Leviss v. Madix

Filed 8/14/26 (unmodified opinion attached; received after posting hours 817/26)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
RACHEL LEVISS,
Plaintiff and Respondent,
v.
ARIANA MADIX,
Defendant and Appellant.
B340116
Los Angeles County
Super. Ct. No.
24STCV05072
ORDER MODIFYING
OPINION
THE COURT:
Good cause appearing, the published opinion in the above-
entitled matter, filed on August 5, 2026, is hereby modified as
follows:
On page 19 of the opinion (page 1 of the dissent), the year
“2004” is deleted from both places it appears in the third
paragraph and replaced in both places with the year “2024.”
[There is no change in the judgment.]
_____________________________________________________________
WILEY, Acting P. J. VIRAMONTES, J. SCHERB, J.

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Filed 8/5/26 (see dissenting opinion) (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
RACHEL LEVISS,
Plaintiff and Respondent,
v.
ARIANA MADIX,
Defendant and Appellant.
B340116
(Los Angeles County
Super. Ct. No. 24STCV05072)
APPEAL from an order of the Superior Court of
Los Angeles County. Daniel M. Crowley, Judge. Affirmed.
Nolan Heimann, Jordan Susman, Douglas E. Mirell, and
Jane Davidson for Defendant and Appellant.
Liner Freedman Taitelman + Cooley, Bryan J. Freedman,
Summer E. Benson, Jason H. Sunshine; Geragos & Geragos,
Mark J. Geragos, and Kimberly M. Casper for Plaintiff and
Respondent.
_________________________________

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INTRODUCTION
This action arises out of the discovery of a private sexual
affair, which garnered widespread media attention when news of
the affair became public. Plaintiff and respondent Rachel Leviss
had an affair with Tom Sandoval, the then-boyfriend of defendant
and appellant Ariana Madix. At the time, Leviss, Madix, and
Sandoval were all cast members on the reality television show,
Vanderpump Rules. Madix learned of the affair when she found
sexually explicit videos of Leviss on Sandoval’s cell phone, which
Madix then recorded and sent to Leviss. After the affair became
public, Leviss filed suit against Madix for Madix’s alleged conduct
in accessing, copying, and disseminating the videos. Madix filed
a special motion to strike under Code of Civil Procedure
section 425.16,1 which the trial court denied. We conclude Madix
was not entitled to relief under section 425.16 because she failed
to meet her burden of establishing that the claims alleged against
her arose from constitutionally protected activity. We
accordingly affirm the order denying the special motion to strike.
FACTUAL AND PROCEDURAL BACKGROUND
1. Leviss’s lawsuit against Madix
Vanderpump Rules is a reality television show that
revolves around the personal and professional lives of the staff at
Lisa Vanderpump’s restaurants in West Hollywood. It is
produced by Evolution Media and broadcast by Bravo Media.
Leviss was a cast member on the show from 2016 to 2023. Madix
and Sandoval were also cast members on the show during this
time, and they had been in a romantic relationship since 2014.
1 Unless otherwise stated, all further undesignated statutory
references are to the Code of Civil Procedure.

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On February 29, 2024, Leviss filed a civil action against
Sandoval and Madix. As alleged in the complaint, Leviss and
Sandoval began having a sexual affair in or about August 2022.
Although the affair was purportedly a secret, it was known to
many cast members and suspected by others because Leviss and
Sandoval were not particularly discrete. On March 1, 2023,
Sandoval was performing with his band at a restaurant and bar
when his cell phone fell from his pocket. An attendee retrieved
Sandoval’s phone and handed it to Madix. Madix then searched
the phone and found sexually explicit videos of Leviss, which had
been secretly recorded by Sandoval without Leviss’s knowledge or
consent. Madix sent two videos to Leviss’s cell phone, along with
a text message that stated “you are DEAD TO ME.” Madix also
immediately informed production on Vanderpump Rules about
what she had found.
According to the complaint, news of the affair broke on
March 3, 2023, when TMZ first reported it. The following day,
other tabloid publications began reporting on how Madix learned
of the affair by finding sexually explicit videos of Leviss, citing
unnamed sources. The affair and its aftermath, known as
“Scandoval,” were soon the subject of widespread media
attention. As further alleged in the complaint, the extensive
press coverage of the affair “injected new life” into Vanderpump
Rules, “causing its viewership to explode to unseen levels and
making its cast members mega-celebrities.” However, “[d]ue to a
narrative deliberately fomented by Bravo, Evolution, and the
cast, Leviss became an object of public scorn and ridicule.” Leviss
later checked herself into a mental health treatment facility
where she remained for three months.

