Brian L. Buckley (State Bar Number 106705)
11661 San Vincente Boulevard
Suite 820
Los Angeles, California 90049
Telephone: (310) 207-4224
Facsimile: (310) 820-2187

Attorney for Plaintiff
VOICE of Citizens Together,
a California corporation

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

VOICE OF CITIZENS TOGETHER
d.b.a. American Patrol,
a California corporation,

Plaintiff,
vs.

THE LOS ANGELES TIMES, a
Delaware corporation; THE DAILY NEWS
a Delaware corporation,
and DOES 1 through 20, inclusive,
DOE CORPORATIONS 1 through 20,
inclusive,

Defendants.

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CASE NO.: BC 250328

MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO DEFENDANT DAILY NEWS' MOTION TO STRIKE; DECLARATION OF GLENN SPENCER

COMPLAINT

Department: 3
Hearing Date: August 29, 2001
Hearing Time: 8:45 a.m.
The Honorable Emilie Elias, presiding

Trial Date: None Set
Complaint Filed: May 11, 2001
Discovery Cut-Off: Suspended by Motion
Motion Cut-Off Date: Statutory

MEMORANDUM OF POINTS AND AUTHORITIES IN Opposition to Special Motion to STRIKE

INTRODUCTION
Plaintiff Voice of Citizens Together, entered into an oral agreement with defendant Daily News to place a full page political advertisement. The subject advertisement delivered over to defendant Daily News, contained certain news articles printed at prior times by defendant Los Angeles Times. Plaintiff and its agent Glenn Spencer knew at all times that the political advertisement within which the Los Angeles Times news articles were exhibited, was in compliance with all copyright and other laws, in all relevant jurisdictions including the United States of America and the State of California.
Both defendants Daily News, and Los Angeles Times being in the "newspaper business" knew very well that plaintiff's political advertisement was appropriate and not barred by any copyright laws, whatsoever. Plaintiff's political advertisement constituted "FAIR USE' of the news articles which, pursuant to Title 17, United States Code § 107, barred and removed from copyright protection the news articles. This fair use of what would otherwise be infringement is permissible even where a party using the article, along with his political statement, uses the copyrighted material to acquire funding or make money. Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F. 2d 1148 (9th Cir. 1986).
Defendant Daily News, by its own admission, reviewed plaintiff's political advertisement and approved it as to form and content. It can only be presumed by plaintiff that any issue of "FAIR USE," was contemplated, considered and decided before approval of the political advertisement. [Note: The declaration of Ike Massey, the publisher for the Daily News, submitted to this court by defendants and attached thereto as Exhibit A, claims that his review of the political advertisement did not include copyright infringement. Such a claim by him is specious. It is also suspect that publisher Massey was not the person who reviewed and approved the article for copyright or other issues. The Declaration of Dave Peck, Sales Manager for the Daily News, attached thereto as Exhibit B, intimates that the Advertising Director, Paul Ingegneri was the one who approved and rejected the political advertisement. Dave Peck was so sure that the declination to publish plaintiff's political advertisement came from him, Mr. Peck gave plaintiff the Advertising director's name and business telephone number.] Plaintiff then paid over the sum defendant Daily News, the fee for publishing the political advertisement in the amount of nine thousand seven hundred fifty-two dollars and forty cents [$9,752.40]. Defendant Daily News, negotiated the check and was paid in full for the publishing of plaintiff's political advertisement set for on the date of May 6, 2001.
Plaintiff had performed all of the terms and conditions required of him to perform in relation to the oral agreement between him and defendant Daily News, to have its political advertisement published on May 6, 2001. The only existing condition precedent to the political advertisement being published was that the political advertisement had to be submitted to defendant Daily News, for approval. This condition precedent was satisfied. With all of the terms and conditions fully performed by plaintiff, all that was left in relation to the subject contract was for defendant Daily News, to discharge its duty and publish the political advertisement on May 6, 2001.
On May 3, 2001, plaintiff, was informed by defendant Daily News, that it would be breaching its agreement with plaintiff and would not publish the political advertisement on May 6, 2001. The refusal to publish the article was not predicated on any identified breach of any copyright law or statute. In fact defendant Daily News, knew full well that no copyright laws were in conflict with the publishing of plaintiff's political advertisement.
Plaintiff did discover that the breach of the agreement was induced at the suggestion, request, and supplication of a sister publisher, defendant Los Angeles Times. Plaintiff is a public advocacy group with political comment and positions contrary and incongruent to those of defendant Los Angeles Times. Defendant Los Angeles Times, for its own political reasons, sought out a method and mechanism for censoring, frustrating, impeding and suppressing plaintiff's free speech comments and advertisements, short of filing an action to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances of plaintiff, in violation of California Code of Civil Procedure § 425.16 [SLAPP Statute]. Defendant Los Angeles Times was able to accomplish the outright censoring, frustrating, impeding and suppressing of plaintiff's free speech by and through fraternal contriving, collaborating and conspiring and with a sister publisher. Defendant Los Angeles Times was able to do to plaintiff that which it would have been denied had it brought a civil action against plaintiff.
As a part and parcel of the free speech muzzling accomplished by the Los Angeles Times with its willing confederate Daily News, defendants concocted and feigned that their actions occurred as a result of plaintiff not asking permission to use the copyrighted material of defendant Los Angeles Times, while never making the obvious disclosure that both defendants were very well aware that permission to use the subject copyrighted material was not necessary in order for plaintiff to be in conformance with the copyright laws of the United States of America.
Plaintiff did bring this present action for breach of contract and other related actions against defendant Daily News, and included meritorious causes of action against defendant Los Angeles Times. Now defendant Daily News, now attempts to avoid liability for its clear and admitted breach of contract and tortious conduct by feigning that it is entitled to a dismissal pursuant to Cal. Civ. Proc. Code § 425. Plaintiff is most certainly aware that no issue of a free speech defense would exist or have been implicated had a breach of contract occurred by plaintiff not paying the Daily News, to publish its political advertisement. Therefore, it is absurd to extend the influence and applicability of § 425. into the commercial sector where the issues are those involving private enterprise actions perpetrated in the advancement of their own private and personal interests.
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ARGUMENT

