Laumeister Anti-SLAPP Motion

8/10/2019 Laumeister Anti-SLAPP Motion

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DEFENDANTS ANTI-SLAPP MOTION

Lincoln Bandlow (SBN 170449)Emily Birdwhistell (SBN 248602)LATHROP & GAGE LLP1888 Century Park East, Suite 1000Los Angeles, CA 90067Telephone: 310-789-4600Facsimile: 310-789-4601

Attorneys for DefendantsShannah Laumeister andMagic Film Productions, Inc.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES - WEST DISTRICT

BERT STERN, an individual; TRISTAWRIGHT, an individual, as GUARDIANAD LITEM on behalf of MIRANDAWRIGHT and GEORGIA WRIGHT,

Plaintiffs,

vs.

SHANNAH LAUMEISTER, an individual;GREGORY MCCLATCHY, andindividual; GREGORY MCCLATCHY

FILM, INC., doing business as MOTORENTERTAINMENT, an unknown entity;MAGIC FILM PRODUCTIONS, INC., aCalifornia corporation; SLMPRODUCTIONS, LLC, a Californialimited liability company; and DOES 1through 10, inclusive,

Defendants.

CASE NO. SC 122943

DEFENDANTS SPECIAL MOTION TOSTRIKE PLAINTIFFS COMPLAINTPURSUANT TO CCP 425.16 [ANTI-SLAPPMOTION]; MEMORANDUM OF POINTSAND AUTHORITIES IN SUPPORTTHEREOF

Assigned to Hon. Allan J. Goodman

Dept: PAction Filed: August 8, 2014

Hearing Date: April 15, 2015Hearing Time: 8:30 a.m.Reservation ID Number: 141013028738


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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on April 15, 2015, at 8:30 a.m., or as soon thereafter as

counsel may be heard, in Courtroom P of the above-entitled Court, the Honorable Allan J.

Goodman presiding, located at 725 Main Street, Santa Monica, California 90401, defendants

Shannah Laumeister (Laumeister) and Magic Film Productions, Inc. (collectively

Defendants) will and hereby do move the Court under Californias anti-SLAPP statute, Code of

Civil Procedure 425.16 (Section 425.16) for an order striking all the causes of action in the

Complaint filed by plaintiffs Bret Stern and Trista Wright, guardian ad litem for Miranda Wright

and Georgia Wright (Plaintiffs).

These causes of action are aimed at the Defendants speech in connection with issues of

public interest and thus fall within the scope of Section 425.16(e)(4). As such, the burden shifts

to Plaintiffs to establish, with competent and admissible evidence, a probability that they will

prevail on those causes of action. Section 425.16(b)(1). Plaintiffs cannot satisfy their burden for

the following reasons:

(1) All of the causes of action are barred because the activity that forms the basis of

the causes of action are fully protected under the First and Fourteenth Amendments to the United

States Constitution and under Article I, Section 2 of the California Constitution;

(2) All of the causes of action are barred because Plaintiffs consented to the activity

that forms the basis of the causes of action.

(3) The first cause of action fails because there was no reasonable expectation of

privacy and no breach of societal norms necessary to make out a cause of action for invasion of

privacy.

(4) The second cause of action for unauthorized commercial use of name and likeness

fails because there was no commercial use and use of Plaintiffs images and names was not linked

to any commercial purpose, and the cause of action otherwise fails as a matter of law.

(5) The third and fourth causes of action for fraudulent misrepresentation and

negligent misrepresentation, respectively, fail to state a claim.

(6) The fifth and sixth causes of action for intentional infliction of emotional distress


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and negligent infliction of emotional distress fail to state a claim.

(7) The first and second causes of action are barred by the applicable statute of

limitations.

The foregoing grounds are addressed in detail in the attached Memorandum of Points and

Authorities, which is incorporated herein by reference. This Motion is based on this Notice, the

attached Memorandum of Points and Authorities, the concurrently-filed Declarations of Shannah

Laumeister, Takouhy Wise, Etheleen Staley, and Lincoln Bandlow and their attached exhibits, all

papers, pleadings, records and files in this case, and on such other evidence and/or argument as

may be presented to the Court on the hearing on this Motion.

Defendants respectfully request that the Court strike all of Plaintiffs causes of action with

prejudice and without leave to amend, retaining jurisdiction over this matter solely for the

purpose of hearing a motion for attorneys fees and costs by Defendants after prevailing on this

present Motion.

Dated: October 30, 2014 LATHROP&GAGELLP

By:

Lincoln BandlowEmily Birdwhistell



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TABLE OF CONTENTS

Page

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I. INTRODUCTION .............................................................................................................. 1

II. STATEMENT OF FACTS ................................................................................................. 2

A. Bert Stern ................................................................................................................ 2

B. The Making of the Documentary: Bert Stern: Original Mad Man.......................... 3

C. Trista, Miranda, and Georgia Wright ...................................................................... 4

D. Bret Stern ................................................................................................................ 4

E. The Release of the Documentary ............................................................................ 5

III. LEGAL STANDARDS CONCERNING CALIFORNIAS ANTI-SLAPPSTATUTE ........................................................................................................................... 6

IV. THE CLAIMS ATTACK SPEECH ON A MATTER OF PUBLIC INTEREST .............. 6

V. THE PRIVACY CLAIMS ARE BARRED BY THE STATUTE OFLIMITATIONS ................................................................................................................... 7

VI. THE FIRST AMENDMENT BARS ALL OF PLAINTIFFS CLAIMS ........................... 8

VII. WRIGHTS CLAIMS ARE ALL BARRED BY THE WRITTEN RELEASES ............. 10

VIII. PLAINTIFFS CANNOT PREVAIL ON THEIR PRIVACY CLAIMS AS AMATTER OF LAW .......................................................................................................... 10

A. Plaintiffs Cannot Succeed On Their Intrusion Claim ........................................... 11

B. Plaintiffs Cannot Succeed On Their Unauthorized Commercial Use Claim ....... 12

C. Plaintiffs Misrepresentation Claims Have No Probability Of Success................ 13

D. Plaintiffs Emotional Distress Claims Fail ............................................................ 14

IX. CONCLUSION ................................................................................................................. 15


