Case 2:21-cv-07408-VAP-SK Document 21 Filed 11/01/21 Page 1 of 33 Page ID #:108
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`KING & SPALDING LLP
`ARWEN R. JOHNSON (SBN 247583)
` arwen.johnson@kslaw.com
`KELLY PERIGOE (SBN 268872)
` kperigoe@kslaw.com
`633 West Fifth Street, Suite 1600
`Los Angeles, CA 90071
`Telephone: (213) 443-4355
`Facsimile: (213) 443-4310
`
`Attorneys for Defendant NETFLIX, INC.
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
`
`Plaintiff,
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`NONA GAPRINDASHVILI, an
`individual,
`
`
`v.
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`NETFLIX, INC., a Delaware
`corporation, and DOES 1-50,
`
`Defendants.
`
`
`
`Case No. 2:21-cv-07408-VAP-SK
`The Honorable Virginia A. Phillips
`Courtroom: 8A
`
`DEFENDANT NETFLIX, INC.’S
`NOTICE OF MOTION AND
`(1) SPECIAL MOTION TO STRIKE
`PLAINTIFF’S FIRST AMENDED
`COMPLAINT UNDER CALIFORNIA’S
`ANTI-SLAPP STATUTE, OR, IN THE
`ALTERNATIVE, (2) MOTION TO
`DISMISS PURSUANT TO RULE
`12(b)(6); MEMORANDUM OF POINTS
`AND AUTHORITIES
`
`[Declarations of Scott Frank and Arwen
`R. Johnson with Exhibits; and Proposed
`Order filed concurrently herewith]
`
`Date: January 24, 2022
`Time: 2:00 p.m.
`Judge: The Honorable Virginia A. Phillips
`
`Action Filed: September 16, 2021
`Trial Date: Not Set
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`

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`Case 2:21-cv-07408-VAP-SK Document 21 Filed 11/01/21 Page 2 of 33 Page ID #:109
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`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
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`PLEASE TAKE NOTICE that on January 24, 2022 at 2:00 p.m., or as soon
`thereafter as the matter may be heard before the Honorable Virginia A. Phillips of the
`above-entitled Court, located at United States Courthouse, 350 W. 1st Street, Los
`Angeles, CA 90012, Courtroom 8A, Defendant Netflix, Inc. (“Netflix”) will and hereby
`does move the Court (the “Motion”) (1) to strike the claims asserted against Netflix in
`the First Amended Complaint (the “FAC” (ECF No. 11)) of Plaintiff Nona
`Gaprindashvili (“Plaintiff”) pursuant to California’s anti-SLAPP statute, California
`Code of Civil Procedure section 425.16 et seq.; or (2) to dismiss Plaintiff’s FAC, with
`prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(6).
`
`The grounds for the Motion are that (1) Plaintiff’s FAC targets activity protected
`under the anti-SLAPP statute and Plaintiff cannot meet her burden of establishing a
`probability of success on any of her claims; and (2) Plaintiff in any event has failed to
`plausibly allege any claim for relief.
`
`This Motion is based on this Notice of Motion, the accompanying Memorandum
`of Points and Authorities, the accompanying Declarations of Scott Frank and Arwen R.
`Johnson and attached exhibits, the pleadings and records on file in this case, all matters
`of which the Court may take judicial notice, and such other or further material as may
`be presented at or before the hearing on the Motion. This Motion is made following the
`conference of counsel pursuant to Local Rule 7-3, which took place on October 25,
`2021. (Declaration of Arwen R. Johnson (“Johnson Decl.”), ¶ 7.)
`
`DATED: November 1, 2021
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`KING & SPALDING LLP
`ARWEN R. JOHNSON
`KELLY PERIGOE
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`By: /s/ Arwen R. Johnson
`ARWEN R. JOHNSON
` Attorneys for NETFLIX, INC.
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOTION TO STRIKE AND MOT. TO DISMISS
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`I.
`II.
