Jenni Rivera Enters., LLC v. Latin World Entm't Holdings, Inc.

After her death, Rivera's family and heirs created JRE to own and manage Rivera's intellectual property and publicity rights. Rivera's sister, Rosa Rivera Flores, asked Salgado and others in Rivera's "inner circle" to sign nondisclosure agreements intended to prevent them from capitalizing on Rivera's fame by disclosing sensitive and potentially embarrassing private information. According to Flores, Salgado signed the nondisclosure agreement in September 2013 in her presence, and she signed the agreement on behalf of JRE.

Among other things, the agreement provided: "Recipient [Salgado] shall hold in a fiduciary capacity for the benefit of JRE ... all information, knowledge, and data relating to or concerned with their respective operations, business, financial affairs and personal affairs, including but not limited to personal affairs of [Rivera] ... ; and Recipient shall not disclose or divulge any such information, knowledge, or data to any person, firm, or corporation ... except as may otherwise be required in connection with the business and affairs of JRE provided that JRE or its designees provide written

In May 2016 Flores learned from press releases that Salgado was working with Univision Communications Inc. and Univision Networks & Studios, Inc. (collectively, Univision) on a television series called "Su Verdadero Nombre Era Dolores" ("Her Real Name Was Dolores"). One of the press releases stated the Series "reveals the true woman behind the music and the headlines as told by her former manager, a man she publicly referred to as her fifth brother, Pete Salgado.... [F]ans will get Pete's previously untold perspective

who were not involved with the Series. On February 6, 2017 JRE filed a complaint against Univision for interference with contract and inducing breach of contract. The complaint alleged Univision knew of Salgado's nondisclosure agreement no later than September 12, 2016, but continued to induce Salgado to "disclose secrets covered by the [nondisclosure agreement] by providing him with a financial incentive to disclose such secrets, a platform to disclose such secrets, and the prestige of serving as an executive producer on a television show broadcast on Univision in which he could air such secrets." JRE alleged that, as a result of Univision's alleged "actual and ongoing breach or disruption of the contractual relationship between JRE and Salgado," JRE was entitled to actual damages, restitution, disgorgement, and punitive damages.

D. The Producers and Univision File Special Motions To Strike

The Producers and Univision filed special motions to strike the complaints under section 425.16. In the first step of the section 425.16 analysis, they argued the complaints arose from protected activity because developing, producing, and broadcasting a television series are acts in furtherance of the right to free speech. In the second step, the Producers argued JRE could not show a probability of prevailing on the merits because the Producers did not have knowledge of the nondisclosure agreement "before the development of the Series" or before BTF entered into the term sheet with Univision. The Producers argued they "could not have intended to induce a breach of a then-unknown contract." The Producers argued that, once they learned of the existence of the nondisclosure agreement, they did not know whether it was authentic or enforceable. They claimed that, after receiving the June 3, 2016 cease and desist letter, "Salgado signed a notarized affidavit under penalty of perjury declaring that: (1) he never signed the NDA [nondisclosure agreement]; (2) there is no agreement restricting him from discussing his personal and professional dealings with Ms. Rivera; and (3) the signature on the NDA provided by [JRE's] counsel to [the Producers] did not belong to him." Thus, according to the Producers, even if JRE could ultimately prove the nondisclosure agreement was legitimate, JRE could not show the Producers intended to

prima facie showing of "minimal merit" and that JRE had produced sufficient admissible evidence to satisfy that standard. JRE argued that, even if the Producers and Univision did not know about the nondisclosure agreement at the time they entered into contracts relating to the production of the Series, they had notice of the agreement no later than June 3, 2016 and September 12, 2016, respectively, and they induced Salgado to breach the agreement and interfered with it throughout the production. For example, JRE argued Salgado continued to breach the nondisclosure agreement

Contreras , at p. 404, 208 Cal.Rptr.3d 707 ; see Barry v. State Bar of California (2017) 2 Cal.5th 318 , 321, 212 Cal.Rptr.3d 124 , 386 P.3d 788 ( Barry ).)

Section 425.16 "does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." ( Baral v. Schnitt (2016) 1 Cal.5th 376 , 384, 205 Cal.Rptr.3d 475 , 376 P.3d 604 ( Baral ); see Zhang v. Jenevein (2019) 31 Cal.App.5th 585 , 592, 242 Cal.Rptr.3d 800 .) Resolution of a special motion to strike "involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of

Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352 , 363, 225 Cal.Rptr.3d 321 [same].) Indeed, " 'to satisfy due process, the burden placed on the plaintiff must be compatible with the early stage at which the motion is brought and heard [citation] and the limited opportunity to conduct discovery.' " ( Hardin v. PDX, Inc. (2014) 227 Cal.App.4th 159 , 166, 173 Cal.Rptr.3d 397 ; see

Sweetwater Union High School District v. Gilbane Building Co., supra , 6 Cal.5th at p. 940, 243 Cal.Rptr.3d 880 , 434 P.3d 1152 [only a " ' "minimal" showing [is] necessary to overcome a [special motion to strike]' "].)

1. The Existence of a Valid Contract

JRE alleged the nondisclosure agreement between JRE and Salgado precluded Salgado from disclosing or using certain confidential information about Rivera. The Producers did not argue in their special motion to strike that JRE could not make a prima facie factual showing on the existence of this contract. The trial court found JRE made a prima facie showing the agreement was valid and enforceable, and the Producers do not challenge this aspect of the court's order.

