Hilton v. Hallmark Cards

We must decide whether California law allows a celebrity to sue a greeting card company for using her image and catchphrase in a birthday card without her permission.

I

Paris Hilton is a controversial celebrity known for her lifestyle as a flamboyant heiress. As the saying goes, she is “famous for being famous.”

She is also famous for starring in “The Simple Life,” a so-called reality television program. The show places her and fellow heiress Nicole Ritchie in situations for which, the audience is to assume, their privileged upbringings have not prepared them. For example, work. In an episode called “Sonic Burger Shenanigans,” Hilton is employed as a waitress in a “fast food joint.” As in most episodes, Hilton says, “that’s hot,” whenever she finds something interesting or amusing. She has registered the phrase as a trademark with the United States Patent & Trademark Office.

Hallmark Cards is a major national purveyor of greeting cards for various occasions. This case is about one of its birthday cards. The front cover of the card contains a picture above a caption that reads, “Paris’s First Day as a Waitress.” The picture depicts a cartoon waitress, complete with apron, serving a plate of food to a restaurant patron. An oversized photograph of Hilton’s head is super-imposed on the cartoon waitress’s body. Hilton says to the customer, “Don’t touch that, it’s hot.” The customer asks, “what’s hot?” Hilton replies, “That’s hot.” The inside of the card reads, “Have a smokin’ hot birthday.”

Hilton sued Hallmark, asserting three causes of action. The First Amended Complaint alleges misappropriation of publicity under California common law; false designation under the Lanham Act, 15 U.S.C. § 1125(a); and infringement of a federally registered trademark. Hallmark filed a motion to dismiss each claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief could be granted. The district court *880 granted one portion of the motion to dismiss: the trademark infringement claim, a judgment from which Hilton does not appeal. By separate motion, Hallmark moved specially to strike Hilton’s right of publicity claim under California’s antiSLAPP statute. 1 In both motions, Hallmark raised defenses peculiar to each cause of action, some based on the First Amendment to the United States Constitution and some not.

The district court denied the remaining portions of the motions to dismiss and denied the special motion to strike the anti-SLAPP claim. It concluded that the defenses required a more fact-intensive inquiry than is permissible at such stage of the case. Hallmark timely appeals.

II

Before discussing the merits of this appeal, we must assure ourselves that we have jurisdiction over the appeal of denials of both motions.

A

As to the special motion to strike, appellate courts generally have jurisdiction only over final judgments and orders. 28 U.S.C. § 1291; Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867-68, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). The collateral order doctrine, however, “entitles a party to appeal not only from [ordinary final judgments] ... but also from a narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system, ... nonetheless be treated as final.” Digital Equip. Corp., 511 U.S. at 867, 114 S.Ct. 1992 (internal citations and quotation marks omitted). We have held that denials of special motions to strike under California’s anti-SLAPP statute fall into this narrow class. Batzel v. Smith, 333 F.3d 1018, 1024-26 (9th Cir.2003) (noting that anti-SLAPP motions to strike assert a form of immunity from suit); but cf. Englert v. MacDonell, 551 F.3d 1099, 1106-07 (9th Cir.2009) (holding that the denial of an anti-SLAPP motion under Oregon law is not an appealable collateral order, while recognizing that the denial of a California anti-SLAPP motion is). Thus, we are satisfied that we have jurisdiction to review the denial of Hallmark’s antiSLAPP motion under the collateral order doctrine. 2

B

Denials of motions to dismiss under Rule 12(b)(6) are ordinarily not appeal-able, even as collateral orders. See Catlin v. United States, 324 U.S. 229, 236, 65 S.Ct. 631, 89 L.Ed. 911 (1945). However, we “permit[ ] the exercise of appellate jurisdiction over otherwise non-appealable orders that are ‘inextricably intertwined’ with another order that is properly appeal-able.” Batzel, 333 F.3d at 1023. This doctrine requires either that “we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal ... or [that] resolution of the issue properly raised on interlocutory appeal *881 necessarily resolves the pendent issue.” Id. (internal quotation marks omitted).

1

We first address whether we have jurisdiction over the denial of the motion to dismiss the Lanham Act claim as an order inextricably intertwined with the antiSLAPP motion.

