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LAW OFFICE OF JAMES A. FRIEDEN
James A. Frieden, Esq., SBN 73983
1717 Fourth Street, 3rd Floor
Santa Monica, CA 90401-3319
Tel. (310) 917-1940
Fax (866) 653-0684
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Attorney for Defendant MARCY WINOGRAD
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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WEST DISTRICT
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TAWNI J. ANGEL, an individual; JASON
F. NESTER, an individual; and TAWNIS
PONIES AND PETTING FARM, INC., a
California corporation,
Plaintiffs,
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vs.
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MARCY WINOGRAD, an individual;
DANIELLE CHARNEY, an individual; and
DOES 1 through 20, inclusive,
Defendants.
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Case No. SC123378
Assigned to the Honorable Lisa Hart Cole –
Department O
DEFENDANT MARCY WINOGRAD’S NOTICE
OF MOTION AND SPECIAL MOTION TO
STRIKE PLAINTIFFS’ COMPLAINT (CAL.
CODE CIV. PROC. § 425.16)
Hearing Date:
Time:
Department:
Complaint Filed:
January 9, 2015
8:30 a.m.
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November 10, 2014
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TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE
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NOTICE that on January 9, 2015 at 8:30 a.m., or as soon thereafter as the matter may be heard, in
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Department O of the above-entitled Court, located a 1725 Main Street, Santa Monica, California,
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Defendant Marcy Winograd will and hereby does move the Court for Orders:
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(1)
striking Plaintiffs’ complaint under California Code of Civil Procedure section
425.16 (the anti-SLAPP statute) and applicable case law.
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NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE COMPLAINT
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This Motion is based upon this Notice of Motion and Special Motion to Strike, the
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accompanying memorandum of Points and Authorities, the declaration and exhibits filed in
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support of this Motion, the pleadings and papers on file in this action, and such other matters as
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may be presented at or before hearing on this motion.
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Defendant Winograd reserves her right to seek attorneys’ fees if this motion is granted
and will do so by separate motion.
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Date: December 11, 2014.
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LAW OFFICE OF JAMES A. FRIEDEN
James A. Frieden, Esq., SBN 73983
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By: ____________________________________
James A. Frieden (73983)
Attorney for Defendant MARCY WINOGRAD
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NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE COMPLAINT
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Law Office of James A. Frieden
James A. Frieden, Esq., SBN 73983
1717 Fourth Street, 3rd Floor
Santa Monica, CA 90401-3319
Tel. (310) 917-1940
Fax (866) 653-0684
Attorney for Defendant MARCY WINOGRAD
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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WEST DISTRICT
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TAWNI J. ANGEL, an individual; JASON
F. NESTER, an individual; and TAWNIS
PONIES AND PETTING FARM, INC., a
California corporation,
Plaintiffs,
vs.
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MARCY WINOGRAD, an individual;
DANIELLE CHARNEY, an individual; and
DOES 1 through 20, inclusive,
Defendants.
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Case No. SC123378
Assigned to the Honorable Lisa Hart Cole –
Department O
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANT MARCY
WINOGRAD’S SPECIAL MOTION TO STRIKE
PLAINTIFFS’ COMPLAINT (CAL. CODE CIV.
PROC. § 425.16)
Hearing Date:
Time:
Department:
Complaint Filed:
January 9, 2015
8:30 a.m.
0
November 10, 2014
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
TABLES OF CONTENTS
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2
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Introduction ...................................................................................................................................................................1
Factual Background .......................................................................................................................................................1
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7
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9
10
Argument .......................................................................................................................................................................5
I.
Plaintiffs’ Claims are Subject to the Anti-SLAPP Statute Because They Arise from Protected Petitioning
and Speech Activity ........................................................................................................................................5
II.
Plaintiffs Cannot Establish a Probability of Prevailing on Their Claims ........................................................6
A.
The U.S. and California Constitutions Prohibit Plaintiffs’ Libel Claim ...............................................6
11
1.
Winograd’s Speech Is Absolutely Privileged Petitioning Activity ............................................7
12
2.
Winograd’s Speech is Constitutionally Protected ......................................................................8
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a.
Plaintiffs are limited purpose public figures...........................................................................8
14
b.
Winograd’s speech is nonactionable opinion and hyperbole..................................................9
15
c.
Even if any of Winograd’s speech is arguably a statement of fact, defendants cannot show
actual malice ......................................................................................................................... 11
16
B.
Plaintiffs’ claim for intentional interference with prospective economic advantage fails because
Plaintiffs cannot show damages or causation and the claim is predicated on protected speech ......... 13
18
C.
Plaintiffs cannot prove the elements of Intentional Infliction of Emotional Distress ......................... 14
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D.
Plaintiffs’ request for a prior restraint is improper and, in any event, is a request for relief and not an
independent cause of action ................................................................................................................ 15
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Conclusion ................................................................................................................................................................... 15
List of Exhibits to Marcy Winograd’s anti-SLAPP Motion to Strike .......................... Error! Bookmark not defined.
