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DEFENDANTS ANTI-SLAPP MOTION

Lincoln Bandlow (SBN 170449)
Emily Birdwhistell (SBN 248602)
LATHROP & GAGE LLP
1888 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: 310-789-4600
Facsimile: 310-789-4601

Attorneys for Defendants
Shannah Laumeister and
Magic Film Productions, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES - WEST DISTRICT
BERT STERN, an individual; TRISTA
WRIGHT, an individual, as GUARDIAN
AD LITEM on behalf of MIRANDA
WRIGHT and GEORGIA WRIGHT,
Plaintiffs,
vs.
SHANNAH LAUMEISTER, an individual;
GREGORY MCCLATCHY, and
individual; GREGORY MCCLATCHY
FILM, INC., doing business as MOTOR
ENTERTAINMENT, an unknown entity;
MAGIC FILM PRODUCTIONS, INC., a
California corporation; SLM
PRODUCTIONS, LLC, a California
limited liability company; and DOES 1
through 10, inclusive,
Defendants.
CASE NO. SC 122943

DEFENDANTS SPECIAL MOTION TO
STRIKE PLAINTIFFS COMPLAINT
PURSUANT TO CCP 425.16 [ANTI-SLAPP
MOTION]; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT
THEREOF


Assigned to Hon. Allan J . Goodman
Dept: P
Action Filed: August 8, 2014

Hearing Date: April 15, 2015
Hearing Time: 8:30 a.m.
Reservation ID Number: 141013028738





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- 2 -
DEFENDANTS ANTI-SLAPP MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on April 15, 2015, at 8:30 a.m., or as soon thereafter as
counsel may be heard, in Courtroom P of the above-entitled Court, the Honorable Allan J .
Goodman presiding, located at 725 Main Street, Santa Monica, California 90401, defendants
Shannah Laumeister (Laumeister) and Magic Film Productions, Inc. (collectively
Defendants) will and hereby do move the Court under Californias anti-SLAPP statute, Code of
Civil Procedure 425.16 (Section 425.16) for an order striking all the causes of action in the
Complaint filed by plaintiffs Bret Stern and Trista Wright, guardian ad litem for Miranda Wright
and Georgia Wright (Plaintiffs).
These causes of action are aimed at the Defendants speech in connection with issues of
public interest and thus fall within the scope of Section 425.16(e)(4). As such, the burden shifts
to Plaintiffs to establish, with competent and admissible evidence, a probability that they will
prevail on those causes of action. Section 425.16(b)(1). Plaintiffs cannot satisfy their burden for
the following reasons:
(1) All of the causes of action are barred because the activity that forms the basis of
the causes of action are fully protected under the First and Fourteenth Amendments to the United
States Constitution and under Article I, Section 2 of the California Constitution;
(2) All of the causes of action are barred because Plaintiffs consented to the activity
that forms the basis of the causes of action.
(3) The first cause of action fails because there was no reasonable expectation of
privacy and no breach of societal norms necessary to make out a cause of action for invasion of
privacy.
(4) The second cause of action for unauthorized commercial use of name and likeness
fails because there was no commercial use and use of Plaintiffs images and names was not linked
to any commercial purpose, and the cause of action otherwise fails as a matter of law.
(5) The third and fourth causes of action for fraudulent misrepresentation and
negligent misrepresentation, respectively, fail to state a claim.
(6) The fifth and sixth causes of action for intentional infliction of emotional distress
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- 3 -
DEFENDANTS ANTI-SLAPP MOTION

and negligent infliction of emotional distress fail to state a claim.
(7) The first and second causes of action are barred by the applicable statute of
limitations.
The foregoing grounds are addressed in detail in the attached Memorandum of Points and
Authorities, which is incorporated herein by reference. This Motion is based on this Notice, the
attached Memorandum of Points and Authorities, the concurrently-filed Declarations of Shannah
Laumeister, Takouhy Wise, Etheleen Staley, and Lincoln Bandlow and their attached exhibits, all
papers, pleadings, records and files in this case, and on such other evidence and/or argument as
may be presented to the Court on the hearing on this Motion.
Defendants respectfully request that the Court strike all of Plaintiffs causes of action with
prejudice and without leave to amend, retaining jurisdiction over this matter solely for the
purpose of hearing a motion for attorneys fees and costs by Defendants after prevailing on this
present Motion.


Dated: October 30, 2014

LATHROP & GAGE LLP
By:
Lincoln Bandlow
Emily Birdwhistell
Attorneys for Defendants
Shannah Laumeister and
Magic Film Productions, Inc.

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TABLE OF CONTENTS

Page



- i -
DEFENDANTS ANTI-SLAPP MOTION

I. INTRODUCTION .............................................................................................................. 1
II. STATEMENT OF FACTS ................................................................................................. 2
A. Bert Stern ................................................................................................................ 2
B. The Making of the Documentary: Bert Stern: Original Mad Man .......................... 3
C. Trista, Miranda, and Georgia Wright ...................................................................... 4
D. Bret Stern ................................................................................................................ 4
E. The Release of the Documentary ............................................................................ 5
III. LEGAL STANDARDS CONCERNING CALIFORNIAS ANTI-SLAPP
STATUTE ........................................................................................................................... 6
IV. THE CLAIMS ATTACK SPEECH ON A MATTER OF PUBLIC INTEREST .............. 6
V. THE PRIVACY CLAIMS ARE BARRED BY THE STATUTE OF
LIMITATIONS ................................................................................................................... 7
VI. THE FIRST AMENDMENT BARS ALL OF PLAINTIFFS CLAIMS ........................... 8
VII. WRIGHTS CLAIMS ARE ALL BARRED BY THE WRITTEN RELEASES ............. 10
VIII. PLAINTIFFS CANNOT PREVAIL ON THEIR PRIVACY CLAIMS AS A
MATTER OF LAW .......................................................................................................... 10
A. Plaintiffs Cannot Succeed On Their Intrusion Claim ........................................... 11
B. Plaintiffs Cannot Succeed On Their Unauthorized Commercial Use Claim ....... 12
C. Plaintiffs Misrepresentation Claims Have No Probability Of Success................ 13
D. Plaintiffs Emotional Distress Claims Fail ............................................................ 14
IX. CONCLUSION ................................................................................................................. 15
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TABLE OF AUTHORITIES
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- i -
DEFENDANTS ANTI-SLAPP MOTION