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Leviss asserted three causes of action against Madix for
“revenge porn” in violation of Civil Code section 1708.85, invasion
of privacy, and intentional infliction of emotional distress. In
pleading these causes of action, Leviss alleged that Sandoval
recorded the sexually explicit videos without her knowledge or
consent when she was in a private residence, and that Leviss had
a reasonable expectation that her intimate communications with
Sandoval would remain private. Leviss also alleged that Madix
obtained these videos from Sandoval’s cell phone without his
authorization, and “distributed and disseminated them to others,
including but not limited to Madix herself, Leviss, and other
individuals whose identities are not currently known to Leviss.”
Leviss further alleged that Madix “displayed the videos or
disclosed their contents to individuals who may not have received
them directly, including but not limited to Bravo, Evolution,
members of the Vanderpump Rules cast, and other individuals
whose identities are not currently known to Leviss.” Leviss
alleged that she suffered emotional, financial, and reputational
harm “as a result of Madix’s distribution, dissemination, and
publication of the illicit videos.”
2. Madix’s special motion to strike
In response to Leviss’s complaint, Madix filed a special
motion to strike under section 425.16. Madix argued the causes
of action against her arose from constitutionally protected
activity because her alleged conduct concerned an issue of public
interest about an individual in the public eye. Madix further
asserted that Leviss could not demonstrate a reasonable
probability of prevailing on her claims because Madix accessed
Sandoval’s cell phone with a passcode that he previously shared

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with her, and she did not distribute or disseminate the videos of
Leviss to anyone other than Leviss.
In a supporting declaration, Madix asserted that, on the
evening of March 1, 2023, she was handed Sandoval’s cell phone
by a mutual friend after it fell from Sandoval’s pocket as he was
performing with his band at a club. Because Madix and Sandoval
had been in a committed relationship for over nine years, she
knew many of his passcodes, including the one for his cell phone,
and she had accessed his phone on other occasions with his
knowledge and consent. On this occasion, Madix felt the need to
check Sandoval’s phone, and she went to the women’s restroom
for privacy. While in a locked stall, Madix accessed Sandoval’s
phone with his passcode, and found suspicious text messages
between Sandoval and Leviss. Madix then opened the photo
application, and found a video of a FaceTime call between
Sandoval and Leviss in which Leviss was engaging in a sexual
act. At that time, Madix considered Leviss to be a friend, and she
did not know that Leviss and Sandoval were having an affair.
According to her declaration, upon viewing the FaceTime
video, Madix hurriedly took out her own cell phone and made two
recordings of it. She then went outside with Sandoval and
confronted him about the affair. Around the same time, Madix
sent the two video recordings that she had made to Leviss, along
with a text message stating, “ ‘you’re dead to me.’ ” Madix did not
send, share, or show the video recordings to anyone else. While
outside, a heated argument ensued between Madix and Sandoval
during which he forcibly grabbed Madix’s phone from her hands.
As Madix chased after Sandoval, he deleted the video recordings
of Leviss from Madix’s phone, including from the “recently
deleted” folder. After this incident, Madix began informing her

