Filed 11/19/19; Certified for Publication 12/6/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION THREE


DAVID BERNSTEIN,                                     B288054

     Plaintiff and Respondent,                       Los Angeles County
                                                     Super. Ct. No. BC663207
     v.

SHIA LABEOUF,

     Defendant and Appellant.



      APPEAL from an order of the Superior Court of Los
Angeles County, Laura A. Matz, Judge. Affirmed.
      Lavely & Singer, Brian G. Wolf and David B. Jonelis for
Defendant and Appellant.
      Shaw Koepke & Satter, Jens B. Koepke; Law Offices of
Bruce A. Wernik, Bruce A. Wernik and Frederic L.F. Hamilton
for Plaintiff and Respondent.
             _______________________________________
                         INTRODUCTION

       This lawsuit arises out of an altercation between plaintiff
David Bernstein, a bartender, and defendant Shia LaBeouf, an
actor. LaBeouf confronted Bernstein and called him a “racist”
after Bernstein refused to serve LaBeouf and his companion
alcohol. Video footage of the incident was later posted on the
internet and broadcast on television. Bernstein sued LaBeouf for
assault, slander, and intentional infliction of emotional distress.
LaBeouf filed a special motion to strike Bernstein’s first amended
complaint under Code of Civil Procedure1 section 425.16 (anti-
SLAPP statute), arguing the conduct giving rise to Bernstein’s
claims was protected speech-related activity concerning a matter
of public interest. The trial court denied the motion in its entirety
and LaBeouf appeals. We affirm.

        FACTS AND PROCEDURAL BACKGROUND

1.    The Incident
      Around 9:45 p.m. on April 5, 2017, LaBeouf’s companion,
Mia Goth, went to the bar at Jerry’s Famous Deli (Jerry’s) in
Studio City, where Bernstein worked, and tried to order alcoholic
drinks. The bartenders refused to serve Goth because she
appeared “significantly under the influence.” Shortly thereafter,
LaBeouf entered the bar and demanded the bartenders serve him
and Goth alcohol. Bernstein refused to serve LaBeouf alcohol
because he too appeared “significantly under the influence.”
LaBeouf became angry, pounded his fist on the bar counter, and
yelled “[y]ou’re not going to fucking serve me?”

1All undesignated statutory references are to the Code of Civil
Procedure.




                                   2
      LaBeouf then walked around the counter and entered the
well area behind the bar, where the bartenders work. LaBeouf,
who was “yelling at the top of his lungs,” took several steps
toward Bernstein. “[F]earful of an imminent attack,” Bernstein
grabbed a bottle of Grey Goose vodka and held it over his
shoulder “to deter” LaBeouf. LaBeouf then stepped back and was
escorted out of the restaurant by security.
      As LaBeouf was being taken out of the restaurant, he
shouted at Bernstein, “You Fucked Up,” and called him a
“Fucking Racist” and a “Fuckin’ Racist Bitch.” LaBeouf also told
the “predominantly African-American crowd” to “Wake Up, this
Motherfucker is a Racist.”2
      “Videotapes of [the] incident were published by TMZ and
were circulated instantly world-wide to millions of people via
television, internet, social and print media.” After videos of the
incident were circulated, “[t]here were many internet and social
media posts supporting” LaBeouf. “On a near[ly] daily basis,”
customers whom Bernstein has never met called him “ ‘The
Racist Bartender,’ ”and people Bernstein knows “have constantly
been bringing up th[e] event.”
2.    Bernstein’s Lawsuit
      Bernstein sued LaBeouf for assault, slander per se, and
intentional infliction of emotional distress. The assault claim was
based on allegations that LaBeouf engaged in physically
threatening conduct, including entering the well area behind
Jerry’s bar without permission, when he confronted Bernstein.



2There is no indication in the record that LaBeouf or Goth are African-
American.




