SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Keith A. Fink, Bar No. 11 Olaf J. Muller, Bar No. KEITH A. FINK & ASSOCIATES 1100 Olympic Boulevard, Suite 1 Los Angeles, California 00 Telephone: (10-00 Facsimile: (10-00 Attorneys for Defendant COURTNEY LOVE COBAIN SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT DAWN SIMORANGKIR, aka DAWN YOUNGER-SMITH, aka BOUDOIR QUEEN, an individual, v. Plaintiff, COURTNEY MICHELLE LOVE, an individual; and DOES 1 through, inclusive, Defendants. TO ALL PARTIES AND THEIR COUNSEL OF RECORD: CASE NO. BC10 [Assigned to the Honorable Aurelio Munoz, Dept ] DEFENDANT COURTNEY LOVE COBAIN S REPLY TO PLAINTIFF DAWN SIMORANGKIR S OPPOSITION TO DEFENDANT S SPECIAL MOTION TO STRIKE PURSUANT TO C.C.P..1; MEMORANDUM OF POINTS AND AUTHORITIES; SUPPLEMENTAL DECLARATION OF OLAF J. MULLER [Evidentiary Objections to the Declarations of Plaintiff Simorangkir, Virginia Maxanne Flores, Bryan Freedman, and Chocky Simorangkir filed concurrently herewith] Hearing Date: October, 00 Time: :0 A.M. Dept.: Trial Date: May 11, 010 Time: :0 A.M. Dept: DEFENDANT COURTNEY LOVE COBAIN ( Love and/or Defendant hereby submits her Reply to Plaintiff DAWN SIMORANGKIR A/K/A DAWN YOUNGER-SMITH A/K/A BOUDOIR QUEEN S ( Simorangkir and/or Plaintiff Opposition to Defendant s Special Motion to Strike Plaintiff s First Amended Complaint pursuant to C.C.P..1. Defendant s Reply is based on the attached Memorandum of Points and Authorities, the 1

2 Supplemental Declaration of Olaf J. Muller, and the concurrently-filed Evidentiary Objections to the Declarations of Plaintiff Simorangkir, Chocky Simorangkir, Virginia Maxanne Flores, and Bryan J. Freedman accompanying her Opposition. DATED: October 1, 00 KEITH A. FINK & ASSOCIATES By: Keith A. Fink Olaf J. Muller Attorneys for Defendant COURTNEY LOVE COBAIN

3 I. LEGAL ARGUMENT MEMORANDUM OF POINTS AND AUTHORITIES A. THIS COURT SHOULD DISREGARD PLAINTIFF S OPPOSITION BECAUSE IT WAS FILED AND SERVED FOUR DAYS LATE, GIVING DEFENDANT LOVE ONLY TWO DAYS TO PREPARE AND FILE HER REPLY. All papers opposing a motion so noticed shall be filed with the Court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing [for a Motion] (emphasis added. C.C.P. 100(b. [T]he courts shall be closed for the transaction of judicial business on judicial holidays... C.C.P. 1. Pursuant to the Court s Furlough Day Schedule, every third Wednesday of each month, including that of October, is a judicial holiday such that there will be no drop box for filing and the day will NOT count as a court day for deadline calculations. See the accompanying Supplemental Declaration of Olaf J. Muller ( Decl. Muller at. The Court has also designated Columbus Day as a judicial holiday - October 1, 00, such that it also does not count for deadline calculations. Id. Here, Defendant Love s Special Motion was filed on August 1, 00, with a noticed hearing date of October, 00. See Decl. Muller at. As such, Plaintiff Simorangkir had more than two months to prepare and file her Opposition to said Motion, which was due on or around Friday, October, 00. Under the statutory deadlines imposed by C.C.P. 100(b, Defendant Love should have had five court days (seven calendar days in which to prepare, file, and serve her Reply to Plaintiff s Opposition. Plaintiff Simorangkir filed her voluminous Opposition papers late, however, waiting until Tuesday, October 1, 00, to file and serve via Fed-Ex her Opposition. See Decl. Muller at -. As such, Defendant Love did not receive Plaintiff s Opposition until Wednesday, October 1, 00, giving her only two calendar days to prepare, file, and serve a Reply and accompanying papers. Id. Because Simorangkir filed and served her lengthy Opposition papers well past the statutory deadlines, Defendant Love has been unfairly prejudiced. For these reasons alone, the Court should disregard Plaintiff Simorangkir s papers in their entirety and grant Defendant Love s Special Motion in full. // // // // 1