Cases
Baugh v. CBS, Inc.,
828 F.Supp. 745 (N.D. Cal. 1993) ..............................................................................................9
Bogard v. Employers Casualty Company,
164 Cal.App.3d 602 (1985) .......................................................................................................14
Briggs v. Eden Council,
19 Cal.4th 1106 (1999) ...............................................................................................................6
Chapman v. Skype Inc.,
220 Cal.App.4th 217 (2013) .....................................................................................................13
Christoff v. Nestle USA, Inc.,
47 Cal.4th 468 (2009) .................................................................................................................8
Church of Scientology v. Wollershem,
42 Cal.App.4th 628 (1996) .........................................................................................................6
Comedy III Prods, Inc. v. Gary Saderup, Inc.,
25 Cal.4th 387 (2001) ...............................................................................................................12
Daly v. Viacom, Inc.,
238 F.Supp.2d 1118 (N.D. Cal. 2002) ........................................................................................9
Dibona v. Matthews,
220 Cal.App.3d 1329 (1990) .......................................................................................................6
Dora v. Frontline Video, Inc.
15 Cal.App.4th 536 (1993) .....................................................................................................8, 9
Downing v. Abercrombie & Fitch,
265 F.3d 994 (9th Cir.2001) ......................................................................................................12
Eastwood v. Superior Court,
149 Cal.App.3d 409 (1983), superseded by statute on other grounds as stated
in KNB Enters. v. Matthews, 78 Cal.App.4th 362 (2000) .........................................................12
Equilon Enterprises, LLC v. Consumer Cause Inc.,
29 Cal.4th 53 (2002) ...............................................................................................................6, 7
ETW Corp. v. Jireh Pub. Inc.,
332 F.3d 915 (6th Cir. 2003) .....................................................................................................13
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- ii -
DEFENDANTS ANTI-SLAPP MOTION

Gagne v. Bertran,
43 Cal.2d 481 (1954) ................................................................................................................13
Gates v. Discovery Comms., Inc.,
34 Cal.4th 679 (2004) .................................................................................................................7
Gerawan Farming, Inc. v. Lyons,
24 Cal.4th 468 (2000) ...............................................................................................................12
Gionfriddo v. Major League Baseball,
94 Cal.App.4th 400 (2001) .......................................................................................................13
Guglielmi v. Spelling-Goldberb Prods.,
25 Cal.3d 860 (1979) ................................................................................................................13
Hall v. Time Warner, Inc.,
153 Cal.App.4th 1337 (2007) .................................................................................................7, 9
Hernandez v. Hillsides, Inc.,
7 Cal.4th 272 (2009) .................................................................................................................11
Hill v. National Collegiate Athletic Assn.,
7 Cal.4th 1 (1994) ...............................................................................................................10, 11
Hilton v. Hallmark Cards,
599 F.3d 894 (9th Cir. 2010) .......................................................................................................7
Hoffman v. Capital Cities/ABC, Inc.,
255 F.3d 1180 (9th Cir. 2001) ...................................................................................................12
Hughes v. Pair,
46 Cal.4th 1035 (2009) .......................................................................................................14, 15
Johnson v. Harcourt, Brace, Jovanovich, Inc.,
43 Cal.App.3d 880 (1974) ...........................................................................................................8
Jones v. Corbis Corporation,
815 F.Supp.2d 1108 (C.D. Cal. 2011) ......................................................................................10
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952) ..................................................................................................................12
Kirby v. Sega of America, Inc.,
144 Cal.App.4th 47 (2006) .......................................................................................................13
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- iii -
DEFENDANTS ANTI-SLAPP MOTION

Kronemyer v. Internet Movie Data Base, Inc.,
150 Cal.App.4th 941 (2007) .......................................................................................................7
Lazar v. Superior Court,
12 Cal.4th 631 (1996) ...............................................................................................................13
M.G. v. Time Warner, Inc.,
89 Cal.App.4th 623 (2001) .........................................................................................................6
Maheu v. CBS, Inc.,
201 Cal.App.3d 662 (1998) .........................................................................................................9
Mann v. Quality Old Time Service, Inc.,
120 Cal.App.4th 90 (2004) .........................................................................................................6
Montana v. San Jose Mercury News, Inc.,
34 Cal.App.4th 790 (1995) .....................................................................................................8, 9
Navellier v. Sletten,
29 Cal.4th 82 (2002) ...................................................................................................................8
New Kids on the Block v. News America Publg, Inc.,
971 F.2d 302 (9th Cir. 1992) .......................................................................................................9
Newton v. Thomason,
22 F.3d 1455 (9th Cir. 1994) .....................................................................................................10
Nygard, Inc. v. UUSI-Kerttula,
159 Cal.App.4th 1027 (2008) .....................................................................................................7
Polydoros v. Twentieth Century Fox Film Corp.,
67 Cal.App.4th 318 (1997) .......................................................................................................13
Potter v. Firestone Tire & Rubber, Co.,
6 Cal.4th 965 (1993) .................................................................................................................15
Rezec v. Sony Pictures Entertainment, Inc.,
116 Cal.App.4th 135 (2004) .....................................................................................................12
Royer v. Steinberg,
90 Cal.App.3d 490 (1979) .........................................................................................................10
Sanders v. American Broadcasting Company, Inc.,
20 Cal.4th 907 (1999) ...............................................................................................................11
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- iv-
DEFENDANTS ANTI-SLAPP MOTION