Hallmark argues that the defenses it raises to Hilton’s Lanham Act claim are based on some of the same First Amendment concerns that animate its potential defenses to the misappropriation of publicity claim. That may be, but Hallmark only moved to strike the misappropriation of publicity claim. Indeed, it could not have moved to strike the Lanham Act claim because, as the parties agree, the antiSLAPP statute does not apply to federal law causes of action. See Bulletin Displays, LLC v. Regency Outdoor Adver., Inc., 448 F.Supp.2d 1172, 1180-82 (C.D.Cal.2006). A motion to dismiss one cause of action is not, ordinarily, inextricably intertwined with a motion to strike a different cause of action under California’s anti-SLAPP law, even if the two claims are doctrinally similar.

Because a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims, there is no properly appealable order with which the Lanham Act claim could be inextricably intertwined. We therefore lack jurisdiction to review it.

2

What about the denial of the portions of Hallmark’s motion to dismiss pertaining to the misappropriation of publicity claim, the same claim that was the target of the antiSLAPP motion?

It is clear that not every motion to dismiss the same claim that underlies an anti-SLAPP motion is “inextricably intertwined” with such motion. We have held, for example, that a motion to dismiss for lack of personal jurisdiction 3 is not inextricably intertwined with an anti-SLAPP motion. Batzel, 333 F.3d at 1023. In Zamani v. Carnes, however, we did review a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), which was made as an alternative to an anti-SLAPP special motion to strike the same claim. 491 F.3d 990, 994 (9th Cir.2007). We did it, however, without considering whether we had jurisdiction to do it. 4 Zamani does not, therefore, compel us to conclude that a motion to dismiss a substantive claim under Rule 12(b)(6) is inextricably intertwined with a special motion to strike. See, e.g., United States v. Booker, 375 F.3d 508, 514 (7th Cir.2004) (“An assumption is not a holding.”). We must consider the question for ourselves.

The first type of inextricably intertwined order is one that “we must [review] ... in order to review the claims properly raised on interlocutory appeal.” Batzel, 333 F.3d at 1023 (internal quotation marks omitted). Resolution of a motion to dismiss for failure to state a claim is not a predicate to resolving an anti-SLAPP motion. As we illustrate in this very opinion, we can proceed directly to the anti-SLAPP motion without any interference from a motion to dismiss.

An order may also be inextricably intertwined with an immediately appeal *882 able one if “resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.” Id. (internal quotation marks omitted). To determine whether a motion to dismiss (the pendent issue) is inextricably intertwined with an anti-SLAPP motion to strike (the issue properly raised) in this sense, we must briefly consider the inquiry associated with an anti-SLAPP motion.

As we discuss infra, an antiSLAPP motion requires the court to ask, first, whether the suit arises from the defendant’s protected conduct and, second, whether the plaintiff has shown a probability of success on the merits. If the first question is answered in the negative, then the motion must fail, even if the plaintiff stated no cognizable claim. Of course, if a plaintiff stated no cognizable claim, then the defendant would be entitled to dismissal under Rule 12(b)(6). Thus, a Rule 12(b)(6) motion to dismiss may succeed where an anti-SLAPP motion to strike would not.

The converse is also true. The second stage of the anti-SLAPP inquiry determines whether “the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal.App.4th 515, 44 Cal.Rptr.3d 517, 527 (2006) (internal quotation marks omitted). Such test is similar to the one courts make on summary judgment, though not identical. Thus, a defendant who has stated a legal claim but has no facts to support it could prevail on an anti-SLAPP motion, though he would not have been able to win a motion to dismiss.

The foregoing illustrates that neither the denial nor the grant of an antiSLAPP motion “necessarily resolves,” Batzel, 333 F.3d at 1023, a motion to dismiss regarding the same claim. That is, it is possible for an appellate court to hold that an anti-SLAPP special motion to strike should be granted or denied without thereby dictating the result of a motion to dismiss the same claim under Rule 12(b)(6). Our cases make clear that if the properly appealable order can be resolved without necessarily resolving the pendent order, then the latter is not “inextricably intertwined” with the former. See id. We therefore must conclude that we lack jurisdiction to review that portion of Hallmark’s Rule 12(b)(6) motion to dismiss the right of publicity claim because it is not inextricably intertwined with any properly appealable order.

Ill

Having weeded out of this appeal matters over which we lack jurisdiction, we now address the merits of denial of Hallmark’s special motion to strike the antiSLAPP claim.