4 B. DEFENDANT LOVE S STATEMENTS CONSTITUTE PROTECTED FREE SPEECH SUBJECT TO THE FULL PROTECTION OF C.C.P..1. In her Opposition, Plaintiff Simorangkir tellingly fails to refute or deny most if not all of the facts underlying the public nature of Love s purportedly defamatory statements, which both bring them within the protection of C.C.P..1 and raise the evidentiary standard required to prevail on the merits. Plaintiff Simorangkir concedes that she is a famous fashion designer with several celebrity clients. See Plaintiff s Opposition at p.. Simorangkir concedes that Love was one of them. Id. Simorangkir does not deny the fact that she trumpeted her relationship with Love from the very beginning, calling her ROCK ROYALTY, a bad-ass my dream come true Muse! on her own website. See generally Plaintiff s Opposition and accompanying Declaration. Simorangkir does not deny that she posted pictures of Love as her new client and blogged to the world about her trip to visit Love in Los Angeles as a special service to her special customer and patron. Id. Simorangkir further does not deny posting various photos of Love modeling her clothes on her website as free advertising for herself and her business. Id. As such, Love s purportedly defamatory statements constitute matters of public interest because Plaintiff Simorangkir herself wanted the public to know all about her special relationship with Love. Id. After she made their friendship and business relationship public and used it to advertise and grow her business for months, Simorangkir cannot now argue that the breakdown of this same relationship with Love is a mere private dispute to be kept out of the public eye. See Plaintiff s Opposition at pp. -. Because Simorangkir has voluntarily thrust herself and her personal and business relationship with Love into the public eye, Love s statements are matters of public interest such that they both satisfy the first prong of C.C.P..1 and raise Simorangkir s evidentiary burden on the second prong to clear and convincing evidence of actual malice. Further, it is self-evident to any person who watches the Oscars, Emmy s, and other similar award shows and/or reads People, US Weekly, or other similar magazines, that celebrities and their relationship and use of various fashion designers constitute matters of public interest. Whenever celebrities appear at public events, particularly female celebrities, who they wear is typically one of the first issues discussed on the red carpet, and fashion designers often make their name based on celebrity patronage. Simorangkir understood this, for which reason she posted various pictures of Love

5 modeling her clothes on her website, has continued to use Love-like models on her website, and blogged extensively on her own website about her first visit to Love in Los Angeles. See Exhibits C, D to the Declaration of Olaf J. Muller accompanying Love s Special Motion to Strike. As such, the relationship between Plaintiff Simorangkir and Love was more than a discrete private dispute but something of widespread public interest. For these reasons, too, Love s statements are matters of public interest such that they both satisfy the first prong of C.C.P..1 and raise Simorangkir s evidentiary burden on the second prong to clear and convincing evidence of actual malice. C. PLAINTIFF SIMORANGKIR CANNOT PREVAIL ON HER CLAIMS AGAINST DEFENDANT LOVE. In her Opposition (as in her Complaint, Plaintiff Simorangkir falsely assumes that most if not all of the purportedly defamatory statements made by Love actually concern Plaintiff and further, would be understood by a reasonable person as concerning Plaintiff. As proof, Simorangkir submits the declaration of one customer - Virginia Maxanne Flores, as well as various hearsay statements purportedly made by Plaintiff s customers on Love s MySpace page. See generally Decl. Flores; Decl. Simorangkir at -. In her Opposition, however, Plaintiff Simorangkir notably fails to account for the fact that she is not mentioned by name in any but three of the forty-one statements for which she has brought suit and then only by Dawn in one statement and Boudoir Queen in two others. Id. How can Plaintiff argue that Love has defamed her when Love fails to actually name her in these defamatory statements? For this reason alone, Simorangkir cannot prevail on the merits of her claims against Love, and Love s Special Motion to Strike should be granted. Plaintiff Simorangkir further concedes that most if not all of the purportedly-defamatory statements simply are not actionable statements of fact but merely non-actionable vigorous epithets that cannot form the basis of a libel suit as a matter of law. See generally Plaintiff s Opposition. Plaintiff has brought suit because Love called Simorangkir among other things an asswipe nasty lying hosebag thief, a year old desperate cokes out ass, []one extremely rotten apple, the nastiest lying worst person I have ever known, a thief a liar, total scumbag, a lying ripoff..., THAT BLACK CLPID [sic] OF VAMPITIC [sic] ENERGY THAT IS AROUND PEOPLE WHO SOLD DRUGS OR WERE MOLESTED OR its that grey and bits of black in the aura, and this insanely nasty Etsy person. See Plaintiff s FAC at -1. In her Opposition, Simorangkir herself not only concedes

