Electronically FILED by Superior Court of California, County of Los Angeles on 06/07/2019 05:07 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by B. McClendon,Deputy Clerk

1 VENABLE LLP
Michael J. O'Connor(SBN 90017)
2 MJO'Connor@venable.com
Sarah L. Cronin(SBN 252624)
3 SLCronin@venable.com
Cary L. Finkelstein(SBN 302138)
4 CLFinkelstein@venable.com
2049 Century Park East, Suite 2300
5 Los Angeles, CA 90067
Telephone: 310.229.9900
6 Facsimile: 310.229.9901

7 Attorneys for Defendant

BRYAN BEHAR
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
1N AND FOR THE COUNTY OF LOS ANGELES
10

11
JEFF FRANKLIN,an individual; and MOOSE Case No. 19SMCV00721
0 12 PRODUCTIONS,INC., a California
corporation, Assigned to: Hon. Craig D. Karlan,
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OF DEFENDANT BRYAN BEHAR TO
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PROCEDURE; MEMORANDUM OF
0 17 POINTS AND AUTHORITIES
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BRYAN BEHAR,an individual; and DOES 1-
18 50, inclusive, Action Filed: April 16, 2019
Trial Date: None Set
19
Defendant. [Declarations ofBryan Behar, Silisha
20 Platon, Michael J. O'Connor and
[Proposed) Order Filed Concurrently
21 Herewith]

22 Date: December 5, 2019

Time: 8:30 a.m.
23 Dept.: N

24 Reservation Ill: 035850192374

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DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT

CASE NO. 19SMCV00721
 1 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on December 5, 2019, at 8:30 a.m., or as soon thereafter

3 as the matter be may heard before the Honorable Craig D. Karlan in Dept. N of the above-entitled

4 Court located at 1725 Main Street, Santa Monica, California 90401, Defendant Bryan Behar

5 ("Behar") will and hereby does move this Court, pursuant to Section 425.16 of the California

6 Code of Civil Procedure (the "anti-SLAPP statute"), for an order striking the sole cause of action

7 in the Complaint filed by Plaintiffs Jeff Franklin ("Franklin") and Moose Productions, Inc.

8 ("Moose Productions")(collectively with Franklin, "Plaintiffs").

9 Good cause exists to grant this motion. First, prong one of the anti-SLAPP statute is

10 satisfied for two independent reasons, namely because (1)Plaintiffs' claims are based upon

11 statements allegedly made in a public forum in connection with an issue of public interest, and

0 12 (2)Plaintiffs' claims arise from Behar's conduct in furtherance of his right to free speech in
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statute because:(1) Behar's conduct was not independently wrongful; and (2) Behar's conduct
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18 Behar also requests that he be awarded his attorneys' fees and costs incurred in defending

19 against this meritless lawsuit pursuant to Section 425.16(c) of the California Code of Civil

20 Procedure. Code of Civil Procedure § 425.16(c) mandates that the prevailing defendant on an

21 anti-SLAPP motion "shall" recover that party's attorneys' fees and costs. If the Court grants this

22 Motion, Behar will file a separate fee motion and memorandum of costs. See Ketchum v. Moses,

23 24 Cal. 4th 1122, 1131-32(2001).

24 This Motion is based on this Notice of Motion, the accompanying Memorandum of Points

25 and Authorities, the Declarations of Bryan Behar, Silisha Platon, Michael J. O'Connor, and all of

26 the pleadings and other documents on file in this case, and any further argument or evidence that

27 may be received by the Court at the hearing on the Motion.

28

1
,x'S M~i~i~ty ~i~~ si~xr; YLaiN iirr5°
CASE NO. 19SMCV00721
 1 Pursuant to Code Civ. Proc. § 425.160, Behar attempted to reserve a hearing date within

2 30 days ofthis notice, however the docket conditions of the Court require a later hearing.

3 Dated: June 7, 2019 VENABLE LLP

4 1
By:
s Michael J. O'Co r
Sarah L. Cronin
6 Cary L. Finkelstein
Attorneys for Defendant Bryan Behar
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,R'S MOTION TO STRIKE PLAINTIFFS'
CASE NO. 19SMCV00721
 1 TABLE OF CONTrNTS
I. INTRODUCTION ....................................................................................................1
2
II. FACTUAL BACKGROUND ...................................................................................3
3
A. Franklin Is Hired As Showrunner And Behar As A Writer For Fuller
4 House ............................................................................................................3
5 B. After Receiving A Complaint In 2016, Warner Bros. Investigates
Franklin's Workplace Behavior, Resulting In Verbal Counseling ...............3
6
C. After Receiving Two More Complaints At The End Of2017, Warner Bros.
7 Initiates Another Investigation Into Franklin's Workplace Behavior...........3
8 D. Behar Was Selected To Be Interviewed At The End Of The Investigation
And Confirmed Only Some Of The Less Serious Statements About
9 Franklin .........................................................................................................5
10 E. Warner Bros.' Decision To Not Renew Franklin's Contract For Fuller
House Was Not Based On Statements Made By Behar In The
11 Investigation..................................................................................................5
12 F. The Press Reported On Franklin's Ouster From Fuller House Amidst
W Complaints In The Middle Of The #MeToo Movement ..............................6
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a~~' ~ G. After Declining, Behar And His Writing Partner Accept Warner Bros.'
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U A. Franklin's Claim Arises From Protected Activity Under The Anti-SLAPP
am 1 / Statute ...........................................................................................................7
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1O 1. Behar's Alleged Statements To The Press And A Warner

