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1 0 0 D. COLETTE WILSON SBN Midland Rd., Suite 0 Poway, California 0 tel: ( -00 fax: ( - Attorney for Plaintiff PETER F. PAUL PETER F. PAUL, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES CENTRAL DIVISION IN A MATTER OF UNLIMITED JURISDICTION Plaintiff, WILLIAM JEFFERSON CLINTON, GARY SMITH, JAMES LEVIN, and DOES -0, Defendants. I. Case No. BC0 PLAINTIFF S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO ANTI-SLAPP MOTION OF WILLIAM JEFFERSON CLINTON DATE: November, 00 TIME: :0 DEPT: The Honorable Aurelio N. Munoz Original Complaint Filed: 0--0 st Amended Cplt. Filed: nd Amended Cplt. Filed: Discovery Cut-Off: None Trial Date: None CLINTON HAS FAILED TO DEMONSTRATE THAT PLAINTIFF S CLAIMS ARISE FROM THE EXERCISE OF HIS RIGHT OF SPEECH OR PETITION Defendant William Jefferson Clinton ( Clinton has brought a motion under Code of Civil Procedure section. ( anti-slapp to strike the First, Second, and Third Causes of Action of plaintiff s Second Amended Complaint ( SAC. Unless otherwise noted, all statutory references are to the California Code of Civil Procedure. Defendant James Levin ( Levin joined in Clinton s anti-slapp motion. The arguments herein are therefore intended in opposition to Levin s joinder in the motion as well. --

2 0 0 Clinton has the burden of making a threshold showing that the challenged cause of action is one arising from protected activity. Soukup v. Law Offices of Herbert Hafif (00 Cal. th 0,. Clinton s burden of making this showing has two distinct parts. First, Clinton is required to show that he engaged in a protected activity under the anti-slapp statute. Second, Clinton must demonstrate that plaintiff s claims against him arise from that activity. Clinton may have made a showing as to the first part, but he completely fails to explain how he has satisfied his burden as to the second part. In fact, he never even attempts to explain how plaintiff s claims arise from any protected activity. This is fatal to Clinton s motion. This court has previously held that Clinton s involvement with his wife s fundraising event on August, 000, ( the Hollywood Tribute constituted protected activity. Furthermore, the act of soliciting campaign contributions is also a protected activity, and to the extent Clinton s promises to plaintiff were intended to solicit plaintiff s expenditures on Mrs. Clinton s Senate race, Clinton engaged in arguably protected activity. As the SAC 0 specifies, however, any expenditures plaintiff made in cooperation, consultation, or concert, with, or at the request or suggestion of, Mrs. Clinton, her authorized political committees, or their agents would be considered to be a contribution to Mrs. Clinton, subject to the federal campaign contribution cap in Title of the United States Code section a, subdivision (a((a, which at the time was $,000. Under Title of the United States Code section a, subdivision (f, it would be illegal for Mrs. Clinton or her political campaign committee to knowingly accept any contribution in violation of Title of the United States Code section a. Consequently, it is highly debatable that Clinton engaged in protected activity when he solicited plaintiff s expenditures in excess of $,000 for Mrs. Clinton s Senate campaign. Paul for Council v. Hanyecz (00 Cal.App. th,. However, even if it is taken as a given that Clinton did engage in protected activity, Clinton s burden does not end there. He is required to show that plaintiff s claims arise from that protected activity. Clinton fails to even come close to making this showing. In fact, Clinton fails to even acknowledge what plaintiff s claims are, namely, tortious interference with plaintiff s business relationship with Tendo Oto. Clinton has the burden of showing that --

