Electronically FILED by Superior Court of California, County of Los Angeles on 06/02/2021 01:38 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by M. Mariscal,Deputy Clerk

RUSS, AUGUST & KABAT

1 Stanton L. Stein (SBN 45997)
2 [email protected]
Diana A. Sanders (SBN 296689)
3 [email protected]
Mary E. Keller (SBN 316948)
4 [email protected]
12424 Wilshire Boulevard, 12th Floor
5
Los Angeles, California 90025
6 Telephone: (310) 826-7474
Facsimile: (310) 826-6991
7
Attorneys for Plaintiffs Jeff Franklin
8 and Moose Productions, Inc.
9

10 SUPERIOR COURT OF THE STATE OF CALIFORNIA

11 COUNTY OF LOS ANGELES – WEST DISTRICT
RUSS, AUGUST & KABAT

12

13 JEFF FRANKLIN, an individual; and MOOSE Case No. 19SMCV00721

PRODUCTIONS, INC., a California
14 Assigned to the Honorable Craig D. Karlan
corporation,
Department N
15
Plaintiffs, PLAINTIFFS’ OPPOSITION TO
16 DEFENDANT’S SPECIAL MOTION TO
vs. STRIKE COMPLAINT PURSUANT TO
17 CALIFORNIA CODE OF CIVIL
PROCEDURE § 425.16
18
BRYAN BEHAR, an individual; and DOES 1-
19 50, inclusive, [Declarations of John Stamos, Craig
Shoemaker, Jeff Franklin, , Stanton L.
20 Defendant. Stein; and Evidentiary Objections filed
concurrently herewith]
21
Hearing Date: June 30, 2021
22 Time: 8:30 a.m.
23
Complaint Filed: April 16, 2019
24 Trial Date: None set
25

26

27

28

1
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 TABLE OF CONTENTS

2 I. INTRODUCTION ................................................................................................................... 5
II. STATEMENT OF FACTS ...................................................................................................... 6
3
A. FRANKLIN’S AND WB’S LONG RELATIONSHIP AND HIS REPLACEMENT WITH BEHAR .............. 6
4
B. COMMENCEMENT OF THIS ACTION AND DISCOVERY ORDER .................................................. 6
5

6 C. DISCOVERY REVEALS THAT WB CONDUCTED A MERE “CLIMATE SURVEY” INTO FRANKLIN

WITH BEHAR’S INTENSE INVOLVEMENT IN, AND MANIPULATION OF, IT .................................. 7
7
III. LEGAL ARGUMENT......................................................................................................... 9
8 A. BEHAR CANNOT SATISFY THE FIRST PRONG BECAUSE HE HAS NOT ESTABLISHED AN ACT IN
FURTHERANCE OF HIS RIGHT TO FREE SPEECH .................................................................... 10
9

10 B. FRANKLIN EXCEEDS THE “MINIMAL MERIT” TEST ON HIS INTERFERENCE CLAIM................. 12

11 1. Behar Induced WB to Terminate its Business Relationship With Franklin by Engaging in

RUSS, AUGUST & KABAT

Independent Wrongful Acts ............................................................................................ 13

12
a. Behar’s Statements Are Not Privileged under Civil Code 47(c) .................................. 13
13

14 b. Behar Acted with Malice ............................................................................................ 14

15 c. Franklin is Not a Public Figure, And Even if He is, Behar’s Communications Were
Carried Out with Actual Malice.................................................................................. 15
16

17 2. Behar’s Tortious Conduct was a Substantial Factor in WB’s Decision to Terminate its
Relationship with Franklin ............................................................................................. 16
18
a. Behar was the driving force of WB’s “climate survey” ............................................... 17
19
b. WB’s “Climate Survey” and Turning of a Blind Eye to Behar’s Conduct Amplifies
20 Behar’s Influence Over WB’s Decision ...................................................................... 17
21 IV. CONCLUSION ..................................................................................................................... 19
22

23

24

25

26

27

28

2
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 TABLE OF AUTHORITIES

2 CASES
3 Averill v. Sup. Ct.
(1996) 42 Cal. App.4th 1170 -----------------------------------------------------------------------------11
4 Balla v. Hall
(2021) 59 Cal.App.5th 652 -------------------------------------------------------------------------------15
5
Barnal v. Schnitt
6 (2016) 1 Cal.5th 376 -----------------------------------------------------------------------------------9, 19
Baugh v. Dep’t of Forestry & Fire Prot.
7 (2016) 246 Cal.App.4th 328 ------------------------------------------------------------------------------11
Bernstein v. LaBeouf
8 (2019) 43 Cal.App.5th 15 ---------------------------------------------------------------------------------12
Brown v. Kelly Broad. Co.
9
(1989) 48 Cal.3d 711 --------------------------------------------------------------------------------------14
10 Cole v. Meyer & Assoc.
(2012) 206 Cal.App.4th 1095 ----------------------------------------------------------------------------10
11 Cruey v. Gannett Co.
RUSS, AUGUST & KABAT