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TABLE OF AUTHORITIES

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Cases

Baugh v. CBS, Inc.,828 F.Supp. 745 (N.D. Cal. 1993) ..............................................................................................9

Bogard v. Employers Casualty Company,164 Cal.App.3d 602 (1985) .......................................................................................................14

Briggs v. Eden Council,19 Cal.4th 1106 (1999) ...............................................................................................................6

Chapman v. Skype Inc.,220 Cal.App.4th 217 (2013) .....................................................................................................13

Christoff v. Nestle USA, Inc.,47 Cal.4th 468 (2009) .................................................................................................................8

Church of Scientology v. Wollershem,42 Cal.App.4th 628 (1996) .........................................................................................................6

Comedy III Prods, Inc. v. Gary Saderup, Inc.,25 Cal.4th 387 (2001) ...............................................................................................................12

Daly v. Viacom, Inc.,238 F.Supp.2d 1118 (N.D. Cal. 2002) ........................................................................................9

Dibona v. Matthews,220 Cal.App.3d 1329 (1990) .......................................................................................................6

Dora v. Frontline Video, Inc.15 Cal.App.4th 536 (1993) .....................................................................................................8, 9

Downing v. Abercrombie & Fitch,265 F.3d 994 (9th Cir.2001) ......................................................................................................12

Eastwood v. Superior Court,149 Cal.App.3d 409 (1983), superseded by statute on other grounds as stated

in KNB Enters. v. Matthews,78 Cal.App.4th 362 (2000) .........................................................12

Equilon Enterprises,LLC v. Consumer Cause Inc.,29 Cal.4th 53 (2002) ...............................................................................................................6, 7

ETW Corp. v. Jireh Pub. Inc.,332 F.3d 915 (6th Cir. 2003) .....................................................................................................13


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Gagne v. Bertran,43 Cal.2d 481 (1954) ................................................................................................................13

Gates v. Discovery Comms., Inc.,34 Cal.4th 679 (2004) .................................................................................................................7

Gerawan Farming, Inc. v. Lyons,24 Cal.4th 468 (2000) ...............................................................................................................12

Gionfriddo v. Major League Baseball,94 Cal.App.4th 400 (2001) .......................................................................................................13

Guglielmi v. Spelling-Goldberb Prods.,25 Cal.3d 860 (1979) ................................................................................................................13

Hall v. Time Warner, Inc.,153 Cal.App.4th 1337 (2007) .................................................................................................7, 9

Hernandez v. Hillsides, Inc.,7 Cal.4th 272 (2009) .................................................................................................................11

Hill v. National Collegiate Athletic Assn.,7 Cal.4th 1 (1994) ...............................................................................................................10, 11

Hilton v. Hallmark Cards,599 F.3d 894 (9th Cir. 2010) .......................................................................................................7

Hoffman v. Capital Cities/ABC, Inc.,255 F.3d 1180 (9th Cir. 2001) ...................................................................................................12

Hughes v. Pair,46 Cal.4th 1035 (2009) .......................................................................................................14, 15

Johnson v. Harcourt, Brace, Jovanovich, Inc.,43 Cal.App.3d 880 (1974) ...........................................................................................................8

Jones v. Corbis Corporation,

815 F.Supp.2d 1108 (C.D. Cal. 2011) ......................................................................................10

Joseph Burstyn, Inc. v. Wilson,343 U.S. 495 (1952) ..................................................................................................................12

Kirby v. Sega of America, Inc.,144 Cal.App.4th 47 (2006) .......................................................................................................13


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Kronemyer v. Internet Movie Data Base, Inc.,150 Cal.App.4th 941 (2007) .......................................................................................................7

Lazar v. Superior Court,12 Cal.4th 631 (1996) ...............................................................................................................13

M.G. v. Time Warner, Inc.,89 Cal.App.4th 623 (2001) .........................................................................................................6

Maheu v. CBS, Inc.,201 Cal.App.3d 662 (1998) .........................................................................................................9

Mann v. Quality Old Time Service, Inc.,120 Cal.App.4th 90 (2004) .........................................................................................................6

Montana v. San Jose Mercury News, Inc.,34 Cal.App.4th 790 (1995) .....................................................................................................8, 9

Navellier v. Sletten,29 Cal.4th 82 (2002) ...................................................................................................................8

New Kids on the Block v. News America Publg, Inc.,971 F.2d 302 (9th Cir. 1992) .......................................................................................................9

Newton v. Thomason,22 F.3d 1455 (9th Cir. 1994) .....................................................................................................10

Nygard, Inc. v. UUSI-Kerttula,159 Cal.App.4th 1027 (2008) .....................................................................................................7

Polydoros v. Twentieth Century Fox Film Corp.,67 Cal.App.4th 318 (1997) .......................................................................................................13

Potter v. Firestone Tire & Rubber, Co.,6 Cal.4th 965 (1993) .................................................................................................................15

Rezec v. Sony Pictures Entertainment, Inc.,

116 Cal.App.4th 135 (2004) .....................................................................................................12

Royer v. Steinberg,90 Cal.App.3d 490 (1979) .........................................................................................................10

Sanders v. American Broadcasting Company, Inc.,20 Cal.4th 907 (1999) ...............................................................................................................11


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Shively v. Bozanich,31 Cal.4th 1230 (2003) ...............................................................................................................8

Shulman v. Group W Productions, Inc.,18 Cal.4th 200 (1998) ...............................................................................................................11

Sipple v. Found. for Nat. Progress,71 Cal.App.4th 226 (1999) .........................................................................................................7

Stewart v. Rolling Stone LLC,181 Cal.App.4th 664 (2010) .......................................................................................................6

Tamkin v. CBS Broadcasting, Inc.,193 Cal.App.4th 133 (2011) .......................................................................................................7

Tavernier v. Maes,242 Cal.App.2d 532 (1966) .......................................................................................................10

Varian Med. Sys., Inc. v. Delfino,35 Cal.4th 180 (2005) .................................................................................................................6