                                  3
With respect to the slander claim, Bernstein alleged LaBeouf
called him a “racist,” without any basis in fact to support that
statement, in front of a large crowd that was predominantly
African-American. Finally, the intentional infliction of emotional
distress claim was based on LaBeouf’s conduct throughout the
entire encounter, including his threatening physical conduct and
his statements that Bernstein was a “racist.”
       LaBeouf filed a special motion to strike Bernstein’s
complaint under the anti-SLAPP statute (§ 425.16). With respect
to his statements calling Bernstein a “racist,” LaBeouf insisted
they were protected speech under the anti-SLAPP statute
because: (1) they occurred in a place open to the public—i.e., a
restaurant; (2) they “were of ‘public interest,’ as evidenced by the
fact that video footage of the [i]ncident was posted publicly on the
TMZ website”; and (3) because LaBeouf is a celebrity, “ ‘[t]he
public’s fascination with [him] and widespread interest in his
personal life’ render his day to day conduct ‘a public issue or an
issue of public interest.’ ” Alternatively, LaBeouf argued his
statements addressed a matter of public interest because they
contributed to the public debate on racism, since “it [is] axiomatic
that racism and allegations of racial discrimination are matters
of the highest public concern.” As for his physical conduct,
LaBeouf claimed it too was protected because it was used in
furtherance of, or to “emphasize,” his protected speech.
       With respect to the second prong of the anti-SLAPP
statute, LaBeouf argued Bernstein could not demonstrate a
probability of prevailing on the merits of any of his claims.
Among other things, LaBeouf asserted Bernstein could not
prevail on his slander claim because LaBeouf’s statements that
Bernstein was a “racist” constituted nothing more than “ ‘mere




                                 4
name calling.’ ” (Emphasis omitted.) LaBeouf did not submit any
supporting evidence.
      Bernstein opposed LaBeouf’s motion. In support of his
opposition, Bernstein submitted declarations from several
customers who witnessed the incident at Jerry’s, fellow Jerry’s
employees who were working during the incident, and a
psychologist who diagnosed Bernstein with Post-Traumatic
Stress Disorder because of the incident. The customers who
submitted declarations on Bernstein’s behalf stated they knew
Bernstein because they frequented Jerry’s. None of them had
ever seen Bernstein engage in any racist conduct.3
      Bernstein also submitted several newspaper articles
documenting LaBeouf’s various run-ins with law enforcement, as
well as screenshots of several social media posts in which people
comment on the incident at Jerry’s and, in many of the posts,
express their support for LaBeouf or call Bernstein a “racist.”
Finally, Bernstein filed a copy of the video of the TMZ broadcast
covering the incident, which includes footage of LaBeouf’s
conduct inside Jerry’s, a copy of a video of the incident recorded
by one of Jerry’s other employees, and copies of videos concerning
LaBeouf’s other public outbursts.
      The court denied LaBeouf’s anti-SLAPP motion. The court
found LaBeouf failed to show any of the claims in Bernstein’s
complaint arose out of LaBeouf’s “constitutional right of free
speech in connection with a public issue or an issue of public
interest.” Rather, the court found the claims stemmed from “a

3 We grant Bernstein’s May 9, 2019 motion to augment the record with
the corrected versions of several of the witnesses’ declarations that he
filed in the trial court but which LaBeouf omitted from the record on
appeal.




                                   5
private dispute between [LaBeouf] and [Bernstein] concerning
[Bernstein’s] refusal … to serve [LaBeouf] alcohol and [LaBeouf’s]
reaction.” The court rejected LaBeouf’s arguments that his
statements calling Bernstein a “racist” contributed to the public
debate on racism and that his celebrity status converted the
dispute into a matter of public interest.
      LaBeouf timely appealed the order denying his anti-SLAPP
motion.

                         DISCUSSION

       LaBeouf contends each of Bernstein’s claims arises out of
activity protected by the anti-SLAPP statute because “what
would have otherwise been an unremarkable and insignificant
altercation between two individuals became a matter of
significant and inherent public interest” due to “LaBeouf’s
celebrity status.” LaBeouf also argues his statements address
racial discrimination, “a hot-button topic of significant public
concern.” We are not persuaded.
1.    Applicable Law and Standard of Review
      Under section 425.16, a defendant may move to strike
claims “ ‘arising from any act … in furtherance of the
[defendant’s] right of petition or free speech under the United
States Constitution or the California Constitution in connection
with a public issue.’ ” (Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 884.) Section 425.16 does not completely insulate a
defendant’s protected speech; rather, it provides a mechanism
“for weeding out, at an early stage, meritless claims arising from”
protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384
(Baral).)




