Filed 11/20/13 Agate v. IMG Worldwide CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



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

JAMES AGATE,                                                            B243636

                   Plaintiff and Appellant,                             (Los Angeles County
                                                                        Super. Ct. No. BC455630)
         v.

IMG WORLDWIDE, INC., et al.,

                   Defendants and Respondents.




         APPEAL from an order of the Superior Court of Los Angeles County. Ronald M.
Sohigian, Judge. Affirmed.


         The Aftergood Law Firm and Aaron D. Aftergood for Plaintiff and Appellant.


         Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Susan K. Leader, and Jessica
M. Weisel; Mark J. MacDougall for Defendants and Respondents.
       Plaintiff and appellant James Agate (Agate) appeals from the trial court’s order
granting a special motion to strike, pursuant Code of Civil Procedure section 425.16,1 all
of the causes of action asserted against defendants and respondents Theodore Forstmann
(Forstmann) and International Management Group (IMG) (collectively “defendants”) in
Agate’s complaint seeking damages for slander. We affirm the trial court’s order.
                                    BACKGROUND
The parties
       IMG is an international sports and media business that owns and manages large-
scale sporting events and represents athletes, fashion models, celebrities, corporations,
and sports organizations. IMG employs nearly 3,000 people and operates in
approximately 30 countries.
       Forstmann was IMG’s chairman and CEO. He was also a founding partner of the
private equity firm Forstmann Little, which has bought and sold companies such as
Gulfstream Aerospace, General Instrument, and Topps. Forstmann Little owns 24 Hour
Fitness. Forstmann died in November 2011 after a lengthy illness. Kathleen Broderick,
Margot McGinniss, and Bessemer Trust Company, N.A., the representatives of his estate,
were substituted as defendants in his place.
       Agate is an individual who resides in Las Vegas, Nevada. He was the owner of
Agate Printing, a printing business, and had a long personal relationship with Forstmann.
History of litigation between Agate and Forstmann
       In February 2008, Agate sued Forstmann and 24 Hour Fitness alleging breach of
an oral agreement concerning printing services for 24 Hour Fitness, in Agate v.
Forstmann, Los Angeles Superior Court case No. BC386431 (Agate I). After the
superior court sustained, with leave to amend, the defendants’ demurrer to the complaint,
Agate voluntarily dismissed Agate I in August 2008.
       Despite the dismissal, Forstmann entered into a confidential settlement agreement
with Agate in April 2009 to resolve the claims in Agate I. After Agate received the final

1     All further statutory references are to the Code of Civil Procedure, unless
otherwise stated. A special motion to strike is also referred as an anti-SLAPP motion.

                                               2
payment under the settlement agreement, he wrote to Forstmann demanding more money.
When Forstmann refused to pay, Agate filed another lawsuit on September 2, 2010,
against Forstmann, IMG, 24 Hour Fitness, and Kirkland & Ellis, LLP, in a case captioned
Agate Printing, Inc. v. Forstmann, et al., Los Angeles Superior Court case No.
BC444880 (Agate II).
       In October 2010, Agate amended the Agate II complaint to include inflammatory
allegations, including allegations that Forstmann had used Agate “as a betting conduit”
for “Forstmann’s aggressive betting on and against athletes represented by IMG and
events owned or controlled by IMG,” including a wager based on “inside information” on
a tennis match between Roger Federer and Rafael Nadal, both IMG clients. In the
amended Agate II complaint Agate further alleged that he had arranged for “Forstmann’s
dates and interludes with escorts, models, and other people . . . who sold their ‘time’ and
agreed to provide services to Forstmann in exchange for money” and that “Forstmann
was concealing his gambling and writing off his losses and even, on occasion, his escort
fees . . . as fabricated business expenses to [Agate Printing].” Agate further alleged that
Forstmann had “made derogative comments about blacks, Jewish people, and other
minorities” and “had singled out [IMG client Tiger] Woods as someone who he wanted
to see fail.”2
       On October 13, the day after filing the amended Agate II complaint, Agate wrote
to Forstmann:
              “To bring you up to date in the event you haven’t heard, Agate
       Printing . . . filed the first amended complaint. . . . TMZ (www.tmz.com)
       has already jumped on the story. The first amended complaint is in the
       public record. You should expect to be inundated with questions from
       investigative reporters. You may want to carefully consider whether you
       want to deny my allegations.”




