroneously named in the action, they
should have pursued a demurrer or a motion for summary
judgment. (See Wilbanks v. Wolk, supra, 121 Cal.App.4th at
p. 905 [“A motion to strike under section 425.16 is not a
substitute for a motion for a demurrer or summary judgment.”]
At oral argument, appellants relied on the following three
cases, none of which we find dispositive as they are factually
distinguishable.
In Wong v. Jing (2010) 189 Cal.App.4th 1354 (Wong),
dentist Wong filed a complaint for libel and intentional and
negligent infliction of emotional distress against Jing and his
wife Ma for allegedly making false claims in a review posted on
Yelp.com (Yelp) criticizing dental services Wong provided to Jing
and Ma’s young son. (Id. at pp. 1359–1360.) Jing and Ma filed
an anti-SLAPP motion to strike Wong’s complaint; they claimed
Wong could not show a probability of success on her claims.
(Ibid.) Wong opposed the motion. (Id. at p. 1362.) As part of
their reply, Jing provided a declaration stating that he wrote and
posted the review on Yelp without Ma’s knowledge. (Id. at
p. 1363.) Ma provided a declaration where she stated she did not
write or know about the review posted by Jing. (Ibid.) The trial
court denied the anti-SLAPP motion; it acknowledged Jing’s and
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Ma’s declarations concerning Ma’s non-involvement but noted the
issue was raised in their reply, precluding Wong the benefit of
discovery to controvert them. (Id. at pp. 1363–1364.) Under the
circumstances, the court found the declarations did not establish
Ma’s non-liability. (Id. at p. 1364.) The Court of Appeal
disagreed, however, and directed the trial court to dismiss all
causes of action against Ma, as there was “no evidence,
admissible or otherwise, suggesting that Ma had anything to do
with the review and its posting.” (Id. at p. 1368.) Unlike Ma’s
case in Wong, however, there was evidence here connecting the
RS entities to the actions complained of by Belen in her civil
complaint. Further, we did not receive any declarations from RS
Enterprises or RS Productions denying any and all involvement
with the filming, production, and broadcast/dissemination of the
Shahs of Sunset episode containing footage of Belen. And as
already noted, the declaration from the production manager at
Truly Original only denied the RS entities’ involvement in the
filming and production but not the dissemination and broadcast
of the episode/footage.
Appellants’ reliance on Abir Cohen Treyzon Salo, LLP v.
Lahiji (2019) 40 Cal.App.5th 882 (Abir) fails for similar reasons.
In Abir, a law firm sued their former client’s daughter Arta for
defamation for leaving negative reviews about the firm on Yelp,
Avvo, and the firm’s Facebook page. (Id. at pp. 885–886.) Arta
filed an anti-SLAPP motion seeking dismissal of the defamation
claim on the grounds that the law firm could not establish the
requisite minimal merit. (Id. at p. 886.) In support, she provided
a declaration stating she did not post any of the reviews; she also
provided a sworn declaration from her mother Nahid (the law
firm’s former client) who attested that she (Nahid) left the
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reviews. (Ibid.) The trial court ruled the law firm had not
carried their burden of showing their defamation claim had
minimal merit because their assertion that Arta posted the
online statements was speculative and not supported by the
evidence in the record. (Id. at p. 887.) The Court of Appeal
independently agreed with the trial court’s conclusion that the
law firm did not make a prima facie showing that Arta was
legally responsible for the postings underlying their defamation
claim, as the “posts themselves do not establish that Arta was the
author or poster, as none of the posts are in Arta’s name and
their content suggests that the author was the one represented
by . . . the firm—that is, Nahid.” (Id. at p. 889.) As already
explained, the same cannot be said in the case before us, as there
was evidence that each of the appellants were involved in some
degree with the filming, production, and/or distribution of the
episode.
Appellants next relied on Matson v. Dvorak (1995) 40
Cal.App.4th 539, which is inapposite as it analyzes the element of
publication in the context of a libel claim. The Court of Appeal in
that case found Matson’s cause of action for libel was properly
stricken by the trial court because Matson made no showing that
Dvorak had a responsible role in the publication of the campaign
literature that Matson claims was defamatory. (Id. at p. 542.)
The general rule for defamation is that only one who takes a
responsible part in the publication is liable for the defamation.