2. Knowledge of the Nondisclosure Agreement

"To recover damages for inducing a breach of contract, the plaintiff need not establish that the defendant had full knowledge of the contract's terms. Comment i to Restatement of Second of Torts, section 766, ... states: 'To be subject to liability [for inducing a breach of contract], the actor must have knowledge of the contract with which he is interfering and of the fact that he is interfering with the performance of the contract.' " ( Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280 , 302, 136 Cal.Rptr.3d 97 ; see I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257 , 290, 185 Cal.Rptr.3d 24 [knowledge of a contractual relationship is sufficient to show knowledge for the tort of inducing breach of contract].)

a. JRE Made a Sufficient Showing the Producers Knew of the Agreement Before They Allegedly Interfered with and Induced Salgado To Breach It

JRE alleged and provided evidence the Producers knew of the nondisclosure agreement no later than June 3, 2016, when JRE sent the cease and desist letter attaching the agreement. The Producers concede they received the letter at that time. They argue, however, that JRE failed to present evidence showing they knew of the nondisclosure agreement "when they began developing the Series" and that any subsequently acquired knowledge is not relevant to JRE's causes of action. JRE's causes of action, however, are not limited to conduct that occurred when production of the Series began. Under the terms of the nondisclosure agreement, Salgado had a continuing

the plaintiff's trade secrets in a "tactical scheme" to strip the plaintiff of its exclusive importation rights for a particular beer. ( Id. at p. 944.) The court held that "discrete" wrongful acts underlying the cause of action for interference with prospective economic advantage, if proven, satisfied each element of that tort. ( Id. at p. 952.) Other federal courts applying state law have similarly recognized a cause of action for interference with a contract based on discrete, partial breaches of the contract underlying the claim. (See Hi-Lite Products Co. v. American Home Products Corp. (7th Cir. 1993) 11 F.3d 1402 , 1410 [claims for tortious interference with contract and prospective economic advantage based on partial breaches of an exclusive distribution agreement]; Dickinson v. University of North Carolina (M.D.N.C. 2015) 91 F.Supp.3d 755 , 767 [claim for tortious interference with contract based on partial breaches of an education contract]; Moser v. Triarc Co., Inc. (S.D.Cal., Mar. 29, 2007, No. 05cv1742-LAB (WMc)) 2007 WL 1111245 , at p. 2 [defendants allegedly induced a breach of contract each time they published defamatory statements in a different form].)

Flores's declaration that she witnessed Salgado sign the agreement, the forensic document examiner's opinion that

JRE further contends the Producers must have known these acts would result in Salgado breaching the nondisclosure agreement because, no later than September 2016, the Producers had knowledge of the nondisclosure agreement, its restrictions on Salgado, and its likely authenticity; the Series was conceived and marketed after September 2016 as "a tell-all based around Salgado's unique access to secrets about [Rivera]"; and the Producers created the Series between September and December 2016. We agree with the trial court's conclusion that this evidence satisfied JRE's burden to show the Producers knew their acts were substantially certain to interfere with the nondisclosure agreement. ( Popescu, supra , 1 Cal.App.5th at p. 51, 204 Cal.Rptr.3d 302 .)

The Producers argued in the trial court and argue on appeal that, even if they made payments to Salgado throughout the production of the Series or gave him an executive producer credit when the Series aired, they did so "pursuant to contracts entered into before [the Producers] learned about the alleged NDA." The Producers cite Imperial Ice Co. v. Rossier (1941) 18 Cal.2d 33 , 112 P.2d 631 ( Imperial Ice ) for the proposition that performance of a contract that results in one party breaching a contract with a third party, without more, does not prove intentional interference with the third party's contract. (See id. at p. 39, 112 P.2d 631 .) But here, as in Imperial Ice , JRE alleged and submitted evidence of more. JRE alleged the Producers used their contractual relationship with Salgado after they had knowledge of the nondisclosure agreement to induce Salgado to breach that agreement, which deprived JRE of the value of the information protected by the agreement and damaged JRE's ability to exploit it. JRE also submitted a press release stating, "Just days after Jenni Rivera's estate announced plans are under way to produce her biopic, Univision revealed it will produce a TV series based on the late singer's life ...." Based on evidence the Producers knew about Salgado's relationship with JRE, the nondisclosure agreement, and JRE's plans to produce a show about Rivera's life, it is reasonable to infer the Producers intended to commercialize Rivera's story before, and thus to the detriment of,

Webber , a junior lienholder sued the senior lienholder for intentionally interfering with the junior lienholder's note by foreclosing on the senior note and eliminating the junior lien. ( Id. at pp. 893-894, 88 Cal.Rptr.2d 594 .) The court held the senior lienholder undoubtedly had the right to collect on the note, but that right "did not extend to intentional acts designed to disrupt the contractual relationship embodied in the junior lien." ( Id. at p. 902, 88 Cal.Rptr.2d 594 .) In light of evidence showing the senior lienholder's foreclosure was "a sham ... designed for the specific purpose of eliminating the junior lien," the court affirmed judgment in favor of the junior lienholder. ( Ibid. ; see whiteCryption Corporation v. Arxan Technologies, Inc. (N.D.Cal. June 15, 2016, No. 15-CV-00754-WHO) 2016 WL 3275944 , at p. 5 [denying a motion to dismiss a claim for intentional interference with contractual relations where the plaintiff's allegations went "further than simply conveying [the defendant's] desire to enforce the terms of [an] Agreement" by alleging the defendant induced a breach of contract "to gain a competitive advantage" and "to gain access to the confidential information"]; Ariba, Inc. v. Rearden Commerce, Inc. (N.D.Cal. Sept. 8, 2011, No. C-11-01619 EDL) 2011 WL 4031140 , at p. 7 [conduct incidental to an