(1998) 64 Cal.App.4th 356 -------------------------------------------------------------------------- 14, 15

12 Dual Diagnosis Treat. Ctr., Inc. v. Buschel
13 (2016) 6 Cal.App.5th 1098 -------------------------------------------------------------------------------11
Equilon Enter. v. Consumer Cause, Inc.
14 (2002) 29 Cal.4th 53 --------------------------------------------------------------------------------------- 9
FilmOne Inc. v. DoubrleVerify Inc.
15 (2019) 7 Cal.5th 133 --------------------------------------------------------------------------------------11
Gertz v. Robert Welch, Inc.
16
(1974) 418 U.S. 323 ---------------------------------------------------------------------------------------15
17 Gottwald v. Sebert et al.,
Case No. 2020-01908, April 21, 2021, NYSCEF Doc. No. 61 --------------------------------------16
18 Grenier v. Taylor
(2015) 234 Cal.App.4th 471 -----------------------------------------------------------------------------16
19 Hailstone v. Martinez
(2008) 169 Cal.App.4th 728 ---------------------------------------------------------------- 10, 11, 12, 14
20
Jenni Rivera Enters., LLC v. Latin World Ent’nt
21 (2019) 36 Cal.App.5th 766 -------------------------------------------------------------------------------16
Khawar v. Globe Intern., Inc.
22 (1998) 19 Cal.4th 254 -------------------------------------------------------------------------------------16
Manzari v. Associate Newspapers Ltd.
23 (2016) 830 F.3d 881 --------------------------------------------------------------------------------------15
24 Noel v. River Hills Wilsons, Inc.
(2003) 113 Cal.App.4th 1363 ----------------------------------------------------------------------------14
25 Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811 ------------------------------------------------------------------------------------10
26 Overstock.com, Inc. v. Gradient Analytics, Inc.
(2007) 151 Cal. App. 4th 688 ----------------------------------------------------------------------------- 9
27 Rivero v. Am. Fed'n of State, Cty.
28 (2003) 105 Cal.App.4th 913 ------------------------------------------------------------------------------11

3
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 Sanders v. Walsh
1 (2013) 219 Cal. App. 4th 855 ----------------------------------------------------------------------------16
2 Schneider v. United Airlines, Inc.
(1989) 208 Cal.App.3d 71 --------------------------------------------------------------------------------15
3 Smith v. Maldonado,
(1999) 72 Cal.App.4th 637 ------------------------------------------------------------------------------13
4 Terry v. Davis Cmt. Church
(2005) 131 Cal.App.4th 1534 ----------------------------------------------------------------------------12
5
Time, Inc. v. Firestone
6 (1976) 424 U.S. 448 ---------------------------------------------------------------------------------------16
Wilbanks v. Wolk
7 (2004) 121 Cal.App.4th 883 ------------------------------------------------------------------------- 11, 19
Wilson v. Cable News Network, Inc.
8 (2019) 7 Cal. 5th 871 -----------------------------------------------------------------------------10, 11, 12
9 STATUTES
10 Cal Civ. Code § 425.16 --------------------------------------------------------------------------------------10
Civ. Code § 45 ------------------------------------------------------------------------------------------------13
11 Civ. Code § 45a ----------------------------------------------------------------------------------------------13
RUSS, AUGUST & KABAT

12 Civ. Code § 46 ------------------------------------------------------------------------------------------------13

Civ. Code § 47 ------------------------------------------------------------------------------------------- 13, 14
13 Civ. Code § 48a ----------------------------------------------------------------------------------------------13

14 OTHER AUTHORITIES
15 CACI 2202----------------------------------------------------------------------------------------------------12
CACI 430 -----------------------------------------------------------------------------------------------------19
16

17

18

19

20

21

22

23

24

25

26

27

28

4
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 I. INTRODUCTION

2 Defendant Bryan Behar has tried hard to unfairly label this lawsuit as one about retaliation

3 but, in reality, plaintiff Jeff Franklin is justly asserting his rights after his career was stripped away

4 from him by Behar’s greed and manipulation when Behar wrongfully interfered with Franklin’s

5 relationship with Warner Brothers (“WB”) to replace Franklin as showrunner on the show Fuller

6 House. Although Behar, allied with WB, hoped to summarily dispose of this case based on self-

7 serving (and untrue) declarations, discovery has since revealed that Behar directed WB’s superficial

8 “climate survey” by peddling defamatory information about Franklin to WB and rallying others to do

9 the same, causing Franklin’s abrupt termination from the series he created and nurtured to success.