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family and friends about Leviss’s affair with Sandoval, including
how Madix learned of the affair when she found the FaceTime
video of Leviss on Sandoval’s phone.
In addition to her own declaration, Madix supported her
motion with a declaration from a digital forensic examiner whose
firm conducted a forensic extraction and analysis of Madix’s cell
phone. According to the examiner, Madix’s phone did not contain
any nude photos or videos from March 1 to March 2, 2023. Madix
also supported her motion with copies of various news articles,
podcasts, and social media posts, which showed that the affair
was covered by a number of media outlets, and that Leviss was in
the public eye both before and after the news of the affair broke.
3. Leviss’s opposition and Madix’s reply
In her opposition to the special motion to strike, Leviss
argued that her causes of action against Madix did not arise from
protected activity, and even if they did, Leviss had a reasonable
probability of prevailing on the merits of her claims. Leviss
contended that Madix’s conduct was illegal as a matter of law
because it violated Penal Code section 502, which prohibits the
unauthorized access and copying of data from a computer system
or network, and Penal Code section 647, subdivision (j)(4), which
prohibits the unauthorized distribution of private sexual images
of another person. Leviss also claimed that Madix’s conduct did
not implicate a public issue because the affair was a private
matter where Madix accessed and distributed the videos. Each of
her causes of action, asserted by Leviss, arose “from [Madix’s]
theft and distribution of private and sexually explicit recordings.”
In a supporting declaration, Leviss asserted that her sexual
affair with Sandoval was not recorded as part of Vanderpump
Rules and did not take place in the presence of any other person.

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During the affair, Leviss and Sandoval communicated privately,
and at times sexually, on FaceTime calls. Sandoval never asked
for Leviss’s permission to record the video calls, and she was not
aware that he did so. When Leviss received the two videos from
Madix, she realized that Sandoval had recorded their FaceTime
calls without her knowledge and consent. The calls depicted in
the videos took place in February 2023 while Leviss was in a
private residence, and they were intimate communications
reflecting a clandestine sexual affair. Leviss had an expectation
of privacy in those calls with Sandoval, and she never intended
for their contents or existence to become public.
Amongst her arguments in reply, Madix challenged Leviss’s
characterization of the complaint and challenged Leviss’s
assertion that the complaint’s gravamen was the “theft” of
private videos. Madix asserted the complaint’s gravamen was
that “Madix supposedly distributed the videos.”
4. The trial court’s ruling
On July 11, 2024, the trial court held a hearing on Madix’s
special motion to strike. The court pressed Madix’s lawyer on
what protected activity her motion targeted. Her lawyer
responded: “The protected activity, she’s being sued for the
distribution of the video. That’s what she’s being sued for.” After
taking the matter under submission, the court denied the motion.
The court concluded that the causes of action alleged against
Madix, for theft and distribution of the video, did not arise from
protected activity because Madix’s alleged conduct was illegal as
a matter of law under Penal Code section 502. The court found
that Madix’s declaration conclusively established that “she
accessed Sandoval’s phone surreptitiously and made a copy of the
data from the phone—the FaceTime videos—without Sandoval’s

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authorization in the privacy of a women’s bathroom stall.” The
court further found that “none of [Leviss’s] pleaded theories of
liability against Madix arise from [Madix’s] public comments
regarding [Leviss’s] and Sandoval’s secret relationship,” but
instead “arise from private conduct that occurred between
[Leviss], Sandoval, and Madix, despite [Leviss’s] speculation that
Sandoval and Madix may have disseminated the FaceTime
recording to other unknown individuals.” Because the court
concluded that Leviss’s claims against Madix did not arise from
protected activity, it did not consider whether Leviss had shown a
reasonable probability of prevailing on the merits.
Madix filed a timely appeal from the order denying her
special motion to strike.
DISCUSSION
1. Governing law
Section 425.16, often referred to as the anti-SLAPP
statute,2 provides that “[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 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.,
subd. (b)(1).) Section 425.16 must be “construed broadly” to
effectuate its purpose, which is to encourage participation in
2 SLAPP is an acronym for a “ ‘ “strategic lawsuit against
public participation,” ’ ” and special motions to strike brought
under section 425.16 are commonly referred to as “ ‘[a]nti-SLAPP
motions.’ ” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1007, fn. 1 (Bonni).)

