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[PARTY INFO]

Attorneys for Plaintiff/Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT , an individual, CASE NO. BC Plaintiff,
[Assigned for all purposes to the Hon. ____, Dept.. ___]

12 13 vs. 14 ; and DOES 1 through 40, Inclusive, 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 ________________________________________________________________ COMPLAINT FILED: TRIAL DATE: DISCOVERY CUTOFF: Statutory MOTION CUTOFF: Statutory

MEMORANDUM OF POINTS AND AUTHORITIES OF PLAINTIFF IN OPPOSITION TO THE SPECIAL MOTION TO STRIKE OF DEFENDANTS; DECLARATIONS OF [name] DATE: TIME: DEPT:

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TABLE OF CONTENTS 27 Page 28 ________________________________________________________________

1 TABLE OF AUTHORITIES.............................................................................................1 2 I. 3 II. 4 III. 5 6 IV. 7 8 9 V. 10 11 12 1. 13 14 15 3. 16 17 18 B. 19 20 21 VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 22 23 24 25 26 27 28 ________________________________________________________________ MEMORANDUM OF POINTS AND AUTHORITIES C. Plaintiffs Claims Are Not Barred By the Communications Decency Act Because Defendants Are Not Immunized From Liability Under . . . . . . 14 Plaintiffs Claims Are Based on Actionable False Statements of Fact . . 14 4. Plaintiff Will Prevail On His Third Cause Of Action For Intentional Infliction of Emotional Distress . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Plaintiff Will Prevail On His Fourth Cause Of Action For Negligent Infliction of Emotional Distress . . . . . . . . . . . . . . . 13 2. Plaintiff Will Prevail On His First Cause Of Action For Defamation Plaintiff Will Prevail On His Invasion of Privacy Claim (False Light) THE EVIDENCE SHOWS THAT PLAINTIFF WILL PREVAIL ON HIS CLAIMS AGAINST THE DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Plaintiff Can Establish A Probability Of Prevailing On His Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE DEFENDANTS CANNOT MEET THEIR BURDEN OF ESTABLISHING THAT THE CLAIM ARISES FROM THEIR RIGHT TO FREE SPEECH ACTIVITY SUBJECT TO THE ANTI-SLAPP STATUTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PLAINTIFFS COMPLAINT ARISES OUT OF THE INVASION OF PLAINTIFFS PRIVACY AND DEFAMATORY ACTS RESULTING IN THE DESTRUCTION OF PLAINTIFFS REPUTATION . . . . . . . . . . . . . . . . . . FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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II.

INTRODUCTION This case involves the unlawful invasion of Plaintiff ("Plaintiff") privacy and the

systematic and calculated destruction of Plaintiffs personal and professional reputation. In a transparent attempt to avoid responsibility for this harm, Defendants Defendants Defendants") , respond to Plaintiffs well-pled and factually specific Complaint on meritless grounds and disjointed arguments which are unsupportable under California law. In their motion to strike the complaint of Plaintiff pursuant to C.C.P. 425.16 ("the

anti-SLAPP statute"), the Defendants have spewed forth misleading, irrelevant and totally unsupported arguments. These arguments are based on the faulty premise that the participation in the unlawful violation of Plaintiff's right to privacy and libelous acts are in furtherance of their right to free speech, and that (2) the complaint arises from non-actionable statements of opinion made by the Defendants. As set forth herein, these arguments cannot withstand analysis. This is because the causes of action arises from the Defendants' unlawful publication of Defamatory Statements. The purpose of such conduct was to The sparse authority cited by the Defendants is inapplicable to the circumstances here and does not support the motion. This motion must fail for at least the following reasons: The conduct alleged in the complaint does not fall within the parameters of

C.C.P. 425.16. The Defendants unlawful conduct.1 Defendants are not entitled to immunity under Section ____. Plaintiff has established the probability of prevailing in this action.

In sum, CCP 425.16 is a harsh and severe remedy which must be carefully applied to actions infringing a constitutional right. Where, as here, the requirements of statute are not met, it must be denied.

If any constitutional rights were involved here which is not the case those rights were Plaintiff's rights.

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II.

