1 LINCOLN BANDLOW (SBN 170449)

lbandlow@lathropgage.com
2 JEFF GRANT (SBN 218974)
jgrant@lathropgage.com
3 LATHROP & GAGE LLP
1888 Century Park East, Suite 1000
4 Los Angeles, CA 90067
Telephone: (310) 789-4600
5 Fax: (310) 789-4601
6 Attorneys for Defendants
4TH STREET MEDIA, L.L.C., and
7 4 PARK PUBLISHING
8

9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA

10 COUNTY OF LOS ANGELES
11

12 JOSEPH R. FRANCIS and GGW Case No. BC 442226

BRANDS, INC.,
13 DEFENDANTS 4TH STREET MEDIA, L.L.C.
Plaintiffs, AND 4 PARK PUBLISHING’S NOTICE OF
14 MOTION AND SPECIAL MOTION TO STRIKE
vs. PURSUANT TO C.C.P. § 425.16; MEMORANDUM
15 OF POINTS AND AUTHORITIES IN SUPPORT
RYAN D. SIMKIN, 4TH STREET THEREOF
16 MEDIA, L.L.C., 4 PARK PUBLISHING,
and DOES 1 through 20,
17 Hon. Joanne O’Donnell
Dept. 37
18 Defendants.
Date: November 30, 2010
19 Time: 9:00 a.m.
20 [Declarations of Lincoln D. Bandlow, Shelli Stutz,
21 Brian Howie and Ryan Simkin, Notice of Lodging and
Appendix of Non-California Authorities filed
22 concurrently herewith]

23 Complaint Filed: July 23, 2010

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MOTION TO STRIKE (C.C.P. § 425.16)

 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on November 30, 2010, at 9:00 a.m., or as soon thereafter as

3 counsel may be heard, in Courtroom 37 of the above-entitled Court, the Honorable Joanne O’Donnell

4 presiding, located at 111 N. Hill Street, Los Angeles, California 90012, defendants 4th Street Media

5 L.L.C. and 4 Park Publishing (the “Publishing Defendants”) will and hereby do move the Court for

6 an order striking the second and third claims for relief in the Complaint filed by plaintiffs Joseph R.

7 Francis and GGW Brands, Inc. (“Plaintiffs”) under California’s anti-SLAPP statute, Code of Civil

8 Procedure § 425.16 (“Section 425.16”).1

9 The Publishing Defendants are named in two claims: Claim Two for Intentional Interference
10 with Contractual Relations and Claim Three for Injunctive Relief. These claims are based on the
11 Publishing Defendants’ speech in connection with issues of public interest. Accordingly, these
12 claims fall within the scope of Section 425.16(e)(4) and, as such, the burden shifts to Plaintiffs to
13 establish, with competent and admissible evidence, a probability that they will prevail on those
14 claims. Section 425.16(b)(1). Plaintiffs cannot satisfy their burden for the following reasons:
15 (1) Claim Two, for tortious inference with contractual relations, fails for the following
16 independent reasons:
17 a. The activity that forms the basis of this claim is fully protected under the First and
18 Fourteenth Amendments to the United States Constitution and under Article I,
19 Section 2 of the California Constitution;
20 b. A tortious interference claim requires the existence of a valid contract and no valid
21 contract exists;
22 c. Assuming a valid contract existed, the Publishing Defendants had no knowledge
23 of any such contract prior to entering into an agreement with defendant Ryan
24 Simkin to publish the book in question; and
25 d. Assuming a valid contract existed, the Publishing Defendants did not engage in
26 any intentional acts to enduce defendant Ryan Simkin to breach any contract.
27
1
28 The acronym “SLAPP” stands for Strategic Lawsuit Against Public Participation.

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MOTION TO STRIKE (C.C.P. § 425.16)
 1 (2) Claim Three, for injunctive relief, is derivative of and dependant upon Plaintiffs’ tortious

2 interference claim and, therefore, fails for all the reasons listed above.

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

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

5 attached Memorandum of Points and Authorities, the concurrently-filed Declarations of Lincoln D.

6 Bandlow, Shelli Stutz, Brian Howie and Ryan Simkin, Notice of Lodging and Appendix of Non-

7 California Authorities, all papers, pleadings, records and files in this case, and on such other evidence

8 and/or argument as may be presented to the Court on the hearing on this Motion. The Publishing

9 Defendants respectfully request that the Court strike Claim Two and Claim Three, as alleged against

10 the Publishing Defendants, with prejudice and without leave to amend.

11
Dated: September 7, 2010 LATHROP & GAGE LLP
12

13

14 By:
Lincoln D. Bandlow
15
4TH STREET MEDIA, L.L.C., and
16 4 PARK PUBLISHING
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MOTION TO STRIKE (C.C.P. § 425.16)
 TABLE OF CONTENTS
1
I. INTRODUCTION ....................................................................................................... 1
2
II. STATEMENT OF FACTS .......................................................................................... 2
3

4 A. Joe Francis, GGW Brands and Mantra Films .................................................. 2

5 B. Plaintiffs’ Efforts to Restrict Free Speech ....................................................... 4

6 C. The Publishing Defendants and the Book........................................................ 4

7 III. LEGAL STANDARDS CONCERNING CALIFORNIA’S ANTI-SLAPP

STATUTE .................................................................................................................... 7
8
A. Two-Step Process to Determine Whether a Claim Must be Stricken .............. 7
9

10 B. The Anti-SLAPP Statute Broadly Protects Media and Entertainment

Defendants ....................................................................................................... 7
11
C. The Anti-SLAPP Statute Applies to “Any Kind of Claim” Interfering with
12 Free Speech Rights – Including Claims for Tortious Interference .................. 8

13 IV. PLAINTIFFS’ CLAIMS TAKE AIM AT THE PUBLISHING DEFENDANTS’

EXERCISE OF THEIR FREE SPEECH RIGHTS IN PUBLISHING A BOOK
14 THAT CONCERNS NUMEROUS MATTERS OF PUBLIC INTEREST ................ 8
15
V. PLAINTIFFS CANNOT DEMONSTRATE A PROBABILITY OF SUCCESS
16 ON THEIR CLAIMS AGAINST THE PUBLISHING DEFENDANTS.................... 9

