David Bernstein v. Shia Labeouf

This lawsuit arises out of an altercation between plaintiff

David Bernstein, a bartender, and defendant Shia LaBeouf, an

actor. LaBeouf confronted Bernstein and called him a “racist”

after Bernstein refused to serve LaBeouf and his companion

alcohol. Video footage of the incident was later posted on the

internet and broadcast on television. Bernstein sued LaBeouf for

assault, slander, and intentional infliction of emotional distress.

LaBeouf filed a special motion to strike Bernstein’s first amended

complaint under Code of Civil Procedure1 section 425.16 (antiSLAPP

statute), arguing the conduct giving rise to Bernstein’s

claims was protected speech-related activity concerning a matter

of public interest. The trial court denied the motion in its entirety

and LaBeouf appeals. We affirm.

FACTS AND PROCEDURAL BACKGROUND

1. The Incident

Around 9:45 p.m. on April 5, 2017, LaBeouf’s companion,

Mia Goth, went to the bar at Jerry’s Famous Deli (Jerry’s) in

Studio City, where Bernstein worked, and tried to order alcoholic

drinks. The bartenders refused to serve Goth because she

appeared “significantly under the influence.” Shortly thereafter,

LaBeouf entered the bar and demanded the bartenders serve him

and Goth alcohol. Bernstein refused to serve LaBeouf alcohol

because he too appeared “significantly under the influence.”

LaBeouf became angry, pounded his fist on the bar counter, and

yelled “[y]ou’re not going to fucking serve me?”

1 All undesignated statutory references are to the Code of Civil

Procedure.

3

LaBeouf then walked around the counter and entered the

well area behind the bar, where the bartenders work. LaBeouf,

who was “yelling at the top of his lungs,” took several steps

toward Bernstein. “[F]earful of an imminent attack,” Bernstein

grabbed a bottle of Grey Goose vodka and held it over his

shoulder “to deter” LaBeouf. LaBeouf then stepped back and was

escorted out of the restaurant by security.

As LaBeouf was being taken out of the restaurant, he

shouted at Bernstein, “You Fucked Up,” and called him a

“Fucking Racist” and a “Fuckin’ Racist Bitch.” LaBeouf also told

the “predominantly African-American crowd” to “Wake Up, this

Motherfucker is a Racist.”2

“Videotapes of [the] incident were published by TMZ and

were circulated instantly world-wide to millions of people via

television, internet, social and print media.” After videos of the

incident were circulated, “[t]here were many internet and social

media posts supporting” LaBeouf. “On a near[ly] daily basis,”

customers whom Bernstein has never met called him “ ‘The

Racist Bartender,’ ”and people Bernstein knows “have constantly

been bringing up th[e] event.”

2. Bernstein’s Lawsuit

Bernstein sued LaBeouf for assault, slander per se, and

intentional infliction of emotional distress. The assault claim was

based on allegations that LaBeouf engaged in physically

threatening conduct, including entering the well area behind

Jerry’s bar without permission, when he confronted Bernstein.

2 There is no indication in the record that LaBeouf or Goth are AfricanAmerican.

4

With respect to the slander claim, Bernstein alleged LaBeouf

called him a “racist,” without any basis in fact to support that

statement, in front of a large crowd that was predominantly

African-American. Finally, the intentional infliction of emotional

distress claim was based on LaBeouf’s conduct throughout the

entire encounter, including his threatening physical conduct and

his statements that Bernstein was a “racist.”

LaBeouf filed a special motion to strike Bernstein’s

complaint under the anti-SLAPP statute (§ 425.16). With respect

to his statements calling Bernstein a “racist,” LaBeouf insisted

they were protected speech under the anti-SLAPP statute

because: (1) they occurred in a place open to the public—i.e., a

restaurant; (2) they “were of ‘public interest,’ as evidenced by the

fact that video footage of the [i]ncident was posted publicly on the

TMZ website”; and (3) because LaBeouf is a celebrity, “ ‘[t]he

public’s fascination with [him] and widespread interest in his

personal life’ render his day to day conduct ‘a public issue or an

issue of public interest.’ ” Alternatively, LaBeouf argued his

statements addressed a matter of public interest because they

contributed to the public debate on racism, since “it [is] axiomatic

that racism and allegations of racial discrimination are matters

of the highest public concern.” As for his physical conduct,

LaBeouf claimed it too was protected because it was used in

furtherance of, or to “emphasize,” his protected speech.