FACTUAL BACKGROUND On ________ Plaintiff filed this complaint which contains causes of action for

Defamation, Intentional Infliction of Emotional Distress (First Cause of Action), Defamation, Negligent Infliction of Emotional Distress (Second Case of Action), Invasion of Privacy (Third Cause of Action)and three other causes of action against Sportsblogs Defendants. The essence of Plaintiffs claims against the Defendants is that the Defendants edited, republished and originated defamatory statements of and concerning Plaintiff and have damaged him in the process. PLAINTIFFS COMPLAINT ARISES OUT OF THE INVASION OF PLAINTIFFS PRIVACY AND DEFAMATORY ACTS RESULTING IN THE DESTRUCTION OF PLAINTIFFS REPUTATION

THE DEFENDANTS CANNOT MEET THEIR BURDEN OF ESTABLISHING THAT THE CLAIM ARISES FROM THEIR RIGHT TO FREE SPEECH ACTIVITY SUBJECT TO THE ANTI-SLAPP STATUTE A defendant bringing a SLAPP Motion bears the initial burden of establishing that the complaint alleges acts in furtherance of defendants right of petition or free speech in connection with public issue. Kajima Engineering & Const. Inc. V. City of Los Angeles (2002) 95 Cal. App. 4th 921, 934; see also Paul v. Friedman (2002) 95. Cal. App. 4th 853,867. If this burden cannot be met, the motion to strike must be denied without consideration of whether the plaintiff can establish a prima facie case. Paul, supra, 95 Cal. App. 4th at 867; Kajima Eng., supra, 95 Cal. App. 4th at 934. Here, the Defendants cannot meet this threshold burden because Plaintiff does not allege conduct protected by the Defendants free speech or petition rights. Where the complaint alleges conduct distinct from the protected activities, the defendant ________________________________________________________________

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cannot meet the prima facie burden required under CCP 425.16. Kajima, supra, 95 Cal.App. 4th at 934. The statute defines an act in furtherance of a persons right of petition or free speech..in connection with a public issue to include four types of conduct. C.C.P. 425.16 (e). The Defendants argue that the conduct alleged in the Complaint falls within the third and fourth types of conduct defined in the statute: The Defendants, however, cannot demonstrate that any of these elements have been met. (1) Freedom of Speech and Det_______. In fact, hurts freedom of speech.

DEFENDANTS ACTS WERE NOT IN FURTHERANCE OF THEIR RIGHT OF FREE SPEECH If the defendant reprints or circulates a libelous writing, this has the same effect as an original publication. The same is true where the defendant repeats a slanderous charge, even though the defendant states the source of it, or indicates that he or she is merely repeating a rumor. See Gilman v. McClatchy (1896)111 c. 606, 612, 44 P. 241; Ringler Associates v. Marlyand Cas. Co (2000) 80 C.A.4th 1165, 1179, 96 C.R.2d 136); Shively v. Bozanich (2003) 31 C.4th 1230, 1243, 7 C.R.3d 576, 80 P.3d 676. Defendants sugarcoat their misdeeds by calling the publication of the defamatory material "references" and ""excerpts." To conclude, Defendants' acts were not in furtherance of their right to free speech. A. The Complaint Does Not Arise From A Statement Made By The Defendants

VI.

THE EVIDENCE SHOWS THAT PLAINTIFF WILL PREVAIL ON HIS CLAIMS

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AGAINST THE SPORTSBLOGS DEFENDANTS A. Plaintiff Can Establish A Probability Of Prevailing On His Claims

Because the Defendants have failed to show that the complaint arose out of protected activities, Plaintiff need not show that there is a probability of prevailing on his claims. Yet, he can do so. In order to meet his burden of establishing a probability of prevailing on its claims in connection with a SLAPP motion, a plaintiff need not prove the specified claim to the trial court. Briggs v. Eden Council for Hope & Opportunity, (1999) 19 Cal.4th 1106, 1122-23. Rather, the SLAPP motion operates "like a demurrer or motion for summary judgment in reverse." Id. The plaintiff need only demonstrate a legally sufficient claim supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted is credited. Wilson v. Parker Covert & Chidester (2002) 28 Cal.4th 811, 821. Moreover, the court does not weigh the evidence or make credibility determinations. Kashian v. Harriman, (2002) 8 Cal.App,4th 892. Indeed, the evidence of Defendant is considered only to determine if it defeats plaintiff's showing as a matter of law. Id.

1.

Plaintiff Will Prevail On His First Cause Of Action For Intentional Of Emotional Distress

To allege a claim for intentional infliction of emotional distress, a plaintiff must allege: (1) the defendant engaged in outrageous conduct; (2) defendant intended to cause plaintiff emotional distress; (3) the plaintiff suffered severe emotional distress; and (4) the outrageous conduct causes the emotional distress sustained by plaintiff. Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394. Here, the invasion of the operating records of Plaintiff and his patients which has led to Plaintiff being labeled a thief and according to ____ the Defendants in this action, banished from his profession a violation of HIPPA which could expose ________________________________________________________________

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Sportsblogs Defendants to sanctions solely to gain an unfair advantage over Plaintiff is so beyond the bonds of human decency as to qualify as outrageous conduct. Moreover, because Defendants intended to use this information against Plaintiff either in the grievance investigation or the DFEH action, they intended that Plaintiff to learn of their perfidy and so to inflict great emotional distress on Plaintiff. Indeed, _____ "smelled blood". Finally the outrageous conduct caused the emotional distress. _____ Decl., __. B. Plaintiff Will Prevail On His Second Cause Of Action For Negligent Infliction Of Emotional Distress

C.