17 A. Plaintiffs’ Tortious Interference With Contractual Relations Claim Fails....... 9

18 1. The First Amendment Bars Plaintiffs’ Claim ............................................ 10

19 2. No Valid Contract Precluded Defendant Simkin from Disclosing Any
Information to the Publishing Defendants ................................................. 11
20
3. The Publishing Defendants Had No Knowledge of Any
21
Confidentiality Agreements Prior to Entering the Book Agreement ......... 13
22
4. The Publishing Defendants Did Not Engage In Any Intentional
23 Improper Acts To Enduce Defendant Simkin To Breach Any Contract ... 13

24 B. Plaintiffs Cannot Present Competent and Admissible Evidence Showing

that they Will Probably Prevail on Their Claim for Injunctive Relief............. 14
25
VI. CONCLUSION ............................................................................................................ 14
26

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MOTION TO STRIKE (C.C.P. § 425.16)
 TABLE OF AUTHORITIES
1
CASES
2
Bartnicki v. Vopper,
3 532 U.S. 514 (2001) ................................................................................................................10
4 Blanche Hall v. Time Warner, Inc.,
153 Cal. App. 4th 1337 (2007) .................................................................................................9
5
Briggs v. Eden Council for Hope & Opportunity,
6 19 Cal. 4th 1106 (1999) ........................................................................................................7, 8
7 Church of Scientology v. Wollershem,
42 Cal. App. 4th 628 (1996) .....................................................................................................8
8
Damon v. Ocean Hills Journalism Club,
9 85 Cal. App. 4th 468 (2000) .................................................................................................7, 8
10 Dryden v. Tri-Valley Growers,
65 Cal. App. 3d 990 (1977).....................................................................................................13
11
Equilon Enters. v. Consumer Cause, Inc.,
12 29 Cal. 4th 53, 67 (2002) ......................................................................................................7, 9
13 Gates v. Discovery Communications, Inc.,
34 Cal. 4th 679 (2004) ..............................................................................................................7
14
Gritzke v. M.R.A. Holdings, LLC,
15 2002 WL 32107540 (N.D.Fla. 2002) ........................................................................................9
16 Hilton v. Hallmark Cards,
599 F.3d 894 (9th Cir. 2010).............................................................................................7, 8, 9
17
In re Trombley,
18 31 Cal. 2d 801 (1948) .............................................................................................................12
19 Ingels v. Westwood One Broad. Servs. Inc.,
129 Cal. App. 4th 1050 (2005) .................................................................................................7
20
Jones-Harris v. State,
21 943 A.2d 1272 (Md.App. 2008)................................................................................................2
22 Lafayette Morehouse v. Chronicle Publ’g Co.,
37 Cal. App. 4th 855 (1995) .....................................................................................................7
23
Landmark Comms., Inc. v. Virgina,
24 435 U.S. 829, 838 (1978) ........................................................................................................10
25 Lane v. MRA Holdings, LLC,
242 F.Supp.2d 1205 (M.D.Fla. 2002) .......................................................................................2
26
Lieberman v. KCOP Television, Inc.,
27 110 Cal. App. 4th 156 (2003) ...............................................................................................7, 8
28 Munoz v. Kaiser Steel Corp.,
156 Cal. App. 3d 965 (1984)...................................................................................................12

ii
MOTION TO STRIKE (C.C.P. § 425.16)
 Nicholson v. McLatchy Newspapers,
1 117 Cal. App. 3d 509 (1986)...................................................................................................10
2 Nygard, Inc. v. Uusi–Kerttula,
159 Cal. App. 4th 1027 (2008) .................................................................................................8
3
Quelimane Co. v. Stewart Title Guar. Co.,
4 19 Cal. 4th 26 (1998) ..................................................................................................10, 11, 13
5 Seelig v. Infinity Broadcasting Corp.,
97 Cal. App. 4th 798 (2002) .....................................................................................................7
6
Sipple v. Found. for Nat. Progress,
7 71 Cal. App. 4th 226 (1999) .....................................................................................................9
8 Stewart v. Rolling Stone LLC,
181 Cal. App. 4th 664 (2010) ...........................................................................................7, 8, 9
9
Summit Mach. Tool Mfg. Corp. v. Victor CNC Sys., Inc.,
10 7 F.3d 1434 (9th Cir. 1993).....................................................................................................13
11 Varian Med. Sys., Inc. v. Delfino,
35 Cal. 4th 180 (2005) ..............................................................................................................7
12
STATUTES & OTHER AUTHORITIES
13
5 Witkin, Cal. Proc. 5th (2008) .....................................................................................................14
14
C.C.P. § 425.16 ...................................................................................................................1, 7, 8, 9
15
Cal. Civ. Code § 1624 ...................................................................................................................12
16
Cal. Civ. Code §§ 1575 .................................................................................................................12
17
Cal. Labor Code §§ 206 ................................................................................................................12
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MOTION TO STRIKE (C.C.P. § 425.16)
 1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION
3 The Complaint describes plaintiff Joe Francis as a “businessman and philanthropist.” Here
4 are some other terms used to describe him: convicted felon; child molester; jail-baiting pervert; pimp;
5 sick bastard; sleaze-peddler; tax cheat; rapist; sleazehole; the epitome of a true misogynist, coked-out
6 amoral direct marketer; violent thug; juvenile smut-peddler; sexual predator; one of the 50 most
7 loathsome people in America; and the Douche of the Decade.2 Francis is the notorious man behind
8 the Girls Gone Wild franchise, which features young girls (often intoxicated teenagers) who take off
9 their clothes for cameras in exchange for branded t-shirts and trucker hats. In building his empire,
10 Francis has created a twisted cult of personality, powered by his own criminal/tortious acts and pure
11 vanity, propelling his public persona and his Girls Gone Wild brand into worldwide recognition.
12 He is also highly combative. The public record is replete with reports of his acts of physical
13 abuse against others. In addition to actual violence, Francis uses attorneys to intimidate and coerce
14 his perceived enemies. Despite his occasional crowing about the First Amendment – when it protects
15 the exploitation of drunken girls who flash their breasts to strangers armed with cameras – Francis is
16 not so keen on free speech protections for those who speak out about Francis. Thus, he routinely
17 directs his attorneys to silence individuals and the media with threats of defamation, slander and (as
18 here) claims for tortious interference with a contract. Francis has threatened legal action against
19 bloggers, movie studios, newspapers and book publishers for publishing material to which he takes
20 exception. Indeed, he recently commanded his lawyers to send a nasty letter to the producers of the
21 film Piranha 3D because the film includes a clearly parodic character who videotapes groups of
22 drunken, breast-flashing girls and then this character has a certain body part become a piranha treat.
23 Thus, Francis is the quintessential public figure. Indeed, Francis actively seeks out, if not
24 lives and breathes for, public attention. Francis and his companies are the proper subjects of
25 commentary, discussion and debate. Not all of it will be to his liking. No matter how wealthy and
26 “lawyered-up” he may be, Francis has no right to silence reporting about him or his companies.
27