With respect to the second prong of the anti-SLAPP

statute, LaBeouf argued Bernstein could not demonstrate a

probability of prevailing on the merits of any of his claims.

Among other things, LaBeouf asserted Bernstein could not

prevail on his slander claim because LaBeouf’s statements that

Bernstein was a “racist” constituted nothing more than “ ‘mere

5

name calling.’ ” (Emphasis omitted.) LaBeouf did not submit any

supporting evidence.

Bernstein opposed LaBeouf’s motion. In support of his

opposition, Bernstein submitted declarations from several

customers who witnessed the incident at Jerry’s, fellow Jerry’s

employees who were working during the incident, and a

psychologist who diagnosed Bernstein with Post-Traumatic

Stress Disorder because of the incident. The customers who

submitted declarations on Bernstein’s behalf stated they knew

Bernstein because they frequented Jerry’s. None of them had

ever seen Bernstein engage in any racist conduct.

3

Bernstein also submitted several newspaper articles

documenting LaBeouf’s various run-ins with law enforcement, as

well as screenshots of several social media posts in which people

comment on the incident at Jerry’s and, in many of the posts,

express their support for LaBeouf or call Bernstein a “racist.”

Finally, Bernstein filed a copy of the video of the TMZ broadcast

covering the incident, which includes footage of LaBeouf’s

conduct inside Jerry’s, a copy of a video of the incident recorded

by one of Jerry’s other employees, and copies of videos concerning

LaBeouf’s other public outbursts.

The court denied LaBeouf’s anti-SLAPP motion. The court

found LaBeouf failed to show any of the claims in Bernstein’s

complaint arose out of LaBeouf’s “constitutional right of free

speech in connection with a public issue or an issue of public

interest.” Rather, the court found the claims stemmed from “a

3 We grant Bernstein’s May 9, 2019 motion to augment the record with

the corrected versions of several of the witnesses’ declarations that he

filed in the trial court but which LaBeouf omitted from the record on

appeal.

6

private dispute between [LaBeouf] and [Bernstein] concerning

[Bernstein’s] refusal … to serve [LaBeouf] alcohol and [LaBeouf’s]

reaction.” The court rejected LaBeouf’s arguments that his

statements calling Bernstein a “racist” contributed to the public

debate on racism and that his celebrity status converted the

dispute into a matter of public interest.

LaBeouf timely appealed the order denying his anti-SLAPP

motion.

DISCUSSION

LaBeouf contends each of Bernstein’s claims arises out of

activity protected by the anti-SLAPP statute because “what

would have otherwise been an unremarkable and insignificant

altercation between two individuals became a matter of

significant and inherent public interest” due to “LaBeouf’s

celebrity status.” LaBeouf also argues his statements address

racial discrimination, “a hot-button topic of significant public

concern.” We are not persuaded.

1. Applicable Law and Standard of Review

Under section 425.16, a defendant may move to strike

claims “ ‘arising from any act … in furtherance of the

[defendant’s] right of petition or free speech under the United

States Constitution or the California Constitution in connection

with a public issue.’ ” (Wilson v. Cable News Network, Inc. (2019)

7 Cal.5th 871, 884.) Section 425.16 does not completely insulate a

defendant’s protected speech; rather, it provides a mechanism

“for weeding out, at an early stage, meritless claims arising from”

protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384

(Baral).)

