Filed 5/21/20 Certified for Publication 6/19/20 (order attached)


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
           SECOND APPELLATE DISTRICT
                  DIVISION FOUR



RICHARD SIMMONS, et al.                                     B296220

       Plaintiffs and Respondents,                  (Los Angeles County
                                                    Super. Ct. No. BC708736)
               v.

BAUER MEDIA GROUP USA,
LLC,

       Defendant and Appellant.



     APPEAL from an order of the Superior Court of Los
Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
     Davis Wright Tremaine, Eric M. Stahl, Cydney Swofford
Freeman and Elizabeth A. McNamara, for Defendant and
Appellant.
     Johnson & Johnson, Neville L. Johnson and Ronald P.
Funnell for Plaintiffs and Respondents.
        Defendant and appellant Bauer Media Group USA, LLC,
an entertainment magazine publisher, appeals from the denial of
its special motion to strike the first amended complaint of
plaintiffs and respondents Richard Simmons and Teresa Reveles
(i.e., an anti-SLAPP motion under Code of Civil Procedure section
425.16.).1
        The well-known Simmons describes himself as “a health
and fitness guru, motivational life coach, comedian, and actor.”
Reveles is Simmons’s live-in caretaker. By driving him in her car,
Reveles also serves as Simmons’s “exclusive method of transport.”
Simmons and Reveles sued Bauer after discovering that Scott
Brian Mathews, a private detective hired by Bauer, unlawfully
attached an electronic tracking device to Reveles’s car. They also
sued Mathews and Mathews’s sole proprietorship, a detective
agency called LA Intelligence.2 Asserting Mathews’s use of the
tracking device was within the course and scope of his
employment by Bauer — something Bauer vehemently denies —
the first amended complaint alleges various causes of action
seeking a statutory penalty and damages arising from the use of
that device.
        We conclude Bauer failed to demonstrate the conduct at the
heart of the lawsuit — the unlawful use of the tracking device —
is, as Bauer contends, “conduct in furtherance of its exercise of
the right of free speech in connection with issues of public


1    Further statutory references are to the Code of Civil
Procedure unless otherwise indicated.

2    Neither Mathews nor LA Intelligence is a party to this
appeal.



                                   2
interest[.]” (See § 425.16, subd. (e)(4).) We therefore affirm the
denial of Bauer’s anti-SLAPP motion.

      FACTUAL AND PROCEDURAL BACKGROUND

      A.    Facts

       In 2014, Simmons suddenly withdrew from the spotlight
and has since intentionally avoided appearing in public. On April
18, 2017, Reveles drove Simmons to Cedars-Sinai Medical
Center, where he was admitted. Simmons was discharged from
the hospital on April 20, 2017. An extensive media presence
outside the hospital during his stay helped fuel speculation over
the reasons for his hospitalization.
       Bauer owned the tabloid In Touch Weekly at the time.3
Through the tabloid’s editor, Bauer hired Mathews and LA
Intelligence. On his website, Mathews advertises his agency’s
“primary” reliance on “surveillance” to “solve cases,” including
the “use [of] the most state-of-the-art video equipment and GPS
tracking devices.” Mathews’s invoice indicated the service he
provided to Bauer consisted of 12 hours of surveillance at Cedars-
Sinai Medical Center on April 18, 2017.
       Months later, an electronic tracking device, traceable to
Mathews, was found on Reveles’s car. The device had been
monitoring her travel since Simmons’s hospitalization. Mathews
was charged with two counts of unlawfully using an electronic
tracking device in violation of Penal Code section 637.7,




3     Bauer owned In Touch Weekly until the Fall of 2017.



                                     3
subdivision (a).4 He subsequently entered a negotiated plea of no
contest to two amended counts of vehicle tampering in violation
of Vehicle Code section 10852,5 and was placed on three years of
probation. The remaining counts were dismissed.