promptly contested the reasonableness of the Producers' reliance on Salgado's representations and provided evidence from which a trier of fact could reasonably infer the Producers, at best, willfully ignored Salgado's contractual obligations. In contrast, the defendant in 1-800 Contacts had no reason to question the reassurances it received that its conduct would not interfere with the contract. (See id. at p. 586, 132 Cal.Rptr.2d 789 .)

4. Actual Breach or Disruption of the Contract

The Producers do not argue JRE failed to present evidence of a breach or interference with the nondisclosure agreement. Indeed, the trial court's ruling on the Producers' special motion to strike stated the Producers "appear to concede that, if they knew of the NDA [when they signed the Coproducers Agreement] they could potentially face liability for the causes of action at issue." On appeal the Producers do not contest the trial court's characterization of their position or argue JRE failed to present evidence Salgado breached the nondisclosure agreement after the Producers had knowledge of it.

Moreover, as the trial court found, Salgado undoubtedly made additional disclosures of the same information to others during the production of the Series, and Salgado undoubtedly "used" protected information without JRE's authorization. Given the breadth of the nondisclosure agreement's restrictions

sustained" in the absence of the actor's conduct. ( Rest.2d Torts, § 432(1).) In the context of a cause of action for inducing interference with contractual relations, some courts have stated that causation exists where the plaintiff can show the contract would have been performed in the absence of the defendant's alleged inducements. (See Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177 , 1196, 125 Cal.Rptr.3d 242 ; Dryden, supra , 65 Cal.App.3d at p. 997, 135 Cal.Rptr. 720 ; see also 5 Witkin, Summary of Cal. Law (11th ed. 2018) Torts, § 850, p. 1156 ["[i]t must be alleged and proved that the defendant's act caused the breach, i.e., that otherwise the contract would have been performed"].) Causation is ordinarily a question of fact that may be decided as a

Salgado's manuscript to Univision "[p]romptly

by any contract that would impair his involvement in the Series, (2) signing a notarized affidavit to that effect, and (3) continuing to deny he ever signed the nondisclosure agreement. The Producers' arguments do not establish, as a matter of law, their actions were not a substantial factor in bringing about Salgado's alleged breach of the nondisclosure agreement by disclosing and using confidential information for the purpose of producing, marketing, and broadcasting a "tell-all" story about Rivera. While Salgado may have found other partners to facilitate his alleged breaches of contract had the Producers not been involved, JRE made a showing of minimal merit on the element of causation.

b. Damages

As discussed, JRE alleged the Producers' interference with Salgado's nondisclosure agreement negatively affected the value of the information protected by the agreement and the ability of JRE to use the information for its purposes. JRE further alleged the Producers' interference limited JRE's economic opportunities to publish a book or produce or sell a television show or series about Rivera containing the information. The Producers did not argue in their special motion to strike that JRE could not make a prima facie factual showing of its damages. The trial court did not address this element in its ruling, and the Producers do not argue on appeal that JRE did not make a sufficient prima facie showing on damages.

C. The First Amendment Bars JRE's Causes of Action Against Univision

Unlike the Producers, Univision argued in the trial court the First Amendment barred JRE's causes of action because the Series was "a truthful account of a newsworthy event about a public figure." The trial court disagreed, concluding JRE met its burden to show at this stage of the proceedings Univision's actions constituted an "independent tort" that was not protected under the First Amendment as "routine reporting techniques." ( Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509 , 223 Cal.Rptr. 58 ( Nicholson ).) Univision contends the trial court improperly applied Nicholson to the facts of this case and accepted the truth of JRE's allegations without requiring JRE to present admissible evidence to support them.

Branzburg v. Hayes (1972) 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 the United States Supreme Court held the "First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." ( Id. at p. 683, 92 S.Ct. 2646 .) The press has no " 'special immunity from the application of general laws,' " nor does it have a " 'special privilege to invade the rights and liberties of others.' " ( Ibid. )

In Cohen v. Cowles Media Co. (1991) 501 U.S. 663 , 111 S.Ct. 2513 , 115 L.Ed.2d 586 ( Cohen ) the United States Supreme Court held the First Amendment did not prohibit a plaintiff from recovering damages against a newspaper for breaching its promise not to publish the plaintiff's identity as the source of a particular story. The United States Supreme Court stated that "generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." ( Id. at p. 669, 111 S.Ct. 2513 ; see Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200 , 236, 74 Cal.Rptr.2d 843 , 955 P.2d 469 ( Shulman ) ["the First Amendment does not immunize the press from liability for torts or crimes committed in an effort to gather news"]; Nicholson, supra , 177 Cal.App.3d at p. 518, 223 Cal.Rptr. 58 [same].) The First Amendment does not "shield the press from torts and crimes committed in the pursuit of a story." ( Wolfson v. Lewis (E.D. Pa. 1996) 924 F.Supp. 1413 , 1417 ; see Raef v. Appellate Division of Superior Court (2015) 240 Cal.App.4th 1112 , 1123, 193 Cal.Rptr.3d 159 ; Dahlstrom v. Sun-Times Media, LLC (7th Cir. 2015) 777 F.3d 937 , 950 ; Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245 , 249.)