3 0 0 plaintiff s claims for (a Intentional Interference with Prospective Economic Advantage, (b Intentional Interference with Performance of Contract by Third Person, and (c Civil Conspiracy as to (a and (b all arise from Clinton s protected activity. Clinton argues that because Plaintiff s claims all arise from his alleged business relationship with former President Clinton (Clinton anti-slapp Motion at :- and Plaintiff s role as an organizer of and contributor to a political fundraiser was part and parcel of and inextricably intertwined with his proposed business relationship with the President, (Clinton anti-slapp Motion at :-:, that this somehow demonstrates that plaintiff s claims in the Second Amended Complaint arise from Clinton s protected conduct. Clinton s logic fails on one simple point, however. Having a proposed business relationship does not qualify as a protected activity under the anti-slapp statute. The only protected activities, if any, that Clinton engaged in were: (a participating in a political fundraising event and (b soliciting plaintiff s campaign contributions on behalf of Mrs. Clinton. It is Clinton s threshold burden to demonstrate that plaintiff s tortious interference claims arose from one of those two activities. The anti-slapp statute requires that the defendant s act underlying the plaintiff s cause of action must itself have been an act in furtherance of the right of petition or free speech. City of Cotati v. Cashman (00 Cal. th,. Clinton s arguments all seem to be directed at plaintiff s prior complaints, without focusing on the specific language of plaintiff s present complaint. In the First Amended Complaint, plaintiff s claims against Clinton arose from Clinton s fraudulent promise that he would work for plaintiff after he left the White House, which led to plaintiff s making campaign contributions to Mrs. Clinton s Senate race in the form of underwriting the Hollywood Tribute. Plaintiff claimed he was damaged because he was lured into spending the money, yet Clinton had no intention of keeping his promise. Clinton appears to miss the fact that, in the Second Amended Complaint, plaintiff s claims against Clinton and Levin are quite different. Although the story still begins with Clinton s promise that he would work for plaintiff after he left the White House, that is not the basis for plaintiff s claims. It is merely a fact that explains how Clinton was ultimately able to --

4 0 0 tortiously interfere with plaintiff s business relationship with Tendo Oto ( Oto. Clinton s promise led plaintiff to permit Clinton s designated agent, Levin, to have free access to plaintiff s business contact, Oto, who was poised to make substantial capital investments in Stan Lee Media, Inc. (SAC - Because of Clinton s promise that he would work for plaintiff, and because Oto, in turn, wished to share in plaintiff s presumed future contract with Clinton, plaintiff endeavored to have Oto spend time with Clinton, which plaintiff accomplished through Levin as Clinton s agent and go-between. That is why plaintiff endeavored to have Oto admitted to the Hollywood Tribute and sit behind the First Family, endeavored to have Oto admitted to the Streisand brunch the following day and chat with Clinton, and endeavored to have Oto attend the last State dinner at the White House (SAC 0, -,, 0 Through Levin, Clinton was able to interfere with plaintiff s business relationship with Oto; through Clinton, Levin was able to draw Oto away from plaintiff. (SAC 0-, - Obviously, Oto s interest in Levin was directly related to Levin s connection to Clinton, as Levin had little else to offer Oto. Thus, contrary to Clinton s characterization, plaintiff s present claims against him do not flow from any protected activity, but from Clinton s conduct, through Levin, that interfered with plaintiff s business relationship with Oto. Previously, when plaintiff s claims against Clinton were based on fraud, there was a direct correlation between the false promise and Clinton s intent that plaintiff make expenditures on behalf of Mrs. Clinton s senate campaign, because the solicitation of campaign contributions is a protected activity. This court therefore found that plaintiff s fraud claim arose from Clinton s protected activity. But the SAC is based on an entirely different claim, and moreover, plaintiff is not asserting any damages based on the over $. million he contributed to Mrs. Clinton s campaign. Plaintiff s damages are based on the loss of Oto as a business contact, which interfered with plaintiff s prospective economic advantage from that contact. The fact that the same promise that led plaintiff to introduce Clinton s agent to Oto was also related to Clinton s intent to cause plaintiff to make campaign contributions is too attenuated for it to be fairly said that plaintiff s present claims arise from protected activity. [A] defendant in an ordinary private dispute cannot take advantage of the anti-slapp statute simply because the complaint contains some --