Shively v. Bozanich,
31 Cal.4th 1230 (2003) ...............................................................................................................8
Shulman v. Group W Productions, Inc.,
18 Cal.4th 200 (1998) ...............................................................................................................11
Sipple v. Found. for Nat. Progress,
71 Cal.App.4th 226 (1999) .........................................................................................................7
Stewart v. Rolling Stone LLC,
181 Cal.App.4th 664 (2010) .......................................................................................................6
Tamkin v. CBS Broadcasting, Inc.,
193 Cal.App.4th 133 (2011) .......................................................................................................7
Tavernier v. Maes,
242 Cal.App.2d 532 (1966) .......................................................................................................10
Varian Med. Sys., Inc. v. Delfino,
35 Cal.4th 180 (2005) .................................................................................................................6
Weaver v. Jordan,
64 Cal.2d 235 (1966) ..................................................................................................................8
Winter v. DC Comics,
30 Cal.4th 881 (2003) ...............................................................................................................13
Wong v. Tai Jing,
189 Cal.App.4th 1354 (2010) .............................................................................................14, 15
State Statutes
CAL. CIV. CODE, 3515 ..................................................................................................................10
Cal. Civil Code 3425.3 ...................................................................................................................8
Cal. Code. Civ. Proc. 425.16(b)(1) ................................................................................................6
Civ.Code, 1710, subd. 2 ...............................................................................................................13
Civil Code 3344(a) ............................................................................................................................8
Civil Code 3344(a) ...................................................................................................................8, 12
Code of Civil Procedure 340, subd. (3) .........................................................................................8
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Other Authorities
Rest. 2d Torts 652B .....................................................................................................................11
Rest. 2d Torts, 892A ....................................................................................................................10


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DEFENDANTS ANTI-SLAPP MOTION

MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Bert Stern was a legendary photographer. Most famous for his photographs of Marilyn
Monroe taken just weeks before her death, he also profoundly reshaped the landscape of
commercial advertising and fashion photography and was one of few photographers who became
a celebrity in his own right. Bert Stern: Original Mad Men (the Documentary), a documentary
made by Sterns wife, Shannah Laumeister, examines Bert Sterns life his childhood, his rise to
fame, his personal life, his fall from grace and then his rise from the ashes. In short, the film
chronicles the history of an American icon of intense interest and concern to the public.
Plaintiffs Bret Stern and Trista Wright, on behalf of her children Miranda and Georgia
Wright (collectively herein Plaintiffs), have taken aim at this clearly protected speech by
asserting untenable claims. Plaintiffs have trumped up various claims based on the contention
that the 45 seconds of footage of the Plaintiffs in the 90 minute long Documentary required
Plaintiffs permission. There are two main problems with that contention: (1) no such consent is
required under the law; and (2) express written consent was given by one of the Plaintiffs. The
law is clear that consent is not needed for use of someones image in a biographical documentary,
particularly one relating to matters of public interest. Thus, the use of images of Bert Sterns son
Bret Stern (who appears for only 15 seconds and only in photographs and home video of him as a
baby and a toddler) and of Bert Sterns grandchildren Georgia and Miranda (who appear for only
30 seconds sitting on their mothers lap as she talks about her father Bert Stern) are fully
protected by the First Amendment and other protections. Moreover, Trista Wright signed releases
on behalf of not only herself, but Georgia and Miranda Wright as well, which negates all causes
of action by them.
This lawsuit has no merit for numerous other reasons detailed below. But this action was
never about meritorious claims. Rather, at its core, it is an effort by two of Bert Sterns children
to punish Laumeister for marrying their father. Their bitterness about that marriage is manifest
throughout the Complaint. But their attempt to punish her for it by going after her protected
speech is something the anti-SLAPP statute will not allow. This action must be dismissed.
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DEFENDANTS ANTI-SLAPP MOTION

II. STATEMENT OF FACTS
A. Bert Stern
Bert Stern was an American photographer famous for his celebrity, fashion and
commercial photography. Declaration of Lincoln Bandlow (LB Decl.) at Ex. 30; Declaration
of Shannah Laumeister (SL Decl.) at 3; Declarations of Etheleen Staley and Takouhy Wise
(SW Decls.) 3-6. Helping to redefine advertising and fashion art, Bert Sterns career
spanned from the 1950s to the 2000s, with his work being featured in major style, fashion and
travel magazines around the world. LB Decl., Ex. 30. He photographed numerous celebrities,
including Louis Armstrong, Audrey Hepburn, Elizabeth Taylor, Madonna, Lindsay Lohan, Kate
Moss and most famously, Marilyn Monroe. SW Decls. 4; SL Decl. 3; Complaint 11.
In addition to editorial shots for fashion magazines, Stern was a groundbreaking
commercial photographer in the advertising world. He also published two books, The Pill Book
and Marilyn Monroe: The Complete Last Sitting. The latter, a collection of over 2,500 photos of
Monroe taken shortly before her death, is arguably his best known work. These photos of Monroe
are one of the most valuable collections of Hollywood photographs and a mere 59 images sold for
$120,000 at auction at Christies. SW Decls., 4. Additionally, Bert Stern directed Jazz on a
Summers Day, a critically-acclaimed documentary film which, in 1999, was selected for
preservation in the U.S. National Film Registry by the Library of Congress as being culturally,
historically, or aesthetically significant. LB Decl., Ex. 44.
Often mentioned in the same breath as Irving Penn and Richard Avedon, Bert Stern was
one of the first photographers to become a celebrity in this own right. LB Decl., Ex. 31; SW
Decls., 6. In short, he was a legend in the world of photography and his images have captured
the imagination of the public around the world. SW Decl., 6. In his personal life, Bert Stern
was known for his partying and womanizing ways. Once married to New York City Ballet
principal, Allegra Kent, he had three children with Ms. Kent before they divorced in 1975. His
three children are named Susannah Stern, Bret Stern and Trista Stern Wright. Trista has two
children, Georgia and Miranda Wright. Bert Stern passed away on J une 26, 2013. He was
memorialized in countless major news publications. LB Decl., Exs. 30 - 39.
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DEFENDANTS ANTI-SLAPP MOTION