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`Page
`INTRODUCTION ................................................................................................. 1
`STATEMENT OF FACTS .................................................................................... 4
`A. The Series ....................................................................................................... 4
`B. Plaintiff’s Allegations .................................................................................... 6
`C. The Creative Process and Context of the Line .............................................. 7
`III. THE FAC SHOULD BE STRICKEN UNDER CALIFORNIA’S ANTI-
`SLAPP STATUTE ................................................................................................. 8
`A. The Complaint Assails Netflix’s Protected Activity ..................................... 9
`B. Plaintiff Cannot Establish That She Will Probably Prevail on the
`Merits of Her Claims ................................................................................... 11
`1.
`The Series Is a Fictional Work That A Reasonable Viewer
`Would Not Construe as Conveying Objective Fact ............................ 12
`2. A Reasonable Viewer Would Not Draw the Negative Implication
`that Plaintiff Alleges ........................................................................... 15
`The Allegedly Defamatory Statement Does Not Constitute
`Defamation Per Se, and Plaintiff Cannot Satisfy the Special-
`Damages Element of a Defamation Per Quod Claim ......................... 18
`The Gist of the Line is Substantially True .......................................... 21
`Plaintiff Cannot Prove Actual Malice by Clear and Convincing
`Evidence .............................................................................................. 23
`IV. ALTERNATIVELY, THE FAC SHOULD BE DISMISSED WITH
`PREJUDICE FOR FAILURE TO STATE A CLAIM FOR RELIEF
`UNDER RULE 12(b)(6) ...................................................................................... 25
`V. CONCLUSION .................................................................................................... 25
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`Case 2:21-cv-07408-VAP-SK Document 21 Filed 11/01/21 Page 3 of 33 Page ID #:110
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`TABLE OF CONTENTS
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`3.
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`4.
`5.
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Annette F. v. Sharon S.,
`119 Cal.App.4th 1146 (2004) .................................................................................. 25
`Baker v. Los Angeles Herald Examiner,
`42 Cal.3d 254 (1986) ............................................................................................... 17
`Balla v. Hall,
`59 Cal.App.5th 652 (2021) .................................................................... 11, 17, 18, 19
`Barnes-Hind, Inc. v. Super. Ct.,
`181 Cal.App.3d 377 (1986) ..................................................................................... 19
`Bartholomew v. YouTube, LLC,
`17 Cal.App.5th 1217 (2017) .................................................................................... 21
`Bradbury v. Superior Court,
`49 Cal.App.4th 1108 (1996) .................................................................................... 11
`Braun v. Chronicle Publ’g Co.,
`52 Cal.App.4th 1036 (1997) .................................................................................... 22
`Brodeur v. Atlas Entm’t, Inc.,
`248 Cal.App.4th 665 (2016) ........................................................................ 10, 11, 17
`De Havilland v. FX Networks, LLC,
`21 Cal.App.5th 845 (2018) ............................................................................... passim
`Dougherty v. City of Covina,
`654 F.3d 892 (9th Cir. 2011) ............................................................................... 4, 25
`Fellows v. Nat’l Enquirer, Inc.,
`42 Cal.3d 234 (1986) ............................................................................................... 18
`Films of Distinction, Inc. v. Allegro Film Prods., Inc.,
`12 F. Supp. 2d 1068 (C.D. Cal. 1998) ..................................................................... 13
`
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`ii
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
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`Gallagher v. Philipps,
`No. 20-CV-993 JLS (BLM), 2021 WL 4428996 (S.D. Cal. Sept. 27,
`2021) ........................................................................................................................ 19
`Good Gov’t Grp. Of Seal Beach, Inc. v. Super. Ct. of L.A. Cnty.,
`22 Cal.3d 672 (1978) ............................................................................................... 24
`Greater L.A. Agency on Deafness, Inc. v. Cable News Network, Inc.,
`742 F.3d 414 (9th Cir. 2014) ..................................................................................... 8
`Guccione v. Hustler Magazine, Inc.,
`800 F.2d 298 (2d Cir. 1986) .................................................................................... 22
`Guglielmi v. Spelling-Goldberg Prods.,
`25 Cal.3d 860 (1979) ......................................................................................... 12, 14
`Harkonen v. Fleming,
`880 F.Supp.2d 1071 (N.D. Cal. 2012) ....................................................................... 8