      B.    First Amended Complaint

      Simmons and Reveles filed a complaint against Mathews in
early June 2018 and a first amended complaint for six causes of
action in early July, adding LA Intelligence and Bauer as
defendants. The first amended complaint alleges Mathews is
personally liable and Bauer is vicariously liable for (1) violating
Penal Code section 637.7, pursuant to a private right of action
under Penal Code section 637.2, (2) invasion of privacy
(intrusion), (3) physical invasion of privacy in violation of Civil
Code section 1708.8, subdivision (b),6 (4) trespass and (5) trespass


4     Penal Code section 637.7 subdivision (a) provides: “No
person or entity in this state shall use an electronic tracking
device to determine the location or movement of a person.”

5     Vehicle Code section 10852 states, “No person shall either
individually or in association with one or more other persons,
willfully injure or tamper with any vehicle or the contents thereof
or break or remove any part of a vehicle without the consent of
the owner.”

6     Civil Code section 1708.8, subdivision (b) provides: “A
person is liable for constructive invasion of privacy when the
person attempts to capture, in a manner that is offensive to a
reasonable person, any type of visual image, sound recording, or
other physical impression of the plaintiff engaging in a private,
personal, or familial activity, through the use of any device,



                                    4
to chattels. A sixth cause of action asserts Bauer is liable for the
negligent hiring and supervision of Mathews. The unlawful
placement and use of the tracking device is the conduct forming
the gravamen of each cause of action.

      C.    Anti-SLAPP Motion and Trial Court’s Ruling

       Bauer filed a special motion to strike the first amended
complaint in its entirety under the anti-SLAPP statute. In its
anti-SLAPP motion, Bauer argued (1) the causes of action in the
first amended complaint are issues of public interest and
protected under section 426.15 because they “arise solely from its
newsgathering conduct related to celebrity fitness guru Richard
Simmons’ [sic] abrupt and well-publicized retreat from public
view in 2014, and his subsequent hospitalization in 2017”; (2)
Mathews acted as an independent contractor when he unlawfully
deployed the tracking device without Bauer’s knowledge and
consent; and (3) Bauer had no reason to suspect Mathews would
engage in such conduct.
       In support of the motion, Bauer submitted declarations of
Mathews and Chris Myers, the former editor of In Touch Weekly,
who hired Mathews. Both stated Mathews’s only assignment was
to photograph Simmons leaving Cedars-Sinai Medical Center on
April 18, 2017 for a potential news story; no photographs were
taken; and no one at Bauer or In Touch Weekly told Mathews to
attach an electronic tracking device to Reveles’s car. Meyers also



regardless of whether there is a physical trespass, if this image,
sound recording, or other physical impression could not have
been achieved without a trespass unless the device was used.”



                                     5
declared In Touch Weekly elected not to print a story about
Simmons’s hospitalization.
      In opposition to the motion, Simmons and Reveles argued
(1) Bauer’s and Mathews’s violation of Penal Code section 637.7
gave rise to the six causes of action, and this unlawful
misconduct is not protected under section 425.16; (2) Bauer is
vicariously liable for the intentional tortious acts committed by
Mathews; and (3) Bauer’s negligence in hiring and supervising
Mathews is a question of fact for the jury.
      The trial court denied the anti-SLAPP motion. Bauer filed
a timely notice of appeal.

                          DISCUSSION

      A.    Anti-SLAPP Statute and Standard of Review

      A SLAPP suit “seeks to chill or punish a party’s exercise of
constitutional rights to free speech and to petition the
government for redress of grievances. [Citation.]” (Rusheen v.
Cohen (2006) 37 Cal.4th 1048, 1055.) “The Legislature enacted
[Code of Civil Procedure] section 425.16,” known as the anti-
SLAPP statute, to provide “for the early dismissal of
unmeritorious claims filed to interfere with the valid exercise of
the constitutional rights of freedom of speech and petition for the
redress of grievances.” (Club Members for an Honest Election v.
Sierra Club (2008) 45 Cal.4th 309, 315-316.) The statute is to “be
construed broadly.” (§ 425.16, subd. (a).)
      Section 425.16 identifies four categories of protected
conduct. The fourth or catch-all category, at issue here, is
“conduct in furtherance of the exercise of the constitutional right