A. DEFENDANT DAILY NEWS, INC., HAS NOT MET ITS INITIAL BURDEN OF PROOF IN THAT DEFENDANT'S ACTS WHICH IT CLAIMS CONSTITUTE SPEECH ARE EXCLUDED FROM THE PROTECTION OF CALIFORNIA CODE OF CIVIL PROCEDURE § 425.16 [S.L.A.P.P. STATUTE] AND ARE NOT "SPEECH" AS CONTEMPLATED BY SECTION 425.16

Defendant Daily News, in its own statement of grounds evidences that its present application under California Civil Code § 425 is fatally flawed. Defendant's grounds for this motion at page two of defendant's Notice of Motion are as follows:
The motion is made on the grounds that (i) the complaint arises from the Daily News' decision, pursuant to its First Amendment rights, not to publish the political advertisement submitted by plaintiff; (ii) the Daily News' decision not to publish the political advertisement involves a public issue and (iii) Plaintiff cannot establish a reasonable probability of prevailing on the claim.
Defendant Daily News has the initial burden of making a PRIMA FACIE showing that plaintiff's lawsuit arises from an act of defendant Daily News, in furtherance of defendant's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue. Dixon vs. Superior Court (1994) 30 Cal.App.4th 733. Defendant's showing must include facts establishing that plaintiff's complaint was not filed not to vindicate a legal right and was filed to interfere with the defendant's ability to pursue his or her interests.
City of Cotati vs. Cashman (2001) ___Cal.App.4th ___ NO. A092242m A092868 citing Church of Scientology, vs. Wollersheim, supra, 42 Cal.App.4th at 645, provides in relevant part:
"The disparate cases striking pleadings on special motions under section 425.16 share a common feature despite their lack of factual similarity. In each, the litigation had the effect, if not the purpose of stifling the defendant's exercise of First Amendment rights. These were proceedings as defined by the statute which were "not to vindicate a legal right, rather to interfere with the defendant's ability to pursue his or her interests ....[I]t will achieve its objective if it depletes defendant's resources or energy. The aim is not to win the lawsuit but to detract the defendant from his or her objective, which is adverse to the plaintiff [Citation.]"
In further support:
California Code of Civil Procedure § 425.16 provides in relevant part:
"(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly."
While it is broadly construed section 425.16, is not permitted to extend its influence to commercial matters such as here, where defendant Daily News, is advancing its purely private interest involving a contractual relationship. Defendant Daily News, was not acting in this present matter for the purpose of speaking out on a public issue.
The impropriety of extending the authority of California Code of Civil Procedure § 425.16 to this present commercial and private enterprise action is revealed when the breach is merely reversed. There would be no avenue of free speech relief for plaintiff had it, after agreeing with defendant Daily News, to have published the political advertisement, not paid defendant Daily News, The very circumstance now before this court was addressed in Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996] 49 Cal.App.4th 1591, 57 Cal.Rptr.2d 491, and the court of appeals found in favor of the plaintiff, for good reason. Ericson provides in relevant part:
"Clearly, the legislative purpose of section 425.16 is to provide a procedural device which would allow for prompt exposure and dismissal of SLAPP suits. The actions falling into this category have been generally recognized as civil lawsuits aimed at preventing citizens from exercising their political rights or at punishing those who have done so: suits that are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of plaintiff ...
Despite this expansive interpretation of section 425.16, the courts have recognized that there are limits in its application. "[S]ection 425.16 does not apply in every case where the defendant may be able to raise a first amendment defense to a cause of action. Rather, it is limited to exposing and dismissing slapp suits-lawsuits 'brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances' 'in connection with a public issue.' (§ 425.16, subds. (a), (b).)" (Wilcox, supra, 27 Cal.App.4th at p. 819, italics added.) ...