`Heller v. NBC Universal, Inc.,
`No. CV-15-09631-MWF-KS, 2016 WL 6583048 (C.D. Cal. June 29,
`2016) .................................................................................................................. 17, 21
`Hughes v. Hughes,
`122 Cal.App.4th 931 (2004) .................................................................................... 22
`Issa v. Applegate,
`31 Cal.App.5th 689 (2019) ...................................................................................... 12
`Khodorkovskaya v. Gay,
`5 F.4th 80 (D.C. Cir. 2021) ...................................................................................... 13
`Klingebiel v. Lockheed Aircraft Corp.,
`494 F.2d 345 (9th Cir. 1974) (per curiam) ................................................................ 9
`Marder v. Lopez,
`450 F.3d 445 (9th Cir. 2001) ..................................................................................... 8
`Masson v. New Yorker Magazine, Inc.,
`501 U.S. 496 (1991)....................................................................................... 3, 13, 21
`McGarry v. Univ. of San Diego,
`154 Cal.App.4th 97 (2007) ............................................................................... passim
`
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`iii
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
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`Metabolife Int’l, Inc. v. Wornick,
`264 F.3d 832 (9th Cir. 2001) ..................................................................................... 8
`Mossack Fonseca v. Netflix Inc.,
`No. CV 19-9330-CBM-AS(x), 2020 WL 8510342 (C.D. Cal. Dec. 23,
`2020) .............................................................................................................. 9, 13, 15
`Navellier v. Sletten,
`29 Cal.4th 82 (2002) .................................................................................................. 8
`Nygard, Inc. v. Uusi-Kerttula,
`159 Cal.App.4th 1027 (2008) ............................................................................ 10, 16
`Partington v. Bugliosi,
`56 F.3d 1147 (9th Cir. 1995) ................................................................... 2, 13, 15, 17
`Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress,
`890 F.3d 828 (9th Cir. 2018) ..................................................................................... 8
`Sarver v. Hurt Locker LLC,
`No. 2:10-CV-09034-JHN, 2011 WL 11574477 (C.D. Cal. Oct. 13,
`2011) ........................................................................................................................ 12
`Sarver v. Chartier,
`813 F.3d 891 (9th Cir. 2016) ................................................................................... 12
`Seelig v. Infinity Broad. Corp.,
`97 Cal.App.4th 798 (2002) ...................................................................................... 10
`Summit Bank v. Rogers,
`206 Cal.App.4th 669 (2012) .............................................................................. 21, 22
`Tamkin v. CBS Broad., Inc.,
`193 Cal.App.4th 133 (2011) .................................................................... 9, 10, 11, 14
`Thomas v. Fry’s Electronics, Inc.,
`400 F.3d 1206 (9th Cir. 2005) ................................................................................... 8
`Underwager v. Channel 9 Austl.,
`69 F.3d 361 (9th Cir. 1995) ................................................................................. 2, 15
`Vogel v. Felice,
`127 Cal.App.4th 1006 (2005) ...................................................................... 16, 17, 22
`
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`Winter v. DC Comics,
`30 Cal.4th 881 (2003) ................................................................................................ 9
`Statutes
`Cal. Code Civ. Proc. § 48a(d)(2) .............................................................................. 3, 19
`Cal. Code Civ. Proc. § 425.16 ........................................................................................ 1
`Cal. Code Civ. Proc. § 425.16(a) .............................................................................. 8, 11
`Cal. Code Civ. Proc. § 425.16(e)(3)–(4) ........................................................................ 9
`Other Authorities
`Inna Lazareva, Georgian women ruled chess in the Soviet era. A new
`generation chases the same ‘Queen’s Gambit’ glory, Washington
`Post, Dec. 13, 2020 .................................................................................................. 20
`Sammy Reshevsky, The Art of Positional Play, Chess Life & Review 217
`(April 1977) ............................................................................................................. 23
`Nona Gaprindashvili – Legendary Chess Careers, a book written by
`Tibor Karolyi, based on interviews with Plaintiff, published by Chess
`Evolution on January 1, 2016 .............................................................................. 7, 20
`March 2020 documentary entitled “Glory to the Queen” .................................. 7, 20, 24
`Netflix limited series “The Queen’s Gambit” ....................................................... passim
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
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`I.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`In October 2020, Netflix released The Queen’s Gambit (the “Series”), a critically-
`acclaimed, popular fictional limited series based on a 1983 novel of the same name.
