Richard Simmons v. Bauer Media Group USA, LLC

Defendant and appellant Bauer Media Group USA, LLC,

an entertainment magazine publisher, appeals from the denial of

its special motion to strike the first amended complaint of

plaintiffs and respondents Richard Simmons and Teresa Reveles

(i.e., an anti-SLAPP motion under Code of Civil Procedure section

425.16.).

The well-known Simmons describes himself as “a health

and fitness guru, motivational life coach, comedian, and actor.”

Reveles is Simmons’s live-in caretaker. By driving him in her car,

Reveles also serves as Simmons’s “exclusive method of transport.”

Simmons and Reveles sued Bauer after discovering that Scott

Brian Mathews, a private detective hired by Bauer, unlawfully

attached an electronic tracking device to Reveles’s car. They also

sued Mathews and Mathews’s sole proprietorship, a detective

agency called LA Intelligence.2 Asserting Mathews’s use of the

tracking device was within the course and scope of his

employment by Bauer — something Bauer vehemently denies —

the first amended complaint alleges various causes of action

seeking a statutory penalty and damages arising from the use of

that device.

We conclude Bauer failed to demonstrate the conduct at the

heart of the lawsuit — the unlawful use of the tracking device —

is, as Bauer contends, “conduct in furtherance of its exercise of

the right of free speech in connection with issues of public



1 Further statutory references are to the Code of Civil

Procedure unless otherwise indicated.

2 Neither Mathews nor LA Intelligence is a party to this

appeal.

3

interest[.]” (See § 425.16, subd. (e)(4).) We therefore affirm the

denial of Bauer’s anti-SLAPP motion.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

In 2014, Simmons suddenly withdrew from the spotlight

and has since intentionally avoided appearing in public. On April

18, 2017, Reveles drove Simmons to Cedars-Sinai Medical

Center, where he was admitted. Simmons was discharged from

the hospital on April 20, 2017. An extensive media presence

outside the hospital during his stay helped fuel speculation over

the reasons for his hospitalization.

Bauer owned the tabloid In Touch Weekly at the time.3

Through the tabloid’s editor, Bauer hired Mathews and LA

Intelligence. On his website, Mathews advertises his agency’s

“primary” reliance on “surveillance” to “solve cases,” including

the “use [of] the most state-of-the-art video equipment and GPS

tracking devices.” Mathews’s invoice indicated the service he

provided to Bauer consisted of 12 hours of surveillance at CedarsSinai Medical Center on April 18, 2017.

Months later, an electronic tracking device, traceable to

Mathews, was found on Reveles’s car. The device had been

monitoring her travel since Simmons’s hospitalization. Mathews

was charged with two counts of unlawfully using an electronic

tracking device in violation of Penal Code section 637.7,



3 Bauer owned In Touch Weekly until the Fall of 2017.

4

subdivision (a).4 He subsequently entered a negotiated plea of no

contest to two amended counts of vehicle tampering in violation

of Vehicle Code section 10852,5 and was placed on three years of

probation. The remaining counts were dismissed.

B. First Amended Complaint

Simmons and Reveles filed a complaint against Mathews in

early June 2018 and a first amended complaint for six causes of

action in early July, adding LA Intelligence and Bauer as

defendants. The first amended complaint alleges Mathews is

personally liable and Bauer is vicariously liable for (1) violating

Penal Code section 637.7, pursuant to a private right of action

under Penal Code section 637.2, (2) invasion of privacy

(intrusion), (3) physical invasion of privacy in violation of Civil

Code section 1708.8, subdivision (b),

6 (4) trespass and (5) trespass



4 Penal Code section 637.7 subdivision (a) provides: “No

person or entity in this state shall use an electronic tracking

device to determine the location or movement of a person.”

5 Vehicle Code section 10852 states, “No person shall either

individually or in association with one or more other persons,

willfully injure or tamper with any vehicle or the contents thereof

or break or remove any part of a vehicle without the consent of

the owner.”

6 Civil Code section 1708.8, subdivision (b) provides: “A

person is liable for constructive invasion of privacy when the

person attempts to capture, in a manner that is offensive to a

reasonable person, any type of visual image, sound recording, or

other physical impression of the plaintiff engaging in a private,

personal, or familial activity, through the use of any device,

5

to chattels. A sixth cause of action asserts Bauer is liable for the

negligent hiring and supervision of Mathews. The unlawful

placement and use of the tracking device is the conduct forming

the gravamen of each cause of action.

