Filed 9/13/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
KELLY LI, B326887
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. 22SMCV00604
v.
JEFF JENKINS et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County. Mark A. Young, Judge. Affirmed.
Cameron Stracher, LLP, Cameron Stracher, Sara
Tesoriero; Howard M. Rupp and H. Marc Rupp for Defendants
and Appellants.
Weinberg Gonser Frost, Christopher Frost, John Maatta,
Ashley Morris, Weixuan Cai; and Frost, LLP for Plaintiff and
Respondent.
_________________________
SUMMARY
This case presents the question whether conduct that
occurred during the creation and development of a popular
television series was “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” within the meaning of the
catchall provision of the anti-SLAPP (strategic lawsuit against
public participation) statute. (Code Civ. Proc., § 425.16,
subd. (e)(4); further statutory references are to section 425.16.)
We conclude, adhering to the two-part test announced in
FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133
(FilmOn), that while the creation of a television show is an
exercise of constitutionally protected expression, in this case
there is no “functional relationship” between the activity
challenged in the complaint and the issue of public interest, as
required by FilmOn. Accordingly, we affirm the trial court’s
order denying defendants’ anti-SLAPP motion to strike plaintiff’s
complaint.
FACTS
1. The Complaint
Plaintiff Kelly Li sued defendants Jeff Jenkins, Jeff
Jenkins Productions, LLC, and Bongo, LLC, for breach of
contract and eight other causes of action. Plaintiff’s complaint
alleged she conceived the idea for and worked to develop and
coproduce a popular television program that came to be known as
Bling Empire on Netflix.
In the spring of 2018, plaintiff presented the idea for the
program to defendant Jenkins during a series of discussions, and
she gave Jenkins written development material concerning the
program. The two worked together for several months to refine
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the concept and develop the program. Plaintiff introduced most
of the principal cast to Jenkins.
Plaintiff and Jenkins entered into an agreement on May 2,
2018, by which they “agreed to work together for the development
and the potential production of an unscripted or digital project.”
Under the agreement, if the project was “ ‘set-up’ ” with a buyer,
Jenkins and his designees were to be executive producers and,
subject to buyer approval, plaintiff “shall be attached as an
executive producer.” Plaintiff was to be available “to render all
reasonable services . . . to enable [Jenkins] to develop, shop and
otherwise produce the Project.” Plaintiff was to secure the
participation of certain individuals and to work with Jenkins to
secure other participants.
Under the terms of the contract, plaintiff “was to receive
both a fixed fee and contingent compensation.” She was “entitled
to receive an episodic fee in the amount of twenty-five percent
(25%) of one hundred percent (100%) of Jenkin[s]’s executive
producer fee for each episode produced[,] together with a
five percent (5%) annualized increase. Additionally, [plaintiff]
was to receive contingent compensation in the amount of 20% of
100% of the Modified Adjusted Gross received and retained [by]
Jenkins [from] the Project or from any derivative work.”
The agreement entitled plaintiff “to receive an ‘executive
producer’ credit on each episode of the Production on which
[plaintiff] renders and completes all services as reasonably
required by [Jenkins].” The agreement also provided plaintiff
“shall be afforded meaningful consultation over all key creative
matters.”
The complaint alleged the term of the May 2, 2018
agreement was for one year, but if Jenkins were in active
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negotiation with a buyer at the end of the term, “the Agreement
would be extended for the time necessary to conclude such
negotiation. An agreement with a Buyer was entered into during
the term of the Agreement.”
The complaint further alleged that on May 7, 2019, plaintiff
and Jenkins executed another agreement “that on its face is
stated to be ‘as of’ February 11, 2019. That Agreement set forth
the terms under which [plaintiff] was to perform on-camera
services on the Program. Notwithstanding the fact that the
February 11, 2019 Agreement was an agreement that was
concerned with [plaintiff’s] on-camera services there is one line in
the Agreement that confirms and ratifies, without any condition
or reservation, the obligation owed to [plaintiff] under the May 2,
2018 Agreement, and states: [Plaintiff] shall be attached as an
‘Executive Producer’.”