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Courts apply a two-prong test when evaluating an antiSLAPP

motion. (Baral, supra, 1 Cal.5th at p. 384.) “First, the

defendant must establish that the challenged claim arises from

activity protected by section 425.16.” (Ibid.) To determine

whether the plaintiff’s causes of action arise from the defendant’s

protected activity, we look at the “pleadings, and supporting and

opposing affidavits stating the facts upon which the liability or

defense is based.” (§ 425.16, subd. (b)(2); see also Equilon

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

If the defendant meets that burden, the plaintiff then must

“demonstrate the merit of the claim by establishing a probability

of success.” (Baral, supra, 1 Cal.5th at p. 384.) The second prong

involves an analysis similar to that used to evaluate a summary

judgment motion. (Ibid.) “The court does not weigh evidence or

resolve conflicting factual claims. Its inquiry is limited to

whether the plaintiff has stated a legally sufficient claim and

made a prima facie factual showing sufficient to sustain a

favorable judgment. [The court] accepts the plaintiff’s evidence as

true, and evaluates the defendant’s showing only to determine if

it defeats the plaintiff’s claim as a matter of law.” (Id. at pp. 384–

385.)

We independently review an order granting a special

motion to strike under section 425.16. (Paulus v. Bob Lynch Ford,

Inc. (2006) 139 Cal.App.4th 659, 672.) “ ‘ “[W]e engage in the

same, two-step process as the trial court to determine if the

parties have satisfied their respective burdens. [Citations.] If the

defendant fails to show that the lawsuit arises from protected

activity, we affirm the trial court’s ruling and need not address

the merits of the case under the second prong of the statute.” ’

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[Citation.]” (Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291,

1298.)

2. LaBeouf’s conduct does not fall within the scope of the

anti-SLAPP statute.

The anti-SLAPP statute protects, among other things,

statements or conduct made “in connection with a public issue or

an issue of public interest.” (See § 425.16, subd. (e)(3)–(4).)

4 To

fall within the scope of subdivision (e)(3) and (4) of the antiSLAPP

statute, a defendant must establish: (1) that the

challenged statement or conduct implicates a public issue or a

matter of public interest; and (2) that the speech or conduct was

made “in connection with” a public issue or a matter of public

interest. (See § 425.16, subd. (e)(3)–(4); see also FilmOn.com Inc.

v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149 (FilmOn).)

To determine whether challenged speech or other conduct

involves a public issue or a matter of public interest, courts look

to “certain specific considerations.” (FilmOn, supra, 7 Cal.5th at

p. 145.) For instance, courts look to whether “the subject of the

speech or activity ‘was a person or entity in the public eye’ or

‘could affect large numbers of people beyond the direct

participants’ [citation]; and whether the activity ‘occur[red] in the

context of an ongoing controversy, dispute or discussion’

[citation], or ‘affect[ed] a community in a manner similar to that

of a governmental entity’ [citation].” (Id. at pp. 145–146.)

4 The parties agree the first two categories of protected activity under

section 425.16, subdivision (e) do not apply in this case because none of

the underlying conduct concerns “a legislative, executive, or judicial

proceeding, or any other official proceeding authorized by law[.]” (§

425.16, subd. (e)(1)–(2).)

9

“ ‘[P]ublic interest’ does not equate with mere curiosity,” and “the

focus of the speaker’s conduct should be the public interest rather

than a mere effort ‘to gather ammunition for another round of

[private] controversy … .’ [Citation.]” (Weinberg v. Feisel (2003)

110 Cal.App.4th 1122, 1132–1133 (Weinberg).)

As for the second requirement, the California Supreme

Court recently articulated a two-part test to determine whether

speech or conduct was made “in connection with” an issue of

public interest. (FilmOn, supra, 7 Cal.5th at p. 149.) “First, we

ask what ‘public issue or … issue of public interest’ the speech in

question implicates—a question we answer by looking to the

content of the speech. [Citation.] Second, we ask what functional

relationship exists between the speech and the public

conversation about some matter of public interest.” (Id. at pp.

