Filed 4/22/15 Kardashian v. Hurley CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


KIM KARDASHIAN et al.,                                               B255440

         Plaintiffs and Respondents,                                 (Los Angeles County
                                                                     Super. Ct. No. BC526333)
         v.

CHAD MEREDITH HURLEY et al.,

         Defendants and Appellants.




         APPEAL from an order of the Superior Court of Los Angeles County. Ruth Ann
Kwan, Judge. Affirmed.


         Fenwick & West, Rodger R. Cole, Songmee L. Connolly, Jennifer J. Johnson and
Ciara N. Mittan, for Defendants and Appellants.


         Browne George Ross, Eric M. George, Russell F. Wolpert and Elena Nutenko for
Plaintiffs and Respondents.


                          _________________________________________
       Chad Hurley and AVOS Systems, Inc. (Appellants) appeal from the denial of their
special motion to strike under the anti-SLAPP statute, Code of Civil Procedure section
425.16.1 Appellants sought to strike a complaint filed against them by Kanye West and
Kim Kardashian (Respondents) for broadcasting a video of West’s marriage proposal to
Kardashian in violation of a confidentiality provision. We affirm.
                                         FACTS
       West and Kardashian are well-known personalities in the entertainment industry.
Among other things, West is a musician and Kardashian stars in a television program
called Keeping Up with the Kardashians. Their relationship has been extensively
chronicled by the press. West proposed to Kardashian at AT&T Park in San Francisco on
October 21, 2013, during her birthday party. Hurley was one of several dozen guests in
attendance. Although he was not personally invited, Hurley was admitted as the guest of
someone who was invited. Hurley cofounded Youtube and is currently the CEO of
AVOS Systems, Inc., dba MixBit (MixBit). MixBit is a collaborative video application
that allows people to download videos taken on their phones, edit them, and splice them.
Hurley videotaped the event on his phone and downloaded a two and one-half minute
edited video to MixBit the day after the event. At approximately 6:00 p.m. on October
22, 2013, Hurley sent a congratulatory tweet to Respondents which included a link to his
video on MixBit. Hurley’s video garnered considerable attention from the media and the
public. The video remained on MixBit until November 11, 2013, when it was taken
down pursuant to Respondents’ request. Footage of the proposal and the party aired on
Keeping Up with the Kardashians on February 16, 2014.
       Respondents brought suit against Appellants on October 31, 2013, for breach of
contract, fraud, and unjust enrichment. The lawsuit was based in large part on a
“Celebrity Appearance Release” signed by Hurley. Hurley was asked to sign the release
after West proposed to Kardashian, but prior to leaving the event several hours later.
The release is a one-page document allowing M Cable Television and its “respective

1
       All further section references are to the Code of Civil Procedure unless otherwise
specified.

                                             2
parents, affiliates, subsidiaries, licensees, successors and assigns” to broadcast Hurley’s
image. It also reserved the exclusive right to broadcast and make use of the event.
       To that end, the release contained a confidentiality provision, which stated:
       “CONFIDENTIALITY I acknowledge and agree that any and all information
disclosed to or obtained by myself concerning or relating to the Program,[2] including but
not limited to the premise and concept of the Program, the nature of certain events in the
Program, my appearance in the Program as well as the activities occurring in connection
with the Program and the outcome of the Program (collectively, the ‘Confidential
Information’), shall be strictly confidential, and I hereby agree not to disclose any such
Confidential Information to any individual or entity. I acknowledge and agree that any
disclosure of such Confidential Information is in violation of this agreement and shall
constitute a material breach of this agreement and shall cause Producer and its
employees, contractors, agents, licensees and assigns irreparable injury. I further agree
that in the event of any disclosure by myself in violation of this agreement, I shall be
liable to Producer and its employees, contractors, agents, licensees and assigns, and I
agree that Producer and its employees, contractors, agents, licensees and assigns shall
have the right to utilize all available remedies in law or equity, including both financial
and injunctive relief, to seek retribution for any breach of this confidentiality provision.
I expressly agree that Producer and its employees, contractors, agents, licensees and
assigns shall be entitled to any and all relief available to Producer and broadcasters as
reasonable compensation for the significant harm which will be incurred by Producer and
its employees, contractors, agents, licensees and assigns as a result of any such disclosure
and/or breach of this agreement by myself.”
       The release permitted the production company to assign its rights under the
release, which it did, to Respondents.



2
      “Program” was defined in the release as “the program currently entitled ‘Keeping
Up with the Kardashians’ and/or any related programming (e.g. ‘Kourtney & Kim Take
Miami,’ ‘Khloe & Lamar’) and/or any other title it may hereafter be called . . . .”