action for invasion of privacy where a newspaper published recorded communications between accident victims and rescuers in a helicopter ambulance]; Lieberman v. KCOP Television, Inc., supra , 110 Cal.App.4th at pp. 165-166, 1 Cal.Rptr.3d 536 [trial court properly denied a special motion to strike a cause of action based on unlawfully recorded communications between a physician and his patients]; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023 , 1030-1032, 37 Cal.Rptr.2d 431 [First Amendment did not bar a cause of action for intentional infliction of emotional distress where a television reporter told small children their neighbors had been killed and filmed their shocked reactions].)

In Nicholson, supra , 177 Cal.App.3d 509 , 223 Cal.Rptr. 58 the court held a judicial appointee who later ran for public office could not recover damages for invasion of privacy or violation of state law from newspapers that published his unfavorable judicial evaluation by the Commission on Judicial Nominees. ( Id. at pp. 513-514, 223 Cal.Rptr. 58 .) California law made evaluations from that commission confidential, but "in some manner" the State Bar communicated the appointee's unfavorable rating to two newspapers. ( Ibid. ) The court in Nicholson stated: "The First Amendment ... bars interference with th[e] traditional

Salgado. (See Nicholson , at p. 519, 223 Cal.Rptr. 58 ["reporters are not privileged to commit crimes and independent torts in gathering the news"].)

Courts determine whether the media obtained information lawfully by considering whether the media obtained the information by "routine reporting techniques" or "traditional means of news-gathering." (See Florida Star, supra , 491 U.S. at pp. 538-539, 109 S.Ct. 2603 [publication based on a government news release "is a paradigmatically 'routine newspaper reporting techniqu[e]' " that results in a "lawful" dissemination of information]; Smith v. Daily Mail Pub. Co., supra , 443 U.S. at pp. 103-104, 99 S.Ct. 2667 [use of "routine

The producers argue JRE failed to demonstrate a probability of success on the merits of its causes of action. We conclude JRE satisfied its burden to demonstrate a prima facie case, with reasonable inferences from admissible evidence, that the producers had knowledge of the nondisclosure agreement before taking actions substantially certain to induce Salgado to breach the agreement. Therefore, we affirm the trial court's order denying the producers' special motion to strike.

The broadcaster makes similar arguments regarding JRE's case in chief, but also argues the First Amendment provides a complete defense because JRE's causes of action arise out of the broadcast of matters of public interest. Although First Amendment protection for newsgathering or broadcasting does not extend to defendants who commit a crime or an independent tort in gathering the information, it is undisputed the broadcaster did not know of the nondisclosure agreement at the time it contracted with the producers to broadcast the series, and JRE did not show the broadcaster engaged in sufficiently wrongful or unlawful conduct after it learned of the nondisclosure agreement to preclude First Amendment protection. Therefore, the First Amendment protected the broadcaster's use and broadcast of the information in the series, and we reverse the trial court's order denying the broadcaster's special motion to strike.

FACTUAL AND PROCEDURAL BACKGROUND

A. Salgado Signs a Nondisclosure Agreement

Rivera, born Dolores Janney Rivera, died at age 43 with five surviving children.

the terms of the nondisclosure agreement, including by disclosing information protected by the agreement or using such information for himself or others. In its letter accompanying the restraining order, JRE asserted Univision "has and continues to interfere with the [nondisclosure agreement] and induce its breach. As the [trial court] has made clear, any reliance on Salgado's unfounded assertions about his signature's authenticity is unreasonable given the strong evidence of the validity of the [nondisclosure agreement]."

The Series premiered on Univision on January 15, 2017, and Rivera's sister confirmed her belief the Series included information known only to Rivera's family, Salgado, and a small number of individuals

induce a breach of contract because the Producers "subjectively (and reasonably) believed Salgado's representations that no valid contract existed." The Producers also argued their conduct could not have caused Salgado to breach the nondisclosure agreement because the Producers' allegedly wrongful conduct occurred after Salgado had allegedly breached the agreement.

Univision argued JRE could not show a probability of prevailing on the merits because JRE had not shown the Series included confidential information provided by Salgado, Univision did not know about the nondisclosure agreement "at the time [Univision] negotiated and entered into the license agreement in May 2016 with BTF," there was no evidence Univision interfered with Salgado's nondisclosure agreement, and California's Uniform Trade Secrets Act ( Civ. Code, § 3426.1 ) (UTSA) and the First Amendment barred JRE's tort claims against Univision. Univision argued the First Amendment provides blanket protection for the publication or broadcast of truthful information about a matter of general public interest like the Series.

In response to both motions JRE did not contest the defendants' showing that JRE's causes of action arose from protected conduct under the first step of the section 425.16 analysis. JRE argued, however, that section 425.16 requires only a

success." ( Baral , at p. 384, 205 Cal.Rptr.3d 475 , 376 P.3d 604 ; accord, Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 , 1061, 217 Cal.Rptr.3d 130 , 393 P.3d 905 .)