A

California, like some other states, has a statute designed to discourage “strategic lawsuits against public participation.” SLAPPs “masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.” Batzel, 333 F.3d at 1024 (internal quotation marks omitted). As California’s antiSLAPP statute explains, the state legislature has found there to be “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.” Cal.Civ.Proc. Code. § 425.16(a). Because “it is in the public interest to encourage continued participation in matters of public significance, and [because] this participation should not be chilled through abuse of the judicial *883 process,” the anti-SLAPP statute is to be construed broadly. Id.

Under the statute,

[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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Id. § 425.16(b)(1). The phrase “act ... in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” is defined by four specific categories of communications. Id. § 425.16(e)(l)-(4). 5 The relevant one here is the fourth, catch-all category: “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Id. § 425.16(e)(4).

California courts evaluate a defendant’s anti-SLAPP motion in two steps. First, the defendant moving to strike must make “a threshold showing ... that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in [subsection (e) of] the statute.” Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 124 Cal.Rptr.2d 507, 52 P.3d 685, 694 (2002) (quoting Cal. Civ.Proc.Code § 425.16(b)(1)). Second, “[i]f the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” Navellier v. Sletten, 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703, 708 (2002). “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 favorable judgment if the evidence submitted by the plaintiff is credited.” Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811, 123 Cal.Rptr.2d 19, 50 P.3d 733, 739 (2002) (internal quotation marks omitted). “[T]hough the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim.” Id.; Cal.Civ.Proc.Code § 425.16(b)(2).

1

For Hallmark’s anti-SLAPP motion to succeed, it must make its “threshold showing” at step one: “that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue [or an issue of public interest].” Equilon Enters., LLC, 124 Cal.Rptr.2d 507, 52 P.3d at 694 (internal quotation marks omitted); Cal.Civ. Proc.Code § 425.16(e)(4). The exact inquiry at the first step is somewhat amorphous, but it seems to contain two distinct components.

a

First, the activity the plaintiff is challenging must have been conducted “in furtherance” of the exercise of free speech rights. By its terms, this language in- *884 eludes not merely actual exercises of free speech rights but also conduct that furthers such rights. Cal.Civ.Proc.Code § 425.16(e)(4); see also Navellier, 124 Cal.Rptr.2d 530, 52 P.3d at 713 (“The [California] [[legislature did not intend that in order to invoke the special motion to strike the defendant must first establish her actions are constitutionally protected under the First Amendment as a matter of law.”).

The California Supreme Court has not drawn the outer limits of activity that furthers the exercise of free speech rights. It seems to suffice, however, that the defendant’s activity is communicative, cf. Commonwealth Energy Corp. v. Investor Data Exch., Inc., 110 Cal.App.4th 26, 1 Cal.Rptr.3d 390, 393 n. 5 (2003), and some courts do not discuss this part of the inquiry at all, see, e.g., Integrated Healthcare Holdings, Inc., 44 Cal.Rptr.3d at 522-26 (not discussing whether an email message was “in furtherance” of free speech rights). Thus, the courts of California have interpreted this piece of the defendant’s threshold showing rather loosely. See also Paul for Council v. Hanyecz, 85 Cal.App.4th 1356, 102 Cal.Rptr.2d 864, 870-71 (2001) (holding that campaign money laundering was in furtherance of political speech but an invalid exercise of free speech rights because it was illegal), overruled on other grounds by Equilon Enters. LLC, 124 Cal.Rptr.2d 507, 52 P.3d at 694 n. 5.

One sensible place to start is to determine whether the activity in question is “speech” under First Amendment law. Here, Hallmark’s card certainly evinces “[a]n intent to convey a particularized message ..., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” 6 Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam) (stating requirement for conduct to qualify as “speech” for purposes of the First Amendment). But compare Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 158-61 (3d Cir.2002) (concluding that Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) modified the Spence standard), with Colacurcio v. City of Kent, 163 F.3d 545, 549 n. 1 (9th Cir. 1998) (reiterating the Spence standard without any gloss from Hurley). Whether or not Hallmark must show that its card is speech under the Spence test or a modifi *885 cation thereof, it certainly suffices that Hallmark can make such a showing.