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matters of public significance and to ensure such participation is
not chilled through an abuse of the judicial process. (Id.,
subd. (a).)
Resolution of a section 425.16 special motion to strike
requires a two-step process. (Baral v. Schnitt (2016) 1 Cal.5th
376, 384.) “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 success.” (Baral, at
pp. 384–385.) “If the plaintiff cannot make this showing, the
court will strike the claim.” (Bonni, supra, 11 Cal.5th at p. 1009.)
A claim arises from protected activity within section 425.16
if the conduct of the defendant on which the claim is based was
an act in furtherance of the defendant’s right of petition or free
speech. (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1062–1063 (Park); see City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 78.) “[T]he focus is on
determining what ‘the defendant’s activity [is] that gives rise to
his or her asserted liability—and whether that activity
constitutes protected speech or petitioning.’ ” (Park, at p. 1063.)
At this first step, “[t]he defendant’s burden is to identify what
acts each challenged claim rests on and to show how those acts
are protected under a statutorily defined category of protected
activity.” (Bonni, supra, 11 Cal.5th at p. 1009.) However, where
“the defendant concedes, or the evidence conclusively establishes,
that the assertedly protected speech or petition activity was
illegal as a matter of law, the defendant is precluded from using
the anti-SLAPP statute to strike the plaintiff’s action.” (Flatley v.
Mauro (2006) 39 Cal.4th 299, 320.)

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Section 425.16 describes four categories of protected speech
or petitioning activity: “(1) any written or oral statement or
writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law,
(2) any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding
authorized by law, (3) any written or oral statement or writing
made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) 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., subd. (e).)
We review the trial court’s ruling on a special motion to
strike de novo, conducting an independent review of the entire
record. (Park, supra, 2 Cal.5th at p. 1067.) “In addition to the
pleadings, we may consider affidavits concerning the facts upon
which liability is based. [Citation.] We do not, however, weigh
the evidence, but accept the plaintiff’s submissions as true and
consider only whether any contrary evidence from the defendant
establishes its entitlement to prevail as a matter of law.” (Ibid.)
2. Madix failed to meet her burden of establishing that
Leviss’s claims arose from protected activity
In her special motion to strike Leviss’s complaint, Madix
contended that each cause of action alleged against her arose
from protected activity “in connection with a public issue or an
issue of public interest” under section 425.16, subdivision (e)(4).
In denying the motion, the trial court ruled that Madix failed to
satisfy this first prong of the section 425.16 analysis because
(1) Madix’s alleged conduct “was illegal as a matter of law,” and

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(2) Leviss’s pleaded theories of liability “arise from private
conduct” that occurred between Leviss, Sandoval, and Madix.
For purposes of this appeal, we need not decide whether the
conduct at issue was illegal as a matter of law. Even assuming
that the conduct giving rise to Leviss’s claims was not illegal as a
matter of law, Madix failed to establish that the conduct
constituted protected activity “in connection with a public issue
or an issue of public interest” within the meaning of
section 425.16, subdivision (e)(4).
The California Supreme Court has articulated a two-step
inquiry for determining whether activity from which a lawsuit
arises falls within section 425.16, subdivision (e)(4)’s protection.
(FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 148
(FilmOn).) First, the court asks what public issue or issue of
public interest the challenged activity implicates. (Ibid.) Second,
the court asks whether the challenged activity contributes to the
public discussion of such issue. (Id. at pp. 149–150.) Thus, in
seeking relief under section 425.16, “a defendant who claims its
speech was protected as ‘conduct in furtherance of the exercise of
[free speech rights] in connection with a public issue or an issue
of public interest’ [citation] must show not only that its speech
referred to an issue of public interest, but also that its speech
contributed to public discussion or resolution of the issue.”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 900;
accord, FilmOn, at p. 150.)
In deciding what constitutes an issue of public interest,
“courts look to certain specific considerations, such as whether
the subject of the speech or activity ‘was a person or entity in the
public eye’ or ‘could affect large numbers of people beyond the
direct participants’ [citation]; and whether the activity ‘occur[red]