C. Anti-SLAPP Motion and Trial Court’s Ruling

Bauer filed a special motion to strike the first amended

complaint in its entirety under the anti-SLAPP statute. In its

anti-SLAPP motion, Bauer argued (1) the causes of action in the

first amended complaint are issues of public interest and

protected under section 426.15 because they “arise solely from its

newsgathering conduct related to celebrity fitness guru Richard

Simmons’ [sic] abrupt and well-publicized retreat from public

view in 2014, and his subsequent hospitalization in 2017”; (2)

Mathews acted as an independent contractor when he unlawfully

deployed the tracking device without Bauer’s knowledge and

consent; and (3) Bauer had no reason to suspect Mathews would

engage in such conduct.

In support of the motion, Bauer submitted declarations of

Mathews and Chris Myers, the former editor of In Touch Weekly,

who hired Mathews. Both stated Mathews’s only assignment was

to photograph Simmons leaving Cedars-Sinai Medical Center on

April 18, 2017 for a potential news story; no photographs were

taken; and no one at Bauer or In Touch Weekly told Mathews to

attach an electronic tracking device to Reveles’s car. Meyers also



regardless of whether there is a physical trespass, if this image,

sound recording, or other physical impression could not have

been achieved without a trespass unless the device was used.”

6

declared In Touch Weekly elected not to print a story about

Simmons’s hospitalization.

In opposition to the motion, Simmons and Reveles argued

(1) Bauer’s and Mathews’s violation of Penal Code section 637.7

gave rise to the six causes of action, and this unlawful

misconduct is not protected under section 425.16; (2) Bauer is

vicariously liable for the intentional tortious acts committed by

Mathews; and (3) Bauer’s negligence in hiring and supervising

Mathews is a question of fact for the jury.

The trial court denied the anti-SLAPP motion. Bauer filed

a timely notice of appeal.

DISCUSSION

A. Anti-SLAPP Statute and Standard of Review

A SLAPP suit “seeks to chill or punish a party’s exercise of

constitutional rights to free speech and to petition the

government for redress of grievances. [Citation.]” (Rusheen v.

Cohen (2006) 37 Cal.4th 1048, 1055.) “The Legislature enacted

[Code of Civil Procedure] section 425.16,” known as the antiSLAPP statute, to provide “for the early dismissal of

unmeritorious claims filed to interfere with the valid exercise of

the constitutional rights of freedom of speech and petition for the

redress of grievances.” (Club Members for an Honest Election v.

Sierra Club (2008) 45 Cal.4th 309, 315-316.) The statute is to “be

construed broadly.” (§ 425.16, subd. (a).)

Section 425.16 identifies four categories of protected

conduct. The fourth or catch-all category, at issue here, is

“conduct in furtherance of the exercise of the constitutional right

7

of petition or the constitutional right of free speech in connection

with a public issue or an issue of public interest.” (§ 425.16, subd.

(e)(4).)

“We review de novo a trial court’s decision on an anti-SLAPP

motion. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781,

788 [249 Cal.Rptr.3d 295, 444 P.3d 97].) The anti-SLAPP statute

requires a two-step process: ‘At the first step, the moving

defendant bears the burden of identifying all allegations of

protected activity, and the claims for relief supported by

them . . . . If the court determines that relief is sought based on

allegations arising from activity protected by the statute, the

second step is reached. There, the burden shifts to the plaintiff to

demonstrate that each challenged claim based on protected

activity is legally sufficient and factually substantiated. The

court, without resolving evidentiary conflicts, must determine

whether the plaintiff’s showing, if accepted by the trier of fact,

would be sufficient to sustain a favorable judgment. If not, the

claim is stricken.’ (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 [205

Cal. Rptr. 3d 475, 376 P.3d 604] . . . .) In making these

determinations the court considers ‘the pleadings, and supporting

and opposing affidavits stating the facts upon which the liability

or defense is based.’ (§ 425.16, subd. (b)(2).)” (Briganti v. Chow

(2019) 42 Cal.App.5th 504, 508.)

8

B. The First Amended Complaint Does Not Fall

Within the Anti-SLAPP Statute

Bauer contends it is entitled to protection under the antiSLAPP statute because the first amended complaint arises from

Bauer’s conduct in furtherance of the right to report the news.

According to Bauer, hiring an independent contractor to

photograph Simmons for a potential news story constitutes

“‘conduct in furtherance of the exercise of . . . the constitutional

right of free speech in connection with an issue of public

interest[,]’” namely, a celebrity’s hospitalization following his

well-publicized disappearance from public life.

Bauer reasons it is entitled to the same protection under

section 426.15 that has been afforded other media defendants. To

support this reasoning, Bauer relies principally on this court’s

decision in in Lieberman v. KCOP Television, Inc. (2003) 110

Cal.App.4th 156 (Lieberman) as “squarely on point.” In

Lieberman, the plaintiff sued a television network for violating

Penal Code section 632, after it aired a news report based on

secret audio recording excerpts identifying him as a physician

who improperly prescribed controlled substances. (Id. at p. 161.)