Thus, Hallmark’s card qualifies as speech and falls comfortably within the universe of types of communication that California courts have considered “conduct in furtherance of’ the exercise of free speech rights upon which to base antiSLAPP motions to strike.

b

Next, Hallmark must show that the sale of its card was “in connection with a public issue or an issue of public interest.” Cal.Civ.Proc.Code § 425.16(e)(4). Hilton contends that the card merely appropriates the waitress role she played on “The Simple Life.” She therefore views this lawsuit as a garden variety private dispute over who profits from her image. According to Hilton, the card implicates no issue of public interest because it involves no issue at all, only a celebrity who interests many people. 7

i

Sitting in diversity, we must begin with the pronouncements of the state’s highest court, which bind us. See Ariz. Elec. Power Coop., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir.1995). The California Supreme Court has not clearly established what constitutes an issue of public interest, but it has provided some guidance. First, “[n]othing in the statute itself categorically excludes any particular type of action from its operation.” Navellier, 124 Cal.Rptr.2d 530, 52 P.3d at 711. Indeed, “[t]he antiSLAPP statute’s definitional focus is not the form of the plaintiffs cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability.” Id (emphasis omitted). Thus, the particular cause of action Hilton has brought is irrelevant to our decision. Ordinary commercial causes of action like breaches of contract, see generally Navellier, 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703, or indeed misappropriation of publicity, can be “strategic lawsuitfs] against public participation” as much as defamation can be, id at 706.

Second, the California Supreme Court has “declined to hold that [the antiSLAPP statute] does not apply to events that transpire between private individuals.” Id at 710 (internal quotation marks omitted). That neither Hilton nor Hallmark are public officials, therefore, cannot be dispositive. Furthermore, the court has “explicitly rejected the assertion that *886 the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government.” Id. (internal quotation marks omitted). Thus, the activity of the defendant need not involve questions of civic concern; social or even low-brow topics may suffice.

The question before us is whether the topic, the issue, can be a celebrity like Paris Hilton, or whether, as Hilton argues, it must be the subject of some defined debate.

In interpreting the anti-SLAPP statute, the California Supreme Court has insisted on its language, including its preamble. See Equilon Enters., 124 Cal.Rptr.2d 507, 52 P.3d at 688 (“When on previous occasions we have construed the anti-SLAPP statute, we have done so strictly by its terms .... ”); id. at 689 n. 3 (discussing the addition of the “broadly construed” language to the statutory preamble as a correction of prior judicial decisions adopting narrowing constructions); Navellier, 124 Cal.Rptr.2d 530, 52 P.3d at 711 (rejecting a narrowing construction of the statute because it “would contravene the Legislature’s express command that section 425.16 ‘shall be construed broadly’ ” (quoting Cal.Civ.Proc.Code § 425.16(a))); see also Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 81 Cal.Rptr.2d 471, 969 P.2d 564, 568-73 (1999) (construing plain language of the statute in light of the preamble).

That preamble declares it to be “in the public interest” of the state of California “to encourage continued participation in matters of public significance .... To this end, this section shall be construed broadly.” Cal.Civ.Proc.Code § 425.16(a). The California Supreme Court has defined “significance” to mean “importance” or “consequence.” Briggs, 81 Cal.Rptr.2d 471, 969 P.2d at 571-72. Thus, we must construe “public issue or issue of public interest” in section 425.16(e)(4) broadly in light of the statute’s stated purpose to encourage participation in matters of public importance or consequence.

Understood this way, the statute does not appear to favor a construction limiting the meaning of “issue” to a subject of a specific debate. However, we need not rest on the implications of the California Supreme Court and the statute, which do not definitively answer the question, “because we have guidance from the [California] Court of Appeals.” Batlan v. Bledsoe (In re Bledsoe), 569 F.3d 1106, 1110 (9th Cir.2009).

ii

The California intermediate appellate courts have developed multiple tests to determine whether a defendant’s activity is in connection with a public issue. One commonly cited test comes from Rivero v. American Federation of State, County, & Municipal Employees, 105 Cal.App.4th 913, 130 Cal.Rptr.2d 81, 89-90 (2003) (concluding that the plaintiffs supervision of eight individuals was not a matter of public interest, where people involved had “received no public attention or media coverage”). There, the Court of Appeal for the First District surveyed the appellate cases and divined from them three categories of public issues: (1) statements “concern[ing] a person or entity in the public eye”; (2) “conduct that could directly affect a large number of people beyond the direct participants”; (3) “or a topic of widespread, public interest.” Id. at 89. The Fourth District has followed this approach. See, e.g., Commonwealth Energy Corp., 1 Cal.Rptr.3d at 394-95 (describing Rivero as the first systematic treatment of the “public issue — public interest aspect of the antiSLAPP statute”).