Weaver v. Jordan,64 Cal.2d 235 (1966) ..................................................................................................................8

Winter v. DC Comics,30 Cal.4th 881 (2003) ...............................................................................................................13

Wong v. Tai Jing,189 Cal.App.4th 1354 (2010) .............................................................................................14, 15

State Statutes

CAL.CIV.CODE, 3515 ..................................................................................................................10

Cal. Civil Code 3425.3 ...................................................................................................................8

Cal. Code. Civ. Proc. 425.16(b)(1) ................................................................................................6

Civ.Code, 1710, subd. 2 ...............................................................................................................13

Civil Code 3344(a) ............................................................................................................................8

Civil Code 3344(a) ...................................................................................................................8, 12

Code of Civil Procedure 340, subd. (3) .........................................................................................8


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Other Authorities

Rest. 2d Torts 652B .....................................................................................................................11

Rest. 2d Torts, 892A ....................................................................................................................10


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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Bert Stern was a legendary photographer. Most famous for his photographs of Marilyn

Monroe taken just weeks before her death, he also profoundly reshaped the landscape of

commercial advertising and fashion photography and was one of few photographers who became

a celebrity in his own right. Bert Stern: Original Mad Men(the Documentary), a documentary

made by Sterns wife, Shannah Laumeister, examines Bert Sterns life his childhood, his rise to

fame, his personal life, his fall from grace and then his rise from the ashes. In short, the film

chronicles the history of an American icon of intense interest and concern to the public.

Plaintiffs Bret Stern and Trista Wright, on behalf of her children Miranda and Georgia

Wright (collectively herein Plaintiffs), have taken aim at this clearly protected speech by

asserting untenable claims. Plaintiffs have trumped up various claims based on the contention

that the45 seconds of footage of the Plaintiffs in the 90 minute long Documentary required

Plaintiffs permission. There are two main problems with that contention: (1) no such consent is

required under the law; and (2) express written consent was given by one of the Plaintiffs. The

law is clear that consent is not needed for use of someones image in a biographical documentary,

particularly one relating to matters of public interest. Thus, the use of images of Bert Sterns son

Bret Stern (who appears for only 15 secondsand only in photographs and home video of him as a

baby and a toddler) and of Bert Sterns grandchildren Georgia and Miranda (who appear for only

30 secondssitting on their mothers lap as she talks about her father Bert Stern) are fully

protected by the First Amendment and other protections. Moreover, Trista Wright signed releases

on behalf of not only herself, but Georgia and Miranda Wright as well, which negates all causes

of action by them.

This lawsuit has no merit for numerous other reasons detailed below. But this action was

never about meritorious claims. Rather, at its core, it is an effort by two of Bert Sterns children

to punish Laumeister for marrying their father. Their bitterness about that marriage is manifest

throughout the Complaint. But their attempt to punish her for it by going after her protected

speech is something the anti-SLAPP statute will not allow. This action must be dismissed.


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II. STATEMENT OF FACTS

A. Bert Stern

Bert Stern was an American photographer famous for his celebrity, fashion and

commercial photography. Declaration of Lincoln Bandlow (LB Decl.) at Ex. 30; Declaration

of Shannah Laumeister (SL Decl.) at 3; Declarations of Etheleen Staley and Takouhy Wise

(SW Decls.) 3-6. Helping to redefine advertising and fashion art, Bert Sterns career

spanned from the 1950s to the 2000s, with his work being featured in major style, fashion and

travel magazines around the world. LB Decl., Ex. 30. He photographed numerous celebrities,

including Louis Armstrong, Audrey Hepburn, Elizabeth Taylor, Madonna, Lindsay Lohan, Kate

Moss and most famously, Marilyn Monroe. SW Decls. 4; SL Decl. 3; Complaint 11.

In addition to editorial shots for fashion magazines, Stern was a groundbreaking

commercial photographer in the advertising world. He also published two books, The Pill Book

andMarilyn Monroe: The Complete Last Sitting. The latter, a collection of over 2,500 photos of

Monroe taken shortly before her death, is arguably his best known work. These photos of Monroe

are one of the most valuable collections of Hollywood photographs and a mere 59 images sold for

$120,000 at auction at Christies. SW Decls., 4. Additionally, Bert Stern directedJazz on a

Summers Day, a critically-acclaimed documentary film which, in 1999, was selected for

preservation in the U.S. National Film Registry by the Library of Congress as being culturally,

historically, or aesthetically significant. LB Decl., Ex. 44.

Often mentioned in the same breath as Irving Penn and Richard Avedon, Bert Stern was

one of the first photographers to become a celebrity in this own right. LB Decl., Ex. 31; SW

Decls., 6. In short, he was a legend in the world of photography and his images have captured

the imagination of the public around the world. SW Decl., 6. In his personal life, Bert Stern

was known for his partying and womanizing ways. Once married to New York City Ballet

principal, Allegra Kent, he had three children with Ms. Kent before they divorced in 1975. His

three children are named Susannah Stern, Bret Stern and Trista Stern Wright. Trista has two

children, Georgia and Miranda Wright. Bert Stern passed away on June 26, 2013. He was

memorialized in countless major news publications. LB Decl., Exs. 30 - 39.


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B. The Making of the Documentary:Bert Stern: Original Mad Man1

Laumeister first met Bert Stern when she was 14 years old and wanted to model. SL

Decl., 4. Bert Stern photographed her many times over many years. Id. Eventually Laumeister

and Bert Stern became romantically involved and married in 2009. Id. In around 2005,

Laumeister decided to turn the camera around on him because she thought he would be a

fascinating documentary subject. Id. at 5. From that initial idea, the Documentarywas born.

The idea for the Documentary was met with enthusiasm from many people. Id.

Laumeister was the director, writer, cinematographer, and producer of the Documentary.

SL Decl., 1. Defendant Magic Films Productions, Inc. (MFP) produced the Documentary.

SL Decl., 6.2 Laumeister made the Documentary over the course of over seven years. Id. at 8.