10 WB turned a blind eye to Behar’s actions despite becoming suspicious of them, thereby creating the

11 perfect environment for Behar’s conduct to go unchecked which resulted in his dream of becoming
RUSS, AUGUST & KABAT

12 showrunner coming true at the expense of Franklin’s career.

13 Behar does not dispute that he intended to interfere with Franklin’s relationship with WB.

14 Rather, he pleads that his statements, no matter their substance, should be protected under the anti-

15 SLAPP statute as made in connection with a matter of public interest and provided during a

16 privileged “investigation,” and, even if not privileged, his wrongful conduct is inconsequential

17 because it was not a substantial factor in WB’s decision to terminate the Franklin relationship.

18 Behar’s arguments fail for a myriad of reasons.

19 First, Behar fails to meet his burden of showing that his conduct falls within the anti-SLAPP

20 statute because his statements to WB were made in connection with an internal, garden-variety

21 employment dispute. That Franklin’s termination resulted in limited media coverage does not turn

22 Behar’s statements into an issue of public interest or change the fact that Franklin has spent his

23 personal life outside of the public eye. This is consistent with the California Supreme Court’s ruling

24 on this issue, which Behar totally ignores.

25 Second, Behar’s statements are not privileged because they were neither truthful nor given in

26 response to a workplace investigation. Not only was WB’s process admittedly not an actual

27 “investigation,” Behar’s conduct was instigated and offered in a manner well beyond that which was

28 requested. Also, the statements were made with malice, as they were motivated by Behar’s admitted

5
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 dislike of Franklin and desire to take Franklin’s job – which he ultimately did.

2 Finally, even if the anti-SLAPP statute applies, Franklin easily satisfies a showing of

3 minimal merit on his claim. Overwhelming evidence shows that Behar went above and beyond to

4 influence the outcome of WB’s “climate survey” by offering

7 No other interviewee did this. Behar’s interference was so extreme that WB

8 did nothing further to ensure his conduct did not compromise its process. Because

9 WB’s survey did not consider evidence, weigh credibility, provide due process or meaningfully

10 consider (unlike an investigation) and because

11 WB did not ,a
RUSS, AUGUST & KABAT

12 question of fact exists as to whether Behar’s conduct permeated the process through others, several

13 of whom . The Motion should therefore be denied.

14 II. STATEMENT OF FACTS

15 A. Franklin’s and WB’s Long Relationship and his Replacement with Behar

16 Franklin is the creator of the long running sitcom Full House and its spinoff, Fuller House.

17 Declaration of Jeff Franklin (“Franklin Decl.”), ¶¶ 3-4. Franklin entered into an agreement with WB

18 for the development and production of Fuller House, for which he would be executive producer and

19 showrunner. Id. ¶¶ 4-5. He then assembled, with WB and Netflix, a team of writers, including

20 Behar. Id. ¶ 4. Fuller House enjoyed success in its initial three seasons and WB and Franklin

21 negotiated an extension agreement. Id. ¶ 6, 8. At the precipice of returning to work on Season 4, WB

22 suddenly cut its ties with Franklin and replaced him with Behar. Id. ¶ 8. Franklin then learned that

23 Behar presented false and inflammatory information about Franklin to WB and encouraged others to

24 do so as well in the hopes of dissuading WB from continuing with Franklin. Id. ¶¶ 7, 10.

25 B. Commencement of This Action and Discovery Order

26 After Franklin commenced this action, Behar filed an anti-SLAPP motion with supporting

27 declarations from himself and WB executive Silisha Platon. On December 5, 2019, the Court

28 permitted the limited depositions of Behar and Platon and production of WB’s “investigation report.”

6
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 Thereafter, the Court permitted the deposition of WB’s Kenzie Levine, who was the only WB

2 employee other than Platon to conduct WB’s “investigation” and the one to interview Behar.
C. Discovery Reveals that WB Conducted a Mere “Climate Survey” into Franklin
3 with Behar’s Intense Involvement in, and Manipulation of, it
4 In her declaration, Platon declared that WB “initiated an investigation into Franklin’s

5 workplace behavior” based on “complaints” and, following such “investigation” concluded that

6 “sufficient evidence” existed to not renew Franklin’s relationship and so she reported such “results of

7 the workplace investigation and [her] findings” to WB executives.” Platon Decl. ¶¶ 3-4, 9, 11.

8 Discovery revealed that WB instead conducted a superficial “climate survey” about

10 and failed to interview Franklin)

11 –all significant aspects of a workplace investigation. Platon Depo.1 87:

RUSS, AUGUST & KABAT

12 12-14, 132:3-12, 201:2-11; Declaration of Amy Oppenheimer (“Oppenheimer Decl.”), ¶¶ 17-19.