Bros. Investigator Are Activity In Furtherance Of The Right
19 OfFree Speech......................................................................7
20 2. There Was Overwhelming And Immense Interest In
Powerful Men In Hollywood Who Engaged In Improper
21 Workplace Behavior .............................................................9
22 B. Franklin Cannot Establish A Probability OfPrevailing On His Claim ......10
23 1. Behar's Acts Were Not Independently Wrongful...............10
24 a. Behar's Statements To A Warner Bros.' Investigator
Are Privileged Under Section 47(c)........................10
25
b. Franklin Cannot Establish Behar Acted With
26 Malice .....................................................................10
27

28
i
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO, 19SMCV00721
 1 c. Behar Never Made Any Statements To The Press
About Franklin, Let Alone Statements Made With
2 Actual Malice ..........................................................10

3 2. Behar Was Not A Substantial Factor In Causing Franklin's

Harm ...................................................................................14
4
IV. CONCLUSION .......................................................................................................15
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DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 TABLE OF AUTHORITIES
2 Pages)
3 Cases
4
A mpex Corp. v. Cargle,
5 128 Cal. App. 4th 1569(2005).................................................................................................14

6 Annette F. v. Sharon S.,

1 19 Cal. App. 4th 1146 (2004)...................................................................................................7
7
Banal v. Schnitt,
8 1 Cal. 5th 376(2016)..............................................................................................................6, 7
9 Comstock v. Aber°,
10 212 Cal. App. 4th 931 (2012).......................................................................................11, 12, 13

11 Cruey v. Gannett Co., Inc.,

64 Cal. App. 4th 356(1998)...............................................................................................11, 12
0 12
W Della Penna v. Toyota Motor Sales, U.S.A., Inc.,
~~ 13 1 1 Cal. 4th 376(1995)..............................................................................................................10
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1 16 Cal. App. 4th 375 (2004)...................................................................................................14
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Gilbert v. Sykes,
1O 147 Cal. App. 4th 13 (2007).................................................................................................9, 14
19 Kashian v. Hari°iman,
98 Cal. App. 4th 892(2002).....................................................................................................11
20

21 Korea Supply Co, v. Lockheed Martin Corp.,

29 Cal. 4th 1134(2003)........................................................................................................2, 10
22
Lundquist v. Reusser,
23 7 Cal. 4th 1193 (1994)..............................................................................................................11

24 Mann v. Qzrality Old Time Serv., Inc.,

120 Cal. App. 4th 90(2004).....................................................................................................12
25
Manzari v. Associated Newspape~~s Ltd.,
26
830 F.3d 881 (9th Cir. 2016)....................................................................................................14
27
McG~~ory v. Applied Signal Tech., Inc.,
28 212 Cal. App. 4th 1510(2013).................................................................................................13

iii
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 Navellier v. Sletten,
29 Cal. 4th 82(2002)..................................................................................................................7
2
Noel v. River Hills Wilsons, Inc.,
3
1 13 Cal. App. 4th 1363(2003).................................................................................................12
4
Nygard, Inc. v. Uusi-Ke~~ttula,
5 159 Cal. App. 4th 1027(2008)...............................................................................................7, 9

6 Optional Capital, Inc, v. Akin Gump Strauss, Hauer &Feld LLP,

18 Cal. App. 5th 95 (2017).......................................................................................................14
7
Paiva v. Nichols
8 168 Cal. App. 4th 1007(2008).................................................................................................10
9
Roberts v. L.A. Cnty. Bar Assn.,
10 105 Cal. App. 4th 604(2003)...................................................................................................10

11 Seelig v. Infinity Broad. Corp.,

97 Cal. App. 4th 798 (2002).......................................................................................................9
0 12
Tazrs v. Loftus,
13 40 Cal. 4th 683(2007)..............................................................................................................13
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Terry v. Davis Cmty. Church,
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Wilbanks v. Wolk,
18 121 Cal. App. 4th 883 (2004).................................................................................................8, 9
19 Youst v. Longo,
20 43 Cal. 3d 64(1987).................................................................................................................14

21 Statutes

22 Cal. Civ. Code § 47(c)............................................................ ..................................2, 11,12, 13

23 Cal. Civ. Code § 3333............................................................. ..................................................14

24 Cal. Civil Proc, Code § 425.16 ............................................... ...........................................passim

25

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DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 MEMORANDUM OF POINTS AND AUTHORITIES

2 1~ INTRODUCTION

3 Defendant Bryan Behar ("Behar") was interviewed as a witness in connection with a

4 workplace sexual harassment investigation into Plaintiff Jeff Franklin's (collectively, with his

5 production company Moose Productions, Inc.,"Franklin") behavior as the showrunner of the

6 streaming series Fuller House, a spinoff of the hit television series Fttll House. After receiving

7 multiple complaints about Franklin's workplace behavior, third-party Warner Bros. Studio

8 Enterprises Inc., on behalf of Horizon Scripted Television Inc.(collectively,"Warner Bros."),

9 initiated an investigation, interviewing seven (7) women and Behar. Behar was interviewed

10 towards the end of the investigation, as a witness who could potentially confirm or deny the

11 damaging statements being made by the women who had complained. Behar's mandatory

12 participation in the investigation was limited; his answers were completely honest and truthful.
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16 contract. Behar's testimony, which only corroborated some of the less serious statements made
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18 Behar now finds himself the target of this retaliatory and meritless lawsuit. California law

19 protects Behar from such retaliatory claims, as it should.