Plaintiff’s complaint alleged defendants breached both
agreements “by excluding and failing to [p]rovide [plaintiff] with
the ability to fully perform services as an Executive Producer and
specifically excluding her as an Executive Produce[r] and from
inclusion in decisions and the ability to work or consult on the
Program.” Defendants failed to compensate plaintiff and give her
credit in the program as specified in the agreement. Plaintiff
further alleged that absent defendants’ material
misrepresentations and omissions, she “would not have allowed
Defendant Jenkins access to her materials, nor would she have
participated in the development and production process, and
never would have acquiesced to the sale of her property to
Netflix.”
Based on the same facts, plaintiff alleged causes of action
for breach of the implied covenant of good faith and fair dealing,
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intentional and negligent misrepresentation, fraudulent
inducement, and other claims.
2. The Anti-SLAPP Motion, Opposition and Reply
Defendants responded with an anti-SLAPP motion,
contending plaintiff’s claims arose “from acts in furtherance of
the right of free speech about matters of public interest” under
section 425.16, subdivision (e)(4) (hereafter, § 425.16(e)(4) or the
catchall provision).
Defendants contended all of plaintiff’s claims arose from
defendants’ alleged actions in creating and developing the
program, which are acts in furtherance of free speech rights.
They further argued the program “involves an issue of public
interest.” They explained the program “has been one of the most-
watched reality, docu-follow television series on Netflix”; it
“focuses on the lives of young, wealthy Asian-Americans living in
Los Angeles” and the idea for it grew out of the success of the
movie, Crazy Rich Asians; it “offers a unique view of Asian-
Americans and the issues they face as they navigate life in Los
Angeles”; it is “ ‘helping to start new conversations about what
Asians can look like or be doing on TV’ ”; and “[b]eneath the
Program’s glitz and gossip . . . is a commentary on class in
America, an exploration of the tensions inherent between
assimilation and heritage, and an education in the ethnic
nuances of East Asian high society in Los Angeles.”
Defendants also contended plaintiff could not establish a
probability of prevailing on her claim because the May 2, 2018
contract expired, was not enforceable, and was superseded by a
later agreement in which plaintiff signed a release.
Plaintiff’s opposition contended, among other things, that
while the creation of the content for a television show is protected
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speech, the conduct alleged in plaintiff’s complaint does not
“ ‘further the public conversation on an issue of public interest,’ ”
as required in FilmOn, and so did not qualify for statutory
protection under the catchall provision. Plaintiff also argued she
made a prima facie showing sufficient to sustain a favorable
judgment, pointing to correspondence suggesting that the later
agreements defendants cited were not intended to deprive her of
the benefits of the May 2, 2018 agreement.
In their reply, defendants did not mention FilmOn, but
argued their alleged wrongful conduct “is inextricably connected
to Defendants’ protected activity in developing the Program,” and
“[a]ccordingly, the public interest requirement of
section 425.16(e)(4) has been met.”
3. The Trial Court Ruling
Citing FilmOn and other cases, the trial court denied
defendants’ anti-SLAPP motion. The court concluded: “While
Defendants demonstrate[] some public interest in the subject of
the Program itself, Defendants do not show a functional
relationship between the challenged conduct—the decision to
exclude and not compensate Plaintiff as an Executive Producer
on the Program—and any public interest in the Project or the
Project’s themes. Certainly, this decision does not [aid] or
meaningfully contribute to the social issues cited.”
Because the court found defendants did not carry their
threshold burden, the court did not consider whether plaintiff
had demonstrated her claims had at least minimal merit.
Defendants filed a timely appeal.
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DISCUSSION
1. The Law
A defendant may bring a special motion to strike any cause
of action “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 . . . .” (§ 425.16, subd. (b)(1).) When ruling on an
anti-SLAPP motion, the trial court employs a two-step process.
The moving defendant bears the initial burden of establishing
that the allegations or claims “ ‘ “aris[e] from” protected activity
in which the defendant has engaged. [Citations.] If the
defendant carries its burden, the plaintiff must then demonstrate
its claims have at least “minimal merit.” ’ [Citation.] If the
plaintiff fails to meet that burden, the court will strike the
claim.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871,
884.)
Our review is de novo. (Geiser v. Kuhns (2022) 13 Cal.5th
1238, 1250 (Geiser).)
As relevant here, defendants must establish the conduct
alleged in the complaint was protected under the catchall
provision, which includes “any . . . 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.” (§ 425.16(e)(4).)
FilmOn directed courts to use a two-part test to determine
whether the activity from which a lawsuit arises falls within
section 425.16(e)(4)’s protection. (FilmOn, supra, 7 Cal.5th at
pp. 149–150.)
