Filed 10/15/13 McKinney v. Morris CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JOYCE MCKINNEY,
Plaintiff and Appellant,

v.
ERROL MORRIS et al.,
Defendants and Respondents. B240830
(Los Angeles County Super. Ct. No. LC095322)

APPEAL from the judgment of the Superior Court of Los Angeles County. James Steele, Judge. Affirmed.

The Tidrick Law Firm, Steven G. Tidric k, and Andrew L. Younkins for Plaintiff and Appellant.

Sedgwick, Gail E. Kavanagh, John F. Stephens, and Chantal Z. Hwang for Defendants and Respondents.

* * * * * * * * * *2 In 1977, a tabloid media frenzy erupted in England over the arrest of plaintiff and appellant Joyce McKinney, an American form er beauty pageant contestant, on charges she had kidnapped Kirk Anderson, a Mormon missionary, chained him to a bed, and
forced him to have sex with her for three da ys. Plaintiff consistently proclaimed her innocence, explaining that An derson was her fiancé and th eir weekend getaway at a cottage in Devon was consensual. Plaintiff a sserted she had gone to England to rescue Anderson, who she said was brainwashed an d coerced by elders in the Mormon Church into making the false claims against her. Me dia coverage of the story was international, but was primarily undertaken by tw o competing British tabloids, the Daily Mirror and the Daily Express . By plaintiff’s own admission, she a ttained a measure of celebrity as a result of the extensive media coverage. Af ter spending some three months in jail awaiting trial, plaintiff was released on bond, and eventually fled England before her trial
and returned to the United States. British authorities did not pursue extradition. In 2008, defendant and respondent E rrol Morris, a director who received an Academy Award for best docum entary in 2003, saw a repor t in the Associated Press concerning plaintiff and became interested in her story. Morris and his producing team contacted plaintiff and asked her to participat e in an interview about the tabloid press and their tactics. Plaintiff’s tape d interview became the core of a documentary film, directed by Morris, titled Tabloid

. Tabloid was released in select th eaters in July 2011, was featured at numerous film festivals, and was eventually released on DVD. Plaintiff filed this action against Morri s, as well as numerous other entities and
individuals associated with th e production and distribution of Tabloid , alleging she had
been defrauded ab out the nature of the production, coerced into signing a release agreement, and that the film was salacious, fals e and defamatory in its portrayal of her. Morris and his codefendants filed a special mo tion to strike pursuant to Code of Civil
Procedure section 425.16 1 (hereafter section 425.16), seekin g to strike six of the eleven

1 All further undesignated section referenc es are to the Code of Civil Procedure.3 causes of action in plaintiff’s complaint. Th e trial court granted the motion, and plaintiff appealed. We conclude the challenged causes of action arise from acts by defendants in
furtherance of the exercise of their First Am endment rights to free speech on an issue of public interest, and that plaintiff failed to show a probability of prevailing on those claims. Accordingly, we affirm the co urt’s order granting defendants’ motion.
FACTUAL AND PROCED URAL BACKGROUND
1. The Civil Action On November 2, 2011, plaintiff filed her original complaint stating 11 causes of action: (1) common law misappropriation; (2) commercial misapprop riation of likeness (Civ. Code, § 3344); (3) invasion of privac y/intrusion on seclusi on; (4) invasion of privacy/false light; (5) defamation; (6) inten tional misrepresentation/fraud; (7) breach of contract; (8) intentional infliction of emo tional distress; (9) conversion; (10) unjust enrichment; and (11) violation of Business and Professions Code section 17200. The gist of plaintiff’s comp laint is that defendants de frauded and coerced her into participating in the interview with Morris under false pretenses and signing a release consenting to defendants’ use of the material in a production about the tabloid press. Plaintiff alleged the story of her trip to E ngland in 1977 to rescue her fiancé from the Mormon church, dubbed the “M anacled Mormon” story by the Daily Mirror , was “long dead,” that she had carefully attempted to maintain her privacy since that time, and that
Tabloid resurrected the false and salacious story a nd took it “to a new, outrageous level.” Plaintiff alleged defendants not only defamed her, but rans acked her home and took many personal items and photographs, without her perm ission, to exploit for use in the film.
2. The Special Motion to Strike In January 2012, defendants and respo ndents Morris, IFC In Theaters LLC, IFC Films LLC, AMC Network Inc., Cablevis ion Systems Corporation, Air Loom Enterprises, LLC, Moxie Pictures Inc., Mark Lipson, John Kusiak, and Milan Entertainment, Inc. (collectively defendants) filed a special motion to strike pursuant to section 425.16, seeking an orde r striking six of the eleven ca uses of action in plaintiff’s4 complaint: common law and statutory misa ppropriation of likeness, invasion of privacy/intrusion on seclusion, invasion of pr ivacy/false light, defamation, and intentional infliction of emotional distress (t he “challenged claims”). Defendants argued the challenged claims ar ose from the exercise of their right to free speech in creating and distributing a docum entary film about the tabloid media. Defendants contended pl aintiff not only willingly particip ated in the production, but signed written releases regarding the use of her interview, imag e and story in the film for which she was paid agreed-upon consideration. Defendants also argued plaintiff was properly characterized as a limited purpos e public figure, and required to show
defendants acted with actual malice under New York Times v. Sullivan (1964) 376 U.S. 254 (New York Times ). Defendants contended that be cause the constitutional defense applied to all challenged claims, and plainti ff could not show any defendant acted with actual malice, plaintiff could not establish a probability of prevailing. Defendants further argued the misappropriation claims were barred by the newsworthiness or public interest
defense.

