JAMES LICHTMAN (Cal. Bar. #188830) BENJAMIN S. SHEFFNER (Cal. Bar. #212629) NBC Universal Television Group 100 Universal City Plaza Bldg. 1320B, Suite 3C Universal City, California 91608 (818) 777-6594 Telephone (818) 866-2197 Fax Attomeys for Defendant NBC STUDIOS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN FRANCISCO COUNTY, UNLIMITED JURISDICTION MARILYN DRAKE, ) Case No. CGC-06-450905 ) Plaintiff, ) DEFENDANT NBC STUDIOS, INC.’S ) NOTICE OF MOTION AND SPECIAL, v. ) MOTION TO STRIKE PLAINTIFF'S ) FIRST AMENDED COMPLAINT; JAY LENO, THE TONIGHT SHOW WITH) MEMORANDUM OF POINTS AND JAY LENO, BIG DOG PRODUCTIONS, _) AUTHORITIES; DECLARATION OF INC., NBC STUDIOS, INC., and DOES 1 } LARRY GOITIA through 20, inclusive, J (C.C.P. § 425.16] ) ) Assigned for Law & Motion Practice to the Defendants.) Hon, James L. Warren ) ) ) Date: June 2, 2006 ) Time: 9:30am, ) Dept: 301 ) ) [Appendix of Non-California Authorities Filed ) Concurrently] ee TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 2, 2006 at 9:30 a.m,, or as soon thereafter as counsel may be heard in Department 301 of the above-entitled court, located at 400 McAllister Street, San Francisco, California, defendant NBC Studios, Inc. (*NBCS”) will and hereby does DEFENDANT NBC STUDIOS, INC.’ SPECIAL MOTION TO STRIKE.1 || move this Court, pursuant to California Code of Civil Procedure section 425.16, for an order 2. striking Plaintiff's entire First Amended Complaint, 3 Plaintiff's entire First Amended Complaint must be stricken because all of PlaintifPs | 4 causes of action arises from alleged conduct that falls within the scope of section 425.16. 5 || Therefore, the burden shifts to Plaintiff to establish a probability that she will prevail on her 6 | claims. See id. § 425.16(b)(1). Plaintiff cannot meet this burden because the statements | 7 || identified in her complaint, which consist of jokes told by Jay Leno on The Tonight Show with | 8 | Jay Leno, are not capable of defamatory meaning. 9 | NBCS’ Special Motion to Strike is based upon this Notice; the attached Memorandum of 10 || Points and Authorities; the attached Declaration of Larry Goitia, the pleadings, files, and records u | in this action; and such other arguments as may be received by this Court at the hearing on this, 12 || Motion. Bl NBCS therefore respectfully requests that the Court grant this Special Motion to Strike, 14 || dismiss Plaintiff's First Amended Complaint with prejudice, and award NBCS its attorneys’ fees and costs incurred in defending against this meritless lawsuit.' 16 17 || Dated: May 5, 2006 Respectfully submitted, 18 NBC UNIVERSAL TELEVISION GROUP ° Loe LAp—_ 20 Benjamin S. Sheffer 21 Attomeys for Defendant NBC Studios, Inc. | LIthis Court grants this Special Motion to Strike, NBC Studios, Ine. intends to file a noticed motion for atormeys’ | | fees and costs. See Cal. Civ. Proc. Code § 425.16(6); Ketchum v. Moses, 24 Cal 4th 1122, 1131 2001) (‘TAlay | 24 : SLAPP defendant who brings a successfil motion to strike is entitled to mandatory attorney fees.) | | | | | | 2 DEFENDANT NBC STUDIOS, INC.’S SPECIAL MOTION TO STRIKE,I. mM. Iv. TABLE OF CONTENTS INTRODUCTION. RELEVANT FACTUAL BACKGROUND. A. The New York Times Article... B. The Tonight Show With Jay Leno..... C. ‘The February 7, 2006 Tonight Show Broadcast. 1, The Allegedly Defamatory Statement ‘Sperm Donors, and “Scout”. leuticles,” Anonymous PLAINTIFF'S CLAIMS FALL WITHIN THE SCOPE OF THE ANTI- SLAPP STATUTE A. The Anti-SLAPP Statute Broadly Protects Broadcasters and Performers of Entertainment Programming Against Claims, Like Plaintiff's, That ‘Target Their Constitutionally Protected Activities B. Plaintiff's Claims are Subject To A Special Motion To Strike Under ‘Sections 425.16(e(3) And (e)(4). PLAINTIFF’S CLAIMS MUST BE STRICKEN BECAUSE SHE CANNOT DEMONSTRATE A PROBABILITY OF PREVAILIN' A. The Law Does Not Permit A Finding Of Defamation Based On ‘A Joke That Does Not Constitute An Actual Statement Of Fact. B. Jay Leno's Joke Was Not Defamatory As A Matter Of Law Because No Reasonable Viewer Would Consider It To Be An Actual Statement Of Fact... a . 13 C. Plaintiff's Claim For Intentional Infliction Of Emotional Distress Also Fails Because It Is Based On The Same Statements, Which Are Protected By The First Amendment. CONCLUSION .. i DEFENDANT NBC STUDIOS, INC.’s SPECIAL MOTION TO STRIKE.