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
TABLES OF AUTHORITIES
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Cases
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Adams v. Superior Court (1992) 2 Cal. App. 4th 521 .................................................................... 8
4
Baker v. Los Angeles Herald Exam’r (1986) 42 Cal. 3d 254 ......................................................... 9
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Barrett v. Rosenthal (2006) 40 Cal. 4th 33 ..................................................................................... 5
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Bogard v. Emp ‘rs Cas. Co., 164 Cal. App. 3d 602...................................................................... 14
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Cal-Tech Comm., Inc. v. L.A. Cellular Tel. Co. (1999) 20 Cal. 4th 163 ...................................... 14
8
Campanelli v. Regents of the Univ. (1996) 44 Cal. App. 4th 572 .................................................. 9
9
Cayley v. Nunn (1987) 190 Cal. App. 3d 300 ................................................................................. 7
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Chaker v. Mateo (2012) 209 Cal. App. 4th 1138............................................................................ 9
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City of Los Angeles v. Animal Def. League (2006) 135 Cal. App. 4th 606 .................................... 6
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Des Granges v. Crall (1915) 27 Cal. App. 313 .............................................................................. 7
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Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53 ............................................. 5
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Fellows v. National Enquirer, Inc. (1986) 42 Cal. 3d 234 ........................................................... 14
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Gilbert v. Sykes (2007) 147 Cal. App. 4th 13 ........................................................................... 9, 14
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Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6 (1970) ...................................... 10
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Gregory v. McDonnell Douglas Corp. (1976) 17 Cal. 3d 596 ..................................................... 10
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Hagberg v. California Fed. Bank FSB (2004) 32 Cal. 4th 39 .................................................... 7, 8
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Hall v. Time Warner, Inc. (2007) 153 Cal. App. 4th 1337 ............................................................. 5
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Hecimovich v. Encinal Sch. Parent Teacher Org. (2012) 203 Cal. App. 4th 450 .......................... 7
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Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005)
129 Cal. App. 4th 1228 ............................................................................................................... 6
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Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) ................................................................ 10
Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129 Cal. App. 4th 1050 ................... 6
Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134 ........................................ 13
Lam v. Ngo (2001) 91 Cal. App. 4th 832 ...................................................................................... 14
Lee v. Fick (2005) 135 Cal. App. 4th 89 ......................................................................................... 5
Leslie G. v. Perry & Assocs. (1996) 43 Cal. App. 4th 472 ........................................................... 13
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) ........................................................ 15
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
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Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)....................................................... 11
2
McGarry v. Univ. Of San Diego (2007) 154 Cal. App. 4th 97 ..................................................... 10
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Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) .................................................................... 10
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Mosesian v. McClatchy Newspapers (1991) 233 Cal. App. 3d 1685 ............................................. 8
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Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) .................................................................. 15
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New York Times Co. v. United States, 403 U.S. 713 (1971)......................................................... 15
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Nicosio v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999) ......................................................... 10
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Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal. App. 4th 1027 ....................................................... 9
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Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin,
418 U.S. 264 (1974) .................................................................................................................. 10
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People v. Black (2014) 58 Cal. 4th 912 ........................................................................................ 10
People v. Speegle (1997) 53 Cal. App. 4th 1405 .......................................................................... 10
PETA v. Bobby Berosini (1995) 111 Nev. 615 ....................................................................... 10, 11
Reader’s Digest Ass’n v. Superior Court (1987) 37 Cal. 3d 244 ................................................. 14
Rohde v. Wolf (2007) 154 Cal. App. 4th 28 .................................................................................... 8
Rudnick v. McMillan (1994) 25 Cal. App. 4th 1183 ....................................................................... 8
Scott v. McDonnell Douglas Corp. (1974) 37 Cal. App. 3d 277 .................................................... 7
Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal. App. 4th 798 ............................................... 6
Shell Oil Co. v. Richter (1942) 52 Cal. App. 2d 164 .................................................................... 15
Silberg v. Anderson (1990) 50 Cal. 3d 205 ..................................................................................... 7
Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988) ......................................................................... 11
Summit Bank v. Rogers (2012) 206 Cal. App. 4th 669 ................................................................. 10
Sutter Health v. Unite Here (2010) 186 Cal. App. 4th 1193 .................................................... 8, 12
Whelan v. Wolford (1958) 164 Cal. App. 2d 689 ........................................................................... 7
Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809 .................................................................. 5
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Statutes
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Cal. Civil Code Procedure § 425.16 ............................................................................................... 5
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Cal. Civil Code § 47.................................................................................................................... 7, 8
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
Cal. Civil Code § 525.................................................................................................................... 15
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Cal. Penal Code § 597 ................................................................................................................... 10
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Constitutional Provisions
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California Constitution, Art. 1, § 3 ................................................................................................. 7
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California Constitution, Art. 1, §2 .................................................................................................. 8
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United States Constitution, First Amendment ............................................................................ 7, 8
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
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INTRODUCTION
By filing this lawsuit, Plaintiffs attempt to silence community activists Marcy Winograd
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and Danielle Charney on an issue of considerable public interest and debate in Santa Monica:
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whether the city should permit the tethering of ponies to a metal “carousel” and the penning of
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farm animals in a small enclosure at the City-operated Sunday Main Street Farmers Market. This
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dispute also raises the question of whether any pony ride in which the ponies are tethered to a
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metal “carousel” meets modern standards of humane treatment.
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On March 30, 2014, Winograd launched a petition directed to the Santa Monica City
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Council to close the animal attractions. A week later Plaintiffs initiated a counter-petition.
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Winograd and her supporters conducted peaceful protests on the public walkways of the market
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and lively debate ensued between the parties and many others in on online posts, in local and
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national publications, at a candidates’ forum, and at the Santa Monica City Council. Eventually,
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Winograd’s petition led to a City Council vote on September 9, 2014, to give preference to non-
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animal vendors when Tawni’s Ponies’ contract expires in May of 2015.
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Plaintiffs have now started a new petition seeking to reverse the City Council decision,
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while using this lawsuit to attempt to stifle their opponents and instill fear in those who might
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otherwise speak out, chilling their freedom of speech.
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In this rough and tumble debate, Winograd and Charney have done nothing more than
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petition their government for a redress of grievances and express their strong and heartfelt
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opinions. To date, some 1,451-petition signers have agreed that the Plaintiffs’ animal “exhibits”
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are cruel, abusive, exploitative, and inhumane and that they have no place in the progressive
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environs of Santa Monica. Plaintiffs and their supporters have met Defendants’ assertions with
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equally if not more vehement counter attacks, which is the essence of the appropriate, if
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sometimes unruly, functioning of the marketplace of ideas.
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FACTUAL BACKGROUND
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The Plaintiffs’ pony ride has operated on Sundays at Santa Monica’s Main Street
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Farmer’s Market pursuant to eleven one-year contracts with the City, while the petting zoo has
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
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operated since 2011. Complaint ¶¶ 9 & 10. Plaintiffs advertise their business through an
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extensive web site (Exhibit 26) and a Facebook page. Exhibit 24. Winograd Decl ¶¶ 28 & 37.
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Their pony ride business is also promoted on the City of Santa Monica’s web site. Exhibit 9.
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Winograd Decl. ¶ 7.