Penal Code section 632 prohibits the surreptitious recording of

confidential communications without the parties’ consent. The

plaintiff alleged the audio recordings were unlawfully made

without his knowledge or consent during office visits with

network personnel or agents posing as patients. (Id. at pp. 161-

162.) A different panel of this court concluded that issuing

prescriptions for controlled substances for a nonmedical purpose

9

was an issue of great public interest. (Id. at pp. 164-165.) Because

the purportedly unlawful audio recordings furthered free speech

rights by assisting the reporting of this news, the physician’s

complaint fell within the scope of section 425.16. (Id at p. 165.)

Bauer maintains because the first amended complaint “is

rooted” in its newsgathering activity, Simmons and Reveles

“cannot strip Bauer of anti-SLAPP protection simply by labeling

the activity ‘illegal.’” Accordingly, Bauer concludes, the trial court

erroneously determined it failed to make the threshold showing

under section 425.16 to shift the burden to Simmons and Reveles

to show a probability of prevailing on their causes of action.

It is beyond dispute that reporting the news is an exercise

of free speech. (See, e.g. Phila. Newspapers v. Hepps (1986) 475

U.S. 767, 775-776 [89 L.Ed.2d 783, 792, 106 S.Ct.1558, 1563]

[newspaper articles equated with free speech]; Joseph Burstyn. v.

Wilson (1952) 343 U.S. 495, 501 [96 L.Ed.1098, 1106, 72 S.Ct.

777, 780]) [newspapers characterized as a form of “expression”];

Lieberman, supra, 110 Cal.App.4th at p. 165 [reporting the news

qualifies as free speech].) California courts have also held preand post-reporting conduct, such as investigating,

newsgathering, writing, and interviewing is conduct in

furtherance of free speech. (See, Tamkin v. CBS Broadcasting,

Inc. (2011) 193 Cal.App.4th 133, 143 [“An act is in furtherance of

the right of free speech if the act helps to advance that right or

assists in the exercise of that right;” holding writer’s use of

plaintiffs’ names in a television show’s draft script qualified as

protected conduct because it “helped to advance or assist in the

creation, casting, and broadcasting of an episode of a popular

television show”]; Hunter v. CBS Broadcasting, Inc. (2013) 221

Cal.App.4th 1510, 1521 [Network’s selections of weather anchors,

10

essentially casting decisions, helped advance or assist freedom of

speech and were thus protected conduct].) As in Lieberman,

courts have held defendants may satisfy the showing they were

engaged in conduct in furtherance of free speech under section

426.15, even when their conduct was allegedly unlawful. (See

Taus v. Loftus (2007) 40 Cal.4th 683, 713, 727-732 [holding that

defendants’ investigation, including an interview that was

allegedly fraudulently obtained, constituted protected activity];

Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1342,

1347 [same].)

The issue here is whether the first amended complaint

takes aim at activity by Bauer in furtherance of its free speech

rights. The anti-SLAPP statue applies “only if the speech or

petitioning activity itself is the wrong complained of, and not

just . . . a step leading to some different act for which liability is

asserted.” (Park v. Board of Trustees of California State

University (2017) 2 Cal.5th 1057, 1060 (Park).) As noted, Bauer

characterizes its protected activity as “newsgathering,” by

“engaging an independent contractor to take news photographs”

of a celebrity for a potential news story. But resolving an antiSLAPP motion requires courts to “consider the elements of the

challenged claim and what actions by the defendant supply those

elements and consequently form the basis for liability.” (Park,

supra, 2 Cal.5th at p. 1063.) Our examination of each of the

pleaded theories of liability reveal none of the causes of action

asserted against Bauer arise from Bauer’s or In Touch Weekly’s

mere hiring of Mathews to photograph Simmons outside CedarsSinai Medical Center on April 17, 2018. (See Id. at p.1063 [“A

claim arises from protected activity when that activity underlies

or forms the basis for the claim [Citations]”].) Thus, to the extent

11

the newsgathering activity claimed by Bauer qualifies for first

amendment protection, this lawsuit does not chill it.

All six causes of action do arise, however, from Bauer’s

purported involvement in Mathews’s illegal use of an electronic

tracking device, as “the wrong complained of[.]” (See Park, supra

2 Cal.5th at p. 1060.) Bauer does not contend Mathews’s use of

the device was lawful; rather it steadfastly denies knowing about,

consenting to, directing, or participating in the alleged activity.

Thus, Bauer’s argument that it is entitled to the same first

amendment protection as the defendant in Lieberman, supra, 110

Cal.App.4th 156, is a red herring. Unlike Bauer, the defendants

in Lieberman and similar cases did not deny participation in the

purported wrongdoing; instead, they asserted it was protected

conduct in furtherance of free speech as defined by section

416.15, assertions with which the appellate courts agreed.

