Court of Appeals of California, September 12, 2011 (not for publication)

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  • California Court of Appeals affirms order granting defendants’ anti-SLAPP motion to strike plaintiffs’ complaint, which alleged tort claims based on conduct that occurred during filming of mock documentary-style feature film.

Plaintiffs appeal from an order granting defendants’ motion to strike the complaint under California’s statute prohibiting Strategic Lawsuits Against Public Participation (the Anti-SLAPP statute). Plaintiffs’ complaint alleged tort claims based on conduct that occurred during the filming of the feature film comedy Bruno, starring defendant Sacha Baron Cohen, in his persona as "Bruno"— a gay, Austrian fashion reporter.

Plaintiffs, the executive director of a nonprofit charity that managed charity bingo events, and her husband, who assisted her in managing the bingo games, agreed to participate in a "documentary-style" movie defendants planned to film during an evening of charity bingo games. Plaintiffs alleged that they were told a well-known host/celebrity wanted to visit the charity bingo game and "call" the bingo numbers during the game while being filmed, but that they did not know the actual identity of the "celebrity,” or the true purpose of the visit, filming the mock-documentary Bruno, in which Cohen portrays “Bruno," a gay Austrian celebrity and addresses the issue of American homophobia by placing the character in situations intended to elicit reactions. Plaintiffs signed both a "Standard Location Agreement" to allow defendants to enter the bingo hall and to bring the cast, crew and all of the equipment, and to use the location for the purpose of filming, as well as a "Standard Consent Agreement," under which they were to be paid to be filmed.

Defendant Cohen appeared as “Bruno” and plaintiffs agreed to allow him to call numbers for two bingo games that evening. The video footage submitted to the court showed Cohen announcing bingo numbers and, during the second game, making comments to the audience in which he related some of the bingo numbers to certain aspects of his homosexual lifestyle. After an interaction on the stage in which plaintiff attempted to remove Cohen, she allegedly became distraught and thereafter fainted, allegedly injuring herself. Plaintiffs’ complaint asserted nine tort causes of action arising out of the filming of Bruno at the bingo hall and Cohen's interaction with plaintiff.

Defendants filed an anti-SLAPP motion to strike, asserting that the acts underlying appellants' claims were the conduct and words spoken by Cohen while he appeared as "Bruno" at the bingo hall, and that this conduct furthered respondents' right of free speech in making the film in connection with a public issue or matter of public interest. They also asserted that plaintiffs had waived and released any and all claims arising out of the filming under the Location and Consent Agreements.

The lower court granted defendants’ anti-SLAPP motion, concluding that plaintiffs’ tort claims arose from defendants’ conduct in furtherance of their First Amendment rights to free speech. The lower court also concluded that plaintiffs had failed to satisfy their burden of showing that they had a probability of prevailing on their claims, having submitted no admissible evidence in support of their causes of action.

On appeal, the appeals court rejected plaintiffs’ argument that the lower court erred because the conduct underlying plaintiffs’ claims had no connection to the exercise of defendants’ rights to free speech or an issue of public interest.

California’s Anti-SLAPP provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." A court engages in a two-step process to evaluate motions to strike, first determining whether the defendant has made a threshold showing that the acts at issue arose from protected activity. If the defendant makes this showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits of the claim.

Noting that motion pictures are expressive works entitled to First Amendment protection, the court of appeals found no dispute that defendants were engaged in making a feature film, Bruno, that they came to the bingo hall to shoot video footage of respondent Cohen calling bingo games, and that plaintiffs were aware of this purpose and agreed to participate. According to the court, plaintiffs’ claims that they were misled as to the nature of the film and that the film was a comedy intended to generate a profit did not deprive defendants of First Amendment protection. The court also found that defendant Cohen's words and non-expressive conduct furthered the purpose of the movie, which was to depict "Bruno" in various locations and under circumstances where his conduct and statements might prompt a strong homophobic reaction from those around him, for entertainment and social satire. Finally, the court concluded that plaintiffs’ claims “arose out of” those activities.

Plaintiffs also argued that their claims did not arise from any act in furtherance of free speech – from Cohen's words or any other constitutionally protected conduct – but rather from a private controversy, namely defendant Cohen's refusal to leave the stage of the bingo hall. Finding the argument “unconvincing,” the court reasoned that plaintiff’s anger at the apparent deception, and her humiliation and embarrassment, which gave rise to plaintiffs’ various tort claims, were caused by defendants’ free speech conduct, including Cohen's words and the filming of the event. Even assuming that Cohen's refusal to leave the stage and plaintiffs’ alleged realization that she had been misled gave rise to her injuries, the court found those circumstances “inseparable” from defendants’ constitutionally protected actions.

Finally, the court concluded that the movie and Cohen's conduct in the movie concerned issues of public interest. It found that no doubt existed that homosexuality, gay culture, lifestyles and rights, and the public reactions to those issues, were matters of public interest and controversy, and that the evidence supported the lower court's finding that the purpose of the film was to show audiences what would happen when a film crew followed a blatantly homosexual character in his interactions with members of the public, and to raise those issues in an attempt to craft a commentary on homophobia in society. The video footage showed that Cohen's conduct, his comments about his gay partner and his characterization of Bruno as a flamboyant gay fashion reporter, directly referenced issues related to homosexuality, gay stereotypes and gay culture. Even if plaintiffs were unaware of Cohen's purpose, they voluntarily became involved in the issues Cohen sought to highlight when they agreed to allow him to participate in the bingo games while making the film. Plaintiff also voluntarily engaged with Cohen while the cameras filmed the encounter, approaching the stage and instigating the confrontation with Cohen because of what he was saying about his lifestyle. Cohen did not utter expletives, profanity or obscene language, or describe overtly sexual behavior, but rather relayed information about his former partner and made comments about the history of their relationship, which, at most, might be considered sexual innuendo.

On the second prong of the anti-SLAPP analysis, the appeals court agreed that plaintiffs failed to establish a probability of success. The allegations in an unverified complaint are insufficient to avoid an order to strike the complaint once the court determines the first prong of the statute has been met. Plaintiffs must provide the court with sufficient evidence to permit a determination on the probability of success and the court found plaintiffs failure to do so, despite their representations that they could present this evidence, to be dispositive. In a footnote, the court also noted that, given this conclusion, it need not consider or decide the applicability or validity of Location and Consent Agreements plaintiffs had signed.