She conducted substantial research, including taking dozens of interviews of subjects from all

aspects of Bert Sterns life and career, reviewing his archives and journals, and investigating the

time periods, events, people and works that would be the subject of the Documentary. Id.

Laumeister was present at every interview that appears in the Documentary. Id. at 9.

The Documentary covers everything from Bert Sterns childhood and personal life to his

career achievements and comeback. It follows his early career from working in the mailroom at a

magazine and his friendship with Stanley Kubrick, to his becoming a photographer in Tokyo after

being drafted, to his ground-breaking work in advertising with the Smirnoff vodka campaign, to

his becoming a full-fledged fashion photographer for magazines such as Vogue. LB Decl., Ex. 1.

A significant portion deals with his historic photography session with Monroe, as well as Sterns

2008 recreation of that session with actress Lindsay Lohan (the latter of which spawned

significant controversy in the press). Id.,Ex. 3. It also covers Bert Sterns personal life, including

his complicated relationships with women, his marriage to and divorce from his famous dancer

wife, Allegra Kent, his drug abuse and financial problems, and his relationship with his three

children as well as with Laumeister. Id., Ex. 1.

1The titleBert Stern: Original Mad Men came from a reference to the popular television showMad Men aboutadvertisers working on Madison Avenue in the 1950s. SL Decl. at 7; LB Decl., Ex. 1 (approximately 3 minutemark).2SLM Productions LLC, which has not been served, was simply an entity formed to raise financing for theDocumentary which was dissolved in 2014 and no longer exists. SL Decl., 6.


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C. Trista, Miranda, and Georgia Wright

Laumeister conducted Trista Wrights interview on July 6, 2008. After first filming Ms.

Wrights children, Ms. Wright then began her interview and only shortly after it had begun, her

children joined Ms. Wright on her lap for the majority of the interview. Trista Wright continued

the interview without any objection to the cameras, the interview questions, or the presence of her

children in the frame of the very visible and apparent camera. Ms. Wright never voiced an

objection to the childrens appearance on camera before, during, or after the interview, prior to

the filing of this lawsuit. Laumeister never made any representation that she would not use the

footage containing Miranda and Georgia Wright. On the day of filming, Trista Wright signed a

release not only for herself, but also one on behalf of each of her children. SL Decl., Ex. B. Two

days after shooting the interview, Trista Wright emailed Laumeister thanking her for a positive

experience and noting that [t]he girls were really inspired by your visit. Miranda cant stop

interviewing and videotaping her dolls. See SL Decl., 11-16, Exs. A-C.

Georgia and Miranda Wright appear on screen for 30 seconds in total. LB Decl., Ex. 1.

Each time they appear on their mothers lap, and appear as follows: at 28:13 for 5 seconds when

Ms. Wright talks about her mother; at 30:00 for 12 seconds where Ms. Wright reminisces about

her father and his relationship with children; and at 1:19:17 for 13 seconds, where Ms. Wright

states that she is a daddys girl and Miranda says and Im a grandpas girl. Id.

D. Bret Stern

Early cuts of the Documentary did not include any image or mention of Bret Stern. SL

Decl., 21.3 After initial screenings of the Documentary, however, Laumeister received

numerous comments that the Documentary seemed incomplete without mention of Bert Sterns

third child and only son. Id. In particular, the distribution agent for the Documentary was

adamant that it was protocol of biographical documentaries that they include some mention of all

of the children of the subject of the documentary. Id.

3Laumeister inquired if Bret Stern would be interested in being interviewed for the Documentary but he declined.SL Decl., 19. He never, however, indicated that he did not want to be referenced or involved in the Documentary.Id. Indeed, Bret Stern filmed one of the interviews for the Documentary.Id., 20. Laumeister had initially left BretStern out of the Documentary simply for creative reasons. Id., 21.


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Thus, Laumeister went back into her film and added some brief references to Bret Stern.

No images of Bret Stern as an adult appear in the Documentary. LB Decl., Ex. 1. Rather, the

only images of him in the Documentary are childhood home videos and photographs (which were

provided by Bert Stern) of Bret Stern as a baby and toddler. Id.; SL Decl., 22. He is mentioned

only briefly when Bert says he asked Allegra for a son and got one. Id. The footage of Bret Stern

constitutes 15 seconds of the Documentary as follows: at 30:45, there is a home video of Allegra

feeding Bret as a baby with one of his sisters (this clip lasts 5 seconds); immediately thereafter a

still photograph of Bret as a toddler is shown (for 1 second); then a photograph of Bret as a

toddler with Bert is shown (for 3 seconds); then a photograph of all three of Berts children

(including Bret as a baby) in a bathtub with their mother is shown (for 3 seconds); at 1:07:05, a

still photograph of Bert with his wife Allegra and three young kids (including Bret) is shown (for

3 seconds) as Bert Stern talks about his near death experience.Id.; LB Decl., Ex. 1.

E. The Release of the Documentary

The Documentary was first released on September 2, 2011. SL Decl., 24. Throughout

2012 and into 2013, the Documentary was publicly distributed to large audiences worldwide at

various film festivals. SL Decl., 24; LB Decl. Exs. 6-12, 14-23. Although Laumeister made

minor changes to the Documentary during its early release period, importantly, by the end of May

of 2012 and to the present day, the Documentary has not changed in any way and has had the

same content as that reflected in the dvd of the Documentary that is attached as Exhibit 1 to the

Bandlow Declaration (included all of the footage that is the subject of this lawsuit). SL Decl.,

24. The Documentary was generally positively reviewed upon its release and it was nominated

for the Audience Award at the Cambridge Film Festival, the Grand Jury Award at the Florida

Film Festival, and the John Schlesinger Award at the Palm Springs International Film Festival.

Id., 26. The Documentary won Best Documentary at the Minneapolis St. Paul International Film

Festival.Id., 25. In 2013, the Documentary was released generally in theatres and dvd.Id., 26.

Plaintiffs have now sought to attack that Documentary with meritless claims. As set forth

below, that effort fails and pursuant to Californias anti-SLAPP statute, this action must be

dismissed and Defendants awarded their attorneys fees in having to defend this meritless action.