The second step requires a " 'summary-judgment-like' " analysis. ( Baral, supra , 1 Cal.5th at p. 384, 205 Cal.Rptr.3d 475 , 376 P.3d 604 ; see Taus v. Loftus (2007) 40 Cal.4th 683 , 714, 54 Cal.Rptr.3d 775 , 151 P.3d 1185 .) "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." ( Baral , at pp. 384-385, 205 Cal.Rptr.3d 475 , 376 P.3d 604 ; see Barry, supra , 2 Cal.5th at p. 321, 212 Cal.Rptr.3d 124 , 386 P.3d 788 .) "[A] trial court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based' in evaluating the plaintiff's probability of success." ( Barry , at p. 321, 212 Cal.Rptr.3d 124 , 386 P.3d 788 ; see § 425.16, subd. (b)(2).) Evidence supporting a reasonable inference may establish a prima facie case. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 , 822, 124 Cal.Rptr.3d 256 , 250 P.3d 1115 ( Oasis West Realty ) ["the proper inquiry in the context of [a special motion to strike] 'is whether the plaintiff proffers sufficient evidence for such an inference' "]; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153 , 1175, 131 Cal.Rptr.3d 478 [plaintiff established a prima facie case of breach of confidence and breach of fiduciary duty by showing a reasonable inference the defendant improperly used or disclosed confidential information].)

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." ( Baral, supra , 1 Cal.5th at p. 385, 205 Cal.Rptr.3d 475 , 376 P.3d 604 ; see Barry, supra , 2 Cal.5th at p. 321, 212 Cal.Rptr.3d 124 , 386 P.3d 788 .) " 'In making this assessment, the court ... must also examine whether there are any constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether there is evidence to negate any such defenses.' " ( Dean v. Friends of Pine Meadow (2018) 21 Cal.App.5th 91 , 107, 229 Cal.Rptr.3d 865 ; see McGarry v. University of San Diego (2007) 154 Cal.App.4th 97 , 108, 64 Cal.Rptr.3d 467 .) " ' "[C]laims with the requisite minimal merit may proceed." ' " ( Sweetwater Union High School District v. Gilbane Building Co. (2019) 6 Cal.5th 931 , 940, 243 Cal.Rptr.3d 880 , 434 P.3d 1152 ; accord, Park v. Board of Trustees of California State University, supra , 2 Cal.5th at p. 1061, 217 Cal.Rptr.3d 130 , 393 P.3d 905 ; see Issa v. Applegate (2019) 31 Cal.App.5th 689 , 702, 242 Cal.Rptr.3d 809 ["[t]he 'burden of establishing a probability of prevailing is not high' "];

Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515 , 530, 44 Cal.Rptr.3d 517 ["[w]e are inclined to allow the plaintiff in a [special motion to strike] a certain degree of leeway in establishing a probability of prevailing on its claims due to 'the early stage at which the motion is brought and heard [citation] and the limited opportunity to conduct discovery' "].)

We review de novo an order granting or denying a special motion to strike under section 425.16. ( Park v. Board of Trustees of California State University, supra , 2 Cal.5th at p. 1067, 217 Cal.Rptr.3d 130 , 393 P.3d 905 ; Oasis West Realty, supra , 51 Cal.4th at pp. 819-820, 124 Cal.Rptr.3d 256 , 250 P.3d 1115 .) "If the trial court's decision denying [a special motion to strike] is correct on any theory applicable to the case, we may affirm the order regardless of the correctness of the grounds on which the trial court reached its conclusion." ( Issa v. Applegate, supra , 31 Cal.App.5th at p. 701, 242 Cal.Rptr.3d 809 ; see Reed v. Gallagher (2016) 248 Cal.App.4th 841 , 853, 204 Cal.Rptr.3d 178 .)

B. JRE Made a Prima Facie Showing Sufficient To Sustain a Favorable Judgment on Its Causes of Action Against the Producers for Interference with Contract and Inducing Breach of Contract

"The elements of a cause of action for intentional interference with contractual relations are '(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.' " ( Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989 , 997, 230 Cal.Rptr.3d 98 ; see Popescu v. Apple Inc. (2016) 1 Cal.App.5th 39 , 51, 204 Cal.Rptr.3d 302 ( Popescu ).) The defendant's conduct need not be wrongful apart from the interference with the contract. ( Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26 , 55, 77 Cal.Rptr.2d 709 , 960 P.2d 513 ; Popescu , at p. 51, 204 Cal.Rptr.3d 302 .) "Furthermore, a plaintiff need not establish that the primary purpose of the defendant's actions was to disrupt the contract. The tort is shown even where ' "the actor does not act for the purpose of interfering with the contract or desire it but knows that the interference is certain or substantially certain to occur as a result of his [or her] action." ' " ( Popescu , at p. 51, 204 Cal.Rptr.3d 302 ; see Rest.2d Torts, § 766, com. j, p. 12.)

The tort of inducing breach of contract requires proof of a breach, whereas the tort of interference with contractual relations requires only proof of interference. (See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118 , 1129, 270 Cal.Rptr. 1 , 791 P.2d 587 ["[p]laintiff need not allege an actual or inevitable breach of contract in order to state a claim for disruption of contractual relations"];

Heritage Provider Network, Inc. v. Superior Court (2008) 158 Cal.App.4th 1146 , 1154, 70 Cal.Rptr.3d 645 [same].) Because JRE alleged the same conduct caused a breach and a disruption of the nondisclosure agreement, we address together whether JRE made the required showing of minimal merit on both causes of action. (See

obligation not to disclose or use confidential information about Rivera. In addition, JRE submitted evidence the Producers knew of the nondisclosure agreement and its likely authenticity before or very soon after production of the Series began in September 2016.