`Plaintiff Nona Gaprindashvili, an elite chess competitor, asserts claims against Netflix
`arising from a line of dialogue in the Series finale. Because Plaintiff’s meritless claims
`are designed to threaten free speech, as forbidden by the California legislature, they
`should be stricken or, alternatively, dismissed.
`The Series follows the rise of fictional protagonist Elizabeth Harmon, a chess
`prodigy, through the male-dominated world of elite chess during the Cold War era.
`Plaintiff’s allegations arise from a short scene in the Series finale, set 53 years ago in
`1968 at the fictional “Moscow Invitational,” in which a chess announcer speculates that
`Harmon’s male competitors at that tournament likely would not have adequately
`prepared to face her. The fictional announcer remarks during his commentary that
`Harmon’s opponents might be familiar with Plaintiff, but “she’s the female world
`champion and has never faced men” (the “Line”). Plaintiff alleges the Line is inaccurate
`by a few years and therefore false, defamatory, and highly offensive to a reasonable
`person. In her First Amended Complaint (“FAC”), she asserts claims against Netflix
`under California law for (1) false light invasion of privacy and (2) defamation per se.
`Plaintiff’s claims are unavailing and should be stricken under California’s anti-
`SLAPP statute, Cal. Code Civ. Proc. § 425.16, or in the alternative, dismissed with
`prejudice under Rule 12(b)(6) for failure to state a claim. As a threshold matter,
`Plaintiff’s claims arise directly from Netflix’s exercise of its constitutional right of free
`speech in connection with a public issue. The Line is a part of a fictional television
`series that addresses a number of significant matters of public interest, including the
`challenges women faced competing in the male-dominated world of elite chess during
`the 1960s. Netflix easily meets its burden on the first step of the analysis. See De
`Havilland v. FX Networks, LLC, 21 Cal.App.5th 845, 849-50 (2018).
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
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`Plaintiff thus must show that her claims are legally sufficient and factually
`substantiated to meet her burden at step two. Plaintiff cannot meet this burden because
`she cannot prove a probability of prevailing on her claims for each of the following,
`independent reasons:
`First, Plaintiff cannot show that a reasonable viewer of the Series would construe
`the Line as conveying a statement of objective fact, as required for both of her claims.
`Television shows often portray real people, but such people “do [] not own history” or
`“have the legal right to control, dictate, approve, disapprove, or veto the creator’s
`portrayal of actual people.” De Havilland, 21 Cal.App.5th at 849–50. The Line consists
`of speculation by a fictional chess announcer, about how fictional players might have
`prepared for a fictional tournament, in a fictional series, based on a novel. Even in more
`difficult cases involving works of historical fiction or docudramas—which the Series is
`not—courts recognize that viewers are “sufficiently familiar with this genre to avoid
`assuming that all statements within them represent assertions of verifiable facts.”
`Partington v. Bugliosi, 56 F.3d 1147, 1155 (9th Cir. 1995); see also De Havilland, 21
`Cal.App.5th at 866 (granting anti-SLAPP motion to strike defamation and false light
`claims by actress about statements in a docudrama).
`Second, the Line is not defamatory, or even disparaging. It could only be
`construed as reflecting negatively on Plaintiff’s abilities if a reasonable viewer would
`interpret it as insinuating that Plaintiff had not faced men as of 1968 because she was
`“inferior” and not capable of doing so. But that is an inference no reasonable viewer
`would draw from the Line or the tenor of the Series, which is about the challenges a
`female prodigy faces in the gender-segregated chess world. Underwager v. Channel 9
`Austl., 69 F.3d 361, 366–67 (9th Cir. 1995). As the Series powerfully illustrates, there
`are many non-defamatory reasons (bias, gender segregation, etc.) why someone as
`skilled as Plaintiff might not have faced men as of 1968.