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III. LEGAL STANDARDS CONCERNING CALIFORNIAS ANTI-SLAPP STATUTE

Californias anti-SLAPP statute allows courts to strike [a] cause of action against a

person arising from any act of that person in furtherance of the persons right of petition or free

speech under the . . . Constitution. Cal. Code. Civ. Proc. 425.16(b)(1). The statute encourages

participation in matters of public interest by targeting lawsuits brought primarily to chill the

valid exercise of the constitutional rights of freedom of speech.Equilon Enterprises,LLC v.

Consumer Cause Inc., 29 Cal.4th 53, 59-60 (2002). Under the statute, which is to be construed

broadly (Briggs v. Eden Council, 19 Cal.4th 1106, 1125 (1999)), courts use a two-step process to

determine if an action should be stricken. Varian Med. Sys., Inc. v. Delfino, 35 Cal.4th 180, 192

(2005). First, defendant must show that the acts complained of were taken in furtherance of the

right of free speech in connection with a public issue. Section 425.16 (e)(4). Once that is

shown, the burden shifts to plaintiff to demonstrate a probability of success on the claims. If this

burden is not met, the claims must be stricken. Id.; Section 425.16 (b)(1).

The anti-SLAPP statute applies to actions aimed at documentary films. M.G. v. Time

Warner, Inc., 89 Cal.App.4th 623, 629 (2001) (anti-SLAPP statute applied to claims against

documentary about molestation in child sports). The application of the anti-SLAPP statute is not

limited to any particular claim. Church of Scientology v. Wollershem, 42 Cal.App.4th 628, 642

(1996). Rather, it relates to any claim that could achieve the objective of a SLAPP suit to

interfere with and burden the defendants exercise of his or her [free speech] rights. Id. at 652;

Stewart v. Rolling Stone LLC, 181 Cal.App.4th 664, 679 (2010) (we do not evaluate the first

prong of the anti-SLAPP test solely through the lens of a plaintiff's cause of action). Thus, it is

[t]he principal thrust or gravamen of the claim [that] determines whether section 425.16

applies. Mann v. Quality Old Time Service, Inc., 120 Cal.App.4th 90, 103 (2004).

IV.

THE CLAIMS ATTACK SPEECH ON A MATTER OF PUBLIC INTEREST

Section 425.16(e)(4) encompasses any claim that arises from speech made in connection

with a public issue or an issue of public interest. As an initial matter, the Documentary was

intended for the public and is an exercise in speech. See e.g. Dibona v. Matthews, 220

Cal.App.3d 1329 (1990) (controversial play in cancelled drama class a matter of free speech).


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Second, a documentary about a renowned celebrity photographer is clearly a matter of public

interest. In fact, any matter in which the public takes an interest is a matter of public interest

regardless of its overall societal importance and thus is protected. Nygard, Inc. v. UUSI-

Kerttula, 159 Cal.App.4th 1027, 1042 (2008) (an issue of public interest . . . is any issue in

which the public is interested) (emphasis in original).4

The definition of public interest has been broadly construed to include matters

relating to celebrities. See Kronemyer v. Internet Movie Data Base, Inc., 150 Cal.App.4th 941,

949 (2007). Bert Stern is clearly a celebrity and his life and work have long been considered a

matter of public interest. SL Decl., 3; LB Decl., Exs. 1-48. Indeed, Plaintiffs concede that Bert

Stern is a well-known photographer (Complaint 17) who was well-known for his

photographs of celebrities. Complaint 11. Bert Sterns death produced lengthy obituaries in

The New York Times, The Telegraph, The Guardian, Vogue,Los Angeles Times, Washington

Post,and The Huffington Post,among others. LB Decl., Exs. 30-39. His book, The Last Sitting,

has been written about extensively, as was his Lindsay Lohan photo shoot. LB Decl., Exs. 3, 47.

Thus, the Documentary clearly constitutes speech on a matter of public interest and the

burden shifts to the Plaintiffs to present competent and admissible evidence showing that

[they] will probably prevail on [their] claims. Equilon Enters., 29 Cal.4th at 67; Section

425.16. Plaintiffs cannot meet this burden and thus their claims must be stricken.

V. THE PRIVACY CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS

Plaintiffs claims of invasion of privacy and unauthorized commercial use of name and

likeness are barred by the applicable statutes of limitation. The Documentary, after it was locked

in its existing form, was being publicly disseminated in May of 2012. SL Decl., 24. Plaintiffs

4 Courts have also frequently applied Section 425.16 to speech concerning the publics interest in entertainment.

Gates v. Discovery Comms., Inc., 34 Cal.4th 679, 695 (2004) (speech protections apply to a news report or anentertainment feature); see also Sipple v. Found. for Nat. Progress, 71 Cal.App.4th 226, 239 (1999) (article aboutpolitical consultant in public interest); Kronemyer, supra(website list of movie credits as public interest); Tamkin v.CBS Broadcasting, Inc., 193 Cal.App.4th 133, 143 (2011) (use of actual names as placeholders in draft televisionscript was speech in connection with public interest even where individuals were not of public interest);Hall v. TimeWarner, Inc., 153 Cal.App.4th 1337 (2007) (claims of trespass, intrusion upon seclusion, public disclosure of privatefacts, intentional infliction of emotional distress, and elder abuse against television program that interviewed MarlonBrandos housekeeper dismissed on anti-SLAPP motion, speech was matter of public interest in light of public'sfascination with Brando and widespread public interest in his personal life);Nygard, 159 Cal.App.4th at 1039(statements about Finnish businessperson in the public interest);Hilton v. Hallmark Cards, 599 F.3d 894, 907 (9thCir. 2010) (speech about celebrity Paris Hilton is about an issue of public interest).


