From Leviss v. Madix, decided yesterday by California Court of Appeal Justice Victor Viramontes, joined by Justice Matthew Scherb:

This action arises out of the discovery of a private sexual affair, which garnered widespread media attention when news of the affair became public. Plaintiff and respondent Rachel Leviss had an affair with Tom Sandoval, the then-boyfriend of defendant and appellant Ariana Madix. At the time, Leviss, Madix, and Sandoval were all cast members on the reality television show, Vanderpump Rules.

Madix learned of the affair when she found sexually explicit videos of Leviss on Sandoval's cell phone, which Madix then recorded and sent to Leviss. After the affair became public, Leviss filed suit against Madix for Madix's alleged conduct in accessing, copying, and disseminating the videos.

Madix moved to strike the complaint under the California anti-SLAPP statute, which allows cases to be promptly dismissed when the cases are brought based on speech "in connection with a public issue," and are legally unfounded. If a case is thus dismissed, the prevailing defendant can recover her attorney fees from the losing plaintiff.

The majority rejected the motion, concluding that the defendant's alleged conduct wasn't speech on a public issue:

Here, the challenged activity that formed that basis of Leviss's claims against Madix was Madix's alleged conduct in accessing, copying, and disseminating sexually explicit videos of Leviss that Sandoval surreptitiously recorded on his cell phone…. Considering that Leviss chose to appear on a popular reality series that centered on its cast members' personal lives, Leviss's "romantic entanglements" may very well have been a topic of widespread public interest prior to the disclosure of her affair with her fellow cast member, Sandoval. However, Leviss's status as a person in the public eye does not mean that every aspect of her personal life was itself a matter of public concern.

For instance, in defining the scope of Penal Code section 647, the criminal "revenge porn" statute, the Legislature defined that the distribution of sexually explicit images "is not a matter of public concern or public interest solely because the depicted individual is a public figure." As our Supreme Court also has recognized, "legitimate public interest does not include 'a morbid and sensational prying into private lives for its own sake ….'"

At issue here are video recordings of Leviss engaging in a private sexual act at a private residence during a private FaceTime call with Sandoval. In her complaint, Leviss alleged that she never consented to Sandoval recording these calls, she was not aware that he was doing so, and she never intended for their intimate communications to be seen by anyone else.

While it appears both Leviss and Sandoval allowed Vanderpump Rules to film much of their personal lives as part of the reality show, there is no indication that the television cameras were rolling or that anyone else was present when Sandoval surreptitiously recorded Leviss engaging in a private sexual act…. [E]ven if Leviss's affair with Sandoval was widely known at the time due to their status as public figures, any public interest in their affair would not extend to private recordings depicting the most intimate aspects of the relationship….

To be clear, we do not suggest that any statements Madix may have made about the videos could not be in furtherance of her free speech rights in connection with an issue of public interest. If the actions giving rise to any of Leviss's claims against Madix were Madix's public comments about the videos, including their sexual content, then that speech could fall within the scope of [the anti-SLAPP law]. However, … … the actions that form the basis for Madix's purported liability and that we evaluate are not her statements about the videos, but her allegedly unauthorized acquisition and dissemination of the videos to Leviss and others….

As the dissent points out, Leviss's counsel did indicate that Leviss would be seeking damages for the "public scorn and ridicule" she faced because her counsel did not know how one could "separate out" those damages. However, to determine whether a plaintiff's claim arises out of protected activity under [the anti-SLAPP law], "we look to the allegedly wrongful and injurious conduct of the defendant, rather than the damage which flows from said conduct." Here, the allegedly wrongful and injurious conduct at issue in the anti-SLAPP motion was Madix's acquisition and dissemination of the videos, not the public scorn or ridicule that may have resulted from such dissemination….

[W]e express no opinion about the veracity of the allegations in the complaint or the merits of the claims alleged, including whether the conduct on which Leviss is basing her claims is actionable. In particular, we express no opinion as to whether Leviss can prove that Madix distributed the videos to anyone other than Leviss, or whether Leviss can prevail on her causes of action if, as Madix asserts, Leviss was the only person to whom Madix sent or showed the videos. For purposes of this appeal, we solely hold that Leviss's claims against Madix are not subject to … [an anti-SLAPP] motion to strike because Madix failed to satisfy her threshold burden of showing that the claims arose from constitutionally protected activity.

Justice John Shepard Wiley dissented:

Today's holding will astonish the enormous audience that followed #Scandoval.

Maybe you are not a fan of reality shows. Maybe you are like me: never heard of Vanderpump Rules or #Scandoval before this case.

You can get up to speed on these 15 minutes of popular culture by reading Aleksander, How Tom Sandoval Became the Most Hated Man in America, N.Y. Times Mag. [link added -EV]. This article, which the parties discussed in oral argument and urged us to consult, recounts the saga of three mass-marketed screen characters on a reality show. Tom Sandoval was in a committed relationship with Ariana Madix, who was close friends with Rachel Leviss. Madix discovered Sandoval was having an affair with Leviss. The betrayal launched a brouhaha the audience dubbed #Scandoval.

When a massive public audience gives a public name to an issue, that issue is of public concern. We judges can write all we want, but this public voted with its eyeballs.

The infamous sex tape was not "public": just three people saw it. But the discussion about the scandal has been whoppingly public. Leviss's complaint is filled with how the public nature of that discussion harmed her. At oral argument, Leviss's counsel stated Leviss's claims for damages would include compensation for the public scorn and ridicule. Leviss's counsel said he did not know how one could "separate out" those damages from the bad effects stemming from the sex tape alone. Because nearly nobody saw the tape, this case is mainly about the public scorn and ridicule. Leviss hated her national bad press and sued for redress. That is public, because a sustained national public found the whole affair fascinating. That is the goal of reality shows: grip a colossal audience. #Scandoval did.

Under Baral v. Schnitt (Cal. 2016), then, we have mixed causes of action: part private and part public. I would remand for the trial court to sort through this mixture.

The trial court denied Madix's motion on the grounds Madix broke the law by searching Sandoval's phone. But Madix's declaration can be read to say Sandoval gave Madix blanket consent to look through his phone. Under this reasonable interpretation, there was not enough to trigger the rule demanding "conclusive" proof.

Bryan J. Freedman, Summer E. Benson, and Jason H. Sunshine (Liner Freedman Taitelman + Cooley) and Mark J. Geragos and Kimberly M. Casper (Geragos & Geragos) represent Leviss.

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