`Third, although she styles her defamation claim as one for defamation per se, the
`defamatory implication that Plaintiff alleges depends on viewers being familiar with the
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`opportunities for female chess players in the Soviet Union in 1968. Such facts are not
`common knowledge. See McGarry v. Univ. of San Diego, 154 Cal.App.4th 97, 112
`(2007). Accordingly, her claim is properly construed as a claim of defamation per quod,
`see Cal. Code Civ. Proc. § 48a(d)(2), which requires Plaintiff to plead and prove special
`damages (i.e., economic losses) caused by the Line. As detailed below, she cannot do
`so. At most, the Line is about a moment in time that has no bearing on the decades of
`her career successes that followed and would not cause Plaintiff to experience lost
`economic opportunities.
`Fourth, Plaintiff’s claims also fail for the simple reason that the “gist or sting”
`of the Line is substantially true. See Masson v. New Yorker Magazine, Inc., 501 U.S.
`496, 517 (1991) (“Minor inaccuracies do not amount to falsity so long as the substance,
`the gist, the sting of the libelous charge be justified.”). Plaintiff does not and cannot
`allege that she faced men in prestigious Soviet tournaments before 1968—i.e., the gist
`of the Line as delivered in the context of the scene. Plaintiff alleges that she began
`facing men in a couple of tournaments a few years earlier, but none of those
`competitions were Soviet tournaments like the fictional “Moscow Invitational” in which
`Harmon competes in the Series finale. Moreover, the difference between 1963 and
`1968 amounts to, at most, a minor inaccuracy in timing that is not actionable.
`Fifth, Plaintiff, a public figure, cannot meet her burden to prove that Netflix acted
`with the requisite actual malice. Plaintiff’s malice theory ignores that in adapting the
`novel for television, the Series’ creator removed the disparaging statement that she was
`“not up to the level of” the fictional Moscow Invitational, and added the express
`recognition that she was the female world champion. The creator, moreover, relied on
`two chess experts to confirm the historical chess details of the screenplay adaptation.
`The Series’ reference to Plaintiff was intended to recognize her, not disparage her. She
`cannot establish through clear and convincing evidence that Netflix acted “in the hope
`of insinuating a defamatory import.” De Havilland, 21 Cal.App.5th at 869-70.
`The First Amendment protects the creator’s artistic license to include the Line in
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
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`the fictional Series. Because Plaintiff cannot meet her anti-SLAPP burden, the FAC
`must be dismissed with prejudice.
`Alternatively, for the reasons set forth in Sections III.B.1–4 below—all of which
`can be decided based on the FAC and Series alone—Plaintiff fails to state a claim for
`relief under Rule 12(b)(6). Because no amount of repleading could transform the Line
`into actionable defamation, the claims should be dismissed without leave to amend. See
`Dougherty v. City of Covina, 654 F.3d 892, 901 (9th Cir. 2011).
`II.
`STATEMENT OF FACTS
`The Series
`A.
`Netflix released the Series to its members in October 2020 through its online
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`streaming service. (FAC ¶ 34.) The Series was a critical success and was widely
`viewed. (Id.) It is a seven-episode limited series adapted by director and producer Scott
`Frank from a 1983 novel of the same name by Walter Tevis. (Johnson Decl., Ex. 1
`(“Ex. 1”), e.g., Ep. 1 at 56:43; see also Declaration of Scott Frank (“Frank Decl.”), ¶¶ 1,
`3–4.) The Series tells the story of the fictional Elizabeth Harmon. It follows Harmon’s
`life and career as an orphan who becomes a chess prodigy and later a star chess player
`in the male-dominated and largely gender-segregated chess world of the 1960s, while
`she grapples with addiction and finds her support system. (Ex. 1; Frank Decl., ¶¶ 4, 14–
`15.) The Series explores themes of drug addiction, chosen family, the cost of genius,
`the rejection of gender norms, and the value of collectivism over individualism in the
`context of the Cold War. (Ex. 1; Frank Decl., ¶ 4.)
