Date: 07-29-2003

Case Style: Nikki Finke v. The Walt Disney Company, et al.

Case Number: B160267

Judge: Johnson

Court: California Court of Appeals, Second Appellate District

Plaintiff's Attorney: O’Donnell & Shaeffer, Pierce O’Donnell, Carolee E. Handler, Clyde M. Hettrick and Daniel H. Rylaarsdam for Plaintiff and Respondent.

Defendant's Attorney:

Christensen, Miller, Fink, Jacobs, Glasser, Weil & Shapiro, Patricia L. Glasser, Ronald E. Guttman and Craig H. Marcus for Defendant and Appellant The Walt Disney Company.

Description:

California's SLAPP statute provides in relevant part a court may strike "[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[.]" The principal question in this appeal is whether a defendant moving to strike a cause of action under the SLAPP statute must show all of the acts alleged to give rise to a cause of action were in furtherance of the defendant's First Amendment rights in connection with a public issue or whether it is enough to show at least one of such acts meets these criteria.

We reaffirm our conclusion in Fox Searchlight Pictures, Inc. v. Paladino "a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.'" Therefore we hold the trial court erred in ruling the SLAPP statute does not apply to the present case. We further hold, however, the plaintiff has demonstrated a reasonable probability of prevailing on the merits of all but two of her causes of action. Therefore we will reverse the trial court's order denying the motion to strike and remand the cause to the trial court with directions to grant the motion as to certain causes of action and deny it as to the remainder.

FACTS AND PROCEEDINGS BELOW

The case before us is an offshoot of the long-running litigation between the Walt Disney Company and a literary agency over merchandising rights to the Winnie-the-Pooh characters - honey allegedly worth billions.

In the course of the Pooh litigation the plaintiff moved for sanctions against Disney for destroying approximately 40 boxes of records which, according to the plaintiff, contained admissible evidence or could have led to the discovery of admissible evidence in support of its claims. The trial court found in destroying the records Disney "engaged in a misuse of the discovery process" and acted in "bad faith." The court imposed evidentiary sanctions on Disney and ordered it to pay plaintiff's reasonable attorney fees and costs in bringing the motion in the sum of $90,000.

The plaintiff in the case before us, Nikki Finke, is a newspaper reporter who had a contract with the New York Post to write stories about the entertainment industry for the Post's business section. Finke's editor assigned her the story about the sanction orders in the Pooh litigation. He also assigned her a companion article on the efforts of the plaintiff in the Pooh litigation to revoke Disney's license to sell Winnie-the-Pooh merchandise. Both articles appeared in the same edition of the Post.

According to Finke's complaint, the day after her Pooh articles appeared Disney officials commenced a campaign of letters and telephone calls to the Post's editors and upper management complaining Finke was biased against Disney and her articles contained factual inaccuracies. Approximately two weeks after it published the Pooh articles the Post fired Finke. Finke's editor told her she was being fired because of the Pooh articles.

Finke offered evidence to show that after the Post fired Finke, Disney's spokesperson told a reporter for the Village Voice there were "serious factual errors" in Finke's stories. The Village Voice article also quoted Daniel Petrocelli, the attorney representing Disney in the Pooh litigation, as stating portions of Finke's reporting were "recklessly inaccurate," "critical parts of the articles were false," and Finke's presentation was "one-sided and biased."

Finke filed this action against Disney alleging interference with contract and prospective business advantage, libel and slander, infliction of emotional distress and unfair business practices. Disney responded with a motion to strike these causes of action under section 425.16, the SLAPP statute. Disney contended its statements to the Post were speech in connection with two issues of public interest - the Pooh litigation and the accuracy of news reporting - and therefore entitled to protection under the SLAPP statute. It also contended Finke had no reasonable probability of prevailing on her claims. Finke conceded the Pooh litigation was a matter of public interest but argued Disney's statements were not made in connection with the Pooh litigation. Rather, they were a personal attack on her intended to further Disney's bottom line, not its right to free speech. Finke further argued even if the SLAPP statute applied to her action, she had a reasonable probability of success on the merits of her claims.

The trial court denied Disney's motion. The court concluded Disney could not invoke SLAPP protection in this case because it could not show all the acts giving rise to Finke's causes of action were done in furtherance of Disney's right to free speech. The court did not reach the question whether Finke had a reasonable probability of success on any of her causes of action.

Disney filed a timely appeal from the denial of its motion.

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Click the case caption above for the full text of the Court's opinion.

Outcome: The order denying Disney’s special motion to strike under section 425.16 is reversed. The cause is remanded to the trial court with directions to enter a new and different order granting the motion as to the cause of action for slander and the cause of action for unfair business practices as to Disney only and to deny the motion in all other respects. Appellant is awarded her costs on appeal.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Digested by Kent Morlan