a. Defendants’ evidence In support of their motion, defendants pr esented the declarations of Morris, Mark Lipson (one of the producers), and several individuals (Ron Gersten, Lisa Pak, Gail Kavanaugh) attesting to the authenticity of the supportin g exhibits. The exhibits consisted of copies of the newspaper artic les and other documents obtained by Lipson and the production team during research into the Manacled Mormon story; copies of additional articles concerning plaintiff regard ing different subjects over the last several decades; copies of correspondence and the re lease agreements with plaintiff; a DVD containing segments of archiv al video footage from the British Broadcasting Corporation (BBC) referred to by Lipson as a “screener”; a transcript reflecting the audio portions of the screener video clips; a copy of the “Dialog/Continuity List” for Tabloid which reflects the “dialog and written wo rds that appear in the filmorganized by scene numbers and time measurements”; and a DVD copy of Tabloid . We summarize those facts germane to our discussion.5 Morris has been directing film s for over 30 years. In 200 8, he saw an Associated Press article dated August 10, 2008, about plainti ff which piqued his interest in her story. The article reported that plaintiff, who was then receiving international press attention for having had her pit bull, Booger, successfully cloned, was the same woman who had garnered extensive media coverage in th e 1970’s for allegedly abducting a Mormon missionary. Morris was in development w ith Showtime about a documentary television series addressing the issues of tabloid journalism and celebrity. He thought plaintiff’s story would be “a good fit” for the program. He asked Lipson, his producing partner on the project, to contact plaintiff. Like Morris, Lipson has been involved in filmmaking for over 30 years. He has produced a number of Morris’s documentaries. Lipson “spearheaded” the research effort into plaintiff’s story, assisted primarily by Ajae Clearway, one of the story producers. They contacted plaintiff about participati ng in an interview a nd obtained extensive research materials regarding the tabloid coverage of plaintiff’s story in the 1970’s, as well as additional news reports concerning plaint iff that appeared over the years. Lipson spent some eight months and approximately 500 hours of time performing research and talking to potential interview su bjects. The research materials he obtained
included articles from severa l British papers and tabloids, and articles from the Associated Press and a Wyoming-based paper, the Star-Tribune , among others. Lipson obtained archival video footage of news reports from the BBC as reflected in the screener, and a book based on the ManacledMormon story by Anth ony Delano published
in 1978. Morris and Lipson spoke with plaintiff’s British criminal defense attorney, Stuart Elgrod, and attempted to obtain court reco rds from the proceedings but were told the records no longer existed. Lipson obtained a copy of a 1984 film by Trent Harris, featuring an interview and video footage of plaintiff, porti ons of which were used in Tabloid . Lipson inquired about obtaining copies of an interview plaintiff gave to Tom Snyder for his talk show in6 approximately 1978, but ultimately decided ag ainst it due to the cost of acquiring the rights. Lipson also obtained copies of additional news articles related to plaintiff dating from the 1980’s through the pr esent, from media outlets lik e the Associated Press and People Magazine , regarding various subjects, including plaintiff’s arrest in 1984 in Utah for allegedly stalking Anderson n ear his work at the Salt Lake City airport, stories related to a dispute with a neighbor in North Carolin a that resulted in litiga tion, and articles in 2008 regarding the successful cloning of her pit bull. Throughout his career, Morris has genera lly tried not to have extensive preinterview discussions with his interview subj ects, preferring instead to hear the person’s story fresh during the interview process. He does not ask a lot of questions, but rather,
lets the interviewee si mply “express their story themselves .” In talking with plaintiff about arranging a possible inte rview, Morris found plaintiff to be quite forthcoming in talking about her life experiences. Plaintiff i ndicated she was familiar with Morris’s film work and “excited” about the prosp ect of working with him. During discussions to arrange plaintiff’s intervie w, plaintiff told Lipson and Clearway she had been trying to complete a b ook about her ordeal in England, but that a portion of her materials had be en stolen. Lipson told pl aintiff he would “scan and digitize” her remaining materials to pres erve them for her future use. Plaintiff’s interview took place on September 12, 2009, at a studio in Van Nuys. Clearway and an assistant picked up plaintiff at her home and brought her to the studio. Defendants provided plaintiff with professi onal hair and makeup services. Plaintiff brought three bins of materials with her to th e studio. With plainti ff’s permission, Lipson had the materials scanned. At plaintiff’s request, Lipson forwar ded two DVD’s of the scanned materials to plaintiff’s fath er’s address in North Carolina.
Plaintiff’s interview lasted five or six ho urs. Plaintiff was a “willing and talkative interview subject. [Morris] found her to be very intellig ent and a natural, animated storyteller who use[d] intere sting turns of phrase and allu sions.” Plaintiff “readily” talked about her life, her relationship with Anderson, how her pit bull had saved her life,7 and her efforts to have him cloned after his deat h. Plaintiff never declined to answer any question. At the conclusion of the interview, Lips on provided plainti ff with a standard release agreement that he and Morris regularly used with interview subjects. Plaintiff said her manager from the Joel Gotler Agency in Beverly H ills would have to review it before she signed it. Lipson contacted Thomas Detrinis at the agency and forwarded him a copy of the release. Several days later, M r. Detrinis indicated he would advise plaintiff to sign it. However, when Lipson spoke with plain tiff, she refused to sign it, saying her lawyer advised against it. Lipson suggested th ey get together over lunch to discuss her concerns. Lipson, Clearway and plainti ff met at a restaurant in Riverside on September 29, 2009. Lipson br ought the release agreement, plus a check for the agreedupon $2,500 consideration. Because plai ntiff had repeatedly said she was having difficulty making progress on comp leting her book, Lipson also brought her a new laptop computer. After going over the release ag reement line by line, plaintiff made and initialed a few changes and then executed the release (the 2009 Release). After lunch, Lipson and Clearway went back to plaintiff’s home where she
showed them the truck that had been broken into. She had left ma terials for her book
inside and the materials were stolen. Li pson took photographs and plaintiff never objected to him taking the pictur es of her, her property or her dogs. Plaintiff posed for several photos with her dogs. After completing the taped interviews, Morri s reviewed the resear ch materials that his production team had compiled. Becaus e of the volume of material, Morris made various editing decisions to pare down the rele vant material. For instance, Morris did not use the typed transcript plaintiff said refl ected a taped phone call between Anderson and plaintiff that occurred just before her arre st in England. Morris understood plaintiff believed the transcript provedher innocence by showing An derson’s complicity in their meeting, among other things. However, Morr is had concerns about its origins, was unable to obtain a copy of the original recording fo r comparison, and felt it was8 problematic overall due to num erous handwritten modifications and sections blackened out with a pen. Morris also decided not to reference materials that purported to show plaintiff was arrested on other unrelated char ges over the years, because it would reflect negatively on her. Morris included interview footage with two of the tabloid journalists involved in the coverage of the Manacled Mormon story. Morris wanted the film to show how two of the British tabloids “publishe d wildly different accounts” of plaintiff and the incidents
for which she had been arrest ed. He wanted to show the process of how a story is presented, and it was never his “intention to establish that one story or the other, or neither, is ‘the truth.’ ” After editing the material, it became apparent to Morris that a 30-minute television episode as part of the overall series origin ally envisioned for Showtime would not do the story “justice.” The agreement with Show time was terminated, and the material was developed into a full-length documentary film. Lipson and Morris determined that a ne w release would need to be signed by plaintiff as the 2009 Release granted rights only as to a Showtime television series. A new release, largely identical to the 2009 Release, was prepared with the primary modification being a granting of rights for the use of plaintiff’s interview, image and story in a “documentary film for worldwide theatri cal and ancillary distribution” instead
of a television series. Lipson contacted plaintiff in March 2010 to discuss the new re lease agreement. Plaintiff explained she was busy and upset because of then-pending proceedings by animal control officials against one of her dogs, “Jazz Puppy,” for allegedly injuring a woman. Lipson spoke with Morris who agreed they should offer to find an attorney who could help plaintiff with the situation. On plaintiff’s behalf, Li pson hired Mark Rosten, an attorney specializi ng in cases involving animals, as well as an animal behaviorist. Lipson did not personally atte nd any hearings regarding the dog, but later learned that
efforts to save it were not successful.9 Lipson went to plaintiff’s home in March 2010 and left a copy of the new release with her to sign. He told her they expected the film w ould qualify for Academy Award submission, which it eventually did, and that they were planning on initially showing it at various film festivals. Several days la ter, plaintiff faxed him the signed release agreement with some minor handwritten change s (the 2010 Release ). Lipson once again returned to plaintiff’s home to pick up the hard copy of the executed release and to give plaintiff a check for the additiona l $5,000 in consideration. Plaintiff contacted Lipson on a couple of occasions and said certain items were missing from the materials defendants had copi ed. Lipson went to plaintiff’s home and helped her go through the boxes. On both occasions, they were able to locate the items plaintiff thought were missing. Sometime in early September 201 0, a completed DVD copy of Tabloid was sent to plaintiff. Defendants also invited plaintiff to the Los Angeles premiere of the film and sent a limousine to pick her up. Plaintiff participated in a question and answer session with Morris after the showing of the film. Lipson took photogr aphs of plaintiff signing a poster for a fan and posing with Morri s holding a pink carnation.