13 The “climate survey” allegedly involved just seven women and Behar. Platon Depo. 63:17-

14 19. (At least one additional woman with a positive experience with Franklin was interviewed after

15 the original complainant but before Platon’s disclosed interviews, however, suggesting that WB has

16 hid and ignored interviews favorable to Franklin. See Declaration of ( Decl.”), ¶ 4.)

17 Behar was asked to participate after

18 Platon Depo. at 124:3-23,

19 83:21-84:2, 133:14-134:7. Prior to even being asked to participate, Behar had already

20 Behar Depo.

21 178:4-180:14. Indeed, Behar apparently kept a “little black book” that he showed to others on Fuller

22 House, which contained slanted information he was gathering about Franklin over time. Declaration

23 of John Stamos (“Stamos Decl.”), ¶ 4-5. Behar was also witnessed trying to create division among

24 Franklin and other Fuller House writers prior to WB’s probe. Franklin Decl. ¶ 13.

25 On February 21, 2018, his first day of interview, Behar told WB he is

26 Declaration of Stanton L. Stein

27
1
28 All referenced excerpts to the deposition transcripts of Bryan Behar (“Behar Depo.”), Silisha Platon (“Platon
Depo.”), and McKenzie Levine (“Levine Depo.”) are attached to the Declaration of Stanton L. Stein (“Stein Decl.”)
as Exhibits C-E, respectively. For ease of reference, citations herein are made directly to the relevant transcript.
7
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 Barnal v. Schnitt (2016) 1 Cal.5th 376, 384–85. The court is to accept plaintiff’s evidence as true and

2 does not weigh or resolve factual claims. Id. Indeed, “plaintiff’s cause of action needs to have only

3 minimal merit” to prevail on an anti-SLAPP motion. Cole v. Meyer & Assoc. (2012) 206

4 Cal.App.4th 1095, 1105 (emphasis added); Overstock.com, Inc. v. Gradient Analytics, Inc. (2007)

5 151 Cal. App. 4th 688, 699 (“plaintiff's burden . . . is not high”).
A. Behar Cannot Satisfy the First Prong Because He Has Not Established an Act in
6 Furtherance of His Right to Free Speech
7 Behar argues that his conduct was in furtherance of his right to free speech because it was
8 made “in connection with an issue of public interest.” Cal Civ. Code § 425.16(e)(3) and (4) 3; Mtn.
9 at III(A)(1). His argument fails under established case law, however, because Franklin’s alleged
10 conduct was not an “issue of public interest.” Behar therefore fails to carry his burden.
11 The California Supreme Court’s recent ruling in Wilson v. Cable News Network, Inc. and
RUSS, AUGUST & KABAT

12 related caselaw is instructive regarding the application of the “public interest” standard. (2019) 7
13 Cal. 5th 871 (“Wilson”). Wilson concerned a news anchor who was terminated from CNN over
14 concerns that he plagiarized a story on the retirement of a sheriff. Wilson sued CNN for, among
15 other things, defaming him by telling others he had plagiarized a story. CNN filed an anti-SLAPP
16 motion alleging that “statements as to whether Wilson met CNN’s editorial standards in reporting on
17 a matter of public interest furthered CNN’s exercise of free speech rights.” Id. at 882. The Court
18 rejected CNN’s arguments, finding that, although the sheriff’s retirement concerned the public
19 interest, Wilson’s claim rested not on CNN’s statements about the retirement but on statements about
20 the reason for Wilson’s termination – i.e. a garden variety private employment issue. Id. at 901.
21 The Wilson reasoning applies here. Though Behar tries to manufacture a public interest by
22 arguing his statements have some tangential relationship to the #metoo movement that he has drawn
23 after the fact, Franklin’s claim does not rest on statements that Behar made about the #metoo
24 movement—it rests on statements Behar made about Franklin’s conduct in his personal and work
25 life. See id.; Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736 (“the focus of the speaker’s
26
3
Behar mischaracterizes the application of the statute to the allegations at issue, broadly stating that the “activity”
27 falls under both categories, though “only one is necessary.” Mtn. at 7:11-15. Not true. Each particular allegation
against Behar must fall within a category under 425.16(e), and to the extent that a particular act does not fall within
28 a specific category, it cannot be grouped with other acts as a general “activity” that falls within that category. Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820-21. Behar has not clearly stated which actions fall within
which category of protected activity under 425.16(e), thereby failing to meet his burden.
10
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 conduct must be the public interest, not a private controversy”) (“Hailstone”); Dual Diagnosis Treat.

2 Ctr., Inc. v. Buschel (2016) 6 Cal.App.5th 1098, 212 Cal.Rptr.3d 75 (though the broader topic of

3 rehabilitation may be of an issue of public interest, a single facility is not—“[a]lmost any statement[.