6 but strongly argues that Love s story has multiple inconsistencies, has an obvious lack of credibility, and that Love has made vague statements that must be false because they are so vague. See Plaintiff s Opposition at pp. 1, 1. Again, how can Plaintiff on the one hand argue that Love s defamatory statements are actionable because they are informational only, and subsequently argue at length that Love has an obvious lack of credibility? How can Plaintiff argue with a straight face that Love s purportedly calling Simorangkir an asswipe nasty lying hosebag thief or any of the other vigorous epithets is informational only in nature? For these reasons, too, Simorangkir cannot prevail on the merits of her claims against Love, and Love s Special Motion to Strike should be granted. Plaintiff Simorangkir further cannot prevail on her claims because she simply cannot show by clear and convincing evidence (or even by a preponderance of evidence actual malice on Love s part. As stated in Defendant Love s underlying Special Motion, ill will toward the plaintiff is not actual malice for purposes of this rule. Live Oak Publishing Company, Inc. v. Cohagan (11 Cal.App.d 1, 11-1 (citing to McCoy v. Hearst Corp. (1 Cal.d at p.. Likewise, [t]he failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy. Live Oak, supra, Cal.App.d at 1 (citing Reader's Digest, supra, Cal.d at. Instead, Simorangkir must show with clear and convincing evidence that Love made these statements with knowledge that it was false or with reckless disregard of whether it was false or not. Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author in fact entertained serious doubts as to the truth of his publication (emphasis added. Masson v. New Yorker Magazine (11 U.S., 10; see also Reader's Digest Assn. v. Superior Court (1 Cal.d,. The clear and convincing evidentiary standard is a heavy burden, far in excess of the preponderance sufficient for most civil litigation. Christian Research Institute v. Alnor (00 1 Cal.App.th 1, (quoting Hoffman v. Capital Cities/ABC, Inc. (001 F.d 110, The burden of proof by clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. Christian Research, supra, 1 Cal.App.th at (quoting Copp v. Paxton (1 Cal.App.th,. Here, Simorangkir presents zero evidence that Love knowingly lied or made statements that

7 were false in her Opposition. See generally Plaintiff s Opposition. She presents no statements from Love wherein Love acknowledges that she made everything up as Simorangkir argues in her Opposition. Id. She presents no other evidence wherein Love acknowledges that she knew she was making false statements about Simorangkir but made them anyway, as Simorangkir argues in her Opposition, or any statements from Love that leave no substantial doubt that Love seriously did not believe what she said about Simorangkir. Id. Instead, Simorangkir relies entirely on a handful of messages purportedly from Love wherein she tries to purchase additional items from Simorangkir after their dispute began. See Decl. Simorangkir at 1-. According to Simorangkir, these messages create[] an inference that Love was lying about Simorangkir (emphasis added. See Plaintiff s Opposition at p. 1. On the contrary, these messages at best evidence the fact that Love still liked Simorangkir s clothing and designs notwithstanding the complete breakdown of their personal and professional relationship. In any event, an inference from a few inconclusive messages simply is not sufficient to meet Simorangkir s heavy evidentiary burden, such that Simorangkir cannot prevail on her claims against Love. For these reasons, too, Love s Special Motion to Strike should be granted. D. PLAINTIFF SIMORANGKIR CANNOT USE LOVE S OR HER COUNSEL S OFFERS OF COMPROMISE AS EVIDENCE IN THIS MATTER. Evidence that a person has, in compromise or from humanitarian motives furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it (emphasis added. Evidence Code 11. Here, Plaintiff erroneously argues that she has clear and convincing evidence of Love s liability and malice because Love and her counsel reached out to Plaintiff and her counsel prior to Plaintiff s filing suit and offered to resolve the matter informally. See Decl. Freedman at -; Decl. Simorangkir at 0-, 0-. As set forth above, any and all statements made by a party to resolve a suit informally whether themselves or by counsel cannot be used as evidence of liability. For these reasons, too, Simorangkir simply cannot prevail on her claims against Love and Love s Special Motion to Strike should be granted. //