`The Series, like the novel, is a work of fiction. (Ex. 1, Ep. 1 at 57:59; Frank
`Decl., ¶ 5.) Harmon is a fictional character. (Id.) Her chess opponents and the
`tournaments in which she competes are fictional. (Id.) The Series, however, includes
`references to real events and people to enhance the realism. (Frank Decl., ¶ 6.) To that
`end, Bruce Pandolfini, one of the premier chess teachers in the world (and Tevis’s chess
`consultant during the writing of the novel), and Garry Kasparov, a former world
`champion and expert in Soviet chess during the relevant era, consulted on the adaption
`4
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
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`Case 2:21-cv-07408-VAP-SK Document 21 Filed 11/01/21 Page 12 of 33 Page ID #:119
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`of the Series and reviewed the scripts. (Id. ¶ 19.)
`While the Series largely adheres to the novel, additional context for each chess
`tournament was necessary to set the emotional stakes for the Series and Harmon’s rise
`to predominance in the chess world to ensure that the Series was sufficiently engaging
`for a viewer of a dramatic, fictional, television series. (Frank Decl., ¶¶ 7–8.) For
`example, the prestige and prominence of the tournaments in which Harmon competes
`steadily increase throughout the Series. (Id. ¶ 8; see generally Ex. 1.) Harmon first
`competes in a local tournament, held in her Kentucky hometown. (Ex. 1, Ep. 2 at 27:05–
`28:01, 32:40–34:45; Frank Decl. ¶ 9.) She goes on to play tournaments in Cincinnati,
`Pittsburgh, Houston, Las Vegas, and Mexico City. (Ex. 1, Ep. 3 at 1:34–10:00
`(Cincinnati), 10:35–13:38 (Pittsburgh and Houston), 22:54–41:00 (Las Vegas); id., Ep.
`4 at 9:50–11:40 (Mexico City); Frank Decl., ¶ 8.) Near the end of the Series, Harmon
`competes in even more prestigious and exclusive tournaments: the U.S. Championship
`in Ohio, which she wins; and a Paris invitational. (Ex. 1, Ep. 5 at 27:38–41:40 (Ohio);
`id., Ep. 6 at 19:45–33:40 (Paris); Frank Decl., ¶ 8) Because of her status as reigning
`U.S. Champion, Harmon is invited to compete in the fictional 1968 Moscow
`Invitational. (Ex. 1, Ep. 5 at 42:23–48; Ep. 7 at 26:35–29:52.)
`The fictional Moscow Invitational is portrayed as a highly prestigious
`tournament, as the Soviets were the pinnacle of competitive chess at that time. (Ex. 1,
`Ep. 5 at 41:40–45:27; id., Ep. 6 at 7:10–9:40; Frank Decl., ¶ 10.) The Series also depicts
`sexism and gender-segregation in the male-dominated world of 1960s chess. (Frank
`Decl., ¶ 4.) In Harmon’s first tournament, the male organizers discourage her from
`competing due to the lack of a women’s section. (Ex. 1, Ep. 2 at 33:06–34:02.) Later,
`reporters ask her how it feels “to be a girl among all those men” (Ex. 1, Ep. 3 at 13:50–
`14:23), and when a stranger asks if she is the “U.S. Women’s Champion,” she replies,
`“U.S. Open Co-Champion,” a genderless title. (Ex. 1, Ep. 4 at 1:27–43.)
`At the culminating Moscow Invitational, referred to as the “Tournament of
`Champions,” (Ex. 1, Ep. 7 at 30:36), Harmon is the only American and the only female
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
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`Case 2:21-cv-07408-VAP-SK Document 21 Filed 11/01/21 Page 13 of 33 Page ID #:120
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`chess player. (Id. at 28:25–30:02.) Nevertheless, Harmon triumphs over her internal
`demons, and the low expectations for her based on her nationality and gender, to win
`the tournament by drawing on her chosen family of American chess players for support.
`(Id. at 51:37–59:54.)
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`The end credits of every episode expressly state that the Series is “based upon the
`novel of Walter Tevis” immediately after identifying the director, screenwriter, and
`creators. (Ex. 1, Ep. 1 at 56:43; Ep. 2 at 1:02:29; Ep. 3 at 43:35; Ep. 4 at 46:04; Ep. 5
`at 45:36; Ep. 6 at 57:21; Ep. 7 at 1:04:52; Frank Decl., ¶ 5.) The credits also note:
`[T]he characters and events depicted in this program are fictitious. No
`depiction of actual persons or events is intended.