                                 6
       Courts apply a two-prong test when evaluating an anti-
SLAPP motion. (Baral, supra, 1 Cal.5th at p. 384.) “First, the
defendant must establish that the challenged claim arises from
activity protected by section 425.16.” (Ibid.) To determine
whether the plaintiff’s causes of action arise from the defendant’s
protected activity, we look at the “pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or
defense is based.” (§ 425.16, subd. (b)(2); see also Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
       If the defendant meets that burden, the plaintiff then must
“demonstrate the merit of the claim by establishing a probability
of success.” (Baral, supra, 1 Cal.5th at p. 384.) The second prong
involves an analysis similar to that used to evaluate a summary
judgment motion. (Ibid.) “The court does not weigh evidence or
resolve conflicting factual claims. Its inquiry is limited to
whether the plaintiff has stated a legally sufficient claim and
made a prima facie factual showing sufficient to sustain a
favorable judgment. [The court] accepts the plaintiff’s evidence as
true, and evaluates the defendant’s showing only to determine if
it defeats the plaintiff’s claim as a matter of law.” (Id. at pp. 384–
385.)
       We independently review an order granting a special
motion to strike under section 425.16. (Paulus v. Bob Lynch Ford,
Inc. (2006) 139 Cal.App.4th 659, 672.) “ ‘ “[W]e engage in the
same, two-step process as the trial court to determine if the
parties have satisfied their respective burdens. [Citations.] If the
defendant fails to show that the lawsuit arises from protected
activity, we affirm the trial court’s ruling and need not address
the merits of the case under the second prong of the statute.” ’




                                  7
[Citation.]” (Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291,
1298.)
2.    LaBeouf’s conduct does not fall within the scope of the
      anti-SLAPP statute.
       The anti-SLAPP statute protects, among other things,
statements or conduct made “in connection with a public issue or
an issue of public interest.” (See § 425.16, subd. (e)(3)–(4).)4 To
fall within the scope of subdivision (e)(3) and (4) of the anti-
SLAPP statute, a defendant must establish: (1) that the
challenged statement or conduct implicates a public issue or a
matter of public interest; and (2) that the speech or conduct was
made “in connection with” a public issue or a matter of public
interest. (See § 425.16, subd. (e)(3)–(4); see also FilmOn.com Inc.
v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149 (FilmOn).)
       To determine whether challenged speech or other conduct
involves a public issue or a matter of public interest, courts look
to “certain specific considerations.” (FilmOn, supra, 7 Cal.5th at
p. 145.) For instance, courts look to whether “the subject of the
speech or activity ‘was a person or entity in the public eye’ or
‘could affect large numbers of people beyond the direct
participants’ [citation]; and whether the activity ‘occur[red] in the
context of an ongoing controversy, dispute or discussion’
[citation], or ‘affect[ed] a community in a manner similar to that
of a governmental entity’ [citation].” (Id. at pp. 145–146.)


4The parties agree the first two categories of protected activity under
section 425.16, subdivision (e) do not apply in this case because none of
the underlying conduct concerns “a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law[.]” (§
425.16, subd. (e)(1)–(2).)




                                    8
“ ‘[P]ublic interest’ does not equate with mere curiosity,” and “the
focus of the speaker’s conduct should be the public interest rather
than a mere effort ‘to gather ammunition for another round of
[private] controversy … .’ [Citation.]” (Weinberg v. Feisel (2003)
110 Cal.App.4th 1122, 1132–1133 (Weinberg).)
       As for the second requirement, the California Supreme
Court recently articulated a two-part test to determine whether
speech or conduct was made “in connection with” an issue of
public interest. (FilmOn, supra, 7 Cal.5th at p. 149.) “First, we
ask what ‘public issue or … issue of public interest’ the speech in
question implicates—a question we answer by looking to the
content of the speech. [Citation.] Second, we ask what functional
relationship exists between the speech and the public
conversation about some matter of public interest.” (Id. at pp.
149–150.) The second part of this test “address[es] the specific
nature of [the defendant’s] speech and its relationship to the
matters of public interest.” (Id. at p. 152.)5
       LaBeouf contends his celebrity status makes “his day to
day conduct ‘a public issue or an issue of public interest.’ ”
According to LaBeouf, since footage of him calling Bernstein a
racist and physically threatening Bernstein was disseminated on
the internet and on television, his conduct must involve a matter



5While FilmOn addressed the meaning of the phrase “in connection
with” as it is used in subdivision (e)(4) of section 425.16, we see no
reason why the same analysis should not apply when determining
whether a statement was made “in connection with” a public issue or a
matter of public interest for purposes of subdivision (e)(3) of section
425.16. (See People v. McCart (1982) 32 Cal.3d 338, 344 [“When a word
or phrase is repeated in a statute, it is normally presumed to have the
same meaning throughout.”].)