28 2
See Declaration of Lincoln D. Bandlow (“LDB Decl.”), Exs. 1-56, and Section II(A), infra.

1
MOTION TO STRIKE (C.C.P. § 425.16)
 1 Here, Francis wants to do exactly that: he has brought suit to stop the publication of the book

2 FLASH! Bars, Boobs and Busted: 5 Years on the Road with Girls Gone Wild (the “Book”), written

3 by defendant Ryan Simkin (“Simkin”) and published by moving defendants, 4th Street Media L.L.C.

4 and 4 Park Publishing (“Publishing Defendants”). The Book chronicles Simkin’s experiences

5 working for Girl’s Gone Wild over the last decade. Plaintiffs seek damages and injunctive relief,

6 through the guise of an intentional interference with contract claim, to punish the Publishing

7 Defendants for their fully-protected speech. As set forth below, the California anti-SLAPP statute,

8 Code of Civil Procedure § 425.16 (“Section 425.16”) thwarts just such an effort. Accordingly,

9 Plaintiffs’ claims against the Publishing Defendants must be stricken and dismissed with prejudice.

10 II. STATEMENT OF FACTS

11 A. Joe Francis, GGW Brands and Mantra Films

12 Both GGW Brands, Inc. (“GGW Brands”) and non-party Mantra Films, Inc. (“Mantra”) are

13 part of the Girls Gone Wild franchise built by Francis. Described as a “global media company

14 specializing in lifestyle entertainment” (Complaint ¶ 5), in reality, Mantra offers a massive catalog of

15 videos that feature intoxicated young women exposing themselves and/or engaging in sex acts with

16 other women. Declaration of Brian Howie (“Howie Decl.), ¶ 14, Ex. “B”; Lane v. MRA Holdings,

17 LLC, 242 F. Supp. 2d 1205, 1209 (M.D. Fla. 2002) (Girls Gone Wild videos consist of “footage

18 depicting young women exposing themselves on beaches, along streets, in bars, and in other public

19 places”); Jones-Harris v. State, 943 A. 2d 1272, 1289 (Md. App. 2008) (Girls Gone Wild is a “soft

20 porn video series” which “shows young inebriated women engaging in heterosexual and bisexual acts

21 and exposing almost every conceivable anatomical part”). The videos are usually taped in drinking

22 establishments, and rented RV’s located nearby, which are sponsored by Plaintiffs and which bear

23 the Girls Gone Wild mark. Howie Decl., ¶ 14, Ex. “B.” The videos are available via pay-per-view,

24 the internet and the U.S. Postal Service. Id. GGW Brands publishes a magazine entitled Girls Gone

25 Wild, which features printed matter akin to the videos produced by Mantra. Complaint ¶ 6.

26 Plaintiffs concede that Francis and his companies are matters of intense public interest,

27 alleging that Francis turned the Girls Gone Wild franchise into a “multi-million dollar global media

28 enterprise” (Complaint ¶ 1) that is “one of the most recognizable brands in the lifestyle entertainment

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MOTION TO STRIKE (C.C.P. § 425.16)
 1 business.” Id. In a 2006 Los Angeles Times exposé, Francis related that a big part of his job is

2 “simply to be seen.” LDB Decl., Ex. 1, at 2. Francis further noted: “Everything that gets covered in

3 my name drives the business . . . The two are synonymous. You have to play the image up.” Id. at 3.

4 On his website, Francis touts that the Girls Gone Wild brand has “expanded into more than two

5 dozen countries around the world” and that the phrases “Girls Gone Wild” and “Gone Wild” have

6 “entered the vernacular of countries across the globe just as they have in the United States.” Id., Ex.

7 46. His pending wedding to an entertainment reporter has been covered by news outlets such as Fox,

8 Dallas Morning News, New York Post, Huffingtonpost, NBC, Business Insider, KTLA and E!

9 Online. LDB Decl., Exs. 23-30. Nevertheless, Francis complains that the press is too critical or, as

10 he so eloquently puts it, that he has been “anally raped over and over by the media.” Id., Ex. 1.

11 Francis has himself to blame for his bad press. In 2008, he was convicted on felony child

12 abuse and prostitution charges relating to an incident involving the filming of underage girls in

13 Florida. LDB Decl., Exs. 2, 18. Ever humble, in a Fox News interview, Francis compared his

14 persecution to that of Jesus Christ and his treatment in jail to Abu Gharib. Id., Ex. 21. In 2007, he

15 was found in contempt of court for calling the judge “out of his mind” and “a judge gone wild.” Id.,

16 Exs. 4, 5. In 2009, he was convicted of filing a false tax return. Id., Exs. 18, 38. Francis has been

17 named in at least one restraining order and numerous civil lawsuits. Id., Exs. 1, 18. By way of

18 example only, in 2003, Francis was sued by a woman who helped him plan a Halloween party who

19 Francis allegedly threatened and cursed out, causing the pregnant woman to have a miscarriage. Id.

20 He has been ordered to pay Casino mogul Steve Wynn millions of dollars in unpaid gambling debts,

21 only to respond to such an award by accusing Wynn of threatening to murder him. Id., Ex. 18, 44.