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Community activist and a neighbor of the Main Street Farmers Market, Marcy Winograd,
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was troubled by the conditions at the pony ride and petting zoo. See Exhibits 1 – 8; Winograd
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Decl. ¶¶ 1 – 7. She objected to ponies, six at a time, being tethered to the mechanical iron bars of
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a “carousel”, circling on concrete, nose to rump, for 3.5 hours, denied reasonable freedom of
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movement to turn around or to seek water on their own, and provided with minimal, if any, water
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or shade. In addition, she noticed that the petting zoo consisted of a small crowded enclosure that
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severely restricted the animals’ freedom of movement. Ibid. ¶ 8.
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The question of whether petting zoos and pony rides are inhumane and abusive to
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animals is the subject of national and international debate. For example, the American Society
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for the Prevention of Cruelty to Animals, the Humane Society of the United States, and the
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World Equine Organization have all objected to pony rides; the ASPCA objects to petting zoos
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as well. Exhibit 16 and Winograd Decl. ¶ 13.
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On March 30, 2014, after neighbors and others voiced objections to the pony ride and
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petting zoo, Winograd launched an on-line petition requesting the City Council close the animal
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attractions. Winograd’s petition garnered 1451 signatures and ultimately led to the City Council
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passing a motion to instruct the City Manager to issue a Request for Proposal to replace the pony
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ride and petting zoo with non-animal attractions when the City’s contract with Tawni’s Ponies
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expires in May 2015. Exhibits 22 pp. 1 & 72 - 77 and Winograd Decl. ¶¶ 8, 24 & 25.
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As part of the petition effort, Winograd gathered signatures and, with a small group of
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supporters, peacefully protested on the public sidewalks and market walkways, expressing the
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opinion that the animal exhibits were abusive, while proposing a better way to use the valuable
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space at the main entrance to the market. (See Exhibit 12 & Winograd Decl. ¶ 9) She created a
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web site and video (see Exhibit 13 & Winograd Decl. ¶ 10), launched a Free the Pony Facebook
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page, blogged (see Exhibit 29 & Winograd Decl. ¶ 29), and published photos of penned zoo
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
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animals in the sun, and tightly tethered ponies, their vision seemingly obscured by bars and rope
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across their faces, and their feet dragging. See Exhibits 12 & 13.
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Discussions with many others informed and confirmed Ms. Winograd’s opinion that the
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petting zoo and pony ride were “abusive” “cruel” and/or “exploitative”. See, e g., Declarations of
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Doyno (an experienced farrier) ¶¶ 1, 2, 4 & 5, Gray (a citizen) ¶¶ 3 & 6, Johnson (former Santa
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Monica city official) ¶¶ 1 & 5, Charney (a citizen who grew up riding and caring for horses) ¶¶
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4, 7 & 8, and Oden (who spent most of his childhood on a ranch riding and caring for horses) ¶¶
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1 & 3 – 6, and Exhibit 14, which are true and correct copies of Letters to the Editor of the Santa
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Monica Daily Press from Britt Allcroft (April 3, 2014, pages 1 & 2; “sight . . . is horrendous”
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“abusive treatment”) and the O’Donnel family (May 23, 2014, pages 3 & 4 (“obvious that [the
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ponies] are unhappy, exhausted, animals not properly taken care of”; “blatant disrespect of
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animals” “we know from friends and neighbors that we are not the only ones”). She sent pictures
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of the pony ride to Professor Mark Beckoff, a distinguished scientist and associate of Dr. Jane
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Goodall. He responded stating that the Plaintiffs’ animal exhibits were inhumane because the
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animals lacked reasonable freedom of movement. See Exhibit 15 and Winograd Decl. ¶ 12.
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Many of the people who signed Ms. Winograd’s petition added comments, again supporting the
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conclusion that the pony ride and petting zoo were cruel and abusive. See Exhibit 11 and
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Winograd Decl. ¶ 8, last sentence,
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During the course of her petition drive, Winograd learned through California Public
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Record Act requests and other research, see Winograd Decl. ¶¶ 14 – 19, that, prior to her
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protests, Santa Monica Animal Control, its former Supervisor Sgt. Mike Graham, and farmers
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market managers – all mentioned in the Plaintiffs’ Complaint as reliable and trusted officials --
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had failed to provide minimum oversight of the animal exhibits, allowing Tawni’s Ponies to
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operate without the legally and contractually-required city animal permit for many years. See
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Exhibit 18, pp. 1 and 2. She also discovered that the City had no record of any independent
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veterinary checks of the animals, Exhibit 18, pp. 4 & 5. Moreover, the City admitted that over a
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period of many years there were no written reports on visitations to the market by Santa Monica
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Animal Control to safeguard the animals’ welfare. Exhibit 18, pp. 7 & 8.
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
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On August 21, 2014, as the Defendants’ petition drive gathered momentum, the City
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Parks and Recreation Commission, after testimony by Winograd and co-defendant Danielle
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Charney, voted to recommend that the City Council ban animal acts in public spaces in the City.
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Exhibit 21; Winograd Decl. ¶ 23. Following that, responding to Winograd’s March 30, 2014,
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petition and the public discussion surrounding it, the Santa Monica City Council, voted
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unanimously on September 9 to: a) instruct city staff to explore alternative and more suitable city
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venues for the pony ride and b) give preference to non-animal vendors when the Plaintiffs’ Main
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Street Farmers Market contract expires on May 14, 2015. See Exhibit 22: Witness Wadkin: p. 30
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lines 4 - 6; Tawni Angel: p. 16 line 16 to page 17 line 24; Councilman Winterer: p. 38 lines 6 – 8
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and 17 – 19, and Councilman Davis: p. 67 lines 23 – 25 and page 69 lines 1 – 3.
Plaintiffs have fully engaged in the public debate surrounding their pony ride and petting
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zoo. Plaintiff Tawni Angel wrote a response to Winograd’s April 3, 2014 Santa Monica Patch
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post in supported of her petition. See Exhibit 29, pp.1, 6 & 7. By April 6 the Plaintiffs had a
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competing petition to the City Council, see Exhibit 23. Plaintiffs placed signs at the pony ride
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and petting zoo soliciting signatures for their counter-petition. See Exhibit 28, page 1 and
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Winograd Decl. ¶ 31. Since early April of 2014, Plaintiffs have engaged in numerous advocacy
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efforts promoting their counter-petition in the following venues: Jason Nester’s Facebook page,
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Exhibit 27; Tawni’s Ponies web page, Exhibit 23; various postings on the Internet, including
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Exhibit 19 (entitled “Marcy Winograd’s Ridiculous LIES”). Plaintiffs also organized opposition
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speakers at the City Council meeting, Exhibit 22 pp: 9 – 21. Plaintiff Tawni Angel spoke at the
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hearing. Ibid at pp. 14 – 18, 60 & 61.