2      The defendants moved to compel arbitration of Agate II under the terms of the
April 2009 settlement agreement, and the superior court ordered the case to arbitration.


                                             3
       Agate’s allegations received attention not only from TMZ, but from other
publications such as USA Today, Fortune magazine, and the Daily Beast. Forstmann’s
responses to Agate’s allegations in turn were published in financial publications,
newspapers, and on celebrity news sites.
The instant lawsuit and anti-SLAPP motion
       Agate filed this action on March 22, 2011, asserting three causes of action for
slander. The first and second causes of action are against Forstmann and IMG, and the
third cause of action is against Forstmann only. Agate’s complaint alleged that
Forstmann made statements to various publications falsely accusing Agate of being a
“stalker,” a “shakedown artist,” an “extortionist,” and “insane.”
       IMG filed an anti-SLAPP motion, arguing that the statements made by Forstmann
and others concerned a matter of public interest and Agate could not establish a
probability of prevailing on his claims. IMG further argued the allegedly defamatory
statements were protected opinion, true, subject to the litigation privilege, or otherwise
not actionable. Forstmann joined in IMG’s anti-SLAPP motion.
       In his opposition to the anti-SLAPP motion, Agate claimed that his first cause of
action for slander was premised on false statements by Forstmann calling Agate “insane,”
a “stalker,” a “shakedown artist,” a “scumbag lowlife,” “really insane,” a “nut job,” and
having a “wire crossed.” Agate claimed his second cause of action was based on false
statements by Forstmann referring to Agate Printing as “a piece of shit company” and
statements by Michael Sitrick (an alleged agent of IMG and Forstmann) that the
allegations in Agate II were “beyond false” and “preposterous.” The third cause of
action, Agate maintained, was based on Forstmann’s statements referring to Agate as an
“extortionist.” Agate further stated in his opposition that “[a]ny arguments by
Defendants regarding any of the other statements do not matter as those statements are
not the basis for any cause of action and only establish Defendants’ malice.”
       Following a July 2, 2012 hearing at which the parties presented argument, the trial
court granted defendants’ anti-SLAPP motion and dismissed the action. This appeal
followed.


                                              4
                                       DISCUSSION
I. Applicable law and standard of review
       Section 425.16, subdivision (b)(1) provides in relevant part: “A cause of action
against a person arising from any act of that person in furtherance of the person’s right of
petition or free speech under the United States Constitution or California Constitution in
connection with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” Subdivision (e) of section 425.16 defines an “act in
furtherance of a person’s right of petition or free speech under the United States
Constitution or California Constitution in connection with a public issue” to include “any
written or oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest” (§ 425.16, subd. (e)(3)), or “any other
conduct in furtherance of the exercise of the constitutional right 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).)
       Determining whether the statute bars a given cause of action requires a two-step
analysis. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the court must
decide whether the party moving to strike a cause of action has made a threshold showing
that the cause of action “aris[es] from any act . . . in furtherance of the [moving party’s]
right of petition or free speech.” (§ 425.16, subd. (b)(1); Navellier, supra, at p. 88.)
       If the court finds that a defendant has made the requisite threshold showing, the
burden then shifts to the plaintiff to demonstrate a “probability that the plaintiff will
prevail on the claim.” (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88.) In
order to demonstrate a probability of prevailing, a party opposing a special motion to
strike under section 425.16 “‘“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.]”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741 (Jarrow), fn. omitted.)



