Filed 11/19/19; Certified for Publication 12/6/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

DAVID BERNSTEIN,

Plaintiff and Respondent,

v.

SHIA LABEOUF,

Defendant and Appellant.

B288054

Los Angeles County

Super. Ct. No. BC663207

APPEAL from an order of the Superior Court of Los

Angeles County, Laura A. Matz, Judge. Affirmed.

Lavely & Singer, Brian G. Wolf and David B. Jonelis for 

Defendant and Appellant.

Shaw Koepke & Satter, Jens B. Koepke; Law Offices of 

Bruce A. Wernik, Bruce A. Wernik and Frederic L.F. Hamilton

for Plaintiff and Respondent.

_______________________________________
2

INTRODUCTION

This lawsuit arises out of an altercation between plaintiff 

David Bernstein, a bartender, and defendant Shia LaBeouf, an 

actor. LaBeouf confronted Bernstein and called him a “racist” 

after Bernstein refused to serve LaBeouf and his companion

alcohol. Video footage of the incident was later posted on the 

internet and broadcast on television. Bernstein sued LaBeouf for 

assault, slander, and intentional infliction of emotional distress. 

LaBeouf filed a special motion to strike Bernstein’s first amended 

complaint under Code of Civil Procedure1 section 425.16 (antiSLAPP statute), arguing the conduct giving rise to Bernstein’s 

claims was protected speech-related activity concerning a matter 

of public interest. The trial court denied the motion in its entirety 

and LaBeouf appeals. We affirm. 

FACTS AND PROCEDURAL BACKGROUND

1. The Incident

Around 9:45 p.m. on April 5, 2017, LaBeouf’s companion, 

Mia Goth, went to the bar at Jerry’s Famous Deli (Jerry’s) in 

Studio City, where Bernstein worked, and tried to order alcoholic 

drinks. The bartenders refused to serve Goth because she 

appeared “significantly under the influence.” Shortly thereafter, 

LaBeouf entered the bar and demanded the bartenders serve him 

and Goth alcohol. Bernstein refused to serve LaBeouf alcohol 

because he too appeared “significantly under the influence.” 

LaBeouf became angry, pounded his fist on the bar counter, and

yelled “[y]ou’re not going to fucking serve me?”

1 All undesignated statutory references are to the Code of Civil 

Procedure.
3

LaBeouf then walked around the counter and entered the 

well area behind the bar, where the bartenders work. LaBeouf, 

who was “yelling at the top of his lungs,” took several steps 

toward Bernstein. “[F]earful of an imminent attack,” Bernstein 

grabbed a bottle of Grey Goose vodka and held it over his 

shoulder “to deter” LaBeouf. LaBeouf then stepped back and was 

escorted out of the restaurant by security. 

As LaBeouf was being taken out of the restaurant, he 

shouted at Bernstein, “You Fucked Up,” and called him a 

“Fucking Racist” and a “Fuckin’ Racist Bitch.” LaBeouf also told 

the “predominantly African-American crowd” to “Wake Up, this 

Motherfucker is a Racist.”2

“Videotapes of [the] incident were published by TMZ and 

were circulated instantly world-wide to millions of people via 

television, internet, social and print media.” After videos of the 

incident were circulated, “[t]here were many internet and social 

media posts supporting” LaBeouf. “On a near[ly] daily basis,” 

customers whom Bernstein has never met called him “ ‘The 

Racist Bartender,’ ”and people Bernstein knows “have constantly 

been bringing up th[e] event.”

2. Bernstein’s Lawsuit

Bernstein sued LaBeouf for assault, slander per se, and 

intentional infliction of emotional distress. The assault claim was 

based on allegations that LaBeouf engaged in physically 

threatening conduct, including entering the well area behind 

Jerry’s bar without permission, when he confronted Bernstein. 

2 There is no indication in the record that LaBeouf or Goth are AfricanAmerican.
4

With respect to the slander claim, Bernstein alleged LaBeouf

called him a “racist,” without any basis in fact to support that 

statement, in front of a large crowd that was predominantly 

African-American. Finally, the intentional infliction of emotional 

distress claim was based on LaBeouf’s conduct throughout the 

entire encounter, including his threatening physical conduct and 

his statements that Bernstein was a “racist.” 