4 . .] can be construed to relate to some broader topic.”). The statements at issue include generalized

5 comments Franklin allegedly made in a private setting about his own life, experiences, and opinions,

6 none of which targeted individuals on the writing staff or involved the sexual harassment type claims

7 at the core of the #metoo movement. Franklin Decl. ¶ 10. Neither party alleges the statements

8 include reference to the #metoo movement. The private nature of the situation is confirmed by the

9 fact that WB did not issue a press release upon its decision to terminate Franklin. Stein Decl. ¶ 8.

10 Accordingly, this is merely a “garden-variety employment dispute” concerning a nonpublic

11 figure – i.e. at best a “private controversy.” Wilson at 901; Hailstone at 76. Courts regularly hold that
RUSS, AUGUST & KABAT

12 such employment disputes do not raise a matter of public interest. See e.g., Baugh v. Dep’t of

13 Forestry & Fire Prot. (2016) 246 Cal.App.4th 328, 333 (DFFP’s decision to bar employee from its

14 facilities due to complaints of harassment and related letter to his new employer did not raise public

15 interest); Rivero v. Am. Fed'n of State, Cty. (2003) 105 Cal.App.4th 913, 924 (complaints of

16 workplace conduct not matter of public interest even if complaints implicate public policy). The fact

17 that the #metoo movement has rightfully attracted attention does not mean that any allegation about

18 any entertainment based employee falls within the “public interest” for purposes of the anti-SLAPP

19 standard. See Rivero, 105 Cal.App.4th at 924.

20 Behar attempts to overcome this obvious roadblock by citing to cases raising limited

21 circumstances where the anti-SLAPP statute may apply to private communications, but those cases

22 are distinguishable insofar as they each contain a direct connection to communications on a public

23 issue the likes of which is simply not present here. See Mtn. at 7-9; Averill v. Sup. Ct. (1996) 42 Cal.

24 App.4th 1170 (statements about charitable org.’s plan to locate a women’s shelter in a specific

25 neighborhood implicated the neighborhood and public); FilmOne Inc. v. DoubrleVerify Inc. (2019) 7

26 Cal.5th 133 (public interest in company’s reports of adult content and infringement by website

27 because website was notorious for infringement and its content was subject of extensive press reports

28 and litigation); Wilbanks v. Wolk (2004) 121 Cal.App.4th 883 (public interest in matters that affect

11
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 large numbers of consumers, specifically sale of life insurance policies); Terry v. Davis Cmt. Church

2 (2005) 131 Cal.App.4th 1534 (statements about minister’s sexual relationship with minor involved

3 societal interest in protecting children from predators). The false allegations made by a small number

4 of people regarding Franklin’s conduct were not directed at a specific person and were made by those

5 with a personal grudge seeking to exploit the #meetoo movement for their own purposes, are too

6 weak to create a tenable connection between Behar’s speech and the broader #metoo movement.

7 Finally, that Franklin’s termination was subsequently covered by the press does not establish

8 a “public interest” or indicate that Franklin is somehow a public figure. Behar presents no evidence

9 to support that Franklin is a public figure independent of the limited news coverage related to the

10 controversy underlying this lawsuit, which is insufficient to create a matter of public interest. See

11 Bernstein v. LaBeouf (2019) 43 Cal.App.5th 15, 24 (“a private dispute does not become a matter of
RUSS, AUGUST & KABAT

12 public interest simply because it was widely communicated to the public.”) see also Section

13 III.B.1.c., infra. Moreover, as Wilson emphasized, a defendant cannot “by [its] own conduct, create

14 [its] own defense by making the claimant a public figure.” Wilson at 902; see also Hailstone at 736.

15 The limited coverage of Franklin’s termination was precipitated by false, uncorroborated allegations

16 fed to Variety by Behar and/or individuals under his influence in their earlier failed attempted to trash

17 Franklin in the press. Franklin Decl. ¶ 7. Given that WB did not issue a press release about Franklin’s

18 termination, there would be no press event if Variety was not “tipped off” on the decision by its same

19 sources and pressured to publish the information it had earlier received as an “Exclusive” article at

20 the risk of losing it, which then triggered other coverage on the issue. Id.; O’Connor Decl. Ex. A.

21 B. Franklin Exceeds the “Minimal Merit” Test on His Interference Claim

22 Even if the Court were to deem that Behar has established an act in furtherance of his right to

23 free speech, the Motion still fails because Franklin exceeds the “minimal merit” test. To prevail on

24 his interference claim, Franklin must show that: (1) he had an ongoing business relationship with WB

25 of which Behar had knowledge; (2) Behar induced WB to terminate its relationship with Franklin by

26 engaging in independent wrongful acts with the intent to disrupt the relationship; and (3) Behar’s

27 conduct was a substantial factor in WB’s decision to terminate its relationship with Franklin. CACI

28 2202. Behar unsuccessfully argues that Franklin cannot establish prongs (2) and (3).