B. The Making of the Documentary: Bert Stern: Original Mad Man
1

Laumeister first met Bert Stern when she was 14 years old and wanted to model. SL
Decl., 4. Bert Stern photographed her many times over many years. Id. Eventually Laumeister
and Bert Stern became romantically involved and married in 2009. Id. In around 2005,
Laumeister decided to turn the camera around on him because she thought he would be a
fascinating documentary subject. Id. at 5. From that initial idea, the Documentary was born.
The idea for the Documentary was met with enthusiasm from many people. Id.
Laumeister was the director, writer, cinematographer, and producer of the Documentary.
SL Decl., 1. Defendant Magic Films Productions, Inc. (MFP) produced the Documentary.
SL Decl., 6.
2
Laumeister made the Documentary over the course of over seven years. Id. at 8.
She conducted substantial research, including taking dozens of interviews of subjects from all
aspects of Bert Sterns life and career, reviewing his archives and journals, and investigating the
time periods, events, people and works that would be the subject of the Documentary. Id.
Laumeister was present at every interview that appears in the Documentary. Id. at 9.
The Documentary covers everything from Bert Sterns childhood and personal life to his
career achievements and comeback. It follows his early career from working in the mailroom at a
magazine and his friendship with Stanley Kubrick, to his becoming a photographer in Tokyo after
being drafted, to his ground-breaking work in advertising with the Smirnoff vodka campaign, to
his becoming a full-fledged fashion photographer for magazines such as Vogue. LB Decl., Ex. 1.
A significant portion deals with his historic photography session with Monroe, as well as Sterns
2008 recreation of that session with actress Lindsay Lohan (the latter of which spawned
significant controversy in the press). Id.,Ex. 3. It also covers Bert Sterns personal life, including
his complicated relationships with women, his marriage to and divorce from his famous dancer
wife, Allegra Kent, his drug abuse and financial problems, and his relationship with his three
children as well as with Laumeister. Id., Ex. 1.

1
The title Bert Stern: Original Mad Men came from a reference to the popular television show Mad Men about
advertisers working on Madison Avenue in the 1950s. SL Decl. at 7; LB Decl., Ex. 1 (approximately 3 minute
mark).
2
SLM Productions LLC, which has not been served, was simply an entity formed to raise financing for the
Documentary which was dissolved in 2014 and no longer exists. SL Decl., 6.
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DEFENDANTS ANTI-SLAPP MOTION

C. Trista, Miranda, and Georgia Wright
Laumeister conducted Trista Wrights interview on J uly 6, 2008. After first filming Ms.
Wrights children, Ms. Wright then began her interview and only shortly after it had begun, her
children joined Ms. Wright on her lap for the majority of the interview. Trista Wright continued
the interview without any objection to the cameras, the interview questions, or the presence of her
children in the frame of the very visible and apparent camera. Ms. Wright never voiced an
objection to the childrens appearance on camera before, during, or after the interview, prior to
the filing of this lawsuit. Laumeister never made any representation that she would not use the
footage containing Miranda and Georgia Wright. On the day of filming, Trista Wright signed a
release not only for herself, but also one on behalf of each of her children. SL Decl., Ex. B. Two
days after shooting the interview, Trista Wright emailed Laumeister thanking her for a positive
experience and noting that [t]he girls were really inspired by your visit. Miranda cant stop
interviewing and videotaping her dolls. See SL Decl., 11-16, Exs. A-C.
Georgia and Miranda Wright appear on screen for 30 seconds in total. LB Decl., Ex. 1.
Each time they appear on their mothers lap, and appear as follows: at 28:13 for 5 seconds when
Ms. Wright talks about her mother; at 30:00 for 12 seconds where Ms. Wright reminisces about
her father and his relationship with children; and at 1:19:17 for 13 seconds, where Ms. Wright
states that she is a daddys girl and Miranda says and Im a grandpas girl. Id.
D. Bret Stern
Early cuts of the Documentary did not include any image or mention of Bret Stern. SL
Decl., 21.
3
After initial screenings of the Documentary, however, Laumeister received
numerous comments that the Documentary seemed incomplete without mention of Bert Sterns
third child and only son. Id. In particular, the distribution agent for the Documentary was
adamant that it was protocol of biographical documentaries that they include some mention of all
of the children of the subject of the documentary. Id.

3
Laumeister inquired if Bret Stern would be interested in being interviewed for the Documentary but he declined.
SL Decl., 19. He never, however, indicated that he did not want to be referenced or involved in the Documentary.
Id. Indeed, Bret Stern filmed one of the interviews for the Documentary. Id., 20. Laumeister had initially left Bret
Stern out of the Documentary simply for creative reasons. Id., 21.
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DEFENDANTS ANTI-SLAPP MOTION

Thus, Laumeister went back into her film and added some brief references to Bret Stern.
No images of Bret Stern as an adult appear in the Documentary. LB Decl., Ex. 1. Rather, the
only images of him in the Documentary are childhood home videos and photographs (which were
provided by Bert Stern) of Bret Stern as a baby and toddler. Id.; SL Decl., 22. He is mentioned
only briefly when Bert says he asked Allegra for a son and got one. Id. The footage of Bret Stern
constitutes 15 seconds of the Documentary as follows: at 30:45, there is a home video of Allegra
feeding Bret as a baby with one of his sisters (this clip lasts 5 seconds); immediately thereafter a
still photograph of Bret as a toddler is shown (for 1 second); then a photograph of Bret as a
toddler with Bert is shown (for 3 seconds); then a photograph of all three of Berts children
(including Bret as a baby) in a bathtub with their mother is shown (for 3 seconds); at 1:07:05, a
still photograph of Bert with his wife Allegra and three young kids (including Bret) is shown (for
3 seconds) as Bert Stern talks about his near death experience. Id.; LB Decl., Ex. 1.
E. The Release of the Documentary
The Documentary was first released on September 2, 2011. SL Decl., 24. Throughout
2012 and into 2013, the Documentary was publicly distributed to large audiences worldwide at
various film festivals. SL Decl., 24; LB Decl. Exs. 6-12, 14-23. Although Laumeister made
minor changes to the Documentary during its early release period, importantly, by the end of May
of 2012 and to the present day, the Documentary has not changed in any way and has had the
same content as that reflected in the dvd of the Documentary that is attached as Exhibit 1 to the
Bandlow Declaration (included all of the footage that is the subject of this lawsuit). SL Decl.,
24. The Documentary was generally positively reviewed upon its release and it was nominated
for the Audience Award at the Cambridge Film Festival, the Grand J ury Award at the Florida
Film Festival, and the J ohn Schlesinger Award at the Palm Springs International Film Festival.
Id., 26. The Documentary won Best Documentary at the Minneapolis St. Paul International Film
Festival. Id., 25. In 2013, the Documentary was released generally in theatres and dvd. Id., 26.
Plaintiffs have now sought to attack that Documentary with meritless claims. As set forth
below, that effort fails and pursuant to Californias anti-SLAPP statute, this action must be
dismissed and Defendants awarded their attorneys fees in having to defend this meritless action.
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DEFENDANTS ANTI-SLAPP MOTION