The Producers suggest they cannot be liable for inducing any breach of the nondisclosure agreement that occurred after the first time JRE claims Salgado breached the agreement, which may have occurred as early as February 2016, when Salgado met with the Producers and Univision. But successive causes of action for breach of contract may arise from a single contract with continuing obligations. (See § 1047 ["[s]uccessive actions may be maintained upon the same contract or transaction, whenever, after the former action, a new cause of action arises therefrom"]; Yates v. Kuhl (1955) 130 Cal.App.2d 536 , 540, 279 P.2d 563 ["[s]uccessive causes of action based on the same contract or transaction are specifically recognized by section 1047"]; see also Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185 , 1199, 151 Cal.Rptr.3d 827 , 292 P.3d 871 [" '[w]hen an obligation or liability arises on a recurring basis, a cause of

[the] first alleged breach"]; Kwan v. Schlein (S.D.N.Y. 2006) 441 F.Supp.2d 491 , 501 [complaint stated a claim for breach of contract where the plaintiff alleged "partial and ongoing" breaches of the promises to give her co-author credit and royalties in perpetuity].) JRE claims Salgado breached the nondisclosure agreement each time he disclosed to the Producers new information covered by the agreement or used such information in a new way.

The Producers argue that California law does not recognize a cause of action for interference with or inducing a breach of contract based on a theory of partial, continual, or ongoing breaches of contract and that any such theory does not apply to the facts of this case. Indeed, none of the parties has identified a California case endorsing a cause of action for interference with or inducing a breach of a contract that imposed a continuing obligation, and several federal authorities applying California law have acknowledged the absence of authority on this issue. (See, e.g., Wolf v. Travolta (C.D.Cal. 2016) 167 F.Supp.3d 1077 , 1105 ; DC Comics v. Pacific Pictures Corp. (C.D.Cal. 2013) 938 F.Supp.2d 941 , 950.)

But in Boon Rawd Trading Intern. Co., Ltd. v. Paleewong Trading Co., Inc. (N.D.Cal. 2010) 688 F.Supp.2d 940 the federal district court, applying California law, allowed a claim for intentional interference with prospective economic advantage to proceed based on the allegation the defendant engaged in "a scheme and pattern of tortious conduct" that purportedly began in 2003 with the formation of a beer distributor that competed with the plaintiff and continued through the commencement of the action seven years later. ( Id. at p. 952.) The plaintiff in Boon Rawd alleged, among other things, the defendant misappropriated

defendants turned the franchisee's restaurants into a "laboratory experiment," not when the plaintiff suffered economic losses]; Electronic Bankcard Systems, Inc. v. Retriever Industries, Inc. (Tex.App., Jan. 30, 2003, No. 01-01-00240-CV), 2003 WL 204717 at p. 7 [declining to apply the continuing tort doctrine to the plaintiffs' claim for tortious interference with a business relationship where there was no "ongoing wrong"].) These cases merely acknowledge the unremarkable propositions that the tort of interference with a contractual relationship is complete upon the simultaneous occurrence of each element of the tort and that individual elements of the tort occurring later in time do not relate back to conduct that completed the tort outside the period of limitations. (See, e.g., Blazer Foods, Inc. v. Restaurant Properties, Inc. , at p. 256, 673 N.W.2d 805 .) But that does not mean a plaintiff cannot maintain a cause of action for interference with contractual relations or inducing breach of contract for separate, completed torts with discrete accrual dates. (See 6 Callmann on Unfair Competition, supra , at § 23:32 ["[s]ome cases say that interference with contractual relations is not a continuing tort," but "that may depend on whether the underlying conduct which creates the interference is of a continuing nature or not," fns. omitted].)

b. The Producers' Remaining Arguments Do Not Defeat JRE's Prima Facie Showing of Knowledge

The Producers argue that, even if knowledge of the nondisclosure agreement acquired subsequent to the Coproducers Agreement is relevant, JRE's cease and desist letter did not give the Producers sufficient knowledge of the agreement. The Producers contend they reasonably doubted the authenticity and enforceability of the agreement because Salgado declared under penalty of perjury that he never signed the agreement, that there was no agreement restricting him from discussing his personal experiences with Rivera, and that his signature on the agreement was a forgery.

The Producers' argument, however, does not demonstrate, as a matter of law, that they did not have the requisite knowledge of the nondisclosure agreement to avoid liability for inducing its breach or interfering with it. Instead, based on reasonable inferences from the evidence submitted by JRE, the trier of fact could conclude the Producers had knowledge of the nondisclosure agreement before they induced Salgado to breach it or otherwise interfered with it. (See Oasis West Realty, supra , 51 Cal.4th at p. 822, 124 Cal.Rptr.3d 256 , 250 P.3d 1115 [reasonable inference may constitute a prima facie showing to defeat a special motion to strike]; Fremont Reorganizing Corp. v. Faigin, supra , 198 Cal.App.4th at p. 1175, 131 Cal.Rptr.3d 478 [same].) This evidence included the cease and desist letter and related correspondence,

assertion of contractual rights may constitute intentional interference with contractual relations where the "conduct was intentionally aimed at a perceived competitor"].) JRE alleged and provided sufficient evidence to show at least a reasonable inference that the Producers intended "to further their own economic advantage at [JRE's] expense" by inducing Salgado, through payments and other benefits, to continue breaching the nondisclosure agreement. ( Imperial Ice, supra , 18 Cal.2d. at p. 39, 112 P.2d 631 ; see I-CA Enterprises, Inc. v. Palram Americas, Inc., supra , 235 Cal.App.4th at pp. 290-292, 185 Cal.Rptr.3d 24 [evidence supported an inference the defendant engaged in intentional acts designed to disrupt the relationship between the plaintiff and a third party rather than merely engaging in lawful competition].)