By contrast, Weinberg v. Feisel, a case from the Third District, articulated a *887 somewhat more restrictive test, designed to distinguish between issues of “public, rather than merely private, interest.” 110 Cal.App.4th 1122, 2 Cal.Rptr.3d 385, 392 (Ct.App.2003).

First, “public interest” does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort to gather ammunition for another round of private controversy. Finally, ... [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.

Id. at 392-93 (internal quotation marks, citations, and alteration omitted).

iii

Although these approaches do not precisely overlap, we need not decide between them, because Hallmark’s birthday card satisfies both tests.

Hallmark’s card falls into either the first or third categories that Rivero outlined: statements “coneern[ing] a person or entity in the public eye”; “or a topic of widespread, public interest,” 130 Cal. Rptr.2d at 89, respectively. There is no dispute that Hilton is a person “in the public eye” and “a topic of widespread, public interest,” and that she was such well before this controversy. 8 Thus, Hallmark’s card is “in connection with a public issue or an issue of public interest,” Cal. Civ.Proc.Code § 425.16(e)(4), under Rivero.

Although the application of the Weinberg test presents a closer call, we conclude it comes to the same result. 9 Again, there is no dispute that Paris Hilton’s career is “something of concern to a substantial number of people,” Weinberg, 2 Cal.Rptr.3d at 392. The connection “between the challenged statements” — the birthday card — “and the asserted public interest”— Hilton’s life, image, and catchphrase — is direct. Id. After all, the card spoofs Hilton’s persona. There was no preexisting controversy between Hallmark and Hilton, so the fourth and fifth considerations that the Weinberg court considered are inapposite. See id. at 392-93.

Weinberg does caution, however, that ‘“public interest’ does not equate with mere curiosity.” Id. at 392 (citing Time, Inc. v. Firestone, 424 U.S. 448, 454-55, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976)). However, this warning comes in the context of Weinberg’s insistence that courts apply the anti-SLAPP statute only to public, not to private matters. Thus, Weinberg elaborated that “a ‘public controversy’ does not equate with any controversy of interest to the public. 10 For example, a divorce action *888 between the scion of one of America’s wealthier industrial families and his Palm Beach society wife may have piqued the public’s interest but was not a public controversy.” Id. at 392 (internal citations omitted). We read this to mean that a private controversy, even between famous people, that interests the public is not enough. Under Weinberg, for the activities of celebrities to be a public issue, the activities, as well as the personages involved must be public.

This limitation does not apply here, however. Hallmark’s card does not spoof some personal detail of Hilton’s life (such as a divorce), it spoofs her trademark phrase and her public persona — the very things that interest people about her. Thus, Weinberg, too, supports Hallmark’s position that its card deals with a public issue.

Du Charme v. International Brotherhood of Electrical Workers, 110 Cal.App.4th 107, 1 Cal.Rptr.3d 501 (2003), is not to the contrary. Hilton contends that Du Charme requires “some sort of ongoing controversy, dispute or discussion which effects [sic] the public.” This overstates the rule of Du Charme. Such case held that

in order to satisfy the public issue/issue of public interest requirement of ... subdivision (e)(3) and (4) of the antiSLAPP statute, in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion ____

Id. at 510 (emphasis added).

Subsequent California appellate courts have honored this clear limitation of Du Charme. See, e.g., Fitzgibbons, 44 Cal.Rptr.3d at 524 {“Du Charme contrasted its situation ... with matters of widespread public interest ----” (internal quotation marks omitted)). Therefore, Hallmark need not show that its card commented on any ongoing public controversy to make the threshold showing under Du Charme because, as she has acknowledged, Hilton’s privileged lifestyle and her catchphrase (“that’s hot”) are matters of widespread public interest.

In short, all of the various approaches that California’s appellate courts have used to define “public issue or an issue of interest to the public” appear to support the conclusion that Hallmark’s birthday card is indeed in connection with such an issue. That the card is a commercial product and Hilton’s lawsuit a dispute over who can profit from her image does not defeat Hallmark’s ability to make its threshold showing. We therefore conclude that Hallmark has shown that Hilton’s suit for misappropriation of publicity arises from “conduct in furtherance of the exercise of the constitutional right of ... free speech in connection with a public issue or an issue of public interest.” Cal.Civ.Proc. Code § 425.16(a), (e)(4).

B

Hallmark, however, has only passed the threshold. “[T]he statute does not bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning; it subjects to potential dismissal only those actions in which the plaintiff cannot state and substantiate a legally sufficient claim.” Navellier, 124 Cal.Rptr.2