5 0 0 references to speech or petitioning activity by the defendant. Martinez v. Metabolife Internatl. (00 Cal.App. th,. Rather: ( it is the principal thrust or gravamen of the plaintiff s cause of action that determines whether the anti-slapp statute applies (Cotati, supra, Cal. th at p., ( and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-slapp statute. Id. In Martinez, the court observed that the gravamen of the complaint was not the commercial speech touting the benefits of a dietary supplement, but the fact that the plaintiff was physically injured by using the product. Id. In DFEH v. 0Alta Loma Rd. Apts. (00 Cal. App. th, the Court of Appeal affirmed the lower court s finding that the gravamen of the plaintiff s action was disability discrimination, and did not arise from defendant s protected activities of administrative communications and filing an unlawful detainer action. Id. at. In Foundation for Taxpayer and Consumer Rights v. Garamendi (00 Cal. App. th, although the complaint involved the protected activity of making campaign contributions and sponsoring legislation, the anti-slapp statute did not apply because the complaint did not challenge those activities, but, rather, the constitutionality of the legislation at issue. Id. at. Similarly here, the gravamen of plaintiff s action against Clinton is not Clinton s conduct in attending a political fundraiser or in inducing plaintiff to pay for it. Plaintiff is not challenging Clinton s conduct in making a promise to work for him. What plaintiff challenges is the fact that, having gained access to plaintiff s key business contact, that Clinton, through Levin, interfered with plaintiff s relationship with that business contact. That is a far cry from having a claim that arises from protected activity. The fact that Clinton s access to plaintiff s business contact came about as a result of a promise which was also designed to cause plaintiff to make campaign contributions is merely incidental to a cause of action based essentially on nonprotected activity. Martinez, supra, Cal. App. th at. As in the Martinez, DFEH, and Garamendi cases, Clinton s anti-slapp motion must be rejected as having foundered on the failure to satisfy his burden of demonstrating that the anti-slapp statute applies. --

6 II. EVEN IF PLAINTIFF S CLAIMS AGAINST CLINTON WERE DEEMED TO ARISE FROM PROTECTED ACTIVITY, PLAINTIFF S CASE AGAINST CLINTON HAS MINIMAL MERIT Only if Clinton clears his hurdle under Section., subdivision (b(, does the court consider the second step, that of requiring the plaintiff to present evidence establishing a prima facie case. Soukup, supra, Cal. th at. 0 Id. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (., subd. (b(; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim. (citation In making this assessment it is the court's responsibility... to accept as true the evidence favorable to the plaintiff... (citation The plaintiff need only establish that his or her claim has minimal merit (citation to avoid being stricken as a SLAPP. Clinton repeats the arguments he made in his concurrently filed Demurrer, that plaintiff s 0 claims are time barred and that plaintiff lacks standing to bring this action. Plaintiff refuted those arguments in his Memorandum of Points and Authorities in opposition to Clinton s demurrer, filed concurrently herewith. Plaintiff hereby incorporates that Memorandum by reference as though set forth here in full. Clinton also argues based on a statement plaintiff made in a deposition examination last summer that he has not owned anything since Fidel Castro obtained a $. million judgment against him that serious doubt is cast on plaintiff s damages claim based on the collapse in the value of his stock (Clinton anti-slapp Motion, at :-: First, for the purposes of ruling on an anti-slapp motion, plaintiff s evidence (including his statements that he was damaged must be accepted as true. Soukup, supra, Cal. th at. Second, plaintiff points out that when the FEC investigated his $. million in expenditures made to underwrite the Hollywood Tribute, it determined that, The event was funded primarily through corporate entities controlled by Peter Paul, with promoter Aaron Tonken assisting with procuring and paying for some of the vendors using an account funded by shares of Stan Lee Media stock. [T]he expenses borne by entities or accounts controlled by Paul steadily increased, ultimately paying --

7 0 0 for most of the final $. million total. (Exhibit, p., to Supplemental Declaration of Peter Paul dated //0 [ 00 Paul Dec. ]. While not the legal owner of the stock, plaintiff was obviously the beneficial owner. The collapse in the value of the stock was still a personal loss that damaged plaintiff commensurate with the loss in the value of that asset. Clinton also asserts misleadingly that anything classified as an allegation made by the plaintiff is not evidence, citing as authority a line from the opinion of the Court of Appeal at Paul I, 00 WL 0, at *, that [a]llegations do not constitute admissible evidence and are insufficient to establish a prima facie showing. That statement is itself quoted from Roberts v. Los Angeles County Bar Assn. (00 0 Cal.App. th 0,. The Roberts case relied on Church of Scientology v. Wollersheim ( Cal.App. th,, overruled on another point in Equilon Enterprises v. Consumer Cause, Inc. (00 Cal. th,, fn.. Wollersheim in no way held that everything contained in a verified complaint is inadmissible as evidence. Only allegations not within the personal knowledge of the verifier are not evidence. Id. In contrast, matters within the personal knowledge of the verifier are competent evidence and thus admissible. Sheeley v. City of Santa Clara ( Cal.App.d, ; Code of Civil Procedure section, subdivision (a. Hence, all of the allegations in the SAC not based on information and belief are competent evidence, by virtue of plaintiff s Verification attached to the SAC. Plaintiff s //0 Supplemental Declaration, based on matters within his personal knowledge, is also competent evidence. Also, contrary to Clinton s argument that his assertion that the agency relationship between Levin and Clinton is a mere legal conclusion and not evidence, plaintiff has presented competent evidence that Levin was, indeed, Clinton s agent, namely, ( Levin s direct representation to plaintiff that he was Clinton s agent (SAC,, ( other persons direct confirmation to plaintiff that Levin was Clinton s agent (SAC, and ( Clinton s face-toface confirmation to plaintiff -- both at the Hollywood Tribute, and at Air Force One on September, that they had a deal, which served to confirm that Levin had been acting as his agent (FAC 0; SAC, ; 00 Paul Dec. -0,. Any contrary testimony by Levin merely raises a jury question as to credibility. In the context of deciding an anti-slapp --