                                               5
       A trial court’s order granting a special motion to strike under section 425.16 is
reviewed de novo. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
II. Public issue or matter of public interest
       Agate contends the trial court erred by granting the anti-SLAPP motion because
defendants failed to establish that the alleged defamatory statements constitute protected
speech in connection with a “public issue” or a matter of “public interest.” Section
425.16 does not define the terms “public issue” or “public interest,” but its preamble
states that its provisions “shall be construed broadly” to safeguard “the valid exercise of
the constitutional rights of freedom of speech and petition for the redress of grievances.”
(§ 425.16, subd. (a); Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039
(Nygard).)
       The legislative directive to construe section 425.16 “broadly” has led courts to
recognize that “‘there is a public interest which attaches to people who, by their
accomplishments, mode of living, professional standing or calling, create a legitimate
widespread attention to their activities . . . .’ [Citation.]” (Eastwood v. Superior Court
(1983) 149 Cal.App.3d 409, 422.) Courts have thus found that “public issues” for
purposes of the anti-SLAPP statute may include the identity of a beneficiary named in the
will of a well-known actor (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337,
1347 [television broadcast showing Marlon Brando’s housekeeper as beneficiary under
his will was speech in connection with public issue]), a magazine’s publication of “indie
rock” bands’ names (Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 677),
and use of a successful rock band’s image in a video game (No Doubt v. Activision
Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1027 [“use of No Doubt’s likeness in
Band Hero is a matter of public interest because of the widespread fame No Doubt has
achieved”].) Courts have also applied the anti-SLAPP statute to statements about large,
international corporations and their officers. (See Nygard, supra, 159 Cal.App.4th at p.
1034 [statements about company and its founder protected concerned a public issue
because both “‘are internationally known public figures who spend a great deal of money
and effort to promote their business, success, wealth and lifestyle’”]; ComputerXpress,


                                             6
Inc. v. Jackson, supra, 93 Cal.App.4th at pp. 1007-1008 [statements about publicly traded
company that had inserted itself into the public arena through press releases concerned a
public issue under section 425.16].)
       Not every statement about a person or entity in the public eye is sufficient to meet
the public interest requirement of the anti-SLAPP statute. Absent a statutory definition
for what constitutes “a public issue or an issue of public interest,” courts have applied
certain criteria for making this determination. “‘California cases establish that generally,
“[a] public issue is implicated if the subject of the statement or activity underlying the
claim (1) was a person or entity in the public eye; (2) could affect large numbers of
people beyond the direct participants; or (3) involved a topic of widespread, public
interest.” [Citations.] . . .’ [Citation.]” (Albanese v. Menounos (2013) 218 Cal.App.4th
923, 932 (Albanese), quoting D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226.)
       There is no question that Forstmann was a public figure and that members of the
public were interested in him and in his company, IMG. The newspaper and magazine
articles attached to Agate’s complaint are abundant evidence of this.3 Agate concedes
that Forstmann and IMG are both subjects of public interest. He argues, however, that
the allegedly defamatory statements do not concern Forstmann and IMG, but Agate and
Agate Printing, neither of whom are public figures or subjects of public interest and that
the challenged statements accordingly were not made in connection with an issue of
public interest.

3       For example, the USA Today article describes Forstmann as “one of the most
powerful men in sports, with a global sports, fashion and media firm boasting clients
from Tiger Woods, Venus Williams and Gisele Bundchen to the NCAA and Wimbledon”
and “a billionaire mogul whose annual conferences for A-list politicians, business moguls
and sports leaders in Aspen has attracted the likes of Bill Clinton, Nelson Mandela and
the late Pakistani Prime Minister Benazir Bhutto as well as NBA Commissioner David
Stern, golf’s Phil Mickelson and tennis’ Monica Seles.” The articles show the public was
also interested in aspects of Forstmann’s personal life as well. The USA Today article
states that Forstmann “romanced the late Princess Diana and is in a relationship with Top
Chef star Padma Lakshmi.” The Fortune magazine article includes a photograph of
Forstmann with Lakshmi, and mentions that he was embroiled in a custody battle
involving Lakshmi’s daughter.