b. Plaintiff’s opposition evidence The opposition evidence consisted of plaintiff’s lengthy declaration; the declaration of her expert Dr. Philip S. Wo ng, a clinical psychologist, regarding the allegedly false subliminal messages in Tabloid ; and, the declaration of her counsel attesting to the authenticity of the attached exhibits. Plain tiff’s exhibits included a copy of the transcription of the phone call between her and Ande rson in England just before
her arrest which she states reflects he r innocence of the charges; copies of correspondence with defendants a nd various versions of the re lease agreements; copies of
scenes or “screen shots” from Tabloid showing images juxtaposed or overlaid with words and phrases that portray plaintiff in a false lig ht; copies of scenes or “screen shots” from
Tabloid that incorporate unauthorized photographs of plaintiff; a copy of an October
2011 article in The Guardian regarding an interview with Morris about the film in which he makes disparaging comments about plain tiff; a copy of a Twitter post from Morris in10 July 2010 stating “I prefer the truth with some varnish on it. (Where did that nonsensical phrase – the unvarnished truth – come from? )”; several additional documents reflecting advertising or disc ussions regarding Tabloid ; copies of photos ta ken by plaintiff showing various items including a bracelet Lipson brought her as a gift; and a DVD containing video and audio clips of Morris and Lipson discussing Tabloid at various venues. We summarize those facts germ ane to our discussion. Anderson and plaintiff were deeply in lo ve and engaged to be married. She was a virgin when they met, and sh e remained faithful and devoted to him. Plaintiff was a former Miss Wyoming, and a petite 112-pound woman at the time, a nd did not, and could not, force Anderson, who was ap proximately 300 pounds, to do anything against his will. Plaintiff has always maintained her innocen ce of the charges brought against her in England. Following the media frenzy of the late 197 0’s, plaintiff attempted to live a private life. She lived in remote, rural areas, in cluding for a time with her parents in North Carolina, and eventually moved to her current residence in Southern California. She maintains unlisted phone number s. When the cloning of he r pit bull, Booger, garnered some media attention in 2008, plaintiff in tentionally used her middle name, Bernann McKinney, hoping to avoid anyone making the connection with the stories about her
from the 1970’s. In August 2009, plaintiff was contacted by Clearway about sitting for an interview with Morris to discuss the tabloid press, thei r tactics and “how they destroy privacy.”
Plaintiff was told it would be a short intervie w to be used in a television series Morris was directing about the tabloid media for th e Showtime network. Plaintiff was told it would allow her to “clear [her] name” conc erning the publicity she received following her wrongful arrest in England for “carrying away” her fiancé and purportedly “raping” him. Clearway promised plain tiff no defamatory material woul d be used, no material at
all from the Daily Mirror would be used, and Morris woul d provide her with copies of any court records obtained during his inves tigation. To protect plaintiff’s privacy, Clearway also promised plaintiff’s home, family members and pets would not be11 photographed, nor would the location of her home or her contact information be identified or otherwise provided to any jo urnalists or media. Based on those oral representations, plaintiff agreed to be interviewed. The interview was scheduled for Septembe r 12, 2009. Clearway told plaintiff a town car would be sent to pick her up and take her to the studio and home again. However, on the morning of th e interview, Clearway showed up at plaintiff’s home with several other individuals and “barged rudely” in, stating that photographs, including one of plaintiff as Miss Wyoming, were necessary for the production. Clearway and the other individuals “plundered throug h” plaintiff’s belongings and gathered numerous items, including a suitcase containing an extensive collection of photographs, memorabilia, and articles plaintiff had compiled for use in writi ng her book about her or deal in England. While surprised by Clearway’s actions, plainti ff believed her representations and allowed
the materials to be taken with them to the studio, believing she would assist Clearway in sorting through the materials at the studio to find suitable photographs for defendants’ use. However, unbeknow nst to plaintiff, defendants went through the mate rials while she was being interviewed, and scanned them with out her knowledge or consent. Numerous
items were taken and used in the film without her permission and never returned to her. During the interview, Morris asked plain tiff about the tabloid media, but then “strayed” into other subjects related to he r personal life, like the cloning of Booger, which she felt were not relevant to the produ ction for Showtime as it had been described to her. At no time did Morris ask her questions or ask her to provide evidence refuting
the tabloids’ claims she had worked as a se x hostess or prostitute. Plaintiff was never invited for a follow-up interview to re spond to any of the false comments and representations made by the other individuals interviewed and presented in the film. At the conclusion of the interview, Li pson asked plaintiff to sign a release agreement regarding the use of the interview f ootage in defendants’ production. Plaintiff refused to sign it, believing the language to be objectionable. Several days later, Lipson sent her another release to sign. Plaintiff st ill found the language objectionable. She, Clearway and Lipson agreed to meet on Septem ber 29, 2009, to discuss modifications to12 the release agreement. Plaintiff made seve ral handwritten changes and strikethroughs to the agreement and requested that a new docume nt be prepared reflecting her changes. Lipson told her to simply initia l the changes and insisted she not have a lawyer look at it before signing. Plaintiff initialed her handwritten change s and then signed the 2009
Release. During this time, plaintiff discovered th at a number of personal items taken from her home by defendants on the day of the interview had not been returned, including photographs of her as a baby , home movies of her family, two film treatments she had written (one titled “A Very Special Love Story” and another concerning the cloning of Booger), private correspondence, and items of memorabilia regarding her relationship with Anderson. She spoke with Lipson about the missing items, but he denied any knowledge of them. Plaintiff continued to make inquiries to Lipson into the fall of 2009 about the missing items. Lipson began to tell plainti ff she was “ ‘mentally ill ’, ‘crazy’ and should ‘go see a psychiatrist.’ ” Lipson’s conduct wa s particularly upsetting to plaintiff because, at that time, she was trying to save one of her beloved service dogs, Jazz Puppy, from being euthanized by animal control officials. In March 2010, Lipson contacted plainti ff saying a new releas e agreement needed to be signed. Lipson began “attempting to blackmail” plaintiff into signing the new release by finally admitting that certain of her personal items had been kept, but that they
would be returned to her if she would sign the new release. Lipson also tried to take advantage of he r concern about the fate of Jazz Puppy to coerce her into signing the new ag reement. Lipson offered to hi re an attorney to help get her dog released. On March 24, 2010, Li pson came to plainti ff’s home unannounced, climbed over a fence, and hand ed her the new release agreem ent to sign. Plaintiff was distraught and did not ha ve her glasses. Plaintiff has po or vision and could not read the release agreement. Lipson fo rced her to sign, yelling that her dog would die if she did not cooperate, insisting the release containe d “standard” language th at a lawyer did not need to review, and ultimately stabbing her hand with a pen in the process of trying to13 force her to sign. Plaintiff signed the 2010 Release believing Lipson would help her get Jazz Puppy freed. Lipson then failed to do anything and sarcastically joked about the death of her dog after animal control offici als euthanized him, claiming to have had someone “rattle” the dog’s cage so that he would growl and appear vicious. In August 2010, Lipson re turned to plaintiff’s home be aring flowers and a bracelet as a gift. Lipson told plaintiff: “it’s a karma bracelet, you’re going to get what’s coming to you.” Lipson continued to lie to plai ntiff, failing to explain there was no Showtime television series, but that a m ovie had been produced instead. He claimed the “television series” would help plaintiff “find a bu yer for [her] book and screenplay.” Plaintiff eventually learned Tabloid was going to be shown in New York at a documentary film festival in November 2010. Plaintiff went to the showing and saw the completed film for the first tim e. She became so upset by the lies portrayed in the film, and by the unauthorized personal items exploite d in it, that she vomited. Plaintiff never gave any permission or consent to use the pe rsonal photographs attached collectively to Lipson’s declaration as exhib its 16 and 19, or the copies a ttached as exhibit 8 to her
declaration. Dr. Philip Wong, a clini cal psychologist, was asked to address whether Tabloid “presents material in such a manner that the viewer develops beliefs about the Plaintiff, Joyce McKinney, unconsciously, without being aware of the source of those beliefs.” Dr. Wong offered his opinion the film contai ns subliminal messages that could result in viewers obtaining a false view of plaintiff. Th e film manipulates the viewer’s perception, in large part due to the manne r in which the material is presented, specifically the flashing of images and words for extremely shor t periods of time. D r. Wong stated that
in Tabloid , the “manipulation of attention and perception leads to material being presented at the fringes of a viewer’s awaren ess, which can facilitate the development of rogue beliefs.”
3. Synopsis of Tabloid To provide context for the discussion th at follows, we include a synopsis of
Tabloid . The great majority of th e film concerns the media coverage of plaintiff that14 transpired after her arrest in England in 19 77, referred to by the parties as the Manacled Mormon story, the moniker given by the Daily Mirror