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did not file their Complaint until August 8, 2014, over two years after the first publication of the

Documentary in its present form. The applicable statute of limitations for tortious invasion of

privacy is found in Code of Civil Procedure section 340, subdivision (3), which sets forth a one

year period during which the action may be filed. Johnson v. Harcourt, Brace, Jovanovich, Inc.,

43 Cal.App.3d 880, 895-96 (1974). Additionally, California courts have applied a two-year

statute of limitations to claims under Civil Code section 3344(a). Christoff v. Nestle USA, Inc., 47

Cal.4th 468, 474 (2009) (applying two-year statute of limitation to Civil Code 3344(a) claim).

Accordingly, the statutes had run, at the latest for these causes of action, by May of 2014.5

VI. THE FIRST AMENDMENT BARS ALL OF PLAINTIFFS CLAIMS

Defendants use of Plaintiffs likenesses in the Documentary is fully protected by the First

Amendment. Thus, despite Plaintiffs primary contention in this action, every publication of

someones name or likeness does not give rise to an appropriate action. Publication of matters of

public interest, which rests on the right of the public to know and the freedom of the press to tell

it, is not ordinarily actionable. Dora v. Frontline Video, Inc. 15 Cal.App.4th 536, 543 (1993).

Thus, [n]o cause of action will lie for the publication of matters in the public interest, which

rests on the right of the public to know and the freedom of the press to tell it. Montana v. San

Jose Mercury News, Inc., 34 Cal.App.4th 790 (1995) (emphasis added). This applies not only to

governmental affairs, but also to entertainment speech. Navellier v. Sletten, 29 Cal.4th 82, 91

(2002) (additional citations omitted); see also Weaver v. Jordan, 64 Cal.2d 235, 242 (1966)

(Communicationby television falls within constitutional protection of free speech).

Dora v. Frontline Videois directly on point. There, the California Courts of Appeals

found that a documentary on surfing legends in California contained matters of public interest

giving rise to constitutional protection against liability. Id. (Public interest attaches to people

5Though Plaintiffs may assert the delayed discovery rule, courts have rejected that rule where it would underminethe protection provided by the single-publication rule. Shively v. Bozanich, 31 Cal.4th 1230, 1250 (2003). Thesingle publication rule states that [n]o person shall have more than one cause of action for libel or slander orinvasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any oneissue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio ortelevision or any one exhibition of a motion picture. Cal. Civil Code Section 3425.3. For the purposes ofdetermining the accrual date of a claim, a cause of action that is governed by the single-publication rule accruesfrom the date of the first general distribution of the publication to the public. Christoff, 47 Cal.4th at 477; citingShively, 31 Cal.4th at 1245; see also Belli v. Roberts Brothers Furs, 240 CalApp.2d 284, 289 (1996) (cause of actionaccrues upon the first general distribution of the publication to the public). Thus, Plaintiffs privacy claims beganto accrue upon the first distribution of the Documentary in its present finalized version in May of 2012.


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who by their accomplishments or mode of living create a bona fide attention to their activities.);

see alsoMontana, 34 Cal.App.4th at 794-96 (allowing the defense of public interest for a

newspapers commemorative posters of the Super Bowl victories of the San Francisco 49ers).

Though the Complaint alleges that none of [the Plaintiffs] was or is a public figure or

public persona (Complaint at 17), their involvement in the life of a public figure makes them a

part of that public interest. TheDoraCourt expressly noted:

The program in question in this case is a documentary about a certain time andplace in California history and, indeed, in American legend. The people whowere a part of that era contributed, willingly or unwillingly, to thedevelopment of a lifestyle that has become world-famous and celebrated inpopular culture. Although any one of them as individuals may not have had aparticular influence on our time, as a group they had great impact.

Id. at 543. Similarly, the court inHall v. Time Warner found that the airing of an

interview with Marlon Brandos housekeeper was a matter of public interest in light of publics

fascination with actor and widespread public interest in his personal life. Hall, 153 Cal.App.4th

at 1347;Daly v. Viacom, Inc., 238 F.Supp.2d 1118, 1122 (N.D. Cal. 2002) (a defense under the

First Amendment is provided where the publication or dissemination of matters is in the public

interest);New Kids on the Block v. News America Publg, Inc., 971 F.2d 302, 309-10 (9th Cir.

1992) (public interest defense is a complete defense and provides extra breathing space even

beyond the First Amendment);Maheu v. CBS, Inc., 201 Cal.App.3d 662, 676-77 (1998).

Documentary filmmakers are granted wide latitude under the common law public interest

exception to protect free expression. Protection is provided for those matters that the public is

interested in and constitutionally entitled to know about, such as things, people and events that

affect it. Baugh v. CBS, Inc., 828 F.Supp. 745, 754 (N.D. Cal. 1993) (quotingDora,15

Cal.App.4th at 546). That Bret Stern, Georgia and Miranda Wright are not public figures in their

own right has no effect on the First Amendment analysis. Their involvement in, and relationship

to, their patriarch Bert Stern necessarily involves them in matters of public interest. Thus,

Plaintiffs claims are barred by the First Amendment.


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VII. WRIGHTS CLAIMS ARE ALL BARRED BY THE WRITTEN RELEASES

One who effectively consents to conduct of another intended to invade his interests

cannot recover in an action of tort for the conduct or for harm resulting from it. Rest. 2d Torts,

892A. Wright will be unable to recover on any of the claims on behalf of Georgia and Miranda

as the Releases she signed on behalf of herself and both her children constitute consent. Hill v.

National Collegiate Athletic Assn., 7 Cal.4th 1, 26 (1994) (The maxim of the law volenti non fit

injuria(no wrong is done to one who consents) applies as well to the invasion of privacy tort.);

Royer v. Steinberg, 90 Cal.App.3d 490, 498 (1979). In fact, not merely a defense to tort claims,

Wrights consent negates the existence of any intentional tort altogether: [t]he consent of the

person damaged will ordinarily avoid liability for intentional interference with person or property

It is not, strictly speaking, a privilege, or even a defense, but goes to negative the existence of any

tort in the first place. Tavernier v. Maes, 242 Cal.App.2d 532, 552 (1966); see alsoCAL.CIV.

CODE, 3515 (He who consents to an act is not wronged by it). Wright cannot demonstrate a

probability of success on her claims against Defendants as her consent has negated the very

existence of any alleged tortious conduct.6 SeeSL Decl., Ex. B.