                                   9
of public interest under section 425.16, subdivision (e)(3) and (4).
We disagree.
       While courts have held the public’s interest in the life and
work of entertainers and other celebrities can create an issue of
public interest for purposes of section 425.16, subdivision (e) (see
Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 678), it
is the subject of the defendant’s speech or conduct that
determines whether an issue of public interest has been
implicated for purposes of anti-SLAPP protection. (See FilmOn,
supra, 7 Cal.5th at pp. 145–146.) The defendant’s celebrity
status, on its own, is not sufficient to render anything the
defendant says or does subject to anti-SLAPP protection. (Id. at
p. 152; see also D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226
(D.C.) [“No authority supports the [defendant’s] broad proposition
that anything said or written about a public figure or limited
public figure in a public forum involves a public issue.”].)
       Here, LaBeouf’s statements—calling Bernstein a “racist”—
were not directed at someone in the public eye. Nothing in the
record suggests that, prior to this incident, Bernstein was a
public figure or had been involved in any issue of public interest.
(See D.C., supra, 182 Cal.App.4th at p. 1229 [a bully’s threats of
bodily harm toward fellow student who maintained a website
promoting his musical career did not implicate a matter of public
interest because the subject of the speech—the fellow student—
was not a person in the public eye].)
       There is also no evidence that LaBeouf’s comments
addressed an ongoing controversy or an issue that had garnered
any public interest before LaBeouf lashed out at Bernstein.
Rather, the statements concerned an isolated dispute between a
bartender and an inebriated client over the bartender’s refusal to




                                10
serve the client alcohol at a restaurant. Indeed, as LaBeouf
concedes in his opening brief, the subject of his altercation with
Bernstein was “unremarkable and insignificant.” (See Albanese v.
Menounos (2013) 218 Cal.App.4th 923, 936 [“the focus of the
speaker’s conduct should be the public interest, not a private
controversy”].) Although footage of the altercation was later
disseminated to many people on the internet and television, a
private dispute does not become a matter of public interest
simply because it was widely communicated to the public.
(Weinberg, supra, 110 Cal.App.4th at p. 1133.)
       Moreover, the fact that LaBeouf used the word “racist”
when confronting Bernstein did not convert the statements into
the type of speech entitled to anti-SLAPP protection. It is obvious
from the circumstances surrounding LaBeouf’s statements that
they were not intended to further any public debate on the issue
of racism. Rather, the comments were merely part of LaBeouf’s
tantrum triggered by Bernstein’s refusal to serve him and Goth
alcohol. Nothing in the record shows Bernstein or any other
Jerry’s employee had been accused of engaging in racist behavior
in the past, and nothing in the video footage of the Jerry’s
incident supports an inference that Bernstein engaged in any
racist behavior before LaBeouf lost his temper. Indeed, in his
anti-SLAPP motion, LaBeouf admitted his statements were
“ ‘mere name calling.’ ” While racism is undoubtedly an issue of
public interest, a defendant cannot convert speech that would
otherwise not be entitled to anti-SLAPP protection into protected
activity by “defining the[] narrow dispute by its slight reference
to the broader public issue.” (FilmOn, supra, 7 Cal.5th at p. 152.)
In short, the “content of [LaBeouf’s] communication added