8 II. CONCLUSION For the foregoing reasons and for the reasons underlying her Special Motion to Strike, Defendant Love respectfully requests this Court to grant her Special Motion to Strike and dismiss Plaintiff s First Amended Complaint. DATED: October 1, 00 KEITH A. FINK & ASSOCIATES By: Keith A. Fink Olaf J. Muller Attorneys for Defendant COURTNEY LOVE COBAIN

9 I, Olaf J. Muller, declare as follows: DECLARATION OF OLAF J. MULLER 1. I am an attorney of the law firm of Keith A. Fink and Associates, counsel of record for DEFENDANT COURTNEY LOVE COBAIN ( Love and/or Defendant. I have personal knowledge of the facts set forth in this declaration and, if called as a witness, could and would testify competently to such facts under oath.. Pursuant to the Court s Furlough Day Schedule, every third Wednesday of each month, including that of October, is a judicial holiday such that there will be no drop box for filing and the day will NOT count as a court day for deadline calculations. The Court has also designated Columbus Day as a judicial holiday - October 1, 00, such that it also does not count for deadline calculations. True and correct copies of the Court s Furlough Day Schedule and Holiday Schedule are attached hereto as Exhibit A.. Here, Defendant Love s Special Motion was filed on August 1, 00, with a noticed hearing date of October, 00. As such, Plaintiff Simorangkir had more than two months to prepare and file her Opposition to said Motion, which was due on or around Friday, October, 00. Under the statutory deadlines imposed by C.C.P. 100(b, Defendant Love should have had five court days (seven calendar days in which to prepare, file, and serve her Reply to Plaintiff s Opposition.. Plaintiff Simorangkir filed her voluminous Opposition papers late, however, waiting until Tuesday, October 1, 00, to file and serve via Fed-Ex her Opposition. True and correct copies of Plaintiff s Proof of Service as well as the FedEx envelope showing the date of mailing and receipt are attached hereto as Exhibit B. As such, Defendant Love did not receive Plaintiff s Opposition until Wednesday, October 1, 00, giving her only two calendar days to prepare, file, and serve a Reply and accompanying papers. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 1, 00, at Los Angeles, California. Olaf J. Muller

10 P R O O F O F S E R V I C E 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 1 and not a party to the within action; my business address is: 1100 W. Olympic Boulevard, Suite 1, Los Angeles, California, 00. On October 1, 00, I served the document described as DEFENDANT COURTNEY LOVE COBAIN S REPLY TO PLAINTIFF DAWN SIMORANGKIR S OPPOSITION TO PURSUANT TO C.C.P..1; MEMORANDUM OF POINTS AND AUTHORITIES; SUPPLEMENTAL DECLARATION OF OLAF J. MULLER on all interested parties in this action as follows: [X] by placing [ ] the original [X] true copies thereof enclosed in sealed envelopes addressed as follows: Bryan J. Freedman Jesse A. Kaplan FREEDMAN & TAITELMAN, LLP 101 Avenue of the Stars, Suite 00 Los Angeles, CA 00 Tel Fax [X] (BY MAIL As follows: I am readily familiar with the firm s practice for collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [] (BY PERSONAL SERVICE I caused such envelope to be delivered by hand to the offices of the addressee. [ ] (BY FACSIMILE Using fax number (10-00 I transmitted such document by facsimile machine, pursuant to California Rules of Court 001 et seq. The facsimile machine complied with Rule 00(. The transmission was reported as complete. I caused the machine to print a transmission report of the transmission, a copy of which is attached to this declaration. I am employed in the County of Los Angeles, State of California. [X] (STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ ] (FEDERAL I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Dated: October 1, 00 Heather Silldorff 1