20 Behar's anti-SLAPP motion to strike Franklin's Complaint should be granted for the

21 following reasons:

22 First, prong one of the anti-SLAPP statute is easily satisfied, as Behar's alleged conduct

23 giving rise to Franklin's sole claim for intentional interference with prospective economic

24 advantage constitutes protected "activity" in connection with an issue of public interest. Cal. Civ.

25 Proc. Code § 425.16(b)(1). Specifically, Behar allegedly revealed embarrassing information

26 about Franklin in the context of a workplace sexual harassment investigation, as well as allegedly

27 sharing information with the press. As confirmed in the accompanying declaration of Behar,

28 contrary to the allegations in the Complaint on "information and belief' that he did so, Behar

DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT

CASE NO. 19SMCV00721
 1 never spoke to any member of the press about Franklin.

2 Further, the "public interest" element of prong one of the anti-SLAPP statute is also easily

3 satisfied, as demonstrated by the fact that the press reported heavily on Franklin's ouster from

4 Fuller House amidst complaints about his behavior. The subject of acts of impropriety and

5 wrongdoing by powerful men in Hollywood was the subject ofimmense public interest at that

6 time, when, starting in October 2017, news stories chronicling acts of sexual harassment, assault,

7 and other wrongdoing by some of Hollywood's most powerful men were being published. As

8 Franklin admits in his Complaint, these reports, along with the rise of the #MeToo movement,

9 changed the climate in the entertainment industry. Franklin's conduct on Fuller Horse and

10 Warner Bros.' investigation into it was therefore the subject of immense public interest.

11 Second, because the anti-SLAPP statute applies, it is Franklin's burden on the second

0 12 prong of the anti-SLAPP analysis to show by competent and admissible evidence that he would
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18 Behar's participation in Warner Bros.' workplace sexual harassment investigation into Franklin's

19 conduct is privileged under California law, now codified in Civil Code Section 47(c). Moreover,

20 Behar has never made any statements to the press about Franklin. Regardless, Franklin is a public

21 figure, and therefore, Franklin would have to show that Behar acted with actual malice, which he

22 cannot do here. Behar simply engaged in no wrongful conduct.

23 Further, it is incontrovertible that Behar's testimony in Warner Bros.' investigation into

24 Franklin's workplace behavior was not a substantial factor in the investigator's recommendation

25 not to renew Franklin's contract. Thus, Franklin's claim fails for this reason alone.

26 Because Franklin's sole claim for intentional interference arises from protected activity in

27 connection with an issue of public interest, and because Franklin cannot meet his burden to show

28 a probability of prevailing, the Complaint should be stricken.

DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT

CASE NO. 19SMCV00721
 1 II. FACTUAL BACKGROUND

2 II:~ Franklin Is Hired As Showrunner And Behar As A Writer For Fuller House

3 Franklin was the executive producer of the 1990's television series Full House and the

4 executive producer and showrunner of the currently streaming spin-off series Fuller House.

5 Compl. ¶¶ 7, 8. In May 2015, Franklin entered into athree-year agreement with Horizon Scripted

6 Television, Inc. to serve as executive producer and showrunner for Fuller House, Id. ¶ 10.

7 Behar has been working as a television writer for more than twenty (20) years, writing on

8 such television shows as 8 Simple Rzrlesfor Dating my Teenage Daughter, The New Adventures

9 ofOld Christine, and Last Man Standing. Behar Decl. ¶ 1. In 2015, Behar was hired as a writer

10 and co-Executive Producer on Fuller Hoicse. Id.

11 B. After Receiving A Complaint In 2016, Warner Bros. Investigates Franklin's

0 12 Workplace Behavior, Resulting In Verbal Counseling

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16 appointments and the equal treatment of male and female writers on Fuller House. Id. After the
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18 appropriate, business-like behavior and equal treatment of male and female employees. Id.

19 C. After Receiving Two More Complaints At The End Of 2017, Warner Bros. Initiates

111] Another Investigation Into Franklin's Workplace Behavior

21 In November 2017, Warner Bros. received a complaint from a female writer on Fuller

22 House claiming that Franklin had created a toxic and inappropriate work environment. Platon

23 Decl. ¶ 3. Shortly after receiving this complaint, Warner Bros. learned that another female writer

24 on Fuller House was malting similar claims about Franklin's conduct. Id. Based on these

25 complaints, Warner Bros. initiated another investigation into Franklin's workplace behavior. Id.

26 In this investigation, a total of eight(8) people, consisting of current and former staffers

27 on FZrller House, were interviewed between January 31, 2018 and February 22, 2018, Id. ¶ 5.