. Plaintiff flew to England in Septembe r 1977, along with a friend Keith May, a purported bodyguard named Gil Parker, and Jack son Shaw, a pilot. Parker and Shaw left shortly after arriving in England and are no t significant to the story. Plaintiff met Anderson in Utah during college, before he left to undertake missionary work for the Mormon Church. Plaintiff always maintained he r trip to England was an effort to rescue Anderson, who she claimed had been sent to England because of his relationship with her. Within a few days of arriving, plainti ff located Anderson and, according to her, they went to a cottage in Devon for three days to share a weekend togeth er. She maintained they planned to be married and that the sexual relations they had were consensual, although plaintiff admitted in an interview with the BBC that she had tied Anderson to the bed, but with ropes, not chains. She ex plained it was with his consent, and that she
had read about it in a book on sexual therapy to address the guilt Anderson had, from the religious teachings of the Mormon Church, about engaging in sex. The media frenzy began with coverage of the disappearance of Anderson, his reappearance at his church several days later claiming to have been kidnapped and raped, and plaintiff’s arrest for “carrying away” Anderson with May’ s assistance. May was also arrested. There were various reports aris ing from coverage of the pretrial court proceedings, including some from law enforcement sources, th at a fake gun, handcuffs and a bottle of chloroform were found in pl aintiff and May’s belongings--reports plaintiff
denied. Several notable quotes used repeatedly thereafter in the tabloid press came from plaintiff’s reported in-court stat ements during hearings to dete rmine if she would be held
over for trial. One was that she had once been a member of the Mormon Church where she had been given the nickna me “Little Miss Perfect.” Perh aps the most famous quote was plaintiff’s claim she would have “skied nude down Mount Everest with a carnation up [her] nose” to be with Anderson, she loved him so much. Plaintiff was also dubbed the “sex-in-chains girl.”15 After plaintiff was released on bond to aw ait trial, the coverage of plaintiff continued, including several stories of plainti ff at events in London . For instance, there was coverage of her at a movie premier she attended with Peter Tory, a reporter for the Daily Express , where she purportedly up staged Joan Col lins in terms of attention from the press. There were also photographs publ ished of her being kisse d at a party by Keith Moon, drummer for the rock ba nd The Who, and plaintiff sa id she was also asked to dance at that party by several members of th e band The Bee Gees. After several months free on bail, plaintiff and May fl ed England, in disguise, with a troupe of deaf actors traveling to Canada.
Once back in the United Stat es, plaintiff contacted the Daily Express and offered to give them an exclusive. Tory, the reporter who had been covering the story for months and had gone with plaintiff to the movie premiere, flew to America with a photographer and spent several days interviewing plai ntiff and May. In the meantime, the Daily Mirror sent reporters to Los Angeles, where plaintiff had an apartment, to dig up information on plaintiff. They reportedly spoke with the apartment manager, Steve Moscowitz. Moscowitz had a key to plaintiff’s apartment because he was taking ca re of her dog while she was gone. Moscowitz apparently took nu merous photographs of plaintiff from her apartment, including some nu des, and gave them to the Daily Mirror reporters. During May and June 1978, the Daily Mirror and the Daily Express presented extensive coverage of plainti ff, each depicting plaintiff in drastically different ways. Under the heading “scoop of the year,” the Daily Express printed plaintiff’s story as she told it to Tory, with some additional commentary by Tory. Plaintiff said the Daily Express printed her story accurately (“word for word”), including her accusations against the Mormon Church. The articles, largel y casting plaintiff in a positive light, were accompanied by numerous photographs in which plaintiff and May posed, including several in the purported disguises they used because they feared arrest and extradition to England, and one with plaintiff cl enching a carnation in her teeth.
The Daily Mirror trumpeted its claim of reve aling “The Real McKinney,” referring to her as a “sex hostess” who earned thousands of dollars selling sex and16 claiming that is how she earned the money to travel to England. They also printed numerous nude photographs of plaintiff, some of which the Mirror claimed were from modeling assignments for sexual bondage magazines. A smaller portion of Tabloid is devoted to additional aspe cts of plaintiff’s life that garnered press attention over the years, including her 1984 arrest in Utah for allegedly stalking Anderson at his work, and the 2 008 cloning of plaintiff’s dog in Korea.
Tabloid opens with a montage of photographs of plaintiff as a child and teenager.
It then moves into a brief segment from the 1984 Trent Harri s film in which plaintiff reads from her manuscript titled “A Very Special Love Story.” Th e film cuts to a clip of a BBC interview of plaintiff fro m the 1970’s, and then segue s to the first segment of plaintiff’s interview with Morris, discussi ng her upbringing and he r first meeting with
Anderson. The rest of the film consists of alternating segments of the interviews with plaintiff and the other interview subjects, and montages of phot ographs, cartoons and animated graphics, portions of actual tabloid headlines and articles, and additional artistic
elements. There are also a number of video clips from arch ival BBC news reports about the Manacled Mormon story. One technique used throughout the film is the overlay of quoted words or phrases from an interviewee over a particular photogra ph, or the overlay of portions of some of the actual tabloid headlines over a photograph or video still. As an example, several minutes into the film, three separate portions of actual tabloid headlines appear, in succession, on a still image of plaintiff fro m her interview with Morris: “Joyce McKinney, Ex-Beauty Queen, Joyce McKinney, Sex Hoste ss, Joyce Mckinney, Little
Miss Perfect.” In addition to plaintiff, the individuals in terviewed in the film are Troy Williams, a former Mormon missionary and gay rights act ivist; Shaw, the pilo t that accompanied plaintiff and May to England; Tory, the repo rter from the Daily Express ; Kent Gavin, a photographer for the Daily Mirror and one of the reporters w ho went to Los Angeles and obtained the photographs from Moscowitz; a nd Dr. Jin Han Hong, the doctor in Seoul, Korea who performed the cloning of plaintiff’s pit bull. Rarely are any a udible questions17 heard from Morris. The interv iewees are filmed talking in a narrative style, largely without interruption. The film notes that May was not interviewed as he passed away several years earlier, Anderson did not resp ond to requests to be interviewed, and
defendants were unable to locate Moscowitz.
4. The Trial Court’s Ruling In February 2012, after briefing and oral argument, the court granted defendants’
motion. The court determined defendants had established that their conduct in creating and distributing the documentary film Tabloid formed the primary basis for plaintiff’s claims, and constituted acts in furtherance of their free speech rights. The court also
determined the film concerned an issue of public interest, namely tabloid journalism, as well as cultism and the Mormon religion. Th e trial court therefore concluded defendants had met their threshold burden in showing the challenged causes of action were based on conduct protected by section 425.16. The court determined plai ntiff was a limited purpose public figure and she was therefore required to show defendants acted with
actual malice under New York Times in attempting to estab lish the probability of prevailing on her claims. The c ourt ruled plaintiff had failed to meet that standard. The court therefore struck the misappropriation clai ms, the invasion of privacy claims and the
defamation claim.
As to the intentional infliction of emotiona l distress claim, the court ruled that to
the extent the cause of action was based on activity protected by section 425.16, it was not viable. However, to the extent it was base d on other allegedly outrageous conduct by defendants, the court ruled the cause of action su rvived to be resolved on the merits with the remainder of plaintiff’s tort and contract claims. Plaintiff filed this appeal challenging the court’s order granting defendants’ motion.
DISCUSSION “A ruling on a section 425.16 motion is revi ewed de novo. [Citation.] We review the record independently to determine whether the assert ed cause of action arises from activity protected under the statute and, if so, whether the plaintiff has shown a probability of prevailing on the merits.” ( Stewart v. Rolling Stone, LLC (2010) 18118 Cal.App.4th 664, 675 ( Stewart ); accord, Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
1. Section 425.16 Section 425.16 was enacted to provide a procedure for the early dismissal of causes of action that infringe on the exercise of the constitu tional rights to free speech and to petition for a redress of grievances. “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech
under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special moti on to strike, unless the court determines that the plaintiff has established that there is a probability that the plai ntiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) To better effectuate the statutory purpose of safeguarding the valid exercise of the rights to free speech and to petition for a redress of grievances, the Legislature amended section 425.16 in 1997 to expressly declare the
statute “shall be construed broa dly.” (§ 425.16, subd. (a); Stats. 1997, ch. 271, § 1.) In resolving a special motion to strike un der section 425.16, the court engages in a two-step analysis. The court must first determine whether the moving defendant “has made a threshold showing that the challe nged cause of action is one arising from protected activity.” (Navellier v. Sletten (2002) 29 Ca l.4th 82, 88 ( Navellier).) If the
court determines the defendant met this initia l burden, “it must then determine whether the plaintiff has demonstrated a proba bility of prevailing on the claim.” ( Ibid .) “In making its determination, the court shall consider the pleadings , and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2 ).) Only those causes of action that satisfy “ both prongs” of section 425.16, i.e., arise from protected activ ity and lack minimal merit, are subject to being stricken under the statute. (Navellier, at p. 89.)19 2. Step One: Defendants Established the Challenged Causes of Action
Arise From Conduct in Furtherance of the Exercise of Their First Amendment Right to Free Sp eech on a Public Issue The critical consideration in resolving wh ether a defendant has satisfied the first prong of the statute is determining whether the challenged claims arise from the defendant’s protected free sp eech or petitioning activity. ( City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Subdivision (e) of section 425.16 describes four categories of protected conduct within the m eaning of subdivision (b)(1). Such conduct includes oral and written statements made in a public forum in connection with a p ublic issue and, as relevant here, “any other conduc t in furtherance of the exercise of the constitutional right of petition or the constitutional right of free sp eech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(4).) In her causes of action for defamation, invasion of privacy, misappropriation and
intentional infliction of emotional distre ss, plaintiff seeks to impose liability on defendants for their conduct in “writing, film ing, produc[ing], and distribut[ing] the film