Plaintiff Will Prevail On His Invasion of Privacy Claim

The elements of an invasion of privacy claim are (a) a reasonable expectation of privacy; (b) an intentional intrusion into that private place; (c) which would be highly offensive to a reasonable person; (d) harm to the plaintiff; and (e) caused by the invasion of privacy. Schulman v. Group W Productions, Inc. (1988) 18 Cal.4th 200, 230. D. Defendants Are Not Immunized From Liability Because The Defendants assert that cannot be sued individually because as a union representative, he cannot be sued for acts arising out of his conduct as a union representative. Here, by contrast, Plaintiff is not a union member and he is not suing for damages arising out of the violation of the labor management agreement. Instead, Plaintiff is suing for a separate and distinct tort -- the wholesale invasion of his and his patients privacy.

Plaintiffs Claims Are Based on Actionable False Statements of Fact . . . . . . . . . . . ________________________________________________________________

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Defendants Uttered Provably False Statements of Fact The Complaint alleges that each of the statements made by Defendant Ortiz are untrue and provably false. (Complaint, para # ____) This factual argument, however, is inappropriate for a demurrer.2 In addition, Defendants ignore that on the face of the publication, Defendant Ortiz uttered provably false assertions of fact. By way of example, Defendant repeatedly utilized words, described behavior or referred to wrongful acts attributable to Plaintiff which have purportedly taken place and infers that he has personal knowledge to confirm this: Let me explain this to you because it really pissses me off what Plaintiff has done. ...he is a thief. Ibarra was charging Jackson $65,000 to go to to Big Bear. Where did that extra money go that Ibarra was charging? He was being very disrespectful and taking advantage of Rampage. Rampage feels betrayed that he was taken advantage of and I couldnt agree with him more. ...hopefully, something like this doesnt happen again. (Complaint, Exhibit A; emphasis added) A.Even If The Utterances Made By Defendant Could be Construed As An Opinion - Which They Are Not Opinions May Be Understood As A Factual Assertion Though Couched As An Opinion. Assuming arguendo that the utterances made by Defendants could be construed as an opinion -- which they are not -- opinions may be understood as a factual assertion though couched as an opinion. In Milkovich v. Lorain Journal Co. (1990) 497 U.S. [111 L.Ed.2d 1, 110 S.Ct. 2695], the Supreme Court reexamined the law of defamation within the context of the First Amendment. The court rejected what it called "the creation of an artificial dichotomy between 'opinion' and fact" and the notion that any argument that a separate opinion privilege existed. Id. at 18. Instead, the court made clear that a false

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assertion of fact could be libelous even though couched in terms of opinion.3 Id. at 19 Indeed, the notion that a statement may be understood as a factual assertion though phrased as an opinion has long been recognized in California. See Okun v. Superior Court, supra, 29 Cal.3d at p. 450; Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 682.) In their demurrer, Defendants cite cases to support their argument that the statements at issue are protected as opinion. Yet, the cases cited by Defendant predate Milkovich.

VII. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendants Motion to Strike in its entirety.

DATED: _______

[FIRM NAME/PLAINTIFF/DEFENDANT]

By:_______________________________ [PLAINTIFF/DEFENDANT Attorneys for Plaintiff/Defendant [NAME]

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DECLARATION OF [INSERT NAME OF PLAINTIFF/DEFENDANT] I, ______declare: 1. I am the Plaintiff in the lawsuit [name of lawsuit] Case No. _______. I submit

this Declaration in support of Plaintiffs opposition to defendants motion to strike under California Code of Civil Procedure 425.16. This Declaration is based upon my personal knowledge and, where noted, on information and belief following a review of relevant business records or independent investigation, or both, as the case may be regarding the matters set forth below. The facts set forth below are of my own personal knowledge and if called as a witness, I could and would competently testify thereto. 2. I brought this lawsuit on ______because on or about________, Defendant [insert all facts] 3. As a result of Defendants unlawful conduct, I have been tremendously

damaged, both personally and professionally.

Executed this _____ day of ___, ____ at Los Angeles County, California. ________________________________ [NAME]

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