22 Francis’ conduct has resulted in numerous detractors. Readers of a popular internet blog,

23 Gawker.com, voted Francis the “Douche of the Decade.” LDB Decl., Ex. 6. Another blog listed

24 Francis as one of the top 5 “Infamous Jailbaiting Perverts.” Id., Ex. 10. USA Today recognized the

25 Girls Gone Wild brand as one of the “25 Trends that Changed America” (along with Paris Hilton,

26 Hooters and erectile dysfunction advertisements). Id., Ex. 11. A newspaper put Francis in the “Top

27 10 Celebrity Tax Evaders.” Id., Ex. 12. Francis has been called a “Wal-Mart of Slime” (id., Ex. 13);

28 the “second worst person in the world” (next to Mel Gibson) (id., Ex. 40); and a “multimillionaire

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MOTION TO STRIKE (C.C.P. § 425.16)
 1 who made his fortune by cynically exploiting underage young women” whose videos documented the

2 “decline of American civilization” and who “proved daily that alcohol is the original date rape drug"

3 (id., Ex. 42). One commentator summed up Francis by saying “[w]hat Martin Luther King was to

4 black Americans, Joe Francis is to worthless lowest-common-denominator national embarrassments.”

5 Id., Ex. 32. A Florida District Court Judge was more succinct, calling Francis “the devil.” Id., Ex. 5.

6 B. Plaintiffs’ Efforts to Restrict Free Speech

7 This lawsuit is the latest effort by Francis to restrain speech. In late 2009, Francis threatened

8 Gawker with a libel lawsuit, saying he was going to “wipe [them] off the grid.” LDB Decl., Exs. 7-9.

9 In February 2010, Francis’ libel claims against a Playboy model were dismissed on an anti-SLAPP

10 motion. Id., Ex. 48. In May 2010, Francis threatened another website with claims for libel and

11 tortious interference with contract for publishing reports that Francis physically attacked a pregnant

12 employee. Id., Ex. 49. In an August 12, 2010 letter, Francis’ attorneys threatened action against the

13 producers of the recently released film Pirahna 3D because it has a character which parodies Francis

14 and his Girls Gone Wild enterprise. Id., Ex., 50. Thus, although he says in the Complaint that he is

15 “one of the most vocal advocates of an individual’s right of free speech” (Complaint ¶ 4), that is not

16 how Francis has behaved. Rather, his philosophy is simple: Free speech for me, but not for thee.

17 C. The Publishing Defendants and the Book

18 The Publishing Defendants are the brainchildren of Brian Howie, a successful director and

19 producer. Howie Decl., ¶¶ 2, 3. Howie recently founded both 4th Street Media, which is dedicated

20 to releasing books written by and geared toward women, and 4 Park Publishing, a subsidiary that

21 operates under the motto “A Fresh Dose of Reality.” Id. Another of the Publishing Defendants’

22 principals, Shelli Stutz, graduated from Cornell Law School and is licensed to practice law in

23 California. Declaration of Shelli Stutz (“Stutz Decl.)”, ¶ 1. While Stutz sometimes provides the

24 Publishing Defendants with legal assistance, most of her work concerns general business affairs. Id.

25 Howie first met both Francis and Simkin in or around 2003 at a Girls Gone Wild party in New

26 Orleans. Howie Decl., ¶ 4; Declaration of Ryan Simkin (“Simkin Decl.”), ¶ 6. At that time, Simkin

27 was an event coordinator responsible for managing the event venue, equipment, cameramen and

28 security for Girls Gone Wild events. Simkin Dec., ¶¶ 3-7. Howie was producing an off-Broadway

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MOTION TO STRIKE (C.C.P. § 425.16)
 1 show featuring women who told personal stories. Howie Decl., ¶ 3. Howie’s play, and events

2 surrounding the play, frequently brought Howie, Francis and Simkin together. Howie Decl., ¶ 5;

3 Simkin Decl., ¶ 6. Francis and Simkin repeatedly held Simkin out to be a high-ranking member of

4 Francis’ organization, often referring to Simkin as Francis’ “right-hand man.” Howie Decl., ¶ 5. Id.

5 In 2005, Simkin mentioned to Howie that he was working on a book about his years with

6 Girls Gone Wild. Howie Decl., ¶ 6; Simkin Decl., ¶ 9. Howie liked the idea and offered to help find

7 a publisher (at the time, Howie had not yet founded either of the Publishing Defendants). Id. Simkin

8 did not state that he had signed any non-disclosure agreements or that he was in anyway prohibited

9 from making the book. Id. While Howie and Simkin did not at that time take any steps to get the

10 book published, they worked together in 2006 on a theatrical show and in December 2007 on a play

11 written by Simkin titled Boys Dumb/Girls Crazy. Howie Decl., ¶ 7; Simkin Decl., ¶ 10.

12 In January of 2010, after founding the Publishing Defendants, Howie reached out to potential

13 authors, including Simkin. Howie Decl., ¶ 8. Howie and Simkin discussed making Boys Dumb/Girls

14 Crazy into a book. Howie Decl., ¶ 8; Simkin Decl., ¶ 14. Simkin also told Howie that “they” had

15 been shopping a book about Simkin’s Girls Gone Wild experiences. Id. Based on the circumstances

16 and Simkin’s representations, Howie understood “they” to be Simkin and Francis, i.e., that Francis

17 was helping Simkin sell his book. Howie Decl., ¶ 8. This understanding was later amply confirmed.