Thus in determining whether a cause of action falls within the scope of the statute, we hold that the Legislature intended to include only those suits that are based upon acts that are primarily in furtherance of a person's constitutional right of free speech, i.e., acts which advance or promote that right. For it is only in those cases where the party acted for the purpose of promoting or advancing his or her right of free speech, in contrast to one where the parties are performing or breaching their contractual obligations, that the right could be chilled by the specter of an unfounded lawsuit.
Here, the acts upon which Ericsson is relying in contending that defendants interfered with its prospective economic advantage are the same acts which could form the basis for an action by the county, against C.S.I., for breach of contract. If the county rather than Ericsson had brought a suit seeking damages based upon theories of breach of contract or misrepresentation, it would be an absurdity to suggest the county's action would be barred by a defense of free speech. To do so would open the door to the applicability of section 425.16 to breach of contract or fraud actions where the act of the party relates to the formation or performance of contractual obligations and not with respect to the exercise of the right of free speech.
Since the acts of C.S.I., upon which the action here is based, were related to the performance of their contractual obligations, and were not motivated by their desire to promote or advance their right of free speech, the first prong of the test has not been met."
Defendant Daily News has not established a prima facie case that it is entitled to relief under California Code of Civil Procedure § 425.16. Defendant Daily News, is seeking an inappropriate and proscribed remedy so that it can escape its liability and culpability for breach of contract.
People ex rel. 20th Century Ins. Co. vs. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, provides in relevant part:
"Under the anti-SLAPP statute, defendants have the INITIAL BURDEN of establishing a prima facie case that the action arose form acts in furtherance of their right to petition or fee speech. Once the defendants establish their prima facie case, the burden shifts to the plaintiff to establish that it is likely to prevail on the merits. (§425.16, sub. (b)(1); Wilcox vs. Superior Court, supra, 27 Cal. App. 4th at 820-821.)"
Defendant Daily News, cannot torture and twist the meaning of California Code of Civil Procedure § 425.16, to provide defendant with a mechanism for escape from its private contractual commitments merely because it is a newspaper and deals with free speech publications as its business.
B. DEFENDANT'S MOTION LACKS THE SUBSTANTIAL EVIDENCE REQUIRED BY THE STATUTE, IMPROPERLY RELYING INSTEAD ON MERE SUGGESTION, HYPOTHESIS AND CONJECTURE.
The nature of this present motion is the most drastic motion conceived by the California legislature. While California Code of Civil Procedure § 425.16 is lauded for its strides in protecting free speech, however, its abuse by defendants, as in this present action is poison to the due process rights of plaintiff. The present proceedings are far more drastic than a motion for summary judgment. In a motion for summary judgment a party at least is permitted to seek discovery. In this matter a plaintiff is denied discovery. Therefore, at least the evidentiary duties of the less drastic procedure must prevail and be applied in this present action.
Like a summary judgment motion, defendant's motion requires admissible evidence. Defendant Daily News, sets forth a plethora of accusations, assumptions, and conjecture, including but not limited to the unfounded statement that plaintiff's political advertisement violated the copyright or trademark laws of defendant Los Angeles Times. This statement and many like it are repeated throughout the entire memorandum of points and authorities, but the papers are barren of evidence to support such a contention. The declarations submitted by defendant Daily News, do not establish that any laws were broken by plaintiff or that any authorized agent of defendant Los Angeles Times ever proved that plaintiff's advertisement violated any laws. Defendant Daily News, must not be permitted to rely upon claims or theories unsupported by evidence. (Arciniega v. Bank of San Bernardino, N.A. (1997) 52 Cal.App.4th 213, 231, 60 Cal.Rptr.2d 495; Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 216, 23 Cal.Rptr.2d 793 disapproved on other grounds in Turner v. Anheuser- Busch (1994) 7 Cal.4th 1238, 32 Cal.Rptr.2d 223, 876 P.2d 1022; see generally Weil & Brown, Cal. Practice Guide: Civil Procedure (The Rutter Group 1998) ¶ 10:253.1, p. 10-94.)