(Id. at p. 549.) The Court of Appeal determined that Dvorak’s
contribution of $999 to a political campaign cannot subject him to
liability in a defamation action for statements contained in a
publication by that political campaign when Dvorak was not
involved in the preparation, review, or publication of the
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campaign literature. (Id. at pp. 542, 549.) The issue there was
whether Matson made a sufficient showing that Dvorak was
involved in the publication at issue (id. at p. 548), where as here,
appellants only argue that the RS entities were not involved in
the filming or production. And, Belen’s complaint did not even
include a cause of action for libel/defamation.
We have viewed the episode at issue and now turn to each
of the causes of action.
1. Intrusion/Invasion of Privacy
The common law tort of invasion of privacy by intrusion
has two elements: (1) intrusion into a private place,
conversation, or matter, (2) in a manner highly offensive to a
reasonable person. (Shulman v. Group W Productions, Inc.
(1998) 18 Cal.4th 200, 231.) Belen must show appellants
“penetrated some zone of physical or sensory privacy
surrounding” her and that she had an objectively reasonable
expectation of privacy. (Id. at pp. 231–232.)
Belen provided evidence that she was assigned to the
second dressing room, meant for celebrity models such as herself.
The various screen-shots of the episode show there were two
different dressing rooms, and that the second dressing room was
more private and much less crowded than the first dressing room.
The screen-shots also show there was a security guard standing
outside the door to the second dressing room, allowing access to
authorized persons only. The episode footage shows Belen as she
undressed in the second, more private dressing room, and further
shows her almost fully naked, her breasts exposed (with small
blurs covering the areola of her breasts), wearing only
underwear. She provided evidence that she had a reasonable
expectation of privacy that she would not be filmed while nude
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with her intimate body parts exposed while changing clothes in a
private dressing room. That the room was guarded supports a
reasonable expectation that the room was not open to, and was
protected from, those not properly involved in styling, dressing,
and undressing the models within.
Belen also provided evidence that the filming was done
without her knowledge or consent, as she did not hear any
announcement made that filming was in progress and did not see
any signs in the vicinity announcing that she was subject to
filming. The footage of her nearly completely naked body
broadcast and “exposed [her] to hundreds of thousands if not
millions of people [she] didn’t know,” causing her severe
emotional distress, sleepless nights, nausea, and requiring her to
return to therapy.
Belen has shown a probability of success on her first cause
of action for invasion of privacy.
2. Tortious Misappropriation of Name or Likeness
A cause of action for common law misappropriation of name
or likeness is pleaded by alleging: “ ‘ “(1) the defendant’s use of
the plaintiff’s identity; (2) the appropriation of plaintiff’s name or
likeness to defendant’s advantage, commercially or otherwise;
(3) lack of consent; and (4) resulting injury.” ’ ” (Maxwell v.
Dolezal (2014) 231 Cal.App.4th 93, 97.)
We find Belen has submitted evidence for the first, third,
and fourth elements, for the same reasons discussed in the
preceding section on intrusion. As to the second element, even
though Belen’s name was never identified or used throughout the
episode, her face and nearly nude body are shown while in the
dressing room. Appellants do not contest that Belen is a public
figure. It is undisputed she is a well-known model who gained
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celebrity status as runner-up in America’s Next Top Model and
has served as a professional runway and print model since 2012.
Belen provided evidence that footage of her nearly nude body was
also used as material for the preview clips promoting and
advertising the episode on the website. While use of Belen’s
runway walk does not constitute common law misappropriation
(see Dora, supra, 15 Cal.App.4th at p. 542 [the public interest in
the subject matter of the program gives rise to a constitutional
protection against liability]), the filming and use of Belen’s face
and nearly nude body constitute appropriation of Belen’s likeness
to appellants’ advantage (see ibid. [celebrities and noncelebrities
have the right to be free from the unauthorized exploitation of
their likeness]).
Belen has established a probability of prevailing on her
second cause of action.
3. Intentional Infliction of Emotional Distress Claim
A cause of action for intentional infliction of emotional
distress requires: 1) extreme and outrageous conduct by
appellants with the intention of causing, or reckless disregard of
the probability of causing, emotional distress; 2) severe or
extreme emotional distress; and 3) actual and proximate
causation of the emotional distress by the appellants’ outrageous
conduct. (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.)
Conduct is considered outrageous when it is “so extreme as to
exceed all bounds of that usually tolerated in a civilized
community.” (Ibid.)