                                              3
       The Anti-SLAPP Motion
       Appellants filed a special motion to strike the complaint under the anti-SLAPP
statute.3 (§ 425.16.) Among other things, Appellants argued there was no consideration
offered to Hurley in exchange for the release and the claims against AVOS were
meritless since the contract was between Hurley individually and M Cable Television.
In support, Hurley submitted a declaration asserting he did not attend the event as a
representative of AVOS. He further stated he did not read the release and was never told
nor asked not to publish anything from the event or that he would have to leave if he
refused to sign the document. Hurley also submitted evidence that multiple individuals
tweeted about the marriage proposal and other photographs and videos of the event were
broadcast through multiple media outlets. In particular, Kardashian tweeted the news at
8:41 a.m. on October 22, 2013. This was retweeted 10,731 times.
       In opposition to the anti-SLAPP motion, Kardashian submitted a declaration
stating she did not see any video images of the proposal on the internet prior to Hurley’s,
“even though . . . [she] specifically checked.” Kardashian admitted other guests recorded
images for their own personal use, which was not prohibited by the release. However,
the tweets and a small number of snapshot photos of the event published by others varied
markedly from Hurley’s video: “Mr. Hurley’s posting was an audiovisual recording
lasting approximately two and a half minutes, and it included spliced videos of the
marriage proposal as well as other highlights of the evening. Therefore, it is entirely
false to suggest that Mr. Hurley’s publications followed similar broadcasts, or that they
were all comparable. There is no similarity whatsoever between a written email or tweet,
or a brief and isolated image, on the one hand, and a several minute long video recording
including the actual proposal, on the other.”


3
        Appellants also sought attorney fees in connection with their motion.
Their request for fees was denied and they do not contend that ruling was erroneous.
Respondents also sought fees on the ground the anti-SLAPP motion was frivolous and
filed to cause unnecessary delay. That request was also denied and Respondents have not
appealed from that order.

                                                4
       Respondents also submitted a declaration from a marketing expert who opined
MixBit benefitted from the exposure it received after Hurley posted the video. In
particular, MixBit received in excess of 1.5 million hits after it was posted and various
media outlets provided links in their stories to MixBit’s website.
       Appellants’ motion was denied by the trial court on March 18, 2014. The court
found the causes of action arose from protected activity, but that Respondents had
demonstrated a probability of prevailing. Hurley timely appealed.
                                       DISCUSSION
I.     Applicable Law
       A strategic lawsuit against public participation, known as a SLAPP suit, seeks to
chill or punish a party’s exercise of his constitutional rights to free speech and to petition
the government for redress of his grievances. Section 425.16 provides for the early
dismissal of SLAPP suits by means of a special motion to strike, known as an anti-
SLAPP motion. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen); § 425.16,
subd. (b)(1).) A trial court utilizes a two-step process to determine whether an action is a
SLAPP suit subject to an anti-SLAPP motion. “First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is one arising
from protected activity. (§ 425.16, subd. (b)(1).) . . . If the court finds that such a
showing has been made, it must then determine whether the plaintiff has demonstrated a
probability of prevailing on the claim. (§ 425.16, subd. (b)(1); [citation].)” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 88.)
       To demonstrate a probability of prevailing, a plaintiff must “ ‘ “state[] and
substantiate[] a legally sufficient claim.” [Citation.] “Put another way, the plaintiff
‘must demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.’ ” [Citation.]’ [Citation.]” (Zamos v. Stroud
(2004) 32 Cal.4th 958, 965.) “In deciding the question of potential merit, the trial court
considers the pleadings and evidentiary submissions of both the plaintiff and the
defendant [citation]; though the court does not weigh the credibility or comparative

                                               5
probative strength of competing evidence, it should grant the motion if, as a matter of
law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to
establish evidentiary support for the claim. [Citation.]” (Wilson v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811, 821.)
       This is the same standard of review that is used when determining motions for
nonsuit, for directed verdicts, or for summary judgment. (M.G. v. Time Warner, Inc.
(2001) 89 Cal.App.4th 623, 630.) “If the plaintiff ‘can show a probability of prevailing
on any part of its claim, the cause of action is not meritless’ and will not be stricken;
‘once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff
has established that its cause of action has some merit and the entire cause of action
stands.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis West
Realty) quoting Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106,
original italics.) The showing that a plaintiff is required to make on the second prong is
“not high” and need only demonstrate a “minimum level of legal sufficiency and
triability.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688,
699.) A court of appeal reviews a trial court’s denial of an anti-SLAPP motion de novo.
(Rusheen, supra, 37 Cal.4th at p. 1048, 1055; HMS Capital Inc. v. Lawyers Title Co.
(2004) 118 Cal.App.4th 204, 212.)
       In this opinion, we need only address the second prong of the anti-SLAPP analysis
because there appears to be no dispute that the first prong has been fulfilled. Certainly,
Respondents have not appealed the trial court’s ruling that Appellants met their burden to
show the causes of action arose from protected activity. In any case, we affirm the trial
court’s ruling in its entirety. Respondents have met their burden to show a probability of
prevailing by presenting a prima facie claim for breach of contract, fraud, and unjust
enrichment.
II.    Breach of Contract
       This seems to us to be a fairly straightforward cause of action involving the
potential violation of a confidentiality clause. Respondents allege Appellants breached
the confidentiality provision of the release by revealing confidential information without