LaBeouf filed a special motion to strike Bernstein’s 

complaint under the anti-SLAPP statute (§ 425.16). With respect 

to his statements calling Bernstein a “racist,” LaBeouf insisted 

they were protected speech under the anti-SLAPP statute

because: (1) they occurred in a place open to the public—i.e., a 

restaurant; (2) they “were of ‘public interest,’ as evidenced by the 

fact that video footage of the [i]ncident was posted publicly on the 

TMZ website”; and (3) because LaBeouf is a celebrity, “ ‘[t]he 

public’s fascination with [him] and widespread interest in his 

personal life’ render his day to day conduct ‘a public issue or an 

issue of public interest.’ ” Alternatively, LaBeouf argued his 

statements addressed a matter of public interest because they 

contributed to the public debate on racism, since “it [is] axiomatic 

that racism and allegations of racial discrimination are matters 

of the highest public concern.” As for his physical conduct, 

LaBeouf claimed it too was protected because it was used in 

furtherance of, or to “emphasize,” his protected speech.

With respect to the second prong of the anti-SLAPP 

statute, LaBeouf argued Bernstein could not demonstrate a 

probability of prevailing on the merits of any of his claims.

Among other things, LaBeouf asserted Bernstein could not 

prevail on his slander claim because LaBeouf’s statements that 

Bernstein was a “racist” constituted nothing more than “ ‘mere 
5

name calling.’ ” (Emphasis omitted.) LaBeouf did not submit any 

supporting evidence.

Bernstein opposed LaBeouf’s motion. In support of his 

opposition, Bernstein submitted declarations from several 

customers who witnessed the incident at Jerry’s, fellow Jerry’s 

employees who were working during the incident, and a 

psychologist who diagnosed Bernstein with Post-Traumatic 

Stress Disorder because of the incident. The customers who 

submitted declarations on Bernstein’s behalf stated they knew 

Bernstein because they frequented Jerry’s. None of them had 

ever seen Bernstein engage in any racist conduct.

3

Bernstein also submitted several newspaper articles 

documenting LaBeouf’s various run-ins with law enforcement, as 

well as screenshots of several social media posts in which people 

comment on the incident at Jerry’s and, in many of the posts, 

express their support for LaBeouf or call Bernstein a “racist.”

Finally, Bernstein filed a copy of the video of the TMZ broadcast 

covering the incident, which includes footage of LaBeouf’s 

conduct inside Jerry’s, a copy of a video of the incident recorded 

by one of Jerry’s other employees, and copies of videos concerning 

LaBeouf’s other public outbursts.

The court denied LaBeouf’s anti-SLAPP motion. The court 

found LaBeouf failed to show any of the claims in Bernstein’s 

complaint arose out of LaBeouf’s “constitutional right of free 

speech in connection with a public issue or an issue of public 

interest.” Rather, the court found the claims stemmed from “a 

3 We grant Bernstein’s May 9, 2019 motion to augment the record with 

the corrected versions of several of the witnesses’ declarations that he 

filed in the trial court but which LaBeouf omitted from the record on 

appeal. 
6

private dispute between [LaBeouf] and [Bernstein] concerning 

[Bernstein’s] refusal ... to serve [LaBeouf] alcohol and [LaBeouf’s] 

reaction.” The court rejected LaBeouf’s arguments that his 

statements calling Bernstein a “racist” contributed to the public 

debate on racism and that his celebrity status converted the 

dispute into a matter of public interest.

LaBeouf timely appealed the order denying his anti-SLAPP 

motion.

DISCUSSION

LaBeouf contends each of Bernstein’s claims arises out of 

activity protected by the anti-SLAPP statute because “what 

would have otherwise been an unremarkable and insignificant 

altercation between two individuals became a matter of 

significant and inherent public interest” due to “LaBeouf’s 

celebrity status.” LaBeouf also argues his statements address 

racial discrimination, “a hot-button topic of significant public 

concern.” We are not persuaded.