149–150.) The second part of this test “address[es] the specific

nature of [the defendant’s] speech and its relationship to the

matters of public interest.” (Id. at p. 152.)5

LaBeouf contends his celebrity status makes “his day to

day conduct ‘a public issue or an issue of public interest.’ ”

According to LaBeouf, since footage of him calling Bernstein a

racist and physically threatening Bernstein was disseminated on

the internet and on television, his conduct must involve a matter

5 While FilmOn addressed the meaning of the phrase “in connection

with” as it is used in subdivision (e)(4) of section 425.16, we see no

reason why the same analysis should not apply when determining

whether a statement was made “in connection with” a public issue or a

matter of public interest for purposes of subdivision (e)(3) of section

425.16. (See People v. McCart (1982) 32 Cal.3d 338, 344 [“When a word

or phrase is repeated in a statute, it is normally presumed to have the

same meaning throughout.”].)

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of public interest under section 425.16, subdivision (e)(3) and (4).

We disagree.

While courts have held the public’s interest in the life and

work of entertainers and other celebrities can create an issue of

public interest for purposes of section 425.16, subdivision (e) (see

Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 678), it

is the subject of the defendant’s speech or conduct that

determines whether an issue of public interest has been

implicated for purposes of anti-SLAPP protection. (See FilmOn,

supra, 7 Cal.5th at pp. 145–146.) The defendant’s celebrity

status, on its own, is not sufficient to render anything the

defendant says or does subject to anti-SLAPP protection. (Id. at

p. 152; see also D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226

(D.C.) [“No authority supports the [defendant’s] broad proposition

that anything said or written about a public figure or limited

public figure in a public forum involves a public issue.”].)

Here, LaBeouf’s statements—calling Bernstein a “racist”—

were not directed at someone in the public eye. Nothing in the

record suggests that, prior to this incident, Bernstein was a

public figure or had been involved in any issue of public interest.

(See D.C., supra, 182 Cal.App.4th at p. 1229 [a bully’s threats of

bodily harm toward fellow student who maintained a website

promoting his musical career did not implicate a matter of public

interest because the subject of the speech—the fellow student—

was not a person in the public eye].)

There is also no evidence that LaBeouf’s comments

addressed an ongoing controversy or an issue that had garnered

any public interest before LaBeouf lashed out at Bernstein.

Rather, the statements concerned an isolated dispute between a

bartender and an inebriated client over the bartender’s refusal to

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serve the client alcohol at a restaurant. Indeed, as LaBeouf

concedes in his opening brief, the subject of his altercation with

Bernstein was “unremarkable and insignificant.” (See Albanese v.

Menounos (2013) 218 Cal.App.4th 923, 936 [“the focus of the

speaker’s conduct should be the public interest, not a private

controversy”].) Although footage of the altercation was later

disseminated to many people on the internet and television, a

private dispute does not become a matter of public interest

simply because it was widely communicated to the public.

(Weinberg, supra, 110 Cal.App.4th at p. 1133.)

Moreover, the fact that LaBeouf used the word “racist”

when confronting Bernstein did not convert the statements into

the type of speech entitled to anti-SLAPP protection. It is obvious

from the circumstances surrounding LaBeouf’s statements that

they were not intended to further any public debate on the issue

of racism. Rather, the comments were merely part of LaBeouf’s

tantrum triggered by Bernstein’s refusal to serve him and Goth

alcohol. Nothing in the record shows Bernstein or any other

Jerry’s employee had been accused of engaging in racist behavior

in the past, and nothing in the video footage of the Jerry’s

incident supports an inference that Bernstein engaged in any

racist behavior before LaBeouf lost his temper. Indeed, in his

anti-SLAPP motion, LaBeouf admitted his statements were

“ ‘mere name calling.’ ” While racism is undoubtedly an issue of

public interest, a defendant cannot convert speech that would

otherwise not be entitled to anti-SLAPP protection into protected

activity by “defining the[] narrow dispute by its slight reference

to the broader public issue.” (FilmOn, supra, 7 Cal.5th at p. 152.)