III. LEGAL STANDARDS CONCERNING CALIFORNIAS ANTI-SLAPP STATUTE
Californias anti-SLAPP statute allows courts to strike [a] cause of action against a
person arising from any act of that person in furtherance of the persons right of petition or free
speech under the . . . Constitution. Cal. Code. Civ. Proc. 425.16(b)(1). The statute encourages
participation in matters of public interest by targeting lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech. Equilon Enterprises, LLC v.
Consumer Cause Inc., 29 Cal.4th 53, 59-60 (2002). Under the statute, which is to be construed
broadly (Briggs v. Eden Council, 19 Cal.4th 1106, 1125 (1999)), courts use a two-step process to
determine if an action should be stricken. Varian Med. Sys., Inc. v. Delfino, 35 Cal.4th 180, 192
(2005). First, defendant must show that the acts complained of were taken in furtherance of the
right of free speech in connection with a public issue. Section 425.16 (e)(4). Once that is
shown, the burden shifts to plaintiff to demonstrate a probability of success on the claims. If this
burden is not met, the claims must be stricken. Id.; Section 425.16 (b)(1).
The anti-SLAPP statute applies to actions aimed at documentary films. M.G. v. Time
Warner, Inc., 89 Cal.App.4th 623, 629 (2001) (anti-SLAPP statute applied to claims against
documentary about molestation in child sports). The application of the anti-SLAPP statute is not
limited to any particular claim. Church of Scientology v. Wollershem, 42 Cal.App.4th 628, 642
(1996). Rather, it relates to any claim that could achieve the objective of a SLAPP suit to
interfere with and burden the defendants exercise of his or her [free speech] rights. Id. at 652;
Stewart v. Rolling Stone LLC, 181 Cal.App.4th 664, 679 (2010) (we do not evaluate the first
prong of the anti-SLAPP test solely through the lens of a plaintiff's cause of action). Thus, it is
[t]he principal thrust or gravamen of the claim [that] determines whether section 425.16
applies. Mann v. Quality Old Time Service, Inc., 120 Cal.App.4th 90, 103 (2004).
IV. THE CLAIMS ATTACK SPEECH ON A MATTER OF PUBLIC INTEREST
Section 425.16(e)(4) encompasses any claim that arises from speech made in connection
with a public issue or an issue of public interest. As an initial matter, the Documentary was
intended for the public and is an exercise in speech. See e.g. Dibona v. Matthews, 220
Cal.App.3d 1329 (1990) (controversial play in cancelled drama class a matter of free speech).
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DEFENDANTS ANTI-SLAPP MOTION

Second, a documentary about a renowned celebrity photographer is clearly a matter of public
interest. In fact, any matter in which the public takes an interest is a matter of public interest
regardless of its overall societal importance and thus is protected. Nygard, Inc. v. UUSI-
Kerttula, 159 Cal.App.4th 1027, 1042 (2008) (an issue of public interest . . . is any issue in
which the public is interested) (emphasis in original).
4

The definition of public interest has been broadly construed to include matters
relating to celebrities. See Kronemyer v. Internet Movie Data Base, Inc., 150 Cal.App.4th 941,
949 (2007). Bert Stern is clearly a celebrity and his life and work have long been considered a
matter of public interest. SL Decl., 3; LB Decl., Exs. 1-48. Indeed, Plaintiffs concede that Bert
Stern is a well-known photographer (Complaint 17) who was well-known for his
photographs of celebrities. Complaint 11. Bert Sterns death produced lengthy obituaries in
The New York Times, The Telegraph, The Guardian, Vogue, Los Angeles Times, Washington
Post, and The Huffington Post, among others. LB Decl., Exs. 30-39. His book, The Last Sitting,
has been written about extensively, as was his Lindsay Lohan photo shoot. LB Decl., Exs. 3, 47.
Thus, the Documentary clearly constitutes speech on a matter of public interest and the
burden shifts to the Plaintiffs to present competent and admissible evidence showing that
[they] will probably prevail on [their] claims. Equilon Enters., 29 Cal.4th at 67; Section
425.16. Plaintiffs cannot meet this burden and thus their claims must be stricken.
V. THE PRIVACY CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS
Plaintiffs claims of invasion of privacy and unauthorized commercial use of name and
likeness are barred by the applicable statutes of limitation. The Documentary, after it was locked
in its existing form, was being publicly disseminated in May of 2012. SL Decl., 24. Plaintiffs

4
Courts have also frequently applied Section 425.16 to speech concerning the publics interest in entertainment.
Gates v. Discovery Comms., Inc., 34 Cal.4th 679, 695 (2004) (speech protections apply to a news report or an
entertainment feature); see also Sipple v. Found. for Nat. Progress, 71 Cal.App.4th 226, 239 (1999) (article about
political consultant in public interest); Kronemyer, supra (website list of movie credits as public interest); Tamkin v.
CBS Broadcasting, Inc., 193 Cal.App.4th 133, 143 (2011) (use of actual names as placeholders in draft television
script was speech in connection with public interest even where individuals were not of public interest); Hall v. Time
Warner, Inc., 153 Cal.App.4th 1337 (2007) (claims of trespass, intrusion upon seclusion, public disclosure of private
facts, intentional infliction of emotional distress, and elder abuse against television program that interviewed Marlon
Brandos housekeeper dismissed on anti-SLAPP motion, speech was matter of public interest in light of public's
fascination with Brando and widespread public interest in his personal life); Nygard, 159 Cal.App.4th at 1039
(statements about Finnish businessperson in the public interest); Hilton v. Hallmark Cards, 599 F.3d 894, 907 (9th
Cir. 2010) (speech about celebrity Paris Hilton is about an issue of public interest).
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DEFENDANTS ANTI-SLAPP MOTION

did not file their Complaint until August 8, 2014, over two years after the first publication of the
Documentary in its present form. The applicable statute of limitations for tortious invasion of
privacy is found in Code of Civil Procedure section 340, subdivision (3), which sets forth a one
year period during which the action may be filed. Johnson v. Harcourt, Brace, Jovanovich, Inc.,
43 Cal.App.3d 880, 895-96 (1974). Additionally, California courts have applied a two-year
statute of limitations to claims under Civil Code section 3344(a). Christoff v. Nestle USA, Inc., 47
Cal.4th 468, 474 (2009) (applying two-year statute of limitation to Civil Code 3344(a) claim).
Accordingly, the statutes had run, at the latest for these causes of action, by May of 2014.
5