                                              7
       Agate’s narrow definition does not comport with the applicable standard for
determining whether a public interest is implicated -- “‘the subject of the statement or
activity underlying the claim (1) was a person or entity in the public eye; (2) could affect
large numbers of people beyond the direct participants; or (3) involved a topic of
widespread, public interest.’ [Citations.]” (D.C. v. R.R., supra, 182 Cal.App.4th at p.
1226.) Here, the activities underlying Agate’s claims included Forstmann’s responses to
Agate’s allegations that Forstmann made “aggressive” gambling bets, including a wager
based on “inside information” involving IMG clients Roger Federer and Rafael Nadal,
that Forstmann concealed his gambling debts and escort fees through payments made to
Agate Printing, and that Forstmann made racial slurs against IMG client Tiger Woods.
These allegations involved public figures and topics of widespread public interest. As
noted in the Fortune magazine article attached to Agate’s complaint, Agate’s
“bombshell” allegations “immediately made headlines.” According to the USA Today
article attached to Agate’s complaint, the allegations about Forstmann’s gambling bet
“based on inside information” on a tennis match between Federer and Nadal prompted
both the NCAA and professional tennis organizations to “express[] concern” and resulted
in a company-wide policy at IMG prohibiting its nearly 3,000 employees from betting on
college sports, including March Madness office pools. Under the applicable standard, the
challenged statements were made in connection with a public issue or an issue of public
interest within the meaning of section 425.16.
       Agate cites Albanese and Weinberg v. Feisel (2003) 110 Cal.App.4th 1122
(Weinberg) as support for his argument that neither he nor the instant private dispute is a
matter of public interest. Both of those cases are factually distinguishable.
       Albanese involved a defamation action by a celebrity stylist against television
personality Maria Menounos based on allegations that Menounos had falsely and publicly
accused Albanese of theft. In affirming the denial of Menounos’s anti-SLAPP motion,
the court in Albanese concluded that even assuming that Albanese was “rather well
known in some circles for her work as a celebrity stylist and fashion expert, there is no
evidence that the public is interested in this private dispute concerning her alleged theft of


                                              8
unknown items from Menounos . . . . In short, there is no evidence that any of the
disputed remarks were topics of public interest.” (Albanese, supra, 218 Cal.App.4th at p.
936.) By contrast, there was abundant evidence in this case of the public’s interest in the
parties’ dispute. Agate himself elicited such interest by including in the Agate II
complaint provocative allegations about Forstmann that generated media headlines.
       Weinberg is also distinguishable. That case involved a dispute between two
hobbyists who collected tokens, one of whom accused the other of stealing a token. The
accuser then embarked on a campaign to exclude the suspected thief from an association
of token collectors by publishing accusations in paid advertisements and letters to other
collectors. (Weinberg, supra, 110 Cal.App.4th at pp. 1128-1129.) The court in Weinberg
concluded the communications involved no issue of public interest because they
concerned nothing more than a private dispute between private parties. (Id. at p. 1134.)
Unlike Weinberg, there was abundant evidence in this case of widespread public interest
in Forstmann, Agate, and their dispute.
       Agate’s provocative allegations about Forstmann and IMG’s clients placed Agate
and his dispute with Forstmann squarely in the public arena and made both a subject of
widespread public interest. Forstmann’s responses to those allegations are statements
that were made “in connection with a public issue or an issue of public interest” within
the meaning of section 425.16.
III. Public forum
       Agate argues that defendants’ statements do not constitute protected speech
because they were not made “in a place open to the public or a public forum” within the
meaning of section 425.16, subdivision (e)(3). He argues that newspapers and other
media outlets where public access is selective are not public fora within the meaning of
the anti-SLAPP statute.
       Courts are divided on the issue of whether a newspaper or magazine is a “public
forum” within the meaning of section 425.16, subdivision (e)(3). (Compare Lafayette
Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 863
[newspapers not public fora because members of the public cannot freely publish their