VIII. PLAINTIFFS CANNOT PREVAIL ON THEIR PRIVACY CLAIMS AS A

MATTER OF LAW

Privacy claims consist of four separate and distinct, but related torts, of which Plaintiffs

claim invasion of privacy (an intrusion claim) and unauthorized use of name and likeness. Both

of these claims are based on Defendants use of the images of Bret Stern, Georgia Wright and

Miranda Wrights images in the Documentary. Courts have rightfully been hesitant to infringe

the rights guaranteed by the First Amendment even where a privacy right is infringed. Courts

6Moreover, even without the signed Releases, consent could be reasonably inferred from Wrights actions. Consentto use a name or likeness need not be express or in writing, but it may be implied from the consenting partys conductand the circumstances of the case. Jones v. Corbis Corporation, 815 F.Supp.2d 1108, 1113 (C.D. Cal. 2011)(applying California law); citing Newton v. Thomason, 22 F.3d 1455, 1461 (9th Cir. 1994) (granting summaryjudgment to defendant in right of publicity suit because plaintiff failed to show a lack of consent even thoughplaintiff never expressly consented); see also Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (1994) ([T]heplaintiff in an invasion of privacy case must have conducted himself or herself in a manner consistent with an actualexpectation of privacy). Miranda and Georgia Wright sat on their mothers lap while Trista Wright was beinginterviewed. SL Decl., 12, Ex. A; LB Decl., Ex. 1. Trista Wright was willingly participating in an on camerainterview, continued to answer question once her kids were on camera, and voiced no objection to such. SL Decl.,12-15, Ex. A.


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have consistently extended free speech protection to the type of activity upon which Plaintiffs

invasion of privacy causes of action are predicated. Though all of Plaintiffs claims are

constitutionally barred as set forth above, the claims fail for the following additional reasons.

A. Plaintiffs Cannot Succeed On Their Intrusion Claim

Plaintiffs allege the specific tort of invasion of privacy by intrusion against Defendants,

which has two elements: (1) intrusion into a private place, conversation or matter, (2) in a

manner highly offensive to a reasonable person. Sanders v. American Broadcasting Company,

Inc., 20 Cal.4th 907, 914 (1999) (citing Shulman v. Group W Productions, Inc., 18 Cal.4th 200,

231 (1998)); Restatement Second of Torts section 652B. The first element is only met when the

plaintiff has an objectively reasonable expectation of seclusion or solitude in the place,

conversation or data source. Schulman, 18 Cal. 4th at 232 (applying the newsworthiness

doctrine to the analysis of First Amendment protection for the television show On Scene:

Emergency Response). Any intrusion must besufficiently serious and unwarranted as to

constitute an egregious breach of the social norms. Hernandez v. Hillsides, Inc., 7 Cal.4th 272,

293 (2009);citingHill, supra, 7 Cal.4th 1, 37.

First, in the case of Trista Wright, on behalf of Miranda and Georgia Wright, there was no

intrusion into a private moment. To prove actionable intrusion, the plaintiff must show the

defendant penetrated some zone of physical or sensory privacy surrounding, or obtained

unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an

objectively reasonable expectation of seclusion or solitude in the place, conversation or data

source. Shulman, 18 Cal.4th at 232. Contrary to the allegations of the Complaint, Trista,

Miranda and Georgia appear only three times in a format which is clearly an interview. LB Decl.

Ex. 1; SL Decl., 17. Trista Wright is willingly participating in an interview on camera with her

children, Georgia and Miranda seated on her lap. SL Decl., 12-15. Defendants were in Trista

Wrights home at her invitation. Trista Wright made no objection to the children being on camera

at any time and signed Releases on their behalf. Id., 13-15, Exs. A, B. There exists absolutely

no reasonable expectation of seclusion during an on camera interview, which Trista Wright was

clearly aware was occurring. Second, there was no intrusion into any private area or information


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about Bret Stern. He appears solely in childhood photos and a brief family home video excerpt.

LB Decl., Ex. 1; SL Decl., 22.

B. Plaintiffs Cannot Succeed On Their Unauthorized Commercial Use Claim

California Civil Code Section 3344(a) provides that [a]ny person who knowingly uses

anothers name, voice, signature, photograph, or likeness, in any manner ... without such person's

prior consent ... shall be liable for any damages sustained by the person or persons injured as a

result thereof. To sustain a common law cause of action for this claim, Plaintiffs must prove:

(1) the defendants use of the plaintiff's identity; (2) the appropriation of plaintiffs name or

likeness to defendants advantage, commercially or otherwise; (3) lack of consent; and (4)

resulting injury.Eastwood v. Superior Court, 149 Cal.App.3d 409 (1983), superseded by statute

on other grounds as stated in KNB Enters. v. Matthews,78 Cal.App.4th 362 (2000); see Downing

v. Abercrombie & Fitch,265 F.3d 994, 1001 (9th Cir.2001).

First, the use was in no way commercial. Plaintiffs allegation that the Documentary is

commercial because it was written, directed, produced, marketed, distributed, shown in

theatres and sold as a DVD, for the express purpose of generating revenue and making a profit is

absurd. SeeComplaint at 26. Were this enough to qualify as a commercial purpose sufficient

to defeat First Amendment protections, no work of art would ever qualify including great works

of literature, paintings, stage performances, or any film. Indeed, commercial speech is speech

that does no more than propose a commercial transaction. Rezec v. Sony Pictures

Entertainment, Inc., 116 Cal.App.4th 135, 141 (2004); citing Gerawan Farming, Inc. v. Lyons, 24

Cal.4th 468, 486 (2000); see alsoHoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1184 (9th

Cir. 2001). Merely because a documentary is offered for sale as a DVD or charges for tickets to

its screenings does not strip it of its First Amendment protection. Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495, 501 (1952). This was simply not a commercial use.

In addition, as set forth above, the misappropriation claims are barred because they relate

to speech about matters of public interest. Moreover, the claims are barred because the use of

Plaintiffs names and likenesses in the Documentary are transformative and otherwise protected

by the First Amendment under Comedy III Prods, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387


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(2001), Winter v. DC Comics, 30 Cal.4th 881 (2003) and legions of other cases. See Polydoros v.