12
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1. Behar Induced WB to Terminate its Business Relationship With
1 Franklin by Engaging in Independent Wrongful Acts
2 Behar’s statements and other virulent conduct described herein constitute torts of defamation

3 and false light. Civ. Code §§ 45, 46; see Price v. Operating Eng’rs Local Union No. 3 (2011) 195

4 Cal.App.4th 962, 970 (false light overlaps with defamation except plaintiff need not establish the

5 statements were false). Behar does not deny making the statements but argues instead that: (a) his

6 statements were privileged under Civil Code § 47(c); (b) his statements were not made with malice to

7 overcome privilege under 47(c); (c) Franklin is a public figure, so he must show actual malice and he

8 cannot do so; and (d) Behar was not the substantial factor in the end of the Franklin/WB

9 relationship.4 Each of these arguments fails.

10 a. Behar’s Statements Are Not Privileged under Civil Code 47(c)

11 Civil Code section 47(c) protects a “narrow range of private interests” between closely
RUSS, AUGUST & KABAT

12 related parties—i.e. “interested persons”—for truthful information provided in response to a request

13 for information. Behar fails to meet his burden to show his statements are privileged.

14 First, the extent of Behar’s involvement in WB’s climate survey was not limited to responses

15 to requests for information to even arguably qualify under § 47(c)—this was just what he wanted the

16 Court to believe before discovery revealed otherwise. Behar not only

17 , but he did so by initiating

18 . BEHAR000008-17; Levine Depo. 38:16-41:16,

19 42:16-19; 72:2-8.

20 See id. For example, in one tangent, in response to

21 . BEHAR000016;

22 Levine Depo. 64:13-66:1 .

23 Second, Behar relies entirely on case law concerning individuals’ personal reports and

24

25 4
Although not in dispute, Franklin easily establishes a publication about him that is provably false or places him in a
negative light: First, Behar’s statements were about Franklin and communicated to WB and others at Fuller House
26 prior to and during WB’s climate survey. Smith v. Maldonado, (1999) 72 Cal.App.4th 637, 645 (it is enough to
communicate to a single other person); Section II, supra. The statements are also provably false because they are of
27 statements purportedly made and actions purportedly taken by Franklin and because they are false. Franklin Decl. ¶
10; Stamos Decl. ¶ 7; Shoemaker Decl. ¶¶ 3-7; Decl. ¶¶ 2-5. At the least, they place Franklin in a negative
28 light. Id. Special damages are also met because Franklin lost his position on Fuller House, his reputation was
tarnished, and he has effectively been ousted from working in the industry. Franklin Decl.¶ 15-16; Civ. Code §§
45a, 48a.
13
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 complaints to employers of their own experiences of sexual harassment, which is not at issue

2 here.5 See Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 361 (personal claim of sexual

3 harassment); Comstock v. Amber (2012) 212 Cal.App. 4th 931, 934-36 (same). Here, Behar

4 none of it was

5 directed at Behar. See BEHAR000014-18. He presents no law to suggests that broad statements

6 about someone else’s complaint of a third party creates a privilege under the law.6

7 b. Behar Acted with Malice

8 Even if Behar can make a showing of privilege, Franklin satisfies his shifted burden because

9 the evidence overwhelmingly shows Behar acted with malice insofar as he (i) did not reasonably

10 believe the information was true, or (ii) “was motivated by hatred or ill will toward [Franklin].”

11 Hailstone at 740; Brown v. Kelly Broad. Co. (1989) 48 Cal.3d 711, 723, 771, fn. 7. (“if malice is
RUSS, AUGUST & KABAT

12 shown, the privilege . . . never arises in the first instance.”). Significantly, much of what Behar told

13 WB was . See BEHAR000014-17. This alone overcomes privilege. Noel

14 v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1375 (“if a current or former employer’s

15 publication was based on mere rumor, the privilege is lost because he or she lacked reasonable

16 grounds for believing the truth of the publication”). Behar’s interview and testimony shows he was

17 constantly

18

19 He did the same with WB. Behar also acted without knowing if there was truth to the

20 rumors he was peddling:

21 BEHAR000015-16

22

23

24 see Franklin Decl. ¶ 10.