‘ Tabloid ,’ ” publicizing and promotin g the film through the distribution of trailers and posters, and presenting false depi ctions of her in the film. This was undeniably conduct
in furtherance of defendants’ exercise of their free speech rights protected by the First Amendment within the meaning of section 425.16, subdivision (e)(4). “Film is a ‘significant medium for th e communication of ideas’ and, whether exhibited in theaters or on television, is protected by constitutiona l guarantees of free expression.” ( Polydoros v. Twentieth Century Fox Film Corp . (1997) 67 Cal.App.4th 318, 323-324; accord, Joseph Burstyn v. Wilson (1952) 343 U.S. 495 [expression by means of film is protected by First a nd Fourteenth Amendments]; see also Stewart , supra , 181 Cal.App.4th at p. 682 [First Amendmen t protects “ ‘all forms of expression . . . written and spoken words (fact or fiction), music, films, pa intings, and entertainment’ ” sold for profit or not]; Tamkin v. CBS Broadcasting, Inc . (2011) 193 Ca l.App.4th 133, 143 ( Tamkin ) [“creation of a television show is an exercise of free speech”].)20 Plaintiff does not argue the making of a f ilm is not an exercise of free speech. Rather, plaintiff contends the subject matter of the film Tabloid does not concern a public issue or a matter of public interest within the meaning of the statute. We disagree. Section 425.16 does not expressly define “public interest,” but, it does mandate the statute is to be construed “broadly.” ( Id. , subd. (a).) Moreover, a “public” issue need not concern a matter related to the “lofty” goal of self-government or otherwise be “significant.” (Navellier
, supra , 29 Cal.4th at p. 91; see also Nygard, Inc. v. UusiKerttula (2008) 159 Cal.App.4th 1027, 1042 ( Nygard) [public interest present where allegedly defamatory magazine article c oncerned prominent Finnish businessman of
“extensive interest” to Finnish public]; Seelig v. Infinity Broadcasting Corporation (2002) 97 Cal.App.4th 798, 807-808 [public in terest present regarding on-air comments made by radio talk show hosts about contesta nt in popular reality television show].) To qualify as protected activity under the st atute, it is sufficient for the issue to be one in which the general pub lic takes an interest. ( Nygard
, supra , 159 Cal.App.4th at p. 1042; accord, Tamkin
, supra , 193 Cal.App.4th at p. 143 .) Stated another way, a
“statement or other conduct is made ‘in connection with a pu blic issue or an issue of public interest’ (§ 425.16, subd. (e)(4)) ‘if th e statement or conduct concerns a topic of widespread public interest and contributes in some manner to a public discussion of the topic.’ [Citation.]” ( Stewart , supra , 181 Cal.App.4th at p. 677.)
Plaintiff contends defendant s did not satisfy the public interest requirement of section 425.16, subdivision (e)(4) because the only themes in Tabloid are plaintiff’s “life, personality and role in the Mana cled Mormon story.” Plaintiff contends those issues may have been a matter of public inte rest in England some 30 years ago, but are not, and were not ever, a matter of public inte rest in America at any time. As support for this argument, plaintiff relies primarily on Dyer v. Childress (2007) 147 Cal.App.4th 1273 ( Dyer), in which the denial of a screenwriter defendant’s special motion to strike was affirmed on appeal. Th e plaintiff there was a private individual who had known the defendant in film school, and su ed over the misuse of his persona when a fictional character in defendant’s screenplay was given the same name as plaintiff. ( Id . at21 pp. 1276-1277.) The screenpl ay was made into the movie Reality Bites (Jersey Films; Universal Pictures 1994). The appellate c ourt rejected the defendant’s contention the challenged conduct qualified as protected ac tivity on the theory the fictional movie addressed the broad popular theme of the cha llenges facing “generation X” in the 1990’s. The court explained that in determining whether the defendant’s conduct was a qualifying act within the meaning of the statute, “we focus on the speci fic nature of the challenged protected conduct, rather th an generalities that might be abstracted from it.” ( Id . at p. 1279.) Noting that the specific dispute concerned the misuse of the plaintiff’s persona by portraying him as a “rebellious slacker,” the court found there was no discernible public interest in the plaintiff’s persona. “Alth ough Reality Bites may address topics of widespread public interest, defendants are un able to draw any connection between those topics and [plaintiff’s] defamati on and false light claims.” ( Id. at p. 1280.) Here, in contrast, the specific nature of defendants’ challenged conduct is
intertwined with the film’s overall focus on tabloid jour nalism. Plaintiff’s opposing declaration makes plain the challenged claims are based on the creative decisions made by defendants in presenting her story in the c ontext of the larger issues of the tabloid media frenzy that surrounded her arrest and how the tabloid media chose to pursue and present her story. She compla ins she was presented in a false light because her story was juxtaposed with the false and derogatory versions presented by the tabloids, and that the “prevaricating” tabloid reporters calling her a prostitute are presented as telling the truth, while she is presented as a liar. Dyer is of no assistance to plaintiff because she acknowledges the role her story plays in th e film’s portrayal of tabloid journalism. At oral argument, counsel for plaintiff argued Tabloid cannot be found to concern the broader subject of tabloi d journalism because it does not provide any direct critical analysis of tabloid journalism and does not di scuss or compare other instances of tabloid tactics, but instead focuse s entirely on the personal narrative of plaintiff’s life experiences. We reject the notion the docum entary film would have had to include academic discussion or critique of tabloid j ournalism to satisfy the first prong of the
statute. Defendants made the creative decisi on to showcase plaintiff’s rather dramatic22 experiences with the tabloid media to portray how events are presen ted and distorted in the tabloid press. This does not mean Tabloid does not concern the subject of tabloid journalism. What is left unsaid, leaving the viewer to draw his or her own conclusions, may speak volumes and is not a less deserving form of expression than the direct and
obvious. We conclude defendants’ film presents a view of how the tabloid media operates as seen through the lens of plaintiff’s pe rsonal experiences in the maelstrom of the
Manacled Mormon media circus. The film al so includes additional aspects of plaintiff’s personal life, like the later publicity she receive d over the cloning of her dog. But, the
overall theme of Tabloid nevertheless concerns the broade r subject of tabloid journalism, and not merely plaintiff’s persona. The subjec ts of tabloid journalism and the oftentimes questionable tactics of tabloid reporters a nd paparazzi photographers are matters of widespread public interest. Along with th e related issues of the overnight rise of “celebrities” from tabloid coverage and reality television, the subject is so prevalent, it
borders on a societal obsession. It is not mere coincidence Tabloid was released, as defendants note, at a time when the News of the World phone-hacking scandal was making international headlines. It serves to underscore that issues related to tabloid journalism are of widespread publ ic interest, and have been for years. It is indisputable the film, whatever its artistic merit, contributes “in some manner to a public discussion” of that topic. ( Stewart , supra , 181 Cal.App.4th at p. 677.) Defendants discharged their initial movant’s burden to show the challenged claims were based on conduct protected by section 425. 16, thus shifting the burden to plaintiff to establish the probability of prevailing on her claims.
3. Step Two: Plaintiff Did Not Show a Probability of Prevailing on Any of the Challenged Causes of Action To defeat a section 425.16 motion, a plain tiff must state and substantiate a legally sufficient claim. (Navellier
, supra , 29 Cal.4th at p. 88.) “ ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorab le judgment if the evidence23 submitted by the plaintiff is cr edited.” ’ [Citation.]” ( Id . at pp. 88-89.) While the court does not weigh credibility or “the probative strength of competing evid ence [citation], the motion to strike should be gr anted if the defendant ‘defeats the plaintiff’s showing as a matter of law, such as by establishing a defe nse or the absence of a necessary element.’ [Citation.]” ( Carver v. Bonds (2005) 135 Cal.App.4th 328, 344; accord, Tamkin
, supra , 193 Cal.App.4th at p. 145.) In arguing plaintiff could not establis h a probability of pr evailing, defendants raised several defenses to the challenged cause s of action, including: (1) a constitutional defense based on the First Amendment invoking the New York Times actual malice standard; (2) the defense of privilege to presen t plaintiff’s interview and story in the film based on her express written consent in th e 2010 Release; and (3) the common law and statutory defense of newsworthiness or pub lic interest. We conclude defendants presented evidence establishing the applicability of the First Amendment defense, as well as the newsworthiness or public interest defe nse, and that plaintiff failed to meet her burden in substantiating the challenged causes of action.