                                    6
of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest.” (§ 425.16, subd.
(e)(4).)
    “We review de novo a trial court’s decision on an anti-SLAPP
motion. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781,
788 [249 Cal.Rptr.3d 295, 444 P.3d 97].) The anti-SLAPP statute
requires a two-step process: ‘At the first step, the moving
defendant bears the burden of identifying all allegations of
protected activity, and the claims for relief supported by
them . . . . If the court determines that relief is sought based on
allegations arising from activity protected by the statute, the
second step is reached. There, the burden shifts to the plaintiff to
demonstrate that each challenged claim based on protected
activity is legally sufficient and factually substantiated. The
court, without resolving evidentiary conflicts, must determine
whether the plaintiff’s showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment. If not, the
claim is stricken.’ (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 [205
Cal. Rptr. 3d 475, 376 P.3d 604] . . . .) In making these
determinations the court considers ‘the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability
or defense is based.’ (§ 425.16, subd. (b)(2).)” (Briganti v. Chow
(2019) 42 Cal.App.5th 504, 508.)




                                     7
      B.    The First Amended Complaint Does Not Fall
            Within the Anti-SLAPP Statute

      Bauer contends it is entitled to protection under the anti-
SLAPP statute because the first amended complaint arises from
Bauer’s conduct in furtherance of the right to report the news.
According to Bauer, hiring an independent contractor to
photograph Simmons for a potential news story constitutes
“‘conduct in furtherance of the exercise of . . . the constitutional
right of free speech in connection with an issue of public
interest[,]’” namely, a celebrity’s hospitalization following his
well-publicized disappearance from public life.
      Bauer reasons it is entitled to the same protection under
section 426.15 that has been afforded other media defendants. To
support this reasoning, Bauer relies principally on this court’s
decision in in Lieberman v. KCOP Television, Inc. (2003) 110
Cal.App.4th 156 (Lieberman) as “squarely on point.” In
Lieberman, the plaintiff sued a television network for violating
Penal Code section 632, after it aired a news report based on
secret audio recording excerpts identifying him as a physician
who improperly prescribed controlled substances. (Id. at p. 161.)
Penal Code section 632 prohibits the surreptitious recording of
confidential communications without the parties’ consent. The
plaintiff alleged the audio recordings were unlawfully made
without his knowledge or consent during office visits with
network personnel or agents posing as patients. (Id. at pp. 161-
162.) A different panel of this court concluded that issuing
prescriptions for controlled substances for a nonmedical purpose




                                    8
was an issue of great public interest. (Id. at pp. 164-165.) Because
the purportedly unlawful audio recordings furthered free speech
rights by assisting the reporting of this news, the physician’s
complaint fell within the scope of section 425.16. (Id at p. 165.)
       Bauer maintains because the first amended complaint “is
rooted” in its newsgathering activity, Simmons and Reveles
“cannot strip Bauer of anti-SLAPP protection simply by labeling
the activity ‘illegal.’” Accordingly, Bauer concludes, the trial court
erroneously determined it failed to make the threshold showing
under section 425.16 to shift the burden to Simmons and Reveles
to show a probability of prevailing on their causes of action.
       It is beyond dispute that reporting the news is an exercise
of free speech. (See, e.g. Phila. Newspapers v. Hepps (1986) 475
U.S. 767, 775-776 [89 L.Ed.2d 783, 792, 106 S.Ct.1558, 1563]
[newspaper articles equated with free speech]; Joseph Burstyn. v.

Wilson (1952) 343 U.S. 495, 501 [96 L.Ed.1098, 1106, 72 S.Ct.
777, 780]) [newspapers characterized as a form of “expression”];
Lieberman, supra, 110 Cal.App.4th at p. 165 [reporting the news
qualifies as free speech].) California courts have also held pre-
and post-reporting conduct, such as investigating,
newsgathering, writing, and interviewing is conduct in
furtherance of free speech. (See, Tamkin v. CBS Broadcasting,
Inc. (2011) 193 Cal.App.4th 133, 143 [“An act is in furtherance of
the right of free speech if the act helps to advance that right or
assists in the exercise of that right;” holding writer’s use of
plaintiffs’ names in a television show’s draft script qualified as
protected conduct because it “helped to advance or assist in the
creation, casting, and broadcasting of an episode of a popular
television show”]; Hunter v. CBS Broadcasting, Inc. (2013) 221
Cal.App.4th 1510, 1521 [Network’s selections of weather anchors,