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in the context of an ongoing controversy, dispute or discussion’
[citation], or ‘affect[ed] a community in a manner similar to that
of a governmental entity’ [citation].” (FilmOn, supra, 7 Cal.5th at
pp. 145–146.) In determining whether the defendant’s activity
contributed to the public discussion of that issue, courts “examine
whether a defendant—through public or private speech or
conduct—participated in, or furthered, the discourse that makes
an issue one of public interest.” (Id. at p. 151.) At both stages of
this inquiry, courts also consider the context of the defendant’s
activity, including the identity of the speaker, the location and
audience, and the purpose and timing of the speech or petitioning
activity. (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1252–1253.)
Here, the challenged activity that formed that basis of
Leviss’s claims against Madix was Madix’s alleged conduct in
accessing, copying, and disseminating sexually explicit videos of
Leviss that Sandoval surreptitiously recorded on his cell phone.
In support of her argument that the alleged conduct concerned a
matter of public interest, Madix asserts that, at the time of these
events, Leviss was “a public figure who had voluntarily placed
her romantic entanglements, including her relationships with
Sandoval and Madix, under the microscope of a reality television
show.” Considering that Leviss chose to appear on a popular
reality series that centered on its cast members’ personal lives,
Leviss’s “romantic entanglements” may very well have been a
topic of widespread public interest prior to the disclosure of her
affair with her fellow cast member, Sandoval. However, Leviss’s
status as a person in the public eye does not mean that every
aspect of her personal life was itself a matter of public concern.
For instance, in defining the scope of Penal Code
section 647, the criminal “revenge porn” statute, the Legislature

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defined that the distribution of sexually explicit images “is not a
matter of public concern or public interest solely because the
depicted individual is a public figure.” (Id., subd. (j)(4)(D)(iv), as
amended by Stats. 2022, ch. 882, § 1.) As our Supreme Court also
has recognized, “legitimate public interest does not include ‘a
morbid and sensational prying into private lives for its own sake
… .’ ” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th
200, 224; accord, Catsouras v. Department of California Highway
Patrol (2010) 181 Cal.App.4th 856, 874 [“morbid and sensational
eavesdropping or gossip ‘serves no legitimate public interest and
is not deserving of protection’ ”].)
At issue here are video recordings of Leviss engaging in
a private sexual act at a private residence during a private
FaceTime call with Sandoval. In her complaint, Leviss alleged
that she never consented to Sandoval recording these calls, she
was not aware that he was doing so, and she never intended for
their intimate communications to be seen by anyone else. While
it appears both Leviss and Sandoval allowed Vanderpump Rules
to film much of their personal lives as part of the reality show,
there is no indication that the television cameras were rolling or
that anyone else was present when Sandoval surreptitiously
recorded Leviss engaging in a private sexual act. Madix
nevertheless contends that Leviss’s relationship with Sandoval
was “already a source of widespread interest” at the time the
videos were purportedly disseminated because, as alleged in
Leviss’s complaint, the affair was known to many cast members
and suspected by others months before Madix found the videos on
Sandoval’s cell phone. But even if Leviss’s affair with Sandoval
was widely known at the time due to their status as public
figures, any public interest in their affair would not extend to

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private recordings depicting the most intimate aspects of the
relationship.
On this issue, Michaels v. Internet Entertainment Group,
Inc. (C.D.Cal. 1998) 5 F.Supp.2d 823 (Michaels) is instructive.
In Michaels, celebrities Bret Michaels and Pamela Anderson Lee
sought to enjoin the dissemination of a videotape that depicted
the couple engaging in sexual intercourse. (Id. at p. 828.)
The defendant in Michaels, a distributor of adult entertainment
material, had acquired the videotape and intended to publish it.
(Ibid.) In considering the merits of a claim for invasion of privacy
brought by Michaels and Lee, the district court rejected the
distributor’s argument that Michaels’s status as a “rock star” and
Lee’s status as a “sex symbol” made the video’s sexual acts
newsworthy and thus a matter of public concern. (Id. at p. 840.)
As the court explained, “the private matter at issue here is not
the fact that Lee and Michaels were romantically involved.
Because they sought fame, Lee and Michaels must tolerate some
public exposure of the fact of their involvement. [Citation.] The
fact recorded on the [t]ape, however, is not that Lee and Michaels
were romantically involved, but rather the visual and aural
details of their sexual relations, facts which are ordinarily
considered private even for celebrities.” (Ibid.) As in Michaels,
the fact that Leviss and Sandoval were romantically involved
may have been an issue of legitimate public interest, but the
secretly recorded videos of their sexual activity were not.
Accordingly, Madix’s alleged conduct in obtaining and
distributing the videos was not done “in connection with a public
issue or an issue of public interest” under section 425.16,
subdivision (e)(4).