25

26 5
In a footnote, Behar raises the 2019 amendment section §47(c) that addresses complaints of sexual harassment as
support for his argument that his statements to WB were privileged. That argument is inapposite as Behar’s claims
27 about Franklin did not fall within the ambit of sexual harassment, and therefore do not fall within the new provision.
6
The content of the Jane Doe interviews is also far too attenuated to fall under the privilege. The reports concerned
28 general statements that Franklin purportedly made that were not directed at a particular individual or were subjective
opinions or observations regarding the way selected individuals felt about Franklin. Platon Decl. ¶ 8. None of the
alleged statements were by individuals who personally suffered any sexual or other harassment by Franklin.
14
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 Even if Behar arguably believed his statements were true, he still acted with malice because

2 he was motivated by ill-will toward Franklin. This is evidenced by Behar (1) telling WB he is

4 (BEHAR14-17); (2) taking secret photos at Franklin’s work and home and keeping a

5 little black book with slanted information about Franklin and showing others (Stamos Decl. ¶ 4-5;

6 Behar Depo 178:4-180:14); (3) invading Franklin’s privacy by

7 (BEHAR09-11, 16; Behar Depo.

8 69:15-20; 70:11-14); (4) offering WB

9 (BEHAR10-11); and (5) gloating upon replacing Franklin (Stamos Decl.

10 ¶ 6.). His self-serving statement that he was “reluctant” to participate in WB’s survey or cared about

11 Franklin’s job is thus unavailing. At a bare minimum, this raises a question of fact as to malice.
RUSS, AUGUST & KABAT

12 Cruey, 64 Cal.App.4th at 370 (whether workplace complaint made maliciously was question of fact).
c. Franklin is Not a Public Figure, And Even if He is, Behar’s
13 Communications Were Carried Out with Actual Malice
14 Behar denies he made statements about Franklin directly to Variety but where, as here, there

15 is evidence he spread false information with the intent it be disseminated, he is nevertheless subject

16 to defamation. See Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71, 75; Restatement

17 (Second) of Torts § 577 (1977). The information reported by Variety was provided by Fuller House

18 employees who disliked Franklin. Franklin Decl. ¶ 7. Behar was the center of such anti-Franklin

19 discussions. Accordingly, there is at least a question of fact as to whether, and to what extent,

20 Behar’s statements were transmitted to the press. Balla v. Hall (2021) 59 Cal.App.5th 652, 683.

21 Behar’s attempt to label Franklin as a “public figure” for purposes of requiring that he meet

22 the heightened showing of actual malice is unavailing insofar as his entire argument rests on the

23 conclusory—and false—notion that Franklin is a public figure simply due to the “global reach” of

24 Full House and post-termination press.7 There is no evidence—let alone “clear evidence”—that

25 Franklin has obtained “general fame or notoriety in the community, and pervasive involvement in the

26 affairs of society” to qualify as a public figure. Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323,

27
7
28 Behar misrepresents Manzari v. Associate Newspapers Ltd. (2016) 830 F.3d 881, 888. There, the court lists
“artists, athletes, business people[ . . . ][and] anyone who is famous or infamous” as examples of people who could
be considered public figures if other requirements were met. It did not hold that those positions were determinative.
15
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 345, 352. Behar offers no evidence that Franklin himself is notable to the public at all or was the

2 subject of media prior to his ouster and this action. See Section III.a, supra. Indeed, Franklin has

3 spent the entirety of his career out of the public eye. Franklin Decl. ¶ 5. The overall success of Full

4 House as a show cannot impute public figure status on a behind-the-scenes individual especially

5 where, as here, the conduct involves private statements concerning his own life and thoughts. That

6 some portion of the public may find this interesting does not thrust Franklin into the category of

7 “public figure.” Time, Inc. v. Firestone (1976) 424 U.S. 448, 454-55 (personal issues are not the type

8 of “public controversy” that renders individuals “public figures”).8

9 Even if the Court considers Franklin a public figure, actual malice is easily established

10 insofar as Behar acted with knowledge or reckless disregard as to the falsity of the information he

11 shared. See Sanders v. Walsh (2013) 219 Cal. App. 4th 855, 873. Behar shared
RUSS, AUGUST & KABAT

12 and was motivated by his

13 dislike towards Franklin and what he stood to gain—and did gain—from Franklin’s termination. Id.

14 at 874 (“plaintiff may rely on inferences drawn from circumstantial evidence to show actual malice. .

15 . . [A]nger and hostility toward the plaintiff, reliance upon sources known to be unreliable or . . .

16 biased against the plaintiff” . . . may . . . indicate that [defendant] had serious doubts regarding the

17 truth of his publication.”); Khawar v. Globe Intern., Inc. (1998) 19 Cal.4th 254, 268 (“one who

18 republishes a defamatory statement is deemed thereby to have adopted it and so may be held liable . .