28 The seven (7) women, who are referred to as Jane Does 1 through 7 to protect their identities,

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DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 provided the following testimony regarding the dismissive and hostile work environment created

2 by Franklin as showrunner of Fuller House:

3 • "It's important that I say the environment is hostile."(Jane Doe 7)

4 • "I don't recall one other show where Ifelt—women weren't particular liked here."(Jane

5 Doe 7)

6 • "He would be angry towards women and not interested in their opinions."(Jane Doe 7)

7 • "I felt emotionally and mentally abused because I was a woman." (Jane Doe 3)

8 Id. ¶ 8(a).

9 The Jane Doe witnesses also provided the following testimony about sexualized

10 comments Franklin had made as showrunner of Fuller Hoz~se:

11 • "She is probably going to be pregnant next season. I wish I could make all the women on

0 12 my staff get hysterectomies."(Jane Doe 5)

~W ~ 13 • "She's one nose job away from a good f"`**," about one of the underage girls. (Jane Doe 6)
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18 • He had his assistant request all the writers come to his mansion for a week to write and they

19 were reminded multiple times to bring their bikinis. (Jane Doe 3; confirmed by Jane Doe 4)

20 • When complaining about a female director he was told,"you could have hired another

21 female director," to which Franklin replied,"please, they're all the same," (Jane Doe 3)

22 • He told the writer's room that he does not date Jewish women, and then said,"Sorry to all

23 the Jewish women in the room." (Jane Doe 3)

24 • Franklin preferred male writers over female writers. (Jane Doe 7)

25 • Franklin complained about having to hire directors that were women or people of color.

26 (Jane Doe 7)

27 Id. ¶ 8(c). None of the above comments were made by Behar. Id. ¶ 8,

28
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DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 1■~ Behar Was Selected To Be Interviewed At The End Of The Investigation And

2 Confirmed Only Some Of The Less Serious Statements About Franklin

3 The first four witnesses to be interviewed as part of the investigation into Franklin's

4 workplace behavior on Fuller House were selected by Warner Bros. based on a review of women

5 writers who did not return to Fuller• House and had no known reason for not returning. Platon

6 Decl. ¶ 5. After these first four women were interviewed, Warner Bros. selected four additional

7 witnesses who could potentially confirm or deny the statements made by the first four women.

8 Id. ¶ 6. Behar was one of the last witnesses to be interviewed. Id.

9 Behar was interviewed at the end of the investigation, on February 21 and 22, 2018. Id.

10 Behar did not aslc Warner Bros. to be interviewed, rather, he was selected and approached by

11 Warner Bros. Id. In fact, Behar was reluctant to participate in the investigation and only did so

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18 serious statements made by the other witnesses, Platon Decl. ¶ 10. Behar never discussed the

19 substance of his testimony with any management personnel from Warner Bros., Horizon Scripted

20 Television, or Miller/Boyett Productions, one of the production companies for Fuller^ House, nor

21 did he seek to coordinate or dictate the substance of anyone else's testimony. Behar ¶ 4. Behar

22 further never contacted or spoke to any Warner Bros. management personnel regarding the

23 substance of his testimony to the investigator. Id. Rather, the only management personnel from

24 Warner Bros. Behar spoke with was the Warner Bros. investigator who interviewed him. Id.

25 E. Warner Bros.' Decision To Not Renew Franklin's Contract For Fuller House Was

26 Not Based On Statements Made By Behar In The Investigation

27 At the end of the investigation, the lead investigator, Silisha Platon, concluded that there

28 ~ was sufficient evidence to find that Franklin's conduct had created a toxic work environment that
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DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 impacted female writers and persons of color. Platon Decl. ¶ 9. Behar's statements did not play a

2 substantial factor in her conclusion. Id. ¶ 10. Platon then conveyed her findings to executives at

3 Warner Bros. on February 22, 2018, along with her opinion that Warner Bros. not enter into a

4 new contract with Franklin. Id. On or about February 27, 2018, Warner Bros. told Franklin that

5 it would not be renewing his contract for season four of Fuller House. Compl. ¶ 23.

6 I~ The Press Reported On Franklin's Ouster From Fuller Hoccse Amidst Complaints In

7 The Middle Of The #MeToo Movement

8 The day after Franklin was told his contract would not be renewed by Warner Bros., an

9 article appeared in Variety about Franklin's ouster from Fuller House amidst complaints about his

10 workplace behavior. O'Connor Decl., Ex. A. Behar has never spoken to the reporter from

11 Variety or any other member of the press about Franklin's behavior. Behar Decl. ¶ 7.

12 The press reports about Franklin's ouster from Fuller House took place in the context of

~w ~ 13 the much broader public discussion regarding sexual misconduct in the workplace and the
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entertainment industry. Id. Franklin's own Complaint acknowledges the shift in climate in the
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18 G. After Declining, Behar And His Writing Partner Accept Warner Bros.' Request

19 That They Take Over As Co-Showrunners Of Faller Hoarse

20 After Franklin's contract was not renewed by Warner Bros., Behar and his writing partner

21 were approached to become the co-showrunners of Fuller House. Id. ¶ 6. Behar did not want to

22 be a showrunner of Fuller House and never pursued that position. Id. Rather, when Behar was

23 approached about the co-showrunner position he at first declined the offer and only accepted the

24 position after being offered it again. Id.

25 III. FRANKLIN'S COMPLAINT SHOULD BE STRICKEN UNDER SECTION 425.16

26 California enacted Section 425.16 "to shield a defendant's constitutionally protected

27 conduct" from meritless litigation. Banal v. Schnitt, 1 Cal. 5th 376, 393 (2016), The anti-SLAPP

28 statute "shall be construed broadly." Cal. Code Civ. Proc. § 425.16(a).