VI. THE FIRST AMENDMENT BARS ALL OF PLAINTIFFS CLAIMS
Defendants use of Plaintiffs likenesses in the Documentary is fully protected by the First
Amendment. Thus, despite Plaintiffs primary contention in this action, every publication of
someones name or likeness does not give rise to an appropriate action. Publication of matters of
public interest, which rests on the right of the public to know and the freedom of the press to tell
it, is not ordinarily actionable. Dora v. Frontline Video, Inc. 15 Cal.App.4th 536, 543 (1993).
Thus, [n]o cause of action will lie for the publication of matters in the public interest, which
rests on the right of the public to know and the freedom of the press to tell it. Montana v. San
Jose Mercury News, Inc., 34 Cal.App.4th 790 (1995) (emphasis added). This applies not only to
governmental affairs, but also to entertainment speech. Navellier v. Sletten, 29 Cal.4th 82, 91
(2002) (additional citations omitted); see also Weaver v. Jordan, 64 Cal.2d 235, 242 (1966)
(Communicationby television falls within constitutional protection of free speech).
Dora v. Frontline Video is directly on point. There, the California Courts of Appeals
found that a documentary on surfing legends in California contained matters of public interest
giving rise to constitutional protection against liability. Id. (Public interest attaches to people

5
Though Plaintiffs may assert the delayed discovery rule, courts have rejected that rule where it would undermine
the protection provided by the single-publication rule. Shively v. Bozanich, 31 Cal.4th 1230, 1250 (2003). The
single publication rule states that [n]o person shall have more than one cause of action for libel or slander or
invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one
issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or
television or any one exhibition of a motion picture. Cal. Civil Code Section 3425.3. For the purposes of
determining the accrual date of a claim, a cause of action that is governed by the single-publication rule accrues
from the date of the first general distribution of the publication to the public. Christoff, 47 Cal.4th at 477; citing
Shively, 31 Cal.4th at 1245; see also Belli v. Roberts Brothers Furs, 240 CalApp.2d 284, 289 (1996) (cause of action
accrues upon the first general distribution of the publication to the public). Thus, Plaintiffs privacy claims began
to accrue upon the first distribution of the Documentary in its present finalized version in May of 2012.
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DEFENDANTS ANTI-SLAPP MOTION

who by their accomplishments or mode of living create a bona fide attention to their activities.);
see also Montana, 34 Cal.App.4th at 794-96 (allowing the defense of public interest for a
newspapers commemorative posters of the Super Bowl victories of the San Francisco 49ers).
Though the Complaint alleges that none of [the Plaintiffs] was or is a public figure or
public persona (Complaint at 17), their involvement in the life of a public figure makes them a
part of that public interest. The Dora Court expressly noted:

The program in question in this case is a documentary about a certain time and
place in California history and, indeed, in American legend. The people who
were a part of that era contributed, willingly or unwillingly, to the
development of a lifestyle that has become world-famous and celebrated in
popular culture. Although any one of them as individuals may not have had a
particular influence on our time, as a group they had great impact.

Id. at 543. Similarly, the court in Hall v. Time Warner found that the airing of an
interview with Marlon Brandos housekeeper was a matter of public interest in light of publics
fascination with actor and widespread public interest in his personal life. Hall, 153 Cal.App.4th
at 1347; Daly v. Viacom, Inc., 238 F.Supp.2d 1118, 1122 (N.D. Cal. 2002) (a defense under the
First Amendment is provided where the publication or dissemination of matters is in the public
interest); New Kids on the Block v. News America Publg, Inc., 971 F.2d 302, 309-10 (9th Cir.
1992) (public interest defense is a complete defense and provides extra breathing space even
beyond the First Amendment); Maheu v. CBS, Inc., 201 Cal.App.3d 662, 676-77 (1998).
Documentary filmmakers are granted wide latitude under the common law public interest
exception to protect free expression. Protection is provided for those matters that the public is
interested in and constitutionally entitled to know about, such as things, people and events that
affect it. Baugh v. CBS, Inc., 828 F.Supp. 745, 754 (N.D. Cal. 1993) (quoting Dora, 15
Cal.App.4th at 546). That Bret Stern, Georgia and Miranda Wright are not public figures in their
own right has no effect on the First Amendment analysis. Their involvement in, and relationship
to, their patriarch Bert Stern necessarily involves them in matters of public interest. Thus,
Plaintiffs claims are barred by the First Amendment.
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DEFENDANTS ANTI-SLAPP MOTION

VII. WRIGHTS CLAIMS ARE ALL BARRED BY THE WRITTEN RELEASES
One who effectively consents to conduct of another intended to invade his interests
cannot recover in an action of tort for the conduct or for harm resulting from it. Rest. 2d Torts,
892A. Wright will be unable to recover on any of the claims on behalf of Georgia and Miranda
as the Releases she signed on behalf of herself and both her children constitute consent. Hill v.
National Collegiate Athletic Assn., 7 Cal.4th 1, 26 (1994) (The maxim of the law volenti non fit
injuria (no wrong is done to one who consents) applies as well to the invasion of privacy tort.);
Royer v. Steinberg, 90 Cal.App.3d 490, 498 (1979). In fact, not merely a defense to tort claims,
Wrights consent negates the existence of any intentional tort altogether: [t]he consent of the
person damaged will ordinarily avoid liability for intentional interference with person or property.
It is not, strictly speaking, a privilege, or even a defense, but goes to negative the existence of any
tort in the first place. Tavernier v. Maes, 242 Cal.App.2d 532, 552 (1966); see also CAL. CIV.
CODE, 3515 (He who consents to an act is not wronged by it). Wright cannot demonstrate a
probability of success on her claims against Defendants as her consent has negated the very
existence of any alleged tortious conduct.
6
See SL Decl., Ex. B.
VIII. PLAINTIFFS CANNOT PREVAIL ON THEIR PRIVACY CLAIMS AS A
MATTER OF LAW
Privacy claims consist of four separate and distinct, but related torts, of which Plaintiffs
claim invasion of privacy (an intrusion claim) and unauthorized use of name and likeness. Both
of these claims are based on Defendants use of the images of Bret Stern, Georgia Wright and
Miranda Wrights images in the Documentary. Courts have rightfully been hesitant to infringe
the rights guaranteed by the First Amendment even where a privacy right is infringed. Courts