                                              6
permission. The elements of a cause of action for breach of contract are (1) the existence
of the contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the
defendant’s breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty,
supra, 51 Cal.4th at p. 821.) Respondents submitted evidence that Hurley signed the
release and that it contains a confidentiality clause restricting Hurley from disclosing any
confidential information about events and activities relating to the television program,
Keeping Up with the Kardashians. Respondents also showed Hurley posted his video of
the marriage proposal and the surrounding festivities the day following the event.
Further, Plaintiff’s expert discussed how Hurley’s publication of the video prior to
Respondents’ own broadcast usurped their exclusive rights to publicize the event, causing
them harm. This is sufficient to establish a prima facie claim for breach of contract.
        Appellants contend Respondents have not met their burden because the breach of
contract action has nothing to do with AVOS as Hurley was not representing AVOS at
the event. They also dispute the contract’s enforceability against Hurley as an individual,
contending no consideration was given to Hurley in exchange for signing the release.
Even if the contract were enforceable against Hurley, he alternatively claims he did not
breach it because the video he posted did not constitute “confidential information” as
defined under the release. Appellants’ contentions as to the enforceability of the release
against Hurley are specious and lack merit.
        “A written instrument is presumptive evidence of consideration.” (Civil Code,
§ 1614.) Moreover, signing the release gave Hurley the opportunity to appear in Keeping
Up with the Kardashians and the opportunity to remain at the party. Respondents
submitted evidence that Hurley would have been asked to leave if he refused to sign the
release. This is sufficient evidence of consideration—the proverbial “peppercorn”—to
surmount the relatively low hurdle of establishing a prima facie case. (San Diego City
Firefighters, Local 145 v. Board of Administration Etc. (2012) 206 Cal.App.4th 594,
619.)




                                              7
       Hurley’s next argument—that he did not post “confidential information” as
defined under the release—is similarly lacking in merit. Confidential information is
broadly defined in the release as “any and all information” relating to Keeping Up with
the Kardashians and its offshoots. Hurley acknowledged that he “agreed to sign the
release for use of [his] image” in any future episode of Keeping Up with the Kardashians
or its offshoots. In fact, Hurley appeared in the background on the program when the
proposal aired on February 16, 2014. A professional film crew was present to film the
event and was visible to everyone in attendance. Given these circumstances, a reasonable
interpretation of the phrase “confidential information” could include the events filmed
and published by Hurley. Hurley’s attempt to define the phrase “confidential
information” differently should be reserved for later proceedings. At this stage,
Respondents have presented a legally sufficient showing to sustain a favorable judgment
if the evidence they have submitted is credited.
       The harder question is whether Respondents have established a prima facie case
against AVOS for breach of contract since Hurley’s signature on the release does not
indicate he signed it as a representative of AVOS. Hurley stated in his declaration he did
not attend the event as a representative of AVOS. Hurley’s declaration, however, does
not defeat Respondents’ claim against AVOS as a matter of law. This is because whether
someone is acting on behalf of a company is a question of fact. (Pacific Concrete
Products Corp. v. Dimmick (1955) 136 Cal.App.2d 834, 838.)
       Respondents allege in their complaint and submitted evidence that Hurley needed
publicity for his foundering new venture, and he used his video of the proposal to
promote MixBit. Hurley sent a congratulatory tweet to Kardashian and West with a link
to the MixBit video from the same Twitter account he used to dispute a news article
about MixBit. Moreover, Hurley’s apology to Kardashian and West after he learned they
were upset about the video was sent from his email address at AVOS. A magazine article
indicated a press release had been issued describing the video clip and the article quoted
from the press release. The article did not mention whether AVOS issued the press
release, but it did note that “Hurley uploaded the video on his new video collatorative