a. New York Times
Under New York Times “[i]f the person defamed is a public figure, he cannot recover unless he proves, by clear and convin cing evidence [citation] , that the libelous
statement was made with ‘ “actual malice” -- that is, with knowledg e that it was false or with reckless disregard of whether it was false or not.’ [Citation.]” ( Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256 ( Reader’s Digest ).) “ ‘[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. [Rather,] [t]her e must be suffi cient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with su ch doubts shows reckle ss disregard for truth or falsity and demonstrates ac tual malice.’ [Citation.]” ( Id . at pp. 256-257.)
The New York Times standard has been held to “apply to all claims whose gravamen is the alleged in jurious falsehood of a stat ement: ‘[that] constitutional protection does not depend on the label given th e stated cause of action’ [citation], and no24 cause of action ‘can claim . . . talismanic immunity from constitutional limitations[.]’ [Citation.]” ( Blatty v. New York Times Company (1986) 42 Cal.3d 10 33, 1042; accord, Reader’s Digest
, supra , 37 Cal.3d at p. 265 [actual ma lice standard for public figure plaintiff applies to claims fo r intentional infliction of emotional distress and both false light and intrusion on seclusion invasion of privacy claims]; Tamkin
, supra , 193 Cal.App.4th at p. 149 [same]; Stewart , supra , 181 Cal.App.4th at p. 682 [applying New
York Times standard to claims for common law an d statutory misappropriation].) The defense applies to all of the challenged causes of action.
b. Public figures Several years later in Gertz v. Robert Welch (1974) 418 U.S. 323 ( Gertz ), the court refined the definition of pub lic figures subject to the New York Times actual malice standard. The public figure designation “may re st on either of two alternative bases. In
some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues . In either case such persons assume special prominence in the re solution of public questions.” ( Id . at p. 351, italics added.) In so clarifying, the court undersco red its intent to assure “to the freedoms of speech and press that ‘breathing space’ e ssential to their fruitf ul exercise.” ( Id . at p. 342.) In characterizing a plaintiff as a lim ited purpose public figure, “[i]t is not necessary to show that a plai ntiff actually achieves promin ence in the public debate; it is sufficient that ‘ [ a plaintiff ] attempts to thrust himself [ or herself ] into the public eye’ [ citation ] or to influence a public decision .” ( Copp v. Paxton (1996) 45 Cal.App.4th 829, 845-846, italics added; accord, Gilbert v. Sykes (2007) 147 Cal.App. 4th 13, 25 [plastic surgeon was limited purpose public figure regarding subject of plastic surgery based on voluntary acts of writing articles in medical j ournals and beauty magazines and appearing on local television shows “touting the virtues of cosmetic and reconstructive surgery”].) Public figure status is judg ed under a totality of circumst ances approach, with the focus25 on whether the individual unde rtook some voluntary or affi rmative act to influence or participate in a public issue. ( Reader’s Digest
, supra , 37 Cal.3d at pp. 253-255.)