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Unhappy with the City Council vote, Plaintiffs launched a new petition on their Facebook
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pages to persuade the Council to reverse its position. Exhibit 24. The signs soliciting signatures
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at the pony ride and petting zoo were changed accordingly. Exhibit 28, p. 2, Tawni Angel
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appeared on radio shows, Exhibit 25, and the Plaintiffs posted articles on their web page (Exhibit
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26 p. 7), and on Jason Nester’s Facebook page, Exhibit 27 p. 2. They have escalated their
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campaign into the national blogosphere. See Exhibit 25 generally and especially, page 18 lines
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18 – 24 and Exhibits 32 & 33.
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
Lastly, Plaintiffs filed the instant lawsuit against Winograd and Charney for speaking out
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in defense of the voiceless animals. Plaintiffs are seeking to gain an unfair advantage in the
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public debate by misusing the legal process to try to silence their opposition.
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ARGUMENT
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The California Anti-SLAPP statute was enacted to protect fundamental constitutional
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rights of petition and speech and is to be construed broadly. Civ. Code Proc. § 425.16(a).1 This
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Court is familiar with the application of the anti-SLAPP statute and no further general
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description of its operation is required.
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I.
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Subdivision (e) of the anti-SLAPP statute provides four illustrations of the types of acts
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“in furtherance of a person's right of petition or free speech” covered by the statute:
(1) any written or oral statement or writing made before a legislative, executive,
or judicial proceeding, or any other official proceeding authorized by law; (2) any
written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law; (3) 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: (4) 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. (Emphasis supplied)
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Plaintiffs’ Claims are Subject to the Anti-SLAPP Statute Because They Arise from
Protected Petitioning and Speech Activity
As explained below, Winograd’s activity clearly falls within all four subsections.2
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All subsequent citations are to the California Code of Civil Procedure unless otherwise
indicated. Any designations of a ¶ sign without more are to paragraphs in the Complaint.
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The anti-SLAPP statute has been applied to each of the causes of action plaintiffs allege in their
Complaint—defamation, Barrett v. Rosenthal (2006) 40 Cal. 4th 33, intentional interference
with prospective economic advantage, Lee v. Fick (2005) 135 Cal. App. 4th 89, and
intentional infliction of emotional distress, Hall v. Time Warner, Inc. (2007) 153 Cal. App. 4th
1337. In fact, each of Plaintiffs’ claims are among the causes of actions that the SLAPP suit was
aimed at protecting speakers against: “The favored causes of action in SLAPP suits are
defamation, various business torts such as interference with prospective economic advantage,
nuisance and intentional infliction of emotional distress.” Wilcox v. Superior Court (1994) 27
Cal. App. 4th 809, 816 (emphasis added) (disapproved on another point in Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 68 n. 5).
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
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All of Winograd’s alleged statements related to her initial petition to the Santa Monica
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City Council (Exhibit 10). In addition, they meet public interest requirement of (e)(2) and (e)(3).
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The requirement that the activity be “‘in connection with an issue of public interest’ . . . is to be
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‘construed broadly’ so as to encourage participation by all segments of our society in vigorous
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public debate related to issues of public interest.” Seelig v. Infinity Broadcasting Corp. (2002) 97
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Cal. App. 4th 798, 808; Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129 Cal.
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App. 4th 1050, 1064. Numerous courts have held that humane treatment of animals is an issue of
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widespread public interest. See, e.g., Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal
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Cruelty USA, Inc. (2005) 129 Cal. App. 4th 1228, 1246 (animal testing) and City of Los Angeles
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v. Animal Def. League (2006) 135 Cal. App. 4th 606, 620 (mistreatment of animals). Indeed, the
11
profusion of media and public discussion generated by this controversy demonstrates the public
12
interest in the issue. See e.g., the fact that 1,451 signed Winograd’s Petition and Exhibits 14, 16,
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25, 31 & 32. See also Declarations of Doyno, Johnson, Gray, and Charney.
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The legislature’s command to interpret the anti-SLAPP statute broadly requires that “a
15
court must generally presume the validity of the claimed constitutional right in the first step of
16
the anti-SLAPP analysis, and then permit the parties to address the issue in the second step of the
17
analysis, if necessary.” Animal Def. League, 135 Cal. App. 4th at 621. To do otherwise would
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make “the second step . . . superfluous in almost every case, resulting in an improper shifting of
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the burdens.” Id.
20
Winograd satisfies the threshold requirements of section 425.16(e) with respect to all of
21
Plaintiffs’ claims. The burden thus shifts to Plaintiffs to demonstrate a probability of prevailing
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on those claims.
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II.
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Plaintiffs Cannot Establish a Probability of Prevailing on Their Claims
Plaintiffs assert four causes of action, the last three of which are derivative of and
25
redundant to their libel claim. Because they cannot meet their burden to demonstrate that these
26
claims are both legally sufficient and supported by admissible evidence, the Court should grant
27
this Motion.
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A. The U.S. and California Constitutions Prohibit Plaintiffs’ Libel Claim
6
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
Plaintiffs’ libel claim is based on a variety of alleged statements by Winograd, which can
2
be categorized generally as statements made to the Santa Monica City Council, ¶¶ 24, 35, 38-39,
3
statements made to or in connection with statements to officials operating the City of Santa
4
Monica, ¶¶ 11, 13, 14-15, 17, 20-23, 27, 31, 46, statements made at public protests, ¶¶ 11-13, 34,
5
45-46, statements made in connection with online advocacy, ¶¶ 11, 13, 18-19, 26-27, 33-34, and
6
statements made to the news media in connection with Winograd’s advocacy, ¶¶ 37, 47.
7
The Court should first note that contrary to California rules of pleading in libel cases, the
8
Plaintiffs have failed to plead the exact words allegedly used by the defendant or attach a copy of
9
the allegedly libelous statement. See Des Granges v. Crall (1915) 27 Cal. App. 313, 314-15.