FilmOn requires courts to consider “the context as well as
the content of a statement in determining whether that
statement furthers the exercise of constitutional speech rights in
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connection with a matter 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. (§ 425.16,
subd. (e)(4).) Second, we ask what functional relationship exists
between the speech and the public conversation about some
matter of public interest. It is at the latter stage that context
proves useful.” (FilmOn, at pp. 149–150.)
FilmOn explained that “the second part of the test moves
from a focus on identifying the relevant matters of public interest
to addressing the specific nature of defendant’s speech and its
relationship to the matters of public interest.” (FilmOn, supra,
7 Cal.5th at p. 152.) The court “agree[d] . . . that ‘it is not enough
that the statement refer to a subject of widespread public
interest; the statement must in some manner itself contribute to
the public debate.’ ” (Id. at p. 150.) The context of the speech—
whether it was private or public, to whom it was said and for
what purpose, the identity of the speaker, the audience sought –
—helps courts decide whether the speech in question “contributes
to or furthers the public conversation on an issue of public
interest.” (Id. at pp. 149–150, 154.)
2. This Case
Here, the first step of the FilmOn inquiry is not at issue.
As the court explained in Geiser, “FilmOn’s first step is satisfied
so long as the challenged speech or conduct, considered in light of
its context, may reasonably be understood to implicate a public
issue, even if it also implicates a private dispute. Only when an
expressive activity, viewed in context, cannot reasonably be
understood as implicating a public issue does an anti-SLAPP
motion fail at FilmOn’s first step.” (Geiser, supra, 13 Cal.5th at
8
pp. 1253–1254.) The creation and development of a popular
television series that presents the issues defendants describe (see
ante, at p. 5) “may reasonably be understood to implicate a public
issue” (Geiser, at p. 1253), and the trial court accordingly found
that plaintiff’s claims “generally arise from Defendants’ alleged
actions in creating and developing” the program. Indeed,
plaintiff concedes “the creation of a television show is a matter of
public interest, broadly speaking.”
But “implicat[ing] a public issue” is not enough to pass the
FilmOn test for conduct protected under section 425.16(e)(4).
That requires an affirmative answer to the second question,
“whether the activity contributed to public discussion of that
issue.” (Geiser, supra, 13 Cal.5th at p. 1246; see also Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 625 [“we
reject the proposition that any connection at all—however
fleeting or tangential—between the challenged conduct and an
issue of public interest would suffice to satisfy the requirements
of section 425.16, subdivision (e)(4)”; “[a]t a sufficiently high level
of generalization, any conduct can appear rationally related to a
broader issue of public importance”].)
The conduct plaintiff identified in her complaint consisted
of excluding her as an executive producer, excluding her from
decisions and consultation on the program, and failing to
compensate and credit her as agreed. (See ante, at p. 4.) While
this liability-producing conduct arose, in the broadest sense, from
defendants’ activity during creation and development of a
popular television program, the challenged conduct had no
“functional relationship” to the public issue it implicates, i.e., the
program’s focus on the lives of young, wealthy Asian-Americans
and the issues they face as they navigate life in Los Angeles. On
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the contrary, the challenged activity did nothing to contribute to
public discussion of the program or the themes it presents, as
required by FilmOn and Geiser.
Defendants resist this conclusion, insisting we must focus
on “the entire context” in which their conduct arose and not
merely on the “ ‘private context’ in which the May 2018
Agreement was made.” We agree. But defendants do not explain
how their challenged conduct itself contributed to or furthered
the public discourse on the program or its themes. Defendants
recite only generalities, such as that the “concept and material”
for which plaintiff alleges she was not properly compensated “are
intertwined with the Program’s focus on public interest issues
related to the Asian-American experience.” That does not meet
the FilmOn standard.
Defendants rely on two cases, contending the
circumstances here are comparable to one of them (Ojjeh v.
Brown (2019) 43 Cal.App.5th 1027 (Ojjeh)) and distinguishable
from the other (Musero v. Creative Artists Agency, LLC (2021)
72 Cal.App.5th 802 (Musero)). These cases are applications of
FilmOn’s principles, but neither of them supports a different
conclusion from the one we reach. Here, what is absent is “ ‘some
degree of closeness’ ” (FilmOn, supra, 7 Cal.5th at p. 150)
between the challenged conduct and the asserted public interest.