19 . for resulting injury to the reputation of the defamation victim.”); see Section III.C.1(a).
2. Behar’s Tortious Conduct was a Substantial Factor in WB’s Decision to
20 Terminate its Relationship with Franklin
21 A “substantial factor” is one “that a reasonable person would consider to have contributed to

22 the harm. . . . [It] need not be the only factor.” Jenni Rivera Enters., LLC v. Latin World Ent’nt

23

24 8
While Behar does not specify whether he is attempting to qualify Franklin as an all purpose or limited purpose public
figure, Franklin assumes Behar contends Franklin is an all purpose public figure because Behar makes no attempt to tie
25 the basis of Franklin’s alleged celebrity to the defamatory conduct as required for limited purpose figure analysis. See
Grenier v. Taylor (2015) 234 Cal.App.4th 471, 484 (limited purpose public figure must place himself in the spotlight
26 regarding a public controversy and “the alleged defamation must be germane [thereto]”). Behar has not alleged or
provided evidence that Franklin is known for his intimate life, inappropriate conduct with writers or harassment in the
27 TV industry. Analogously, a NY court recently found that a prominent music producer was similarly not a public
figure because, although he sought publicity for his music and artists and attracted media attention for same, that was
28 not the subject of the defamation action he faced – which concerned claims about sexual assault—because he “never
injected himself into the public debate about sexual assault or abuse of artists in the entertainment industry.” Decision
and Order at p. 8, Gottwald v. Sebert et al., Case No. 2020-01908, April 21, 2021, NYSCEF Doc. No. 61.
16
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1

5 Id.

6 Expert testimony confirms there is a significant difference between a climate survey and an

7 investigation. Oppenheimer Decl. ¶¶ 17-18. The former is intended for diagnostic purposes, is not

8 targeted at a specific person, does not weigh credibility, and is not intended for making findings or

9 taking adverse employment action. Id. The latter is precipitated by a complaint, targeted at its

10 subject, weighs credibility and evidence, affords due process, and is intended for making adverse

11 employment action. Id. WB should have conducted a workplace investigation upon receipt of the
RUSS, AUGUST & KABAT

12 alleged complaint—as the Motion argued it did—but it inappropriately conducted an informal survey

13 and relied on it to terminate Franklin. Id. ¶¶ 17-25. This is significant for multiple reasons:

14 First, Platon’s testimony contradicts and therefore nullifies her supporting declaration on the

15 key point underlying the Motion: the circumstances underlying WB’s decision. Her contradictory

16 testimony also signals Behar’s pre-discovery attempt at a cover up. Without the ability to rely on the

17 misstatements in the declaration, Behar has no credible basis to claim that his conduct was not a

18 substantial factor in WB’s decision.

19 Second, that WB did not conduct a proper investigation created the perfect opportunity for

20 Behar’s contributions to permeate the process and go unchecked. Despite WB

21 did nothing to verify that he did not compromise the WB process:

22 Levine Depo.

23 91:16-22, 92:1-93:3, 97:13-17, 122:3-11. Rather, it took Behar’s word for it and made the

24 termination recommendation the next day. Platon Decl. ¶¶ 6, 11. In so doing, WB ignored the

25 evidence of potential bias, which it should have explored if it wanted to ensure the process was not

26 compromised. See Oppenheimer Decl. ¶ 19. Platon therefore does not actually know how and to

27 what extent Behar’s conduct permeated the others’ testimony so as to opine on the issue. Moreover,

28 Platon’s declaration and testimony, and WB’s file omit at least one positive employee account,

18
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT
 1 PROOF OF SERVICE

3 STATE OF CALIFORNIA

4 COUNTY OF LOS ANGELES

5
I am employed in the County of Los Angeles, State of California. I am over the age of 18
6 and not a party to the within action; my business address is: 12424 Wilshire Boulevard, 12th Floor,
Los Angeles, California 90025.
7
On June 2, 2021, I caused to be served the foregoing document described as
8 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE
COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 on
9 interested parties in this action:
10 Michael J. O’Connor (MJO'[email protected]) Attorneys for Defendant Bryan Behar
Sarah L. Cronin ([email protected])
11
Cary L. Finkelstein ([email protected])
RUSS, AUGUST & KABAT

12 VENABLE, LLP
2049 Century Park East
13 Suite 2300
Los Angeles, California 90067
14

15
BY ELECTRONIC MAIL: As follows: Pursuant to Los Angeles County Superior Court
16 General Order re Mandatory Electronic Filing for Civil and California Rule of Court 2.251(c)(3),
and agreement between the parties, I caused the above-referenced document(s) to be sent
17 electronically via the Court’s approved FirstLegal e-filing portal from [email protected] to the
interested parties in this action whose names and email addresses are listed above.
18

19 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on June 2, 2021 at Los Angeles, California
20

21 /s/ Melissa Yearta

Melissa Yearta
22

23

24

25

26

27

28

20
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE COMPLAINT