The Producers also argue they could not have intended to interfere with or induce a breach of the nondisclosure agreement because they reasonably relied on Salgado's representations that he never signed the agreement and that no contract restricted his involvement in the Series. The Producers cite 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568 , 132 Cal.Rptr.2d 789 for the proposition that a plaintiff cannot establish a probability of prevailing on a cause of action for inducing breach of contract where the defendant "reasonably relied" on assurances the defendant's conduct would not infringe on a third party's contractual rights. But JRE

on Salgado's use and disclosure of protected information, it is a reasonable inference from the admissible evidence that Salgado breached the agreement after the Producers had knowledge of it.

5. Resulting Damage

a. Causation

"Determining whether a defendant's misconduct was the cause in fact of a plaintiff's injury involves essentially the same inquiry in both contract and tort cases. [Citations.] 'The test for causation in a breach of contract ... action is whether the breach was a substantial factor in causing the damages.' [Citation.] Similarly, in tort cases, 'California has definitively adopted the substantial factor test ... for cause-in-fact determinations. [Citation.] Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury.' " ( Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088 , 1103, 192 Cal.Rptr.3d 354 ; see Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 , 968-969, 67 Cal.Rptr.2d 16 , 941 P.2d 1203 ; Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375 , 391, 10 Cal.Rptr.3d 429 [applying the substantial factor test to causes of action for interference with contractual relations and interference with prospective economic relations].) "The term 'substantial factor' has not been judicially defined with specificity, and indeed it has been observed that it is 'neither possible nor desirable to reduce it to any lower terms.' ... [A] force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage, or loss is not a substantial factor. [Citation.] Undue emphasis should not be placed on the term 'substantial.' " ( Rutherford v. Owens-Illinois, Inc. , at p. 969, 67 Cal.Rptr.2d 16 , 941 P.2d 1203 .) Further, a substantial factor need not be the only factor contributing to the plaintiff's alleged harm. ( Ibid. )

The substantial factor test originated in the Restatement (Second) of Torts ( Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965 , 1025, 25 Cal.Rptr.2d 550 , 863 P.2d 795 ), which provides that an actor's conduct "is not a substantial factor in bringing about harm to another if the harm would have been

question of law where the undisputed facts permit only one reasonable conclusion. ( Slovensky v. Friedman (2006) 142 Cal.App.4th 1518 , 1528, 49 Cal.Rptr.3d 60 ; see Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200 , 1205, 114 Cal.Rptr.2d 470 , 36 P.3d 11 [causation is a question of fact].)

JRE contends the Producers caused Salgado to breach the nondisclosure agreement by providing him "financial enticements ... on an ongoing basis throughout the production of the Series" and various "professional benefit[s], including executive producer credit and promotional opportunities, all of which helped Salgado market his forthcoming book about Rivera and bolstered Salgado's standing in the entertainment industry. The evidence in the record suggests the Producers agreed to many of these "enticements" before they knew about the nondisclosure agreement. But once they knew of the agreement, the Producers' continued payments to Salgado were a substantial factor in bringing about Salgado's continued breaches. To determine whether JRE made the minimal showing of causation sufficient to establish a prima facie case, we need only ask whether Salgado would have continued to cooperate with the production and marketing of the Series had he not continued to receive payments and assurances of a platform from which to publicize and exploit confidential information about Rivera. The most reasonable inference from the evidence is that he would not. And, as stated, while the Producers' continued performance of their contractual obligations to Salgado may have been legally justified under the circumstances, the Producers did not assert this affirmative defense.

The Producers argue JRE cannot show their actions were a substantial factor in bringing about Salgado's alleged breaches because Salgado allegedly breached the agreement by writing an unpublished manuscript about his experiences with Rivera, would have breached the agreement anyway, and repudiated the agreement before the Producers allegedly induced him to breach it. For the most part, these arguments fail because they do not take account of the continuing nature of Salgado's obligations under the nondisclosure agreement and his repeated breaches of the agreement.

The Producers suggest Salgado had already breached the nondisclosure agreement before they began production of the Series by drafting an unpublished manuscript of a book about his experiences with Rivera. Merely drafting the manuscript without sharing it with anyone, while possibly a breach of Salgado's obligation not to "use" protected information, would not result in any damages to JRE. It is a fair inference from the evidence, however, that Salgado breached the agreement for the first time no later than May 2016, when BTF and Univision signed the term sheet, which required BTF to deliver a copy of

For the same reason, that Salgado may have breached the nondisclosure agreement in the future by publishing his manuscript does not mean the Producers' actions were not a substantial factor in bringing about the disclosure of Rivera's secrets to a national broadcast audience.