6
Moreover, even without the signed Releases, consent could be reasonably inferred from Wrights actions. Consent
to use a name or likeness need not be express or in writing, but it may be implied from the consenting partys conduct
and the circumstances of the case. Jones v. Corbis Corporation, 815 F.Supp.2d 1108, 1113 (C.D. Cal. 2011)
(applying California law); citing Newton v. Thomason, 22 F.3d 1455, 1461 (9th Cir. 1994) (granting summary
judgment to defendant in right of publicity suit because plaintiff failed to show a lack of consent even though
plaintiff never expressly consented); see also Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (1994) ([T]he
plaintiff in an invasion of privacy case must have conducted himself or herself in a manner consistent with an actual
expectation of privacy). Miranda and Georgia Wright sat on their mothers lap while Trista Wright was being
interviewed. SL Decl., 12, Ex. A; LB Decl., Ex. 1. Trista Wright was willingly participating in an on camera
interview, continued to answer question once her kids were on camera, and voiced no objection to such. SL Decl.,
12-15, Ex. A.
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have consistently extended free speech protection to the type of activity upon which Plaintiffs
invasion of privacy causes of action are predicated. Though all of Plaintiffs claims are
constitutionally barred as set forth above, the claims fail for the following additional reasons.
A. Plaintiffs Cannot Succeed On Their Intrusion Claim
Plaintiffs allege the specific tort of invasion of privacy by intrusion against Defendants,
which has two elements: (1) intrusion into a private place, conversation or matter, (2) in a
manner highly offensive to a reasonable person. Sanders v. American Broadcasting Company,
Inc., 20 Cal.4th 907, 914 (1999) (citing Shulman v. Group W Productions, Inc., 18 Cal.4th 200,
231 (1998)); Restatement Second of Torts section 652B. The first element is only met when the
plaintiff has an objectively reasonable expectation of seclusion or solitude in the place,
conversation or data source. Schulman, 18 Cal. 4th at 232 (applying the newsworthiness
doctrine to the analysis of First Amendment protection for the television show On Scene:
Emergency Response). Any intrusion must be sufficiently serious and unwarranted as to
constitute an egregious breach of the social norms. Hernandez v. Hillsides, Inc., 7 Cal.4th 272,
293 (2009); citing Hill, supra, 7 Cal.4th 1, 37.
First, in the case of Trista Wright, on behalf of Miranda and Georgia Wright, there was no
intrusion into a private moment. To prove actionable intrusion, the plaintiff must show the
defendant penetrated some zone of physical or sensory privacy surrounding, or obtained
unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an
objectively reasonable expectation of seclusion or solitude in the place, conversation or data
source. Shulman, 18 Cal.4th at 232. Contrary to the allegations of the Complaint, Trista,
Miranda and Georgia appear only three times in a format which is clearly an interview. LB Decl.
Ex. 1; SL Decl., 17. Trista Wright is willingly participating in an interview on camera with her
children, Georgia and Miranda seated on her lap. SL Decl., 12-15. Defendants were in Trista
Wrights home at her invitation. Trista Wright made no objection to the children being on camera
at any time and signed Releases on their behalf. Id., 13-15, Exs. A, B. There exists absolutely
no reasonable expectation of seclusion during an on camera interview, which Trista Wright was
clearly aware was occurring. Second, there was no intrusion into any private area or information
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about Bret Stern. He appears solely in childhood photos and a brief family home video excerpt.
LB Decl., Ex. 1; SL Decl., 22.
B. Plaintiffs Cannot Succeed On Their Unauthorized Commercial Use Claim
California Civil Code Section 3344(a) provides that [a]ny person who knowingly uses
anothers name, voice, signature, photograph, or likeness, in any manner ... without such person's
prior consent ... shall be liable for any damages sustained by the person or persons injured as a
result thereof. To sustain a common law cause of action for this claim, Plaintiffs must prove:
(1) the defendants use of the plaintiff's identity; (2) the appropriation of plaintiffs name or
likeness to defendants advantage, commercially or otherwise; (3) lack of consent; and (4)
resulting injury. Eastwood v. Superior Court, 149 Cal.App.3d 409 (1983), superseded by statute
on other grounds as stated in KNB Enters. v. Matthews, 78 Cal.App.4th 362 (2000); see Downing
v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir.2001).
First, the use was in no way commercial. Plaintiffs allegation that the Documentary is
commercial because it was written, directed, produced, marketed, distributed, shown in
theatres and sold as a DVD, for the express purpose of generating revenue and making a profit is
absurd. See Complaint at 26. Were this enough to qualify as a commercial purpose sufficient
to defeat First Amendment protections, no work of art would ever qualify including great works
of literature, paintings, stage performances, or any film. Indeed, commercial speech is speech
that does no more than propose a commercial transaction. Rezec v. Sony Pictures
Entertainment, Inc., 116 Cal.App.4th 135, 141 (2004); citing Gerawan Farming, Inc. v. Lyons, 24
Cal.4th 468, 486 (2000); see also Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1184 (9th
Cir. 2001). Merely because a documentary is offered for sale as a DVD or charges for tickets to
its screenings does not strip it of its First Amendment protection. Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495, 501 (1952). This was simply not a commercial use.
In addition, as set forth above, the misappropriation claims are barred because they relate
to speech about matters of public interest. Moreover, the claims are barred because the use of
Plaintiffs names and likenesses in the Documentary are transformative and otherwise protected
by the First Amendment under Comedy III Prods, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387
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(2001), Winter v. DC Comics, 30 Cal.4th 881 (2003) and legions of other cases. See Polydoros v.
Twentieth Century Fox Film Corp., 67 Cal.App.4th 318, 324 (1997) (rejecting right of publicity
claims brought by person who was basis for character in a movie); Kirby v. Sega of America, Inc.,