1. Applicable Law and Standard of Review

Under section 425.16, a defendant may move to strike 

claims “ ‘arising from any act ... in furtherance of the 

[defendant’s] right of petition or free speech under the United 

States Constitution or the California Constitution in connection 

with a public issue.’ ” (Wilson v. Cable News Network, Inc. (2019) 

7 Cal.5th 871, 884.) Section 425.16 does not completely insulate a 

defendant’s protected speech; rather, it provides a mechanism 

“for weeding out, at an early stage, meritless claims arising from” 

protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384

(Baral).) 
7

Courts apply a two-prong test when evaluating an antiSLAPP motion. (Baral, supra, 1 Cal.5th at p. 384.) “First, the 

defendant must establish that the challenged claim arises from 

activity protected by section 425.16.” (Ibid.) To determine 

whether the plaintiff’s causes of action arise from the defendant’s 

protected activity, we look at the “pleadings, and supporting and 

opposing affidavits stating the facts upon which the liability or 

defense is based.” (§ 425.16, subd. (b)(2); see also Equilon 

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

If the defendant meets that burden, the plaintiff then must

“demonstrate the merit of the claim by establishing a probability 

of success.” (Baral, supra, 1 Cal.5th at p. 384.) The second prong 

involves an analysis similar to that used to evaluate a summary 

judgment motion. (Ibid.) “The court does not weigh evidence or 

resolve conflicting factual claims. Its inquiry is limited to 

whether the plaintiff has stated a legally sufficient claim and 

made a prima facie factual showing sufficient to sustain a 

favorable judgment. [The court] accepts the plaintiff’s evidence as 

true, and evaluates the defendant’s showing only to determine if 

it defeats the plaintiff’s claim as a matter of law.” (Id. at pp. 384–

385.) 

We independently review an order granting a special 

motion to strike under section 425.16. (Paulus v. Bob Lynch Ford, 

Inc. (2006) 139 Cal.App.4th 659, 672.) “ ‘ “[W]e engage in the 

same, two-step process as the trial court to determine if the 

parties have satisfied their respective burdens. [Citations.] If the 

defendant fails to show that the lawsuit arises from protected 

activity, we affirm the trial court’s ruling and need not address 

the merits of the case under the second prong of the statute.” ’ 
8

[Citation.]” (Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291, 

1298.)

2. LaBeouf’s conduct does not fall within the scope of the 

anti-SLAPP statute.

The anti-SLAPP statute protects, among other things,

statements or conduct made “in connection with a public issue or 

an issue of public interest.” (See § 425.16, subd. (e)(3)–(4).)

4 To 

fall within the scope of subdivision (e)(3) and (4) of the antiSLAPP statute, a defendant must establish: (1) that the 

challenged statement or conduct implicates a public issue or a

matter of public interest; and (2) that the speech or conduct was 

made “in connection with” a public issue or a matter of public 

interest. (See § 425.16, subd. (e)(3)–(4); see also FilmOn.com Inc. 

v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149 (FilmOn).)

To determine whether challenged speech or other conduct 

involves a public issue or a matter of public interest, courts look 

to “certain specific considerations.” (FilmOn, supra, 7 Cal.5th at 

p. 145.) For instance, courts look to whether “the subject of the 

speech or activity ‘was a person or entity in the public eye’ or 

‘could affect large numbers of people beyond the direct 

participants’ [citation]; and whether the activity ‘occur[red] in the 

context of an ongoing controversy, dispute or discussion’ 

[citation], or ‘affect[ed] a community in a manner similar to that 

of a governmental entity’ [citation].” (Id. at pp. 145–146.)

4 The parties agree the first two categories of protected activity under 

section 425.16, subdivision (e) do not apply in this case because none of 

the underlying conduct concerns “a legislative, executive, or judicial 

proceeding, or any other official proceeding authorized by law[.]” (§ 

425.16, subd. (e)(1)–(2).)
9

“ ‘[P]ublic interest’ does not equate with mere curiosity,” and “the 

focus of the speaker’s conduct should be the public interest rather 

than a mere effort ‘to gather ammunition for another round of 

[private] controversy ... .’ [Citation.]” (Weinberg v. Feisel (2003) 

110 Cal.App.4th 1122, 1132–1133 (Weinberg).) 

As for the second requirement, the California Supreme 

Court recently articulated a two-part test to determine whether 

speech or conduct was made “in connection with” an issue of 

public interest. (FilmOn, supra, 7 Cal.5th at p. 149.) “First, we 

ask what ‘public issue or ... issue of public interest’ the speech in 

question implicates—a question we answer by looking to the 

content of the speech. [Citation.] Second, we ask what functional 

relationship exists between the speech and the public 

conversation about some matter of public interest.” (Id. at pp. 