c. Plaintiff is a limited purpose public figure The trial court found plaintiff was a limited purpose public figure. “On appeal, the
trial court’s resolution of di sputed factual questions bear ing on the public figure
determination is reviewed for substantial ev idence, while the trial court’s resolution of the ultimate question of public figure status is subject to independent review for legal error.” ( Khawar v. Globe International (1998) 19 Cal.4th 254, 264 ( Khawar).) We agree plaintiff is properly characte rized as a limited purpose public figure in the context of this dispute. ( Reader’s Digest
, supra , 37 Cal.3d at pp. 253-254 [lim ited purpose public figure subject to actual malice standard only as to a llegedly defamatory pub lications related to his or her role in the public issue].) By expressly agreeing to participate in a taped interview to be used in a production for a broad public audience, plaintiff voluntar ily and affirmatively injected herself into a public discussion about the tabloid media, th eir tactics and how they purportedly present or misrepresent the truth, and “destroy” priv acy. While plaintiff argues she was misled
about the final format of th e production, she does not de ny she was willing to give a taped interview and participate in a producti on for a Showtime television series regarding the tabloid media, explaini ng her experiences and expre ssing her opinions about the subject. In the film, plainti ff speaks openly and with grea t conviction about her opinions regarding the conduct of the tabloid reporters that covered her story, as well as repeated
references to the Mormon Chur ch being a cult and the powe rful entity that she believes was behind the false accusations against her and which ultimately re sulted in her arrest
and the unwanted media attention. Moreover, plaintiff’s own evidentiary submissions undercut her assertion she is not properly characterized as a limited purpose public figure. Plaintiff stated in her
declaration she received numerous offers to tell her story over the past 35 years from “several media outlets”, in cluding a lucrative offer from Penthouse Magazine . She states she refused to participate in any of them in order to protect her privacy and maintain26 control of her “public image.” But the numerous offers were nonetheless made, demonstrating the public remained interested in her story over the course of the 35 years since it was first published. She also indicat ed she had not yet published her own book
about her ordeal because she has been trying to find “the proper venue for [her] cult rescue saga.” While couched in language atte mpting to show her effort s to stay out of the limelight, plaintiff’s statements nonetheless re flect her belief there is a continuing public interest in her story since she believes th ere is a market for her own book and/or screenplay. In several segments of her interview in Tabloid , plaintiff describes the celebrity status she attained following her arrest in England. Sh e described herself as being “suddenly a celebrity” and “a ph enomenon,” and that she rece ived thousands of letters from the public sympathizing with her pr edicament, as well as numerous marriage proposals. She said that upo n her release on bail, she foun d her bed and breakfast in London filled with dozens of pi nk carnations (presumably all in reference to plaintiff’s widely reported “carnation” quotation from th e court proceedings). Plaintiff said “when you’re famous,” you learn who your true fri ends are. Once back home in America and living with her parents in Nort h Carolina, plaintiff explained that even though they lived in a rural area, the paparazzi came by regularly and hounded her. Sh e bought a guard dog to keep people from coming up to the house. She said this be havior went on “like that for years.” Such statements belie the claim th ere was no interest in plaintiff’s story in America, or in the years after she returned from England. Plaintiff raised factual disputes about th e validity and scope of both the 2009 and the 2010 Releases, as well as the alleged misrepresentations made to her about the nature of the film production. However, plaintiff does not deny she voluntarily agreed to participate in a production which she belie ved would be shown as a series on the Showtime network, and to express her opini ons about the tabloid press and how “they destroy privacy.” It is therefore beyond disp ute plaintiff willingly injected herself into a public discussion about the tabloid press and how it operates, based on her own firsthand experiences, and that she sought to articulat e her beliefs for use in the program in a27 manner to influence public opinion about thos e subjects. On such facts, plaintiff is properly characterized as a limited purpose public figure. ( Gertz , supra , 418 U.S. at p. 351.)
d. Actual malice Because plaintiff is a limite d purpose public figure with respect to claims arising from the production an d distribution of Tabloid , plaintiff was required to show clear and convincing evidence de fendants acted with actual malice.
The “actual malice” standard is a subjective test, “under which the defendant’s actual belief concerning the truthfulness of the pu blication is the crucial issue. [Citation.]
This test directs attention to the ‘defendant’s attitude toward the truth or falsity of the material published . . . [not] the defendant’s at titude toward the plaintiff.’ [Citation.]” ( Reader’s Digest
, supra , 37 Cal.3d at p. 257.) “[O]ther wise stated, ‘there must be sufficient evidence to pe rmit the conclusion that the defenda nt . . . had a “high degree of awareness of . . . probable falsity.” ’ [Citation.]” ( Khawar
, supra , 19 Cal.4th at p. 275.) “To prove actual malice, therefore, a plai ntiff must ‘demonstr ate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement.’ [Citation.]” ( Ibid .) The primary evidence relied upon by plai ntiff to show actual malice included: (1) the conduct by Lipson purpor tedly showing ill will or hostility toward plaintiff in the handling of her personal materials, the death of her dog, and in the process of obtaining her signature on the release agreements; (2) statements made by Morris and Lipson about the film; and (3) Morris’s failure to in clude certain material in the film. Assuming it is true that Lipson was inse nsitive, even boorish, regarding plaintiff’s service dog, her purportedly missi ng personal items, and the effo rts to obtain plaintiff’s signature on the 2010 Release, that does not demonstrate Lipson, Morris, or anyone involved in creating Tabloid harbored doubts ab out the accuracy of th e material presented in the film. Even assuming pl aintiff’s evidence raises an inference of ill feelings or callousness toward plaintiff personally, the focu s of inquiry is on defendants’ subjective28 beliefs about the truth or falsity of the mate rial presented in the film, not defendants’ attitude toward plaintiff. ( Reader’s Digest
, supra , 37 Cal.3d at p. 257.)
Plaintiff’s reliance on the statemen ts made by Lipson and Morris during promotional events and at postscreening qu estion and answer sessions with audience members is similarly unavailing. One of the clips presented is of Lipson speaking with audience members after a showing. The per tinent quotation, according to plaintiff, is where Lipson says he does not “want to know the truth” about what really happened between plaintiff and Anderson. However, he th en adds that it is probably not possible to know the whole truth. With respect to plain tiff, Lipson says that she was quite willing to tell her story and “I think we did a good job” of presenting it. No other quotations are presented indicating any subjective belief by Li pson that any of the material included in
Tabloid was inaccurate or that he harb ored ill will toward plaintiff.
The balance of the audio and video clips are of Morris at various venues discussing or promoting the film. In one c lip, Morris says he believes the essence of tabloid journalism, which has always depe nded on sensationalism, was revealed by Tory’s statement in th e interview, without any apparent self-consciousness, that he thinks plaintiff actually used ropes to tie up Anders on, but he reported she used chains because chains just sounded “better.” In another clip, after reiterating the extremes pursued by tabloid journalists to get a story and sell papers , even resorting to fabrication, Morris says he believes the heart of any real journalism must be the pursuit of the truth and that reality is stranger than fiction and makes for goo d storytelling. At another venue, Morris is asked if he believes plaintiff’s version of what
occurred. Morris states he cannot be sure. He believes plaintiff’s position that a woman cannot rape a man, but as to all the details, he explains it is difficult to know for sure because the story, having largel y taken place in private, is dependent on subjective first person narratives. He says ultim ately we are all “unreliable narrators” to some degree.
Morris believes there are issues surrounding what happened that are unresolvable. In putting together the film, he found there we re questions he simply could not answer definitively, but he put in t hose facts which he believed to be true, to the extent the29 absolute truth can be known. Morris concedes he was less interested in attempting to ascertain the absolute truth, and more interested in telling the story of how the tabloids portrayed plaintiff. He explains the tabloids chose to present two divergent stories of plaintiff, one of her as a whore, the ot her as a virgin, and neither is true. In yet another clip, Morris explains he does not engage in “adversarial” interviewing, trying to “badger” the interviewee w ith embarrassing questions. Morris feels that type of interviewing interferes with the interviewee’s ability to tell their story. He says he believes it is important to pursue the truth, but to let people tell their version of their story, from their perspectiv e. Morris states the majority of Tabloid is plaintiff telling her own story, which he fo und to be rich and complex, and he tried to portray that complexity.
Plaintiff also fails to show Morris’s Twitter comment was made in relation to anything having to do with plaintiff or the film Tabloid . “I prefer the truth with a little varnish on it” is simply a colo rful statement of opinion that does not assist plaintiff.
Morris’s statement in The Guardian article about plaintiff havi ng gone to England with
“heavies” also does not suffice. It is not di sputed plaintiff went to England with three men to find Anderson, at leas t one of whom she described as a “bodyguard.” Defendants also obtained numerous articles reporting that law enforcement officials had said a fake gun and other items were found in plaintiff’s belongings upon her arrest. The fact Morris may be ambivalent about plaintiff’s true mo tives in going to Engl and, based on that information, does not translate into proof he harbored seri ous doubts about the truth of any fact presented in the film. Tabloid presents those facts in addition to plaintiff’s version that no kidnappi ng at all took place. Additional quotations from Morris include: “I tried to create a sympathetic and loving portrayal of Joyce. She looks grea t in the movie. She is a powerful and convincing presence”; she is “f abulous”; and, “I like Joyce. I still find Joyce endlessly fascinating.” The Morris and Lipson quotations, whether viewed singly or cumulatively, do not constitute clear and convincing evidence of ac tual malice. None shows that defendants30 “ ‘ “had a high degree of awareness of . . . probable falsity” ’ ” or “ ‘subjectively
entertained serious doubts as to the truth’ ” of any material included in the film. ( Khawar
, supra , 19 Cal.4th at p. 275.) Most of th e statements, read in context, actually defeat a finding of actual malice as they re flect Morris’s and Lipson’s subjective beliefs they did not feel it was possible to know th e absolute truth. Th e statements show the movie presents, in essence, an open-ended, unresolvable question about what actually happened, how the truth can be manipulated or obscured, or even innocently altered by each narrator’s own subjective view of the circumstances.
Morris’s decision to not include certain ma terial, such as the transcript of the telephone conversation between Anderson and plaintiff, also is of no assistance to plaintiff. Morris explained that various editi ng choices had to be made because of the volume of material, and with respect to that specific document, he was unable to establish its origins and was concerned about includin g it because of the modifications that had been made to it. Morris did include a portion of plaintiff’s interview discussing the taped phone conversation and how that ultimately led to her arrest. Morris also expressly stated
that he chose to edit out certain materials specifically because he did not feel they were germane and could reflect negatively on plaintiff.
Lack of actual malice is further bolstere d by the fact defendants included material
in Tabloid bearing on the credib ility of the tabloid journalists. Tory, from the Daily Express , is referred to as a “gossip columnist. ” The film includes a segment from his interview in which he laughingly admits he understood plaintiff had purportedly tied up Anderson with ropes, but “chains sounds bett er,” explaining the genesis of the “sex-inchains” reference that became ubiquitous for a ll media outlets in discussing the story. In another segment, Tory admits he feels plai ntiff used him in a manner of speaking by going to the premiere and being seen in pub lic when, all the while, she planned to flee England. His bias appears plain and no reasonable viewer would place great weight on his hyperbolic statements of opinion, such as referring to plaintiff as “barking mad,” referencing both the dog cloning and Manacled Mormon stories.31 Gavin, the photographer from the Daily Mirror , is shown laughing about plaintiff’s purported suicide a ttempt after learning of the Mirror ’s article called “The Real McKinney” portraying plai ntiff as a prostitute. A segmen t of his interview is also
included in which he admits the Mirror , after obtaining the photographs from Moscowitz (some of which he apparently took from plai ntiff’s apartment), paid for Moscowitz to go
to Mexico so that he would not be loca ted or speak with anybody else about the information and photographs he had taken from plaintiff’s apartment and given to the
Mirror . He is also shown stating the negatives of the nude photographs of plaintiff that were published in the Mirror which would purportedly show that none of the photographs had been altered (plaintiff cl aimed many of the phot os had been) were inexplicably lost when the ow nership of the paper changed. Moreover, the record shows plaintiff pub licly admitted to many of the facts and much of the material presented in Tabloid . In taped interviews for the BBC during 1977 and 1978, in articles with the Daily Express and/or during the interview footage for
Tabloid , plaintiff admitted: she had tied Ande rson to the bed with ropes, with his consent, because she r ead about it in a book about sexual therapy and she was trying to help Anderson who was “sexually repressed” and “brainwashed” by the Mormon Church; she worked for several days on an “odd ” modeling assignment booked for her by an unethical agent when she was a struggling actress, but had no idea the photographs would be used in a bondage-style publication; she posed nude in nume rous photographs but explained they were intended to be private and solely for Anderson, and Moskovitz gave
them to the Daily Mirror without her permission; she ex plained she gave massages but
declined to answer whether she ever earned money for doing so; she went to England with “two bodyguards” to rescue Anderson because she feared the response of the church; while out on bail awaiting trial, plaint iff obtained and used the birth certificates
of two deceased individuals for her and May to use and made disguises for them to leave the country; she went to Utah in 1984 and saw Anderson at the airport, but was not stalking him as she only went to find out what he was doing to have a proper ending for her manuscript about their relationship.32 Plaintiff further argues the declarati on of her expert went unchallenged by
defendants. It is true defendants did not ch allenge Dr. Wong’s declaration. However, the opinions offered by Dr. Wong ad dress, at most, the possib ility that some viewers of
Tabloid could be led to believe, on a subliminal level, the negative image of plaintiff presented by the tabloid papers was true. Ev en assuming his declaration raised sufficient
admissible evidence in that re gard, it is not evidence showing any defendant acted with actual malice in creating and distributing the film. Plaintiff also suggests defendants’ ill w ill toward her may be inferred by their
failure to allow her to di rectly address the tabloid claims against her. But, Tabloid just
rehashes how the media circus around the Ma nacled Mormon story unfolded in 1977 and 1978, with the bulk of the interview footage used in the film coming from plaintiff herself. Plaintiff was fully aw are of the scope of the clai ms made against her by the tabloids. Over the years, she has consiste ntly and repeatedly denied and provided explanations for the more salacious of tabl oid claims, including th at she worked as a prostitute. Plaintiff does not provide any evidence that Morris or any defendant prevented her, during her interview for the f ilm, from explaining or refuting in greater
detail the claims she had work ed as a prostitute and had po sed as a model for bondage magazines. She says only sh e was not specifically asked que stions about those issues or asked back for a follow-up interview. Neither of these claimed failings on the part of defendants raises any infe rence of actual malice. Plaintiff’s inability to pr esent clear and convincing evidence of actual malice is fatal to all of the challenged claims. ( Reader’s Digest
, supra , 37 Cal.3d at p. 265 [actual malice standard for public figure plaintiff app lies not only to defamation but to claims for
intentional infliction of emotional distress and false light and in trusion on seclusion invasion of privacy claims]; Tamkin
, supra , 193 Cal.App.4th at p. 149 [same]; Stewart , supra , 181 Cal.App.4th at p. 6 82 [applying actual malice st andard to common law and statutory misappropriation claims].) As th e Supreme Court has explained, “liability cannot be imposed on any theory for what has been determin ed to be a constitutionally33 protected publication.” ( Reader’s Digest
, supra , at p. 265.) The claims were properly stricken pursuant to section 425.16. 2