Further, while a separate statement is not required, if a defendant has not produced evidentiary facts to support its motion then the court must resolve, forthwith that no facts exist. [See United Community Church v. Garcin (1991) 231 Cal. App.3d 327, 282 Cal .Rptr. 368]. Plaintiff's due process rights compel such resolve by the court.
Church of Scientology v. Wollersheim (1996) 42 Cal. App.4th 628, 49 Cal. Rptr.2d 620
Anti-SLAPP legislation, therefore, must be fast, inexpensive and constitutional or it is of no benefit to SLAPP victims, the court or the public. In order to satisfy due process, the burden placed on the plaintiff must be compatible with the early stage at which the motion is brought and heard (§ 425.16, subds. (f) and (g)) and the limited opportunity to conduct discovery (subd. (g)). In order to preserve the plaintiff's right to a jury trial the court's determination of the motion cannot involve a weighing of the evidence." (27 Cal. App.4th at p. 823, citations omitted, original italics.)
Subsequent appellate decisions have employed the standard applied in Wilcox. (See Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1496 [45 Cal.Rptr.2d 624]; LaFayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal. App.4th 855, 867 [44 Cal. Rptr.2d 46], ; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15 [43 Cal.Rptr.2d 350], re-view den.; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 355 [42 Cal.Rptr.2d 464]; Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 746 [36 Cal.Rptr.2d 687], review den.) It is recognized, with the requirement that the court consider the pleadings and affidavits of the parties, the test is similar to the standard applied to evidentiary showings in summary judgment motions pursuant to Code of Civil Procedure section 437c and Requires that the showing be made by competent admissible evidence within the personal knowledge of the declarant. (Ludwig v. Superior Court, supra, at pp. 15-16.). Averments on information and belief are insufficient. (Evans v. Unkow, supra, 38 Cal. App.4th at pp. 1493, 1497-1498;
In further relevant support, Shekhter vs. Financial Indemnity Co. [2001] 89 Cal.App.4th 141, provides as follows:
Under section 425.16, subdivision (b)(2), the trial court in making its determination, considers the pleadings and affidavits stating the facts upon which liability or defense is based (Dowling v. Zimmerman, supra 85 Cal.App.4th at pp. 1417 - 1418; Church of Scientology v.. Wallersheim, supra 42 Cal.App.4th at pp. 646 - 647.)
Plaintiff is entitled to his due process right to have only the admissible evidence produced by defendant considered by this court. The accusations, conclusions and unfounded conjecture contained in defendant Daily News, 's memorandum of points and authorities must be ignored. They do not comport with any evidentiary facts in this matter.
C. PLAINTIFF'S CLAIMS ARE MERITORIOUS AND IT COULD ESTABLISH, IF NECESSARY A PRIMA FACIE CASE THAT IT WOULD PREVAIL ON THE MERITS.
The declaration of Glenn Spencer sets forth facts establishing facts which is already, readily admitted by defendant Daily News, that it intentionally breached its contract with plaintiff after entering into the agreement and being paid for the services to be rendered. Defendant Daily News, further admitted for the purposes of this present motion that its breach was precipitated in whole, or in part, by phone calls to and from defendant Los Angeles Times. Mr. Massey admitted that he placed a call to the Los Angeles Times asking for the copyright department. Mr. Massey states that he spoke to a woman named Patricia who could have been the janitor, for all he knew. This "person" Patricia supposedly informed him that she believed that the political advertisement of plaintiff may be violating defendant Los Angeles Times copyright or trademark rights. {Declaration of Ike Massey, Page 1, Paragraph 5, beginning line 17.} Please see copy of Declaration of Ike Massey attached thereto as Exhibit A, and incorporated herein as though fully set forth. The declaration of Dave Peck attached thereto as Exhibit B, and incorporated herein as though fully set forth, admits as follows:
Page 2, Paragraph 13, beginning line 16:
In my conversations with Mr. Spencer of American Patrol, I never made any representations to him and never represented to him or told him that the Daily News "would honor its obligations under the contract including, without limitation, the implied covenant of good faith and fair dealing.
Plaintiff clearly can meet a prima facie showing that he would prevail on the merits of his action.