Twentieth Century Fox Film Corp., 67 Cal.App.4th 318, 324 (1997) (rejecting right of publicity

claims brought by person who was basis for character in a movie); Kirby v. Sega of America, Inc.,

144 Cal.App.4th 47 (2006) (rejecting right of publicity claims by person who claimed to be basis

for videogame character); Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400 (2001)

(rejecting right of publicity claims by baseball players depicted in historical documentaries about

baseball);ETW Corp. v. Jireh Pub. Inc., 332 F.3d 915 (6th Cir. 2003) (rejecting Tiger Woods

right of publicity claims based on depiction of him in poster about golf greats); Guglielmi v.

Spelling-Goldberb Prods., 25 Cal.3d 860 (1979) (right of publicity claims relating to depiction of

person in docudrama barred by the First Amendment);

C.

Plaintiffs Misrepresentation Claims Have No Probability Of Success

The essential elements of a count for intentional misrepresentation are (1) a

misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) actual and justifiable

reliance; and (5) resulting damage. Chapman v. Skype Inc., 220 Cal.App.4th 217, 230-31

(2013); citing Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996). The essential elements of a

count for negligent misrepresentation are the same except that it does not require knowledge of

falsity, but instead requires a misrepresentation of fact by a person who has no reasonable

grounds for believing it to be true. Id. at 231; citingCiv.Code, 1710, subd. 2; Gagne v. Bertran

43 Cal.2d 481, 488 (1954). Each element of a fraud count must be pleaded with particularity

(id.), however, Plaintiffs can barely even generally identify any alleged misrepresentation. The

entire basis for these claims appears to be the allegation that Wright believed that Laumeister

was expressly or impliedly representing that she would not use the names and likenesses of

Wrights children without Wrights consent and that Stern believed that Laumeister was

expressly or impliedly representing that his name, image, likeness and/or voice would be sued

[sic.] in the Film Complaint at 31, 32.

Nevertheless in reality, Laumeister made no such representations either expressly or

impliedly. SL Decl., 11-16. In the case of the Wright children, Laumeister continued to

conduct the interview when Wrights children came and sat in her lap. Wright made no attempt


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to stop the filming or interview, and signed Releases on behalf of all three of them. Id., 11-16,

Exs. A, B.

As for Bret Stern, Defendants never made any representation that they would not make

any use of childhood photographs provided by Bert Stern or otherwise reference Bret Stern in the

Documentary. SL Decl., 20.

D. Plaintiffs Emotional Distress Claims Fail

The elements of a claim for intentional infliction of emotional distress are (1) outrageous

conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing

emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of

emotional distress. Wong v. Tai Jing, 189 Cal.App.4th 1354, 1376 (2010). The first element,

outrageous conduct, must be conduct that is so extreme as to exceed all bounds of that usually

tolerated in a civilized community. Bogard v. Employers Casualty Company, 164 Cal.App.3d

602, 616 (1985). None of the actions alleged in the Complaint rise to exceed all bounds of that

usually tolerated in a civilized community. Use of images in a Documentary about ones father

and grandfather a renowned, iconic photographer hardly qualifies as outrageous conduct.

As for Plaintiffs claim for negligent infliction of emotional distress, it is not an

independent tort, but rather, merely a negligence claim requiring the traditional elements of duty,

breach of duty, causation, and damages. Wong, 189 Cal.App.4th at 1377. Plaintiffs allege that

Laumeister had a duty to not use the names, likenesses, photographs and/or voices of Bret Stern

and the Wright children in the Documentary. Plaintiffs cannot identify from where that duty

might arise, nor could they, as she had no such duty.

Moreover, the severe emotional distress required to prove a claim for intentional infliction

of emotional distress is the same required for a negligent infliction of emotional distress claim.

Id. at 1378. This distress may consist of a highly unpleasant mental reaction such as fright,

grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry, but any of

these distresses must be severe. Id. at 1376 (original emphasis). Moreover, the California

Supreme Court has set a high bar for what distress is considered severe. Hughes v. Pair, 46

Cal.4th 1035, 1051 (2009). Severe emotional distress means emotional distress of such


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substantial quality or enduring quality that no reasonable [person] in civilized society should be

expected to endure it. Potter v. Firestone Tire & Rubber, Co., 6 Cal.4th 965, 1004 (1993).

Plaintiffs cannot possibly demonstrate the severe emotional distress required to recover on

their emotional distress claims. Such distress must be of such substantial quality or enduring

quality that no reasonable [person] in civilized society should be expected to endure it. Hughes,

46 Cal.4th at 1051. Here, Plaintiffs complain of vague injuries consisting of humiliation,

embarrassment, anxiety, mental anguish, worry and other emotional and physical distress

(Complaint at 45, 50) which do not constitute the required severity for recovery. See also

Wong, 189 Cal.App.4th at 1377 (complaints of severe emotional damage comprised of being

very emotionally upsetting, lost sleep, upset stomach and generalized anxiety is not sufficient

for recovery). Plaintiffs cannot meet the burden of demonstrating the severe emotional distress

required to support these claims. Indeed, Wright sent Laumeister an email two days after the

interview about how much her children enjoyed the experience. SL Decl., Ex. C. Nor is it

remotely logical that Bret Stern can complain that he is emotionally distressed by the fact that he

was accurately depicted in the Documentary as being the child of Bert Stern. Plaintiffs cannot

meet the burden of demonstrating success on any of their claims alleged against Defendants.

Thus, the claims must be stricken.

IX. CONCLUSION

Thus, for all of the foregoing reasons, Defendants respectfully requests that this motion be

granted and the action dismissed with prejudice, left open only for Defendants to file a motion to

recover the attorneys fees and costs incurred in defending against this action.

Dated: October 30, 2014 LATHROP&GAGELLP

By:Lincoln BandlowEmily Birdwhistell


Documents

Laumeister Anti-SLAPP Motion