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DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 The California Supreme Court outlined the anti-SLAPP statute's two-pronged analysis:

2 First, the court determines if the defendant has made a threshold showing that the challenged

3 cause of action arises from protected activity. Once that showing is made,"the burden shifts to

4 the plaintiff to demonstrate that each challenged claim based on protected activity is legally

5 sufficient and factually substantiated." Baral, 1 Cal, 5th at 396. If the plaintiff cannot meet this

6 burden, the claim must be stricken. Id.; see also Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002).

7 I~ Franklin's Claim Arises From Protected Activity Under The Anti-SLAPP Statute

8 To show that its conduct is protected by the anti-SLAPP statute, a defendant need

9 demonstrate only that a plaintiff's claims arise from "activity" in connection with an issue of

10 public interest, in furtherance of defendant's right to free speech. Cal. Code Civ. Proc.

11 § 425.16(b)(1). "Activity" includes:(1) a written or oral statement made in a place open to the

12 public or in a public forum in connection with an issue of public interest; or(2) any other conduct
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~~ 13 in furtherance of the right to free speech in connection with a public issue or an issue of public
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16 1. Behar's Alleged Statements To The Press And A Warner Bros.
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18 First, there can be no question that Behar's alleged statements to the press about Franklin's

19 workplace behavior on Fuller Hozcse are statements made in a public forum in connection with an

20 issue of public interest. Cal. Code. Civ. Proc. § 425.16(e)(3). Newspapers and magazines are

21 public forums within the meaning of the anti-SLAPP statute. Nygar°d, Inc. v. Uusi-Kerttula, 159

22 Cal. App. 4th 1027, 1038 (2008); Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1161 (2004)

23 (finding that letter sent to newspaper was a statement made in a public forum on an issue of public

24 interest). Here, Franklin alleges that "Behar slandered Franklin to the media publication," made

25 "false statements ... to [a] media reporter," and "told ... the media ... that Franklin's conduct in

26 the writers' room was inappropriate." Compl. ¶¶ 17, 20. To be clear, Behar has never spoken to a

27 member of the press regarding Franklin, Behar ¶ 7. Nonetheless, because Behar's alleged

28 statements were made to the press, they are indisputably activity in furtherance of Behar's right of

7
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 free speech that trigger the application of the anti-SLAPP statute to Franklin's Complaint.

2 Separately, Behar's alleged conduct in compiling negative information about Franklin's

3 workplace behavior and then sharing that information with Warner Bros.' personnel was conduct

4 in furtherance of his right to free speech in connection with an issue of public interest. Cal. Code.

5 Civ. Proc. § 425.16(e)(4). As the California Supreme Court recently confirmed, the anti-SLAPP

6 statute applies to private communications that concern an issue of public interest. FilmOn Inc. v.

7 DoubleVerify Inc., 5244157, slip op. at 11 (Cal. 2019); see also Wilbanks v. Wolk, 121 Cal. App.

8 4th 883, 891, 897 fn. 4(2004)(noting that interference with prospective business advantage is a

9 "favored" cause of actions for SLAPP suits, which commonly lack merit but are brought by the

10 plaintiff to obtain an economic advantage over the defendant and deter the exercise of free speech

11 rights); Terry v. Davis Cmty. Chzrrch, 131 Cal. App. 4th 1534, 1546(2005)("We conclude

12 subdivision (e)(4) applies to private communications concerning issues of public interest").

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16 organization. 42 Cal. App. 4th 1170, 1173 (1996). The organization then sued her for slander
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18 SLAPP motion. Id. The court noted that in specifying what constitutes "acts in furtherance of a

19 person's right [of petition or] free speech," subdivision (e) uses the word "includes." The court

20 concluded that the Legislature intended the statute to have broad application, and held that even

21 private conversations on public issues were covered, citing "the stated purpose of the statute,

22 which includes protection of not only the constitutional right to `petition for the redress of

23 grievances,' but the broader constitutional right of freedom of speech."' Id. at 1175-76. Because

24 defendant's oral statements arose in the context of a public issue, the placement of a shelter in the

25 defendant's neighborhood, the court concluded that the anti-SLAPP statute applied. Id. at 1175.1

26

27 1 Indeed,"[t]he Legislature responded to this holding by amending section 425.16 to express its
intent that the section be broadly applied and by adding the fourth category of protected activity
28 to subdivision (e)," Wilbanks, 121 Cal, App. 4th at 897 fn. 4.

8
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 Here, in light of FilmOn, Wilbanks, Terry, and Averill, Behar's alleged statements to

2 Warner Bros. personnel were acts in furtherance of his free speech rights. The gravamen of

3 Franklin's claim is that Behar's statements to a Warner Bros. labor investigator "were false,

4 defamatory and disparaging, made for the purpose of causing Franklin harm." Compl. ¶ 33.

5 Although these alleged statements were made privately to a Warner Bros. labor investigator, they

6 concerned issues of public interest, as set forth below, a powerful man abusing his position of

7 power in the #MeToo era, a fact Franklin's own Complaint admits. Compl. ¶¶ 1, 22.