In short, the “content of [LaBeouf’s] communication added

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nothing to any public discourse or interest.” (D.C., supra, 182

Cal.App.4th at p. 1230, italics omitted.)

This case is distinguishable from Hall v. Time Warner, Inc.

(2007) 153 Cal.App.4th 1337 (Hall), which LaBeouf relies on to

argue his statements are entitled to anti-SLAPP protection. Hall

arose out of the probate of Marlon Brando’s will following the

actor’s death. (Id. at pp. 1341–1344.) After “[a] petition for

probate of Brando’s will was filed in the Los Angeles Superior

Court,” the producers of a television program interviewed

Brando’s retired housekeeper, who was named as a beneficiary in

the will. (Id. at p. 1342.) After the interview was aired on

national television, the housekeeper sued the producers for,

among other things, elder abuse and intentional infliction of

emotional distress. (Id. at p. 1343.)

The trial court in Hall denied the producers’ anti-SLAPP

motion, but the appellate court reversed. (Hall, supra, 153

Cal.App.4th at pp. 1344, 1346–1348.) The reviewing court held

the defendants’ conduct was protected under the anti-SLAPP

statute because it addressed matters of public interest: Brando’s

death and the probate of his will, which had garnered significant

national media attention in print and on television even before

the defendants aired the housekeeper’s interview. (Id. at p. 1342.)

Although the housekeeper did not volunteer to participate in the

interview or otherwise make public statements about Brando’s

will, the reviewing court held she “nevertheless became involved

in an issue of public interest by virtue of being named in Brando’s

will.” (Id. at p. 1347.) In other words, the housekeeper was a

figure of public interest because of her relationship to Brando and

the fact that she was a key figure in the probate of his will.

13

To be sure, Hall and this case share some similarities: they

each involve a celebrity, and the underlying incidents attracted

the media’s and the public’s attention. But the similarities end

there. In Hall, the “subjects” of the defendants’ conduct—a

beneficiary of Brando’s will and the execution of that will—were

matters of public interest before the defendants recorded and

later aired their interview with Brando’s housekeeper. And, while

the reviewing court did not expressly rely on this fact in reaching

its decision, the dispute in Hall arose out of an ongoing judicial

proceeding: the probate of Brando’s will in the Los Angeles

Superior Court. Judicial proceedings, by definition, are matters of

public interest under the anti-SLAPP statute. (See § 425.16,

subd. (e)(2) [any statement made “in connection with” a “judicial

proceeding” is a “public issue” entitled to anti-SLAPP

protection].) LaBeouf’s conduct in this case, on the other hand,

involved a purely private dispute that only drew media attention

after it occurred.

6

In any event, even if Hall could be read to suggest that a

defendant’s celebrity status, by itself, converts an otherwise

private dispute involving that celebrity into a matter of public

interest, we would disagree with that holding. Hall was decided

more than 10 years before the Supreme Court decided FilmOn.

As we explained above, FilmOn makes clear that the social or

celebrity status of a party does not, without more, convert

anything that party says into a matter of public interest. Under

FilmOn, the focus of the “public interest” inquiry “must be on ‘the

specific nature of the speech,’ rather than on any ‘generalities

6 We note that LaBeouf does not contend that Bernstein’s complaint

contains “mixed” causes of action. (Baral, supra, 1 Cal.5th at p. 395.)

14

that might be abstracted from it,’ ” such as the fact that the

defendant “ ‘regularly injects himself in the public spotlight.’ ”

(FilmOn, supra, 7 Cal.5th at p. 152.)

In sum, neither LaBeouf’s statements calling Bernstein a

“racist,” nor LaBeouf’s other conduct during the incident at

Jerry’s, involved a matter of public interest or concern. Rather,

LaBeouf’s statements stemmed out of an isolated dispute

between himself and Bernstein. The lower court, therefore,

properly denied LaBeouf’s anti-SLAPP motion.

The order denying LaBeouf’s anti-SLAPP motion is affirmed. David Bernstein shall recover his costs on appeal.