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In arguing that she satisfied her burden under the first
prong of the section 425.16 analysis, Madix asserts that the trial
court erred in excluding certain evidence that further established
that the claims alleged against her arose from protected activity.
Madix contends that the trial court erroneously excluded “a
Google search showing that Leviss was a public figure prior to
‘Scandoval,’ a video in which Leviss publicly discussed her sex life
prior to ‘Scandoval,’ a post-‘Scandoval’ podcast interview with
Leviss, videos and news articles about ‘Scandoval,’ and
contemporaneous statements made by Madix and Leviss.”
However, even if we were to consider the excluded evidence in
reviewing the trial court’s ruling, it would not support a finding
that the claims alleged arose from protected activity. At most,
this evidence showed that Leviss was a public figure prior to
Madix’s purported dissemination of the sexually explicit videos,
and that both before and after her affair with Sandoval became
public, Leviss discussed various aspects of her personal life in the
media. But the fact that Leviss is a public figure and has spoken
publicly about her personal life, including her romantic
relationships, does not make other highly intimate aspects of her
life, such as an unauthorized sex video of Leviss, a matter of
public interest. And while Leviss may have invited a certain
level of public scrutiny into her personal life by voluntarily
assuming fame as a reality television star, “even people who
voluntarily enter the public sphere retain a privacy interest in
the most intimate details of their lives.” (Michaels, supra,
5 F.Supp.2d at p. 840.)
To be clear, we do not suggest that any statements Madix
may have made about the videos could not be in furtherance of
her free speech rights in connection with an issue of public

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interest. If the actions giving rise to any of Leviss’s claims
against Madix were Madix’s public comments about the videos,
including their sexual content, then that speech could fall within
the scope of section 425.16, subdivision (e)(4). However, at the
first step of the section 425.16 analysis, we must “consider the
elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis
for liability.” (Park, supra, 2 Cal.5th at p. 1063.) Based on the
allegations in Leviss’s complaint and based on the scope Madix
gave her anti-SLAPP motion in the trial court, the actions that
form the basis for Madix’s purported liability and that we
evaluate are not her statements about the videos, but her
allegedly unauthorized acquisition and dissemination of the
videos to Leviss and others. Leviss viewed her complaint this
way in her respondent’s brief, asserting that the “ ‘wrong
complained of’ ” in the pleaded causes of action “was not Madix’s
public speech but rather her theft and distribution of the
[v]ideos.” Leviss’s counsel made a similar point during oral
argument. When asked specifically if he was relying on any of
Madix’s statements about the videos to prove the pleaded causes
of action, Leviss’s counsel stated that he was not. Madix,
meanwhile, had told the trial court in her papers and at the
hearing on her motion that she viewed Leviss’s complaint as only
including, and therefore could only be targeting, the theft and
dissemination of the video. When pressed by the trial court about
what constituted the protected activity, discussion never came
up. And, for good reason then, the trial court did not view the
anti-SLAPP motion as targeting claims based on discussions.
As the dissent points out, Leviss’s counsel did indicate that
Leviss would be seeking damages for the “public scorn and