8 2. There Was Overwhelming And Immense Interest In Powerful Men In

9 Hollywood Who En~a~ed In Improper Workplace Behavior

10 Second, the public interest requirement is met here, where Behar's alleged statements

11 about Franklin were about his workplace behavior on a "tremendously successful show[]" in the

0 12 context of the "then-new `#MeToo' movement that escalated scrutiny over studios and their
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z a ;0 15 public debate related to issues of public interest." Seelig v. Infinity Broad. Corp., 97 Cal. App.
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16 4th 798, 808 (2002). Accordingly, an "issue of public interest" is simply "any issue in which the
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18 "significant" to be protected by the anti-SLAPP statute; it is enough that it is one in which the

19 public takes interest. Tamkin, 193 Cal. App, 4th at 143; Terry, 131 Cal. App. 4th at 154 (societal

20 interest in protecting children from predators was issue of public interest); Gilbert v. Sykes, 147

21 Cal. App. 4th 13, 23-24(2007)(public interest shown by numerous articles devoted to that topic).

22 In light of NygaJ•d, Tamkin, Terry, and Gilbert, the issue of a powerful Hollywood man

23 losing his position of power because of complaints that he had abused that position by creating a

24 hostile work environment for women and people of color on awell-regarded and successful

25 children's television show is indisputably an issue of public interest. The revelations that yet

26 another powerful man in Hollywood was being investigated for inappropriate workplace behavior

27 was clearly an issue the public was interested in, as demonstrated by the multiple press accounts

28 concerning Franklin, the investigation into his workplace behavior, and eventual ouster as the

D
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 ~ showrunner of Fuller House. O'Connor Decl., Ex. A-J. On this record, the public interest

2 element is easily met here and Behar has satisfied prong one. Any alleged statements made by

3 Behar about Franklin's inappropriate workplace behavior to the press or Warner Bros. were

4 clearly statements being made in connection with an issue of public interest.

5 B. Franklin Cannot Establish A Probability Of Prevailing On His Claim

6 Because Behar has met his burden to show that the allegations being made against him are

7 subject to the anti-SLAPP statute, the burden shifts to Franklin to show, by competent and

8 admissible evidence that he would probably prevail on the merits of his claim. Roberts v. L.A.

9 Cnty. Bar Assn., 105 Cal. App. 4th 604, 613-14 (2003). Franklin "may not rely solely on [his]

10 complaint, even if verified; instead,[his] proof must be made upon competent admissible

11 evidence." Paiva v. Nichols 168 Cal. App. 4th 1007, 1017(2008); Tuchscher Dev. Enters., Inc. v.

0 12 San Diego Unified Port Dist., 106 Cal. App. 4th 1219, 1240(2003)(holding that declarations that
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w_ ~ 13 lack foundation or personal knowledge, or that are argumentative, speculative, impermissible

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15 To state a claim for intentional interference with prospective economic advantage, a
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16 plaintiff must establish, inter alia, that:(1)the defendant engaged in independently wrongful acts;
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18 Co. v. Lockheed Mai°tin Copp., 29 Cal. 4th 1134, 1153 (2003); Della Penna v. Toyota Motor

19 Sales, U.S.A., Inc., 11 Cal. 4th 376, 393 (1995). Franklin can establish neither here.

20 1. Behar's Acts Were Not Independently Wrongful

21 Independently wrongful means the conduct is forbidden by constitutional, statutory,

22 common law, regulatory or other determinable legal standards. Korea Supply Co., 29 Cal. 4th at

23 1 158-59; Della Penna, 11 Cal. 4th at 392-93 (holding that the plaintiff asserting an interference

24 claim "has the burden of pleading and proving that the defendant's interference was wrongful by

25 some measure beyond the fact of the interference itself'). Here, Franklin alleges that Behar

26 defamed him to both the press and Warner Bros. Compl. ¶¶ 1, 17, 32. For the reasons set forth

27 below, Franklin cannot show that any of the alleged statements made by Behar are actionable.

28

10
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 a. Behar's Statements To A Warner Bros.' Investigator Are

2 Privileged Under Section 47(c)

3 First, any statements Behar made to a Warner Bros. investigator are privileged. This is

4 because, where one person makes a statement to another about a matter in which they are both

5 interested, the statement is privileged if made without malice. Cal. Civ. Code § 47(c)(providing

6 that a privileged publication is one made "[i]n a communication, without malice, to a person

7 interested therein , .. [by one] who is requested by the person interested to give the information").

8 This qualified common interest privilege applies to private interests, such as a business or

9 organizational interest, where the request for information is made in the course ofthat

10 relationship. Kashian v. Harriman, 98 Cal. App. 4th 892, 914(2002)(finding that letter

11 regarding business practices and potential conflict of interest shared common business interest to

12 support application of the common interest privilege under Cal. Civ. Code § 47(c)).2
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za ~ o 15 investigations without fear of retaliation. See, e.g., Cruey v. Gannett Co., Inc., 64 Cal. App. 4th
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16 356, 369(1998)(holding that complaint to human resources department was conditionally
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18 workplace harassment and discrimination was conditionally privileged). If such statements were

19 not privileged, employees would not be willing to give statements to their employers out of fear

20 of being sued for defamation. The defendant bears the initial burden of showing facts to bring the

21 communication within the privilege, and then the plaintiff must prove actual malice. Lundquist v.