10
Hecimovich v. Encinal Sch. Parent Teacher Org. (2012) 203 Cal. App. 4th 450, 457 n.1. This
11
alone is sufficient to grant the special motion to strike the libel claim. However, the defects in the
12
Plaintiffs’ action are more fundamental than that because if free speech is not protected in this
13
case, the result will broadly threaten free speech in issues relating to animal rights and other
14
controversial matters and will be trumpeted nationally in the blogosphere. See Exhibits 32 & 33.
15
1. Winograd’s Speech Is Absolutely Privileged Petitioning Activity
16
The right to petition the government for a redress of grievances is basic to any
17
democracy. First Amendment and California Constitution, Art. 1, § 3. Since all of Winograd’s
18
statements were made in connection with her petition to close the pony ride and petting zoo, she
19
is absolutely immune from civil liability under Civil Code § 47(b). Absolute immunity attaches
20
to any statements made in any legislative proceeding or any other official proceeding authorized
21
by law. § 47(b). “[T]he privilege ‘is to assure utmost freedom of communication between
22
citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’”
23
Silberg v. Anderson (1990) 50 Cal. 3d 205, 213. The privilege applies to any statement designed
24
to prompt action by law enforcement authorities, Hagberg v. California Fed. Bank FSB (2004)
25
32 Cal. 4th 39, 360, and statements made in connection with such statements. See Cayley v.
26
Nunn (1987) 190 Cal. App. 3d 300, 304 (statements made to individuals during a petition drive
27
were made in connection with legislative proceeding and absolutely privileged); see also Whelan
28
v. Wolford (1958) 164 Cal. App. 2d 689 (allegedly defamatory material presented to city); Scott
7
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
v. McDonnell Douglas Corp. (1974) 37 Cal. App. 3d 277 (letter sent to City Council). The
2
privilege attaches “without respect to the good faith or malice of the person who made the
3
statement, or whether the statement ostensibly was made in the interest of justice,” in order to
4
provide an “open channel of communication by which citizens can call attention to suspected
5
wrongdoing.” Hagberg, 32 Cal. 4th at 360-61. As with the anti-SLAPP statute, “courts broadly
6
construe section 47(b),” Rohde v. Wolf (2007) 154 Cal. App. 4th 28, 37, and “[a]ny doubt as to
7
whether the privilege applies is resolved in favor of applying it.” Adams v. Superior Court
8
(1992) 2 Cal. App. 4th 521, 529.
9
All of the statements claimed to be libelous were made after March 30, 2014 when
10
Winograd started her petition to the City Council. They all relate to the Plaintiffs’ animal
11
attraction or to its effects on the animals. In that sense, they were all made in connection with
12
statements presented to the City legislature. Plaintiffs cannot therefore show a probability of
13
prevailing on the libel per se claim.
14
15
2. Winograd’s Speech is Constitutionally Protected
Even if the Court were to find that some of Winograd’s statements described in the
16
Complaint did not have a sufficient connection with legislative or executive action to warrant
17
protection under section 47(b), Plaintiffs cannot show a probability of prevailing based on these
18
statements because they are protected by the First Amendment and Article 1, §2 of the California
19
Constitution (hereinafter collectively “Constitutional Free Speech Protections”). Limited public
20
figures like these Plaintiffs must carry the “heavy” and “daunting” burden of proving that the
21
defendant acted with “actual malice” by “clear and convincing evidence.” Sutter Health v. Unite
22
Here (2010) 186 Cal. App. 4th 1193, 1210 (emphasis added).
23
24
a.
Plaintiffs are limited purpose public figures
“To qualify as a limited purpose public figure, a plaintiff ‘must have undertaken some
25
voluntary [affirmative] act[ion] through which he seeks to influence the resolution of the public
26
issues involved.’” Rudnick v. McMillan (1994) 25 Cal. App. 4th 1183, 1194; accord Mosesian v.
27
McClatchy Newspapers (1991) 233 Cal. App. 3d 1685, 1699. Plaintiffs’ own allegations
28
establish that they have a controversial contract with the City to provide public-facing and
8
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
publicly-accessible animal rides, which the City decided not to renew after public outcry. ¶¶ 10-
2
11, 35-39. They run a publicly accessible website touting their business and animal care,
3
including a page dedicated to press releases, and related pages promoting their business on
4
websites including Facebook. Exhibits 24, 26 & 27. The City of Santa Monica’s website actively
5
promotes Plaintiffs and their business. Exhibit 9. In addition, beginning at least by April 3, 2014,
6
a few days after Winograd posted her petition, Plaintiffs entered the discussion and a few days
7
later posted a counter-petition seeking to influence the resolution of the issue of the pony ride’s
8
potential continuation at the Farmers Market. See discussion at page 4 above.
9
By voluntarily injecting themselves into a matter of widespread public concern—the
10
treatment and well-being of animals—Plaintiffs act as limited public figures for purposes of their
11
claims. See Gilbert v. Sykes (2007) 147 Cal. App. 4th 13, 24-26 (applying limited public figure
12
standard and reversing order denying special motion to strike).
13
Hence, Plaintiffs must present clear and convincing evidence that the challenged
14
statements are factual statements that are provably false and that Winograd knew or recklessly
15
disregarded the facts. Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal. App. 4th 1027, 1048.
16
17
18
19
b.
Winograd’s speech is nonactionable opinion and hyperbole
All of Winograd’s challenged statements were not factual. Instead, they were nonactionable opinion and hyperbole, fully protected by Constitutional Free Speech Protections.
The issue of whether an allegedly defamatory statement constitutes fact or opinion is a
20
question of law. Campanelli v. Regents of the Univ. (1996) 44 Cal. App. 4th 572, 578.
21
Distinguishing between fact and opinion in the defamation context requires consideration of the
22
“totality of the circumstances which gave rise to the statements and in particular the context in
23
which the statements were made.” Chaker v. Mateo (2012) 209 Cal. App. 4th 1138, 1147. “This
24
contextual analysis demands that the courts look at the nature and full content of the
25
communication and to the knowledge and understanding of the audience to whom the
26
publication was directed.” Baker v. Los Angeles Herald Exam’r (1986) 42 Cal. 3d 254, 261.