8 0 0 motion, however, the court must give credence to evidence favoring plaintiff. Soukup, supra, Cal. th at. Plaintiff s eye witness testimony as to what Levin and Clinton directly represented to him, regarding their relationship as principal and agent, is competent evidence -- both as to the fact that such statements were made and as to the truth of those matters asserted, since both Clinton and Levin are party opponents in this lawsuit. Evidence Code section 0. All of the elements of plaintiff s cause of action for Intentional Interference with Prospective Economic Advantage against Clinton and Levin, as his agent, are established by evidence already in the record, as noted below: Element An economic relationship between the plaintiff and some third party, containing a probable future economic benefit or advantage to plaintiff; Evidence SAC, 0,,,, 0 & Exh. A to SAC; 00 Paul Dec.,, The defendant knew of the existence of the relationship; SAC -, 0, -, 0; 00 Paul Dec.,,,,, The defendant engaged in wrongful conduct designed to interfere with or disrupt this relationship; The defendant did so with the intent to interfere with or disrupt this relationship, or with the knowledge that the interference or disruption was certain or substantially certain to occur as a result of his action; The economic relationship was actually interfered with or disrupted; and The wrongful conduct of the defendant which was designed to interfere with or disrupt this relationship caused damage to the plaintiff. SAC 0, - ; 00 Paul Dec., 0, SAC, ; 00 Paul Dec., SAC,,, & Exh. B to SAC; 00 Paul Dec. SAC, ; 00 Paul Dec., The elements of plaintiff s cause of action for Intentional Interference with Performance of Contract by Third Person against Clinton and Levin, as his agent, are established by: BAJI. Intentional Interference With Prospective Economic Advantage (00 Revision; Buckaloo v. Johnson ( Cal.d,. --

9 0 0 Element Evidence A valid contract between plaintiff and a third party SAC Defendant's knowledge of this contract SAC - Defendant's intentional acts designed to induce a breach or disruption of the contractual relationship SAC 0,,,,,,, 00 Paul Dec., 0, Actual breach or disruption of the contractual relationship SAC,,, & Exh. B to SAC; 00 Paul Dec. Resulting damage. SAC, ; 00 Paul Dec., The elements of conspiracy as to an underlying tort and plaintiff s evidence are: Element Evidence The formation and operation of the conspiracy SAC,,,,,,,,,0,,,,,,,,, ; 00 Paul Dec.,,,0,,,,,,,0, Wrongful conduct in furtherance of the conspiracy SAC 0,,,,,,, 00 Paul Dec., 0, Damages arising from the wrongful conduct SAC, ; 00 Paul Dec., Pacific Gas & Electric Co. v. Bear Stearns & Co. (0 0 Cal.d,. Kidron v. Movie Acquisition Corp. ( 0 Cal.App. th,. --

10 III. CONCLUSION Based on the foregoing, plaintiff respectfully requests that the court find that Clinton has not met his burden under Section. and, on that basis, deny the motion. In the alternative, if the court determines that plaintiff s causes of action do arise from protected conduct, plaintiff requests that the court deny the motion based on plaintiff s showing of minimal merit. Dated: October, 00 0 D. COLETTE WILSON Attorney for Plaintiff 0-0-