18 Francis not only approved of Simkin publishing a Girls Gone Wild book, Francis actually helped

19 Simkin meet publishers and agents who might be able to buy such a book. Simkin Decl., ¶¶ 11-12.

20 On February 16, 2010, Simkin and the Publishing Defendants signed an agreement to publish

21 a book (“Book Agreement”), which was predicated on Simkin having the legal right to discuss Girls

22 Gone Wild events and the Book containing “anecdotes, experiences, opinions, facts, celebrity

23 encounters, and circumstances” based on Simkin’s time with Girls Gone Wild. Howie Decl., ¶¶ 9-11,

24 Ex. A at 1; Simkin Decl., ¶ 16. In exchange, Simkin received a $10,000 advance and the right to

25 receive a percentage of the profits. Id. Moreover, Simkin warranted that he “has the right to enter

26 into this [Book] Agreement and owns and can convey the rights granted” to the Publishing

27 Defendants. Howie Decl., Ex. A, at ¶ 15(A).

28

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 1 In addition, the Publishing Defendants repeatedly asked Simkin whether he ever entered any

2 confidentiality agreements with Francis, Mantra or related entities. Stutz Decl., ¶¶ 3-5. In response,

3 Simkin represented that he might have entered into an employment agreement, but that if he had, it

4 did not include a confidentiality or non-disparagement clause. Simkin Decl., ¶¶ 5, 15. Simkin said

5 he was responsible for obtaining confidentiality agreements with other Mantra employees (including

6 cameramen, whom Simkin managed) – but that he did not sign any such agreement himself. Id.

7 Simkin also represented that he was in contact with the former in-house counsel for Mantra, who had

8 advised Simkin that Simkin had the legal right to publish such a book. Stutz Decl., ¶ 4.

9 Based on the warranties in the Book Agreement, and Simkin’s verbal representations, the

10 Publishing Defendants executed the Book Agreement and paid Simkin a $10,000 advance. Stutz

11 Decl., ¶¶ 4-6; Howie Decl., ¶¶ 8-9. In the weeks following the February 2010 execution of the Book

12 Agreement, Simkin, Howie and Stutz worked tirelessly to write and edit the Book. Howie Decl., ¶

13 11; Simkin Decl., ¶ 17. While the contents of the Book are drawn from Simkin’s accounts of his

14 experiences coordinating Girls Gone Wild events, the Publishing Defendants invested significant

15 time and money to turn Simkin’s experiences into the final written product. Id. The Book was

16 complete, other than some editing, by late April 2010. Howie Decl., ¶ 11.

17 After the Book was completed and ready for printing, the Publishing Defendants for the first

18 time received notice that Simkin purportedly executed a confidentiality or non-disparagement

19 agreement. In May 2010, Stutz reached out to Francis as a courtesy to see if Francis wanted to play a

20 part in the Book’s publication. Stutz Decl., ¶¶ 8-11, Exs. “C”-“F.” Francis responded with pure

21 vitriol, firing off a nasty email saying that Stutz “fucked with the wrong guy” and that he was going

22 to “take EVERYTHING YOU HAVE AND [Simkin] HAS.” Id., ¶ 11, Ex. “F.”

23 A few days later, Mantra’s lawyer followed up with a cease-and-desist letter, which attached

24 two agreements that Mantra contended precluded Simkin from making certain disclosures regarding

25 his work for Mantra and Francis. Howie Decl., ¶ 12. Until receiving this letter, the Publishing

26 Defendants had not seen any such agreements or any other evidence that such agreements existed

27 (aside from the aforementioned email from Francis). Id. The Publishing Defendants were surprised

28

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MOTION TO STRIKE (C.C.P. § 425.16)
 1 to learn that Simkin supposedly signed an agreement with a non-disparagement provision on

2 February 17, 2010 – the day after he executed the Book Agreement. Id.

3 III. LEGAL STANDARDS CONCERNING CALIFORNIA’S ANTI-SLAPP STATUTE

4 A. Two-Step Process to Determine Whether a Claim Must be Stricken

5 California’s anti-SLAPP statute creates a two-step process for determining whether an action

6 should be stricken. Varian Med. Sys., Inc. v. Delfino, 35 Cal. 4th 180, 192 (2005). The court first

7 decides whether defendant has shown that the acts complained of were taken in furtherance of the

8 defendant’s right of free speech “in connection with a public issue.” Equilon Enters. v. Consumer

9 Cause, Inc., 29 Cal. 4th 53, 67 (2002); C.C.P. § 425.16(e)(4). Once the first prong is shown, the

10 burden shifts to the plaintiff to demonstrate a probability of success on its claims. If this burden

11 cannot be met, the claims must be stricken. Equilon Enters., 29 Cal. 4th at 67; C.C.P. § 425.16(b)(1).

12 B. The Anti-SLAPP Statute Broadly Protects Media and Entertainment Defendants

13 The anti-SLAPP statute encourages participation in matters of public significance by targeting

14 “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of

15 speech.” Equilon Enterprises, 29 Cal. 4th at 59-60 (quoting C.C.P. § 425.16(a)). In 1997, Section

16 425.16(a) of the anti-SLAPP statute was amended to ensure that it “shall be construed broadly.” See

17 Briggs v. Eden Council, 19 Cal. 4th 1106, 11231-22, 1125 (1999). Section 425.16 is routinely

18 applied to protect media and entertainment defendants who distribute such works as newspapers and

19 magazines (Lafayette Morehouse v. Chronicle Publ’g Co., 37 Cal. App. 4th 855, 863-64 (1995) and

20 Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 677-78 (2010)); community newsletters

21 (Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 479 (2000)); greeting cards (Hilton v.

22 Hallmark Cards, 599 F.3d 894, 904 (9th Cir. 2010)); and television/radio programming (Lieberman

23 v. KCOP Television, Inc., 110 Cal. App. 4th 156, 165 (2003)), Seelig v. Infinity Broad. Corp., 97 Cal.