27
“Where potentially defamatory statements are published in a setting in which the audience may
28
anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery
9
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
rhetoric or hyperbole, language which generally might be considered as statements of fact may
2
well assume the character of statements of opinion.” Summit Bank v. Rogers (2012) 206 Cal.
3
App. 4th 669, 696 (quoting Gregory v. McDonnell Douglas Corp. (1976) 17 Cal. 3d 596, 601
4
(alterations omitted)) (emphasis added).
5
Black letter law bars libel suits based on statements of rhetorical hyperbole, for such
6
statements do not purport to make factual claims. Milkovich v. Lorain Journal Co., 497 U.S. 1,
7
16-17 (1990). Protecting exaggerated rhetoric “provides assurance that public debate will not
8
suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally
9
added much to the discourse of our Nation.” Id. at 20.
10
Speech deemed to be non-actionable hyperbole include “blackmail” (Greenbelt
11
Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 13, 14 (1970)), “traitor” (Old Dominion
12
Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 284,
13
286 (1974)), and a parody cartoon accusing a public figure of incest (Hustler Magazine, Inc. v.
14
Falwell, 485 U.S. 46, 57 (1988)). Each of these statements involve some arguable connection to
15
a criminal prohibition, like the charge of animal abuse made by Winograd.
16
Courts have reached the same results in animal rights disputes involving allegations of
17
animal abuse or animal cruelty. See, e.g., Nicosio v. De Rooy, 72 F. Supp. 2d 1093, 1107 (N.D.
18
Cal. 1999) (“statements that plaintiff’s actions were cruel or abusive are protected as a matter of
19
law”); PETA v. Bobby Berosini (1995) 111 Nev. 615, 617 (accusations that trainer’s treatment of
20
orangutans was “abuse” and “cruel” were nonactionable opinions).3
21
22
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24
25
26
27
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Plaintiffs’ theory—that using the term “animal abuse” is libel per se because “‘animal abuse[]’
is a crime under California law,” ¶ 12—fails. As an initial matter, the prohibition in the
California Penal Code is “animal cruelty,” not “animal abuse.” See Penal Code § 597; People v.
Black (2014) 58 Cal. 4th 912, 914 (“Defendant was charged by information with two counts of
animal cruelty.”). Section 597 is an unusually subjective and nebulous prohibition leaving
undefined the degree of suffering that the enforcement authority may deem ‘necessary’ suffering.
Penal Code § 597(b); cf. People v. Speegle (1997) 53 Cal. App. 4th 1405, 1411 (“There are an
infinite number of ways in which the callously indifferent can subject animals in their care to
conditions which make the humane cringe” but not all qualify under the statute). In this context,
Winograd’s accusations of “animal abuse” are non-actionable opinion. An accusation of “animal
abuse” is a classic statement of subjective judgment on an amorphous moral issue. See McGarry
3
10
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
In fact, before bringing this lawsuit, Plaintiff Angel repeatedly defended her business
2
from Winograd’s criticism by admitting the obvious—that Winograd’s claims of mistreatment
3
were “all Marcy’s opinion.” See Exhibit 19 at page 2 (emphasis added). As admitted in the
4
Complaint, Winograd’s challenged statements arose in the context of a months-long campaign to
5
replace the Plaintiffs’ animal attraction with a non-animal vendor. ¶ 12. Like many debates over
6
political and social issues, both sides hurled accusations and employed heated rhetoric.
In context, Winograd’s alleged accusations of “animal abuse” are precisely the sort of
7
8
statements made by a committed advocate that warrant constitutional protection.4 See Summit
9
Bank v. Rogers (2012) 206 Cal. App. 4th 669, 698.
10
c.
11
Even if any of Winograd’s speech is arguably a statement of
fact, defendants cannot show actual malice
Even if some of Winograd’s remarks were statements of fact—which they were not—
12
13
Plaintiffs cannot demonstrate that Winograd acted with actual malice, i.e., that she knew or
14
recklessly disregarded their falsity. Actual malice is a legal term of art not to be confused with
15
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19
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spite or ill will. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991).5
v. Univ. Of San Diego (2007) 154 Cal. App. 4th 97, 117 (“Behavior that might qualify as
immoral to one person, although being perfectly acceptable to another person, demonstrates that
an amorphous assertion of immoral behavior is within the range of statements of opinion that are
not actionable.”); see also Berosini, 111 Nev. at 625 (“[N]o one can be successfully sued for
expressing such an evaluative opinion—even if it is ‘wrong.’”).
Plaintiffs’ Complaint also alleges a variety of accusations about “racially-tainted and sexist
references,” ¶ 21-22, but Plaintiffs do not appear to base any causes of action on this rhetoric.
Instead, they appear to include this material only as evidence of malice justifying their claim for
punitive damages. ¶ 23. In so doing, they clearly confuse the legal term of art—meaning
knowing or reckless disregard for the truth—with malice as ill will. In any event, if plaintiffs did
intend to plead libel based on these assertions, claims of “racially-tainted and sexist references”
are unquestionably protected opinion and not a statement of provable fact. See, e.g., Stevens v.
Tillman, 855 F.2d 394, 402 (7th Cir. 1988).
4
“The standard of actual malice is a daunting one that focuses solely on the defendant's
subjective state of mind at the time of publication. The plaintiff must prove that the defendant
was actually aware the contested publication was false or that the defendant made the publication
with reckless disregard of whether it was true or false. Such reckless disregard means the
defendant entertained serious doubts as to the truth of the publication, i.e., that the defendant had
5
11
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
To the extent Plaintiffs believe that Winograd’s alleged statements that the ponies had
2
cracked hooves or were given filthy water are provably false and do not qualify as nonactionable
3
rhetoric, Plaintiffs cannot demonstrate that Winograd knew or recklessly disregarded their
4
falsity. Winograd’s statements were based on observations of animals with lowered heads, reins
5
tightly tied to the “carousel’s” metal bar, hooves showing injury or damage, a water bucket filled
6
with greenish looking water adulterated with something, and water buckets with a live chicken
7
perched atop it. See Exhibits 1 – 8; as to the water, see particularly Exhibit 4, pages 5 & 6. As for
8
cracked hooves, Mr. Oden, who himself spent years on a farm and was familiar with horses,
9
described the hooves as “cracked.” Oden Decl. ¶¶ 1, 4 & 5. A farrier with 18 years experience
10
caring for horses also informed Winograd that some ponies appeared to be lame with hooves that
11
had problems. Doyno Decl. ¶¶ 1, 4 – 6. See also Exhibit 4, pp. 1 – 4.