                                             9
opinions in them]; and Weinberg, supra, 110 Cal.App.4th at p. 1130 with Nygard, supra,
159 Cal.App.4th at p. 1038 [newspapers and magazines are public fora] and Damon v.
Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 476-477 [homeowners’
association newsletter a public forum].)
       In Nygard, Division Four of this court rejected a narrow interpretation of the term
“public forum” that would exclude newspapers and magazines on the ground that
members of the public cannot freely publish their opinions in them and held that
“newspapers and magazines are public fora within the meaning of section 425.16,
subdivision (e)(3).” (Nygard, supra, 159 Cal.App.4th at p. 1038.) The court in Nygard
reasoned that the language of subdivision (e)(3) provides that a written statement comes
within the anti-SLAPP statute if it is made either in “a place open to the public” or “a
public forum.” Applying well-established principles of statutory interpretation, the court
in Nygard concluded “a ‘public forum’ cannot be synonymous with ‘a place open to the
public’ -- if it were, the Legislature would not have defined the categories of protected
speech in the disjunctive.” (Nygard, at p. 1038.) The court in Nygard further concluded
that the fundamental purpose of the anti-SLAPP statute, to protect against lawsuits
brought primarily to chill the valid exercise of constitutional rights, “would not be served
if we were to construe the statute to make section 425.16, subdivision (e)(3) inapplicable
to newspapers, magazines, and other public media merely because the publication is
arguably ‘one-sided.’” (Nygard, at p. 1038.) Finally, citing California Supreme Court
authority confirming that “public access, not the right to public comment, is the hallmark
of a public forum,” the court in Nygard concluded that “a newspaper or magazine need
not be an open forum to be a public forum -- it is enough that it can be purchased and
read by members of the public.” (Id. at p. 1039.)
       We find the court’s reasoning in Nygard to be persuasive and apply it here. The
newspapers, magazines, and websites in which defendants’ statements were published
constitute public fora within the meaning of section 425.16, subdivision (e)(3).




                                             10
IV. Defamation as protected speech
       Agate contends defamation is not protected by the Constitution and can therefore
never be a protected activity under the anti-SLAPP statute. This argument has been
squarely rejected by California courts. (See, e.g., Hecimovich v. Encinal School Parent
Teacher Organization (2012) 203 Cal.App.4th 450, 464 [rejecting trial court’s ruling that
defamation not protected under anti-SLAPP statute]; Wilbanks v. Wolk (2004) 121
Cal.App.4th 883, 890 [defamation is the very first of the “‘favored causes of action in
SLAPP suits’”]; Scott v. Metabolife Internat. Inc. (2004) 115 Cal.App.4th 404, 419-420
[“‘defamation suits are a prime target of SLAPP motions’”].)
       The trial court properly determined that defendants met their burden of
demonstrating that their conduct and statements were acts in furtherance of the
constitutional right of free speech, in connection with a public issue or an issue of public
interest, made in a public forum.
V. Probability of prevailing
       Because the trial court correctly determined that Agate’s claims against defendants
arose from conduct that is protected under section 425.16, we must now determine
whether Agate met his burden of “demonstrat[ing] a probability of prevailing on the
claim[s].” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) To
satisfy this burden, “the 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.]” (Jarrow, supra, 31 Cal.4th at p. 741, fn. omitted.) “Section 425.16 therefore
establishes a procedure where the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation. [Citation.]” (Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
       A. Elements of defamation
       The three causes of action alleged in Agate’s complaint are for defamation,
defined as “‘a false and unprivileged publication that exposes the plaintiff “to hatred,