22 Reusse~•, 7 Cal. 4th 1193, 1203 (1994). The application of such a privilege is ordinarily a

23

24 2 The Legislature amended Cal. Civ. Code § 47(c) effective January 1, 2019 to specifically
include "a complaint of sexual harassment by an employee, without malice, to an employer based
25 upon credible evidence and communications between the employer and interested persons,
without malice, regarding a complaint of sexual harassment." The Legislature noted that this
26 amendment "codifies court interpretations of the existing defamation privilege statutes as applied
to workplace communications about sexual harassment." California Bill Analysis, A.B. 2770
27 Sen. Judiciary, at 7(2018). Although this amendment was not in effect at the time of Behar's
alleged conduct, the Legislature is clear• that case law it codified already protected statements
28 between an employer and employees regarding sexual harassment complaints.

11
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 question of law. Mann v. Quality Old Time Serv., Inc., 120 Cal. App. 4th 90, 108 (2004). If the

2 privilege arises, it is a complete defense to claims based on defamatory or false statements. Noel

3 v. River Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1369(2003)(granting summary judgment on

4 defamation claim where statements were privileged).

5 In Cruey, a male executive sued a female manager for defamation after she submitted a

6 report of sexual harassment to the human resources department. Cruey,64 Cal. App. 4th at 361.

7 On appeal from the trial court's dismissal of the executive's defamation suit against his accuser,

8 the Cruey court held that the female manager's internal complaint was conditionally privileged

9 under Cal. Civ. Code § 47(c) because it pertained to a subject of mutual interest to the employer

10 and its employees,"an accusation of workplace harassment and discrimination." Id. at 369. The

11 court concluded that "complaints to employers about workplace harassment should be privileged.

12 To hold otherwise would have a chilling effect on an employee's right to be free from sexual
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16 assault that the female employee made to the company's human resources department. 212 Cal.
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18 pursuant to the anti-SLAPP statute, the Comstock court recognized that a report regarding sexual

19 harassment made to human resources is conditionally privileged under Cal. Civ. Code § 47(c)

20 because human resources personnel would be "interested in the communication." Id, at 953. The

21 court went on to conclude that the male coworker could not demonstrate malice and therefore his

22 defamation claim failed as a matter of law. Id.

23 Here, Behar's statements to the Warner Bros.' labor investigator are conditionally

24 privileged under California law and its codification under Cal. Civ. Code § 47(c). As in Cruey

25 and Comstock, Warner Bros. was "interested in the communication" based on the complaints it

26 had received from multiple women regarding Franklin's inappropriate workplace conduct on

27 Fuller Hoz~se. Warner Bros. approached Behar to interview him as part of the investigation as a

28 witness who could potentially confirm or deny what the four(4)female complainants had already
12
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 testified to. Behar Decl. ¶ 3; Platon Decl. ¶ 6. Behar is therefore one who was "requested by the

2 ~ person interested [Warner Bros.] to give the information" pursuant to Cal. Civ. Code § 47(c)(3).

3 Behar was required to provide his testimony to Warner Bros.' investigators in the course of their

4 ~ business relationship based on the accusations made by female writers about Franklin's

5 ~ workplace behavior. Behar Decl. ¶ 3. Thus, Behar's statements to Warner Bros. are

6 conditionally privileged under Cal. Civ. Code § 47(c). To hold otherwise would have a chilling

7 effect on employees' participation in future workplace sexual harassment investigations.

8 b. Franklin Cannot Establish Behar Acted With Malice

9 To defeat the qualified privilege afforded to Behar under Section 47(c), Franklin must

10 show that Behar acted with malice. Comstock, 212 Cal. App. at 953. "The malice necessary to

11 defeat a qualified privilege is `actual malice' which is established by showing that the publication

0 12 was motivated by hatred or ill will towards the plaintiff or by showing that the defendant lacked
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'=_ 13 reasonable grounds for belief in the truth of the publication." Taus v. Loftus, 40 Cal. 4th 683, 721
a go ~
a ~~o 0
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z a;0 15 that he did not believe to be true or unreasonably believed to be true. McG~°ory v. Applied Signal
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18 "completely honest and truthful in what [he] told Warner Bros. in connection with this

19 investigation" and that he was "very concerned about anyone losing their job as a result of what

20 [he] said, including Jeff Franklin." Behar Decl. ¶ 3. Behar did not approach the investigators and

21 was "reluctant to participate in the investigation," Platon Decl. ¶ 6. In light of Taus and

22 McCrory, Behar's statements were clearly not made with malice. Behar's concern for Franklin's

23 job and his reluctance to participate in the investigation establish that his statements were not

24 motivated by hatred or ill will towards Franklin. Indeed, they demonstrate the opposite.

25 Moreover, Behar was completely honest and truthful in his statements. Accordingly, Plaintiffs

26 cannot establish actual malice and Behar's statements to Warner Bros. investigators were

27 privileged under Cal. Civ. Code § 47(c), and, to the extent statements were made to the press

28 (they were not), the First Amendment.

13
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 c. Behar Never Made Any Statements To The Press About

2 Franklin, Let Alone Statements Made With Actual Malice

3 Behar never made any statements to any member of the press about Franklin. Behar Decl.

4 ¶ 7. Nevertheless, even if he did (he did not), Franklin would have to show that such statements

5 were made with actual malice because Franklin is a public figure. Gilbert, 147 Cal. App. 4th at

6 26(holding that public figure was required to prove by clear and convincing evidence that alleged

7 defamatory statements were made with actual malice); Ampex Corp, v. Cap°gle, 128 Cal. App. 4th

8 1569, 1577(2005)(same); see also Manzari v. Associated Newspapers Ltd., 830 F.3d 881, 888

9 (9th Cir. 2016)(applying California law and holding that public figures include artists, business

10 people, and anyone who is famous or infamous for because of who he is or what he has

11 done). Based on the success and global reach of Full House, Franklin has achieved such a high

12 level of notoriety that he is a public figure. See Compl., ¶ 1; see also O'Connor Decl., Exs. A-J.
N
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16 2. Behar Was Not A Substantial Factor In Causing Franklin's Harm
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18 alleged wrongful conduct must have been a substantial factor in bringing about his damages.

