43 Cal.App.5th 1027
Cal. Ct. App.2019Background
- Ojjeh invested $180,000 (initial $150,000 in June 2016; $30,000 later) under an investor agreement for a documentary about the Syrian refugee crisis.
- Plaintiff alleges defendants solicited funds, performed only partial/insufficient work, used funds for unrelated self-promotion, and never intended to complete the film; a hired cinematographer shot footage and claims unpaid compensation.
- Defendants (Brown and Ignite) moved under the anti‑SLAPP statute (§ 425.16) to strike the complaint, arguing the claims arise from protected newsgathering/filmmaking activity on a matter of public interest.
- The trial court denied the motion at the first stage, concluding the suit targeted a failure to make the film (non‑protected conduct).
- The Court of Appeal reversed: it held defendants made a prima facie showing that the complaint arises from protected activity under the anti‑SLAPP catchall (§ 425.16, subd. (e)(4)) because solicitation of funds and preliminary newsgathering helped advance speech on a public issue; the case was remanded for the trial court to address the second‑stage (merits) inquiry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint "arises from" protected speech under § 425.16(e)(4) | Complaint targets defendants' failure to make the film and misuse of funds, not protected speech | Solicitation, hiring of cinematographer, gathering footage and maintaining an online journal are conduct in furtherance of free speech on a public issue | Reversed: defendants made a prima facie showing that challenged conduct is protected under the catchall provision |
| Whether preliminary/newsgathering conduct for an incomplete documentary qualifies as "in furtherance" of free speech | No—because no completed speech existed; Digerati suggests nonperformance is unprotected | Preliminary steps (newsgathering, funding solicitation, production activity) advance and assist eventual protected speech and may be protected even if the speech is incomplete | Preliminary newsgathering and fundraising can be "in furtherance" of speech and are protected for anti‑SLAPP purposes |
| Whether the conduct was "in connection with" an issue of public interest | Documentary was incomplete and not in public sphere, so private conduct should not qualify | The film and related activities were intended for public dissemination and to contribute to public debate on the Syrian refugee crisis | There was sufficient content/context connection: the activities were functionally related to a public‑interest project and thus satisfy the catchall’s closeness requirement |
| Whether allegations of using funds for unrelated personal purposes are protected | Such misuse is not protected and is the core of the complaint | Some claims rest on protected acts (solicitation/newsgathering); allegations of misusing funds are unprotected but not the sole basis for all causes of action | Misuse allegations are unprotected, but because the complaint also rests on protected conduct, the anti‑SLAPP first‑stage is met and the case proceeds to second‑stage review (merits) |
Key Cases Cited
- Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (anti‑SLAPP purpose and standards; early evidentiary consideration)
- Baral v. Schnitt, 1 Cal.5th 376 (two‑step anti‑SLAPP framework; plaintiff’s burden at second stage)
- FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133 (catchall requires functional connection to public debate; context matters)
- Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156 (newsgathering and preparatory acts can be protected)
- Digerati Holdings, LLC v. Young Money Entertainment, LLC, 194 Cal.App.4th 873 (distinguishable: complete nonperformance held unprotected)
- San Diegans for Open Government v. San Diego State Univ. Research Found., 13 Cal.App.5th 76 (contracts/newsgathering arrangements that shape news distribution qualify as conduct in furtherance of speech)