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ridicule” she faced because her counsel did not know how one
could “separate out” those damages. However, to determine
whether a plaintiff’s claim arises out of protected activity under
section 425.16, “we look to the allegedly wrongful and injurious
conduct of the defendant, rather than the damage which flows
from said conduct.” (Renewable Resources Coalition, Inc. v.
Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 396–397; accord,
Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 884.) Here, the
allegedly wrongful and injurious conduct at issue in the anti-
SLAPP motion was Madix’s acquisition and dissemination of the
videos, not the public scorn or ridicule that may have resulted
from such dissemination.
Last, in concluding that Madix’s alleged conduct does not
constitute protected activity within the scope of section 425.16,
subdivision (e)(4), we express no opinion about the veracity of the
allegations in the complaint or the merits of the claims alleged,
including whether the conduct on which Leviss is basing her
claims is actionable. (See Castleman v. Sagaser (2013)
216 Cal.App.4th 481, 493 [courts “do not consider the veracity of
respondents’ allegations in determining whether their claims
arise from protected speech or petitioning activity”]; Miller v.
Zurich American Ins. Co. (2019) 41 Cal.App.5th 247, 256 [at the
first step of the section 425.16 analysis, “ ‘the court does not
consider whether the complaint alleges a cognizable wrong or
whether the plaintiff can prove damages’ ”].) In particular, we
express no opinion as to whether Leviss can prove that Madix
distributed the videos to anyone other than Leviss, or whether
Leviss can prevail on her causes of action if, as Madix asserts,
Leviss was the only person to whom Madix sent or showed the
videos. For purposes of this appeal, we solely hold that Leviss’s

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claims against Madix are not subject to a section 425.16 special
motion to strike because Madix failed to satisfy her threshold
burden of showing that the claims arose from constitutionally
protected activity. The trial court therefore did not err in
denying the special motion to strike.
DISPOSITION
The order denying Madix’s special motion to strike is
affirmed. Leviss shall recover her costs on appeal.
VIRAMONTES, J.
I CONCUR:
SCHERB, J.

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Wiley, J., dissenting.
Today’s holding will astonish the enormous audience that
followed #Scandoval.
Maybe you are not a fan of reality shows. Maybe you are
like me: never heard of Vanderpump Rules or #Scandoval before
this case.
You can get up to speed on these 15 minutes of popular
culture by reading Aleksander, How Tom Sandoval Became the
Most Hated Man in America, N.Y. Times Mag. (Feb. 20, 2004,
updated Mar. 4, 2004) page 22. This article, which the parties
discussed in oral argument and urged us to consult, recounts the
saga of three mass-marketed screen characters on a reality show.
Tom Sandoval was in a committed relationship with Ariana
Madix, who was close friends with Rachel Leviss. Madix
discovered Sandoval was having an affair with Leviss. The
betrayal launched a brouhaha the audience dubbed #Scandoval.
When a massive public audience gives a public name to an
issue, that issue is of public concern. We judges can write all we
want, but this public voted with its eyeballs.
The infamous sex tape was not “public”: just three people
saw it. But the discussion about the scandal has been
whoppingly public. Leviss’s complaint is filled with how the
public nature of that discussion harmed her. At oral argument,
Leviss’s counsel stated Leviss’s claims for damages would include
compensation for the public scorn and ridicule. Leviss’s counsel
said he did not know how one could “separate out” those damages
from the bad effects stemming from the sex tape alone. Because
nearly nobody saw the tape, this case is mainly about the public
scorn and ridicule. Leviss hated her national bad press and sued

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for redress. That is public, because a sustained national public
found the whole affair fascinating. That is the goal of reality
shows: grip a colossal audience. #Scandoval did.
Under Baral v. Schnitt (2016) 1 Cal.5th 376, then, we have
mixed causes of action: part private and part public. I would
remand for the trial court to sort through this mixture. (See, e.g.,
id. at p. 396.)
The trial court denied Madix’s motion on the grounds
Madix broke the law by searching Sandoval’s phone. But Madix’s
declaration can be read to say Sandoval gave Madix blanket
consent to look through his phone. Under this reasonable
interpretation, there was not enough to trigger the rule
demanding “conclusive” proof. (See Flatley v. Mauro (2006) 39
Cal.4th 299, 316, 317; see also id. at p. 318 [“indisputably illegal
behavior”].)
WILEY, J.

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