                                             8
app, MixBit.” Hurley also chose to post the video on MixBit, rather than on any personal
accounts on Facebook, Vine, or Youtube. As the CEO of AVOS, Hurley was
“ ‘ “something more than an agent. He is the representative of the corporation itself.” ’ ”
(Jeppi v. Brockman Holding Co. (1949) 34 Cal.2d 11, 17.) From the record, it can
reasonably be inferred that Hurley acted on behalf of AVOS. Hurley’s statement to the
contrary is merely evidence to be weighed by a jury at trial, not by the trial court in
judging an anti-SLAPP motion. (Fremont Reorganizing Corp. v. Faigin (2011)
198 Cal.App.4th 1153, 1176.)
III.   Fraud
       Respondents’ fraud claim rests on the theory Hurley had no intention of abiding
by the confidentiality provision at the time he signed the release. To adequately state
such a cause of action, Respondents were required to allege Hurley made a promise
regarding a material fact without any intention of performing it at the time he made the
promise, they reasonably relied on the promise, and they were injured. (Regus v.
Schartkoff (1957) 156 Cal.App.2d 382, 389.) Respondents made a prima facie showing
of fraud by submitting evidence that Hurley signed the release, they allowed him to
remain at the party and appear in Keeping Up with the Kardashians, he published the
video and publicized it very soon after the event, and they were harmed as a result.
       Appellants attempt to defeat Respondents’ fraud claim on three grounds:
(1) Respondents did not rely on any promise made to them; (2) Hurley lacked any
fraudulent intent—he did not read the contract and had no knowledge of any purported
confidentiality obligation; (3) Respondents lacked reasonable reliance because Hurley
had already taken the video before he was asked to sign the release. We find none of
these arguments persuasive.
       Hurley contends, “[t]he record does not reflect that [Respondents] read or relied
on the Release that evening or before his posting . . . [¶] . . . the record fails to identify
anyone at E! who actually read or relied on the signed Release to his or her detriment. . . .
Instead, the trial court again relied on the mere existence of a purported assignment to
erroneously presume a viable fraud claim was stated.” This argument is baseless.

                                                9
Hurley represented he would keep confidential certain information about the event to the
production company, which then assigned its rights to Respondents.4 It is well
established the right to recovery by a fraud action may be assigned. (American Trust Co.
v. California Western States Life Ins. Co. (1940) 15 Cal.2d 42, 67.) Respondents
presented evidence that, in reliance on Hurley’s compliance, Respondents allowed him to
stay at the party and broadcast his image in the episode of Keeping Up with the
Kardashians featuring the proposal. That is sufficient evidence of reliance for our
purposes.
       Hurley next contends there was no evidence of fraudulent intent because it is
“uncontroverted” he failed to read the contract and was unaware of the confidentiality
provision. Thus, “it is impossible for Mr. Hurley to have had the requisite present intent
not to perform.” Not so. Fraudulent intent may be inferred from circumstances
surrounding the transaction, including the relationship and interests of the parties, any
change in circumstances, and the time between the promise to perform and its
repudiation. (Tenzer v. Superscope (1985) 39 Cal.3d 18, 30; Fross v. Wotton (1935)
3 Cal.2d 384, 393.) Here, Respondents have shown that Hurley’s new venture, MixBit,
was not doing well, he posted the video on MixBit, which provided it with significant
publicity, and he did so within hours of leaving the event. A jury may reasonably infer
fraudulent intent from these circumstances.
       Appellants lastly contend Hurley signed the release after he had already recorded
the proposal. Thus, he could have recorded the event, published his video, and left the
event without ever signing the release. Alternatively, Hurley could have refused to sign
the release and posted his video. According to Appellants, this shows Respondents
cannot establish any reliance that caused their alleged damages. Appellants’ speculation
does not defeat Respondents’ fraud claim as a matter of law. Hurley signed the release
and, as discussed in detail above, Respondents relied on the promises he made under the
release. In any event, we agree with Respondents that it is a question of fact as to


4
       For purposes of this appeal, Appellants concede the assignment is valid.

                                              10
whether their damages would have been the same had Hurley left early and posted a
different video on MixBit, one that did not include any of the after-proposal toasts and
celebrations.
IV.    Unjust Enrichment
       Appellants argue Respondents’ claim for unjust enrichment fails for the same
reasons their breach of contract and fraud claims fail. Because we find Respondents have
established a prima facie claim for fraud and breach of contract for purposes of an anti-
SLAPP motion, they have also established a prima facie case for unjust enrichment.
“ ‘The elements for a claim of unjust enrichment are “receipt of a benefit and unjust
retention of the benefit at the expense of another.” ’ ” (Lyles v. Sangadeo-Patel (2014)
225 Cal.App.4th 759, 769.) Respondents submitted evidence that AVOS and Hurley
unjustly received the benefit of publicity at Respondents’ expense by breaching the terms
of the release and fraudulently promising to abide by its terms without the intention of
performing.
                                     DISPOSITION
       The order denying Appellant’s anti-SLAPP motion is affirmed. Respondents to
recover their costs on appeal.



                                                        BIGELOW, P.J.
We concur:


                     RUBIN, J.




                     FLIER, J.




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