                                              11
contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which
has a tendency to injure him in his occupation.” (Civ. Code, § 45.)’ [Citations.]”
(Nygard, supra, 159 Cal.App.4th at pp. 1047-1048.) “To state a defamation claim that
survives a First Amendment challenge, a plaintiff must present evidence of a statement of
fact that is ‘provably false.’ [Citations.]” (Id. at p. 1048.) Expressions of opinion,
however pernicious, are protected under the First Amendment. (Gertz v. Robert Welch,
Inc. (1974) 418 U.S. 323, 339-340.) “‘“Thus, ‘rhetorical hyperbole,’ ‘vigorous
epithet[s],’ ‘lusty and imaginative expression[s] of . . . contempt,’ and language used ‘in a
loose, figurative sense’ have all been accorded constitutional protection. [Citations.]”’”
(Nygard, supra, at p. 1048.)
       To determine whether the challenged statements are nonactionable opinions or
provably false factual assertions, courts apply a totality of the circumstances test,
examining the language of the statement, its tenor, and the context in which it was made.
(Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809-810.) That
determination is a question of law for the court. (Id. at p. 810.)
       B. Agate’s opposition to the anti-SLAPP motion limits the bases for his
defamation causes of action
       In his opposition to defendants’ anti-SLAPP motion, Agate identified the specific
statements that were the basis for each of his causes of action and the persons who made
the statements. He expressly disclaimed reliance on any other statements by stating:
“Any arguments by Defendants regarding any of the other statements do not matter as
those statements are not the basis for any cause of action and only establish Defendants’
malice.” We accordingly consider only the statements Agate identified in the trial court
below as the basis for his claims on appeal. (See Heater v. Southwood Psychiatric
Center (1996) 42 Cal.App.4th 1068, 1079, fn. 10 [party is bound by admissions found in
the pleadings].)
       C. Agate has waived any argument regarding the second cause of action
       In this appeal, Agate does not address any of the statements that were the basis for
his second cause of action for slander against IMG and Forstmann. By failing to do so,


                                             12
Agate is deemed to have abandoned any argument regarding the second cause of action.
(Murray Co. v. Occupational Safety & Health Appeals Bd. (2009) 180 Cal.App.4th 43,
54, fn. 5.) We therefore do not address that cause of action.
       D. None of Forstmann’s challenged statements are provably false
       Agate’s first and third causes of action for slander are premised on allegedly false
statements by Forstmann calling Agate “insane,” “really insane,” a “nut job,” and
describing Agate as having a “wire crossed,” a “stalker,” a “shakedown artist,” a
“scumbag lowlife,” and an “extortionist.” Agate has failed to establish that the
challenged statements are provable factual assertions rather than rhetorical hyperbole or
vigorous epithets. Numerous cases have held that similar statements are nonactionable.
(See, e.g., Lieberman v. Fieger (9th Cir. 2003) 338 F.3d 1076, 1080-1082 [applying
California law and holding as a matter of law that statements referring to plaintiff as
“Looney Tunes,” “crazy,” “nuts,” and “mentally unbalanced” not defamatory]; Ferlauto
v. Hamsher (1999) 74 Cal.App.4th 1394, 1403 [phrases “creepazoid attorney” and “loser
wannabe lawyer” are classic rhetorical hyperbole and cannot reasonably be interpreted as
stating actual facts]; Yorty v. Chandler (1970) 13 Cal.App.3d 467, 472-473 [political
cartoon depicting mayor restrained in a straight jacket was rhetorical hyperbole].)
Forstmann was a business executive, not a medical professional or psychologist. No
reasonable trier of fact would interpret his statements describing Agate “insane,” a “nut
job,” or having a “wire crossed” as assertions of provable fact.4
       Agate claims that Forstmann’s statements referring to him as a “stalker” is
actionable slander per se because stalking is a crime. As defined in the Penal Code, the
crime of stalking is the willful, malicious, repeated following or harassing of another


4      Agate argues that the challenged statements were made simultaneously with
statements alluding to “physical danger posed by [Agate]” and Forstmann’s need to hire
security guards. Agate failed, however, to raise this argument in the trial court below and
accordingly forfeited the right to do so for the first time in this appeal. “It is well
established that issues or theories not properly raised or presented in the trial court may
not be asserted on appeal, and will not be considered by an appellate tribunal.” (In re
Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.)