At this juncture, defendant Daily News, must be informed that this present pleading is not a demurrer, nor is it a summary judgment motion. Bizarre antiquated and absurd decisions rendered in other jurisdictions, not that of the State of California, cannot be used to escape the force of law in the State of California. Just because another jurisdiction made the awful and erroneous decision that a newspaper was permitted to breach its contract without subjecting itself to liability for breach of contract, does not make such a finding the law in the State of California, or even in the jurisdictions from where the court case was extracted. California does not permit a newspaper to breach its agreements, especially, as here where defendant Daily News, was fully empowered to bring an action against plaintiff had he breached the agreement between he and defendant by not paying for the publishing of the political advertisement.
A. Civil Code §47 Is Inapplicable to this Lawsuit
The test for the applicability of Civil Code § 47 (b) is two-pronged: (1) Is the communication made with a good faith belief in a legally viable claim, and (2) Is it made in serious contemplation of litigation.
The first prong. Granted the certain sophistication of the Daily News in the area of copyright, the Daily News must know that the use by Plaintiff, as well as other parties, of the Times' material falls under the exclusion of "fair use" material from the protection of the copyright laws.
The Moral Majority's use of a copyrighted article from Hustler Magazine was held to be "fair under 17 U.S.C. 107 even though the copyrighted section was used in part to raise money, it also made a political commentary on pornography. Hustler Magazine, Inc. v. Moral Majority, Inc. (9th Cir. 1986) 796 F. 2d 1148. This is precisely the case here. The plaintiff sought to use portions from an old edition of the Los Angeles Times to make a public commentary on a public issue, the mayoral election in Los Angeles.
Even without the controlling federal authority, the four-pronged test of 17 U.S.C. § 107 preclude the invocation and protection of the Copyright Act. They are the character of the use; the nature of the work to be used; how much of the total work is used; what is the effect of the use upon the value of the copyrighted material. Each of these uses involves a balancing test.
The character of the use here is public debate on the qualifications of a candidate for political office; The nature of the work to be used is an article in the archive of the Times. The portion of the paper of the subject date to be used is small, if not minuscule. There is no known current value for the article. The balancing of these factors is totally in favor the fair use doctrine.
Even if the plaintiff were required to prevail on all four factors it would prevail. However it is not. Wright v. Warner Books, Inc. (1991 2nd Cir.) 953 F. 2d 731.
In National Rifle Association of America v. Handgun Control Federal of Ohio, (6th Cir. 1994) 15 F. 3d 559; cert. den 513 U.S. 815, the court held that the Fair Use doctrine is widest when the matter relates to a matter of high public concern. It is fair to state that an election is such a matter.
The District Court in the Hustler case succinctly summed this up when it held that when the use of copyrighted material occurs n the course of a political, social or moral debate, the public interest in free expression favors a finding of fair use. Hustler Magazine, Inc. v. Moral Majority, Inc. (C.D. Cal. 1985) 606 F. Supp. 1526.
B. Civil Code § 47 (c) (1) Is Inapplicable
Granted the allegations of the complaint, this section is in applicable. The claim of the plaintiff is that the Times acted with malice, that it interfered with a contract and stiffed the ability of the plaintiff to exercise its right of free speech during an election. For this reason this section does not apply on its face.
Further, to accept this argument would be to accept the representations of the Times that this was only done because of a copyright issue. This excludes the obvious issue of the interest of the Times in muzzling opposition to its endorsed candidate, Mr. Villaregossa.
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III. CONCLUSION
For all of the foregoing reasons plaintiff Voice of Citizens Together, doing business under the fictitious business name American Patrol respectfully request that defendant Daily News Special Motion to Strike Plaintiffs' Complaint Pursuant to California Code of Civil Procedure § 425.16 be denied. Plaintiff will address the issue of attorneys fees under separate cover.

DATED: August 16, 2001

By___________________________________
BRIAN L. BUCKLEY
Attorney for Plaintiff
VOICE OF CITIZENS TOGETHER,
d.b.a. AMERICAN PATROL