149–150.) The second part of this test “address[es] the specific 

nature of [the defendant’s] speech and its relationship to the 

matters of public interest.” (Id. at p. 152.)5

LaBeouf contends his celebrity status makes “his day to

day conduct ‘a public issue or an issue of public interest.’ ”

According to LaBeouf, since footage of him calling Bernstein a 

racist and physically threatening Bernstein was disseminated on 

the internet and on television, his conduct must involve a matter

5 While FilmOn addressed the meaning of the phrase “in connection 

with” as it is used in subdivision (e)(4) of section 425.16, we see no 

reason why the same analysis should not apply when determining 

whether a statement was made “in connection with” a public issue or a 

matter of public interest for purposes of subdivision (e)(3) of section 

425.16. (See People v. McCart (1982) 32 Cal.3d 338, 344 [“When a word 

or phrase is repeated in a statute, it is normally presumed to have the

same meaning throughout.”].)
10

of public interest under section 425.16, subdivision (e)(3) and (4). 

We disagree.

While courts have held the public’s interest in the life and 

work of entertainers and other celebrities can create an issue of 

public interest for purposes of section 425.16, subdivision (e) (see 

Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 678), it 

is the subject of the defendant’s speech or conduct that 

determines whether an issue of public interest has been 

implicated for purposes of anti-SLAPP protection. (See FilmOn, 

supra, 7 Cal.5th at pp. 145–146.) The defendant’s celebrity

status, on its own, is not sufficient to render anything the 

defendant says or does subject to anti-SLAPP protection. (Id. at 

p. 152; see also D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226

(D.C.) [“No authority supports the [defendant’s] broad proposition 

that anything said or written about a public figure or limited 

public figure in a public forum involves a public issue.”].)

Here, LaBeouf’s statements—calling Bernstein a “racist”—

were not directed at someone in the public eye. Nothing in the 

record suggests that, prior to this incident, Bernstein was a 

public figure or had been involved in any issue of public interest.

(See D.C., supra, 182 Cal.App.4th at p. 1229 [a bully’s threats of 

bodily harm toward fellow student who maintained a website 

promoting his musical career did not implicate a matter of public 

interest because the subject of the speech—the fellow student—

was not a person in the public eye].)

There is also no evidence that LaBeouf’s comments 

addressed an ongoing controversy or an issue that had garnered 

any public interest before LaBeouf lashed out at Bernstein.

Rather, the statements concerned an isolated dispute between a 

bartender and an inebriated client over the bartender’s refusal to 
11

serve the client alcohol at a restaurant. Indeed, as LaBeouf 

concedes in his opening brief, the subject of his altercation with 

Bernstein was “unremarkable and insignificant.” (See Albanese v. 

Menounos (2013) 218 Cal.App.4th 923, 936 [“the focus of the 

speaker’s conduct should be the public interest, not a private 

controversy”].) Although footage of the altercation was later 

disseminated to many people on the internet and television, a 

private dispute does not become a matter of public interest 

simply because it was widely communicated to the public. 

(Weinberg, supra, 110 Cal.App.4th at p. 1133.)

Moreover, the fact that LaBeouf used the word “racist” 

when confronting Bernstein did not convert the statements into 

the type of speech entitled to anti-SLAPP protection. It is obvious 

from the circumstances surrounding LaBeouf’s statements that 

they were not intended to further any public debate on the issue 

of racism. Rather, the comments were merely part of LaBeouf’s

tantrum triggered by Bernstein’s refusal to serve him and Goth

alcohol. Nothing in the record shows Bernstein or any other 

Jerry’s employee had been accused of engaging in racist behavior

in the past, and nothing in the video footage of the Jerry’s

incident supports an inference that Bernstein engaged in any

racist behavior before LaBeouf lost his temper. Indeed, in his 

anti-SLAPP motion, LaBeouf admitted his statements were 

“ ‘mere name calling.’ ” While racism is undoubtedly an issue of 

public interest, a defendant cannot convert speech that would 

otherwise not be entitled to anti-SLAPP protection into protected 

activity by “defining the[] narrow dispute by its slight reference 

to the broader public issue.” (FilmOn, supra, 7 Cal.5th at p. 152.) 

In short, the “content of [LaBeouf’s] communication added 
12

nothing to any public discourse or interest.” (D.C., supra, 182 

Cal.App.4th at p. 1230, italics omitted.)

This case is distinguishable from Hall v. Time Warner, Inc.