                                             13
person and making a credible threat with the intent to place that person in reasonable fear
for his or her safety. (Pen. Code, § 646.9, subd. (a).) The term “stalker” appears once in
an October 19, 2010 Daily Beast article, along with the terms “shakedown artist,” and
“scumbag lowlife.” In the article, Forstmann describes his history with Agate, Agate’s
multiple lawsuits against him, and Agate’s demands for money when Agate’s “finances
reached rock bottom.” The article also discusses how Agate “recently turned up the heat
several more notches” by releasing information to TMZ allegedly showing that
Forstmann had bet that Roger Federer would beat Rafael Nadal during the 2007 French
Open “based on inside information stemming from a conversation” between Federer and
Forstmann before the match. The Daily Beast article does not describe any threat by
Agate, nor does it suggest that Forstmann feared for his safety because of Agate. Read in
context, Forstmann’s statement referring to Agate as a “stalker,” accompanied by the
terms “shakedown artist” and “scumbag lowlife,” refer to Agate’s attempts to get
Forstmann to pay him money, and not a threat with intent to place Forstmann in fear for
his safety. The references are rhetorical hyperbole.
       For the same reasons that Forstmann’s “stalker” reference is not actionable, his
statements referring to Agate as an “extortionist” are also nonactionable. In the October
2010 Daily Beast article discussed previously, Forstmann is quoted as saying “‘I told my
lawyer that I now want Agate in jail for extortion.’” This statement follows Forstmann’s
description of Agate’s multiple lawsuits and demands for money, and an allegation by
Agate that Forstmann had placed a gambling wager on a tennis match between two IMG
clients “based on inside information.”
       The term “extortionist” also appears in a February 2011 Fortune magazine article
that describes Agate’s lawsuits and his threats, after dropping Agate I, to sue Forstmann
again and include allegations about sports betting. In the article, Forstmann explains that
he agreed to pay Agate a sum of money to make the case “go away forever.” The article
states: “Agate got his money, Forstmann says, ‘for doing absolutely nothing except
being an extortionist.’” The article then recounts that shortly after being paid, Agate filed
Agate II and again threatened to include allegations about sports betting and gave


                                             14
Forstmann “a few choices for paying up: start a charity and name Agate to run it . . . ;
start a real estate company and put Agate at its head; or sponsor him to play on the World
Series of Poker tour . . . .”
       Viewed in context, Forstmann’s statements accusing Agate of “extortion” and
referring to him as an “extortionist” are rhetorical hyperbole or vigorous epithets directed
at Agate’s litigation tactics and repeated demands for money. (See Blevins v. W.F.
Barnes Corp. (Ala.Civ.App. 1999) 768 So.2d 386, 391 [rejecting argument that
defendant’s claim that opposing attorney “‘tried to extort money out of me because I
refused to pay his demands’” was slander per se and finding statement to be rhetorical
hyperbole].)
                                      CONCLUSION
       Defendants made the requisite threshold showing that each of Agate’s causes of
action arises from an act in furtherance of the constitutional right of petition or free
speech in connection with a public issue or an issue of public interest. (§ 425.16, subds.
(b), (e) & (f).) The burden then shifted to Agate to demonstrate a probability of
prevailing on his claims. He failed to do so. The trial court accordingly did not err in
granting the anti-SLAPP motion.
                                      DISPOSITION
       The order granting defendants’ anti-SLAPP motion is affirmed. Defendants are
awarded their costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                          ________________________, J.
                                                          CHAVEZ
We concur:


_________________________, P. J.                      ________________________, J.*
BOREN                                                 FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                              15