24 App. 4th 798, 807-08 (2002)) and Ingels v. Westwood One Broad. Servs. Inc., 129 Cal. App. 4th

25 1050, 1055-56 (2005)). Courts draw no distinction between reports concerning “news,” like politics

26 and world affairs, and reports concerning “entertainment,” like celebrities and pop culture. Gates v.

27 Discovery Communications, Inc., 34 Cal. 4th 679, 695 (2004) (freedom of speech protections “apply

28 with equal force to the publication whether it be a news report or an entertainment feature”); Hilton,

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MOTION TO STRIKE (C.C.P. § 425.16)
 1 599 F.3d at 905 (“the activity of the defendant need not involve questions of civic concern; social or

2 even low-brow topics may suffice”).

3 C. The Anti-SLAPP Statute Applies to “Any Kind of Claim” Interfering with Free

4 Speech Rights – Including Claims for Tortious Interference

5 The anti-SLAPP statute is specifically geared to curb claims for tortious interference. Briggs

6 v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1125 (1999); Nygard, Inc. v. Uusi–

7 Kerttula, 159 Cal. App. 4th 1027, 1039 (2008) (striking claim for tortious interference with an

8 employment agreement calling for employee’s confidentiality). Its application is not, however,

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

10 (1996). The Legislature acknowledged that “all kinds of claims could achieve the objective of a

11 SLAPP suit – to interfere with and burden the defendant’s exercise of his or her rights.” Id. at 652;

12 see also Hilton, 599 F.3d at 905 (“the particular cause of action [plaintiff] has brought is irrelevant”

13 to the first prong issue); Stewart, 181 Cal. App. 4th at 679 (“we do not evaluate the first prong of the

14 anti-SLAPP test solely through the lens of a plaintiff's cause of action”).

15 IV. PLAINTIFFS’ CLAIMS TAKE AIM AT THE PUBLISHING DEFENDANTS’

16 EXERCISE OF THEIR FREE SPEECH RIGHTS IN PUBLISHING A BOOK THAT

17 CONCERNS NUMEROUS MATTERS OF PUBLIC INTEREST

18 Section 425.16(e)(4) encompasses any claim that arises from, or is based on, acts taken in

19 furtherance of the exercise of speech rights “in connection with a public issue or an issue of public

20 interest.” C.C.P. § 425.16(e)(4). First, the development and publication of the Book is obviously an

21 exercise in speech. See Lieberman, 110 Cal. App. 4th at 166 (gathering of information for

22 publication constituted an act “in furtherance” of free speech and satisfied first prong of the anti-

23 SLAPP statute). Second, the Book satisfies the “public interest” requirement – particularly given the

24 broad interpretation given to that term. The definition of “public interest” has been “broadly

25 construed to include not only governmental matter, but also private conduct that impacts a broad

26 segment of society.” Damon, 85 Cal. App. 4th at 479. Any matter in which the public takes interest

27 is a “public interest” – regardless of its overall societal importance. See, e.g., Nygard, 159 Cal. App.

28 4th at 1039 (statements about colorful Finnish businessperson in the public interest); Sipple v. Found.

8
MOTION TO STRIKE (C.C.P. § 425.16)
 1 for Nat. Progress, 71 Cal. App. 4th 226, 239 (1999) (article about political consultant in the public

2 interest); Blanche Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337 (2007) (article about Marlon

3 Brando in public interest); Stewart, 181 Cal. App. 4th at 677-78 (magazine foldout about a “popular

4 genre of music” in public interest).

5 Here, the Book relates to numerous issues of public interest: Francis; the celebrities that

6 Francis has dated and who revolve around him; Girls Gone Wild videos and the public’s reaction to

7 them; drug and alcohol use; free speech; obscenity laws and many others. See Howie Decl., Ex. “B.”

8 Plaintiffs themselves have conceded as much. See Gritzke v. M.R.A. Holdings, LLC, 2002 WL

9 32107540 (N.D. Fla. 2002) (asserting that footage of college student who exposed herself for Girls

10 Gone Wild video was “footage of a newsworthy public event”). Although to many he is a shallow

11 profiteer who exploits his performers and customers alike, Francis has clearly captured the public’s

12 attention (or at least their morbid curiosity) and is part of our popular culture, already leading one

13 court to hold that speech about Francis satisfies the anti-SLAPP statute. LDB Decl., Ex. 48. The

14 Book also contains substantial information about the well-known celebrity, Paris Hilton (see Howie

15 Decl., Ex. B), and thus the Book meets the first prong for that reason alone. See Hilton, 599 F.3d at

16 907 (first prong met because greeting card concerned Paris Hilton and there is a public interest in

17 Paris Hilton’s “life, image, and catchphrase”). Accordingly, the first prong of the Anti-SLAPP

18 statute is clearly met.

19 V. PLAINTIFFS CANNOT DEMONSTRATE A PROBABILITY OF SUCCESS ON

20 THEIR CLAIMS AGAINST THE PUBLISHING DEFENDANTS

21 Because the Publishing Defendants satisfied the first prong of the anti-SLAPP statute’s test,

22 the burden shifts to Plaintiffs to present “competent and admissible evidence’ showing that they will

23 “probably” prevail on their claims. Equilon Enters., 29 Cal. 4th at 67; C.C.P. § 425.16. Plaintiffs

24 cannot meet this burden and thus their claims against the Publishing Defendants must be stricken.

25 A. Plaintiffs’ Tortious Interference With Contractual Relations Claim Fails

26 Plaintiffs asserting a tortious interference with contract claim must establish: (1) a valid

27 contract between plaintiff and a third party; (2) defendant’s knowledge of that contract; (3) defendant

28 engaged in intentional improper acts to induce the third party to breach the contract; (4) an actual

9
MOTION TO STRIKE (C.C.P. § 425.16)
 1 breach of the contract; and (5) damages suffered as a result of the breach. Quelimane Co. v. Stewart

2 Title Guar. Co., 19 Cal. 4th 26, 55 (1998). Plaintiffs’ claim fails for a number of different reasons.

3 1. The First Amendment Bars Plaintiffs’ Claim

4 This lawsuit attempts to restrain speech about numerous public issues and flies in the face of

5 the Publishing Defendants’ First Amendment rights. Indeed, it is ironic that pornographers such as

6 Plaintiffs would be biting the hand from which they are fed. Courts have consistently extended free

7 speech protection to the type of newsgathering and publishing activity upon which Plaintiffs’ tortious

8 interference claim is predicated. Thus, the First Amendment bars Plaintiffs’ claim.