(2007) 153 Cal.App.4th 1337 (Hall), which LaBeouf relies on to 

argue his statements are entitled to anti-SLAPP protection. Hall

arose out of the probate of Marlon Brando’s will following the 

actor’s death. (Id. at pp. 1341–1344.) After “[a] petition for 

probate of Brando’s will was filed in the Los Angeles Superior 

Court,” the producers of a television program interviewed 

Brando’s retired housekeeper, who was named as a beneficiary in 

the will. (Id. at p. 1342.) After the interview was aired on 

national television, the housekeeper sued the producers for, 

among other things, elder abuse and intentional infliction of 

emotional distress. (Id. at p. 1343.) 

The trial court in Hall denied the producers’ anti-SLAPP 

motion, but the appellate court reversed. (Hall, supra, 153 

Cal.App.4th at pp. 1344, 1346–1348.) The reviewing court held

the defendants’ conduct was protected under the anti-SLAPP 

statute because it addressed matters of public interest: Brando’s 

death and the probate of his will, which had garnered significant 

national media attention in print and on television even before 

the defendants aired the housekeeper’s interview. (Id. at p. 1342.)

Although the housekeeper did not volunteer to participate in the 

interview or otherwise make public statements about Brando’s 

will, the reviewing court held she “nevertheless became involved

in an issue of public interest by virtue of being named in Brando’s 

will.” (Id. at p. 1347.) In other words, the housekeeper was a 

figure of public interest because of her relationship to Brando and 

the fact that she was a key figure in the probate of his will.
13

To be sure, Hall and this case share some similarities: they 

each involve a celebrity, and the underlying incidents attracted 

the media’s and the public’s attention. But the similarities end

there. In Hall, the “subjects” of the defendants’ conduct—a

beneficiary of Brando’s will and the execution of that will—were

matters of public interest before the defendants recorded and

later aired their interview with Brando’s housekeeper. And, while 

the reviewing court did not expressly rely on this fact in reaching 

its decision, the dispute in Hall arose out of an ongoing judicial 

proceeding: the probate of Brando’s will in the Los Angeles 

Superior Court. Judicial proceedings, by definition, are matters of 

public interest under the anti-SLAPP statute. (See § 425.16, 

subd. (e)(2) [any statement made “in connection with” a “judicial 

proceeding” is a “public issue” entitled to anti-SLAPP 

protection].) LaBeouf’s conduct in this case, on the other hand, 

involved a purely private dispute that only drew media attention 

after it occurred.

6

In any event, even if Hall could be read to suggest that a 

defendant’s celebrity status, by itself, converts an otherwise 

private dispute involving that celebrity into a matter of public 

interest, we would disagree with that holding. Hall was decided 

more than 10 years before the Supreme Court decided FilmOn. 

As we explained above, FilmOn makes clear that the social or 

celebrity status of a party does not, without more, convert 

anything that party says into a matter of public interest. Under 

FilmOn, the focus of the “public interest” inquiry “must be on ‘the 

specific nature of the speech,’ rather than on any ‘generalities 

6 We note that LaBeouf does not contend that Bernstein’s complaint 

contains “mixed” causes of action. (Baral, supra, 1 Cal.5th at p. 395.)
14

that might be abstracted from it,’ ” such as the fact that the 

defendant “ ‘regularly injects himself in the public spotlight.’ ” 

(FilmOn, supra, 7 Cal.5th at p. 152.) 

In sum, neither LaBeouf’s statements calling Bernstein a 

“racist,” nor LaBeouf’s other conduct during the incident at 

Jerry’s, involved a matter of public interest or concern. Rather, 

LaBeouf’s statements stemmed out of an isolated dispute 

between himself and Bernstein. The lower court, therefore, 

properly denied LaBeouf’s anti-SLAPP motion.
15

DISPOSITION

The order denying LaBeouf’s anti-SLAPP motion is 

affirmed. David Bernstein shall recover his costs on appeal.

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.
Filed 12/6/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

DAVID BERNSTEIN,

Plaintiff and Respondent,

v.

SHIA LABEOUF,

Defendant and Appellant.

B288054

Los Angeles County

Super. Ct. No. BC663207

Order Certifying Opinion 

for Publication

[NO CHANGE IN 

JUDGMENT]

BY THE COURT:*

Respondent David Bernstein has requested that our 

opinion in the above-entitled matter, filed November 19, 2019, be 

certified for publication. It appears that our opinion meets the 

standards set forth in California Rules of Court, rule 8.1105(c). 

The opinion is ordered published in the Official Reports.

*EDMON, P. J. LAVIN, J. EGERTON, J.