144 Cal.App.4th 47 (2006) (rejecting right of publicity claims by person who claimed to be basis
for videogame character); Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400 (2001)
(rejecting right of publicity claims by baseball players depicted in historical documentaries about
baseball); ETW Corp. v. Jireh Pub. Inc., 332 F.3d 915 (6th Cir. 2003) (rejecting Tiger Woods
right of publicity claims based on depiction of him in poster about golf greats); Guglielmi v.
Spelling-Goldberb Prods., 25 Cal.3d 860 (1979) (right of publicity claims relating to depiction of
person in docudrama barred by the First Amendment);
C. Plaintiffs Misrepresentation Claims Have No Probability Of Success
The essential elements of a count for intentional misrepresentation are (1) a
misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) actual and justifiable
reliance; and (5) resulting damage. Chapman v. Skype Inc., 220 Cal.App.4th 217, 230-31
(2013); citing Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996). The essential elements of a
count for negligent misrepresentation are the same except that it does not require knowledge of
falsity, but instead requires a misrepresentation of fact by a person who has no reasonable
grounds for believing it to be true. Id. at 231; citing Civ.Code, 1710, subd. 2; Gagne v. Bertran,
43 Cal.2d 481, 488 (1954). Each element of a fraud count must be pleaded with particularity
(id.), however, Plaintiffs can barely even generally identify any alleged misrepresentation. The
entire basis for these claims appears to be the allegation that Wright believed that Laumeister
was expressly or impliedly representing that she would not use the names and likenesses of
Wrights children without Wrights consent and that Stern believed that Laumeister was
expressly or impliedly representing that his name, image, likeness and/or voice would be sued
[sic.] in the Film Complaint at 31, 32.
Nevertheless in reality, Laumeister made no such representations either expressly or
impliedly. SL Decl., 11-16. In the case of the Wright children, Laumeister continued to
conduct the interview when Wrights children came and sat in her lap. Wright made no attempt
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to stop the filming or interview, and signed Releases on behalf of all three of them. Id., 11-16,
Exs. A, B.
As for Bret Stern, Defendants never made any representation that they would not make
any use of childhood photographs provided by Bert Stern or otherwise reference Bret Stern in the
Documentary. SL Decl., 20.
D. Plaintiffs Emotional Distress Claims Fail
The elements of a claim for intentional infliction of emotional distress are (1) outrageous
conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing
emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of
emotional distress. Wong v. Tai Jing, 189 Cal.App.4th 1354, 1376 (2010). The first element,
outrageous conduct, must be conduct that is so extreme as to exceed all bounds of that usually
tolerated in a civilized community. Bogard v. Employers Casualty Company, 164 Cal.App.3d
602, 616 (1985). None of the actions alleged in the Complaint rise to exceed all bounds of that
usually tolerated in a civilized community. Use of images in a Documentary about ones father
and grandfather a renowned, iconic photographer hardly qualifies as outrageous conduct.
As for Plaintiffs claim for negligent infliction of emotional distress, it is not an
independent tort, but rather, merely a negligence claim requiring the traditional elements of duty,
breach of duty, causation, and damages. Wong, 189 Cal.App.4th at 1377. Plaintiffs allege that
Laumeister had a duty to not use the names, likenesses, photographs and/or voices of Bret Stern
and the Wright children in the Documentary. Plaintiffs cannot identify from where that duty
might arise, nor could they, as she had no such duty.
Moreover, the severe emotional distress required to prove a claim for intentional infliction
of emotional distress is the same required for a negligent infliction of emotional distress claim.
Id. at 1378. This distress may consist of a highly unpleasant mental reaction such as fright,
grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry, but any of
these distresses must be severe. Id. at 1376 (original emphasis). Moreover, the California
Supreme Court has set a high bar for what distress is considered severe. Hughes v. Pair, 46
Cal.4th 1035, 1051 (2009). Severe emotional distress means emotional distress of such
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substantial quality or enduring quality that no reasonable [person] in civilized society should be
expected to endure it. Potter v. Firestone Tire & Rubber, Co., 6 Cal.4th 965, 1004 (1993).
Plaintiffs cannot possibly demonstrate the severe emotional distress required to recover on
their emotional distress claims. Such distress must be of such substantial quality or enduring
quality that no reasonable [person] in civilized society should be expected to endure it. Hughes,
46 Cal.4th at 1051. Here, Plaintiffs complain of vague injuries consisting of humiliation,
embarrassment, anxiety, mental anguish, worry and other emotional and physical distress
(Complaint at 45, 50) which do not constitute the required severity for recovery. See also
Wong, 189 Cal.App.4th at 1377 (complaints of severe emotional damage comprised of being
very emotionally upsetting, lost sleep, upset stomach and generalized anxiety is not sufficient
for recovery). Plaintiffs cannot meet the burden of demonstrating the severe emotional distress
required to support these claims. Indeed, Wright sent Laumeister an email two days after the
interview about how much her children enjoyed the experience. SL Decl., Ex. C. Nor is it
remotely logical that Bret Stern can complain that he is emotionally distressed by the fact that he
was accurately depicted in the Documentary as being the child of Bert Stern. Plaintiffs cannot
meet the burden of demonstrating success on any of their claims alleged against Defendants.
Thus, the claims must be stricken.
IX. CONCLUSION
Thus, for all of the foregoing reasons, Defendants respectfully requests that this motion be
granted and the action dismissed with prejudice, left open only for Defendants to file a motion to
recover the attorneys fees and costs incurred in defending against this action.


Dated: October 30, 2014

LATHROP & GAGE LLP
By:
Lincoln Bandlow
Emily Birdwhistell
Attorneys for Defendants
Shannah Laumeister and
Magic Film Productions, Inc.