9 Identical claims were dismissed on demurrer in Nicholson v. McLatchy Newspapers, 117 Cal.

10 App. 3d 509 (1986). In Nicholson, the plaintiff, an attorney, was under consideration for a judicial

11 appointment and received a “not qualified” rating by the State Bar. California law states that such

12 ratings are confidential and the newspaper defendants supposedly conspired with the State Bar to

13 disclose and print that information. Id., at 514. The Court held that the solicitation and publication

14 of information, even information known to be confidential, was protected by the First Amendment:

15 [T]he First Amendment protects the ordinary news gathering techniques of

reporters and those techniques cannot be stripped of their constitutional
16
shield by calling them tortious. . . . In fact, “without some protection for
17 seeking out the news, freedom of the press could be eviscerated.” [citation] The
First Amendment, therefore bars interference with this traditional function
18 of a free press in seeking out information by asking questions. Thus it is that
“a journalist is free to seek out sources of information not available to members of
19 the general public, that he is entitled to some constitutional protection of the
20 confidentiality of such sources and that government cannot restrain the
publication of news emanating from such sources.” [citation] Consequently, the
21 news gathering component of the freedom of the press-the right to seek out
information-is privileged at least to the extent it involves “routine ... reporting
22 techniques.” [citation] Such techniques, of course, include asking persons
questions, including those with confidential or restricted information.
23

24 Id., at 513, 519-520; see also Landmark Comms., Inc. v. Virgina, 435 U.S. 829, 838, 841 (1978)
25 (rejecting criminal sanctions against newspaper that printed obviously confidential information);
26 Bartnicki v. Vopper, 532 U.S. 514 (2001) (media defendant could not be precluded from publishing
27 illegally obtained taped conversation about matter of public concern).
28

10
MOTION TO STRIKE (C.C.P. § 425.16)
 1 Thus, the Publishing Defendants’ acts are protected even if Plaintiffs’ could otherwise state a

2 claim for tortious interference (they cannot). The Complaint alleges that the Publishing Defendants

3 solicited information from Simkin and later printed that information in the Book. Complaint ¶ 30.

4 That conduct is protected by the First Amendment regardless of whether Simkin was under a legal

5 obligation not to make such disclosures (he was not) and/or whether the Publishing Defendants knew

6 of Simkin’s legal obligations (they did not). In other words, the act of publishing information that

7 comes from a person the publisher knows is legally bound not to disclose it is a “routine reporting

8 technique” protected by the First Amendment and immune from tort liability.

9 2. No Valid Contract Precluded Defendant Simkin from Disclosing Any

10 Information to the Publishing Defendants

11 To prevail on a claim of tortious interference with a contract, a plaintiff must establish the

12 existence of a valid, enforceable contract. Quelimane, 19 Cal. 4th at 55. The Complaint alleges the

13 existence of a hodgepodge of supposed agreements thrown against the wall in the hopes that one

14 might apply and be enforceable. The supposed agreements unravel upon the slightest of scrutiny.

15 2002 or 2003 Non-Disclosure Agreement (not attached to Complaint). The Complaint alleges

16 the existence of a non-disclosure agreement, dated either in 2002 or 2003, entered into by Mantra and

17 Simkin. Complaint ¶ 16. Critically, however, Plaintiffs do not attach a copy of this agreement but

18 allege that it was their “policy and practice” to have cameramen sign such agreements. Plaintiffs

19 aver that Simkin was a cameraman and therefore must have signed a similar agreement. Id. This

20 averment is based “on information and belief.” Id. In the face of these averments, Simkin states

21 under penalty of perjury in the concurrently-filed Declaration that he was never a cameraman and

22 never signed a non-disclosure agreement in 2002 or in 2003. See Section II(C), supra.

23 October 2005 Non-Disclosure Agreement (Exhibit “A” to Complaint). The Complaint further

24 alleges the existence of an October 18, 2005 confidentiality agreement. As set forth above, however,

25 Simkin’s October 2005 window of employment lasted only a few weeks. The information that

26 Simkin disclosed to the Publishing Defendants consisted primarily of information obtained long

27 before 2005. The Complaint does not identify a single fact that was simultaneously (a) confidential,

28

11
MOTION TO STRIKE (C.C.P. § 425.16)
 1 (b) acquired by Simkin during this short stint of employment, and (c) disclosed by Simkin to the

2 Publishing Defendants.

3 February 2010 Acknowledgment of Receipt of Wages (Exhibit “C” to Complaint). The

4 Complaint also alleges that Simkin’s disclosures breached an agreement dated February 17, 2010.

5 This agreement purports to prohibit Simkin from speaking to anyone about anything learned during

6 any of this multiple stints of employment with Mantra. The non-disclosure clause of this agreement

7 is unenforceable and reflects a violation California Labor laws. In 2008, Francis hired Simkin to

8 write articles for Plaintiffs’ magazine. Simkin Decl., ¶ 11. Simkin performed the work, conveyed

9 the writings and submitted an invoice. Francis, however, refused to pay Simkin the due and owing

10 wages. After significant begging by Simkin, Francis agreed to pay Simkin $2,700, but conditioned

11 the payment upon Simkin signing a non-disparagement clause.