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`(Ex. 1, Ep. 1 at 57:59; Ep. 2 at 1:03:51; Ep. 3 at 45:01; Ep. 4 at 47:20; Ep. 5 at 46:59;
`Ep. 6 at 58:46; Ep. 7 at 1:06:03.)
`Plaintiff’s Allegations
`B.
`Plaintiff’s FAC for defamation per se and false light is based on a single reference
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`to her in a line of dialogue in one episode of the Series. While Harmon is playing in the
`Moscow Invitational, a tournament announcer says of her opponents:
`As far as they knew, Harmon’s level of play wasn’t up to theirs. Someone
`like Laev probably didn’t spend a lot of time preparing for their match.
`Elizabeth Harmon’s not at all an important player by their standards. The
`only unusual thing about her, really, is her sex. And even that’s not unique
`in Russia. There’s Nona Gaprindashvili, but she’s the female world
`champion and has never faced men. My guess is Laev was expecting an
`easy win, and not at all the 27-move thrashing Beth Harmon just gave him.
`(Ex. 1, Ep. 7 at 29:45–30:31; FAC ¶ 5) (emphasis added).
`Plaintiff alleges that by “impugning that she did not face men, or was inferior to
`men,” the Line is “manifestly defamatory.” (Id. ¶ 77.) She alleges that the Line is false
`because she had played matches against male chess players by 1968. (Id. ¶ 7.) The
`FAC does not allege, however, that Plaintiff had competed against men in a prestigious
`Soviet competition before 1968. Her most notable chess competitions against men and
`co-ed titles, as identified in the FAC, took place after 1968, including Plaintiff’s tie for
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`DEFENDANT NETFLIX, INC.’S SPECIAL MOT. TO STRIKE AND MOT. TO DISMISS
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`Case 2:21-cv-07408-VAP-SK Document 21 Filed 11/01/21 Page 14 of 33 Page ID #:121
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`second place at Sandomierz in 1976, tie for first place at Lone Pine in 1977, and tie for
`second place at Dortmund in 1978. (Id. ¶ 25.) Plaintiff alleges that she became the first
`woman to be awarded the title of “Grandmaster” in 1978, as a result of her 1977 Lone
`Pine performance. (Id. ¶ 28.)
`The Creative Process and Context of the Line
`C.
`The screenwriter who adapted the novel for the Series included the Line to
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`emphasize the male-dominated, gender-segregated world of 1960s chess, especially in
`the Soviet Union, in furtherance of the Series’ narrative arc. (Frank Decl., ¶¶ 13-15.)
`The Line was changed from the following statement by the novel’s narrator:
`As far as they knew, [Harmon’s] level of play was roughly that of Benny
`Watts, and men like Laev would not devote much time to preparation for
`playing Benny. She was not an important player by their standards; the
`only unusual thing about her was her sex; and even that wasn’t unique in
`Russia. There was Nona Gaprindashvili, not up to the level of this
`tournament, but a player who had met all these Russian Grandmasters
`many times before. Laev would be expecting an easy win.
`(FAC ¶ 3.) The Line thus deviates from the novel by shifting the reason the fictional,
`male Soviet chess players would not have faced Plaintiff from her “not [being] up to
`the level of this tournament”—a disparaging comment (that Plaintiff does not think is
`defamatory (id. ¶ 64))—to her being the “female world champion.” In making this
`change, the screenwriter did not intend to disparage Plaintiff, but rather to recognize her
`status, in 1968, as the reigning Women’s World Champion. (Frank Decl., ¶ 18.)
`In adapting the screenplay, the screenwriter and his team spent many hours
`researching chess and consulting with chess experts Pandolfini and Kasparov. (Frank
`Decl., ¶ 19.) All of the scripts for the Series were provided to Pandolfini and Kasparov
`to review for accuracy, and neither expert identified any issue with the Line. (Id. at
`¶ 20.) Indeed, the most widely available information about Plaintiff described her as a
`long-reigning female world champion whose most notable success among me