e. Newsworthiness or public interest defense
Plaintiff’s claims for common law and statutory misappropriation (Civ. Code, § 3344) include allegations that defendants misappropriated, without her valid consent, some of her personal photographs a nd videotapes and used them in Tabloid or in the promotional material s for the film. There are two types of common law misappropriation claims. ( Dora v. Frontline Video, Inc . (1993) 15 Cal.App.4th 536, 541-542 ( Dora ).) One type is the more common right of publicity. “The other is the approp riation of the name and likeness that brings injury to the feelings, that concerns one’s own peace of mind, and that is mental and subjective.” ( Id . at p. 542.) California recognizes a “public interest” defense to a common law claim for misappropriation of one’s name or likeness. (See Stewart , supra , 181 Cal.App.4th at p. 680; accord, Dora , supra , at pp. 542-543.) The public interest
defense is similar to the newsworthiness exemption or defense applicable to a statutory claim for commercial misappropriation. ( Stewart, at p. 680; Dora, at pp. 544-546.) Subdivision (d) of Civil Code se ction 3344 provides: “For purp oses of this section, a use of a name, voice, signature, ph otograph, or likeness in conn ection with any news, public

2 Plaintiff’s cause of action for invasion of privacy/intrusion into seclusion includes allegations defendants gave plaintiff’s unlis ted private cell phone number and address to third parties and media outlets and showed im ages of her home. Because plaintiff failed to discuss this aspect of her claim in her briefs, we consider the matter waived. ( Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [app ellate court need not “ ‘consider points which are not ar gued or which are not supported by citation to authorities or the record’ ”].) In any event, the record establishes the clai m fails on the merits because plaintiff provided her contact information to defendants (they did not obtain her contact information surreptitiously), and sh e presented no evidence what soever that they gave her contact information to any third party or othe rwise showed any identifiable aspect of her home in Tabloid. (See Hernandez v. Hillsides, Inc . (2009) 47 Cal.4th 272, 286-288 [discussing elements of intrusion into seclusion cause of action].)34 affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is requi red under subdivision (a).” The public interest or newsworthiness defense has been c onstrued broadly to protect the valid exercise of Firs t Amendment rights. (See, e.g., Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 410-411 [“Entertainment features receive the same constitutional protection as factual ne ws reports” and the “public interest is not limited to current events; the public is also entitled to be informed and entertained about history.”]; accord, Stewart , supra , 181 Cal.App.4th at p. 681; Maheu v. CBS, Inc . (1988) 201 Cal.App.3d 662, 676-677 (Maheu ).)
In Dora , the plaintiff had been well-known in the Malibu surfing community some two decades earlier. ( Dora , supra , 15 Cal.App.4th at p. 540.) Since that time, he had led a relatively private life and t ook offense to the defendants’ use of photographs of him surfing, as well as an audiotape of an inte rview he had given, in a video documentary about surfing they had produced. ( Id . at pp. 540-541.) The plaintiff sued the defendants for the unauthorized use of his name, voi ce and likeness in the documentary. ( Ibid .) In affirming summary judgme nt in favor of the defendants, the court explained: “Whether [plaintiff] is consid ered a celebrity or not, whether he is seeking damages for injury to his feelings or for the commercial value of his name and likeness, we conclude that the public interest in th e subject matter of the program gives rise to a constitutional protection against liability.” ( Dora , supra , 15 Cal.App.4th at p. 542.) The court also explained the basis for an expansive interpretation of the statutory exemption: “Civil Code Sec tion 3344, subdivision (d) dis tinguishes between news and public affairs. We presume that the Legisl ature intended that th e category of public affairs would include things that would not ne cessarily be considered news. Otherwise, the appearance of one of those terms in th e subsection would be superfluous, a reading we are not entitled to give to the statute. [Citation.] We also presume that the term ‘public affairs’ was intended to mean someth ing less important than news. [Citation.]
Public affairs must be related to real-life occurrences. As has been established in the cases involving common law privacy and appropri ation, the public is interested in and35 constitutionally entitled to know abou t things, people, and events that affect it. For that reason, we cannot limit the term ‘public affairs’ to topics that might be covered on public television or public radio. To do so woul d be to jeopardize society’s right to know, because publishers and broadcasters could be sued for use of na me and likeness in documentaries on subjects that do not relate to politics or public policy, and may not even be important, but are of interest.” ( Dora , supra , 15 Cal.App.4th at pp. 545-546.) As we have already ex plained at length above, Tabloid concerns a subject of widespread public interest. The public inte rest or newsworthiness exemption is properly applied here to defeat plaintiff’s claims. Pl aintiff has not persuaded us there is any sound reason for not following Dora , Maheu and Stewart

. DISPOSITION The court’s order of February 24, 2012, granting defendants’ mo tion is affirmed. Defendants shall recover their costs on appeal , as well as reasonabl e attorney fees on appeal pursuant to section 425.16, subdivision (c)(1).

GRIMES, J.
We concur:

BIGELOW, P. J.

FLIER, J.