12 That “condition” more than voids the agreement – it violates California law. Employers

13 cannot condition the payment of wages owed upon releases or a discount of the indebtedness. See,

14 e.g., Cal. Labor Code §§ 206, 206.5, 216; In re Trombley, 31 Cal. 2d 801, 809 (1948) (an employer

15 who refuses to pay owed wages “acts against good morals and fair dealing, and necessarily

16 intentionally does the act which prejudices the rights of his employee”); Cal. Civ. Code §§ 1575,

17 1668. To do so is a criminal act. Labor Code Section 206.5(a). Setting aside the propriety, morality

18 and legality of withholding wages due, the release in the February 2010 agreement is not enforceable.

19 Various Undated Oral Agreements. The Complaint also avers that Simkin orally agreed not

20 to disclose “confidential information” and/or information disparaging to Plaintiffs. See, e.g.,

21 Complaint ¶ 2, 13. Of course, an oral agreement “never” to disclose or disparage is violative of the

22 statute of frauds in that it cannot be performed in one year. Cal. Civ. Code § 1624(a)(1); Munoz v.

23 Kaiser Steel Corp., 156 Cal. App. 3d 965, 971 (1984) (oral employment agreement held

24 unenforceable under statute of frauds). Even if the Complaint otherwise adequately stated a claim for

25 the tortious interference with an oral agreement,3 that claim would be barred by the statute of frauds.

26

27
3
Moreover, the Complaint fails to assert a claim for the breach of an oral agreement. Rather,
28 Plaintiffs’ contract claim is styled “Breach of Written Contract.”

12
MOTION TO STRIKE (C.C.P. § 425.16)
 1 3. The Publishing Defendants Had No Knowledge of Any Confidentiality

2 Agreements Prior to Entering the Book Agreement

3 Even if Plaintiffs somehow establish the existence of a valid contract, they will not be able to

4 prove that the Publishing Defendants had any knowledge of any such agreement prior to the

5 execution of the Book Agreement or Simkin’s disclosure of the information contained in the Book.

6 The defendant’s knowledge is an essential element to a claim for tortious interference. See

7 Quelimane, 19 Cal. 4th at 55; Summit Mach. Tool Mfg. Corp. v. Victor CNC Sys., Inc., 7 F.3d 1434,

8 1442 (9th Cir. 1993) (applying California law and rejecting tortious interference claim where plaintiff

9 failed to establish defendants’ prior knowledge of agreement). As set forth in the accompanying

10 declarations, the Publishing Defendants had no knowledge that Simkin was purportedly under any

11 contractual obligation not to disclose information. See Section II(C), supra.

12 The Publishing Defendants relied on Simkin’s oral and written representation to enter into the

13 Book Agreement and work with Simkin on the Book. Id. The Publishing Defendants were not made

14 aware of any supposed contracts that would prohibit Simkin from disclosing the information set forth

15 in the Book until mid-May 2010. By that time, the parties had already entered into the Book

16 Agreement, the Publishing Defendants had already forwarded Simkin his $10,000 advance, and the

17 Book was substantively complete. Id. The Publishing Defendants had every right to publish the

18 Book, regardless of Simkin’s contractual obligations. Dryden v. Tri-Valley Growers, 65 Cal. App. 3d

19 990, 996 (1977) (there is no requirement that parties “rescind a contract lawfully entered into on the

20 ground that it might offend the legal rights of others”). Because the Publishing Defendants did not

21 know of a valid contract prior to executing the Book Agreement and/or receiving the information

22 from Simkin, Plaintiffs’ tortious interference claim fails.

23 4. The Publishing Defendants Did Not Engage In Any Intentional Improper

24 Acts To Enduce Defendant Simkin To Breach Any Contract

25 In addition to having no knowledge of any contract between Simkin and Plaintiffs, the

26 Publishing Defendants certainly did not engage in any intentional improper acts to enduce Simkin to

27 breach any contract. Indeed, they did exactly the opposite: they required Simkin to specifically

28 represent and warrant in the Book Agreement that he was not breaching any such contract. They

13
MOTION TO STRIKE (C.C.P. § 425.16)
 1 repeatedly asked him to confirm that he was not breaching any such contract. Finally, the only “acts”

2 that the Publishing Defendants undertook as to Simkin was to pay him an advance for his writing

3 services. Thus, Plaintiffs cannot show that the Publishing Defendants engaged in any intentional

4 improper acts to somehow induce Simkin to breach a contract.

5 B. Plaintiffs Cannot Present Competent and Admissible Evidence Showing that they

6 Will Probably Prevail on Their Claim for Injunctive Relief

7 Plaintiffs’ only other claim against the Publishing Defendants, for injunctive relief, is

8 predicated on, and derivative of, its tortious interference claim. To state a “claim” for injunctive

9 relief, a plaintiff must first prove-up a tort or other wrong that necessitates such relief. 5 Witkin, Cal.

10 Proc. 5th (2008) Plead, § 823, p. 239. Plaintiffs’ injunctive relief claim merely incorporates by

11 reference the previous allegations and asserts that their remedies at law are inadequate. Complaint ¶¶

12 33-35. Therefore, just as Plaintiffs’ tortious inference claim must fail, so to must their claim for

13 injunctive relief.

14 VI. CONCLUSION

15 As numerous lawsuits set forth in the LDB Decl. attest, over the years a number of young

16 women who have woken up, or sobered up, the day after a long night of partying and realized that

17 they traded their dignity for a set of Mardi Gras beads, have sued Francis and his company to stop the

18 distribution of these women's filmed folly. In response to such lawsuits, nobody has trumpeted the

19 First Amendment more loudly than Joe Francis. Now, when the protective blare of that trumpet is

20 necessary to protect a work about Francis and the iconic Girls Gone Wild empire, Plaintiffs seek to

21 silence it. Fortunately, the California Legislature created the anti-SLAPP statute to make sure

22 Plaintiffs’ effort will not succeed. For all of the foregoing reasons, the motion should be granted.

23
Dated: September 7, 2010 LATHROP & GAGE LLP
24

25

26 By:
Lincoln D. Bandlow
27 Attorneys for 4TH STREET MEDIA, L.L.C., and
4 PARK PUBLISHING
28

14
MOTION TO STRIKE (C.C.P. § 425.16)