12
Contrary to Plaintiffs’ assertion, the opinion of investigating police officers does not
13
establish absolute truth. See ¶¶ 14, 16, 30-31. A finding of an investigating officer does not
14
extinguish Winograd’s own right to publicly disagree. The rights of citizens to express opinions
15
or even state matters of fact are not restricted by the determinations of police officers or
16
bureaucrats. Even after an adjudicated finding a citizen may express disagreement with official
17
determinations. The entire line of reasoning in the Complaint that, “because the police say its so,
18
makes it so,” is more befitting a dictatorship than a democracy. This line of reasoning should be
19
completely rejected by the Court. Moreover, Winograd was receiving contrary information from
20
others with training and expertise in horses. See facts at page 3 first full paragraph.
21
22
23
24
25
26
27
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a high degree of awareness of its probable falsity. It is not measured by what a reasonably
prudent person would have published, or would have investigated before publishing. The failure
to conduct a thorough and objective investigation, standing alone, does not prove actual malice.
Mere negligence does not suffice, nor does gross or even extreme negligence. Furthermore, the
plaintiff must prove actual malice by clear and convincing evidence—a standard of proof that
imposes a heavy burden, far in excess of the preponderance sufficient for most civil litigation.
This standard requires the evidence of actual knowledge of the falsity of the statement, or
reckless disregard for its falsity, must be of such a character as to command the unhesitating
assent of every reasonable mind.” Sutter Health, 186 Cal.App.4th at 1211 (internal citations and
quotations omitted).
12
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
Furthermore, Winograd had good reason to distrust the investigating officer and market
2
managers, after they failed to provide adequate oversight of Plaintiff’s operations and declined to
3
address the questions raised by Ms. Winograd and others. These public officials allowed
4
Plaintiffs to operate for years without the legally-required city animal permit, without
5
independent veterinary checks, etc. Winograd Decl. ¶¶ 14 – 19.
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Plaintiffs simply cannot show a probability of prevailing on their daunting burden of
establishing malice by clear and convincing evidence.
B. Plaintiffs’ claim for intentional interference with prospective economic
advantage fails because Plaintiffs cannot show damages or causation and the
claim is predicated on protected speech
Plaintiffs cannot establish a probability of prevailing on their claims for intentional
interference with prospective economic advantage (“IIEPA”) because they cannot establish
causation, and Winograd’s speech is protected by the First Amendment.
As to causation, Plaintiffs’ own allegations are that the City Council approved a proposal
to refrain from renewing Plaintiffs’ annual contract, not due to allegations of abuse, “but rather
because there was such a controversy in the community regarding the pony rides and petting
zoo.” ¶ 39. The members of the City Council in their September 9 deliberations confirmed that,
expressly disavowing that their decision was in any way based on allegations of Angel’s
wrongdoing. See Exhibit 22: Winterer: p. 7 lines 12 & 13 and Davis: P. 6 lines 4 – 8
Plaintiffs then attempt to backdoor Winograd into their claim by alleging there would
have been no controversy “but for the false charges of animal abuse.” The controversy over
Plaintiffs’ business, however, involved over 1,450 concerned individuals who signed Winograd’s
petition. The idea that no controversy would have existed but for Winograd’s involvement and
the specific wording of her criticism is “based on mere speculation, conjecture and inferences
drawn from other inferences to reach a conclusion unsupported by any real evidence.” Leslie G.
v. Perry & Assocs. (1996) 43 Cal. App. 4th 472, 488.
Winograd’s acts were not wrongful in any case. An IIPEA plaintiff must plead and prove
that the defendant engaged in an independently wrongful act in disrupting the economic
relationship. Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1158. As
13
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
detailed above, Winograd’s speech was privileged pursuant to Civ. Code § 47(b) and protected
2
by Constitutional Free Speech Protections. Speech protections “should not evaporate merely
3
because the plaintiff discovers a conveniently different label for pleading what is in substance an
4
identical grievance arising from identical conduct.” Cal-Tech Comm., Inc. v. L.A. Cellular Tel.
5
Co. (1999) 20 Cal. 4th 163, 182. The IIEPA claim fails for the same reason the libel claim
6
fails—Winograd’s petitioning activity and speech are protected.
7
8
9
C. Plaintiffs cannot prove the elements of Intentional Infliction of Emotional
Distress
Plaintiffs’ claim for intentional infliction of emotional distress (“IIED”) fails because it is
10
insufficiently pled and is entirely dependent upon their libel claim. See Fellows v. National
11
Enquirer, Inc. (1986) 42 Cal. 3d 234, 245. (“[T]o allow an independent cause of action for the
12
intentional infliction of emotional distress, based on the same acts which would not support a
13
defamation action, would allow plaintiffs to do indirectly what they could not do directly . . .
14
[and] would render meaningless any defense of truth or privilege.”); Gilbert, 147 Cal. App. 4th
15
at 34; (“the collapse of [plaintiff’s] defamation claim spells the demise of all other causes of
16
action . . . such as intentional and negligent interference with economic advantage and
17
intentional infliction of emotional distress, all of which allegedly arise from the same
18
19
publications”).
Even if the claim did not fail as redundant, it fails for the same reasons the libel claim
20
fails: an IIED claim may not be based on constitutionally protected speech or conduct, as
21
Plaintiffs’ claim is here. See, e.g., Lam v. Ngo (2001) 91 Cal. App. 4th 832, 848-49; Reader’s
22
Digest Ass’n v. Superior Court (1987) 37 Cal. 3d 244, 265.
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24
25
26
27
28
In any event, Plaintiffs fail to sufficiently plead facts demonstrating “outrageous conduct”
or facts evidencing “severe emotional distress.” Anxiety about being shunned by some and
facing protesters (¶¶ 34, 64) falls far short of the severity required to maintain a claim. See
Bogard v. Emp ‘rs Cas. Co. (1985) 164 Cal. App. 3d 602, 617-18.