                                     9
essentially casting decisions, helped advance or assist freedom of
speech and were thus protected conduct].) As in Lieberman,
courts have held defendants may satisfy the showing they were
engaged in conduct in furtherance of free speech under section
426.15, even when their conduct was allegedly unlawful. (See
Taus v. Loftus (2007) 40 Cal.4th 683, 713, 727-732 [holding that
defendants’ investigation, including an interview that was
allegedly fraudulently obtained, constituted protected activity];
Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1342,
1347 [same].)
        The issue here is whether the first amended complaint
takes aim at activity by Bauer in furtherance of its free speech
rights. The anti-SLAPP statue applies “only if the speech or
petitioning activity itself is the wrong complained of, and not
just . . . a step leading to some different act for which liability is
asserted.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1060 (Park).) As noted, Bauer
characterizes its protected activity as “newsgathering,” by
“engaging an independent contractor to take news photographs”
of a celebrity for a potential news story. But resolving an anti-
SLAPP motion requires courts to “consider the elements of the
challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.” (Park,
supra, 2 Cal.5th at p. 1063.) Our examination of each of the
pleaded theories of liability reveal none of the causes of action
asserted against Bauer arise from Bauer’s or In Touch Weekly’s
mere hiring of Mathews to photograph Simmons outside Cedars-
Sinai Medical Center on April 17, 2018. (See Id. at p.1063 [“A
claim arises from protected activity when that activity underlies
or forms the basis for the claim [Citations]”].) Thus, to the extent




                                     10
the newsgathering activity claimed by Bauer qualifies for first
amendment protection, this lawsuit does not chill it.
      All six causes of action do arise, however, from Bauer’s
purported involvement in Mathews’s illegal use of an electronic
tracking device, as “the wrong complained of[.]” (See Park, supra
2 Cal.5th at p. 1060.) Bauer does not contend Mathews’s use of
the device was lawful; rather it steadfastly denies knowing about,
consenting to, directing, or participating in the alleged activity.
Thus, Bauer’s argument that it is entitled to the same first
amendment protection as the defendant in Lieberman, supra, 110
Cal.App.4th 156, is a red herring. Unlike Bauer, the defendants
in Lieberman and similar cases did not deny participation in the
purported wrongdoing; instead, they asserted it was protected
conduct in furtherance of free speech as defined by section
416.15, assertions with which the appellate courts agreed.
(Lieberman, supra, 110 Cal.App4th at pp. 165-166, Taus v.
Loftus, supra, 40 Cal.4th at pp. 713; Hall v. Time Warner, Inc.,
supra, 153 Cal.App.4th at p. 1342.)
      In Flatley v. Mauro (2009) 39 Cal.4th 299, 313 (Flatley), our
Supreme Court noted the “purpose of section 425.16 is to prevent
the chilling of the ‘valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances’ by
‘the abuse of the judicial process.’ (§ 425.16, subd. (a).)” But, as
the court pointed out, “[a]s a necessary corollary to this
statement, because not all speech or petition activity is
constitutionally protected, not all speech or petition activity is
protected by section 425.16.” (Flatley, supra, 39 Cal.4th at p.
313.)
      In particular, “section 425.16 cannot be invoked by a
defendant whose assertedly protected activity is illegal as a