(Lieberman, supra, 110 Cal.App4th at pp. 165-166, Taus v.

Loftus, supra, 40 Cal.4th at pp. 713; Hall v. Time Warner, Inc.,

supra, 153 Cal.App.4th at p. 1342.)

In Flatley v. Mauro (2009) 39 Cal.4th 299, 313 (Flatley), our

Supreme Court noted the “purpose of section 425.16 is to prevent

the chilling of the ‘valid exercise of the constitutional rights of

freedom of speech and petition for the redress of grievances’ by

‘the abuse of the judicial process.’ (§ 425.16, subd. (a).)” But, as

the court pointed out, “[a]s a necessary corollary to this

statement, because not all speech or petition activity is

constitutionally protected, not all speech or petition activity is

protected by section 425.16.” (Flatley, supra, 39 Cal.4th at p.

313.)

In particular, “section 425.16 cannot be invoked by a

defendant whose assertedly protected activity is illegal as a

12

matter of law and, for that reason, not protected by constitutional

guarantees of free speech and petition.” 7 (Flatley, supra, 39

Cal.4th at p. 317; see also, Novartis Vaccines & Diagnostics, Inc.

v. Stop Huntington Animal Cruelty USA, Inc. (2006) 143

Cal.App.4th 1284, 1288,1300 [individual animal rights’ activists

terrifying “home visits” of biopharmaceutical employees — in

which their windows were broken and cars vandalized — were

illegal activities as a matter of law].) Nor can it be invoked by a

defendant who is alleged to be vicariously liable for unprotected

illegal or tortious activity. (See Spencer v. Mowat (2020) 46

Cal.App.5th 1024, 1037-1040.) The Flatley court noted “[a]

contrary rule would be inconsistent with the purpose of the antiSLAPP statute as revealed by its language. [Citation.]” (Flatley,

supra, 39 Cal.4th at p. 317) In fact, “it would eviscerate the first

step of the two-step inquiry set forth in the statute if the

defendant’s mere assertion that his underlying activity was

constitutionally protected sufficed to shift the burden to the

plaintiff to establish a probability of prevailing where it could be

conclusively shown that the defendant’s underlying activity was

illegal and not constitutionally protected.” (Ibid.) The court

therefore concluded “that where a defendant brings a motion to

strike under section 425.16 based on a claim that the plaintiff’s

action arises from activity by the defendant in furtherance of the



7 Although the Supreme Court has not yet clarified the outer

bounds of what activity is “illegal as a matter of law,” our

colleagues in Division Eight concluded Flatley’s “use of the phrase

‘illegal’ was intended to mean criminal, and not merely violative

of a statute.” (Mendoza v. ADP Screening and Selection Services,

Inc. (2010) 182 Cal.App.4th 1644, 1654; accord Finton

Construction Inc. v. Bidna & Keys APLC (2015) 238 Cal.App.4th

200, 210; Freemont Reorganizing Corp. v. Faigin (2011) 198

Cal.App.4th 1153, 1169.)

13

defendant’s exercise of protected speech or petition rights, but

either the defendant concedes, or the evidence conclusively

establishes, that the assertedly protected speech or petition

activity was illegal as a matter of law, the defendant is precluded

from using the anti-SLAPP statute to strike the plaintiff’s

action.” (Flatley, supra, 39 Cal.4th at p. 320)

Here, Bauer concedes Mathews’s placement and use of the

tracking device was illegal and not protected speech. But it

insists it merely hired Mathews to take photographs, not

illegally place a tracking device. That assertion, however,

contradicts allegations in the first amended complaint that Bauer

hired Mathews and LA Intelligence both to stake out the hospital

during Simmons’s visit and to track and report on Simmons’s

whereabouts, making Bauer vicariously liable for their torts. This

factual dispute goes to the merits of plaintiffs’ claims and is not

relevant to the first prong of the anti-SLAPP inquiry. (See Malin

v. Singer (2013) 217 Cal.App.4th 1283, 1304, quoting Gerbosi v.

Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435,

446 [“Even if we were to accept [the defendants’] assertion that

they are innocent of the criminal computer hacking and

wiretapping allegations, their claim is ‘more suited to the second

step of an anti-SLAPP motion. A showing that a defendant did

not do an alleged activity is not a showing that the alleged

activity is a protected activity’”].) Because Bauer’s alleged

conduct in the first amended complaint falls outside the

protections of the First Amendment and the bounds of section

426.15, the trial court properly denied the anti-SLAPP motion.

The order denying the special motion to strike the first amended complaint under section 426.15 is affirmed. Respondents Simmons and Reveles are to recover their costs on appeal.