19 Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375, 391 (2004)(holding that plaintiffs

20 claim failed as a matter of law because plaintiffs could not establish a causal nexus between

21 wrongful acts and loss of business); Youst v. Longo,43 Cal. 3d 64, 71 (1987); see Cal. Civ. Code

22 § 3333. Temporal proximity between the act and the damage are insufficient. Franklin, 116 Cal.

23 App. at 394 ("[m]ore than post hoc, ergo propter hoc must be demonstrated").

24 Here, Franklin cannot demonstrate by competent and admissible evidence that Behar's

25 alleged statements were a substantial factor in Warner Bros.' decision not to renew Franklin's

26 contract. First, Franklin's claim is solely derived from allegations based on information and

27 belief. See Compl, ¶ 37. Franklin must supply concrete evidence, not specious allegations.

28 Optional Capital, Inc. v. Akin Gump Strauss, Haue~~ &Feld LLP, 18 Cal. App. 5th 95, 119

14
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 1 (2017). Because Franklin does not have admissible and competent evidence to establish that

2 Behar's alleged conduct was a substantial factor in causing his alleged damage, his claim fails.

3 Second, the undisputed evidence from the investigation into Franklin's workplace

4 behavior demonstrates that Behar's alleged conduct did not play a substantial role in Warner

5 Bros.' decision not to renew Franklin's contract. The investigation into Franklin's workplace

6 behavior was initiated based on complaints made by two female writers, not Behar. Platon Decl.

7 ¶ 3. During the investigation, the evidence that Franklin's conduct had created a toxic work

8 environment that impacted female writers and persons of color was based on statements made by

9 the seven women who were interviewed, not Behar. Id., ¶¶ 8-9. Behar had no role in

10 coordinating any of the women's testimony and never spoke with Warner Bros. management

11 about the substance of his testimony. Behar Decl, ¶ 4. Finally, the Warner Bros. labor

0 12 investigator who headed up the investigation into Franklin's workplace behavior stated that
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_~ 13 Behar's testimony was not a substantial factor in her conclusion that Franklin had created a toxic
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18 investigator's conclusion that there was sufficient evidence that Franklin had created a toxic and

19 inappropriate work environment, and her recommendation to executives at Warner Bros. that

20 Franklin's contract should not be renewed. For this reason alone, Franklin's claim fails.

21 IV. CONCLUSION

22 For the foregoing reasons, Franklin's Complaint should be stricken under Section 425.16,

23 and Behar should be awarded his attorneys' fees and costs under Section 425.16(c)).

24 Dated: June 7, 2019 VENABLE LLP

25
By:
26 Michael J. O'Co r
Sarah L. Cronin
27 Cary L. Finkelstein
Attorneys for Defendant Bryan Behar
28

15
DEFENDANT BRYAN BEHAR'S MOTION TO STRIKE PLAINTIFFS' COMPLAINT
CASE NO. 19SMCV00721
 PROOF OF SERVICE

2 STATE OF CALIFORNIA
ss.
3 COUNTY OF LOS ANGELES
4 I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 2049 Century Park East, Suite 2300,
5 Los Angeles, CA 90067.
6 On June 7, 2019, I served a copy ofthe foregoing documents described as NOTICE OF
MOTION AND MOTION OF DEFENDANT BRYAN BEHAR TO STRIKE PLAINTIFFS'
7 COMPLAINT PURSUANT TO SECTION 425.16 OF THE CALIFORNIA CODE OF
CIVIL PROCEDURE; MEMORANDUM OF POINTS AND AUTHORITIES on the
8 interested parties in this action addressed as follows:
9 Stanton L. Stein, Esq.
Diana A. Sanders, Esq.
10 RUSS,AUGUST & KABAT
12424 Wilshire Boulevard
11 12th Floor
Los Angeles, CA 90025
0 12 lstein e,raklaw.com
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dsanders(a~raklaw.com
W 13 Telephone: (310)826-7474
a yo Facsimile: (310)826-6991
a ~ ~~ 14
W w~°~
a YW~ Q By placing true copies thereof enclosed in a sealed envelopes) addressed as stated above.
a
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IS
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16 collection and processing correspondence for mailing with the U.S. Postal Service.
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Under that practice such envelopes)is deposited with the U.S. Postal Service on
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the same day this declaration was executed, with postage thereon fully prepaid at
2049 Century Park East, Suite 2300, Los Angeles, California, in the ordinary
18 course of business.
19 I declare under penalty of perjury under the laws ofthe State of California that the above
is true and correct.
20
Executed on June 7, 2019 at Los Angeles, California.
21

22

23 Karen M. Tjaden
24

25

26

27

28
PROOF OF SERVICE
Case No. 19SMCV00721
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JEFF FRANKLIN,et al. vs BRYAN BEHAR
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