                                   11
matter of law and, for that reason, not protected by constitutional
guarantees of free speech and petition.” 7 (Flatley, supra, 39
Cal.4th at p. 317; see also, Novartis Vaccines & Diagnostics, Inc.
v. Stop Huntington Animal Cruelty USA, Inc. (2006) 143
Cal.App.4th 1284, 1288,1300 [individual animal rights’ activists
terrifying “home visits” of biopharmaceutical employees — in
which their windows were broken and cars vandalized — were
illegal activities as a matter of law].) Nor can it be invoked by a
defendant who is alleged to be vicariously liable for unprotected
illegal or tortious activity. (See Spencer v. Mowat (2020) 46
Cal.App.5th 1024, 1037-1040.) The Flatley court noted “[a]
contrary rule would be inconsistent with the purpose of the anti-
SLAPP statute as revealed by its language. [Citation.]” (Flatley,
supra, 39 Cal.4th at p. 317) In fact, “it would eviscerate the first
step of the two-step inquiry set forth in the statute if the
defendant’s mere assertion that his underlying activity was
constitutionally protected sufficed to shift the burden to the
plaintiff to establish a probability of prevailing where it could be
conclusively shown that the defendant’s underlying activity was
illegal and not constitutionally protected.” (Ibid.) The court
therefore concluded “that where a defendant brings a motion to
strike under section 425.16 based on a claim that the plaintiff’s
action arises from activity by the defendant in furtherance of the

7      Although the Supreme Court has not yet clarified the outer
bounds of what activity is “illegal as a matter of law,” our
colleagues in Division Eight concluded Flatley’s “use of the phrase
‘illegal’ was intended to mean criminal, and not merely violative
of a statute.” (Mendoza v. ADP Screening and Selection Services,
Inc. (2010) 182 Cal.App.4th 1644, 1654; accord Finton
Construction Inc. v. Bidna & Keys APLC (2015) 238 Cal.App.4th
200, 210; Freemont Reorganizing Corp. v. Faigin (2011) 198
Cal.App.4th 1153, 1169.)



                                    12
defendant’s exercise of protected speech or petition rights, but
either the defendant concedes, or the evidence conclusively
establishes, that the assertedly protected speech or petition
activity was illegal as a matter of law, the defendant is precluded
from using the anti-SLAPP statute to strike the plaintiff’s
action.” (Flatley, supra, 39 Cal.4th at p. 320)
       Here, Bauer concedes Mathews’s placement and use of the
tracking device was illegal and not protected speech. But it
insists it merely hired Mathews to take photographs, not
illegally place a tracking device. That assertion, however,
contradicts allegations in the first amended complaint that Bauer
hired Mathews and LA Intelligence both to stake out the hospital
during Simmons’s visit and to track and report on Simmons’s
whereabouts, making Bauer vicariously liable for their torts. This
factual dispute goes to the merits of plaintiffs’ claims and is not
relevant to the first prong of the anti-SLAPP inquiry. (See Malin
v. Singer (2013) 217 Cal.App.4th 1283, 1304, quoting Gerbosi v.
Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435,
446 [“Even if we were to accept [the defendants’] assertion that
they are innocent of the criminal computer hacking and
wiretapping allegations, their claim is ‘more suited to the second
step of an anti-SLAPP motion. A showing that a defendant did
not do an alleged activity is not a showing that the alleged
activity is a protected activity’”].) Because Bauer’s alleged
conduct in the first amended complaint falls outside the
protections of the First Amendment and the bounds of section
426.15, the trial court properly denied the anti-SLAPP motion.




                                   13
                       DISPOSITION

     The order denying the special motion to strike the first
amended complaint under section 426.15 is affirmed.
Respondents Simmons and Reveles are to recover their costs on
appeal.



                                  CURREY, J.

We concur:




     MANELLA, P.J.




     WILLHITE, J.




                                 14
Filed 6/19/20



                            CERTIFICATION FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                      DIVISION FOUR



RICHARD SIMMONS, et al.,                         B296220
                                                 (Los Angeles County
                 Plaintiffs and Appellants,      Super. Ct. No. BC708736)

v.                                               ORDER CERTIFYING
                                                 OPINION FOR PUBLICATION
BAUER MEDIA GROUP USA, LLC,
                                                 [NO CHANGE IN JUDGMENT]
                Defendant and Respondent.


THE COURT:*
        The opinion in the above-entitled matter, filed on May 21, 2020, was not
certified for publication in the Official Reports. For good cause it now appears that
the opinion should be certified for publication in its entirety in the Official Reports
and it is so ordered.
        There is no change in judgment.




__________________________________________________________________
* CURREY, J.,                         MANELLA, P.J.,               WILLHITE, J.