                                11
nothing to any public discourse or interest.” (D.C., supra, 182
Cal.App.4th at p. 1230, italics omitted.)
       This case is distinguishable from Hall v. Time Warner, Inc.
(2007) 153 Cal.App.4th 1337 (Hall), which LaBeouf relies on to
argue his statements are entitled to anti-SLAPP protection. Hall
arose out of the probate of Marlon Brando’s will following the
actor’s death. (Id. at pp. 1341–1344.) After “[a] petition for
probate of Brando’s will was filed in the Los Angeles Superior
Court,” the producers of a television program interviewed
Brando’s retired housekeeper, who was named as a beneficiary in
the will. (Id. at p. 1342.) After the interview was aired on
national television, the housekeeper sued the producers for,
among other things, elder abuse and intentional infliction of
emotional distress. (Id. at p. 1343.)
       The trial court in Hall denied the producers’ anti-SLAPP
motion, but the appellate court reversed. (Hall, supra, 153
Cal.App.4th at pp. 1344, 1346–1348.) The reviewing court held
the defendants’ conduct was protected under the anti-SLAPP
statute because it addressed matters of public interest: Brando’s
death and the probate of his will, which had garnered significant
national media attention in print and on television even before
the defendants aired the housekeeper’s interview. (Id. at p. 1342.)
Although the housekeeper did not volunteer to participate in the
interview or otherwise make public statements about Brando’s
will, the reviewing court held she “nevertheless became involved
in an issue of public interest by virtue of being named in Brando’s
will.” (Id. at p. 1347.) In other words, the housekeeper was a
figure of public interest because of her relationship to Brando and
the fact that she was a key figure in the probate of his will.




                                12
       To be sure, Hall and this case share some similarities: they
each involve a celebrity, and the underlying incidents attracted
the media’s and the public’s attention. But the similarities end
there. In Hall, the “subjects” of the defendants’ conduct—a
beneficiary of Brando’s will and the execution of that will—were
matters of public interest before the defendants recorded and
later aired their interview with Brando’s housekeeper. And, while
the reviewing court did not expressly rely on this fact in reaching
its decision, the dispute in Hall arose out of an ongoing judicial
proceeding: the probate of Brando’s will in the Los Angeles
Superior Court. Judicial proceedings, by definition, are matters of
public interest under the anti-SLAPP statute. (See § 425.16,
subd. (e)(2) [any statement made “in connection with” a “judicial
proceeding” is a “public issue” entitled to anti-SLAPP
protection].) LaBeouf’s conduct in this case, on the other hand,
involved a purely private dispute that only drew media attention
after it occurred.6
       In any event, even if Hall could be read to suggest that a
defendant’s celebrity status, by itself, converts an otherwise
private dispute involving that celebrity into a matter of public
interest, we would disagree with that holding. Hall was decided
more than 10 years before the Supreme Court decided FilmOn.
As we explained above, FilmOn makes clear that the social or
celebrity status of a party does not, without more, convert
anything that party says into a matter of public interest. Under
FilmOn, the focus of the “public interest” inquiry “must be on ‘the
specific nature of the speech,’ rather than on any ‘generalities


6We note that LaBeouf does not contend that Bernstein’s complaint
contains “mixed” causes of action. (Baral, supra, 1 Cal.5th at p. 395.)




                                   13
that might be abstracted from it,’ ” such as the fact that the
defendant “ ‘regularly injects himself in the public spotlight.’ ”
(FilmOn, supra, 7 Cal.5th at p. 152.)
      In sum, neither LaBeouf’s statements calling Bernstein a
“racist,” nor LaBeouf’s other conduct during the incident at
Jerry’s, involved a matter of public interest or concern. Rather,
LaBeouf’s statements stemmed out of an isolated dispute
between himself and Bernstein. The lower court, therefore,
properly denied LaBeouf’s anti-SLAPP motion.




                                 14
                        DISPOSITION

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




                                                     LAVIN, J.
WE CONCUR:



      EDMON, P. J.



      EGERTON, J.




                                15
Filed 12/6/19

                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                             DIVISION THREE


DAVID BERNSTEIN,                       B288054

       Plaintiff and Respondent,       Los Angeles County
                                       Super. Ct. No. BC663207
       v.
                                       Order Certifying Opinion
SHIA LABEOUF,
                                       for Publication
       Defendant and Appellant.        [NO CHANGE IN
                                       JUDGMENT]



BY THE COURT: *
       Respondent David Bernstein has requested that our
opinion in the above-entitled matter, filed November 19, 2019, be
certified for publication. It appears that our opinion meets the
standards set forth in California Rules of Court, rule 8.1105(c).
The opinion is ordered published in the Official Reports.




* EDMON,        P. J.           LAVIN, J.           EGERTON, J.
