Bailey v. Brewer
128 Cal. Rptr. 3d 380
Cal. Ct. App.2011Background
- Bailey filed a 2009 Los Angeles Superior Court complaint alleging intentional interference with contract and economic relationships and declaratory relief regarding rights in the film Blacks Without Borders.
- Brewer and Brewer Media moved to strike Bailey’s first and second causes of action under Code of Civil Procedure section 425.16 (anti-SLAPP).
- Brewer claimed prelitigation cease-and-desist letters to Showtime and other media outlets were protected activity and covered by the litigation privilege (Civil Code § 47).
- Bailey opposed, arguing the letters were not tied to contemplated litigation and that res judicata/past small claims litigation foreclosed relief.
- Small claims court (2006) ruled in Bailey’s favor against Brewer on a partnership/misappropriation theory, denying Brewer’s damages.
- Trial court denied the anti-SLAPP motion, concluding the letters supported the first two causes but were not protected due to lack of ripened litigation; appellate court affirmed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prelitigation letters are protected by § 425.16 | Bailey contends letters relate to litigation contemplated in good faith and are protected. | Brewer asserts letters are in contemplation of litigation and covered by § 425.16 and Civ. Code § 47. | Not protected; res judicata bars contemplated litigation and statements related to barred claims are not protected. |
| Effect of the small claims judgment on relitigation | Bailey argues small claims outcome is irrelevant to contemplated litigation. | Brewer argues small claims does not preclude later litigation on film rights. | Small claims judgment collaterally estops relitigation of the same issues; barred claims cannot be contemplated in good faith. |
| Whether the contemplated litigation was in good faith and under serious consideration | Bailey maintains contemplated litigation can be protected even if past merits failed. | Brewer contends good faith contemplation existed. | No good faith contemplation for barred claims; statements related to relitigated issues fall outside § 425.16 protection. |
Key Cases Cited
- Zamos v. Stroud, 32 Cal.4th 958 (Cal. 2004) (two-step anti-SLAPP inquiry framework)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (two-step approach to anti-SLAPP; protection requires minimal merit)
- Rohde v. Wolf, 154 Cal.App.4th 28 (Cal. App. 4th 2007) (communications connected to civil litigation fall under § 425.16)
- Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106 (Cal. 1999) (litigation privilege extends to anticipatory communications)
- Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232 (Cal. 2007) (litigation privilege scope; connects to good faith and serious consideration)
- Neville v. Chudacoff, 160 Cal.App.4th 1255 (Cal. App. 2008) (test for litigation contemplated in good faith and serious consideration)
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (utility of Civ. Code § 47 to interpret § 425.16 scope; precedent for using privilege as interpretive aid)
- Blanchard v. DIRECTV, Inc., 123 Cal.App.4th 903 (Cal. App. 2004) (prelitigation statements made in anticipation of litigation linked to litigation privilege)
- Feldman v. 1100 Park Lane Associates, 160 Cal.App.4th 1467 (Cal. App. 2008) (limits on extending privilege to meritless claims)