In Ojjeh, the court found the complaint targeted conduct
falling within section 425.16(e)(4): “Specifically, defendants’
solicitation of investments from plaintiff [to produce a
documentary film on the refugee crisis in Syria] and their
performance of allegedly unsatisfactory work on the uncompleted
documentary constituted activity in furtherance of their right of
free speech in connection with an issue of public interest.” (Ojjeh,
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supra, 43 Cal.App.5th at p. 1032.) The court found the complaint
targeted protected speech and conduct. (Id. at pp. 1038–1040.)
Ojjeh then concluded the defendants’ conduct in
furtherance of the exercise of free speech “was ‘in connection
with’ a public issue or issue of public interest.” (Ojjeh, supra,
43 Cal.App.5th at pp. 1042, 1043–1044.) The court recited
evidence from the defendants describing how the film might best
generate empathy and raise public awareness of the plight of
Syrian refugees. (Id. at pp. 1043–1044.) The court found the
defendants’ work on the proposed documentary “constituted an
‘attempt to participate in a larger public discussion’ [citation].
Content-wise, defendants’ efforts in obtaining the interview
footage of individuals affected by and involved in the refugee
crisis and in maintaining an online journal of refugees’ stories
were directly related to the asserted issue of public interest and
were undertaken to contribute toward the public discourse on the
matter.” (Id. at p. 1044, italics added.)
No such connection is demonstrated here.
Defendants say plaintiff’s claims “arise from [their]
development and production” of the program, and their conduct
“involves the parties’ discussions surrounding the creation of a
television program.” Defendants say their decisions concerning
who would be involved creatively in the program were “a
necessary part” of the development and production of the
program. We fail to see how a private decision not to compensate
plaintiff, to exclude her from creative participation in, and to
deny her credit for a television program “contributes to public
discussion” of the Asian-American experience reflected in the
program.
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Defendants also discuss and distinguish Musero, but that
case does not assist them either. In Musero, a writer sued his
former talent agents, alleging they misappropriated his creative
work on a proposed television pilot and used the material in the
development of a competing project with another client. (Musero,
supra, 72 Cal.App.5th at p. 808.) The Musero court agreed “the
challenged conduct arises from protected speech activity” (ibid.),
observing that “[c]reating a television show is an exercise of
constitutionally protected expression” (id. at p. 816). But the
court found that “when the context and content of the specific
allegedly wrongful statements are considered, their degree of
connection to a topic of public interest is insufficient to warrant
protection under section 425.16, subdivision (e)(4).” (Id. at
p. 808.)
In Musero, the plaintiff’s pilot script involved a fictional
female attorney general, and the competing project focused on the
professional and personal life of former attorney general Eric
Holder. (Musero, supra, 72 Cal.App.5th at pp. 821–822.) The
court summarized by stating that “the creative aspects of his
work that [the plaintiff] claims [a defendant] misappropriated,
privately communicated to a targeted audience of one, whatever
its purported impact on [the other writer’s] work, did not
contribute to the public conversation about a matter of public
interest.” (Id. at p. 822.)
Musero tells us that the existence of some public interest in
the subject of a television program itself is insufficient, standing
alone, to demonstrate the necessary “closeness” or any functional
relationship between the challenged conduct—here, the exclusion
of plaintiff from participation in the project and the failure to
compensate and credit her as executive producer—and any public
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interest in the program or its themes. Indeed, this case presents
a classic example of an attempt to “ ‘defin[e] [a] narrow dispute
by its slight reference to the broader public issue.’ ” (Musero,
supra, 72 Cal.App.5th at p. 820, quoting FilmOn, supra, 7 Cal.5th
at p. 152.)
In sum, the conduct challenged, while it “implicate[s]” a
public issue, does not “contribute[] to public discussion of that
issue” (Geiser, supra, 13 Cal.5th at p. 1246). Consequently,
defendants’ activity excluding plaintiff and failing to compensate
her was not undertaken “in furtherance of free speech ‘in
connection with’ an issue of public interest.” (FilmOn, supra,
7 Cal.5th at p. 154.)
DISPOSITION
The trial court’s order denying defendants’ anti-SLAPP
motion to strike plaintiff’s complaint is affirmed. Plaintiff shall
recover her costs on appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
VIRAMONTES, J.
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