Because of these numerous and fatal deficiencies, Plaintiffs cannot show a probability of
prevailing on the merits of their IIED claim.
14
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
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2
3
4
5
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7
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D. Plaintiffs’ request for a prior restraint is improper and, in any event, is a request
for relief and not an independent cause of action
Plaintiffs cannot show a probability of prevailing on their Fourth Cause of Action—
“Injunctive Relief”—because under California law, an injunction is a remedy, not a cause of
action. § 525; Shell Oil Co. v. Richter (1942) 52 Cal. App. 2d 164, 168. Similarly, even if
injunctive relief was a cause of action, the claim would be dependent on Plaintiffs’ libel claim,
and fails for the same reasons the libel claim fails: Winograd’s conduct was privileged. Finally,
Plaintiffs’ request for injunctive relief asks this court to grant an unconstitutional prior restraint
on speech. ¶ 66 “[A]n injunction against speech is the very prototype of the greatest threat to
First Amendment values, the prior restraint.” Madsen v. Women’s Health Ctr., Inc., 512 U.S.
753, 797 (1994) (Scalia, J., concurring). See also Nebraska Press Ass’n v. Stuart, 427 U.S. 539,
559 (1976) and New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
CONCLUSION
This case provides a textbook example of why anti-SLAPP motions are important to
protect the rights of California residents to speak on matters of public concern and to provide
deterrence against claims aimed at silencing criticism. Plaintiffs filed suit against community
activists over run-of-the mill criticism and hyperbole, seeking relief in the form of punitive
damages and an unconstitutional prior restraint.
Plaintiffs’ claims are subject to the anti-SLAPP statute under each of the four categories
specifically mentioned in Section 425.16(e) because they were made in connection with
executive and legislative proceedings and they were made in public fora about an issue of public
interest. Plaintiffs will not be able to establish a probability of prevailing on their claims because,
inter alia, those claims are barred by Civ. Code § 47 and the First Amendment. The Court should
therefore grant Winograd’s special motion to strike and award her attorneys fees and costs in an
amount to be determined by a subsequent motion.
Date: December 11, 2014.
LAW OFFICE OF JAMES A. FRIEDEN
James A. Frieden, Esq., SBN 73983
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15
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
By: ____________________________________
James A. Frieden (73983)
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Attorney for Defendant MARCY WINOGRAD
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List of Exhibits to Marcy Winograd’s anti-SLAPP Motion to Strike
Photograph taken by Ira Gottlieb on April 6, 2014 (3 photographs)
Photographs taken by Jackie Hirtz on April 6, 2014 (2 photographs)
Photographs taken by Marcy Winograd on May 4, 2014 (3 photographs)
Photograph taken by Ralph Oden on May 11, 2014 (6 photographs – need more)
Photographs taken by Marcy Winograd on June 1, 2014 (1 photograph)
Photographs taken by Marcy Winograd on June 8, 2014 (2 photographs)
Photographs taken by Marcy Winograd on June 22, 2014 (4 pictures)
Photographs taken by Marcy Winograd on July 13, 2014 (1 picture)
Main Street Market Page of City of Santa Monica Web Site advertising the Pony Ride
(2 pages)
Petition by Marcy Winograd to City Council March 30, 2014 (3 pages)
Selected comments to Petition by Marcy Winograd to City Council March 31, 2014
(4 pages)
Handout by Protesters and Language from Protesters’ Signs (6 pages)
Reserved
Sample Letters to the Editor Monica Daily Press Opposing Pony Ride and Petting
Zoo (4 pages)
Marc Beckoff Email Correspondence dated July 14, 2014 (4 pages)
ASPCA, HSUS and World Equine Org statements Opposing Pony Rides (9 pages)
Emails from Marcy Winograd to City Officials (1 page)
CPRA Responses for City Officials (8 pages)
“Marcy Winograd’s Ridiculous LIES” July 8, 2014 post by Plaintiff Tawni Angel (3
pages)
Photo of Residocracy Meeting on July 30, 2014 (1 page)
Minutes of the Recreation and Parks Commission -- August 21, 2014 (4 pages)
Transcript of Santa Monica City Council Meeting September 9, 2014 (79 pages)
Petition by Tawni Angel to Santa Monica City Council first signature on April 6,
2014 (1 page)
Tawni’s Ponies Facebook page and Petition by Tawni Angel to City Council on
November 18, 2014 (5 pages)
Transcript of Radio Show Appearance by Tawni Angel on November 19, 2014 (22
pages)
Selected pages from Tawni’s Ponies Web Site (6 pages)
Jason Nester Facebook Page (2 pages)
Plaintiffs’ signs at the pony ride and petting zoo soliciting signatures on their
positions (2 pages)
April 3, 2014 Santa Monica Patch Article written by Marcy Winograd with Tawni
Angel’s response (8 pages)
Santa Monica Patch posting by Tawni Angel (5 pages)
Photo of Jason Nester photographing petition signer (1 page)
Bedlam Farm posting by John Katz November 13, 2014 (4 pages)
16
MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE
1
33
2
34
Blue State Blues: Santa Monica’s Ponies to be Replaced by Asses by Joel Pollak,
September 14, 2014 (4 pages)
LA Times Article re: Arrest of Prior Pony Ride Operator for Animal Abuse (1 page)
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PROOF OF SERVICE
1013A (3) CCP
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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not
a party to the within action; my business address is: 1717 Fourth Street, Third floor, Santa
Monica, CA 90401-3319.
On the date set out below, I served the foregoing document described as DEFENDANT MARCY
WINOGRAD’S SPECIAL MOTION TO STRIKE PLAINTIFFS’ COMPLAINT (CAL. CODE CIV. PROC.
§ 425.16)
on the following interested parties via Fedex next day delivery
TALISMAN LAW, P.C.
DONALD E. CHOMIAK, ESQ. (SBN 225156)
1010 N. Central Avenue
Glendale, CA 91202-2937
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Executed on December 11, 2014 at Santa Monica, California.
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I declare under penalty of perjury under the laws of the United States of
America and the State of California that the above is true and correct.
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___________________________
James A. Frieden, Esq.
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MEMORANDUM IN SUPPORT OF WINOGRAD’S SPECIAL MOTION TO STRIKE