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Belen provided evidence that appellants’ videotaping and
broadcasting footage of her while she was undressed and
changing in the dressing room, without her consent, caused her
to suffer severe emotional distress. She explained how appellants
specifically cut to footage of her naked in her underwear while
changing clothes, with only the areolas of her breasts blurred out,
in conjunction with cast member Shervin exclaiming “I just
walked into this room and there are nothing but naked models
running around, you know . . . its . . . its so awesome!” Having
watched the episode, we disagree with appellants that Belen’s
appearance was de minimis and that she was merely in the
background while GG and Shervin conversed. We agree with
Belen that she was featured specifically by the producers of the
show to provide a visual emphasis of Shervin’s exclamation of
“naked models everywhere.” That appellants wanted a visual
emphasis is brought home by the fact that they did not blur out
Belen’s entire breasts, only the areolas. Appellants intentionally
or recklessly exploited Belen’s intimate body parts for their own
purposes. The first element is satisfied.
Belen’s sworn statements establish the second and third
elements for intentional infliction of emotional distress. She
stated she suffered emotional distress as a result of appellants’
acts, resulting in sleepless nights and “a perpetual state of
nausea and serious anxiety.” She explained how the show’s
filming and airing of her nearly fully naked pregnant body caused
her extreme pain and required therapy as it “brought up the pain
of [her] sexual assault.”
Belen has shown a probability of success on her third cause
of action.
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4. Negligence / Negligent Infliction of Emotional
Distress Claim
Belen alleged both negligence and negligent infliction of
emotional distress as the last two causes of actions on her
complaint. However, there is no independent tort of negligent
infliction of emotional distress. (Potter v. Firestone Tire & Rubber
Co. (1993) 6 Cal.4th 965, 984.) “The tort is negligence, a cause of
action in which a duty to the plaintiff is an essential element.”
(Ibid.) “A claim of negligent infliction of emotional distress is not
an independent tort but the tort of negligence to which the
traditional elements of duty, breach of duty, causation, and
damages apply.” (Wong, supra, 189 Cal.App.4th at p. 1377.) The
trial court agreed and found “there is no tort of negligent
infliction of emotional distress” and proceeded to analyze Belen’s
negligence claim. However, the trial court neglected to strike the
cause of action for negligent infliction of emotional distress. We
modify the judgment in that respect and strike that cause of
action because no such independent tort exists.
As for negligence, Belen declared that appellants, as
television producers, were “well aware of the fact that it is
industry standard to obtain a release from anyone whose likeness
you will likely use in your show.” She argues it is industry
standard that photographers who have access to fashion show
changing rooms are not permitted and do not shoot or film
models when they are changing and their bodies exposed.
Although appellants may have been granted permission by the
hotel and fashion designer to film in the designated areas, Belen
established appellants still had a legal duty to disclose to her that
they are filming her in the guarded, more private dressing room,
so that she could deny them permission to film her or avoid being
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filmed when unclothed. While Brooks stated in his declaration
that an oral announcement was made, Belen stated “with one
hundred percent certainty” there was never any announcement
made in the second room about any filming and that she did not
see any cameras or signs stating “filming in process.” Belen
provided screen-shots from the episode that showed the second
dressing room at different angles; there were no signs stating
“filming in progress.”
Our State Supreme Court has made clear that “to recover
damages for emotional distress on a claim of negligence where
there is no accompanying personal, physical injury, the plaintiff
must show that the emotional distress was ‘serious.’ ” (Wong,
supra, 189 Cal.App.4th at p. 1377.) Moreover, serious emotional
distress may be found where a reasonable person would be
unable to adequately cope with the mental stress engendered by
the circumstances of the case. (Id. at pp. 1377–1378.) Having
one’s nearly fully naked body filmed and broadcast on television
and the internet, without consent or knowledge, would cause any
reasonable person, model or not, to suffer serious emotional
distress. We find Belen had shown the sort of serious emotional
distress with which a reasonable person would be unable to cope.
Belen has established a probability of prevailing on the
cause of action for negligence.
As a final note, both parties argue they are entitled to
recover attorney fees on appeal. (See Morrow v. Los Angeles
Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446.) This
issue is properly determined by the trial court upon appropriate
motion by the prevailing party.
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DISPOSITION
The order denying appellants’ special motion to strike the
complaint is affirmed, as modified: the separate cause of action
for negligent infliction of emotional distress is stricken from the
complaint, as it is part and parcel of the negligence cause of
action.
Respondent Belen is awarded costs on appeal.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
BIGELOW, P. J.
WILEY, J.
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