Finally, the Producers argue Salgado never intended to honor his obligations under the nondisclosure agreement and disavowed those obligations by (1) representing and warranting he was not bound

1. The Scope of First Amendment Protection for Newsgathering Techniques Used To Acquire Truthful, Newsworthy Information

" '[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.' " ( Snyder v. Phelps (2011) 562 U.S. 443 , 452, 131 S.Ct. 1207 , 179 L.Ed.2d 172 ( Snyder ); see Connick v. Myers (1983) 461 U.S. 138 , 145, 103 S.Ct. 1684 , 75 L.Ed.2d 708 .) "Speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community,' [citation] or when it 'is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.' " ( Snyder , at p. 453, 131 S.Ct. 1207 .) " '[C]elebrity gossip' " concerning "high profile individuals" constitutes a matter of public concern ( Jackson v. Mayweather (2017) 10 Cal.App.5th 1240 , 1254, 217 Cal.Rptr.3d 234 ), and JRE does not contend otherwise.

"The right to speak and publish," however, "does not carry with it the unrestrained right to gather information." ( Zemel v. Rusk (1965) 381 U.S. 1 , 17, 85 S.Ct. 1271 , 14 L.Ed.2d 179 ; see Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156 , 165, 1 Cal.Rptr.3d 536 .) In

"While refusing to recognize a broad privilege in newsgathering against application of generally applicable laws, the United States Supreme Court has also observed that 'without some protection for seeking out the news, freedom of the press could be eviscerated.' " ( Shulman, supra , 18 Cal.4th at p. 236, 74 Cal.Rptr.2d 843 , 955 P.2d 469 , quoting Branzburg v. Hayes, supra , 408 U.S. at p. 681, 92 S.Ct. 2646 .) The United States Supreme Court has consistently limited the press's newsgathering privilege, however, to circumstances in which the press "lawfully obtains truthful information about a matter of public significance." ( Smith v. Daily Mail Pub. Co. (1979) 443 U.S. 97 , 103, 99 S.Ct. 2667 , 61 L.Ed.2d 399 ; accord, The Florida Star v. B.J.F. (1989) 491 U.S. 524 , 533, 109 S.Ct. 2603 , 105 L.Ed.2d 443 ( Florida Star ); see Bartnicki v. Vopper (2001) 532 U.S. 514 , 525, 535, 121 S.Ct. 1753 , 149 L.Ed.2d 787 ["a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," so long as the press's "access to the information ... was obtained lawfully"]; Cohen, supra , 501 U.S. at p. 671, 111 S.Ct. 2513 ["it is not at all clear that [the defendants] obtained [the plaintiff's] name 'lawfully' in this case, at least for purposes of publishing it"].) By protecting newsgathering techniques that lawfully acquire information, "the government retains ample means of safeguarding significant interests upon which publication may impinge." ( Florida Star , at p. 534, 109 S.Ct. 2603 .) For example, "[t]o the extent sensitive information rests in private hands, the government may under some circumstances forbid its nonconsensual acquisition, thereby bringing outside of the Daily Mail principle [that the government may not punish the publication of lawfully acquired information] the publication of any information so acquired." ( Florida Star , at p. 534, 109 S.Ct. 2603 ; see Shulman , at pp. 242-243, 74 Cal.Rptr.2d 843 , 955 P.2d 469 [First Amendment did not bar a cause of

function of a free press in seeking out information by asking questions. Thus it is that 'a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources and that government cannot restrain the publication of news emanating from such sources.' [Citation.] Consequently, the news gathering component of the freedom of the press-the right to seek out information-is privileged at least to the extent it involves 'routine ... reporting techniques.' " ( Id. at p. 519, 223 Cal.Rptr. 58 , fn.omitted.) The court in Nicholson included among such techniques "asking persons questions, including those with confidential or restricted information." ( Ibid. ) The court in Nicholson also identified "soliciting, inquiring, requesting and persuading" as "within the news gathering activities which are protected by the First Amendment." ( Id. at p. 520, 223 Cal.Rptr. 58 .) "State law may not impinge upon [such activities] by characterizing [them] as tortious." ( Ibid. ) Thus, "[w]hile the government may desire to keep some proceedings confidential and may impose the duty upon participants to maintain confidentiality, it may not impose criminal or civil liability upon the press for obtaining and publishing newsworthy information through routine reporting techniques." ( Id. at pp. 519-520, 223 Cal.Rptr. 58 .)

2. There Was No Evidence Univision Unlawfully Acquired Confidential Information About Rivera

Univision argues the First Amendment provides a complete defense to causes of action for interference with contract and inducing breach of contract when they arise out of the publication of "a truthful account of a newsworthy event about a public figure." ( Nicholson, supra , 177 Cal.App.3d at p. 516, 223 Cal.Rptr. 58 ; see Kapellas v. Kofman (1969) 1 Cal.3d 20 , 36, 81 Cal.Rptr. 360 , 459 P.2d 912 ["our courts have recognized a broad privilege cloaking the truthful publication of all newsworthy matters"].) JRE argues "[p]aying money to intentionally encourage tortious interference with and to induc[e] the breach of a valid contract" is not "a routine reporting technique, or a traditional means of news-gathering." Thus, JRE argues, Univision can be liable for committing "an independent tort" by acquiring and using confidential information from

DISPOSITION

The order denying Univision's special motion to strike is reversed, and the matter